McDowell Energy Corp.

National Labor Relations Board - Board Decisions

Jun 21, 1976

224 N.L.R.B. 1462 (N.L.R.B. 1976)

1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McDowell Energy Corporation and United Mine
Workers of America . Cases 9-CA-9476 and 9-RC-
11012
June 21, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On March 3, 1976, Administrative Law Judge Joel
A. Harmatz issued the attached Decision in this pro-
ceeding. Thereafter, the Respondent filed exceptions
and a supporting brief, and the Charging Party filed
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge, ex-
cept as modified herein, and to adopt his recom-
mended Order.
We agree with the findings of the Administrative
Law Judge that Respondent violated Section 8(a)(1)
of the Act by its interrogation of, and threats to, em-
ployees. We also agree with his findings that the dis-
charge and/or failure to recall employees Russell En-
gle, Robert J. Gidley, Clelion Miracle, John P. Sears,
Roy Sizemore, Criss Smith, and James Fred Smith
violated Section 8(a)(1) of the Act. We further agree
with his disposition of the challenged ballots and his
finding that the discharge of employee Robert J.
Gidley constitutes objectionable conduct requiring a
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board 's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (CA 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
However , certain inadvertent errors made by the Administrative Law
Judge should be noted In In 3 of his Decision , he states that the testimony
of Morgan and Sizemore is in substantial agreement as to their conversation
of April 8 Sizemore gave no testimony with respect to this conversation
Morgan's version of the conversation is correctly set out in the Decision
In the last par of that section of his Decision entitled "c John Sears," the
Administrative Law Judge states that , following the layoff of employee John
Sears , employee "Lawrence Gilbert" was trained to operate a drill It is
obvious from the record that the reference to "Lawrence Gilbert" should be
to ;'Jackie Gilbert "
In view of our agreement with the Administrative Law Judge 's finding
that Respondent violated Sec 8(a)(3) of the Act by discharging employees
Criss Smith , James Fred Smith , Roy Sizemore , Clelion Miracle , Russell
Engle , Robert J Gidley , and John P Sears, we find it unnecessary to reach
the question of whether the closure of its Helfer Creek operation was accel-
erated by the presence of the Union
second election. We disagree, however, with his con-
clusion that Respondent's speech to its assembled
employees on the day prior to the election herein
constitutes objectionable conduct under Peerless Ply-
wood Company.3
The election herein was scheduled to begin at 9
a.m., on June 12, 1975. On June 11, 1975, a speech
was delivered to Respondent's assembled employ-
ees 4 by Respondent's general superintendent, Sam
Morgan. Also present was Respondent's president,
Morris Terrell, and various other supervisory person-
nel. It is undisputed that the speech pertained to elec-
tion issues, that it was held on company time, and
that employees were compensated for time spent in
attendance. The speech was presented through a
question-and-answer format . Based on testimony
credited by the Administrative Law Judge, Morgan
was alerted by Terrell at approximately 8:55 a.m.
that his time was almost up. Morgan continued to
speak until approximately 8:59 a.m., at which time
he was advised by Terrell to terminate his speech.
According to Morgan, he then told employees:
"Let's everybody go back to work." Some employees
did leave, but an undetermined number remained
and conversed with both Morgan and Terrell. The
record does not reflect who initiated these conversa-
tions or the exact number of employees who engaged
therein. There is no evidence as to the content of
such conversations other than the testimony of Mor-
gan who stated that they did not pertain to the Union
but were "about the weather or something." The re-
maining employees dispersed and returned to their
respective jobs between 9:15 and 9:30 a.m.
In Peerless Plywood, supra, the Board ruled that a
speech pertaining to election issues which is delivered
to a massed assembly of employees on company time
during the 24-hour period immediately preceding an
election constitutes objectionable conduct requiring
a new election. In finding that the speech herein vio-
lated this rule, the Administrative Law Judge con-
cluded that no distinction should be drawn between
the formal and informal stages of the meeting, that it
would be unrealistic to find that the meeting ended
with the last utterance specifically addressed to elec-
tion issues, and that even though the dialogue may
not have related directly to the election the Employer
gained an unfair advantage through its informal frat-
ernization with employees.
However, in reaching this conclusion, the Admin-
istrative Law Judge ignored the fact that there is a
total lack of evidence that the conversations in ques-
tion were initiated by the Employer, that they per-
' 107 NLRB 427 (1953)
4 Morgan testified that employees were expected to attend the speech and
to the best of his knowledge all had done so
224 NLRB No. 193
McDOWELL ENERGY CORP 1463
tained to election issues, or that a sufficient number
of employees remained to constitute a "massed as-
sembly." 5 Proof of the latter two elements is clearly
indispensable to a finding that a speech is objection-
able under Peerless Plywood.
In our view, the instant case is indistinguishable
from WATE, Inc., 123 NLRB 301 (1959), wherein
the Board found similar conduct not to be objection-
able. In WATE, the election was held at 10 a.m. on
April 24. On April 23, the employer delivered a
speech to its assembled employees which did not end
until 9:58 a.m. or 9:59 a.m. Although some employ-
ees left during and immediately after the speech,
others remained and questioned the employer's rep-
resentative about matters discussed during the
speech. The last employee left between 10:10 and
10:25 a.m. There was no evidence that the conversa-
tions which followed the speech were initiated by the
employer. The petitioner's contention that these in-
formal conversations between management and the
employees violated Peerless Plywood was rejected by
the Board.
In the present case, as in WATE, the Employer
was obviously aware of the obligation imposed by
Peerless Plywood, as evidenced by the fact that the
speech was timed and formally ended within minutes
of the commencement of the proscribed 24-hour pe-
riod. In both cases, although some employees re-
mained after adjournment of the formal speech and
talked with management officials, there was no indi-
cation in either case that the ensuing conversations
were initiated by the Employer. In fact, the only real
distinction in the two cases lies in the fact that in
WATE, the employees' questions pertained to elec-
tion issues, while in the present case the only evi-
dence indicates that they did not. Consequently, this
makes the instant case even stronger than WATE.
In our view, there was a good-faith attempt by the
Employer to comply with its obligations under Peer-
less Plywood and, as stated by the Board in WA TE,
the conversations in question were "merely permissi-
ble pre-election talk, normally to be expected after a
speech, rather than an extension of the speech it-
self." 6
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge in Case 9-
CA-9476 and hereby orders that the Respondent,
5 The rule in Peerless Plywood does not prohibit conversations with indi-
vidual employees Montgomery Ward & Company, 119 NLRB 52 (1957)
6 WATE, Inc, 123 NLRB at 303
McDowell Energy Corporation, London, Kentucky,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order.
IT IS FURTHER ORDERED that Case 9-RC-11012 be,
and it hereby is, remanded to the Regional Director
for Region 9 for further processing in accordance
with the Administrative Law Judge's recommenda-
tions concerning that matter, which we have adopted
in Coto, including, if necessary, the direction by said
Regional Director of a second election at a time he
deems to be appropriate.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge: Upon an
unfair labor practice charge in Case 9-CA-9476 filed on
July 9, 1975, a complaint was issued on September 30,
1975, alleging, as amended at the hearing, that Respondent
independently violated Section 8(a)(1) of the National La-
bor Relations Act, as amended, by offering to adjust em-
ployee grievances if they rejected the Union, coercive inter-
rogation , intimidating employees concerning their union
activity, threatening trouble for an employee who acted as
a union observer, and by reducing hourly wage rates be-
cause of their union sympathies. The complaint further al-
leges that Respondent violated Section 8(a)(3) and (1) of
the Act by terminating Criss Smith, James Fred Smith,
Roy Sizemore, Clelion Miracle, Russell Engle, Robert J.
Gidley, and John P. Sears to discourage union member-
ship. In its duly filed answer, Respondent denied that any
unfair labor practices were committed.
The representation petition in Case 9-RC-11012 was
filed on April 7, 1975. Thereafter, pursuant to a Decision
and Direction of Election issued on May 13, 1975, an elec-
tion by secret ballot was conducted on June 12, 1975,
among employees in the appropriate collective-bargaining
unit. At the conclusion of the election, the tally of ballots
showed that of approximately 38 eligible voters, 37 ballots
were cast, of which 13 were for Petitioner, 17 against, and
7 ballots were challenged. The challenged ballots were suf-
ficient in number to affect the results of the election. On
June 18, 1975, Petitioner filed timely objections to conduct
affecting the results of the election. Thereafter the Region-
al Director for Region 9 conducted an investigation of the
objections and challenges and, on October 3, 1975, issued
his "Supplemental Decision, Order Consolidating Cases,
Order Transferring Case to the Board, Order Directing
Hearing, and Notice of Hearing," in which he concluded
that the seven challenged ballots raised issues alleged as
unfair labor practices in Case 9-CA-9476, and directed
consolidation of the challenges for determination in said
unfair labor practice proceeding. With respect to the objec-
tions, the Regional Director overruled objections 2 and 3,
but, in concluding that objections 1 and 4 raised issues best
resolved through an evidentiary hearing, he further direct-
ed that objections 1 and 4 be consolidated for determina-
tion with Case 9-CA-9476.
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 3, 4, and 5, 1975, a hearing was held in
this consolidated proceeding in Corbin, Kentucky. After
close of the hearing, briefs were filed by the General Coun-
sel, the Charging Party-Petitioner, and the Respondent
Employer.
