Mci Mining Corp.

National Labor Relations Board - Board Decisions

Apr 21, 1987

283 N.L.R.B. 698 (N.L.R.B. 1987)

698 DECISIONS OF THE NATIONAL `LABOR RELATIONS BOARD
MCI Mining Corporation and Roger Jett and
Wayne 'Campbell and Raymond - Combs. Cases
9-CA-23052-1, 9-CA-23052-2, and 9-CA-
23052-3-
21 April 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 15 December 1986 Administrative Law
Judge Richard H. Beddow. Jr. issued the attached
decision. The Respondent filed exceptions and a-
supporting brief, and the General Counsel filed lim-
ited cross-exceptions and a supporting brief. Charg-
ing Party Raymond Combs filed an answering brief
to the Respondent's exceptions, and the Respond-
ent filed an answering ' brief to the General Coun-
sel's limited cross-exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to -a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,1 and
conclusions2 and to adopt the recommended Order
as modified.3
1 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the 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
2 In agreeing with the judge's finding that "the record is more than
ample to show concerted activity," we additionally rely on our decision
in Meyers Industries (Meyers II), 281 NLRB 882 (1986). Member Johan-
sen, who did not participate in Meyers, agrees the activity was concerted
We, however, find it unnecessary to pass on the judge's reliance on his
finding that the employees' concerns were "reasonable." We also dis-
avow as unsupported by the record the judge's finding that employee
Combs' attempts to avail himself of the Respondent's problem-solving
process were "belittled and dismissed in the eyes of Respondent's person-
nel people." Finally, although we agree with the judge that the Respond-
ent's loss of production is irrelevant to whether the strike here was pro-
tected activity, we disavow his reliance on East Chicago Rehabilitation
Center, 259 NLRB 996 (1982), as authority for that proposition
The Respondent has excepted to the judge's conclusion that it violated
Sec. 8(axl) by repromulgating an unlawful rule regarding discipline of
employees engaged in "any" work disruption The Respondent argues
that this conclusion was erroneous because the rule was originally pub-
lished outside the 10(b) limitations period We reject this contention of
the Respondent based on the unrefuted evidence that this rule was main-
tamed, republished, and enforced within the 10(b) limitations period.
3 In his remedy, the judge found it necessary to issue a broad order
requiring the Respondent to cease and desist from infringing "in any
other manner" on the rights guaranteed employees by Sec 7 of the Act.
However, we have considered this case in light of the standard set forth
in Hickmott Foods, 242 NLRB 1357'(1979), and have decided that the
broad remedial language is not warranted. Accordingly, we shall modify
par 1(d) of the recommended Order to use the narrow injunctive lan-
guage, "in any like or related manner" We shall also modify par 2(a) of
the recommended Order to require that the Respondent offer to reinstate
Combs without prejudice to his semority or any other rights and privi-
leges enjoyed
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that . the
Respondent,MCI Mining Corporation, Bulan, ' Ken-
tucky, its, officers, agents, successors, and_ assigns,
shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraph 1(d).
"(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of rights guaranteed them by Section 7 of
the Act."
2. Substitute the following for paragraph 2(a).
"(a) Offer Raymond Combs immediate and full
reinstatement to his former job or, if that job no
longer exists,, to a, substantially equivalent position;
without- prejudice to his seniority or any other
rights and privileges previously enjoyed and make
him whole for any loss of earnings and other bene-
fits resulting from his discharge in the manner
specified in the remedy section above, and remove
from its files any references to his termination' on 9
April 1985 and notify him in writing, that this has
been done.and that evidence of this unlawful sepa-
ration will not be used as a basis for future person-
nel actions against him."
3. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT suspend, discharge, or otherwise
discriminate against any of you for engaging in a
strike for the purpose of securing satisfactory reso-
lution of your work-related grievances.
WE WILL NOT threaten you with termination for
engaging in a strike.
283 NLRB No. 107
MCI MINING CORP. 699
WE WILL NOT maintain or enforce any rule that
threatens discipline , including discharge, for being
involved in initiating a strike.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Raymond Combs immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other
rights or privileges previously enjoyed and WE
WILL make him whole for any loss of earnings and
other benefits resulting from his discharge, less any
net interim earnings , plus interest.
WE WILL revoke the suspensions of Raymond
Combs, Wayne Campbell, and Roger Jett, and
make them whole for any loss of earnings and
other benefits resulting from their suspensions, less
any interim earnings, plus interest.
WE WILL remove from our files any reference to
the discharge of Raymond Combs and the suspen-
sions of Raymond Combs, Wayne Campbell, and
Roger Jett, and WE WILL notify these employees in
writing that this has been done and that the dis-
charge and suspensions will not be used as a basis
for future personnel actions against them.
WE WILL issue a notice revoking our notice of 8
October 1985 , as repromulgated by a letter to all
,our employees dated 10 April 1986.
MCI MINING CORPORATION
Patricia R. Fry, Esq., for the General Counsel.
