Midwestern Fuels Systems, Inc., And Reclamation Services, Inc.

National Labor Relations Board - Board Decisions

Nov 1, 1985

277 N.L.R.B. 221 (N.L.R.B. 1985)

MIDWESTERN MINING
Midwestern Mining & Reclamation , Inc., a Subsidi-
ary of Midwestern Fuels Systems , Inc., and
Reclamation Services, Inc. and United Mine
Workers of America. Case 17-CA-11191
1 November 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 26 October 1983 Administrative Law Judge
Gordon J. Myatt issued the attached decision. The
Respondent and the General Counsel each filed ex-
ceptions, cross-exceptions, supporting briefs, and
answering briefs.
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,' and
conclusions and to adopt the recommended Order
as modified. 2
We agree with the judge's finding that the "de-
motion" to leadmen of certain individuals previous-
ly designated as supervisors was an attempt to pack
the unit to dilute the UMW's majority support. We
emphasize that the duties and wages of these indi-
viduals were unchanged following the alleged de-
motion and they continued to exercise the supervi-
sory authority previously vested in them.3 We
' 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 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
We disavow the judge's statement in sec VIII, par. 9 of his concluding
findings that the Company conveyed the clear message to the employees
that it "favored the CIU and would not engage in unlawful conduct to
undermine employee support of that union " Such a message, had it been
conveyed, would not be unlawful The Respondent's message, however,
was that it favored and assisted the CIU and would reward employees
who supported that Union because it would not be "that much of an ex-
pense to [the Company]." This contrasts sharply with the outspoken and
unlawful efforts to undermine employee support for the UMW The as-
sistance and support of a union Respondent felt it could better control is
the basis of our finding that the Company violated Sec. 8(a)(2) and (1) of
the Act.
The judge stated that in making his credibility findings he took into
account that "a number of the employee witnesses were currently work-
ing for Respondent and testifying against their own employment inter-
ests." We note that other employee witnesses who were on layoff status
also testified against their own employment interests
2 We have modified the judge's recommended Order to include the
broad remedial order language which he inadvertently omitted
i The parties stipulated that Curtis D Couch, Steve Coleman, Miles
D. Neil Jr, Robert D Palmer, and Jerry Watts were supervisors prior to
25 June 1982 In addition, Respondent's president Ira Palmer testified that
before the 16 August 1982 demotions Jack Wallace, William H. Palmer,
and Frank Weisensee had authority to discipline, direct work, assign
work, require overtime, transfer employees from job to job, and recom-
mend the hiring or firing of employees
221
agree with the judge's finding that Mel Bowie,
while not a supervisor , should be excluded from
the unit because his functions and interests are
more closely aligned with those of management
than with those of the unit employees.
We also agree with the judge that Robert E.
(Bobby) Palmer should not be included in the unit
even though he performed unit work . Palmer is the
son of supervisor and minority stockholder , Robert
D. Palmer, and the nephew and cousin respectively
of board member , supervisor, and primary stock-
holder , William Palmer, and president and primary
stockholder, Ira Palmer . Based on the foregoing,
Bobby Palmer qualifies as a close relative of man-
agement whose interests are more aligned with the
business interests of his family than with the inter-
ests of the employees . Accordingly, he should be
excluded from the unit . NLRB v. Action Automo-
tive, 105 S.Ct. 984 (Feb . 19, 1985).
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondents, Midwestern Mining and Reclamation,
Inc., a subsidiary of Midwestern Fuels Systems,
Inc., and Reclamation Services, Inc., Bronaugh,
Missouri, their officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
Insert the following as paragraph l (1).
"(1) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the
Act."
CHAIRMAN DOTSON, dissenting in part.
I agree with the decision of my colleagues
except in the following respect.
The judge found, and my colleagues agree, that
the authorization card of employee William Barnett
should be counted towards the Charging Party
Union's majority status. I cannot agree.
The judge found that Barnett signed an authori-
zation card in front of the union hall before attend-
ing a union meeting. The judge credited Union
Representative Prettyman's testimony that he read
the card to Barnett at Barnett's request. Later, but
at a time prior to the Union's demartd for recogni-
tion, Barnett called Union Organizer Forbes and
asked for the return of his card.
The judge found that Barnett's asserted revoca-
tion of his card was ineffective. The judge, citing
Warehouse Groceries Management, 254 NLRB 252
(1981), concluded, "When an employer has en-
gaged in coercive conduct designed to undermine
277 NLRB No. 1
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union support during an organizing effort, the
Board presumes that employee revocations of pre-
viously valid authorization cards are a direct result
of the employer's unlawful conduct."
I do not agree with Warehouse Groceries Manage-
ment and other cases which presume that revoca-
tion is a result of an employer's conduct even
where, as here, there is no evidence that the em-
ployee was indeed coerced into requesting the
return of his card. No unfair labor practices were
directed against employee Barnett. There is no
basis for presuming that coercion rather than a
change of mind precipitated his desire to revoke
his card. Absent a showing that the employee was
coerced into revoking his card, the revocation
must be deemed valid.
i See , e g, Quality Markets, 160 NLRB 44 (1966), enfd. 387 F 2d 20
(3d Car 1967)
Anne G. Purcell, Esq., for the General Counsel.
Robert A. Liberman, Esq. (Linde, Thompson, Fairchild,
Langworthy, Kohn & Van Dyke, P.C.), of Kansas City,
Missouri, for the Respondent.
Lowell Forbes, International Organization, of Pleasanton,
Kansas, and Eldon Prettyman, International Organizer,
of Liberal, Missouri, for the Charging Party.
DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Administrative Law Judge. On a
charge filed by United Mine Workers of America
(UMW) against Midwestern Mining & Reclamation, Inc.,
a subsidiary of Midwestern Fuel Systems, Inc., and Rec-
lamation Services, Inc,' (Respondents), the Regional Di-
rector for Region 17 issued a complaint and notice of
hearing on October 29, 1982.2 The complaint, as amend-
ed at the hearing, alleges Respondents constitute a single
employer and, acting through their agents and supervi-
sors, engaged in conduct which violated Sections 8(a)(1),
(2), (3), (5), and 8(d) of the National Labor Relations
Act.
More specifically, the complaint alleges that after
UMW sought to organize Respondent's employees in
early June various agents and supervisors of Respondents
committed numerous violations of Section 8(a)(1) of the
Act by: unlawfully interrogating employees about their
union activities, sympathies, and desires and about similar
activities and desires of other employees; threatening to
shut down the mining operation of Respondents if the
employees selected UMW as their collective-bargaining
representative; informing employees that Respondents
would never "go union" and would keep the UMW out;
creating an impression the employees activities on behalf
of UMW were under surveillance; threatening employees
The caption of the case appears as amended at the hearing
a Unless otherwise indicated, all dates herein refer to the year 1982
with reprisals if they talked about UMW or talked with
other employees who supported that union; soliciting
employees to attend a UMW meeting and report back
concerning matters which took place at the meeting; in-
forming employees they were laid off because of the
UMW organizing campaign; and offering employees pro-
motions to dissaude them from supporting UMW as well
as to encourage them to dissaude other employees from
supporting that union.
The complaint also alleges Respondents violated Sec-
tion 8(a)(2) of the Act by: granting employees time off
from work to attend a meeting with the Congress of In-
dependent Unions (CIU) and allowing supervisors to
attend the CIU meeting and to sign authorization cards
for that union; telling employees that Respondents fa-
vored CIU and would close down their operations if
UMW became the collective-bargaining representative of
the employees.
The complaint further alleges Respondents accelerated
a layoff of 42 employees on June 18 and terminated 28 of
the laid-off employees on August 19 in order to discour-
age membership in and support of UMW. It also alleges
that Respondents have refused to call employees Edward
H. Roberts and Elmer M. Scales to work since July 28
because these employees aided and supported UMW in
its organizing effort. In addition, the complaint alleges
Respondents purportedly withdrew supervisory status
from certain acknowledged supervisors and assigned
these individuals unit work in order to discriminatorily
deny that work to bargaining unit employees; and fur-
ther, that the supervisory employees were assigned unit
work to enable Respondents to include persons known to
be opposed to UMW in the bargaining unit. All the
above conduct is alleged in the complaint to be a viola-
tion of Section 8(a)(1) and (3) of the Act.
Next, the complaint alleges UMW was designated as
the exclusive collective-bargaining representative by a
majority of the employees in an appropriate unit and that
Respondents voluntarily recognized UMW as such on
August 11. That on August 16, however, Respondents
withdrew recognition of UMW as the exclusive repre-
sentative of its employees in violation of Section 8(a)(5)
of the Act.
Finally, the complaint alleges the asserted unlawful
conduct is of such a serious and substantial character
that it precludes the holding of a fair election among the
unit employees. For this reason, the complaint asserts the
entry of a remedial order requiring Respondents to rec-
ognize and bargain with UMW is required.
Respondents filed an answer in which they deny con-
stituting a single employer within the meaning of the
Act. The answer further denies all of the substantive al-
legations of the complaint and specifically denies the
commission of any unfair labor practices.
A hearing was held in this matter in Joplin, Missouri,
on various dates beginning on December 7, 1982, and
ending on March 4, 1983. All parties were represented
by counsel and afforded full opportunity to examine and
cross-examine witnesses and to present material and rele-
vant evidence on the issues. Briefs have been submitted
by counsel and have been considered.
MIDWESTERN MINING
On the entire record in this case,3 including my obser-
vation of the witnesses while testifying, I make the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
Midwestern Fuel Systems, Inc. (MFS), a Nevada cor-
poration, is a stockholding company which engages in
coal strip mining and reclamation work at minesites by
means of subsidiaries. Midwestern Mining and Reclama-
tion, Inc. (MMR), a Kansas corportation, is a wholly
owned subsidiary of MFS and Reclamation Services,
Inc. (RSI), a Missouri corporation, is a wholly owned
subsidiary of MMR. All the stock of MMR and RSI is
]held by MFS.
MMR is engaged in a strip mining operation in ]Bron-
augh, Missouri, the mining site involved in this case. RSI
provides reclamation services to MMR at the same
mining site. The record shows that MMR has an agree-
ment with Associated Producers Company (Associated),
an Oklahoma corporation, to produce and supply coal on
behalf of Associated to Independence Power and Light
(Independence), a utility owned and operated by the city
of Independence, Missouri. The record further shows
that the value of the coal supplied annually to Independ-
ence by MMR is far in excess of $50,000.
On the basis of the above., I find that Respondents sat-
isfy the Board's statutory and discretionary jurisdictional
standards. Accordingly, I find Respondents are, and have
been at all times material to this case, employers within
the meaning of Section 2(2) engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The record evidence and the unrefuted testimony es-
tablish that United Mine Workers of America (UMW)
and Congress of Independent Unions (CIU) are labor or-
ganizations within the meaning of Section 2(5) of the
Act.
III. THE QUESTIONS PRESENTED
The questions presented by this case are as follows:
A. Do MMR and RSI constitute a single employer for
the purposes of the Act?
B. Was the normal layoff of June 25 accelerated to
June 18 to thwart the organizational campaign of UMW?
C. Did Respondents extend voluntary recognition to
UMW on August 11 and then withdraw such recogni-
tion?
3 The record includes a video deposition of one witness, Robert D
Palmer. When this witness was initially scheduled to testify, he was suf-
fering from hypertension to such a degree that his physician advised
against his appearance at that time On the day Palmer was rescheduled
to appear, his son and daughter were involved in separate automobile ac-
cidents in which they sustained physical injuries. In view of the impact of
the accedents on Palmer's physical disability, it was considered unwise to
require him to appear to testify. By arrangement between counsel, Palm-
er's testimony was subsequently taken by means of a video deposition
after the final hearing date This video cassette has been received and re-
viewed and is hereby included as part of the record in this case
223
D. Did Respondents refuse to recall employees Rob-
erts and Scales for unlawful reasons?
E. Was the August 19 termination of the laid-off em-
ployees motivated by unlawful reasons'?
F. Did Respondents provide unlawful support and as-
sistance to CIU?
G. What is the scope and composition of the bargain-
ing unit?
1. Are certain employees supervisors within
the meaning of the Act?
2. Is employee Bowie a managerial employee?
3. Should various other employees be excluded
from the bargaining unit?
H. Did the UMW achieve a card majority in an appro-
priate bargaining unit?
I. Is a bargaining order warranted under the circum-
stances of this case?
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
Respondent MMR is party to an agreement with Asso-
ciated to produce and supply coal to satisfy a contract
Associated has to supply coal to a utility owned by the
city of Independence, Missouri. Although the life of the
agreement between Associated and MMR, as well as that
between Associated and Independence, is 14-1/2 years
(beginning October 1, 1980), it provides that the per-ton
price will be negotiated annually between Associated and
the city council of Independence. The agreement further
provides that the coal supplied will be of sufficient quan-
tity and quality to meet the requirements of Associated's
contract with Independence.4 In the event the coal sup-
plied fails to meet the British Thermal Unit (BTU) per-
ton standard set by Independence, the agreement re-
quires the supplier to make up the BTU deficiency in
subsequent shipments. If this is not done, Independence
penalizes Associated by withholding the dollar value of
the BTU deficiency from its payments to Associated
who in turn withholds, under the agreement, that
amount from its payments to MMR.
The unrefuted testimony reveals that Independence
takes a yearly inventory of its coal stock on hand during
the last week in June. As a result, no shipments are made
at that time and it is customary for half of Respondents'
work force to take a 2-week vacation beginning the last
week in June and on their return, the remaining employ-
ees go on vacation.
B. The Single Employer Issue
As previously noted, MMR is a wholly owned subsidi-
ary of MFS, and RSI is a wholly owned subsidiary of
MMR. All of the shares of stock in MMR and RSI are
owned by MFS. The stipulation by the parties in the
record makes it clear that all three companies have
common ownership, directors, and officers. The direc-
a See G C Exh 34 for a copy of the agreement between MMR and
Associated with a copy of Associated's contract with Independence ap-
pended.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tors of MFS consist of Harold Card (chairman), Ron
Walker, and Carl E. Wright. The officers of MFS are:
Card, president; Walker, vice president; and Wright, sec-
retary-treasurer. Card, Ira W. Palmer, and his father,
William H. Palmer, are major shareholders in MFS.5
MMR was apparently organized and began operations
in 1977. Its directors are Harold Card (chairman), and
Ira and William H. Palmer. The officers of MMR are:
Ira Palmer, president; Ron Walker, vice president; Mi-
chael McCrate, vice president of operations; and Carl E.
Wright, secretary-treasurer.
The record is unclear whether RSI was organized in
1981 or 1982. It is stipulated, however, that the directors
are Harold Card (chairman), Walker, Wright, and Ira
and William Palmer. The officers are the same individ-
uals who are the officers of MFS; i.e., Card, president;
Walker, vice president; and Wright, secretary-treasurer.
According to the testimony of Ira Palmer, MMR owns
somewhat less than 100 acres of land and leases between
400 and 500 additional acres at the Bronaugh minesite.
On May 17, 1982, MMR entered into an agreement with
RSI to perform carpentry, electrical, maintenance, and
reclamation work which previously had been performed
by MMR employees at the minesite. (See G.C. Exh. 2a.)
Under the terms of this agreement, MMR is required to
pay RSI $9 per hour for a 40-hour week for the services
rendered by each RSI employee. However, the record
also reveals that MMR constructed a new maintenance
building on the site and leased it to RSI at an annual
rental of $24,000. (See G.C. Exhs. 29 and 29a). The lease
provides that the rental may be discharged by services
rendered at $9 per hour per employee for a 40-hour
week in lieu of cash payment, thus obviating the need for
any cash transfers between MMR and RSI on either the
service contract or the lease agreement.
The unrefuted testimony indicates that, when the ar-
rangement with RSI was implemented at the minesite,
there was no formal announcement made to the MMR
employees. Rather, employees who were on the MMR
payroll performing the work now assigned to RSI simply
were shifted to the RSI payroll, retaining their seniority
from the date of hire by MMR, as well as their job clas-
sifications and rates of pay. They worked under the same
supervisors and continued to perform the same work as-
signments they previously performed as MMR employ-
ees. In addition, it is evident from the record that all of
the employees at the minesite, whether on RSI or MMR
payrolls, were subject to the directions of supervisors of
either company, including the issuance of verbal and
written reprimands.6 Since RSI owns no equipment, its
5 The record reveals that MFS has 10 4 million shares of stock out-
standing. Cards owns I million shares, Walker owns 13 million, Ira
Palmer owns I I million, William Palmer owns I million, and Robert D
Palmer owns 50,000 The remaining shares are held publicly
6 See, e g., G C Exh. 17 (safety violation by RSI employee Forbes
written up by MMR Mine Superintendent Brooks; G C Exh 22 (warn-
ing issued to RSI employees Forbes and Sarley and MMR employee
Westhoff by RSI leadmen Watts and MMR Superintendent Brooks),
G C. Exh 23 (memo regarding failure of RSI employee Sarley to take
proper care of equipment written by MMR Superintendent Brooks), G C
Exh 25 (memo recording voluntary termination of RSI employee Beam
signed by MMR Superintendent Brooks and MMR leadman Coleman)
employees utilize the equipment owned by MMR.
Hence, the equipment used at the minesite its operated
by employees of both companies and involve the same
skills; i.e., bulldozers, scrapers, drag lines, and haul
trucks. Nor is there any requirement that RSI make pay-
ments to MMR for use of the equipment.
The testimony indicates that McCrate, MMR vice
president for operations, is the overall managerial super-
visor in charge of the work performed by RSI employ-
ees. However, unrefuted testimony further indicates that
Phil Brooks, the mine superintendent for MMR, actively
supervises all work at the minesite whether performed
by employees on MMR or RSI payrolls.
MMR maintains an office in a trailer at the minesite
which is used by Ira Palmer when he is on the site and
by other MMR and RSI managerial personnel. Two
office clericals (not a part of the bargaining unit) also
work in the trailer and prepare the payroll information.
The payroll information is submitted to MFS, which has
no employees but maintains the records for both compa-
nies. The records kept by the clerical personnel are com-
mingled in the files regardless of the company for which
the employees work.7 Ira Palmer, president of MMR,
signs payroll checks issued to both MMR and RSI em-
ployees, and on August 19, 1982, signed letters of termi-
nation issued to laid-off employees of both MMR and
RSI-discussed in detail, infra. (See G.C. Exhs. 15 and
16.) In addition, the testimony of Ira Palmer reveals that
he and Card make the decisions about when employees
of both companies are to be laid off because of work re-
ductions and, further, that he determines which employ-
ees will be recalled and where they will work at the
minesite, regardless of which company for whom they
work. The undisputed evidence also discloses that unem-
ployment compensation claims of both MMR and RSI
employees list MMR as the employer, further, that these
claims and the employer designation have never been
contested by MMR. (See G.C. Exhs. 12, 13, and 14.)
In the circumstances set forth above, it is more than
evident that Respondents' claim that MMR and RSI are
separate entities and do not constitute a single employer
belies the record evidence. Settled law has established
four criteria for determining whether separate entities
constitute a single employer for purposes of the Act.
These criteria are: (1) interrelation of operations; (2)
common management; (3) centralized control of labor re-
lations; (4) common ownership. Radio Union v. Broadcast
Service, 380 U.S. 255, 256 (1965); Royal Typewriter Co. v.
NLRB, 533 F.2d 1030, 1042 (8th Cir. 1976); Marine
Welding & Repair Works v. NLRB, 439 F.2d 395, 397-
398 (8th Cir. 1971); Al Bryant, Inc., 260 NLRB 128
(1982); Parklane Hosiery Co., 203 NLRB 597, 612 (1973).
Although the determination of single employer status ul-
timately depends on the factual circumstances, it is nev-
ertheless characterized by the absence of an "arm's
length relationship found among unintegrated compa-
9 The records themselves indicate that the employees are viewed as
working for MMR. For example, a "Task Training Record" of RSI em-
ployee Jones (G.C. Exh. 27) is on the identical form as a similar record
for MMR employee Westhoff (G C. Exh 28) and both forms cite MMR
as the employer
MIDWESTERN MINING
rues ." Operating Engineers Local 627 v NLRB, 51& F.2d
1040, 1045-46 (D.C. Cir. 1975), affd. on this point sub
nom. South Prairie Construction Co. v. Operating Engi-
neers Local 627, 425 U.S. 800 (1976); see NLRB v. Don
Burgess Construction Corp., 596 F.2d 378, 394 (9th Cir.
1979)., cert. denied 444 U.S. 940 (1979).
It is readily apparent that Respondents here meet all
the controlling criteria for single employer status. Own-
ership of all of the companies (MFS, MMR, and RSI) is
held substantially by Card, Walker, and Ira and William
Palmer. Operationally, RSI is little more than a shell
with no administrative capacity and no discernible cap-
ital assets. RSI depends solely on MMR employees to
perfoi m its administrative work, and all of the plant and
equipment it uses in performing work at the minesite is
owned by MMR-for which RSI pays no rental fee
whatsoever. Its service agreement with MMR amounts
to a virtual "wash" of its obligation to pay a rental fee to
MMR for the lease of the new maintenance building.
The ostensible overall supervisor of RSI's operation is a
vice president of MMR and his office is located in the
onsite trailer office of MMR. Ira Palmer as president of
MMR signs the payroll checks for employees of both
companies and he determines along with Harold Card,
chairman of the board of all three companies, when em-
ployees of both MMR and RSI are to be laid off because
of reduction in work. Likewise, Palmer determines
which employees of either company are to be recalled
and where they are to be assigned work.
It is also apparent that, administratively, the personnel
records of employees of both companies are commingled
without any need to segregate them on the basis of the
company for which the employees work, thus giving rise
to the strong inference that both companies are consid-
ered to be in fact one employer by its own officials. Fi-
nally, it is evident from the record that the labor rela-
tions of both MMR and RSI are vested solely in the
management officials of MMR. Ira Palmer, McCrate, and
Brooks are the top MMR officials controlling the entire
operation at the mining site and all of the employees,
whether RSI or MMR, are subject to their overall con-
trol and supervision. The record also reveals that all the
employees working at 'the minesite, regardless of which
company, are also subject to the direction and control of
low level supervisors, working for either company. Also,
the employees are subject to written reprimands from
them for job deficiencies and breach of work rules.
On the basis of the record evidence it is apparent,
therefore, that there is a complete integration of MMR's
administrative, managerial, and financial resources with
the operation of RSI at every level at the minesite. Fur-
ther, the record clearly reveals that the labor relations of
both companies are determined solely by the officials of
MMR. In these circumstances, I find the relationship be-
tween MMR and RSI falls far short of one of "arm's
length" dealing. Rather, I find the relationship to be a
classic example of separate entities which constitute a
single employer for the purposes of the Act.
225
C. The Commencement of the UMW Organizing
Effort
Lowell Forbes , a UMW organizer , testified that he
was visited on June 8 by several of ]Respondents' em-
ployees, including his son Dennis, and asked to organize
the mine. In response to their request , Forbes began vis-
iting employees at their homes or other places off the
minesite to solicit signatures on authorization cards for
the UMW . According to the testimony of a number of
employees witnesses , knowledge of the organizational
campaign effort quickly spread to the rinesite , and sev-
eral supervisors questioned them about this activity.
Laid-off employee Fred Norris testified that on June
12 he was with Supervisor Miles Neal Jr.8 Norris stated
that William Palmer came up to them and asked Norris if
he had heard anything about the employees "going
union." Norris replied that he had not and, according to
Norris, Palmer then stated if the UMW got in , he would
shut the mine down . Norris also testified that , on June
14, Lester Moore, the second -shift pit boss, asked if he
knew which employees signed authorization cards for
the UMW . When Norris disclaimed any knowledge
about the signing of union cards , Moore stated Respond-
ents would shut the mine down if the employees went
union.
William Palmer recalled having a conversation with
Norris but stated that it pertained to a broken throttle
rod on the employee's truck. He denied making any
threats to shut the mine down. Neal Jr . recalled being
with Norris when Palmer came up on that occasion but
was unable to recall any mention of the UMW or any
threats by Palmer to close the mine. Moore was unable
to recall any conversation with Norris about the UMW
or stating to the employee that the Respondents would
shut down the mine if the employees were represented
by UMW
Jack Clark, a dragline operator and son -in-law of
UMW organizer Forbes, testified that on June 14 he had
a conversation about the UMW with Steve Coleman,
foreman of the tipple operation.9 According to Clark,
Coleman said that Ira Plainer "would just shut the mine
down, if the Union came in." Clark also testified that, on
June 15, Mine Superintendent Brooks asked if he had
been contacted by organizer Prettyman of the UMW.
When Clark indicated he had not, Brooks stated, accord-
ing to Clark, "You guys ought to get your heads togeth-
er because you know what will happen if the Union
comes in. Willie [Ira Palmer] will just shut her down."
Clark further testified that shortly after the organizing
campaign started , Robert Palmer came to him and said
Respondents would shut the mine down if the UMW got
in. Coleman and Robert Palmer denied talking to Clark
about the UMW or stating that Respondents would close
the mining operation if the employees were represented
by UMW.
6 Neal Jr was the maintenance foreman and his father , Miles Neal Sr.,
also worked for Respondents.
