Lewis Coal Co., Inc.

National Labor Relations Board - Board Decisions

May 18, 1954

108 N.L.R.B. 887 (N.L.R.B. 1954)

LEWIS COAL COMPANY, INC. 887
WE WILL NOT cause or attempt to cause Roadway Express, Inc ., its officers , agents,
successors , or assigns , to discriminate against its employees in violation of Section 8
(a) (3) of the Act.
WE WILL NOT in any manner restrain or coerce employees of Roadway Express, Inc.,
its successors or assigns , in the exercise of their right to self-organization , to form
labor organizations , to loin or assist any labor organization , to bargain collectively
through representatives of their own choosing , to engage in 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 agree-
ment requiring membership in a labor organization as a condition of employment as
authorized in Section 8 (a) (3 of the Act.
WE WILL make Jess E . Cawthorn and Walter C. Buxton whole for any loss of pay
suffered because of the discrimination against them.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS
OF AMERICA, LOCAL 823, AFL,
Labor Organization.
Dated ................ By..............................................................................................
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material.
LEWIS COAL COMPANY, INC. and CHARLEY MAYS, FRANK
HARRIS, AND ROY HIX, Case No. 9-CA-500. May 18, 1954
DECISION AND ORDER
On July 21, 1953, Trial Examiner Alba B. Martin issued his
Intermediate Report in the above -mentioned proceeding , finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and
desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto.
Thereafter , the Respondent filed exceptions to the Intermediate
Report and a supporting brief.
The Board has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
was committed. Except as noted below ,' the rulings are hereby
affirmed. The Board has considered the Intermediate Report,
the Respondent ' s exceptions and brief , and the entire record in
this case , and hereby adopts the findings , conclusions, and
recommendations of the Trial Examiner , with the following
modifications:'
iAs we herein adopt the Trial Examiner's finding that the Respondent discrinunatorily
discharged Charley Mays on two occasions, we find it unnecessary to pass on the propriety
of the Trial Examiner's ruling that Mays was incompetent to testify as a witness because of
a prior conviction for false swearing.
2 The Trial Examiner inadvertently stated in the hitermediate Report that Foreman White-
head testified that he had heard some talk about the union meeting on Friday mornings,
whereas the testimony refers only to holding meetings on Friday. We hereby correct this
error, which does not affect the Trial Examiner's ultunate findings or our concurrence
therein.
108 NLRB No. 125.
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. We agree with the Trial Examiner that Francis M . Burke,
an attorney at law who filed the charges upon which the com-
plaint issued , was not "fronting" for the UnitedMine Workers,
a noncomplying union, herein called UMW. Burke signed the
charges in behalf of complainants Hix, Harris , and Charley
Mays, " for themselves and all other employees ... similarly
situated ." Although Burke was introduced to the complainants
at the UMW meeting place, and although he filed charges
for other UMW members in another complaint proceeding, 3
we find that the charges were not filed as a "front" for the
UMW as contended by the Respondent.
The Board and the courts have unanimously held that
employees acting individually may assert their rights before
the Board without the restriction of compliance provisions of
the Act." Furthermore , the assertion of such rights has been
held to be unimpaired where a noncomplying union or its
attorney assisted in the preparation and filing of the charges, 5
or where the complainants who were merely members of the
union filed the charges for themselves and other dischargees
similarly situated .' Accordingly , even assuming that the UMW
made the attorney available to these complainants for the pur-
pose of filing the charges , we conclude and find that, as the
charges were in substance the assertion of individual rights,
the complainants did not disqualify themselves by accepting
such assistance.'
2. We also find that, by threats, interrogation , surveillance,
and other conduct detailed in the Intermediate Report, the
Respondent violated Section 8 ( a) (1) of the Act. We therefore
find it unnecessary to rely upon the finding , made by the Trial
Examiner, that the acts of interrogation , standing alone, are
violative of the Act.8 Neither do we adopt all the Trial
Examiner's reasons for finding that the Respondent violated
3 New Hyden Coal Co., 108 NLRB No. 163.
4 Augusta Chemical Co., 83 NLRB 53, enfd. 187 F 2d 63 (C. A. 5); Olin Industries, Inc.,
86 NLRB 203, enfd, 191 F. 2d 613 (C A 5); N L R B. v. Clausen, d/b/a Luzerne Hide &
Tallow Co., 188 F 2d 439 (C. A. 3). cert. denied 342 U. S. 868, W. T Rawleigh Co. v.
N L R. B , 190 F. 2d 832 (C A. 7); N. L R. B. v. Alside, Inc., 192 F. 2d 678 (C. A. 6);
N. L R. B v, Globe Wireless, Ltd., 193 F. 2d 748 (C A. 9); Southern Furniture Mfg. Co. v.
N L. R B , 194 F 2d 59 (C. A 5), cert. denied 343 U. S. 964; N. L R. B. v. Happ Bros.
Co., Inc., 196 F. 2d 195 (C A. 5); N. L. R. B. v, Coal Creek Coal Co., 204 F. 2d 579 (C A
10); N. L. R. B v. L Ronney & Sons Furniture Mfg. Co., 206 F. 2d 730 (C A. 9); cert;
denied 346 U S. 937; and N. L R. B. v, Pecheur Lozenge Co., 209 F 2d 393 (C A. 2).
5 W T. Rawleigh Co. v. N. L. R B., supra; and N L R B. v. L. Ronney & Sons Furniture
Mfg. Co., supra.
6Southern Furniture Mfg. Co. v. N L R B., supra. Cf. N. L. R B. v. Alside, Inc., supra;
and N L R. B v. Happ Bros. Co. Inc., supra, in each of which the charge was filed by the
union's president and chief protagonist, for himself and others, and fronting was found.
