Peaker Run Coal Co.

National Labor Relations Board - Board Decisions

Feb 10, 1977

228 N.L.R.B. 93 (N.L.R.B. 1977)

PEAKER RUN COAL COMPANY 93
Beasley Energy, Inc., d/b/a Peaker Run Coal Compa-
ny, Ohio Division # 1 and United Mine Workers of
America. Case 9-CA-9101
February 10, 1977
DECISION AND ORDER
On October 6, 1975, Administrative Law Judge
Elbert D. Gadsen issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein.
The Bargaining Order
The Administrative Law Judge found, and we
agree, that as of December 1, 1974, the Union had
valid authorization cards signed by 15 of Respon-
dent's 26 employees. The Administrative Law Judge
further found, and we agree, that the nature and
pervasiveness of the Respondent's unfair labor prac-
tices have prevented the holding of a fair election and
that a bargaining order is warranted to best protect
the employees' rights.
Contrary to the Administrative Law Judge, how-
ever, and in accordance with our decision in Trading
Port, Inc., 219 NLRB 298 (1975), we conclude that
Respondent should be required to recognize and
bargain upon request with the Union as of December
3, 1974, the date Respondent unlawfully interrogated
employee Dallas Short and thereby embarked on its
course of unlawful conduct which prevented the
determination of the Union's majority status by a fair
election. The Board's remedial objective of effectuat-
ing employee rights is to restore the situation, to the
extent feasible, to the state that would have existed
had the employer refrained from its unlawful course
of conduct. In cases of this type, a bargaining order is
warranted to correct and give redress for an employ-
er's misconduct in seeking to undermine a union's
majority status. In the absence of employer miscon-
duct and in view of the fact that the union had
attained majority status, it is reasonable to assume
that the union would have become the collective-
bargaining representative were it not for the employ-
er's unlawful conduct. The date upon which the
1 To the extent that we are unable to ascertain exactly when the union
would have become the collective-bargaining representative of the employ-
ees concerned , it is the employer' s own misconduct which has effected such a
result.
2 Member Walther's views are in large part set forth at length in his
opinion in Drug Package Company, Inc., 228 NLRB 108 (1977).
3 We are not concerned with this category in this proceeding , nor with
228 NLRB No. 16
union would have achieved such representative status
cannot now be ascertained with precision. However,
we have concluded that the date which most nearly
approximates that date in time and propriety, and
which is ascertainable with reasonable certainty, is
the date on which the employer embarked on its
unlawful antiunion campaign and thereby, through
its misconduct, precluded any determination of the
employees' desires by a free and fair election.' Unless
the employer is ordered to bargain as of this date, the
parties cannot be returned to the status that would
have obtained but for the employer's unlawful
campaign. Accordingly, we shall order Respondent
to presently bargain, upon request, concerning any
term and condition of employment, or change
thereof, as to which it would have been required to
bargain had the Union become the bargaining
representative on December 3, 1974.
Although agreeing that a bargaining order is
warranted in this case, Members Fanning and
Walther2 would issue a bargaining order which is
prospective only since, in their view, we are precluded
from issuing a bargaining order which has retroactive
application where, as here, the union has not made a
bargaining demand. We disagree. See Baker Machine
& Gear, Inc., 220 NLRB 194 (1975).
In N.-L.RB. v. Gissel Packing Co., Inc., 395 U.S. 575
(1969), the Supreme Court approved the Board's use
of bargaining orders to remedy an employer's inde-
pendent 8(a)(1), (2), or (3) violations which under-
mined a union's majority status and fatally impeded
the holding of a fair election. In doing so, the Court
depicted two situations in which such orders could
appropriately be given. The first involves unfair labor
practices which are so "outrageous" and "pervasive"
that traditional remedies cannot erase their coercive
effect, with the result that a fair election is rendered
impossible.3 In this connection the Court noted that
the Board itself had a "similar policy of issuing a
bargaining order, in the absence of an 8(a)(5)
violation or even a bargaining demand, when that
was the only available effective remedy for substan-
tial unfair labor pratices. "4 The second, or intermedi-
ate type situation-and the one involved here and in
the vast majority of our cases thus far in which we
have given bargaining orders under Gissel-is de-
scribed by the Court as follows at 614-615:
The only effect of our holding here is to approve
the Board's use of the bargaining order in less
whether, because of the seventy of the misconduct , a bargaining order may
be appropriate notwithstanding the absence of a showing of majority status.
4 Gissel Packing, 395 U .S. at 614. The Court, however, failed to point out
that this policy of the Board related only to the issuance of a bargaining
order where no 8(aX5 ) violation was involved , but a majority standing had at
one time been attained by the union involved.
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
extraordinary cases marked by less pervasive prac-
tices which nonetheless still have the tendency to
undermine majority strength and impede the election
processes. The Board's authority to issue such an
order on a lesser showing of employer misconduct
is appropriate, we should reemphasize, where
there is also a showing that at one point the union
had a majority; in such a case, of course,
effectuating ascertainable employee free choice
becomes as important a goal as deterring employ-
er misbehavior. In fashioning a remedy in the
exercise of its discretion, then, the Board can
properly take into consideration the extensiveness
of an employer's unfair practices in terms of their
past effect on election conditions and the likeli-
hood of their recurrence in the future. If the Board
finds that the possibility of erasing the effects of
past practices and of ensuring a fair election (or a
fair rerun) by the use of traditional remedies,
though present, is slight, and that employee
sentiment once expressed through cards would, on
balance, be better protected by a bargaining
order, then such an order should issue. [Emphasis
supplied.]
Nowhere in describing this category does the Court
mention the terms "demand," "refusal to bargain," or
"8(a)(5)." Indeed, the Court's language above, in
particular "[t]he only effect of our holding here,"
makes plain that it was extending the right to the
Board to give bargaining orders in cases where the
unfair labor practices were "less pervasive" than in
the first or extreme situation but "nonetheless still"
had "the tendency to undermine majority strength
and impede the election processes."
It is clear, therefore, that the essence of what was
considered by the Court in Gissel was the scope of the
Board's remedial authority in the two types of
situations described above. (A third type, where the
violations are insufficient to warrant a bargaining
order as a remedy, obviously has no relevance here.)
5 395 U.S. at 612.
6 To preclude, as our dissenting colleagues would , the type of remedy we
have found necessary simply because the Union did not request recognition
is to condition the issuance of an adequate remedy for employer misconduct
on a requirement that the Union engage in what is surely, in this context, a
futile act . An employer who engages in misconduct in an effort to undernune
the union cannot reasonably be expected to grant recognition and bargain
when such a demand is presented.I
We are perplexed by Member Walther'S argument in Drug Package,
supra, that, under Gissel, 8(a)(1) and (5) bargaining orders are not "fungible"
but "entirely different remedies designed to accomplish entirely different
goals." The distinction that he would have us draw , namely, that "8(ax5)
bargaining orders are intended to effectuate ascertainable employee free
choice" while 8(a)(1) bargaining orders are meant as a deterrent to employer
misconduct , is based upon a misreading of Grssel. Thus, in discussing
"category two" cases, the Court stated, "in such a case , of course,
effectuating ascertainable employee free choice becomes as important a goal
as deterring employer misbehavior ." 395 U.S. at 614 . This language plainly
indicates that bargaining orders serve both purposes referred to by Member
Walther and , as noted above in this opinion , the Court drew no distinction
It is equally clear that the Court was not primarily
concerned with the need to remedy an employer's
mere refusal to bargain in either situation, for there is
nothing in that act alone which precludes the holding
of a fair election nor imposes a bargaining order.
Furthermore, the Court stated elsewhere in Gissel
that "perhaps the only fair way to effectuate employ-
ee rights is to re-establish the conditions as they
existed before the employer's unlawful campaign," 5
by means of a bargaining order.
Thus, we conclude that the Court in Gissel indicat-
ed approval of issuance of bargaining orders which
had retroactive application without indicating that a
demand for bargaining was a necessary prerequisite
for the issuance of any such orders .6 Since the
analysis of whether an employer's misconduct is so
serious as to preclude the holding of a fair election is
not affected by the presence or absence of a bargain-
ing demand, we do not find the existence of such a
demand to be determinative as to the nature or extent
of the remedial bargaining order which should be
granted.?
The fashioning of an appropriate remedy is a
matter for the Board to determine within the limits of
its authority. In the exercise of its remedial discretion,
the Board, prior to Trading Port, in the Steel-Fabs
line of cases, held that an employer's substantial
8(a)(1) violations were fully remedied by the issuance
of a prospective bargaining order. In Trading Port,
the Board recognized that such an order frequently
did not constitute a full and fair remedy for an
employer's misconduct. In some instances , a bargain-
ing order effective only from the date of the Board's
decision left unremedied an employer's unilateral
changes in working conditions made after a union
had established its majority status . (See, e.g., Elm Hill
Meats of Owensboro, Inc., Elm Hill Meats, Inc., Baltz
Brothers Packing Company, 213 NLRB 874 (1974).)