9 The tipple is where the coal is hauled from the mine pits and put
through a washing process before shipment
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employee Matt Mindicki testified that Brooks asked if
he were "talking union" or knew of any other employees
who were doing so. Mindiciki denied engaging in any
such activity or knowing of any other employees who
were talking in favor of the UMW. According to Min-
dicki, Brooks then said that, if any employees did so,
there might be trouble. Brooks denied having such a
conversation with Mindicki.
Jack Westhoff, an employee currently performing rec-
lamation work, stated that, on June 15, Brooks asked if
he had heard anything about the UMW attempting to or-
ganize the employees. When Westhoff admitted he had,
Brooks told the employee he should not get involved be-
cause it would hurt his chances of moving up in the
Company.1° According to Westhoff, Brooks stated Ira
Plamer said he would close down the operation if the
UMW got in and Brooks indicated he believed Palmer
would do just that. When questioned about this conver-
sation, Brooks denied making these statements to West-
hoff.
Scraper operator Mike Sarley testified that, on June
16, UMW organizer Forbes came to the minesite and
Robert Palmer brought him over to where Sarley and
Dennis Forbes were standing. After the elder Forbes
left, according to Sarley, Dennis Forbes commented that
the weather was getting warm. Robert Palmer replied,
"Yes, and the fire in the oven is getting hot and going to
get hotter for somebody today."11 Robert Palmer admit-
ted seeing Lowell Forbes on the minesite on June 16, but
denied that he took Forbes over to the area where his
son was standing. He also denied having any knowledge
as to why the elder Forbes was on the minesite on that
occasion. He further denied that he made any comments
to Saley or Dennis Forbes.
Former employee Scott Beam12 testified that he had a
conversation with Robert Palmer on June 15. According
to Beam, Palmer wanted to know if he had been ap-
proached by anyone from the UMW. Beams stated
Palmer told him the Respondents would shut the mine
down if the employees went union. Palmer denied
making this comment to Beam.
Terry Rink, a dragline operator for the Respondents,
testified that he had a conversation with Mine Superin-
tendent Brooks shortly after the Union began its organiz-
ing campaign. Rink stated Brooks asked if he knew any-
thing about the union activities going on around the min-
esite. Rink replied that he did not. According to Rink,
Brooks stated he hoped it would not go any further be-
cause, if it did, Respondents would shut the mine down.
Brooks indicated to Rink that Respondents could not op-
erate under the National Agreement of the UMW. When
questioned about this testimony, Brooks denied making
any such statements to Rink.
Rink further testified that, later the same day, he had a
conversation with Robert Palmer about the Union. Ac-
cording to Rink, Palmer also questioned him about his
Westhoff signed a UMW authorization card on June 14
Dennis Forbes recalls Robert Palmer's comments to be as follows-
"Things are going to get hotter than hell and that someone would get
roasted,"
11 Beam voluntarily terminated his employment with Respondents on
September 25, 1982
knowledge of any union activity among the employees.
When Rink disclaimed any such knowledge, Robert
Palmer stated that Respondents could not operate under
an agreement with the UMW and would shut the mine
down if the Union got in. Robert Palmer denied having
any conversation with Rink about the Union.
Edward Roberts, an alleged discriminatee in this case,
testified that, on June 16 or 17, he had a conversation
with Robert Palmer about a former employee who had
quit his job and purchased a dump truck to go into busi-
ness for himself. According to Roberts, Robert Palmer
said all the employees had better watch out how they
voted in the "union thing" or they would all be out driv-
ing dump trucks. Roberts testified that Palmer stated the
Respondents would shut the mine down if the UMW got
in and all the employees would be out of work. As in the
case of all of the other statements attributed to him,
Robert Palmer denied making these statements to Rob-
erts.
Laid-off employee King testified that after the UMW
campaign began, he had a conversation with coworker
Gerald Couch. King stated that Couch confided that he
was telling other employees that he signed a UMW card
in order to learn which of-them were signing cards for
the Union. King further testified that the following day
he overheard Robert Palmer talking to Supervisor Watts.
According to King, Palmer handed Watts a slip of paper
and said, "Here are the names of three of your top recla-
mation men who signed UMW cards."
Employees Fred Couch and Todd Shaw testified that
approximately 2 weeks after the union organizing cam-
paign began, they were told by Dwayne Couch that Ira
Palmer wanted to talk to them in the mine office. Both
employees were reluctant to be seen talking to Palmer in
the office while the union activity was taking place.
They arranged to meet with Palmer during working
hours off the leasehold at the home of Dwayne Couch. i 3
According to the testimony of these two employees,114
Palmer wanted to know why the mine employees were
considering joining a union and which employees were
upset enough to do such a thing. Couch replied the em-
ployees were concerned about money. Couch assured
Palmer, however, that he was not in favor of the UMW
because he knew Respondents could not afford to oper-
ate under a union contract. Shaw, who shared Couch's
sentiments, was unable to recall whether Palmer asked
them for the names of the employees who signed cards
for the UMW. His affidavit indicated, however, that
Palmer asked him and Couch for the names of the em-
ployees who were trying to get the UMW in at the mine.
According to Shaw, the meeting with Palmer lasted for
45 minutes, but he was unable to recall any further de-
tails of their conversation.
Several days later, Palmer spoke to both employees in
the shop on the minesite. Each stated that Palmer said
there was a possibility of some openings occurring in
13 Fred Couch was a cousin of Dwayne
14 Fred Couch and Shaw were opposed to the UMW and later at-
tempted to get the employees to join the Congress of Independent
Unions (CIU) This matter is treated in another section of this decision,
infra
MIDWESTERN MINING 227
management and asked if the employees were interested
in these positions. Each denied that Palmer made any
mention of the UMW or conditioned his offer on the em-
ployees' opposition to the union organizing effort.
As noted, Lowell Forbes was on the minesite on June
16. His purpose for going there was to advise the Palm-
ers of the Union's intent to organize the employees.
When he arrived, Ira Palmer was not on the site and
Robert Palmer drove up and spoke with him. According
to Forbes, Robert stated he had heard the UMW intend-
ed to organize the employees. Forbes testified that
Robert then said Respondents would close the mine if
the UMW came in. At this point, according to Forbes,
William Palmer came up and voiced the same sentiments
expressed by Robert. While they were conversing, Ira
Palmer came on the scene and spoke with Forbes. Ac-
cording to Forbes, Ira stated the Respondents could not
operate under the National Agreement of the UMW and
would close the mine. Forbes further stated that Ira and
Robert said they wished they knew who the "s.o.b.'s"
were who signed authorization cards for the UMW.15
Forbes left the minesite and that same day sent a letter
to Respondents notifying them of the Union's intention
to organize the employees. (See G.C. Exh. 55.)
D. The Layoffs on June 18
As previously noted, under the contractual arrange-
ments with Associated, the per-ton price of coal deliv-
ered by Respondents to Independence was negotiated an-
nually. Douglas Klusmeyer, president of Associated, tes-
tified that he attended a meeting with the city council of
Independence on June 14 and no agreement was reached
on the unit price of the coal. Card also attended this
meeting as an observer. During the afternoon of June 15,
Card called Ira Palmer to inform him that a new price
had not been agreed upon for the coal and further, that
Independence would not receive any more shipments
from Respondents after June 25 because the coal require-
ments of the current agreement would then be satisfied,
and Independence would be taking inventory of its stock
of coal on hand. Shipments were to resume July 6, pro-
vided a new contract price could be negotiated between
Associated and Independence.
The following day, Klusmeyer contacted Card and ad-
vised him that Associated was stopping its weekly pay-
ments to Respondents. Klusmeyer told Card that inde-
pendence was withholding its payments to Associated
until the value of the BTU deficiencies under the current
agreement had been recouped. t 6 As the hourly paid em-
ployees were scheduled to receive their paychecks on
June 25 and the salaried employees on June 30, and the
paid vacations of the employees were pending, Respond-
15 In the affidavits given the Board agent investigating the charges
filed in this case, Forbes did not mention the threats by Robert and Wil-
ham Palmer to close the mine down nor did he mention the statement by
Ira and Robert regarding wanting to know the identity of the employees
who signed authorization cards. He merely described his conversation
with the Palmers as "heated."
16 Normally, Associated received weekly payments from Independ-
ence for the coal delivered by Respondents From this amount Associat-
ed deducted its fees and any deductions required by the government and
then remitted the balance (approximately $85,000) to Respondents
ents were faced with a severe cash shortage which
threatened their ability to meet their payroll obligations.
Card testified he informed Ira Palmer of this situation
after receiving the call from Klusmeyer and was in turn
told of Forbes' announced intent to organize Respond-
ent's employees. Card stated he instructed Ira Palmer to
tell all management and supervisory employees not to
engage in any discussion with the employees about the
UMW or the organizing effort. Card telephoned Forbes
sometime during that day and complained that Forbes
had reneged on an understanding that UMW would not
attempt to organize Respondents' employees until Re-
spondents had an opportunity to reduce their debt.t'
Card acknowledged that he was upset over the overall
situation confronting the Respondents and he told Forbes
it was "stupid" to start an organizing campaign at that
time, since Respondent's current coal contract was due
to expire and a new one had not been negotiated.
At approximately 4 p.m. on June 16, Ira Palmer met
with the employees working the first and second shifts at
the minesite. He informed the employees that a new coal
contract price had not been negotiated with Independ-
ence. He also told the employees that if Respondents
could not get a better per-ton price for the coal from In-
dependence, there would be a layoff on June 25 when
the current agreement expired.
On June 17, Card directed Ira Palmer to inventory all
coal in the pits to determine whether Respondents could
meet their obligation to Independence until June 25 with-
out requiring any further digging. After getting the in-
ventory of the coal already mined, Palmer met with
McCrate and Brooks to select the employees who would
be laid off when the contract expired. According to
Palmer, the selection was based on seniority, job classifi-
cation, and qualification.
The following morning, Card went to the minesite and
advised Palmer that Respondents would not be able to
meet their payroll if they continued operating with full
crews and that all expenses had to be cut. He directed
Palmer to lay off all employees immediately except those
considered essential to keep the mine open. At approxi-
mately noon, in the middle of the first shift, all employ-
ees selected for layoff were given their layoff notices and
directed to stop work immediately. Palmer testified he
did this in the middle of the first shift because he had to
contact the second- and third-shift employees before they
reported to work. It is uncontroverted, however, that
the first-shift employees were paid for the entire shift.
Dennis Forbes and Mike Sarley testified that, before they
left the minesite after being laid off, they had a conversa-
tion with Supervisor Watts. According, to their testimo-
ny, Forbes indicated he felt the layoff was due to the
union organizing activity taking place at the minesite.
Watts replied to Forbes' comments by stating that he
could not say because it would get him into a lot of trou-
ble. Watts, on the other hand, denied making this com-
ment to Forbes.
17 The "understanding" apparently arises from a series of correspond-
ence between Ira Palmer and the UMW President Sam Church Jr in the
fall of 1981 (See R Exhs 3 and 4.)
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Card testified that on June 21 he was able to borrow
$135,000 to enable Respondents to meet their payroll ob-
ligation. The employees either picked up their paychecks
at the mine office or received them in the mail. Respond-
ents attached a notice to each paycheck regarding the
UMW organizing campaign. The notice was signed by
Card and it advised the employees that Respondents in-
tended to resist the Union's attempt to organize employ-
ees. It also advised the employees that they had no
"legal obligation" to sign authorization cards and cau-
tioned them' to read the union cards carefully before
making any commitments. (See G.C. Exh. 35.)
The record indicates a new coal agreement was signed
by Associated and Independence on July 6. However,
Respondents did not resume coal production until the
last week in July because of other problems that surfaced
during the time of the negotiations for the new coal
agreement. The prior April, Respondents had been cited
by the Missouri Land Reclamation Commission as being
delinquent with respect to reclamation on the various
properties where the Respondents were engaged in strip
mining. On receiving these citations, Respondents en-
tered into negotiations with the Commission which re-
sulted in a consent order being executed on June 30. (See
R. Exh. 32.) The consent order precluded Respondents
from engaging in any mining of coal for a 2-week period
extending from June 28 through July 11, and required
Respondents to devote all operational equipment to rec-
lamation work on the various areas where the delinquen-
cies were cited. A schedule was set up which provided
that, on completion of reclamation work on various
tracks, certain equipment could be withdrawn from rec-
lamation work and devoted to mining production. For
example, the order allowed Respondents to operate one
mining unit consisting of one dragline and dozer begin-
ning July 12, provided certain reclamation work had
been completed on various areas previously mined. A
second mining unit could be placed into operation on
completion of further reclamation work and a third
mining unit could become operational after the comple-
tion of additional reclamation work.
The unrefuted testimony of McCrate (Respondents' of-
ficial in charge of the reclamation work) reveals that Re-
spondents were unable to comply with the reclamation
schedule required by the consent order. As a result, Re-
spondents entered into further negotiations with the
Commission and an amended consent order was issued
on October 25. This amended order extended the recla-
mation schedule while allowing the Respondent to put
mining units into operation on completion of certain rec-
lamation work. (See R. Exh. 35.)
E. The Termination of the Laid-Off Employees
Forbes testified that he visited the minesite on July 20
and spoke with Ira Palmer. This visit was at Palmer's re-
quest. According to Forbes, Palmer identified laid-off
employees Edwared Roberts and Elmer Scales as the in-
dividuals he felt were responsible for the UMW's orga-
nizing effort at the mine. Palmer asserted that Roberts
caused damage to a dragline before the layoff and stated
he would have fired the employee, if he had been able to
prove it. Forbes testified that Palmer indicated he was
not antiunion but that Respondents could not afford to
operate under a UMW agreement. Palmer stated that, if
given 2 years, he could afford to pay UMW wage scales.
Forbes replied that the terms of any agreement between
Respondents and UMW would be negotiable. Palmer, on
the other hand, denied making any statements to Forbes
about Roberts and Scales. He did not deny, however, the
other comments attributed to him by Forbes
On July 24, Forbes met with Card at a restaurant in
Fort Scott, Kansas. According to Forbes, Card also
placed the blame for the organizing campaign on Rob-
erts and Scales. Card repeated that Respondents were
not antiunion, but the UMW National Agreement would
break them. Again, Forbes repeated that the terms of an
agreement would be negotiable. Forbes further testified
that Card mentioned he knew Sam Church (then UMW
president) and Forbes suggested that Card contact
Church. During this conversation, Card informed Forbes
that Respondents would start recalling employees but,
according to Forbes, only intended to employ 52 of the
64 employees working before the layoff.1' Forbes also
stated that he had a subsequent conversation with Card
on July 30 about the recall of the laid-off employees. Ac-
cording to Forbes, Card stated that those employees not
recalled would be placed on a "panel" and recalled to
replace any employees who quit or retired.
On August 19, however, Respondents sent a letter to
28 of the laid-off employees notifying them that the tem-
porary layoff was a permanent termination. The letter
was signed by Ira Palmer and cited the restrictions
placed on Respondents' mining operation by the Recla-
mation Commission. The letter advised the terminated
employees that the possibility of rehire would be consid-
ered, if Respondents were allowed to reinstate more
stripping machinery at a later date. (See G.C. Exh. 16.)
Ira Palmer testified that, contrary to the language of the
letter, he did not terminate the laid-off employees on
August 19. According to Palmer, he wanted to alert the
employees to the seriousness of Respondents' problems
so they would not sit around waiting to be recalled. He
further testified that Respondents continued to use the
pool of laid-off employees for rehires when the occasion
warranted it. The parties stipulated in the record, how-
ever, that the files of the 28 terminated employees were
placed in and intermingled with Respondents' files of all
other terminated employees.
F. The Alleged Voluntary Recognition of UMW
Forbes testified that a meeting was set up in Washing-
ton, D.C., on August 11 for Ira'Palmer to discuss his sit-
uation with top officials of the Union. Accordineg to
Forbes and Prettyman,19 they had lunch with Palmer in
a nearby restaurant before the meeting. Forbes stated
Palmer insisted Respondents needed 18 to 24 months
before they could afford to operate under the UMW Na-
tional Agreement. He assured Palmer the Union would
do everything it could to enable Respondents to operate
18 The record shows that 42 employees were laid off on June 18
19 Forbes was in Washington, D C., to attend the meeting and Pretty-
man was there to attend an organizers' training session run by the Union
MIDWESTERN MINING
profitably . According to Forbes , Palmer repeated that he
felt Roberts and Scales started "the whole damn mess."
Forbes testified that Palmer asked him what percentage
of the employees had signed union authorization cards
and he replied that a majority had done so . 20 Prettyman
recalled that Palmer asked for time and Forbes indicated
the Union would be willing to grant this , if Respondents
recognized the Union as the bargaining representative of
the employees . He corroborated Forbes' testimony that
Palmer stated he felt Roberts and Scales were responsi-
ble for the organizing drive by the Union.
The meeting was held in Church 's office at the UMW
headquarters . Church was present only for a brief period
of time and apparently turned the matter over to Wilbert
Killion, UMW vice president . Dennis Estep , UMW di-
rector of organizing , Steve Galati, executive assistant to
Killion, and Forbes also participated in the discussions
with Palmer. According to Forbes, Palmer explained Re-
spondents ' financial plight to the union officials and in-
sisted Respondents could not afford to currently operate
under a union contract and continue to survive. The
union official authorized Forbes to take every measure to
help Respondents become a profitable operation and he
agreed to do so , provided Respondents granted the
Union recognition . Forbes further testified that, at the
time of the meeting, he was not aware the Missouri Rec-
lamation Commission had cited Respondents for viola-
tions and required extensive reclamation work before
production at the minesite could resume.
Forbes stated that Galati drafted a recognition agree-
ment and had it typed up for presentation to Palmer. Ac-
cording to Forbes, Palmer said he had no problem with
the agreement but would have to consult with Respond-
ents' board of directors . Galati agreed and asked that
Palmer have the recognition agreement typed on Re-
spondents ' letterhead . Forbes further stated that Palmer
promised to have the executed document available for
him to pick up on August 16 at the minesite.
Galati and Estep were brought in as witnesses to testi-
fy in these proceedings . Galati testified that, while the
meeting with Palmer was in progress, he sent for the
Union's file on Respondents and noticed that it contained
previous correspondence from the prior year between
Palmer and Church. The letters indicated that Palmer
asked that his company be allowed time to improve its
financial position before considering a union contract and
Church agreed . (See R. Exhs . 3 and 4.) According to
Galati, Palmer stated Respondents had serious reclama-
tion problems and had to shut down the mine. Galati re-
called that Palmer told the union representatives he had
no problems reaching an agreement with UMW if he
were allowed time to get his business on its feet . Galati
stated the union representatives assured Palmer they did
not want to put his company out of business and Galati
asked Forbes directly if he had any objection to allowing
Respondents time to improve their financial position.
Galati testified Forbes indicated he had no objections
provided Respondents recognized the Union . According
to Galati, during the course of the meeting, he overheard
20 According to Forbes, he had 36 signed authorization cards at the
time of the meeting in Washington
229
Forbes inform Palmer that the Union had a majority of
the employees signed up. Galati further testified that he
drafted a recognition agreement which provided for peri-
odic monitoring of Respondents' operation by a designat-
ed union representative and contained protection for the
employees who supported the Union during the organiz-
ing campaign. Galati read the draft to the participants
and then had the language typed up. Galati testified that
Palmer indicated he left his eyeglasses on the aircraft,
and Galati loaned him his pair to see if he could read the
document. According to Galati, Palmer read the agree-
ment and stated he had no problems with it, but he
wanted to take it back to his board of directors for their
approval. The union representatives agreed to this proce-
dure.
Estep's testimony corroborated that of Galati and
Forbes. He recalled that Palmer passed out documents to
support his position that Respondents were financially
unable at that time to comply with the terms of the
UMW agreement. Estep recalled that either he or Forbes
informed Palmer the Union had a card majority and
wanted Respondents to recognize it. According to Estep,
Palmer indicated that he had no problems with this and,
at that time, Galati suggested he draft a letter of recogni-
tion which could be signed by Palmer. Estep stated that,
after the letter was typed and presented to the partici-
pants for their approval, Palmer agreed to the terms but
stated that he had to take it back for approval by his
board of directors. Estep further testified that Palmer
said it would only be a matter of formality, since his
father and uncle were on the board. According to the
testimony of Estep, Palmer indicated he would return
the signed document to the Union after approval by the
board of directors. Forbes then asked to be allowed to
come to Respondents' office to pick up a copy when it
was ready and Palmer agreed.
Forbes stated that after the meeting he went to Palm-
er's motel room. According to Forbes, Palmer indicated
that he had problems with Prettyman arid did not want
him to be the designated representative of the Union to
monitor Respondents' operation. For this reason, Forbes
suggested that Palmer insert his name as the representa-
tive of the Union.
Prettyman testified that later that same evening he met
Palmer in the motel lounge. Prettyman was accompanied
by another union representative attending the organizer
session. According to Prettyman, he asked Palmer how
things went and Palmer stated the Union agreed to give
him time to get his operation in a sound condition. Pret-
tyman further testified that Palmer indicated he felt the
employees were stupid to want a union and repeated his
conviction that Roberts and Scales were the instigators
of the organizing effort. Prettyman testified that Palmer
said he did not want to take these two employees back.
George Krehel, the organizer with Piettyman in the
motel lounge, testified that Prettyman asked Palmer if he
had reached an agreement and Palmer indicated he had,
but did not state the terms. According to Krehel, Palmer
told the union organizers that he needed more time in
order to get his company on its feet. Krehel testified that
Palmer mentioned there were two individuals at the
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
company that he did not want back, but Krehel was
unable to recall the names of these employees.
Palmer's version of the events in Washington, D.C.,
differed from that of the union representatives. Accord-
ing to Palmer, the meeting was arranged by Forbes and
he attended because Card was unable to do so. Palmer
stated his primary purpose for going was to discuss the
"agreement" he had with Church the prior year not to
organize the mine for 18 to 24 months. Palmer admitted
having lunch with Forbes and Prettyman before the
meeting but denied making any reference to Roberts and
Scales. He also denied that Forbes told him a majority of
the employees had signed authorization cards for the
Union.
On August 16, Forbes went to Palmer's office at the
minesite to pick up the recognition agreement. Forbes
stated Palmer gave him an unsigned copy of the agree-
ment of MMR's letterhead. It was identical to the Galati
draft with the exception that it named Forbes as the de-
signed union representative to monitor Respondents' fi-
nancial condition on a monthly basis. (See G.C. Exh. 57.)
Forbes testified that Palmer told him Respondents' attor-
ney was out of town and they were unable to reach him.
According to Forbes, he met with Card the following
day at a restaurant. Card advised Forbes he was on his
way to Kansas City to confer with his attorney before
signing the agreement . He told Forbes the letter could be
picked up the next day. When Forbes arrived at the min-
esite on August 18, he was given a copy of a letter by
Palmer's secretary. Unlike the unsigned letter received 2
days before, this one, signed by Ira Palmer, declined to
recognize the UMW and offered to enter into discussions
with the Union in 24 months, if that was the desire of
the employees at that time. (See G.C. Exh. 58.) At the
same time, Forbes was handed an unsigned copy of a
letter, also on MMR letterhead, from Ira Palmer to Kil-
lian specifying Forbes as the designated union represent-
ative to monitor Respondent's financial condition on a
monthly basis. (See G.C. Exh. 59.)
Card admitted that he met with Forbes on August 17.
He stated Forbes was pressing for the signed recognition
letter so he could send it to the national office before he
went on vacation. Card assured Forbes he was on his
way to confer with Respondents' attorney about the
letter. According to Card, Forbes said the attorney
would attempt to change the language, but it would not
matter since the Union had 80 percent of the employees
signed . Card stated he doubted that and Forbes offered
to show him the signed authorization cards. According
to Card, he refused the offer.
Contrary to the testimony of Forbes, Palmer testified
he was not at the minesite office when Forbes came for
the recognition letter on August 16. Palmer stated he
had his secretary type up a letter with the changes sug-
gested by Forbes. She gave the orginal and a copy to
Card and left a copy on Palmer's desk. Palmer denied
being present when the union representative appeared
but stated that the unsigned copy was no longer on his
desk when he returned to the office. Palmer also denied
instructing his secretary to put the recognition letter on
MMR letterhead or directing her to type up the second
letter specifying Forbes as the designated union repre-
sentative. In fact, Palmer discliamed any knowledge of
the second letter specifying Forbes as the representative
and testified he had never seen it prior to its introduction
into evidence at the hearing. According to Palmer, the
letter which was finally sent to UMW headquarters was
prepared pursuant to the instructions given Card by Re-
spondents' attorney.
G. The Refusal to Recall Roberts and Scales
1. Edward Roberts
Edward Roberts was a dragline operator working the
third shift prior to the layoff. He was one of the employ-
ees laid off on June 18. Roberts signed an authorization
card for UMW on June 11.21 Roberts stated that, after
signing the authorization card, he personally talked to
approximately 6 to 10 employees in an attempt to solicit
their support for the UMW.
