McElroy Coal Co.

National Labor Relations Board - Board Decisions

Mar 9, 2009

353 N.L.R.B. 1052 (N.L.R.B. 2009)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
353 NLRB No. 108
1052
McElroy Coal Company and United Mine Workers of
America Local Union 1638, AFL–CIO, CLC.
Case 6–CA–35806
March 9, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On November 21, 2008, Administrative Law Judge
Eric M. Fine issued the attached decision. The Respon-
dent filed exceptions,1 and the General Counsel and the
Charging Party filed separate answering briefs. The
General Counsel also filed limited exceptions and a sup-
porting brief, and the Respondent filed an answering
brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions,
limited exceptions, and briefs and has decided to affirm
the judge’s rulings, findings,2 and conclusions and to
adopt the recommended Order as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, McElroy
Coal Company, Glen Easton, West Virginia, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
“(a) Restricting employees by threatening them with
having their vehicles towed from its parking lot because
employees engaged in the protected activity of display-
ing signs stating ‘We Don’t Want Scabs’ on those vehi-
cles in support of the United Mine Workers of America

1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, limited exceptions, and briefs adequately
present the issues and the positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all of the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
We shall modify par. 1(a) of the judge’s recommended Order to clar-
ify his unfair labor practice findings. We shall also substitute a new
notice in conformity with the recommended Order as modified.
Local 1638, AFL–CIO, CLC’s position on subcontract-
ing.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL not restrict employees by threatening them
with having their vehicles towed from our parking lot
because employees engage in the protected activity of
displaying signs stating “We Don’t Want Scabs” on
those vehicles in support of the United Mine Workers of
America Local 1638, AFL–CIO, CLC’s position on sub-
contracting.
WE WILL NOT in any like or related manner interfere
with, restrain, or coercive you in the exercise of the
rights set forth above.
MCELROY COAL COMPANY
Suzanne Bernett, Esq., for the General Counsel.
Thomas H. May, Esq., of Pittsburgh, Pennsylvania, for the Re-
spondent.
Deborah J. Gaydos, Esq., of Fairfax, Virginia, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
ERIC M. FINE, Administrative Law Judge. This case was tried
in Pittsburgh, Pennsylvania, on October 15, 2008. The initial
charge was filed on October 26, 2007, and the amended
charged was filed on May 28, 2008.1 The charge was filed by
the United Mine Workers of America International Union
(UMW) and the amended charge was filed by United Mine
Workers of America, Local Union 1638, AFL–CIO, CLC (the
Union or Local 1638). The amended charge was filed against

1 All dates are 2007, unless otherwise specified.
MCELROY COAL CO. 1053
McElroy Coal Company (Respondent).2 The complaint alleges
the Respondent violated Section 8(a)(1) of the Act by threaten-
ing employees that it would have their vehicles towed from the
parking lot if they displayed signs in support of the Union’s
position on subcontracting.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the oral argu-
ments by the General Counsel, the Union, and the Respondent,
I make the following3
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, with an office and place of busi-
ness in Glen Easton, West Virginia, has been engaged in the
business of operating an underground coal mine. During the
12-month period ending September 30, Respondent purchased
and received at its West Virginia facility goods valued in ex-
cess of $50,000 directly from points located outside of the
State. Respondent admits and I find it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act and the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The mine operates continuously on three shifts. The Union
represents the Employer’s production and maintenance em-
ployees. Terry Lewis was employed by Respondent as a belt
cleaner. At the time of the trial, Lewis had been president of
the Union for about 4-1/2 months. He had been a member of
the member of the mine committee for about 5 years. The mine
committee is a grievance committee. The committee members
are akin to stewards.
Lewis testified that subcontracting has always been an issue
between the Union and the Respondent. However, the dispute
between the parties has increased in 2007, due to Respondent’s
increased use of subcontractors. Lewis testified there always
had been contractors on the mine surface and some at one of
the portals, but they had never seen contractors underground.
Lewis testified around June or July, there started to be an influx
of contractors underground. Lewis testified that over the years
there had been many grievances on subcontracting. He testified
most cases were settled. Lewis testified the willingness to set-
tle grievances changed right after vacation time, the first and
second week of July, in 2007. Lewis testified there was an
influx of contractors they had not seen before “and they were
doing work that we always done.”

