Mantac Corp.

National Labor Relations Board - Board Decisions

Aug 30, 1977

231 N.L.R.B. 858 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mantac Corporation and Tackett & Manning Coal
Corporation and United Mineworkers of America.
Case 9-CA-10606
August 30, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On April 26, 1977, Administrative Law Judge John
P. von Rohr issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief and Respondent
filed an answering 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
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt his recommended Order.
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 and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
I The General Counsel 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 Drs' 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.
We hereby correct the following inadvertent errors in the Administrative
Law Judge's Decision which do not affect the results herein: In the section
entitled "Statement of the Case" the Administrative Law Judge states that
the complaint herein alleges violations of Sec. 8(a)(l) and (5) of the Act,
rather than of Sec. 8(aX)l) and (3); at fn. 6, the Administrative Law Judge
states "the record does not reflect some evidence of union animus," but it is
clear from a complete reading of the footnote, as well as other portions of
his Decision, that he intended to state "the record does reflect some
evidence of union animus,"
2 We agree with the Administrative Law Judge's conclusion that the
"small plant doctrine" set forth in Wiese Plow Welding Co., Inc., 123 NLRB
616 (1959), is inapplicable here. Although Respondent Mantac employed
only II employees, the small size of its complement does not justify the
inference that it had knowledge of its employees' union activities, absent
supporting evidence that such activities were carried on in such a manner or
at such times that, in the normal course of events, Respondent must have
been aware of them. See, e.g., Friendly Markets, Inc., 224 NLRB 967, 969
(1976), and cases cited therein. The record clearly establishes that prior to
the discharges Respondent Mantac's employees engaged in no union
activities on its premises. See Picker Corporation, 222 NLRB 296, 298-299
(1976).
DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR, Administrative Law Judge: Upon a
charge filed on September 7, 1976, and amended charges
filed on October 22 and 29, 1976, the General Counsel of
the National Labor Relations Board for the Regional
Director for Region 9 (Cincinnati, Ohio), issued a com-
plaint on October 29, 1976, against Mantac Corporation
and Tackett & Manning Coal Corporation, alleged to be a
single employer and herein called the Respondent or the
Company, alleging that it had engaged in certain unfair
labor practices violative of Section 8(a)(1) and (5) of the
Act. The Respondent filed an answer denying the allega-
tion of unlawful conduct alleged in the complaint.
Pursuant to notice, a hearing was held before me on
January 13, 1977, in Whitesburg, Kentucky. Briefs were
received from the General Counsel and the Respondent on
March 15, 1977, and they have been carefully considered.
Upon the entire record in this case and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent Mantac is a Kentucky corporation engaged
in the rental and leasing of coal mining properties to
Tackett & Manning and in performing engineering,
maintenance, and construction work for Tackett & Man-
ning and others from and out of its Jenkins, Kentucky,
location. During the calendar year preceding the hearing
herein, Mantac performed work and services in excess of
$50,000 for Tackett & Manning. Tackett & Manning, a
Kentucky corporation located in Jenkins, Kentucky, is
engaged in the strip mining of coal from various locations
in and around Jenkins, Kentucky. During the same period,
Tackett & Manning had an indirect outflow, in interstate
commerce, of coal valued in excess of $50,000 which it sold
231 NLRB No. 148
858
MANTAC CORPORATION
and shipped directly to Bethlehem Mines Corp., Elkhorn
Corporation. Beth-Elkhorn is a Kentucky corporation
engaged in the nonretail sale of coal at its Jenkins,
Kentucky, facilities and annually has a direct outflow of
coal, in interstate commerce, valued in excess of $50,000,
which it sells and causes to be shipped from its Jenkins,
Kentucky, facilities directly to points located outside the
State of Kentucky. At all times material herein, Mantac
and Tackett & Manning are corporations owned in their
entirety by immediate members of the Tackett & Manning
families, with common management, supervision, offices
and financial control, interrelationship and integration of
operations and work forces, and centralized control of
labor relations. I find that Mantac and Tackett & Manning
constitute a single employer for jurisdictional purposes,
and that Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.'
II. THE LABOR ORGANIZATION INVOLVED
United Mineworkers of America, herein called the
Union, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The issue in this case is whether the Respondent, on
August 31, 1976, terminated the employment of Paul A.
