Mingo Logan Coal Co.

National Labor Relations Board - Board Decisions

Sep 28, 2001

336 N.L.R.B. 83 (N.L.R.B. 2001)

MINGO LOGAN COAL CO. 83
Mingo Logan Coal Co. and Mahon Enterprises, Inc.,
Joint Employers and United Mine Workers of
America. Cases 9–CA–31797 and 9–CA–31939
September 28, 2001
DECISION AND ORDER
BY MEMBERS LIEBMAN, TRUESDALE, AND
WALSH
On February 25, 1998, Administrative Law Judge
Marion C. Ladwig issued the attached decision. The
Respondents each filed exceptions and supporting briefs.
The Charging Party filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order as modified3 and
set forth in full below.
We adopt the judge’s finding that Danny Colegrove
was a supervisor of the Respondents. In doing so, we
find that the judge’s refusal to allow Mahon Enterprises,
Inc. “Mahon” and Mingo Logan Coal Co. “Mingo
Logan” to amend their answers with respect to Cole-
grove’s supervisory status was not an abuse of discretion.

1 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all 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.
In addition, some of the Respondents’ exceptions allege that the
judge’s rulings, findings, and conclusions demonstrate bias and preju-
dice. On careful examination of the judge’s decision and the entire
record, we are satisfied that the Respondent’s contentions are without
merit. We also reject the Respondents’ assertion that a statistical analy-
sis of the judge’s credibility resolutions in this and prior cases estab-
lishes bias in favor of labor unions. Applying such an analysis would
amount to judging a case by a mechanical formula rather than on the
merits of the evidence. See Fieldcrest Cannon, Inc. v. NLRB, 132 F.3d
1007, 1010 (4th Cir. 1997).
2 We shall conform the conclusions of law to the violations found by
the judge.
3 We agree with the judge that Respondent Mahon discriminatorily
laid off 18 employees on April 10, 1994, at Respondent Mingo Logan’s
behest. We therefore find that Mahon must, jointly with Mingo Logan,
offer the 18 employees employment and make them whole for the loss
of earnings and benefits, computed on a quarterly basis from the date of
their layoff to the date of a proper offer of employment, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987). See, e.g., J. J. Gumberg Co., 189 NLRB 889,
893 (1971). We shall reserve for compliance the determination of
when the employees would have been transferred to the Mingo Logan
payroll, and thus when they would have begun receiving Mingo Logan
wages and benefits, in the absence of the Respondents unlawful dis-
crimination.
We shall modify the judge’s recommended Order in accordance with
our recent decision in Ferguson Electric Co., 335 NLRB 142 (2001).
In their answers to the February 10, 1995 consolidated
complaint, both Mahon and Mingo Logan admitted that
Colegrove was a Section 2(11) supervisor at all material
times. In the prior representation case, Case 9–RC–
16382, Mahon and Mingo Logan had already stipulated
that the position held by Colegrove, assistant foreman,
was a supervisory position. Mahon again admitted that
Colegrove was a supervisor in its answer to the August
21, 1996, amended complaint. Although in its answer to
the amended complaint Mingo Logan denied that Cole-
grove was a Mingo Logan supervisor, it did not specifi-
cally deny that Colegrove was a Mahon supervisor. It
was not until after the first week of trial, during which
several employees testified to unlawful statements made
by Colegrove, that Respondents shifted their position on
Colegrove’s status and asserted that he was not a super-
visor of the Respondents. The judge denied the Respon-
dents permission to belatedly amend their answers under
these circumstances.
The judge, however, did allow Mahon to make a full
record of its position on Colegrove’s supervisory status
by permitting Mahon to make an offer of proof by ques-
tions and answers, and Colegrove was allowed to testify
at length regarding his status. In concluding that Cole-
grove was a supervisor, the judge did not rely solely on
the Respondents’ admissions, but undertook a thorough
examination of all the evidence, including Colegrove’s
testimony at the hearing and during the prior representa-
tion case, as well as the testimony of other employees
and a foreman. Accordingly, we do not find that the Re-
spondents were prejudiced by the judge’s ruling.
Moreover, even assuming that Colegrove was neither a
supervisor nor an agent of the Respondents, we find that
there is sufficient evidence to support the judge’s find-
ings that Mingo Logan was unlawfully motivated when it
caused Mahon to lay off the 18 employees on April 10,
1994, because of their union support, and that Mahon
was unlawfully motivated when it participated with
Mingo Logan in the identification, selection, and layoff
of those employees. As detailed by the judge, the cred-
ited testimony concerning the statements and actions of
the Respondents’ supervisors and agents besides Cole-
grove clearly establish that the layoff of the employees
was based on their union activities.
AMENDED CONCLUSIONS OF LAW
1. Respondents Mingo Logan Coal Co. and Mahon En-
terprises, Inc. are joint employers.
2. By discriminatorily laying off 18 employees on
April 10, 1994, Respondents Mingo Logan and Mahon
have engaged in unfair labor practices affecting com-
336 NLRB No. 5
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 84
merce within the meaning of Section 8(a)(3) and (1) and
Section 2(6) and (7) of the Act.
3. By coercively interrogating employees, by threaten-
ing them with loss of jobs, closure of the mine, and that
they would not be placed on the Mingo Logan payroll for
engaging in union activity, by refusing to transfer em-
ployees to the Mingo Logan payroll because of their un-
ion activity, and by otherwise interfering with their right
to engage in union activity, the Respondents violated
Section 8(a)(1).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondents, Mingo
Logan Coal Co. and Mahon Enterprises, Inc., Wharn-
cliffe, West Virginia, jointly and severally, their officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Laying off or causing another employer to lay off
any employee for supporting United Mine Workers of
America or any other union.
(b) Coercively interrogating any employee about union
support or union activities.
(c) Threatening any employee with loss of job, closure
of the mine, or not being transferred to the Mingo Logan
payroll for engaging in union activity.
(d) Refusing to transfer employees to the Mingo Logan
payroll because they engaged in union activity.
(e) Interfering with any employee’s right to engage in
union activity.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
the following employees employment to their former
jobs at the Mountaineer Mine or, if those jobs no longer
exist, to substantially equivalent positions:

Thomas Bailey Buddy Maynor
Harold Bryant David Massey
Truman Cameron James Osborne
Jerry Canterbury Glen Payne
Michael Dillon Rupert Smith
John Eanes Jerry Tawney
Dennis Evans Joseph Turner
Dennis Hall Stewart Vint
Ralph Jarrell Carl Workman

(b) Make the above-named employees whole for any
loss of earnings and other benefits suffered as a result of
the discrimination against them.
(c) Within 14 days from the date of this Order, remove
from their files any reference to the unlawful layoffs, and
within 3 days thereafter notify the above-named employ-
ees in writing that this has been done and that the layoffs
will not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
the Mountaineer Mine near Wharncliffe, West Virginia,
copies of the attached notice marked “Appendix.”4 Cop-
ies of the notice, on forms provided by the Regional Di-
rector for Region 9, after being signed by the Respon-
dents’ authorized representatives, shall be posted by the
Respondents 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 Respondents to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondents shall duplicate and mail, at their own expense,
a copy of the notice to all current employees and former
employees employed by the Respondent at any time
since January 1994.
(f) Within 21 days after service by the Region, file
with the Regional Director sworn certifications of re-
sponsible officials on a form provided by the Region
attesting to the steps that the Respondents have taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

MINGO LOGAN COAL CO. 85
Section 7 of the Act gives all employees the following 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 protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT lay off or cause another employer to
lay off any employee for supporting United Mine Work-
ers of America or any other union.
WE WILL NOT coercively question you about union
support or union activities.
WE WILL NOT threaten you with loss of job, closure
of the mine, or that you will not be placed on the Mingo
Logan payroll for engaging in union activity.
WE WILL NOT refuse to transfer you to the Mingo
Logan payroll for engaging in union activity.
WE WILL NOT interfere with your right to engage in
union activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the
Board’s Order, offer the following employees employ-
ment to their former jobs at the Mountaineer Mine or, if
those jobs no longer exist, to substantially equivalent
positions:

Thomas Bailey Buddy Maynor
Harold Bryant David Massey
Truman Cameron James Osborne
Jerry Canterbury Glen Payne
Michael Dillon Rupert Smith
John Eanes Jerry Tawney
Dennis Evans Joseph Turner
Dennis Hall Stewart Vint
Ralph Jarrell Carl Workman

WE WILL make the above-named employees whole
for any loss of earnings and other benefits resulting from
their April 10, 1994 layoffs, less any net interim earn-
ings, plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful layoffs, and WE WILL, within 3 days
thereafter, notify each of the above-named employees in
writing that the layoffs will not be used against them in
any way.

MINGO LOGAN COAL CO.
Eric A. Taylor, Esq., for the General Counsel.
Forrest H. Roles and Christopher l. Slaughter, Esqs. (Smith,
Heenan, & Althen), of Charleston, West Virginia, for
Mingo Logan.
George J. Oliver, Esq. (Smith, Helms, Mulliss, & Moore), of
Raleigh, North Carolina, for Mahon.
Molly Kettler Wade, Esq., of Charleston, West Virginia, for the
Union.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge. These
consolidated cases were tried in Logan and Charleston, West
Virginia, on January 21–24, February 24–28, and March 3–6,
1997. The charges were filed April 18 and June 21, 1994.1
Consolidated complaints were issued February 10, 1995, and
August 21, 1996, and amended at the trial.
Mingo Logan Coal Co. (Mingo Logan) is a wholly owned
subsidiary of Ashland Coal, Inc. In January 1992 it began op-
erating the large, high-production Mountaineer underground
coal mine near Wharncliffe, West Virginia. Using both con-
tinuous miner and longwall means of extracting coal, it pro-
duces five or six times the tonnage of an average coal mine and
plans to begin developing a second seam of coal on a lower
level.
Clearly with purposes of (1) keeping its own work force
nonunion, (2) saving about $6 an hour in labor costs, and (3)
obtaining the work of skilled, unemployed union miners with-
out hiring them directly, Mingo Logan entered into a labor
contract with Mahon Enterprises, Inc. (Mahon) to perform
outby (nonproduction construction and support) work, much of
which is necessary for the life of the mine. The contract pro-
vides for the performance of this outby work and “Miscellane-
ous other work as required” (which often included inby produc-
tion work).
There is evidence that although these contract employees—
consisting mostly of union miners—were on Mahon’s payroll,
their essential terms and conditions of employment were code-
termined by Mingo Logan and Mahon. Mingo Logan referred
union applicants to Mahon for hiring. It assigned, directed, and
supervised Mahon employees at will. It monitored their work,
determined when they must be disciplined, and began rotating
them with its own employees. It effectually controlled their
compensation by limiting Mahon’s reimbursement to $12 an
hour for general laborers, $13 for operators and crew leaders,
and $15 for foremen, firebosses, and electricians, plus an un-
disclosed contracting fee. Hiring them as “temporary” workers,
Mahon provided them no fringe benefits (no paid vacations,
holidays, pensions, etc.), except limited health insurance and
minimal life insurance. (Mingo Logan paid an $18 minimum
rate and provided full benefits to the underground employees
on its own payroll.)
Maintaining its own work force of outby (as well as inby)
employees and supervisors, Mingo Logan each week deter-
mined not only the type of work for Mahon employees to per-
form and the number of employees, but also their required
skills. At the beginning of each shift, it divided the work be-

