Lloyd Wood Coal Co., Inc.

National Labor Relations Board - Board Decisions

Jun 16, 1977

230 N.L.R.B. 234 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lloyd Wood Coal Co., Inc. and United Mine Workers
of America. Cases 10-CA-12052, 10-CA-12071,
10-CA-12081, 10-CA-12091, and 10-CA-12149
June 16, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On February 8, 1977, Administrative Law Judge
Robert E. Mullin issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,l and
conclusions 2 of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Lloyd Wood Coal Co., Inc., Tuscaloosa,
Alabama, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified: 3
1. Insert the following as paragraph l(g) and
reletter former paragraph l(g) as 1(h):
"(g) Discouraging membership in United Mine
Workers of America, or any other union, by laying
off, discharging, or otherwise discriminating against
employees because of their union or concerted
activities."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 The Respondent's motion to reopen the record is hereby denied
inasmuch as it fails to state a sufficient ground for granting such a motion.
Our ruling herein does not foreclose the Respondent's raising this matter in
the compliance stage of the proceeding.
a Although the Administrative Law Judge included this paragraph in the
notice, he inadvertently omitted it from his recommended Order.
230 NLRB No. 30
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request, bargain collectively
with United Mine Workers of America, as the
exclusive representative of all employees in the
appropriate unit for the purpose of collective
bargaining with respect to rates of pay, wages,
hours of employment, and other terms and
conditions of employment and, if an understand-
ing is reached, embody such understanding in a
signed agreement. The appropriate unit is:
All production and maintenance employees,
including all truckdrivers, but excluding
office clericals, professional employees,
guards and supervisors as defined in the Act.
WE WILL NOT interrogate any employee con-
cerning that individual's union activity in a
manner constituting a violation of Section 8(a)(1)
of the Act.
WE WILL NOT give our employees the impres-
sion that we are engaging in surveillance of their
union activities.
WE WILL NOT threaten our employees with any
form of reprisal because of their membership in,
sympathy for, support of, or activity on behalf of
any labor organization.
WE WILL NOT threaten our employees with the
closing of our business if a majority become
members of, or assist, a labor organization.
WE WILL NOT discourage membership in
United Mine Workers of America, or any other
union, by laying off, discharging, or otherwise
discriminating against our employees because of
their union or concerted activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights to self-organization, to
form labor organizations, to join or assist the
aforesaid Union, or any other labor organization
to bargain collectively with representatives of
their own free choice, and engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or
to refrain from any or all such activities.
WE WILL offer the following named employees
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to
their seniority or other rights and privileges, and
234
LLOYD WOOD COAL CO., INC.
make them whole for any losses suffered because
of our discrimination against them:
Stanley Tawbush
Neil McCay
Johnny Alexander
Joe Branch
Olin Duncan
Don L. Edwards
William Estes
Leonard T. Fowler
Charles Harris
Willie James Harris
Steve Hughes
Albert Martin
Charles Martin
Leslie Martin
Will Montgomery
Joe Overton
Thomas Peeples
Robert Richardson
Ray Sullivan
Alfred Thomas
Ed Ware
LLOYD WOOD COAL CO.,
INC.
DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Administrative Law Judge: This
case was heard on October 18 and 19, 1976, in Tuscaloosa,
Alabama, pursuant to charges duly filed and served,' a
complaint issued on August 11, 1976, and a complaint,
notice of hearing, and order consolidating cases issued on
October 5, 1976. The complaints present questions as to
whether the Respondent violated Section 8(a)(l), (3), and
(5) of the National Labor Relations Act, as amended. In its
answers, duly filed, the Respondent conceded certain facts
with respect to its business operations, but it denied all
allegations that it had committed any unfair labor
practices.
At the hearing, all parties were represented by counsel.
All were given full opportunity to examine and cross-
examine witnesses, and to file briefs. The parties waived
oral argument. After the hearing, both the General Counsel
and the Respondent submitted briefs. 2 Upon the entire
record in the case, including the briefs of counsel, and from
my observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent was incorporated in 1974 as an
Alabama corporation and since then, with the exception of
a period during the summer of 1976, it has been engaged,
almost continuously, in strip mining on various leases in
I The charge in Case 10-CA-12052 was filed on June 14, 1976, and an
amended charge on July 21. An amended charge in the latter case was filed
on July 21. The charge in Case 10-CA-12071 was filed on June 22, in Case
10-CA-12081 on June 25, and in Case 10-CA 12091 on July I. The charge
in Case 10-CA-12149 was filed on July 27. An amended charge in the last
numbered case was filed on September 20 and a second amended charge
was filed on September 28, 1976.
2 In a motion received on November 26, 1976, the General Counsel
recited that, subsequent to the close of the hearing, the official reporter was
unable to locate G.C. Exh. 4, that this was an exhibit which originally had
been received by stipulation of the parties, that a copy of the original exhibit
was attached to the motion, and that to replace the missing exhibit the
General Counsel prayed that the copy attached to the motion be made a
the area around Tuscaloosa, Alabama, in which city it has
its office and headquarters. During the calendar year prior
to issuance of the complaints, a representative period, the
Respondent sold coal valued in excess of $50,000 directly
to Alabama Power Company, a public utility which has an
annual gross volume of business of at least $250,000 and
which latter company annually purchases and receives
goods valued in excess of $50,000 directly from suppliers
located outside the State of Alabama. On the foregoing
facts, it is now found that Lloyd Wood Coal Co., Inc., is
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The United Mine Workers, herein Union, or UMW, is a
labor organization within the meaning of the Act.
HI. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
Lloyd Wood, president and principal stockholder in the
Respondent corporation,3 herein sometimes referred to as
the Coal Company, is a man of substantial business
interests. In addition to his position with Respondent, he is
also president of the Lloyd Wood Construction Company.
Both companies share the same office and, occasionally,
there is some transfer of employees from one entity to the
other. Wood also operates a trailer park on the outskirts of
Tuscaloosa.
Wood began strip mining operations in January 1975 on
what was known as the Samantha tract. In May of that
year, mining was discontinued on that land and the
equipment was moved to what was known as the Cassidy
property. This was a large area of some 7,800 acres (also
known in the record as the Seminole mine) where the
Respondent continued mining until sometime in the
summer of 1976. During the latter period, operations were
terminated at that location, under circumstances that are in
dispute and an issue in this case. In September 1976, 4
mining was resumed, but at a new location known as the
Aland property.
Wood was in active day-to-day management of the
Respondent's operations. There were two shift foremen,
Wallace McCay, foreman of the first or day shift, and T. R.
McCrosky, 5 foreman of the second shift.6 In addition,
President Wood was assisted by Don Murphy, a nephew,
who was his senior foreman, or superintendent.s
During May, the UMW began an organizational cam-
paign among the Respondent's production and mainte-
nance workers who, at that time, were not members of any
part of the exhibit file. No party having voiced any objection to this motion
and it appearing to have merit, it is now granted and the duplicate copy of
Exh. 4 attached thereto is made a part of the record herein.
3 The original stockholders were Wood, his wife, and a son-in-law. Wood
subsequently acquired the stock held by his son-in-law.
4 All dates hereinafter are for the year 1976 unless otherwise specified.
I McCrosky's name is misspelled throughout the transcript as "McClo-
sky."
6 Both McCay and McCrosky testified that they had authority to hire
and fire and exercise the other indicia of supervision.
I Wood described Murphy as a foreman, but McCrosky credibly testified
that Murphy was the superintendent from whom he himself took orders.
235
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union. The Respondent then had approximately 30
employees.
On June 7, the Respondent discharged employee Stanley
Tawbush. His termination is an issue in this case. On June
9, the Union requested recognition as the majority
representative of the Respondent's employees. The parties
subsequently entered into a consent election agreement.