Sanders, John G. Standifer, Albert M. Carter, Darrell
Thompson, Hatler Holbrook, and Billy R. Anderson in
violation of Section 8(a)(l) and (3) of the Act.
A. Background
As set forth in section I, above, Respondent Mantac and
Respondent Tackett & Manning have been found to
constitute a single employer as defined in Section 2(2) of
the Act. However, as relevant background to this proceed-
ing, it is relevant to note the following additional facts
concerning the relationship of these companies, viz, (1) At
the times material hereto, Mantac was principally engaged
in performing excavation work for companies or individu-
als other than Tackett & Manning, whereas Tackett &
Manning has been and is principally engaged in strip coal
mining activities; (2) Mantac regularly borrows or leases
equipment, such as bulldozers and trucks, from Tackett &
Manning, and Mantac's employees are regularly employed
to perform maintenance work on this equipment; and (3)
Paul Funk, a superintendent employed by Tackett &
Manning, is also regularly engaged in the supervision of
Mantac's employees. In addition, Funk acts as an agent of
Mantac in the procurement of excavation work for Mantac
from other individuals and other employers.
Finally, it is noted that, at all times material hereto, the
employees of Tackett & Manning have been represented
by the Charging Union whereas, up until the events at issue
hereto, Mantac's employees were nonunion.
I The above findings are taken from the Decision and Direction of
Election by the Regional Director in Maniac Corporation and Tackerr &
armnning Coal Corporation and United Mine Workers of America, Case 9
B. The Organizational Activity; Company
Knowledge
The entire union activity involved in this case took place
in the early afternoon of Sunday, August 29, at which time
six Mantac employees met with two union representatives
at a union hall in Jenkins, Kentucky. The six employees, all
of whom signed union authorization cards at this time,
were comprised of Paul A. Sanders, John (Jack) Standifer,
Albert M. Carter, Darrell Thompson, Hatler Holbrook,
and Billy R. Anderson. Each of these employees are named
as discriminatees in the complaint.
Robert L. Carter, the father of Albert M. Carter, was one
of the two union representatives who attended the above
union meeting. He holds the position of financial secretary
of Local Union No. 5741, United Mineworkers of
America, and also is a member of the Union's mine health
and safety committee. He has long been an employee of the
Beth-Elkhorn Coal Corporation, also of Jenkins, Ken-
tucky. There is a sharp and critical conflict in the testimony
of Robert Carter and Don Manning, the latter the owner
and top operating official of Mantac and Tackett &
Manning, concerning an alleged conversation wherein
Carter asserts to have apprised Manning of the union
meeting held on August 29. Robert Carter testified that on
August 30, 1976, when it was after dark (near 5 or 6 p.m.,
he said) he was at home and received a telephone call from
Manning. According to Carter, Manning simply told him
that he was going to put up a Quonset hut "over on
Millstone" for the purpose of being close to his mines and
that he intended to bring a contractor in to do the job.
Continuing, Carter said he then told Manning "does he
belong to the union ... you know he's got to belong to the
union if he does contract work," adding that he also told
Manning "that he should contact the district and see that
he belonged to the union to start with." Without elaborat-
ing further concerning this aspect of the conversation,
Carter testified that he then told Manning, "Well, I guess
you know that we've signed up a majority of your Mantac
employees." According to Carter, Manning responded,
"No, I haven't heard of it ... well good." Manning then
ended the conversation by stating "Well, I'll have to talk to
Squire Feltner about the building."
Concerning the foregoing, it is undisputed that Manning
had traveled to Louisville, Kentucky, on August 30 and
that he did not return home (by helicopter) until about 8:30
that evening. Manning emphatically denied having called
Carter on August 30, 1976, and testified that he "never
called Robert Carter on the telephone in the last four
years." He further testified that the first he learned of any
union activity by the Mantac employees was on September
I when Bill Lindey, a union representative, called to ask
when he would pay the employees who had been laid off
on August 31.
Upon the entire record, I am impelled not to credit the
testimony of Robert Carter concerning the conversation he
allegedly held with Manning on August 30. I do so for
several reasons. The first relates to the two prehearing
RC-11697. The Board denied Respondent's request for review of this
decision on January 14, 1977. There being no evidence to the contrary in
this proceeding. I deem the aforesaid decision to be controlling here.