Roberts was not recalled when Respondents resumed
production at the mining site. Roberts testified that em-
ployee Kenneth Davidson was recalled as a dragline op-
erator, but had less experience and seniority than he. In
fact, according to Roberts, several years previously he
was working as a dragline operator for another coal
company (Bill's Coal Company) when Davidson worked
for that same employer as an oiler. Roberts stated that he
and several other operators allowed Davidson to operate
their machines periodically to get experience on the
dragline. Roberts also testified that he had never re-
ceived any complaints about his work as a dragline oper-
ator while he was employed by Respondents. He re-
called, however, that approximately a month and a half
before the layoff, Robert D. Palmer questioned him and
employee Terry Couch in the office about damage to a
dragline. According to Roberts, Palmer asked, "Which
of you sons of bitches pulled a crow's foot into the fair-
leads on that dragline last night?" Both employees denied
causing any damage to the equipment. Roberts stated
that Palmer then concluded that another dragline opera-
tor, Richard Tolman, was responsible for the damage. A
memorandum in Roberts' personnel file, dated May 24
and signed by Brooks, was introduced into evidence. Ac-
cording to this document, Roberts was the one responsi-
ble for pulling the crow's foot into the fairleads thereby
damaging the dragline. (See G.C. Exh. 93.) Roberts testi-
fied he was never told that this memorandum had been
put in his personnel file nor had Brooks ever approached
him about the damage to the equipment. He further testi-
fied that he had not caused any damage to the dragline
as the memorandum indicated.
Brooks testified that he, McCrate, and Ira Palmer de-
termined which of the laid-off employees would be re-
called and when they were to report to work. According
to Brooks, job classification, seniority, productivity, care
in handling equipment , and any personal information the
three management officials possessed about the employ-
ees were the criteria for determining which employees
21 Roberts' signature was solicited at his home by Forbes and Pretty-
man Roberts testified the union representatives said they were going to
attempt to get Respondents to voluntarily recognize the Union and, in
the event this did not occur, they would seek an election
MIDWESTERN MINING 231
would be recalled. He stated that, before recalling Ken-
neth Davidson, he first tried to contact laid-off employee
Larry Allen. He learned that Allen had been reemployed
by Bill's Coal, and he then attempted to contact laid-off
employee Kenneth Cambers, but was unable to do so.
Brooks testified he then recalled Davidson. When an-
other dragline operator was needed, Brooks succeeded in
contacting Cambers and the employee reported back to
work.22 Brooks also testified that Cambers had years of
experience operating a crane with various construction
companies and he considered this qualifying experience
for a dragline operator. He admitted, however, that after
the layoff, employee James Yates operated a dragline for
Respondents even though he had no prior experience on
that type of equipment.
According to Brooks, Respondent's did not recall
Roberts because McCrate checked the dragline experi-
ence listed on the employment application Roberts sub-
mitted when he was first hired by Respondents on Octo-
ber 7, 1981. He determined that Roberts had less actual
experience operating a dragline than his application indi-
cated. Brooks admitted that he could not recall manage-
ment officials checking the employment records of any
other employees, other than Scales, before deciding
whether to recall them. Brooks further stated that an-
other controlling factor in deciding not to recall Roberts
was that the employee was careless in handling the
equipment. He stated that Ira Palmer had observed Rob-
erts damage the fairleads of the dragline he was operat-
ing by dragging the crow's foot into them. According to
Brooks, this occurred in May and he put a notation in
Roberts' personnel file about the incident. Brooks assert-
ed that he had talked with Roberts on several occasions
prior to the layoff about being "rough" on the dragline.
Ira Palmer testified he had observed Roberts damage
the fairleads on the dragline he was operating. Palmer
stated the damage to the equipment amounted to $6000;
however, he admitted he never spoke to the employee
about the matter. He also stated that Supervisors
Dwayne Couch and Miles Neal Jr., as well as Brooks,
reported to him that Roberts was rough on the equip-
ment. Palmer further stated that leadman Watts informed
him that Roberts had not run a dragline at Bill's Coal
before being hired by Respondents, and McCrate in-
formed him that the experience listed on Roberts' em-
ployment application was not correct. Palmer denied
having any knowledge that Roberts engaged in activity
in support of UMW.
2. Elmer Scales
Scales was first hired by Respondents as a dragline op-
erator in May 1981. Prior to working for Respondents,
Scales operated a dragline and other mining equipment
for several years with other coal mining companies in
the area. Scales was on the midnight shift until he re-
signed on March 25, 1982. He left Respondents' employ
to take a similar position with Pat's Coal Company be-
cause it was 24 miles closer to his home and he could
work on the day shift. However, his new employer
quickly experienced financial difficulties and could not
pay the employees. Scales contacted Respondents and
was rehired on April 30. When he returned, he operated
a dragline on the second shift.
Scales testified that, when he was rehired by Respond-
ents, he was not required to submit a new employment
application nor did he have to take the physical examina-
tion required of all new employees. He did sign a letter
of reinstatement, however, indicating he resigned for
personal reasons on March 25 and that he would operate
a dragline on the second shift. (See G.C. Exh. 91.) Scales
stated that when he was rehired, he was never told by
Brooks or any other management official that he would
be on probation for 60 days or that he would start at the
bottom of the seniority list for his job classification. He
testified that Brooks informed him that the only thing he
lost by leaving in March was his paid vacation.
Scales further testified that in mid-March, prior to
leaving to work for Pat's Coal, he had a conversation
with Robert D. Palmer in the pit where he was working.
The drag cable had broken on his machine and he was
attempting to fix it without any help. Palmer drove up to
the pit with James Query, Respondent's night watchman.
According to Scales, he commented to Palmer that a
union was needed at the mine in order for operators to
get any help. He stated that Palmer replied, "Talk like
that will get you fired."23
When the UMW campaign started, Scales signed an
authorization card on June 10 at his home. He testified
he was given the card by Prettyman who told him that
when a majority of the employees signed, the union rep-
resentatives would present the cards to Ira Palmer to
show that the employees wanted to be represented by
the Union. Scales also testified that at one of the meet-
ings in the Union's hall, Forbes stated that when the
cards were shown to Palmer, if he were acting in good
faith, he would recognize the Union. If not, the cards
would be used to get an election. In addition to signing
an authorization card, Scales stated he talked to 8 or 10
employees about supporting the Union and went with
the union representatives to contact other employees at
their homes. He also attended five or six union meetings
held at the Union's hall in Mulberry, Kansas.
Scales stated that, on June 12, he was in the pit getting
ready to leave and Roberts was there to start his shift on
the dragline. According to Scales, Robert 13. Palmer
drove up to let an employee known as "Big Foot"
Rhodes out at the pit. Scales stated that Palmer cau-
tioned Rhodes to stay away from dragline No. 1 (the ma-
chine operated by Scales and Roberts) because "he could
get into trouble hanging around there."24
Scales was one of the employees laid off on June 18.
In early August, he called Brooks to inquire about being
recalled. He complained to Brooks about the fact that
22 Respondents' records show that Davidson was recalled on August
19 and Cambers on August 26, (See G.C Exh 6.) Respondents' records 23 In the video tape deposition, Palmer denied making this comment to
also disclose that each of these two employees was initially hired as tem- Scales. Query was not called as a witness in these proceedings
porary employees because they were on layoff status from another coal 24 A spoils pile is the topsoil, dirt, and rock which is dug out by the
company (See G C Exhs 37 and 38) dragline operator in getting to the coal
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other operators less senior and less experienced than he
had been recalled. Scales testified that Brooks told him
the recalled dragline operators had more time on the ma-
chines than Scales. Scales further testified that he called
Respondents' office again on August 19, and Melvin
Bowie, Respondents' purchasing agent, answered the
telephone. Scales questioned Bowie about his chances for
recall. He stated Bowie told him to contact the UMW
representatives since they seemed to know more about it
than did Respondents' officials. On August 22, Scales re-
ceived a letter from Respondents terminating his employ-
ment with them.
Scales testified that while employed by Respondents,
he never had any complaints about his work perform-
ance. He testified with pride about his ability to operate
a dragline machine. Scales further testified that, on sever-
al occasions, Brooks selected him to teach new employ-
ees how to dig a pit and stack a spoils pile.25 According
to the testimony of Scales, a good operator not only digs
a pit properly but also lays his "dumps" (spoils pile) in
such a straight and neat fashion that he "signs his name
to them." Thus, according to Scales, a good operator
can come back the following day and distinguish each of
his dumps from that of any other operator. Scales also
testified that although he had several years' experience
operating a crane, he did not believe a crane operator
with no prior dragline experience could properly dig a
pit because of the differences in the machinery. Scales
acknowledged that he was aware that Brooks and Moore
were staking flags in the pits in April or May at the end
of each shift to measure the production of each dragline
operator. According to Scales, prior to the layoff he
never received any complaints from management about
his job performance. 2 6
The testimony of Respondents' witnesses differed
sharply from that of Scales. Brooks stated he informed
Scales when he was rehired on April 30 that he would
go to the bottom of the seniority list and be on probation
for 60 days. He acknowledged, however, that this was
not set forth in the reinstatement letter which he and
Scales signed at that time. Brooks further testified that he
and the pit boss, Lester Moore, staked flags in the pits
from April 30 to May 17 in order to ascertain the pro-
duction of each dragline operator. According to Brooks,
these measurements revealed that Scales' production had
decreased sharply from the level he had been producing
prior to quitting in March to work for Pat's Coal.
Brooks estimated that Scales was only producing half of
what he had previously been digging in the pits. Brooks
also stated that he noticed Scales seemed depressed when
the employee returned in April. He testified he ap-
proached Scales about this change in his attitude and
asked if he could be of assistance. According to Brooks,
Scales rejected his offer of help and said, "Things would
work out."
25 A spoils pile is the topsoil, dirt, and rock which is dug out by the
fragline operator in getting to the coal.
26 Scales' pride in his ability to operate the dragline was corroborated
by the testimony of employee Terry Couch, another dragline operator
Couch said Scales could make the machine "move" and that he "laid up
his dumps as good or better" than any of the other dragline operators
He confirmed that Scales took great pride in his skills and work
As a result of the decrease in Scales' productivity and
his change in attitude, Brooks stated he drafted a memo-
randum on Scales' job performance which he and Ira
Palmer signed and placed in the employee's personnel
file. This memorandum was dated May 17 and indicated
management was contemplating termination of Scales'
employment. (See G.C. Exh. 39.)27 Brooks admitted that
neither he or Palmer spoke to Scales about the deficien-
cies in the employee's job performance, nor did they
advise the employee of the memorandum placed in his
personnel file.
Finally, Brooks testified that, in making a determina-
tion not to recall Scales when production resumed, Ira
Palmer advised him and McCrate that he received infor-
mation that Scales had less dragline experience than indi-
cated on the employee's job application. For this reason,
Brooks stated he decided to recall employee Larry
Allen, whose employment application showed more
dragline experience than Scales possessed.28
Ira Palmer testified he received information from a
secretary at Bill's Coal that a foreman there reported
Scales did not have the dragline experience indicated on
his employment application. Palmer stated he considered
this information along with the fact that, in May, Brooks
complained to him about Scales' attitude and the 50-per-
cent drop in the employee's production in the pits.
Palmer acknowledged that Brooks had a memorandum
typed up to this effect, which he and Brooks signed and
placed in Scales' personnel file. Palmer identified this
document as the one introduced into evidence as General
Counsel's Exhibit 39.
Contrary to the testimony of Brooks, Palmer stated
that, as a result of the information he received about
Scales' dragline experience, he checked all the references
contained on the employment applications of all the laid-
off employees. He admitted, however, that he never
placed any notation in Scales' file indicating that the em-
ployment experience set forth by the employee was not
correct. Palmer further testified that when Scales was re-
hired on April 30, the employee was informed by Brooks
that he would be a probationary employee for 60 days
and would start at the bottom of the seniority list for his
job classification.
According to Palmer, when an employee was rehired,
it was Respondent's standard policy to impose a 60-day
probationary period and start the employee at the
bottom of the seniority list for his job classification. He
cited two instances where these requirements were im-
posed. The first involved employee Bernie Lamb, who
Palmer stated quit for 3 months in 1980 and was re-
hired.29 The second example cited by Palmer involved
27 A dispute developed at the hearing over the wording contained in
the document purporting to be the memorandum placed in Scales' per-
sonnel file on May 17 . This matter is treated elsewhere in this decision,
infra
28 Allen's employment application was introduced into evidence as R
Exhs 32 and 33. Similar to the applications of Cambers and Davidson,
these documents reveal that Allen was hired initially as a temporary em-
ployee because he was on layoff status from another coal company.
29 Lamb , a current employee , was called as a witness by Respondents.
Lamb's testimony first corroborated that of Palmer but when it was
Continued
MIDWESTERN MINING
employee Bobby Cliffman who, according to Palmer,
was discharged and then rehired in 1979.
Palmer denied having any knowledge about Scales' ac-
tivities on behalf of the Union. He stated that the basis
for the decision not to recall Scales was the incorrect
listing of the dragline experience on the employee's job
application and the change in attitude and lack of pro-
ductivity indicated by the memo of May 17.
A dispute developed at the hearing regarding the
wording contained on the document submitted into evi-
dence as the memorandum placed in the personnel file of
Scales on May 17. (See G . C. Exh. 39.) After reciting the
history of Scales' employment with the Respondents and
the conditions of his rehire , the document concluded
with the following:
After Mr. Scales returned to work, it was found
that he had a bad attitude problem about his work.
Management is contemplating termination.
Roy Wimpey, the Board agent investigating the
charges filed in this case, was called as a witness by the
General Counsel. According, to Wimpey counsel for Re-
spondents handed him the document for inspection
during the course of his investigation and the last sen-
tence read, "At the time of layoff, management is con-
templating termination." Because he had been advised by
Respondents that they had not considered a layoff until
June 15, Wimpey stated he considered it unusual to find
mention of a layoff in a document dated May 17.
Wimpey asked for a copy of the document but his re-
quest was denied by Respondents' counsel.30 Wimpey
reported his findings to his supervisor, William Johnson.
Johnson and Wimpey arranged for a further confer-
ence with Respondents' counsel at the Board's Regional
Office to discuss the charges. A request was made to
review this document, along with others. Counsel for
Respondents did not hand over the document on this oc-
casion but read it to the Board agents. Both Johnson and
Wimpey testified that the concluding sentence read to
them was the same as the language Wimpey read' when
he first saw the document. Again, a request to copy the
document was denied.
Although he did not take the stand as a witness, coun-
sel for Respondents represented that he was unable to
recall the precise wording of the document in question.
Ira Palmer and Brooks testified, however, that the docu-
ment introduced into evidence was the memorandum
they signed and placed in Scales' personnel file on May
17. They denied that its language had been altered in any
fashion.
pointed out to him on cross-examination that Respondents' records
showed his seniority date to be December 4, 1978 (see GC. Exh 5),
Lamb became vague and uncertain about when he quit his job and was
rehired Nevertheless, he maintained that, whenever it was, he went to
the bottom of the seniority list and had to complete a 60-day probation-
ary period
30 It was apparently the practice of Respondents' counsel not to pro-
vide Board agents with copies of clients' documents and records during
investigations of unfair labor practice charges against them
233
H. Additional Acts of Alleged Unlawful Conduct
Employee Ronald Christian, a pit loader operator who
was not laid off on June 18, testified that he had a con-
versation with William Palmer on June 21. Christian
stated this conversation occurred on 1 he day a meeting
was scheduled to be held at the union hall in Mulberry,
Kansas. According to Christian, he was operating a ma-
chine in the pits when William Palmer drove up accom-
panied by Curtis Dwayne Couch. Christian testified that
Palmer asked him to attend the UMW meeting and "tell
them that if the UMW got in, Respondents would close
the mine." Christian stated that Couch verbally affirmed
Palmer's prediction that Respondents would close the
mine if the Union became the representative of the em-
ployees.
The testimony indicates that after the organizing cam-
paign started among Respondents' employees, a number
of meetings were held between the union organizers and
the employees at the Union's hall in Mulberry. It is evi-
dent from the testimony that Mulberry is a small commu-
nity of approximately 500 people and there are only two
main thoroughfares going through the town. The union
hall is located approximately a block off the intersection
of these main streets. Further, the mother of William and
Robert D. Palmer resides in the town, and William
Palmer and his family also live there. Consequently, in
order to reach the Palmers' homes, one must traverse the
main streets, thereby passing the union hall. According
to the testimony of several employee witnesses, on a
number of occasions when the employees were attending
union meetings at the hall, one or the other of the Palm-
ers would drive by in a pickup truck.
In addition, employee Jack Clark testified that he had
a conversation with Robert Palmer about what took
place at a union meeting in Mulberry on July 26. Ac-
cording to Clark, during the course of the meeting em-
ployee Jack Westhoff sat beside Lowell Forbes at a table
in front while he and Dennis Forbes sat in the audience
with the rest of the employees attending the meeting.31
Clark stated that, several days later, Robert Palmer came
up to him and Dennis Forbes and said, "Boy, you guys
don't have much suck with your father because you sit
out in the audience and Jack [Westhoff) sits right beside
him."3z
There is testimony in the record regarding continued
threats to close the mine if the UMW became the bar-
gaining representative of the employees. Clark testified
that, in early July, Prettyman was on the leasehold and
Robert Palmer pointed out the union representative to
him. Clark stated that Palmer said, if the UMW got in,
Respondents would shut the mine down. Clark and
Dennis Forbes also testified that, on August 6, they were
at a homecoming event and were standing by Robert
Palmer's automobile. According to their testimony,
Palmer stated that if the employees went UMW, they
could all look for a job because Respondents could not
31 Clark and Dennis Forbes were the son-in-law and the son, respec-
tively, of Union Organizer Lowell Forbes.
32 Palmer denied making this statement to Clark about the union meet-
ing.
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
afford the Union and would close the mine. Clark also
stated that Palmer said some of the employees were
good workers and he had plans for employee Westhoff.
However, according to Clark, Palmer went on to state
that if the UMW got in, he would make Westhoff so
sick, he would puke.33
Employee Mike Sarley34 testified that, on August 11,
be and Robert Palmer were riding in Palmer's pickup
truck. According to Sarley, Palmer said that if the em-
ployee signed an authorization card for the UMW, he
should think twice. Sarley further testified Palmer told
him that if the UMW got in, the Respondents would take
all of the equipment and park it at the shop. Palmer
denied making these comments.
Laid-off employee Edwin King35 testified that, on
August 14, he was at his daughter's home and had a con-
versation with William Palmer. King stated that William
Palmer said Respondents were not going UMW. Ac-
cording to King, Palmer said Respondents would pad-
lock the place and auction off the equipment before they
would sign a contract with the Union. Palmer admitted
having a conversation with King but denied making the
statements attributed to him. According to Palmer, King
was at his daughter's home which was across the street
from Palmer's residence. King asked if Respondents
would be willing to sign a contract with the UMW, if
the Union won an election. Palmer stated he replied he
did not know but if the cost to Respondents was such
that they were unable to meet their bills, they might
have to "shut her down."
Dennis Forbes testified regarding a conversation he
had with Robert Palmer on August 19. Forbes was
unable to recall how the conversation was initiated, but
stated that Robert Palmer told him that Independence
Power still did not want to raise the price it was willing
to pay Respondents for their coal. According to Forbes,
Palmer also made the comment during this conversation
that if the employees selected the UMW, Respondents
would have to close down the mining operation. Clark
also testified that, on August 21, Robert Palmer told him
the Respondents were getting only $21.90 a ton for their
coal. Clark stated Palmer said that, because of the low
price, Respondents would have to shut down the mining
operation if the Union got in.36
Former employee Scott Beam37 and employee Westh-
off testified that they had a conversation with Robert
Palmer the evening of September 2 when they were at-
tending a softball tournament. According to Beam,
Robert Palmer told him and Westhoff that they "could
write it down and take it to the UMW that if the mine
went union, Respondents would shut it down." Westhoff
recalled that Palmer added that the employees could pass
as Palmer denied making any comments to either Clark or Forbes
about the Union or what Respondents would do if the employees select-
ed the Union as their bargaining representative
34 Sarley was laid off on June 18 and recalled on August 10.
ss King was laid off on June 18 and had not been recalled by Re-
spondents
as Robert Palmer denied making any comments of this nature to Clark
or Forbes
31 Beam was laid off on June 18 and recalled by Respondents during
the first part of August. He quit his employment with Respondents on
September 25
on his statement to anyone they wanted to. Palmer, on
the other hand, denied making any such statements to
Westhoff or Beam . He admitted, however, that he saw
the employees at the softball tournament that evening.
Westhoff further testified that, on September 13,
Robert E. (Bobby) Palmer came up while he was talking
with a group of employees about the Union. Westhoff
stated that Bobby Palmer told the employees that if they
selected the UMW as a bargaining representative, Re-
spondents would take all the equipment from the mining
operation and park it in the parking lot next to the shop.
Westhoff stated that Bobby Palmer emphasized his state-
ments by saying, "That comes from the top."
There is also testimony in the record by former em-
ployee Beam regarding a conversation he had with Steve
Coleman, then designated as leadman of the tipple and
coal-washing operation. Beam testified this conversation
took place on September 14 in the tipple area. According
to Beam , Coleman asked the employee to be certain to
attend the UMW meeting scheduled for that evening.
Beam stated that, the following day when he reported to
work, Coleman wanted to know what occurred at the
union meeting.
1. The Alleged Unlawful Assistance to CIU
1. The solicitation for CIU
As previously noted, employees Fred Couch and Todd
Shaw were opposed to the prospect of the UMW repre-
senting the employees. Couch's testimony indicated that
he made contact with a CIU representative to investigate
the possibility of that union as an alternative to the
UMW.38 Couch denied that any of the management offi-
cials or supervisors at the mine suggested that he contact
the CIU. Couch further testified that after meeting with
the CIU representative (Conrad), it was decided that a
meeting would be set up between the CIU official and
the employees at a motel in the nearby town of Nevada,
Missouri, during the evening of September 2. In order to
persuade the employees to attend the meeting, Couch
and Shaw began soliciting the employees at the minesite
to sign CIU authorization cards and engaged in discus-
sions with the employees about being represented by that
union. Although Couch and Shaw admitted they made
the solicitations during working hours, it was not until
cross-examination by Respondents' counsel that they as-
serted they only spoke to the employees about the CIU
during the lunch period or their breaktimes.
Contrary to the testimony of Couch and Shaw, several
employees stated they were approached by these two re-
garding the CIU during working time in their working
areas. Employee Clark testified that, on September 2,
Couch came over to a group of employees, including
Clark, approximately 15 minutes before the lunch break
and talked with them about the CIU and the meeting
which was scheduled to be held that evening. Clark
stated the discussion continued through the lunch period,
which normally lasts 30 minutes. According to Clark,
38 Although the testimony of Couch does not reveal when the contact
was made, Richard Conrad, current national vice president of CIU, testi-
fied he was contacted by Couch in late August
MIDWESTERN MINING
leadman Neal Jr. came into the area several times during
the discussion but said nothing about it to the employees.
Employee Beam testified that, on September 1, Couch
and Shaw came over to him in the tipple area during
working hours. They informed him that the CIU repre-
sentative had agreed to come and talk with Ira Palmer.
Beam stated that leadman Coleman was 25 or 30 feet
away but did nothing to interfere with the employees'
conversation . Beam asserted this was unusual because, in
the past, Coleman stopped employees from conversing
about personal matters while working. Beam further
stated that, later the same day, Couch told him, in Cole-
man's presence, that the CItI representative had talked
with Ira Palmer, who okayed the CIU and was for it.39
Similarly, employee Christian stated Couch came to
the pit area where he was working and started a conver-
sation with him about the CIU. Christian testified that
Couch told him management could live with the CIU
but not with the UMW. According to Christian, Couch
maintained that there was no $3-per-ton royalty included
in the CIU's benefits. Christian further testified that he
observed Shaw drive William Palmer's pickup truck into
the pit area and engage employees Terry Loudermilk
and Jim Harper in a conversation about the CIU. Chris-
tian testified that Shaw's discussion with the employees
lasted for approximately 15 minutes and that he was in
earshot of Shaw for 5 to 10 minutes. Christian further
stated that Mine Superintendent Brooks was approxi-
mately 50 feet away but made no attempt to interfere
with the discussion taking p]'ace among the employees.
He also stated that he did not observe Couch or Shaw
perform any repair work on the machines in the pit area
while they were conversing with the employees about
the CIU.
Employee Beard testified to a conversation about the
CIU he asserts he had with Shaw on August 31 in the pit
area during working time. Beard stated he and Shaw
talked for approximately 15 minutes and then Shaw left
to talk with other employees. Beard further testified that
Shaw did not perform any repair work on the machines
while he was in the area.
Dennis Forbes testified that he observed Couch and
Shaw speak with Robert Palmer and Neal Jr., and then
go and talk with employees in the area about the CIU
during working time. According to Forbes, Couch and
Shaw engaged the employees in a discussion for approxi-
mately 20 to 30 minutes. Forbes further stated that none
of the leadmen or supervisors made any effort to stop
Couch and Shaw or interfere with their conversations
with the employees.
Both Couch and Shaw stated they also spoke with the
leadmen at the minesite about supporting the CIU.
Couch testified he spoke with Robert Palmer about at-
tending the meeting with the CIU representative on the
evening of September 2. Couch further stated he told
Palmer that if management did not agree to accept the
CIU, he would drop the matter. According to Couch,
Palmer was upset at first but then decided the CIU
ss Contrary to Beam 's recollection of the date , the record evidence in-
dicates that Conrad spoke with Palmer on September 3 rather than on
Septembea I
235
might be of benefit to the Respondents. Couch stated
that he also spoke to Neal Jr., who adopted the same at-
titude as Robert Palmer. In addition to speaking to
Palmer and Neal Jr. about attending the CIU meeting,
Couch testified that he spoke to leadman Jack Wallace,
Steve Coleman , and Dwayne Couch about the same
matter.
