Martiki Coal Corp.

National Labor Relations Board - Board Decisions

Oct 31, 1994

315 N.L.R.B. 476 (N.L.R.B. 1994)

476
315 NLRB No. 61
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In view of this finding, we do not reach the issue of whether the
Respondent Charles Clearing also violated Sec. 8(a)(4). This deci-
sion does not change the remedy, which we adopt, for Charles
Clearing’s unlawful failure to reinstate the striking employees who
unconditionally offered to return to work. Further, unlike the judge,
we do not rely on Cargill Poultry Co., 292 NLRB 738 (1989), or
Abilities & Goodwill, 241 NLRB 27 (1979). Those cases, unlike the
one before us, involve an employer’s unlawful termination of strikers
who, as a consequence of their unlawful termination, did not tender
an unconditional offer to return to work.
2 The judge’s findings regarding the exact number of striking em-
ployees are unclear. His decision recites at one point that, at the time
of the hearing, Respondent Charles Clearing had ‘‘approximately 78
employees at the mine site, two more than it had in February 1992.’’
Later, the judge found that ‘‘[o]n February 6, [1992], about 32 of
the approximately 78 striking employees returned to work.’’ (Em-
phasis added.) Based on the following evidence showing the reem-
ployment of 50 strikers and on the parties’ stipulation (infra, fn. 4)
at the hearing that 26 employees were laid off on February 10, we
calculate that Respondent Charles Clearing employed 76 employees
on the date of the strike.
3 There were approximately four or five pickets on duty at each
gate that day. There is no evidence that Charles made a systematic
attempt to notify employees of these events. On the contrary, word
appears to have spread among striking employees through the grape-
vine.
4 At the hearing the parties stipulated that the following 26 em-
ployees were laid off on February 10, 1992, and that Respondent
Charles Clearing subsequently failed to recall them: Steve Arnette,
Ron Blankenship, Henry Boyd, Steve Boyd, David Conrad, Willis
Fletcher, Craig Hale, Ronnie Hall, Paul Hinkle, Brian Holbrook,
Daniel Hutchinson, David Hutchinson, Mickey Jude, Warren Jude,
Brian Lowe, Freddy Moore, Shelby Moore, Harold Muncy, Stewart
Preece, Chester Ramey, Jeffrey Taylor, Jonathan Taylor, Leandis
Taylor, Douglas Wilson, Bill Webb, and Frank Webb. In addition,
the complaint alleged that a 27th employee, Dewey Jude, had been
laid off on February 10. The judge did not find that Dewey Jude
was laid off and unlawfully denied reinstatement, and there were no
exceptions (see fn. 6, infra).
Martiki Coal Corporation, a wholly-owned
subsidiary of Mapco Coal, Inc., and Charles
Clearing Contractor, Inc. and Bill R. Webb.
Case 9–CA–29975
October 31, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On September 16, 1993, Administrative Law Judge
Richard H. Beddow Jr. issued the attached decision.
Respondents Martiki Coal Corporation, Mapco Coal,
Inc., and Charles Clearing Contractor, Inc. each filed
exceptions and a supporting brief.
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, and con-
clusions only to the extent consistent with this decision
and to adopt the recommended Order as modified.
As more fully set forth in the attached decision, the
administrative law judge found that Respondent
Charles Clearing Contractor, Inc. (Charles Clearing)
violated Section 8(a)(1) by failing to recall lawfully
laid-off economic strikers, and violated Section 8(a)(4)
because this failure to recall was in retaliation for the
filing of unfair labor practice charges with the Board.
He also found that Respondent Mapco Coal, Inc. and
its wholly-owned subsidiary Martiki Coal Corporation
are single employers. Further, because he found that
Respondent Martiki Coal Corporation (Martiki) was a
joint employer with Charles Clearing, he found that
both Respondent Mapco Coal, Inc. (Mapco) and
Martiki are jointly liable for remedying the violations
found.
We adopt the judge’s finding that Respondent
Charles Clearing violated Section 8(a)(1) of the Act.1
Contrary to the judge, however, we find that Martiki
was not a joint employer with Charles Clearing. Ac-
cordingly, we need not reach the issue of whether
Martiki and Mapco are a single employer. We dismiss
the complaint as to both.
The Unfair Labor Practice
Respondent Charles Clearing provides contract labor
to operate a coal mine owned by Respondent Martiki.
Charles Clearing employees, then numbering approxi-
mately 76,2 began an economic strike on Monday,
February 3, 1992. On Friday, February 7, Martiki in-
formed Charles Clearing President Argyle Charles that
it would be cutting production and would require only
50 employees. At that point about 32 strikers had re-
turned to work. Argyle Charles told employees on the
picket line about the reduction, informed them there
would be layoffs, and announced that he would take
back the first 18 strikers to call him over the weekend
and agree to cross the picket line.3 Some strikers at-
tempted, with mixed success, to telephone Argyle
Charles during the weekend to return to work. Many
of the strikers, apparently including those who had
telephoned, reported to the mine on Monday, February
10, and were put to work or laid off, depending on
whether they were among the first 18.4 Picketing
ceased at that point. On March 25, 1992, employees
filed charges—later dismissed—alleging that the layoff
was an unfair labor practice.
The judge found that, by telephoning Argyle Charles
during the weekend, reporting in on February 10, and
ending the picketing, ‘‘most of’’ the economic strikers
made an unconditional offer to return to work and
were not obligated to make additional offers. The
judge further found that Argyle Charles recognized the
strikers’ conduct as expressions of an intent to return,
specifically accepted these expressions of intent, and
477MARTIKI COAL CORP.
5 There is no evidence that Charles Clearing intended or believed,
at the time of the layoff, that the underlying circumstances—reduc-
tion by a customer of a coal purchase contract in favor of lower spot
market prices—would effect a permanent reduction in its work force.
It is clear from the record that the market for coal was somewhat
unstable and unpredictable and that Charles Clearing had experi-
enced temporary layoffs in the past. In view of Argyle Charles’ ex-
pressions of intent to reemploy the laid-off employees and their rea-
sonable expectation that they would be recalled, and in the absence
of evidence that the layoff effected a permanent change in Charles
Clearing’s work force, we do not find, as urged by Respondents
Charles Clearing and Martiki, that the laid-off strikers’ status as stat-
utory employees had ended. See NLRB v. Fleetwood Trailer Co.,
389 U.S. 375 (1967).
6 We reject Respondent Martiki’s exceptions to the judge’s finding
that Bill Webb, Warren Jude, David Conrad, Brian Holbrook, Shelby
Moore, Doug Wilson, Brian Lowe, Daniel Hutchinson, Ronald
Blankenship, and Steve Boyd made unconditional offers. The record
shows that these employees all reported to Argyle Charles and were
laid off on Monday, February 10. We have found, contrary to the
Respondent’s assertion, that they were not obliged to make addi-
tional offers to return. Daniel Hutchinson testified only that he did
not make any attempt to contact Charles Clearing about regaining
employment after he was laid off on February 10. That testimony
does not preclude a finding that he sought reinstatement at the time
of the layoff by reporting to Charles Clearing that day. According
to striker Steve Boyd, there were about 30 strikers present when Ar-
gyle Charles handed out the layoff notices. There is no evidence that
Daniel Hutchinson was not among them. Although it is not entirely
clear from this record if Daniel Hutchinson reported to Argyle
Charles on February 10, we infer, consistent with the above evidence
and the judge’s findings, that Hutchinson did make an unconditional
offer to return by reporting in to Charles Clearing on February 10.
In any event, the record reflects that Daniel Hutchinson’s brother
David telephoned Charles Clearing approximately 4 months after the
layoffs to request reinstatement on behalf of both.
For substantially the same reasons, we reject Respondent Charles
Clearing’s exceptions to the judge’s finding that Ronnie Hall, Harold
Muncy, Stewart Preece, Mickey Jude, Frank Webb, David Hutch-
inson, James Steven Arnette, and Jeff Taylor unconditionally offered
to return. We also note the testimony of Mickey Jude and David
Hutchinson that they made postlayoff telephone calls to Charles
Clearing attempting to regain their jobs. James Steven Arnette and
Jeff Taylor testified that they requested reemployment before and
after the layoff.
