Pennsylvania Energy Corp.

National Labor Relations Board - Board Decisions

Mar 27, 1985

274 N.L.R.B. 1153 (N.L.R.B. 1985)

PENNSYLVANIA ENERGY CORP
Pennsylvania Energy Corporation and United Mine
Workers of America and its District 2 and
Local 1040 . Case 6-CA-16830
27 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 10 August 1984 Administrative Law Judge
Richard H. Beddow Jr. issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed limited
cross-exceptions and a brief in opposition to the
Respondent's exceptions and in support of the
cross-exceptions.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, i and
conclusions2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Pennsylva-
nia Energy Corporation, Johnstown, Pennsylvania,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
i The General Counsel excepted to the judge's inadvertent failure to
find that the Respondent's conduct violated Sec 8(a)(3) of the Act as al-
leged in the complaint We find it unnecessary, however, to determine
whether the Respondent violated Sec 8(a)(3) because any remedy we
would order if we were to find a violation would merely be cumulative
and would not affect the remedy already provided
The Respondent asserts that the judge's credibility findings are a result
of bias or prejudice After a careful examination of the entire record, we
are satisfied that this allegation is without merit
2 Member Dennis agrees with the judge that the Respondent was obli-
gated to bargain over its decision to subcontract bargaining unit work
Her analysis is based on her interpretation of the Supreme Court's deci-
sion in First National Corp v NLRB, 452 U S 666 (1981), as set forth in
her concurring opinion in Otis Elevator Co, 269 NLRB 891 (1984) In her
view, a two-step test is used in deciding whether a certain management
decision is a mandatory subject of bargaining "[T]he General Counsel
must prove (1) that a factor over which the union has control was a sig-
nificant consideration in the employer's decision, and (2) that the benefit
for the collective bargaining process outweighs the burden on the busi-
ness " The burden elements to be considered in applying the second part
of the test include extent of capital commitment, extent of changes in op-
erations, and the need for speed, flexibility, or confidentiality In the in-
stant case, Member Dennis finds that labor costs (a factor over which the
Union has control) were a significant consideration in the Respondent's
decision Furthermore, she finds that bargaining over the subcontracting
decision would not have placed substantial constraints on the business
Accordingly, she concludes that the General Counsel established "the
benefit" outweighs "the burden" and that the Respondent's decision was
a mandatory subject of bargaining
DECISION
STATEMENT OF THE CASE
1153
RICHARD H. BEDDOW JR., Administrative Law Judge.
This matter was heard in Johnstown, Pennsylvania, on
May 3, 1984 Subsequently, briefs were filed by Re-
spondent and the General Counsel and the Charging
Party adopted the latter brief.
The proceeding is based on a charge filed October 17,
1983, by the United Mine Workers of America and its
District 2 and Local 1040. The Regional Director's com-
plaint dated December 12, 1983, alleges that Respondent
Pennsylvania Energy Corporation of Johnstown, Penn-
sylvania, violated Section 8(a)(1), (3), and (5) of the Na.
tional Labor Relations Act by subcontracting the strip-
ping of coal and backfilling of mined areas, refusing to
recall laid off employees, and failing to bargain with' the
Union over such conduct. '
On review of the entire record in this case and from
my observation of the witnesses and their demeanor, I
make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Pennsylvania corporation. It admits
that during the relevant period it sold and shipped mate-
rial valued in excess of $50,000 to Union Vale Coal
Company which, in turn, sold and shipped material
valued in excess of $50,000 to points outside Pennsylva-
nia and that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act. It also is admitted that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
Respondent is engaged in the mining and nonretail sale
of coal. The Union has been the recognized collective-
bargaining representative of Respondent's employees
since 1972 and was certified as such on May 27, 1982.