Shaw testified that he also spoke with Coleman,
Dwayne Couch, and Wallace regarding the CIU but
could not recall what was said during, these conversa-
tions. At one point in his testimony , he was uncertain
that he even discussed the CIU with these individuals
but, on cross -examination , asserted that he and Fred
Couch always initiated the conversations when they dis-
cussed the CIU with the group leaders (leadmen). How-
ever, Shaw was unable to recall any discussion he had
with Robert Palmer about the CIU prior to attending the
meeting on the evening of September 2.
At the meeting on September 2, a group of Respond-
ents' employees, including leadmen Robert Palmer,
Dwayne Couch, Miles Neal Jr., Steve Coleman, purchas-
ing agent Mel Bowie, and Bobby Palmer met with
Conrad at the motel in Nevada at 7 p.m. During this
period of time, the Respondents were working three
shifts at the minesite and the bulk of those in attendance
were from the day shift. There is testimony in the record
that three employees from the second shift (Terry Rink,
Richard Totman, and Bernie Lamb) were released from
work by Pit Boss Lester Moore (in charge of the second
shift) in order to attend the meeting. Rink stated he was
never reprimanded for attending the meeting nor was his
pay docked for the 3 hours that he spent there. Moore,
on the other hand, testified that the three employees
came to him and asked for permission to take time off
for personal business. Moore stated he did not know of
the CIU meeting until after he had granted the employ-
ees permission to leave. According to Moore , the em-
ployees were gone for 3 hours and he placed memoranda
in their personnel files indicating their absences were un-
excused.40
At the meeting, Conrad talked about what the CIU
could offer the employees. He stated that approximately
30 employees attended the meeting and 25 signed author-
ization cards for the CIU. Conrad further testified that,
during the discussion in response to questions , compari-
sons were made, between the CIU and the UMW. He
also stated there were some questions about employees
who had been supervisors but were demoted subsequent-
ly to hourly classifications. Conrad testified he told the
employees the CIU wanted to represent only hourly
wage employees. After the meeting, Couch and Shaw
asked if Conrad would come to the office at the minesite
next morning , if they arranged a meeting between Re-
spondents' officials and him. Conrad agreed to do so.
Neither Fred Couch nor Shaw could recall whether
any comments were made at the meeting by the leadmen
40 See G C. Exh. 99 (the memorandum concern tng Totman 's unex-
cused absence on September 2). Respondents also offered a series of doc-
uments from their records purporting to show that none of the three em-
ployees were paid for their time off on September 2 (See R Exhs 26,
27a, b, c, 28, 29a, b, c, 30, 31a, b, c).
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who were present.41 Rink testified, however, that
Dwayne Couch told the employees that if the CIU did
not get in and the UMW did, Respondents would shut
down the mine. Fred Couch informed the employees at
the meeting that if Ira Palmer did not accept the CIU,
they would drop the entire matter.
Dennis Forbes testified that, the following day (Sep-
tember 3), he spoke with Robert Palmer because Palmer
had not appeared at the softball tournament the evening
before. According to Forbes, Palmer stated he was at a
"Bohemian Onion meeting" and Forbes asked if he
meant the CIU meeting. Palmer indicated he did and
stated, according to Forbes, "It wasn't worth a damn,
but would allow Respondents to continue to operate the
mine."
2. The meeting between the CIU representative and
Respondents' management
Fred Couch and Shaw testified that the following
morning they arranged for Harold Card and Ira Palmer
to speak with Conrad at the minesite. They left the lea-
shold without securing permission and went to a prear-
ranged spot where they waited for Conrad. Conrad was
delayed and they waited over an hour for him to arrive.
When he finally appeared, they took Conrad to the
office where he spoke with Card and Ira Palmer about
the CIU. According to Couch, after Conrad made his
presentation, Card stated they liked the idea "and if the
employees wanted a union, this was the way to go."
Conrad claimed that he had 18 signed authorization
cards at that time according to Couch. Couch further
testified that neither Card nor Palmer indicated they
would recognize the CIU at the meeting. Shaw, who
was also present at the meeting, was unable to recall
anything that was said by Card or Ira Palmer. The affi-
davit which he gave the Board agent investigating the
case, however, indicates that Ira Palmer told Conrad
that while he did not like it, he could live with the CIU
since it would not be that much of an expense to him.
Conrad testified that he spoke with Palmer and Card
and told them about the meeting he had with the em-
ployees the evening before. Although Conrad professed
to have had a card majority, he told the management of-
ficials that the issue would be settled under an election
conducted by the NLRB. Conrad asserted that he did
not request recognition from the Respondents at this
time. He stated that following the meeting with Re-
spondents' officials, he informed Couch and Shaw that
he would file a petition the following week.
Immediately after the meeting, Couch and Shaw began
to report the results to the employees at the minesite.
Couch testified that he told the other employees he felt
management would go along with the CIU. Shaw testi-
fied that he reported to the employees that Ira Palmer
indicated that, although he did not like it, he could live
with the CIU.
Laid-off employee King testified that, on September
13, he met William Palmer on a country road outside
41 It was stipulated that CIU authorization cards were signed by lead-
men Robert D. Palmer, Steve Coleman, Mel Bowie, Curtis D Couch,
Miles Neal Jr, and Jack Wallace
Mulberry, Kansas. King stated they had a conversation
about his being recalled to work. According to King,
William Palmer told him Respondents were going to call
him back to work pretty soon. He stated that Palmer in-
formed him that Fred Couch and Todd Shaw were
going to arrange to get another union, which he charac-
terized as a "company union," and when everything was
straightened out, employees would be called back to
work. He cautioned, however, that a bunch of employ-
ees were going to be "weeded out" because Respondents
would not go UMW. William Palmer admitted having a
conversation with King on this date. Palmer testified that
King stopped him because he wanted to know when he
would be recalled to work. Palmer denied, however, that
he mentioned anything about a "company union" or that
the Respondents were going to weed out some employ-
ees because they supported the UMW.
J. The Scope and Composition of the Bargaining Unit
1. The status of alleged supervisory employees
The parties stipulated that certain individuals were su-
pervisory employees at the minesite until June 25. These
individuals were: Robert Palmer, William Palmer, Steve
Coleman, Curtis Dwayne Couch, Miles Neal Jr., Jack
Wallace, Jerry Watts, and Frank Weisensee.42 Consider-
able testimony was adduced to show that, after June 25,
the above-named individuals almost exclusively per-
formed unit work at the minesite. The unrefuted testimo-
ny reveals that, prior to June 25, these supervisors also
operated equipment and performed unit work on occa-
sion when it was necessary. It is noted, however, that
the unit work performed by these supervisors after June
25 occurred during the period of the shutdown of Re-
spondents' production operation by the Reclamation
Commission. Further, the work performed by these indi-
viduals, with the exception of William Palmer and Cole-
man '43 was devoted exclusively to reclamation work re-
quired by the Commission in order to allow Respondents
to resume the production operation. After production
started again at the end of July and some of the laid-off
employees were recalled, each of the supervisors revert-
ed to their former responsibilities while continuing to
perform some unit work on a limited basis.
On August 16, Ira Palmer sent a letter to each of the
supervisory employees, and Mel Bowie as well, changing
their employment status from "management" to hourly
paid employees. Prior to this, the supervisors and Bowie
were salaried. The letter also indicated that the recipient
was now a "leadman" in his area of responsibility.44 The
42 There is no dispute over the managerial or supervisory status of Ira
Palmer, Card, McCrate, Brooks, Moore, or Tom McLeod (blasting fore-
man).
43 During this time, William Palmer was setting up a "fines recovery
system" in the tipple area to enable Respondents to recover smaller parti-
cles of coal which they were losing in the washing process He was as-
sisted by Coleman on this project
44 See G.C. Exh 30 for a copy of the August 16 letter sent to Electri-
cian Supervisor Frank Weisensee He was carried on RSI's payroll Simi-
lar letters were sent to the other supervisors whether they were on the
payroll of MMR or RSI
MIDWESTERN MINING
change in employment status also resulted in the supervi-
sors receiving their wages every 2 weeks , as was the
case with all hourly paid employees , rather than on a bi-
monthly basis , which was the situation when they were
salaried. Copies of Respondents ' payroll records were
placed into evidence showing the effect, if any, the
change in the employment status had on the wages re-
ceived by the now leadmen . (See G.C . Exhs. 31 and 32.)
The testimony is conflicting regarding the duties, re-
sponsibilities , and authority of the supervisors after they
were classified as leadmen . Generally, all the leadmen
testified that they had no authority to hire, fire, disci-
pline, or responsibly direct the work of the employees in
their respective areas without specific direction from
Brooks or McCrate. The employees , on the other hand,
testified that the leadmen continued to exert the same au-
thority they possessed when they were supervisors, and
that they still considered the leadmen to be supervisors.
Regarding this matter , the record discloses the following.
Robert D. Palmer: As noted, Robert is the brother of
William and the uncle of Ira Palmer . He is also a sub-
stantial shareholder in Midwestern Fuels, the parent or-
ganization of the Respondents . The unrefuted testimony
reveals that Palmer drives a company -owned truck to
and from his home and the minesite and also around the
various leases being mined by the Respondents.45 Em-
ployee Beard testified that Palmer continues to give him
work assignments and during the latter part of August,
granted him and employee Harper permission to leave
work early . He also stated that in November, he was
reprimanded by Palmer for stopping work earlier than
Palmer felt he should have.
Westhoff testified that Palmer has continued to assign
him work and to move him from one machine to an-
other. Westhoff stated that although Palmer operated
equipment when the ,Respondents were closed down to
perform reclamation work , since then he drives around
in a company pickup checking on the performance of
employees . It is undisputed that, in early September,
Palmer gave Westhoff and the reclamation crew working
at that time permission to take time off to attend the soft-
ball tournament when Respondents ' team was scheduled
to play . Westhoff also testified that he has observed
Palmer cutting wood during work hours on the minesite
for personal use in his home.
Dennis Forbes testified he continued to receive work
assignments from Palmer after the latter was classified as
a leadman . He stated that, during the month of August,
Watts was off the job due to a personal injury and
Palmer took over his duties. He further testified that,
during the latter part of August , Palmer granted him per-
mission to take time off to attend two funerals . Finally,
Forbes testified that Palmer reprimanded him on one oc-
casion in August for talking to employee Loudermilk
during working hours. Employees Clark, Rink, and
Christian testified that Palmer supervises their work ac-
tivity on the weekends that he works . 46 According to
45 Prior to August 16, all the supervisors were assigned company vehi-
cles for their own personal use as well as for use in getting around the
mmesite.
46 Each of the leadmen works every other weekend
237
these employees , Palmer spends his time driving over the
mine area making certain that everything is being per-
formed as scheduled.
William Palmer: As previously indicated, 'William is
the father of Ira Palmer, Respondents ' chief operating of-
ficial, and is a major shareholder in the Respondents'
parent organization . He is also on the board of directors
of MMR and RSI . Palmer asserted that sometime after
mid-August, the major portion of his job duties consisted
of "chasing parts" and required him to be off the jobsite
for approximately 50 percent of his working time. The
testimony of the employee witnesses indicates that, when
William Palmer is on the jobsite, he exercises the same
supervisory authority he exercised before the asserted
status change. Employee Beard testified that he observed
Palmer on the jobsite giving orders to employees Fred
Couch and Shaw. Couch testified that Palmer assigned
work to him and indicated there was no change in his
working relationship with Palmer since the status
change. Palmer also drives a company truck for his per-
sonal use as well as around the mine area. The testimony
of the employees clearly indicates that they consider
Palmer not only to be one of the "bosses" but also one
of the owners of the operation.
Steve Coleman: Prior to the change in status , Coleman
was the foreman of the washing operation and the tipple
area. After the change, Coleman continued to be the
person in direct charge of the same areas . Employee
Beam testified that when he was recalled to work in
early August, he performed his duties under the direc-
tion of Coleman in the tipple area until he quit on Sep-
tember 25 . Beam testified that Coleman gave him daily
assignments and directed him to 'work overtime when-
ever it was deemed necessary . Beam testified that Cole-
man did this with all the employees in .the tipple area.
When Beam voluntarily terminated his employment with
the Respondents , he first notified Coleman who, in turn,
had him execute a memorandum stating the termination
was voluntary. This was placed in Beam's personnel file
and was signed by Coleman and Brooks . (See G.C. Exh.
25.) The testimony indicates that Coleman signs off on
the timecards of the employees who work under him.
Coleman testified that it is also necessary for either
McCrate or Brooks to cosign the timecards , but that he
is the individual who certifies that the representations on
the timecard are correct. There is additional evidence in
the record showing that Coleman also possesses author-
ity to write up employees who work in the tipple area
when he feels they are not properly performing their
duties. These writeups are placed in the personnel files of
the employees . The record reflects that , on September
24, Coleman wrote up employee Cullison for reporting
to work 20 minutes late. This writeup was cosigned by
Brooks. (See G.C. Exh. 18.) Coleman placed two other
warning memos in employee Cullison's personnel file on
October 14 and November 15. The first related to
damage caused to the electricians ' truck when Cullison
negligently backed up his loader . The second related to
Cullison's continuing to report to work late and indicat-
ed that the employee had been warned . (See G.C. Exhs.
19 and 20). In addition , the record testimony indicates
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Coleman drives a company truck for his own per-
sonal use as well as for the purpose of getting to and
from the jobsite.
Curtis Dwayne Couch: Couch is the leadman in charge
of maintenance of the dragline equipment . Prior to the
change in status he was the foreman in charge of the
same operation . Couch drives a company truck on the
minesite and for his own personal use. Couch works
every other weekend alternating with Neal Jr. and Jack
Wallace. When these two individuals are not working,
Couch also supervises the work of the maintenance shop.
Employees Fred Couch and Shaw, who work on drag-
line maintenance . Both testified that Dwayne Couch as-
signs them work on a daily basis. Fred Couch stated that
when there was not enough work to do on the dragline,
Dwayne Couch would go to Brooks and inform him,
"My men won't be tied up today, need them in the
shop?" On these occasions, according to Fred Couch,
they would be assigned work in the maintenance shop.
Although Couch performs maintenance work himself,
the unrefuted testimony indicates that he also performed
similar duties when he was classified as a salaried super-
visor.
Miles Neal Jr. and Jack Wallace: Neal Jr. and Wallace
were the supervisor and assistant supervisor , respective-
ly, of the maintenance shop prior to the August 16
change in status. They then became the leadmen in the
shop. According to Neal Jr., either Brooks or McCrate
comes into the shop every morning and informs him
what work he and his crew are to perform . Neal testified
that, after receiving these instructions, he then assigns
the work to the other mechanics in the crew and if
changes have to be made, he first consults with Brooks
or the pit bosses . Neal Jr. stated that when he was a su-
pervisor he had authority to purchase parts up to $500
but after the change , all such decisions on purchases
were required to be made by Brooks. Neal Jr. and Wal-
lace acknowledge that they put the time on the employ-
ees' timecards and Neal Jr. signs off on the cards. How-
ever, Neal Jr. asserts that the timecards then have to be
cosigned by either Brooks or McCrate. According to
Neal Jr., prior to the change in his status in August, he
spent approximately 50 percent of his time performing
work in the shop. He asserts that, since the change, he
spends close to 100 percent of his time working in the
shop. Neal Jr. drives a company-owned truck which he
uses to go into the field to perform maintenance and to
chase parts . He testified that he and Wallace use the
truck going to and from work because there is no main-
tenance crew on the second shift. Therefore, if equip-
ment breaks down after the first shift, either he or Wal-
lace will come out to the minesite to make repairs. Wal-
lace testified that whenever there is a breakdown in the
field, Neal Jr. makes the decision as to which mechanic
will respond. In Neal Jr.'s absence, Wallace makes the
decisions . According to the testimony of both of these
individuals, Brooks or McCrate determines which me-
chanics are required to work on the weekends.
Employee Christian testified that he is assigned to
work in the maintenance shop at least once or twice a
week. When this occurs , according to Christian , Neal Jr.
makes all his work assignments . Employee Beard testi-
fled that when he was in the maintenance shop, he ob-
served Neal Jr. and Wallace giving orders to the other
mechanics in the shop on a daily basis , including Beard's
father. Employee Shaw testified that when there was no
work to be performed on dragline maintenance, he was
assigned by Dwayne Couch to work under Neal Jr. Ac-
cording to Shaw , when this occurred he received all of
his work assignments from Neal Jr.
Jerry Watts: Watts was the foreman of the reclamation
crew prior to the asserted change in status. Watts uses a
company truck around the mine areas and drives it to
and from work . Watts stated that while he used to make
the decision as to what work would be performed by the
reclamation crew before August 16, after that date
McCrate was responsible for giving the instructions to
him and he in turn passed them on to the crew. As with
the other leadmen, Watts is required to work every other
weekend and alternates with acknowledged Supervisor
McLeod. Watts testified that while he signs off on the
employees ' timecards , it is now necessary for McCrate to
cosign . The employee testimony , however, indicates that
the employees rarely saw McCrate even though he was
the only asserted supervisor over the reclamation crew.
Forbes testified he normally saw McCrate about once
every 2 months and Sarley stated that he saw McCrate
only about once a month.
Employees Forbes, Sarley , and Westhoff further testi-
fied that after the change in status, Watts continued to
give them work assignments on a daily basis . They also
stated that he has granted them time off, after checking
with Brooks, and reprimanded them on several occasions
for infractions of the work rules. Sarley testified that
Watts verbally reprimanded him for not reporting to
work on September 18 when he was scheduled to do so.
The record reflects that a written memorandum to that
effect was placed in Sarley's personnel file. This memo-
randum was signed by Watts and Brooks. (See G.C. Exh.
24.) In November , Watts warned Forbes, Sarley, and
Westhoff about leaving their worksite early. When this
occurred a second time , Watts caused a written repri-
mand to be placed in the employees' personnel file. It
was signed by Watts and Brooks. (See G.C. Exh. 22.)
Although Watts asserted that he signed the document
only as a witness , the employees testified that Brooks did
not discuss the matter with them or investigate the inci-
dent himself.47
Frank Weisenee: As with the other leadmen , Weisensee
drives a company truck to and from work and around
the mine areas . Weisensee testified that he had regular
meetings in the morning with either McCrate or Brooks
concerning his job assignments. According to Weisensee,
after receiving these instructions he would pass them on
to the two other electricians and they would decide col-
lectively which individuals would perform a particular
job. Weisensee testified that "it was done as a democra-
cy." Weisensee admitted, however, that he had 14 years'
experience as a mine electrician and the electricians
working with him only had 1 year's and 6 months' expe-
44 Brooks testified he talked to the three employees about the matter
and informed them in advance that he would have to write them up for
leaving early
MIDWESTERN MINING
rience, respectively. During the course of his testimony,
Weisensee frequently referred to the other electricians as
"my men" or "my guys." Weisensee also stated that, be-
cause of the mine safety laws, he had to inspect all the
work performed by the other electricians because he was
the only electrician with a proper certification.
2. The status of Bowie
Mel Bowie is in charge of procuring, stocking, and ex-
pediting parts for all the equipment used by Respond-
ents. He was a salaried employee until his status was
changed by Respondents on August 16. Prior to the con-
struction of the new maintenance shop, Bowie worked
out of the trailer office at the minesite. Bowie testified
that, after the new shop was completed, he moved to an
office area in the shop. He asserts, however, that anyone
in the shop, including mechanics, can use his office area
and desk. Bowie stated that he does not have authority
to purchase parts in excess of $300 without getting prior
approval from Mine Superintendent Brooks. Unlike the
leadmen, Bowie is not provided with a company vehicle
and he uses his own automobile when he has to go out
into the field. However, Respondents supply him with
fuel and perform maintenance on his automobile.
Although Bowie began working alone, the record indi-
cates that employee Dennis Davidson was assigned to
work in the stockroom with Bowie. Respondents' payroll
documents indicate that Davidson earns between $250
and $350 per pay period less than Bowie.48 Bowie testi-
fied that while Davidson works with him, they perform
the same job functions and he does not give assignments
to Davidson.
In addition to procuring and expediting and warehous-
ing parts for Respondents, Bowie also works at Respond-
ents' scale house in the afternoons starting at 3:30 p.m.
He takes over when the regular scale house attendant
completes her shift. Bowie testified he normally works
there until 5:30 p.m. but, when trucks are late in the eve-
nings, he remains at the scale house until they are all
loaded out, sometimes as late as 8:30 p.m. Bowie also
hands out the paychecks to the employees on payday.
Following the layoff on June 18, Bowie made several
calls to employees to notify them to return to work after
a recall decision had been made by upper-level manage-
ment.
3. The status of other employees asserted to be
outside the bargaining unit
a. Robert E. (Bobby) Palmer
Bobby Palmer is the son of Robert D and the nephew
and cousin , respectively, of William and Ira Palmer. He
owns no stock in the Respondents ' or their parent orga-
nization . He has been employed by the strip mining oper-
ation in various capacities since its inception in 1977.
Palmer started as a laborer, ran a loader for 8 months,
and then a bulldozer for a year and a half. He also oper-
ated a dragline for a while . In early 1982 Palmer ran a
48 The record disclose that Bowie's gross earnings were constant while
those for Davidson fluctuated, thereby accounting for the range of differ-
ence in their wages per pay period.
239
prospect drill, when the weather permitted, in exploring
lease sites for coal. When weather conditions were bad
and the ground was wet, he alternated between working
in the maintenance shop and "chasing parts" for Re-
spondents' equipment. Young Palmer lives at home with
his parents.
Several employee witnesses testified that young
Palmer enjoyed certain privileges on the job which were
not extended to other unit employees. Scales testified
that when he was on the midnight to 8 a.m. shift, it was
customary for him to observe Bobby Palmer reporting to
work as late as 8:45 a.m. (Palmer was scheduled to be at
work at 8 a.m. at that time.) Scales acknowledged, how-
ever, that he had no way of ascertaining whether Palmer
had been out attempting to secure parts on these occa-
sions. Employees Clark and Norris testified they had ob-
served Bobby Palmer reporting to work late on several
occasions and had seen him leave the minesite before the
normal scheduled quitting time. The employees' testimo-
ny also indicates that Palmer would stop work early on
occasions and go into the trailer office to talk with the
foreman. Neither Norris nor Clark could state whether
Palmer was chasing parts when he reported to work late
or left the minesite before quitting time. However, Clark
testified that he had overheard Brooks and Robert
Palmer complaining about young Palmer coming to
work late and not showing up when scheduled to work
on Sundays.
Norris also testified that he was present when Bobby
Palmer refused to operate a certain piece of equipment
when directed to do so by his father, Robert. According
to Norris, Robert Palmer ordered employee Sarley to
operate the same piece of equipment the following day.
Employee Christian testified that, on one occasion,
Bobby Palmer demanded and was assigned a machine to
which Christian was scheduled to operate. Christian
stated Palmer thought it was a better piece of equipment.
There is testimony in the record that Bobby Palmer
also works on his personal pickup truck in the shop
during working hours. Two other employees, Don Will-
ers and Todd Shaw, also use their personal trucks while
traveling around the mine areas maintaining equipment.
The testimony indicates, however, that while Respond-
ents provided Willers and Shaw with fuel and parts to
maintain their vehicles, neither of these employees was
permitted to work on his truck during working hours. In
addition, Christian testified that he had been directed by
Bobby Palmer to work on Palmer's truck in the shop
during working hours. When questioned as to why he
did so, Christian responded, "Well, everybody pretty
much does whatever he [Bobby] wants us to do. No one
wants to argue with him, so they do it."
Finally, employees Dennis Forbes and Mike Sarley
testified that when Watts reprimanded them for leaving
early in November, they complained that Bobby Palmer
was permitted to leave the jobsite before the scheduled
quitting time. According to the testimony of these em-
ployees, Watts indicated nothing could be done about
Bobby Palmer since he was the son of one of the
owners.
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents deny Bobby Palmer enjoys any special
privileges at the mine. Ira and Bobby testified that young
Palmer used his personal vehicle to secure parts for the
equipment at the mine and is supplied fuel and mainte-
nance to keep his truck operational. Bobby Palmer testi-
fied that on the occasions when he arrived at work late,
he was out securing parts before coming to the minesite.
Likewise, when he left early he did so for the purpose of
going to the nearby towns to pick up parts. Palmer
stated that he was not treated any differently at the min-
esite from any other unit employees.
b. Earl Caywood
Caywood is employed by Respondents as a carpenter
and general handyman at the minesite. When at work,
Caywood reports to Neal Jr., leadman of the mainte-
nance shop . The testimony indicates that Caywood also
operates in the scales on occasion when needed. The un-
refuted testimony indicates that Caywood has an em-
ployment arrangement with Respondents which differs
from that of the other unit employees. Caywood's wife is
in ill health and Respondents permit him to take a leave
of absence during the winter months in order to take his
wife to a warm climate.49 In December 1982, Caywood
was on such a leave of absence and had not returned
while the instant hearing was in progress in mid-Febru-
ary 1983. Respondents' officials were unable to state
when the employee intended to return to work.
c. Miles Neal Sr.
Neal Sr. is a master mechanic and works in the ma-
chine shop under the direction of Neal Jr. and Wallace.