7 As the wording of the first amended charge is substantially the same as the wording of
the original charge, and as the Respondent's allegation of variance is nowhere clarified, we
find no merit in Respondent's motion to dismiss the complaint on this ground. The motion is
accordingly denied.
8Member Murdock sees no reason not to rely on the Trial Examiner's findings with respect
to interrogation as they appear entirely correct.
LEWIS COAL COMPANY, INC. 889
Section 8 (a) (1) of the Act by following employee Hix's car
from the union hall. We base our concurrence solely on the
Trial Examiner's finding that Vice-President Phillips' purpose
in following the car was to discover who were riding with Hix
and who else among his employees had anything to do with the
Union.
3. We further agree with the findings of the Trial Examiner
that the Respondent discharged employees Roy Hix, Frank
Harris, and Oakley Mays, and twice discharged Charley Mays,
in violation of Section 8 (a) (3) and (1) of the Act.'
The Remedy
The Trial Examiner found that the Respondent' s answer,
which contained a formal tender of employment to each of the
discharged employees other than Roy Hix "upon the same basis
as all prospective employees," was sufficient to toll the running
of back pay of Charley Mays, Oakley Mays, and Frank Harris
from the date of filing the answer. We disagree. The mere
pleading of such an offer, in its answer, is insufficient to
remedy the discrimination to the extent of exonerating the
Respondent from further liability for back pay.t° Moreover,
the formal tender of employment, which merely offers new
employment, is not an adequate offer of reinstatement." We
shall therefore order the Respondent to make Charley Mays,
Oakley Mays, and Frank Harris, as well as Roy Hix, whole for
any loss of pay each has suffered from the date of his discharge
to the date he is offered reinstatement.
As the United Mine Workers is not in compliance with the
filing requirements of Section 9 of the Act, we shall delete its
name from the recommended order.'
ORDER
Upon the entire record in the case, and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that the Respondent, Lewis Coal
Company, Inc., Manchester, Kentucky, its officers, agents,
successors , and assigns , shall:
9 The Respondent contends that the testimony (1) of employee Hix that on Saturday, September
15, he delivered to employees I laris and Charley Mays the message of Foreman Whitehead
that I fix and the others had been discharged, and (2) of Harris that he was so advised, are
"pure hearsay." As the testimony was introduced to prove merely that the statement was
made to explain why Ilarris did not report to work on Monday, September 17, and not to prove
the motive of the discharge, the testimony was not hearsay. N. L. R. B v. C W. Thomas
Drayage and Rigging Co., Inc., 206 F. 2d 857 (C A. 9); 5 Wigmore on Evidence, 3rd Ed.,
§ 1361.
ioRoadway Express, Inc., 108 NLRB 874 (footnote 14).
"Clearfield Cheese Company, Inc., 106 NLRB 417
12 The Sun Company of San Bernardino, California, 103 NLRB 359 at 361 (footnote 4); and
W T. Rawleigh Co. v, N. L. R B., supra.
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Discouraging membership in any labor organization of its
employees by discriminating in regard to their hire or tenure of
employment , or any term or condition of their employment.
(b) Threatening to discharge employees for joining any labor
organization or going to any union hall. -
(c) Interrogating employees concerning their attendance at
union meetings.
( d) Engaging in surveillance of union meetings.
(e) Following employees as they go to and from the union
hall of any union.
(f) Informing employees that it has discharged other em-
ployees for visiting the union hall too much.
(g) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization , to form labor organizations , to join or assist any
labor organization , to bargain collectively through representa-
tives of their own choosing , and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid and
protection , or to refrain from any or all of such activities, ex-
cept to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3) of
the Act.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Offer to Roy Hix, Frank Harris , Charley Mays, and Oakley
Mays immediate and full reinstatement to their former or sub-
stantially equivalent positions , without prejudice to their
seniority or other rights and privileges, and make each of them
whole, in the manner s et forth in the s ection of the Intermediate
Report entitled " The Remedy ," as modified in the section of
this Decision entitled "The Remedy," for any loss of pay
suffered by reason of the Respondent ' s discrimination against
him.
(b) Post at its plant office at Frog Level , Manchester,
Kentucky , and in its No. 2 mine , copies of the notice attached
hereto as an Appendix . " Copies of such notice , to be furnished
by the Regional Director for the Ninth Region, shall , after being
signed by the Respondent ' s representative , be posted by the
Respondent immediately upon receipt thereof and maintained by
it for sixty ( 60) consecutive days thereafter in conspicuous
places, including places where notices to employees are
customarily posted . Reasonable steps shall be taken by the
Respondent to insure that the notices are not altered , defaced,
or covered by other notices.
13In the event that this order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
LEWIS COAL COMPANY, INC. 891
(c) Notify the Re *o al Director for the Ninth Region, in
writing, within ten (10 ) days from the date of this Order, what
steps the Respondent has taken to comply, herewith.
Members Rodgers and Beeson took no part in the considera-
tion of the above Decision and Order.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, we hereby notify our employees
that:
WE WILL NOT discourage membership in any labor
organization of our employees by discriminating in regard
to their hire or tenure of employment , or any term or
condition of employment.
WE WILL NOT threaten to discharge our employees for
joining any labor organization or going to any union hall.
WE WILL NOT ask our employees whether they have
attended union meetings.
WE WILL NOT watch the union hall of any union to see
who goes into it and out of it.
WE WILL NOT follow our employees as they go to and
from the union hall of any union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
right to self-organization , to form labor organizations, to
join or assist any union , to bargain collectively through
representatives of their own choosing , and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all of such activities , except to the
extent that such right might be affected by an agreement
requiring membership in a labor organization as a con-
dition of employment , as authorized in Section 8 (a) (3)
of the Act.
WE WILL offer to RoyHix , FrankHarris ,Charley Mays,
and Oakley Mays immediate and full reinstatement to their
former or substantially equivalent positions without pre-
judice to any seniority or other rights and privileges
previously enjoyed, and make each of them whole for any
loss of pay suffered as the result of the discrimination
against him.
