Pittsburgh Coal Works

National Labor Relations Board - Board Decisions

Feb 14, 1985

274 N.L.R.B. 54 (N.L.R.B. 1985)

54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pittsburgh Coal Works and United Mine Workers of DECISION
America, District 31. Case 6-CA-17155
14 February 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 11 September 1984 Administrative Law
Judge Marion C. Ladwig issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief.I
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,2 and
conclusions3 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, Pittsburgh
Coal Works, Monongah, West Virginia, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge. This
case was tried at Fairmont, West Virginia, June 6, 1984.
The charge was filed by the Union February 29, 1984,1
and the complaint was issued April 2 and amended at the
trial.
In June the Union lost a second election at the Com-
pany's mine by a tie vote. About the end of 1983, five of
the mine employees became outstanding union supporters
in a renewed organizational effort Two months later, all
five of them were laid off and not recalled. The primary
issues are whether the Company, the Respondent, (a)
threatened employees with discharge for supporting the
Union and (b) discriminatorily laid off the five union or-
ganizers, in violation of Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act.
On the entire record,' including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel and the Company, I
make the following
FINDINGS OF FACT
1. JURISDICTION
The Company, a West Virginia corporation, mines
coal near Monongah, West Virginia, where 'it annually
ships coal valued over $50,000 directly outside the State.
The Company admits and I find that it is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor
organization, within the meaning of Section 2(5) of the
Act.
II ALLEGED UNFAIR LABOR PRACTICES
The Respondent has requested oral argument, and the General Coun-
sel opposes the request This request is denied as the record, exceptions,
and brief adequately present the issues and the positions of the parties
The Respondent has also requested the Board to reopen the record and
the General Counsel has filed an opposition thereto The Respondent as-
serts as newly discovered evidence a posthearing civil action filed in
West Virginia state court by the five laid-off employees The suit alleges
wrongful discharge based on a contract or implied contract theory and
alleges retaliatory discharges because the employees reported safety vio-
lations to state and Federal agencies The Respondent asserts that filing
the state court action impinges on the credibility of the laid-off employ-
ees The Respondent's request to reopen the record is denied The civil
suit filed by the discrimmatees is not inconsistent with this proceeding
and it does not affect the credibility findings because the motion is lack-
ing in merit as the statements in the civil complaint by the employees in
asserting that they were discharged because they made safety complaints
to state and Federal agencies are conclusionary and self-serving for pur-
poses of seeking an award in the state court proceeding See, e g , Capital
Parcel Delivery Co, 269 NLRB 52 (1984)
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
3 We do not rely on the judge's statement that the layoffs prevented a
planned third election as the record does not establish that a third elec-
tion was in fact planned
A. Circumstances of the Layoffs
Until 1980 Perry Williams (now 74 years of age) was
part owner and superintendent of a union mine. After the
mine was sold he, as president of the Company, leased a
previously mined deep coal mine and began a nonunion
operation , removing unmined coal
The Company operated three shifts to produce 5000
tons of low -sulfur coal each month under contract with a
power plant. Any high -sulfur coal that was produced
was sold with difficulty through the Company 's broker,
West Virginia Coals, which advanced money for the
Company's operations . If the 5000 tons of low-sulfur coal
was produced before the end of the month , the practice
was to close the mine, temporarily laying off all the em-
ployees (Tr. 231)
The mining proved unprofitable while the coal was
being mined in previously tunneled areas of the mine.
There was much nonproductive "dead time ," largely ne-
i All dates are from June 1983 until May 1984 unless otherwise indicat-
ed
2 The General Counsel's unopposed motion to correct the transcript,
dated July 31, 1984, is granted (except "December the 5th" is changed to
the correct date "November the 28th") and received in evidence as'G C
Exh 4
274 NLRB No. 11
PITTSBURGH COAL WORKS
cessitated by frequent belt movements (extending the
conveyor belts across the old tunnels to transport the
coal to the surface).
In February, however, the Company reached a solid
block of coal, estimated to be 8 feet high and covering
about 4 acres. Mining in this area would permit mining
for longer than a month without a belt movement instead
of every 8 or 10 days as before and enabled the Compa-
ny to save on labor costs by eliminating the third shift
(the nonproductive dead-work and maintenance shift).