859
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affidavits submitted by Carter. The initial statement was
taken by the attorney for the Charging Party on September
29, 1976. No mention of the purported August 30
conversation is made in this statement. The second
statement was taken by a representative of the General
Counsel on October 14, 1976. This statement does relate
the alleged conversation of August 30. While I do not agree
with Respondent that the absence of any reference to the
August 30 conversation in the initial affidavit is in itselfa
basis to find this testimony to have been fabricated, I do
think it highly significant to note that the initial affidavit
concludes with the following statement: "Also, we have
discussed the organizing drive at our union meetings and
the company is well aware of our intentions to make the
shop UMWA." This statement, it appears to me, is clearly
indicative of the fact that the attorney who took the initial
affidavit must have been aware of the importance of
establishing company knowledge and that she conveyed
this fact to Carter at the time the statement was taken. This
being the case, I indeed must regard as suspect Carter's
statement concerning the August 30 conversation in his
second affidavit, as well as his testimony on the point.
A second reason for questioning Carter's testimony
concerning the alleged conversation, and perhaps more
importantly, is the plausibility of this testimony. Thus, it
will be recalled that, according to Carter, Manning called
him for the purpose of informing him that he intended to
bring in a contractor to erect a Quonset hut. The question
arises, what motive would Manning have for telephoning
Carter and simply apprising him of this fact? It is true that
the question of a union or nonunion contractor being
engaged to perform this work was then discussed, but this
subject, according to Carter, was brought up by Carter, not
Manning. Since Carter was an official of the local union,
the conversation would appear more plausible if it had
been established that Manning called Carter to raise the
question about the job being performed by a union or
nonunion contractor. This, however, was not the case.
Moreover, there is no showing that in the past Manning
had consulted with Carter over any similar matter. It is
true, according to Carter's testimony, that up through 1975
he and other union officials handled grievances for Tackett
& Manning and that on several of these occasions the
subject was raised with Manning concerning Mantac's
employees being brought into the Union. But Manning's
alleged call to Carter on August 30, which by strange
coincidence came on the day following the union meeting,
is entirely unrelated to the foregoing. In short, if there were
any plausible reason for Manning's alleged call to Carter
on August 30, the record does not show it. If indeed there
were any such plausible reason, it was the General
Counsel's burden of proof to establish it.2
Finally, and with reference to the same subject, Manning
repeatedly and emphatically denied making the call in
question. Although, as later noted, there is one aspect of
Manning's testimony that is questionable, there was
2 In urging an additional reason for discrediting Carter, Respondent
points to Carter's testimony that he was advised by one of his interviewers:
"They told - they advised us as to the information needed to fix a case."
While this testimony on its face would appear damaging to the General
Counsel's case, I do not believe that Carter intended this statement literally
but that it was simply his manner of speech. Indeed, at another point in his
nothing in Manning's demeanor to indicate that he was not
telling the truth when denying the telephone call in
question.
C. The Terminations
The six employees named at the outset of this Decision
were terminated by Foreman Paul Funk at or about the
end of the day on Tuesday, August 31, 1976. At this time,
and without any prior notice, they were handed a slip
which stated as follows:
We are sorry to inform you that your services with the
Company are no longer needed and your employment
is terminated as of this date.
A seventh employee, Roger Vanover, was also to have
been terminated with the others. However, and while the
record does not reveal the details, this employee took it
upon himself to quit prior to receiving a termination slip
which had been prepared for him also.3
Only four of the six alleged discriminatees were called by
the General Counsel to testify in this proceeding. Darrell
Thompson was employed by Mantac as a general laborer
for approximately 2-1/2 years. Qualified also to operate a
drill, Thompson was performing excavation work with a
drill at the State Stone Quarry job at Whitesburg,
Kentucky, at the time of his termination. Billy Ray
Anderson, a drill operator, was employed by Respondent
since May 1976. He was also working at the State Stone job
(also referred to by him as the Pine Mountain job) at the
time of his termination. Hailer Holbrook was employed by
Respondent for approximately 4 years. Apparently em-
ployed to perform vehicle maintenance work, he described
his job as fueling and greasing the trucks of Tackett &
Manning, and also delivering parts and performing
"whatever Mr. Paul Funk said." Albert Carter, with the
exception of 6 months when he was off work, was
employed by Respondent since 1974. Carter testified that
he picked up and delivered parts for Tackett & Manning,
that he steamed Tackett & Manning's equipment, helped
the mechanics, and performed odd jobs. Paul Sanders and
Jack Standifer did not testify. However, in response to my
questions, Manning testified that Sanders was employed by
Respondent for 3 of 4 months as a laborer working around
the shop or going out on jobsites and that Standifer worked
in the supply house as a trainee since February 1976.