This led to the unwanted result that an employer, by
committing serious unfair labor practices, could
between "8(a)(5)" and "8(a)(1)" bargaining orders. Moreover, the distinction
he makes is one without a difference . In both situations , employer
misconduct precluding reliance on the Board's election processes is a
necessary predicate to invoke the bargaining order , since , even with a
demand and a majority, the Board with approval of the Supreme Court holds
that an employer need not bargain until an election has demonstrated that a
union has majority status . Linden Lumber Division, Summer & Co. v.
N.LR B, 419 U.S. 301 (1974). In both cases, the bargaining order is deemed
warranted because traditional remedies for the 8 (a)(l) conduct are insuffi-
cient to reinstate the situation as it would have been had the employer
`obeyed the law." In both instances , the Board finds the bargaining order is a
necessary remedy (read also as "deterrent"). In both, the result has the same
effect of installing a union as the collective -bargaining representative of an
employer's employees , thereby imposing upon the parties all the obligations
and rights inherent in an initial bargaining relationship. In short, under
either bargaining order , "employee free choice" effectively is ascertained-or
determined-or protected . Hence, to paraphrase Gertrude Stem , we con-
clude that "a bargaining order is a bargaining order is a bargaining order."
8 Steel-Fab, Inc., 212 NLRB 363 (1974).
PEAKER RUN COAL COMPANY 95
delay the holding of an election indefinitely (since a
fair election could no longer be held) and insure to
himself a substantial period of time until the Board
issued a remedial bargaining order, during which
period he would not have to deal with a union. Since
an employer, by such conduct, not only precluded the
holding of a fair election, but reaped the additional
benefit of insuring itself the freedom to impose
unilateral changes unhampered by union "interfer-
ence," the Board's prospective bargaining order fell
short of reestablishing the conditions as they existed
before the employer's unlawful campaign. We thus
concluded in Trading Port that the fashioning of a full
and fair remedy which most nearly restored the status
quo ante required the issuance of a bargaining order
which commenced as of the time the employer
embarked on a clear course of unlawful conduct or
engaged in sufficient unfair labor practices to under-
mine the union's majority status.9
Member Walther, however, accuses us of taking a
legally impossible position inasmuch as he asserts
that we have, by the remedy we propose herein,
created a bargaining obligation where none existed.
Thus, he argues that, since the Board lacks statutory
power to require an employer to bargain subsequent-
ly with respect to unilateral action which it took at a
time when it was perfectly lawful to do so, by
imposing such a remedy we have in effect made an
8(a)(5) finding sub silentio. This is simply not true.
We recognize that one of the elements necessary to
find an 8(a)(5) violation, i.e., a demand, is absent. We
further recognize that the remedy imposed herein,
except for the absence of any cease-and-desist
provisions, is the same remedy which we would have
imposed had Respondent violated that section of the
Act. This identity of remedy, however, stems not
from an identity of violation, but only from the fact
that, as discussed supra, full and fair remedy for
Respondent's 8(a)(1) and (3) misconduct herein
requires the imposition of a bargaining obligation
retroactive at least to the date of the beginning of the
misconduct which made a fair election impossible or
unlikely, no less than Respondent's refusal to bargain
would have required. It does not, as Member Walther
argues, demonstrate that we are finding a violation of
Section 8(a)(5).
Member Walther further asserts that the bargaining
order remedy herein represents an unwarranted
9 Therefore we cannot agree with Member Walther's view that traditional
8(axl), (2), (3), and (4) remedies have historically proven effective in
rectifying employer misconduct. Nor can we agree that it is unnecessary to
impose a retroactive bargaining order remedy in the instant case on the
grounds that the only unilateral change which occurred (the December 10
wage increase) is independently violative of Sec . 8(a)(1) and thus fully
remedied The bargaining order remedy proposed herein is directed not
merely to the December 10 wage increase , but is in addition directed to any
other unilateral changes in terms and conditions of employment which
extension of Trading Port inasmuch as the Board's
order therein was based on an 8(a)(5) violation. It is
true that we there found that the Respondent had
violated Section 8(a)(5) because all the elements of
such a violation were present. A close reading of
Trading Port makes it clear, however, that even in the
absence of such a violation we would have issued the
same bargaining order but as of an earlier date. Thus,
the Board was careful to point out that the respon-
dent therein had embarked on a clear course of
unlawful conduct which reasonably could be deemed
to have undermined the union's majority status and
to have prevented the holding of the election as of
September 1 when the employer committed its initial
violation of Section 8(a)(1) of the Act. True, the
bargaining order was dated as of September 4, the
date of demand for recognition. However, as stated
by the Board in Trading Port, since all violations prior
to September 4 were otherwise individually remedied
by the Board's order, it was unnecessary to date the
bargaining order as of September 1 in order to fully
remedy the employer's misconduct. Had the viola-
tions committed in the period September 1-4 not
been otherwise fully remedied, we would have
applied the bargaining obligation from the earlier
date. Consequently, it is clear that the Board set the
date of the bargaining order in Trading Port from
September 4 simply to correspond with the 8(a)(5)
violation found thereafter.
Implicit in Member Walther's argument appears to
be the contention that, in the absence of a demand,
an employer is never placed on notice that a majority
of his employees may have designated a labor
organization to represent them, and thus continues to
conduct his business unilaterally as he is legally
required to do in the absence of majority support for
the union. But an employer who engages in an illegal
campaign designed to undermine a union surely has
reason to believe that the union had, or is likely to
obtain, substantial strength, including a majority.
Absent such a belief, there is no compelling motiva-
tion for such misconduct. To the extent the employer
may be unaware or uncertain that the union has
attained majority status, that lack of knowledge or
certainty results primarily from his own misconduct
which has precluded the union from freely establish-
ing its representative status via the election route.10
Similarly, to the extent that the employer's unlawful
Respondent may have instituted subsequent to the unfair labor practices
herein . As to these acts, a retroactive bargaining order remedy is not
superfluous.
Member Jenkins notes that , if it is necessary to correct breaches of the
bargaining obligations or other misconduct , he would date the bargaining
obligation from whatever date is necessary to remedy the conduct.
10 Member Walther contends, however , that such a bargaining obligation
would not, in any event, have arisen prior to the results of the scheduled
January 31 election. He thus argues that to require the Respondent herein to
(Continued)
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct may have the desired adverse effect on
employee support for the union, thereby causing the
latter to forgo the formality of requesting recognition,
or may lead the union to believe that making such a
request would constitute a useless act , the employer
has no one to blame but himself for not being placed
on notice that his employees may have designated a
labor organization to represent them. In all cases, the
employer must suffer the consequences of his unlaw-
ful conduct and cannot be heard to complain that he
did not know that the union had achieved majority
support because the union did not tell him so. In
other words, the employer acted at his peril when he
embarked on his course of unfair labor practices and
should not be permitted to assert his unlawful actions
as a defense to when the remedial bargaining order
should attach.
A demand made by a union enjoying majority
status does not impose upon an employer an obliga-
tion to recognize a union.l l The employer may ignore
it or reject it without a reason so long as the employer
does not engage in unfair labor practices which rise to
the level suggested by the Court in Gissel. Then, and
only then, as in cases where no demand has been
made, is a bargaining obligation imposed on the
employer by the Board as a remedy therefor. Again,
the conclusion is inescapable: the demand is not a
factor entering into the determination of whether a
bargaining order should issue . To belabor the point
further, the demand becomes operative in the Gissel
process only as an element for finding, remedying,
and enjoining the recurrence of an 8(a)(5) violation
and in the context of fixing the date on which the
bargaining obligation in accord with that finding
commences, where all other violations are fully
remedied.
Finally, Member Walther suggests that the remedy
we are imposing here is punitive in nature because of
its "retroactivity." Yet he is willing to impose such a
remedy where the additional element of a demand is
present. We fail to see how the presence or absence of
a bargaining demand renders the essentially identical
remedy punitive.12 As the Board stated in Baker
Machine & Gear, Inc., 220 NLRB 194, 195 (1975):
No element of retroactivity is present in impos-
ing the bargaining obligation as of the time the
employer began his subversion of the statute. No
new law or rule is being enacted governing
conduct or relations previously not subject to the
law. Instead, the remedy we impose does no more
than reach all the unlawful actions committed,
whether early or late in the course of the miscon-
duct. The only element of retroactivity is that the
misconduct being remedied occurred prior to
issuance of the complaint and our consideration
of the case ; but this is the situation in every civil or
criminal case where a wrong is remedied, for the
remedy can be applied only after the wrong has
been committed.