Upon the entire record in this proceeding and from my
observation of the witnesses while testifying and their de-
meanor , and consideration of the briefs, I make the follow-
ing:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
McDowell Energy Corporation, formerly known as
Medlin Energy Corporation, is a Kentucky corporation en-
gaged in the strip mining and sale of coal, with its offices
located in London, Kentucky. During the 12 months pre-
ceding issuance of the complaint, a repesentative period,
Respondent sold and shipped coal valued in excess of
$50,000 directly from its coal mining operations in Ken-
tucky to points outside the State of Kentucky.
Based upon the foregoing, I find that Respondent is, and
has been at all times material, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
United Mine Workers of America is a labor organization
within the meaning of Section 2(5) of the Act.
A. The Issues
This proceeding stems from an initial organization effort
among certain of Respondent's employees, and presents
questions as to whether Respondent engaged in various
unlawful acts of restraint and coercion in connection there-
with. Both from the standpoint of remedy and resolution of
the question concerning representation, the singlemost im-
portant issues concern the alleged discriminatory discharge
of seven employees, each of whom cast challenged, deter-
minative ballots at the election of June 12.1
B. Background
Respondent is wholly owned by McDowell Enterprises,
Inc., a general contractor based in Nashville, Tennessee,
engaged in heavy highway and residential construction in
some eight States. Respondent was created as a subsidiary
of the construction firm upon purchase of the assets and
assumption of the liabilities of Medlin Coal Company, and
is engaged solely in the strip mining, processing, sale, and
distribution of coal in western Kentucky. This represents
the first venture by McDowell Enterprises or any of its
subsidiaries into the mining industry.
All dates refer to 1975 unless otherwise indicated
Respondent began its mining operations on a nonunion
basis in September 1974. Later, in February 1975, the
Union started the organization campaign which gives rise
to this proceeding . Respondent was then engaged in strip-
ping at three separate locations , identified as the "Heffer
Creek site one," "Site 229," and "Site 472," respectively.
Respondent also was engaged in the construction of a tip-
ple, as well as prospecting at various locations for new
sources of coal.
As for the organization effort, the record establishes that
Roy Sizemore , a bulldozer operator assigned to the Heffer
Creek job, was the principal employee organizer. It was
Sizemore who made the initial contact with the Union and
set up various union meetings which were held between
February and April 1975. Sizemore was also responsible
for the distribution and collection of signed authorization
cards.
Aubrey Hamilton was Respondent 's foreman immedi-
ately responsible for operations at the Heffer Creek site.
Hamilton admits that in early March 1975 "rumors" devel-
oped that employees were engaged in union activity. In-
deed, in this regard, the credited, uncontradicted testimony
of James Reese establishes that Hamilton during that peri-
od acquired specific knowledge of the union sympathy of
five of the seven dischargees involved in this case. Thus,
shortly after Reese was hired in March, he asked Foreman
Hamilton whether he should attend a union meeting to
which he had been invited . Hamilton told him at that time
not to go, warning that his job would be jeopardized if he
did, and adding that those who attended the meeting
would lose their jobs if the Company learned their identity.
However, matters did not end there. Reese credibly testi-
fied to a second conversation with Hamilton in which
Reese reported that Russ Engle had invited him to attend
another union meeting. Hamilton, apparently deciding to
shift his strategy, this time asked Reese to find out about
the union activities and report back to him. Reese attended
that meeting and that same evening telephoned Hamilton,
reporting that Russell Engle, Clelion Miracle, and Roy
Sizemore were among those in attendance , and that Robert
Gidley, whose duties caused him to travel from job to job,
was to collect signed union authorization cards from em-
ployees on the various jobs. Hamilton, on receiving this
information, told Reese that this was exactly what he want-
ed to find out. Reese also credibly testified that he reported
to Hamilton his discovery that John Sears was engaged in
union activities. On that occasion Hamilton informed
Reese that the Company would take care of union men on
the job by getting rid of them.
Thereafter, a formal demand for recognition was made
by the Union through a telegram dated April 3, 1975.
On the next day, Friday, April 4, Respondent's testimo-
ny indicates that a decision was made to permanently shut
down its strip mining operations at the Heffer Creek site.
At the time of this decision, six of the alleged discrimina-
tees were working at or assigned to the Heffer Creek job,
and none of this group since April 4 has been employed
actively by the Respondent. Their number includes Criss
Smith and James Fred Smith, both of whom were Euclid
dump truck operators on the Heffer Creek j ob; Russell
Engle, a loader operator on the Heffer Creek job; and Roy
McDOWELL ENERGY CORP. 1465
Sizemore , a dozer operator on the Heffer Creek job. Also
terminated in connection with the shutdown were Clelion
Miracle and John P. Sears. Miracle, a laborer on the pow-
der and blasting crew , and Sears , a driller also on that
crew , unlike the aforementioned individuals, were not reg-
ularly assigned to the Heffer Creek job prior to its close-
down . The blasting and powder crew was one of several
crews which performed work in connection with blasting
and drilling operations on a project-to-project basis as they
were needed . Both happened to be at Heffer Creek , the last
day of work at that location.
The seventh dischargee named in the complaint , Robert
Gidley, was a service truck operator . As such, Gidley was
responsible for equipment servicing and maintenance on
all jobsites , including locations where Respondent was en-
gaged in prospecting . Gidley was terminated on April 7,
and among the differences between his case and that of the
other discharges is the fact that Gidley's termination was
the only one which Respondent sought to justify on the
basis of inadequate work performance.
Finally, it is noted that the petition in Case 9-RC-11012
was filed on April 7, 1975, and that the election thereon
was held on June 12. As indicated the seven alleged dis-
criminatees appeared at the polls, but their ballots were
challenged.
C. The Alleged Discrimination
serted that , upon closing Heffer Creek , work was not avail-
able on other sites, in that leases originally acquired from
Medlin Coal did not contain coal in sufficient quantity and
quality to warrant mining. Further, with respect to other
reserves possessed by Respondent , permits had not issued
from the State of Kentucky , which were required before
operations on those sites could begin . In addition to the
foregoing , Respondent seeks to excuse its hiring of new
employees subsequently , without recalling the alleged dis-
criminatees , by claiming that under its established policy
all layoffs, except those attributable to weather conditions
or machine breakdowns , were considered permanent.
To meet the clear evidence that those discharges trig-
gered by the shutdown of Heffer Creek involved a selection
of the discriminatees despite their greater seniority, qualifi-
cations, and skills than others retained , Respondent claims
that , under its policies , length of employment is not a fac-
tor in selecting those for layoff , nor were experience quali-
fications or ability a relevant consideration . Instead, Re-
spondent asserts that layoff selection under its policy is
governed by whether a machine operated by an employee
who runs out of work could be put to use elsewhere. Con-
sistent with this allegation , Respondent asserts that , if work
ended on a jobsite, the operator of the piece of equipment,
which could not be utilized elsewhere , would be terminat-
ed, while operators of identical equipment on other jobs
were retained , despite the former 's greater seniority , quali-
fications , experience , and ability.
1. Prefatory statement
As shall be seen , infra, the evidence adduced by the Gen-
eral Counsel and the Charging Party is adequate to estab-
lish a prima facie case of proscribed discrimination as to all
seven of the discharges . In this regard , credited evidence
establishes ( 1) Respondent 's opposition to union organiza-
tion of its strip mining operations ; (2) that the termination
of the seven employees occurred shortly after Respondent
acquired knowledge of the union organization effort in
general, its concentration among those assigned to Heffer
Creek, and the key role played in that effort by most of the
dischargees ; and (3) that the discharges seemingly amount-
ed to an implementation of Foreman Hamilton 's coercive
predictions as to how the Company would deal with union
protagonists . Also contributing to the inference that Re-
spondent acted upon a proscribed motive is the plain fact
that the dischargees were selected for termination without
regard for their relative seniority , skills, or ability, and that
none were offered reinstatement , despite expansion of strip
mining operations after the Heffer Creek shutdown, and
the subsequent hiring of new employees. In sum , the evi-
dence adduced in support of the complaint suffices to shift
the burden to Respondent to furnish a legitimate explana-
tion , disassociating the action taken against the seven al-
leged discriminatees from union activity.
By way of defense, Respondent claims that the Heffer
Creek operation was closed on April 4 against a back-
ground of unprofitable mining at that location and circum-
stances existing on that date which prompted a decision to
permanently curtail operations at that site . In explaining
the permanency of the terminations , Respondent's defense
is based on two interrelated considerations . First, it is as-
2. The individual cases
a. Roy Sizemore
As previously indicated , Sizemore was the employee who
made the initial contact with the UMW and was the princi-
pal protagonist of the Union's effort to schedule organiza-
tional meetings and to obtain signed authorization cards
from a majority of Respondent 's employees . As indicated,
his involvement in union activi ty was reported to Foreman
Hamilton by fellow employee James Reese prior to
Sizemore 's termination. Indeed, when Reese told Hamilton
that Sizemore invited Reese to the first union meeting,
Hamilton stated that he was aware of Sizemore's union
activities, and that the Company would get rid of "trouble-
makers" like him.
At the time of his termination Sizemore , who had been
hired by Respondent in October 1974, operated a D-9
bulldozer. In the course of his employment with Respon-
dent he had also operated a road grader and loader. In the
main, he had been assigned to the Heffer Creek site. There
is no evidence or contention that Respondent was in any
sense dissatisfied with Sizemore's work and Sizemore's
credited uncontradicted testimony establishes that on sev-
eral occasions he had been complimented on his perfor-
mance.