2 The initial charge listed the Employer as Consol Energy, McElroy
Coal Company, McElroy Mine. However, the amended charge only
lists McElroy Coal Company as the Employer, and McElroy Coal
Company is the only named Respondent in the General Counsel’s
complaint.
3 In making the findings herein, I have considered all the witnesses’
demeanor, the content of their testimony, and the inherent probabilities
of the record as a whole. In certain instances, I have credited some but
not all of what a witness said. See NLRB v. Universal Camera Corp.,
179 F.2d 749, 754 (2d Cir. 1950), revd. on other grounds 340 U.S. 474
(1951). Further discussions of the witnesses’ testimony and credibility
are set forth herein.
Lewis estimated that during January 2 to October 1, there
were about 150 grievances filed over subcontracting. Subcon-
tracting was discussed at a lot of union meetings. The subcon-
tracting provision in the applicable collective-bargaining
agreement provides that repair and maintenance work custom-
arily performed by classified employees at the mine or central
shop shall not be contracted out except where the work is per-
formed by a manufacturer or supplier under warranty or where
the employer does not have available equipment or regular
employees, including laid-off employees, with the necessary
skills to perform the work. Lewis testified that, during the time
period of January to September 2007, seven cases went to arbi-
tration over subcontracting, and the Employer prevailed in al-
most all of them. Lewis could not state how many grievances
were settled short of arbitration. Lewis testified most of the
arbitrations were in the latter part of 2007. Lewis testified the
Union has filed grievances since the arbitrations that have been
settled. He testified they had settled a grievance as recently as
the Wednesday before the trial herein. He testified the Em-
ployer paid as a result of the settlement.
Clifford White has been employed by Respondent since
2003. In September, White was a belt man, and at the time of
the trial he was a rock duster. White holds union office as a
mine committeeman, organizer, and alternate safety person. He
has held those positions since June 2007. White testified there
was a dispute between the Union and Respondent over subcon-
tractor GMS putting in belt rollers, shoveling belts, setting
posts, hanging life line, and water line. White first saw the
subcontractor performing this work around April or May, and
the amount of the work GMS was performing increased in Sep-
tember. White testified grievances were filed over this work.
White testified that, as a belt man, White traveled through
the mine which contained about 26 miles of belt enabling
White to see subcontractors perform the disputed work. White
testified the amount of subcontracting was increasing all of the
time. White testified he spoke to Assistant Belt Coordinator
Chuck Davis about the increase in the use of subcontractors
around June. White was a committeeman at the time of the
conversation with Davis which took place in the office in the
presence of Belt Coordinator Denny Reynolds. White testified
Davis and Reynolds are supervisors and not members of the
bargaining unit. White testified Davis told White, referring to
the subcontractors, you might as well get used to it because
they are going to be here for a good while to come. White testi-
fied bargaining unit employees did the work of shoveling the
belt. It was done by belt shovelers and general inside laborers.
He testified bargaining unit pipe men or laborers hang water
lines.
White testified there are about 737 employees in the bargain-
ing unit, working three rotating shifts. The contractors were
performing work on all shifts. White estimated that about 145
people in the bargaining unit performed the disputed work per
shift, with a little more on the day shift. White estimated that
about 22 or 23 contractor employees were coming in and doing
the work per day at one portal. White did not know the number
of subcontractor employees, if any, at the other two portals.
White testified there have been disagreements between the
Union and the Respondent concerning the application of the
DECISIONS OF THE NATIOAL LABOR RELATIONS BOARD1054
collective-bargaining agreement’s subcontracting clause.
White testified the grievance on subcontracting pertaining to
the belt structure was the only case he knew about that went to
arbitration. White testified all of the other cases settled. He
testified, “They settled setting posts and settled shoveling belt.”
White testified the Employer paid the bargaining unit employ-
ees backpay as part of the settlement for those grievances.
White testified that “each grievance that I wrote, I put cease
and desist. I could not understand why they pay but not cease
and desist.” White testified the Respondent, as part of the
grievance settlement, paid the bargaining unit employees, but
continued to use subcontractors although White had placed
cease-and-desist language in the grievances.
Lewis testified the Union has a meeting every third Sunday
of the month. Therefore, the September meeting was held on
September 16. Lewis testified that, during the September meet-
ing, there was a discussion about sending management a mes-
sage that they did not want subcontractors. Lewis testified then
Local President Roger Sparks suggested they place signs on
their vehicles to protest the subcontractors’ presence at the
mine. Lewis testified some of the meetings participants talked
about using language such as, “We don’t want scabs; leave
scabs; UMWA only.” There were about 35 to 40 employees
present for the meeting. Lewis testified they discussed the
meaning of the word scab at the meeting, and different people
had different definitions. Lewis testified it was discussed that
the subcontractors’ employees were nonunion workers on the
mine site performing bargaining unit work. It was discussed,
“Why do we have to pay union dues? We belong to a union to
work at this mine and they don’t have to pay union dues, but
they could work beside us at our coal mine.” Lewis testified
that was the discussion as to the meaning of the term scab.4
White testified that, during the meeting, there was a plan to
protest the use of subcontractors by placing signs on employ-
ees’ trucks as they were parked in Respondent’s parking lot.
White testified there was a discussion that the signs would say,
“We don’t want scabs.”5

4 Lewis testified his own definition of scab was someone who
crossed a picket line and goes to work and takes another man’s job, or
refused to strike. Lewis testified different people have different inter-
pretations, “and what the interpretation that came down from that union
meeting didn’t necessarily have to be my opinion.”
5 John Mercer has been employed by the Employer for 30 years.
Mercer’s job classification is pipe man. He is the financial secretary
for the local and is on the mine and safety committee. Mercer testified
he attended the September union meeting where the subject of making
signs to protest subcontracting was raised. He testified, “[W]e mainly
discussed about making some type of sign to protest the non-union
people working there.” Mercer testified Sparks suggested signs should
be made. Shane Van Scyoc has been employed by the Employer for 3
years as a steady midnight brattice man. Van Scyoc holds union office,
including union committeeman. He did not attend the September union
meeting. Van Scyoc was aware the union was taking issue in mid-2007
with an increase in the use of subcontractors in the mine. He testified
the Employer “had more contractors in the mine than usual.” He testi-
fied he has been at a union meeting where that was discussed. Van
Scyoc testified that towards the middle of 2007, they had more contrac-
tors in changing rollers on the belts, belt shoveling, “and now, they are
doing my job, as far as building walls—or overcasts.”
On September 27, Sparks signed two separate protest com-
plaints over subcontracting addressed to Human Resources
Supervisor Jason Adkins. One was over shoveling, setting
timbers, and labor work, and the other over changing belt roll-
ers. Sparks made an information request to Adkins relating to
subcontracting by letter dated the same date. Adkins responded
by letter dated October 16, acknowledging receipt of both let-
ters of protest concerning the contracting out of work on Sep-
tember 28, and directing the employees to file a grievance.
White testified he had signs made for his truck. The signs
stated, “WE DON’T WANT SCABS.” The signs were 2 feet
by 8 feet on a sheet of plywood painted white with blue letters.
There was one sign on each side of the bed of White’s full size
pick up truck. The signs were the length of the truck bed.
White called Sparks to let him know the signs were finished.
White was the only employee to place protest signs on his vehi-
cle.
White testified he drove the truck to work with the signs on
September 27 and 28 and October 1. White testified he worked
the afternoon shift on September 27. White arrived at the park-
ing lot at about 2 p.m. and parked 50 feet from the main en-
trance to where the coal miners get ready for work. White testi-
fied employees asked him about the sign. He testified he knew
Adkins saw the sign because Adkins walked by White. White
testified Rich Eddy from the UMW was there and he and White
were talking at the time. White testified Adkins walked by
White and went right up to the truck. Adkins put his hands on
his hips, stood there looked at the truck for a while, and then
walked back in the office. Adkins did not say anything. White
worked the afternoon shift on September 28. He parked toward
the back end of the parking lot that day, about 200 feet from the
mine entrance. The next shift White worked was October 1.
He testified he parked that day towards the main entrance
where the miners drive by.6
White testified, “My definition of a scab is it’s a union coal
mine; it should be union work.” White testified he knew the
workers employed by the subcontractor were not in a union
“Because we know what GMS is.”7 White testified he thought
the word “scab” would be safe. White testified he did not use
the word scab to fire people up. He testified, “Nobody got fired
up.” He stated, “Guarantee you, nobody got fired up, not even
the contractor.” He testified no one was upset about the word.