This was approved by the Regional Director on July 9.8
Lloyd Wood Coal Company, Inc., Case 10-RC-10744. An
election was scheduled for July 29, but before that date the
Regional Director postponed it indefinitely.
During the month of June, all, or almost all, of the
Respondent's employees were laid off. According to
President Wood, this was because the Respondent was
then engaged in the process of selling its mining operation.
According to Wood, a sale was never finalized because the
purported purchaser failed to exercise an option to buy
and, as a result, in August and September, the Coal
Company resumed mining operations and reemployed
most of those whom it had laid off in June. The General
Counsel contends that, in fact, the Respondent never
intended to sell out and that the purported sale was no
more than an elaborate stratagem whereby the Employer
sought to circumvent the unionization of its employees.
B. The Alleged Violations of Section 8(a)(1);
Findings and Conclusions With Respect Thereto
The Union began its campaign in mid-May with a
meeting at Shoney's, a local restaurant. In attendance were
five or six employees and two union representatives,
Robert Webb and Gerald M. McCoy. Among the employ-
ees present were Stanley Tawbush and Neil McCay. All of
the employees received authorization cards to distribute
among their colleagues. On May 30, another meeting was
held at the same location. On this occasion, Organizers
Webb and McCoy met with a substantial number of the
Respondent's employees and explained to them the
significance of signing the authorization cards. According
to several of the employees, the group was told that the
cards authorized the UMW to represent them and if a
majority signed the cards the Union would request the
Company to recognize it as their bargaining agent.
The General Counsel alleges that, shortly after the
organizational campaign began, several of the Respon-
dent's supervisors engaged in various acts of interference,
restraint, and coercion. These allegations are denied in
their entirety by the Respondent. The evidence as to these
issues is set forth below.
Employee William Estes testified that, on a day during
the latter part of May, Foreman McCrosky had three
different conversations with him about the Union. Accord-
ing to Estes, in the first conversation McCrosky asked him
"did I really want the Union in" and, after he gave the
foreman a noncommittal response, McCrosky suggested
that Estes talk with his coworkers and endeavor to get
8 At that time the parties agreed upon the following as an appropriate
bargaining unit: All production and maintenance employees employed by
the Employer at its Tuscaloosa, Alabama, strip mine, including all
truckdrivers, but excluding all office clericals, professional employees,
guards, and supervisors as defined in the Act. It is now found that the
foregoing unit is appropriate for the purpose of collective bargaining within
the meaning of Sec. 9(b) of the Act.
them to call on President Wood to see what he would do
"to keep the union out." Estes testified that McCrosky
concluded this conversation with the comment that "if the
Union came in that we would lose our jobs." According to
Estes, later that day McCrosky questioned him as to
whether he had discussed with the other employees his
proposal that they talk with Wood about methods of
combating the union campaign. Estes testified that when
he indicated that his efforts to carry out McCrosky's
proposal had been fruitless because the men did not have
the courage to bring their complaints to Wood, McCrosky
then told him, "[W]ell, [it's] none of my business, I just
hate to see you all lose your jobs." According to Estes, later
during the shift and near quitting time, McCrosky showed
him a yellow pad that had two lists of the employees which
he described to Estes as being a tabulation of the work
force on the basis of whether each individual was for or
against the Union. Estes testified that McCrosky told him
that, from a perusal of this list which he had compiled, he
believed that "the Union would not win even if it had an
election." When on the stand, McCrosky testified that he
could not remember having told Estes about keeping a list
of employee preferences as to the Union, but he acknowl-
edged having suggested to Estes that the employees
establish a committee to discuss any grievances they had
with Wood in order to obviate the need for a union.
McCrosky conceded that during these discussions he told
Estes that he "would hate to see him lose his job" with the
advent of a union. Estes was a credible witness and, in view
of the concessions which McCrosky made in his testimony,
it is my conclusion that Estes' version of these conversa-
tions is a substantially accurate account.
Employee Don L. Edwards testified that, during the last
week in May, McCrosky asked him whether he had heard
anything about union activities among the men and that in
response to this question he acknowledged to McCrosky
that he had heard the employees discussing the subject.
According to Edwards, about the first of June McCrosky
told him that "he believed ... Mr. Wood would close the
mine before he would let it go Union." At the hearing,
McCrosky conceded that he told several of the employees
that he had heard that some of them had signed union
authorization cards, but he did not deny or contradict any
of Edward's testimony. Edwards was a credible witness
and it is now found that his conversations with McCrosky
occurred substantially as he described them.
Employee Neil McCay9 testified that, about June 5, and
while at the mine, Foreman McCrosky asked him whether
the men were signing cards. According to McCay, he
answered this question in the affirmative and told the
foreman that he was among those who had signed cards.
McCay was a credible witness and his testimony was
neither denied nor contradicted by McCrosky when the
latter was on the stand.
Neil McCay also testified that, about mid-June, Superin-
tendent Don Murphy told him and employee Leonard
9 McCay's full name was Wallace Neil McCay. He was the son of
Foreman Wallace McCay. In order to avoid confusion, he is known herein
as Neil McCay, the name by which he was generally referred to in the
record.
236
LLOYD WOOD COAL CO., INC.
Fowler that "Lloyd Wood was going to shut ... down
because the men were stabbing him in the back."
Employee Robert Richardson testified that, early in June,
Murphy questioned him as to whether he had signed an
authorization card and then asked what Richardson
thought of employee Stanley Tawbush whom Murphy
characterized as "the union leader." Richardson gave a
noncommittal answer to the last question and told Murphy
that he had not signed a card. Employee Charles Martin
testified that a short while later Murphy asked him "did I
sign one of those cards ... union cards?" According to
Martin, he answered this question in the negative even
though he had, in fact, already signed an authorization
card. Murphy was not called to testify as to any of these
alleged conversations and no explanation was offered for
his failure to appear as a witness. McCay, Richardson, and
Martin were credible witnesses. Since their testimony was
neither denied nor contradicted, it is now found to be a
substantially accurate account of the conversations which
these employees had with Murphy.
Employee Joe Branch testified that, early in June,
President Wood questioned him as to whether he knew
anything about the Union. Branch was a credible witness
and his testimony was never denied or contradicted by
Wood when the latter was on the stand.
Employee Stanley Tawbush testified that, on or about
May 24, Foreman McCrosky questioned him as to whether
he had heard anything about what he termed "the union
business" and that his superior asked whether Tawbush
knew anything about the employees' signing cards. Taw-
bush answered in the negative. About a week later
McCrosky spoke to Tawbush again. This time, according
to the employee, "He told me that instead of going to the
Union, we should have filed a grievance with Mr. Wood
. . . he also stated that Mr. Wood would shut down and
auction off his equipment, and also that if he did shut
down [and and I was laid] off, that I would have a hard
time getting a job [with] any nonunion [employer] because
I participated in union activities." Tawbush's testimony
was credible and it was neither denied nor contradicted by
McCrosky when the latter was a witness.
Wallace McCay, foreman during the period in question,
testified that, late in May, President Wood told him that he
knew about the employee organizational meeting at
Shoney's restaurant and he wanted McCay's estimate on
the number who had signed cards. According to McCay,
he told Wood that he believed that from 90 to 95 percent of
the employees had signed authorizations. McCay testified
that Wood then told him to call the men together and warn
them that the Company was not making any money and
that if they signed cards and went union he would close the
mine. According to McCay, he complied with this order
and on the following day repeated to the men what Wood
had told him. When on the witness stand, other than to
deny generally that he had given any instructions to the
foreman about the Union, Wood did not specifically deny
having had the conversation about which McCay testified.