On March 21, 1975, Sizemore was advised by Foreman
Hamilton that he was being laid off due to water problems
at Heffer Creek . On March 25, Respondent contacted Size-
more at his home and advised Sizemore to report back to
work the following day. Upon returning to Heffer Creek,
Sizemore had a conversation with Superintendent Morgan
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Foreman Hamilton. Based on the credited testimony
of Sizemore, I find that Morgan at that time informed Size-
more that the Company had no more mining permits and
planned no further drilling at Helfer Creek, and that he
then offered Sizemore the choice of working I or 2 days a
week, or taking a layoff. Sizemore elected to be laid off.2
Thereafter, on April 8, Sizemore telephoned Superinten-
dent Morgan to ask about the status of his job. At that time
Morgan informed Sizemore that Heffer Creek was being
closed and that he would be "laid off permanently." 3
The termination of coal removal at Heffer Creek did not
end the need for a bulldozer operator at that location. To
conform with environmental requirements, Respondent
was required to perform certain reclamation work before
abandoning that project. Jack Gibbons was assigned to op-
erate the D-9 dozer during the reclamation portion of this
job.4 Gibbons, who had been transferred from prospecting
work to operate Sizemore's dozer, continued to operate the
dozer during the reclamation of the Heffer Creek project,
working full time except when laid off due to adverse
weather.
Respondent contends that Sizemore was terminated be-
cause he requested to remain in layoff rather than work on
a less than full-time basis. Respondent's position in this
respect rests upon the heretofore discredited testimony of
Foreman Hamilton and Superintendent Morgan. In my
opinion the testimony of the latter represented a twisted
interpretation of the clear understanding reached by all
three in the conversation with Sizemore on March 26, in
which Sizemore advised the latter that he would prefer a
temporary layoff, with the opportunity to collect unem-
ployment insurance, than to work only 2 days of the week.
At that time, the only reason appearing on this record for
Sizemore working less than a 40-hour week was weather
conditions. Considering Morgan's own account of the sub-
sequent conversation with Sizemore on April 8 when he
advised Sizemore that his layoff was permanent, I find,
consistent with the testimony of Sizemore, that an under-
standing was reached on March 26 whereby Sizemore
2 To the extent that the testimony of Morgan and Hamilton conflicts with
that of Sizemore, I regarded Sizemore as the more reliable witness and
credit his account From observation of their demeanor, Morgan and Ham-
ilton impressed me as untrustworthy witnesses. Furthermore, in several re-
spects their testimony was shifting, and it was my impression that both
frequently invoked a lack of recollection to avoid testifying as to facts preju-
dicial to the defense I would also note that the testimony of Morgan and
Hamilton that Sizemore insisted upon being guaranteed full-time work is
regarded as entirely implausible in that Sizemore , being experienced in strip
mining, would be fully aware that a guarantee of full-time employment was
not possible in this industry,
3 The testimony of Morgan and Sizemore is in substantial agreement as to
what was said on April 8 it is significant that Morgan did not testify that he
on that occasion confronted Sizemore with any prior demand on the latter's
part for a guarantee of full- time work It is also noted in this regard that the
original layoff of Sizemore, which took place on March 21, was attributable
to a lot of rain and water at the Iobsite
1 discredit Hamilton's testimony that Gibbons replaced Sizemore prior
to the April 4 shutdown because Sizemore had indicated on March 26 that
he no longer wished to work Aside from my mistrust of Hamilton, I would
note that Morgan, in explaining why, if Sizemore no longer wished to work,
he found it necessary to inform Sizemore on April 8 that the latter's layoff
would be permanent, testified that he wished to confirm the permanency of
the layoff because the previous layoff was due to his machine being out
because of weather conditions
would remain in temporary layoff status until work avail-
ability stabilized, enabling him to work a greater number
of days in the workweek. I further find that it was for this
reason that Superintendent Morgan informed him of the
permanency of his layoff on April 8, without making any
reference to Sizemore's having previously quit.
From the foregoing, it follows that the conversion of
Sizemore's temporary layoff to a permanent layoff was not
justified by the closing of Heffer Creek, since at that time
Respondent was fully mindful of the necessity for bulldoz-
er operations during the reclamation phase of its work on
that project, and, for this reason, did not comport with
Respondent's professed policy governing selection of those
to be terminated in the event of a reduction in force,
b. Russell Engle
Engle was initially hired by Medlin Coal Company and
was retained by Respondent upon acquisition of the
latter's operation. He was the most senior of all of
Respondent's employees, having been hired in February
1972 by Medlin Coal. During his employment on the vari-
ous sites of Medlin Coal and Respondent, he operated the
275 Michigan loader, the 966 loader, and a bulldozer. In
March 1975 Engle completed an employment application
at the behest of Respondent,5 which reflected his previous
continuous employment with Medlin Coal Company dat-
ing back to February 4, 1972.
Engle signed a UMW authorization card and attended
all organization meetings. His attendance at a meeting in
March was reported by fellow employee Reese to Foreman
Hamilton shortly before the shutdown at Heffer Creek.
For some time prior to the shutdown at Heffer Creek,
Engle had been assigned to that site. Prior to February
1975, Engle operated a Michigan 275 loader, which is used
for stripping rock and dirt from coal. Another piece of
equipment, the 966 loader, was also utilized by Respondent
at Heifer Creek. The 966 loader is a smaller machine than
the 275 Michigan and is used primarily in the cleaning and
loading of coal. In either February or January 1975 the
operator of the 966 loader was terminated. Foreman Ham-
ilton asked Engle if he would operate that machine. Engle
agreed to do so and continuously operated the 966 loader
for the next 2 months or so. Engle did not enjoy operating
the 966 loader. On one occasion when asked by Hamilton
if he would accept permanent assignment to the 966, Engle
advised Hamilton that he didn't want to load coal. When
Hamilton then asked if Engle would continue on that piece
of equipment until Hamilton got somebody to operate the
966, Engle said he would, and made clear that if it meant
his job he would continue to operate the 966.6
S Respondent 's request that employees complete such applications at that
time was apparently based on the absence of such records'
6 The above is based upon the credited testimony of Engle I discredit
Hamilton's testimony that Engle informed him on several occasions that he
would rather quit than operate the 966 loader Engle, the more reliable
witness, denies that he made such a statement and, contrary to Hamilton, as
set forth in the above text, I find that Engle indicated to Hamilton that he
would work the 966 loader rather than lose his fob. In discrediting
Hamilton's testimony I note Hamilton's own admission upon my question-
ing that, during the period in which Engle is alleged to have expressed a
preference to quit, the 275 Michigan was in a state of disrepair and, if taken
off the 966, Engle would have been without a piece of equipment to operate
McDOWELL ENERGY CORP 1467
About 2 days before the shutdown at Heffer Creek, Billy
Cain, a new hire, was assigned to the 966 loader Engle at
that time resumed operating the 275 Michigan loader and
also spent part of his time operating a bulldozer
Respondent, in defending its action in terminating En-
gle, does not deny his length of service with Respondent or
its predecessor, his versatility in operating various types of
equipment used in strip mining operations, Hamilton's ex-
pressed satisfaction with Engle's work on the 966 loader, or
his overall favorable ability as an operator of equipment
utilized in the type of operations in which Respondent was
engaged Instead, Respondent claims that, at the time of
the shutdown, Engle at his request had been assigned from
the 966 loader to the 275 Michigan loader and, as the latter
piece of equipment was no longer needed at any other proj-
ect, he was permanently terminated under Respondent's
established policy of terminating the operator of a piece of
equipment no longer needed While Cain, Engle's replace-
ment on the 966 loader, was hired only 2 to 3 days before
Engle's layoff, Engle was not afforded an option of return-
ing to the 966 as an alternative to his permanent layoff
c John Sears
Sears, at the time of the shutdown at Heffer Creek, was
a member of the drilling and blasting crew under the super-
vision of Foreman Paul Tucker He was the most experi-
enced and senior of the Company's three drill operators
Prior to March 28, Sears had been employed exclusively at
the 229 and 472 jobs and had not previously worked at
Heffer Creek On that date, Superintendent Morgan direct-
ed Tucker to transfer Sears to Heffer Creek
Prior to his layoff, Sears signed a union card, attended
several union meetings, and discussed the Union with his
fellow employees Reese reported on one occasion that
Sears had discussed the Union with Cain, a new employee
Subsequently, Hamilton confronted Sears at the jobsite,
advising the latter that he had heard that they had been
talking about the Union on the job and that he didn't want
anybody talking about the Union on company time 7
The transfer of Sears to the Heffer Creek job on March
28 and his layoff within a week thereafter were effected by
Foreman Tucker Tucker claims that these actions were
carried out pursuant to instructions from Superintendent
Morgan Morgan claims that the transfer was made be-