6 Lewis testified that as of October 1, 2007, Clifford White was the
only employee to put a sign on his vehicle. Lewis saw the sign on
White’s vehicle. Lewis testified that White put the sign up around the
first part of October. Lewis testified there was a lot of discussion about
it among the employees, such as, “Did you see Cliff’s truck?” Lewis
testified, in reference to the sign, “I just saw it the one day.” He did not
recall the exact wording, but the intent was, “Go home, scabs. We
don’t want scabs.” Lewis only saw one sign, but he only glanced at the
truck quickly. Lewis testified that, at the time, the employees were
only working day shift, which was 8 a.m. to 4 p.m., which would have
been the time the truck was parked.
7 Lewis testified the Union has taken some steps to determine that
the contractors at issue were not union. Lewis testified first of all it
was common knowledge. Lewis testified in their district there are
organizing meetings, and Lewis is a union organizer. Lewis testified
one of the main topics is to try and organize GMS and Strata, which are
the two contractors at issue.
MCELROY COAL CO. 1055
White testified he did not use the word to get people upset to
take action. He testified, “There was no action being taken.”
White testified on October 1, he was asked to report to the
office by Adkins. Some of White’s coworkers told him Adkins
was looking for him because White’s truck had signs on them.
White testified he went to Adkins office at the end of White’s
shift on October 1. Lewis, a mine committeeman, accompanied
White. White testified as follows: Adkins told White he
wanted the signs removed from White’s truck. Adkins told
White he had to remove the truck from the parking lot because
of the signs. White said, “It’s a freedom of speech, ain’t it?”
Adkins responded he did not care about that, he wanted the
truck removed. White said, “You mean to tell me I can’t bring
it back the next day?” Adkins said, “No. Take the signs off the
truck, you can bring the truck back.” White responded,
“Okay.” Adkins told White if he came back with the signs, the
truck would be towed at White’s expense. White testified that
ended the meeting. Lewis testified that when he came out of
the mine from work, Lewis was told by different employees
that White was looking for him. When Lewis found White,
White told him he needed Lewis to go to the office with him.
Lewis testified as follows about the meeting: Lewis testified
Adkins stated to White in reference to White’s truck, “I want it
off the property.” White asked why, and Adkins said, “Because
of the sign.” White said, “I am just expressing a freedom of
speech, and don’t I have a right to do that?” Adkins said, “No.
This is a private parking lot and I want it off.” White asked if
he could bring it back. Adkins responded, “As long as the
signs are gone, you can bring it back.” Adkins said, “If I see it
out there again with the signs on it, I will have it towed.”
Lewis testified the only reason Adkins gave for the removal of
the signs was it was private property and he wanted the vehicle
removed. Lewis testified Adkins did not cite any rules to them,
or state the signs caused turmoil at the mine.
White removed the signs, and has not put them back on his
truck. He testified no other employees had put signs on their
trucks since about subcontractors. White testified about 30 or
more employees asked him why he took the signs off his truck
and White told them Adkins, “said I had to have them off there
or my truck would be towed at my expense.” Lewis testified
employees asked him about White taking the signs off his
truck. He testified, “Different guys said—well, they were curi-
ous what happened when we went in the office.” He testified
he told them, “Jason said he had to take the signs off or get the
truck out of the parking lot.” Lewis testified it was “it was
pretty much the bath house topic as to what happened.” He
testified, “I explained to them what happened and then it was
over.”
The parties stipulated the parking lot is not visible from the
road leading to the mine. White testified employees, manage-
ment, employees of subcontractors, and people who bring ma-
terials in park in the lot. White testified there was no strike or
picket line going on at the facility at the time he put the sign on
his truck. The employees of the subcontractors were not cross-
ing a picket line, or replacing a striker. White testified during
the time that he saw the subcontracting increasing there were
no mine workers on layoff. Lewis testified all of the employees
working at that portal of the mine park in that parking lot.
Lewis testified employees put signs on their vehicles at the
mine, such as favorite teams, hunting logos, religious signs, and
others. Lewis testified he is not aware of any rule against dis-
playing the signs on the parking lot. Lewis testified he did not
hear that White’s signs caused any disruption of work or hostil-
ity to the subcontractors.
Mercer testified he became aware that White had a sign on
his truck, the day White got in trouble. Mercer testified, “I
come to work one day and noticed his truck sitting in the park-
ing lot and seen the sign. And then when I went in the build-
ing, a lot of guys were talking about the company telling Cliff
to remove his truck or remove the sign.” Mercer testified he
had planned on putting a sign on his vehicle, but did not “Be-
cause of the trouble that was raised over Cliff’s sign in his
truck.” Mercer testified he had not actually made a sign. Van
Scyoc testified he did not see the sign on White’s truck. How-
ever, he testified that White told him he had placed a sign on
his truck and had taken it off because he was told to remove it
or his vehicle would be towed. Van Scyoc testified what hap-
pened to White changed his plans to put a sign on his car stat-
ing, “I can’t afford to have my vehicle towed.” Van Scyoc
testified he never got around to making a sign.
A. The Testimony of Respondent’s Witnesses
Adkins has been employed by Respondent as supervisor of
human resources since January 2007. He has been employed
by the Employer or another mine owned by its parent company
since 2003. Adkins testified the name of Respondent’s parent
company is Consol Energy, Inc., and that it is actually Consoli-
dation Coal Company.
Adkins testified he first became aware of the sign on White’s
truck on September 24. Adkins testified, “I heard through the
hallways that Cliff had had a sign on his truck, so I went out
and looked at it.” Adkins identified a photo he had taken of the
truck, which he testified he took the same day he saw the sign.
Adkins testified the truck was parked in the employee parking
lot near the entrance to the building when Adkins took the pic-
ture. Adkins testified when he saw the sign, “I was alarmed,”
because of the word “scab.” Adkins testified it is an inflamma-
tory word that “means somebody that is crossing the picket line
or somebody that is replacing a worker that is on strike.” Ad-
kins testified if someone calls someone a scab it is a derogatory
term. Adkins testified there was nothing on White’s truck that
referred to subcontractors, and he did not interpret scab to be
synonymous with subcontractor. However, the following ex-
change occurred:
THE HEARING OFFICER: Did you know who he was re-
ferring to when you read the sign?
THE WITNESS: I did not. I mean, I assumed it was
contractors.
Q. What made you assume that?
A. The amount of grievance activity the union—the
amount of protest that the union had made because of our
use of subcontractors. All that was going on at the mine at
the time.
Adkins testified he was concerned with what might happen if
the sign remained visible in the parking lot. He testified, “I was
DECISIONS OF THE NATIOAL LABOR RELATIONS BOARD1056
concerned that there could be, you know, one, violence, and
two, a work stoppage, a potential work stoppage or slowdown.”
Adkins testified he thought contractors would see the sign. He
testified, “I thought that if they see this, they would be ticked
off and they wouldn’t want to come to work or we would have
other members of the bargaining unit that see the sign and po-
tentially go on strike.”
Adkins testified he met with White about the sign the same
day Adkins first saw the sign. Adkins testified that, during his
meeting with White and Lewis, Adkins told White if he wanted
to display the signs, he would have to do it off company prop-
erty. He testified he told White if he refused to take the signs
down and he parked his vehicle on company property Adkins
would have the vehicle towed. Adkins testified, “I also told
him that I was concerned that this could be construed as a work
stoppage or slowdown.” Adkins denied that White asked him if
it was not his right of freedom of speech. Adkins testified the
phrase freedom of speech never came up. Adkins testified,
“Basically, when I told him that I didn’t want him parking on
company property, he said he understood. You know, he just
listened to what I had to say, and at the end, said ‘Okay’ and
got up and left.” Adkins testified White raised no protest about
it. Adkins testified he did not recall Lewis saying anything at
the meeting. Adkins testified no one raised anything. They just
said, “Okay” and that was the end of it.
Adkins testified in response to a leading question, that he
raised Respondent’s rules of conduct during the meeting. He
testified, “I referred to employee conduct rule No. 11, ‘Picket-
ing, instigating, participating or leading in an unauthorized
work stoppage or slowdown.”’ Adkins testified that rule 4 also
applies pertaining to abusive and threatening language referring
to the term scab. Adkins did not testify that he cited rule 4,
during the meeting. Adkins testified when he met with White,
White did not say the term scab applied to subcontractors. He
testified the term subcontractor did not come up in the conver-
sation. Adkins testified White did not tell Adkins what the
reference to scab meant and Adkins did not ask him.
Adkins testified he only saw the truck with the sign on the
day he had the conversation with White asking him to remove
the vehicle. Adkins testified White was on afternoon shift that
day. Adkins testified he saw the truck in the late afternoon.
Adkins testified that after he finished talking to White then
White returned to work to complete the remainder of his shift.
Adkins testified he let White keep the truck on the lot for the
remainder of his shift. Adkins testified he took a picture of
White’s truck following the meeting after White had returned to
work. Adkins testified he consulted with the superintendent at
the mine Richard Harris, who was in charge of the operations,
before talking to White.
Adkins testified there was no violence at the mine caused by
the sign, and to his knowledge there was no disruption of pro-
duction. Adkins testified there was no strike, picket line, or
work stoppage at the time of the incident with White’s truck.
Adkins testified he did not receive any complaints from em-
ployees of subcontractors about the sign. Adkins testified he
was not aware of any contractors at the mine that had union
represented employees. He testified, “The subcontractors that
we were using were not UMWA members.”
Adkins testified he consulted with Gregory Dixon, a labor
consultant employed by Consol Energy, Inc. Adkins testified
he spoke to Dixon after Adkins met with White and instructed
White to remove the vehicle. Adkins testified he spoke to
Dixon within a day after the meeting with White. Adkins does
not report to Dixon. Adkins reports to the general superinten-
dent at the mine. Dixon testified he provides advice to Con-
sol’s coal mines on matters involving collective bargaining, and
he represents the company in grievances at the arbitration level.
Dixon testified that in the 12 months prior to September
2007 there was significant grievance activity pertaining to sub-
contracting. He testified there were seven arbitrations during
that period of time, and over 100 grievances that were resolved
short of arbitration. Dixon was involved with six of the seven
arbitrations. He testified the seven arbitrations were primarily
repair and maintenance contracting cases and dealt with the
prep plant. Dixon testified that, as to the arbitrations, one of the
cases was sustained in part, but when you look at all seven
cases, “in total, we pretty much prevailed in our position.”
Dixon testified that the arbitration hearings were held in Janu-
ary, February, and March, and the last two decisions issued in
July 2007. Dixon testified that he did not believe there were
any pending arbitrations at the end of September 2007. Dixon
testified the disputed work in the seven arbitration cases did not
have anything to do with shoveling belt, setting post, or hang-
ing or stringing pipe or water line.
Dixon testified there were probably some pending grievances
at the end of September 2007. Dixon testified that most of
those grievances ultimately got resolved, many of which were
resolved in one meeting that Dixon did not attend. Dixon could
not recall if the meeting was before or after September. He
testified the Union withdrew the cases because they realized
they were without merit after the Employer prevailed in the
arbitrations. Dixon could not state whether the Employer paid
backpay on any of the case, but stated the huge majority were
withdrawn. Dixon testified that even after the meeting there
have been some subcontracting grievances. Dixon did not
know if the Employer paid any subcontracting grievances after
the arbitrations. Dixon mainly handles grievances at the arbi-
tration level. Dixon does not receive reports about every griev-
ance that settles short of arbitration. He testified some could
have settled and been paid that he was not aware of.
Dixon testified that Adkins called Dixon on September 24 or
25, and notified him that White had a sign on his truck in the
company parking lot and he told Dixon the sign said something
to the effect that, “We don’t want scabs.” Dixon testified, “I
can’t really remember for sure whether Jason told me that he
had already met with Cliff White concerning the sign or
whether he said that he wanted or was planning on meeting
with Cliff and wanted my input. I just can’t remember.” Dixon
saw a picture of the truck with the sign, but he could not recall
whether he saw the picture of the truck before or after his con-
versation with Adkins. Dixon testified Adkins e-mailed a copy
of the picture to him. Dixon could not recall whether Adkins
told him the content of the sign or he e-mailed him the picture
as they were talking. Dixon testified, “I thought the sign was
pretty inflammatory.” He testified the term “scab” is pretty
derogatory in my experience and that it means, “if there was an
MCELROY COAL CO. 1057
economic strike going on at a plant or a coal mine or some-
thing, if somebody chooses to cross the picket line and work in
place of the strikers, you know, that’s sort of a common under-
standing, as far as I am concerned.” Dixon testified he did not
consider the word scab synonymous with subcontractor. Dixon
went on to testify as follows:
Q. And when you saw a picture or heard about that
sign described to you, did the word subcontractor come to
your mind?
A. I didn’t—I really didn’t know 100 percent what the
purpose was.
THE HEARING OFFICER: Did you know what the dis-
pute was about?
THE WITNESS: I thought the dispute on the contractors
was behind us.
THE HEARING OFFICER: Did you know why he put the
sign up?
THE WITNESS: I didn’t know if, you know, we have
had a history about—we had, at one point in time, illegal
work stoppages or unauthorized work stoppages in the in-
dustry. That’s well behind us.
THE HEARING OFFICER: How long ago was that?
THE WITNESS: When I started in the industry in 1976,
it was very, very common.
THE HEARING OFFICER: When was the last time you
were aware of one?
THE WITNESS: I am going to estimate maybe early
‘80s. It’s pretty much behind us now, but I didn’t know.
THE HEARING OFFICER: But you were told by Mr. Ad-
kins that there was a term “scab” on the truck?
THE WITNESS: Right.
THE HEARING OFFICER: Did you ask him what it was
about?
THE WITNESS: I can’t remember exactly the nature of
our conversation.
THE HEARING OFFICER: You don’t know whether you
asked him what it was about? I mean, a truck appears in
the parking lot that says “scab” on it. You didn’t ask him
why? You weren’t concerned?
THE WITNESS: I was very concerned.
THE HEARING OFFICER: You didn’t ask him why he
thought it was there?
THE WITNESS: I don’t remember whether I did or not.
As I said, I can’t remember, sir, if he called and said—I
know that at one point in time or at a point in time, that Ja-
son had told Mr. White that he wanted the sign removed.
Again, I can’t remember if Jason called and said “Greg,
this is what I am thinking about telling Cliff. What do you
think” or if he called and says “Look, I had a meeting with
Cliff. This happened and I told him that we wanted the
sign off.”
THE HEARING OFFICER: Are you saying —
THE WITNESS: I may have asked him if there was any-
thing going on that I didn’t know about at the coal mine.
THE HEARING OFFICER: What did you think the sign
was about?
THE WITNESS: I thought it could have been—again, I
don’t know if it had something to do with starting an ille-
gal strike or if it was a remnant of the subcontracting dis-
pute which, you know, it was pretty much behind us by
that time. Now, you know, I mean the local was not happy
that we had prevailed on that issue, so I thought maybe it
was —
THE HEARING OFFICER: You never discussed with Mr.
Adkins whether that was what it was about?
THE WITNESS: I can’t swear to you today that he and I
had a discussion exactly like you and I are having right
this minute, no, sir.
THE HEARING OFFICER: You can’t say you did or you
can’t say you didn’t?
WITNESS: Correct.
Dixon then testified he was concerned about White’s sign
because it could have been a remnant of the dispute over sub-
contracting that been ongoing for a year. He testified in his
experience “that’s a very derogatory, inflammatory kind of
comment.” Dixon testified if it was directed toward some of
the contractors there could have been a violent reaction, there
could be property damage, a fist fight in the parking lot. Dixon
testified, “I didn’t see anything good coming out of it.” Dixon
testified Adkins did not tell him he assumed the signs referred
to subcontractors. Dixon testified they had a backdrop of a
history for at least a year of a lot of complaints or grievances
concerning subcontracting. Dixon testified he concurred in
Adkins’ decision to tell White not to come back with a sign on
his truck to prevent a potential problem.8
Dixon testified Adkins did not report that there had been
property destruction, violence, or angry confrontations. Dixon
testified if Adkins had e-mailed a picture that said, “We don’t
want subcontractors?” then Dixon’s opinion about “the whole
situation would have been different.” Dixon testified, “My
experience in the industry, I mean, contractors is not a deroga-
tory harassing kind of term.” Dixon testified as follows:
THE HEARING OFFICER: So if they used a sign “We
don’t want contractors,” you wouldn’t have agreed that it
should be removed?
THE WITNESS: I don’t think the sign should have been
removed.
B. Credibility
The original charge in this case was filed on October 26,
2007, and it asserts that White was instructed to remove the
sign on September 24. The amended charge is dated, January
28, 2008, but was not listed in the complaint as being filed by
the Union until May 28, 2008. It asserts the day in question as
to White being instructed to remove the sign was October 1,
2007, rather than September 24. The General Counsel’s com-
plaint asserts the incident took place on October 1. While Re-

