PBS Coals, Inc.

National Labor Relations Board - Board Decisions

Apr 21, 1969

175 N.L.R.B. 454 (N.L.R.B. 1969)

454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
PBS Coals, Inc., Mount Storm Mining Company
and Allegheny Mining Corporation and United
Mine Workers of America . Case 5-CA-3891
April 21, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On December 19, 1968, Trial Examiner Boyd
Leedom issued his Decision in the above-entitled
proceeding, finding that Respondent Mount Storm
Mining Company had engaged in certain unfair
labor practices and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. The Trial Examiner also found that said
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and
recommended that the complaint be dismissed with
respect to these allegations. Thereafter, Respondents
Mount Storm Mining Company, PBS Coals, Inc.,
and Allegheny Mining Corporation, the General
Counsel, and the Union filed exceptions to the Trial
Examiner's Decision and supporting briefs.
Respondents also filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order, the
Recommended Order of the Trial Examiner, as
modified herein, and orders that Respondent, Mount
Storm Mining Company, Mount Storm, West
Virginia, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial
Examiner's Recommended Order, as so modifed:
Add the following paragraph as the first indented
paragraph of the Trial Examiner's notice:
'The following madvertences contained in the Trial Examiner ' s Decision
are hereby corrected August 13 should be April 13 (subsection II, A,
seventh paragraph ), Section 8(a)(3) should be Section 8(a)(1) (subsection
II, A, seventh paragraph) Also, we shall amend the Appendix to the
Recommended Order of the Trial Examiner and include a provision
against unlawful interrogation such as found herein
WE WILL NOT interrogate our employees
concerning their union activity or such activity by
other employees, in a manner constituting a
violation of Section 8(a)(1) of the National Labor
Relations Act, as amended.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
BOYD LEEDOM, Trial Examiner: This case was tried in
Oakland, Maryland, on July 9 thru 11, 1968. On an
original charge dated September 7, 1967, and an amended
charge filed March 26, 1968, a complaint issued on April
10, 1968.
The case grows out of an organizational effort made by
United Mine Workers in the deep mine of Mount Storm
Mining Company that resulted in the selection by the
employees of the Union named above as their bargaining
representative in an election held April 14, 1967. The
complaint alleges unlawful interrogation, threats, and
promises of benefits by Respondent Mount Storm Mining
Company to the employees during the Union's campaign,
in violation of Section 8(a)(1) of the National Labor
Relations Act, as amended; and it is contended that
Respondent closed its deep mine not only to thwart the
Union and the employees in the mine who lost their
employment in the closing, but also to chill unionism
among the employees of other integrated and interrelated
enterprises (where violations of the Act have been found
previously) in contravention of Section 8(a)(3).
I find certain incidents of interrogation, threats, and
promises to be in violation of Section 8(a)(1) of the Act
essentially as alleged in the complaint. With respect to the
closing of the mine, however, I find such action was taken
because of the hazard of continued operation and the
financial losses involved. I therefore recommend, as
hereinafter appears, that the complaint be dismissed as to
the alleged violation of Section 8(a)(3)
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE EMPLOYER AND THE LABOR ORGANIZATION
Jurisdiction
I find and conclude that the allegations of the
complaint as to the nature and extent of the business of
Mount Storm Mining Company are true and conclude
therefrom that this Company is an employer engaged in
commerce within the meaning of the Act.
I also find and conclude that United Mine Workers of
America, the Union herein, is a labor organization within
the meaning of Section 2(5) of the Act.
This matter is therefore within the jurisdiction of the
National Labor Relations Board.
II. THE UNFAIR LABOR PRACTICES
A. The 8(a)(1) Violations
As further background to the instant proceeding it is
noted that the Union began a campaign to organize the
employees of several mining enterprises, allegedly
controlled by one Leonard Fry. Growing out of such
campaign certain unfair labor practices were determined
by the National Labor Relations Board to have been
175 NLRB No. 75
PBS COALS, INC.
committed in Allegheny Mining Corporation, 167 NLRB
No. 15; in Kingwood Mining Company, 166 NLRB No.
113, and in a second case at Kingwood, Kingwood Mining
Company, 171 NLRB No. 24.
