PBS Coals

National Labor Relations Board - Board Decisions

Mar 14, 1991

302 N.L.R.B. 60 (N.L.R.B. 1991)

60
302 NLRB No. 8
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance of all the relevant
evidence convinces us that they are incorrect. Standard Dry Wall Products,
91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing the findings.
2 Employee Watson testified that Will told him following Foor’s discharge,
‘‘we all know why it was done,’’ and ‘‘you know damn well the union is
going to get him the best attorney they can.’’ Will denied making the state-
ments, and the judge did not make any credibility findings with regard to this
testimony. There are no exceptions to the judge’s failure to make a credibility
finding, and the General Counsel does not rely on Watson’s testimony. More-
over, it is undisputed that Will did not participate in the decision to terminate
Foor. Because the testimony of President Scott was credited that he made the
decision to discharge Foor, and that his reasons for doing so had nothing to
do with Foor’s union activities, we find that his testimony outweighs any pos-
sible implications of Will’s statements, if made. Accordingly, we find it unnec-
essary to resolve whether in fact such statements were made.
PBS Coals, Inc. and United Mine Workers of Amer-
ica. Case 6–CA–21118
March 14, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
On September 21, 1990, Administrative Law Judge
Irwin H. Socoloff issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed a brief in opposition.
The National Labor Relations Board has delegated
its authority in this proceeding a to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, PBS Coals, Inc., Friedens,
Pennsylvania, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Patricia J. Scott, Esq., for the General Counsel.
Frederick J. Bosch. Esq., of Philadelphia, Pennsylvania, for
the Respondent.
DECISION
STATEMENT OF THE CASE
IRWIN H. SOCOLOFF, Administrative Law Judge. On a
charge filed on July 11, 1988, by United Mine Workers of
America (the Union), against PBS Coals, Inc. (the Respond-
ent), the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 6, issued a com-
plaint dated September 2, 1988, alleging violations by Re-
spondent of Section 8(a)(3) and (1) and Section 2(6) and (7)
of the National Labor Relations Act (the Act). Respondent,
by its answer, denied the commission of any unfair labor
practices.
Pursuant to notice, trial was held before me in Somerset,
Pennsylvania, on March 9, 10, and 28, 1989, at which the
General Counsel and the Respondent were represented by
counsel and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evi-
dence. Thereafter, the parties filed briefs which have been
duly considered.
On the entire record in this case, and from my observa-
tions of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Pennsylvania corporation, maintains a facil-
ity in Friedens, Pennsylvania, where it is engaged in the min-
ing of coal and related minerals. During the year preceding
issuance of the complaint, Respondent, in the course and
conduct of its business operations, purchased and received at
its Pennsylvania facility goods and materials valued in excess
of $50,000 which were sent directly from points located out-
side the Commonwealth of Pennsylvania. In that same time
period, it sold and shipped from its Pennsylvania facility
products, goods, and materials valued in excess of $50,000
directly to points outside the Commonwealth. I find that Re-
spondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent’s surface mining operations at Friedens are
conducted at seven or eight different jobsites and cover a
400- to 500-acre area. In all, some 220 individuals are em-
ployed to work at the various sites.
Following unsuccessful efforts in prior years, the Union
launched an organizational drive among the PBS employees
in March 1988. On March 14, employee Richard Foor at-
tended a union meeting and, thereafter, Foor actively sup-
ported the Union. Respondent’s officials first learned of the
organizational activity in mid-April, when nonemployee or-
ganizers distributed literature at the entrance to a jobsite. No
later than May 13, 1988, they learned of Foor’s support for
the drive as, on that date, Foor and employee Terry Waler
distributed literature at a jobsite entrance. On July 6, 1988,
Foor was discharged.
In the instant case, the General Counsel contends that Re-
spondent discharged Foor in reprisal for his union activities,
in violation of Section 8(a)(3) of the Act. Respondent asserts
that Foor’s discharge occurred solely as a result of his abu-
sive and hostile attitude, directed at the Company in general
and his supervisors in particular, and due to his involvement
in criminal activities on company property. Also at issue is
whether Respondent violated Section 8(a)(1) of the Act by
threatening its employees with loss of employment and plant
closure if they selected the Union to represent them.