8 Dixon testified he had become aware of the written protests Adkins
had received from Sparks about contracting out, shoveling, setting
timbers, and the performance of doing labor work. Dixon could not
recall how his knowledge of the Sparks’ complaint related to the timing
of Dixon’s September 24 or 25 phone call with Adkins about White.
DECISIONS OF THE NATIOAL LABOR RELATIONS BOARD1058
spondent specifically denied allegations pertaining to that com-
plaint paragraph in it answer, it did not specifically dispute the
October 1, date alleged in the complaint.
White testified with specificity, good recall, and in a credible
fashion that he parked his vehicle with the signs on Respon-
dent’s lot on September 27 and 28 and October 1. He also
testified he contacted Sparks and notified him when the signs
were finished. I do not find it fortuitous that Sparks’ written
complaints to Respondent pertaining to some of the contracting
at issue were also dated, September 27, the date White testified
he initially posted the sign. Rather, I find the sign posting and
Sparks’ subcontracting complaints were part of a coordinated
effort by the Union against Respondent’s subcontracting of
what they perceived to bargaining unit work. Thus, I have
credited White over Adkins and concluded White posted the
sign on September 27 and 28 and October 1, and that Adkins
first saw the sign on September 27, as White testified.9
Concerning the October 1, meeting, both White and Lewis
credibly testified Adkins instructed White to remove the truck
from the parking lot because of the signs, or have the truck
towed at White’s expense. They both testified White protested
Adkins’ directive as a violation of White’s right to freedom of
speech, and that Adkins rejected White’s protest and wanted
the truck removed. White was told he could bring the truck
back after the signs were removed. White and Lewis credibly
testified that was the extent of the discussion, with Lewis being
called on rebuttal adding that Adkins did not cite any work
rules or claim the signs caused any turmoil at the mine during
the meeting.
On the other hand, I did not find Adkins’ testimony particu-
larly convincing. Adkins claimed he saw the vehicle in the
afternoon of September 24, consulted the job superintendent,
met with Lewis and White that same afternoon with a formu-
lated concern over the application of two of the Employer’s
work rules. He also testified he photographed the vehicle that
same day. No documentation of any of his actions was pre-
sented showing the date of the occurrence. He testified he
emailed the picture of the truck that same day or the next to
Dixon, but the e-mail that would have shown the date of the
occurrence was not introduced into evidence. Adkins also testi-
fied he did not confer with Dixon until after Adkins met with
White and instructed him to remove the vehicle. Adkins wait-
ing until after the fact to consult with Dixon, makes no sense
particularly since no explanation was given for the delay. This
is particularly so, since according to Adkins he allowed White