When the union campaign started, the mining operation
involved in the instant case was being carried on by
Allegheny Mining Corporation, respondent in the first
case cited above. In addition to the deep mining project
involved here, Allegheny Mining Corporation operated,
and at the time of the trial still operated, a strip mine.
Late in 1966 Mount Storm Mining Company was
chartered by the State of West Virginia This new
corporation soon after its organization became the
operator of the deep mine, Allegheny Mining Corporation
continued to carry on the strip mining operation.
The union campaign to organize employees in these
allegedly related enterprises succeeded as to the new
employees of the newly formed Mount Storm Mining
Company in an election held April 14, 1967. The Union
was certified as the bargaining representative of such
employees on May 9, 1967.
Fred Shaulis is the son-in-law of Leonard Fry,
hereinbefore named He made a speech to the Mount
Storm employees on April 13, the day before the union
election Several allegations of violations of the Act relate
to statements made by Shaulis in this speech At the time
he was "technical advisor" of Christopher Grimshaw,
president of Respondent I find and conclude that he
made the statements hereinafter discussed, and that these
statements did violate the Act.
I credit the testimony of the former employee Gerald
Sanders who attended the meeting at which Shaulis made
the speech. He testified that Shaulis told the employees of
Respondent that they should not vote for the Union; that
the employees were "going to start getting a weeks paid
vacation and get 5 paid holidays."
There is no denial by Shaulis in his testimony, that he
mentioned these benefits concerning which Sanders
testified Shaulis, however, characterized these and others,
as preexisting benefits. He testified also that he circulated
among the men in attendance at his speech a mimeograph
sheet setting forth all the benefits that the employees
"received "
I find it unnecessary to make a determination as to
company prior planning or "granting," and earlier
announcement of such benefits. According to Shaulis'
testimony the action respecting improved fringe benefits
all took place, and announcement thereof was made by
Allegheny Mining Company, before the deep mine
operation was severed from Allegheny. Employees who
may have heard about company action for improved
working conditions (assuming without deciding that there
was such action) might well have concluded that the
benefits would have no application after the subsequent
change in the operation, i.e , from Allegheny to Mount
Storm. No employee was called by Respondent to testify
about any previous announcement of the new holiday and
vacation benefits. In any event, the Shaulis speech was
assurance of better things to come, and even though it be
deemed a renewed promise of one formerly made, it was a
promise designed to influence the men to vote against the
Union. Apart from the more basic question, hereafter
dealt with at more length, why the management of Mount
Storm Mining Company chose to oppose the Union when
a decision had already been made to close down the
operation, the question arises why as late as August 13
when the decision to close the mine had been made, any
reference would be made to improved working conditions
455
respecting jobs that would not exist. The only possible
answer to this question is that these statements were made
to influence improperly the employees in the election. I
find them in violation of Section 8(a)(3).
The complaint alleges that Robert Selliff, an admitted
supervisor for Respondent, inquired of employees which of
them "was doing the most talking about the Union." I
credit the testimony of the witness Gerald Sanders that
Selliff made this inquiry of him and find that the inquiry
coming from a management representative, a few weeks
prior to the union election, violated Section 8(a)(1) of the
Act.
I also find and conclude that at the same time and
place, that is in the supervisor's office, Selliff told Sanders
he had been told by Leonard Fry he would not operate the
mine "with the Union." Sanders appeared to me to be a
credible witness. His was a plausible story with persuasive
details as to this conversation he had with Selliff. Selliff
also impressed me favorably as a witness in many
respects. He virtually made an admission of his
interrogation of Sanders as to which of the men was most
active for the Union. As to the matter of Sanders' claim
that Selliff had also told him that Fry would not operate
the mine with the Union, he answered first somewhat
evasively, saying he didn't recall such statement. Then,
when pressed by counsel for Respondent, he made a
categorical denial. I cannot credit the denial, however,
against the more persuasive testimony of Sanders; and
find and conclude that Selliff made this statement as a
relayed threat that the mine would close if the Union won
the election, in violation of Section 8(a)(1).