cause drilling operations had been completed on the 472
job, and since the other drills were then busy Sears was
selected for transfer to Heffer Creek 8 Sears was laid off
permanently upon shutdown of the Heffer Creek job Mor-
gan did not consider Sears' qualifications, experience, or
ability in selecting him for layoff but claims simply to have
7 Based upon the credited and uncontradicted testimony of Sears
B No persuasive explanation is offered as to why Rondall Brewer a driller
who had previously worked at Heffer Creek was not returned to that job
rather than Sears who had not previously worked at that site Thus drilling
at Heffer Creek in March was performed by Brewer an employee who on
various occasions expressed his disinterest in union organization to manage
ment Brewer s drill was removed from the Heffer Creek job in March prior
to the assignment of Sears to that location on March 28
acted in accordance with the alleged policy of terminating
the man who operates the machine at a site which runs out
of work
When Heffer Creek was shut down, the drilling and
powder crew assigned to thatjob consisted of four employ-
ees In addition to Sears and Miracle, whose discharges are
in issue under the complaint, the crew included Columbus
Sprinkles, a powder man, and Lawrence Gilbert, a laborer
Sprinkles and Gilbert were retained after the Heffer Creek
shutdown and apparently were transferred to other drilling
operations Gilbert, at some time after the layoff of Sears,
was trained to operate a drill
d Clehon Miracle
Miracle, at the time of his hire in October 1974 by the
Respondent, was assigned as a D-9 dozer operator In Jan-
uary 1975, Miracle was employed on a second shift at job-
site 229 When that shift was discontinued in January, Mir-
acle was transferred to the day shift as a laborer and
truckdriver on the powder crew
Miracle was an active supporter of the organizational
effort He attended organizational meetings, signed a card,
and assisted Sizemore and Gidley in notifying other em
ployees concerning the time and place of meetings Here
again, employee Reese reported to Foreman Hamilton that
Miracle had attended a union meeting Based on the cred-
ited uncontradicted testimony of Miracle, I further find
that, shortly after the second union meeting, Superinten-
dent Morgan advised Miracle that he knew that the men
had attended a union meeting and questioned him as to
what benefit they expected from a union
Miracle, on Friday, April 4, 1975, was working at the
Heffer Creek site as a laborer on the drilling and blasting
crew Because of an organized protest by strip mining oper-
ators against pending Federal legislation, no work was
scheduled for the week beginning Monday, April 6 Mira-
cle was informed of his termination by Morgan on April 7
According to Morgan, Miracle was terminated because
"we were closing out the Heffer Creek job and we wouldn't
be doing any more blasting at this location "
Assessment of the reason assigned by Morgan for the
termination of Miracle requires consideration of the fact
that in terminating Miracle, as in the case of Sears, two
other members of the blasting crew, Sprinkles and Gilbert,
were retained No evidence was offered by Respondent to
explain why Miracle was selected for termination and these
employees retained and indeed Superintendent Morgan,
while not consulting Foreman Tucker of the blasting crew
as to who among his subordinates should be laid off, ad-
mitted that he was aware that Miracle had performed in
the past as an equipment operator, while Morgan further
conceded that, as far as he knew, Jackie Gilbert, who was
not affected by the layoff, had done nothing other than
work as a laborer prior to that date Also raising some
question as to the merit in Morgan s action with respect to
Miracle is the testimony of Foreman Tucker that the blast-
9 It is not insignificant that upon elimination of the second shift at least
one operator Miracle was retained in a reduced capacity as a laborer
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing crew had no formal assignment to a particular job, but
"would go fromjob tojob; . . . we cover all the jobs under
the operation at that time." 10
The Respondent, since April 4, has hired eight to nine
new employees, of which six or seven are equipment opera-
tors. Miracle never was offered recall despite several inqui-
ries on his part as to the availability of employment for an
operator.
e. Criss Smith and James Fred Smith
The Smiths were hired in July 1974 by Medlin Coal
Company. As truckdrivers, both first drove Mack trucks
and later were assigned to drive Euclid 50's, which are
larger than the Mack and more difficult to drive. On and
before April 4, the Euclid 50's were in use at the Heffer
Creek site.
James Fred Smith had signed a union card. There is no
evidence that Criss Smith engaged in any union activity.
However, Criss Smith was laid off on March 21 due to lack
of work, but was recalled on or about March 26. On re-
turning to work, Foreman Hamilton advised him that there
had been rumors that the men were trying to organize a
union and that Criss Smith was not to say anything about
the Union during working hours.
As in the case of Criss Smith, James Fred Smith was
temporarily laid off on March 21. Unlike Criss Smith, he
apparently was not recalled prior to the shutdown at Hef-
fer Creek.
Following the shutdown at Heffer Creek, both James
Fred Smith and Criss Smith were terminated."
After termination of mining operations at Heffer Creek,
the Euclid 50 trucks were taken out of production and sub-
sequently sold to another coal company. Hamilton and
Morgan testified that the Smiths were permanently termi-
nated, consistent with the established company policy,
upon removal of their equipment from operation. No ex-
planation is offered by Respondent as to why the Euclid 50
trucks were put out of production. Though it is undisputed
that the Euclid 50 trucks were more difficult to drive than
the smaller Mack trucks, the latter remained in operation
at other jobsites, apparently operated by drivers trained by
the Smiths. Although neither has been recalled, on April
28, just 3 weeks after the Smiths were discharged, Respon-
dent hired a truckdriver who happened to be a former em-
ployee fired in February 1975 for damaging a niece of
equipment. This new hire, Timothy Aulman, completed an
application on April 24, 1975, which indicated that on two
separate occasions he had hit parked cars, and further that
he had received two separate citations for speeding.12
10 The typographical error in the transcript referring to this situation is
hereby corrected
11 I regard as unreliable the testimony of James Fred Smith that his final
termination was described by Hamilton as a temporary layoff This testimo-
ny does not conform with that of other dischargees , and it was my impres-
sion that his testimony in this respect was a confused rendition of what he
had been told when laid off earlier on March 21
12
The employment application which is in evidence as G C Exh 17 is
inadvertently dated 4-24-74 The date that should appear thereon is 4-24-
75.
f. Robert Gidley
As heretofore indicated Gidley was the only dischargee
allegedly terminated because of unsatisfactory perfor-
mance. Gidley was hired by Respondent in October 1974
and until his discharge continuously worked as a service
truck operator. In that capacity Gidley was responsible for
the servicing and greasing of equipment including chang-
ing oil, refueling equipment, and checking radiators.
Gidley was active on behalf of the UMW and his union
activity consisted of attendance at union meetings and the
distribution and collection of UMW authorization cards.
As indicated, on the basis of reports from James Reese, the
Company gained knowledge of Gidley's activities in this
connection through Foreman Hamilton.
Respondent contends that Gidley was terminated on
April 7 because of his failure to adequately maintain and
service equipment.
The events relevant to his discharge begin with the
breakdown of the D-9 dozer operated by Sizemore in Feb-
ruary 1975. Gidley, as part of his duties, prior to February,
maintained certain service records which contained the
identification of equipment, meter readings as to when ser-
vice was performed, as well as the date and type of service
provided. In that month Gidley ceased maintaining said
records and that responsibility passed to his assistant,
George Bales. Also in February, after the breakdown of
the D-9 dozer, Morgan took Gidley's existing service rec-
ords and reviewed them. At that time, Morgan claims to
have noticed that oil had not been changed at required
intervals, and asserts that he instructed Gidley to provide
servicing every hundred hours. Although Morgan concedes
that the D-9 dozer was down before his review of Gidley's
records, he admits that he made no specific reference to
that piece of equipment during this conversation. It does
not appear that Gidley on any other occasion had been
warned, cautioned, or instructed as to improprieties in the
performance of his duties. Nor does it appear that Gidley,
prior to his termination, was accused of having been re-
sponsible for the malfunction of any specific piece of
equipment.
The D-9 dozer had previously been overhauled in Octo-
ber 1974 by Wayne Supply and, at the time of its break-
down in February, as it remained under warranty, it was
taken immediately to Wayne Supply for repair.
As for the events immediately preceding the discharge, it
is noted that, on April 5, Gidley, upon reporting to work,
was informed by Morgan that the job would be shut down
due to the protest demonstration by various operators in
connection with Federal strip mining legislation then pend-
ing in Washington. Gidley, on April 6, telephoned Morgan
inquiring as to whether there would be work the next week.
Morgan indicated that he didn't know how long the shut-
down would take and suggested that Gidley find other em-
ployment if he could. Gidley responded by indicating that
he had no interest in securing other employment. Thereaf-
ter, Gidley received a telephone call requesting that he re-
port to Respondent's office the following morning, April 7.