9 Indeed, Adkins testified he assumed the term scab related to con-
tractors, stating that the Union’s protest of the use of contractors was
going on at the time he confronted White over the sign. I did not find
Dixon’s testimony that he conversed with Adkins about the sign on
September 24 or 25 to be very persuasive. Dixon gave no reason for
selecting those dates and his testimony about the timing and content of
his conversation with Adkins was hazy at best. In making the determi-
nation White had the signs in the lot for 3 days, I have also considered
that no employee except White testified they were aware the truck was
in the lot with the signs for more than one day. However, given the
size of the unit, around 730 employees, and the size of the parking lot, I
did not find this factor to be sufficient to discredit White’s credible
testimony as to the dates he had the signs in the lot.
to complete his shift following their meeting, before White was
required to move the vehicle.
Adkins impressed me as someone who, in the ordinary
course of business, paid attention to detail. For example, Ad-
kins did not respond to Sparks’ September 27 complaints and
information request concerning subcontracting until October
16, and Adkins was careful to specify in his written response
that he had not received the complaints until September 28.
Thus, I have concluded that Adkins, in the ordinary course of
business, would have sought Dixon’s advice before Adkins
confronted White, leading me to believe that Adkins was aware
the vehicle with the signs was on the property longer than he
was willing to admit. Thus, I have concluded, as White credi-
bly testified White first parked the truck with the signs on the
Respondent’s lot on September 27, that Adkins saw it on that
date, but waited until October 1 before confronting White.
Considering, the demeanor of the witnesses, and the evi-
dence of the record as a whole, I have also credited White and
Lewis’ version of the October 1, meeting over that provided by
Adkins. Given the fact, that the employees had discussed sub-
contracting at the September 16 union meeting, discussed the
language of the signs, and come up a plan to post them in the
Respondent’s lot, that White went through the time and effort
to have the signs made and mount them on his truck, and there-
after notify Sparks that they were complete, I find it highly
unlikely White would have just agreed to remove the signs
without voicing any protest as Adkins claimed. Rather, I find
White did raise a first amendment argument during the meet-
ing, which was rejected by Adkins. In these circumstances, I
have also credited White and Lewis’ consistent testimony that
Adkins gave no explanation for the removal of the signs other
than the fact that he wanted them removed from the Respon-
dent’s property.
I also did not find Dixon’s testimony credible as to the tim-
ing and content of his conversation Adkins concerning the signs
on Whites’ truck. Dixon’s recall as to the event was poor. He
testified his conversation with Adkins was either September 24
or 25, but gave no explanation of why he felt it was either date.
Moreover, Dixon a labor consultant claimed he could not recall
whether he spoke to Adkins before or after Adkins had in-
structed White to remove the sign. It would seem Dixon would
have recalled if Adkins only sought his advice after the fact if
that truly occurred. Moreover, Dixon equivocated as to
whether he was aware of the subject of White’s protest, but
incredibly claimed he could not recall seeking clarification
from Adkins during the call. In the face of Dixon’s testimony
that he was very concerned about the reaction to a sign with the
term scabs on the Respondent’s property, his failure to question
Adkins about the cause of the protest simply does not make
sense. Rather, I have concluded that both Adkins and Dixon
knew what the protest was about, and that was subcontracting,
as Adkins admitted. I have concluded that both Adkins and
Dixon were aware that they had received Sparks’ subcontract-
ing complaints close in time to when White posted his signs,
and that they were aware the term scabs on White’s signs was a
reference to the nonunion subcontractor employees. I find
Dixon’s ambiguous testimony on the subject was part of an
effort to support Respondent’s legal argument that White did
MCELROY COAL CO. 1059
not use the term “scabs’ correctly on the signs since there was
no strike and the subcontractors’ employees had not crossed a
picket line.
C. Analysis
In International Business Machines Corp., 333 NLRB 215,
219–221 (2001), enfd. 31 Fed. App. 744 (2d Cir. 2002), two
employees placed signs on their vans in the employer’s parking
lot soliciting employees to support a union at IBM. One sign
was 4 feet by 8 feet and the other was 2 feet by 4 feet. There
the Board affirmed the judge’s findings that the employer vio-
lated Section 8(a)(1) of the Act by informing the employees
that the display of their signs contravened company policy, and
they employer reserved the right to enforce that policy. In find-
ing a violation, the judge noted that the display of signs, union
insignia and other visual means of supporting a union fall
within the category of solicitation. The judge, as approved by
the Board stated the following:
In Firestone Tire & Rubber Co., 238 NLRB 1323
(1978),10 an employee and shop steward was told that he
could only continue to use the company parking lot if he
removed from his car, several large signs, one stating
“Don’t Buy Firestone Products.” This parking lot was used
primarily by company employees but also was used by
visitors. When the individual refused to remove the signs,
he was disciplined. The Board, citing the Supreme Court’s
decisions in Eastex, Inc. v. NLRB, 434 U.S. 1045 (1978);
Hudgens v. NLRB, 424 U.S. 507, 521 fn. 10 (1976);
NLRB v. Babcock & Wilcox Co., supra; and Republic
Aviation Corp. v. NLRB, 324 U.S. 793, 803 (1945), stated
inter alia,
In an unbroken line of decisions, this Board and
the Supreme Court have stated that where an employee
exercises his Section 7 rights while legally on an em-
ployer’s property pursuant to the employment relation-
ship, the balance to be struck is not vis a vis the em-
ployer’s property rights, but only vis a vis the em-
ployer’s managerial rights. The difference is “one of
substance,” since in the latter situation Respondent’
managerial rights prevail only where it can show that
the restriction is necessary to maintain production or
discipline or otherwise prevent the disruption of Re-
spondent’s operations. . . .
The facts clearly reveal that but for the fact that the
parking lot was located on Respondent’s premises,
Knight was clearly engaged in protected concerted ac-
tivities. This Board has long held that actions taken in
sympathy of other striking employees fall within the
protection of Section 7 of the Act.
[T]he Administrative Law Judge cites Cashway
Lumber Inc., for the rule that an employee does not
have a right to affix union posters on the employer’s
walls and property. However, this case is clearly dis-
tinguishable since Cashway, supra, stands only for the