'O McCay also testified that, dunng one of his conversations with Wood,
and when the latter questioned him as to how many of the men had signed
cards, he disclosed no names to Wood other than those of his son, Neil
McCay, and his stepson, Stanley Tawbush. This was incredible. In view of
McCay, on the other hand, was not a completely credible
witness. Shortly after this purported conversation and on
June 7, he quit his job as foreman with the Respondent's
management under circumstances that would indicate
considerable pique on his part as to his relations with
President Wood. Thus, at some point during his shift on
June 7, McCay, without any notice to any of his superiors,
walked off the job and did not return to the mine. From
their testimony it appears that neither Wood nor McCay
saw each other thereafter until they met again in the
courtroom on the first day of the hearing in the present
proceeding. From this sequence of events, it may reason-
ably be inferred that some degree of antipathy must have
colored McCay's testimony. Nevertheless, that portion
which has been outlined above was not denied or
contradicted and it appeared completely credible when
McCay was on the stand. Accordingly, it is now found that
the onetime foreman had the conversation with Wood
which he described at the hearing and that, at Wood's
direction, he cautioned the employees on his shift that if
they went union the Respondent would close the mine.'0
On the foregoing facts, it is found that the Respondent
engaged in interference, restraint, and coercion of its
employees in violation of Section 8(a)(I) of the Act by the
following actions and conduct of its supervisory staff: (1)
Foreman McCrosky's interrogation of employees William
Estes and Don L. Edwards, late in May, about their union
interests, McCrosky's comment to Estes that "if the Union
came in . . . we would lose our jobs," and McCrosky's
proposal to Estes that he urge his fellow employees to meet
with President Wood to keep the Union out of the mine. (2)
McCrosky's disclosure to Estes, in the latter part of May,
that he was keeping a tabulation of the employees as to
whether they were for or against the Union, thereby giving
the impression that the management was engaging in
surveillance of the employees' union and concerted
activities. (3) McCrosky's comment to employee Don L.
Edwards, about the first of June, that "he believed ... Mr.
Wood would close the mine before he would let it go
Union." (4) McCrosky's interrogation of employee Stanley
Tawbush, on or about May 24, and of employee Neil
McCay, on or about June 5, as to whether either of them
knew anything about the employees' signing cards. (5)
McCrosky's remarks to Tawbush late in May when he
admonished the latter that the employees should have gone
to Wood rather than the Union, as well as his further
comments that it was likely that Wood would shut down
the mine and auction off his equipment in which event
Tawbush would have difficulty getting another job with a
nonunion employer. (6) Superintendent Don Murphy's
interrogation of employees Robert Richardson and Charles
Martin as to whether they had signed authorization cards
and his statement to employees Neil McCay and Leonard
Fowler that "Lloyd Wood was going to shut . . . down
because the men were stabbing him in the back." (7)
Foreman McCay's admonition, late in May, to the
employees on his shift that the mine was not making any
the inherently coercive character of the remarks which Wood made it seems
beyond the realm of the plausible that McCay would volunteer to his
superior the names of two family members who had signed authorization
cards. At least in this last respect, McCay's testimony is not credited.
237
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
money and that, if they signed union authorization cards,
the mine would be closed. (8) President Wood's interroga-
tion of employee Joe Branch, early in June, as to whether
he knew anything about the Union.
C. The Discharge of Stanley Tawbush, Findings
and Conclusions With Respect Thereto
Tawbush started work for the Respondent in the fall of
1975. On June 8, 1976, he was notified that he had been
discharged. He was a young man who, as noted earlier, was
the stepson of Foreman Wallace McCay. While in the
Respondent's employ he worked under the supervision of
Foreman McCrosky. He testified that, during the course of
his employment, McCrosky told him that he "was doing a
good job" and that "as long as I kept it up, me and him
would get along just fine." He further testified that at no
time did he receive any warnings or reprimands. Tawbush's
testimony in this regard was credible and it was in no way
denied or contradicted by McCrosky when the latter was
on the stand.
Tawbush was one of the first employees to become active
in the organizational campaign. He attended the initial
meeting with Union Organizers Webb and McCoy, signed
a union card, and thereafter passed out authorizations
which he solicited his colleagues to sign.
Two weeks before his discharge, Foreman McCrosky
questioned Tawbush as to whether he had any knowledge
that the employees were signing union cards. Tawbush
answered in the negative. About a week later, and in
another conversation with Tawbush, McCrosky again
brought up the subject of the employees' organizational
activities. As found earlier, at this time McCrosky told
Tawbush that, instead of going to the Union, the employ-
ees should have taken their grievances to Wood; that
Wood could shut down and auction off his equipment; and
that, if this occurred and a layoff resulted, Tawbush would
have difficulty in getting work at any nonunion job
because he "had participated in union activities."
As found above, Tawbush's stepfather, Foreman Wal-
lace McCay, abruptly terminated his employment with the
Respondent on June 7. The next day, Superintendent
Murphy told Tawbush that, since his father had quit, the
Company had prepared a final check for him on the
assumption that he would want to quit also. Tawbush
protested that whatever differences his father had had with
the Respondent were not a matter of his concern and that
he himself liked his job and did not want to be terminated.
Murphy brushed aside his protests and told Tawbush to
pick up his check and leave." The employee thereupon
complied.
President Wood testified that, after Wallace McCay quit
as foreman, he, personally, ordered that Tawbush be fired.
According to Wood, he had hired Tawbush, initially, only
to accommodate McCay, that Tawbush was a totally
unsatisfactory employee and that, with the departure of his
stepfather, Wood felt no further obligation to keep the
stepson on the company payroll. He denied that Tawbush's
union activity had any relation to the cause for the
employee's termination.
Wood testified that he had heard objections to Taw-
bush's work from other employees and specifically attrib-
uted such objections to Joe Branch, Joe Overton, and Neil
Royster. However, none of the last named gave any
testimony to corroborate Wood's comments. Employee
Robert B. Matthews testified that Tawbush was an oiler on
the night shift when he was working on the day shift and
that on two or three occasions he found Tawbush asleep
when he reported for work. On the other hand, he
conceded that he had never reported such observations on
his part to any of the supervisors. Employee Norbert
Shiyou, a dragline operator on the second shift, testified
that Tawbush was his oiler for about 6 months and that he
did poor work. On the other hand, as with Matthews,
Shiyou did not testify that he ever voiced any complaints
about Tawbush to Foreman McCrosky or to anyone else in
supervision.
No immediate supervisor, such as Foreman McCrosky or
Superintendent Murphy, gave any testimony as to Taw-
bush's work. As found earlier, there was clear evidence that
both of the foregoing were well aware that Tawbush was
active in the union campaign. McCrosky had questioned
the employee about his union activities and, shortly after
the organizational campaign started, on another occasion,
late in May, he cautioned Tawbush that, in the event of a
shutdown, Tawbush would have "a hard time getting
[employment] in any nonunion job" because he "had
participated in union activities." As found earlier, a few
days later, during the course of his unlawful interrogation
of employee Robert Richardson about protected concerted
activities, Superintendent Murphy characterized Tawbush
as "the union leader" and solicited Richardson's views as
to Tawbush's activities in that capacity.
It is manifest that the Respondent was well aware of
Tawbush's union sympathies. This individual may not have
been without fault. Few employees are. On the other hand,
the lack of any supporting testimony by any of his
supervisors, at least one of whom (McCrosky) testified at
some length as to other matters, does not lend plausibility
to Wood's claim that Tawbush was "just not satisfactory
whatsoever."1 2 In view of the numerous threats to shut
down the mine if the Union achieved a majority among the
employees and the extensive pattern of unlawful interroga-
tion by the Respondent's supervision, as found above, the
vague generalizations by President Wood about Tawbush's
purported deficiencies, unsupported by convincing corrob-
oration, are unpersuasive.