At that time, Morgan informed Gidley that he was being
terminated because he had improperly maintained equip-
ment. Morgan referred to the D-9 dozer that went down
McDOWELL ENERGY CORP 1469
on Heffer Creek in February of that year, stating that the
company had gotten the repair bill on the dozer which had
"run them approximately $11,000" Gidley was informed
by Morgan that the Company had no alternative other
than to let hun go 13
Of interest is Morgan's testimony as to the basis on
which he concluded that the breakdown of the D-9 dozer
was attributable to faulty maintenance Morgan concedes
that, prior to the termination of Gidley, he had no direct
contact with Wayne Supply concerning the repairs on the
D-9 dozer or the contributing causes for the breakdown
Instead, Morgan claims to have received a report from his
own equipment supervisor, Ed Morris, that the failure of
the bulldozer resulted from improper service According to
Morgan, Morris advised him that he had received such
information from Cecil Gibbs of Wayne Supply Morgan's
account of his conversation with Morris is highly question-
able when considered against the undisputed fact that
Wayne Supply, under its warranty, voluntarily assumed al-
most $8,000 of the cost of repairing the bulldozer This,
despite the fact that the warranty would not have applied if
the dozer had been negligently maintained One also won-
ders where Ed Morris, who did not testify, could have got-
ten the information to which Morgan testified, because the
service billings and records prepared at Wayne Supply at-
tribute the breakdown to specific causes other than faulty
maintenance 14
Based on the foregoing and my distrust of Morgan, I
reject his uncorroborated and entirely improbable testimo-
ny that Ed Morris informed him that the D-9 dozer break-
down was attributable to faulty service Accordingly, on
the basis of the credible evidence, it appears that on April
7, Morgan had no knowledge of Gidley's responsibility for
that breakdown beyond what he would have learned in
February or March when he reviewed Gidley's service
records 15
3 Analysis of the discrimination issues
Based on the foregoing credited facts and the entire rec-
ord, the allegations of discrimination set forth in the com-
plaint are substantiated by a preponderance of the evi-
dence In so finding, I note that Respondent's attempt to
disassociate union activity from its motivation for the dis-
charges rests upon explanations and testimony which im-
13 Morgan also claims that he also referred Gidley to engine failures on
two drills during the discharge interview There is no testimony indicating
when these failures occurred or their circumstances In any event I discredit
Morgan in this respect and find that the D-9 dozer was the only breakdown
specifically discussed at that time
i4 See G C Exhs 18(a) -(g)
i5 Respondent in its brief argues that prior to the breakdown of the D-9
dozer 129 hours had lapsed between oil changes on that piece of equip
ment Although based on the entire record I am not entirely certain that the
evidence cited by Respondent as supporting this claim convincingly estab
lishes Gidley s neglect of the general guideline that oil changes be made
every hundred hours I fail to see how this fact if accurate is of any aid to
the defense It does not appear that Morgan had access to or considered
G C Exh 18(G) prior to his decision to terminate Gidley Yet data appear
ing on this exhibit is essential to the computation on which Respondents
argument is predicated At best Respondents argument in this regard is
afterthought and has no bearing on Morgan s motivation in terminating
Gidley
pressed me as so incredulous as to enforce, rather than
counter, the inference of discrimination that arises from
the General Counsel's prima facie case
Turning to the specifics, and to elaborate on the general
pattern of discrimination to which this record attests, I
note initially the circumstances relating to Gidley's termi-
nation At the time of his termination, Respondent was
fully aware of his role in the union campaign, including his
responsibility for collecting signed authorization cards
from employees on the several jobsites When Reese in-
formed Foreman Hamilton of this fact, Hamilton re-
sponded by indicating "that's what I wanted to find out
right there, that's what I needed to know " Respondent's
claim that Gidley was terminated because of his failure to
fulfill his duties as a service truck operator was reduced to
unconvincing levels as the evidence developed Although
Respondent's witnesses would have me believe that a large
number of equipment failures were attributable to Gidley,
there is no evidence that, at any time prior to his discharge,
Gidley was confronted with an accusation that he was re-
sponsible for a single breakdown Apart from his union ac-
tivity, the sole explanation for the timing of Gidley's termi-
nation rests upon the uncorroborated testimony of
Superintendent Morgan This testimony would have me
believe that Morgan acted on a report that the breakdown
of the D-9 dozer, which occurred some 2-1/2 months earli-
er, was attributable to improper maintenance at a time
when he knew that Wayne Supply would not honor the
warranty if in fact that had been the case, and when in fact
any such report conflicted with the analysis of the break-
down made by that firm Morgan's testimony in this re-
spect seemed blatantly contrived to afford Respondent
pretextual grounds for eliminating a key employee organiz-
er I find this to have been the case and that Respondent,
in terminating Gidley, acted solely upon its acquisition of
knowledge as to his role in the organization effort, and
thereby violated Section 8(a)(3) and (1) of the Act
With respect to the remaining discrimmatees, first, as to
the closedown at Heffer Creek, Respondent's own evi-
dence indicates that the April 4 decision involved an accel-
eration of prior plans to abort that operation Thus, Super-
intendent Morgan and President Terrell testified that a
decision to close Heffer Creek was made earlier in Febru-
ary when "it was determined that it was costing Med-
lin Energy approximately $60 per ton to mine the coal at
the Heffer Creek site " 16 According to Morgan's fur-
ther testimony , coal was then bringing a price of $ 16 a ton
Despite this unprofitabihty, Terrell explained that in Feb-
ruary, out of a sense of obligation to the land owner, Re-
spondent decided to continue operations at the Heffer
Creek site until a point was reached at which a "decent
highwall" would be left Any such obligation to the owner
was swept aside with the decision to shut down the Heffer
Creek site on April 4, since clearly this action was taken
before the "decent highwall" was reached 17
16 See Resp brief
i1 Terrell is headquartered in Nashville Tennessee and in addition to his
role as president of Respondent he serves in an official management capac
ity with other subsidiaries of the parent company McDowell Enterprises
Inc Terrell who visits the Kentucky coal fields on an occasional basis only
Continued
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the circumstances, convincing factors support the
conclusion that the accelerated shutdown at Heffer Creek
was attributable to the recently discovered union activity at
that job. The inefficiency of extracting coal from that site
was a continuing problem since February 1975. The Com-
pany at that time made a decision to continue mining at
that location despite these inefficiencies until a certain
point was reached. As of April 4, that point had not been
reached, and indeed a drilling and blasting crew com-
menced operations at that site on March 28 and continued
through April 4, the very last day of mining operations at
Heffer Creek. During this period, the drilling and blasting
crew was performing its normal operations preliminary to
the extraction of coal. Considering the unfavorable de-
meanor of Terrell and Morgan and my disbelief generally
of their testimony, I am convinced that the decision to
suspend operations at Heffer Creek before reaching the
point they allegedly decided on in February was based
upon considerations other than the continuing adverse cost
of extracting coal from that site. Contributing to this con-
clusion is the fact that, as is apparent from the record, of
Respondent's three stripping mining sites in operation on
April 4, the Heffer Creek job was the nucleus of the
Union's organization activity. Roy Sizemore, the principal
employee protagonist of the Union, was assigned to that
location. Foreman Hamilton, whose jurisdiction was limit-
ed to that location, was the first representative of manage-
ment to acquire knowledge of union activity, and was the
only job foreman identified as having discussed the Union
with employees during early stages of the campaign. It was
Hamilton who received information from Reese as to the
union activity of specific individuals including Russell En-
gle, Roy Sizemore, and Clelion Miracle who were working
at Heffer Creek. It is a fair inference and I find that Re-
spondent, at a minimum, had reasonable grounds for belief
that the union organization drive was spearheaded by em-
ployees assigned to that jobsite. I find that this belief, rath-
er than continuing inefficiencies, furnished the impetus for
the premature shutdown at Heffer Creek.
But even if the shutdown at Heffer Creek were genuine
and not related to the organization drive, the dubious ex-
planations offered by Respondent for the permanent na-
ture of the instant discharges and its reasons for selecting
the discriminatees were typical of an attempt to lend an
aura of legitimacy to an act of massive retaliation against
union supporters. I have no reason to doubt that, prior to
April 4, Respondent lacked leases covered by permits with
coal reserves which would permit immediate transfer of
those affected by the Heffer Creek shutdown to new.Job-
sites.18 At the same time, however, as of April 4, Respon-
dent intended to increase its lease holdings and to expand
its own production of coal in a manner which, once
could give no explanation for his presence in the London, Kentucky, area
on April 4, when he, together with Morgan, allegedly decided to shut down
the Heffer Creek site On the other hand, it will be recalled that Respon-
dent, through Foreman Hamilton, had acquired knowledge by then that a
union campaign was under way It is further noted that the Union's tele-
gram demanding recognition was dated April 3
is As shall be seen , however, I do not regard this fact as justifying
Respondent's failure to consider the discriminatees for transfer to other of
its existing jobsites
achieved, would require the employment of additional op-
erators. Thus, prior to January 1975, Respondent, through
acquisition of Medlin Coal, had committed itself to a capi-
tal investment of some $2 million, including the projected
cost of a tipple which was in construction stages on April
4.19 Between January and April 4, Respondent' s crews
were actively prospecting for new coal sources, and new
leases were being sought. As of April 4, applications for
permits to mine additional acreage were pendmg.20
From the foregoing, quite obviously, at the time of the
layoffs in question here, Respondent was bent on a course
calculated to broaden existing stripping operations in a
manner which would facilitate additional employment. In-
deed, since April 4, Respondent has hired between seven
and nine employees without offering recall to the discrimi-
natees.
Nonetheless, Terrell sought to justify both the failure to
recall the six laid-off employees and the permanent nature
of their termination by pointing to a rigid company policy
which he described as dictating permanent termination of
any employee laid off for reasons other than equipment
breakdown or bad weather. Morgan confirms this, but at
the preelection hearing in Case 9-RC-1 1012, less than 3
weeks after the layoffs, and prior to the commencement of
new strip mining operations on jobs 638 and 490, Morgan
suggested that there was some flexibility in Respondent's
policy in this regard. The relevant excerpt from Morgan's
testimony is as follows:
Q. You said that those persons laid off on the 4th of
April, from the 4th to the 7th of April, would be re-
called if you could find work for them.
A. It's possible.
Q: They would be recalled as new employees?
A: Yes.
In any event, no reasonable foundation is provided on this
record for accepting the self-serving testimony of Terrell
and Morgan that Respondent at times when its objectives
pointed to an expansion of available jobs, would in good
faith permanently discharge and refuse to recall experi-
enced and able operators, though mindful that their ser-
vices could be utilized as the Respondent's plans materi-
alized. Respondent's attempt to invoke an established
policy to excuse the permanent terminations, in the con-
text, is so lacking in good judgement and rationality as to
be unworthy of belief.