Respondent Martiki also contends that there is no evidence to sup-
port the judge’s finding that Paul Hinkle, Freddy Moore, and Dewey
Jude made unconditional offers to return. We note, initially, that the
complaint alleged, but the judge did not find, that Dewey Jude was
unlawfully denied reinstatement. There were no exceptions to this
omission. Thus, we need not address Respondent Martiki’s exception
as it pertains to Dewey Jude. The record, however, does not support
a finding that Paul Hinkle and Freddy Moore made unconditional of-
fers to return or that they believed that application for reinstatement
would have been futile. Neither testified, and there is no other evi-
dence bearing on the matter. We therefore reverse the judge’s find-
ings with regard to Paul Hinkle and Freddy Moore and modify the
Order accordingly.
7 We disavow the judge’s characterization of Charles Clearing as
a ‘‘corporate shell’’ of Respondent Martiki and, generally, the
judge’s analysis of the appropriateness of piercing the corporate veil.
asserted that he would ‘‘try to get them back,’’ or ‘‘if
something opened up he would give them a call,’’ and
in some cases actually offered to rehire them at a later
date.5
We adopt the judge’s findings, except as otherwise
set forth.6 Even though Charles Clearing had imple-
mented a lawful layoff during the strike and had no
jobs to offer some of the strikers between the layoff
and the resumption of production starting in July 1992,
it had an obligation to maintain a preferential hiring
list of strikers who had made an unconditional offer to
return to work and to return those employees to work
when jobs became available. Fleetwood Trailer Co.,
supra. It failed to satisfy this obligation. When asked
at the hearing for a reason why he did not recall the
laid-off strikers, Argyle Charles responded that, ‘‘I
must have just looked over them at the time, later on.’’
The Supreme Court has held that the basic right to
reinstatement cannot depend on job availability as of
the moment when the unconditional offer to return is
filed. Id. at 381. The right to reinstatement can be de-
feated only if the employer can show a legitimate and
substantial business justification. Id. In our view, for-
getfulness and oversight do not qualify as legitimate
and substantial justifications. Accordingly, we adopt
the judge’s finding that by its failure to offer reinstate-
ment to the laid-off strikers named in this Decision and
Order, Respondent Charles Clearing violated Section
8(a)(1).
Martiki’s Status as a Joint Employer
The judge found that Respondents Charles Clearing
and Martiki are joint employers of Charles Clearing’s
employees and, thus, that Martiki and Charles Clearing
are jointly liable. We disagree. For the reasons that fol-
low, we find that Martiki and Charles Clearing were
joint employers, but only until sometime in March or
April 1992.7
The joint-employer concept does not depend on the
existence of a single integrated enterprise. NLRB v.
Browning-Ferris Industries, 691 F.2d 1117, 1122 (3d
Cir. 1982). The test for determining if two separate
business entities are joint employers is whether the en-
tities share or codetermine matters governing the es-
sential terms and conditions of employment. Id.
Here, as set forth in detail in his decision, the judge
found that Charles Clearing’s employees were paid
solely by Charles Clearing. He found, however, that
Martiki managers and supervisors historically had ef-
fectively recommended job applicants to Charles, ad-
ministered preemployment tests, and approved hiring
decisions. They also had suggested and approved em-
ployee transfers from one type of work to another.
Charles Clearing typically had employed only one su-
pervisor per shift on the entire Martiki premises, and,
partly out of necessity, Martiki supervisors had man-
aged and directed the work of Charles Clearing em-
ployees on a regular and substantial basis. Martiki and
Charles Clearing supervisors had engaged in meetings
twice a day to coordinate work to be done. Martiki su-
pervisors and managers had been significant partici-
478 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Muncy was called as a witness by the General Counsel. The
judge generally credited the General Counsel’s witnesses regarding
working conditions and circumstances at the worksite. Bailey was
not laid off and remained employed by Charles Clearing at all rel-
evant times.
pants in establishing work schedules and assignments
of Charles Clearing employees, including overtime, ap-
proval of leave, and deciding where and how work
would be done. Although Charles Clearing had main-
tained an office in a trailer on the Martiki site separate
from Martiki’s offices, Charles had no telephone and
used Martiki’s phone. Thus, employees called in sick
to the Martiki office. Martiki had used its own vehicles
to transport Charles Clearing’s employees between
Charles Clearing’s trailer and various worksites.
In the above circumstances, we agree that Charles
Clearing and Martiki were joint employers prior to
March-April 1992.
The judge rejected the contention of both Charles
Clearing and Martiki that in March or April 1992
Martiki took action to sever the joint-employer rela-
tionship. The judge found significant two evidentiary
factors: (1) the record contains only one document re-
lating to the alleged changes—a March 29, 1993
memo prepared by Martiki Operations Manager
Houser listing 13 instructions to Martiki supervisors,
and (2) inconsistent testimony regarding the month
when the changes were implemented. Thus, he found
that Martiki did not clearly establish the alleged
changes as a matter of fact. We do not agree that the
asserted paucity of documentary evidence or the lack
of proof of a precise implementation date negates the
existence, in fact, of a changed relationship, particu-
larly in view of record evidence not discussed by the
judge.
Managers and supervisors who testified for Charles
Clearing and Martiki agreed that, because of concerns
raised by the March 25 unfair labor practice charges,
supra, Martiki initiated and Charles Clearing imple-
mented changes. These changes were made with the
express intent of disentangling Martiki from Charles
Clearing’s daily operations and control of its work
force. John Stucker, Martiki general superintendent,
testified that Respondent Martiki instructed Operations
Manager Houser to require Charles Clearing to add ad-
ditional supervision ‘‘on the hill,’’ to obtain its own
telephone and to obtain a van for use in transporting
its own employees to their worksites. The twice-daily
Charles Clearing/Martiki joint supervisory meetings
stopped, and Martiki supervisors ceased giving instruc-
tions to Charles Clearing employees. Charles Clearing
Operations Manager Houser testified that he ordered
that the changes be made and that Martiki ceased
prehire testing of Charles Clearing job applicants.
Argyle Charles confirmed that the daily meetings
between Charles Clearing and Martiki foremen had
ended, that he hired additional foremen, and purchased
vehicles to transport his employees to their worksites.
Charles Clearing Foreman Parker corroborated Argyle
Charles’ testimony. Charles Clearing employee Wanda
Bailey testified that Respondent Charles Clearing has
its own telephone. Additionally, reemployed striker
Harold Muncy testified that he had not received in-
structions from anyone at Martiki since he returned to
work in July 1992. Wanda Bailey testified that since
February 1992 she has not received instructions or as-
signments (including overtime) or sought approval of
time off from a Martiki supervisor.8 This evidence is
consistent with the list of instructions to Charles Clear-
ing supervisors contained in Houser’s March 29, 1993
memo and the record does not contain any unequivocal
evidence to the contrary.
We find the foregoing evidence persuasive and we
conclude, contrary to the judge, that Respondent
Martiki effectively severed the joint-employer relation-
ship before the laid-off strikers were unlawfully denied
reinstatement starting in July 1992. In that regard, we
do not agree that Martiki’s limited role in Charles
Clearing’s hiring of new employees, starting in July
1993, warrants a different conclusion. The record
shows that, at most, Martiki supervisors (1) rec-
ommended applicants who subsequently were hired
independently by Charles Clearing, and (2) provided
Charles Clearing application forms to applicants and
either delivered the completed forms to Charles Clear-
ing or instructed the applicants to do so. There is no
evidence that Martiki exercised any control or influ-
ence over Charles Clearing’s postlayoff hiring deci-
sions. Argyle Charles described Martiki’s role as
‘‘[t]hey just told me they thought they would make
good employees . . . they never insisted I’d hire them.
They just give them a recommendation.’’
In summary, we have found that Respondent Charles
Clearing violated Section 8(a)(1) of the Act by failing
to reinstate the identified laid-off economic strikers.
We reverse the judge’s finding that Martiki was a joint
employer of Charles Clearing’s employees when the
unfair labor practice was committed. Accordingly, we
find that Martiki cannot be held liable for Charles
Clearing’s unlawful failure to reinstate the laid-off
strikers or for their resulting backpay. Further, because
we have found that Martiki is not a joint employer
with Charles Clearing, we need not decide the status
of Martiki’s parent company, Respondent Mapco Coal,
Inc. Accordingly, the complaint allegations relating to
Respondent Mapco Coal and Respondent Martiki Coal
are dismissed.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
479MARTIKI COAL CORP.
1 All following dates will be in 1992 unless otherwise indicated.
Charles Clearing Contractor, Inc., Lovely, Kentucky,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Failing and refusing to reinstate or to recall
laid-off economic strikers to their former or substan-
tially equivalent positions because they engaged in
protected concerted activities.’’