The burden of proving discrimination rests always on the
General Counsel. In this instance, it is my conclusion that
the General Counsel established that Tawbush had a
satisfactory work record, that he was prominently identi-
fied with the incipient union movement by both Foreman
McCrosky and Superintendent Murphy, and that McCro-
sky warned him that in the event of a layoff Tawbush
would have difficulty finding employment elsewhere
because of this identification. Tawbush may not have been
an outstanding employee. Nevertheless, he had been at
1 June 8 was not a payday, but Tawbush's check was ready for him.
238
L2 The quotation is from Wood's testimony.
LLOYD WOOD COAL CO., INC.
work for some time without any reprimands or other
difficulties with the management. In view of the foregoing,
it is now found that his sudden and precipitate discharge,
once he became prominent as "the union leader," was
motivated in substantial measure for discriminatory rea-
sons. Consequently, his termination was unlawful and by
this action the Respondent violated Section 8(a)(3) and (I).
D. The Termination and Reinstatement of Neil
McCay; Findings and Conclusions With Respect
Thereto
On June 8 and as he was about to report for work on the
second shift, employee Neil McCay received notice from
the manager of the trailer park 13 where he lived, that Lloyd
Wood had left the message that he was not to report for
work. Notwithstanding this notice, McCay went to the
mine where Foreman McCrosky confirmed that McCay
had been terminated, along with Tawbush, his stepbrother.
McCrosky further told him that he did not know the reason
this action had been taken, but that, in any event, there was
nothing that McCay could do about it.'4
McCay thereupon contacted Webb, the union organizer,
and on June 9, the latter telephoned Wood to protest the
termination of McCay and Tawbush and of employee
Charles Averette, the latter having been laid off at
approximately the same time.' 5 Webb told Wood that a
majority of the miners had signed authorization cards, that
the Union was filing unfair labor practice charges on
behalf of the three employees, and that he was then asking
that these three individuals be reemployed. According to
Webb, Wood told him that he would reemploy McCay
immediately and that he would take back Averette when
work became available, but that he would not rehire
Tawbush. Webb testified that Wood then told him that "he
would shut his mine down before he would let anybody tell
him how to run it," and that, although the Respondent
would rehire McCay, "if [the Union] pursued the [unfair
labor practice] charges with the Board, he didn't want
McCay back either."
Wood denied that on this occasion he told Webb that he
would close the mine before the Respondent went union,
but he did not deny telling Webb that he would close the
mine before he let anybody tell him how to run it.
According to Wood, he told the union representative that
he would not rehire Tawbush and that he had no work for
Averette, but that a job for McCay had just materialized
and that the latter could return immediately. Wood further
testified that he assured Webb that he had no objections to
a union, that he himself had worked as a plumber for many
years and that he still held a withdrawal card in the
Plumbers Union. According to Wood, the next week James
Mills, an oiler on the day shift, was sick so that McCay was
reemployed to take his place, but that, at the same time,
when Averette was offered a job as driver of a dump
truck,' 6 Averette declined the offer.
13 Known as Wood Village, another one of Mr. Wood's enterprises.
"4 President Wood testified that McCay was laid off on June 4. However.
Resp. Exh. 10 lists employees McCay and Tawbush as having been laid off
on June 7. It is now found that both were terminated on the latter date and
notified of this action the following day.
In fact, McCay was reemployed on June 9, a Wednesday,
and the day after Webb's conversation with Wood.
Consequently, Wood's explanation that McCay replaced
another employee who, according to Wood's own testimo-
ny, did not get sick until the following week was not
plausible. It is now found that Webb was the more credible
witness as to the substance of the exchange with Wood and
that during their conversation the latter told Webb that the
offer to reemploy McCay was conditioned on the Union's
not filing unfair labor practice charges with the Board. The
last, of course, was an attempt to limit the right of the
Respondent's employees to have access to the Board's
processes. Such action constituted unlawful interference,
restraint, and coercion and was a violation of Section
8(a)(1 ) of the Act.
McCay had signed an authorization card at the same
time as had Tawbush, his stepbrother, and had solicited his
coworkers to sign cards and to support the UMW
organizational campaign. The Respondent was aware of
these activities for, as found earlier, on or about June 5
Foreman McCrosky questioned McCay as to whether the
employees were signing cards and, when he answered this
question in the affirmative, McCay also acknowledged that
he himself had signed an authorization. Wood denied that
McCay had been terminated and testified that McCay had
only been laid off. He further denied that McCay's union
activities played any part in the decision as to this
employee. On the basis of the findings set forth above,
however, it is my conclusion that, on June 8, McCay was
told by Foreman McCrosky that he had been terminated
and that nothing could be done about it. It is also found
that, in view of the Respondent's antipathy to the Union
and its knowledge of McCay's organizational activity and
his relationship to Tawbush, who was known to the
management as the "union leader," the Respondent
discriminatorily terminated McCay and that, after Union
Representative Webb protested, McCay was reinstated -
but only if the Union complied with Wood's unlawful
condition that the filing of unfair labor practice charges be
withheld. It is now found that, by this course of conduct as
to McCay, the Respondent violated Section 8(aX3) and (1).
E. The Closing of the Cassidy Mine; Contentions of
the Parties; Findings and Conclusions With Respect
Thereto
At the end of June, the Respondent ceased all work on
the Cassidy tract. On various dates during that month all of
the production and maintenance workers for the Company
were laid off. In September the Respondent resumed
operations at a new mining site known as the Aland
property and most of the employees who had been laid off
in June were recalled.
The Respondent asserts that in the spring of 1976 it was
in the process of selling its assets to another company
because of enormous losses which it had incurred, that a
contract of sale was entered into in May, that the layoffs in
5i Averette was not called as a witness. According to Resp. Exh. 10, he
was laid off on June 3.
is These were 50-ton dump trucks, which he had placed in service only a
short while before.
239
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
June were the result of a planned phasing out of its
operations, and that it went back to mining in September
only because the projected sale in July did not materialize.
The General Counsel contends that the Respondent
produced no convincing evidence that it ever planned to
sell out, and that the purported sale and the closing of the
Cassidy mine were part of an elaborate stratagem designed
by the Respondent to evade its responsibility under the Act
to meet and bargain with the Union.
In May 1975, the Respondent began mining operations
at the Cassidy property, a large tract encompassing 7,800
acres for which the Employer was required to make a
minimum lease or royalty payment of $100,000 a year. It
continued to work this land until late June 1976 when the
Respondent shut down the mine. From the outset of its
work on this site, many problems were encountered. The
property was very hilly and much of it consisted of hard
rock. In addition, the overburden varied from 40 to 60 feet,
substantially greater than the average encountered in the
Respondent's experience. These conditions made mining
operations difficult and expensive. During the year it was
engaged in mining the Cassidy tract, the Respondent had
other difficulties which contributed to its financial prob-
lems. The type of coal mined there was generally known as
"steam" coal and the Respondent's only purchaser for its
output was the Alabama Power Company. In the spring of
1975, the selling price of this coal dropped from $30 per ton
to $21 per ton. In the fall of 1975 the Power Company
reduced its purchases from a high of 20,000 tons a month
to a low of 5,000 tons a month. In addition, hauling
expenses increased.
Although operations on the Cassidy tract were, apparent-
ly, profitable at first, from July 1975 onward the Respon-
dent lost money. These losses mounted and by May 31,
1976, the Respondent had sustained losses in each of the
preceding 10 months. ?7
Wood testified that, because of all the foregoing
considerations, as well as his own ill health, in October
1975 he made the decision to sell the corporation and/or its
assets. The following month he secured Killian Associates,
a brokerage firm in Phoenix, Arizona, to act as sales agent
for this purpose. In January the Respondent entered into
an agreement with Killian whereby for 6 months the latter
would have the exclusive right to act as agent in negotiating
the sale of the Respondent Corporation. In March, Killian
produced, as a prospective purchaser, Carbon Energy, Inc.,
a New Mexico corporation. Wood testified that, in May,
the Respondent and Carbon Energy, Inc., entered into a
contract whereby the latter was given an option to
purchase 85 percent of the outstanding stock in Lloyd
Wood Coal and given until July 7, 1976, to exercise that
option.
