Leasure Coal Co.

National Labor Relations Board - Board Decisions

Jun 2, 1970

182 N.L.R.B. 1011 (N.L.R.B. 1970)

LEASURE COAL COMPANY
Donald Leasure, Jr , Robert Leasure, Harold Leasure
and Charles Bankosky d/b/a Leasure Coal Company
and United Mine Workers of America and Southern
Labor Union and its Local No 254, Parties to the
Contract Case 6-CA-4211
June 2, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND
JENKINS
On February 5, 1970, Trial Examiner Lloyd Buchanan
issued his Decision in the above-entitled proceeding,
finding that the Respondents had engaged in and were
engaging in certain unfair labor practices and recom
mending that they cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision Thereafter, the Respondents,
the General Counsel, and Local 254 filed exceptions
to the Trial Examiner's Decision and supporting briefs
Pursuant to the provisions of Section 3(b) -of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three member panel
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial
error was committed The rulings are hereby affirmed
The Board has considered the Trial Examiner's Decision,
the exceptions and the briefs, and the entire record
in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, as modified
below I
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board adopts as its Order the Recommended Order
of the Trial Examiner, as modified herein, and hereby
orders that the Respondents, Donald Leasure, Jr , Robert
Leasure, Harold Leasure, and Charles Bankosky, indi-
vidually and as copartners, d/b/a Leasure Coal Company,
Indiana, Pennsylvania, their agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as so modified
1 Add the following as paragraph 2(b) and reletter
the subsequent paragraphs accordingly
' The General Counsel excepted to the Trial Examiners failure to
provide for the reimbursement of employees for dues and initiation
fees (a) paid to Local 254 prior to its contract with the Respondents
which was unlawfully executed on March 11 1968 and (b) paid or
deducted by the Respondents from the employees wages pursuant
to the union security clause and checkoff provisions contained in the
contract As we agree with the Trial Examiner that the employees
who joined Local 254 prior to March Ii did so voluntarily they are
not entitled to any reimbursement However all present and former
employees who paid dues initiation fees and other monies if any
to Local 254 pursuant to the provisions of the illegal contract executed
on March II are entitled to reimbursement therefor with interest at
6 percent per annum Our Order shall be modified in accordance herewith
1011
"(b) Reimburse all present and former employees
for all dues, initiation fees, and other monies, if any,
unlawfully exacted from them under the aforesaid illegal
agreement with Local 254, together with interest at
the rate of 6 percent per annum in the manner provided
in this Decision "
2 Add the following as the last indented paragraph
of the Appendix
WE WILL reimburse all present and former
employees, with interest, for all dues, initiation
fees, and other monies, if any, paid by them directly
to Loci] 254 or withheld by us from their wages
because of the illegal agreement we signed with
Local 254 on March 11, 1968
TRIAL EXAMINER'S DECISION
LLOYD BUCHANAN, Trial Examiner The complaint
herein (issued July 18, 1969, charges filed April 9 and
29 and June 14, 1968, and July 14, 1969), as amended,
alleges that the Company has violated Section 8(a)(3)
of the National Labor Relations Act, as amended, 73
Stat 519, by entering into, about March 11, 1968, when
the Company did not employ a representative comple-
ment of employees and when SLU and Local 254 did
not represent an unassisted and uncoerced majority of
the Company's employees, and maintaining a collective-
bargaining agreement covering the Company's employ-
ees, which agreement contained a union-security clause,
and Section 8(a)(2) and (1) of Act by said acts and
by permitting SLU and Local 254 to solicit membership
among the Company's employees on the Company's
time and premises, and by recognizing SLU and Local
254 The answers deny the allegations of unfair labor
practice
The case was tried before me at Indiana, Pennsylvania,
on October 8, 28, and 29, 1969 Pursuant to leave
granted to all parties, briefs have been filed by the
General Counsel and the Company, the time to do
so having been extended
Upon the entire record' in the case and from my
observation of the witnesses I make the following
FINDINGS OF FACT (WITH REASONS THEREFOR) AND
CONCLUSIONS OF LAW
I THE COMPANY'S BUSINESS AND THE LABOR
ORGANIZATIONS INVOLVED
The facts concerning the Company 's status as a part
nership , the nature and the extent of its business in
the mining and nonretail sale of coal , and its engagement
in commerce within the meaning of the Act are admitted,
I find and conclude accordingly I also find and conclude
that , as admitted , UMW, SLU, and Local 254 are sever-
ally labor organizations within the meaning of the Act
' The transcript is hereby corrected by changing Cot wherever
it appears to Coy and inserting the words or Donald Leasure
on p 156 1 14 after Robert Leasure
182 NLRB No 149
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE UNFAIR LABOR PRACTICES
While other mines were being operated in the area,
the Company broke ground in February 1968, when
it hired its first employees , and prepared to mine coal.