1 All dates are in 1994 unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 86
tween Mingo Logan and Mahon employees. Some Mahon em-
ployees worked in separate groups under a Mahon foreman or
crew leader; others worked alongside Mingo Logan employees
on inby or outby work under the supervision of Mingo Logan
foremen. Both Mahon and Mingo Logan employees worked on
Mahon crew leader David Massey’s belt crew on the owl
(third) shift, under written and oral instructions from the day-
shift Mingo Logan belt foreman. Individually assigned Mahon
employees worked directly under the supervision of Mingo
Logan foremen assigning them.
Mahon had a large turnover of its employees, working for
the lower wages and benefits. As President Amon Mahon ad-
mits, he “had discussions continually with people like [Mingo
Logan’s Administrative Services Director James] Mooney and
[General Mine Superintendent Clifton] Frye, always to try to
hang onto as many people and . . . to add as many people as
possible.” There came a time, however, in May 1993 (after the
completion of much of the mine’s infrastructure), when “it
looked like that I was going to be forced to reduce people, but
from my conversations with Mr. Mooney and Mr. Frye, they
got in their mind set that they needed X amount of people at the
mines each day.” Amon Mahon therefore changed the work-
week at that time, reducing the Mahon employees’ scheduled
working days from 6 days on and 1 day off, to six on and two
off—allowing him to keep 25 percent of the work force home
and “have flexibility in case of absentee or someone off.”
In October 1993, leaving more outby work to be performed
at lower cost by Mahon employees, Mingo Logan reduced all
its underground employees’ hours from 10 to 9 hours a day. It
also began rotating Mahon employee with the Mingo Logan
employees.
In early January 1994, the Union began an organizing cam-
paign. There is evidence that, in response, Mingo Logan and
Mahon supervisors engaged in extensive interrogations and
threats, including threats to close the mine. In March a Mahon
supervisor revealed to one employee that Amon Mahon had
said in a meeting that “we’re going to take 20” or so of the
“oldest men” who were “involved in the union activity” and lay
them off or fire them “to make them an example to everybody
else.” A few days before the April 10 layoffs the supervisor
revealed to another employee that there was going to be a lay-
off and that David Terry, Mingo Logan’s general construction
coordinator, was in the Mahon office going over the list of
names.
Planning the layoffs during the organizing campaign—
although only about a fifth of the mine had been developed—
Mingo Logan prepared a proposed budget on March 24–25 to
cover the labor costs of an all Mingo Logan work force after
phasing out the Mahon employees. The proposal provided for
an annual net increase of 13,228 in scheduled hours. This
would be accomplished by (a) increasing the working hours of
140 of the 258 underground mine employees, (b) adding four
inby jobs, and (c) initially eliminating 17 outby jobs performed
by Mahon employees. James Mooney calculated that the
changes would increase Mingo Logan’s annual labor costs by
$375,402.
Despite this increase in the budgeted labor costs, Mingo
Logan approved the proposal. About 5:30 p.m. on Saturday,
April 9, Coordinator David Terry notified Amon Mahon that
Mahon’s complement of 91 outby employees must be reduced
by 18 to 73 employees, including the layoff of skilled operators
and crew leader David Massey. On Sunday, April 10, Amon
Mahon telephoned and summarily laid off the 18 employees, 17
of whom had signed union authorization cards—effectively
ending the Union’s organizing campaign in the mine.
The primary issues are (a) whether Respondents Mingo
Logan and Mahon were joint employers of Mahon employees,
(b) whether they unlawfully coerced their employees, and (c)
whether they discriminatorily laid off the 18 Mahon employees,
violating Section 8(a)(1) and (3) of the National Labor Rela-
tions Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Mingo Logan, Mahon, and United
Mine Workers of America (the Union), I make the following
FINDINGS OF FACT
I. JURISDICTION
Mingo Logan, a corporation, mines and processes coal at its
underground mine near Wharncliffe, West Virginia, where it
annually ships goods valued over $50,000 directly outside the
State. Mahon, a corporation, annually provides Mingo Logan
with labor and construction services valued over $50,000. The
Respondents admit and I find that they are employers engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Mingo Logan, a wholly owned subsidiary of Ashland Coal
Co., leased coal mining rights in a mountain near Wharncliffe,
West Virginia, to operate a very large, high-production long-
wall mine, which produces about five or six times the tonnage
of an average coal mine. It plans to begin developing a second
seam of coal on a lower level “partly while we’re mining this
one and after this one.” (Tr. 714, 1358–1359, 1362, 1364,
1999.)
This Mountaineer mine required extensive preparatory work
with continuous miners, making 10 parallel entries (tunnels,
called the South and North Mains), extending north inside the
mountain over 4 miles. For each of the longwall panels, which
measure 1000 feet wide and up to 9000 feet in depth (on the
east and west sides of the Mains), continuous miners are used
by inby crews to make a three-entry headgate and tailgate on
either side of the panel (as well as three entries on the far, east
or west, end of each panel) for ventilation, conveyor belt, and
rail track. (Tr. 1228, 1232–1233, 1372–1377, 1381–1385; RML
Exh. 3.)
As the longwall shearer excavates all the coal in the panel
along the 1000-foot face (cutting 1-meter strips of coal at a
time), the coal is transported (after being crushed at the stage
loader) on conveyors outby to the Mains and outside the mine,
then by overland conveyor to the preparation plant where the
rock, shale, and sandstone are separated out (Tr. 1365–1366,
1402–1408, 1417–1418, 1448–1450, 1842).
MINGO LOGAN COAL CO. 87
Continuous miners (about 20 to 30 feet in length) are used by
inby production crews not only to extract the coal in the miles
of entries in the Mains, headgates, tailgates, and other entry-
ways, but also to mine the coal in smaller sections of the mine
that are not suitable for longwall mining. Continuous miners
were initially used by Mahon outby crews to follow the produc-
tion crews and do rock work to increase the height of some of
the entries for the tracks and conveyor belts. (Tr. 1225, 1234,
1396–1400.)
Other Mahon outby work included installing motor rail
tracks, conveyor belts, trolley wire, and high voltage cable,
excavating and constructing overcasts, building belt-track
crossings, building brattices (stoppings of cinder blocks for
separating incoming fresh air and outgoing exhaust air), and
installing fresh water and drainage pipes. It also included much
support work, such as maintaining all equipment used, examin-
ing, cleaning, rock-dusting, and repairing belts, making belt and
power moveups, maintaining continuous miner equipment on
weekends, and providing supply crew for continuous miner
sections and construction sites, as well as “Miscellaneous other
work as required.” (Tr. 1424–1431; ML Exh. 3 pp. 19–20.)
Mingo Logan’s superintendent, Clifton Frye, began oversee-
ing the development of the mine in May 1991. In June 1991,
Mingo Logan engaged mine contractor LARC, Inc. to open and
begin operating the mine, assisted by Mahon contract labor
doing outby work. In late January 1992, Mingo Logan took
over the operation, and Mahon continued doing much of the
outby construction and support work. In the fall of 1992, the
longwall mining began. A year later in October 1993, Mingo
Logan cut the scheduled hours of all its underground employees
from 10 to 9 hours a day. This eliminated much of their sched-
uled overtime, leaving more outby construction and support
work for the lower-paid Mahon contract employees to perform.
(Tr. 1359–1360, 1418–1419, 1446–1447, 1453,1482–1484,
1674, 1825–1826, 2050.)
In early January 1994 the Union began organizing the under-
ground employees (Tr. 617). About 5:30 p.m. on April 9, as
discussed later, Mingo Logan notified Amon Mahon that
Mahon’s complement of 91 outby employees must be reduced
by 18 to 73 employees. On Sunday, April 10, Amon Mahon
telephoned and summarily laid off the 18 employees. All ex-
cept one of them had signed union authorization cards (GC
Exhs. 3, 8, 10, 13, 15, 16, 18–21, 23–25, 28–30; Tr. 550–551).
The layoffs effectively ended the Union’s organizing campaign
in the mine. The Union did not get any more cards signed (Tr.
622).
On April 28, 1994, the Union filed its petition in Case 9–
RC–16382 (Bd. Exh. 1a). In the representation proceeding the
Board on August 13, 1996, issued its Decision on Review and
Order (GC Exh. 1vv), finding “that Mingo Logan and Mahon
are the joint employers of Mahon’s employees.” On August 28,
1996, the Regional Director approved the Union’s August 26
request to withdraw its petition (GC Exh. 1yy). On January 24,
1997, the Board, on appeal from my order granting the General
Counsel’s motion in limine, directed that the Respondents be
permitted “to offer any additional evidence relevant to the joint-
employer issue and to reconsider the Board’s finding in the
representation case in light of any such additional evidence”
(Tr. 640, 651–653; GC Exh. 1uu).
B. Joint Employers
1. Supervision and direction of Mahon employees
a. One management group
On February 26, 1992, about a month after taking over the
operation of the Montaineer mine from contractor LARC,
Mingo Logan employed Mahon’s general mine foreman, James
Allen, as Mingo Logan’s evening shift foreman. Soon after
Allen assumed this new position in the mine, he bypassed
Mahon President Amon Mahon and talked directly to Mahon
employee Stewart Vint about taking the job of motorman op-
erator, in charge of getting mine supplies to the production and
construction crews. Vint agreed to the reassignment and took
the job on the condition that “I take direct orders from you and
you alone” and that Allen would inform every Mahon and
Mingo Logan foreman that “when I speak it’s you speaking.”
(Tr. 1197–1199, 1244–1246; GC Exh. 34.) Vint worked under
Allen’s supervision until late 1992 (Tr. 1200).
In this same conversation, as Vint credibly testified, Allen
revealed to Vint that “there was a lot of disorder going on” in
the mine because of two management groups, one Mahon and
one Mingo Logan, and “they were going to bring all the man-
agement group under one roof,” to better direct the work force
(Tr. 1206–1207). Vint impressed me very favorably on the
stand as a truthful witness. I discredit Allen’s denials (Tr.
1828–1830).
Following through on its one-management plans, Mingo
Logan later hired David Terry as an assistant shift foreman
(who had succeeded James Allen as Mahon’s general mine
manager), Charles McDaniel (a Mahon foreman), and also
Henry Shaffer (Tr. 1170, 1207, 1688, 1828; GC Exh. 34; RML
Exh. 7). David Terry, who is “responsible for the entire mine
on all three shifts” in the absence of Mingo Logan’s general
mine foreman, Harrison Blankenship, serves as Mingo Logan’s
general construction coordinator with Mahon (Tr. 1666).
Maintaining its own work force of outby (as well as inby)
employees, Mingo Logan employed a full staff of foremen over
outby work: Maintenance Foremen Dannie Morgan, John Mor-
gan, and John Cochran; Construction/Relief Foremen David
Cantrell, Donald Sparkman, and Gary Acord; Belt Foreman
Lowell “Tommy” Cook; and Assistant Belt Foremen Aubrey
Lusk, Orville Wyant, and Malcolm Walls (Tr. 1207, 1170;
RML Exhs. 7, 8).
Mingo Logan exercised full control over the work Mahon
employees would perform. Each week it determined not only
the type of work and the number of Mahon employees, but also
the Mahon employees’ required skills (Tr. 1474–1477, 1504,
1676–1677, 1679–1680, 1706–1707). Mingo Logan foremen
would meet with the Mahon shift foreman at the beginning of
each shifts and inform him how the work would be divided
between Mahon and Mingo Logan employees. Some Mahon
employees worked in separate groups under a Mahon foreman
or crew leader; others worked alongside Mingo Logan employ-
ees on inby and outby work, under the supervision of Mingo
Logan foremen. After the Mahon shift foreman assigned
Mahon employees in the separate groups, Mingo Logan fore-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 88
men would often reassign selected Mahon employees as needed
to work with Mingo Logan employees under Mingo Logan
supervision. (Tr. 589–590, 748–749, 860–863, 1632–1636,
1669–1771, 1832–1836, 1959, 1964–1965, 2033–2034, 2167,
2215–2216.)
b. Mingo Logan supervision and direction
In June 1992, Mingo Logan’s longwall superintendent, Earl
Cooke, interviewed Dennis Evans, an unemployed, longtime
union member. Instead of employing him, Cooke introduced
him to Lenville Mahon (an admitted agent of Mahon), who
placed him on the Mahon payroll. Cooke told Evans that if
hired, “I would [have] my foot in the door to get a job with”
Mingo Logan. About August or September 1992, Evans asked
Cooke if he could work on the longwall. Cooke (without con-
sulting with Mahon) said yes and told the Mahon foreman that
Evans was to report on the longwall maintenance team the fol-
lowing day. This was inby work, performed at the face of the
longwall alongside Mingo Logan employees under Mingo
Logan supervision. (Tr. 469, 472, 810, 814–822; GC Exh.
1bbb.)
Evans performed this Mingo Logan inby work, which some-
times included operating the shearer in coal production, for an
estimated 11 to 14 months. Mingo Logan kept his time in the
longwall office. About the only reason Evans ever had to go to
the Mahon trailer was to pick up his paycheck. (Tr. 475, 815,
823–824, 832.) He continued doing this inby work under
Mingo Logan supervision, even though Mingo Logan and
Mahon signed a so-called “Construction Work Agreement” on
December 23, 1992, covering outby work and providing that
Mahon shall “direct” and “supervise” its own employees. (ML
Exh. 3 pp. 1, 10, 19–20).
Hoping to be hired by Mingo Logan, Evans often volun-
teered to work on one of his days off when requested by Mingo
Logan. He specifically remembered working on December 31,
1992 when asked by Mingo Logan’s shift foreman, James Al-
len. (Tr. 817–818.) He sent in four or five resumes “by various
foremen who wanted me on, to no avail.” Finally about October
1993, Mingo Logan’s longwall maintenance foreman, Alvin
Jewell, “tried his best to get me on his team.” This time, as
Evans credibly testified contrary to Jewell’s denials, Jewell
revealed that “he overheard the talk in the office and they were
not going to hire me because of my brother,” a union organizer,
International Representative Bernard Evans. (Tr. 476, 486–
487, 498–499, 1850–1851.) By then, as discussed later, Mingo
Logan attorneys had given the Mingo Logan foremen a 6-hour
training course in opposing union organization.
In late 1992 Allen again bypassed Mahon and asked Stewart
Vint if he wanted to work on the longwall. Vint began training
for the job and joined Evans on the Mingo Logan longwall
maintenance team, spending part of the time operating the
shearer. Vint worked several months with Evans on this inby
work under Mingo Logan supervision, until both of them and
other Mahon employees working on longwall maintenance
were reassigned. At Jewell’s request, Evans had trained all new
Mingo Logan longwall maintenance employees. (Tr. 198–199,
473–474, 816, 833, 853, 1131, 1200–1203, 1211, 1220, 1266,
1845–1846, 2066.)
There were other Mahon employees who also worked under
Mingo Logan supervision.
James Allen helped Jerry Canterbury in getting employed by
Mahon, as Allen admitted at the time, contrary to his testimony
(Tr. 742–744, 1830–1831). Canterbury often worked for one or
more days in coal production on a continuous miner section in
the absence a member of a production crew. On these assign-
ments, he worked under the supervision of Mingo Logan’s
continuous miner foreman, Thomas Foster, James Goins, or
Gerald Mullins—not under a Mahon foreman. He estimated
that this happened about 20 times during his employment. (Tr.
745–749, 765, 779–780.) Goins also assigned Stewart Vint to
operate a shuttle car for about 2 weeks in the Thanksgiving
1993 period (Tr. 1241—1242).
Similarly, as Mahon employee Joseph Turner credibly testi-
fied, Mingo Logan’s continuous miner foremen, Thomas Foster
and Bill Rose, often selected him to work on their crews, some-
times for 2 or 3 days or for a week. When several Mingo Logan
crew members were off on vacation, three or four Mahon em-
ployees would fill in. Contrary to the denials (Tr. 1915–1916,
2115–2116), Turner would sometimes work one day with Fos-
ter and the next with Rose. Anytime “anybody was off on those
two crews they would come and get me most all the time.” (Tr.
860–862.) Sometimes Foster or Rose would ask the Mahon
foreman, “like a ritual or something,” but after Turner began
working on a section, “it’s like automatic . . . They didn’t have
to come and ask [the] Mahon foreman.” (Tr. 872.)
Mahon employee Michael Dillon credibly testified that at the
time of his April 10 layoffs, Mahon’s evening shift foreman,
James Hawkins, was his immediate supervisor, but that Mingo
Logan’s construction/relief foreman, David Cantrell, and assis-
tant shift foreman, Charles McDaniel, were also supervising
him (Tr. 380–381).
After much evasion, Shift Foreman Hawkins reluctantly ad-
mitted that when a Mahon employee filled in for a Mingo
Logan employee on a continuous mining section during the
period 1993 until April 10, 1994, the Mahon employee would
be working “at the direction of and under the supervision of the
Mingo Logan foreman” in Hawkins’ absence (Tr. 2180–2193).
I discredit Mahon Mine Foreman Larry Caldwell’s testimony to
the contrary (Tr. 2231–2234). Both Hawkins and Caldwell
appeared willing on the stand to give fabricated testimony.
On outby power moves (moving up high voltage cable),
Jerry Canterbury worked with Mingo Logan employees under
the supervision of Mingo Logan’s construction/relief foreman,
Gary Acord, and on outby belt moves, under the supervision of
Mingo Logan’s assistant belt foreman, Aubrey Lusk or Orville
Wyant (Tr. 756–760). Mahon employee Kenneth Day (who
quit on April 6 when recalled to another job), also worked on
belt and power moves. When asked who his supervisor was at
the time he quit, he credibly answered: “There was several
different ones. Dave Cantrell [a Mingo Logan construc-
tion/relief foreman] was one of them [and James] Allen [Mingo
Logan’s shift foreman on the evening shift].” (Tr. 432–433.)
During the March 29, 1994 longwall move, as Canterbury
credibly testified, his foreman was Mingo Logan’s construc-
tion/relief foreman, Donald Sparkman (Tr. 454, 462, 465; RML
Exh. 5 p. 2). I discredit Sparkman’s denials (Tr. 1341).
MINGO LOGAN COAL CO. 89
Stewart Vint credibly testified that Mingo Logan’s shift
foreman, Carlos Porter, routinely directed his work on the owl
shift (Tr. 164, 215, 1203–1206, RML Exh. 1 p. 1). Regarding
Mahon employees taking directions from Carlos Porter (as well
as Evening Shift Foreman James Allen), Amon Mahon
claimed, “To my knowledge they haven’t, no. That’s not the
way it was intended to be.” (Tr. 1134.) Amon Mahon did not
impress me as being a candid witness on the stand.
Vint also credibly testified that during the longwall moves,
when Mingo Logan for safety needed experienced Mingo
Logan and Mahon motor operators on the motors, which were
“like a train locomotive,” to move the heavy longwall shields,
he worked under the direction of Carlos Porter and Porter’s
assistant, Charles McDaniel (Tr. 1208–1209). As indicated,
Vint impressed me very favorably on the stand as a truthful
witness. I discredit McDaniel’s and Porter’s denials (Tr. 1169,
1637, 1662–1663). I note that in Vint’s pretrial affidavit, he did
not recognize Mahon foremen as being actual supervisors. Stat-
ing his opinion, he asserted in the affidavit that after the Mahon
bosses were made into Mingo Logan bosses, “Mingo Logan
issues all of the orders.” (RML Exh. 1 p. 2).
Mahon employee James Osborne was hired after Carlos Por-
ter referred him to both Mahon’s manager, Lenville Mahon,
and Mingo Logan’s shift foreman, James Allen. He talked to
them and was hired by Mahon. (Tr. 520.) He was another
Mahon employee who worked as a motor operator moving the
longwall shields on the March 29 longwall move. Mahon em-
ployees Dennis Evans and Joseph Turner also worked on that
longwall move, along with a Mingo Logan crew leader. (Tr.
521, 834, 865.)
After being taken off the longwall maintenance team, Dennis
Evans worked about 6 or 7 months on an outby longwall setup
team (setting up the spare longwall for the next longwall
move). Evans, who appeared on the stand to be a truthful,
trustworthy witness, credibly testified that he worked on Mingo
Logan longwall crew leader Johnnie Gower’s team with Mahon
employee Troy Porter, under the supervision of Mingo Logan’s
longwall move foreman, Delmer Bowman. Other Mingo
Logan and Mahon employees were working together on sepa-
rate longwall setup teams. (Tr. 474–475, 834–837; GC Exh.
38; RML Exhs. 7, 8.) Bowman claimed that he did not “di-
rectly” supervise Evans, except when he was doing something
unsafe (Tr. 1318–1319, 1326–1327).
Mahon employee Rupert Smith, hired in August 1991,
worked on the day shift about 2 years “running [the] parts bus,”
answering to Mingo Logan’s general construction coordinator,
David Terry. In the second year on this job, Smith asked Len-
ville Mahon if he could have a week’s (unpaid) vacation. Len-
ville Mahon “said it’s not up to me, you’ve got to talk to Dave
Terry.” (Tr. 563–564.)
Mingo Logan electrician Gary Amick credibly testified that
between the time he was hired on November 10, 1993, until
April 10, 1994, it was routine on the owl shift for Mahon em-
ployees to be working alongside Mingo Logan employees,
operating equipment. “It was a frequent thing. I mean it was
more [like] every night or every other night.” Amick recalled
that one of the Mingo Logan supervisors who supervised them
was construction/relief foreman, Donald Sparkman. (Tr. 720,
723–725.) He also credibly testified that a “lot of times” when
he was making equipment repairs, Mahon employees assisted
him. He recalled one night when he was adding cable onto a
feeder, Mingo Logan’s construction/relief foreman, Sparkman,
sent two Mahon employees with him “to help us load cable and
load the pinner up on the flat car and bring it back off the
mains.” (Tr. 725–726.) Again I discredit the Sparkman’s deni-
als (Tr. 1342). He did not appeared on the stand to be a credible
witness.
Amick also recalled that “practically every morning” from
November 1993 to April 10, 1994, as he was leaving the owl
shift, he overheard Mingo Logan’s belt foreman, Lowell Cook,
giving instructions to Mahon employee David Massey (Tr.
730–733).
Mahon employee Glen Payne, who worked on the owl shift
from December 1993 to April 10, 1994, credibly testified that
although he worked under Mahon’s shift foreman, David
Lovejoy, Sparkman frequently gave him orders to perform
various tasks. Payne also worked for Mingo Logan’s shift
foreman, Carlos Porter; assistant shift foreman; Charles
McDaniel; and assistant belt foreman, Aubrey Lusk. (Tr. 590,
787–794, 800, 1182–1183.) At the beginning of the owl shift,
after he received instructions from Lovejoy in the Mahon
trailer, “you’d walk up a big set of steps to . . . where you enter
the mine, and a lot of times your job would be changed right
there . . . a lot of times by Mingo Logan bosses” (Tr. 589–590).
At the time of his layoff on April 10, Mahon employee
Ralph Jarrell was working as a general laborer on the owl shift.
When asked “who was your immediate supervisor at the time,”
he credibly answered: “Carlos Porter was the mine foreman,
and Gary Acord [a Mingo Logan construction/relief foreman]
was the boss.” (Tr. 282–283, 309.)
Mahon crew leader David Massey credibly testified that Car-
los Porter or Charles McDaniel would take members of his belt
crew if “a roof bolter, or shuttle car operator, or scoop operator,
whatever” was needed on a coal producing (continuous miner)
section (Tr. 906). He recalled—from notes he made on Lowell
Cook’s January 27 instruction sheet—that Carlos Porter said on
that occasion he was running short-handed, needed a member
of Massey’s belt crew “to help build cribs and set timbers in
another part” of the mine, and took employee Randall Stafford
with him from Massey’s crew (Tr. 916–917; UMWA Exh. 11).
c. Supervision of belt crew on owl shift
(1) Daily instruction sheets
Mahon’s owl shift foreman, David Lovejoy (who did not tes-
tify), played no role in the supervision of the belt crew on the
owl shift. Lowell Cook, Mingo Logan’s belt foreman on the
day shift, assumed full responsibility for supervising that belt
work. (Tr. 40.)
Lowell Cook issued daily written instructions, which were
addressed to Mahon crew leader David Massey and one or two
Mingo Logan outby employees working on the belt crew, with
a copy addressed to Mingo Logan’s owl shift foreman, Carlos
Porter (sometimes to his assistant, Charles McDaniel). Massey
went to the Mingo Logan office to pick up copies, without con-
ferring with Porter. Massey received further instructions,
sometimes including employee assignments, from Cook in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 90
mornings before the beginning of the day shift when Massey
reported on the work done. (Tr. 90–91, 104–108, 111, 145,
886, 906–908.)
Massey saved the instruction sheets (Tr. 142), eight of which
were first introduced in evidence at the representation hearing
(UMWA Exhs. 9–12 and 13A through D) and six additional
ones at the trial (GC Exhs. 5–7, 45–47). The instructions detail
not only what work was to be done, but often how to perform
the work and sometimes which employees were to be assigned.
The August 17, 1993 instruction sheet, addressed to Mingo
Logan outby employees Jack Casteel and Edward Adams and
to David Massey (UMWA Exh. 9), assigns work to new crew
members, stating in item 1A: “There will be 4 men starting
tonight on owl shift. These people need to see Carlos [Porter]
prior to going underground. These people are to work on recov-
ery of the 8RT belt [emphasis added]. Start recovering the short
belt first.” (Tr. 908–910.)
The December 11, 1993 instruction sheet, addressed to
“David Massey (Crew Leader)” and Mingo Logan outby em-
ployee David Booth (UMWA Exh. 13D), shows (in Massey’s
handwriting) that Dave (Booth) worked with Mahon employees
Randy (Randall Stafford) and John (Parsons) in performing the
following work in item 2: “Make a splice on the longwall belt
at 3LT.” (Tr. 928–929, 1780–1781; GC Exh. 38; RML Exh. 8.)
Massey credibly testified: “We was all in the same crew” (Tr.
2306–2307). I discredit Lowell Cook’s denials (Tr. 1773–
1774). By his demeanor on the stand, Lowell Cook appeared to
be a most untrustworthy witness, who was willing to fabricate
any testimony that might help his employer’s cause.
The January 4, 1994 instruction sheet, addressed to Massey
and Mingo Logan outby employees James Evans and Timothy
Bassham (GC Exh. 46), shows that Cook assigned work to
Bassham as a member of the crew, stating in item 2: “Continue
to align the coupling on 8RT A. Must have help from mainte-
nance group. T Bassham.” (Tr. 1794–1797.)
The February 3, 1994 instruction sheet, addressed to Massey,
David Booth, and Timothy Bassham (GC Exh. 45), forbids the
assigning of certain work to Mahon crew members, stating in
item 2: “Mount the fluid coupling on 8LT A. Hubs will need [to
be] place[d] on the shaft. Tim Bassham & 1 maintenance man.
If we do not get help we cannot do the job. Do not use any
beltmen other than Bassham on this job [emphasis added].” (Tr.
1789–1793.)
The February 22, 1994 instruction sheet, addressed to Timo-
thy Bassham and Massey (GC Exh. 5), begins by assigning
overtime work, stating in item 1: “Due to the work load this
week everybody will need to work one of their days off starting
Wednesday [emphasis added].” The remainder of the instruc-
tions illustrate how detailed Lowell Cook’s instructions were:
(2) Take the Belt Drive cement subframes to 25 CC and
unload for the Drive Installation. Unload material neatly on the
work site.
(3) Help move the tail piece at 1LT B inby to Bk 14½. The
chute was made freestanding today. However there will be a
need to place troughs on both sides and a dribble chute. Place
the 42” structure under the chute skin to skin.
(4) We must have two men rolling up 42” belt on the old
Left Mains System. We are out of 42” belt in the yard. Cut the
belt only at splices. Roll up in 400’ lengths. The scoop is in
the face of North Mains, the winder is at 30 CC. Knock out a
stopping across from the spur at 30 CC to get in #3 Entry.
[Mingo Logan’s general mine foreman, Harrison] Blankenship,
said we’ll be able to leave this out until we recover the belt.
Bring rolls of belt outside.
(5) Turn the blade over on 2nd Primary Wiper.
The March 4, 1994 instruction sheet, addressed to Massey
and David Booth (GC Exh. 6), illustrates Lowell Cook’s per-
sonal supervision of the Mahon crew members, stating in item
3: “Who place[d] the rollers in the CC at Booster[?] Whoever it
was need to go back & do the job right. I also want to talk to
these people tomorrow [emphasis added].” (Tr. 65–67.)
The March 8, 1994 instruction sheet, addressed to Massey
and David Booth (UMWA Exh. 10), assigns work to a Mahon
employee, stating in item 3: “Vulcanizer will be here tonight to
start making repairs. Make the splices with ply damage first.
Place Bill McClung on this job.” (GC Exh. 38.) Cook claimed:
“I did not assign him to that job. His talents put him on that
job.” (Tr. 911–915, 1778.)
The March 10, 1994 instruction sheet, addressed to Massey
and James Evans (GC Exh. 47), assigns the same Mahon em-
ployee to two different tasks. In item 1 it states: “Vulcanizers
will be here tonight to make a repair on the 72” South Mains
Belt. Make splice #18 first. Put Bill McClung on this job.” In
item 7 it states: “Fill and run the Duster [for rock dusting] at
Portal. Bill can do this [emphasis added] after the splices get
started.” (Tr. 1798–1799.)
All of the instruction sheets are addressed to one or two
Mingo Logan outby employees as well as to Massey. As indi-
cated, on one of the sheets (dated December 11, 1993, UMWA
Exh. 9), Cook addresses Massey as “Crew Leader”—never as
“Foreman.”
I discredit Cook’s denial that he supervised any Mahon em-
ployee (Tr. 397, 1758).
(2) Status of David Massey
When hired in July 1992 as a general laborer for $12 an hour
installing a 72’ belt, David Massey was already a certified
foreman and emergency medical technician (EMT), with 14
years of mining experience in union mines (Tr. 34). In early
1993 Mingo Logan’s belt foreman Lowell Cook selected
Massey to be the belt crew leader on the owl shift. Massey first
declined, stating “I just wanted to be a belt man.” A day or two
later, however, when Cook told him “it would be like putting
your first step in the door” for getting a Mingo Logan job,
Massey agreed and became a crew leader. Mahon then raised
his wage from $13 to $14 an hour. (Tr. 949–950, 1019–1020.)
A short time later, Lowell Cook told Massey “I think you
need another dollar on the hour. You’re getting all your work
accomplished . . . and I ain’t heard no rumors on you [emphasis
added],” referring to rumors of union support. (There had been
“union talk” in the mine ever since Mingo Logan took over the
operation, Tr. 476, and Mingo Logan foremen had been given a
6-hour training course in opposing union organization, as dis-
cussed later.) As Massey further credibly testified, Lowell
Cook and Massey went to Mahon’s trailer, where Cook told
Lenville Mahon that he thought Lenville Mahon “ought to give
MINGO LOGAN COAL CO. 91
me another dollar on the hour pay raise so that’s when I went
up to $15 an hour.” (Tr. 35, 950–951).
Massey’s March 19, 1993 application for employment by
Mingo Logan shows that by that date, his wage rate had already
been raised to $15 an hour and that his job title was still “Crew
Leader on 72” belt work” (RML Exh. 2 p. 4).
Massey (who impressed me most favorably as a truthful, sin-
cere witness by his demeanor on the stand) credibly testified
that he was never told by any Mingo Logan or Mahon supervi-
sor that he was a foreman and that Amon Mahon never referred
to him as a foreman (Tr. 2303–2304). A contemporary list of
the 29 persons employed by Mahon on the owl shift in Decem-
ber 1993 or January 1994, names only two foremen, Jim Auxier
and David Lovejoy. Massey is named first in the list of nine
employees under “Belts,” indicating his status as belt crew
leader. (Tr. 968–969, 1270–1271; GC Exh. 37.) Also, as dis-
cussed above, Lowell Cook named Massey on the December
11, 1993 instruction sheet (UMWA Exh. 13D) as “David
Massey (Crew Leader).”
The evidence is clear that neither Mingo Logan nor the
Mahon employees regarded Massey as a foreman. A Mahon
shift foreman joined Mingo Logan foremen in the foremen’s
assembly area before the beginning of each shift to discuss the
work to be done, but Massey was not invited to attend on the
owl shift. Like Mahon employee Troy Porter, who went to the
Mingo Logan office to pick up orders for his outby longwall
setup crew, Massey picked up the instruction sheets there for
the belt crew. (Tr. 100, 474, 1731, 889–890, 1964–1965.)
When Lowell Cook told Massey that two belt crew members
had not adequately serviced a belt head that went down 2 days
later, as Massey credibly testified, he responded, “I can’t do
nothing about it, they told me they serviced it.” Cook said
“we’re going to have to do something to discipline them.”
Massey then responded: “Tommy, I can’t do that . . . that’s
your job . . . I’m just a crew leader.” Cook then said “I’ll get
with [Lenville Mahon] and we’ll make up a paper and get [the]
two boys to sign it.” (Tr. 2340.)
When Massey presented this disciplinary paper to the two
employees, both employees refused to sign it, one telling
Massey that “you ain’t no more a boss than a man in the moon
. . . you’re just my crew leader and you’re a worker just like we
are.” (Tr. 2339–2341). I discredit the denial and the contrary
account of what happened by one of the two Mahon crew
members, Kenneth Evans, who since then has been hired by
Mingo Logan (Tr. 2331–2338; RML Exh. 8 p. 2). On another
occasion Cook informed Massey how to draft a training state-
ment showing that Massey (as a certified foreman) had trained
employees on servicing a belt head. Massey reported back to
Cook that an employee refused to sign it. (Tr. 123–127; RM
Exh. 1.)
I find that Mingo Logan and Mahon, in contending they were
not joint employers, fabricated claims that Massey was a fore-
man and supervisor (Tr. 101–102).
After claiming that Massey was “our third shift belt fore-
man” in the first quarter of 1994, Amon Mahon admitted that
there are no payroll records designating Massey as a foreman,
that he does not recall ever telling Massey he was designated a
foreman, that he has no personal knowledge that anybody else
ever told him, and that Massey never referred to himself as a
foreman. Amon Mahon testifies that his rate for a crew leader
was $13 an hour, or on occasion $14 an hour if someone “had
foreman papers,” and claims that “when [Massey’s] pay
changed to $15 a hour, that would have been the time he be-
came the foreman.” (Tr. 2036–2037, 2058–2060, 2066). To the
contrary, as found above, Massey’s March 19, 1993 application
for employment by Mingo Logan shows that by that date, his
wage rate had already been raised to $15 an hour, but his job
title was still “Crew Leader on 72" belt work” (RML Exh. 2 p.
4).
It is undisputed, as Massey credibly testified, that when
Massey and others went to Amon Mahon’s office to ask ques-
tions after the April 10 layoffs, Amon Mahon “looked at me
and he said I . . . [knew] a lot about everything in the mines and
was one of the best workers”—nothing about his being a fore-
man (Tr. 59–60).
Lenville Mahon claims that Massey “was our belt foreman,”
but does not claim that he ever told Massey. He does deny the
credited testimony that Lowell Cook in Massey’s presence
requested that Massey get a dollar an hour raise. (Tr. 2141–
2142.) I discredit his denial.
Lowell Cook claims that both Massey and Lenville Mahon
told him that Massey would be a foreman. He denies telling
Massey that if he would take the crew leader job, it could be the
first step to getting hired directly by Mingo Logan. He denies
that he had anything to do with Massey securing a raise and
that he recommended it. (Tr. 1732–1733, 1760, 1804.) After
being shown his December 11, 1993 instruction sheet listing
Massey as a crew leader, Lowell Cook testified (Tr. 1780–
1781):