That was the unstated principle behind the majority's
decision in Trading Port; to provide for a collective-
bargaining remedy from the first instance of miscon-
duct which disrupted the election process. That is the
full meaning of Trading Port, not the more narrow
one that Member Walther, who says he adheres to
that decision, and Member Fanning, who concurred
therein, would read into it. 13
bargain over any changes in terms and conditions of employment from
December forward (some 2 months prior to the scheduled election date) does
not return the parties to the status that would have obtained "but for the
unfair labor practices," but accords the Union an additional and unwarrant-
ed bargaining advantage . Initially, we note that Member Walther 's argument
is equally applicable in the Gissel 8(aX5) situation (since , absent employer
unfair labor practices, no bargaining obligation would have attached unless
and until the Union was certified as the collective-bargaining representative
following a Board-conducted election ); yet we do not understand Member
Walther to argue that in such situations it is more appropriate to date the
bargaining order from the date of any scheduled Board election rather than
the date of demand
Furthermore , while it is true that in many cases an election will have been
scheduled , it is equally true that in many cases the employer's unlawful
campaign will result in no steps having been taken in this direction. We see
no reason why the same unlawful conduct should be remedied differently
merely on the basis of whether an election date has been scheduled or not
Accordingly , we conclude that all such remedial bargaining orders should be
applied uniformly
ii Linden Lumber Division, Summer& Co v N.LR B, supra
12 In support of his contention , Member Walther poses the following
situation as an example - employees of an employer commence an organiza-
tional drive at a time when the employer is expenencing economic reversals.
The employer responds to the dove with 8 (axl) violations Before the union
makes a demand , the employer, without unlawful motive, institutes an
economic layoff. Member Walther contends that by retroactively applying
the bargaining order to the date of the initial 8 (a)(l) violation the Board
requires the employer not only to bargain over the decision and effects of the
layoff, but subjects the employer to backpay liability as well. This, according
to our colleague, is punitive inasmuch as it goes beyond the status quo to
impose additional bargaining and financial obligations.
However, to require an employer to bargain as to the decision and effects
of an economic layoff goes no further than to restore the status quo since at
the time such a unilateral change was undertaken the union would, in all
likelihood, have been installed as the collective -bargaining representative
had the employer refrained from its unfair labor practices
13 Indeed , we are puzzled by Member Fanning 's limiting the bargaining
order's application prospectively , since as he stated in his concumng and
dissenting opinion in Steel-Fab, supra at 369:
It should not require saying that every order of this Board finding a
violation of the Act is retroactive and the remedy applies as of the date
of the finding of the original unfair labor practice No one knows that an
employer has violated Section 8(a)(3) on the date an employee is
discharged until the Board and the courts make that decision. No one
knows that an employer has engaged in bad-faith bargaining in violation
of Section 8(aX5) or has violated that section of the Act even after
refusing to bargain with a certified union until the Board and ultimately
the courts speak . Every union and every employer acts at its peril by
engaging in conduct that may subsequently be the subject of an unfair
labor practice charge This has always been the law . . . [Hoowever
viewed, this Employer . . is hardly an innocent and unsophisticated
participant in unfair labor practices To suggest that it is somehow
PEAKER RUN COAL COMPANY 97
In summary, the Board is unanimous in agreeing
that Respondent, by its misconduct, has incurred
some obligation to bargain. However, we differ from
our dissenting colleagues as to the nature of the
obligation to be imposed. They would find that, in the
absence of a violation of Section 8(a)(5), the obliga-
tion extends only as to future events. We conclude
that it is within our remedial authority to require an
employer to bargain as of the date it embarks on an
unlawful course of conduct which fatally impedes the
holding of a fair election. While we will not hesitate to
find that an employer also violates Section 8(a)(5) of
the Act where all the elements of such a violation are
present, we do not believe that the issuance of a
bargaining order dated from the time the employer
embarks on its unlawful course of conduct is preclud-
ed by the absence of such a violation. We further find
that a bargaining order which requires Respondent to
presently bargain, upon request, concerning any term
or condition of employment, or change thereof, as to
which it would have been required to bargain had the
Union become the bargaining representative as of
December 3, 1974, is necessary to remedy the
violations we have found herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Beasley Energy,
Inc., d/b/a Peaker Run Coal Company, Ohio Divi-
sion # 1, Lawrence and Gallia Counties, Ohio, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
MEMBER FANNING , concurring in part:
I concur in the majority's affirmance of the
Administrative Law Judge's Decision and in the
finding that a bargaining order is warranted as a
remedy for the violations found. N.L.R.B. v. Gissel
Packing Co., Inc., 395 U.S. 575 (1969).
I do not concur, however, in the majoritys extend-
ed discussion of why "a bargaining order which
requires Respondent to presently bargain, upon
request, concerning any term or condition of employ-
ment, or change thereof, as to which it would have
been required to bargain had the Union become the
bargaining representative as of December 3, 1974, is
necessary to remedy the violations we have found
herein." Whether or not Respondent should now be
required to bargain over actions and decisions
concerning its employees' wages, hours, and working
conditions taken at that time of course depends on
whether its failure to bargain concerning them was an
unfair labor practice. Although there is language in
the majority opinion which suggests the Respondent's
failure to bargain in 1974, though never requested to,
violated Section 8(a)(5) or (1), one searches in vain
for an actual finding of such a violation. Were such a
finding supported by the record, I am sure my
colleagues would join me in so finding. I am equally
sure that then my colleagues would join me in
ordering, inter alia, that Respondent cease and desist
from so refusing to bargain collectively. In such
circumstances, a Board order, combining the cease-
and-desist provision and the affirmative bargaining
provision (prospective in nature) would reach all
matters with respect to which Respondent is obligat-
ed to bargain upon request, including those matters
as to which it had been unlawfully refusing to
bargain. The majonty does not include a cease-and-
desist provision as to any violation of the bargaining
obligation because it has made no finding of such a
violation. As no such violation has been found, I am
satisfied that the order recommended by the Admin-
istrative Law Judge is both necessary and sufficient to
remedy the unfair labor practices found and I adopt
it as my own,14 noting with some wonderment that,
after all this time, that is precisely what my colleagues
of the majonty have done.
MEMBER WALTHER, concurring in part and dissenting
in part:
I agree with the findings of my colleagues including
their finding that a bargaining order is necessary to
remedy Respondent's unfair labor practices. How-
ever, in the absence of an 8(a)(5) violation, I do not
agree with the majority's retroactive application of
the bargaining order to December 3, 1974. In
agreement with Member Fanning and in accordance
with my separate opinion in Drug Package Company,
Inc., 228 NLRB 108 (1977), I would issue a
prospective bargaining order as a remedy for Respon-
dent's extensive and pervasive unfair labor practices
which have clearly foreclosed the possibility of any
free and fair Board election.
In order to properly analyze the remedial order
issued by the majority, it is necessary to summarize
briefly the facts upon which it is predicated. On
November 27, 1974, Respondent received a telegram
from the Union advising that it was "initiating an
organizing drive among the employees at your mine.
..." According to the Administrative Law Judge, by
December 1 the Union had received authorization
cards from a majority of Respondent's employees.
unfair to find the Respondent in violation of [ the Act] and to insist that 14 See also my separate opinions in Hombre Hombre Enterprises, Inc,
a remedy for such a violation apply only as of the date of the d/b/a Panchtto's, 228 NLRB 136 (1977), and Drug Package Company,
Board's Order finding an unfair labor practice is sheer nonsense Inc, 228 NLRB 108 (1977)
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is no evidence indicating that the Union or
anyone else notified Respondent that a majority of its
employees had signed cards, nor any evidence that
there was a demand for recognition. Instead, the
Union opted to file a representation petition which
resulted in the scheduling of an election for January
31, 1975.
Respondent's initial reaction to the organizing
drive was an unlawful supervisory interrogation and
threat directed at employee Short on December 3.
One week later, on December 10, Vice President
Elder addressed the employees at a meeting during
the course of which he also made unlawful threats
and consented to an increase in wages. Finally,
during a social occasion given by Respondent for the
employees in mid-January 1975, threats of more
onerous working conditions should the Union win
the forthcoming election were made. When the
Union filed the instant unfair labor practice charges
on the day before the election, the election was
postponed indefinitely.
It is important to note at this point the theory on
which this case was litigated. Both the unfair labor
practice charge and the complaint cited Respondent's
conduct as a violation of Section 8(a)(1) alone.15 The
interrogations and threats could obviously only
constitute 8(a)(1) violations, and the unilateral in-
crease in wages was found by the Administrative Law
Judge to be unlawful because it was granted "as an
effort to discourage union activity in violation of
Section 8(a)(1) of the Act." At no point during this
entire proceeding has Respondent been charged,
alleged, or found to have unlawfully refused to
bargain with the Union as required by Section
8(a)(5). At no point, that is, until today. For when the
rationale of the majority's opinion and the require-
ments of their Order are compared with the Decision
of the Administrative Law Judge which they purport
to adopt, it is evident that they are, sub silentio,
making an 8(a)(5) finding.