2. Substitute the following for paragraph 2(a).
‘‘(a) Offer Steve Arnette, Ron Blankenship, Henry
Boyd, Steve Boyd, David Conrad, Willis Fletcher (on
an unconditional offer to return to work), Craig Hale,
Ronnie Hall, Paul Hinkle (on an unconditional offer to
return to work), Brian Holbrook, Daniel Hutchinson,
David Hutchinson, Mickey Jude, Warren Jude, Brian
Lowe, Freddy Moore (on an unconditional offer to re-
turn to work), Shelby Moore, Harold Muncy, Stewart
Preece, Chester Ramey, Jeffrey Taylor, Jonathan Tay-
lor, Leandis Taylor, Douglas Wilson, Bill Webb, and
Frank Webb immediate and full reinstatement and
make them whole, with interest, for the losses they in-
curred as a result of the failure to reinstate them in the
manner specified in the remedy section of the judge’s
decision.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT interfere with, restrain, or coerce our
employees in the exercise of rights guaranteed them in
Section 7 of the Act by failing and refusing to reinstate
or to recall laid off economic strikers to their former
or substantially equivalent positions because they en-
gaged in protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Steve Arnette, Ron Blankenship,
Henry Boyd, Steve Boyd, David Conrad, Willis Fletch-
er (on an unconditional offer to return to work), Craig
Hale, Ronnie Hall, Paul Hinkle (on an unconditional
offer to return to work), Brian Holbrook, Daniel
Hutchinson, David Hutchinson, Mikey Jude, Warren
Jude, Brian Lowe, Freddy Moore (on an unconditional
offer to return to work), Shelby Moore, Harold Muncy,
Stewart Preece, Chester Ramey, Jeffrey Taylor,
Leandis Taylor, Douglas Wilson, Bill Webb, and Frank
Webb immediate and full reinstatement and make them
whole, with interest, for the losses they incurred as a
result of our failure to reinstate or recall them to their
former or substantially equivalent positions, in the
manner specified in the remedy section of the judge’s
decision.
CHARLES CLEARING CONTRACTORS, INC.
Vyrone A. Cravanas, Esq., for the General Counsel.
Thomas P. Gies, Esq. and Glenn D. Grant, Esq., of Wash-
ington, D.C., for Respondent Martiki Coal Corporation.
Susan E. Chetlin, Esq., of Lexington, Kentucky, for Re-
spondent Mapco Coal, Inc.
C. Tom Anderson, Esq., of Pikeville, Kentucky, for Respond-
ent Charles Clearing Contractor, Inc.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter was heard in Prestonburg, Kentucky, on March 23–
26 and in Huntington, West Virginia, on April 8 and 9, 1993.
The proceeding is based on a charge filed September 23,
1992,1 by Bill R. Webb, an individual. The Regional Direc-
tor’s complaint, dated November 1992, alleges that Respond-
ents Martiki Coal Corporation and Mapco Coal, Inc. are sin-
gle employers; that Charles Clearing Contractor, Inc. and
Martiki Coal Corporation are joint employers within the
meaning of the Act; and that Charles Clearing violated Sec-
tion 8(a)(1) and (4) of the Act by failing to recall laid-off
employees who engaged in protected concerted activities and
who filed or participated in the investigation of prior unfair
labor practice charges.
On a review of the entire record in this case and from my
observation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent Charles Clearing is engaged in mining coal
near Lovely, Kentucky, under contract with Respondent
Martiki Coal. The latter is affiliated with Respondent Mapco
Coal and during the 12-month period ending July 31, 1992,
Respondents Martiki and Mapco sold and shipped from their
Lovely, Kentucky facility goods valued in excess of $50,000
directly to points outside the Commonwealth of Kentucky
480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Martiki later successfully explained to the Board that this cutback
was based on valid business reasons due to contract reductions by
a major customer. This would appear to make its contemporaneous
claim that is suffered a 30,000 ton loss of sales as a result of the
strike to be misleading.
3 Willis Fletcher testified that he learned of the layoff in a con-
versation with Charles on Friday (when there were only four persons
on the picket line), in which Charles told several individuals they
would be laid off on Monday because he had been cut back by
Martiki. Shelby Moore testified that he learned of the layoff in a
conversation with Charles on Sunday morning, and that Charles told
him that he had been laid off because he had been cut back to 50
employees. Hank Webb testified that on Saturday Charles told him
that he did not have any openings, because he had already filled his
complement of 50 employees. Brian Holbrook testified that he called
Charles on Saturday and was told that he already had 50 employees.
James Arnette testified that he called Charles on Sunday and was
told he was laid off.
and Respondent Charles Clearing provided services valued in
excess of $50,000 during this period to the other Respond-
ents.
Accordingly, it is concluded that at all times material Re-
spondents, collectively and individually, have each been an
employer engaged in operations affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Charles Clearing, a Kentucky corporation (incorporated
February 19, 1991), whose sole shareholder and president is
Argyle Charles, is engaged in mining coal pursuant to a writ-
ten 1988 contract with Martiki Coal executed when Charles
Clearing was a sole proprietorship.
Charles Clearing essentially provides labor for the oper-
ation of the Martiki surface mine but also does sporadic tim-
ber clearing approximately 3 months a year. Charles
Clearing’s employees operate Martiki’s equipment on that
company’s minesite and is compensated at an hourly rate.
Martiki’s Lovely, Kentucky minesite otherwise specifically is
identified as a source of production of tonnage, sales, and
coal reserves for Respondent Mapco Coal in its annual report
for 1991.
Martiki’s surface mining operation in Martin County Ken-
tucky is the first surface mine in Appalachia to be mined
with a dragline using the mountaintop surface removal meth-
od of mining. The Martiki leasehold is approximately 20–25
square miles, and over 6000 acres have been mined or re-
claimed to date. Martiki shipped approximately 1.7 million
tons of coal for its onsite preparation plant in 1992. After the
mining operation is concluded, Martiki conducts an extensive
reclamation operation. Reclamation includes the use of grad-
ers and bulldozers to smooth out the disturbed land. After a
section of land has been graded, it is seeded with grass
through a hydro-seeder operation. Prior to 1985 Martiki used
its own employees for all mining activities, but it laid off all
but salaried employees at that time.
Respondent Charles Clearing currently (April 1993) has
approximately 78 employees at the minesite, 2 more than it
had in February 1992. Employees Warren Jude and Wanda
Bailey were hired by Charles Clearing and assigned to oper-
ate hydro-seeding equipment on areas being reclaimed. They
were paid at a rate of $6 per hour, while other employees
hired by Clearing were being paid $9.50 per hour. Jude re-
peatedly asked Clearing’s owner, Argyle Charles, to be paid
the same as the other employees, but was put off. In that re-
gard, Jude testified that Charles told him that he needed the
go ahead from William Houser, operations manager for
Martiki. When Charles hired a new rock truckdriver and
began paying the driver $9.50 per hour, Jude decided to go
on strike and, when he arrived for work on the morning of
Monday, February 3, he set up a picket line on the road to
Respondent Martiki’s mine, by putting up a sign which read
‘‘on strike.’’ None of the other Charles Clearing employees
crossed his picket line. During discussions that morning, the
employees decided that they were all underpaid and adopted
Jude’s cause as their own. Over the course of the next few
days, Charles unsuccessfully solicited his employees to return
to work, stating that Martiki would pull his contract. On Feb-
ruary 4, Martiki informed Charles Clearing, in writing, that
unless Clearing’s employees returned to work that afternoon,
Clearing would be in material breach of their contract and
Martiki would seek termination of the agreement and Charles
then told the employees about Martiki’s letter. On Tuesday,
the employees indicated they were not returning to work
without a raise. When the strike continued, Charles unsuc-
cessfully attempted to get Martiki to give him more money
per employee. (In 1990 Charles initiated a renegotiation of
the contract terms of an increase to $15.50 an hour from $14
an hour.) On Wednesday, Martiki obtained a local court re-
straining order against the picketers and the number of pick-
ets was thereafter reduced to four people. In a deposition re-
lated to the restraining order Martiki claimed a purported loss
in sales of 30,000 tons (eight shifts), due to the strike.
On February 6, about 32 of the approximately 78 striking
employees returned to work. The following day, Martiki met
with Charles and advised him that Martiki had decided to cut
back production at the mine.2 Charles determined that about
50 persons would be sufficient and attempted to relay the in-
formation to the striking employees. He decided to keep the
32 employees who were at work on February 6, along with
the first 18 employees to call him over the weekend and ex-
press a willingness to cross the picket line.