Q. Now you keep on characterizing David Massey as a
foreman. David Massey was, in fact, a crew leader was he
not?
A. He was the foreman.
Q. Despite the fact that you call him a crew leader.
A. I didn’t call him a crew leader [emphasis added].
Q. That is, in fact, your handwriting [on the instruction
sheet], isn’t it, sir?
A. It appears to be.
Q. You’re saying you didn’t call him a crew leader but
you designated him as a crew leader on this particular
sheet, correct?
A. He’s the foreman. Crew leader, foreman, they’re
the same [contrary to Amon Mahon’s testimony (Tr.
2036–2037)].

There is no credible evidence that Massey had any supervi-
sory authority as crew leader of the Mahon employees on the
belt crew. He credibly testified that he worked “just as hard” as
the others, usually on “the hardest . . . most dangerous” jobs. In
assigned the work to the Mahon crew members, he followed the
oral and written instructions from Lowell Cook and huddled
with his crew members at the beginning of the shift in making
the other assignments—taking into consideration who were
riding to work together. (Tr. 106, 144–145, 154–155, 902, 913.)
I find that Massey’s assignments of the general laborers on the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 92
belt crew were merely routine, not requiring the use of inde-
pendent judgment (GC Exhs. 37, 38).
Massey credibly testified that he and the Mingo Logan em-
ployee or employees on the instruction sheet had the responsi-
bility for overseeing that the work on the owl shift was done.
“I’d usually check to make sure everything was all right,” walk-
ing by to “see how they’re doing,” but “It was too big a list for
one man to try to track down.” Massey did not direct or disci-
pline the crew members. He as well as Mingo Logan employees
on the belt crew reported to Lowell Cook before the day shift
what work had been done. (Tr. 89, 106–108, 111–113, 148–
149, 902–904, 907, 2312.) When Mingo Logan outby em-
ployee Timothy Bassham (a certified mine foreman) was in his
crew, Bassham “would always make the big decisions on the
main jobs that was critical because . . . like I told them I ain’t
had my bossing papers long and . . . I can’t make calls on shots
like that and take a chance of getting somebody hurt” (Tr. 961).
I discredit, as fabricated, the testimony that Massey was a
supervisor.
d. Contentions and findings
Largely ignoring the credited evidence detailed above, show-
ing the extent to which Mingo Logan supervised and directed
Mahon employees, Mingo Logan contends in its brief (at 31–
32) that its “occasional and sporadic supervision and direction
of Mahon employees is simply insufficient under appropriate
Board law” for establishing a joint employer status.
In making this contention in its brief (at 26–27), Mingo
Logan primarily relies on the Board’s decision in Island Creek
Coal Co., 279 NLRB 858, 864 (1986), which I find is inappo-
site. Mingo Logan erroneously represents in the brief (at 27)
that in that case, there were “numerous occasions when [mine
operator] Island Creek supervisors [emphasis added] directed
the work of [labor contractor] L&M employees by telling them
what areas they were to work in, and giving them routine direc-
tions and work instructions [more] than this record reflects.”
To the contrary, the Board in that case affirmed findings by
the administrative law judge, who cited examples of instruc-
tions and assignments by Island Creek “engineers” (not super-
visors) and found that “This type of instruction to the L&M
crew was not supervisory instruction in the normal sense [em-
phasis added].” The judge further found that Island Creek offi-
cials’ telling L&M employees who operated hydroseeding
equipment “what areas were to be seeded,” then leaving “to the
employees to perform in a competent and professional manner
. . . is merely routine directions” and “do not in any sense make
the . . . officials supervisors [emphasis added] of the L&M
personnel.”
The other Board decision upon which Mingo Logan primar-
ily relies in its brief (at 26–29) is in Martiki Coal Corp., 315
NLRB 476, 477–478 (1994), which I also find is inapposite. In
that case, as here, (mine owner) “Martiki supervisors had man-
aged and directed the work of [labor contractor] Charles Clear-
ing employees on a regular and substantial basis.” The Board
held that Charles Clearing and Martiki were joint employers,”
but that before the relevant time period, Martiki “effectively
severed the joint-employer relationship.” Among other
changes, “Martiki supervisors ceased giving instructions [em-
phasis added] to Charles Clearing employees.”
Clearly, Mingo Logan did not cease supervising and direct-
ing Mahon employees before the critical period in this case,
from January through April 10, 1994. As found:

Mingo Logan’s Belt Foreman Lowell Cook was still
assuming full responsibility for supervising Mahon crew
leader Davis Massey and other Mahon employee members
of the outby belt crew working with Mingo Logan em-
ployees on the owl shift.
Mingo Logan’s Longwall Move Foreman Delmer
Bowman was still supervising Mahon employees working
with Mingo Logan employees on the outby longwall setup
teams.
Mingo Logan’s Longwall Move Foreman Bowman,
Shift Foreman Carlos Porter, Assistant Shift Foreman
Charles McDaniel, and Construction/Relief Foreman Don-
ald Sparkman were supervising Mahon employees work-
ing with Mingo Logan employees on the March 29, 1994
longwall move.
Mingo Logan’s Construction/Relief Foreman Gary
Acord was still supervising Mahon employee Jerry Can-
terbury on outby power moves.
Mingo Logan’s Assistant Belt Foremen Aubrey Lusk
and Orville Wyant were still supervising Mahon employee
Jerry Canterbury on outby belt moves.
Mingo Logan’s Evening Shift Foreman James Allen
and Construction/Relief Foreman David Cantrell were still
supervising Kenneth Day when he quit on April 6.
Mingo Logan’s Construction/Relief Foreman David
Cantrell and Assistant Shift Foreman Charles McDaniel
were still supervising Mahon employee Michael Dillon,
even though Mahon’s Shift Foreman James Hawkins was
his immediate supervisor.
Mingo Logan’s Shift Foreman Carlos Porter, Assistant
Shift Foreman Charles McDaniel, Assistant Belt Foreman
Aubrey Lusk, and Construction/Relief Foreman Donald
Sparkman were still supervising Mahon employee Glen
Payne, even though he was working under Mahon’s Shift
Foreman David Lovejoy.
Mingo Logan’s Shift Foreman Carlos Porter and Con-
struction/Relief Foreman Gary Acord were still supervis-
ing Mahon employee Ralph Jarrell.