Donald P. Wagner, Esq., of Lexington, Kentucky, for the
Respondent.
Tony Oppegard, Esq., of Hazard , Kentucky, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge.
This matter was heard in Hazard, Kentucky , on 8 and 9
July 1986. -Subsequent to an extension of the filing date,
briefs were filed by all parties.
The proceedings are based on charges filed 18 April
1986, by individuals Roger Jett, Wayne Campbell, and
Raymond Combs. The Regional Director's consolidated
complaint , dated 29 May 1986 , alleges that the Respond-
ent, MCI Mining Corporation, of Bulan, Kentucky, vio-
lated Section 8(a)(1) of the National Labor-Relations Act
by suspending and discharging employees because they
engaged in concerted protected activities and by main-
taining a rule that employees would be disciplined- for
engaging in a work stoppage and threatening employees
with discharge if they did not end a lawful strike. On a
review of the entire record in this case and from my ob-
servation of the witnesses and their demeanor, I make
the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Kentucky corporation engaged in the
mining and sale of coal . It annually sells and ships coal
valued in excess of $50,000 directly to points outside
Kentucky and it admits that at all times material it has
been an employer engaged in operations affecting com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
H. THE ALLEGED UNFAIR LABOR PRACTICE
Respondent , also known as Mountain Coals, Inc., is
owned by Cyprus Minerals Company of Denver, Colora-
do, and it consists
-
of three subsidiary companies-Star
Fire Coals, Inc., Lost Mountain Mining, Inc., and Buck-
horn Processing Company. Star , Fire and Lost Mountain
operate separate strip mining sites near Hazard, Ken-
tucky. The coal is processed by Buckhorn Processing.
Although none of Respondents employees are represent-
ed by a union, they have a history of engaging in strikes
in order to obtain concessions from management and to
remedy employee grievances. For example , a 3-week
work stoppage by employees at all three facilities oc-
curred in January and February 1985 (precipitated by the
discharge of an employee for not wearing a hardhat
inside a vehicle cab). That strike ended after negotiations
between employees and management cumulated in a
written commitment by Respondent to negotiate a writ-
ten seniority policy, and to form an employee/-
management communication committee that would meet
regularly, as well as an agreement to modify the Compa-
ny's policy regarding the wearing of hardhats.
On 13 February, after the first strike, Respondent sent
a memo to its employees that included the following po-
sition statements:
2. Communications Committee: A communications
committee will be established for each facility (Lost
Mountain, Star Fire, and Buckhorn). Each commit-
tee will be composed of two hourly employees from
each job at each facility, the Vice President and
General Manager, and the Employee Relations
Manager . The membership will rotate over a period
of time, so that each employee and, possibly addi-
tional management personnel have the opportunity
to work on his or her company's committee. The
purpose of the committee will be to discuss issues
which remain unresolved after discussion with an
employee 's immediate foreman , and the Mine Man-
ager . We assure you that the committee will meet at
least once a month.
12. Seniority Rights and Training: The Manage-
ment of Lost Mountain Mining , Inc., Star Fire
Coals, Inc., and Buckhorn Processing Company in-
dividually agree that the job bidding and layoff
issues need to be clarified and list the following in-
700 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
formation as a starting point to better understand
job bidding and lay-offs. These procedures- will be re-
viewed with committees for each of the companies
before implementation.
Job Bidding : If a permanent job vacancy occurs
in an operating job line (such as dozer operator, me-
chanic, truck operator, sampler, blasting operator,
etc.) the job will be offered to the employee in that
same job line on that same shift starting with the
most senior in that particular line. When one hori-
zontal move in that job line is -made, the resulting
vacancy will be filled by offering the job to the em-
ployee in that same job line beginning with the
most senior on the remaining shifts . In the event the
existing employee in a job line does not want to
move to fill a vacancy, the posting proccedure [sic]
will be used to select a qualified operator outside
that job line. The resulting vacancy will be filled by
an employee working outside that classification by
publicizing the job throughout the individual com-
pany for three working days. Any interested em-
ployee may bid on that job. Jobs created by the ad-
dition of new equipment will be treated as above.
Mine seniority will govern in filling job bids pro-
vided the employee has the- physical ability to per-
form the job and has reasonable knowledge of the
job that will enable him or her to begin performing
job `duties.
An employee will be given a trial period of thirty
-(30) working days to prove he or she is qualified for
the new position. If at the end of the trial period_
the employee has not demonstrated the ability to-
perform the job in a safe -and efficient manner, he or
she will go back to his or her original job.
Job changes through the bidding process, from
one job line to another, must be limited to one' per
employee per year. When employees change job
lines, they give up their previous seniority in their
previous job line. An employee can hold seniority
in only one job line at any one time.