On February 20 the Company eliminated the four-man
third shift. But instead of laying off all four of the junior
employees, it laid off only two of them, recalled one of
the two the next workday to the second shift, and trans-
ferred the other two (the least senior employees in the
mine) to the first shift, expanding it from 9 to 11 employ-
ees.
Then on February 24 the Company took actions that
the General Counsel alleges were discriminatorily moti-
vated. Although the Company had always before re-
tained all the production employees (and closed the mine
temporarily if the production goal was reached ahead of
schedule), this time it laid off six senior production work-
ers from the first and second shifts. One of the six was an
antiunion employee whom the Company recalled the fol-
lowing week despite his drinking problem. The other
five were John Anderson, Williams Evans, Ronald Hill-
ing, William Franklin "Frank" Kyer, and James Puccio,
the alleged discriminatees who were the outspoken union
supporters. The Company has not recalled any of them.
Thus there was a net layoff of only two employees
from the productive shifts. Although six senior employ-
ees were laid off February 24 from the first and second
shifts, the antiunion senior employee was recalled, one
junior third-shift employee was recalled, and two of the
third-shift employees (with the least seniority) were re-
tained,
The result was that all the known antiunion employees
were retained and all five of the most active union orga-
nizers were eliminated about 3-1/2 months before a third
election could be held.
The Company contends in its brief that none of the
evidence shows that Williams or any of the supervisors
opposed the election of the Union, that the General
Counsel has failed to prove any intent to discriminate,
and that the layoffs were based solely on economic
grounds.
B Earlier Threats of Mine Closure
There had been two earlier organizing campaigns at
the mine. The vote in the first election, held April 23,
1982, was 10 to 3 against union representation. After that
election was set aside (following the filing of union ob-
jections), the vote in the second election on June 3, 1983,
was a 10-to-10 tie.
In both of the earlier campaigns, the employees openly
discussed their views of the Union in the presence of
their supervisors. As background evidence, the General
Counsel introduced testimony of the Company's antiun-
ion response, describing it in his brief as "two years'
worth of unlawful statements which the statute of limita-
tions protects from prosecution" but which "add depth
55
and meaning to the unfair labor practices alleged to have
been committed within the 10(b) period."
As miner operator James Puccio credibly testified,
Mine Foreman Bernard King Sr told Puccio before the
1982 election that Assistant Superintendent Mike Khalil
had informed King "that if the Union won an election
that Perry Williams would shut the mine down" (Tr.
156). (Neither King nor Khalil testified.)
During this 1982 union campaign, roof bolter Kyer
was "dead set" against the Union and talked with Presi-
dent Perry Williams about the election once or twice a
week before the start of the shift As Kyer credibly testi-
fied, he informed Williams that Puccio and others were
trying to get him to sign a union card but that he was
not going to (Tr. 93). When Williams "said that he did
not understand why the men wanted or needed a union,"
Kyer "told him that one of the biggest points that they
were voting for the union . . was simply because we
did not have those nine floating and sick days. That was
the sore point with the men." (Tr. 56.) Williams had
been informing employees when hiring them that he
would follow the Mine Workers contract with BCOA
(Bituminous Coal Operators' Association) for wages and
benefits, except for nine sick and floating days, paid
birthday, clothing allowance, and retirement (Tr 52, 124,
152, 192). After talking with Kyer, Williams granted the
employees this additional benefit, giving the employees
these 9 "personal days" under the BCOA agreement-
but later changed his mind, as discussed later, sparking
the third organizational drive that was in progress at the
time of the layoffs.
By the time of the June 9, 1983 election, employee
Kyer had become a strong union supporter and was ac-
tively campaigning for the Union. On May 25, 1983, he
began keeping notes of management conduct that he
considered illegal . Although he answered on cross-exam-
ination that he had the notes at the trial, the Company
did not ask to see them (Tr 97). (By his demeanor on
the stand, Kyer impressed me most favorably as an
honest, forthright witness.)
On that May 25, as Kyer credibly testified, his helper
Joseph Amalett (who was "very vocal in his opposition"
to the Union) was present when Second Shift Foreman
Robert Darnell Sr. told Kyer that if the mine employees
voted for the Union , "Perry would shut it down" (Tr.