Neal Sr. is a recipient of social security benefits and has
a special arrangement with Respondents which allow
him to earn the maximum amount of money each year
that will not place his benefits in jeopardy. The practice
has been that after Neal Sr. earns this sum, he leaves
work and reports back the following year. Respondents'
records indicate that Neal Sr.'s last pay period was on
June 18, 1982, when the employees were laid off.50 The
testimony indicates that Neal Sr. was the only person in
layoff status in August 1982 who did not receive the per-
manent termination notice issued by Respondents. The
testimony also indicates that Neal Sr. returned to work
for Respondents in 1983.
d. James Query and Dale Smith
Query is classified by Respondent as a night watch-
man. Since his hours are from 8 p.m. until 6 a.m., he
stradles the second and third shifts at the minesite. The
testimony indicates that Query reports directly to Moore,
the second-shift pit boss and, when the third shift is
working, he contacts Mine Superintendent Brooks or
Moore at home when the situation warrants it.
Query's duties entail patrolling all the area of the min-
esite, periodically checking all the buildings and the
parked equipment to make certain they are secure, and if
49 Neal Jr testified that Caywood would take a month and a half or 2
months' vacation and then return to work When Caywood is away, Neal
Jr. performs his job duties.
so G.C. Exh 31
any intruders are on the property, to eject them. When
Query patrols the mining areas , he does so in his own
truck and Respondents supply his fuel and provide main-
tenance for his vehicle. As Query rides around the vari-
ous mining areas at night, the operators are instructed to
blink the lights on their machines if they require fuel, oil,
parts, or any other type of assistance . Normally, Query is
able to satisfy the operators' needs by securing the re-
quired item from the shop and bringing it back to the
pits. In the event of equipment breakdown or a major
problem, Query notifies Moore of the situation when the
second shift is on duty or calls Mine Superintendent
Brooks or Moore at home, if the third shift is working.
In addition to his security duties, Query performs cus-
todial duties in the trailer office and the shop. He carries
keys to the offices and the scale house and the testimony
indicates that this is not only to enable him to clean up
these areas but also to provide him with access to the
telephones in the event he has to get in touch with
higher level management.
Dale Smith, hired by Respondents on September 6,
performs the same duties as Query. Smith works on
Wednesdays, Thursdays, Saturdays, and Sundays.51
Smith testified the custodial work in the office and the
shop occupies only approximately an hour and a half of
his normal workday. The balance of the time is spent pa-
trolling and checking the property and the operations at
the various mining areas. Smith stated he carried a .38
caliber pistol in his truck, but asserts that he has done so
for years. According to Smith, carrying a weapon was
not a requirement imposed by Respondents.
Another responsibility of Query (and Smith) is to relay
instructions from supervisors to operators in the field and
to report to the supervisors when an employee fails to
show up for work. The record discloses that, when this
latter event occurs, Query makes a written notation
which is signed by him and the supervisor to whom he
reports the infraction. (See G.C. Exhs. 40, 41, 42, and
43.)
K. The UMW Authorization Cards
The record discloses that the union organizers re-
ceived a total of 38 signed authorization cards to support
the UMW petition filed on September 10. Of this
number, Forbes testified that he had 36 signed authoriza-
tion cards in his possession on August 11, when the
UMW officials met with Ira Palmer in Washington, D.C.
The record further shows that two cards were solicited
and signed on August 23.52 The parties stipulated that if
the bargaining unit encompassed the employees of both
MMR and RSI, there would be 68 employees in the unit
on August 11.
Forbes and Prettyman testified that, in soliciting signa-
tures on the authorization cards, they informed the solic-
ited employees that the Union wanted to represent them
at Respondents ' mine . Each also testified they told the
employees that the Union wanted to get the employees
53 Smith works the 2 days that Query is off and they share the duties
on the days they work together
12 See the cards of Terry Loudermilk (G C Exh. 81) and Gary Lou-
dermilk (G C. Exh. 64).
MIDWESTERN MINING
better wages and working conditions , and that they
wanted a majority of the employees to sign authorization
cards in order to get Ira Palmer to recognize the Union
as the bargaining representative of the employees. The
testimony of Scales, Rink , Beam , Couch, Westhoff, Bran-
non, Clark , and Dennis Forbes indicates the union repre-
sentatives told them that it was necessary for 30 percent
of the employees to sign in order to get an election and
that, by signing , they were authorizing the Union to rep-
resent them at the mine, 53
The union representatives and a number of employee
witnesses stated that the union organizers told them the
Union would attempt to secure voluntary recognition
from Respondents if a majority of the employees signed
cards and , if Respondents refused, the cards would be
turned over to the NLRB for an election . For example,
employee Rink testified that Forbes told them 30 percent
of the employees needed to sign before he could file a
petition for an election . Rink further stated that Forbes
told him the Union wanted to be the bargaining agent
for the employees and requested that Rink read the card
carefully before signing. Brannon testified that he re-
ceived his card from Forbes and was told that it was to
get a bargaining agent at the Respondents' mine. Beam
testified that he also received a card from Forbes and
was told the Union wanted to be the employees ' bargain-
ing representative . Beam was requested to and did read
the card before signing and returning it to Forbes. He
stated that Prettyman was there at the time and said
there was a possibility that there might be an election.
Employee Terry Couch testified that when he was solic-
ited to sign the UMW authorization card he was told
there could be an election or Respondents could recog-
nize the Union as the bargaining representative for the
employees . Westhoff testified that he received his author-
ization card from Prettyman . He also stated that he was
told the Union wanted to be the bargaining agent for the
employees . According to Westhoff, Prettyman stated the
cards would be given to the U.S . Government and that,
by signing the card, the employee was authorizing the
Union to be his representative . Westhoff further testified
that Prettyman said that if enough cards were signed,
there was a possibility there could be recognition with-
out an election . Employee Clark stated he received his
card from his father-in-law , Forbes. Clark testified that
Forbes said the union representatives would try to work
things out with Respondents and, if they were unable to,
then they would seek an election . Clark stated Forbes
cautioned him to read the card and he did so before sign-
ing. Dennis Forbes testified that he was also given a card
by his father , Lowell Forbes. Dennis Forbes stated that
his father told him there were three ways which the
ss All of the authorization cards submitted contained the same lan-
guage which read in part as follows
AUTHORIZATION FOR REPRESENTATION
I, the undersigned employee of _ authorize the UNITED
MINE WORKERS OF AMERICA to represent me as the exclusive
collective-bargaining agent in all matters pertaining to wages , hours,
terms and conditions of employment This authorization cancels any
similar authority previously given to any other person of organiza-
tion
241
Union could gain representation status at the mine. He
stated they could have an election , Respondents could
voluntarily recognize the Union , or the Union could go
to court . Dennis Forbes , further testified that he was told
he was authorizing the UMW to be his bargaining repre-
sentative when he signed the card . Finally, employee
Scales testified that when -his signature was solicited, he
was told that if a majority of the employees signed cards,
they would be presented to Ira Palmer to indicate the
employees wanted to be represented by the UMW.
Scales further testified that at a union meeting Forbes
told the employees attending that if Ira Palmer were in
good faith , he would recognize the Union when the
cards were presented . If not , the cards would be used to
secure an election.
Respondents presented testimony of seven card signers
who asserted they were told, when their signatures were
solicited , that the only purpose of the authorization cards
was to secure an election . James Harper, a current em-
ployee, testified he was given an authorization card by
Prettyman and they had a discussion for 15 or 20 min-
utes. Harper stated that Prettyman and Sarley had come
to his home. According to Harper , Prettyman told him
the only purpose was to get enough votes to get the
Union in. Harper further testified that Prettyman repre-
sented that the Union had enough votes but also wanted
him to sign . Harper stated he signed the card without
reading it , although he testified on cross-examination that
he did not normally make it a practice to sign anything
without first reading it . Harper was unable to recall any
mention of the benefits the Union would be seeking or
that Prettyman stated the Union wanted to represent the
employees at the mine. Sarley, on the other hand , testi-
fied that he heard Prettyman read the card to Harper
before the employees signed it. Sarley also stated that
Prettyman informed Harper that the card was to author-
ize the Union to represent the employee at the mine and
that a majority of the employees needed to sign the au-
thorization cards to enable the Union to do this.
Dennis Davidson , a current employee, stated he re-
ceived the authorization card he signed from Forbes in a
pool hall. According to Davidson, Forbes told him the
card was to get an election . Davidson stated that Forbes
said , if the Union won, it was in but, if it lost, then it was
out. Davidson testified that Forbes filled out the card
and he then told the union representative to wait until he
finished the pool game. When he finished , he signed the
card on the edge of the pool table.
Current employee William D . Barnett testified that he
received an authorization card from Prettyman before at-
tending a union meeting. According to Barnett , Pretty-
man stated that the only purpose of the card was to have
an election at the mine . Barnett stated Prettyman filled
out the card and he signed it. On cross-examination, Bar-
nett admitted that he had attended two or three union
meetings before he signed the card for Prettyman. He
further acknowledged that union representatives at the
meetings he attended said the UMW wanted to represent
the employees at the mine. He also testified on cross-ex-
amination that the union representatives said if they re-
ceived enough authorization cards they could ask Ira
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Palmer for voluntary recognition . Barnett recalled that
he did not have his eyeglasses with him and Prettyman
filled out the card . Barnett denied telling Prettyman that
the employees had received an insert with their pay-
checks in June from Harold Card cautioning them to
"read the fine print" on the UMW cards before signing.
Prettyman, on the other hand, testified he read the card
to Barnett before the employee signed. According to
Prettyman , Barnett insisted that the card be read because
Card had given the employees the letter in June caution-
ing them to read the union cards before signing.
Barnett testified that, on August 4, he called Forbes to
ask for the return of his signed authorization card. Bar-
nett testified that he understood Forbes to indicate he
would return the card but he did not have it in his pos-
session at that time. He further testified that he called
Forbes a second time but was unable to get his card.54
Forbes testified that he had received a call in September
from Barnett regarding his authorization card . Accord-
ing to Forbes, Barnett indicated he had mixed emotions
about signing the card and that he would contact Forbes
later. Forbes stated he never received a followup call
from Barnett.
Kenneth Davidson, currently working for another em-
ployer at the time of the hearing, testified that he re-
ceived an authorization card from Prettyman . He stated
that Prettyman showed him a list of the benefits that the
UMW wanted to get for the employees and indicated
that he wanted the employee to sign the card in order to
bring the matter up for a vote. On cross-examination,
Davidson acknowledged that he read the authorization
card before signing and that Prettyman stated the Union
needed a majority of the employees' signatures on au-
thorization cards. He further stated on cross-examination
that Prettyman informed him the Union wanted to repre-
sent the employees at the mine.
Dale Scism, currently working for Respondents, testi-
fied that he was given an authorization card at his home
by union organizer Forbes. Scism testified that Forbes
stated the Union needed signatures from 30 percent of
the employees in order to have a secret-ballot election,
and that he did not read the card before signing. On
cross-examination Scism admitted that Forbes said the
UMW wanted to represent the Respondents' employees
and recalled that Forbes might have said something
about the benefits the Union wanted to get for the em-
ployees. Scism further acknowledged that, after signing
the authorization card, he met with Respondents' attor-
ney because he "wanted his name off of the authoriza-
tion card." Scism stated he signed the card merely to get
rid of the union representatives.
Employees Clark and Sarley testified that they accom-
panied Forbes to Scism's home when the employee
signed the card Sarley had arranged the meeting. Clark
testified that Forbes read the card to Scism and Clark
told the employee that the Union had to get the signa-
54 Barnett admitted on cross-examination that he had taken it upon
himself to check with Bill's Coal Company to determine if Scales had
trained employee Kenneth Davidson on the dragline while working
there. Barnett further admitted that he had called other employees who
he knew had signed authorization cards for the UMW and suggested that
they contact Respondents' attorney concerning the pending case
ture of at least 30 percent of the employees in order to
have a vote. Sarley recalled that Forbes also asked Scism
if he would sign the authorization card for the Union to
be the employees' bargaining representative at the mine.
According to Sarley, Scism was reluctant to sign but did
so out of his friendship with Clark and Sarley. Sarley
corroborated Clark's testimony that Forbes read the card
to Scism before the employee signed.
David Scharenberg testified that he was also given an
authorization card to sign by Forbes . Scharenberg stated
Forbes came to his home and said that the Union needed
signed cards from 30 percent of the employees in order
to hold a secret-ballot election. Scharenberg testified that
he did not read the card before signing. He stated that
employee Elmer Scales was present with Forbes at the
time of the visit. On cross-examination , Scharenberg ad-
mitted that Forbes said the Union would try to get in-
creased benefits for the employees. He testified he did
not read the card because Forbes explained about the
benefits the Union would seek and told him that the
Union wanted to represent him.
Gary Loudermilk, a current employee, testified that he
received the authorization card he signed from Pretty-
man. Loudermilk stated that he was at his brother's
(Terry) home at the time. According to Gary Louder-
milk, Prettyman discussed the benefits the Union wanted
to get for the employees and stated the reason for solicit-
ing Loudermilk 's signature on the card was to get an
idea of the number of employees who wanted the Union
to represent them. In response to leading questions from
Respondents' attorney, Loudermilk further testified that
Prettyman stated the only reason for signing the card
was to have a vote to see if the employees wanted the
Union to represent them. Loudermilk testified on cross-
examination , however, that he read the card before sign-
ing and knew that he was authorizing the Union to rep-
resent the employees.
Dennis Forbes testified that he accompanied Pretty-
man to the Loudermilks' home. According to Dennis
Forbes, Prettyman explained all the union benefits and
represented to the employees that the Union was going
to seek a bargaining order. Forbes stated that Prettyman
read the authorization card to the Loudermilks and as-
serts there was no mentioned of an election. Contrary to
the testimony of his brother, Terry Loudermilk stated
that Prettyman informed them taht the card was to au-
thorize the Union to become the bargaining agent of the
employees.
CONCLUDING FINDINGS
1. UNLAWFUL THREATS AND PROMISES
Having found that MMR and its wholly owned subsid-
iary, RSI, constitute a single employer for purposes of
the Act, the threshold issue to be treated here is whether
Respondents ' agents and supervisors , on learning of the
union organizing campaign, made unlawful threats to
close the mine and promises of benefits to employees if
they did not become involved in UMW activities. The
record is replete with testimony by employee witnesses
regarding conversations they had with Respondents' su-
MIDWESTERN MINING
pervisors concerning the UMW campaign and what the
employees could expect if the Union became their bar-
gaining representative. Laid-off employee Norris testified
William Palmer and Pit Boss Moore each told him that
Respondents would shut the mine down if the Union
represented the employees. Current employee Clark
stated that Mine Superintendent Brooks stated, "Willy
[Ira Palmer] will just shut her down," and that Supervi-
sors Coleman and Robert Palmer each made similar
statements on separate occasions. Laid-off employee
Mindicki testified Brooks questioned him about his and
other employees "talking union" and said there would be
"trouble," if they did so. Employee Westhoff testified
Brooks warned him not to get involved in the union ac-
tivity because it would hurt his chances of moving up in
the company, and further, that Respondents would shut
the mine down, if the Union got in. Employees Forbes
and Sarley testified that on the day union organizer
Forbes came to the mine in June, Robert Palmer com-
mented to the effect that things were going to get "hot"
for someone that day. Employee Beam testified Robert
Palmer stated that, if the employees went union, Re-
spondents would shut down the mine. Likewise, current
employee Rink stated Brooks questioned him about
union activities at the mine and stated Respondents
would shut the operation down, and further, that Robert
Palmer made similar statements to him that same day.
Former employee Roberts testified Robert Palmer told
him the employees would be out of work and driving
dump trucks if the Union got in. Finally, union organizer
Forbes testified that when he went to the mine on June
16 to advise Ira Palmer that the Union was organizing
the employees, Ira, William, and Robert Palmer stated
that they wished they knew who the "S.O.B.'s" were
who signed authorization cards for the UMW and Ira
stated he would close the mine.
In each instance, the management officials and supervi-
sors to whom these comments were attributed denied
making these statements. However, I do not credit any
of their denials. My failure to do so is based not only on
my observation of the witnesses while they were testify-
ing, but also on the fact that a number of the employee
witnesses were currently working for Respondents and
testifying against their own employment interests. Al-
though Card stated he instructed Ira Palmer to inform
the supervisors not to discuss the Union with the em-
ployees, I do not find this self-serving statement to be
persuasive. Moreover, even if he did issue such instruc-
tions, it is apparent from the credited testimony that they
were ignored. Additionally, 1 find the threats to shut the
mine down if the UMW represented the employees to be
consistent with the pattern of unlawful conduct engaged
in by Respondents' officials and supervisors in attempting
to stifle and thwart the UMW organizing campaign. Evi-
dence of this is found in the unrefuted testimony of em-
ployees Fred Couch and Todd Shaw, whose interests
were hostile to representation by UMW and who sought
out the CIU as an alternative union. It is apparent from
the testimony of each of these employees, examined
under Federal Rule of Evidence 611(c), that they met
with Ira Palmer secretly away from the minesite during
working hours and were interrogated about the identity
243
of the employees supporting the UMW. Also, after re-
ceiving assurances of their opposition to UMW, Palmer
subsequently made an implicit promise of benefit to the
two employees by asking if they wished to be considered
for positions that might possibly open in management.
This conduct demonstrates that Respondents' officials
were prepared to reward those employees found to
oppose the UMW organizing effort and, by implication,
to punish those who supported the UMW. It also evinces
a decided disposition by Respondents' management,
ranging from top-level officials to onsite supervisors, to
engage in unlawful conduct in order to stifle the UMW
organizing campaign and to undermine support for that
Union.
In view of the above, I find that Respondents' man-
agement officials and supervisors did in fact threaten em-
ployees with loss of employment if they became repre-
sented by UMW and made promises to employees that
their position at the mine would improve if they did not
engage in activities on behalf of UMW. It is axiomatic
that such conduct interfered with, restrained, and co-
erced the employees in the exercise of the right, guaran-
teed by Section 7 of the Act, to engage in union activi-
ties or to refrain therefrom. I find, therefore, that Re-
spondents' agents and supervisors violated Section 8(a)(1)
of the Act by this unlawful activity.
II. THE JUNE 18 LAYOFF
It is evident from the record that on June 16, Re-
spondents' officials were preparing the employees for a
layoff on June 25 because of the status of the coal-con-
tract negotiations between Associated and the City of
Indpendence. However, on June 18, Respndents abruptly
laid off 42 employees and the layoff commenced in the
middle of the first shift. The General Counsel does not
question the proposed layoff scheduled for June 25, but
contends Respondents unlawfully accelerated this layoff
to June 18 in order to stifle the union activity among the
employees. In my judgment, the record evidence does
not preponderate in favor of the argument advanced by
the General Counsel.
It is true that the early layoff followed on the heels of
UMW's formal announcement of its intention to organize
the employees. It is also true that Respondents' supervi-
sors engaged in substantial unlawful conduct during the
union organizing activity prior to the layoff. However,
the Respondents' business justification for the accelera-
tion of the layoff compellingly overcomes the prima
facie showing that the early layoffs were motivated by
unlawful reasons. The record graphically demonstrates
that Respondents were face to face with an immediate
cessation of all cash flow on June 18, when Independ-
ence decided to withhold all payments to Associated for
coal delivered by Respondents until the dollar value of
the BTU deficiencies was recovered. Furthermore, Re-
spondents were unable to ship coal to Independence until
July 6, at the earliest, because the utility was in the proc-
ess of inventorying its coal stock on hand. The resultant
withholding of all payments to Respondents by Associat-
ed forced Card to hurriedly seek a source from which to
borrow funds in order to meet Respondents' current pay-
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
roll and vacation obligations. Thus, it is more than evi-
dent that the 'decision to abruptly lay off all employees,
except those essential to keeping the mine open, on June
18 was motivated by a legitimate business judgment to
immediately curtail future payroll obligations and oper-
ational expenses during the cash flow crisis.
In these circumstances, I find that the contemplated
layoff of June 25 would,have been accelerated to June
18 even in the absence of the UMW organizing activity.
See Wright Line, 251 NLRB 1083 (1980), affd. 662 F.2d
899 (1st Cir. 1981).55 Accordingly, the allegations of the
complaint alleging the layoff on June 18 to be a violation
of the Act must be dismissed.
III. THE TERMINATION OF THE LAID-OFF EMPLOYEES
The General Counsel contends that Respondents ter-
minated the 28 laid-off employees on August 19 in order
to dissipate UMW support in the bargaining unit and to
discourage other unit employees from supporting that
union. Respondents contend that the employees were not
terminated, but that the letters were sent to advise them
of the small likelihood they would be rehired in the near
future at the mine. Contrary to the language on the face
of the letters, Ira Palmer asserted that he did not consid-
er the employees terminated but, rather, in a preferential
pool to be hired when conditions improved.
I do not find Respondents' argument to be plausible or
Palmer's testimony in this regard to be credible. The
record shows that the 28 employees were in fact consid-
ered terminated and their employment records were co-
mingled in the Respondents' files along with those of
other terminated employees. In addition, Palmer's pro-
fessed concern that the employees would pass up other
employment opportunities while awaiting to be recalled
rings hollow and lacks persuasiveness . It is evident from
his own records that Respondents hired employees on
layoff status from other coal mining companies in the
area on a temporary basis-as was the case with employ-
ees Larry Allen, Kenneth Davidson, and Kenneth Cam-
bers-and there is no reason to believe the layoffs here
would have prevented Respondents' employees from
being hired elsewhere under the same conditions. Fur-
thermore, it is noted here that the termination notices co-
incided with Respondents' refusal to recognize the
UMW and also with the demotion of the supervisors to
leadman status, which Respondents asserted made them
unit employees.
The timing of these events and the lack of a logical ex-
planation for terminating the laid-off employees, coupled
with Respondents' unlawful activity in opposing the
UMW organizing effort, cause me to conclude that the
termination notices were part of Respondents' continuing
effort to discourage support for the UMW among the
employees and to dissipate the Union's strength in the
bargaining unit . For these reasons, I find the record fully
supports the position of the General Counsel that the
employees were terminated unlawfully. Accordingly I
find that, by terminating the laid-off employees on
August 19, Respondents committed violations of Section
ss The Board's Wright Line doctrine was upheld by the Supreme
Court in NLRB v Transportation Management Corp, 462 U S. 393 (1983).
8(a)(1) and (3) of the Act. Wisconsin Beef Industries, 249
NLRB 256 (1980). Cf. Poly Ultra Plastics, 231 NLRB 787
(1977).
IV. THE REFUSAL TO RECALL ROBERTS AND SCALES
The complaint alleges Respondents refused to recall
Roberts and Scales when production resumed at the
mine because the two employees were involved in activi-
ties on behalf of UMW. Respondents, on the other hand,
assert that the employees were not recalled for a variety
of reasons which -caused management to consider them
to be unsatisfactory employees.
Regarding Roberts, Respondents assert that McCrate
checked the employee's job application and discovered
he had less dragline experience than indicated on the ap-
plication. Palmer and Brooks also testified that Roberts
caused costly damage to his machine and was "rough"
on the equipment. On its face, Respondents' explanation
appears plausible. But when scrutinized in the context of
all the circumstances surrounding Respondents' percep-
tion of Roberts' involvement with the UMW and the
handling of the issue of the damage to the equipment, it
soon becomes apparent that the explanation offered was
contrived in order to conceal the true motive for refus-
ing to recall Roberts.
First, I find Respondents' officials believed, rightly or
wrongly, that Roberts and Scales were the prime instiga-
tors of the UMW's organizing activity among the em-
ployees. For example, when Forbes spoke with Ira
Palmer in the trailer office on July 20, Palmer expressed
the belief that Roberts and Scales were responsible for
the organizing activity. He also stated he would have
fired Roberts, if he could have proven the employee
damaged the equipment. Likewise, on July 24 when
Forbes met with Card in Fort Scott, Card placed the
blame for the UMW activity at the mine on Roberts and
Scales. Finally, when Ira Palmer went to Washington,
D.C., to confer with the union officials, he expressed the
same belief to Forbes and also to Prettyman and another
union organizer in separate conversations. Although
Palmer and Card denied making these comments, I do
not credit them. My observation of these witnesses
causes me to conclude that the management officials
were searching for an explanation for the emergence of
the union activity and they focused on Roberts and
Scales as the prime instigators. My conclusions in this
regard are buttressed by comments made by Robert
Palmer on June 12 when he brought employee Rhodes
over to the pit where the dragline, operated by Roberts
and Scales on different shifts was located. Scales credibly
testified that Robert Palmer told Rhodes to stay away
from that dragline because he could get into "trouble"
hanging around there.
In sum, the credited testimony in the record establishes
that Respondents' officials and supervisors considered
Roberts and Scales to be the cause of their problems
with the UMW. Respondents' argument that neither of
these employees was involved in any extraordinary way
in the organizing activity misses the point. What is im-
portant in these circumstances is Respondents' perception
MIDWESTERN MINING
of their involvement rather than their actual activity on
behalf of the Union.