The complaint contains other allegations of violation of
Section 8(a)(1). Partly because of the paucity of evidence
in support of some aspects of such allegations, and partly
because they are of little or no significant impact in the
totality of the case, adding nothing to the support of the
remedy to be recommended, no finding is made respecting
the same. To illustrate, several witnesses called by the
General Counsel apparently testified primarily to establish
the connection of the various companies involved herein,
and only incidentally, it appears, did they offer testimony
presumably in support of an 8(a)(1) violation Much of
this testimony is lacking in probative force and some is of
unascertainable impact on any substantial issue in the
case. Some is attributable to persons of uncertain
supervisory status. With respect to one witness, at least,
the testimony adds nothing to the evidence. So it was with
parts of several other witnesses' testimony which had to
do with casual interception by certain employees of radio
messages between management personnel and other
employees, indicating the mine was to close down, quite
inconsequential news in view of the formal notice of the
imminent shutdown previously given to all employees.
B. The Alleged Violation of Section 8(a)(3)
As indicated the General Counsel's case as to violations
of Section 8(a)(3) rests on the theory that the mine was
closed to thwart the Union; and that all of the employees
were thereby unlawfully deprived of their employment.
This theory of the case fails for the reason that I find and
conclude from all evidence , as previously indicated, that
the mine was closed for two reasons neither of which was
based on union considerations. The first reason was the
sustained financial loss involved in the operation; and the
second was the great risk of endangering the lives of the
miners when it was ascertained by a newly made survey
that the main heading of the present operation was
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dangerously close to old workings that were possibly filled
with water and combustible gas.
In view of the determination that the mine was not
closed because of the employees' activity for the Union,
and therefore not in violation of the employees' Section 7
rights, the contention of the General Counsel is not
pertinent that the unlawful closing of the mine had a
purpose of chilling unionism in other business enterprises
under the same control as Respondent's deep mine In
making this disposition of this aspect of the case, however,
it is noted that the evidence makes it abundantly clear
that the relationship between the Mount Storm Mining
Company, the Allegheny Mining Corporation, the
Kingwood Mining Company, and PBS Coals, Inc, is such
that the remedial doctrine developed by the Board and the
Supreme Court in the Darlington case (N.L R.B v
Darlington Manufacturing Company, et al., 380 U S
263), could and should be applied here if a finding were
warranted that the mine was closed because of the
employees' union activity
Counsel for the General Counsel argues vigorously and
with a degree of plausibility that notwithstanding the
evidence adduced in behalf of Respondent to the contrary,
the real purpose of the closing was to defeat the Union.
To so hold however would be to discredit documentary
evidence not really invalidated by the General Counsel,
and to discount as false oral testimony of certain
witnesses, which I have no reason, by any standard, to
find incredible notwithstanding vigorous and aggressive
cross-examination.
A fairly clear picture emerges from the whole body of
testimony in this case that the Respondent encountered
several difficulties in the operation of the deep mine
resulting in an accumulated heavy financial loss at the
time the decision was made to close it. It also appears
that continued operation, designed to remove coal without
incurring additional prohibitive expense, would involve the
danger of running their own entry into the old workings
Counsel for the General Counsel rests his contrary
position on broad inferences that Respondent, by the
financial statements it introduced and testimony it
adduced, was seeking "to manufacture or create an
economic defense", and as to the defense that the old
workings presented a hazard, that Respondent is
"grasping for straws."
There may be a question as to whether the mine would
have been closed because of its bad financial condition
had the problem respecting the old mine not come to
light. Experimentation with a new cleaning plant might
have continued The evidence adduced however respecting
the hazard involved in continued operation, under any fair
interpretation, seems to present a wholly valid reason for
shutting down the operation, and especially is this true in
the light of the bad financial experience I find nothing in
the evidence to show that Respondent "manufactured" its
economic defense or that the evidence respecting potential
danger is "grasping at straws."
Such plausibility, as counsel's argument has, rests on
bits and pieces of evidence or testimony that do not fit
neatly and consistently with some other parts of
Respondent's evidence These inconsistencies however
cannot be relied on to refute the whole of the testimony of
several witnesses, some disinterested, nor invalidate
certified financial statements, that give substance to
Respondent's case.
Respondent's Exhibit 6 reveals that the deep mine costs
resulted in an ever-increasing accumulation of loss
amounting to $214,288 as of March 1967 when the
decision was made to close the mine; and $260,846 as of
August 1967 the month the operation actually ceased
Respondent's Exhibits 7, 8, and 9 support this finding of
loss, and reveal that it increased from the beginning to the
end of the operations notwithstanding steps taken to
improve the quality of coal.