Prior to 1981, Respondent had been signatory to several
Bituminous Coal Operators Association (BCOA) con-
tracts, the most recent of which was the 1978-1981 con-
tract. Although Respondent never signed the 1981-1984
BCOA contract, certain of the provisions of this con-
tract, including the payscale, were put into effect. As a
result of a declining coal market it experienced economic
difficulties and in April 1982 all bargaining unit employ-
ees were laid off
By letter of June 4, President Paul Gormish of District
2 of the Union wrote to James Cooper, president of Re-
spondent, confirming that the Company's objection had
been overruled and that the Board had certified the
Union as bargaining representative. The letter acknowl-
edged awareness that all employees had been laid off but,
nevertheless, requested a negotiating meeting to explore
the company's current position and future plans and to
bargain over the layoff
On July 20 Cooper and his attorney met with Gor-
mish, the Union's attorney, Union Board Member Carson
Bruening, and employee George Vuchovich. The princi-
274 NLRB No. 174
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pal topic of discussion was the Respondent's financial
condition Cooper described the Company's position as
very difficult and said it was considering bankruptcy or
other options including selling its operations Bruening,
the union official with direct responsibility for represent-
ing Respondent's employees, testified Cooper said he had
no intention of opening back up, that he was absolutely
sure that Cooper had not discussed the possibility of sub-
contracting bargaining unit work, and that if this subject
had been brought up during this meeting, he would have
remembered it. Vuchovich also testified that he recalled
only that Cooper said he was considering bankruptcy
and that he had no plans to recall any employees from
layoff. Cooper testified, however, that he also had men-
tioned consideration of "sub-contracting any work to be
done up there at the strip mine" as an option The Union
also brought up the matter of Respondent's withdrawal
liability to the pension fund if it went out of business and
it was estimated that it would be in the area of $550,000.
The following day the Union's attorney wrote to Gor-
mish and Bruening confirming a discussion following the
meeting noting "the bankruptcy status of the Company
received from Mr Cooper, and the absence of any likeli-
hood that the Company will resume operations" and a
proposal to compute the Company's debt to employees
and to negotiate an acknowledgement to best position
the men for priority claims in bankruptcy. The letter also
indicated an intention to thereafter contact the union re-
tirement fund "to press them to seek dissolution of the
Company through bankruptcy proceedings based on the
withdrawal liability."
On August 5, 1982, Respondent entered into a subcon-
tract with H.T. Eppley and Sons Contracting Company
to perform reclamation work at its strip mine. The term
"reclamation work" includes both bargaining unit work
(backfilling) and nonbargaining unit work (water treat-
ment) The Union was not given any notice of Respond-
ent's intention to enter into this subcontract. Eppley was
employed by Respondent as its superintendent beginning
about August 1981, however, at some point during the
summer of 1982, after Respondent's union employees had
been laid off, Eppley's status assertedly changed from
that of superintendent for Respondent to superintendent
of his own company which had a contractual relation-
ship with Respondent i
Cooper testified that Eppley started stripping to open
up some coal for augering in the summer prior to August
but did not sign an agreement with Eppley until August
when the State Department of Environmental Regula-
tions insisted that some backfilling be started which re-
quired additional manpower
In October 1982, the Union again requested a meeting
to discuss the Company's operational status. The request
was based on information they had received that compa-
ny supervisory personnel were performing certain work.
A meeting was held October 19, 1982. In addition to
those present at the earlier meeting (except Gormish),
former employee John Skero also attended Cooper
1 Eppley's testimony concerning the work being performed and his
status during this period was, as characterized by the General Counsel,
confusing and inconsistent
claimed that the Company was still considering bank-
ruptcy but indicated that some augering of coal was
being performed Augering is a method of extracting
coal from the ground with the use of a drill and it is not
considered bargaining unit work by either the Union or
Respondent; however, stripping (unit work) is often nec-
essary in order to prepare for augering Cooper said they
were required to do substantial backfilling and reclama-
tion or face state fines and that the Company had used
Eppley, his son, and three other workers.
Cooper testified he told the Union about the subcon-
tracting in full detail; however, it is my observation that
he substantiaily avoided testifying as to what he sequen-
tially said at the meeting and merely stated his recollec-
tion of his reasoning and thoughts at that time. And,
after a description of his reasons for hiring a subcontrac-
tor, he then responded to his counsel's leading question,
"was the Union informed of this at the October '82 meet-
ing," with the bare answer "Yes they were."
Bruening testified that after Cooper admitted doing
some angering he also said some backfilling was being
done to comply with environmental regulations and that
some coal had been uncovered with the dragline. The
Union asked why they had not been called in and
Cooper responded to the effect that it was not much
work and would have interfered with employees unem-
ployment benefits After discussing benefits for some re-
tirees, Cooper said they would shortly be shutting down
for the winter and that if there were any changes he
would notify the Union about it. The Company also
asked the Union if it had any flexibility over terms other
than those in the national contract and the Union re-
sponded it would be willing to sit down and negotiate.