Turning to Respondent's defense, Manning testified that
at the time of the terminations Respondent had completed
all of its construction (excavation) jobs and that the
employees were terminated for lack of work. In this
connections it is preliminarily noted that Mantac was
formed in the year 1970, at which time it purchased the
land and buildings and a concrete plant of Jenkins
Construction Company at Payne Gap, Kentucky. During
its early years, it was exclusively devoted to improving this
property and employed approximately four or five employ-
testimony Carter stated: "They told us as to the information and all the
evidence we needed to have. And they told us to try and remember anything
that had transpired between us and Tackett & Manning,"
3 Billy Ray Anderson, one of the six alleged discriminatees, was not at
work on August 31. He was given his termination notice by Funk who came
to his house early on the following morning.
860
MANTAC CORPORATION
ees. It was not until latter 1974 or early 1975 that the
outside excavation jobs began and additional employees
were hired to perform this work. In December 1975,
Mantac had 8 employees and, in May 1976, it employed 12
employees. With the terminations of August 31, 1976, at
issue here, Mantac's work force was cut back to four
employees. According to Manning, these four employees
were all that were needed for Mantac to maintain its
properties.
During the several month period prior to the August 31
terminations, Mantac was engaged in two jobs, with a third
job in prospect. One was the so-called Don Childer's job,
which involved the relocation of a petroleum facility from
one site to another due to the condemnation by the State
Highway Authority of the original property. Mantac was
engaged to perform the excavation work. According to
Childers, 85 percent of this work was performed in April
and May 1976, with some carryover in June or July. He
also testified that after August 31, 1976, there was only
some loose dirt to be moved and that this involved a total
of 45 hours for completion. The record reflects that Don
Anderson and his brother, Billy Anderson, at some
undisclosed point and for some undisclosed time, per-
formed work on the job.
The second job, mentioned earlier, was the State Stone
job which involved excavation work at a rock quarry.
According to the unrefuted testimony of Manning and
Michael Testerman, the latter the superintendent of State
Stone, this job was taken away from Mantac and was given
to the Hawkins Construction Company about a week prior
to the termination of Mantac's employees. Although the
Mantac employees continued to work on this job during
the last week, it appears that all of Mantac's equipment
except a front-end loader was pulled out by this time.
Testerman testified that the loader was utilized to get dirt
out of a pit. Vanover, who quit on the day he would have
been discharged by Mantac, was hired by Testerman to
perform this work. Vanover was not called to testify
concerning the reasons for his quitting Mantac or the
circumstances of his being hired by State Stone.
The third job, which had not yet started, involved an
agreement by Mantac with one Verlin Baker, a self-
employed business man, to undertake the excavation work
for a shopping center which Baker planned to build in
Jenkins, Kentucky. However, Baker testified that this job
was held up because of a problem he was having with the
power company putting electricity into the site. In fact,
according to Manning, it was the cancellation or deferment
of this job that prompted the August 30 layoff.4 His
specific testimony in this connection, however, is open to
question. Thus, Manning testified that it was during the
week just prior to the layoff that he learned that Baker had
told Funk about the power problem and that the shopping
I Indicating that his problem with the power company ultimately would
be solved. Baker testified that he anticipated the shopping center job would
start in about March 1977.
; The men had just received their weekly pay on Friday. August 27.
Manning testified that he decided to keep the men until Tuesday. August 31.
because this would be the end of the month.