All of our employees are free to become or remain members
of any labor organization . We will not discriminate in regard to
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hire or tenure of employment or any term or condition of
employment against any employee because of membership in
or activity on behalf of any such labor organization.
LEWIS COAL COMPANY, INC.,
Employer.
Dated .... ............ By....................................................
(Representative ) (Title)
This notice must remain posted for 60 days from the date
hereof, and must not be altered, defaced , or covered by any
other material.
Intermediate Report
STATEMENT OF THE CASE
Upon charges filed by an attorney on behalf of named individuals , duly served upon Respond-
ent, the General Counsel of the National Labor Relations Board, herein called the General
Counsel and the Board, by the Regional Director for the Ninth Region (Cincinnati, Ohio),
on December 2, 1952, issued his complaint against Lewis Coal Company, Inc., herein called
Respondent , alleging that Respondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7)
of the National Labor Relations Act, as amended, 61 Star. 136, herein called the Act. Copies
of the charges , complaint , and notice of hearing were duly served upon the parties.
With respect to the unfair labor practices the complaint alleged in substance that since on or
about September 1, 1951, Respondent has threatened to discharge its employees if they
joined the Union , has told them it would not employ anyone who attended meetings of the
Union, has followed them as they were going to and from meetings of the Union , and has
engaged in surveillance of meetings of the Union . The complaint alleged also that Respondent
discriminatorily discharged Roy Hix , ( the motorman ), Frank Harris ( a trackman), Oakley
Mays , and Charley Mays (coal loader ), four of its employees , on September 17, 1951, and
Charlie Mays again on November 15, 1951, because of their membership and activity in
behalf of the Union . In its answer Respondent denied the commission of any unfair labor
practices.
Two pretrial motions by Respondent were referredtothe Trial Examiner for his considera-
tion and determination at the hearing . One, relating to where the hearing should be held, was
disposed of by holding it in Manchester, Kentucky, instead of Hazard, Kentucky, where it had
been set. The other, a motion to dismiss the complaint and the first amended charge because
the first amended charge was materially at variance with the original charge and was barred
by the 6-month limitation contained in Section 10 (b) of the Act, was disposed of by denying
the motion.
Pursuant to notice a hearing was held in Manchester, Kentucky, on December 17 and 18,
1952, before Alba B. Martin, the undersigned Trial Examiner. The General Counsel and
Respondent were represented by counsel . All parties participated in the hearing and were
afforded opportunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence pertaining to the issues. No party made oral argument. Briefs were received from
the General Counsel and Respondent, which have been carefully considered.
At the hearing Respondent filed an amended answer in which it asserted that this proceeding
should be abated because all of the complaining individuals were also plaintiffs in an action
then pending in the United States District Court for the Eastern District of Kentucky, wherein
Respondent is a defendant, and wherein the plaintiffs sought, among other things, damages
and an injunction growing out of the same alleged acts and occurrences which are alleged as
the basis for this proceeding. Respondent offered no evidence in support of this motion and
did not mention it in its brief. As the proceeding before me involves alleged unfair labor
LEWIS COAL COMPANY, INC. 893
practices over which the Board has jurisdiction, and as the district court case referred to
in the amended answer, according to the language of the amended answer, did not, I do not
find that this proceeding is abated by the district court case.
In its amended answer Respondent alleged also that the charges in this proceeding "were
solicited, incited and presented through the connivance and design of" the Union, which is
not in compliance with the filing requirements of the Act.
Upon the entire record in the case and from observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Kentucky corporation, since July 1950, operates 3 coal mines in the vicinity
of Manchester and Hyden, Kentucky. During the 12-month period prior to the hearing Respond-
ent mined and sold coal of a value in excess of $ 50,000, of which it shipped more than $ 25,000
worth during the same period directly to persons, firms, and corporations outside the State
of Kentucky. Respondent conceded and it is found that Respondent is engaged in commerce
within the meaning of the Act.
Of sole concern in this proceeding is Respondent's No. 2 mine, which is located some 6
miles from Manchester, Kentucky.
II. THE ORGANIZATION INVOLVED
United Mine Workers of America is a labor organization within the meaning of Section 2 (5)
OF THE Act. It is referred to herein as the Union.
The "fronting" issue: The original charge herein was filed February 4, 1952. It stated that
"The persons filing the charges contained herein are: Charley Mays, Frank Harris, Roy
Hicks, Charles Gray for themselves and all other employees of said employer similarly
situated." The charge was filed at the Regional Office by Francis M. Burke, "Attorney for
Complainant Employees," of Pikeville, Kentucky. The first amended charge was filed
April 28, 1952. It stated that "The persons filing the charges contained herein are: Charley
Mays, Frank Harris, Roy Hix (sic) for themselves and all other employees of said Employer
similarly situated." This charge also was filed at the Regional Office by Francis M. Burke,
"Attorney for Complainant Employees."
Roy Hix (his correct name) testified that he and Charley Mays i and some others talked
among themselves "about being fired over Union activity, sympathy," and that they talked
among themselves "about seeing if we could bring suit, file suit." Burke was the first
one with whom he discussed the filing of charges, although at sometime undisclosed in
the record he discussed the matter with Sambo Hoskuis. Hoskins was a member of the local
Union Hut attended in Barbourville,z Kentucky, although at those meetings Hoskins did not
preside and had nothing to say. Hoskins was not an officer of the Barbourville local, although
he appears to have been "a little local president" somewhere else.