Next, Respondents' reaction to the damage Roberts
purportedly caused to the fairleads on a dragline casts
grave doubts about the validity of Respondents' version
of this incident. For example, Ira Palmer testified he ob-
served Roberts damage the fairleads of the dragline. Ac-
cording to Palmer, Roberts' negligence caused approxi-
mately $6000 worth of damage to the equipment. At no
time, however, did Palmer speak to the employee about
the costly damage nor did he discipline him in any fash-
ion. If Palmer is to be believed, he merely shrugged the
incident off. Nonetheless, Brooks testified that he placed
a handwritten memo in Roberts' file to show that the
employee had damaged the equipment. But Brooks also
acknowledged he never spoke to the employee about the
incident. In my judgment, it is highly unlikely that Re-
spondents' officials and supervisors would have tolerated
any such costly negligence on the part of an employee
without taking immediate steps to discharge or discipline
the employee. This reaction., or lack thereof, on the part
of Respondents' officials belies the importance they now
claim to attach to the incident as well as the asserted
claim that Roberts was responsible for the damage.
In light of the above, I find that the General Counsel
has established a prima facie case that the refusal to
recall Roberts was unlawfully motivated. I further find
that the justification offered by Respondents fails to dem-
onstrate that Roberts would not have been recalled, even
in the absence of his suspected involvement with the
union activity. Wright L ine, supra . Therefore, I find that
Respondents refused to recall Roberts, and did in fact
recall other dragline operators with less experience and
seniority, because the employee was considered to be a
prime instigator of the UMW organizing activity prior to
the layoff. See Wean United, Inc., 255 NLRB 970 ( 1981).
Turning to the allegations regarding Respondents' re-
fusal to recall Scales, I find the record evidence in sup-
port of unlawful motivation to be even more compelling.
The record reflects that Scales was a competent and
skillful dragline operator who took great pride in his
work. Employee Terry Couch testified that Scales made
the machine "move" and that he laid his "dumps" as
well if not better than most operators. Indeed, when
Scales quit his job with Respondents to work elsewhere,
because of better hours and closer proximity to his home,
he had no difficulty in getting rehired by Respondents
when the new employer was unable to meet his payroll.
When Scales was rehired he signed a reinstatement letter
(G.C. Exh. 91) which simply set forth the fact that he
had voluntarily quit and that he was being rehired as a
dragline operator on the second shift. No conditions con-
cerning his reinstatement were set forth in the letter. I
credit Scales' testimony that, at the time he was reinstat-
ed, Brooks informed him the only thing he lost by quit-
ting was his paid vacation. Thus, I do not credit Brooks'
testimony that Scales was told that he would go to the
bottom of the seniority list and that he had to fulfill a 60-
day probationary period.
Respondents assert that, after Scales returned, he de-
veloped a bad attitude regarding his work and his pro-
duction decreased by 50 percent. Although Brooks asked
245
Scales on one occasion if something were bothering him
and was told by the employee that "Things will work
out," it is unrefuted in the record that neither Brooks nor
Palmer ever discussed the "bad attitude" or the decrease
in productivity with Scales. The only document purport-
ing to memorialize this change in the job performance of
Scales is the document asserted to have been placed in
the employee 's personnel file by Ira Palmer and Brooks
on May 17. (G.C. Exh. 39.) Curiously, this document
sets forth the terms and conditions of his reinstatement,
even though they were not contained in the actual letter
of reinstatement signed by Scales. It is the controversy
over this document which gives rise to considerable sus-
picion regarding whether it was constructed for purposes
of meeting the charges filed in this case or whether it
was a valid document memorializing Respondents' eval-
uation of Scales' performance on the date contained on
the document.
The Board agent investigating the charges was given
the document by Respondent's attorney to inspect. In an
unusual procedure , the Board agent was called as a wit-
ness in this case and testified that when he examined the
document it stated : "At the time of layoff, management
is contemplating termination." Because the document
contained the date May 17 and Respondents were not
contemplating any layoff at that time, the Board agent's
suspicions were aroused. The supervisor of the Board
agent testified the document was read to him by Re-
spondents' counsel in the Regional office and it con-
tained the same wording as the Board agent read during
his prior inspection of the document. Respondent's coun-
sel was unable to recall what was contained on the docu-
ment, and Brooks and Ira Palmer testified that the docu-
ment placed into evidence was the complete memoran-
dum.
In these circumstances, I find no reason to disbelieve
the testimony of the Board agents regarding what they
saw and heard concerning the document purporting to
be the Brooks-Palmer memorandum dated May 17 re-
garding Scales ' asserted bad attitude toward his job.
Indeed , considering the lengths refusing to recall Rob-
erts, including making a check of his employment appli-
cation after the employee had been on the job with Re-
spondent for a considerable period of time, I find the tes-
timony of the Board agents to be more accurate and
trustworthy. I further find that the document in evidence
as General Counsel's Exhibit 39 is of after-the-fact origin
manufactured to support Respondents' claim that Scales
was an undesirable employee . My conclusions in this
regard are further reinforced by the apparent contradic-
tions in the testimony of Ira Palmer and Brooks . Palmer
testified that he checked the employment applications ,of
all of the laid-off employees after learning of the discrep-
ancies in the job application of Scales. Contrary to
Palmer , Brooks admitted that Scales ' and Roberts ' appli-
cations were the only ones checked. It is highly improb-
able that the three management officials , who were de-
ciding which of the employees would be recalled, would
not confide in one another regarding the checking of the
employment applications. I find, therefore, that the testi-
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
moray of Respondents' witnesses on this point is unreli-
able and not worthy of belief.
On the basis of the above, I find the General Counsel
has established a prima facie case that Scales was not re-
called by Respondents because he was perceived to be
one of the employees who instigated the UMW organiz-
ing campaign. I further find that Respondents' evidence
to rebut the prima facie case is made of whole cloth and
is entirely unconvincing. Wright Line, supra. According-
ly, I find Respondents refused to recall dragline operator
Scales from layoff when the mine resumed production
for discriminatory reasons and this conduct violates Sec-
tion 8(a)(1) and (3) of the Act. Wean United, Inc., supra.
V. THE BARGAINING UNIT ISSUES
1. The unit appropriate for collective bargaining
Having found that MMR and RSI constitute a single
employer in the circumstances here, it follows that the
bargaining unit encompasses the employees of both Re-
spondents. The parties stipulated that the office clerical
employees were excluded from any unit found appropri-
ate. Accordingly, I find the following to be an appropri-
ate unit for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All employees of Midwestern Mining and Reclama-
tion, Inc., a subsidiary of Midwestern Fuels Sys-
tems, Inc., and Reclamation Services, Inc. em-
ployed by the employees at their mine site in or
near Bronaugh, Missouri; but excluding all office
clerical employees, managerial employees, confiden-
tial employees, professional employees, guards and
supervisors, as defined in the Act.
2. The status of the leadmen
It is established by the stipulation in the record that
the now leadmen, including Bowie, were statutory super-
visors until at least June 25. It appears that Respondents
contend that, after that date, these individuals performed
unit work at the minesite along with those employees
who were not laid off. For this reason, Respondents
seem to argue that these persons were no longer supervi-
sors. If, indeed, this is Respondents' claim, I find it to be
without merit.
The record clearly indicates that, after the layoffs on
June 18, Respondents' production operation was shut
down by order of the State Reclamation Commission
and Respondents were required to devote all their efforts
to performing delinquent reclamation work. Further, that
production work could be resumed only on a limited
basis when certain reclamation work had been completed
pursuant to the schedule established by the Commission.
The mere fact that all the admitted supervisors, includ-
ing the mine superintendent, operated equipment along
with those employees who were not laid off in order to
satisfy the reclamation scheduled in no way alters their
supervisory status. This was a temporary situation which
can be analogized to supervisors performing unit work
during a strike or a lockout. The mere performance of
unit work during such an emergency situation does not
divest the supervisors of their statutory authority. Thus,
Respondents' supervisors remained statutory supervisors
until at least August 16, when Respondents purportedly
"demoted" them to the positions of leadmen. The critical
question becomes, therefore, whether the change in their
title and their pay status-from salaried to hourly paid-
effectively converted them to rank-and-file employees. In
my judgment, the change in status was illusory and did
not strip the leadmen of their supervisory authority.
William H. Palmer: The contention that William
Palmer is a unit employee is patently frivolous on its face
and is rejected. Palmer owns more than one million
shares of Respondents' parent organization and is cor-
rectly recognized by the employees to be one of the
owners over the mining operation. The mere fact that
Palmer performed work at the minesite on occasions in
no way changed his ownership status or his supervisory
authority. His continued assertion of his supervisory au-
thority over the unit employees is quite evident in the
record. Indeed, the mere fact that Respondents now at-
tempt to place William Palmer in the bargaining unit
serves only to demonstrate the extent of Respondents'
effort to further dissipate employee support for UMW.
In addition, examination of Respondents' payroll records
graphically demonstrates that Palmer suffered very little
change in his wages even though he was converted from
salary to hourly paid.
Accordingly, I find the asserted "demotion" of Wil-
liam Palmer to the position of an hourly paid leadman
did not affect his managerial or supervisory status. For
these reasons I find that William Palmer is excluded from
the bargaining unit.
Robert D. Palmer: Although Robert D. Palmer's own-
ership interests in Respondents is relatively small com-
pared to that of Card and William and Ira Palmer, his
holdings are nevertheless substantail. ' Robert Palmer
owns 50,000 shares in Respondents' parent organization.
In addition, Palmer drives a company-owned truck on
the minesite and for his own personal use. The undis-
puted testimony shows that Palmer continues to give
work assignments to employees and to grant them per-
mission to leave work early. This is reflected in the fact
that, on September 2, Palmer gave permission to the rec-
lamation crew working on that date to take time off to
attend a softball tournament where Respondents were to
be represented by a team. It is also undisputed in the
record that Palmer possesses and has exercised authority
to reprimand employees working under his direction. It
is evident from the credited testimony of employees that
Palmer performed little or no unit work after production
resumed, but spent most of his time riding around the
various mining locations to make certain that the work
was being performed as scheduled. It is also undisputed
in the record that Palmer has authority to select employ-
ees to work overtime. Although Respondents assert that
McCrate and Brooks pass on orders and assignments to
Palmer and the other leadmen, I find this assertion to be
of doubtful validity. It is evident from the nature of the
mining operation that it is widely scattered over many
miles and neither Brooks nor McCrate can cover all the
areas to ascertain that their orders are being carried out,
nor can they be available to make on-the-spot decisions
MIDWESTERN MINING
or changes. In addition, a review of Respondents' payroll
records shows that Robert ID. Palmer suffered no loss in
income after being converted from a salaried to an
hourly paid position.
In light of the above, I find that Robert D. Palmer re-
mained a statutory supervisor in Respondents ' operation
after the alleged demotion to a unit position. It follows,
therefore, that Robert D. Palmer is excluded from the
bargaining unit.
Steve Coleman: Foreman of the tipple and washing op-
eration prior to August 16, Coleman performs the same
duties and exercises the same authority over the employ-
ees working in his unit as he did when he was an admit-
ted supervisor . He continues to assign work to employ-
ees in his area and determines when and who will work
overtime . When Beam quit on September 25, he first no-
tified Coleman, who then required the employee to sign
a statement that the termination was voluntary. This was
placed in Respondents' records after Brooks cosigned the
document. The record evidence discloses that, since be-
coming a leadman, Coleman has written up employees
for unsatisfactory job performance and that, after these
writeups are cosigned by Brooks, they are placed in the
file of the offending employee. Coleman also signs off on
the timecards of the employees working in his unit and
they are routinely cosigned by either Brooks or
McCarte. In addition, Coleman is provided with a com-
pany vehicle which he drives to and from work as well
as around the minesite. Even though he now is hourly
paid, Respondents' records show Coleman's wages have
remained substantially the same as they were when he
was salaried. However, there is no evidence in the
record that he now works any different hours from those
he was working when he was an admitted salaried super-
visor.
Curtis Dwayne Couch: In charge of dragline mainte-
nance, Couch also drives a. company vehicle, both on
and off the minesite . He also assigns work to employees
in his unit on a daily basis. Although Couch states he re-
ceives the work assignments daily from Brooks or
McCrate, it is evident from the testimony of employees
Fred Couch and Shaw that he exercises his independent
judgment in making the assignments to individual em-
ployees and, further, that when their jobs are completed
he reassigns them to other duties or, in the words of
Fred Cuch, informs Brooks that "his men" are available
to work elsewhere. Couch also signs off on the timecards
of the employees working in his unit to certify that they
have worked the hours indicated. These cards are like-
wise routinely cosigned by Brooks or McCrate. The
credited testimony further reveals that, while Couch per-
forms dragline maintenance work himself, he also did
this when he was an acknowledged supervisor. Like
Coleman, the wages of Couch are virtually the same as
they were when he was a salaried supervisor, and there
is no evidence that he now works more hours then he
did before August 16.
Miles Neal Jr. and Jack Wallace: The supervisor and
the assistant supervisor of the maintenance shop before
August 16, both of these individuals continue to perform
the same duties and exercise the same authority over the
maintenance shop employees that they exercised when
247
they were admitted supervisors. Although Neal Jr. states
he received daily instructions from either Brooks or
McCrate, the credited testimony of the employees dis-
closes that he or Wallace makes the daily assignments to
the employees and when the work is completed reassigns
them to other jobs. These individuals sign off on the em-
ployee timecards, which are then cosigned by Brooks or
McCrate. Neal Jr. is assigned a company vehicle in
which he and Wallace drive to and from work or around
the minesite. When equipment breaks down in the field,
Neal Jr. or Wallace determine which employee will be
assigned to make the repairs. As in the case of the other
leadmen, the wages of these two individuals have not
changed in any substantial manner from the level they
were receiving when they were salaried.
Jerry Watts: Similar to ther other leadmen, Watts is
provided with a company truck for use on and off the
minesite . He continues to exercise the same authority
over the reclamation crew that he exercised when he
was an admitted supervisor. Although Watts states
McCrate now gives him instructions each morning and
he relays them to the crew, the credited testimony of the
employees indicates that McCrate is rarely on the site
where they work. Thus, Watts uses his independent
judgment and discretion in not only making the daily as-
signments but also in any reassignments of work to the
employees. He also signs off on the employees' timecards
to verify the hours they work and McCrate or Brooks
routinely cosign these cards. The record further shows
that Watts reprimands employees for infraction of Re-
spondents' work rules, including leaving early, and
writes up violations of these rules which are then placed
in the employee's personnel file after being cosigned by
Brooks. The record also discloses that Brooks cosigns
these writeups without conducting any independent in-
vestigation of the incidents involved. Even though he is
now hourly paid, Watts' wages are also virtually the
same as they were when he was an admitted salaried su-
pervisor.
Frank Weisensee: Like the other leadmen, Weisensee is
provided a company truck which he uses both on and off
the minesite. Although Weisensee testified he receives
regular daily instructions from McCrate or Brooks re-
garding the work to be performed, it is clear from this
employee's testimony that he continues to regard himself
as the supervisor of electricians . Weisensee stated that
after receiving instructions from McCrate or Brooks he
would pass them on to the other electricians and they
would collectively decide which individuals would per-
form a given job. It is clear from Weisensee's demeanor
on the stand that he was aware of the facetiousness of his
statement that the job assignments were performed "as a
democracy." The testimony indicates Weisensee has 14
years' experience while the two electricians working in
his unit only possess 1 year and 6 months' experience, re-
spectively. Further, Weisensee referred to the electri-
cians working in his unit as "my men" or "my guys,"
thus clearly indicating that he considered himself to be
their supervisors.
Although Respondents now call the above individuals
leadmen rather than supervisors , the mere change in title
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is not controlling in determining whether their functions
satisfy the statutory definition of a supervisor. On the
basis of the facts found above, I find that each of these
formerly designated supervisors continued to possess and
exercise the same functions and responsibilities they pre-
viously had prior to being designated leadmen. The
record amply demonstrates they responsibly direct the
work of the employees assigned to their units, also, that
they exercise independent judgment in assigning work to
the employees, grant employees time off, reprimand em-
ployees for poor work performance or for violating job
rules, and effectively make oral and written recommen-
dations about employee's work deficiencies which are ac-
cepted by higher-level management without independent
investigation. Nor is it important here that the leadmen
cannot hire or fire employees working in their units. It is
clear this authority was always vested in higher-level
management even when the leadmen were admitted su-
pervisors. Therefore, it is apparent that the now leadmen
continue to possess and exercise sufficient indicia of the
statutory defintion of supervisor to warrant the finding
that they are still, in fact, supervisors. Liquid Transport-
ers, 250 NLRB 1421, 1425 (1980); Han-Dee Pak, Inc., 249
NLRB 725, 728 (1980).
3. The status of Bowie
As in the case of the other leadmen, Bowie's duties
have remained substantially the same since becoming a
leadman. Prior to the construction of the new mainte-
nance shop on the minesite, Bowie worked out of Re-
spondents' trailer office. Since the completion of the
shop, Bowie operates from office space, containing a
desk and files, in a separate section of the maintenance
shop. He continues to maintain Respondents' warehouse
inventory and parts department. Bowie's operation has
always been autonomous and he reports directly to
Brooks. He has authority to make purchases up to $300
on his own initiative and is required to secure Brooks'
approval for anything above that sum. Unlike the other
leadmen , Bowie has never been provided with a compa-
ny vehicle-not even when he was salaried-but Re-
spondents maintain and service his personal vehicle,
which he uses to secure parts and to go into the field
when the occasion warrants it. Although another em-
ployee, Dennis Davison, now works with him, Bowie
testified he does not assign or direct Davidson's work.
However, the record shows that Bowie's wages exceed
that of Davidson by $250 to $350 per pay period. In ad-
dition, the Respondents' payroll records demonstrate that
Bowie's wages are substantially the same as the salary he
was earning prior to being classified as a leadman.
It is evident from the undisputed testimony and
records that Bowie 's duties and responsibilities did not
alter in any significant respect after his asserted status
change. His work is separate and apart from that of unit
employees and his job functions continue to be aligned
with those of management rather than with the unit em-
ployees. He can make independent decisions regarding
purchases of parts up to $300 and he reports directly to
the mine superintendent. For these reasons, I find that
Bowie lacks a sufficient community of interest with the
unit employees to be included in the bargaining unit.
4. Other exclusions from the bargaining unit
Robert E. (Bobby) Palmer: As noted, Bobby Palmer is
the son of Robert D. and the nephew and cousin, respec-
tively, of William and Ira Palmer. While he personally
owns no stock in Respondents, his father is a substantial
shareholder and his uncle and cousin are major share-
holders in Respondents. In addition, Bobby Palmer lives
at home with his father.
Although Respondents assert no particular favoritism
or special privileges are accorded to Bobby Palmer, I do
not credit them in this regard. Rather, I credit the testi-
mony of the employee witnesses that Bobby Palmer is
permitted by Respondents to come to work late and to
leave early as he desires. In addition, I find that Bobby
Palmer is permitted to refuse to operate equipment when
he considers it not to be up to his standards, and that he
is also allowed to maintain and service his personal vehi-
cle during working hours, or to require other employees
to perform these duties on his vehicle. It is also apparent
from the credited testimony of employees Forbes and
Sarley that the other leadmen consider Bobby Palmer to
be a privileged employee because he is the son of one of
the owners, and they do not reprimand him for infrac-
tions of Respondents' work rules. Finally, it is clear from
the statement Bobby Palmer made to the employees,
about Respondents closing the mine if the UMW became
their representative and that they would consider this as
the word "coming from the top," that he is privy to the
decisions and discussions of Respondents' top-level man-
agement.
Based on the above, I find that Robert E. (Bobby)
Palmer does not share the same community of interests
with the other bargaining unit employees, even though
he performs unit work. The special privileges accorded
him and his familial relationship with Respondents'
owners and management align his interests with those of
management rather than with the unit employees.
Modern Mfg. Co., 261 NLRB 534, 552 (1982).
Earl Caywood: A carpenter and handyman at the mine-
site , it is contended by the General Counsel that
Caywood's interests are different from those of the other
employees in the bargaining unit. Because of his wife's
health condition, Caywood is the only employee permit-
ted to take an extended leave of absence during the
winter months in order to take his wife to a warmer cli-
mate . The record shows, however, that Caywood is per-
mitted to do this annually and, on his return, he contin-
ues to perform his work at the minesite. Caywood works
under the supervision of Neal Jr., who is in charge of the
maintenance shop.
Although the General Counsel argues that Caywood's
employment arrangement is so unique that it removes
him from the bargaining unit, I do not agree. It is evi-
dent that while Caywood is permitted to take an ex-
tended leave of absence because of his wife's illness, he is
expected to, and does, in fact, return to Respondents'
employment. He works under the same conditions as the
other unit employees and his work is assigned and super-
vised by Respondents' "leadmen", i.e., Neal Jr. and Wal-
lace. Thus, with the exception of the extended annual
leaves of absence, Caywood is employed by Respondents
MIDWESTERN MINING 249
on a regular basis and under the same conditions and su-
pervision as the other unit employees . It is also evident
that, on his return from his leaves of absence, Caywood
has every reasonable expectancy of continuing his em-
ployment with Respondents. Accordingly, I find that
Caywood's community of interest is the same as the
other members in the unit and that he is to be included
in the bargaining unit. Mid-Jefferson County Hospital, 259
NLRB 831 (1981). Cf. Price-Pic-Pac Supermarkets, 256
NLRB 742 (1981).
Miles Neal Sr.: Neal Sr. works in the maintenance shop
under the supervision of his son, Neal Jr., and Wallace.
It is uncontroverted that Neal Sr. is a social security an-
nuitant and limits his working time and earnings each
year so that he will not exceed the maximum amount al-
lowable without jeopardizing his social security annuity.
The record discloses that Neal Sr. has been working
under this arrangement for several years with the Re-
spondents. During the times that he is employed, Neal
Sr. works under the same conditions and supervision as
the other employees in the maintenance shop.
Although the General Counsel argues that Neal Sr.
should not be included in the bargaining unit because of
his special employment arrangements , I find this argu-
merit to be without merit. The Board has long since rec-
ognized that social security annuitants , who otherwise
share the same community of interest with the unit em-
ployees, are not to be excluded from bargaining units
solely for the reason that they limit their working time
and earnings so as not to jeopardize their annuities. Holi-
day Inn of Oak Ridge, Tennessee, 176 NLRB 939, 941
(1969); Richardson Bros. Co., 228 NLRB 314, 318 (1977).
James Query and Dale Smith: The primary responsibil-
ity of Query (and Smith on the 4 nights that he works) is
to patrol the minesite at night making certain that all
buildings and equipment are secure. They use their own
vehicles and are supplied fuel and maintenance by Re-
spondents. They not only make certain that the property
is secure, but possess authority to eject intruders. While
they are patroling, they respond to the needs of the
equipment operators, who require fuel, oil, parts, or
other types of assistance. They are the only employees
onsite carrying keys to the buildings . When major prob-
lems arise, such as equipment failure, they notify the pitt
boss during the second shift, or call Mine Superintendent
Brooks at home. Each of these employees relays instruc-
tions left by supervisors to the operators in the field and
report infractions of work rules committed by the opera-
tors to the relevant supervisor. When this is done, the
record discloses that a written notation is placed in the
operator's personnel file and it is signed by the watch-
man and the supervisor. While Respondents do not re-
quire either of these employees to carry firearms, the tes-
timony of Smith indicates that he does so while patroling
the area and Respondents do not object to this. Although
Query and Smith perform custodial duties in the trailer
office and the maintenance shop, the unrefuted testimony
indicates that this occupies only a small portion of their
working time.
It is evident from the above that the watchmen's pri-
mary function is to protect Respondents' building and
equipment from all intruders. They carry keys to these
buildings which the other employees working at the min-
esite do not possess and , while not required , can carry
firearms when performing their patrohng duties. They
report to management any infraction of job rules com-
mitted by employees working during their shift. Hence, I
find the watchmen here are empowered to enforce Re-
spondents ' rules against the employees and others in
order to protect Respondents' property within the mean-
ing of Section 9(b)(3) of the Act. For this reason, the
watchmen are excluded from the unit found appropriate
here. Kentucky Prince Coal Corp., 253 NLRB 559, 562
(1980).
VI. ADDITIONAL 8(A)(1) VIOLATIONS
The record is filled with testimony by employee wit-
nesses which demonstrates that Respondents ' supervisors
engaged in a continuous campaign of threats and unlaw-
ful conduct in order to stifle employee support for the
UMW and thwart the organizing campaign . Although
each of the supervisors cited by the employees denied
making any of the statements or engaging in the conduct
attributed to them, I do not credit these denials. Based
on the pattern of the unlawful threats of shutdown and
promises of benefit already found herein, I find the un-
lawful conduct described by the employees to be consist-
ent with the demonstrated penchant of the supervisors to
make certain that the employees understood their jobs
were in jeopardy if they were represented by UMW.
In light of the above, I find that, on June 18, William
Palmer and Dwayne Couch told employee Christian
that, when he attended the UMW meeting that evening,
he should tell the employees Respondents would close
the mine if the Union became the bargaining representa-
tive. I further find that when UMW organizer Prettyman
visited the minesite in early July, Robert Palmer told em-
ployee Clark that Respondents would shut down the
mine if the Union got in. Similarly on August 6, Robert
Palmer told employees Clark and Forbes that they could
all look for jobs, since Respondents could not afford the
UMW and would close the mine. I find that during this
conversation Robert Palmer also stated that while he had
plans for employee Westhoff, if the UMW got in, he
would make Westhoff so sick he would puke. Robert
Palmer also expressed similar unlawful comments to em-
ployee Sarley on August 11 when he stated that, if the
Union got in, Respondents would take all of the equip-
ment and park it. Robert Palmer repeated these same un-
lawful statements to employees Forbes and Clark on
August 19 and 21, respectively. On these occasions
Palmer complained about the price Respondents were
getting for the coal and he repeated that Respondents
would shut down the mine if the UMW got in. Again,
similar threats were expressed by Robert Palmer to em-
ployees Beam and Westhoff on September 2 at the soft-
ball tournament.