Management and employee representatives subsequent-
ly discussed the seniority policy for Star Fire in several
of the communications committee meetings . The compa-
ny proposed creating training 'positions for some of its
jobs, including mechanics and operators. The Company
wanted to designate the positions as mechanic I and me-
chanic II, and operating I and operator II, with the "II"
designation being the training position for the "less than
full qualified" employee. Employees, through the com-
munications committee, -objected to the creation of the
training position, but the Company nonetheless issued a
seniority policy on 18 April that contained a provision
establishing the training positions . Employees immediate-
ly threatened to either , go on, strike or to contact the
United Mine Workers Union if the training positions
were not abolished. The Company relented and on 22
April Star Fire issued a revised seniority policy, which
did not include the training positions.
In May 1985, a layoff of employees occurred at Star
Fire. At the same time, its maintenance ' department
needed to hire four additional mechanics. Respondent
posted openings for four repairmen, a new job classifica-
tion that was, established so that Respondent could retain
some existing employees that otherwise would be laid off
rather than going outside the Company to hire fully
qualified mechanics. Respondent created the repairman
job, which was the equivalent of, a training position,
without consulting with the communications committee.
Nothing was stated to employees or put in writing- as to
whether mechanics and repairmen would be in the same
job line or different job lines `for seniority, purposes. -Four
employees, Larry Sloane, J. B. Spencer, Virgil Freder-
icks, and James Osborn were assigned to the repairman
jobs.
When the repairman classification was created, em-
ployees Ed Mullins and Roger Jett, who both were com-
munications committee members, objected to the' estab-
lishment of the new position. Mullins told Mine Manager
Bill Harris that Star Fire' had agreed not to create a
training position without the approval of the employees
and Jett warned him that it would lead to a strike. Mul-
lins and Jett both, equated the repairman's job, with that
of the mechanic II proposition that had been rejected by
the employees only a month before.
Several strikes occurred during the summer and fall of
1985 after an employee was disciplined for refusing to
work on a shift that included working on Sunday, an em-
ployee who had not received a job bid notice (while on
vacation) walked off the job, and after, additional pay
was given to the drag line crew. No employees were dis-
ciplined as a result of their participation in these strikes.
On 8 October 1985, Respondent issued a notice to all
employees that stated:,
During the past several months, our companies
operations have been marked by a series of work
disruptions . . . . This makes it difficult, if not im-
possible, to keep current contracts or win additional
contracts . . . the' work disruptions jeopardize our
very livelihood yours and mine-and possible [sic]
the existence of Mountain Coals.
Means of communications for all our problems
and concerns have been firmly established and are
open to everyone-from the hourly employees up
through the uppermost levels of management.
Therefore, it should be known by every employee
that Mountain Coals will not tolerate the actions of
individual[s] that promote and initiate any disrup-
tions of our companies operations. Individuals in-
volved in initiating any such disruptions- will be sub-
ject to disciplinary actions by the Company, up to,
and including discharge."
Mine Manager Harris testified that, in the Company's
view, the June and July strikes each had been caused by
one individual, and the notice was directed,, only at the
specific individuals who had shut the job down, not at
employees generally, however, the notice specifically re-
ferred to and was issued to "every" employee.
Raymond Combs was employed as a 'mechanic by Star
Fire from 1983 until his discharge on 9 April 1986.
Combs originally worked the first (day) shift but was
moved to the second shift when Star Fires changed its
MCI MINING CORP. 701
operation from two shifts to three shifts in October 1985.
One of the new repairman ,,, J. B. Spencer, remained on
the first shift. Although Combs had family-related 'rea-
sons for preferring the first shift, he did not protest being
moved to -the second shift because he believed Spencer
had more "company seniority" and he understood that
company seniority was the -determining factor for shift
assignments under the new shift alignment.
In January 1986, Star Fire moved repairman Larry
Sloane from second shift to first shift. Combs felt that he
should, have been given the opportunity to move to day
shift ahead of Sloane because he had more job line se-
niority than Sloane and he successively brought his com-
plaint, to, Maintenance Superintendent Henry Cherpak,
Mine Manager Harris, Human Resources Representatives
Tim Johnson and Sharon Maynard, and MCI Vice Presi-
dent and General Manager Robert Slack, arguing that
mechanics and repairman were in the same job line, and
therefore he should have been given the•day shift job
ahead of Sloane. Slack ultimately decided that Star Fire's
decision to move Sloane to the day shift was in accord
with the Company's seniority policy.'
Wayne Campbell, a third-shift mechanic who, had
taken part in the negotiations regarding the seniority
policy as a member of the communications committee,
testified that there, was talk among the men about the
moving of the repairman and that he believed that he,
Combs, and Vernon Earl, another mechanic, all had been
"bypassed," however, he did not voice his concern to
management at that time.
In March 1986, the Company decided to move another
repairman, Virgil Fredericks, to the day shift to replace
Spencer, who had'been'injured on the job. Combs imme-
diately complained to Cherpak but was told that his
opinion had not changed. Combs then met with May-
nard, and again complained that Star Fire was violating
its job line seniority policy by moving a less-senior re-
pairman around him and he requested a meeting with
Robert Migliaccio, the new mine manager.