Hix first talked with Francis Burke about filing charges in the office of "Hoot Owl"
Taylor in Barbourville, which was in the same building as the local Union's office. Taylor
was "a notary public or clerk or something." On this occasion the local Union was holding
its meeting in "Hoot Owl's" office, and at the conclusion of the meeting Burke, who had
not attended the union meeting, appeared and talked with Hix, Charley Mays, and Frank
Harris. All others, including any officers of the local, had gone out before Burke began
talking with these men. The record does not disclose how Burke happened to be there on
that occasion, somewhat over 100 miles from his office in Pikeville, Kentucky. Hix did
not know Burke was going to be there, and he met him for the first time on that occasion.
During the discussion Burke told the men that he was not connected with either side, the
coal operators or the Union.
On cross-examination Oakley Mays, when asked with whom he discussed filing the charges,
replied, "Well, my father (Charley Mays) and Frank Harris and Roy Hix and all of them
decided to go in together and hire them a lawyer, but I never went to his office." Asked if
'Incorrectly spelled "Charlie" in the record.
2 Incorrectly spelled "Barbersville" and "Barberville" in the record.
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he was present when they decided to go together and hire a lawyer, Oakley Mays replied,
"Yes, I agreed for them that we'd all go in together."
The record sheds no further light than the above on how Francis M. Burke happened to
be the person who filed the charges in this case. The record does not disclose how he
learned of the discharges, who, if anybody, made any appointment for hum to see the dis-
chargees after the union meeting in Barbourville. There is no proof that any officer of
the local Union in Barbourville or of the International Union, or any representative of
either Union, made arrangements for Burke to meet the men. There is no proof that Burke
or any of his law partners ever did any legal or other work for United Mine Workers of
America or any of its local unions, or that he or they had any connection whatsoever with
those unions. They held no offices in any of those unions, and insofar as the record shows,
had no interest in the success or failure of any of the organizing drives of those unions.
Insofar as the record reveals, Burke attended the meeting in Barbourville with a view to
filing charges on behalf of those individuals whose cases he found to have merit. At least
some initiative towards protecting what they deemed to be their rights under the Act came
from the discharged employees. In any case Burke had a right to assist such discharged
employees to protect their rights guaranteed in Sections 7 and 8 of the Act, by filing charges
on their behalf.
Upon the basis of all the probative testimony on the so-called "fronting" issue, set forth
above, I hold that in filing the charges out of which this proceeding grew, Burke was not
"fronting" for any union. It follows that the complaint was properly issued.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
Frank Harris, one of the discharged employees, testified that 4 or 5 days or a week before
he joined the Union on September 14, 1951, Respondent's mine foreman, Alvin Whitehead,
several times told him as they were having lunch in the mine that if he went to the union hall
or joined the Union, he would have to fire him, that Tommy Roberts, Respondent's president,
"said he would have to fire me." Although Roberts denied telling anyone that Respondent
would not employ anyone who attended union meetings, and although Whitehead denied the
above statements attributed to him by Frank Harris, I do not credit these denials, in view
of the entire record of the case, Respondent's defense, and the credibility findings made
below. It is held that Whitehead made these statements to Harris substantially as testified
by Harris, that these statements were a direct threat of loss of his job if Harris joined the
Union or went to the union hall, and that in making the statements Respondent interfered
with, restrained, and coerced its employees in the rights guaranteed in Section 7 of the
Act, Respondent thereby violating Section 8 (a) (1) of the Act.
During the fall of 1951, the Barbourville localUmon of the United Mine Workers of America
regularly met at 10 o'clock Friday mornings in the union hall on North Maui Street, Barbour-
ville. Alvin Whitehead testified that he had "heard some talk of it"--that the Union was then
meeting on Friday mornings--but that "I didn't know it for sure." On the record as a whole
it is held that Whitehead did know the Union was then meeting regularly on Friday mornings.
At the end of the shift, at about 3 o'clock in the afternoon of Thursday, September 13,
1951, while telling some of the men there would be no work the next day, Friday, Alvin
Whitehead asked Oakley Mays, a credible witness, what he was going to do Friday, and
Oakley Mays replied that he was going to move from one house to another. As will be seen
below, that Friday a number of Respondent's employees, including Oakley Mays' father,
drove to Barbourville and joined the Union. On the following Monday, September 17, when
Oakley reported for work, Whitehead asked him if he had moved on Friday, and when Oakley
said that he had not, Whitehead told him that he could go home. As the record fails to dis-
close any other purpose for Whitehead's 2 inquiries as to what Oakley Mays intended to do
and did do on Friday, and as the entire record indicates a considerable interest on Respond-
ent's and Whitehead's part in attendance of its employees at union meetings, it is held that
Whitehead made these 2 inquiries for the purpose of ascertaining Oakley Mays' intentions
and activity concerning attendance at the union meeting on Friday. For such purpose these
inquiries were unlawful, in that they interfered with, restrained, and coerced employees in
the rights guaranteed in Section 7 of the Act, Respondent thereby violating Section 8 (a) (1)
of the Act.
LEWIS COAL COMPANY, INC. 895
B. Surveillance and following employees' car
On Friday morning, September 14, 1951, 6 miners, including 3 employees of Respondent,
drove the approximately 24 miles from Manchester, Kentucky, to Barbourville, Kentucky.
Respondent's 3 employees, Roy Hix, Frank Harris, and Charley Mays, joined the Union that
day at the union hall. While they were at the union hall, Hix went down on the street for a
few moments, and while standing there, saw Walter Phillips, vice president of Respondent
pass by twice, slowly, in an automobile; Phillips each time "looking right straight at" His.
About an hour later, shortly after the carload of miners left Barbourville on the return
trip to Manchester by the main route, they noticed a car behind, evidently following them.
His, who was driving and going about 35 or 40 miles per hour, slowed down to about 15 or 20
miles per hour, and the car behind did likewise. In a mile or 2 His picked up his speed to
about 35 or 40 miles- per hour, and the car behind did likewise, keeping the same distance
behind the forward car, about 50 to 75 feet. The second car followed in this fashion for
perhaps 20 miles until the second car passed the first about 2 miles short of Horse Creek
Junction, which was about 300 yards short of Respondent's office. As the second car passed,
those in the first car recognized Walter Phillips and a young driver, Bobbie Roberts. The
record does not disclose any relationship between Bobbie and Tommy and Estill Roberts.