According to Wood, because of his continuing losses and
because Carbon Energy had no objections, he decided in
the latter part of May to begin a complete shutdown of
operations on the Cassidy tract. According to Wood, this
I? For the 2-month period ending May 31, 1976, the business records
offered in evidence at the hearing and the credible testimony of Paul D.
Morrison, its accountant, indicate that the Respondent incurred a net loss in
excess of $200,000.
"I Wood's testimony that McCay was laid offon June 3 was contradicted
by Resp. Exh. 10. Earlier herein, on the basis of that exhibit and the
was done pursuant to a plan whereby the employees' work
was phased out over a period of I month. Wood testified
that this began with the layoff on June 3 of employees Neil
McCay 18 and Charles Averette, the night drillers, and that
their layoff was followed shortly thereafter by the layoff of
dozer and loader operators on the second shift as the work
required to move the loose overburden declined. According
to Wood, subsequent to the layoff of the night shift
employees, the Respondent thereafter laid off the day shift
in successive stages so that operations ceased on or about
June 30, when all the ready minable coal had been
removed from the Cassidy pit.
Wood testified that, sometime in June or July, he was
very hazy about the precise time, Carbon Energy decided
that it would not exercise its option to purchase and the
option was allowed to expire. Late in July, the Respon-
dent's 6-month brokerage arrangement with Killian termi-
nated with no sale having been consummated.
According to Wood, in July 1976 the Respondent
acquired a lease on the Aland tract, an 800-acre property
located near Peterson, Alabama, in East Tuscaloosa
County. Wood testified that drilling and exploration work
performed in July and August disclosed that the land
contained metallurgical coal, a more profitable type than
the steam coal on the Cassidy tract, and that the average
overburden on the Aland property was much less than that
on the former site. In August the Respondent began
transferring its equipment from the Cassidy property to the
Aland tract and thereafter it began the recall of most of the
employees laid off in June. Wood testified that these men
were put back to work in late August and throughout
September as work became available and that, in most
cases, the employees were returned to the same machines,
shifts, and work schedules as they had had previously.
Although Wood testified that he made the decision to
begin a gradual shutdown of all mining operations during
the month of June and, after Carbon Energy signed the
option to buy the Respondent, the General Counsel
introduced much evidence that would tend to negate any
such plan on the Respondent's part. Foreman Wallace
McCay testified, and his testimony in this regard was
corroborated by Wood, that in May the Respondent hired
six new employees to work as truckdrivers in the mine.
Wood himself testified that these employees were put to
work on new loaders and 50-ton dump trucks which he
acquired during that period. Moreover, when Tawbush was
discharged on June 7, unlawfully, as found earlier, the
Respondent hired Dan Lunceford to take his place.' 9
There was also credible, undenied, and uncontradicted
testimony that prior to the early part of June, when
Tawbush and Neil McCay were discharged, as found
above, the employees were averaging approximately 6 to 8
hours a week in overtime.20 If the Respondent was
seriously considering going out of business, it would seem
most unlikely that the Employer would have made the very
substantial investment in the spring of 1976 which was
testimony of Neil McCay, it was found that the latter was discharged on
June 7 and notified of his termination the next day.
19 According to the credible undenied testimony of Neil McCay.
20 This finding is based on the credited testimony of Foreman Wallace
McCay and employee Neil McCay.
240
LLOYD WOOD COAL CO., INC.
required to procure new equipment such as loaders and 50-
ton dump trucks. Nor would it have hired new employees
and have its entire work force on overtime during that
period if it was planning a shutdown.
The Respondent contends that it was only a coincidence
that the decision to close the Cassidy mine occurred
immediately after the employees began their union activi-
ties. Although it is evident that the Respondent incurred
substantial losses when engaged in operations at the
Cassidy tract, Wood's testimony about the purported sale
to Carbon Energy and the collapse of negotiations with
that company was not convincing. Thus, although the
Respondent offered a substantial amount of documenta-
tion to establish its relationship with Killian, the sales
representative, as well as copies of the initial proposals and
counterproposals made to Carbon Energy, there was no
documentation at all supplied to support Wood's testimony
as to the date that Carbon Energy decided to let the option
to purchase lapse. Wood testified only that he was advised
"somewhere around the first of July" 21 that Carbon
Energy was not going to consummate the purchase, but the
Respondent offered no correspondence or any kind of
testamentary evidence to corroborate this self-serving
statement by Wood. Since the testimony of the latter as to
his purported dealings with Carbon Energy was, in many
respects, vague and lacking in particulars, I find that
Wood's testimony as to this phase of the negotiations was
largely implausible.
Wood testified that around the middle of April he
decided to close the Cassidy mine. According to Wood,
"there wasn't no way financially to keep it open" and
"There [was] no way we could keep operating on that tract
of land [the Cassidy site]." Nevertheless, according to
Wood, the Respondent retained all its coal land leases. Nor
was there any evidence that the Company attempted to sell
any of its expensive equipment, some of which, such as the
new loaders and 50-ton dump trucks, it had acquired only
a short while before. According to Wood, the Respondent
had so much money invested in equipment "we had to do
something with it, we couldn't leave all of that stuff
parked."
Wood testified that he secured a lease on the Aland
property in July. However, no lease or other documenta-
tion was offered to support his oral asseveration. The
General Counsel, on the other hand, offered evidence
which tended to prove that Wood was well acquainted with
the Aland property long before he shut down the Cassidy
mine. Thus, employee Charles Martin testified that, as
early as April and May, the Respondent sent him to that
property to conduct prospecting surveys. When the hearing
was held in October, Martin was working for the Respon-
dent at the same place on the Aland lease that he had
performed the prospecting work the preceding spring.
From the time that the Respondent began operations in
January 1975, it had, from time to time, moved its strip
mining operations from one tract to another. Wood had
begun mining at the Samantha property. Later he moved to
the Cassidy tract and then to the Prime property. In May
1975 he returned to the Cassidy mine. In each of these
moves there was no loss of work and no one was laid off.
The shift from the Cassidy mine in June 1973 to the Aland
tract in September differed from all such previous moves in
that, for the first time, all the employees were laid off
before the transfer was made.
Notwithstanding Wood's testimony that the Respondent
began a planned phaseout of its operations at the Cassidy
tract early in June and shortly after negotiating the sale of
the business to Carbon Energy, the Respondent offered no
testimony that would establish that any of the supervisory
staff, much less the employees, had knowledge of such a
plan. Two who would certainly be presumed to have such
information as a matter of course were Foreman McCro-
sky and Superintendent Murphy. Wood testified that he
was sure that he consulted with both of them regarding the
shutdown of the mine. McCrosky, however, did not
corroborate this testimony. According to McCrosky, Wood
never told him he was going out of business. Nor was
Murphy ever called to the stand to corroborate any of
Wood's testimony. It is inconceivable that the Respondent
could have initiated a planned phasing out of its opera-
tions, as Wood testified, without any of the supervisors
being privy to such plans.
Employee Joe Branch was laid off on June 29. He
testified that at the time of his layoff Wood told him that
the Respondent was prospecting, that it would be reopen-
ing in another location, and that when this occurred
Branch would be recalled. On September II Branch was
reemployed at the Aland tract. Branch was a credible
witness and Wood never denied or contradicted his
testimony.