I further find that Robert Palmer was not the only su-
pervisor seeking to impress on the employees that UMW
representation would result in the loss of their jobs.
Thus, I find William Palmer told laid-off employee King,
on August 14, that Respondents would "padlock the
place and auction off the equipment before they would
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sign a contract with the UMW." William Palmer denied
making this statement to King but admitted telling the
employee that if the cost of UMW representation was
such that Respondents could not meet their bills, they
"might have to shut her down." Although I credit
King's version of these comments, in either event the
bottom line result was the same, i.e., the mine would
close if UMW represented the employees .56 In addition,
on September 13 William Palmer repeated his comments
to King that Respondent would "never go UMW." It
was at this time that Palmer told King that employees
Fred Couch and Shaw were seeking to get a "company
union" and, when things straightened out, King could
expect to be recalled, after Respondents "weeded out a
bunch of the employees "
Nor did Respondents' supervisors merely resort to
threatening employees with loss of their jobs if they
were represented by UMW. The credited testimony
shows that Robert Palmer made statements to employees
Clark and Forbes indicating that Respondents were en-
gaging in surveillance of the employees while they were
attending meetings at the union hall in Mulberry, Kansas.
Palmer told the employees they did not have "much
suck" with their father because Westhoff sat at the head
table with Union Organizer Forbes, and Clark and young
Forbes sat in the audience with the other employees.
Clearly, this indicated to the employees that their activi-
ties on behalf of UMW were being kept under scrutinity
and surveillance by Respondents.
Further evidence of creating an impression of surveil-
lance is found in the credited testimony of laid-off em-
ployee King. He observed Robert Palmer hand Supervi-
sor Watts a slip of paper and state, "Here are the names
of your top reclamation men who signed UMW cards."
Likewise, Tipple Supervisor Coleman asked employee
Beam on September 14 to be certain to attend the UMW
meeting scheduled that evening. The following day
Coleman sought to get Beam to inform him about what
occurred at the union meeting.
It is patently evident that, by engaging in the above
conduct, Respondents' supervisors were interfering with,
restraining, and coercing the employees in the exercise of
their right to engage in activities in support of the
UMW. It is equally evident that the supervisors were en-
gaging in this persistent unlawful conduct in order to dis-
courage employee activity on behalf of UMW. That such
baltant unlawful conduct violates the strictures of the
Act is without question and warrants no citation.
VII. THE CARD MAJORITY ISSUE
Pursuant to the stipulation of the parties , at least 68
employees properly belong in the bargaining unit. As
noted in another section of this decision, supra, the lead-
men are supervisors and Bowie lacks sufficient communi-
ty of interest, if nothing else, to be included in the bar-
gaining unit. As also noted in my prior findings, Robert
E. (Bobby) Palmer is excluded for familial reasons and
James Query and Dale Smith are excluded because they
5s Bobby Palmer expressed this same threat to a group of employees
on September 13 and emphasized the source of his information was Re-
spondents' management when he stated, "That comes from the top "
are guards within the meaning of Section 9(b)(3) of the
statute. Since it has been found that Earl Caywood and
Miles Neal Sr. properly belong in the bargaining unit, I
find that the unit consisted of 70 employees during the
times material to the issues presented by this case. Thus,
the question becomes whether the UMW obtained valid-
ly executed authorization cards from a majority of the
employees in the bargaining unit found appropriate.
There is no question but that the UMW cards are un-
equivocal single-purpose cards authorizing the Union to
represent the card signer for purposes of collective bar-
gaining. Forbes and Prettyman credibly testified that
they informed the employees they solicited, individually
as well as the groups of employees attending the several
meetings at the union hall, that the Union wanted to
become their bargaining agent at the mine in order to ne-
gotiate better wages and improved working conditions
for them. It is evident from the testimony of the union
organizers and the employee witnesses that, while Forbes
and Prettyman told the employees 30 percent needed to
sign cards in order to have an election, they also stated
that, if a majority of the employees signed, they would
first attempt to get Ira Palmer to recognize the Union as
the bargaining representative. If he did not, they would
seek a Board-conducted election. Both Forbes and Pret-
tyman also credibly testified that they insisted that each
card signer read the card before signing it and they made
it a practice of questioning the card signer to determine
wether or not he understood what he was signing.57
Respondents assert, however, that the solicited em-
ployees were told the only purpose of the cards was to
secure an election. In this regard, they presented the tes-
timony of seven card signers to support this claim and
argued that the testimony of five card signers called as
witnesses in the General Counsel's case also demonstrate
that their signatures were solicited on the representation
that the only purpose of the cards was to get an election.
The law in this area is well established by the Supreme
Court's affirmance of the Board's Cumberland Shoe doc-
trine58 in NLRB v. Gissel Packing Co., 395 U.S. 575
(1969). In Gissel, supra at 607, the Court stated:
[W]e think it sufficient to point out that employees
should be bound by the clear language of what they
sign unless that language is deliberately and clearly
canceled by a union adherent with words calculated
to direct the signer to disregard and forget the lan-
guage above his signature.
The Court also affirmed the Board's admonition found in
Levi Strauss, supra, that "the totality of circumstances
surrounding the card solicitation" must be considered in
51 The assertion in Respondents' brief that the union organizers told
solicited employees that the Union wanted to represent the employees
rather than stating that the Union wanted to represent the individual em-
ployee being solicited is nothing more than a semantical play on words
It is clear that if the union organizers asserted they wanted to represent
the employees collectively, such representation would also include any
individual employee being solicited I therefore reject this aspect of Re-
spondents ' argument
56 Cumberland Shoe Corp, 144 NLRB 1268 (1963), enfd 351 F 2d 917
(6th Car. 1965) Reaffirmed in Levi Strauss & Co, 172 NLRB 732 (1968),
enfd. 441 F 2d 1027 (D C Cir 1969)
MIDWESTERN MINING
order to determine whether they add up to an assurance
to the card signer that the card will be used for no pur-
pose other than to help get an election. Id. at 608, fn. 27.
In applying this standard set by the Board and af-
firmed by the Supreme Court, I reach the following con-
clusions regarding the cards which Respondents contend
were solicited on the basis of the representation that they
were solely for the purposes of securing an election.
Kenneth Davidson: The record discloses that Davidson
was the employee recalled by Respondents in August
when the decision was made not to recall Roberts or
Scales, He subsequently quit the Respondents' employ on
September 25 and at the time of the hearing was work-
ing for another coal company. Davidson's signature on
the authorization card was solicited at his home by Pret-
tyman. (See G.C. Exh. 72.) According to the direct testi-
mony of Davidson, Prettyman showed him a list of bene-'
fits which the Union wanted to negotiate for the employ-
ees and told him that it was necessary for him to sign the
card in order to bring the matter up for a vote. On cross-
examination, however, Davidson inidcated that he read
the card before signing it and he also acknowledged that
Prettyman said the Union needed a majority of the em-
ployees to sign the authorization cards. He further ac-
knowledged on questioning by counsel for the General
Counsel that the union organizer told him the Union
wanted to represent the employees at the mine.
On the basis of the foregoing, it is clear that nothing
Prettyman said to Davidson could be construed as indi-
cating that the only purpose for which the card would
be used was to get an election. The employee read the
card and the union representative told him that the
Union wanted to be the bargaining agent of the employ-
ees at the mine. I find nothing in the circumstances sur-
rounding the solicitation of Davidson's card which indi-
cates that the union organizer directed the card signer to
disregard and forget the language contained on the card
itself Accordingly, I find Davidson's card to be a valid
authorization for the Union to represent him in collective
bargaining.
James Harper: A current employee of Respondents,
Harper signed an authorization card on June 16. (G.C.
Exh. 65.) He testified he received the card from Pretty-
man who talked with him for approximately 15 to 20
minutes. The only thing that Harper recalls from this
conversation was that Prettyman told him "the only pur-
pose of the cards was to get enough votes in order to get
the Union in " According to Harper, Prettyman asserted
that the Union already had enough "votes" but, never-
theless, he wanted the employee to sign a card. Harper
stated he signed the card without reading it.
On cross-examination, Harper was unable to recall any
of the details of his conversation with Prettyman and
was unable to recall whether Prettyman told him that
the Union wanted to represent the employees at the
mine. He stated, however, that he did not normally sign
any document without first reading it. He also denied
that the card was read to him by Prettyman. Contrary to
the testimony of Harper, employee Sarley stated that he
was present when Prettyman solicited Harper. Sarlley
testified that Prettyman read the card to Harper and told
the employee that it was to authorize the UMW to rep-
251
resent the employees at the mine. He further stated that
Prettyman informed the employee that signatures were
needed from a majority of the employees in order for the
Union to become their bargaining representative.
Bearing in mind the Supreme Court's observation in
Gissel that "employees are more likely than not, many
months after a card drive and in response to questions by
company counsel, to give testimony damaging to the
union, particularly where company officials have previ-
ously threatened reprisals for union activity in violation
of Section 8(a)(1),"59 I find Harper's account of the cir-
cumstances under which his signature was solicited to be
untrustworthy and unreliable. It was evident that the
only thing this employee was prepared to testify to was
that his card was solicited solely for the purpose of an
election. He was unable or unwilling to recall any other
portions of the conversation with Prettyman although he
acknowledged they talked for 15 or 20 minutes. It is ap-
parent to me that Harper's inability to recall any other
representations made to him by Prettyman at the time of
the solicitation was more inspired by a desire to conceal
rather than to give a true account of the statements made
by the union organizer when the card was solicited. I
therefore discredit Harper's testimony and find in these
circumstances that the card solicitor did not make any
representations to Harper which could be viewed as a
cancellation of or a direction to disregard the language
of the card itself. For this reason, I find that the card of
Harper is a valid designation of the Union to be his col-
lective-bargaining representative.
Dennis Davidson: Also a current employee of Respond-
ents, Davidson signed an authorization card on June 15.
(G.C. Exh. 50.) He stated he received the card from
Forbes while he was playing pool in a local pool hall.
According to Davidson, Forbes stated the card was to
get an election and that "if the Union won, it was in. If it
lost, then the Union was out." Davidson testified that
Forbes filled out the card and that he signed it when he
finished his game. Contrary to the testimony of David-
son, Forbes testified that he read the card to the employ-
ee and informed him that the Union wanted to become
the bargaining representative of the employees at the
mine.
Observing Davidson while testifying and having cred-
ited the union organizers' testimony about the manner in
which they solicited signatures on the authorization
cards, I do not find Davidson's account of the circum-
stances to be reliable. Rather, I find that Forbes read the
card to the employee while he was playing pool and that
there were no representations made to the employee by
Forbes, even if he mentioned the possibility of an elec-
tion, which could be construed as a direction to the em-
ployee to disregard the clear language previously read to
him concerning the meaning of the authorization card.
Therefore, I find that the authorization card was a valid
designation executed by Davidson for the Union to be
his bargaining representative and it counts toward the
Union's majority status.
11 NLRB Y. Gissel Packing Co, supra at 608
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
William D. Barnett : Barnett acknowledged he signed
an- authorization card in front of the union hall before at-
tending a union meeting (G.C. Exh. 70.) He stated he
had attended two or three meetings prior to this occa-
sion and was given the card by Prettyman . According to
Barnett , Prettyman stated the only purpose of the card
was to have an election and filled out the card for the
employee who then signed it. Barnett reluctantly admit-
ted, on cross-examination , that the at the prior union
meetings he attended , the union organizers informed the
employees that if they received enough cards they could
ask Ira Palmer to recognize the Union without an elec-
tion. He was unable to recall whether Prettyman read
the card to him, but states that, since he did not have his
glasses, Prettyman filled the card out before he signed it.
Contrary to Barnett , Prettyman stated that he read the
card to Barnett because the employee insisted on this
since he had received the letter from Card cautioning the
employees to read the cards carefully before signing.
Barnett also testified that on August 4 he telephoned
union organizer Forbes and asked for the return of his
card. According to Barnett, Forbes indicated he would
but failed to return the card to the employee . Forbes ad-
mitted that he had received a call from Barnett, but
places the date as sometime in early September. Forbes
testified that Barnett said he had "mixed emotions" about
signing the card and would contact Forbes later. Forbes
stated he never received any further communication
from Barnett.
I do not view Barnett's testimony regarding the cir-
cumstances in which his signature was solicited to be
trustworthy or believable . It was evident from his de-
meanor that this witness was biased against the UMW
and was carefully tailoring his testimony in order to
assist Respondents . Barnett admitted that he took it upon
himself to check on Scales' work experience at Bill's
Coal and that he also called other card signers and sug-
gested they get in touch with Respondents ' attorney re-
garding this case. Further , his reluctant admission on
cross-examination that he had attended union meetings
prior to the signing of the authorization card in which
the union organizers informed the employees they would
seek recognition if a majority of the employees signed,
cards belie his assertion that on this occasion Prettyman
told him the only purpose of the card was to have an
election. Based on Barnett's undisguised bias and willing-
ness to tailor his testimony , I find that there were no rep-
resentations made to Barnett at the time he signed the
authorization card which would have been construed as
an instruction for the employee to disregard the language
on the face of the card. I find , therefore , that Barnett's
card was a validly executed authorization for the Union
to represent him.
The question remains, however , whether Barnett suc-
cessfully revoked his card so it could not count toward
the Union's majority status. I find that his asserted revo-
cation was ineffective for this purpose . When an employ-
er has engaged in coercive conduct designed to under-
mine union support during an organizing effort, the
Board presumes that employee revocations of previously
valid authorization cards are a direct result of the em-
ployer's unlawful conduct. See Warehouse Groceries Man-
agement, 254 NLRB 252 (1981 ). Here , it is established
that Respondents engaged in widespread and pervasive
unlawful acts in an effort to destroy the employee sup-
port for the UMW , commencing virtually at the incep-
tion of the organizing effort in June and , further, that the
unlawful conduct continued through the entire summer
and up to the time of the filing of the representation peti-
tion. Thus, it is evident that this pattern of coercive con-
duct was well under way when Barnett sought to revoke
his card and I find it renders his asserted revocation at-
tempt ineffective . Warehouse Groceries Management,
supra; Quality Markets, 160 NLRB 44, 45-46 (1966),
enfd. 387 F.2d 20 (3d Cir. 1967). Accordingly, Barnett's
card is to be counted toward the Union's majority status.
Dale Scism: Scism signed an authorization card on
June 13. (G.C. Exh. 53.) Scism testified that Forbes came
to his home and told him that the Union needed signa-
tures from 30 percent of the employees in order to have
a secret-ballot election . According to Scism, he did not
read the card and Forbes filled it out before he signed it.
On cross-examination , however, Scism admitted that
Forbes spoke about the benefits the Union wanted to ne-
gotiate for the employees and he stated that Dennis
Forbes told him the UMW wanted to represent the em-
ployees at the mine. Scism testified that he merely signed
the card in order to get rid of the union representatives
and that he has attempted to avoid them ever since. He
acknowledged that he met with Respondents ' attorney
subsequently because he "wanted to get his name off the
authorization card."
Employees Sarley and Clark testified that Sarley had
set up the meeting with Scism for Forbes and they ac-
companied Forbes to Scism 's home. Sarley testified that
Forbes asked Scism to sign the card to enable the Union
to become the bargaining agent of the employees at the
mine. Sarley also testified that Forbes read the card to
Scism. Clark testified that he told Scism during this
meeting that signatures of at least 30 percent of the em-
ployees were needed in order to get an election . Accord-
ing to Clark and Sarley , Scism indicated he was signing
the card because of his friendship for them.
I credit the testimony of Clark and Sarley and find
that at no time during the solicitation of Scism's signa-
ture on the authorization card were representations made
to the employee that the only purpose for which the
card would be used was to secure an election. Rather, I
find that during the course of the discussion the employ-
ee was told that the Union wanted to be the bargaining
representative and that an election was one of the means
by which this could occur. There was nothing in the
representations made to Scism which would warrant the
conclusion that the employee was informed to disregard
the language read to him from the face of the card by
the union organizer . Therefore, the card of Scism is a
validly executed card and is to be counted toward the
Union's majority status.
David Scharenberg : One of the employees laid off on
June 18, Scharenberg was unemployed at the time of the
hearing in the instant case. Scharenberg stated he re-
ceived a card from Forbes on June 15 and signed it.
(G.C. Exh. 46.) He stated that Forbes came to his home
MIDWESTERN MINING
and told him about the benefits the Union wanted to get
for the employees at the mine. He also testified that
Forbes said the Union wanted signatures from 30 percent
of the employees in order to hold a secret-ballot election.
Scharenberg admitted, however, that Forbes told him
during the solicitation of his signature that the Union
wanted to represent the employees at the mine and he
acknowledged that, when he signed the card, he was
doing so in order to get the Union to represent him.
On the basis of the above, I find that Scharenberg was
not told that the only purpose of the authorization card
was to get a secret-ballot election. Although Scharen-
berg testified he did not read the card before signing, I
credit Forbes' testimony that he followed his practice of
reading the card to the employees whom he solicited. In
these circumstances, I find that Scharenberg was in-
formed that the card was to authorize the UMW to be
his bargaining representative and that no representations
to the contrary were made to him at the time his signa-
ture was solicited. For this reason, Scharenberg's card is
to be counted in determining the Union's majority status.
Gary Loudermilk: A current employee, Loudermilk
signed a card on August 23. (G.C. Exh. 64.) Loudermilk
testified he was given the card while at the home of his
brother, Terry Loudermilk. According to his testimony,
Prettyman discussed the benefits the Union intended to
seek for the employees and stated that the purpose of
signing the card was to get an idea of the number of em-
ployees who wanted the Union to represent them. In re-
sponse to leading questions from Respondents' counsel,
Loudermilk finally stated that Prettyman said the only
reason for signing the card Was to have a vote to see if
the employees wanted the Union to represent them. He
acknowledged he read the card before signing and stated
that when he read the card he knew he was authorizing
the Union to represent him. Contrary to the testimony of
Gary, Terry Loudermilk stated that when he was given
the card by Prettyman, he and his brother were told that
the card was to authorize the Union to be the bargaining
agent of the employees. Terry confirmed that he and his
brother each read the cards before signing.
Based on the above, I find that the card of Gary
Loudermilk is to be counted toward the Union's majori-
ty status. It is evident from his own testimony, as well as
that of his brother, that Prettyman made no representa-
tions which would lead the employees to disregard the
language contained on the face of the card. There was
nothing surrounding the circumstances of the solicitation
of the cards from the Loudermilks which would indicate
that the solicitor was advising them to ignore the lan-
guage on the card or to inform them that the only pur-
pose of the card was to secure an election.
Respondents assert that the testimony of witnesses
Rink, Brannan, Beam, Terry Couch, and Westhoff dem-
onstrate that when their signatures were solicited they
were told the only purpose of the card was to secure an
election. Review of his testimony belies Respondents' as-
sertion. Rink testified that he was informed that a
number of cards were needed to be turned over to the
NLRB. He also testified that the solicitor stated the
Union wanted to be the bargaining agent for the employ-
ees at the mine and he read the card before signing.
253
Brannan testified he read the card before signing it and
stated that Union Organizer Forbes said the card was to
get a bargaining agent to represent the employees at the
mine. Beam testified that Forbes told him the card was
to authorize the Union to be his bargaining agent. Beam
stated he read the card and then signed it. Couch testi-
fied that when his signature was solicited, he was told
there could be an election or Respondents could recog-
nize the Union. Westhoff testified that when his signature
was solicited he was told by Prettyman that the card
would authorize the Union to be the employees' bargain-
ing agent.
In these circumstances, I find Respondents' contention
that the solicitation of these five employees was based on
the representation that the sole purpose of the signing of
the authorization card was to have an election is unsup-
ported in the record. It is evident, from the credited tes-
timony of these employees, that nothing was said which
would indicate they were to disregard the language con-
tained on the face of the authorization card they signed.
Nor was any representation made to them that the sole
purpose of the card was to allow the Union to file a peti-
tion for an election.
Having found that the cards objected to by Respond-
ents are valid designations of the Union as the bargaining
representative of the card signers, I further find that the
Union had in its possession 36 valid authorization cards
when Ira Palmer and the union officials met in Washing-
ton, D.C., on August 11. Because the cards of the two
Loudermilks were signed on August 23, it is obvious that
the Union had 38 valid authorization cards when the rep-
resentation petition was filed on September 10. Having
further found that the bargaining unit here consists of 70
employees, it is apparent that at least by August 11, the
Union had achieved a card majority among the Respond-
ents' employees.
VIII. THE ISSUE OF UNLAWFUL ASSISTANCE TO CIU
The complaint alleges that Respondents rendered un-
lawful assistance and support to the C[U. In her brief,
the General Counsel argues, in essence, that Respondents
rendered this unlawful support in an attempt to supplant
the threat of employee representation by UMW with
representation by a union Respondents could "live with"
and control. I find the record fully substantiates the Gen-
eral Counsel's position and that Respondents did in fact
render unlawful assistance to the CIU during that union's
organization effort.
First, it is evident from the undisputed testimony that
employees Fred Couch and Todd Shaw sought out the
CIU officials and initiated an organizing campaign on
behalf of that union among the employees at the mine-
site.60 It is also evident that Couch and Shaw discussed
the possibility of representation of the employees by CIU
with various leadmen as well as other employees. I
credit the testimony of the employee witnesses that
BO Although the General Counsel argues that Ira Palmer suggested
that Couch and Shaw seek out a more favorable union when he unlaw-
fully interrogated the employees in June (away from the mmesite), I find
no evidence in the record-other than pure speculation-to support this
contention
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Couch and Shaw were permitted by the leadmen to
freely come into their work areas during working time
and engage in extended discussions about the CIU to so-
licit support for that union, and to urge the employees to
attend the CIU meeting during the evening of September
2. Indeed, my conclusions in this regard are buttressed
by the very testimony of Couch and Shaw. When exam-
ined by counsel for the General Counsel as Rule 611(c)
witnesses , both of these individuals acknowledged they
solicited employees for the CIU during working hours. I
note that it was not until they were questioned skillfully
by Respondents' counsel that these witnesses changed
their statements to indicate the solicitations took place
during their lunch period and breaktimes. Thus, I find
the supervisors were aware of Couch and Shaw's mission
and, contrary to the unlawful course of conduct directed
at suspected UMW adherents, they permitted the two
employees to freely solicit on behalf of CIU during
working time without any interference. Any doubts in
this regard are fully dispelled by the fact that six of the
leadmen (Dwayne Couch, Bowie, Neal Jr., Wallace,
Coleman, and Robert D. Palmer) signed authorization
cards for the CIU and at least five attended the meeting
on September 2.
Next, it is apparent that Respondents' supervisors were
not only aware of the CIU meeting on September 2, but
were also willing to grant employees working the second
shift time off to attend. Pit Boss Moore allowed employ-
ees Rink, Totman, and Lamb to leave early to attend the
meeting. Although Moore testified he was not aware of
the CIU meeting and that he allowed the employees to
leave for personal reasons, I do not credit his explana-
tion. Based on the credited testimony and the obvious
participation of the leadmen in the organizing effort on
behalf of CIU, I find it highly improbable that Moore
was the only supervisor lacking knowledge of the meet-
ing or that the employees were requesting time off to
attend it.
The complaint alleges that Rink, Totman, and Lamb
were paid for the 3 hours they spent at the CIU meeting.
Respondents' records show, however, that Moore put
notations in their personnel files showing their absences
were unexcused and the payroll records of Respondents
are inconclusive as to whether these employees were in
fact paid for the time they spent at the meeting. In view
of the finding that Moore granted the employees permis-
sion to leave work to attend the meeting, I do not deem
it necessary to attempt to fathom whether these three
employees were paid for the time so spent. It is sufficient
that the pit boss granted the employees time off to attend
the meeting, thereby indicating to the employees that
Respondents did not oppose employee support of CIU.
In addition to signing authorization cards for the CIU,
it is unrefuted in the record that at least five of the lead-
men attended the CIU meeting along 'with the employ-
ees. These individuals were Robert D. Palmer, Bowie,
Dwayne Couch, Neal Jr., and Jack Wallace. Considering
their unlawful involvement in the effort to get the em-
ployees to support the CIU, I credit the testimony of em-
ployee Rink that Dwayne Couch told the employees at
the meeting that if the CIU were unsuccessful and the
UMW became their bargaining representative, Respond-
ents would shut the mine down.
Finally, there is further evidence of Respondents' un-
lawful assistance to and support of the CIU. Thus, when
Fred Couch and Shaw arranged the meeting the follow-
ing morning between the CIU representative (Conrad)
and Card and Ira Palmer, the two employees were per-
mitted to leave the minesite during working hours with-
out first securing permission. In addition, they waited an
hour for Conrad to appear in order to bring him on the
site and they were not reprimanded or in any way disci-
plined for their absence. These two employees were also
permitted to attend the meeting between the CIU repre-
sentative and Respondents' management where the topic
of discussion was representation of the employees by
CIU.