61PBS COALS
1 The factfindings contained in this section are based on a composite of the
documentary and testimonial evidence introduced at trial. Where necessary to
do so, in order to resolve significant testimonial conflict, credibility resolutions
have been set forth, infra. In general, I have relied on the testimony of Re-
spondent’s president, Robert Scott, who impressed me as a sincere, honest, and
most believable witness in possession of a clear recollection of events. On the
other hand, I have viewed with suspicion uncorroborated testimony of the al-
leged discriminatee, Foor, in light of his unconvincing demeanor as a witness
and his recent conviction of a felony and misdemeanors involving dishonesty.
B. Facts1
Richard Foor was employed by Respondent for some 20
years. At the time of his July 6, 1988 discharge, he worked
as a dragline operator. Shortly after the discharge, on Octo-
ber 3, 1988, Foor pleaded guilty to felony and misdemeanor
charges of dealing in vehicles with removed or falsified vehi-
cle identification numbers, activities which he had pursued
on company premises in the months preceding his separation
from employment.
In February 1988, and prior to the advent of the Union,
Foor received a verbal warning from the PBS general man-
ager, Dwight Latham, for using profanity on the company
radio. Foor, operating his personal CB radio, which was
keyed to the same channel as the company radios (used for
safety purposes) were tuned, complained about an assignment
received from one of his supervisors, using terminology in-
cluding ‘‘I don’t give a fuck what you do.’’ Latham told
Foor that his attitude, and his use of profanity over the radio,
were intolerable, and he cautioned Foor to stay off the radio.
In his testimony in this proceeding, Latham conceded that he
has heard other employees use profanity at work, but, he fur-
ther testified concerning the Foor incident, ‘‘more than the
profanity was the attitude that it was used with.’’
As noted, Foor attended his first union meeting on March
14. Thereafter, he solicited the signatures of his fellow em-
ployees on union authorization cards, on and off the job, and,
in all, obtained seven signed cards. Foor also placed union
stickers on personal items which he carried in his car. He
testified that, within a month of the March 14 meeting, he
placed union insignia on the car itself, which he drove to
work. There is evidence that Foor was the only employee to
display such insignia prior to May 1988.
On April 7, Foor received a written warning, issued by
Foreman Rich Lively, for ‘‘misuse of company radio and
interruption of job safety and production’’ which occurred on
April 5. In that connection, Foor and employee Terry Walk-
er, on April 5, using the same channel to which the company
radios were tuned, broadcast music over their CB radios,
thereby blocking company access to the airwaves. Walker re-
ceived a verbal reprimand. PBS employees had previously
been instructed that the radios were for company use only,
for communication and safety purposes.
On April 15, Foor, at his request, and accompanied by em-
ployee Walker, met with Respondent’s president, Robert
Scott. According to the credited testimony of Scott, Foor
voiced his displeasure at having received the written warning
for misuse of the company radio. Scott stated that the radio
was there for safety reasons and for communications between
the draglines and the other equipment. When Foor admitted
that he knew that what he had done was wrong, Scott asked
him why he did it. Foor stated that he did not like his super-
visors, and he was ‘‘baiting’’ them. Scott warned Foor that:
. . . its silly to try and bait your supervisors. And if
you keep on doing that you’ll get yourself into trouble.
You keep on with that attitude you have . . . you just
cannot run up against your supervisors just because you
don’t like them, that just doesn’t get you anywhere.
Why don’t you keep your head down . . . keep a low
profile, keep yourself out of trouble and let’s sort things
out, just stay out of trouble.
Foor voiced complaints about his supervisors, and their
methods of operation, and asked Scott for a transfer to a
newly opened jobsite which was closer to his home. Scott
told Foor that he would be favorably considered for the
transfer.
Foor testified that, at the April 15 meeting, Scott stated
that the Company could not afford a union. Scott denied that
he made such a statement and his testimony was corrobo-
rated by employee Walker. For the reasons stated at footnote
1, I credit Scott and find that, at the meeting in question, he
did not tell Foor and Walker that Respondent could not af-
ford a union.
On May 13, Foor and Walker openly distributed union
leaflets at a jobsite entrance and, concededly, at least as of
that date, Respondent became aware of Foor’s support for,
and activities on behalf of, the Union. Later that month, Foor
made further complaints to Scott about the operational meth-
ods of the general manager, Dwight Latham. On May 17,
Foor’s request to transfer to another jobsite was granted.
Foor leased a garage, owned by PBS and located on com-
pany premises, which he used to dismantle cars and sell
parts. On March 29, Respondent sent a letter to Foor con-
cerning the complaints of neighbors about the operation of
the garage and violations of the lease agreement. In mid-
April, Respondent learned that the district attorney suspected
that Foor was using the garage to dismantle stolen vehicles.