At Horse Creek Junction the His car left the main route back to Manchester and drove up
Horse Creek about 2 miles to let out 2 passengers. When His turned at Horse Creek Junction,
the employees noticed that the Phillips car was parked there. It also turned, and followed
the His car up Horse Creek. As His stopped at Gregory Branch, where Charley Mays and
another miner got out to go to their nearby homes, Phillips passed by slowly. His then
turned around and headed back via Horse Creek Junction to his home at Frog Level, where
Respondent's office was also located. The Phillips car likewise turned around, and followed
the His car to Frog Level. His stopped in Frog Level at a grocery store, alnd the Phillips
car pulled in to Respondent's office just across the street.
The above is, in substance, the testimony of several General Counsel witnesses, who
appeared to me to be honestly reporting an episode that had really occurred. Walter Phillips,
an unconvincing witness, testified that he went to Barbourville only once with Bobbie Roberts;
he went over in the morning in Bobbie's father's new car with Bobbie driving on a business
errand; he did not then know there was a union hall in Barbourville; "if I saw Roy Hix, I don't
remember," they returned by the same route described by the General Counsel's witnesses;
and there "could have been a car in front of us, I don't know. Any time you are on the highway
you are subject to following a car." Phillips added that "I never had no idea of following
nobody, never did follow nobody." Phillips did not remember whether he and Bobbie drove
up Horse Creek: "I could have went up there riding around, but if I did, I don't remember."
Phillips did not directly deny passing Roy His twice on the street in Barbourville, but he
testified that he went directly to and from the Umberger Armature Works in Barbourville
and that traffic moves around the courthouse in Barbourville in a one-way circle. The record
does not show if the union hall is on the one-way circle.
Considering the entire record in the case, it is held, as testified by Hix, that while he stood
in front of the union hall Phillips twice passed by him, slowly, each time looking straight
at Hix. It is held that Phillips knew it was the meeting hall of United Mine Workers, the only
miners' union shown in the record to be active in the Manchester area during the period of
concern herein. It is held that Phillips went by the union hall the second time, having seen
His there the first time, for thepurposeof ascertaining who else, if any, among his employees
might be at a union meeting or at the union hall or in that vicinity. This activity for this
purpose amounted to surveillance not permitted under the Act, and was a violation of Section
8 (a) (1).
It is held further that Phillips had Bobbie Roberts (who was not called as a witness and
whose absence was not accounted for) follow Hix's car on the return trip from Barbourville,
had him leave the direct route back in order to follow the His car up Horse Creek to Gregroy
Branch (where, insofar as the record shows, Phillips had or did no business), and had him
then turn around and follow the His car back to Frog Level. As Phillips had seen Hix in front
of the union hall, it is reasonable to infer, which I do, that Phillips' purpose in following
His was to discover who was riding with Hix and who else among his employees was having
anything to do with the Union. Had this been his only purpose it is unlikely that he would
have followed the His group up Horse Creek, because before then he had had ample oppor-
tunity to identify any of his employees in the His car. His following up Horse Creek, passing
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
slowly as Charley Mays and another left the Hix car , turning around and following the
employee car back to Frog Level , can be interpreted only as intended to convey to his
employees that he knew they had had something to do with the Union in Barbourville that day,
that he knew their identity , and that he wished to make u[umstakenly clear to them that he
knew it . It is held that by following the employees ' car, as described above, Respondent,
through its vice president , interfered with, restrained , and coerced employees in the exercise
of Section 7 of the Act , thereby violating Section 8 (a) (1).
C. The discharges
According to the credited testimony of Roy His , who impressed me as a trustworthy witness,
Alvin Whitehead , the mine foreman and a supervisor within the Act, drove up to his home on
Saturday morning , September 15, 1951 (the day after His had been to Barbourville and joined
the Union), honked his horn , and when His came down to Whitehead 's car , the latter said,
"Roy, I have come up to tell you you have got no job ." When Hix asked what the matter was,
Whitehead replied , "Well, ... Tommy Roberts (president of Respondent ) told me not to
work you, Frank Harris , or Charlie Mays , or Mays' boy ... You went to Barbourville
yesterday .... Tommy said that you went to Barbourville to that Union Hall." Whitehead
added that he, Whitehead , had told Tommy Roberts that His had a mother living in Barbour-
ville and had a "right to go to" Barbourville ; to which Roberts had replied to Whitehead
that he "didn 't give a damn , he wasn 't taking no chances ." Whitehead then told His to tell the
other employees he had previously named that they had no jobs and His replied that he would.
That evening His so informed Frank Harris and Charley Mays , according to the credited
testimony of His and Harris.
On Monday morning , September 17, 1951 , at the usual time , Roy His , Charley Mays , and the
latter 's two sons, Oakley Mays and Claude Mays , were at the mine at the beginning of the
morning shift which started at 7 o'clock . Someone else was performing Hix's job of running
the motor which pulled the coal cars , and His apparently confined himself to picking up
some belongings . The record discloses no conversation between Whitehead and His that
morning.
As stated above, on Monday morning after learning that Oakley Mays had not moved on
Friday , Whitehead told him to go home. Oakley Mays did not, therefore , work that day, and
he never returned to work for Respondent after that.
Claude Mays testified on direct examination that that Monday morning , when he and his
"brothers " (sic, although his only brother working there was Oakley) went to get their
lights , Whitehead said, "You all can go back to the house." Claude inquired if that included
him, and Whitehead replied , "Just take it to yourself , whatever you want to do about it."