In retroactively applying the bargaining order to
December 3, my colleagues claim to be "[restoring]
the situation, to the extent feasible, to the state that
would have existed had the employer refrained from
its unlawful course of conduct." They reason that in
the absence of Respondent's unlawful conduct it is
"reasonable to assume" that the Union would have
become the employees' bargaining representative,
and that while admittedly the date when such
representation would commence "cannot now be
ascertained with precision," the date of the initial
unfair labor practice "most nearly approximates that
date in time and propriety." Accordingly, the majori-
ty concludes that only by finding a bargaining
obligation as of December 3, 1974, can the parties "be
returned to the status that would have obtained but
for the employer's unlawful campaign." I disagree.
First, had Respondent refrained from unlawful
conduct, it is "reasonable to assume" that there
would have been no unfair labor practice charges
filed and the parties would have followed through
with the election scheduled for January 31. If the
Union won the election (which my colleagues appar-
ently assume is a foregone conclusion), then a
bargaining obligation would indeed have attached;
but this would have occurred in February 1975 at the
earliest-not 2 months earlier, in December.
Even more troublesome, however, is the premise
upon which the majority's remedy is constructed.
That premise is that a bargaining obligation must be
created as of December 3 before the parties are
"returned to the status that would have obtained" but
for the unfair labor practices. The problem with this
position is that nobody-including the Union and the
General Counsel-has ever asserted that such a
bargaining obligation ever existed, even in the face of
the unfair labor practices. Thus, in the guise of
restoring the status quo, the majority is going beyond
what in fact was the situation and is creating a
heretofore nonexistent and legally impossible16 bar-
gaining obligation.
An examination of Respondent's conduct will
illustrate what I mean . The December 3 interrogation
and threats involving employee Short are obviously
not appropriate subjects for bargaining and thus not
properly remedied by a bargaining order. Such
violations are fully remedied through our normal
8(a)(1) cease-and-desist provisions. The same, of
course, is true of Vice President Elder's threats made
during the course of the December 10 meeting and
mid-January social event. I do not understand my
colleagues to be arguing that Respondent should now
bargain over such interrogations and threats. This
being the case, the retroactive bargaining order of
necessity must be directed at the December 10 wage
increase because this is the only other unlawful
conduct found.
15 The unfair labor practice charge stated-
Since on or about December 1, 1974, and at all times thereafter, the
above-named employer, by its officers, agents, and representatives, has
by interrogation , threats, promises of benefits and surveillance and
other acts and conduct , interfered with , restrained , and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the
Act
After enunciating Respondent 's conduct , the complaint alleged.
By the acts and conduct alleged above, Respondent has engaged in, and
is engaging in, unfair labor practices in violation of Section 8(a)(l) of the
Act, affecting commerce as defined in Section 2(6) and (7) of the Act
16 As noted , no 8(a)(5) violation was alleged in the complaint, and in the
absence of a demand for recognition it is clear that the record would not
support such a violation even if alleged.
PEAKER RUN COAL COMPANY
The wage increase was indeed found unlawful, but
it was unlawful because, in the words of the Adminis-
trative Law Judge, it was "an effort to discourage
union activity"-not because Respondent was failing
to honor a bargaining obligation which it owed to the
Union.17 By now requiring Respondent to bargain
over the wage increase, the majority is ex post facto
creating an 8(a)(5) bargaining obligation and apply-
ing an 8(a)(5) remedy to an 8(a)(1) violation. While
the Board's remedial authority may be broad, I doubt
that it extends this far.
The situation would be entirely different, of course,
were the prerequisites to an 8(a)(5) violation present
here. The Board has long held, with Supreme Court
approval,18 that Section 8(a)(5) is violated whenever a
union has attained majority status and the employer
nevertheless, upon demand, refuses to bargain while
at the same time committing serious unfair labor
practices which thereafter prevent the holding of a
free and fair election. Thus, had the prerequisites to
an 8(a)(5) violation been present here-which they
are not in view of the Union's failure to request
recognition-then the Board's decision in Trading
Port, Inc., 219 NLRB 298 (1975), would have dictated
both an 8(a)(5) violation and a bargaining order as of
December 3, 1975. In that situation a retroactive
bargaining order would be both logical and appropri-
ate because there would have been an underlying
8(a)(5) violation to support it-the bargaining order
would, in effect, be requiring Respondent to fulfill a
statutory bargaining obligation which it had thus far
refused to fulfill. 19
While I may disagree with my colleagues' conclu-
sion regarding the timing of a bargaining order, I do
not dispute their conclusion regarding the necessity
for one. I quite agree that, given the scope and nature
of the unlawful conduct found, the possibility of a
free and fair election is slight; and, given the fact that
at one time the Union enjoyed majority support, the
policies of the Act will be,best effectuated through the
issuance of a prospective bargaining order rather
than through the direction of a new election.20 Thus I
agree with the majority that "a bargaining order is a
17 Indeed, the Union had never even claimed a right to bargain over this
or any other subject Thus, the violation found is fully remedied by our
normal 8 (a)(I) remedies
18 N LR B v Gissel Packing Co, Inc, et a!, 395 U.S. 575 (1969);
NLRB v Benne Katz, etc, d/b/a Williamsburg Steel Products Co, 369
U.S 736, 748, fn 16 (1962), N L R B v P Lorillard Company, 314 U S 512
(1942).
19 In arguing that a request for recognition would have been futile given
Respondent's subsequent conduct, the majority obviously fails to under-
stand the purpose behind such a request in cases such as these The demand
for recognition is not required on the theory that a union must exhaust all
avenues of redress before turning to the Board , but rather because such a
request is an indispensable element of an 8(a)(5) refusal to bargain, and
without an 8(aX5) finding the retroactive application ofa bargaining order is
improper
20 For a more detailed analysis of why I think prospective bargaining
orders are an appropriate remedy for senous 8(a)(I) violations, see my
separate opinion in Drug Package Company, Inc, supra
99
bargaining order is a bargaining order" insofar as the
prerequisites for issuance and the legal obligations
imposed thereby are concerned. I do not agree,
however, that such an Order-in the guise of remedy-
ing 8(a)(1) violations-can be applied retroactively so
as to create a bargaining obligation as of a date when
one could not possibly have existed.
For the foregoing reasons, I would adopt the
Administrative Law Judge's Decision and recom-
mended Order in its entirety.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge: Upon a
charge filed on January 30, 1975, by the United Mine
Workers of America (UMW), herein called the Union, an
original and an amended complaint were issued on March
27, and May 15, 1975, respectively, against Beasley Energy,
Inc., d/b/a Peaker Run Coal Company, herein called
Respondent. The complaint alleged that Respondent en-
gaged in specific coercive and threatening conduct in
violation of Section 8(a)(l) of the National Labor Relations
Act, as amended, herein called the Act; and that such
conduct was-so serious and substantial in character and
effect as to warrant the entry of a remedial order requiring
Respondent to recognize and bargain with the Union.
Respondent filed an answer and an amended answer on
May 12 and July 9, 1975, respectively, denying the
allegations heretofore described in the complaint.
The hearing in the above matter was held before me in
Gallipolis, Ohio, on August 5, 1975. Briefs have been
received from counsel for the General Counsel and counsel
for Respondent, respectively, and have been carefully
considered.
Upon the entire record in this case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is now and has been at all times material
herein, a corporation organized under and existing by
virtue of the laws of the State of Ohio, maintaining places of
business operation in Lawrence and Gallia Counties, Ohio,
the only locations involved herein, where it is engaged in
the mining and sale of coal from its mining operation.
During the 12 months preceding the issuance of the
complaint herein, a representative period, Respondent had
a direct outflow into interstate commerce of coal valued in
excess of $50,000 which it sold and caused to be shipped
directly from points located within the State of Ohio to
points located outside the State of Ohio.
The complaint alleges, the answer admits, and I find
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
United Mine Workers of America (UMW), herein called'
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union, is now, and has been at all times material herein,
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Peaker Run Coal Company is a wholly owned subsidiary
of Beasley Industries , Inc., which is composed of Beasley
Energy, Inc., and Beasley Investments and Service Ware-
house, Inc. Peaker Run Coal Company is a separate
corporation which was owned by a major shareholder of
Beasley Industries, privately held until December 1970. At
that time , Peaker Run Coal Company and Beasley Invest-
ments, which is a real estate investment company, was
acquired through a stock exchange and Beasley Industries
acquired and has since that time operated Peaker Run Coal
Company. Some of Beasley's other subsidiaries , not herein
involved, have had contracts with other unions since 1967.
However, Peaker Run Coal Company has never had a
union or a union contract . The officers of Beasley Indus-
tries and its subsidiaries are: John H . Fisher , president;
Charles Elder, vice president; and Edward Bacome, attor-
ney and corporate secretary.
Peaker Run Coal Company, located in Gallia County,
Ohio, has been engaged in the mining and sale of coal since
the latter part of 1973, or the early part of 1974, when Vice
President Elder commenced hiring the employees, some of
whom now constitute the unit employees in dispute. Since
its initial operation , Respondent had not granted the
substantial majority of its employees a pay raise until the
occurrence of the current dispute. In a letter and telegram
dated November 27, 1974, Respondent for the first time
learned about its employees' interest in the United Mine
Workers of America.