Although Mingo Logan supervisors were still supervising
these Mahon employees on outby work as well as on some inby
work on the March 29, 1994 longwall move (contrary to the
December 23, 1992 “Construction Work Agreement,” which
provided that Mahon shall “direct” and “supervise” its own
employee), Mingo Logan contends that here, as in Martiki Coal
Corp., supra, the joint-employer relationship had been “effec-
tively severed” before the January–April 10 period.
To make this contention, Mingo Logan simply ignores its
continued supervision of Mahon outby work. It first points out
in its brief (at 22) that “by the summer of 1993, the Mahon
employees [Dennis Evans and Stewart Vint] had been moved
off the [inby] longwall maintenance crew.” It then makes the
unfounded argument: “By the time of the events alleged in the
MINGO LOGAN COAL CO. 93
complaint occurred, the Mingo Logan employees were doing
all the [inby] production [emphasis added] work.”
To support this argument, Mingo Logan cites its mine super-
intendent’s, Clifton Frye, testimony (Tr. 1514). Frye testified
that the substitution of Mahon employees on production sec-
tions for absent Mingo Logan employees “occurred more of-
ten” in 1992 and the first part of 1993, but claimed that by
1994, “it pretty much [emphasis added] wasn’t occurring. If it
did . . . it was almost minute. I don’t remember it occurring
then.” To the contrary, Mahon’s shift foreman, James Haw-
kins, admitted that when a Mahon employee filled in for a
Mingo Logan employee on a continuous mining section until
April 10, the Mahon employee would be working under the
supervision of the Mingo Logan foreman (Tr. 2193). Mahon
employee Buddy Maynor credibly testified that when he was
laid off on April 10, he was occasionally doing inby production
work “to help out if somebody was off” (Tr. 321).
Mahon contends in its brief (at 6) that “to the extent that
Mahon employees ever performed” some production work, it
ceased after 1993. In support of this contention, Mahon errone-
ously represents that President Amon Mahon’s testified (Tr.
2052) that Mingo Logan’s administrative services director,
James Mooney, “reminded” Amon Mahon in late 1993 that “no
Mahon employee [emphasis added] was to work as a substitute
for any Mingo Logan employee on a production unit.” Instead,
Amon Mahon testified that Mooney said “he simply did not
want it to happen again and wanted my timesheets to be done in
such a way that . . . if they did occur . . . that I had to report it to
him.” (Tr. 2052, 2073–2079; LM–6.)
I reject Mingo Logan’s contention that by the time of the
February-April period, “the Mingo Logan employees were
doing all the production work.” I reject Mahon’s contention
that all production work by Mahon employees ceased after
1993.
I further find that even if no Mahon employee was perform-
ing any inby production work in the January-April period, this
change in the previous practice did not effectively sever any
joint-employer relationship. As found, Mingo Logan’s supervi-
sors were still supervising Mahon employees in the perform-
ance of outby work—contrary to the facts in Martiki Coal
Corp., supra, in which the Board found that “Martiki supervi-
sors ceased giving instructions [emphasis added] to Charles
Clearing employees.”
2. Codetermining essential conditions of employment
a. Labor contract as subterfuge
On December 23, 1992, about 11 months after Mingo Logan
took over the operation of the Mountaineer mine, it signed with
labor contractor Mahon a so-called “Construction Work Con-
tract,” which obviously was not intended to reflect the actual
relationship between Mingo Logan and Mahon and the actual
practice in the mine at that time.
In early 1992, as discussed above, Mingo Logan had found
“a lot of disorder going on” in the mine because of two man-
agement groups, one Mahon and one Mingo Logan. Its solution
was to bring “all the management group under one roof,” to
better direct the work force of Mingo Logan and Mahon em-
ployees. It hired Mahon’s general mine foreman, James Allen,
on February 26, 1992, as a Mingo Logan shift foreman. It next
hired David Terry, who had succeeded Allen as Mahon’s gen-
eral mine manager, to serve as its general construction coordi-
nator with Mahon. It also hired from Mahon’s staff, as assis-
tant shift foremen, Charles McDaniel and Henry Shaffer.
Mingo Logan then, as found, exercised full control over the
work Mahon employees would perform. Each week it deter-
mined not only the type of work and the number of Mahon
employees, but also the Mahon employees’ required skills. Its
foremen would meet with the Mahon shift foreman at the be-
ginning of each shifts and inform him how the work would be
divided between Mahon and Mingo Logan employees. Some
Mahon employees worked in separate groups under a Mahon
foreman or crew leader; others worked alongside Mingo Logan
employees on inby and outby work, under the supervision of
Mingo Logan foremen. After the Mahon shift foreman as-
signed Mahon employees in the separate groups, Mingo Logan
foremen would often reassign selected Mahon employees as
needed to work with Mingo Logan employees under Mingo
Logan supervision. Mingo Logan’s belt foreman, Lowell Cook,
assumed full responsibility for supervising the owl shift belt
crew, consisting of a Mahon crew leader and other Mahon em-
ployees, working with Mingo Logan employees.
In early fall of 1992, several months before Mingo Logan
and Mahon signed the December 23, 1992 “Construction Work
Contract,” the longwall operation began. Coordinator David
Terry admitted that Mingo Logan then increased its use of
Mahon employees on production crews for the remainder of
1992 and early 1993. He claimed it was because Mingo Logan
was not able to hire a sufficient number of employees. (Tr.
1674.)
In fact, there were many skilled, experienced unemployed
union miners being hired by Mahon. Amon Mahon admitted
that 80 percent or more of his employees had worked in union
mines (Tr. 1076). Mingo Logan was reluctant to hire them di-
rectly. As an example, Mingo Logan refused to hire Dennis
Evans, an unemployed union miner, even though he had 14 or
15 years experience, had an associates degree in mining tech-
nology, and could run “practically any underground mine ma-
chinery” (Tr. 469). Instead (as Evans credibly testified) Mingo
Logan’s longwall superintendent, Earl Cooke, after interview-
ing Evans, “told me that he would introduce me to another man
and that if this man hired me that I would [have] my foot in the
door to get a job with” Mingo Logan. Then, as found, Cooke
introduced him to Lenville Mahon, who hired him on June 9,
1992.
On December 23, 1992, when the labor contract was
signed—providing that Mahon shall “direct” and “supervise”
its own employees—Dennis Evans had been working full time
for months on a Mingo Logan inby longwall maintenance team,
doing maintenance and sometimes production work under
Mingo Logan supervision. Mingo Logan continued to assign
Evans to perform this inby work for several more months,
along with Mahon employee Stewart Vint. Further disregard-
ing the provisions of the labor agreement, Mingo Logan was
assigning work to Mahon employees on Mingo Logan’s con-
tinuous miner production teams, as well as on its outby con-
struction teams, under Mingo Logan supervision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 94
Section 9 of the labor agreement provides that Mahon not
only “shall employ, direct, supervise, discharge, and fix the
compensation and working conditions of its employees,” but
also “shall be solely and exclusively responsible for and shall
exercise complete control of its employees in all matters, dis-
putes, or grievances arising out of, or in anyway, connected
with its work under this Agreement” (ML Exh. 3 p. 10).
After considering the codetermining by Mingo Logan and
Mahon of the assignment, direction, and supervision of Mahon
employees, as well as the codetermining of other conditions of
their employment as described below, I find Mingo Logan
signed the so-called “Construction Work Contract” in part as a
subterfuge, to prevent the finding of a joint-employer relation-
ship with Mahon.
b. Conditions of employment
Besides the assignment, direction, and supervision of Mahon
employees, the evidence reveals that Mingo Logan and Mahon
codetermined other conditions of employment.
Hiring of employees. The labor contract provides that Mahon
shall employ its own employees. As a practical matter, how-
ever, it hired union miners when referred by Mingo Logan. It
had no incentive for refusing to hire these referred employees,
inasmuch as Mingo Logan would compensate it for hours
worked. Mingo Logan was reluctant to directly hire unem-
ployed union miners and wanted Mahon to place them on its
payroll. This would enable Mingo Logan to have the services
of these skilled, experienced coal miners, at lower wages, while
screening them to add to its nonunion work force. (Tr. 520–
521, 742–743, 810, 1455–1456; GC Exh. 34.)
Promotions. In early 1993, as found, Mingo Logan’s belt
foreman, Lowell Cook, selected Mahon employee David
Massey to be the belt crew leader on the owl shift, telling him
that taking the added responsibility “would be like putting [his]
first step in the door” for a Mingo Logan job. Massey agreed to
serve as crew leader, and Mahon raised his wage from $13 to
$14 and hour. A short time later, Cook complimented
Massey’s work and told him “I ain’t heard no [union] rumors
on you.” (As found, there had been “union talk” in the mine
ever since Mingo Logan took over the operation, and Mingo
Logan foremen had already been given a 6-hour training course
in opposing union organization.) As Cook suggested, Mahon
gave Massey another raise from $14 to $15 an hour.
Preventing Promotions. Mahon had a policy of promoting
general laborers to operators when they operated mining
equipment, raising their pay from $12 to $13 an hour. But
when Mahon general laborer Joseph Turner was operating
equipment most of the time and asked Lenville Mahon for a
raise, Lenville Mahon said “it wasn’t up to him to give a raise,”
that “Mingo Logan only allowed them to have so many opera-
tors.” (Tr. 221–222, 867–868.) Amon Mahon testified that he
set the wages of employees and that his rate for equipment
operators was $13 an hour, and claimed that Mingo Logan had
no “authority or control over that process.” He earlier admitted,
however, that at the time of the April 10 layoffs, three Mahon
employees were doing “operator type work” and were being
paid only $12 an hour because “I just didn’t have the room to
pay them” $13. (Tr. 1061, 1094–1095, 2036; Mahon brief at
17.)
Rotating Shifts. Mahon employee Stewart Vint credibly testi-
fied that when he asked Mingo Logan’s general construction
coordinator, David Terry, why Mahon employees were being
rotated to the day shift, Terry explained that “some Mahon
employees were complaining” and “the way he was going to
settle that argument” was to rotate them “with Mingo Logan
employees” (Tr. 1229, 1279–1280). I discredit Terry’s denial
that this conversation occurred. He also denied having author-
ity to have Mahon employees to rotate, but admitted on cross-
examination that “Somebody with Mingo Logan had the au-
thority.” (Tr. 1678, 1704–1705.)
Changing Schedules. In the last quarter of 1993 when
Mingo Logan began rotating Mahon employee with its employ-
ees, Mingo Logan’s belt foreman, Lowell Cook, adjusted the
schedule and, at the request of Mahon employee Tim Casto,
permitted him to stay on the evening shift. Cook, instead of
Mahon, “picked the guys to be in each group.” (Tr. 945, 998.)
I discredit Cook’s denials (Tr. 1757–1758).
Workweek. Mingo Logan caused Mahon to change its work-
week. Mahon had a large turnover of employees, working for
the lower wages and benefits. As President Amon Mahon ad-
mits, he “had discussions continually with people like [Mingo
Logan Administrative Director, James] Mooney and [Mine
Superintendent Clifton] Frye, always to try to hang onto as
many people and . . . to add as many people as possible.” There
came a time, however, in May 1993 (after the completion of
much of the mine’s infrastructure) when “it looked like that I
was going to be forced to reduce people, but from my conversa-
tions with Mr. Mooney and Mr. Frye, they got in their mind set
that they needed X amount of people at the mines each day.”
Amon Mahon therefore changed the workweek, reducing the
Mahon employees’ scheduled working days from 6 days on and
1 day off, to 6 on and 2 off—allowing him to keep 25 percent
of the work force home and “have flexibility in case of absentee
or someone off.” (Tr. 2055, 2112; RML Exh. 5.)
Overtime. Mahon employee Stewart Vint credibly testified
that he was required to work overtime, either by Mahon or by a
Mingo Logan supervisor, “it just depended on what job I was
doing.” He recalled that when he worked overtime on the
longwall maintenance crew, Mingo Logan’s longwall mainte-
nance foreman, Alvin Jewell, told him he had to work overtime
on those occasions. (Tr. 1243.)
Also as found, Mingo Logan’s shift foreman, James Allen,
asked Mahon employee Dennis Evans to work on December
31, 1992. “They had to change a head drive out on the long-
wall and they needed extra workers” (Tr. 817). As further
found, Mingo Logan’s belt foreman, Lowell Cook, began his
February 22, 1994 instruction sheet to Mahon and Mingo
Logan employees on the owl shift belt crew with the assign-
ment of overtime, stating in item 1: “Due to the work load this
week everybody will need to work one of their days off starting
Wednesday.”
Required Skills. Mingo Logan not only determined the work
to be performed by Mahon employees in the mine, as its Mine
superintendent, Clifton Frye, testified, but it also determined
their required skills (Tr. 1476).
MINGO LOGAN COAL CO. 95
Time Off. Mahon employee Rupert Smith credibly testified,
as found, that after working about 2 years “running [the] parts
bus,” answering to Mingo Logan’s general construction coordi-
nator, David Terry, he asked Lenville Mahon if he could have a
week’s (unpaid) vacation. Lenville Mahon “said it’s not up to
me, you’ve got to talk to Dave Terry.”
Discipline. Although Amon Mahon testified that he had con-
trol over the decisions about the discipline of Mahon employees
(Tr. 2035), Mingo Logan monitored the work and decided
when disciplinary action must be taken. As an example, Mahon
employee Jerry Canterbury credibly testified about an incident
when he was changing batteries on a motor and the uncoupled
rock duster started rolling. He could not stop it and the rock
duster hit some air-lock doors. Lenville Mahon called him on
his day off and said that Mine Superintendent Clifton Frye
“was upset over the doors getting hit” and “thought some disci-
plinary action needed to be taken.” Without giving Canterbury
an opportunity to the heard, Mahon recognized Frye’s message
as a directive and gave him a 3-day suspension. (Tr. 768–769.)
On another occasion Mingo Logan’s belt foreman, Lowell
Cook, “was upset” and complained to Amon Mahon “that we
weren’t adequately performing our job” because two Mahon
employees in crew leader David Massey’s belt crew had not
adequately serviced a belt head that went down 2 days later.
Although Massey “didn’t think it was a fair assessment,” a
disciplinary letter was prepared for the employees’ files. (Tr.
2061–2064, 2340–2341.)
Lowell Cook’s March 4, 1994 instruction sheet to David
Massey’s belt crew shows that Cook handled a disciplinary
matter himself. As found, Cook not only asked “Who place[d]
the rollers in the CC at Booster[?]” and stated, “Whoever it was
need to go back & do the job right.” He then added on the in-
struction sheet, “I also want to talk to these people tomorrow.”
Wage Rates. I find that Mingo Logan effectually controlled
the compensation of the Mahon employees by limiting
Mahon’s reimbursements to $12 an hour for general laborers,
$13 for operators and crew leaders, and $15 for foremen, fire-
bosses, and electricians, plus an undisclosed contracting fee
(redacted from the contract in evidence). This contracting fee
was large enough to compensate Mahon for such employer
expenses as workers compensation, but for no fringe benefits
except “limited health insurance and minimal life insurance.”
The fee was also large enough to permit Mahon to pay certain
amounts above the $13 and $15 reimbursements, such as
$15.50 for Mahon’s shift foremen, James Hawkins and David
Lovejoy, on the evening and owl shifts and $16 to Mahon’s
mine foreman, Larry Caldwell, on the day shift. (Tr. 1051–
1053, 1147–1148, 1904–1906, 2036–2037, 2042, 2060, 2102;
ML Exh. 3; Mahon brief at 20, 64.)
The extent of Mingo Logan’s control over the Mahon em-
ployees’ compensation is shown by its limitation on the number
of employees in classifications above general laborer. As
found, Amon Mahon admitted that three Mahon employees
being paid $12 as general laborers at the time of the April 10
layoffs were actually working in a $13 operator classification,
but they were not promoted because he “just didn’t have room”
(in the allotted number of operators authorized by Mingo
Logan).
The evidence shows that the total cost to Mingo Logan for
the Mahon contract employees was about $6 lower than the
total cost of employees on Mingo Logan’s payroll.
Mingo Logan paid a minimum of $18 and maximum of $19
for its underground employees and provides them with 10 or
more days a year vacation, 10 holidays, medical and dental
insurance, life insurance, attendance bonus, bereavement pay,
retirement plan, and 401(k) plan (Tr. 1590–1591). The average
total labor costs for Mingo Logan employees (not supervisors)
was over $29 an hour (Tr. 1879, 2129–2130). The evidence
does not reveal what the average would be if the supervisors
were included.
Mingo Logan Administrative Director James Mooney calcu-
lated that in the first quarter of 1994, Mingo Logan paid Mahon
an average amount of $23.69 an hour for all its employees and
supervisors, including overtime (Tr. 2133).
3. Concluding findings of joint employers
The Board has long followed the standard set out in TLI,
Inc., 271 NLRB 798 (1984), for determining joint employer
status. There the Board held, as found in NLRB v. Browning-
Ferris Industries, 691 F.2d 1117 (3d Cir. 1982), that “where
two separate entities share or codetermine those matters gov-
erning the essential terms and conditions of employment, they
are to be considered joint employers for purposes of the Act”
(emphasis added). The Board further held, citing its decision in
Laerco Transportation & Warehouse, 269 NLRB 324 (1984),
that “to establish such status there must be a showing that the
employer meaningfully affects matters relating to the employ-
ment relationship such as hiring, firing, discipline, supervision,
and direction” (emphasis added).
Apart from other conditions of Mahon employees’ employ-
ment discussed above, I find that Mingo Logan meaningfully
affected the hiring, discipline, supervision, and direction of the
Mahon employees and that Mingo Logan and Mahon were their
joint employers. Whether Mingo Logan also meaningfully
affected the firing (or unlawful layoff) of Mahon’s employees
is a separate question, discussed later.
C. Extensive Interrogation and Threats
1. By Mingo Logan supervisors
Mingo Logan stated in a position letter on June 6, 1994, that
it “denies each and every allegation” that “certain Mingo Logan
supervisors made statements to Mahon employees in violation
of the Act” (GC Exh. 42 p. 7). At the trial, despite the credible
evidence that Mingo Logan supervisors engaged in extensive
coercive interrogation and threats of Mahon employees during
the organizing campaign in 1994 before the April 10 layoffs, a
number of its supervisors were prepared to support Mingo
Logan’s position at the trial and categorically deny that this
coercion occurred. One of them was Lowell Cook.
Belt Foreman Lowell Cook. Mahon crew leader David
Massey credibly testified that Lowell Cook repeatedly interro-
gated him about whether he signed a union card (Tr. 44, 52–
53), asked him how many cards he thought were signed (Tr.
53–55), informed him that if they found out who signed union
cards they would never be considered to be hired by Mingo
Logan (Tr. 45, 55), instructed him to tell the employees work-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 96
ing for him on the belt crew that their jobs would be “on the
line” (laid off or fired) if the Union came in (Tr. 40), said that
he and his workers ought to put “Just Say No” stickers on their
hats (Tr. 41), and told him they should not sign union
authorization cards (Tr. 42). Cook also said Massey should not
associate with Mingo Logan electrician Gary Amick because
Amick “was out passing union cards around trying to get them
signed” and was going to get “a lot of people in trouble” and
that if Massey did associate with Amick, he “could take a
chance of losing” his job (Tr. 52, 80).
Massey made notes on the back of some of Cook’s instruc-
tion sheets about what Cook told him. On the February 22,
1994 instruction sheet (Tr. 62–65; GC Exh. 5), for example,
Massey wrote: “Tommy [Lowell Cook] told me to inform men
their jobs on line if Union comes in. Put Say No stickers on.”
On the March 29, 1994 sheet (Tr. 68–69; GC Exh. 7A), Massey
wrote: “Tommy asked me how many I think sign[ed] cards for
Gary Amick. [H]e would get lot of people in Big Trouble.
Signing cards could lose job. Mahon would be gone for good.”
Mahon employee Dennis Hall credibly testified that in Feb-
ruary when he and other Mahon employees were wearing union
stickers on their hard hats Lowell Cook walked up and said,
“Boys, I’d take them off . . . it might cause you problems and
hurt your chances to get a job” with Mingo Logan (Tr. 424–
425). Mahon employee Harold Bryant credibly testified that
the day after he stopped wearing the union sticker, Lowell
Cook told him, “I see you took your sticker off your hat.” Cook
added that “there is no way with that sticker on [Bryant’s] hat”
that he would get a job with Mingo Logan. (Tr. 336, 339–341.)
Mahon employee Dennis Evans credibly testified that after
he signed his union card on February 6 Lowell Cook told him
and Mingo Logan crew leader Johnnie Gower that if the Union
goes in Mahon “would go off the hill immediately” and “it was
possible that they would go to Sharkey Hollow and reset up a
new portal” (Tr. 489–490). Similarly, Mingo Logan electrician
Gary Amick credibly testified that around April 1 Lowell Cook
told him that “before they would allow the Union to come in
they would shut [the mine] down and reopen another portal
around the hill and hire new employees” (Tr. 263–264, 272).
When called as a defense witness, Lowell Cook followed his
pattern of testifying whatever might help his employer’s cause
and denied virtually all of this credited testimony, although he
did admit report seeing the union decals on three employees’
caps (Tr. 1740–1753). Having found that Cook by his de-
meanor on the stand appeared to be a most untrustworthy wit-
ness, I discredit his denials and find that Cook engaged in coer-
cive conduct, violating Section 8(a)(1) of the Act, by