The following week Combs and Ed Mullins met with
Migliaccio- and Maynard. Mullins was a day-shift me-
chanic who previously had been" selected by the employ-
ees to serve as a spokesman with management during the
1985 conflicts. He did most of the talking with Migliac-
cio and argued that the repairman position should be
abolished because the Company had previously agreed
not to establish a training position without the employ-
ees' approval. Mullins argued that if the repairman posi-
tion was not abolished, it should be in the same job line
as the mechanic position because the mechanics and re-
pairmen did essentially the same work. Mullins also
argued that the Company had violated the seniority
policy in another instance when it put two new bulldoz-
ers on the job and hired new' employees to operate them
rather than offering the new equipment to the most
senior dozer operators. Migliaccio promised he would in-
vestigate these matters further.
' Harris left Star Fire in late January 1986 He was replaced by Robert
Migliaccio, who began work on February 24, 1986. Slack replaced Jim
Morris (who had participated in negotiations of the seniority policy) as
vice president and general manager on January 21, 1986; and Larry Man-
zanares replaced Bill Pebley as manager of human resources in May 1985.
The following day, Mullins gave Maynard the original
seniority policy proposal that had been presented to the
communications committee in 1985 by Star Fire's man-
agement as his "proof' (inasmuch as -the revisal did not
reflect any training positions) that the employees had
earlier rejected the mechanics I and II positions. The
next week, on 31 March, Mullins met with Migliaccio
alone and again discussed the seniority policy issue. At
the conclusion of this meeting, Migliaccio announced
that- he was going to uphold the Company's original po-
sition that mechanics and repairmen were two separate
job lines for seniority purposes. Mullins told Migliaccio
that his decision "could result, in a walkout."
That same evening, Migliaccio met with over 70 of
Star Fire's first- and second-shift employees. He handed
out a copy of the 22 April 1985 seniority policy with a
cover memo dated 31 March 1986 and he discussed the
employees' concerns regarding the seniority policy.
Combs and Mullins, as well as`several other employ-
ees, including Buddy Engle, George Short, Blake
Haddix, Lathan Nix, and Randy Hurt„ argued that Star
Fire was violating the seniority agreement. Mullins again
mentioned the bypassing of senior operators for the new
bulldozers. Operator Lathan Nix testified that he and
other employees were` "ready to go to the foot of the
hill" (an expression that means to go on strike) but were
dissuaded by Combs who said he would talk with man-
agement further and asked the employees to hold off a
few weeks to see if something could be worked out.
Migliaccio held a similar meeting that night with the
third-shift employees, Wayne Campbell told Migliaccio
that mechanics were also being affected by the decision
to allow the repairmen to, bypass Combs on to the first
shift. Roger Jett, a third equipment operator, who also
was selected to represent employees at committee meet-
ings, confirmed that he, as well as other employees, was
upset by the creation of the repairman job but that be-
cause of concern over jobs and confusion at the time of
the May layoff, no earlier complaint was made to man-
agement. After the 31 March meeting, however, both
Campbell and Jett asked their night-shift foreman to
have Migliaccio set up a communications committee
meeting to discuss the job line security issue (after the
initial meetings , in 1985, no further meetings of the com-
mittee were held after September, despite the fact that
Respondent had indicated that it would hold monthly
meetings).
Subsequent to the latter meetings, Nix twice spoke
with Migliaccio on the jobsite and told him that if "we"
could not settle the job line seniority issue, it- would "go
to the foot of the hill." Nix and others also told Migliac-
cio of past agreements between management and the em-
ployees on the issue and Migliaccio requested that they
produce a company-signed agreement that there would
be no repairman. In response , Mullins provided a copy
of Respondent's proposal dated 18 April, and another
employee provided a group of negotiation documents
from the 1985 strike negotiations, which resulted in the
memo, of 13 February signed by Morris and reflected the
above-noted seniority provisions. Migliaccio testified that
he subsequently, called Morris at his new job assignment
702 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
for Respondent's parent company and said that Morris
gave him no specific confirmation of an agreement. Mig-
liaccio then saw Combs on the road, stopped him, and
asked for any additional documentation. Combs' said he
did not have any and Magliaccio then said "My decision
won't make you happy." Combs returned to his work
area and told the other four shift mechanics of Migliac-
cio's decision and they agreed it was time to meet at the
foot of the hill Monday morning.
On 8 April Combs arrived at the foot of the hill be-
tween 5:30 and 6 a.m. and began letting arriving Star
Fire employees know there was a strike. One employee
continued to the jobsite, but all others pulled over and
between 50 and 100 employees joined the picket line.