On Friday night and over the weekend, Martiki General
Mine Foreman John Muncy spoke with Charles Clearing em-
ployees Douglas Wilson and Jeff Taylor. Wilson testified
that on Tuesday Muncy had told a ‘‘friend’’ that he wanted
Wilson to call him. When he spoke to Muncy, Muncy ad-
vised him he should report to work. On Friday after he had
heard that Charles was supposed to contact them about
whether they had jobs, he called Muncy again. Muncy said
he’d have his job and Charles would call. No call was forth-
coming so Wilson called again on Sunday and Muncy said
not to worry and to be at work on Monday and that he had
a list of laid-off people. He then said he couldn’t find the
list but remembered that Willis Fletcher, Bill Webb, Steve
Boyd, and Stewart Preece were on the list, but not him. On
Monday, however, he reported to work and was told by
Charles that he already had his 50 men and he and the rest
were laid off. On Friday, Muncy also called Taylor and
asked when he and his father (Leon) ‘‘was going to return
to work,’’ but on Sunday Charles called the Taylors’ and
told them he was sorry but he had to let them go as they
had cut him back to 50 men.3
Stewart Preece and Mickey Jude testified that they re-
ceived their layoff slips from Charles personally on Monday
afternoon, at a church parking lot near the Martiki property.
481MARTIKI COAL CORP.
Douglas Wilson’s layoff slip was delivered by his wife who
is an employee of Martiki Coal.
Charles testified that ‘‘by the weekend’’ he had 30 em-
ployees working and that 20 employees who contacted him
over the weekend went back to work. It was stipulated that
the following 26 employees were laid off February 10: Steve
Arnette, Ron Blankenship, Henry Boyd, Steve Boyd, David
Conrad, Willis Fletcher, Craig Hale, Ronnie Hall, Paul
Hinkle, Brian Holbrook, Daniel Hutchinson, David Hutch-
inson, Mickey Jude, Warren Jude, Brian Lowe, Freddy
Moore, Shelby Moore, Harold Muncy, Stewart Preece, Ches-
ter Ramey, Jeffrey Taylor, Jonathan Taylor, Leandis Taylor,
Douglas Wilson, Bill Webb, and Frank Webb. Charles testi-
fied that more than 20 people had called him on the weekend
and he told them he ‘‘would try to get them back.’’
On brief, Respondent Charles Clearing admits that it did
not rehire all the employees that either called or showed up
for work, but asserts that the reason for the failure to rehire
these employees is that there were no openings at the spe-
cific time that they called and that thereafter, Charles simply
forgot that they had called and he did not recall them.
Charles also testified that throughout the course of his busi-
ness, he has had several other layoffs and hirings, but that
he has no set procedures or guidelines that he uses in such
events.
In July 1992, the demand for operation by Martiki Coal
was increased such that Charles Clearing needed to operate
at the same level that had existed at the time of the February
layoff and it began hiring. Henry Boyd, Harold Muncy,
Chester Ramey, and later Ronnie Hall, all former picketers,
were recalled either initially or shortly thereafter. (Muncy,
Boyd, and Ramey were three of the several employees that
showed up on the morning of February 10.) There were nu-
merous new hirings throughout midsummer and early fall of
1992 that brought Charles Clearing employment to 76 peo-
ple. The asserted major source of people for the jobs were
job applications filed with Charles Clearing. No effort was
made to contact ‘‘laid-off’’ employees, however, one or more
were ‘‘rehired,’’ if they contacted Charles at an opportune
time. Jonathan Taylor was called by Charles in October and
offered a job operating a loader and was told his prior job
operating a shovel was filled. Craig Hale was a warehouse-
man at the time of his layoff. This position never was re-
filled, however, Hale was put back to work as a truckdriver
in August.
Between the time hiring began on May 27 and October 4,
4 laid-off employees returned and 36 new employees were
hired (4 of whom also were terminated after 4 weeks or
less). Two of these were part-time general laborers, however,
two were oilers and the rest were truckdrivers or equipment
operators, including two shovel operators hired July 6 and
August 10, respectively.
Meanwhile, on March 25, Warren Jude filed a charge on
behalf of other similarly situated employees alleging that the
layoffs were an unfair labor practice. The Regional Director
conducted an investigation and it is stipulated that the charge
was dismissed by the Regional Director. The charges in this
proceeding were filed on September 23.
III. DISCUSSION
Although the February 10 layoff itself is not alleged as an
unfair labor practice in this proceeding, the Employers’ fail-
ure to recall laid-off employees, occurred within 6 months of
the filing of the instant charge on September 23, and these
occurrences arose out of the actions and conditions that were
in place at the time of the layoffs on February 10. Accord-
ingly, the record was developed and will be evaluated to
consider whether primary employer Charles Clearing violated
the Act as well as to determine if Martiki Coal was a joint
employer at a relevant time such that it should be found to
bear a responsibility for any remedy found to be warranted
and whether Mapco Coal is a single employer with Martiki
Coal such that it also would share a responsibility for any
remedial liability.
A. The Basic Unfair Labor Practice Charge and
Employer Charles Clearing Contractors
It is clear that the employees’ February economic strike
over wages was an activity protected by Section 7 of the
Act. Wanda Bailey (whose job was the same as Warren Jude,
the initial striker) was called by Respondent Charles Clearing
and testified that she had talked with Jude about their wages
being less than newly hired truckdrivers but learned of the
strike and that it was on behalf of her and Jude’s getting
equal wages when she saw his truck and signs and 20 or
more people. She honored the picket line and later that day
spoke with Owner Charles about the pay and he said he had
to ‘‘go up on the hill and talk with Bill (Houser).’’ She said
that about 3 hours later he came back and said he would give
‘‘up’’ $9.50 if everyone would go back to work. For some
unexplained reason this ‘‘offer’’ was never clearly commu-
nicated to all the employees and Bailey, along with others,
continued their picketing and apparently asserted a desire for
a general wage increase.
Bailey testified that she showed up for work the Tuesday
after the strike, not Monday, because she ‘‘had never gotten
a clear answer’’ if she had her job or not as Charles had told
her on the weekend when she called that he thought he had
his 20 but if he needed her he would call her as he first
‘‘had to talk to Bill.’’ Charles did call her that Monday but
at 8 a.m. after the shift had started. She returned on Tuesday
and began receiving pay at the higher rate demanded in the
strike. Here, it appears that Bailey was not part of the initial
20 to be retained but was recalled after Charles got some ad-
vice from Martiki’s operations manager and after Douglas
Wilson was selected for layoff. Otherwise, however, it is
clear that the employees who had not returned by Friday or
who had not been selected as part of the 20 workers needed
to fill the Employer newly reduced complement of 50 em-
ployees were placed on layoff and specifically given layoff
slips. It also is clear that these laid-off strikers subsequently
but unsuccessfully attempted to pursue unfair labor charges
because of their layoff.
Under the principles laid down by the Supreme Court in
NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (1967), and
the Board in Laidlaw Corp., 171 NLRB 1366 (1968), an eco-
nomic striker has continued status as an employee and enti-
tlement, on request, to be returned to his former job, or a
substantially equivalent position absent proof of ‘‘legitimate
and substantial business reasons.’’
With the exception of striker Willis Fletcher, the record
clearly shows that after Charles announced he was being re-
quired to cut back to 50 employees, most of the strikers
made unconditional offers to return to work by calling him
482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on Friday or the weekend, by showing up at work on Mon-
day, February 10, or by subsequently calling him. Thereafter,
it was the Respondent who bore the burden of seeking out
and contacting the employee and the mere passage of 3 to
10 months did not limit the employees’ fundamental right to
reinstatement, see U.S. Mineral Products Co., 276 NLRB
140, 142 (1985).
With regards to Willis Fletcher there is some ambiguity in
the record concerning whether or not he made an uncondi-
tional offer to return. Charles testified that he was under the
impression that the employees were refusing to work for
$9.50 an hour because Fletcher said on Friday afternoon that
he wouldn’t work for $9.50 an hour and on Monday the 10th
after being given his layoff slip; ‘‘asked to come eat dinner
with him anytime, but he would not work for $9.50 an
hour,’’ Fletcher did not recall the conversation on Friday ex-
cept to the extent that Charles said he was going to lay ‘‘us’’
off. When questioned by Respondent’s counsel he denied
saying to Charles that he ‘‘would rather be on welfare than
work for $9.50 an hour,’’ but this question does not confirm
with Charles’ subsequent testimony of what allegedly was
said, but Fletcher remembered that he said: ‘‘Now Argyle
(Charles) I don’t have a thing in the world against you.’’ He
also said he called Charles twice when the phone was an-
swered by Mrs. Charles and Charles was out. He also agreed
that he and Bill Webb did most of the talking, but that Webb
did more. Webb testified Fletcher did.