Although it is evident that Respondents' management
was not anxious to have the employees represented by
any union, the unrefuted testimony regarding the meet-
ing graphically demonstrates that Card and Ira Palmer
indicated they could accept representation of Respond-
ents' employees by CIU. Thus, I credit Couch's testimo-
ny that Card stated, "If the employees wanted a union,
this was the way to go," and also that Ira Palmer stated,
"While he didn't like it, he could live with the CIU since
it would not be that much of an expense to him."
It was these expressions of approval by Respondents'
top-level management that Couch and Shaw relayed to
the other employees after the meeting. Contrary to Re-
spondents' argument that the two employees were
merely placing their own interpretation on the results of
the meeting to indicate to the other employees that Re-
spondents supported the idea of representation by CIU, I
find that no other interpretation of the comments of
Card and Palmer was warranted. Moreover, I note these
comments were made by Card and Palmer in the pres-
ence of the two employees who were supporters of the
CIU and who they knew would be certain to report
back to the other employees. Indeed, further evidence
that management took a hospitable view toward the CIU
is found in the statement of Robert Palmer when he in-
formed Dennis Forbes on September 3 that he had been
to a "Bohemian Onion meeting." When questioned by
Forbes as to whether the CIU was worth anything,
Palmer replied that "It wasn't worth a damn, but would
allow Respondents to continue to operate the mine."
Similarly, when Williams Palmer met with laid-off em-
ployee King on September 13, he informed King that
Couch and Shaw were arranging to get a "company
union" and when everything was straightened out em-
ployees would be called back to work.
It is evident from the above that the comments of Re-
spondents' top-level management, which were relayed to
the other employees by Couch and Shaw, constituted an
unmistakable signal to the employees, that Respondents
were not opposed to having the CIU represent the em-
ployees. When considered in the light of the persistent
pattern of unlawful conduct engaged in by Respondents'
supervisors and management officials in opposing the
UMW organizing effort, it becomes evident that the
comments of Respondents' officials exceeded any permis-
MIDWESTERN MINING
sable bounds of commentary allowed by Section 8(c) of
the Act. The clear message conveyed to the employees
was that Respondents favored the CIU and would not
engage in unlawful conduct to undermine employee sup-
port of that union.
In sum, I find the record fully supports the allegations
of the complaint that Respondents' supervisors and man-
agement officials rendered unlawful assistant and support
to CIU. The noninterference of the supervisors with the
employees' solicitation of support for CIU during work-
ing hours, the attendance of the C1U meeting by five su-
pervisors, the signing of authorization cards for CIU by
the supervisors, the granting of time off from work for
employees to attend the CIU meeting, and the comments
of Respondents' top management and owners that Re-
spondents could operate with the CIU as the bargaining
representative of the employees clearly demonstrate the
extent of the unlawful support and assistance rendered to
the CIU by Respondents. Machinists Lodge 35 v. NLRB,
311 U.S. 72 (1940); Elias Mallouk Realty Corp., 265
NLRB 1225 (1982); World Wide Press, 242 NLRB 346
(1979). I find, therefore, that by this conduct Respond-
ents have violated Section 8(a)(2) of the Act.
IX. THE ISSUE OF VOLUNTARY RECOGNITION
The General Counsel contends that, on August 11, Re-
spondents extended voluntary recognition to UMW
when Ira Palmer met with the union officials in Wash-
ington, D.C. It was at this meeting that Palmer was
given the draft of the recognition agreement which was
to be subsequently finalized on Respondents' letterhead
after approval by Respondents' board of directors. Re-
spondents argue, however, that' at best, Palmer merely
extended recognition conditioned on approval by Re-
spondents' other officials and, when this approval was
not given, the recognition failed. Respondents further
argue that there is no evidence of any form of bargaining
between the parties after the conditional recognition was
extended by Palmer or that Respondents took any af-
firmative steps "consistent with the alleged recognition."
That a secret-ballot election is the preferred method of
ascertaining employee preference regarding union repre-
sentation is without question. NLRB v. Gissel Packing
Co., supra at 602. However, it is also firmly established
that voluntary recognition of a majority union is an ele-
ment of national labor policy. See Broadmoor Lumber
Co., 227 NLRB 1123, 1134-1135 (1977); NLRB v. Broad
Street Hospital, 452 F.2d 302, 305 (3d Cir. 1971). The
question of whether voluntary recognition has been con-
ferred is a factual one to be ascertained from the circum-
stances in each case. See Dollar Rent-A-Car, 236 NLRB
206 (1978). But once such recognition is conferred, it
cannot be withdrawn or reneged upon by an employer
before a reasonable period of time for bargaining has
elapsed without violating the bargaining obligations im-
posed by Section 8(a)(5) of the Act. Jerr-Dan Corp., 237
NLR]B 302 (1978). See also Capitol Temptrol Corp., 243
NLRB 575 (1979); NLRB v. San Clemente Publishing
Corp., 408 F.2d 367, 368 (9th Cir. 1969). Hence, the criti-
cal question here is whether the evidentiary facts regard-
ing the meeting of August 11 warrant a finding that Re-
spondents voluntarily accorded recognition to UMW.
255
Although the testimony regarding the meeting is in
conflict, certain basic facts are unrefuted. First, Ira
Palmer sought to impress on the union officials at the
meeting that Respondents' dire financial condition would
not permit it to sign the UMW Master Agreement. For
this reason, Palmer urged the Union to grant Respond-
ents 18 to 24 months before considering executing a col-
lective-bargaining agreement. Second, the union officials
assured Palmer that the UMW would do nothing to
interfere with Respondents' ability to make its operations
profitable and that they would grant him sufficient time
to accomplish this and, further, that Union Organizer
Forbes concurred in this assurance, provided Respond-
ents recognized the Union as the collective-bargaining
representative. Third, that Union Official Galati drafted
an agreement in which Respondents agreed to recognize
UMW as the collective-bargaining representative of the
employees and which provided for monthly monitoring
of Respondents' records by a UMW representative to es-
tablish the status of Respondents' financial condition.
Fourth, that Palmer asked for and was granted permis-
sion by the union officials to take the document back for
approval by his board of directors before signing it.
The conflict in the testimony relates to (1) whether
Palmer was told the Union had a card majority; (2)
whether once given the draft of the recognition agree-
ment, Palmer stated it looked all right to him, but that he
would have to take it back to Respondents' board for ap-
proval; and (3) whether Palmer assured the union offi-
cials that approval would be a mere formality. Because
of my assessment of Palmer's veracity concerning other
matters to which he testified, I find the testimony of the
union officials to be a more accurate account of the
events that occurred during the meeting on August 11.
Viewing the factual account of the meeting to be as de-
scribed by the union officials, the basic question becomes
whether these facts constitute a conferral of recognition
by Respondents of the Union as the collective-bargaining
representative.
In my judgment, the question is a close one. It is ap-
parent that Palmer did not question or ask for proof of
the Union's claim of majority status. Based on prior find-
ings herein, however, it is also clear that at the time of
the meeting the Union did in fact possess a card majori-
ty. But the record evidence does not establish, in my
judgment, that Palmer 's statements to the union repre-
sentatives at this meeting constituted a commitment to
accord recognition to the Union. Rather, I find that
while Palmer stated the language of the draft of the rec-
ognition letter appeared all right to him, he also explicit-
ly told the union representatives he would have to take
the document back for approval by Respondents' board
of directors. That his further comments may have im-
plied such approval would be pro forma in no way viti-
ates the condition imposed upon the agreement to recog-
nize the Union. It is true that the parties were not seek-
ing to negotiate the substantive terms of a collective-bar-
gaining agreement at this time. They were merely nego-
tiating regarding recognition of the Union and providing
the Union with a means of monitoring; Respondents' fi-
nancial status to determine when substantive negotiations
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would become possible. Nevertheless, I find the state-
ments made by Palmer during this meeting were explicit-
ly conditional and recognition was never accorded to the
Union at this time. It follows, therefore, that when Re-
spondents ultimately refused to recognize the Union in
their letter of August 16, they were not withdrawing or
reneging on a previous commitment to do so. Accord-
ingly, I conclude the record evidence does not prepon-
derate in favor of a finding that Respondents recognized
the UMW on August 11 and unlawfully withdrew such
recognition on August 16. In light of the above, these al-
legations of the complaint shall be dismissed.
X. THE ISSUE OF A GISSEL BARGAINING ORDER
In spite of my finding that Respondents did not recog-
nize and then unlawfully withdrew recognition from
UMW, I nevertheless find that a bargaining order is the,
only appropriate remedy for the unlawful conduct en-
gaged in by Respondents. The record establishes that Re-
spondents embarked on a course of retaliatory unfair
labor practices virtually from the inception of the orga-
nizing activity among the employees. The UMW began
soliciting authorization cards the first week in June and,
by the second week, all of Respondents' supervisors, in-
cluding major shareholders and the president, sought to
eradicate employee support of UMW by (1) threatening
to close the mine if UMW represented the employees; (2)
promising employees benefits if they did not support
UMW; (3) Interrogating employees about their union ac-
tivities and sentiments and that of other employees; (4)
creating an impression that employees were being
watched when attending UMW meetings; (5) threatening
employees with reprisals if they supported the UMW,
and (6) requesting that employees attend union meetings
and report back on the activity of supervisors.
Respondents' unlawful opposition to the UMW orga-
nizing activity continued throughout the summer months
and lasted into the fall. After a lawful layoff on June 18
for economic reasons, Respondents refused to recall and
subsequently discharged two employees (Roberts and
Scales) thought to be responsible for the UMW organiz-
ing effort. In addition, on August 19, Respondents un-
lawfully terminated all laid-off employees, who had not
been recalled by that date. At approximately the same
time, Respondents sought to further undermine the
UMW majority status among the employees by allegedly
demoting its salaried supervisors (including two who had
major or substantial ownership interests in Respondents)
to positions of hourly paid leadmen in order to attempt
to include them in the bargaining unit. Finally, Respond-
ents, through its supervisors, rendered unlawful assist-
ance to CIU-which was considered a "company
union"-in order to thwart the UMW organizing effort
among the employees.
These serious and pervasive unfair labor practices
were designed to achieve a single purpose, i.e., dissipate
employee support of the UMW by graphically demon-
strating to the employees that Respondents would not
tolerate their being represented by that union. That Re-
spondents ' massive and unlawful efforts to stifle and
thwart the UMW organizing effort involved serious vio-
lations of the statute cannot be gainsaid. The numerous
threats of shutdown of the mining operation and the un-
lawful discharges of employees clearly demonstrate a
propensity to engage in unlawful conduct which "goes
to the very heart of the Act," and has been recognized
as such. See NLRB v. Entwistle Mfg. Co., 120 F.2d 532,
536 (4th Cir. 1941). Since it has been found that UMW
achieved majority status by at least August 11 and in
light of the serious nature' and extensiveness of Respond-
ents' unlawful conduct, it is evident that the unlawful ac-
tivity had the effect of undermining the UMW's majority
strength and eroding the sentiments expressed by the em-
ployees on the authorization cards for representation by
that union.
In addition, it is equally evident that the conduct en-
gaged in by Respondents also tends to preclude the hold-
ing of a fair election among the employees in the bar-
gaining unit . The pervasive nature of the unfair labor
practices graphically demonstrated to the employees the
lengths Respondents were prepared to go in order to
stifle their right to select the UMW as their bargaining
representative. Further, the numerous threats of mine
closure and the instances of wholesale unlawful dis-
charges have created an atmosphere in which it is rea-
sonable to infer that the employees have a strong fear of
loss of employment that is not likely to be dispelled by
the traditional remedy of authorizing an election. For
these reasons , I find the possibility of successfully eradi-
cating the lingering effects of Respondents' unlawful
conduct and ensuring a fair election by use of the tradi-
tional remedies is slight, if not nonexistent . Therefore, I
find that the employees' sentiments expressed on their
authorization cards for the UMW are, on balance, better
protected by issuance of a bargaining order than by im-
position of the traditional cease-and-desist remedies. R.
L. White Co., 262 NLRB 575 (1982); Warehouse Groceries
Management , 254 NLRB 252 (1981).
CONCLUSIONS OF LAW
1. The Respondents, Midwestern Mining & Reclama-
tion, Inc., a subsidiary of Midwestern Fuels Systems,
Inc., and Reclamation Services, Inc., constitute a single
employer within the meaning of Section 2(2) of the Act
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. United Mine Workers of America (UMW) and Con-
gress of Independent Unions (CIU) are labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. Respondents, through their supervisors, committed
violations of Section 8(a)(1) of the Act by the following
conduct:
(a) Informing employees that Respondents would close
the mine, if UMW represented them.
(b) Promising employees better positions with Re-
spondents , if they did not support UMW.
(c) Threatening employees with reprials, including loss
of employment, if they supported UMW.
(d) Creating an impression that employees' attendance
at UMW meetings were kept under surveillance by Re-
spondents.
(e) Urging employees to attend the UMW meetings
and to report back regarding what took place there.
MIDWESTERN MINING
(f) Interrogating employees about their activities on
behalf' of and sentiments for UMW, and about similar ac-
tivities and sentiments of other employees.
(g) Informing employees that UMW supporters would
be "weeded out."
4. Respondents unlawfully assisted and supported the
CIU in violation of Section 8(a)(2) of the Act by:
(a) Supervisors executing authorization cards for and
attending the CIU meeting.
(b) Supervisors informing employees that Respondents
would close the mine, if the employees were represented
by UMW rather than by CIU.
(c) Supervisors granting employees time off from work
to attend the CIU meeting.
(d) Informing employees that CIU was favored by Re-
spondents to become their collective-bargaining repre-
sentative.
5. By refusing to recall and subsequently discharging
employees Edward Roberts and Elmer Scales because of
suspected activity on behalf of UMW, Respondents vio-
lated Section 8(a)(1) and (3) of the Act.
6. By discharging the laid-off employees not recalled
on August 19, 1982, in order to discourage support for
UMW and to undermine the majority status of that
union, Respondents violated Section 8(a)(1) and (3) of
the Act.
7. By refusing to recognize and, on request, bargain
with UMW as the exclusive collective-bargaining repre-
sentative of a majority of the employees in a unit appro-
priate for collective bargaining with respect to wages,
hours, and other terms and conditions of employment
Respondents have violated Section 8(a)(5) of the Act.
The appropriate bargaining unit is:
All employees of Midwestern Mining and Reclama-
tion, Inc., a subsidiary of Midwestern Fuels Sys-
tems, Inc., and Reclamation Services , Inc., em-
ployed by the employers at their mine site in or
near Bronaugh , Missouri; but excluding all office
clerical employees , managerial employees , confiden-
tial employees , professional employees , guards, and
supervisors as defined in the Act.
THE REMEDY
Having found that Respondents engaged in extensive
and pervasive unfair labor practices, they shall be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act. In light of the egregious and serious nature of
the violations found here, a broad order is required to
remedy the effects of Respondents' unlawful conduct.
Cf. Hickmott Foods, 242 NLRB 1357 (1979).
Having found that UMW achieved majority status
when Organizer Forbes requested recognition on August
11 and that the serious nature of the violations commit-
ted by Respondents tended to undermine the Union's ma-
jority support and, further, that the possibility of erasing
the lingering effects of this unlawful conduct and ensur-
ing a fair election is slight, Respondents shall be required
to recognize and bargain with UMW, effective August
11, 1982, as the exclusive collective-bargaining represent-
257
ative of the employees in the unit found appropriate. See
Drug Package Co., 228 NLRB 109 (1977).
Because Respondents unlawfully refused to recall and
subsequently discharged employees Edward Roberts and
Elmer Scales, they shall be required to offer full and im-
mediate reinstatement to these two employees to their
former positions without loss of seniority or other rights
and benefits, discharging if necessary any employees
hired or recalled in their job classifications after the date
that these two employees would have been recalled. If
these positions no longer exist , Respondents shall be re-
quired to offer these two employees substantially equiva-
lent positions on the same terms and , further, that Re-
spondents make whole these two employees for any
losses they may have suffered by reason of the discrimi-
nation against them . Backpay shall be calculated in ac-
cordance with the formula set forth in F W. Woolworth
Co., 90 NLRB 289 (1950), with interest thereon as pro-
vided for in Florida Steel Corp., 231 NLRB 651 (1977).61
In addition, Respondents shall remove from their files
any references to the warning given Edward Roberts on
May 24, 1982, holding him responsible for the damage to
the fairleads on the dragline, as well as the termination
notice sent to him on August 19, 1982. Further, Re-
spondents shall notify him in writing that this has been
done and that evidence of these unlawful actions will not
be used as a basis for future discipline against him. Like-
wise, Respondents shall be required to remove from its
files any reference to the memorandum of May 17, 1982,
issued to Elmer Scales regarding job attitude, as well as
the termination notice sent to him on August 19, 1982.
Further, Respondents shall notify him in writing that this
has been done and that evidence of these unlawful ac-
tions will not be used as a basis for future discipline
against him.
Regarding the laid-off employees unlawfully terminat-
ed on August 19, there is no evidence in the record
which establishes when they would have been recalled, if
at all, or whether other employees were hired to fill
their positions. For this reason, it shall be left to the
compliance stage of this proceeding to determine if and
when these employees would have been recalled by Re-
spondents. It shall be ordered, however, that Respond-
ents, in consultation with UMW, establish a preferential
rehiring list following a nondiscriminatory system, such
as seniority and job classification, which includes all the
names of the employees unlawfully terminated on,
August 19, 1982,62 and not thereafter recalled. If the
compliance proceedings establish that any of these em-
ployees would have been recalled, Respondents shall re-
instate them to their former or substantially equivalent
positions and make them whole for any loss of earnings,
in the manner set forth herein, that they may have suf-
fered from the date they would have been recalled until
the date they are in fact rehired. If, on the other hand,
the compliance investigation establishes that any or all of
these employees would not have been recalled , Respond-
61 See generally Isis Plumbing Co, 138 NLRB 716 (1962).
62 This provision does not apply to Roberts or Scales since Respond-
ents have been directed to offer these two employees their immediate re-
instatement
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ents shall be ordered to offer them reinstatement to their
former or substantially equivalent positions , when such
positions become available , before effecting any new
hires.
Finally, Respondents shall be ordered to remove any
references to the August 19, 1982 discharges of the laid-
off employees from its files and records and notify each
of these employees in writing that this has been done.
Further, Respondents shall notify each of these employ-
ees that evidence of the unlawful discharges of August
19, 1982, will not be used as a basis for future discipline
against them.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed63
ORDER
The Respondents, Midwestern Mining and Reclama-
tion, Inc., a subsidiary of Midwestern Fuels Systems,
Inc., and Reclamation Services, Inc., Bronaugh , Missou-
ri, their officers , agents, successors , and assigns, shall
1. Cease and desist from
(a) Informing employees that the mining operation will
be shut down, if United Mine Workers of America
(UMW)'becomes their bargaining representative.
(b) Promising employees better positions in Respond-
ents' organization, if they do not support the UMW.
(c) Threatening employees with reprisals , including
loss of employment, if they support the UMW.
(d) Creating an impression that employees ' attendance
at UMW meetings are being kept under surveillance.
(e) Urging employees to attend UMW meetings in
order to report back information to Respondents' super-
visors.
(f) Interrogating employees about their activities on
behalf of and sentiments for the UMW and about similar
activities and sentiments of other employees.
(g) Informing employees that UMW supporters will be
"weeded out."
(h) Discharging employees and placing after-the-fact
memoranda in their personnel files, purporting to sub-
stantiate the basis for the discharges, because the employ-
ees engaged in activities on behalf of UMW.
(i) Refusing to recall and discharging laid-off employ-
ees in order to undermine employee support for UMW.
V) Rendering unlawful support and assistance to CIU,
or any other union, in order to stifle or thwart the UMW
organizing activity among the employees.
(k) Refusing to recognize and bargain collectively with
UMW, effective August 11, 1982, as the exclusive collec-
tive-bargaining representative of the employees in the
unit found appropriate herein.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Offer immediate and full reinstatement to Edward
Roberts and Elmer Scales to their former or substantially
63 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 for all pur-
poses
equivalent positions and make them whole, in the
manner set forth in the section entitled "The Remedy,"
for any loss of earnings they may have suffered by
reason of the unlawful discrimination against them.
(b) Rescind, in writing, the August 19, 1982 letters dis-
charging all laid-off employees not recalled and establish
a preferential rehire list which includes these employees
in the manner set forth above in the remedy section.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Remove from its file any references to the dis-
charge letters sent to all laid-off employees not recalled
on August 19, 1982, as well as the warning memorandum
given to Edward Roberts on May 24, 1982, and to Elmer
Scales on May 17, 1982. Further, notify the above em-
ployees in writing that this has been done and that evi-
dence of these unlawful actions will not be used as a
basis for future discipline against them.
(e) Recognize and, on request, bargain with United
Mine Workers of America as the exclusive collective-
bargaining representative of the employees in the appro-
priate bargaining unit with respect to wages, hours, and
other terms and conditions of employment, and, if an
agreement is reached, embody such an agreement in a
written signed contract. The appropriate bargaining unit
is:
All employees of Midwestern Mining and Reclama-
tion, Inc., a subsidiary of Midwestern Fuels Sys-
tems, Inc., and Reclamation Services , Inc., em-
ployed by the employers at their mine site in or
near Bronaugh , Missouri; but excluding all office
clerical employees , managerial employees , confiden-
tial employees , professional employees , guards, and
supervisors as defined in the Act.
(f) Post at its Bronaugh, Missouri facility copies of the
attached notice marked "Appendix."84 Copies of the
notice, on forms provided by the Regional Director for
Region 17 , after being signed by the Respondents' au-
thorized representative, shall be posted by the Respond-
ents immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ents to ensure that the notices are not altered , defaced,
or covered by any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that all allegations of the
complaint not found to be violations herein are dis-
missed.
64 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
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
MIDWESTERN MINING 259
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT inform our employees that we will shut
down our mining operation if the United Mine Workers
of America becomes their bargaining representative.
WE WILL NOT promise our employees better positions
with our organization if they do not support the United
Mine Workers of America.
WE WILL NOT create an impression that employees' at-
tendance at meetings held by the United Mine Workers'
of America are being kept under surveillance.
WE WILL NOT urge employees to attend United Mine
Workers of America meetings and report back to us con-
cerning what took place there.
WE WILL NOT interrogate employees about their ac-
tivities on behalf of and their sentiments regarding
United Mine Workers of America, or any other union, or
about such activities and sentiments of other employees.
WE WILL NOT inform employees that supporters of
United Mine Workers of America will be discharged or
"weeded out."
WE WILL NOT unlawfully assist or support the Con-
gress of Independent Unions, or any other labor organi-
zation, in order to have that labor organization represent
our employees rather than the United Mine Workers of
America.
WE WILL NOT refuse to recall and then discharge em-
ployees and place after-the-fact memoranda in their per-
sonnel files purporting to substantiate such discharges be-
cause these employees engaged in activities on behalf of
Unied Mine Workers of America.
WE WILL NOT discharge laid-off employees in order to
undermine the support of our employees for United Mine
Workers of America.
WE WILL NOT refuse to recognize and bargain collec-
tively with United Mine Workers of America as the ex-
elusive collective-bargaining representative of our em-
ployees in a unit found appropriate for such purposes.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the National Labor Re-
lations Act.
WE WILL offer full and immediate reinstatement to
Edward Roberts and Elmer Scales, and WE WILL make
them whole, with interest , for any losses they may have
suffered as a result of the discrimination against them.
WE WILL rescind , in writing , the discharge letters sent
to all laid-off employees not recalled on August 19, 1982,
and if it is established that any or all of these employees
would have been recalled , WE WILL immediately rein-
state them to their former or substantially equivalent po-
sitions and make them whole for any losses they may
have suffered as a result of our discrimination against
them.
WE WILL, in consultation with UMW, establish a pref-
erential rehire list for those laid-off employees who
would not have been recalled, and WE WILL recall them
to their former or substantially equivalent positions, as
such positions become available , before hiring new em-
ployees.
WE WILL remove from our files any references to the
discharge letters sent to the laid-off employees not re-
called on August 19, 1982, and WE WILL remove from
our files any references to the memoranda given Edward
Roberts on May 24 , 1982, and to Elmer Scales on May
18, 1982, and WE WILL notify all of the above employ-
ees, in writing , that this has been done and that evidence
of these unlawful actions will not be used as a basis for
future discipline against them.
WE WILL recognize and, on request, bargain with
United Mine Workers of America as the exclusive col-
lective-bargaining representative'of a majority of our em-
ployees in the unit found appropriate for collective bar-
gaining with respect to wages, hours , and other terms
and conditions of employment and, if an agreement is
reached, embody such agreement in a written , signed
contract . The appropriate bargaining unit is:
All employees of Midwestern Mining and Reclama-
tion, Inc., a subsidiary of Midwestern Fuels Sys-
tems, Inc., and Reclamation Services , Inc., em-
ployed at our mine site in Bronaugh , Missouri; but
excluding all office clerical employees, managerial
employees , confidential employees, professional em-
ployees, guards , and supervisors as defined in the
Act.
MIDWESTERN MINING & RECLAMATION,
INC., A SUBSIDIARY OF MIDWESTERN
FUELS SYSTEMS, INC., AND RECLAMATION
SERVICES, INC.