Shortly thereafter Migliaccio was notified of the em-
ployees work stoppage, and went to the site with May-
nard. Maynard testified when they first stopped she saw
Combs and, after she asked him what was going on, he
replied, "Its about this repairman thing, Sharon. I'm the
one- that stopped these boys here:" Migliaccio, however,
mentioned no such conversation, but did say everyone
crowded around them. Migliaccio told them that there
was a company policy against any strike and asked that
they go back on the hill and work it out. Combs testified
that he initially said nothing,- but that someone else
yelled out to Migliaccio that- "the only way we can get
your attention is to come to the foot of the hill." When
Migliaccio then accused Combs of stopping the entire
Company from working, Buddy Engle spoke up and told
Migliaccio: "He didn't stop me, we stopped ourselves.
He wasnt the one that stopped us, because we knowed
what was going on." Then, several employees including
Combs, Mullins, and Jett spoke to Migliaccio about the
repairman-seniority problem. It was decided that the em-
ployees would chose a committee to develop a proposal
for ending the strike and present it to Migliaccio. The
strikers chose Combs, Mullins, and Sloane. These three
went on', the jobsite and me with Migliaccio, Maynard,
and Joel 'Davis, Star Fire's production superintendent.
The committee proposed that the employees would end
the strike if Respondent -would move Combs to first
shift, retain Sloane on first shift, mingle repairmen and
mechanics seniority in a single job line, and permit re-
pairmen to take a test to qualify for vacant mechanic po-
sitions. The meeting ended without an agreement. Later,
on the afternoon of 8 April, some employees from Re-
spondent's Lost Mountain mine stopped at the picket line
and told the strikers that the Lost Mountain employees
would honor the strike if a few Star Fire employees
would come to the Lost Mountain jobsite.
That evening Migliaccio called Combs,at his home and
arranged to meet, him in Hazard. Migliaccio met Combs
and handed him a suspension notice, which stated that
'Combs was immediately being placed on suspension for a
period of 10 working days without pay for his admitted-
ly causing a work stoppage at Star Fire on 8 -April 1986.
The suspension `also referred to Respondent's policy
notice of 7 October 1985 and warned Combs that if he
continued disrupting the work force, it would be forced
to discharge him.
After receiving the suspension notice, Combs went to
speak with a "spokesman" for Respondent's Lost Moun-
tain facility. The suspension notice and the job- line se-
niority dispute were discussed and the spokesman reas-
serted an offer, made earlier that day, that the Lost
Mountain employees would support the Star Fire strike
if some of their employees came to the Lost Mountain
site the following morning.
The next morning, Combs, went to the Lost Mountain
site and found one Lost Mountain employee,, Carlin
Jones, already at the picket line. Soon thereafter, Wayne
Campbell and Roger, Jett arrived, as well as two Lost
Mountain "spokesmen" who began stopping other em-
ployees as they arrived.
- Most employees parked their vehicles and did not
report to work. Later that morning, Larry Manzanares,
Respondent's new human resources manager, and May-
nard, Star Fire's human resources representative, arrived
at the Lost Mountain picket line and spoke-briefly with
Combs, Campbell, ' and Jett. During their discussion,
Combs told Manzanares that Star Fire was violating the
job line seniority policy. That evening, a letter was deliv-
ered to Combs' home, stating that he was terminated:
"because of your continued activities in causing further
work stoppages at the Lost Mountain Mining and Buck-
horn Processing operations."
On Thursday, April 10, most employees went up to
the Star Fire-office to get their paychecks. All employ-
ees received a letter from Respondent stating that "fail-
ure on your part to report for your regularly scheduled
shift beginning Sunday night, April 13, 1986, will leave
the Company no choice but to assume that you have
abandoned your job and your services will be terminated
effective on date you last worked." The letter also told
employees that the employee who had initiated the "dis-
ruptions" had been terminated. Attached to each letter
was a copy of the 8 October 1985 policy notice.
After learning of the warnings, Combs told_ the other
employees to return to work and that he 'would handle
his case through the Labor Board. Employees returned
to work on 11 April 1986, however, when Campbell' and
Jett reported they were informed that they were sus-
pended for 10 days "as a disciplinary action ... for
causing a work stoppage at Lost Mountain Mining and
Buckhorn Processing."
III. DISCUSSION
The issues in these cases arose over a brief work stop-
page that followed - a series of actions by Respondent in
which Raymond Combs was bypassed for transfer to
first shift. As discussed below, Combs and other employ-
ees perceived Respondent's action to be violative of their
seniority rights that they believed the Company had en-
dorsed as part of an agreement that followed their return
to work after some earlier work disruptions in 1985.
A. Concerted Activity
Respondent, citing Meyers Industries, 268 NLRB 493
(1984), argues that Combs' dispute with management in-
volved a purely personal gripe rather than a protected,
concerted activity. It further contends that, in any event,
it lacked any knowledge of the alleged concerted nature
of Combs' complaint, and that its discipline of the three
MCI MINING CORP. 703
employees was motivated by its desire to avoid costly
work stoppages rather than retaliate against alleged pro-
tected concerted activity.