Also incredible is Respondent's testimony as to the
19 Although there is a testimony that coal could be processed at a tipple
and sold at a profit even though not mined by Respondent, but purchased
from outside sources, there is no claim that this represented Respondent's
plan of action as of April 4, and every indication is to the effect that Re-
spondent intended to sell coal stripped by itself from lands covered by its
own leases
20 Respondent filed an application for strip mining permit on a site
known as the 638 job on March 19, 1975 That permit was issued May 1,
1975 Prior to the issuance of that permit work had commenced on job 638
to construct a silt structure This work was commenced on the basis of an
authorization from the Kentucky Division of Reclamation dated March 27,
1975 Strip mining operations actually began at job 638 some time in May
1975
Also, on March 28, 1975, Respondent filed an application for stripping
additional acreage at a site later to be known as the 490 job That permit
was issued on May 16, 1975, and actual strip mining operations commenced
in June
McDOWELL ENERGY CORP 1471
means by which Morgan selected Sizemore, Engle, Criss
Smith, Fred Smith, Miracle, and Sears for layoff Accord-
mg to Morgan, with the possible exception of Sizemore all
were laid off under a policy which ignored seniority, abili-
ty, experience, and versatility Instead , according to Re-
spondent's testimony, the mere fact that these employ-
ees were on a job where work ran out dictated their auto-
matic termination
Even were one to accept that an employer in implement-
ing a reduction in force would act in such blatant disregard
for the efficiency and morale of its work force, the alleged
automatic termination policy falls short, in the circum-
stances of this case, of substantiating any legitimacy in the
terminations of Sizemore, Engle, Miracle, and Sears
In the case of Sizemore and Engle any such policy is
beside the point Both were replaced on the equipment they
operated shortly before the closedown at Heffer Creek and,
despite understandings that they preferred regular full-time
work to layoff, neither was given the opportunity to return
to his former equipment , notwithstanding its continuous
use following the suspension of mining at Heffer Creek
This was the thrust of Respondent's discrimination against
them Since I have discredited Morgan's justification for
their treatment in this respect, the unexplained failure of
Respondent to prefer Sizemore and Engle over their re-
placements, after the Heffer Creek shutdown, lends con-
vincing weight to the conclusion that Morgan, by prede-
sign, manipulated both into a position whereby each would
be vulnerable to layoff in the event of a shutdown at Heffer
Creek
It is also clear that the automatic termination policy fur-
nishes no complete answer for the discharges of Miracle
and Sears Both were assigned to the powder and blasting
crew which, according to the testimony of their foreman,
Tucker, had no fixed assignment to any jobsite Both were
ostensibly laid off because physically working at Heffer
Creek on April 4 Sears was the most experienced and most
senior of the drillers Just 6 days before the shutdown of
Heffer Creek, Rondall Brewer, a driller recently removed
from the Heffer Creek job, was replaced at that site by
Sears Yet the sole reason given by Respondent for Sears'
termination was that he happened to be working at Heffer
Creek when the job shut down Sears, and Miracle as well,
was terminated though two or three other members of the
blasting crew at Heffer Creek were retained and transfer-
red to other locations No explanation is offered as to why
Miracle was selected for layoff over the others 21 Despite
the retention of the more unskilled employees on the crew,
Sears was not given an option to remain in Respondent's
employ in some lesser capacity 22
In any event I reject as incredible Respondent's testimo-
ny as to the formula it followed in effecting the layoffs
21 Miracle had previous experience as a dozer operator At least one of the
other members of the powder and blasting crew at Helfer Creek who was
not laid off worked during his entire employment as a laborer and had no
prior experience as an operator Following the April 4 layoffs that individu
al was trained to operate Sears drill
22 Morgan testified that he did not believe that an operator would prefer
retention in a lower rated job to layoff However it is noted that upon
termination of the second shift on the 229 job in January Miracle then a
dozer operator was retained as a laborer
Aside from the fundamental unsoundness of any process
of selecting employees for layoff on such arbitrary
grounds, Respondent 's witnesses as to critical aspects of
such a practice were entirely unbelievable 23 In sum, the
combined testimony of Terrell, Hamilton, Tucker, and
Morgan that employees were selected for layoff without
consultation with their foreman, 24 and in disregard of se-
niority, experience, qualifications, versatility, and abilities,
while offering a pat explanation for a number of suspicious
circumstances surrounding the six terminations, is rejected
as unworthy of belief Accordingly, Respondent's defense
fails to explain away the clear inference arising from the
General Counsel's evidence, and I find that the mass per-
manent termination of six employees , most of whose union
activities were known to the Employer, immediately after
Respondent acquired knowledge of their protected activity
was sufficient to establish that Sizemore, Engle, Sears, Fred
Smith, Criss Smith, and Miracle were terminated by Re-
spondent in retaliation for the union activity that had
emerged and to thwart the effectiveness of the employee
effort to exercise their organizational rights guaranteed by
Section 7 of the Act 25
For the above reasons I find that a preponderance of the
23 Terrell testified that this policy was the same policy utilized by the
parent company as part of its labor relations practice I have no doubt that
it was However manpower needs in a fixed work force operation present
entirely different considerations from those that would be applicable to
construction operations which are conducted in various labor markets with
labor drawn from a variety of local hiring halls The testimony of Terrell
and Robert A McDowell president and chairman of the board of Mc
Dowell Enterprises both of whom impressed me as reasonably sophisticat
ed businessmen is discredited insofar as they would have me believe that
these differences and the need to develop a skilled and efficient work force
in its mining operations were ignored in adopting a layoff policy to cover
the Respondents operations Furthermore Terrell admits that he did not
consult with Morgan as to the selection of those to be laid off and there is
no indication that he ever advised Morgan of such a policy Morgan was
hired on January 6 1975 and though during that month shift eliminations
did result in separation of employees from the payroll there is no direct
testimony indicating that Morgan was directly involved in the selection of
those laid off at that time Indeed the only direct evidence as to what hap
pened to the employees on the eliminated shifts would appear contrary to
the automatic termination policy as is evident from the experience of Mira
cle heretofore described
24 Note that Foreman Tucker was not consulted in the termination of
Sears and Miracle
25 In so finding I have not overlooked the fact that while James Fred
Smith signed a card there is no direct evidence that Respondent was mind
ful of his involvement in any union activity I also note the absence of
evidence that Criss Smith had ever signed a union authorization card or
engaged in union activity of any sort In the case of Criss Smith it is a fact
that Hamilton sought him out to express a warning that he not engage in
union activity during working hours All in all considered against other
findings made above I am satisfied that they were part and parcel of a
broad act of discrimination based on Respondent s belief that they too were
involved in union activity This inference is enforced by questionable as
pects relating to their terminations Thus there is no indication as to why
the Euclid dump trucks were taken out of service Furthermore as in the
case of the other discrimmatees there is no credible explanation for
Respondent s failure to consider the greater skills required in the operation
of the Euclids in terminating the Smiths while retaining the operators of the
smaller Mack trucks Finally only 3 weeks after their termination Respon
dent hired a formerly discharged employee with a dubious driving record
without recalling either of the Smiths All of these circumstances and the
record as a whole warrant the conclusion that the Smith brothers were not
separated as a normal outgrowth of an economically inspired reduction of
force but that they too were singled out for discrimination because of the
threat of union organization that had emerged among the operators on the
Heffer Creek j obsite
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence substantiates the allegations in the complaint that
Respondent terminated Robert Gidley, Roy Sizemore,
John Sears , Russ Engle , Clelion Miracle , Criss Smith, and
Fred Smith , in violation of Section 8(a)(3) and ( 1) of the
Act.
D. Interference, Restraint, and Coercion
At the hearing, the General Counsel was permitted to
amend the complaint to allege that Respondent violated
Section 8(a)(1) of the Act by reducing wages of employees
because of their sympathies for and activities on behalf of
the Union. Pursuant thereto, a stipulation was entered
whereby Respondent conceded that effective March 24,
1975, the wages of all employees were reduced by $1 per
hour. Upon conclusion of the General Counsel's case, the
Respondent's motion to dismiss this allegation was grant-
ed, on grounds that the General Counsel had not presented
sufficient evidence to require Respondent to come forth
with evidence showing that this decrease was unrelated to
the organizational effort then in progress. In so ruling, I
assumed arguendo union animus on Respondent's part by
presuming the validity of each and every other allegation
of the complaint. Nonetheless, on the facts adduced from
General Counsel's own witnesses, this decrease seemed no
more than a byproduct of a general downturn in Re-
spondent's economic circumstances, which commenced
in January 1975 with elimination shifts at two jobsites, and
which later led to a continual reduction in the number of
hours available to its employees. At the same time, the
General Counsel's remaining evidence was hardly suffi-
cient to require litigation of a defense as to this issue. As of
March 24, from the General Counsel's own evidence, it
appears that the organization effort was concentrated at
the Heffer Creek project and was supported by a limited
number of employees; it does not appear that any employ-
ees assigned to other projects were involved. Thus, the
wage decrease was not shown to have rested on any selec-
tivity but affected all employees equally.26 In sum , General
Counsel's evidence merely indicates that a decrease was
given under circumstances which would lead employees to
believe that this cutback constituted an extension of the
dimunition in their benefits and employment opportunities
which had commenced in January 1975. Furthermore, as I
noted on the record, in dismissing this allegation, this type
26 Cf Gold Circle Department Stores, a Division of Federated Department
Stores, Inc, 207 NLRB 1005 (1973), where benefits were withheld at a store
subject to union organization but granted at the employer's three other
locations not involved in the organization drive In addition, the employer
in Gold Circle utilized plant propaganda to link the withholding of benefits
with the union campaign . Here , there is no evidence that the Respondent
linked the reduction in wages with employee efforts to organize The Gener-
al Counsel's reference to the testimony of Sonny Hammons, to the effect
that he "thinks" that Morgan told him that the men would get their dollar
back after the tipple was completed, proved no such nexus Although I have
my doubts as to the reliability of Hammons' testimony, only through a
tenuously strained interpretation could one conclude that Morgan thereby
linked the wage increase with the then pending organization drive In my
opinion , fairly construed , Hammons' testimony merely reflects Morgan's
speculation that the decrease would be restored when Respondent's eco-
nomic position improved, a point which presumably would be reached upon
completion of the tipple
of economic action in the circumstances was of a type like-
ly to rally employees to support the union effort, and, in
the circumstances , unlike the inherent discouraging effects
upon union activity which would be wrought by a wage
increase, more must be shown than was presented here to
prima facie establish an interference with Section 7 rights.