At all times material herein, the individuals listed below
have occupied the positions following their respective
names and have been, and are, supervisors as defined in
Section 2(11) of the Act and are agents of Respondent,
acting on its behalf, within the meaning of Section 2(13) of
the Act: Charles Elder-vice president; Ralph Browhard-
superintendent ; Ralph Crow-day shift foreman; and by
amendment to the complaint, which was not denied by
Respondent , Bill Stevens-foreman.
All production and maintenance employees employed by
the Employer at its Ohio mines , excluding all office clerical
employees , professional employees , guards, and supervisors
as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act, as amended.'
This proceeding was adjourned sine die pending receipt of
a letter from counsel for the General Counsel informing the
Administrative Law Judge whether or not he formally
rested the presentation of his case . In a letter dated August
13, 1975, counsel for the General Counsel formally advised
me, as well as counsel for Respondent , that he rested his
case. Accordingly, counsel for the General Counsel's letter
is hereby identified , marked, and admitted in evidence as
counsel for the General Counsel's Exhibit 24, and the
proceeding herein is closed.
B. Union Activity of the Employees and Respondent's
Knowledge Thereof
A composite of the undisputed and credible testimony of
Mary Ann Uzelack , an official representative of the Union
(UMW), along with employee witnesses Dallas Short,
Thomas B. Stephens , Jack Campbell , and John Roush,
essentially established that approximately 15 of Respon-
dent's employees were present at a meeting held in the
Holiday Inn, Gallipolis , Ohio, on December 1, 1974. At
that meeting, Union Representative Uzelac explained the
benefits and the advantages offered by the Union and
distributed union authorization cards to the employees.
Fifteen of the employees in attendance thereupon signed
and submitted union authorization cards to the Union. All
of the above-identified witnesses , including employee
witness Ransom C . Wireman, testified that they signed
union authorization cards and did not thereafter revoke or
attempt to revoke such authorizations.
Respondent, through the testimony of its vice president,
Charles Elder, admitted that it first learned about the
Union's interest in organizing its employees in a letter and
telegram from the UMW dated November 27, 1974.
C. Respondent's Alleged Threatening and Coercive
Conduct
Employee Dallas Short testified that sometime during the
week following the employees' meeting on or about
December 1, 1974, he held a conversation with his
supervisor, Ralph Crow, which was as follows:
A. Mr. Crow wanted to know what I knew about
the union. He wanted to know who was behind it. He
wanted to know what I knew about it. And I told him I
didn't know much about the union. I told him that I
didn't want to say anything. And he said, "You'd better.
You're not going to have a job if you don't." He said,
"The man wants to know. He wants to know tonight."
He said , "He's going to shut the place down if the union
comes in." He said he was no bullshitter, that he would
do it.
Short said he felt uneasy about the above questions and
statements by Supervisor Crow, and he stated that "the
man" to whom Crow was referring was Chuck Elder, vice
president of Respondent.
Ralph Crow, a day shift mine foreman for Respondent,
testified that he was the supervisor of Dallas Short, who
worked for him for approximately 90 to 120 days, but that
he could not recall telling Short that he had to find out who
was involved in the Union, that the man "wanted to know, and
if he didn 't find out he (Elder) was going to shut the plant
down. Crow also testified that he could not recall having any
conversation with Short in which he talked about the union.
I The facts set forth above are undisputed and are not in conflict in the
record
PEAKER RUN COAL COMPANY
Crow's employment with Respondent is presently terminat-
ed.2
About 2 weeks after the above-described conversation
with Supervisor Crow , Short testified that Vice President
Elder called and held a meeting with the unit employees at
the Holiday Inn, during which all except two of Respon-
dent's employees were in attendance along with supervisory
personnel ; Edward Bacome, attorney and corporate secre-
tary for Respondent; Foreman Stevens ; Bill Orr ; and Vice
President Elder, who presided over the meeting. Short
further testified that Vice President Elder told the employ-
ees that he was rather disappointed that they had gone to
the Union without first coming to the Company to discuss
their concern ; that they (Respondent) had been looking for
this type of action by the employees for some time; that
management had previously discussed two offers with
respect to wages and working conditions to present to them,
but that he could not afford to go with the Union because if
he could not make a reasonable profit he would shut the
place down.
Employee Thomas Stephens ' testimonial version of what
transpired at the company-called meeting of employees
held on December 10, 1974, essentially corroborates the
testimony of employee Short. In essence , he testified that
Vice President Elder stated that he could not operate the
Company under union conditions but would have to shut it
down. He further testified that about 3 weeks before the
election scheduled for January 31, 1975 , Foreman Bill
Stevens told him that if the employees went union (UMW)
he (Stevens was directed to close the plant 's gate after that
shift. Stephens said to his knowledge the plant's gate has
never been closed or locked.
Employee Jack Campbell 's testimonial version of the
Company's December 10 meeting with its employees
essentially corroborated the versions of employees Short
and Stephens . He stated that after Vice President Elder
advised them about the proposed wage increase he further
advised them that Respondent could not operate the Compa-
ny under union conditions and would have to quit operating if
the employees went union.
The testimony of employee John Roush also essentially
corroborates the testimony of employees Short , Stephens,
and Campbell, to the effect that Vice President Elder said
he could not operate the Company under the Union, and if
the employees went union he would have to shut down. He
(Roush) was never questioned about the Union by either
Supervisor Crow or Supervisor Stevens.
Employee Ramzey L. Boggs testified that about a week
after the company meeting with the employees on Decem-
ber 10, 1974, he heard Vice President Elder state, in the
presence of himself (Boggs) and Foreman Crow, "that if the
union got in he didn 't know how he could possibly make it."
Boggs said he believed the latter statement was made before
the election scheduled for January 31, 1975, was called off.
However, Foreman Crow denies that Vice President Elder
made such a statement in his presence.
2 1 credit the testimonial version of employee Dallas Short over that of
Supervisor Ralph Crow, not only because he was straightforward, sure, and
appeared nonselective in answering questions, but also because Crow almost
consistently did not categorically deny the interrogation and threatening
101
Employee James W. Halley attended the company
meeting with the employees on December 10, 1974, and
heard Vice President Elder tell the employees "f they went
union he would close the job down." He further testified that
subsequently, but before Christmas, a Mr. Brouhard of
management took him over to the barn where he was asked
to talk on the telephone to Vice President Elder, who asked
him how did the union situation look; that he (Halley) told
him (Elder) that it looked like it was 100-percent union.
Vice President Elder said if it went union he would have to
close the job down. Halley said Vice President Elder then
asked him did he think it would do any good if he (Elder)
could go down and talk to the men (employees), and he
(Halley) said no, because the employees were mad at him.
Employee Ransom C. Wireman testified that he attended
the meeting on December 10, 1974, during which the
employees were informed that they were going to be
granted a raise. However, he stated that he did not remember
Elder telling them that if the Union came in he was going to
have to shut down . He also said he had never heard any
foreman make such statement to him.
Employee Gene Thomas Clay testified that he attended
the Company's meeting with the employees on December
10, 1974, and recalled a fellow employee stating that after
the pay raise was agreed upon the amount of the raise
would be better than what the Union could obtain and
Elder said, "Lets disregard that right now." He does not
remember Elder or any member of management stating that
if the Union got in the Company would have to shut down.
He did not sign an authorization card. However, on cross-
examination Gene Clay admitted that he was not present at
the December 10 meeting when Elder opened the meeting,
but rather, came in later and sat on the other side of the
room opposite Elder while employees between himself and
Elder carried on private conversations concurrently with
the remarks of Elder; that he (Clay) also was engaged in
some private conversations with fellow employees while
Elder was speaking; and that he could not hear everything
Elder said, although he heard most of his remarks.
Clay and other employees received a letter from Respon-
dent dated February 19, 1975, wherein Respondent assured
them that nobody would lose their job.
Bacome testified that he did not hear Elder make a
statement about the Union or tell the employees during the
meeting of December 10, 1974, that he was disappointed
that they had gone to the Union, or that the Company
would have to shut down. Vice President Elder denied
making any reference whatsoever to the Union or the
employees' organizational drive. However, with respect to
his remarks to the employees at the December 10 meeting,
Vice President Elder continued to testify as follows:
Q. Had you stated the position that you could not
survive under the union?
A. Outright answer, no . I would say that I answered
in such a way that if we could survive, we would go ahead
and do it, but if not, pure economics would shut you down.
statements attributed to him . Instead, Crow, practically without exception,
repeatedly stated that he could not recall any aspect of the conversation I
received a distinct impression from his demeanor in testifying that he was not
testifying truthfully.