(a) His repeated interrogations of David Massey about his
and other Mahon employees’ signing union cards.
(b) His threat to Dennis Evans that if the Union comes in,
Mingo Logan would immediately remove Mahon from the
mine and possibly open a new portal at Sharkey Hollow.
(c) His threat to Gary Amick that Mingo Logan would shut
the mine down and reopen another portal with new employees.
(d) His informing Massey that if Mingo Logan found out
who signed union cards, they would never be considered to be
hired by Mingo Logan.
(e) His instructing Massey to tell the belt crew employees
that their jobs would be “on the line” if the Union came in.
(f) His informing Massey that he and his crew members
should put antiunion “Just Say No” stickers on their hard hats.
(g) His informing Massey that the employees should not sign
union authorization cards.
(h) His informing Massey that he should not associate with a
Mingo Logan employee who was passing around union cards
and take a chance of losing his job.
(i) His threatening employees wearing union stickers on their
hard hats with unspecified reprisals and loss of chances for
permanent jobs with Mingo Logan.
General Mine Foreman Harrison Blankenship. Mahon em-
ployee Rupert Smith credibly testified that after he signed a
card on February 7 Harrison Blankenship approached and said
“he heard that I had signed a union card,” that “I better watch
my guard,” that “the only people that would benefit [from the
Union] would be the older guys there,” and that “if it went un-
ion that Ashland Oil would shut it down . . . and open up an-
other portal—[at] Starkey or Sharkey, or whatever the name of
it is.” (Tr. 550–554, 558–560, 565–568).
Blankenship, who gave much evasive and contradictory tes-
timony about his knowledge of the organizing campaign in the
mine (Tr. 1981–1984), categorically denied that “any such
conversation” took place (1968–1970). I discredit the denial
and find, as alleged, that he threatened mine closure, violating
Section 8(a)(1).
General Construction Coordinator David Terry. Mahon
employee Truman Cameron credibly testified that in March,
David Terry came up and asked whether he would work nonun-
ion if Mingo Logan gave him a job and then asked why he sup-
ported the Union (Tr. 513–514). As discussed later, Terry
claimed that no, “I was not aware” that an organizing campaign
was going on, although he later admitted he had heard about an
organizing attempt and that he was wearing a “Just Say No”
sticker on his hard hat (Tr. 1700, 1702). He categorically de-
nied that the conversation occurred (Tr. 1677–1678). I dis-
credit the denial and find, as alleged, that Terry coercively in-
terrogated Truman Cameron, violating Section 8(a)(1).
Shift Foreman Carlos Porter, Assistant Shift Foreman
Charles McDaniel, and Construction/Relief Foreman Donald
Sparkman. Mahon employee Stewart Vint credibly testified
that these three Mingo Logan supervisors interrogated him
about the Union. Both Carlos Porter and Donald Sparkman
asked him who had signed union cards and who the union lead-
ers were. When Vint answered he did not know, each of them
said that if Vint found out anything to let him know. (Tr. 176–
177, 186–187, 213–215; RML Exh. 1 p. 1.) Porter’s assistant
Charles McDaniel asked Vint if he knew who were involved
and who were signing union cards, then warned that “if you get
involved you better watch your back because it will mean your
job” (Tr. 182–183; RML Exh. 1 p. 2).
Two other Mahon employees credibly testified about Spark-
man’s coercive conduct. Ralph Jarrell testified that Sparkman
told him that “if they find out you sign union cards you’re go-
ing to be gone” and also that “they [knew] some of the people
had signed union cards, and they were in trouble” (Tr. 295–
296). Glen Payne credibly testified that on March 22 just after
MINGO LOGAN COAL CO. 97
he handed back his union card to Mingo Logan electrician
Robert Weaver, who witnessed his signature, Sparkman called
him over and said “you better stay away from that guy
[Weaver], he’s trouble, he’ll get you in trouble” (Tr. 595–597).
All three supervisors (Porter, McDaniel, and Sparkman)
categorically denied engaging in this conduct, relying on 6
hours of TIPS training they received a year earlier in January
1993, given by Mingo Logan Trial Counsel Forrest Roles and
by Mahon Trial Counsel George Oliver (then in Roles’ law
firm) (Tr. 1163–1165, 1336, 1338, 1340–1341, 1347–1356,
1570, 1637–1638, 1712, 2002–2003).
Although the well-known TIPS training (no Threats, Interro-
gation, Promises, or Spying) is designed to assist an employer
in opposing union organization by providing do’s and don’ts of
the labor law, Mingo Logan’s mine superintendent, Clifton
Frye, claimed, “I don’t remember if it had anything [to do] with
the Company being organized” (Tr. 1572).
To the contrary, Charles McDaniel testified that it was train-
ing “about what you can and cannot talk about with employees
if there’s an organizing drive [emphasis added]” (Tr. 1165).
McDaniel claimed, however, that he was absolutely sure “there
was nothing [said] about keeping the Union out” (Tr. 1176–
1177), and Carlos Porter claimed “Not that I can recall” was
there any discussion about how to keep the Union out (Tr.
1659). To the contrary, Sparkman admitted that Mingo Logan
“wanted to remain union free” and that the TIPS training was to
put you in “the best position possible” to do so (Tr. 1355).
The TIPS training was not repeated in 1994 when the union
organizing campaign began. In light of the obviously coordi-
nated conduct of these three Mingo Logan supervisors during
the union organizing campaign in interrogating and threatening
the employees, I infer that Mingo Logan provided the necessary
signal for them—as well as Lowell Cook, Harrison
Blankenship, and David Terry—to ignore the previous TIPS
training, enabling it to identify the union leaders and card sign-
ers and to undercut the organizing effort.
I discredit the denials and find as alleged—in addition to the
coercive conduct by Lowell Cook, Harrison Blankenship, and
David Terry—that Carlos Porter, Charles McDaniel, and Don-
ald Sparkman coercively interrogated Stewart Vint, that
McDaniel implied that if Vint signed a union card he would be
terminated, that Sparkman threatened Ralph Jarrell with dis-
charge if he signed a union card, and that Sparkman threatened
Glen Payne with unspecified reprisals if he associated with
Robert Weaver, violating Section 8(a)(1).
2. By Mahon Supervisors Caldwell and Hawkins
Mine Foreman Larry Caldwell. In February when Mahon
employees were signing union authorization cards, four of them
began wearing union stickers on their hard hats. They were
Harold Bryant, Truman Cameron, Dennis Hall, and Joseph
Turner. Larry Caldwell saw them on the man trip one day be-
fore they entered the mine. (Tr. 227, 229.)
As Turner recalled, Caldwell told them “it could cause us to
lose our jobs for wearing those stickers.” (Tr. 227, 229–230.)
Bryant recalled that Caldwell said that “we shouldn’t have put
those stickers on our hat,” that “Mahon didn’t have nothing to
do with the Union and that it could cost all of us . . . our jobs”
(Tr. 333–334, 344). Cameron testified, “I can’t remember his
exact words,” but Caldwell “told us that we shouldn’t have
them stickers on our hats like that because it could jeopardize”
our jobs (Tr. 512–513). They appeared to be giving their best
recollections of what happened.
Caldwell admitted expressing his opinion that the stickers
were inappropriate because the battle was between Mingo
Logan and the Union, but categorically denied that he told them
“they could lose their jobs wearing those stickers.” I discredit
his denial and find that Caldwell’s threat that the union stickers
could cost them their jobs was coercive and violated 8(a)(1).
Mahon employee Ralph Jarrell credibly testified that Cald-
well told him and another employee that they had union stick-
ers on their cars and that “we have to remove those stickers”
and “if we was in any union activities . . . we could be gone”
(Tr. 288–289, 306). Caldwell categorically denied that such a
conversation occurred (Tr. 2220–2221). Regarding his
credibility, Caldwell first claimed, “I don’t know” whether the
“Just Say No” sticker on his hard hat meant to just say no to the
Union. He later testified that he assumed it did, but claimed that
he had it on his hat because “It was a pretty sticker.” (Tr.
2225–2227.) I discredit his denials of the conversation and find
as alleged that he told employees to remove union stickers from
their vehicles and threatened them with discharge if they en-
gaged in union activity, violating Section 8(a)(1).
Shift Foreman James Hawkins. Mahon employee James Os-
borne credibly testified that before he signed a union card on
February 16, James Hawkins told him “whoever signed a card
would be gone” (Tr. 526, 533–534). I discredit Hawkins’ cate-
gorical denial and find that the threat that Osborne would be
discharged if he signed a union card was coercive and violated
Section 8(a)(1).
Mahon employee Michael Dillon credibly testified that about
3 or 4 days before his April 10 layoff, Hawkins asked him “if I
had signed one of the cards.” Dillon admitted he had. (Tr. 383,
388–389, 393.) Hawkins categorically denied that this conver-
sation ever took place (Tr. 2169, 2173–2174). I discredit the
denial and find that in the context of Dillon’s summary layoff
on April 10, the interrogation tended to be coercive and vio-
lated Section 8(a)(1).
3. By Mahon Supervisor Danny Colegrove
a. Motivation for April 10 layoffs revealed
Danny Colegrove—whom both Mingo Logan and Mahon
admitted in their February 1995 answers was an “Assistant
Foreman,” as discussed below—was also a fireboss during the
union organizing campaign before the April 10, 1994 layoffs.
Mahon employee Stewart Vint stated in his April 28, 1994
pretrial affidavit, which Mingo Logan—joined by Mahon—
introduced as an Mingo Logan exhibit (RML Exh. 1 p. 2, pars.
3 & 4; Tr. 213, 215):

Danny Colegrove works for Mahon. He firebosses for
Mingo Logan and signs the books and also act[s] as a
foreman of [the Mahon employees] a lot. He is the guy
they send out to gather information on employees. He
go[es] all over listening to what was going on and then re-
port[s] back.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 98
Sometime in March, I had a conversation with Cole-
grove about the Union. . . . When Danny goes and tells the
company what’s going on, he gets information to take
back to us. As an acting foreman and fireboss he spends a
lot of time in the office with the supervisors. [Emphasis
added.]

Based on what occurred in the Mahon office, Colegrove re-
vealed to two employees, Stewart Vint and Glen Payne, infor-
mation regarding the motivation for the April 10 layoffs.
Stewart Vint credibly testified about a conversation that be-
gan with Danny Colegrove asking him, “did I feel like that
there was a real threat of the Union coming in.” (As Vint re-
membered when giving his affidavit on April 28, 1994, this
conversation was sometime in March, not in February.) Then
(Tr. 183–185):

Danny said, well . . . I came back from a meeting with Amon
Mahon and he said we’re going to take 20 guys or so and
we’re going to lay them off, or fire them, and make them an
example to everybody else. He said those guys that [have] the
stickers on their hats on the day shift they’re definitely gone.”

. . . .

Q. Do you recall whether he said how they were going
to select the 20 guys?
A. Well, he told me that it . . . would be the 20 guys
that were the oldest men there that was involved in the un-
ion activity. [Emphasis added.]

Vint further recalled when giving his affidavit that Colegrove
also said the employees would be laid off “just as soon as we
find out who has signed those cards” (RML Exh. 1 p. 2, par. 4).
Glen Payne credibly testified that “between two days and a
week before I got laid off, in the presence of Jim Auxier (a
Mahon foreman who did not testify), Colegrove came up on his
motor and told Payne (Tr. 600–603; GC Exh. 37):

He said, “well, we’re going over the names and there’s going
to be a layoff” and I said “who’s going over the names,” and
he said, “Dave Terry [Mingo Logan’s general construction
coordinator] is coming down to the Mahon Office and him
and Lynn [Lenville Mahon] are going over the names, list,
page by page,” and he said, “I think I’ve got them straight-
ened out for you, but you better watch who you’re talking to.”
[Emphasis added.]

Colegrove testified that he did not recall asking Vint if he
thought there was a real threat of the Union coming in, but
otherwise categorically denied both of these conversations (Tr.
2279–2280, 2283–2284). I discredit his denials. While testify-
ing, he appeared eager to fabricate any testimony that would
help his employer’s cause.
I find that Colegrove’s statements to Stewart Vint that Amon
Mahon was threatening the layoff of 20 or so of the oldest em-
ployees involved in union activity as an example to the other
employees and threatening that employees wearing union stick-
ers on their hats “were definitely gone,” as well as Colegrove’s
interrogation of Vint in this context, were coercive and violated
Section 8(a)(1).
I also find that Colegrove’s statement to Glen Payne that
Mingo Logan’s coordinator, David Terry, and Lenville Mahon
were going over a list of names of Mahon employees for a lay-
off—particularly in the context of his statement, “I think I’ve
got them straightened out for you” (referring to his belief that
Payne had not signed a union card)—and Colegrove’s warning
that “you better watch who you’re talking to” (referring to un-
ion supporters), were a coercive threat and warning and vio-
lated Section 8(a)(1).
b. Colegrove’s other interrogations and threats
About a week after Colegrove revealed Amon Mahon’s
threats, as Steward Vint credibly testified, Colegrove “asked
me had I signed a card.” When Vint told him no, Colegrove
“opened up my lunch bucket.” Vint asked him what he was
doing, and Colegrove answered, “I’m looking to see if you
have any union cards.” (Tr. 185–186.) Vint first recalled at the
trial that this happened in February, but after reviewing his
April 28 affidavit, he credibly testified that his recollection was
refreshed and “it was in March.” (Tr. 207–209, 213–214.)
Mahon employee Ralph Jarrell credibly testified that after he
signed a union card he commented to Colegrove that “it looks
like it’s going to get a little rough.” Colegrove responded that
“well, anybody that has signed a union card . . . is going to be
in trouble.” Colegrove added, “I like you Ralph” and “I’d like
to see you stay here. You’re a good worker,” but “if you sign a
union card [be aware that] there is going to be a bunch leave
here.” (Tr. 296–297.)
Mahon employee Albert Bonds credibly testified, “I can re-
call Danny Colegrove talking in the bath house and telling
some younger guys, and just in general to everybody that if you
signed a union card you was crazy, and you probably would get
your hind end in trouble then if they found out” (Tr. 313).
Mahon employee Dennis Hall credibly testified that less than
a week before he was laid off (on April 10) Colegrove “just
asked me did I sign” a union card. Hall answered, “Yes, I did,
Danny,” because he had known Colegrove since they grew up
together, “and the next thing I know we was all laid off.” Hall
“figured [Colegrove] was just going around trying to see who
had signed” a union card. (Tr. 422.)
Colegrove either claimed he did not remember (if asked) or
categorically denied these interrogations and threats (Tr. 2281,
2284–2287). I discredit his denials. I find that his interrogation
of Stewart Vint and his looking into Vint’s lunch bucket for
union cards, his statements to Ralph Jarrell that anybody who
signed a union card is going to be in trouble and “there is going
to be a bunch leave here” (for signing union cards), his state-
ment to Mahon employees in the bath house and overheard by
Albert Bonds that anybody signing a union was crazy and
probably would get their hind end in trouble if found out, and
his interrogation of Dennis Hall about signing a union card
were coercive and violated Section 8(a)(1).
c. Shifting positions on supervisory status
On the second and fourth days of the trial (January 22 and
24, 1997), Mahon employees Stewart Vint and Glen Payne
gave the credited testimony that would tend to belie Mingo
Logan’s defense that the April 10 layoff of 18 Mahon employ-
MINGO LOGAN COAL CO. 99
ees was not “designed to thwart the [Union’s] organizing cam-
paign.”
As found, Colegrove revealed to Vint that Amon Mahon said
20 or so of the oldest Mahon employees involved in the union
activity were going to be laid off to make an example to every-
body else and those wearing union stickers on their hats were
“definitely gone.” He later revealed to Payne a few days before
the layoffs that Mingo Logan’s coordinator, David Terry, and
Lenville Mahon were in the Mahon office, “going over the
names, list [of Mahon employees], page by page” for a layoff
and indicated to Payne that Mingo Logan and Mahon were
selecting employees based on their union support by saying: “I
think I’ve got them straightened out for you [referring to Cole-
grove’s belief that Payne had not signed a union card], but you
better watch who you’re talking to [referring to union support-
ers].”
Evidently realizing the possible impact of this testimony on
their defenses, both Mingo Logan and Mahon (by Trial Counsel
Forrest Roles and George Oliver) prepared amended answers
(after the 1-month adjournment of the trial on January 24) to
shift their positions and deny that Colegrove was a supervisor
at material times.
Mingo Logan falsely represents in its brief (at 56), signed by
Counsel Roles, that its “answer had consistently denied [Cole-
grove’s] supervisory status.”
To the contrary, Mingo Logan’s first answer (GC Exh. 1p)
admitted paragraph 7 of the February 10, 1995 consolidated
complaint (GC Exh. 1m), which alleged that “Assistant Fore-
man” Danny Colegrove was a Section 2(11) supervisor of the
Respondents at “all material times.” This February 22, 1995
answer was signed by Larry Rothman, an attorney in Roles’
law firm, Smith, Heenan & Althen. Mahon’s February 21, 1995
answer (GC Exh. 10), filed by Attorney Shawn George, also
admitted Colegrove’s “Assistant Foreman” position.
That February 10, 1995 complaint (GC Exh. 1m) alleged in
paragraph 8(f) that about “late March or early April 1994,”
Colegrove “Interrogated employees about their union activi-
ties” and “Threatened that Respondents would lay off about 20
employees as a result of their sympathies and activities.” His
supervisory status was relevant to those alleged violations.
The August 21, 1996 amended complaint (GC Exh. 1LL)—
issued after the Board’s August 13, 1996 Order finding that
Mingo Logan and Mahon were joint employers (GC Exh.
1vv)—again alleged that Mahon’s “Assistant Foreman” Cole-
grove was a statutory supervisor of the Respondents. Mingo
Logan’s September 5, 1996 answer (GC Exh. 1nn), signed by
Roles, denied that Colegrove was a Mingo Logan supervisor
and denied Colegrove’s alleged interrogation and threat, but did
not specifically deny that Colegrove was a Mahon supervisor.
The January 28, 1997 second amended complaint (Tr. 387;
GC Exh. 1zz) again alleged Mahon’s “Assistant Foreman”
Colegrove was a supervisor. This time, in its February 3, 1997
prepared answer (GC Exh. 1aaa), signed by Roles, Mingo
Logan shifted its previous position taken in February 1995.
Mingo Logan specifically denied that “Danny Colegrove was
employed as an assistant shift foreman for Mahon Enterprises
at the material times.” Mahon’s February 5, 1997 prepared
answer (GC Exh. 1bbb), signed by Oliver (now with another
law firm, Smith, Helms, Mulliss & Moore), made an identical
denial.
At the resumed trial on February 24, 1997, there was no con-
tention that Mingo Logan’s February 22, 1995 answer (signed
by Rothman), admitting Colegrove’s supervisory status, was
filed without Mingo Logan’s knowledge and consent. Instead,
Roles represented (Tr. 679), “We did not know what [Cole-
grove’s] status was . . . in the matter alleged here” when “we
stipulated that he was a supervisor” at the June 1994 hearing in
the representation case (GC Exh. 31, Board Exh. 3, R; Tr. 4, 17,
191.
Roles further represented (Tr. 679) that he personally
“learned from Mr. Oliver during the hearing of this case [in the
first week of trial on January 21–24, 1997] what the circum-
stances were as to [Colegrove’s] position.” This was apparently
when Mahon shifted its position on Colegrove’s status after
employees Vint and Payne testified.
I find that regardless of Roles’ personal knowledge of Cole-
grove’s supervisory status,
Mingo Logan did admit in its first answer (contrary to its
brief signed by Roles) that Colegrove was a supervisor at “all
material times.”
Oliver does not contend that Mahon’s February 21, 1995 an-
swer (signed by Shawn George), admitting Colegrove’s “Assis-
tant Foreman” position, was filed without Mahon’s knowledge
and consent. Instead, Oliver represented (Tr. 658) that Shawn
George “is not a labor lawyer . . . not understanding and realiz-
ing the scope of supervisory status.”
This contention is not persuasive. The February 10, 1995
complaint alleged that “About late March or early April 1994,”
Mahon “by Danny Colegrove,” an “Assistant Foreman” and
Section 2(11) supervisor, unlawfully interrogated employees
and threatened to lay off 20 of them. Mahon, which employed
Colegrove, was of course aware of his status at the alleged
time. If Colegrove had not been acting on its behalf as a super-
visor, Mahon undoubtedly would have denied his supervisory
status, instead of admitting in its February 21, 1995 answer in
this proceeding that as alleged, Colegrove was an “Assistant
Foreman.”
Mingo Logan and Mahon were not permitted to belatedly
amend their answers under these circumstances (Tr. 676, 686–
687). As it requested, however, Mahon was permitted (sup-
plementing an earlier narrative offer of proof, Tr. 2090–2091)
to make an offer of proof by questions and answers for a full
record of its position on Colegrove’s supervisory status in 1994
before the April 10 layoffs (Tr. 2253–2254). Colegrove then
testified at length regarding his status, on both direct and cross-
examination, giving me the opportunity to further observe his
demeanor on the stand and evaluate his credibility (Tr. 2255–
2273).
d. Colegrove’s conflicting testimony
(1) His first version
In the representation case hearing, at which Mingo Logan
and the other parties stipulated that Danny Colegrove was the
“2nd Shift Assistant Foreman” (GC Exh. 39, Board Exh. 3, R-
Tr. 191), Colegrove testified on June 9, 1994, that he was then
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 100
a fireboss and “fill-in mine foreman” on the evening shift (R-
Tr. 639, 641).
When questioned by the hearing officer about the term, “as-
sistant mine foreman,” Colegrove testified that he held that job
on the evening shift 2 days a week, reporting to Mahon Fore-
man James Hawkins or Larry Caldwell (R-Tr. 649–650). He
also testified that an assistant foreman would fill in for the
foreman in the foreman’s absence, or the foreman and assistant
foreman might work on different jobs, but that there is no dif-
ference in “what they’re doing with the men” (R-Tr. 650–651).
Earlier when asked on direct examination if he has worked
on the evening shift at sometime in his 3 years working for
Mahon at the mine, he answered yes, that he has been a crew
leader and a mine foreman. He further testified (R-Tr. 641):

Q. And approximately how long did you work on the
evening shift as a crew leader and a mine foreman?
A. I’d have to go back and take a look at that. I’d say it
may be 6–8 months, something like that. [Emphasis
added.]