Accordingly, I reaffirm my ruling that the General Counsel
produced insufficient evidence to shift the burden to the
Respondent to show that its action in this respect was not
connected with the organizational effort 27
The complaint alleged that Respondent through Marvin
Terrell violated Section 8(a)(1) by offering to adjust griev-
ances of an employee if the Union were voted down. In
this connection, according to employee Sonny Hammons,
about a month before the election Terrell asked Hammons,
"How things were going?" In response , Hammons indi-
cated his dissatisfaction with a fellow employee, Satch
Jones, whom Hammons accused of going around telling
tales and ratting on fellow employees. According to Ham-
mons, Terrell acknowledged that he was aware of the situa-
tion and indicated that "the men can stop the union .. .
that if they would do that, that he would stop stuff like that
from happening." Hammons relates that Terrell added that
he would not promise to fire Jones, but that he would
promise to straighten him out.
Terrell admits to a conversation with Hammons, but de-
nies that he made any promises conditioned on the out-
come of the organizational effort. According to Terrell, at
the outset of their conversation Hammons expressed his
happiness with his job and volunteered that he would not
vote for the Union, adding that the men knew who was
carrying tales concerning the job, naming Satch Jones.
Nothing further was said.
Contrary to the General Counsel, even on Hammons'
account, I do not regard Terrell's opening inquiry as to
how Hammons was doing as anything more than an innoc-
uous expression of good will which was not tantamount to
a solicitation of grievances under Board precedent. Fur-
thermore, while I was not impressed with the demeanor of
Hammons or Terrell in this instance, I regarded Terrell as
the more reliable witness. I think his version was the more
probable and that Hammons made the reference to Satch
Jones and tale-telling to counter possible information re-
ceived by the Respondent inconsistent with Hammons' dis-
avowal of union sympathy. In assessing the probabilities, I
have not overlooked the fact that the General Counsel
called Satch Jones immediately after the examination of
27 The General Counsel in his brief also urged a reconsideration of my
refusal to permit him to amend the complaint at the close of Respondent's
case to allege an unfair labor practice developed entirely through testimony
in the General Counsel 's case-in-chief Respondent chose not to rebut the
testimony in question Insofar as can be determined from the record, Re-
spondent may well have allowed that testimony to stand as purely collateral
to aspects of the General Counsel's case conceded by the defense which,
since not covered by an unfair labor practice allegation, was of no remedial
consequence The General Counsel's belated request to amend the com-
plaint , coming as it did at the conclusion of all the evidence , was untimely,
since it charged Respondent with a new unfair labor practice which was not
fully litigated While, as the General Counsel correctly observes, the failure
to produce counter proof on this issue was at Respondent 's own election,
this fact is of no consequence For, having been denied the benefit of prior
notice , Respondent was under no obligation to refute evidence not alleged
as an unfair labor practice
McDOWELL ENERGY CORP 1473
Hammons , and his testimony denies that he reported to
management any information concerning fellow employ-
ees Under Hammons' version , Terrell was placed in the
position of confirming that Jones was in fact passing such
information to management , a fact which is not borne out
by the balance of the General Counsel 's own evidence Ac-
cordingly, and also considering the vagueness of Ham-
mons' overall testimony and his limited capacity for recol-
lection, I discredit him in this respect and find that
Respondent did not violate Section 8(a)(1) of the Act by
promising to adjust an employee 's grievance if the Union
were voted down
The complaint also alleges that Respondent through Su-
perintendent Morgan and Foreman Hamilton violated
Section 8(a)(1) of the Act by coercively interrogating em-
ployees concerning union activity Based on the credited
testimony of Billy Cain, an incumbent employee who im-
pressed me as an entirely forthright and believable witness,
I find that Morgan in June questioned Cain as to his
thoughts concerning the Union I further credit Miracle's
testimony that, in mid -March, Morgan stated that he knew
that the men had a meeting and questioned Miracle as to
what benefits the men would realize by getting a union
Based on the foregoing, I find that the allegations in the
complaint concerning coercive interrogation are substanti-
ated by credible evidence , and I find that Respondent in
this respect violated Section 8 (a)(1) of the Act
The complaint also alleges an independent 8(a)(1) viola-
tion on the basis of Hamilton's alleged statement to an
employee that an individual who volunteered as a union
observer was in trouble for having done so Uncontradict-
ed and credited testimony by employee Larry Bowling re-
veals that on the day of the election , after it had become
apparent that Rondall Brewer was the union observer,
Hamilton told Bowling that "Rondall Brewer was in bad
trouble, that he had better watch out from now on " In the
context of the discriminatory discharges and coercive at-
mosphere generated by Respondent during the organiza-
tion effort, this coercive and threatening reference to the
union observer constituted a a clear violation of Section
8(a)(1) of the Act I so find
Finally the complaint includes a broad 8 (a)(1) allegation
to the effect that Respondent through Aubrey Hamilton, in
March or April 1975, violated Section 8(a)(1) of the Act by
"intimidating employees because of their sympathies and
activities on behalf of the charging party " Neither by oral
argument at the hearing nor in briefing the issues, does
General Counsel specify precisely which conduct relates to
this broadly termed allegation There is testimony that dur-
ing the time period in question Morgan made a number of
different comments concerning union activity to a number
of different employees Some of these statements may have
exceeded the permissible scope of free speech and in fact
have constituted unfair labor practices Even those which
do not fall within this category, however, might arguably
constitute unfair labor practices In my opinion without
guidance from counsel as to just what he seeks to litigate
under such a broadly termed , vague, all-encompassing alle-
gation, it is not the function of the Administrative Law
Judge to himself canvass the record, ferret out possible is-
sues, and in his decision knock down or find the unfair
labor practice I make no findings under this allegation and
it is dismissed
4 Case 9-RC-11012
a The challenges
With respect to the challenges, having found that Russell
Engle, Robert J Gidley, Clehon Miracle, John P Sears,
Roy Sizemore, Criss Smith, and James Fred Smith were
discharged in violation of Section 8(a)(3) and (1) of the
Act, the challenges to their ballots are overruled It shall be
recommended that these determinative ballots be opened
and counted by the Regional Director and that a revised
tally be furnished the parties I shall further recommend
that if the revised tally indicates that the Union has been
designated by a majority of the valid ballots cast, that the
Regional Director shall issue a Certification of Representa-
tive
b The objections
Objection 1 relates to a claim that the Employer violated
the rule set forth in Peerless Plywood Co 28 by conducting
an antiunion meeting with employees, during working
time, within the 24-hour period preceding the election The
Employer concedes that such a meeting was held on June
11, but denies that it extended over the 24-hour insulated
period On the other hand, witnesses offered in support of
objection 1 uniformly assert that the meeting continued
beyond the period permitted under Board policy
The election was held on June 12 between 9 am and
9 45 at the 229 job, and between 11 and 11 45 a in at the
472 job
The issue presented under objection 1 is limited to the
timing of the June 11 meeting, i e , whether it continued
beyond 9 a in into the 24-hour period
The facts show that the formal segment of the June 11
meeting was conducted through a question-and-answer
format Superintendent Morgan was the principal spokes-
man for the Company He was accompanied by Terrell,
Hamilton, and David Wall, a management representative
responsible for the tipple and certain administrative as-
pects of mining operations
Terrell, Morgan, and Wall testified uniformly that the
question-and-answer session ended a few minutes before 9
am Terrell claims to have kept careful tab on his wrist-
watch, and Morgan and Wall confirm that, at 8 55, Terrell
alerted Morgan to the time, with Morgan continuing to
speak until a minute before 9, when Terrell told Morgan to
cut off the meeting The Employers testimony indicates
that Morgan did so immediately At that point, according
to Wall some of the employees started going back to
work,29 while others stood around and talked Though
Morgan asserts that, in terminating the formal question-
and-answer session, he stated "Let's everybody go back to
work," he, on cross-examination, somewhat reluctantly ad-
21 107 NLRB 427 429 (1954)
29 The meeting was conducted at the 638 job The work site of some of the
employees namely those assigned to the 490 and 229 jobs was some 15
miles distant from that job
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mitted that, after that segment of the meeting, he talked
with employees who remained in the area 30 Wall related
that, upon leaving the area at 9 15 a m to return to work,
he observed that Morgan and Terrell were talking to a
group of employees 31
On the above facts, developed through the Employer's
own witnesses, I am satisfied that the meeting was permit-
ted to continue until 9 15 or later when the president and
superintendent mingled with employees and continued to
engage in conversation Concededly the record does not
disclose exactly what transpired during these conversa-
tions, but the absence of such evidence is not deemed crit-
ical to a determination of when the meeting ended For, in
resolving this issue, it would offend Board policy to isolate
the formal question-and-answer session from the fraterni-
zation which followed From stipulations made at the hear-
ing it is clear that the June 11 meeting related to the elec-
tion to be held the next day, and that, but for the election,
the meeting would not have been held From the stand-
point of the objective and policy underlying the Board's
24-hour rule, it would be unrealistic to find that, in the
factual context presented here, the meeting ended with the