Late in May, when the Respondent learned of the
employees' organizational activity, the supervisory staff
and Wood engaged in unlawful interrogation of the work
force. During that same period, President Wood directed
Foreman McCay to call the men together and warn them
that the Company was losing money and that if they signed
authorization cards and went union he would close the
mine. About the same time, Foreman McCrosky told
employee Estes that "if the Union came in ... we would
lose our jobs ... " and early in June, McCrosky told
employee Edwards that "Mr. Wood would close the mine
before he would let it go union." During this same period,
McCrosky was telling the employees that they should have
formed a committee and gone to President Wood with their
complaints, rather than going to the Union, and he told
employee Tawbush that it was likely that Wood would shut
the mine and auction off the equipment. In about mid-
June, Superintendent Murphy told employees Neil McCay
and Leonard Fowler that "Lloyd Wood was going to shut
... down because the men were stabbing him in the
back." As found earlier, on or about June 8 the Respon-
dent discriminatorily terminated Stanley Tawbush and
Neil McCay. On June 9, when Union Organizer Webb
telephoned Wood to protest these discharges, and to
inform the Respondent that the Union had a majority of
the employees signed up, Wood told Webb that "he would
shut his mine down before he would let anybody tell him
how to run it," and that, although he would rehire McCay,
21 The quotation is from Wood's testimony.
241
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"if [the Union] pursued the [unfair labor practice] charges
with the Board, he didn't want McCay back either."
It is now found that the Respondent's contention that
closure of the Cassidy mine was dictated by an imminent
sale of the Respondent's assets to Carbon Energy was
unsupported by persuasive evidence. Although the Re-
spondent had convincing economic data for shutting down
work at the Cassidy site, termination of operations there
would not, by itself, necessitate the layoff of all the
production and maintenance personnel. On prior occa-
sions, when operations were terminated at one mine,
resumption of work at another site promptly followed, and
without the layoff of any employees. In the light of the
facts set out above, it is now found that, as the General
Counsel contends, with the advent of the Union Wood
adopted the technique involved in the case of runaway
shop. Thus, subsequent to the Union's request for recogni-
tion, the Respondent's president laid off all the employees
and then, after the lapse of several months, resumed work
at a new location where Wood had had a lease for some
time and where the prospecting had been started the
preceding spring. It is apparent, in view of the manifold
violations of the Act by the Respondent's management
from the outset of the organizational campaign, that the
layoffs during the month of June were motivated in large
measure by a desire on the part of the Respondent to fulfill
the threat, voiced by the supervisors, that "Mr. Wood
would close the mine before he would let it go union." For
these reasons, I conclude that the justification offered by
President Wood for the layoff of the production and
maintenance employees on the dates set forth in Table I,
infra, was a pretext and that, in fact, these layoffs resulted
from the Respondent's desire to rid itself of the Union. By
this course of conduct, the Respondent violated Section
8(a)(3) and (1) of the Act.
Table I
Dates of Layoff22
June 12
June 15
June 18
June 22
June 25
June 28
June 29
Charles Martin2 3
Charles Harris
Ed Ware
William Estes
Leonard Fowler
Johnny Alexander
Robert Richardson
Ray Sullivan
Joe Branch
22 The dates of layoff are taken from Resp. Exh. 10 which was received in
evidence. The General Counsel did not offer any evidence that was in
conflict with the dates listed thereon.
23 Not included on this list is the name of employee Charles Sprinkle
whom the General Counsel alleged was laid off discriminatorily on June 8.
Wood, on the other hand, testified that Sprinkle was fired on June 10.
Another witness for the Respondent, employee Norbert Shiyou, testified
that he rode to work with Sprinkle on the day of his discharge and that at
that time Sprinkle was intoxicated. According to Shiyou, later that day, after
he had seen Sprinkle being admonished by Foreman McCrosky, Sprinkle
told him that he was leaving immediately because McCrosky had
Olin Duncan
Don L. Edwards
Steve Hughes
Neil McCay
Will Montgomery
Joe Overton
Thomas Peebles
Willie James Harris
Albert Martin
Leslie Martin
Alfred Thomas
June 30
F. The Alleged Violation of Section 8(a)(5);
Findings and Conclusions With Respect Thereto
On June 9, Union Representative Webb had a telephone
conversation with President Wood wherein he apprised the
latter of the Union's claim to represent a majority of his
employees. Later that day the UMW sent a mailgram to
Wood requesting recognition as the exclusive bargaining
agent for all of the Respondent's employees, excluding
office clericals, professional employees, guards, and super-
visors. On June 11, the Union filed a petition for
representation and the parties subsequently entered into an
agreement for consent election. Lloyd Wood Coal Co., Inc.,
Case 10-RC-10744. As found earlier herein (fn. 8), the unit
described in the Union's initial demand for recognition
constitutes an appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act.
There is some disagreement on the complete list of those
who should be included in that unit. The critical date for
determining whether the Union had authorization cards
from a majority of employees in the unit is June 9. The
Respondent supplied a list of the employees that were on
the payroll during that period and the job classification of
each. This appears in the record as General Counsel's
Exhibit 1I. The names and classifications on this exhibit, in
relevant part, are as set forth below:
Name
Alexander, Johnny
Beard, Benny
Branch, Joe
Duncan, Olin
Edwards, Don
Estes, William
Fowler, Leonard T.
Gaddy, Joe
Gladden, Anthony
Gibson, Willie
Harris, Charles
Classification
Truck Driver
Operator
Operator
Truck Driver
Operator
Operator
Operator
Mechanic
Oiler
Laborer
Operator
terminated him. Shiyou was not a reliable witness, as will be seen later.
However, his testimony in this connection was never denied, for Sprinkle
did not appear as a witness and the General Counsel offered no explanation
for not calling him. On the basis of the foregoing findings, it will be
recommended that the allegation in the complaint as to Sprinkle be
dismissed. Another allegation related to Fred N. Moore, who was alleged to
have been discriminatorily laid off on June 8. No such name appears on any
of the employment rosters which were introduced at the hearing. According-
ly, it will be recommended that the allegation as to Fred N. Moore be
dismissed.
242
LLOYD WOOD COAL CO., INC.
Harris, Willie James
Hedgemen, Willie
Hughes, Steve
Lunceford, Dan
Martin, Albert
Martin, Charles
Martin, Leslie
Matthews, Robert
McCay, Neil
Mills, Jim
Mills, Johnny
Montgomery, Will
Overtone, Joe
Peeples, Tom
Richardson, Robert
Royster, Benny
Shiyou, Norbert
Sullivan, Ray
Thomas, Alfred 24
Ware, Ed
Wilder, Frank
Operator
Blaster
Operator
Truck Driver
Laborer
Blaster
Laborer
Mechanic
Driller
Driller
Oiler
Operator
Operator
Operator
Operator
Operator
Operator
Truckdriver
Operator
Operator
Laborer
The above list contains 32 names. The General Counsel
contends that the name of Charles Sprinkle should be
included since he was an employee at least until June 10
when he was discharged. This is correct and Sprinkle's
name should be added to the list. Another name that
should be included is that of Stanley Tawbush who, as
found earlier, was discriminatorily terminated on June 7.
But for the Respondent's discrimination, it is reasonable to
presume that Tawbush would have been working on June
9. Consequently, he must be considered a unit member for
the purposes of this case.
The General Counsel further contends that Gaddy,
Beard, Gibson, James Mills, John Mills, and Matthews
should be excluded from the unit. Only Matthews, of those
last named, testified at the hearing. On the basis of his
testimony, as well as that of other witnesses, it is clear that
Gaddy is a supervisor of the mechanics, that most of his
duties are at the Respondent's shop, rather than at the
mine, and that he works primarily for the Wood Construc-
tion Company. As a supervisor, of course, he should be
excluded from the unit.
Wallace McCay credibly testified that Benny Beard was
a backhoe operator for the Construction Company who
occasionally did work at the mine, but that most of the
time he was engaged in work for the former corporation.
Beard did not testify and there was no testimony which
contradicted that of McCay with reference to Beard's
work. On the basis of the foregoing, Beard should be
excluded from the unit. McCay further testified that Willie
Gibson worked at the mine from time to time, that he also
worked at Wood's home, that on weekends he worked at
the shop and at other times at the Wood Village Trailer
Park, another one of the Wood enterprises. As there was no
other testimony as to Gibson's duties, it appears that at
best he was no more than a part-time employee of the Coal
Company and that he should be excluded from the unit.