Contrary to Respondent's argument, I find that the
record is more than ample to show concerted activity by
Combs, Campbell, Jett, and other employees. Respond-
ent also had contact with several employee representa-
tives or "spokesmen" (including Mullins, Campbell, and
Jett), both in the context of communications committee
meetings and subsequent informal contacts where these
spokesmen expressed their concerns over the same
matter that most directly affected Combs. It is clear that
the issue of job line security was a matter of particular
concern to many employees and the subject also was dis-
cussed in meetings and written about in management
documents during and after the work stoppage that oc-
curreA in early 1985.
In May, when the repairman position was created,
committee members Mullins and Jett both complained to
Mine Manager Harris that the employees had not agreed
to it and warned that it could lead to a strike. Combs'
seniority concern was presented to management on two
separate occasions when he first was moved to second
shift after Star Fire began a three-shift operation. In Jan-
uary 1986, Combs attempted to bring his concern to all
levels of management and the grievance expressed was
tied in with the job line security issue, the creation of
training positions, and the rejected proposal to create a
mechanic II position, all subjects that employees had dis-
cussed with management during earlier communications
committee meetings. Although it is apparent that nothing
definitive subsequently was put in writing saying that the
new repairman positions would be in the mechanics job
line for seniority purposes, it is equally apparent that no
understanding was reached that they would be separate
job lines and clearly nothing was put in writing to this
effect.
Committee member Campbell testified that when
Combs was bypassed in January, he spoke with others
who shared his belief that he, Combs, and other employ-
ees also had their seniority bypassed.•Although Campbell
did not speak to management at this time, -Mullins joined
with Combs and actively presented the employees' argu-
ment to Megliaccio.
It is noted that Respondent contends that because em-
ployees have access to a "Problem-Solving Process," it is
entitled to legitimately impose discipline to maintain pro-
ductivity when employees go beyond the process and
engage in a work stoppage. It appears, however, that
when Combs repeatedly tried to avail himself of the
process, his attempts went unrecognized and effectively
were belittled and dismissed in the eyes of Respondent's
personnel people, especially human resources associate
Maynard. Here, Maynard repeatedly gave self-serving
testimony to minimize the nature of Combs' complaint
and to support her alleged perception of the matter as an
isolated personal case of no interest to anyone else.- Yet,
as she also acknowledged, Combs told her the only time
"the Company" would listen is when "they" go to the
foot of the hill, the same sentiment shouted out, by an-
other employee when, after Mine Manager Migliaccio
asked employees to go back to the job and work out
their problems.
Respondent also-attempts" to discount Mullins' partici-
pation in the January meeting with Migliaccio because it
was Migliaccio who suggested that Combs be accompa-
nied by a spokesman. Mullins,- however, testified that
Combs had voiced -his complaint over Sloane's transfer
when it first occurred and that Mullins twice recom-
mended to Combs that he first go to the Company and
try to work it out. Mullins' argument to Migliaccio also
was made in terms of management's violation of what
Mullins termed "our agreement" on seniority issues, as
evidenced by Respondent's 18 April policy statement to
all employees that omitted the mechanic II proposal that
previously- had been presented by management.
The independent testimony of several employees also
shows that they had their own concern over the seniori-
ty policy prior to the actual work stoppage, which itself
was supported by several hundred workers. -
Specifically, it is shown that Migliaccio met with em-
ployees on 31 March and heard complaints from at least
five different employees who expressed their concern
over violations of the seniority policy. Employees said at
that time .that they were "ready to go to the foot of the
hill". and Campbell specifically, told Migliaccio he and
others were being affected by, the bypassing of Combs.
Subsequently, both Campbell ' and Jett also asked their
night-shift foreman to set up a committee meeting to dis-
cuss these concerns. Accordingly, I fmd that Combs' al-
leged "individual complaint, clearly was already a
matter of group concern and activity that had been com-
municated to Respondent 's mine manager and other su-
pervisors prior to the time of the actual strike.
Under these circumstances it is,clear that the strike,
with 300 employees participating at both locations, was a
continuation of the employees' concerted complaints, re-
gardless of the fact .that it was precipitated by manage-
ment's refusal to reconsider the alleged bypassing of one
particular employee. It also,is clear that management was
well aware that several other employees had independ
,ently expressed or joined in the complaint over Respond-
ent's practice of implementation of transfer without ap-
parent regard to seniority. In this connection, I specifi-
cally find implausible the testimony by human resources
representative Maynard, and General Manager Robert
Slack to the effect that Combs gratuitously volunteered
to each of them that he did not have any backing (also
attributed to Mullins), and that he said he individually
started the strike. It is contrary to the weight of the
credible evidence of other witnesses , and I fin such tes-
timony to be so self-serving and lacking in probative
value that it cannot prevail over the clear and convinc-
ing evidence that numerous employees otherwise en-
gaged in continuing, concerted complaints and that Mine
Manager Migliacpio ;and other supervisors were well
aware of the employees' complaints,
I also conclude that, inasmuch as Mullins, Campbell,
and, Jett also were known by management to be "com-
mittee" representatives or "spokesmen" selected by the
other employees, it should have known that their expres-
sions relating to terms and conditions of employment re-
704 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
flected the mutual, concerns of other employees. Other-
wise, it is clear that Respondent understood that the
strike concerned not only Respondent's failure to move
Combs to first shift, but also the manner in which the re-
pairman position was being used to interfere generally
with seniority rights and it understood that employees in
other job lines, including operations and truckdrivers,
were concerned about possible changes in their job lines
that could result in their loss of opportunities to move to
a preferred shift or to, a preferred piece of equipment.