10 Case enforced at Firestone Tire & Rubber v. NLRB, 651 F.2d
1172 (6th Cir. 1980).
proposition that an employee is not engaged in pro-
tected activity if he defaces the employer’s property.
The mere presence of an automobile on which signs
have been attached does not constitute the defacement
of the property on which it has been parked.
. . . .
This case does not present a situation analogous to
Southwestern Bell Telephone Co. supra, where a mes-
sage printed on shirts worn at work . . . was found to
be “offensive, obscene or obnoxious,” thereby justify-
ing the employer’s actions taken against employees who
refused to remove them or cover them up. Here . . . the
boycott signs were not taken into Respondent’s work ar-
eas, did not interfere with Knight’s ability to perform his
assigned tasks, and did not otherwise interfere with Re-
spondent’s managerial rights. Here, the record clearly
reveals that the parking lot was primarily used by em-
ployees not then at work and was an appropriate forum
for communication among them. The fact that other per-
sons not employed by Respondent may have had access
to the parking lot and accordingly have had occasion to
read these signs in insufficient reason for Respondent to
be able to control an employee’s exercise of his Section
7 rights.
In Coors Container Co, 238 NLRB 1312, 1319 (1978),11 em-
ployees of Coors during the course of an economic strike by
other employees of a related company, showed their sympa-
thy by placing signs in their vehicle windows stating; “Boy-
cott Coors-Scab Beer.” The company barred the display of
such signs on its property. The administrative law judge re-
jected the company’s contention that the signs were not pro-
tected under NLRB v. Electrical Workers Local 1229 (Jeffer-
son Standard), 346 U.S. 464 (1953), for allegedly disparaging
the product of Coors. He also held, with Board approval, that
the use of the signs was a legitimate form of solicitation
which did not interfere with production or discipline. The
Judge noted:
Here there is no showing of such special circum-
stances. Certainly none existed in the circumstances sur-
rounding the display of the sign by Mugge and Clemente.
The sign was displayed inside “Clemente’s” truck. They
were some distance away from any work location. There
had been no incidents among Respondent’s employees
arising out of the strike, and, in any event, the wording of
the sign was not unduly provocative. The Board has long
recognized that the term “scab” is not so opprobrious as to
justify barring its use in the workplace.
As to the general prohibition against the display of
boycott signs, no special circumstances were shown to ex-
ist anywhere on Respondent’s premises which would jus-
tify, in the interest of the maintenance of production and
discipline, restricting the employee’ right to engage in
such activity. I therefore find that the rule promulgated
by Respondent prohibiting the display by employees of