24 On the original list this name appears as "Ed Thomas." At the hearing,
however, President Wood testified that this was a typographical error and
that the name should read as it appears above.
James Mills, John Mills, and Robert Matthews worked
in the shop. Only Matthews testified as to his duties there.
According to Matthews, as a mechanic and while at the
shop, he and the Mills worked under the supervision of Joe
Gaddy. In this capacity he repaired equipment for both the
Construction Company and the Coal Company. From time
to time the mechanics had to repair equipment at the mine
but, other than those occasions, most of their work was
performed at the shop. According to Wood, at the end of
June all the employees of the mine were laid off. However,
neither of the Millses nor Matthews was laid off. All of
them continued working throughout the summer. Based on
the testimony of Matthews and that of employee Norbert
Shiyou, as well as the fact that no one in the shop was laid
off when the mine closed down, it appears that the work of
the mechanics is more closely allied with the Construction
Company and that the mechanics may, in fact, be
employees of that corporation, rather than the Respondent.
In any event, from the facts set out above, it appears that
they have a greater community of interest with the
employees of the Construction Company than with those
of the Respondent. Consequently, it is now found that
James Mills, John Mills, and Robert Matthews should be
excluded from the unit.
With the addition of Sprinkle and Tawbush and the
elimination of Gaddy, Beard, Gibson, James Mills, John
Mills, and Matthews, there were 28 employees in the
appropriate unit on June 9, 1976, when the UMW made its
demand for recognition.
The Authorization Cards
The General Counsel introduced authorization cards
which had been signed by 21 of the employees who were in
the unit, on the date the Union requested recognition.
Those were Joe Branch, Don Edwards, William Estes,
Leonard T. Fowler, Charles Harris, Willie J. Harris, Steve
Hughes, Albert Martin, Charles Martin, Leslie Martin,
Neil McCay, Will Montgomery, Joe Overton, Thomas
Peeples, Robert Richardson, Norbert Shiyou, Charles
Sprinkle, Ray Sullivan, Stanley Tawbush, Alfred Thomas,
and Ed Ware. There was no evidence that the union agents
misrepresented the purpose of the cards to any of the
employees. Many of the above named testified as to the
circumstances surrounding the execution of the cards.
Several of them testified, as did employee Branch, that at
the union meeting on May 30, where most of the cards
were signed, Organizer Webb read the language of the
authorization to them and told those present that the cards
had to be signed if they wanted the Union to represent
them. With the Union in possession of 21 signed authoriza-
tions on June 9 when it made its initial demand for
recognition, the UMW clearly had a majority in the unit of
28 employees.
There remain, however, the issues raised by the Respon-
dent's testimony on the part of some of the card signers
who claimed they were coerced into signing a card, or that
a card which was received had never, in fact, been signed
243
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the purported signatory. These issues will now be
considered.
Willie James Harris denied that he signed a card which
bore his signature. This was General Counsel's Exhibit
2(v). Employee Charles Martin credibly testified, however,
that Harris signed the card on June 2, in the presence of
both Martin and of his brother Albert Martin, another
employee. Although Harris denied that it was his signature
which appeared on the card, a specimen of his handwriting,
which the General Counsel secured from Harris during
that witness' cross-examination, makes it manifest that
Harris did, indeed, sign the authorization card in ques-
tion. 25 Moreover, from the testimony of Charles Martin it
is evident that the purpose of the card was not misrepre-
sented to Harris and that he signed the instrument on June
2 of his own free will.
The Respondent called several employees who testified
that Foreman Wallace McCay told them, in substance, that
Wood had sold the mine to a company that would require
that the employees join a union, or be out of a job. Thus,
according to Will Montgomery, late in May McCay made
the foregoing statement to him. Although Montgomery
averred that this caused him some concern, he conceded
that he never sought any confirmation as to whether the
alleged statement by McCay was true. lie further testified
that McCay never offered him an authorization card to
sign, and that he did not sign a card until he attended the
union meeting on May 30. Montgomery acknowledged
that at that meeting he heard Webb explain the meaning
and significance of the authorization card, that thereafter
he himself signed one at the meeting and that he had a
coworker witness his signing. In response to a question as
to whether, either at the meeting or later, anyone was
forced to sign a card, Montgomery testified, "No, nobody
forced us to sign it."2 6
Joe Overton was another employee who testified that
McCay told him that Wood had sold the mine, that the
new owner had a union shop, and that to keep his job
Overton would have to join the Union. Overton also
testified that he asked Foreman McCrosky if there was any
truth to the rumor that the mine had been sold and
McCrosky told him that he had heard nothing to that
effect. Notwithstanding Overton's testimony as to McCay,
there was no evidence that this employee was pressured to
sign an authorization card. Overton testified that Stanley
Tawbush, a coworker, gave him a card, that he read it and
took the authorization home, where he signed it with only
his wife present and that his wife thereafter signed the card
as a witness to his having executed the authorization.
Overton never asked that the Union return his card to him.
Employee Steve Hughes testified that, about 2 months
before he signed a card (on June 3), McCay told him that
the Respondent was selling the mine to an out-of-state
company that was union. Hughes testified that he never
25 This is in evidence as G.C. Exh. 13.
25 It was the position of the Respondent that all employees of the mine
were laid off by the end of June. Montgomery, however, testified that at the
time the Cassidy mine closed he was working for the Wood Construction
Company. The Respondent contends that Montgomery was in the unit and
submitted evidence that he was laid off on June 29. Nevertheless,
Montgomery's own testimony tends to prove that at the time in question he
may have been an employee of the Construction Company
told anyone about this purported conversation with
McCay until he related it to Respondent's attorney,
presumptively on the morning that he testified. Hughes'
testimony on this subject was completely incredible.
Similarly, employee Norbert Shiyou testified that sometime
after he had attended his first union meeting McCay told
him the Union would be an asset, and that "it was . . . a
good thing we signed the cards." 27 Notwithstanding
Shiyou's testimony to this effect, he acknowledged that the
night before he so testified at the hearing he told counsel
for the General Counsel that none of his foremen or
supervisors had ever spoken to him about the Union. As to
the authorization which Shiyou acknowledged having
signed, he further conceded that he had read it before
affixing his signature and that he never asked that the
Union return his card.
Foreman McCay testified that he never attended a union
meeting until several weeks after he had quit working for
the Respondent on June 7. He also denied that he ever told
any of the employees at any time that it would be necessary
for them to join the Union to retain their jobs. His denials
in this connection were credible. Neither Hughes nor
Shiyou was a credible witness with reference to the alleged
incidents as to McCay about which they testified. Whereas
Montgomery and Overton also testified that McCay had
spoken to them and had told them that McCay had spoken
to them and had told them that Wood had sold the mine to
a company that would require the employees to join a
union, both of them gave testimony as to the circumstances
in which they signed their authorization cards that
established, as Montgomery testified, "nobody forced us to
sign...." It is my conclusion that the cards of Montgom-
ery, Overton, Hughes, and Shiyou were valid and that they
should be counted. On the other hand, if the Board should
conclude otherwise, the Union would still have had a total
of 17 valid cards, a clear majority in a unit of 28
employees.2 8
Concluding Findings
As found above, on June 9, 1976, when the Union
requested recognition, it had valid authorization cards
signed by 21 of the Respondent's 28 employees in the
appropriate bargaining unit. The Union's lawful demand
for recognition, made on that date, was declined. At that
point the Respondent had engaged in a substantial number
of violations of Section 8(a)(1) of the Act, and had
discriminatorily discharged two employees. Later that
month, as found earlier herein, the Respondent further
violated Section 8(a)(3) of the Act by closing the Cassidy
mine, at least in part, to avoid recognizing and bargaining
with the Union. It is now found that by this course of
conduct the Respondent also violated Section 8(a)(5) of the
Act, and that its unlawful refusal to bargain began on June
9, 1976, when it first declined the Union's request for
:7 The quotation is from Shiyou's testimony. The comment which Shiyou
attributed to McCay, if true, establishes that his conversation with McCay
occurred after he signed the union authonzation.