Here, by laying off all of the employees who were not
among the first 50 to offer to return to work Respondent oth-
erwise demonstrated to them the futility of applying further
for reinstatement, compare Cargill Poultry Co., 292 NLRB
738, 740 (1989), and the Board’s discussion of Abilities &
Goodwill, Inc., 241 NLRB 27 (1979).
Despite the Respondent’s attempts to distinguish the later
two cases, the rational of these cases appears to be applicable
to the General Counsel’s contentions that Respondent
Charles’ act of specifically laying off the several employees
who were not among the first 50 to return was the cause of
their unemployment on and after February 10, not the strike
that had occurred the previous week. Although not every one
attempted to call Charles, several of those who did call on
the weekend were denied jobs, as were several others who
appeared at the jobsite ready to work on February 10, and
as were several who made phone inquiries later in the year.
This, of course, further indicates the futility for employees to
make specific additional pleas for reinstatement. Moreover, it
is clear that the former strikers clearly signified their intent
to return to work by reporting to work and otherwise calling
(as well as by ending all picketing), and that this was recog-
nized by Charles who specifically accepted them and as-
serted that ‘‘he would try to get them back’’ or that he
would ‘‘call and let them know,’’ or later said ‘‘if something
opened up he would give them a call,’’ or called them later
and offered rehire on positions on other equipment.
Yet, when certain vacancies occurred and when the time
came in July when Martiki authorized increased production
and an expansion in employment levels to that which existed
prior to the mass layoff, Charles disregarded his promises
and thereafter (with some exceptions), ‘‘simply forgot’’ that
the laid-off employees were there.
Other than the initial, collective protest and strike, one in-
tervening event had occurred, the filing of charges by the
laid-off employees on March 25, which asserted that the lay-
offs were an unfair labor practice. Based on the timing of
Respondent’s actions in hiring new workers rather than re-
calling laid-off employees, shortly after the Region declined
to issue a complaint, I infer a discriminatory motivation in
its actions. Otherwise, however, no specific finding regarding
motivation is necessary, because the employer’s conduct
under these circumstances is inherently destructive of em-
ployee interest and the employees’ entitlement to recall under
the principles of Fleetwood Trailer and Laidlaw Corp.,
supra.
Most of the laid-off employees were not called or in-
formed that Charles was hiring or returning to its former
staffing levels. They were not offered their old job, but in-
stead new hires were made for most of the positions in dis-
regard of Respondent’s Laidlaw obligations and Charles’
promises. Also, no valid business reason is advanced by the
Respondent that would refute the showing that it
discriminatorly refused to recall laid-off employees because
of a motivation derived from their filing of charges with the
Board and I find that the General Counsel has shown persua-
sively that this failure to recall was a violation of Section
8(a)(1) and (4) of the Act, as alleged.
As noted, the testimony of Fletcher and Charles differed
regarding statements made on February 10. Based on my ob-
servations of Fletcher’s demeanor and the tenor of the con-
versations involved, I find that Fletcher tended to be some-
what flamboyant and independently principled in nature. I
credit Charles’ testimony that after Fletcher was laid off
Fletcher made a defensive, face-saving comment to the effect
that he personally didn’t want to work for only $9.50 an
hour. Accordingly, Fletcher’s offer to return was conditional
and, as there is no evidence that he subsequently clarified his
position with an unconditional offer, I find that Charles
Clearing was not obligated to offer him reinstatement.
Otherwise, I find that each of the other discriminatees
made a valid unconditional offer to return or otherwise were
excused from making a specific offer because of the futility
of his situation after being laid off. In this connection, I also
note that a new employee was hired as a shovel operator at
that same time laid-off shovel operator Jonathan Taylor was
told the job was filled (but was offered a job operating a
loader), and under the circumstances, it therefore was not a
valid recall offer and Taylor did not waive his right to recall
to his former job.
Accordingly, Charles Clearing Contractors is obligated to
remedy the found unfair labor practices.
B. The Joint-Employer Status of Martiki
Coal Corporation
The court of appeals in NLRB v. Browning-Ferris Indus-
tries, 691 F.2d 1117, 1122 (3d Cir. 1982), offered this fol-
lowing definition substantially applicable to both joint-em-
ployer and single-employer situations:
A ‘‘single employer’’ relationship exists where two
nominally separated entities are actually part of a single
integrated enterprise so that, for all purposes, there is
in fact only a ‘‘single employer.’’ The question in the
‘‘single employer’’ situation, then, is whether the two
nominally independent enterprises, in reality, constitute
only one integrated enterprise. . . . In answering ques-
483MARTIKI COAL CORP.
4 One new employee, Larry Lyons, was a dozer operator who was
hired on the recommendation of Martiki Supervisor Danny
VanHoose on May 5 and worked until June 4. VanHoose also rec-
ommended the hiring of Lance Combs who was hired as a part-time
laborer on September 8.
tions of this type, the Board considers the four factors
approved by the Radio Union court. (380 U.S. at 256,
85 S.Ct. at 877): (1) functional integration of oper-
ations; (2) centralized control of labor relations; (3)
common management; and (4) common ownership.
. . . ‘‘Single employer’’ status ultimately depends on
all the circumstances of the case and is characterized as
an absence of an ‘‘arm’s length relationship found
among unintegrated companies.’’ [Citation omitted.]
Although Respondent Martiki does not concede joint-em-
ployer status on or before February 10 when the layoffs oc-
curred, it especially argues that certain of its practices
changed after February 10 (but also after March 25 when the
unfair layoff charge was filed), and that at any subsequent
point thereafter, within the 10(b) 6-month period prior to the
filing of the charge on September 23, it was not exercising
control over Charles Clearing and thus was not a joint em-
ployer with Charles Clearing when the unfair labor practices
occurred, most specifically, on and after July 6 when the first
group of new hires (but including Henry Boyd Jr. who was
a laid-off employee) began to be called to work in response
to Martiki’s demands on Charles Clearing to meet increased
production goals and to return to prelayoff employment lev-
els. Respondent Martiki’s most significant action in this re-
spect is reflected in a memo dated ‘‘3–29–93,’’ well after the
instant charge was filed. This memo, prepared by Operations
Manager Houser, contains a list of 13 instructions for Martiki
supervisors which includes items such as: ‘‘Don’t tell or as-
sign CCC (Charles Clearing) men what to do. Tell Fore-
man,’’ ‘‘Don’t pass out CCC applications forms to anyone,’’
and ‘‘Problems—No Discipline—don’t get between them and
their foreman.’’ Significantly, this is the only document of
this nature (as reflected by this Respondent’s response to the
General Counsel’s subpoena requesting all such records be-
tween February 10, 1992, and the present), relating to
changes in the day-to-day operational relationships between
Martiki and Charles Clearing.
Although Respondent Martiki asserts that it changed cir-
cumstances in the relationship prior to the 10(b) period, that
is not clearly established as a matter of fact. Some changes,
such as the abandonment assertedly ‘‘in February’’ of the
prior practice of daily joint meetings of supervisors from
both companies to discuss work for the day were said to
have occurred. Houser, however, testified that he was ad-
vised by his supervisor, Superintendent John Stucker, to
make some changes in operational procedures and that he
implemented changes in March and April, as an ongoing
phase, and he testified that he told his staff: ‘‘In March or
April, I’m not sure when’’ that they ‘‘would not direct
Charles Clearing people whatsoever.’’ Otherwise, there is lit-
tle, if any, specific evidence of when changes occurred in
practices involving its supervisory type relationship with
Charles Clearing employees (for example, Charles testified
that he got a van to transport his workers around the jobsite
but did not state when), and it apparently was necessary for
Houser to amplify or formalize his asserted changes in a list
reflected in the 13 items set forth in Houser’s March 29,
1993 memo, Respondent’s only document on the subject.
This, of course, was well after the 10(b) period and, ac-
cordingly, I conclude that Respondent Martiki has not shown
that it significantly changed its joint-employer type practices
and relationships, otherwise discussed below, prior to 6
months before the charge was filed. This conclusion is rein-
forced by Charles who credibly testified that 13 named per-
sons he hired on and after new hiring began in July were
recommended by Martiki supervisors (including Houser) and
two were recommended by Pontiki supervisors (Pontiki is
another coal company affiliated with Martiki and Mapco
Coal), and that these applicants brought in applications on
Charles Clearing forms that the Martiki supervisors had got-
ten from Charles Clearings’ office trailer. Accordingly, I fur-
ther find that Martiki cannot use the 10(b) rationale as a
valid excuse for avoiding contingent liability because of its
prior joint-employer status.