By innuendo the brief in behalf of the General Counsel
also seems to suggest throughout that the separation of
the deep mine operation under Mount Storm Mining
Company, from the strip mine operation that continued
on under Allegheny Mining Corporation, involved some
treacherous complicity between Leonard Fry and the
officers of this Respondent to thwart the Union, and the
employees' right to organize. There does not appear to be,
however, any real or casual connection between this
structural change in management and management's
fixation to keep the Union out On the contrary good
reason appears, particularly in the testimony of the
certified public accountant, Michael Hanna, which I
credit, for the separation of the two mining operations, to
achieve a tax saving through the losses sustained by
Mount Storm as a separate operator, and to relieve the
more successful strip mine operation of Allegheny from
the ever-increasing liabilities flowing from the deep mine
operation, and whatever tactic seemed advisable to defeat
the Union could have been applied as well by Allegheny
as Mount Storm, including the mine closure
1. The financial losses
It appears that the poor quality of the coal being
produced in the deep mine was in large part the cause of
the losses. There can be no serious question from all the
evidence in the case bearing on the subject that the coal
produced was substandard. The testimony of Blucher
Allyson, mining engineer for Virginia Electric and Power
Company, purchaser of the mine's product under terms of
a written contract, makes this clear. For all that the
record shows Allyson was a disinterested witness. He
testified simply and with clarity that the coal was
substandard, that is less than 11,500 BTU. Counsel for
General Counsel seems to seek to break down his
testimony by making much of the fact that this witness
testified that some days the coal would be good. The
whole story from this witness however is clearly to the
effect that for a 23-month period it had been necessary to
register complaints on behalf of the buyer as to the
quality of the coal. Respondent's Exhibit 4, a letter from
Virginia Electric and Power Company dated June 6, 1966,
is a written complaint about the coal, so poor on occasion
as to cause plant shutdown. This letter served as notice
that it would be necessary for PBS Coals, Inc., marketer
of the coal produced in the Mount Storm mine, to take
steps to improve quality, and that future shipments of
unsatisfactory coal would be refused.
Much is made of the fact that a cleaning plant,
installed shortly before the decision to shut down, was not
given full and complete chance to improve the quality.
While it may be true, as argued, that the plant with more
testing and some improvement might have raised the BTU
count, there is nothing in the evidence to justify any sound
conclusion that the quality could be improved
substantially, and the first coal treated did not meet the
standards required for a significantly better price
Furthermore, continued efforts to improve the cleaning
plant, on speculation it might do a better job of cleaning,
would not be warranted in the light of the March 9
decision to close the plant because of the danger incident
PBS COALS, INC. 457
to continuing, and the heavy and increasing losses.
It is on the foregoing evidence that the determination is
made, as previously indicated, that the financial losses
were an important factor in the decision to close the mine
2. The danger of continued operation
Victor Erickson, a mining engineer in the employ of
Allegheny Mining Corporation who made the surveys
revealing the close proximity of the main heading of the
deep mine to the old workings, impressed me as a
dependable and reliable witness. I credit his testimony. It
reveals a series of circumstances involving an old and
incomplete map of the other workings, that came late into
the hands of the Mount Storm management, and that
resulted in new surveys showing the dangerous proximity
of the new operation with the old From his testimony I
find not only that the main heading of the deep mine
operation was moving toward the old operation but that
this did in fact present a real hazard, and that his advice
to management that the operation be discontinued and
management's action thereon, were justified.
I also find and conclude from the testimony of certain
of Respondent's other witnesses that it was impractical to
undertake to turn the direction of the mining operation.
Factors in this determination are the losses already
sustained, the expense of changing the direction, the
futility of seeking to turn left away from the old workings
because of earlier unsuccessful attempts, and the prospect
of producing the same poor quality coal. The hazard here
involved, I find, was in the nature of an emergency that
justified the decision to cease the operation as of the time
the decision was made.