last utterance specifically addressed to election issues The
advantage through dialogue continuing beyond the formal
stages of the propaganda session, which utilized the medi-
um of informal confrontation between managers and eligi-
ble voters, even though related to subjects not directly of
concern to the union issue, may, as an expression of good
will and fellowship, redound with more telling support for
the Employer's position than direct antiunion diatribe
Morgan and Terrell were not low level supervisors, they
were the highest working management representatives di-
rectly engaged in the Employer's strip mining operation
Consistent with the desired aims of the Board's 24-hour
rule, no distinction ought to be recognized between formal
stages and ensuing informal conversations, all of which
take place in the course of a meeting on paid working time,
which are conducted for the purpose of influencing the
outcome of an election The potential for reaping advan-
tage from sponsorship of such a meeting existed until Ter-
rell and Morgan terminated their informal dialogue with
the employees, and it was not until then that the
Employer's use of work time to promote its preelection
views could be viewed as having ended 32 For the above
reasons, I find that the meeting of July 1 extended into the
30 Morgan testified that such discussions were not about the Union but
about the weather or something
31 Apart from the testimony of Rondall Brewer and Larry Bowling that
the meeting ended at 9 30 a in there is no evidence as to when Morgan and
Terrell ended these conversations
32 From my analysis of the testimony I find that Objection I turns exclu
sively on the question of law disposed of in the above text No material
conflict in testimony exists Thus the Charging Party s witnesses Rondall
Brewer and Larry Bowling though averring that the meeting ended at 9 30
a in afford no clear definition as to the stage the meeting had reached
when they considered it to have closed In the absence of a clear foundation
I am unwilling to assume a conflict in testimony and instead presume that
the reference by Brewer and Bowling to the close of the meeting was based
upon a conclusion both reached on culmination of the informal conversa
tions involving Morgan and Terrell rather than the formal question and
answer session which according to Respondents witnesses had ended ear
her
insulated 24-hour period, and under established Board pol-
icy constituted misconduct interfering with freedom of ex-
pression guaranteed employees with respect to a Board
election Accordingly, I find that Objection 1 is substanti-
ated by the evidence
Objection 4 relates to the discharge of Gidley on April 7,
the same day that the petition was filed Having found that
Gidley's discharge violated Section 8(a)(3) and (1) of the
Act and as said unfair labor practice, pursuant to the
Board's application of its Ideal Electric33 cutoff pohcy,34
fell within the critical preelection period for considering
misconduct interfering with an election, I find that Objec-
tion 4 is substantiated by the evidence
Accordingly, as the Employer by engaging in the con-
duct set forth in objections 1 and 4 interfered with the
election, I shall recommend that, in the event that the re-
vised tally of ballots does not disclose that the Union was
designated by a majority of the valid votes cast, the elec-
tion conducted on June 12, 1975, be set aside and that a
rerun election be directed at such time as the Regional
Director deems appropriate
CONCLUSIONS OF LAW
1 The Respondent-Employer is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act
2 The Charging Party-Petitioner is a labor organization
within the meaning of Section 2(5) of the Act
3 By discharging and refusing to recall Russell Engle,
Robert J Gidley, Clelion Miracle, John P Sears, Roy Size
more, Criss Smith, and James Fred Smith, in order to dis-
courage union membership, Respondent has violated Sec-
tion 8(a)(3) of the Act
4 By the foregoing conduct, by coercively interrogating
employees concerning their concerted union activities, and
by declaring that an employee was in trouble because he
acted as a union observer during a Board election, Respon-
dent has interfered with, restrained, and coerced employees
in the exercise of their rights guaranteed by Section 7 of the
Act, thereby violating Section 8(a)(1) of the Act
5 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
6 By conducting a captive-audience meeting on paid
company time within 24 hours prior to the election of June
12, 1975, and by terminating Robert J Gidley during the
critical period preceding said election, Respondent-Em-
ployer has engaged in preelection misconduct interfering
with the freedom of choice of its employees
33 The Ideal Electric and Manufacturing Company 134 NLRB 1275 (1961)
34 Prior to Ideal Electric the Board in Joanna Western Mills Co 119
NLRB 1789 (1958) held that objectionable conduct occurring on or after
the day of the beginning of the critical period is entitled to resolution as a
basis for setting aside an election Thereafter in West Texas Equipment
Company 142 NLRB 1358 1359 (1963) the Board indicated that the policy
set forth in Joanna Western supra would be followed with respect to
grounds arising on the day that a petition is filed and that objections based
thereon would be regarded as timely even if the misconduct occurred earli
er in the day
McDOWELL ENERGY CORP 1475
THE REMEDY
Having found that Respondent-Employer has engaged
in certain unfair labor practices, I shall recommend that it
be ordered to cease and desist therefrom and to take affir-
mative action designed to effectuate the policies of the Act
Having found that Respondent discriminatorily dis-
charged and refused to recall Russell Engle, Robert J Gid-
ley, Clelion Miracle, John P Sears, Roy Sizemore, Criss
Smith, and James Fred Smith, in violation of Section
8(a)(3) and (1) of the Act, I shall recommend that Respon-
dent be ordered to offer them reinstatement and make
them whole for any loss of earnings resulting from their
termination by payment to them of a sum of money equal
to the amount they would normally have earned as wages
from the date of their termination to the date of a bona
fide offer of reinstatement Backpay shall be computed on
a quarterly basis in the manner prescribed in F W Wool
worth Company, 90 NLRB 289 (1950), and shall include
interest at 6 percent as provided in Isis Plumbing & Heating
Co, 138 NLRB 716 (1962)
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended
ORDER35
Respondent, McDowell Energy Corporation, London,
Kentucky, its officers, agents, successors, and assigns,
shall
1 Cease and desist from
(a) Discharging, refusing to reinstate, or otherwise dis-
criminating against employees because they have joined or
supported a labor organization or because they are sus-
pected of engaging in such activity
(b) Interrogating employees concerning their union ac-
tivities
(c) Telling employees that those who act as an election
observer on behalf of the Union are in for trouble
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act
2 Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act
(a) Offer to Russell Engle, Robert J Gidley, Clelion
Miracle, John P Sears, Roy Sizemore, Criss Smith, and
James Fred Smith immediate and full reinstatement to
their former jobs or, if those positions no longer exist, to
substantially equivalent positions, discharging if necessary
any replacements hired since their terminations, without
prejudice to their seniority or other rights and privileges,
and make them whole for their loss of earnings in the man-
ner set forth in the section of this Decision entitled "The
Remedy "
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under this rec-
ommended Order
(c) Post at its London, Kentucky, facilities, copies of the
attached notice marked "Appendix " 36 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 9, after being duly signed by Respondent's authorized
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily post-
ed Reasonable steps shall be taken by Respondent to in-
sure that said notice is not altered, defaced, or covered by
any other material
(d) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith
IT IS FURTHER RECOMMENDED that Case 9-RC-11012 be
remanded to the Regional Director for the opening of the
ballots cast by Russell Engle, Robert J Gidley, Clelion
Miracle, John P Sears, Roy Sizemore, Criss Smith, and
James Fred Smith Thereafter, the Regional Director shall
issue a revised tally of ballots to the parties and, if said
tally indicates that the petitioning Union was designated
by a majority, he shall issue a Certification of Representa-
tive Should the revised tally of ballots fail to disclose that
the petitioning Union has been designated by a majority,
the election conducted on June 12, 1975, shall be set aside
and the Regional Director for Region 9 shall conduct a
rerun election at such time that he deems the circum-
stances permit a free choice on the issue of representation
35 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board the findings
conclusions and recommended Order herein shall as provided in Sec
102 48 of the Rules and Regulations be adopted by the Board and become
its findings conclusions and Order and all objections thereto shall be
deemed waived for all purposes
36 In the event the Board s Order is enforced by a Judgment of a United
States Court of Appeals the words in the notice reading Posted by Order
of the National Labor Relations Board shall read Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all sides had an opportunity to pre-
sent evidence, the National Labor Relations Board has
found that we violated the National Labor Relations Act,
and has ordered us to post this notice
The Act gives all employees these rights
To engage in self-organization
To form, join, or help a union
To bargain collectively through a representative
of their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all these things
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT do anything that restrains or coerces
employees with respect to these rights
WE WILL NOT discharge , refuse to reinstate , or other-
wise discriminate against employees for joining, sup-
porting, or engaging in activities on behalf of United
Mine Workers of America , or any other labor organi-
zation
WE WILL NOT interrogate our employees concerning
their union activities , or make statements that employ-
ees who act as an election observer for a union are in
for trouble
WE WILL offer full reinstatement to Russell Engle,
Robert J Gidley, Clelion Miracle, John P Sears, Roy
Sizemore, Criss Smith, and James Fred Smith and
make them whole for their loss of earnings resulting
from our discrimination against them with interest at
6-percent per annum
MCDOWELL ENERGY CORPORATION