60-61) Again on June 6 and twice on June 8, Darnell
repeated to Kyer and Amalett that if the mine votes for
the Union, "Perry will shut it down." Darnell stated that
Perry Williams would either open a new portal at
Helen 's Run under a new name or open Williams' mine
under a new company. (Tr. 62.) Although employee
John Anderson could not remember the exact dates, he
credibly testified that Darnell repeatedly stated that the
mine would not operate as a union mine and that "they'd
either put in another portal at Helen's Run or move over
and open up a mine at the old Williams' mine" (Tr 128-
129).
On June 9, after the election, Foreman Darnell went
to the bolt machine and told Kyer and Amalett that it
was a tie vote, 10 to 10; that "you're lucky that it tied,
or we would all be looking for a job"; that "Perry would
56
have shut the mine down"; and that Mine Foreman Ber-
nard King Sr. "was outside and had orders to shut it
down now" (Tr. 62). When employee Anderson asked
Darnell the results of the election, Darnell said it was a
10-to-10 tie vote, that it probably was a good thing that
the Union lost because "the place would not have oper-
ated as a union mine ," and that Mine Foreman "King
was outside with instructions to pull us out and shut the
mine down at that time" (Tr. 129). Several days later, as
employee Evans credibly testified, King himself told the
crew on the first shift that "we had better thank the guys
who voted against the union for our jobs" (Tr. 195).
On June 13 Foreman Darnell revealed to Kyer that
the Company had compiled lists of suspected union sup-
porters. As Kyer credibly testified, Darnell said , "I made
a list , Bernard made a list , Perry made a list of all the
people they thought voted for and against the union.
And Perry had those lists." (Tr. 63.) When Darnell men-
tioned such a list to employee Anderson, Anderson "told
him I didn't care because Mr. Williams already knew I
supported the union" (Tr. 132).
On August 17 President Perry Williams himself con-
firmed the closure threat. As Kyer was leaving the lamp
house to go to work, he fell in step with Williams be-
tween the main office building and the shop. Kyer credi-
bly testified that he told Williams something to the effect
that "You know the union will be back next year" and
Williams responded, "If they think I won't shut this mine
down, they're crazy." (Tr. 64.) The denials and credibil-
ity of President Williams and Foreman Darnell are dis-
cussed later.
Meanwhile employee Puccio, who was the union ob-
server at both the elections, was being cautioned about
his union activity. Assistant Superintendent Khalil en-
tered the mine shortly after the election and told Puccio,
"You better not make any mistakes because Perry's just
waiting for a chance to fire you" because of all the trou-
ble he had caused by "participating in the first NLRB
case to overturn the election and have another one." (Tr.
158.)
I have considered these closure threats and other state-
ments as shedding light "on the true character of matters
occurring within the Section 10(b) limitations period."
Machinists Lodge 1424 (Bryan Mfg.) v. NLRB, 362 U.S.
411, 416 (1960).
C. Alleged Threats of Discharge
1. Renewed organizational campaign
After employee Kyer indicated to President Perry
Williams his continued interest in the Union (telling Wil-
liams August 17, "You know the union will be back next
year," as quoted above), union talk at the mine died
down for several months. But when Williams began re-
stricting the use of the employees' "personal days" (in-
forming employee Kyer that he could no longer use
them for a scheduled vacation), and withdrew some of
the sick and floating holiday benefits, the union organiz-
ing resumed.
Kyer had worked through the normal vacation period
in late June and early July, and had received the vaca-
tion pay as provided in the BCOA agreement. On July
11 he scheduled the second week of deer season (No-
vember 28 through December 2) for his vacation by list-
ing the floating days he wanted off, as he had done the
year before. He submitted the list to President Williams'
secretary, Martha Boring, who said, "I will see that
Perry gets this." (The year before, when Kyer was op-
posing the Union, his oral request was granted.) (Tr. 64-
65, 67.)
On the first day of his vacation, November 28, Kyer
was hunting when Williams' secretary called Kyer's wife
and said that "if Frank wants his job, he must come back
to work or he'll be fired." Kyer called Williams at home
that evening and asked him what was the problem. Wil-
liams said , "If you don't want to work, I will get some-
one that does." Kyer protested that he was on scheduled
vacation, but Williams said he had not approved it. Kyer
said he turned it in in July and asked why Williams did
not let him know. Williams responded, "Well, I never
get to see you because we're on different shifts." Kyer
asked why Williams had not written him a note and Wil-
liams said, "Well, be that as it may, if you want to work
you be there tomorrow." (Tr. 65-66.)