Bruening testified that to his knowledge he was aware of
one significantly different agreement previously negotiat-
ed in his District in 1981 or 1982, but that it was not
with either of the two coal stripping operators in his
area. At that time the Union otherwise did not submit
any proposal to Respondent different from the outstand-
ing national agreement, but it did offer an interim agree-
ment to work under the 1981 national package until an-
other agreement could be negotiated.
During the next several months the respective attor-
neys exchanged correspondence and the retirement bene-
fits matter was resolved- and acknowledged in a letter of
February 23, 1983.
During the summer of 1983, the Union again became
suspicious that the Company was again in operation and
in August, Bruening called Cooper who testified that he
then "explained in detail what we were doing on the job
site." By letter dated September 2, 1983, the union attor-
ney requested that Respondent meet with the Union,
stating that it had come to the Union's attention that Re-
spondent's operational status had changed since the pre-
vious October 1982 meeting and noting that Respondent
had indicated that a resumption of a coal-stripping oper-
ation would be brought to the Union's attention for pur-
poses of collective bargaining. A meeting was held Octo-
ber 6, 1983, and attended by most of the same people
who had attended the October 1982 meeting. The union
attorney explained that the Union had received reports
PENNSYLVANIA ENERGY CORP
that there was a lot of activity at the site. Cooper indi-
cated that the Company's financial condition continued
to deteriorate but that it was continuing to auger coal as
it did the previous summer When questioned about how
much coal had been shipped, Cooper replied approxi-
mately 6000 tons. A further question brought the admis-
sion that 3000 tons had been stripped and that additional
backfilling had been done to comply with state environ-
mental regulations When questioned about who was per-
forming this work, Cooper claimed that Eppley had
done some of the work himself and several people were
hired around the first of August. The Union questioned
whether work was being done that members should have
been recalled to perform. The next day, in response to a
union request, Cooper took Bruening and Skero on a
tour of the site. They observed that some 46 acres out of
124 acres involved had been subjected to backfilling and
reclamation work. Bruening also testified that backfilling
and rough grading was part of the bargaining unit work
previously performed by union members. Ten days after
the site inspection the instant unfair labor practice charge
was filed.
By letter of October 21, 1983, Respondent's counsel
notified the Union's counsel that the Company would
operate one piece of equipment to do backfilling for 4-6
weeks prior to shutting down for the winter. The
Union's attorney followed up a phone conversation on
October 26 with a request that the Company utilize the
most senior qualified employee on layoff status and fur-
ther requested a contract proposal, noting that the
Union's position remained as previously discussed. On
October 27 the Company's attorney offered a wage rate
of $9 an hour for the work involved. On November 28
the Union replied that it was unable to agree, noted that
it was unlikely an agreement could be reached before the
work contemplated was completed, and requested the
Union be notified well in advance of any resumption of
operations so that negotiation could occur.
By letter of February 29, 1984, the Company noted
that anticipated backfilling and stripping would begin in
3-7 weeks, that it would need three to six employees and
offered $9 an hour plus Blue Cross and Blue Shield bene-
fits
By letter of March 23, 1984, Respondent's counsel ad-
vised the Union's counsel that the union representative
failed to appear for a scheduled meeting on March 17.
Finally, by letter of April 12, 1984, Bruening made a
counterproposal to Cooper who replied that it was unac-
ceptable but offered to continue negotiations.
III DISCUSSION
The parties are in substantial agreement that the issues
involved here are- whether the unfair labor practice
charge was timely filed within the meaning of Section
10(b) of the National Labor Relations Act; whether the
Union waived any right to claim an interest in the work
being performed by Respondent; and whether Respond-
ent subcontracted bargaining unit work, including the
stripping of coal and backfilling of mined areas, without
affording the Union an opportunity to negotiate and bar-
gain about such subcontracting or the effect of such sub-
contracting on bargaining unit employees in violation of
1155
the Act. In connection with the latter issue the Respond-
ent contends that it was free to institute subcontracting
without further bargaining because of the Union's bad
faith and a resulting impasse in negotiations
A. Section 10(b)
Section 10(b) of the Act establishes a period of limita-
tions which bars the issuance of a complaint based on
any unfair labor practices occurring more than 6 months
prior to the filing of the charge. The statute of limita-
tions does not begin to run until the aggrieved party is
put on notice of the act constituting the unfair labor
practice, Burgess Construction, 227 NLRB 765, 766
(1977), such notice must be clear and unequivocal, and
the burden of showing such notice is on the party raising
the affirmative 10(b) defense Strick Corp., 241 NLRB
210 (1979).