11 Case enforced at Coors Container Co. v. NLRB, 628 F.2d 1283
(10th Cir. 1980).
DECISIONS OF THE NATIOAL LABOR RELATIONS BOARD1060
boycott signs was violative of Section 8(a)(1) of the Act.
Similarly, Respondent violated the Act . . . in asking
Mugge and Clemente to remove the sign . . .
See Nor-Cal Beverage Co., 330 NLRB 610, 611 (2000), where
it was held an employee’s use of the word scab while engaging
in protected concerted activity when conversing with another
employee “unaccompanied by any threat or physical gestures or
contact,” “does not, in and of itself, deprive him of the protec-
tion of the Act. It follows therefore that the Respondent could
not lawfully discipline Gould for use of that word and that the
warning notice violated Section 8(a)(3) and (1) of the Act.”
See also Mead Corp., 314 NLRB 732 (1994), enfd. 73 F.3d 74
(6th Cir. 1996), where employees wearing “No scab” buttons to
protest the employer’s flex program agreed to under a collec-
tive bargaining agreement was held to constitute protected con-
certed activity. The Board held the union’s signing of the con-
tract did not waive of the right to protest its provisions. There
was no on going strike or picket line in Mead Corp., rather the
union was protesting the employees’ participation in the em-
ployer’s flex program as a perceived encroachment on bargain-
ing unit work. In Machinists Lodge 91 v. NLRB, 814 F.2d 876,
879 (2d Cir. 1987), the court found a company rule prohibiting
large signs or banners on employee vehicles in company park-
ing lots violated Section 8(a)(1) of the Act. The court stated,
“Managerial rights decisions make clear that any restriction of
employees’ on-premises communication in nonworking areas
during nonworking hours ‘must be presumed to be an unrea-
sonable impediment to self-organization—in the absence of
evidence that special circumstances making the rule neces-
sary.’” (Internal citations omitted.)
In the instant case, the Respondent operates an underground
coal mine, with over 700 employees in the bargaining unit,
working on three rotating shifts. The Union and the Respon-
dent have had a longstanding dispute over Respondent’s sub-
contracting practices. During the period of January through
September 2007, over 100 grievances were filed. Dixon’s cred-
ited testimony reveals that by June 2007, seven of those cases
had gone to arbitration, with the Union being sustained on two,
but one of those being reversed in a judicial proceeding, with
the other cases being decided in favor of Respondent’s position.
However, Dixon testified all of the arbitrations related to work
performed at the prep plant. Dixon testified none of the arbitra-
tions involved shoveling belt, setting post, or hanging or string-
ing pipe or water line, work which is currently in dispute with
the parties and the subject of White’s protest.12
Lewis, the president of the local union, testified the Union
has filed subcontracting grievances since the seven arbitration
cases, and they settled a case as late a week before the trial
herein taking place in October 2008, in which the Respondent
paid backpay as part of the grievance settlement. White as a
beltman traveled throughout the mine. He testified to witness-