:2 Robert Matthews was also called as a witness by the Respondent and
testified that McCay told him that his job would be easier if Matthews was
in the Union. However, as found earlier, Matthews was not in the
bargaining unit. Even if credible, his testimony would not be relevant here.
244
LLOYD WOOD COAL CO., INC.
recognition. N.LR.B. v. Gissel Packing Co., Inc., 395 U.S.
575 (1969); Trading Port, Inc., 219 NLRB 298, 300-301
(1975); Hasty Print, Inc. d/b/a Walber Color Graphics, 227
NLRB 455, fn. 1 (1976).
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the
Union is a labor organization, all within the meaning of the
Act.
2. All production and maintenance employees of
Respondent, including all truckdrivers, but excluding all
office clericals, professional employees, guards and super-
visors as defined in the Act, constitute a unit appropriate
for the purpose of collective bargaining within the meaning
of Section 9(b) of the Act.
3. At all times material herein the Union has been the
exclusive collective-bargaining representative of the Re-
spondent's employees in the aforesaid unit within the
meaning of Section 9(a) of the Act.
4. By refusing, since June 9, 1976, to bargain collective-
ly in good faith with the Union as the exclusive representa-
tive of its employees in the aforesaid unit, and by laying off
all members of the above-described unit without reference
to the Union, the Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(aX5) of the Act.
5. By discriminatorily terminating Stanley Tawbush
and Neil McCay on June 7, 1976, and by discriminatorily
laying off all of its employees in the appropriate unit later
that month,29 the Respondent violated Section 8(aX3) of
the Act.
6. By interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in
Section 7 of the Act, the Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
8. The General Counsel has not proved by a prepon-
derance of the evidence that the Respondent interfered
with, restrained, or coerced its employees in the exercise of
the rights guaranteed by the Act, except by the specific acts
and conduct found herein to have been violative.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, it will be recommended that
the Respondent be ordered to cease and desist therefrom
and that it take certain affirmative action designed to
effectuate the policies of the Act.
It has been found that the Respondent discriminatorily
discharged Stanley Tawbush and Neil McCay on June 7,
1976. Whereas McCay was called back to work on June 10,
Tawbush was never reemployed. It will now be recom-
2s The names of those employees and the dates of the layoffs involved
herein are set forth in Table I, supra.
30 In August and September 1976, the Respondent reemployed most, if
not all, of those whom it had laid off in June. No evidence was taken as to
whether these reinstatements were to substantially equivalent employment.
mended that the Respondent be ordered to offer Tawbush
immediate reemployment to his former, or substantially
equivalent, employment and that both he and McCay be
made whole for any loss of pay suffered as a result of the
Respondent's discrimination.
It has also been found that during the month of June
1976 the Respondent discriminatorily laid off 20 employ-
ees. Whereas the Respondent may have been economically
justified in laying off some of its employees during that
month and thereafter and some of the discriminatorily laid-
off employees might have been affected by such a
nondiscriminatory reduction of personnel, the record
furnishes no basis for determining when such a layoff
might have occurred or the order in which any of the
employees might have been laid off. Under these circum-
stances, it will be recommended that the Respondent be
ordered to offer to the employees who were unlawfully laid
off in June 1976, and who have not been recalled,
immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to
their seniority and other rights and privileges, and, in the
event that there is insufficient work for all such employees,
to dismiss, if necessary, all persons who were newly hired
after the discriminatory layoffs in June. If there is not then
sufficient work for the remaining employees and those to
be offered reinstatement, all available positions shall be
distributed among them without discrimination against any
employee because of union activities, in accordance with a
system of seniority or other nondiscriminatory basis. The
Respondent shall place those employees, if any, for whom
no employment is available after such distribution, on a
preferential list, with priority in accordance with a system
of seniority or other nondiscriminatory basis, and thereaf-
ter shall offer them reinstatement as such employment
becomes available and before other persons are hired for
such work.3
It will also be recommended that the Respondent be
ordered to make whole the above-named employees for
any losses they may have suffered because of the Respon-
dent's discrimination, by payment to each of them of a sum
of money equal to the amount that he normally would have
earned as wages from the date of his layoff in June 1976 to
the date of the offer to reinstatement or placement on a
preferential list, as the case may be, less his net earnings
during such period, the backpay to be computed in
accordance with the formula approved in F W. Woolworth
Company, 90 NLRB 289 (1950), with interest thereon
computed in the manner and amount prescribed in Isis
Plumbing & Heating Co., 138 NLRB 716, 717-721 (1962). It
will also be recommended that the said Respondent be
required to preserve and make available to the Board or its
agents, on request, payroll and other records to facilitate
the computation of backpay due.
Since "a discriminatory discharge of an employee . . .
goes to the very heart of the Act" (N.LRB. v. Entwistle
Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941)), it will be
recommended that the Respondent be ordered to cease
That, of course, is a matter that can be disposed of at the compliance stage
of this proceeding. In the event that it is evident at that time that the offers
of reemployment were sufficient, backpay will be tolled as to the last-
described employees as of the date when each returned to work, or each
declined the Respondent's offer.
245
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and desist from infringing in any manner upon the rights
guaranteed in Section 7.
Upon the foregoing findings, conclusions, and the entire
record, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER31
The Respondent, Lloyd Wood Coal Co., Inc., Tuscaloo-
sa, Alabama, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Failing and refusing to bargain with United Mine
Workers of America, or any other labor organization,
representing its employees in the following appropriate
unit:
All production and maintenance employees, including
all truckdrivers, but excluding office clericals, profes-
sional employees, guards and supervisors as defined in
the Act.
(b) Failing or refusing, upon request, to bargain in good
faith with any labor organization representing its employ-
ees in the aforesaid appropriate unit, respecting rates of
pay, wages, hours, or other terms or conditions of
employment.
(c) Interrogating any employee concerning that individu-
al's union activity, or that of other employees, in a manner
constituting a violation of Section 8(a)(1) of the Act.
(d) Threatening its employees with loss of jobs or closing
its mining operations if a majority become members of, or
assist, a labor organization.
(e) Giving its employees the impression that it is
engaging in surveillance of their union activities.
(f) Threatening employees with any form of reprisal
because of their membership in, sympathy for, support of,
or activity on behalf of, any labor organization.
(g) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, or to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection as guaranteed in Section 7 of the National
3a In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
Labor Relations Act, as amended, or to refrain from any or
all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Stanley Tawbush, Neil McCay, Charles
Martin, Charles Harris, Ed Ware, William Estes, Leonard
Fowler, Johnny Alexander, Robert Richardson, Ray
Sullivan, Joe Branch, Olin Duncan, Don L. Edwards, Steve
Hughes, Will Montgomery, Joe Overton, Thomas Peeples,
Willie James Harris, Albert Martin, Leslie Martin, and
Alfred Thomas, immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges, and make them whole in the
manner set forth in the section of this Decision entitled
"The Remedy."
(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 records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(c) Upon request, bargain collectively with United Mine
Workers of America as the exclusive representative of
employees in the appropriate unit, and, if an understanding
is reached, embody such understanding in a signed
agreement.
(d) Post at its office in Tuscaloosa, Alabama, copies of
the attached notice marked "Appendix."3 2 Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by an authorized
representative, shall be posted by it for a period of 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges any unfair labor practices other than as
herein specifically found.
32 In the event 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 read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
246