Here, the record indicates that Superintendent Eppley
started performing unit work involving stripping and
backfilling in July, which operations were formalized in
a subcontracting agreement signed on August 5, 1982
However, Respondent did not notify the Union of either
of these events 2 To the contrary, at the meeting on July
20, it had emphasized that it was in such bad financial
condition that it was considering bankruptcy or selling
out. I do not credit Cooper's assertion that he mentioned
"consideration of subcontracting" as an option In this
connection I note that witnesses Vuchovich and especial-
ly Bruening directly and credibly testified that the possi-
bility of subcontracting was not mentioned . Cooper's
overall demeanor and manner of testifying was evasive
and indirect His answers were frequently merely affir-
mations of leading questions asked by Respondent's
counsel rather that the witnesses' own recollection of
past events and Cooper also continually amplified his
answer with self-serving statements that indicated his
state of mind or rationale for occurrences rather than
giving a description of what actually happened or was
said In substance, Cooper's testimony lapsed into a rhe-
torical description of background events rather than
being a direct answer responsive to the relevant inquiries
of what was said or what occurred at the meeting and I
therefore find such testimony lacking in relevant credibil-
ity.
Even at the October 1982 meeting the Union was led
to believe that Respondent's "superintendent" was doing
the work in question Here again Cooper's testimony that
he informed the Union about subcontracts was a bare
answer to a leading question and not in the form of any
sequential description of what was said at the meeting.
Cooper testified only as to his thoughts and reasons,
which lack probative bearing on the issue of whether
notice ' was given to the Union. Again, Respondent fur-
ther evasively explained that the work being done was
nonunit augering or otherwise minimal and about to' end
for the winter. The Union's mere knowledge that Eppley
was doing something at the mine cannot be used to
impute knoweldge of subcontracting of unit work and,
2 It is acknowledged that it was aware of the separate augering sub-
contract to perform nonumt work
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
standing alone, it is insufficient to meet Respondent's
burden of showing that the Union had clear and un-
equivocal notice that Respondent was engaging in the
practice, subject to the allegations herein
Respondent further concealed from the Union its oral
modification of the Eppley subcontract on January 1,
1983, to embrace stripping in addition to reclamation
work. It did not notify the Union in the spring of 1983
when'operations were resumed, despite its promise to do
so` and in official records, including state inspection re-
ports, it failed to reflect the fact that Eppley was work-
ing as a subcontractor. (Eppley signed inspections re-
ports as the company official contracted under Respond-
ent's name) Thus, the Union did not receive notice until
after receiving information in the summer of 1983, which
led to the subsequent disclosure of the Eppley subcon-
tracting arrangement. Under these circumstances, the
record fails to show that the Union had actual or con-
structive knowledge of the Eppley reclamation subcon-
tracting agreement until well after mid 1983 and, accord-
ingly, I conclude that Respondent has failed to show that
the Union acquired knowledge of the alleged unlawful
conduct at a time prior to the 6-month 10(b) period of
limitations.
B. Waiver
Once a union has adequate notice of a company's ac-
tivities, it is incumbent upon the union to act with due
diligence in requesting bargaining.
Here, the Union sought on June 4, 1982, to bargain
over layoffs made by Respondent during April 1982.
When a meeting was held, Respondent offered only the
prospect of bankruptcy or sale When the Union saw sus-
picious activities in August of 1982, it requested a meet-
ing and was then assured that Respondent's supervisor
was performing some minimal operations that were
mostly nonunit work that would shortly end. It also as-
sured the Union that it would notify the Union about
any changes. Similar suspicions arose in 1983 and again
the Union sought a meeting for purposes of negotiation.
Then, on hearing Respondent's explanation of its actions,
the Union filed the instant charge.