In May, Respondent was advised that the police had recov-
ered a stolen vehicle from the premises, after dragging a
pond. On May 19, PBS sent a letter to Foor, terminating the
lease agreement. On June 7, Foor was arrested while at
work.
When Foor arrived for work on July 6, he learned that Re-
spondent had changed an earlier operational decision, and
would operate the pan instead of the dragline that morning.
When Latham appeared at the jobsite, he was confronted by
Foor. Foor testified that he told Latham that:
I had a fucking dog smarter than this outfit that could
run this operation better . . . I asked him if this was
going to be a national fucking pastime, switching back
and forth from pan to drag . . . when my dog had to
take a shit, he went and done it, it didn’t take him three
months to decide.
Later that day, Latham gave Foor a termination letter which
made reference to the confrontation that day in which Foor
‘‘directed profane and abusive language’’ to Latham and
‘‘otherwise demonstrated an insubordinate and disrespectful
attitude.’’
Lathan, testified that, following Foor’s July 6 outburst, he
recommended to Respondent’s officials that Foor be dis-
charged as he was unwilling any longer to put up with
Foor’s insubordination and his attitude toward his job, his su-
pervisors, and the Conpany. Latham testified that, while em-
62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 See TVA Terminals, 270 NLRB 284 (1984).
3 See NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
ployees commonly used profanity on the job, no employee
had ever spoken to him the way that Foor did on July 6.
Lathan, further testified that, at the time of the discharge rec-
ommendation, he had no problem with the quality of Foor’s
work and was aware of his support for the Union.
The decision to discharge Foor, after receiving the rec-
ommendation of Latham, as made by Scott. He testified that
the Latham incident convinced him that Foor would not im-
prove his attitude and that nothing else he could say ‘‘was
going to change the chap.’’ He further testified, concerning
the reasons for the discharge:
Well, really the whole history. It [the Latham con-
frontation] was almost like a last straw. It was a com-
bination all the way through from the verbal, the writ-
ten, the chats I’d had with him, the criminal investiga-
tions, and again, you know an ongoing, if you like, in-
subordination and disrespect.
Scott denied that union activities played any role in the deci-
sion.
Employee Gary Watson, who was present during the Foor-
Latham confrontation of July 6, testified that, on July 7,
Foreman Robert Will told him that he had had nothing to do
with the Foor discharge. According to Watson, Will stated
that ‘‘we all know why it was done’’ and, further, that ‘‘you
know damn well the union is going to get him the best attor-
ney they can.’’ Watson further testified that Will advised him
to compile notes of what went on during the Foor-Latham
incident. Will, in his testimony, denied having discussed the
Foor termination with Watson, or having told Watson that
the Union would get Foor a good attorney. He conceded that
he might have told Watson to compile notes about the July
6 incident.
Beginning in March, and continuing until August, John
Matsco, Respondent’s safety director, conducted safety train-
ing classes on Respondent’s premises. Each class was at-
tended by 10 to 12 employees. According to Matsco, at these
meetings, employees frequently raised the subject of the
Union. Employee Walker testified that, at a safety class con-
ducted on May 20, 1988, Matsco stated that the Company
could not afford a union and, if the Union came in, the em-
ployees would all be looking for work. Employee Richard
Zorn testified about a safety meeting held on July 15. Ac-
cording to Zorn, at that meeting, an employee asked Matsco
what he thought about the Union. Matsco responded, stating
that he believed that if the Company were organized it would
be forced to shut down as it could not afford to pay the
Union.
Foor testified that, early in June, Matsco approached him
at his work station and stated that the Company could not
afford a union and, if the Union got in he was sure the em-
ployees would all be looking for work. Matsco asked Foor
to remove the stickers from his car, and Foor refused. Em-
ployee Rex Stone, who was present for a portion of the
Foor-Matsco conversation, testified that Matsco told Foor
that if the Union got in, the Company would have to close.
Matsco, in his testimony, denied ever telling the employ-
ees at safety meetings, or Foor privately, that, if the Union
got in, the Company would shut down. According to Matsco,
he talked about the Union at safety meetings only when the
subject was raised by the employees. He testified that he told
the employees that, if the Union came in, the Company
‘‘could’’ bargain in good faith but, if the Company could not
come to terms with the Union, and there was an economic
strike, the Company could continue operations by hiring re-
placements. If the Company could not keep the operation
going, there might be a shutdown. Matsco further testified
that he talked to the employees about the economics of the
coal industry, but did not discuss the cost of having a union.
