Lotta Coal Inc.

National Labor Relations Board - Board Decisions

Jan 29, 1991

301 N.L.R.B. 418 (N.L.R.B. 1991)

418
301 NLRB No. 62
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance of all the relevant
evidence convinces us that they are incorrect. Standard Dry Wall Products,
91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing the findings.
1 All dates are 1990 unless specifically stated otherwise.
2 Woolridge’s denials that he made such a statement are not credited against
the mutually corroborative and credible testimony of Brooks, McKinney, and
Miller that he did so state.
Lotta Coal Inc. and District 29, United Mine Work-
ers of America, AFL–CIO. Case 11–CA–13677
January 29, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On September 20, 1990, Administrative Law Judge
Claude R. Wolfe issued the attached decision. The
General Counsel filed exceptions and a supporting
brief. The Respondent filed a brief in response to the
General Counsel’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Lotta Coal Inc., Horsepen,
Virginia, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
Paris Favors, Jr., Esq., for the General Counsel.
Thomas L. Woolwine, Esq., President, Personnel Management
Consultants, for Lotta Coal Inc.
Roger L. Yates, District Representative, District 29, United
Mine Workers of America, AFL–CIO.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge. This pro-
ceeding was litigated before me at Bluefield, Virginia, on
August 1, 1990, pursuant to charges filed by District 29,
United Mine Workers of America, AFL–CIO (the Union) on
January 16 and February 16, 1990,1 and a complaint issued
on March 1, 1990, alleging Lotta Coal Inc. (Respondent) vio-
lated Section 8(a)(1) of the Act by threatening employees
with layoff because they engaged in union activities, and vio-
lated Section 8(a)(3) of the Act (the Act) by laying off
Charles O. Brooks, George T. McKinney, Paul Miller, and
Reggie Shutt because they engaged in such activities. Re-
spondent denies the commission of unfair labor practices.
On the entire record, and after assessing the comparative
testimonial demeanor of the witnesses and considering the
posttrial briefs of the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, Respondent admits, and I find Re-
spondent is now, and has been at all times material a Vir-
ginia corporation with a facility located at Horsepen, Vir-
ginia, where it is engaged in the mining of coal. During the
past 12 months, which period is representative of all times
material Respondent received at its facility, in Horsepen, Vir-
ginia, goods and materials valued in excess of $50,000 di-
rectly from points outside the Commonwealth of Virginia.
Respondent is now, and has been at all times material an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. LABOR ORGANIZATION
It is well settled that the Union is a labor organization
within the meaning of Section 2(5) of the Act. See, e.g.,
Spring Ridge Coal, 299 NLRB No. 29 (July 26, 1990).
III. SUPERVISORS AND AGENTS
The complaint alleges, Respondent admits, and I find that
at all times material the following named persons occupied
the positions set opposite their names, and have been, and
are now, agents of Respondent, acting on its behalf, and are
supervisors within the meaning of Section 2(11) of the Act:
John E. Caffrey President
Rodney Howery Superintendent
James C. Woolridge Supervisor
And that James C. Woolridge, at all times material has been,
and is now, an agent of Respondent, acting on its behalf, and
is an agent within the meaning of Section 2(2) and 2(13) of
the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
On January 3, Roger L. Yates, a union district executive
board member, appeared at the entry access road to the mine
being operated by Respondent, at about 3:30 or 4 p.m., and
there distributed union authorization cards and other union
literature to employees entering the property on their way to
work. Among the employees who then received the cards
and literature from Yates were Charles O. Brooks, George T.
McKinney, and Paul D. Miller. Supervisor Woolridge was
riding in Miller’s car when Yates handed the Union materials
to Miller who laid them on the seat.
Brooks, McKinney, Miller, and Reggie Shutt were the sec-
ond-shift work force from 4:30 p.m. to 3 a.m., and all were
directly supervised by Woolridge. These five persons, includ-
ing Woolridge, were eating dinner together on the evening
of January 8 when Woolridge volunteered that he had been
advised by telephone that the second shift would be laid off
if enough of them signed union authorization cards.2 Brooks,
McKinney, and Miller had signed union authorization cards
by then. Even though Woolridge did not name his caller, his
statement clearly conveyed a threat of layoff in retaliation for
employee union activity and reasonably tended to interfere
419LOTTA COAL INC.
3 If no exceptions are filed as provided in Sec. 102.46 of the Rules and Reg-
ulations of the National Labor Relations Board, the findings, conclusions, and
recommended Order shall, as provided in Sec. 102.48 of the Rules and Regu-
lations, be adopted by the Board and become its findings, conclusions, and
Order, and all objections to them shall be deemed waived for all purposes.
with, restrain, and coerce employees in the exercise of rights
guaranteed them by Section 7 of the Act. This threat by
Woolridge is imputable to Respondent, and violated Section
8(a)(1) of the Act. See, e.g., Petersburg Mfg. Co., 233 NLRB
1236 (1977).
The night shift, consisting of the four nonsupervisory em-
ployees named above, was laid off on January 10. The union
activity, Woolridge’s knowledge of it, Woolridge’s threat,
and the layoff hard on the heels of the threat are sufficient
to set forth a prima facie case the layoffs were designed by
Respondent to discourage union membership and activity by
its employees. General Counsel has therefore carried his ini-
tial burden of showing prima facie the layoffs violated Sec-
tion 8(a)(3) of the Act.
It is now Respondent’s burden to show that the layoff
would have taken place in the absence of any union activity.
Wright Line, 251 NLRB 1083 (1980); NLRB v. Transpor-
tation Management Corp., 462 U.S. 393 (1983). To that end
John E. Caffrey, Respondent’s president, testified that he
made the decision to lay off the second shift. He explains