102 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vice President Elder categorically denied that he told
employees he was disappointed in them because they did
not come to management before going to the Union. He
also denied that he discussed the Union 's organizational
efforts with the employees or told them if the Union got in
he would shut down the plant . He said he was sure he did
not make such a statement because the Company's attor-
ney, Bacome , was sitting right beside him and had
previously advised him not to do so . However, when Vice
President Elder was asked by counsel for Respondent did
he at any time during the course of the meeting tell the
employees that if the Union got in the Company would not
operate under union conditions , he responded as follows:
"1 don 't-if I di4 I don't think it was with the-said in that
manner. " He further testified as follows:
Q. Do you recall ever telling any employee on a
one-to-one basis that if the union got in you 'd have to
shut down because the union got in?
A. I would say it may have come out different but it
could have meant the same thing.
Q. Well, how do you think it came out? I mean to
the best of your memory what do you think you said?
A. You work and last only as long as the business
stays intact and you make some profit. Whenever the
time gets rough, then you have to bend with the wind. A
lot of times you bend so far and you close your shop. I
think that everybody understands that .3
D. Respondent Offers Employees Pay Raise in the
Midst of Organizing Campaign
With respect to Respondent's pay raise proposal to the
employees, Dallas Short testified as follows:
A. He offered us a dollar on the hour raise, plus 25C
on the ton royalty. Just a flat rate of $1.25 raise.
Q. Was there a discussion of how the royalty was to
be handled?
A. Yes, sir, there was . To the best of my under-
standing the 250 on the ton was supposed to go in the
bank , and it was up to us to decide whether we wanted it
either once a year, twice a year, and they would take the
25¢ a ton, whatever the total was, if we wanted to split it
up once a year or twice a year, and that period each year
that they would split this up among the employees of
Peaker Run Coal, and they were going to set up some
program where the employee had to be there so long
before he got a share of this.
3 I credit largely that aspect of Vice President Elder 's testimony which
describes what he actually said to the employees and not necessarily his
presently expressed philosophy, logic, or explanation of his statements which
he did not articulate to the employees at that time (December 10). As to
whether Vice President Elder told the employees on December 10, or
thereafter, that he "could not afford to go with the Union because rfhe could not
make a reasonable profit he would shut the place down," or that he could not
operate the company under union conditions and would have to shut it down if the
employees went union, I credit the testimonial account of former employee
Dallas Short , employees 71omas Stephens , Jack Campbell, and James
Halley over that of Ranson Wireman , Gene Clay, Edward Bacome, Esq.,
and Vice President Elder for the following reasons: I was persuaded not only
by the straightforward and unequivocal manner in which the aforestated
witnesses testified that they were telling the truth , but also because their
At the conclusion of his presentation of the wage offers,
Vice President Elder and other supervisory personnel
stepped outside to allow the employees an opportunity to
discuss Respondent's pay raise proposal. After some
discussion, the employees decided to accept the flat rate of
$1.50 per hour plus 3 paid holidays. The employees
informed Vice President Elder of their decision, and he
advised them that they could have holidays off, but without
pay because employees with 1-year tenure with Respondent
were already receiving 2 weeks paid vacation.
With respect to the employees ' response to Respondent's
proposed wage offer, Short continued to testify as follows:
Q. Did Mr. Elder comment on the decision of the
men to take the raise?
A. Yes, sir. I believe he said it was better for the men
to take the raise and to work than not to work at all. He
said if the union came in he could not make enough
profit and that he would close the place down.
When Respondent was asked why its final general pay
raise proposal happened to have been presented on
December 10, its attorney and corporate secretary, Edward
Bacome, testified that Respondent had decided to grant its
employees a pay raise in the early or middle part of October
1974, but that it was deemed wise to wait until the UMW's
national contract was negotiated and reviewed by it, since
the old contract would expire November 12, 1974. Corre-
spondingly, Vice President Elder testified that although the
Company had considered granting its employees a pay
increase, it decided to await the UMW contract so it could
see what mineworkers were being paid elsewhere , since the
coal industry is a competitive business . Bacome further
stated that Respondent received a copy of the new contract
during the first week in December 1974. After viewing the
contract, company officials then discussed its provisions
and decided to have a meeting with the employees and
present to them the proposals presented in the December 10
meeting.
After viewing the new national union (UMW) contract,
Bacome said , the decision as to when Respondent would
grant the raise, as proposed , was made about a day or two
before the December 10 meeting with the employees, which
was also a day or two after he was able to obtain and review
a copy of the UMW national contract. He continued to
testify as follows:
A. We proposed to the employees an amount per
hour as an increase supplemented by the incentive plan
individual testimonial versions with respect to what they heard and
understood Elder to say were essentially consistent , one with the others. I
further observed that, while their testimony may not be found favorable to
the interest of Respondent , three of the said witnesses are still employed by
Respondent and the other is now in the military service . On the contrary, I
do not credit the testimony of Vice President Elder in this regard because it is
particularly noted that he did not categorically deny making the subject
statements , and he appeared to have been either unsure or untruthful in his
testimony as is partially reflected on the record , cited above . I do not credit
the corroborating accounts of Wireman, Clay, and Bacome, because
Wireman and Clay admitted, and the evidence shows , that they did not hear
all of Vice President Elder's remarks , and Bacome , who did not appear to be
candid in his testimony, could not recall, did not think, and he would only
say "no," that Vice President Elder did not make the subject statements.
PEAKER RUN COAL COMPANY 103
that I described earlier based on our tonnage produc-
tion . We could refer to that as Plan 1.
Our alternate one, the second one was just a straight
increase with no incentive.
We discussed that with the employees , and after a
certain point in time decided to enable them to choose
the one that they thought was most acceptable to them
that they should discuss it among themselves.
The testimonial account of Respondent 's vice president,
Charles Elder , is essentially consistent with the testimonial
versions of the prior witnesses with respect to the Respon-
dent's proposed pay raise.
E. Respondent Hosted a Food-and-Drinks Social for
Employees 5 Days Before Scheduled Union Election
Employee Dallas Short further testified that on Saturday,
January 25 , 1975, prior to the scheduled union election for
January 31 , 1975, President Elder sponsored and hosted a
party with food and drinks for employees . The employees
were then told that thereafter there would be other such
parties periodically . With respect to the social gathering or
party sponsored and held by Respondent on January 25,
1975, Vice President Elder was examined.
After testifying that the January 25 meeting was a social
function for the employees , Respondent Vice President
Elder reluctantly admitted on cross-examination that he
circulated amongst the employees and held discussions
with them in reference to the Union and that the union
election scheduled for January 31 was on his mind and of
concern to him, and he thereupon gave the following
testimonial account:
Q. You're saying that the union wasn 't mentioned
at all?
A. To my best recollection , no, the union was not
mentioned because that was not the specific reason we
were there ... .
Q. So it was more of a social occasion , was it not?
A. Yes, sir.
Q. It was more to eat and drink and be merry than
the December 10 meeting . Is that not right?
A. Correct.
Q. And that was the only such meeting where it was
eat, drink and be merry , where the people were to enjoy
themselves . Is that correct?
A. Correct.
Q. And at that time did you not tell the employees
at that meeting at Oscar's , or some of the employees at
least, that they were going to have to tighten up their
belts if the union got in?
A. I remember speaking tightening up your belts
through the economic rules with any business . Profits is
not a dirty word . If you're going to make a profit you're
going to stay in business. And I may have said that if we
done this, and things got tight , hard , that we couldn't
survive.
Q. If you done what , in other words? Would you
repeat the last statement, sir?
A. I forget what I said . I said that if the Company
didn't make any profit we would definitely have to close
our operation and move out . I mean profit is not a dirty
word . That was not considered to me as a threat. It was
pure economics.
Q. But you had expressed the opinion on other
occasions that you couldn 't operate with a profit if the
union came in. Isn 't that right?
A. I think you're trying to put words in my mouth.
Q. I'm simply trying to get the truth out in this case,
Mr. Elder.
A. I am, too.
Q. Well , I'd like to get an answer to my question.
A. They could have interpreted it that way, yes.
If I came right out and said it as such , I just don't
remember.
Q. You don't remember?
A. No. It could have meant the same thing.
Q. Do you recall telling your employees they would
not be able to stand around?
A. Yes, sir.
Q. Do you recall -
A. Yes, sir.
Q. Do you recall why you told them at that time
that they wouldn't be able to stand around?
A. Well, my policy has never been to see a man
stand around . That doesn't do the Company any good.
Definitely I'm a company man. That isn 't the way we
make our money , by standing around . It's not their
practice to do that, also.
Q. Didn't you tell the employees at the Oscar
meeting that if they voted in the union you would work as
long as you could under it, but you would have to tighten
your belts, which would mean work harder and not having
men stand around?
A. I'd say yes, sir.
Q. You did say that?
A. Yes, sir.
Q. Okay . And did you thereafter solicit the employ-
ees' support in the upcoming election?
A. What do you call soliciting?
Q. Talk to them and ask to support the Company in
the election?
A. I think I talked to every employee that I had
there. I don't think that I solicited them.
Q. Well, did you request their support in the
upcoming election?