Otherwise, however, I would also find that the status of
these parties on February 10 would be controlling inasmuch
as this was when the initial and underlying act occurred (the
layoff), which, although not an unfair labor practice in and
of itself, triggered the subsequent events in July through Oc-
tober (the failure and refusal to recall these laid-off employ-
ees), which are shown to have been a violation of the Act.
Respondent Martiki also argues that it was not involved in
the alleged unfair failure to rehire employees and therefore
should not be held to any responsibility for Charles
Clearing’s unlawful action. Here, I am satisfied, as further
discussed below, that the General Counsel has shown that the
two employees are joint employers of a group of employees
and that Respondent Charles Clearing illegally failed and re-
fused to reemploy laid-off members of the jointly managed
work force. Therefore, the burden is on Respondent Martiki,
who here seeks to escape liability for its joint-employers’ un-
lawfully motivated action, to show that it neither knew, nor
should have known, of the reason for the other employer’s
action or that, if it knew, it took all measures within its
power to resist the unlawful action. See Capitol EMI Music,
311 NLRB 997 (1993).
Martiki obviously was well aware of the expansion of its
co-Respondent’s work force in and after July as it was done
at its request in order to increase production levels and it
also was well aware of all the background events surround-
ing the layoff and it also caused the layoff (but not illegally),
when it decreased production in February. It was involved in
the dismissed charge related to that event, it was represented
by knowledgeable counsel, and it knew or should have
known that the laid-off employees had potentially enforce-
able expectation of being recalled. It is not shown that it
took any measures within its power to resist or advise against
Charles Clearing’s action in hiring new employees rather
than recalling laid-off employees. To the contrary, the record
here persuasively shows that it aided and abetted that illegal
action through the actions of its supervisors and those of its
affiliated company, Pontiki Coal, in procuring applications
and recommending specific persons who were not laid-off
employees for the now available positions formerly held by
the laid-off employees.4
484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 In this connection the spelling on pp. 650 and 651 of the tran-
script of named employees William and Frank Jarrell is corrected
from what was incorrectly transcribed as ‘‘Geralds.’’
These recommendations were endorsed and followed by
Charles Clearing for approximately 12 positions5 that could
have been offered to laid-off employees. Over a dozen jobs
as truckdrivers and equipment operators went to other new
hires and only 4 of 26 former employees were recalled to
their former jobs. Accordingly, I find Respondent Martiki
has not shown a valid reason why it should escape liability
for the involved unlawful action. Rather, its actions in effec-
tively recommending the hiring of employees as late as July,
August, and September clearly shows that despite an aware-
ness that on and prior to February 10 it had been involved
in probable demonstrations of direction and control of the
Charles Clearing employees and despite an initial effort to
change some of its more blatant practices, it still had not di-
vorced itself from exerting its influence on the highly critical
elements of hiring and tenure of employment.
Turning now to a summary of the factors of record which
clearly support the General Counsel’s claim of single-em-
ployee status, I note that although the Respondent consist-
ently minimizes the extent or nature of some of the occur-
rences described in the testimony of the General Counsel’s
witnesses, I find that these witnesses displayed a basic per-
sonal integrity and honest and down to earth demeanor that
persuades me that the elemental substance of their testimony
should be found credible. For example, Martiki witness
James McCoy testified that he worked with Steve Boyd
while he operated a grader (but not the dozer) and that Boyd
got his orders from Charles Clearing Foreman Parker 95 per-
cent of the time as he did. Boyd, however, testified about
who gave him instructions as follows:
When I ran the dozer, which was 3 to 4 months, John
Muncy usually, I’d say 95 percent of the time, told me
what to do. There are other times when Bill Houser
would tell me what to do and occasionally Doug would.
But I’d say 95 percent of the time was John Muncy.
Boyd then answered it was about the same when he was
on the grader, plus Martiki Supervisor VanHoose if reclama-
tion work required grading. McCoy based his knowledge of
Boyd’s work orders on his recognition of voices on the
radio, which was the general means of communication with
truckdrivers and equipment operators, as all units were
equipped with radios. By implication, McCoy admits to at
least 5 percent of the employees daily instructions coming
from Martiki supervisors and I find Boyd’s testimony, while
probably exaggerated, to be indicative of factual involvement
by Martiki supervisors in the daily provision of on the job
instructions to Boyd to have been at least greater than 10
percent or more of the time, and I find that other employees
credibly testified that they were supervised by Martiki per-
sonnel on a regular, significant, and sustained basis.
In this connection, it is observed that Owner Charles usu-
ally did not engage in onsite production supervision of his
employees leaving only one Charles Clearing supervisor per
shift to supervise up to approximately 40 employees working
in different areas where Martiki had their day-to-day shift
foremen in various areas plus an operations manager and, oc-
casionally, a general superintendent.
To review the makeup and daily operation of the jobsite,
it is comprised of a leasehold area of 20–25 square miles
with over 6000 acres mined and in the process of being re-
claimed in a method known as ‘‘mountaintop surface re-
moval,’’ a method dependent on the use of dump trucks,
bulldozers, loader, and graders, and drag lines. Essentially all
the employees used in this primary phase of the operation,
except the drag line operators, were Charles County employ-
ees (the oiler who serves each drag line, however, was a
Charles Clearing employee). Other ‘‘subcontractors’’ pro-
vided such things as electrical, machinery maintenance, and
repair and blasting services and Martiki has directly em-
ployed personnel to operate the onsite preparation plant to
which the raw coal was delivered by Charles Clearing em-
ployees for washing, sizing, and transfer to railcar for ship-
ment.
In February 1992 Charles Clearing had approximately 76
employees over 2 shifts under the direct day-to-day super-
vision of its shift foremen, Herb Musick and Dough Parker,
with Owner Charles not regularly engaging in supervisory
activities. As noted, John Muncy was general foreman, Mat
Welch was pit foreman, Danny VanHoose was reclamation
foreman, and William Houser was operations manager (two
other supervisors, not directly related to this issue, supervise
blasting and administrative matters), and each of these super-
visors had frequent if not daily contact with the Charles
Clearing employees. The jobsite obviously is wide spread
and until some later date when Charles Clearing purchased
a van to transport workers from the parking area near its on
site trailer office, employees depended on other means to get
to their work areas, which included rides with Martiki super-
visors. It appears that Charles Clearing did not have a tele-
phone separate from Martiki until ‘‘sometime’’ after March
when General Superintendent John Stucker ‘‘required’’
Charles to get one. At this same time Stucker ‘‘requested’’
Charles to add to his own supervisors on the hill and gave
Houser instructions to ‘‘cease giving supervision’’ to Charles
Clearing employees. Stucker further testified he did so ‘‘be-
cause there were some problems brought to our attention on
the hill, because of an NLRB charge.’’
The record otherwise shows that when changes began to
be made, they were not initiated or promulgated by Charles
Clearing and this further support a conclusion that it was Re-
spondent Martiki who required Charles Clearing to make the
adjustments in the way it operates, which further evidences
Respondent Martiki’s control over its operations.
The substance of employee testimony, although minimized
by the supervisors, was often partially admitted to and I find
that Martiki’s supervisors normally and freely directed
Charles Clearing employees in the work schedules and as-
signments, as well as in a wide range of functions that are
common to an employer-employee relationship. Although
many of these acts may have been careless or thoughtless,
they were not unusual and they were not de minimis. Most
of the employees testified that although Musick or Parker
generally gave them instructions they were routinely given
instructions both at the beginning of a shift or during a shift
by Martiki Foreman Muncy and Welch and they considered
these Martiki supervisors to be their main bosses. Occasion-
ally they would be asked to work overtime or on weekends
by Martiki supervisors and did so when there would be no
Charles Clearing ‘‘bosses’’ there. Martiki supervisors offered
485MARTIKI COAL CORP.
Charles Clearing employees the opportunity to change jobs
(for example from truckdriver to dozer operator) and also
told employees, when asked, such things as to not worry but
just let that Martiki supervisor know, if they needed to take
time off. Martiki supervisors regularly tested prospective
Charles Clearing employees on their skills in operating
equipment and regularly recommended new employees. Just
as regularly, Charles endorsed these recommendations and
hired that person.
The functional integration of the Charles Clearing-Martiki
Coal relationship demonstrates that Charles Clearing is not
involved in some incidental support or accessorial service but
performs the basic and preeminent labor functions of the
overall enterprise, specifically the removal of overburden, ex-
traction of raw coal, onsite transportation, and reclamation.