Colegrove then testified that “in that capacity,” he worked as
crew leader on part of the longwall. He testified that he “made
the decisions [on] how that work specifically would be done,”
and “during the time that [he was] foreman or crew chief,” he
did not know of any Mingo Logan supervisors instructing the
Mahon employees. He described what “the Mahon employees
did under [his] supervision [emphasis added],” both on long-
wall maintenance and on longwall setup, and testified that he
was paid at a higher rate than the other Mahon employees be-
cause “I was the boss.” (R-Tr. 641–648.)
(2) Intervening admissions and evidence
Before Colegrove next testified nearly 3 years later on March
6, 1997, the last day of the trial, there had been repeated admis-
sions regarding his supervisory status before the April 10, 1994
layoffs and also evidence that he was recognized as a Mahon
supervisor both by Mingo Logan and by Mahon employees.
As found, the February 10, 1995 complaint in this proceed-
ing had alleged that “Assistant Foreman” Danny Colegrove was
a Section 2(11) supervisor at “all material times.” In their an-
swers both Mingo Logan and Mahon admitted that he was an
“Assistant Foreman” and Mingo Logan admitted the entire
allegation, that Colegrove was a statutory supervisor at “all
material times.”
Also on February 24, 1997, when Mahon was arguing that it
was entitled to change its position and deny that “Danny Cole-
grove was employed as an assistant shift foreman for Mahon
Enterprises at the material time” (in 1994 before the April 10
layoffs), it admitted that Colegrove had been a supervisor for 6
or 8 months.
Speaking through Trial Counsel George Oliver (who “came
into [this] case very late,” not “until about the end of December
[1993],” Tr. 667), Mahon contended that when Colegrove testi-
fied in June 1994, that he had been a crew leader and mine
foreman maybe 6 or 8 months on the evening shift, that did not
mean 6 or 8 months immediately before June 1994. It con-
tended that Colegrove’s testimony “simply goes to his status
while he was employed for Mahon over a 3-year period” while
he was on the evening shift and therefore, Colegrove had not
admitted that he had been a crew leader and mine foreman from
January to April 10, 1994, when he was on the owl shift. (Tr.
681–686.)
Thus, Mahon was acknowledging that Colegrove had admit-
ted being a “crew leader and mine foreman” on the evening
shift in the 3-year period before 1994.
Three days later at the trial, on February 27, 1997, a Mingo
Logan supervisor gave obviously damaging testimony to Mingo
Logan’s and Mahon’s defense, although ignored in both of their
briefs. Construction/Relief Foreman Donald Sparkman (upon
questioning by Oliver) admitted that Colegrove was one of four
Mahon foremen that he recalled were foremen since Sparkman
became a foreman in 1992 “up to January ’94” and that he re-
called Colegrove being one of three Mahon supervisors (along
with Mine Foreman Larry Caldwell and Shift Foreman James
Hawkins) “that were employed by Mahon from January of ’94
through April of ’94” (Tr. 1343–1344).
This testimony tends to corroborate the evidence of Mahon
employee Stewart Vint in his April 28, 1994 pretrial affidavit,
which Mingo Logan—joined by Mahon—introduced as a
Mingo Logan exhibit (RML Exh. 1 p. 2, pars. 3–4; Tr. 213,
215). Referring to Colegrove’s status in the first quarter of
1994, when Colegrove was working on the owl shift, Vint
stated in the affidavit that Colegrove “firebosses for Mingo
Logan,” acts “as a foreman of [the Mahon employees] a lot,”
and “As an acting foreman and fireboss he spends a lot of time
in the office with the supervisors.”
When asked on cross-examination (by Oliver) about the
statement in his affidavit that Colegrove “firebosses,” Vint
credibly testified that he did not know that particular night that
Colegrove was going to fireboss, because he firebossed “at
certain times” and “he didn’t” at other times (Tr. 204).
Sparkman’s testimony also tends to corroborate Mahon em-
ployee Ralph Jarrell’s credited testimony that “the last of Feb-
ruary, first of March” (1994), when Colegrove told him that
“anybody that has signed a union card . . . is going to be in
trouble,” Colegrove was a foreman (Tr. 296–297). On cross-
examination by Oliver, Jarrell credibly testified that he knew
Colegrove was a foreman because “he had told us he was a
foreman,” although Jarrell could not remember when (Tr. 308–
309).
Thus, when Colegrove was called to testify on March 6,
1997, the last day of the trial, there was evidence (a) that Mingo
Logan recognized him as a foreman both before and after Janu-
ary 1994, (b) that Mahon employees recognized him as a fore-
man after January 1994, and (c) that Mahon had acknowledged
at the trial on February 24, 1997, that Colegrove admitted in his
testimony in the representation case that he had been a “crew
leader and mine foreman” on the evening shift maybe 6 or 8
months in the 3-year period before January 1994.
Meanwhile on March 5, the day before Colegrove testified,
Mahon made a narrative offer of proof that Amon Mahon
would testify that between January 1 and April 10, 1994, Cole-
grove was a fireboss and was not a supervisor (Tr. 2090–2091).
MINGO LOGAN COAL CO. 101
(3) Colegrove’s fabricated version
As found, Colegrove testified in 1994 in the representation
case that in his 3 years working for Mahon at the mine, he had
been a “crew leader and mine foreman” on the evening shift for
maybe 6 or 8 months, with Mahon employees working under
his supervision. Yet, on March 6, 1997, he categorically denied
on direct examination that before the end of 1993 he had ever
served “in any capacity as a supervisor for Mahon” (Tr. 2252).
When questioned about his previous testimony, he testified
that the 6 or 8 months was “on the second shift doing mainte-
nance at one time on the longwall, that was the down shift
once” (Tr. 2261). He next claimed that when he testified in
1994, he meant that he had served as a crew leader on the
longwall “around 6 months, something like that,” and that he
had been a mine foreman “not longer than that 2 months,” start-
ing on April 11 (Tr. 2262).
When asked if his previous testimony was wrong that he had
been working as a crew leader and mine foreman for 6 to 8
months, he answered: “No, sir. What I meant by that was while
I was on the longwall there on second shift, yes, I was a crew
leader,” and “No, sir,” he was not denying “and a mine fore-
man.” (Tr. 2262–2263).
Colegrove then contradicted this admission and returned to
his original testimony on direct examination. When asked if he
had been a crew leader and mine foreman for 6 or 8 weeks
when he testified on June 9, 1994, he answered, “Yes, sir,” but
added, “Not both at the same time though. When I was a crew
leader on longwall, I wasn’t a mine foreman, but up to the time
that I testified there, from April up to June, I was filling in as a
foreman.” (Tr. 2263–2264.) He appeared determined to sup-
port the Company’s position.
He also testified that he left the longwall about May or June
1993 when “everybody came off the longwall from Mahon,”
and never performed “any other maintenance type work on the
longwall after that.” Then, contrary to his June 1994 testimony
that he was crew leader also over longwall setup (the work
Dennis Evans was assigned after being taken off the longwall
maintenance work, Tr. 832–837). Colegrove claimed that after
leaving longwall maintenance around May or June 1993, he
started firebossing until the end of 1993 (Tr. 2251).
He claimed that he worked between January and April 10,
1994, on the owl shift only as a fireboss, with no supervisory
responsibilities. He also claimed that on April 11, 1994, when
he rotated to the evening shift, he first filled in as a foreman 2
days a week—on the weekends, in the absence of “the boss,” or
on his days off. (Tr. 2255, 2258.)
e. Concluding findings on supervisory status
Thus, contrary to the admissions and the credited evidence,
Mahon produced testimony by Colegrove at the trial that Cole-
grove had never served as a Mahon supervisor before the end of
1993 and that from May or June 1993, until he testified in the
representation case in June 1994, he never filled in as a fore-
man until April 11, 1994, the day after the layoffs.
As indicated, Colegrove appeared on the stand to be eager to
fabricate any testimony that would help his employer’s cause. I
discredit this testimony.
After weighing all the evidence, including Colegrove’s con-
flicting testimony, I find as first admitted by Mingo Logan in
this proceeding that at “all material times” (from January until
April 10, 1994) Danny Colegrove was a statutory supervisor. I
reject the contrary contention of Amon Mahon, who gave much
discredit testimony in this proceeding.
D. Mingo Logan’s Role in April 10 Layoffs
1. Reduced Mingo Logan working hours
As found, Mahon was providing Mingo Logan as contract
labor many skilled, experienced union miners at a saving of
about $6 an hour in labor costs. The Mahon employees were
performing a large amount of outby (nonproduction construc-
tion and support) work, much of which would be necessary for
the life of this mine as well as the life of another mine on a
lower level—even though Amon Mahon claimed they were
doing “temporary” work, which he defined as “anything less
than permanent” (Tr. 2108).
While utilizing the services of these contract employees,
Mingo Logan was expanding its own work force of nonunion
employees. It hired a large number of the Mahon employees
after screening them on the job. Besides the four Mahon super-
visors it hired in 1992 (Jim Allen, David Terry, Charles
McDaniel, and Henry Shaffer), Mingo Logan hired a total of 41
Mahon employees from April 16, 1992, until February 22,
1994, when it hired employee Richard Curry during the orga-
nizing campaign. (Tr. 1455–1456; GC Exh. 34 pp. 1–3.)
As illustrated by Coordinator David Terry’s interrogation of
employee Truman Cameron in March, Mingo Logan was seek-
ing nonunion employees. As found, Terry asked Cameron
whether he would work nonunion if Mingo Logan gave him a
job.
Meanwhile, Mahon had a large turnover of employees work-
ing for its lower wages and benefits. As Amon Mahon admit-
ted, Mingo Logan continually urged him “always to try to hang
onto as many people and . . . to add as many people as possi-
ble.” Mahon continued adding new employees to its work
force, 80 percent or more of whom were union miners. (Tr.
548, 1076, 2055, 2112.)
In October 1993, with its own work force expanded and with
a continuing large number of Mahon employees working in the
mine, Mingo Logan decided to reduce the overtime. It reduced
the scheduled hours of all its underground employees from 10
to 9 hours a day. This left more outby construction and support
work for the lower paid Mahon employees to perform. (Tr.
1482–1483.)
It also meant that some of the Mingo Logan employees
would have a short workweek much of the time. The longwall
employees, working 5 days on and 3 days off, worked either 4
or 5 days a week depending upon how their scheduled work-
week fell in the calendar week. When Mingo Logan cut their
workday from 10 to 9 hours, they were working a 36-hour
workweek (four 9-hour days) about half the time. (Tr. 706–
708.)
Some of the longwall employees complained, but their
scheduled 9-hour workdays continued for 6 months until April,
after Mingo Logan had decided on the layoff of Mahon em-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 102
ployees during the Union’s organizing campaign (Tr. 1884–
1885).
2. Plans for layoffs and increased working hours
On March 24–25, in the third month of the organizing cam-
paign—when only about a fifth of the mine had been developed
(Tr. 1999)—Mingo Logan prepared a proposed budget to
schedule more working hours and cover the increased labor
costs of an all Mingo Logan work force after phasing out the
Mahon contract employees.
The proposed budget, to be implemented on April 1, pro-
vided for an annual net increase of 13,228 scheduled hours, to
be accomplished by (a) increasing the working hours of 140 of
the 258 mine employees, with a total increase of 36,344 hours a
year, (b) adding 4 inby jobs, and (c) initially eliminating 17
outby jobs being performed by Mahon employees. Administra-
tive Director James Mooney calculated that the budgeted
changes would increase the annual labor costs by $375,402.
(Tr. 1859–1862, 1895–1896; GC Exhs. 42, A–C.)
The proposal would increase the scheduled hours in two
ways. First, it would change the schedule of most of the em-
ployees shown to be working 5 days on and 3 days off, to work
5 days on and 2 days off. Second, it would lengthen the 9-hour
workday of the longwall and longwall support employees re-
maining on the 5–3 schedule to 10 hours a day, admittedly
giving them more overlap hours each day to perform “a lot
more of their own [outby] construction work” (Tr. 1993–1995).
The spreadsheet that Mooney prepared on March 25 (in a
meeting with Mine Superintendent Frye) shows that the pro-
posed budget was based solely on Mingo Logan’s hours,
wages, and fringe benefits. The proposal (excluding four out-
side employees) provided—after eliminating 17 outby jobs and
adding 4 inby jobs—for a net reduction of 13 employees. This
would be a reduction from a total of 258 underground employ-
ees to a total of 245. (Tr. 1588, 1594–1595, 1599; GC Exhs. 42,
C.)
Regarding the $19 inby employees on the worksheet (Tr.
1587), the “Today” column (GC Exh. 42, exh. C, LL. 1 & 3)
shows 52 present 5–3 employees (working 5 days on and 3
days off) and 70 present 5–2 employees (working 5 days on and
2 days off). The “Proposal” column (line 1) shows a reduction
in the number of 5–3 inby employees from 52 to 40 (the num-
ber of longwall employees remaining on the 5–3 schedule, Tr.
1864–1865)—a reduction of 12. It (L. 3) shows an increase in
the number of 5–2 inby employees from 70 to 86, an increase
of 16. The 16 figure includes the 12 employees removed from
the 5–3 schedule, plus four additional inby employees. (Tr.
1587–1588.)
Thus, 12 of the present 52 inby 5–3 employees would be
working on the 5–2 schedule, along with 4 other inby employ-
ees.
Regarding the $18 outby employees on the spreadsheet, the
“Today” column (LL. 2 & 4) shows 105 of them as present 5–3
employees and 31 as present 5–2 employees. The “Proposal”
column (L. 2) shows a reduction in the number of 5–3 outby
employees from 105 to 14 (the number of longwall support
employees remaining on the 5–3 schedule, Tr. 1864–1865,
1978)—a reduction of 91. It (L. 4) shows an increase in the
number of 5–2 outby employees from 31 to 105, an increase of
74 (17 fewer outby employees than the 91 shown to be re-
moved from the 5–3 schedule).
Thus, after the layoff of Mahon employees, 74 outby em-
ployees shown to be removed from the 5–3 schedule would be
working on the 5–2 schedule.
The spreadsheet further shows the proposed annual increase
in scheduled hours.
The “Proposed” column (LL. 1 and 2) shows 54 longwall
and longwall support employees (40 inby and 14 outby em-
ployees) remaining on the 5–3 schedule and working 10 hours a
day. The “Today” and “Proposed” columns (LL. 8 and 9) show
that this is a scheduled increase for each of the 54 employees of
208 hours a year, from 1868 to 2076 hours. The “Today” and
“Proposed” columns (LL. 1–4 and 8–11) also show that the
scheduled hours of each of the 86 employees (12 inby and 74
outby employees), removed from the 5–3 schedule and added
to the 5–2 schedule (and still working 9 hours a day), would be
increased 292 hours a year from 1868 to 2160 hours.
James Mooney confirms (Tr. 1867) that increasing the hours
of employees on the 5–3 schedule from 9 to 10 hours a day
would raise their scheduled hours to 2076 hours a year (from
1868 hours, an increase of 208 hours), whereas keeping their
hours at 9 hours a day and putting them on the 5–2 schedule
would raise their scheduled hours to 2160 hours a year (an in-
crease of 292 hours).
Thus, each of the 54 (40 inby and 14 outby) longwall and
longwall support employees remaining on the 5–3 schedule and
working 10 hours a day would be scheduled an increase of 208
hours a year—a total increase of 11,232 hours a year for the 54
employees. Each of 86 (12 inby and 74 outby) other employees
shown to be removed from the 5–3 schedule and working 9
hours a day on the 5–2 schedule would be scheduled an in-
crease of 292 hours a year—a total increase of 25,112 hours a
year for the 86 other employees (over twice the total increase of
11,232 hours for the longwall employees).
The proposed budget therefore provided for a total annual
increase of 36,344 (11,232 plus 25,112) in the number of
scheduled hours for 140 (54 longwall and 86 other) employees.
Column 5 of the spreadsheet (L. 6) shows that after the lay-
off of 17 Mahon outby employees and the addition of 4 inby
employees, the net increase in the number of scheduled annual
hours in the proposed budget was 13,228 hours. The “Proposal”
column (L. 21) shows that the increased annual costs of these
changes, because of Mingo Logan’s higher wages and its em-
ployee fringe benefits, would be $375,402 (Tr. 1590–1591,
1877).
I note that the 105 outby employees shown to be 5–3 em-
ployees in the “Today” column (L. 2) includes Mahon outby
employees who were not in fact working on the 5–3 schedule.
The purpose of the worksheet, however, was to alert Mingo
Logan to the increased labor costs of over a third of a million
dollars when it fully implemented the proposed changes, going
to an all Mingo Logan work force after phasing out the Mahon
contract labor.
James Mooney submitted the proposed budget to Mingo
Logan President Marcus Ladd and Mine Manager James Mul-
lins for approval (Tr. 1885). Mingo Logan admitted in its June
MINGO LOGAN COAL CO. 103
6, 1994 statement of position (GC Exh. 42 p. 6, par. 1) that it
“intended to implement these changes at the beginning of the
new calendar quarter on April 1” and the “changes were com-
pleted” on April 10.
3. Layoffs during union organizing campaign
As planned, the proposed 10-hour workday for the longwall
and longwall support employees was implemented the first
week in April (Tr. 1314). The layoff of Mahon employees,
however, was delayed until April 10, evidently because nine of
the employees to be laid off were working an average of 63
hours (22 to 24 hours of overtime) during the week ending
April 3. They were four employees classified as laborers
(Thomas Bailey, John Eanes, Rupert Smith, and Joseph
Turner), four operators (Harold Bryant, Truman Cameron, Mi-
chael Dillon, and Dennis Evans), and a crew leader (David
Massey). In addition, five other employees to be laid off
worked from 13 to 15 hours of overtime that week (general
laborer Jerry Tawney and operators Dennis Hall, Buddy
Maynor, James Osborne, and Glen Payne). (GC Exh. 38.)
About 5:30 p.m. on Saturday, April 9, Mingo Logan Coordi-
nator David Terry notified Amon Mahon that Mahon’s com-
plement of 91 outby employees (GC Exh. 38; Tr. 1138) must be
reduced by 18 to 73 employees (Tr. 1686).
The 18 employees—from the list of Mahon employees that
David Terry and Lenville Mahon went over in the Mahon of-
fice a few days before—included the layoff of 14 skilled opera-
tors (11 of whom were classified as operators and 3 of whom,
including Joseph Turner, were classified as general laborers)
and David Massey, whom Mingo Logan had selected to be belt
crew leader but who was then wearing a union sticker on his
hard hat (Tr. 39, 221–222, 867–868, 949–950, 1019–1020,
1061, 1094–1095; Mahon Br. 17).
On Sunday, April 10, Amon Mahon telephoned and summa-
rily laid off the 18 employees (Tr. 1062). He told David
Massey “it wasn’t his doings, he didn’t [have] a say-so” in
laying Massey off (Tr. 58–59). It is undisputed that about April
20 when a group of the laid-off employees on their last payday
met with Amon Mahon he told David Massey and Stewart Vint
they were two of the best workers and “it wasn’t his choice”
that this happened (Tr. 59–60).
A total of 17 of the laid-off employees had signed union au-
thorization cards, as found. They were Thomas Bailey, Harold
Bryant, Truman Cameron, Jerry Canterbury, Michael Dillon,
John Eanes, Dennis Evans, Dennis Hall, Ralph Jarrell, David
Massey, Buddy Maynor, James Osborne, Glen Payne, Rupert
Smith, Jerry Tawney, Joseph Turner, and Stewart Vint. The
18th employee, Carl Workman, was a nonunion general la-
borer.
The summary layoffs of the 17 card signers effectively end-
ing the Union’s organizing campaign in the mine. When asked
“how many cards did the Union get signed after these individu-
als were laid off,” International Representative Bernard Evans
(who was leading the organizing drive) credibly answered,
“Not a one. That stopped the drive completely.” In his opin-
ion, “It scared everybody to death.” (Tr. 622.) As found, the
Union filed an election petition on April 28, 1994, but later
withdrew it.
4. Mingo Logan’s defenses
a. The new budget
Mingo Logan initially relied on the new budget as a defense
in its June 6, 1994 statement of position, submitted by Attorney
Larry Rothman in Counsel Roles’ law firm, Smith, Heenan, &
Althen, representing Mingo Logan (GC Exh. 42 pp. 4–6).
Mine Superintendent Frye testified on cross-examination that
before this statement of position was prepared, he discussed the
issues with the Mingo Logan attorneys (Tr. 1576, 1596–1597).
The statement of position ignored both the adding of four
inby employees and Mooney’s March 25 calculation that the
budget provided for an annual increase of $375,402 in labor
costs.
At the trial Frye was prepared to claim various defenses for
the April 10 layoffs (permit problem, 10-hour workday, com-
pletion of longwall move, and change in rock work, discussed
below), without making any reference to the new budget (Tr.
1532). Although he and Mine Manager James Mullins pro-
vided Mooney with the figures to use in calculating the increase
in hours and the $375,402 additional labor costs in the budget
(Tr. 1895–1896), Frye claimed on cross-examination, “I re-
member—now that you’ve brought this up I remember discus-
sions with this document.” He explained, “I’d about forgotten
about it [emphasis added], but now that you’ve brought it up I
remember this.” (Tr. 1580.)
On further cross-examination Frye admitted that he dis-
cussed the “specific numbers” of Mahon personnel in the pro-
posed budget with Mullins and the impact of 10-hour longwall
shifts in his meeting with Mooney, who prepared the March 25
spreadsheet (Tr. 1599).
Now in its brief, Mingo Logan completely ignores the new
budget, which tends to contradict the contention in its brief (Br.
at 78) that “the undisputed evidence is that the sole motivation
for the reduction was economic.”
The new budget reveals a reversal of Mingo Logan’s policy
of urging Amon Mahon to furnish as many outby employees as
possible. The budget shows that Mingo Logan intended to
phase out the Mahon employees and go to an all Mingo Logan
work force, even though this would increase its annual labor
costs by over a third of a million dollars.
Thus instead of supporting the Company’s contention that
the “sole motivation” of the layoff of the Mahon employees
“was economic,” the new budget indicates that Mingo Logan
was willing to increase its annual labor costs by over a third of
a million dollars for the remaining life of this mine—besides
the increased labor costs during the life of another mine on a
lower level—to undercut the organizing drive and keep out the
Union.
b. Other defenses
Mingo Logan has offers a number of other defenses, all of
which I find lacking in merit.
Joint Employers. Mingo Logan contends in its brief (Br. at 3,
24, 31, 42) that it and Mahon are not joint employers and there-
fore it is not responsible for Mahon’s layoff of the 18 outby
employees on April 10.
As part of its support of that defense, Mingo Logan pre-
sented testimony that Mahon crew leader David Massey was a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 104
Mahon foreman and that Belt Foreman Lowell Cook’s instruc-
tions to him were therefore to a Mahon supervisor and did not
constitute codetermination of supervision of Mahon employees.
As found, the testimony that Massey was a supervisor is fabri-
cated. There is much credited evidence showing that Mingo
Logan and Mahon were joint employers of the Mahon employ-
ees, as found.
Selection of Employees for Layoff. Another defense is that
Danny Colegrove (who revealed to an employee information
indicating that Mingo Logan Coordinator David Terry was
participating in selecting Mahon employees for a layoff on the
basis of their union support) was not a supervisor. As found,
Mingo Logan falsely represents in its brief (Br. at 56), signed
by Counsel Roles, that its “answer had consistently denied
[Colegrove’s] supervisory status.” To the contrary, its answer
in this proceeding on February 22, 1995 (GC Exh. 1p) admitted
that Colegrove was an assistant foreman and a Section 2(11)
supervisor at “all material times.”
Having weighed all the evidence, including Colegrove’s con-
flicting testimony in the representation case and at the trial, and
having observed his demeanor on the stand, where he appeared
“eager to fabricate any testimony that would help his em-
ployer’s cause,” I have discredited his denials and found that he
was a statutory supervisor at all material times.
I discredit David Terry’s denial that he and Lenville Mahon
“had a discussion about which specific Mahon employees
would be laid off” (Tr. 1699–1700) and his claim, “I had no
idea who the laid-off employees would be” (Tr. 1717). By his
demeanor on the stand, Terry appeared equally as untrust-
worthy a witness as Colegrove.
Terry went so far in trying to help his employer’s cause as to
positively testify (Tr. 1700), “No, sir, I was not aware” that
there was “an organizing campaign going [on] by the United
Mine Workers at the mine site during the first quarter of 1994.”
He later testified (Tr. 1701–1702) that “I had heard” there was
an organizing attempt and admitted that he was wearing a “Just
Say No” sticker on his hard hat. As found, he asked Truman
Cameron during the organizing drive whether he would work