In order for the Board to find a waiver it is required
that the waiver must be clear and unmistakable Tocco
Division of Park-Ohio Industries, 257 NLRB 413, 414
(1981) Furthermore, there is a presumption that unions
have not abandoned rights guaranteed them in the Act,
A-1 Fire Protection, Inc., 250 NLRB 217, 219 (1980).
Here, the record merely shows that the Union was
given some after-the-fact information about work already
performed by Respondent during the summers of 1982
and 1983. Otherwise, the Union did not learn of Re-
spondent's use of a subcontractor to perform the relevent
reclamation and stripping work until after the charge
was filed.
Under these circumstances, I cannot find that the
Union has waived its right to bargain concerning subcon-
tracting, an activity of Respondent's of which the Union
had no knowledge. Otherwise, the Union repeatedly pur-
sued meetings with Respondent whenever it became
aware of suspicious activity at the mine site . These ac-
tions are consistent with attempts to preserve the rights
of laid-off employees and cannot be considered to be in-
dicative of any abandonment of those rights
C Bargaining over Subcontracting
First, I note my agreement with the General Counsel's
contention that Respondent's decision to subcontract bar-
gaining unit work in the instant case is a mandatory bar-
gaining subject under the current principle discussed by
the Board in Otis Elevator Co., 269 NLRB 891 (1984).
Respondent's president testified that "the reason we
didn't have union men up there was that we just could
not afford to remain in operation and pay those very
high pay rates and benefits " Thus, Respondent's decision
to subcontract in lieu of recalling laid-off workers was
based on labor costs. There was no change in the nature
and direction of the business as Respondent continued
operating its strip mine in the same manner as before,
with the same equipment and some of the same person-
nel. Moreover, Respondent's labor costs under the
Eppley subcontract are essentially cost-plus under which
Respondent furnishes and maintains all equipment in the
job and reimburses Eppley for all out-of-pocket costs.
The contract is on a month-to-month. basis and can be
terminated on 5 days' notice and thus the decision re-
garding subcontracted work was amenable to resolution
through the collective-bargaining process without signifi-
cant burden on Respondent, especially since its latest op-
erations have been highly seasonal with long periods of
apparent total shutdown.
Respondent makes no arguments relative to the Otis
Elevator decision; however, it otherwise contends that it
had no duty to negotiate because of the Union's bad faith
and resulting impasse in negotiations . Respondent's con-
tentions in this respect essentially are without factual
support on this record and rely merely on conjecture
and speculation In the meetings that did occur, the
Union was never presented with specific information re-
garding the subcontracting of stripping and backfilling
work. Accordingly, the Union could not reasonably be
expected to have offered concessions designed to re-
spond to the unknown, especially when Respondent oth-
erwise was consistently minimizing the amount and type
of work done, not operating or indicating that work
would be stopping, and indicating that it was drawing
close to bankruptcy The negotiations that the Union did
pursue under these circumstances were fully consistent
with a good-faith approach to the bargaining process.
Bargaining over the issue of subcontracting was never
reached and therefore no impasse was reached. More-
over, negotiation on the related but separate issues of
recall of laid-off workers and acceptance of a collective-
bargaining agreement continued until shortly before the
hearing, when on April 24, 1984, Respondent's president
Cooper wrote to Union Representative Bruening stating
that Respondent was "hopeful that the parties can reach
an agreement within the framework of our offer" and
that Respondent "will be glad to continue these negotia-
tions at the earliest possible time " Under these circum-
stances, it is apparent that prospects for reaching an
agreement had not been exhausted and that the indicia of
bargaining impasse otherwise are not shown to be
PENNSYLVANIA ENERGY CORP
present, see Taft Broadcasting Co., 163 NLRB 475, 478
(1967)
As discussed above, the parties had a series of contacts
during which the Respondent attempted to minimize or
explain away the extent and nature of the activities
taking place at its mine site subsequent to the layoff of
all bargaining unit employees At the most the Union
was informed that Superintendent Eppley was perform-
ing some work with some occasional assistance, howev-
er, Respondent significantly avoided revelation of the
fact that Eppley performed this work as a subcontractor
rather than as Respondent's superintendent. The deci-
sions to substitute a subcontractor for Respondent's own
laid-off employees to perform reclamation work during
1982 and additional bargaining unit stripping work in
1983 were ones about which Respondent was required to
bargain collectively. The mere meeting of the Respond-
ent with the union representatives was insufficient to sat-
isfy this obligation inasmuch as discussion of the subject
of subcontracting was avoided by Respondent and it was
not approached with the requisite "open and fair mind,"
required for a display of "serious intent to adjust differ-
ences and to reach an acceptable common ground," see
Central Virginia Electric Cooperative, 254 NLRB 417
(1981), and cases cited therein at page 426. Under these
circumstances, Respondent's conduct deprived the Union
of an opportunity to bargain about the decision to sub-
contract the work or the effects of such a decision on
bargaining unit employees. Respondent's concealment
from the Union of the nature and extent of its subcon-
tracting arrangement also is indicative of a lack of good-
faith bargaining and I conclude that such conduct is
clearly violative of Section 8(a)(1) and (5) of the Act, as
alleged
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
3. The unfair labor practices found below are not
barred by the limitations of Section 10(b) of the Act.