that he put on a second shift in March of 1989 because the
underground mine here involved was adding more tunnels
and the maintenance of equipment became more extensive.
The second shift’s duties generally were to maintain the ma-
chinery inside the mine in good order and otherwise prepare
the mine so the first shift could immediately commence pro-
ducing coal when they came in to work. Caffrey testifies he
believed this would help bring down production costs. There-
after Respondent mined in a northerly direction until a fault
was reached in September which caused the mining to turn
east. It so proceeded for a bit and then again turned north
to where production with the equipment at hand was not fea-
sible because the coal production relative to the amount of
rock that would have to be mined to get the coal was very
little. Accordingly, Respondent commenced retreating and
mining as it withdrew. This was in November 1989 and a
second shift was no longer needed because as the mining re-
treated there was less and less mine to maintain. Caffrey as-
serts he started considering a reduction in employees in No-
vember 1989 because the labor costs went awry, and reached
a decision in December, before Christmas, to cutoff the sec-
ond shift, but delayed the layoff until after the holidays be-
cause he is not heartless. He explains the shift was not termi-
nated the first Friday in January 1990 because he had inter-
vening personal family problems which engaged him. On
Tuesday, January 9, he directed Rodney Howery to terminate
the second shift as they came out from the mine on January
10 at the end of the shift. At the time Howery was the mine
superintendent. He left Respondent’s employment in March
1990 and did not testify before me.
Caffrey’s testimony draws support from evidence of record
that the labor costs per ton of coal was $3.10 in March 1989,
dropped to $2 in April, rose to $2.40 in May and $4 in June,
dropped back to $3.40 and $3 in July and August, respec-
tively, but then rose precipitously to $5.20 in September,
when the fault caused a course change from north to east.
The cost dropped to $2.40 in October, but then in November
when the retreat mining commenced the cost rose sharply to
$4.40. It then went to $4.70 in December. January 1990 saw
an abrupt drop to $2.80, probably due in part at least to the
January 10 layoff. For reasons not clear in the record, costs
rose to $4.13 in February, but thereafter were consistently
much lower: March $2.85, April $2.84, May $1.97, and June
$2.96. General Counsel points to the failure to layoff in Sep-
tember 1989 when labor costs reached their zenith as evi-
dence that economic justification is not a defense. I do not
agree. Respondent ran into a fault in that month, which I
conclude was probably the cause of the high labor cost, not-
ing that the change of direction to a more fruitful vein pro-
duced a cost in October less than half that in September.
Moreover, there was work for the second shift in September
because Respondent had not yet embarked on retreat mining
through tunnels already constructed and requiring less main-
tenance. General Counsel further points out that production
was higher in December 1989 than November 1989. This is
true, but labor costs per ton were also higher in December.
The bottom line is that Respondent’s efforts were directed at
lower labor costs. General Counsel fails to recognize this
when he points to continued overtime for employees after the
layoff. There is no requirement that a company discontinue
overtime to retain employees, especially where, as here, the
function for which the laid off employees were hired is no
longer necessary to the operation of the business and the lay-
offs resulted in lower costs. I also note Respondent hired no
employees after the layoff except Brooks and Miller, who re-
turned to work on April 9 and July 16, respectively, after
Jerry Davidson, roof bolter, left Respondent’s employment
on February 14, Leland Vaughn, outside/substitute for others
inside, left on April 6, and Charles Williams, outside person,
left on July 12, and Scott Tinsley who was a laid-off belt
patrolman recalled to the same position, a position all four
alleged discriminatees rejected when offered to each of them
in turn.
Caffrey was a credible witness, and I conclude a prepon-
derance of the evidence shows the second shift would have
been terminated in the absence of any union activity, General
Counsel has not shown by a preponderance of the evidence
that the layoffs of Brooks, McKinney, Miller, and Shutt on
January 10 violated the Act.
CONCLUSIONS OF LAW
1. Lotta Coal Inc. (Respondent) is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. District 29, United Mine Workers of America, AFL–
CIO (the Union) is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by
threatening its employees with layoff because they engaged
in protected union activity.
4. The unfair labor practice set forth above affects com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. Respondent did not violate the Act by laying off
Charles Brooks, George McKinney, Paul Miller, and Reggie
Shutt on January 10, 1990.
On these findings of fact and conclusions and on the entire
record, I issue the following recommended3
420 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 If this 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
ORDER
The Respondent, Lotta Coal Inc., its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with layoff if they engage
in union activity.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the purposes of the Act.
(a) Post at the Respondent’s place of business in Horse-
pen, Virginia, copies of the attached notice marked ‘‘Appen-
dix.’’4 Copies of the notice, on forms provided by the Re-
gional Director for Region 11, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt, and be maintained for
60 consecutive days in conspicuous places, including all
places where notices to customers are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations not specifically found herein.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT threaten you with layoff if you engage in
union activity.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of rights guaranteed
you by Section 7 of the National Labor Relations Act.
LOTTA COAL INC.