As shown on the record and as discussed above, Martiki su-
pervisors have consistently played a significant roll in direct-
ing and controlling the actual employees’ activities. Martiki
also dominated in some of the factors generally considered
as indicative of independent contractor status. These stand-
ards apply whether the ‘‘person’’ alleged to be an independ-
ent contractor is an individual or a business entity.
Here, Martiki (or its parent) own the mineral rights and
controls the jobsite with respect to access and security and,
at the time relevant, sometimes provided transportation for
the involved employees. Except for one small dozer, a back
hoe, and a small dump truck, Martiki owned and supplied all
the equipment driven or operated by the Charles Clearing
employees. Although, in the past, Charles Clearing did con-
tract occasionally for other land clearing jobs, in the recent
past its work has been almost exclusively for Martiki (in
1990 it had a $600 contract with Martiki affiliate Pontiki
Coal for brush clearing that was awarded by Martiki Vice
President Dennis Jackson in his dual roll as vice president
of Pontiki). It also is compensated on per-hour work formula
and it has had no investment in equity and no participation
in risk, especially those related to productivity, except insofar
that it must provide unemployment and workman’s com-
pensation coverage. Mine safety and training for Charles
Clearing employees is shielded by the interposition of a sole
proprietorship owned by the mother of Martiki’s safety and
training director, however, the director works part time for
her mother and is seen by Charles Clearing employees as a
representative of Martiki in her involvement with them in
these matters. Although Martiki asserts that it does not exer-
cise meaningful control over Charles Clearing labor policies,
the record clearly shows to the contrary. Charles consistently
indicated to the employees that he had to check with Martiki
about permissible wage rates and, in fact, he only resolved
the basic wage dispute here after checking and clearing it
with Martiki. Martiki also influenced his labor policies by
deciding to cut back the work force at this time of a labor
dispute. The agreement between the parties may be termi-
nated on 30-day notice and is essentially an ‘‘at will’’ agree-
ment. Although the terms of the contract describe Charles
Clearing as an independent contractor and state that the
agreement does not create a joint-employer, single-employer,
or agency relationship, such language is merely self-serving
and does not control or limit the Board’s statutory rights and
obligation to make this determination.
Section 2(2) of the Act states that the term ‘‘employer’’
includes any person (i.e., one or more corporations) acting as
an agent of an employer. Section 2(3) of the National Labor
Relations Act provides that coverage is extended to ‘‘em-
ployees,’’ but not to ‘‘individuals having the status of an
independent contractor.’’ This express statutory exclusion of
independent contractors was not contained in the original
Act, but was added by Congress in 1974. The basic and con-
sistent purpose of the Act is to reach employees with the
protection of law. To recognize the operation of technically
separate legal entities so that one may avoid the policies of
the Act, to the potential detriment of the Board’s ability to
provide an effective remedy, would defeat the policy of the
Act were the concepts of single and joint employership not
held to a standard that recognizes the control aspects of any
relationship despite the illusion of a corporate veil or legal
manipulations that seek to mask the identity of the actual
controlling party.
In Standard Oil Co., 230 NLRB 967 (1977), the Board
used the general provisions of Restatement 2d, Agency § 220
(1985), and set forth standards which parallel the Restate-
ment, stating:
Among factors considered significant at common law
in connection with the ‘‘right to control’’ test in deter-
mining whether an employer relationship exists are (1)
whether individuals perform functions that are an essen-
tial part of the Company’s normal operation or operate
an independent business; (2) whether they have a per-
manent working arrangement with the Company which
will ordinarily continue as long as performance is satis-
factory; (3) whether they do business in the Company’s
name with assistance and guidance from the Company’s
personnel and ordinarily sell only the Company’s prod-
ucts; (4) whether the agreement which contains the
terms and conditions under which they operate is pro-
mulgated and changed unilaterally by the Company; (5)
whether they account to the Company for the funds
they collect under a regular reporting procedure pre-
scribed by the Company; (6) whether particular skills
are required for the operations subject to the contract;
(7) whether they have a proprietary interest in the work
in which they are engaged; and (8) whether they have
the opportunity to make decisions which involve risks
taken by the independent businessman which may result
in profit or loss. [Citation omitted.]
These provisions detail the more concise standards gen-
erally noted in single-joint employer cases and, when applied
to the record here, provide ample support for a conclusion
that Martiki Coal and Charles Clearing are joint employers.
While it clearly may be appropriate for Martiki to utilize
the services of another entity to perform jobsite services and
to validly gain advantages with respect to such things as in-
surance, taxes and workman’s and unemployment compensa-
tion with the regulations of other regulatory bodies, it cannot
evade responsibility under the National Labor Relations Act
for legal wrongs done to the workers who provided it with
the means to profit from the introduction of goods into com-
merce. The fact that its method of operations may be valid
for these other purposes does not shield it from fundamental
responsibility under the Labor Act where, as here, its actual
operations compromise the purported independent relation-
ship. Here, it has exercised consistent and sufficient influ-
486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ence on the allegedly independent operations of Charles
Clearing to such a degree that the operations have effectively
been those of a single-integrated enterprise.
Here, Martiki supported the creation of Charles Clearing,
which is effectively a corporate shell, and used it as an in-
strumentality to perform its necessary mining operations, op-
erations that could not be independently performed by
Charles Clearing because it lacked sufficient assets to obtain
and maintain the required trucks, loaders, and other nec-
essary equipment.
Although corporate boundaries were established, Martiki
consistently disregarded the formalities, failed to maintain an
arm’s-length relationship and so intermingled its operations
with those of Charles Clearing that they must be found to
be joint employers.
This conclusion is especially valid because here, Martiki
was not a noninvolved bystander in the principal event in
Charles Clearing’s violation of the Act, namely the hiring of
‘‘new’’ employees and the refusal to recall laid-off employ-
ees. Not only did Martiki, an experienced and sophisticated
business enterprise, not counsel Charles Clearing (or its own
supervisors) of its probable responsibilities to the laid-off
workers, it actively was a direct contributing cause to
Charles Clearing’s violation of the Act through the actions
of its supervisors who indisputably obtained Charles Clearing
application forms from Charles Clearing’s office trailer and
recommended approximately a dozen new employees for hire
(an effective recommendation as Charles had never turned
down a Martiki recommended prospect when he had an
opening), in lieu of at least remaining neutral and allowing
Charles Clearing the option to take some other course of ac-
tion.
Martiki has shared in the culpability of Charles Clearing
and, under the circumstances, the corporate veil should not
be allowed to shield it from liability where, as here, it has
profited from the use of Charles Clearing as its instrumental-
ity and a potential injustice to the discriminatees could result
if Charles Clearing should be incapable of satisfying the obli-
gation required to remedy the found violation of the Act. Ac-
cordingly, I conclude that a joint-employer relationship has
been established on the record and that Martiki Coal is liable
under the Act to remedy the unlawful acts found above.
C. The Single-Employer Status of Mapco Coal
Mapco Coal is one of several subsidiary companies (in-
clude Mapco Petroleum Inc., Mapco Natural Gas Liquids
Inc., and Mapco Transportation Inc., a pipeline carrier),
owned by Mapco Inc., a large publicly traded corporation.
For purposes of this inquiry it appears that none of these
other subsidiaries are involved in services or management re-
lated to Martiki Coal.
Mapco Coal ranks 20th in national coal production statis-
tics and is the parent corporation of Webster County Coal
Corporation, Pontiki Coal Corporation, South Atlantic Coal
Corporation, Mettiki Coal Corporation, White County Coal
Corporation, and Respondent Martiki, companies that operate
eight coal mines in four States: Kentucky, Illinois, Maryland,
and Virginia. Mapco Coal operates from offices located in
Tulsa, Oklahoma, and Lexington, Kentucky. It provides its
subsidiaries with coal marketing services, as well as certain
technical and administrative services under formal, written
service agreements that provide for payment by the subsidi-
aries.
Mapco Inc.’s 1991 annual report describes Mapco Coal’s
operations as ‘‘strategically diversified as to the type of coal
produced, location of operations, mining and transportation
methods employed, and customer base. Mapco’s Dotiki and
Retiki Mines in western Kentucky and the Pattiki Mine in
southern Illinois produce a high sulfur coal. The Martiki and
Pontiki Mines in eastern Kentucky produce a low sulfur,
high BTU steam coal utilizing surface and underground min-
ing methods.’’