The first small amount of coal was hauled out of the
mine in the beginning of March . Three men were hired
in February:, Heiman on February 5, Lauer on February
,19, and Steve Plavi on February 27. A fourth, Deabender-
fer, was hired on March 6, and two others , Coy and
,Reeger, were hired on March 11 . There is no issue
with respect to the employment of Lauer , Plavi, or
Deabenderfer . The General Counsel denies that Heiman
was ever an employee of the Company and further
claims that Heiman , Coy, and Reeger were listed as
company employees merely to pad the payroll.
On March 11, representatives of Local 254 submitted
to the Company membership cards signed by the six
aforementioned individuals , and demanded recognition.
There is no evidence of unlawful assistance to Local
254 in obtaining signed cards from any of the six employ-
ees. Indeed it does not appear that the Company knew
of the signings until the cards were exhibited to it
with the request for recognition . There is no showing
of permission to solicit, and certainly none of unlawful
permission . As for the recognition being "precipitate,"
any implication of illegal haste is unwarranted. After
a brief discussion between the Company and Local
254, and a meeting between the latter and the employees
were additional demands were made , Company and
Union (Local • 254 alone ) agreed on the following day
on the terms of a contract.2
Certainly speed and willingness to recognize are not
themselves unlawful . Although Donald Leasure testified
that he knew that UMW was trying to organize these
mines, this is admittedly , not a Midwest Piping case.3
I find and conclude that there was no interference or
unlawful assistance in connection with the cards or
their solicitation .4 If there was violation of Section 8(a)(1)
and (2), it was connected with the issue of representative
complement , to which we now turn.
About5 the time of the signing of the contract (exact
dates were generally not given) what had been a hand
digging operation was changed as a neighboring partner-
ship , Copper Valley, Coal Company, made one of its
machines available to Leasure . The Copper Valley part-
ners helped set the machine up; their own operation
was temporarily shut down and, because they wanted
to retain their employees during this slack period, they
made five of them available for work on the Leasure
mine. During the remainder of March and through April
1968, five (or at least 5 ) Copper Valley employees worked
2 Although it recited March 11, 1968, as the date of execution,
the contract was apparently signed on March 12
3 Midwest Piping & Supply Co , Inc., 63 NLRB 1060
In this respect the case differs materially from Mears Coal Company,
175 NLRB No 136 , cited by the General Counsel
i Not only is there no suggestion that the,five Copper Valley employees
now mentioned were on loan to Leasure from Copper Valley when
recognition was accorded , but the production figures, noted below,
indicate that the operation was in the beginning stage on March I I
in one crew mining coal for Leasure ; they remained
on the Copper Valley payroll and the latter billed Leasure
for their services . With installation of the Copper Valley-,
machine, production increased , as we shall soon see;
and we shall consider these facts as we determine the-
status of Heiman , Coy, and Reeger , and decide ultimately
the question whether . on March 11 the Company had
a representative complement of employees.
Donald Leasure testified that Heiman is his uncle.
The extent of Helman ' s employment was not definitively
set forth-perhaps because it lacked definition . Heiman
operated an apple orchard , which quite evidently did
not require his attention during the winter and early
spring . He had no specific classification , the nearest
in the March 11 contract being that of Out Side Labor.
He helped set up the shanty and performed various
tasks as needed , and last worked for Leasure in the
early part of April 1968, appearing for the last time
on the biweekly payroll for April 15. Donald Leasure
conceded that Heiman may have been driving his own
truck during the time when it is claimed that he was
employed by Leasure. Helman's payroll record does
not show any deductions for social security or union
dues. It should also be noted that his rate throughout
his employment was $2 . 50 per hour ; it was never
increased although the contract rate for Out Side Labor
is $3.375 per hour. There is no $2.50 rate under the
contract.