12 None of the grievances, grievance settlements, or arbitration
awards were submitted into evidence. I have credited Dixon’s testi-
mony as to the timing and subject matter of the arbitration cases, as he
was the only witness who handled cases at that level, and he had a
better command of the timing and substance of the arbitrations than
either White or Lewis.
ing an increase in subcontracting, and that the subcontractors
began to shovel the belt, set posts, and working on waterlines,
which White testified was theretofore bargaining unit work.
White, as a union committeeman, met with Supervisors Davis
and Reynolds in June 2007, where he protested the employees
of subcontractors performing bargaining unit work. White
testified the Employer has settled grievances concerning setting
posts and shoveling the belt, where the Employer has paid em-
ployees. He testified he testified each grievance he wrote about
the disputed work, the Respondent would settle by paying the
bargaining unit employees, but then continue to subcontract the
work.
There was a union meeting on September 16, where the sub-
ject of contracting out came up. About 35 to 40 employees
attended the meeting. During the course of the discussion, then
Union President Sparks suggested signs be posted on employee
vehicles parking in the Respondents parking lot protesting the
subcontracting. Some of the suggested language included “We
don’t want Scabs.” On September 27, Sparks signed two sepa-
rate protest complaints over subcontracting addressed to HR
Supervisor Adkins. One was over shoveling, setting timbers,
and labor work, and the other over changing of belt rollers.
Sparks made an information request to Adkins relating to sub-
contracting by letter dated the same date. Adkins responded to
Sparks by letter dated October 16, acknowledging receipt of
both letters of protest on September 28.
During this period, White had two large signs made up span-
ning the length of the bed of his pick up truck. The signs
stated, “WE DON’T WANT SCABS.” White called Sparks to
let him know the signs were finished. White was the only em-
ployee to place protest signs on his vehicle. White credibly
testified he drove the truck to work with the signs on September
27 and 28 and October 1. White credibly testified that on Sep-
tember 27, White saw Adkins walk up to the truck and study
the signs, and then leave. Both Lewis and White testified there
was a lot of discussion amongst employees about the signs on
White’s truck.
White testified, “My definition of a scab is it’s a union coal
mine; it should be union work.” White testified he did not use
the word scab to fire people up. He testified, “Nobody got fired
up.” He stated, “Guarantee you, nobody got fired up, not even
the contractor.” He testified no one was upset about the word.
White testified he did not use the word to get people upset to
take action. He testified, “There was no action being taken.”
White credibly testified that: On October 1, some of White’s
coworkers told him Adkins was looking for him because of the
signs on White’s truck. White went to Adkins’ office at the end
of White’s shift on October 1. Lewis, a mine committeeman,
accompanied White. Adkins told White he wanted the signs
removed from White’s truck. Adkins told White he had to
remove the truck from the parking lot because of the signs.
White said, “It’s a freedom of speech, ain’t it?” Adkins re-
sponded he did not care about that, he wanted the truck re-
moved. White said, “You mean to tell me I can’t bring it back
the next day?” Adkins said, “No. Take the signs off the truck,
you can bring the truck back.” White responded, “Okay.”
Adkins told White if he came back with the signs, the truck
would be towed at White’s expense. White testified that ended
MCELROY COAL CO. 1061
the meeting. Lewis corroborated White’s version of the meet-
ing, and testified further that Adkins never said the signs caused
any turmoil at the mine, nor did Adkins did cite any work rules.
Lewis credibly testified the only reason Adkins gave for remov-
ing the signs was that it was private property and he wanted the
vehicle removed.
The parties stipulated that the Respondent’s parking lot is not
visible from the road leading to the mine. White testified em-
ployees, management, employees of subcontractors, and people
who bring materials in out of the mine park in the lot. White
testified there was no strike or picket line going on at the facil-
ity at the time he put the sign on his truck.
White’s display of the signs on his truck in Respondent’s
parking lot was clearly protected union activity as it arose of
out a dispute between the Union and the Respondent over Re-
spondent’s use of subcontractors. There were multiple griev-
ances filed, and Adkins in fact received a protest from Union
President Sparks over the subcontracting on September 28, the
day after Adkins first saw White’s truck with the signs on the
Respondent’s lot. See, International Business Machines Corp.,
333 NLRB 215, 219–221 (2001), enfd. 31 Fed. App. 744 (2d
Cir. 2002); Firestone Tire & Rubber Co., 238 NLRB 1323
(1978), enfd. 651 F.2d 1172 (6th Cir. 1980); Coors Container
Co, 238 NLRB 1312, 1319 (1978), enfd. 628 F.2d 1283 (10th
Cir. 1980); and Machinists Lodge 91 v. NLRB, 814 F.2d 876,
879 (2d. Cir. 1987). I do not find Respondent’s argument that
the use of the term scabs in White’s sign removes his conduct
from the protection of the Act. The sign was posted on the lot
for 3 days, and Respondent can cite no evidence of any reaction
to the sign or any disruption of work. In fact, Respondent’s
officials admit there was no such activity. See Business Ma-
chines Corp., supra; Coors Container Co., supra; Nor-Cal Bev-
erage Co., 330 NLRB 610, 611 (2000); and Mead Corp., 314
NLRB 732, (1994), enfd. 73 F.3d 74 (6th Cir. 1996).
Respondent contends White’s use of the term scabs was im-
proper since there was no strike or picket line and therefore the
circumstances did not meet the accepted definition of the
word’s usage. Respondent argues that since the definition at its
core involves a person who refuses to strike or take the place of
a striking employee, Whites’ use of the term was false and it
was done to recklessly and designed to incite his fellow em-
ployees to take improper action against either Respondent or
subcontractors or both. I do not find merit in Respondent’s
argument. White credibly testified he used the term scab to
represent nonunion workers taking the work of union members.
I do not find that definition so far a field from the formula Re-
spondent prescribes to remove its usage from the protections of
the Act. I do not find that White, given the circumstances,
including numerous grievances that were not resolving an on-
going dispute concerning the alleged loss of bargaining unit
work, to have used the term recklessly or in bad faith. In fact,
White did not need to further define the term, because given the
grievance background, Adkins testified he assumed it was a
reference to subcontracting. I have also not found Dixon’s
testimony that he thought it might have referred to something
other than subcontracting credible. The Board has also found
the use of the word “scab” to be protected conduct when it is
used as part of a labor dispute that does not involve replacing
strikers. See Mead Corp., supra. I find no reason to conclude
that White was not acting in good faith when he applied the
term to the dispute at issue herein.13 Accordingly, I find that on
October 1, 2007, Adkins violated Section 8(a)(1) of the Act
when he threatened White with having his vehicle towed from
Respondent’s parking lot because White engaged in the pro-
tected activity of displaying signs using the terms “scabs” in
support of the Union’s position on subcontracting.
CONCLUSIONS OF LAW
1. By threatening employees with having their vehicle towed
from Respondent’s parking lot because the employees engaged
in the protected activity of displaying signs stating “We Don’t
Want Scabs” in support of the Union’s position on subcontract-
ing the Respondent has violated Section 8(a)(1) of the Act.
2. The aforesaid violation affects commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended14
ORDER
The National Labor Relations Board orders that Respondent,
McElroy Coal Company, with its office and place of business
in Glen Easton, West Virginia, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Threatening employees with having their vehicles towed
from its parking lot because employees engaged in the pro-
tected activity of displaying signs stating “We Don’t Want
Scabs” on those vehicles in support of the United Mine Work-
ers of America, Local 1638, AFL–CIO, CLC’s position on
subcontracting.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its

13 I do not find Respondent’s citation to Pizza Crust Co., 286 NLRB
490, 507 (1987), enfd. 862 F.2d 49 (3d Cir. 1988), requires a different
result. There an employee was found to be lawfully suspended for
leveling a charge of book fixing against his employer. An allegation
which the judge concluded he appeared to have made up on the spot.
In finding the conduct unprotected, the judge stated, “This reckless
disregard of the truth transcends any action, such as name calling.” I
find labeling the contractors employees here was nothing more than a
form a name calling by White traditionally used for non union employ-
ees who take the work of union members.
14 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
DECISIONS OF THE NATIOAL LABOR RELATIONS BOARD1062
Glen Easton, West Virginia facilities copies of the attached
notice marked “Appendix.”15 Copies of the notice, on forms
provided by the Regional Director for Region 6, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-

15 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since October 1, 2007.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
MCELROY COAL CO.