General Superintendent John Stucker, who is responsible
for the day-to-day operations at the Martiki minesite, indi-
cated that he consults on policy decisions with his super-
visors in Lexington. He ‘‘talks to’’ superiors but does not
necessarily ‘‘consult’’ with anyone in Tulsa. For a 3- to 4-
year period prior to his Martiki position, Stucker was vice
president of engineering and planning for Mapco Land and
Development Company at Mapco’s Tulsa headquarters.
At Lexington, Dennis Jackson serves as vice president of
operations for Martiki as well as other Mapco subsidiaries
Pontiki and Toptiki. The latter is an underground mine that
sells its coal to Martiki. Pontiki coal has been blended with
Martiki Coal at Martiki or at a port of departure in Norfolk,
Virginia, in the past but not ‘‘recently.’’
Martiki receives a number of services from Mapco Coal
in administrative areas and in coal marketing and permitting,
especially in environmental and mining matters. Services are
provided pursuant to a formal, written service agreement
with provisions for payment set on an annual basis by
Martiki. (In 1992, Martiki paid Mapco Coal a total of
$1,615,875 for services, $364,609 for coal marketing,
$618,548 for coal administration and engineering services,
and $632,718 for corporate overhead, payroll, and accounting
services.) Otherwise, however, the agreement also specifi-
cally recognizes that Martiki will not pay for any ‘‘steward-
ship’’ services Mapco provides ‘‘for its own purposes.’’
While Martiki personnel who generally are not directly af-
filiated with Mapco conduct the subsidiary’s day-to-day op-
erations, they frequently, consult with the Mapco’s Lexington
or Tulsa offices, they receive guidelines, publications (i.e.,
such as employee handbooks and benefits plans), and formats
(with the Mapco logo), that generally are utilized and fol-
lowed. And, while Mapco President Joseph Craft may only
visit Martiki twice a year, it is clear that Mapco, through
Vice President Jackson and the Mapco services, publications,
and suggested guidelines, exerts a strong influence on
Martiki’s place in the integrated collection of coal companies
that make up Mapco Coal, regardless of Mapco’s direct par-
ticipation in some routine operational matters. Not only does
Mapco ‘‘assist’’ with permitting, safety, and environmental
matters, it also does so in such things as engineering func-
tions and workers compensation claims for its subsidiaries,
including Martiki. Most significantly, Jackson performs con-
trolling roles as operational vice president of Martiki and two
other producing subsidiaries of Mapco. Moreover, the Mapco
marketing group, through its development of sales contracts
from the market place, dictates the qualitative and quan-
titative production and controls the transportation of
Martiki’s product. Such marketing is controlled by a vice
president of marketing in Tulsa, working through his sales
agents in several more eastern locations.
487MARTIKI COAL CORP.
6 While it appears that certain of these individuals were recalled
or rejected a recall offer at some point in time, such factor can be
considered in the backpay stage of this proceeding.
7 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621.
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
The criteria for the evaluation of Mapco’s status as a sin-
gle employer has been set forth and discussed above. Al-
though Mapco is not as large as some of the other conglom-
erates that tend to dominate the coal industry, it appears to
follow the generalized practice of what has been called ‘‘cor-
porate paper-shuffling’’ by maintaining separate corporate
entities at separate operating locations. While the purposes
for this structuring may be varied and while it may serve le-
gitimate and legal purposes especially in areas such as state
and local taxation, it cannot be accepted as a carte blanc ra-
tionalization for avoidance of responsibility for the rights of
employees guaranteed them under the National Labor Rela-
tions Act.
Here, the record shows numerous and persuasive factors
that are indicative of the true nature of Respondent Mapco’s
controlling relationship with it subsidiary, Martiki. I find no
persuasive or overriding reasons why the Board should not
match ownership with responsibility and disregard the cor-
porate veil. Here, they are sufficiently integrated in practice
and effect to show that Mapco controls Martiki for purposes
related to the employer-employee relationship which is the
subject of the National Labor Relations Act and I conclude
that Mapco Coal and its subsidiary Martiki Coal are a single-
integrated enterprise. Accordingly, I find that Mapco Coal is
a party, along with Charles Clearing and Martiki Coal, re-
sponsible for satisfaction of the remedy imposed here.
CONCLUSIONS OF LAW
1. Respondents Mapco Coal, Inc., and its wholly-owned
subsidiary Martiki Coal Corporation are single employers;
Martiki Coal Corporation is a joint employer with Respond-
ent Charles Clearing Contractors, Inc.; and they are engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. By failing and refusing to reinstate the following laid-
off employees, Steve Arnette, Ron Blankenship, Henry Boyd,
Steve Boyd, David Conrad, Craig Hale, Ronnie Hall, Paul
Hinkle, Brian Holbrook, Daniel Hutchinson, David Hutch-
inson, Mickey Jude, Warren Jude, Brian Lowe, Freddy
Moore, Shelby Moore, Harold Muncy, Stewart Preece, Ches-
ter Ramey, Jeffrey Taylor, Jonathan Taylor, Leandis Taylor,
Douglas Wilson, Bill Webb, and Frank Webb, after they
filed charges with the Board, when jobs began to be avail-
able on and after May 27, 1992, Respondent Charles Clear-
ing Contractor, Inc. has engaged in an unfair labor practice
within the meaning of Section 8(a)(1) and (4) of the Act.
3. By virtue of Respondent Martiki Coal’s direct contribu-
tion to the commission of this unfair labor practice and be-
cause of its status as a single employer with Mapco Coal,
Mapco Coal and its subsidiary Martiki Coal also are jointly
liable and responsible for the relief ordered here to remedy
the violation of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find it necessary to order it to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Inasmuch as Respondent failed and refused to offer timely
recall from layoff to the following individuals placed on lay-
off status on February 12, 1992:
Steve Arnette, Ron Blankenship, Henry Boyd, Steve
Boyd, David Conrad, Craig Hale, Ronnie Hall, Paul
Hinkle, Brian Holbrook, Daniel Hutchinson, David
Hutchinson, Mickey Jude, Warren Jude, Brian Lowe,
Freddy Moore, Shelby Moore, Harold Muncy, Stewart
Preece, Chester Ramey, Jeffrey Taylor, Jonathan Tay-
lor, Leandis Taylor, Douglas Wilson, Bill Webb, and
Frank Webb.6
it is recommended that Respondents must offer them rein-
statement to their former jobs or substantially equivalent po-
sitions, dismissing, if necessary, any part-time employees or
employees hired subsequent to February 10, 1992, without
prejudice to their seniority or other rights and privileges pre-
viously enjoyed, and make them whole for any loss of earn-
ings they may have suffered because of the discrimination
practiced against them by payment to them of a sum of
money equal to that which they normally would have earned
from the date of the discrimination to the date or reinstate-
ment in accordance with the method set forth in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as computed
in New Horizons for the Retarded, 283 NLRB 1173 (1987).7
In addition, if laid-off employee Willis Fletcher shall make
an unconditional offer to return to work, he shall be placed
in a preferential hiring status for any vacancy at his former
job or substantially equivalent position. Otherwise it is not
considered necessary to issue a broad Order.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
The Respondents, Mapco Coal, Inc., and its wholly-owned
subsidiary Martiki Coal Corporation and Charles Clearing
Contractors, Inc., single and joint employers, their officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to reinstate or to recall laid-off
economic strikers to their former or substantially equivalent
positions because they engaged in protected concerted activi-
ties or because they filed a charge with the Board.
(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 policies of the Act.
(a) Offer Steve Arnette, Ron Blankenship, Henry Boyd,
Steve Boyd, David Conrad, Willis Fletcher (upon an uncon-
ditional offer to return to work), Craig Hale, Ronnie Hall,
Paul Hinkle, Brian Holbrook, Daniel Hutchinson, David
Hutchinson, Mickey Jude, Warren Jude, Brian Lowe, Freddy
Moore, Shelby Moore, Harold Muncy, Stewart Preece, Ches-
488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 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 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.’’
ter Ramey, Jeffrey Taylor, Jonathan Taylor, Leandis Taylor,
Douglas Wilson, Bill Webb, and Frank Webb immediate and
full reinstatement and make them whole for the losses they
incurred as a result of the discrimination against them in the
manner specified in the remedy section of this decision.
(b) Preserve and, request, make available to the Board or
its agents, for examination and copying, all records, reports,
and other documents necessary to analyze the amount of
backpay due under the terms of this decision.
(c) Post at the facilities of Martiki Coal Corporation and
Charles Clearing Contractor, Inc. in Mountain County, Ken-
tucky, and mail to all employees of Charles Clearing Con-
tractor, Inc., who were laid off on February 10, 1992, copies
of the attached notice marked ‘‘Appendix.’’9 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 9, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees 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.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.