The employee concerns directly related to terms and
conditions of employment and, are clearly reasonable
concerns, regardless of the ultimate merit of, the underly-
ing complaint with respect to Combs.
Here, the employee concerns and the resulting strike
were not based on bad faith or one individuals' personal
benefit, see Interior Alterations, 264 NLRB 677 (1982),
and there is no indication that the employees engaged in
any violent, disloyal, or inherently egregious activity
that, under some circumstances, might adversely affect
their rights to protection under the Act. Respondent's ar-
gument that it lost several days of production due to the
strike is irrelevant to the question of 'whether the strike
was protected, see East Chicago Rehabilitation Center,
259 NLRB 996 (1982). And, accordingly, I conclude that
the strike was a protected concerted activity based on
the employees' reasonable belief that Respondent was en-
gaged in practices that adversely affected the terms and
conditions of their employment. I further conclude that
management knew of the concerted nature of the activity
when it suspended or discharged employees known to be
participants in that activity, see Consumers Power Co.,
282 NLRB 130 (1986).
B. Suspension and Termination
It, is well established that when unrepresented (nonun-
ionized) employees jointly participate in withholding
their services (strike) for the purpose of pressuring their
employer into resolving to their satisfaction grievances
over their rates of pay, wages, hours, or working condi-
tions, they engage in "concerted activities for the pur-
pose of collective bargaining or other mutual aid'or pro-
tection" within the meaning of Section 7 of the Act, and
it is a violation of the Act for their employer to dis-
charge, suspend, or otherwise interfere with, restrain, or
coerce them for engaging in such activity." See San Diego
County Assn. for the Retarded, 259 NLRB 1044 (1982),
and cases cited. It also is'unlawful for an employer to re-
taliate against an employee because he picketed, as did
Combs, at a location other than his normal place of em-
ployment. Consolidation Coal Co., 266 NLRB 670 (1983).
Here, the record shows that shortly after the strike
began Respondent met with Combs and two other em-
ployee representatives and was told that their demands
included a specific request that Combs be moved to first
shift and that repairmen and mechanics' seniority be in a
single job line. Shortly thereafter Respondent gave
Combs a letter suspending him for 10 days for causing
the work stoppage at Star Fire. The following day man-
agement observed and, spoke with Combs, Campbell, and
Jett, at the Lost Mountain Mine and Buckhorn Process-
ing work stoppage . It then issued the 'same suspension
letter to Campbell and Jett, as well as, a followup letter
of termination to Combs, stating in each instance that the
disciplinary action was taken because of their causing a
work stoppage. No contention was made or evidence
presented to indicate that Combs, Jett, or Campbell
blocked employees' ingress or egress or that'they tres-
passed or otherwise engaged in any misconduct. -
Under these circumstances it is undisputed that Combs,
Campbell, and Jett were disciplined for their participa-
tion in activity that otherwise is shown to be protected
and concerted. Accordingly, I conclude that Respond-
ent's action in this regard is shown to be in violation of
Section 8(a)(1) of the Act, as alleged.
C. The Rule and Threat Against Work Stoppage
In the absence of binding collective-bargaining agree-
ment containing a valid no-strike clause, employees have
a right to strike and an employer may not interfere with
that right by threatening without qualification to retaliate
against employees who ` exercise such rights . `Here, the
records show that Repondent issued a notice 8 October
1985, to all employees, which said:
Individuals involved in initiating any such `(work)
disruptions will be subject to disciplinary action by
the Company up to and including discharge.
This same notice was attached and referred to in the
letter that Respondent gave to all employees on 10 April,
after the strike had started. This letter also stated that
employees "will be terminated" on failure to report for
their regular shifts beginning Sunday night, 13 April.
An employer's threats to terminate or discipline em-
ployees because they engaged in rights protected by Sec-
tion 7 of the Act constitute illegal interference. As noted
above, the concerted withholding of services in an at-
tempt to resolve grievances over terms and conditions of
employment is a protected right. Respondent was well
aware of the 'nature and cause of the employees' strike
when it made its termination threat and reissued its disci-
plinary rule- pertaining to work stoppages. As noted by
the General Counsel, while strikers may lose their pro-
tected status by' engaging in serious misconduct or for
certain other reasons, no such qualifications were incor-
porated in Respondent's letter or notice. Here, the timing
of the threat and reissuance of the notice on Thursday,
the second day of the strike, with an almost immediately
effective date for termination after only one additional
regular working day, clearly demonstrated the coercive
and intimidating nature of Respondent's interference
with its employees' rights. Although the rule seemingly
threatens only the "initiator" of a work disruption, it
threatens to discipline "any" employee who "initiates' a
strike, regardless of the possible protected nature reasons
for employees to initiate a grievance.