As to the early June conversation with Foor, Matsco con-
ceded that he askd Foor to remove the union stickers from
his car. Matsco denied that he told Foor that if the Union
got in, the Company would shut down.
Walker, Zorn, and Stone impressed me as believable wit-
nesses. On the other hand, Matsco’s testimony concerning
the safety meetings, and his conversation with Foor, was
convoluted, and lacked the ring of truth. Based on the testi-
mony of Walker and Zorn, I find that, at the May 20 and
July 15, 1988 safety meetings, Matsco stated, respectively,
that, if the Union came in the employees would all be look-
ing for work and, if the Company were organized, it would
be forced to shut down. I also find, based on Stone’s testi-
mony, that, in early June, Matsco told Foor that, if the Union
got in, the Company would have to close.
C. Conclusions
As shown in the statement of facts, Respondent, by its su-
pervisor, John Matsco, told its employees at group meetings
held on May 20 and July 15, 1988, and at a private meeting
with Foor, attended by Stone, in early June 1988, that, if the
employees selected the Union to represent them, they would
lose their jobs and/or Respondent would shut down. Those
statements were not accompanied by objective appraisal of
facts and were patently designed to intimidate.2 As Matsco’s
statements cannot be categorized as carefully phrased pre-
dictions based on objective facts so as to convey a belief that
closure and/or loss of employment was a probable con-
sequence of unionization beyond Respondent’s control, such
statements do not fall within the protections of Section 8(c)
of the Act.3 I conclude that Respondent, by Matsco’s re-
marks of May 20, early June, and July 15, 1988, violate Sec-
tion 8(a)(1) of the Act in threatening its employees with loss
of employment and plant closure if they selected the Union
to represent them.
I have also found that, at the July 15 meeting, with em-
ployees Foor and Walker, Scott did not state that the Com-
pany could not afford a union. Accordingly, the complaint al-
legation in that regard must be dismissed.
Finally, I conclude that Foor’s discharge occurred as a re-
sult of his abusive, hostile, and insubordinate attitude toward
Respondent and its supervisors, and due to his involvement
in criminal activities on Respondent’s premises, and not as
a result of his union activities. In reaching this conclusion,
I acknowledge that the General Counsel established a prima
facie case of unlawful discharge in showing that, at the time
of the discharge, Foor was active on behalf of the Union;
Respondent knew of his activities and sentiments and, as re-
vealed by the Matsco threats, Respondent harbored antiunion
animus.
63PBS COALS
4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
5 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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
However, Respondent has rebutted the General Counsel’s
case and proven that the discharge would have occurred in
the absence of protected activities. In the months preceding
the discharge, Foor received verbal and written warnings for
abusive conduct and conduct interfering with production and
safety. The first warning predated his union activities and the
second came, apparently, before Respondent was aware of
those activities. In Mid-April 1988, Foor told Respondent’s
president that he was trying to ‘‘bait’’ his supervisors. In
June, he was arrested, and he was subsequently convicted for
havng engaged in felonious activities on Respondent’s prem-
ises. In July, immediately preceding the discharge, Foor
launched an extremely abusive diatribe at Respondent’s gen-
eral manager, which, standing alone, adequately would ex-
plain a discharge for misconduct. In these circumstances, and
in light of the convincing testimony of Scott, acceptance of
Respondent’s argument, that the discharge occurred as a re-
sult of the above-referenced factors and not because of union
activities, is compelling. I therefore conclude that, by dis-
charging Foor, Respondent did not violate the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent set forth in section III, above,
occurring in connection with its operations described in sec-
tion I, above, have a close, intimate, and substantial relation-
ship to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practice conduct in violation of Section 8(a)(1) of
the Act, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the polices of the Act.
CONCLUSIONS OF LAW
1. PBS Coals, Inc. is an employer engaged in commerce
and in operations affecting commerce, within the meaning of
Section 2(2), (6), and (7) of the Act.
2. United Mine Workers of America is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By threatening its employees with loss of employment
and plant closure if they selected the Union to represent
them, Respondent has engaged in unfair labor practice con-
duct within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Respondent has not otherwise violated the Act as al-
leged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, PBS Coals, Inc., Friedens, Pennsylvania,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with loss of employment
and plant closure if they select the Union to represent them.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its Friedens, Pennsylvania facility copies of the
attached notice marked ‘‘Appendix.’’5 Copies of the notice,
on forms provided by the Regional Director for Region 6,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
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.
WE WILL NOT threaten employees with loss of employ-
ment or plant closure if they select a union to represent
them.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of their rights
under the Act.
PBS COALS, INC.