4. The Union did not waive its right to bargain over
the issue of subcontracting
5. By bargaining in bad faith in collective negotiations
with the Union, and by refusing to bargain about subcon-
tracting decisions, Respondent has violated Section
8(a)(5) and (1) of the Act
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , it will be recommended that it be
ordered to cease and desist therefrom and that it take
certain affirmative action to effectuate the policies of the
Act.
Respondent having unlawfully failed to bargain with
the Union over the deliberate shifting of work from laid-
off union employees to a subcontractor on August 5,
1982, it shall be ordered to bargain collectively with re-
spect to wages, hours and other terms and conditions of
1157
employment, including the decision to subcontract bar-
gaining unit work and, failing to reach agreement, to
bargain collectively about the effects of subcontracting.
It shall be further ordered to recall from layoff those em-
ployees who would have been recalled absent Respond-
ent's unlawful conduct and make them whole for any
loss of earnings and other benefits, computed on a quar-
terly basis from August 5. 1982, the time Respondent
began its unlawful conduct, see Burgess Construction, 227
NLRB at 766 as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in Florida
Steel Corp., 231 NLRB 651 (1977). Because of the serious
nature of the violations, I find it necessary to, issue a
broad order, requiring the Respondent to cease and
desist from infringing in any other manner the rights
guaranteed employees by Section 7 of the Act. Hickmott
Foods, 242 NLRB 1357 (1979)
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed3
ORDER
The Respondent, Pennsylvania Energy Corporation,
Johnstown, Pennsylvania, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
United Mine Workers of America and its District 2 and
Local 1040 with respect to decisions to subcontract work
or related mandatory subjects of bargaining.
(b) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action in order to ef-
fectuate the policies of the Act.
(a) When stripping and backfilling type work is rein-
stated, offer to recall from layoff those former employees
required to perform the work.
(b) Make those employees who would have been re-
called from layoff absent Respondent's unlawful 'conduct
whole for any loss suffered by them, in the manner set
forth in the section above entitled "Remedy."
(c) Bargain collectively, on request, with the Union as
the exclusive bargaining representative of Respondent's
employees in the appropriate unit with respect to sub-
contracting decisions and related mandatory subjects'of
bargaining.
(d) Preserve and, on request, make available to the
Board or its agents :or examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its Horse Hill mine location, Lower Yoder
Township, Cambria County, Pennsylvania, and mail to
all employees who were within the bargaining unit
3 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during 1982, copies of the attached notice marked "Ap-
pendix."' Copies of the notice, on forms provided by the
Regional Director for Region 5, after being signed by
the Respondent 's authorized representative , shall be
posted by the Respondent immediately on receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced , or covered by any other material
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
4 If this Order is enforced by a Judgment of a United States Court of
Appeals , the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice
WE WILL NOT fail or refuse to bargain in good faith
with United Mine Workers of America and its District 2
and Local 1040 over decisions to subcontract work or
related mandatory subjects of bargaining.
WE WILL NOT in any other manner interfere with, re-
strain , or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer recall from layoff to former employees
when stripping and backfilling work is reinstated and WE
WILL make whole those employees who suffered loss of
pay or other benefits as a result of our subcontracting
those operations without appropriate bargaining.
PENNSYLVANIA ENERGY CORPORATION