Asked what he did about it, Claude stated that he quit. Claude Mays testified further that he
overheard a conversation between Whitehead andClaude 's father , Charley Mays , that morning,
and that he overheard Whitehead tell Charley Mays that the latter was fired because he had
visited the union hall. On cross -examination Claude Mays added that Whitehead had said, in
firing Charley Mays , "The company won't work nobody that visits the (union) hall"; and on
cross-examination Whitehead 's statement to the two brothers was, " ... all go back home
that didn't work Friday."
Some 8 weeks later , as Claude Mays was returning to work for Respondent on about
Tuesday , November 13 , 1951 , in a conversation he had with Alvin Whitehead , according to
the credited testimony of Claude Mays , Whitehead said that he would put to work anyone
who was brought from the union hall. Claude asked if it would be all right for him to bring
his father back to work and Whitehead replied that it would . The following day Claude brought
his father along and Charley Mays worked that Wednesday and Thursday . Friday, Charley
Mays did not report for work; but Claude Mays evidently did, because on that day Whitehead
told Claude to tell his father not to come back, that he was fired because "he was a'visiting
the Union Hall too much." Thereafter , insofar as the record shows , Charley Mays did not
report to work any more . The record does not show what Charley Mays did on that particular
Friday.
Respondent 's position as to the reason or reasons for the discharge of Roy His has shifted
from time to time during this proceeding. In response to the Regional Director's request,
immediately after the filing of the original charge, for "a full and complete written account
of all the facts and circumstances as you know them surrounding the matters complained of
in this charge"--which included the discharge of Hix--Respondent 's vice president , Walter
LEWIS COAL COMPANY, INC. 897
Phillips, replied on February 25, 1952, that Hix "was fired on September 21, 1951, by our
foreman, Alvin Whitehead, because his work was unsatisfactory and he would not correct
his errors." On April 1, 1952, Respondent's president, Tommy Roberts, secretary, Estill
Roberts, and mine foreman, Alvin Whitehead, each gave an affidavit to a field examiner
which stated in substance that Hix was discharged because of absenteeism and made no
reference to the way Hix ran the motor. In its answer to the complaint, filed in December
1952, Respondent pleaded that Hix was discharged "because of his violation of mining laws,
which violation imperiled his fellow workers" and no other reason was pleaded in the
answer. At the hearing Tommy Roberts testified, inconsistently with the answer, that Hix'
violation of the mining laws was "part of the reason." Estill Roberts testified, inconsistently
with the answer, that the "real reason" Hix was discharged was absenteeism, as far as he
knew, "that and other things." On direct examination Alvin Whitehead stated that: he had
asked Hix to slow down a few times on the "mantrip"--when the motor His was operating
was pulling coal cars loaded with miners into and out of the mine at the beginning and ending
of the shift; Hix "laid off on me a few times and I tried to get him to work"; His had quit
his days' work at about 2 o'clock "a couple of times"--quitting time being 3 o'clock. White-
head was then asked why he discharged His. His reply was, "because his work wasn't
satisfactory." He added that Hix' work was not satisfactory because "he run the motor in
the mine too fast and the mantrip, one thing, and he laid off on me when he wanted to, was
another one."
On cross-examination Walter Phillips testified that when he wrote the Board's Regional
Director on February 25, 1952, he had been told by Whitehead that His had violated mining
laws and imperiled the lives of other employees, and had been told by Whitehead that "Hix
was operating the motor too reckless, running it too fast" and that Whitehead "was afraid
he would kill his-self, or kill somebody." Phillips testified that although he thought this
matter was important, he did not mention it in the letter to the Regional Director because
"I didn't think it was necessary." On cross-examination Tommy Roberts stated that in his
affidavit he did not include driving the motor carelessly, violation of mining laws, or imperil-
ing fellow workers as reasons for the discharge of His, because, "A man can't think of
everything at one time, and nobody asked me anything about that. I mean , asked no particular
questions." Then to the question, "And you just didn't think of it at that time? ", Roberts
replied, "No, sir." On cross-examination Estill Roberts stated that when he made his
affidavit he "knew all about Hix' carelessness in the operation of the motor," but didn't
mention it in his affidavit because, "I just didn't remember about all of it." On cross-
examination Alvin Whitehead, who asserted excessive absenteeism by His as the reason
for Hix' discharge, in his affidavit, said that he did not include careless handling of the
motor in the affidavit because "I might not have thought of it"--"I just never thought about
it and he just never asked me about it. I guess that's the reason."
Respondent's shifting of its position concerning the reasons for the discharge of His, as
set forth above, and its utter failure at any time prior to the filing of its answer to apprise
the Regional Director that His had been discharged for so serious an offense as violating
mining safety laws and operating a motor so recklessly as to imperil the lives of fellow
workers in the mine, casts grave doubt upon the credibility of both its defense and its
witnesses.
As to Hix's operation of the motor, the testimony of Respondent's witnesses relates to 2
principal incidents, which occurred 2 months and 1 month before Hix's discharge. It seems
probable to me that on those occasions Hix was going a little too fast and that, as testified
by Respondent's witnesses, the motor left the track. Tommy Roberts witnessed the first
incident, and promptly warned Hix that he would have to slow down or get off of the motor.
Tommy Roberts, who went to the mine2or 3 times a week, also witnessed the second incident
and again warned His. Roberts testified that he saw His operating the motor after the second
incident and that never after that did he see Hoc operating the motor in a reckless manner.
Estill Roberts, who apparently also witnessed the second incident and helped repair the track,
testified that on that occasion "I never opened my mouth to Roy"--even though Hix was pulling
a heavy load upgrade and going 'wide open.' " Estill Roberts testified further that in the coal
mining industry it is a frequent occurrence for motors to jump the tracks, and that although
speed is the most important factor, other factors may contribute. He testified further that he
actively engages in the management of the Company and that was the only time he saw
His operating the motor in what he regarded as a negligent manner. Although Whitehead
testified that Hix's operation of the motor grew progressively worse as time went on, I did
339676 0 - 55 - 58
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not, as stated below, find him to be credible witness, and this testimony is not credited.