Aside from his relationship to the Leasure brothers,''
the nature of Helman ' s prior activities and interests,
of his short term services for Leasure , and of his work
after and since April 1968 indicates that his employment
by or services to the Company were intended and recog-
nized as temporary and outside the unit which the con-
tract covered . Whether there was a mutual reflection
between Helman ' s sporadic services and his rate of
pay or whether the 'Company merely and admittedly
took advantage of the familial relationship , Heiman did
not make common cause with Leasure ' s employees.
He was not recognized as being in the unit, and he
is not to be included in the coverage of the contract.
We come now to the issue whether Coy and Reeger
were employees of the Company or whether they were
put on the payroll, as the General Counsel claims,
merely to pad it . The fact that during the early period
of operation five other Copper Valley Coal Company
employees were temporarily assigned to work the Lea-
sure mine while Copper Valley prepared for further
operations of its own, the five being paid by Copper
Valley which was reimbursed by Leasure Coal as we
have noted , itself suggests further that the transfer of
Coy and Reeger to the Leasure payroll, where they
continued as employees for more than a year , eventually
leaving for employment elsewhere without return to
Copper Valley Coal, was a bona fide change of employ-
ment.
Although both thus remained on the 'Leasure payroll
for a long time, never returning to Copper Valley and
thereafter leaving for employment elsewhere , it does
M1 Cf Cherrin Bros Co , 147 NLRB 527, 529
LEASURE COAL COMPANY
not appear that Coy, or Reeger, ever made inquiry
concerning an alleged temporary transfer to Leasure.
I do not credit Coy's testimony that one of the Copper
Valley partners asked him whether he wanted, to' go
to Leasure to help weld and that, when the machine
was brought to the Leasure operation, told him that
he would be transferred to Leasure temporarily. There
is no suggestion of question or discussion at any time,
as, noted, the employment continued. Donald Leasure
testified that he did not recall who told Coy, but that
the latter knew that he was working for Leasure on
and after March 11. Testifying that he had the same
conversation with Reeger as with Coy, Donald Leasure
was more positive and definite as he told us that he
asked Reeger to work for him and that Reeger agreed.
Transfer of Coy and Reeger to Leasure was the quid
pro quo for Leasure's employment of the five men
on Copper Valley's payroll while the latter company
was setting up its work.
Consistent with this credibility finding is the fact
that it does not appear that Coy or Reeger was subse-
quently told or that either of them asked why they
were temporarily transferred to Leasure while five other
Copper Valley employees who were assigned to work
for the latter remained on the Copper Valley payroll;
or why they were not thereafter returned to Copper
Valley. Certainly Coy and Reeger could have been trans-
ferred to Leasure's payroll even on temporary assign-
ment . But the practice with respect to assignment of
the five who were temporarily assigned to the Leasure
operation while they remained on Copper Valley's pay-
roll speaks more clearly than does Coy's testimony,
and indicates that Coy and Reeger were and were to
be employed by Leasure, where they remained.
The rates of pay do not favor one conclusion of
the, other. Before March 11, Leasure paid the Copper
Valley union scale rates to the men on loan to it,
including Coy, we are told, and paid its own employees
less. With the signing of the contract, all of the Leasure
employees, including Coy, received contract rates retro-
active to March 1. The General Counsel has not met
his burden of showing that Coy and Reeger were num-
bered among the Leasure employees merely to pad
the payroll or the unit covered by the contract. The
testimony before us indicates that' all of the Leasure
employees, including these two, signed SLU cards before
recognition was sought of Leasure and before the latter
had knowledge thereof. I find that on March 11, 1968,
Coy, Reeger, Steve Plavi, Lauer, and Deabenderfer,
and they alone, were employed by the Company.
Having noted the extent of employment by the Compa-
ny on March 11, we must yet decide whether this
was a sufficient and representative complement. Donald
Leasure told us that full production was reached with
a completed complement of employees within 3 or 4
months after March 11. But it was stipulated that the
Company had 3 production and maintenance employees
on its payroll during the first payroll period, which
ended February 15, 1968, 3 during the payroll period
ending February 29, 6 (this and other figures through
April 15 included Heiman, whom we have excluded)
1013
for March 15, 11 for March 30, 14 for April 15, 18
for April 30, 19 for May 15, 19 for May 31, 18 for
June 15, and 17 for June 30; and that thereafter to
an unspecified date the Company employed 17 or 18
production and maintenance men. The figures of 11
and 14 as noted do not include the 5 on loan but
on the Copper Valley payroll in March and April.