Accordingly, I conclude that Respondent's letter
threat of 10 April to terminate employees if, they did not
return to work and Respondent's reissuance of its 8 Oc-
tober notice - with its unqualified and overly broad rule
providing for discipline, including discharge, for "indi-
viduals" involved in initiating "any" work disruptions,
MCI MINING CORP. 705
are both violations of Section (8)(1) of the Act, as al-
leged.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. By discharging Raymond Combs on 9 April 1986
and by suspending Combs on 8 April 1986 and suspend-
ing Wayne Campbell and Roger Jett on 9 April 1986 for
engaging in a lawful strike, Respondent engaged in
unfair labor practices in violation of Section 8(a)(1) of
the Act.
3. By threatening to terminate employees who did not
return by 13 April 1986 and by repromulgating a rule
providing for discipline, including discharge, for individ-
uals involved in initiating any work disruptions, Re-
spondent has interfered with, restrained, and coerced em-
ployees in the exercise of their rights guaranteed them by
Section 7 of the Act, and thereby has engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices , I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
The Respondent having discriminatorily suspended
Wayne Campbell and Roger Jett for 10 days and termi-
nated Raymond Combs, I fmd it necessary to order it to
offer Combs reinstatement to his former position and to
revoke the suspension of Campbell and Jett , with com-
pensation for loss of pay and other benefits, in accord-
ance with F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in Florida Steel Corp., 231
NLRB 651 (1977). It also shall remove from its files any
reference to the suspensions and termination and notify
them in writing that it has been done and that evidence
of such unlawful action will not be used as a basis for
further action against them. See Sterling Sugars, 261
NLRB 472 (1982). Otherwise , because of the serious
nature of the violations and an overall display of a gener-
al disregard for the employees' fundamental rights, I fmd
it necessary to issue a broad order, requiring the Re-
spondent to cease and desist from infringing in,any other
manner on rights guaranteed employees by Section 7 of
the Act. See Hickmott Foods, 242 NLRB 1357 (1979).
As part of the relief sought , the General Counsel also
seeks imposition of a so-called visitatorial clause whereby
the Board would be authorized to engage in certain dis-
covely activities in order to monitor compliance. Al-
though the imposition of such a provision recently has
become a somewhat common practice, there is no show-
ing that it is of particular applicability to the unfair labor
practices involved in this proceeding . Accordingly, the
request is denied and no visitatorial clause will be im-
posed as part of the order.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER'
The Respondent, MCI Mining Corporation, Bulan,
Kentucky, its officers,, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Suspending, discharging, or otherwise disciplining
its employees for engaging in a strike for the purpose of
securing satisfactory resolution of their work-related
grievances.
(b) Threatening its employees with termination for en-
gaging in a strike.
(c) Maintaining or enforcing any rule that threatens
discipline, including discharge, for being involved in ini-
tiating a strike.
(d) In any other manner interfering with, restraining,
or coercing employees for engaging in a protected con-
certed activity in the exercise of their rights guaranteed
under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Raymond Combs immediate and full rein-
statement to his former or equivalent position and make
him whole for the losses he incurred as a result of the
discrimination against him in the manner specified in the
remedy section, and remove from its files any references
to his termination on 9 April 1985 and notify him in
writing that this has been done and that evidence of this
unlawful separation will not be used as a basis for future
personnel actions against him.
(b) Revoke the suspensions of Raymond Combs,
Wayne Campbell, and Roger Jett, and make them whole
for the losses they incurred as a result of the discrimina-
tion against them in the manner specified in the remedy
section, and remove from its files any references to these
suspensions and notify them in writing that this has been
done and that evidence of these unlawful suspensions
will not be used as a basis for future 'personnel actions
against them.
(c) Issue a notice to all employees revoking its notice
of 8 October 1985, as repromulgated by its letter to all
employees dated 10 April 1986,
(d), Preserve and, on request, make available to the
Board or its agents, for examination and . copying, all
records, reports, and other documents necessary to ana-
lyze the, amount of backpay due under the terms of this
decision.
(e) Post at its Star Fire Coal, Lost Mountain Mining,
and Buckhorn Processing facilities copies, of the attached
notice marked "Appendix."3 Copies of the notice, on
2 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
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 Tor all pur-
poses.
g 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
Continued
706 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
forms provided by the Regional, Director for Region 9, employees are customarily, posted. Reasonable steps shall
after being signed by the Respondent's authorized repre- be taken by the Respondent to ensure that the notices
sentative, shall be posted by the Respondent immediately are not altered, defaced, or covered by any other materi-
upon receipt and maintained for 60 consecutive days in al,
conspicuous places including all places where notices to (f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
the United States Court of Appeals Enforcing an Order of the National spondent has taken to comply.
Labor Relations Board."