It is found, on the basis of the above testimony and all the evidence in the case, that after
being warned the second time by Tommy Roberts, Hix improved in his handling of the motor
and did not thereafter operate it in a negligent manner.
The evidence shows, further, that the first time Respondent looked for a replacement for
Hix, the only motorman in its employ, was one day when Hix did not work, which suggests
that his ultimate replacement did not relate to the manner of his operation of the motor. It is
found that his handling of the motor was not the cause of Hix's discharge.
As to absenteeism as the reason for the discharge of Hix, under the circumstances absen-
teeism by Hix would have been a justifiable cause for his discharge if in fact that were the
reason. Hix was the only motorman in Respondent's employ at that time and his failure to
work a given day caused the mine to be closed down that day for want of a motorman to take
the miners in and out of the mine and to pull the coal cars in and out of the mine. On the
evidence in this record, however, I do not find that absenteeism was the cause of Hix's
discharge.
His worked for Respondent from January 1951, until his discharge September 15, 1951,
and during that time, insofar as the record shows, he worked every day the mine operated
except 21 days. On each occasion he let the mine foreman know that he would be absent.
Once he was ill and so informed Whitehead. Another time he left early on a mission having
to do with his paycheck and his wife. The first 2 absences occurred in July or at the very
beginning of August, some 6 weeks before his discharge and therefore of doubtful causal
relation to the discharge. The last absence occurred on the day before his discharge, Friday,
September 14, 1951, the day Hix went to Barbourville and was seen in front of the union hall
and coming home by Respondent's vice president. The afternoon before, Thursday, at the end
of the shift, according to Hix's credited testimony, Whitehead told His that the mine would
not operate the next day and asked His if he would work "pulling steel." The latter operation
consisted of removing rails from used-up or abandoned mine entries. Hix asked Whitehead
who was going to help, and when Hix heard that the tipple boy was going to, Hix begged off
on the ground that he did not want to pull steel with an inexperienced miner, which, to Hix's
knowledge, the tipple boy (who worked most of the time on the outside of the mine) was.
Hix testified that he and some other men had worked in that entry before pulling steel and
had gotten sick and that since that entry was not in current usage and therefore no air was
being pumped into it, men were subject to getting sick from "black damp" and he didn't
want to be in there with an inexperienced miner who would not know how to deal with the
situation . Whitehead seemed to understand this, for, according to Hix's credited testimony,
Whitehead excused him with the remark "O. K....."
Alvin Whitehead's testimony was somewhat at variance with the testimony related above,
but in view of the inconsistencies between his testimony and his previous affidavit given the
field examiner, I am unable to credit his testimony where it is in conflict with Roy Hix's
testimony. For instance: (1) In his affidavit Whitehead said that His "was a good man until
about 1 month before I fired him," whereas Whitehead testified that all the time he worked
there His ran the motor too fast and th2t Whitehead kept telling him to take his time; (2) in
his affidavit Whitehead said that His "laid off about 24 days in the last 2 weeks he worked,"
whereas in his testimony Whitehead said that His was off 21Z days all right, but he was not
certain that it was during Hix's last 2 weeks; (3) in his affidavit Whitehead said that His
was off } day on July 30 and also was off on August 2 and 3, 1951. Whitehead at first testified
that Hix was first off in early July and then next in late July. When confronted with his
affidavit he said that when the affidavit was executed he had the Company's records in front
of him and that the dates in the affidavit must therefore be correct; (4) in testifying Whitehead
said Hix told him his last Thursday afternoon that'he would not help pull steel the following
day, that he, Whitehead, did not go to the mine on Friday, that he did "not recollect" whether
he saw Tommy Roberts on Friday. In his affidavit Whitehead had said that Friday morning
he stopped to pick up Hix as usual (Hix rode to and from work with Whitehead) and that His
said he was taking the day off, that Whitehead then went to the mine, that later he went to
the mine office and there talked with Tommy Roberts. On cross-examination Whitehead,
when cornered, frequently resorted to the phrase, "I don't recollect." In view of these
inconsistencies and his poor memory, I did not find Whitehead to be a credible witness.
Respondent's position as to the termination of Frank Harris, as stated through the witness
Whitehead, is that Harris did not show up for work on Monday, September 17, 1951, and
thereby quit his employment. Harris had worked for Respondent some 3 or 4 months when
LEWIS COAL COMPANY, INC. 899
he quit on Wednesday, September 12, in a dispute with Whitehead over some money allegedly
due him. The next evening, however, he told Whitehead he would be back to work Friday
morning and Whitehead replied, "Ain't no work until Monday"--which I interpret as permission
by Whitehead for Harris to return Monday. Whitehead's version, which is not credited, was
that Harris quit "on his own hook, told me he was going to start a little mine of his own if he
could find a pony to pull his coal with." Tommy Roberts testified that the day after he quit
Harris asked Roberts if he could buy a pony from him. In his affidavit Roberts said this
conversation occurred "a couple of days after he quit I'd say approximately September 15."
Harris testified and it is found that his discussions concerning buying a pony and starting up
a mine of his own occurred sometime after this. It is held that his failure to report to work
on Monday, September 17, 1951, was not because he had quit but because on the previous
Saturday Roy Hix had told him that Whitehead said Harris was fired. (Emphasis supplied.)
Respondent's position as to the termination of Charley Mays and Oakley Mays, stated
through witness Whitehead, is that they quit on September 17, 1951, and that Charley quit
again on about Friday, November 16, 1951. Whitehead denied telling Hix on September 15 to
tell members of the Mays family that they were discharged, but for reasons stated above
concerning the credibility of Whitehead, I do not credit this denial.