A. I would have to possibly truthfully say I did.
Q. Well, you believe you did?
A. I would say so. [Emphasis supplied throughout.]
F. Analysis and Conclusions
1. Unlawful interrogation
It is well established by the credible evidence of record
that on or about December 3, 1974, Respondent , through
its Supervisor Ralph Crow , did ask employee Dallas Short
who was organizing the Union and what was the progress
of that effort and that when Short said he did not know or
did not want to talk about it Crow told him he had better
talk or he would not have a job because management
wanted to know and it would shut down the mine
operation. Based upon this evidence , I hereupon conclude
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and find that such questions and statements by Crow
constituted an interference with, a restraint upon, and
coercion against the employees' rights protected by Section
7 of the Act, and therefore resulted in a violation of Section
8(a)(l) of the Act. Counsel for Respondent contends that
such questioning by Crow was not unlawful interrogation
because there is no showing of a history of employer
hostility and discrimination ; that Crow was not high in the
managerial hierarchy; that the place where the interroga-
tion took place was informal and not unusual ; and that the
nature of the information sought did not appear to be for
the purpose of taking action against individual employees.
However, when it is observed that while every element or
example enumerated in Bonnie Bourne, an individual d/b/a
Bourne Co. v. N.L.R.B., 332 F.2d 47 (C.A. 2,1964), may not
be present in the instant case, it is nevertheless noted that
some , as well as other coercive factors, are present.
More specifically, it is well established that Crow's
interrogation took place only 6 or 7 days after Respondent
was formally notified by the Union of its organizational
efforts, and only 2 days after the employees held their first
organizational meeting on December 1; that Crow was the
day shift mine foreman and that it was not established that
there was any immediate supervisory authority between
himself and top managerial personnel in this small mining
operation ; that, as such day shift foreman, Crow had
knowledge of the employees' union activity and proceeded
to interrogate, not subtly, but in a direct and severe manner,
employee Short about the employees ' union activity; that
when Short told him he did not want to talk about it Crow
told him he had better talk about it and threatened him
with the loss of his job if he did not, as well as the shutdown
of the plant if the employees elected the Union as their
representative . Crow's interrogation accompanied by such
statements heretofore described can hardly be character-
ized as anything other than coercive and restraining
conduct which tended or in fact interfered with the exercise
of employees' rights protected by Section 7 of the Act.
Moreover, the purpose for the individual identity of the
organizing employees sought by Crow can hardly be
attributed to any purpose other than acts of reprisal by
Respondent , in view of the diligent, threatening, and
probing interrogation by Crow.
The fact that Short's apprehension might have been
relaxed after Crow told him he respected him for not
talking does not wipe out Short's initial apprehension of
managerial reprisals so as to undo the unlawful conduct by
Crow. Since Crow's interrogation was not unaccompanied
by coercive and threatening language and was not made
with prior assurances against acts of reprisal, it was clothed
with obvious coercive, restraining, interfering, and unexcus-
able attributes or unlawfulness.
The question as to whether Vice President Elder on or
after December 10 threatened the employees with shut-
down of mining operations if the Union (UMW) became
the collective-bargaining representative of the employees
may be answered by what the credible testimony of the
witnesses , including Vice President Elder , established was
said by Elder and what was understood by the employees
during the December 10 meeting and the January 25, 1975,
social function . A careful review of the credible testimony
of the employees shows what Vice President Elder said
without explanations . In essence , that evidence shows that
Elder told the employees he was disappointed that they
went to the Union without first coming to the Company to
discuss their concerns ; that he had a wage increase to
propose but he could not afford to go with the Union
because if he could not make a reasonable profit, he would
shut down the place , or he could not operate the Company
under union conditions but would have to shut it down;
and/or if the employees went union he would have to shut
down the operation.
The crucial question presented for decision here is
whether the aforedescribed statements by Vice President
Elder constituted a threat to the employees to shut down
the mining operation in response to the Union becoming
the collective-bargaining agent of the employees ; or wheth-
er such statements were made as an economic or business
prediction of what would happen as a consequence of
union operation and influence . An examination of the
literal language of these statements alone might lead one to
conclude that they expressed an economic or business
prediction as distinguished from a threat in retaliation for
unionization of the operation. '
However, when Vice President Elder's statements are
examined in the light of the total evidence regarding the
union activity of the employees and company knowledge
and action (Supervisors Crow and Stevens) in response
thereto, along with the conspicuous absence of evidence
that Elder or any other supervisory personnel gave employ-
ees any assurance against company acts of reprisal or urged
the employees to vote on facts, Respondent has not shown
that the Company was experiencing a decline in profits or
business difficulty. On the contrary , Respondent actually
granted its employees a general raise higher than it had
initally proposed in the December 10 meeting, which
practically refutes any business or financial difficulty.
Respondent's (Elder's) remarks about shutting down the
mining operation were not qualified upon a condition that
if the Union's demands and operation were so large that
inadequate profits would result it would have to shut down
the Company. Instead, Elder categorically stated that he
could not operate the Company under union conditions, as
if operating a unionized company ipso facto meant inade-
quate profits.
While Vice President Elder might have had a grave, real,
and genuine concern about the profitable operation of the
Company as counsel for Respondent contends , he nev-
ertheless neglected to articulate to the employees or on the
record such fact, or facts to support such proposition.
Moreover, here, unlike the employer in N.L.R.B. v. Empire
Furniture Corporation, 107 F.2d 92 (C.A. 6, 1939), cited
by counsel for Respondent , Respondent did not qualifiedly
say, presuming the Union came in, "When it comes to where
we can't do anything, we will lock the gate and leave out of
here." Nor did Respondent show that the Company was
losing money and could not afford union wages as did the
employer in N.L.R.B. v. Crosby Chemicals, Inc., 274 F.2d 72
(C.A. 5, 1960), so as to constitute the expression of an
opinion of the business or economic consequences of
unionization, which is protected as free speech under
Section 8(c) of the Act. Consequently , I conclude and find
PEAKER RUN COAL COMPANY
that such threatening statements by Respondent, when
considered along with all of the evidence of record, were
made to discourage the organizational efforts of the
employees and, as such , had an interfering , restraining, and
coercive effect upon their organizing activity in violation of
Section 8(a)(1) of the Act.
2. Respondent grants pay raise
While the evidence does not present a dispute as to
whether a general wage increase was granted by Respon-
dent during the employees ' organizational drive, it does,
nevertheless , raise the question as to whether such raise was
granted in violation of the Act . Conceding, as counsel for
Respondent contends , whether or not such a raise is lawful
depends on the reason for which it is given . The reason for
which an employer grants a pay raise in the midst of a
union's organizing campaign can best be determined not
only by the reason advanced by the employer, but also
upon the entire set of circumstances surrounding the
decision to grant it. A careful review of the evidence of
record in this regard reveals that Respondent had not
granted its employees a general wage increase since it
commenced its mining operation in early 1974. Although
Vice President Elder and Secretary Bacome testified that
Respondent decided in early or mid-October 1974 to grant
the employees a wage increase , the first time any of the
employees learned about a management decision to grant a
raise was during the Company's meeting with the employ-
ees on December 10, only 9 days after the employees'
organizational meeting on December 1, and 12 or 13 days
after Respondent was notified by the Union of its organiza-
tional mission.
Respondent testified that its reason for granting the pay
raise on December 10 was based upon its recent education
of what wage rates the national union embodied in its
contract executed (December 1, 1974), which enabled
Respondent to arrive at a wage rate which would be
competitive with other companies in the coal mining
industry. In support of its position, Respondent cites
several cases including Guyan Machinery Company, 155
NLRB 47 (1965). However, an examination of the latter
case reveals that employer policy there , unlike here, was to
grant a general wage increase after employees in various
mines in the area received a raise . Respondent does not
show what wages area mine employees received or that area
employees were given a wage increase in or about Decem-
ber 1974. Nor has Respondent produced any evidence
which shows that it is, or has been, company policy to grant
employees a raise in order to maintain wages commensu-
rate with other companies in the industry , as the employers
did in Deutsch Company, Metal Components Division, 178
NLRB 95 (1969), and Werthan Bag Corporation, 167 NLRB
3 (1967), cited by Respondent. Likewise, the facts in the
Charmin Paper Products Company, 186 NLRB 89 (1970),
and Standard Auto Body, Inc., 171 NLRB 91 (1968), cases
cited by Respondent, are distinguishable from the facts in
the instant proceeding.