6Although the complaint does not charge Respondent with any
independent violations of Sec. 8aXl I) of the Act. the record does not reflect
some evidence of union animus. Thus. Darrell Thompson, who testified in a
center job would have to be deferred. He said that,
although he otherwise would have retained the alleged
discriminatees to perform this work, it was the deferment
of this job that prompted the terminations. Baker, however,
testified that it was sometime in July that he apprised Funk
of the foregoing circumstances, which would have been 3
or more weeks prior to the termination. Funk did not
testify about whatever conversation he had with Manning
on the subject. While Manning's testimony therefor
appears questionable, this does not alter the undisputed
fact that the work to be performed by Mantac at the
shopping center was canceled or deferred prior to the
terminations at issue herein.5
Before turning to my conclusions, it is noteworthy that
only two of the alleged discriminatees, Anderson and
Thompson, were engaged in excavation work (i.e., outside
construction for Mantac), the remaining four employees
having been engaged in the servicing of equipment, the
delivery of parts, or other miscellaneous work not at a
construction site. Although there is fragmentary testimony
that on an isolated occasion one or two employees of
Tackett & Manning were seen to have performed some of
the latter work, this evidence was entirely undeveloped.
Indeed, as indicated, two of the alleged discriminatees who
may have shed some light on this matter were not called to
testify; nor were Respondent's witnesses cross-examined or
called adversely to testify concerning this subject. For all
the record may imply, the services of the unskilled help
may have related to the construction work performed by
Mantac. Moreover, it is undisputed that no new employees
were hired by Mantac to replace the employees who were
terminated nor is there any evidence that Tackett &
Manning hired new employees during the same point of
time.
Upon the entire record in this case, and notwithstanding
the presence of certain classical elements generally indica-
tive of discrimination, particularly the timing of the
terminations here,6 I am impelled to find and conclude that
the General Counsel, upon whom the burden of proof must
rest, has not established by a preponderance of the
evidence that Respondent terminated the six employees
named in the complaint in violation of Section 8(a)(1) and
(3). Particularly missing is the absence of any credible
evidence to establish the vital element of company
knowledge. Nor, under the circumstances of this case, do I
find that an inference of company knowledge is warrant-
ed.7 Furthermore, the fact cannot be disregarded that
Respondent offered unrefuted testimony to establish that
its outside jobs were completed and that no new employees
were hired to replace the alleged discriminatees.
In concluding, I deem it appropriate to point out that the
General Counsel's theory of this case, or at least one
theory, was not carefully thought out and cannot be
representation heanng held on November 5, 1976, testified in the instant
hearing that, about 2 weeks after the initial hearing, Foreman Funk told him
that if he did not quit fooling around with "this bunch" he would get into
trouble and would not get a job anywhere. Also. Manning testified in the
instant hearing that the Union "didn't have any grounds to organize
Mantac."
7 The so-called small plant doctrine, enunciated by the Board in Wiese
Plow Welding Co., Inc.. 123 NLRB 616 (1959). is not. in my view, applicable
here.
861
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sustained. Thus, in his brief the General Counsel states:
"Moreover, the unrebutted evidence discloses that the
employer involved selected for discharge only those
employees actively seeking union representation. Such
conduct is obviously violative of Section 8(a)(1) and (3) of
the Act." This theory clearly is not in keeping with the
evidence, for Robert Carter testified that, whereas the six
alleged discriminatees signed union cards at the August 29
union meeting, two additional employees signed cards on
the following day. Thus, for all the record shows, two of the
eight employees who signed cards were retained in
Respondent's employ. Moreover, Carter did not testify that
he apprised Manning of the names of the employees who
signed cards during his alleged conversation with Manning
on August 30. Rather, according to his testimony, he only
imparted the general information that a majority of the
employees had signed. Clearly, the General Counsel's
theory as aforesaid is without merit.
[ 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.
In sum, and while the case is not free from doubt, for all
the reasons stated above it is recommended that the
complaint be dismissed.
CONCLUSIONS OF LAW
I. Mantac Corporation and Tackett & Manning Coal
Corporation is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. United Mine Workers of America is a labor
organization within the meaning of Section 2(5) of the Act.
3. Respondent did not violate Section 8(a)(1) and (3) of
the Act as alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 8
The complaint is dismissed in its entirety.
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.
862