One possible reason for Shaulis' speech against the
Union at a time when the outcome had no practical
bearing on the Mount Storm mine is that a defeat in this
election might tend to discourage unionism in other of the
Fry enterprises This comes close to the "cooling
unionism" doctrine of the Darlington case, but that
doctrine could have no application absent a determination
that the one plant of integrated plants was closed down
for antiunion considerations
It would seem also that the General Counsel's theory
that this Respondent's operation was closed for the
purpose of chilling unionism at other interrelated
enterprises loses some of its force in view of the direct
action taken against the Union at certain of the other
enterprises, as the union opposition is established for
purposes here in the cases hereinbefore cited. The indirect
chilling effect of cessation of business at Mount Storm,
over and above the direct action taken at the other mines,
would hardly justify "manufacturing" an economic
defense and the laborious and expensive creation of a
phony hazard theory.
In any event for all the reasons hereinbefore stated, I
find and conclude from this record that Mount Storm
deep mine was closed exclusively for the reasons that the
operation was not economically successful and presented a
real hazard to the miners.
III THE REMEDY
Having found that the Respondent had engaged in
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act
3. The union animus
Leonard Fry's opposition to the Union in the mining
operations is clearly revealed in this proceeding, and in the
cases hereinbefore cited. Because of this circumstance
Respondent might well feel it enjoyed a kind of windfall,
that of thwarting the Union, when it decided to close the
mines for the ligitimate reasons hereinbefore discussed.
Here, however, as in the not uncommon case where an
8(a)(3) violation is alleged, but the evidence discloses that
a union adherent was discharged for a valid cause, it is no
evidence of a violation that the employer is happy to get
rid of what he deems to be a thorn in his side.
It is even possible, of course, that counsel for the
General Counsel is right in his contention that the reason,
or at least one of the reasons for the closure of the mine,
was to eliminate the Union from the operation. But this
record, as I view it, has no substantial evidence to prove
it.
As previously indicated there is a degree of plausibility
to some parts of counsel's argument, as for instance his
rhetorical question Why, when the decision had already
been made to close the mine, did Respondent's
management find it necessary to urge the men to vote
against the Union, when they would soon no longer be
employees and there would be no work to do" There are
certain other inconsistencies in the conduct of persons
acting on behalf of Respondent. With insufficient
evidence, either direct, or such as would support an
inference that the mine was closed because of the
employees' union activities, these inconsistencies cannot be
given significance, except as they do tend to raise
suspicions and induce the notion that if more evidence had
been uncovered a violation might have been established.
RECOMMENDED ORDER
Upon the entire record in this case and the foregoing
findings of fact and conclusions of law, I recommend that
Mount Storm Mining Company, its officers, agents,
successors, and assigns, shall-
1 Cease and desist from.
(a) Interrogating any employee concerning his union
activity or such activity by other employees, in a manner
constituting a violation of Section 8(a)(1) of the National
Labor Relations Act, as amended.
(b) Threatening employees with the closure of its
business enterprise, or with any other reprisals , if they
give assistance or support to the United Mine Workers of
America or any other union.
(c) Promising employees with longer paid vacations,
more paid holidays, or any other benefits, for the purpose
of inducing them to desist in their support of, or to get
them to oppose, the Union.
(d) In any like manner interfering with, restraining, or
coercing employees in the exercise of their right to
self-organization, to form, join, or assist United Mine
Workers of America, or any other labor organization, to
bargain collectively through representatives of their own
choosing and to engage in other concerted activity for the
purpose of collective bargaining or mutual aid or
protection, and to refrain from any or all such activities.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Post at its office at Mount Storm, West Virginia,
and mail to each employee on its payrolls as of April 13,
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1967, copies of the attached notice marked "Appendix."'
Copies of said notice, on forms provided by the Regional
Director for Region 5, after being duly signed by the
Respondent's representative, shall be posted and mailed
by it immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 5, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith!
In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order"
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : " Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify you that:
WE WILL NOT threaten our employees with closure of
our Mount Storm deep mining operation , or with any
other reprisals for engaging in concerted activities, or
supporting the United Mine Workers or any other
labor organization.
WE WILL NOT promise our employees more paid
holidays or longer vacations or any other benefits for
the purpose of inducing them to oppose or not become
members of the said Union or any other labor
orP?,nization.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce our employees in the exercise
of their right to self-organization , to form labor
organizations , to join or assist the above-named or any
other labor organization , to bargain collectively through
representatives of their own choosing , and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
Dated By
MOUNT STORM MINING
COMPANY
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Federal
Building, Room 1019, Charles Center, Baltimore,
Maryland 21202, Telephone 301-962-2822.