Although Respondent, through the testimony of its vice
president and corporate secretary testified that Respon-
dent's decision to grant the employees a raise was not
associated with , or intended to discourage , the union
105
interest of its employees , I do not credit their testimony in
this regard for the following reasons: (1) Respondent had
never held a meeting with its employees about wages and
working conditions before December 10, during the em-
ployees' organizing campaign . (2) No employee had heard
that Respondent was even contemplating the grant of a
general pay raise prior to the company meeting with the
employees on December 10, nor prior to the union activity
of the employees of which the Respondent was aware. (3)
Since the Respondent has learned that its wage increase
was alleged to be unlawful , it told, for the first time in this
proceeding, that it had planned to grant its employees a
raise earlier than December 10, in fact as early as mid-
October 1974. (4) I deem such latent and one-sided
explanation by Respondent as being self-serving, especially
when the prior coercive interrogation of its employees on
December 3, 1974, Respondent's threat to shut down the
mining operation on December 10, 1974, its first sponsored
social function for the employees on January 25, 1975, just
preceding the scheduled union election on January 21,
1975, and its threat infra of its employees with more
onerous working conditions on January 25, 1975, are all
considered in totality. I am persuaded and thereupon
conclude and find that Respondent's wage increase was not
granted as a matter of simple economic considerations, but,
rather, as an effort to discourage union activity in violation
of Section 8(a)(1) of the Act. This position is further stated
by the Court in N.LR.B. v. Gissel Packing Co., Inc., 395
U.S. 575, 618-619 (1969), cited by counsel for the General
Counsel as follows:
If there is any implication that an employer may or may
not take action solely on his own initiative for reasons
unrelated to economic necessities and known only to
him, the statement is no longer a reasonable prediction
based on available facts but a threat of retaliation based
on misrepresentation and coercion, and as such without
the protection of the First Amendment. We therefore
agree with the Court below that "[c]onveyance of the
employer's belief, even though sincere, that unioniza-
tion will or may result in the closing of the plant is not a
statement of fact unless, which is most improbable, the
eventuality of closing is capable of proof."
The complaint alleges and Respondent , through the
testimony of Vice President Elder, admitted that on
January 25, 1975, it told employees if the Union became
their representative the employees would have to tighten
their belts (work harder) and refrain from standing around,
and it requested the support of the employees against the
Union in the election scheduled for January 31, 1975. Based
upon the foregoing undisputed evidence, I conclude and
find that such statements to the employees by Respondent,
in the light of its other established unlawful conduct,
constituted a threat that the employees would have to work
harder and lose or be denied the privilege of standing
around in the future, if the Union became their representa-
tive. Such a threat is, in its very nature, restraining and
coercive conduct in violation of Section 8(a)(1) of the Act.
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Bargaining order
Finally, the question is presented as to whether the
established unfair labor practices committed by Respon-
dent during the organizing campaign of its employees were
of such consequential magnitude as to interfere with the
election processes by dissipating the Union's majority
status and precluding the holding of a fair election. In
answering this question, it is first noted that it is clearly
established by the evidence of record (Excelsior list submit-
ted by Respondent in Case 9-RC-10910) that practically all
(18) of the 26 employees in the stipulated appropriate unit
for collective bargaining signed a single-purpose authoriza-
tion card designating the Union (UMW) as their collective-
bargaining agent. Respondent has not presented any
evidence showing that it had independent knowledge that
the Union lacked majority status either before or subse-
quent to the commission of unfair labor practices.
While acknowledging that it had knowledge of its
employees' union interests and activities on and before
December 1, 1974, Respondent nevertheless engaged in
coercive interrogation of its employees on or about Decem-
ber 3, 1974; threatened its employees on December 10 with
shutdown of its operations if the Union became the
bargaining agent of the employees; granted its employees a
35-percent wage increase on December 10; and sponsored
and hosted its first food-and-drinks social function on
December 25, dust 6 days preceding a scheduled union
election, during which it threatened to impose more
onerous and constricted working conditions or rules on
employees if they selected the Union as their collective-
bargaining agent.
In view of the foregoing credible evidence, I conclude
and find that Respondent's aforedescribed unlawful con-
duct constituted the commission of independent, substan-
tial, and pervasive unfair labor practices disruptive of
election conditions or processes, which prevent a free
election and cause the dissipation of the Union's majority
warranting the issuance of a collective-bargaining order.
N.LR.B. v. Gissel Packing Co., 395 U.S. 575 (1969), and
Steel-Fab, Inc., 212 NLRB 363 (1974).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship 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 . They are unfair labor practices within the
meaning of Section 8(a)(3) and (1) and Section 2(6) and (7)
of the Act.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices warranting a remedial order , I shall recom-
mend that it cease and desist therefrom and that it take
certain affirmative action to effectuate the policies of the
Act.
It having been found that Respondent interfered with,
restrained, and coerced employee Dallas Short and other
employees in the exercise of their Section 7 protected rights,
in violation of Section 8(a)(1) of the Act, by coercively
interrogating employee Dallas Short; threatening all of its
employees with the shutdown of its mining operation
should they select the Union (United Mine Workers of
America) as their collective-bargaining agent; threatening
its employees with more onerous working conditions;
granting its employees a substantial wage increase in the
midst of its organizing campaign; and, sponsoring and
hosting a food-and-drinks social for its employees during
which it threatened to impose more onerous working
conditions or restricted rules, for the purpose of discourag-
ing their interest in and/or support for the Union; and that
such unlawful conduct by Respondent prevents the carry-
ing out of a free election and the likelihood of dissipating
the Union's majority status, the recommended Order will
provide that Respondent cease and desist from engaging in
such unlawful conduct and bargain with the employees'
designated collective-bargaining representative, the United
Mine Workers of America.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that
Respondent cease and desist from in any other manner
interfering with, restraining, and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4,
1941).
CONCLUSIONS OF LAW
1. Beasley Energy, Inc., d/b/a Peaker Run Coal Com-
pany, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. United Mine Workers of America is, and has been at
all times material herein, a labor organization within the
meaning of the Act.
3. By coercively interrogating Dallas Short about his
and other employees' union interests or affiliation, Respon-
dent violated Section 8(a)(1) of the Act.
4. By threatening employee Dallas Short and other
employees with the shutdown of its mining operation,
Respondent violated Section 8(a)(1) of the Act.
5. By granting its employees a substantial wage increase
in the midst of the employees' organizing campaign,
Respondent violated Section 8(a)(1) of the Act.
6. By sponsoring and hosting a food-and-drinks social
function for its employees during the midst of their
organizational campaign and 6 days preceding the sched-
uled union election , during which it threatened some
employees with more onerous working conditions or
restrictive rules if the employees selected the Union or the
UMW as their collective-bargaining agent, Respondent
violated Section 8(a)(1) of the Act.
7. These unfair labor practices were so independent,
substantial, and pervasive that they are disruptive of the
election processes, precluding a fair election and warrant-
ing an order to bargain.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
PEAKER RUN COAL COMPANY
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER4
The Respondent, Beasley Energy, Inc., d/b/a Peaker
Run Coal Company, Gallipolis, Ohio, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees about their past and
current union interests or affiliation.
(b) Threatening its employees with the shutdown of its
mining operation if the employees select the United Mine
Workers of America as their collective-bargaining agent.
(c) Rewarding its employees with social functions and
threatening some employees with more onerous working
conditions or restrictive working rules.
(d) Granting its employees a wage increase for the
purpose of discouraging their union activity.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Recognize and, upon request, bargain collectively
with United Mine Workers of America as the exclusive
representative of the employees found herein to constitute
an appropriate unit, and, if an understanding is reached,
embody such agreement in a written signed contract.
(b) Post at Respondent's plant at Gallipolis, Ohio, copies
of the attached notice marked "Appendix." 5 Copies of said
notice, on forms provided by the Regional Director for
Region 9, after being duly signed by Respondent's repre-
sentatives , shall be posted by it immediately upon receipt
thereof, and be maintained by Respondent for 60 consecu-
tive 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.
(c) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not found herein.
4 In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec . 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings , conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes.
5 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board " shall read "Posted Pursuant to a
107
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate employees about
their and other employees' union membership, activi-
ties, and desires.
WE WILL NOT threaten employees with the shutdown
of mining operations should they select the Union or
any other labor organization as their collective-bargain-
ing representative.
WE WILL NOT grant a wage increase to employees for
the purpose of discouraging their union activities or
undermining and dissipating the Union's majority.
WE WILL NOT threaten employees with more onerous
working conditions or more restrictive working rules if
they select the Union or any labor organization as their
collective-bargaining representative.
WE WILL recognize and, upon request, bargain
collectively with United Mine Workers of America as
the exclusive representative of the employees found
herein to constitute an appropriate unit, and, if an
understanding is reached, embody such agreement in a
written signed contract. The bargaining unit is:
All production and maintenance employees employed
by the Employer at its Ohio mines excluding all office
clerical employees, professional employees, guards and
supervisors as defined in the Act, constitute a unit
appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act, as
amended.
WE WILL NOT in any other manner interfere with,
restrain , or coerce employees in the exercise and
enjoyment of rights guaranteed them by Section 7 of the
National Labor Relations Act, except to the extent that
such rights may be affected by such lawful agreements
in accord with Section 8(a)(3) of the Act.
All our employees are free to become, remain, or refuse to
become or remain , members of United Mine Workers or
any other labor organization.
BEASLEY ENERGY, INC.,
D/B/A PEAKER RUN COAL
COMPANY