A full complement ' and reasonable expectation of
unit employees was in fact the 11 or 14 shown in
March and April, plus 5 on loan, as reflected by the
total of 17, 18, and 19 employed by the Company
immediately thereafter. Although there were fewer
employees on March 11 and at least through March
15, they covered the same categories of work except
for one later added. The Company's employees during
the early period did' not perform work within a single
job classification; indeed they had no classifications in
those early days of setting up and beginning production
before March H. Each man performed in more than
one category as needed, until production increased and
each employee had enough work in one category to
be limited to it while others performed other jobs.
If the absence of added benefits or improvements
under the contract be considered as showing less than
arm's length dealing, increases in pay and other benefits,
which need not here be detailed, would suggest actual
and bona fide representation. But this loses sight of
the question whether there was a full complement on
March 1 l-and that has been answered.
Although alleged as a basis fora finding of violation,
the absence of an uncoerced majority is not in issue,
as the General Counsel recognized at the trial, beyond
-the question of unlawful assistance. A majority of the
Company's employees on March 11 did sign valid cards.
But again that majority of five employees could not
determine representation for the full complement which,
within afew weeks was three or four times as large.
Having noted above that mere speed or precipitateness
in recognition is not violative, we can related the speed
to the time elapsed before a full complement was
employed. Since 16 (including the 5 on loan from Copper
Valley?) were on they job before the end of March,
5 employed on a preliminary operation I or 2 weeks
earlier did not constitute a representative complement.
In the absence of evidence of unlawful activity, I have
not found violative the cooperation extended in a speedy
recognition of Local 254. Nor should the mere difference
between the number of men early and later employed
be here determinative. But the brief period which elapsed
before full employment was reached, taken with that
very difference in employment indicates that no fair
opportunity was accorded the employees, or a fair com-
plement of employees, to designate a collective-bargain-
ing representative. Further, we must not overlook the
fact that the operation later in March and in April
and thereafter was not merely larger but was actually
' To exclude these from the total which constituted the full comple-
ment, whether or not they could vote in a unit election, would mean
that an employer by such arrangement could unilaterally and arbitrarily
control the size of a voting unit
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
different in kind from the preliminary setting up or
organizational work and the early hand digging.
The variance, in employment from March ' 11 to the
end of the month' and through April is substantially
reflected in production at the mine before' and on March
11, on one hand, and the production, some weeks later.
Shipment figures were detailed on the record and need
not be repeated here. Suffice it to note that before
and between March 11 and 14 average production was
100 tons per day; the first shipment, on Mar^h 15,
totaled 42 tons. Shipments on March' 21 'totaled 159
tons, and between March 22 and the. end of the month
fluctuated between 323 and 829 tons per day.
Clearly on March '11 this operation was still in the
hand picking and stockpiling preliminary stage, and the
Company lacked a representative complement of employ-
ees. Recognition and entry into a collective-bargaining
agreement at that time was unwarranted and unlawful.
I find and conclude that by such recognition and agree-
ment the Company violated Section 8(a)(1), (2), and
(3).
The finding of violation herein is not based on the
admitted association of Leasure with Mears and other
mining companies and the prior decision" that Mears
and others were guilty of violative acts. I have not
overlooked the testimony that seven or eight companies
operate in the area on land owned by the Mears Compa-
ny, that Leasure sells its coal through the Mears tipple,
and to Mears exclusively, and that. Donald Leasure
was in the other case found to be the agent for the
seven, respondents therein while Harold Leasure, 'a part-
ner herein, was a partner in one of them.. Whatever
transgressions these were found in Mears to'have com-,
mitted, it has not been shown that they here repeated
them or committed others necessarily connected' with
them. Nor, whatever their relatio'nship'in'misdeeds else-
where, and their close connection, has it eier been
claimed by the General Counsel` in this case that the
Leasure mine and Mears' workings are actually part
of the same operation."
With respect to reimbursement of dues and initiation
fees, admittedly deducted by the Company, it is clear
that the cards submitted to the Company on March
11 were readily and voluntarily signed. From the testimo-
ny that Coy and Reeger had been receiving the union
scale at Copper Valley, that there had been an SLU
contract there, and that the employees here now insisted
on union rates, it appears that some or all had been
members of SLU. There is no evidence or suggestion
that the situation was different at any later time or
with respect to any employees later hired. It does not
appear that such advantage was taken or any of the
employees, who have been covered by the contract,
so as to warrant reimbursement for dues or initiation
fees, if any.10
The General Counsel requests a notice-in "clear and
simple language" with a hairshirt admission of violation.