nonunion if Mingo Logan gave him a job and, in the same con-
versation, asked Cameron why he supported the Union.
Lenville Mahon not only denied that he ever went “over a
list of employees that were going to be laid off with any Mingo
Logan supervisor,” but claimed that he was not aware of the
layoff of employees until after it occurred (Tr. 2140–2141). I
discredit this testimony. He appeared less than candid on the
stand.
Other evidence contradicting Mingo Logan’s contention in
its brief (Br. at 65) that it “played no part in the selection of
employees for layoff” is discussed later.
Interrogations and Threats. Another defense in Mingo
Logan’s brief (Br. at 33) is to the allegations that it unlawfully
coerced the employees through its supervisors’ interrogations
and threats. It contends that none of this occurred. To the con-
trary, there is overwhelming credited testimony that Mingo
Logan, through its supervisors, carried on an extensive anti-
union campaign, interrogating Mahon employees to identify the
union leaders and card signers and making threats, including
threats to close the mine if the Union comes in.
Return to 10-Hour Workday. Another defense in its brief (Br.
at 60) is that “Mingo Logan returned its longwall employees to
10-hour shifts because they complained and to increase effi-
ciency,” not “to squelch union support by conferring a benefit
upon them.”
Mingo Logan offers no explanation for deciding at the same
time to budget an annual increase in the working hours of 86
other mine employees by 25,112 hours a year (over twice the
total increase of 11,232 longwall hours), requiring an annual
increase in labor costs of over a third of a million dollars.
Nowhere does Mingo Logan admit that when it reduced the
hours of the longwall employees from 10 to 9 hours the first
week in October 1993, assigning them a 36-hour workweek
about half of the time, it did so to give more outby construction
work (then being performed by longwall employees, Tr. 1936,
1943–1944) to the Mahon employees as a cost-cutting measure.
As found, some of the longwall employees complained, but
their scheduled 9-hour workdays continued for 6 months until
April 1994, after Mingo Logan had decided on the layoff of
Mahon employees during the Union’s organizing campaign.
Regarding the delay in reinstating the 10-hour workday for
the longwall employees, Mine Superintendent Frye testified
that Mingo Logan discussed having a survey of employee opin-
ions and claimed “we didn’t want to go changing a lot of
things” before evaluating “what we got back from the survey”
(Tr. 1489–1490). He later testified that “we talked about doing
a survey . . . around Thanksgiving” 1993, that “the president of
our company ultimately decided to do it,” and that the survey
was taken in January 1994, “Seems like it was early January”
(Tr. 1562–1563). The employees began signing union cards in
early January (Tr. 617).
It was stipulated that Mingo Logan received the results of the
employee/supervisory satisfaction survey on January 31, 1994.
Regarding the 10-hour workday, the parties stipulated that only
13 longwall miners (of a total of 40) “expressed a desire to
work longer shifts and/or a more balanced schedule.” The
stipulation reveals that the survey related in part to union repre-
sentation: that two or three supervisors “expressed as a posi-
tive” that Mingo Logan is “union free” and one supervisor “ex-
pressed as a negative” that Mingo Logan was “not doing
enough to keep the UMWA out.” (Tr. 699–700.)
Frye did not reinstate the 10-hour day after the survey, ex-
plaining that “I normally make changes at the beginning of a
quarter” (Tr. 1489–1490). General Mine Foreman Harrison
Blankenship, who claimed “There was a lot of grumbling about
it,” testified that “We had a meeting and decided that we would
make the change but it wouldn’t be effective until the rotation
period” and “there was no need of rotating in the middle of a
quarter.” When asked about any practical difficulties of putting
the change in effect on February 1 (merely adding 1 hour to
each shift without rotating the shifts), his answer was, “To be
honest with you, I can’t give you a good answer on that.” (Tr.
1940–1942.) (Undoubtedly if returning to the 10-hour longwall
workday was “to increase efficiency,” the delay would not have
continued.)
These explanations are not convincing. I infer that the real
reason for delaying a return to the 10-hour longwall workday
until the Mingo Logan president “ultimately decided” to con-
MINGO LOGAN COAL CO. 105
duct the employee satisfaction survey and for continuing the
delay on February 1, was the same reason for adopting the 9-
hour longwall workday in October—to assign more of the
outby work to Mahon employees to save on labor costs.
I find that Mingo Logan reinstated the 10-hour longwall
workday and budgeted a larger increase in the scheduled work-
ing hours of 86 other employees in implementing its plans to
phase out all contract labor in the mine and have an all Mingo
Logan work force.
Permit Problem. Another defense in its brief (Br. at 65, 68–
69) is that work was not available for the laid-off employees on
April 10 because “Mingo Logan could not continue to develop
the North Mains area of the mine due to a delay [in January] in
obtaining the necessary mining permit.”
This contention refers to the temporary stopping of the North
Mains at 86 crosscut (Tr. 700–701, stipulation 8, 1494), which
is over 3 miles from the south entrance of the mine and about a
mile from the north end, as shown on the mine map (RML Exh.
3). Because the entire life of the mine was about 10 years (be-
ing about a fifth developed on April 10, 1994), there were years
of development work in the mine south of that stoppage of the
North Mains.
Moreover, Frye admitted that “I don’t [believe] this” new
budget “changing the longwall people” back to 10 hours “had
anything to do with the stopping [of] the Mains, the permitting”
problem. (Tr. 1586, 1591–1592.) Frye did not dispute that the
budget provided for not only an annual increase of 11,232
longwall hours, but also an annual increase of 25,112 hours of
other employees (over twice the increase of longwall hours).
The new budget provided for an increase in the amount of
outby work, not a reduction.
Rock Work. Mingo Logan contends in its brief (Br. at 66)
that there was less outby work for the Mahon employees on
April 10 because it was having its continuous miner crews per-
form the rock work instead of “leaving most of the rock work
for the Mahon construction crews to accomplish.” This conten-
tion refers to rock work performed by Mahon employees who
followed the Mingo Logan production crews and removed ad-
ditional rock, with a continuous miner or by blasting, increasing
the height of entries for tracks and conveyor belts (Tr. 1225,
1234, 1257–1261, 1396).
Mingo Logan admits in its brief (Br. at 66–67), however, that
“By the first quarter of 1994, Mingo Logan production crews
were performing 95 percent of the rock work as they advanced”
and that “no Mahon employees performed rock work after the
first of January 1994.” In view of this admission, I discredit
Amon Mahon’s claim that Frye told him before the April 10
layoffs that Mingo Logan was “going to start [emphasis added]
doing some of the rock work as they took out the coal” and that
“for the first time since I’ve been there, that was no longer go-
ing to be our work” (Tr. 1056, 1091).
The elimination of Mahon’s rock work, before the union or-
ganizing began in early January, had not caused any layoffs
from January through April 10.
Although there is little evidence of the working hours of
Mahon employees during this time, Belt Foreman Lowell Cook
did include on his February 22, 1994 instruction sheet to
Mahon crew leader Massey the instruction: “Due to the work
load this week everybody will need to work one of their days
off starting Wednesday,” as found. The timesheet of the belt
crew for the week ending March 6, 1994 (before the March 29,
1994 longwall move), shows that Massey had 9 hours of over-
time and the other Mahon crew members had 5 hours overtime
(RM Exh. 6).
Also, during the week ending April 3 (during the longwall
move), six of the Mahon employees laid off on April 10
worked from 22 to 24 hours of overtime and five of them from
13 to 15 hours of overtime. One of the other Mahon employ-
ees, operator Troy Porter, worked 29 hours of overtime that
week (GC Exh. 38 p. 4). There were previous longwall moves
on April 18, July 22, September 30, and December 31, 1993
(RML Exh. 5).
Moreover, I find that this purported reason for the April 10
layoffs is an afterthought. There is nothing in Mingo Logan’s
lengthy June 6, 1994 statement of position, submitted within 2
months of the layoffs, about the elimination of Mahon’s rock
work before 1994 being a cause of the layoffs (Tr. 1577; GC
Exh. 42).
Other Construction Work. After referring to the permit prob-
lem and the longwall 10-hour shifts and alluding to completion
of the construction work connected with the May 29 longwall
move, Mingo Logan contends in its brief (Br. at 65) that “the
Mahon employees had completed most of the construction
work in progress, leaving less work for them to do.” It ignores
its decision in the new March 25 budget to not only reinstate
the longwall employees’ 10-hour workday, increasing their
total annual scheduled hours by 11,232 hours, but also to in-
crease the total annual scheduled hours of 86 other employees
by 25,112 hours (over twice that number of hours)—making
available more working hours for performing outby work.
As found, the new budget provided for Mingo Logan to
schedule more working hours for outby construction work, not
less.
5. Concluding findings of Mingo Logan’s violations
a. Antiunion hiring policy
The evidence reveals Mingo Logan’s antiunion hiring policy.
As found, Mingo Logan was referring skilled, experienced
unemployed union miners to Mahon, rather than hiring them
directly. As an example, it refused to hire Dennis Evans and
referred him to Mahon, even though he had 14 or 15 years’
experience, had an associates degree in mining technology, and
could run “practically any underground mine machinery.”
Longwall Superintendent Earl Cooke told him that if he was
hired by Mahon, he would have his “foot in the door to get a
job with” Mingo Logan.
After Dennis Evans was hired by Mahon and the longwall
mining began, he worked about a year on a longwall mainte-
nance team with Mingo Logan employees under Mingo Logan
supervision. Seeking Mingo Logan employment, he “sent four
or five different resumes to them by various foremen who
wanted me on, to no avail.” Finally, as found, Longwall Main-
tenance Foreman Jewell “tried his best to get me on his team,”
but reported back that Mingo Logan was not going to hire him
because of his brother, an organizer for the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 106
As found, Belt Foreman Lowell Cook persuaded Mahon em-
ployee David Massey to take the responsibility of being the belt
crew leader on the promise that “it would be like putting [his]
step in the door” for a Mingo Logan job. After Massey worked
a short time as crew leader on the owl shift under Cook’s su-
pervision, Cook complimented his work, told him that Cook
had not heard any (union) rumors about him, said he deserved
another dollar raise, and had Lenville Mahon raise his pay to
$15 an hour. But during the organizing campaign Massey be-
gan wearing a union sticker on his hard hat, and he was laid off
with other union supporters—instead of being hired by Mingo
Logan.
During the organizing drive, as further found, Lowell Cook
told Massey that if Mingo Logan found out who signed union
cards, they would never be considered to be hired by Mingo
Logan. Cook advised other employees who were wearing union
stickers on their hard hats: “Boys, I’d take them off . . . it might
. . . hurt your chances to get a job” with Mingo Logan. After
Mahon employee Harold Bryant stopped wearing the union
sticker on his hat, Cook told him “I see you took your sticker
off your hat” and added that “there is no way with that sticker
on [his] hat” that he would get a job with Mingo Logan. Bryant
and the other Mahon employees who wore the stickers on their
hats at that time were laid off.
Further confirming Mingo Logan’s antiunion hiring policy,
Coordinator David Terry asked Mahon employee Truman Cam-
eron whether he would work nonunion if Mingo Logan gave
him a job. Cameron gave an equivocal answer that he “would
work either way it went.” Terry then asked why he supported
the Union and he replied, “I was always a union man.” (Tr.
513–514.) Cameron was in the group of 17 cardsigners who
were laid off.
b. Antiunion campaign against the Union
Mingo Logan contends in its brief (Br. at 64, 77) that the
timing of the layoffs, when the organizing drive was progress-
ing, was “based wholly on the reduction in work for Mahon to
do,” that there “is absolutely no evidence that the decision to
reduce the scope of Mahon’s work was based on antiunion
animus,” and no evidence of any motivation for it to stop the
organizing drive.
To the contrary, Mingo Logan’s supervisors carried on an
extensive antiunion campaign during the organizing drive, co-
ercively interrogating Mahon employees to identify the union
leaders and card signers and threatening their employment.
As examples, in addition to Belt Foreman Lowell Cook’s
warning employees about wearing union stickers on their hard
hats, Cook repeatedly interrogated crew leader David Massey
about his and other Mahon employees signing union cards and
instructed Massey to tell his belt crew member that their jobs
would be “on the line” if the Union came in.
Cook told employee Dennis Evans that if the Union goes in,
Mahon “would go off the hill immediately” and “it was possi-
ble” that Mingo Logan would open a new portal at Sharkey
Hollow. Cook similarly told Mingo Logan employee Gary
Amick that “before they would allow the Union to come in they
would shut [the mine] down and reopen another portal around
the hill and hire new employees.”
General Mine Foreman Harrison Blankenship told Mahon
employee Rupert Smith that “if it went union,” Ashland Oil
(the parent company) “would shut the mine down and open up
another portal” at Sharkey Hollow. Foremen Carlos Porter and
Donald Sparkman and Assistant Foreman Charles McDaniel
interrogated Stewart Vint, McDaniel also warned him that “if
you get involved you better watch your back because it will
mean your job,” and Sparkman threatened to discharge Ralph
Jarrell if he signed a union card. Mingo Logan’s supervisors
made other statements to Mahon employees, showing its de-
termination to stop the union drive.
c. Selecting employees for layoff
Credited testimony clearly establishes that Mingo Logan par-
ticipated in selecting the Mahon employees for the layoff on the
basis of their union support.
Mine Superintendent Frye admitted informing Amon Mahon
about the upcoming layoffs (“a reduction in the needs of his
people”) around the time the March 24–25 budget was pre-
pared—“a couple of weeks” before the April 10 layoffs. “Yes,
we discussed things of that type,” the “range of numbers and
the types of work that would be less needed.” (Tr. 1495–1496.)
This would be about the same time that Mahon Assistant Fore-
man Colegrove revealed to Mahon employee Stewart Vint that
Amon Mahon threatened in a meeting (of supervisors) that
“we’re going to take 20” or so of the “oldest men” who were
“involved in the union activity” and lay them off or fire them
“to make them an example to everybody else” and also threat-
ened that employees with union stickers on their hats were
“definitely gone.”
Mingo Logan’s direct involvement was revealed shortly af-
terward, a few days before the April 10 layoffs. Colegrove
revealed to Mahon employee Glen Payne that Coordinator
David Terry and Lenville Mahon were in the Mahon office
going over a list of Mahon employees for a layoff. Colegrove
indicated to Payne that Mingo Logan and Mahon were selecting
employees based on their union support by saying: “I think I’ve
got them straightened out for you [referring to Colegrove’s
belief that Payne had not signed a union card], but you better
watch who you’re talking to [referring to union supporters].”
Although Mingo Logan contends in its brief (Br. at 65) that
it “played no part in the selection of employees for layoff,”
other evidence demonstrates that it was determining who would
be laid off by controlling the skills of employees to be retained
and setting limits on the number of employees in classifications
above general laborer.
For over 2 years, Mingo Logan had been utilizing the ser-
vices of a large number of skilled, experienced union miners on
Mahon’s payroll. Many of these skilled employees were classi-
fied as operators, for whom it was reimbursing Mahon $13 an
hour (plus an undisclosed contracting fee), as compared to
Mahon’s $12 rate for its general laborers. The operators were
performing a wide variety of outby construction and support
jobs.
Some of the operators’ jobs related to rock work, which had
been gradually taken over by Mingo Logan. According to its
brief (Br. at 66–67), “By the first quarter of 1994, Mingo Logan
production crews were performing 95 percent of the rock work
MINGO LOGAN COAL CO. 107
as they advanced” and “Although five or six Mahon employees
were involved in the rock work in the last quarter of 1993, no
Mahon employees performed rock work after the first of Janu-
ary 1994.” The operators were fully occupied performing other
mining jobs until April 10, when 14 of them (three of whom
were being paid at the $12 rate because of Mingo Logan’s limi-
tation on their number) and crew leader Massey were laid off.
Referring to Mingo Logan’s decision-making process that
week before the layoffs, Frye testified that “We talk about the
numbers and the skill levels required,” get the approval of Mine
Manager James Mullins, then let Terry know for him to convey
that information to Amon Mahon (Tr. 1476–1477).
Terry testified that in his meeting that week with Frye and
General Mine Foreman Harrison Blankenship, they concluded
that “The need for skilled type people was no longer there.
General type people was what was needed to finish the work
we had to do.” He testified it was decided in the meeting that
the “number of Mahon people to be reduced” was possibly 18
and that on Saturday, April 9, after getting off from work, he
met with Amon Mahon about 5:30 p.m. and “I told him that the
final number that I had been given was 18,” reducing the num-
ber of Mahon employees from 91 to 73. (Tr. 1684–1685.)
Blankenship testified that when he met with Frye and Terry
on Thursday, April 7, “we didn’t need all the people we had,”
that “we needed less equipment operators” and “more of just
general labor,” that “the only decision that we made was a
number of people we needed and a few skilled levels [such as
firebosses] that we were still going to have to have,” and that
they decided the number of Mahon employees needed was 73
(Tr. 1954–1956, 1979).
On examination by Mahon Counsel Oliver, Amon Mahon
gave a far different story. He testified that around Wednesday
of that week, Frye called him into his office, told him the ap-
proximate number to be laid off, and said “I needed to get with
Dave Terry and we’d work out their exact staffing needs.” He
testified that he then met with Terry and “we worked on the
outline together [of the personnel needed] and when we got
through with the outline it no longer had these rock people or
grade people in it and the outline didn’t have any of those posi-
tions anymore . . . [m]ostly operators or $13 an hour people . . .
and I had no more $13 an hour slots.” (Tr. 1054, 1057–1058,
1137–1138.)
Thus, either version (if true) would show that although
Mingo Logan may not have specifically named the employees
to be laid off, it did identify them—contrary to Terry’s claim
that he “had no idea who the laid-off employees would be”—by
their operator classification and by limiting the skills of em-
ployees to be retained, such as firebosses.
Mingo Logan’s decision that the skilled operators were no
longer needed meant that under its new budget (providing for
increased working hours for outby work and phasing out of
Mahon employees for an all Mingo Logan work force), the
laid-off operators who were paid $12 and $13 an hour with
“limited health insurance and minimal life insurance but no
other benefits” (GC Exh. 38; Mahon brief at 20) would be re-
placed by Mingo Logan outby employees being paid $18 an
hour, plus full fringe benefits.
I infer that Mingo Logan’s and Mahon’s contradictory sto-
ries, of how the layoff decisions were reached, resulted from
their efforts to conceal what actually happened: that (1) Mingo
Logan decided to reverse its policy of using many Mahon con-
tract employees to do outby work in the mine at a saving of
about $6 an hour, (2) it prepared the March 24–25 budget to
phase out the contract labor, increasing its labor costs by over a
third of a million dollars a year, (3) it notified Amon Mahon,
who decided on a plan to lay off 20 or so of the oldest employ-
ees (operators) involved in the union activity, and (4) Terry met
with Lenville Mahon (not Amon Mahon) and selected Mahon
employees for the layoffs on the basis of their union support.
d. Knowledge of union support
The evidence indicates that at the time Coordinator Terry
met with Lenville Mahon in the Mahon office, Mingo Logan
and Mahon had reason to believe that most or all of the 17
cardsigners supported the Union.
As found, five of the laid-off employees (crew leader David
Massey and operators Harold Bryant, Truman Cameron, Den-
nis Hall, and Joseph Turner) had worn union stickers on their
hard hats, and Amon Mahon had threatened that employees
with union stickers on their hats were “definitely gone.” Opera-
tor Michael Dillon admitted to Mahon Shift Foreman James
Hawkins that he had signed a union card. Mingo Logan’s
Foreman Alvin Jewell informed operator Dennis Evans he
could not be hired because his brother was a union organizer.
Mahon Mine Foreman Larry Caldwell talked to operator Ralph
Jarrell about the union sticker on his car. After operator Glen
Payne handed back his union card to Mingo Logan electrician
Robert Weaver, who witnessed his signature, Mingo Logan’s
Foreman Donald Sparkman called him over and said “you bet-
ter stay away from that guy, he’s trouble, he’ll get you in trou-
ble.” Mingo Logan General Mine Foreman Harrison
Blankenship told Rupert Smith “he heard that I had signed a
union card.”
Thomas Bailey participated in distributing union cards (Tr.
365). Operator Jerry Canterbury got into an argument with
Mahon Foreman Colegrove, disputing his word and telling him
that “I’d be making a lot more money” if “I worked as many
hours” with union pay (Tr. 453–454). Mahon knew that John
Eanes’ family were union members and that Eanes had worked
at a mine that was closed during the Union’s organizing cam-
paign (Tr. 366–371). General laborer Jerry Tawney had union
stickers on his car and refused to wear a “Just Say No” sticker
(Tr. 405). Operator Stewart Vint attended union meetings,
talked to employees about union benefits, and tried to get union
cards signed (Tr. 164).
Particularly because of the extensive interrogation of Mahon
employees by Mingo Logan and Mahon supervisors to identify
the union leaders and cardsigners, I infer that when David Terry
and Lenville Mahon met in the Mahon office and went over the
list of Mahon employees for the layoffs, they knew or sus-
pected that the 15 above-named employees were union sup-
porters and also suspected the two remaining card signers, op-
erators Buddy Maynor and James Osborne. Maynor had been
riding to work with Ralph Jarrell (Tr. 324), whom Foreman
Caldwell talked to about the union sticker on his car.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 108
e. Conclusions on violations
The evidence indicates that Mingo Logan caused Mahon to
summarily lay off the 18 employees because it knew or sus-
pected that 17 of them were union supporters and because it
had decided to phase out the contract employees—despite the
increased labor costs of over a third of a million dollars a
year—to undercut the Union’s organizing drive and keep its
own labor force nonunion.
I therefore find that the General Counsel has made a strong
prima facie showing that Mingo Logan was unlawfully moti-
vated when it caused Mahon to lay off the 18 employees on
April 10 because of Mahon employees’ support of the Union in
the organizing drive. Wright Line, 251 NLRB 1083 (1980).
Mingo Logan having failed to demonstrate that it would have
reduced the number of contract employees in the absence of the
Mahon employees’ protected conduct, I find that Mingo Logan
discriminatorily caused the layoff of the 18 Mahon employees
in violation of Section 8(a)(3) and (1) of the Act.
The complaint alleges that Mingo Logan also unlawfully
“improved the benefits of [the] longwall mining employees by
increasing the number of hours they worked.”
In view, however, of the outcome of the employee satisfac-
tion survey in January, indicating that fewer than a third of the
longwall employees wanted to change the 9-hour workday, I
find that the belated reinstatement of the longwall 10-hour
workday was not necessarily a benefit. I find instead that it was
used as a vehicle for unlawfully implementing its decision to
phase out the contract employees, to undercut the Union’s or-
ganizing drive and keep its own labor force nonunion.
I therefore do not find that this was a separate violation of
the Act.
D. Mahon’s Role in April 10 Layoffs
Besides its unfounded contentions similar to those in Mingo
Logan’s brief, Mahon makes two principal contentions in de-
fense of the allegation that it discriminatorily laid off the 18
employees on April 10.
Lack of Knowledge. Relying on Amon Mahon’s testimony
(Tr. 1034), Mahon contends in its brief (Br. at 37) that he “did
not believe that any of his employees were engaged in union
activity,” but believed “that the union organizing campaign was
directed at Mingo Logan employees only.” To the contrary the
parties stipulated at the trial (Tr. 701):