Conclusions concernm&the discharges. The record as a whole convinces me that the
General Counsel has sustained his burden of proof and has proven that Hix, Harris, and
Charley and Oakley Mays were discharged by Respondent, effective September 17, 1951, and
that Charley Mays was again discharged November 16, 1951, because of their actual and
suspected membership in and activity in the Union. That Respondent would not stand for union
participation by its employees was indicated by Whitehead's statement to Harris some days
before September 14, and by Whitehead's quoting Tommy Roberts to Hix to the effect that
Roberts "didn't give a damn, he wasn't taking no chances." On Saturday, September 15, White-
head discharged all of these men, effective Monday, September 17, the next working day,
because Respondent knew or suspected that they had been to Barbourville to the union hall
the previous day. Later rehired, Charley Mays worked 2 days and then did not report for
work the third day, Friday, which Whitehead knew was the day the Union regularly held its
meetings. Respondent had seen Charley Mays get out of Hix' car at Gregory Branch after
following Hix' car from Barbourville a few weeks before, so there is no question but that
Mays was identified with the Union in Respondent's collective mind. To be noted is the fact
that Respondent did not take the position that Charley Mays was discharged for laying off
on Friday, November 16, 1951, but rather that he quit work for Respondent that day and never
returned. I credit, however, the testimony of Claude Mays, who though unlettered, impressed
me as a fundamentally trustworthy witness, to the effect that on that day Whitehead told
Claude to tellhis father than he was fired because "he was a'visiting the Union Hall too much,"
and I find that Whitehead discharged Charley Mays on that day because he thought Charley
Mays had gone to the union hall again.
It is concluded, on the basis of the entire record in the case, that Respondent disc riminatorily
discharged Roy Hix, Frank Harris, Charley Mays, and Oakley Mays on September 17, 1951,
and Charley Mays again on November 16, 1951, because of their actual or suspected mem-
bership and activity in the Union, Respondent thereby discouraging membership and activity in
the Union and thereby violating Section 8 (a) (3) and (1) of the Act.3
It is concluded further that Whitehead's telling Claude Mays that his father was discharged
for visiting the union hall too much, was in itself a violation of Section 8 (a) (1) of the Act.
3At the hearing I granted Respondent's motion to prohibit Charley Mays from testifying in
the proceeding because a Kentucky statute barred him from testifying because he had pre-
viously been convicted of false swearing. This may have been an erroneous ruling. See Borden
Mills, Inc., 13 NLRB 459, footnote 5; Firemans Mutual Insurance Company v. Aponaug
Manufacturing Company, 149 F. 2d 359; Brown v. United States, 233 Fed. 353; Samuels v.
Commonwealth, 66 S. E. 222, 110 Va. 901. But contra see Moore's Federal Practice, Second
Edition. Vol. 5, page 1330, Section 43.06, and Lake Shore Nat. Bank v. Ballanca Aircraft
Corp. 83 Fed. Supp. 795. Cf. case note 84 Pennsylvania Law Review 213, 218 (1935). The
General Counsel has not thus far pointed out any applicable and pertinent Federal rule or
statute expressly admitting the evidence of one convicted of perjury under a State statute.
In any case, in view of the ultimate conclusions reached above concerning the two discharges
of Charley Mays, I do not at this time reverse my previous ruling and reopen the hearing to
take the testimony of Charley Mays.
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent described in section III, above , occurring in connection
with the Respondent 's operations described in section I, above , have a close , intimate, and
substantial relation to trade, traffic , and commerce among the several States , and tend to
lead to labor disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices , I shall recom-
mend that it cease and desist therefrom and take certain affirmative action in order to
effectuate the policies of the Act.
Respondent having discriminatorily discharged Roy His , Frank Harris , Charley Mays and
Oakley Mays on September 17, 1951 , and Charley Mays again on November 16, 1951, it is
recommended that Respondent offer to each of them immediate and full reinstatement to their
former or substantially equivalent positions4 without prejudice to their seniority or other
rights and privileges and make them whole for any loss of pay suffered by them as a result
of the discrimination by payment to them of a sum of money equal to the amount they would
have earned from the date of their discharge to December 8, 1952 , the date of the filing of
the answer herein in the case ofHarris and the two Mays . 5 to the date he is offered reinstate-
ment in the case of Roy Hix, less their net earnings6 to be computed on a quarterly basis
in the manner established by the. Board in F . W. Woolworth Company, 90 NLRB 289 , 291-294.
Earnings in one particular quarter shall have no effect upon the back pay liability for any
other such period. It will also be recommended that the Respondent make available to the
Board, upon request , payroll and other records to facilitate the checking of the amount of
back pay due. 7
Upon the basis of the foregoing findings of fact , and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. Respondent has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (1) and (3) of the Act.
2. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 ( 6) and (7) of the Act.
[Recommendations omitted from publication. ]
4The Chase National Bank of the City of New York, San Juan , Puerto Rico , Branch, 65
NLRB 827.
5Respondent 's offer of employment to these three in its answer tolls the running of back
pay to them as of the date of its filing. The offer of employment specifically excluded Roy Hix.
6Crossett Lumber Company , 8 NLRB 440, 497-8 . In the case of Charley Mays , his net
earnings to be deducted will include what he earned working for Respondent for 2 days in
November 1951.
7 F. W. Woolworth Company , supra.
BULL INSULAR LINE , INC. ET AL. and INTERNATIONAL
LONGSHOREMEN ' S ASSOCIATION DISTRICT COUNCIL OF
THE PORTS OF PUERTO RICO ( ILA), Petitioner
PUERTO RICO MARINE CORP. ET AL. and UNION DE TRA-
BAJADORES DE ABORDO Y Muelles DE PONCE INDE-
PENDIENTE, Petitioner
108 NLRB No. 126.