The Company will be directed to comply with this
Decision; it is not required to "like it." The language
in the attached notice is "simple [these employees are
not] and readily understandable.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in the case,
I recommend that the Respondents, Donald Leasure,
Jr., Robert Leasure, Harold Leasure, and Charles Banko-
sky, individually and as copartners, d/b/a Leasure Coal
Company, their agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Recognizing or contracting with Local 254 as the
representative of its employees for the purpose of dealing
with the Respondents concerning wages, rates of pay,
hours of employment, or other conditions of employ-
ment, unless and until such labor organization shall
have been certified by the Board as the exclusive repre-
sentative of its employees in an appropriate bargaining
unit.
(b) Maintaining or giving effect to the collective-bar-
gaining agreement executed with Local 254 on March
11, 1968, or to any extension, renewal, or modification
thereof, or to checkoff authorizations heretofore signed,
provided, however, that nothing herein shall require
the Respondents to vary or abandon any wage, hour,
seniority, or other substantive feature'of their relation-
ship with their employees which the Respondents have
established in the performance of such agreement.
(c) In any other manner interfering with, restraining,
or coercing their employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from Local
254 as the representative of any of their employees,
unless and until such labor organization shall have been
certified by the Board as such representative.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all other
records to facilitate the checking of the amount of
reimbursement due.
(c) Post at their mine in Indiana, Pennsylvania, copies
of the attached notice marked "Appendix."" Copies
10 N L R B v Local 60, Carpenters, 365 U S 651 Cf Intalco Alumi-
num Corporation , 169 NLRB 1034 different facts, different remedy
Mears Coal Company, 175 NLRB No 136 11 Cf Harry F Berggren & Sons , Inc , 165 NLRB 353
Cf Gyrodyne Company of America, Inc , sub nom . UAW v " In the event no exceptions are filed as provided by Sec '102 46
N.L R B , 419 F 2d 686 (C.A D C ), November 5, 1%9, remanding of the Rules and Regulations of the National Labor Relations Board,
170 NLRB No 25, where a common respondent was involved and the findings, conclusions , recommendations , and Recommended Order
the Trial Examiner exercised his discretion with respect to admissibility herein shall, as provided in Sec 102 48 of the Rules and Regulations,
and then relevance The decision in this respect in the instant case be adopted by the Board and become its findings, conclusions, and
was made at the teal order, and all objections thereto shall be deemed waived for all purposes
LEASURE COAL COMPANY
of said notice, on forms provided by the Regional
Director for Region 6, shall be posted by the Respond-
ents, after being duly signed by their representative,
immediately upon receipt thereof, and be maintained
by them for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to their
employees are customarily posted Reasonable steps
shall be taken by the Respondents to insure that said
notices are not altered, defaced, or covered by any
other material
In the event that the Board s Order is enforced by a Judgment of
a United States Court of Appeals the words in the notice reading
Posted by Order of the National Labor Relations Board shall be
changed to read Posted pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations
Board
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT recognize or contract with Local
254 as the representative of our employees unless
and until it shall have been certified by the National
Labor Relations Board as the exclusive representa-
tive of our employees in an appropriate unit
WE WILL NOT maintain or give effect to the
collective-bargaining agreement executed with
Local 254 on March 11, 1968, or to check off
authorizations heretofore signed
1015
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of the right to self-organization, to form labor
organizations to join or assist any labor organiza-
tion, to bargain collectively through representatives
of their own choosing , and to engage ii) other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or
to refrain from any or all such activities, except
to the extent that such right may be affected by
an agreement requiring membership in a labor
organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act
WE WILL withdraw and withhold all recognition
from Local 254 as the representative of any of
our employees, unless and until it shall have been
certified by the Board as such representative
Dated By
DONALD LEASURE, JR ,
ROBERT LEASURE,
HAROLD LEASURE AND
CHARLES BANKOSKY D/B/A
LEASURE COAL COMPANY
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced
by anyone
This notice must remain posted for 60 consecutive
days from the date of posting and must be altered,
defaced, or covered by any other material
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's Office,
1536 Federal Building , 1000 Liberty Avenue, Pittsburgh,
Pennsylvania 15222, Telephone 412-644-2977
i