Mahon Enterprises was aware, at least by the time of the April
10, 1994 layoff, that a United Mine Workers of America cam-
paign was taking place among Mingo Logan employees and
Mahon Enterprises employees. [Emphasis added.]

Moreover, both Mahon and Mingo Logan supervisors were
conducting an extensive antiunion campaign, interrogating
Mahon employees to identify the union leaders and cardsigners
and to undercut the organizing effort.
I discredit Amon Mahon’s claim of lack of knowledge as
clearly fabricated.
Ordered Reduction. Mahon contends in its brief (Br. at 45,
54) that it had “valid business reasons” for the April 10 layoffs
because Mingo Logan “ordered the reduction of Mahon em-
ployees” and “the provider of temporary labor, like Mahon,
does not violate the Act when it complies with the mine opera-
tor’s contractual right to demand fewer employees.”
Mahon relies on the Board’s decision in Capitol EMI Music,
311 NLRB 997, 998–910 (1993), in which (unlike here) there
was “no evidence of culpability on the part of [the temporary
employment agency] apart from [its] being a joint employer
with [its client]” where the temporary employees worked. The
Board held:

[I]n joint employer relationships in which one employer sup-
plies employees to the other, we will find both joint employ-
ers liable for an unlawful employee termination (or other dis-
criminatory discipline short of termination) only when the re-
cord permits an inference (1) that the nonacting joint em-
ployer knew or should have known that the other employer
acted against the employee for unlawful reasons and (2) that
the former has acquiesced in the unlawful action by failing to
protest it or to exercise any contractual right it might possess
to resist it.

That decision is clearly distinguishable. As found, Mahon
knew that joint-employer Mingo Logan caused it to lay off the
18 employees for unlawful reasons. Both Mahon and Mingo
Logan supervisors had been interrogating Mahon employees to
identify the union leaders and cardsigners. After Mine Superin-
tendent Frye notified Amon Mahon of the upcoming reduction
of work assigned to Mahon’s employees, Amon Mahon an-
nounced in a meeting (of supervisors) that “we’re going to”
take “20 guys or so” of “the oldest men . . . involved in the
union activity” and lay off or fire them “as an example to eve-
rybody else.” A few days before the April 10 layoffs, Lenville
Mahon met with Mingo Logan Coordinator David Terry and
was going over the names of Mahon employees and selecting
employees for the layoffs on the basis of their union support.
Mahon was not an “innocent” joint employer as in Capitol
EMI Music, without knowledge of the unlawful basis for Mingo
Logan’s reducing the work assignment of Mahon employees.
To the contrary, as envisioned by the Board in its decision in
that case (311 NLRB at 999), this is a case in which Mingo
Logan and Mahon perceived “a mutual interest in warding off
union representation from the jointly managed employees.”
Mingo Logan was budgeting an annual increase in labor
costs of over a third of a million dollars to phase out Mahon
employees and go to an all Mingo Logan work force, to stop
the Union’s organizing drive and keep its own labor force non-
union. Mahon, in turn, wanted to avoid unionization of its con-
tract labor, and it sought the good will of Mingo Logan to retain
as many as possible of its employees in the mine as long as
possible.
Under these circumstances Mahon collaborated with Mingo
Logan in stopping the organizing drive. It assisted Mingo
Logan in identifying the Mahon union leaders and cardsigners,
joined in selecting the 17 cardsigners for layoff because of their
actual or suspected union support, and laid them off (along with
a nonunion employee) to implement Mingo Logan’s decision to
begin phasing out the contract labor.
Mahon contends in its brief (Br. at 65) that Mingo Logan
“never indicated that Mahon should lay off any specific indi-
viduals.” It admits (Br. at 17–18), however, that 14 of the 18
MINGO LOGAN COAL CO. 109
laid-off employees were equipment operators, that they were in
the $13 slot, and that they were laid off because “those slots
[were] gone by direction of Mingo Logan.”
Falsely referring again to belt crew leader David Massey as a
foreman, Amon Mahon testified (Tr. 1062) that “we got rid of a
foreman on the third shift,” used Assistant Foreman Jim Auxier
“to take over the belt people,” and laid off Massey (even
though Mingo Logan had selected Massey to serve as crew
leader). When calling and summarily discharging Massey as 1
of the 18 laid-off employees, as found, Amon Mahon told
Massey “it wasn’t [his] doings, he didn’t have a say-so” in
laying Massey off. Mingo Logan obviously had directed his
layoff because he had been wearing a union sticker on his hard
hat.
I find that the General Counsel has made a prima facie show-
ing that Mahon was unlawfully motivated when it participated
with Mingo Logan in the identification, selection, and layoff of
the employees because of Mahon employees’ support of the
Union in the organizing drive. Mahon having failed to demon-
strate that it would have engaged in this conduct in the absence
of the Mahon employees’ protected conduct, I find that Mahon
discriminatorily laid off the 18 employees on April 10 in viola-
tion of Section 8(a)(3) and (1).
E. Necessary and Appropriate Remedy
The evidence clearly shows that Mingo Logan flouted the
Section 7 rights of both Mingo Logan and Mahon employees,
depriving them of their statutory right to an uncoerced choice
on the question of union representation.
During the union organizing drive, Mingo Logan supervisors
had been threatening to close the mine if the Union came in and
warning Mahon’s contract employees against supporting the
Union if they wanted employment by Mingo Logan (for higher
wages and benefits).
On April 10 Mingo Logan caused Mahon to summarily lay
off 18 employees, including a crew leader, 14 skilled operators,
and 2 other union cardsigners. These sudden, unannounced
layoffs, occurring when only about a fifth of the mine had been
developed, “stopped the [organizing] drive completely” among
both the Mingo Logan and Mahon employees. The interna-
tional representative who lead the organizing drive credibly
testified that the Union did not get a single card signed after the
layoffs, because (in his opinion) “It scared everybody to death.”
The Union’s April 28 election petition was later withdrawn.
Mingo Logan had decided to phase out Mahon’s contract la-
bor and go to an all Mingo Logan work force, despite the in-
creased labor costs of over a third of a million dollars a year.
For about 2 years before the organizing drive, it had been using
the contract labor with purposes of (a) keeping its own work
force nonunion, (b) saving about $6 an hour in labor costs, and
(c) obtaining the work of skilled, experienced, and unemployed
union miners without hiring them directly.
Of course an employer has the right to decide, for lawful rea-
sons, to cease using contract labor. But Mingo Logan’s motiva-
tion for phasing out the contract labor, despite the great in-
crease in labor costs, was for the specific purposes of stopping
the organizing drive, preventing an uncoerced election, and
keeping its own work force nonunion.
Now that Mingo Logan has succeeded in preventing a fair
election and keeping its work force nonunion by causing the
discriminatory discharge of the 18 Mahon employees, a major
problem is how to devise an appropriate remedy for this flout-
ing of employee Section 7 rights. The General Counsel argues
in its brief (Br. at 43–44) that “it is highly probable that the
discriminatees would have been offered positions with Respon-
dent Mingo Logan” and concludes that it is necessary to “im-
pose an affirmative hiring obligation.” I agree.
The Mahon employees had a reasonable expectation of being
hired by Mingo Logan for higher wages and full fringe benefits,
but only if they were willing to continue working nonunion.
As found, Mingo Logan Longwall Superintendent Early
Cooke referred Dennis Evans to Lenville Mahon, telling him
that if hired, he would have his “foot in the door to get a job
with” Mingo Logan. When Mingo Logan Belt Foreman Lowell
Cook offered David Massey the job of belt crew leader on the
owl shift, Massey first declined, stating, “I just wanted to be a
belt man.” Massey later took the job when Cook told him “it
would be like putting [his] step in the door” for getting a Mingo
Logan job.
Meanwhile, Mingo Logan was hiring a large number of the
Mahon contract employees. As found, from April 12, 1992,
until February 22, 1994 (after the union organizing began in
January 1994), it hired a total of 41 Mahon employees. Its
supervisors made referenced to Mahon employees about their
being hired by Mingo Logan, but put them on notice that
Mingo Logan employment would be denied if they were found
to be supporting the Union or if they were not willing to con-
tinue working nonunion.
Foreman Cook informed crew leader Massey that if Mingo
Logan found out who signed union cards they would never be
considered to be hired by Mingo Logan. He also told Dennis
Hall and other Mahon employees wearing union stickers on
their hats, “Boys, I’d take them off . . . it might . . . hurt your
chances to get a job” with Mingo Logan. After Harold Bryant
removed the sticker from his hat, Cook told him “there is no
way with that sticker on [his] hat” that he would get a job with
Mingo Logan.
Mingo Logan Coordinator David Terry made it clear during
the election campaign that Mingo Logan was seeking employ-
ees who would continue to work nonunion. As found, Terry
specifically asked Mahon employee Truman Cameron whether
he would work nonunion if Mingo Logan gave him a job. Cam-
eron gave an equivocal answer and he was laid off instead.
Although Dennis Evans had been told that working for
Mahon would enable him to have his “foot in the door to get a
job with” Mingo Logan and even though he “sent four or five
different resumes” to Mingo Logan by “various [Mingo Logan]
foremen” who wanted him on the payroll and Longwall Main-
tenance Foreman Jewell “tried his best” to get him on Jewell’s
maintenance team, as found, Mingo Logan would not hire him
because of his brother, an organizer for the Union. He also was
laid off instead.
I find that an appropriate remedy must include a requirement
that Mingo Logan offer the discriminatorily laid-off Mahon
employees the employment that they had reasonably expected
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 110
before Mahon employees supported the Union in the organizing
campaign.
In making this finding, I am convinced that in the circum-
stances of this case, the policies of the Act would not be effec-
tuated by an order requiring Mahon instead to offer reinstate-
ment to them, either at this mine (whether or not any of its em-
ployees are still working there), or at a different location. Such
a reinstatement would not restore the opportunity for an unco-
erced election that Mingo Logan and Mahon employees had
before Mingo Logan’s unlawful conduct.
Moreover, if Mahon (instead of Mingo Logan) were required
to reinstate the laid-off employees at this mine, this would
mean that Mingo Logan would profit by such a remedy. When
Mingo Logan caused Mahon to lay off the 18 employees, it was
reversing its policy of using a large number of contract em-
ployees to perform outby work at a saving of about $6 an hour.
It continued that policy until it decided it was necessary to
phase out the contract labor to keep its own work force nonun-
ion. Mingo Logan is now paying the higher wages and full
fringe benefits to its own employees to perform the work of the
laid-off employees. Replacement of these employees by lower-
paid Mahon employees would be rewarding Mingo Logan for
its unlawful conduct and would not effectuate the purposes of
the Act.
Because Mingo Logan’s unlawful conduct has precluded any
certainty in determining when the laid-off employees would
have been hired by Mingo Logan, I find it necessary to assume
that in the absence of that conduct, the 18 employees would
have been hired by Mingo Logan on April 10, 1994, when the
unlawful conduct occurred.
I therefore find that a necessary and appropriate remedy must
include an affirmative hiring obligation and backpay from that
date.
CONCLUSIONS OF LAW
1. By discriminatorily laying off 18 employees on April 10,
1994, Respondents Mingo Logan Coal Co. and Mahon Enter-
prises, Inc. have engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(3) and (1) and
Section 2(6) and (7) of the Act.
2. By coercively interrogating employees, by threatening
employees with loss of jobs, closure of the mine, and not hiring
mine employees on its own payroll for engaging in union activ-
ity, and by otherwise interfering with their right to engage in
union activity, Respondent Mingo Logan violated Section
8(a)(1).
3. By coercively interrogating employees, by threatening
them with layoff and loss of jobs for engaging in union activity,
and by otherwise interfering with their right to engage in union
activity, Respondent Mahon violated Section 8(a)(1).
4. Respondents Mingo Logan and Mahon were joint employ-
ers of Mahon employees.
REMEDY
Having found that the Respondents have engaged in certain
unfair labor practices, I find that they must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent Mingo Logan having caused Respondent
Mahon to discriminatorily lay off 18 employees on April 10,
1994, preventing their employment by Mingo Logan, it must
offer them employment and make them whole for loss of
Mingo Logan earnings and benefits, computed on a quarterly
basis from date of their layoff to date of proper offer of em-
ployment, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
The Respondent Mahon having discriminatorily laid off the
18 employees on April 10, 1994, at Respondent Mingo Logan’s
behest, it must jointly with Mingo Logan make them whole for
the loss of earnings and benefits, computed on a quarterly basis
from date of their layoff to date of proper offer of employment
by Mingo Logan, less any net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
[Recommended Order omitted from publication.]