In this November 28 conversation, President Williams
also said that Kyer could not have his vacation if it ham-
pered production. But when Kyer returned and worked
the rest of the week, "we did dead work, no production
whatsoever." As a result of this new restriction on using
these personal days, Kyer missed his 1983 vacation. He
was paid for the unused sick and floating days as provid-
ed in the BCOA agreement . (Tr. 66.)
This incident sparked renewed discussion of the
Union, and when Williams on December 31 reduced the
number of floating and sick days from nine to three, the
new organizational drive was on. Employees Puccio and
Evans on the first shift and employees Kyer, Anderson,
and Hilling on the second shift were the "outspoken
union supporters." (Tr. 67-68, 131, 159.)
2. Williams' "getting ready" for the Union
It was in the context of this renewed organizational
drive that, as roof bolter Kyer credibly testified, Second-
Shift Foreman Darnell made statements that not only
threatened the discharge of employees because of their
union support but also went further. The statements re-
vealed that the Company was already planning the Feb-
ruary 24 layoff of union supporters before it eliminated
the night shift February 20 and that President Williams
was using the layoff as a method of "getting ready" for
the Union in any new election. Evidently Foreman Dar-
nell did not realize, when talking about the Company's
plans, that Kyer was making notes each night after work
of what Darnell was saying (Tr. 120-121).
On February 17, the Friday before the Company dis-
continued the third shift, Foreman Darnell told Kyer
that the second shift was going to be laid off completely
except for a maintenance shift and that his sons James
and Robert ("Butch"), both with mechanical skills,
57
would be retained. On February 20 Darnell told Kyer,
"Perry thinks that you are for the union and your name
is going to be included in the layoff" (Tr. 70-71).
On February 22, in the presence of his helper Joseph
Amalett, Kyer told Darnell , "You know that the union is
coming back ." Darnell stated , "Yes. Perry knows the
union 's coming back and he 's getting ready for it," ex-
plaining that "Perry felt the men were working steady
and were getting fat" and if they "were to get hungry
they 'd be more likely to vote against the union." Darnell
stated that "the union men" would be laid off. Kyer
asked , "How do you know who you 're going to lay
off?" and Darnell answered , "Well, Perry still has the list
from the last time" (referring to the list prepared after
the second election of suspected union supporters). (Tr.
72-73.) Amalett did not testify.
About 4:30 or 5 p . m. on February 24, the day of the
layoff, Foreman Darnell revealed that his statements
about laying off union supporters were actually threats
of discharge because the layoffs would be permanent,
except possibly Kyer 's layoff. Darnell drew Kyer aside
and told him "today is going to be the day ." He said that
shuttle car operator Mark Varca (an antiunion employee)
was getting laid off because "I've turned him in three
times for drinking myself and [highlift operator-outside
man James] Cowan turned him in once for drinking
along the road ." He said "the other guys are going to be
laid off because they're union men and they 're not going
to be hired back ," and added that "Mark probably
wouldn 't be hired back ." Then Darnell told Kyer, "You
may be hired back if you keep your cool and don't blow
up and go talk to Perry . . . . as long as you don't run
your mouth about your sick days and your vacation and
the union . . . . Because I told Perry that although Joe
Amalett was a good man , you could bolt four places
while he bolted one." (Tr . 74-75.)
3. The Company's defenses ; credibility
In its defense, the Company called two witnesses,
President Williams and Foreman Darnell, who gave vir-
tually complete denials of much of the credited testimo-
ny. In fact , Williams even denied discussing his testimo-
ny with his own attorney. On cross-examination he testi-
fied (Tr. 232)
Q. Mr. Williams, did you look at anything in
preparation for your testimony here today?
A. No, ma'am.
Q. Did you discuss your testimony with any-
body?
A. No, ma'am.
Q. Not with anybody?
A. Nobody.
Q. Did you discuss it with your attorney?
A. We never went over anything.
Williams denied that there was any problem with
Kyer 's vacation (Tr. 213). He denied that any supervisor
told him that Varca had a drinking problem and denied
knowing if Varca had that problem , although he admit-
ted hearing about it from one of the men (Tr. 222-223).
He denied having any input from any supervisor about
whom to lay off (Tr. 22) and denied discussing the im-
pending layoff at all with his supervisors (Tr. 228). He
denied ever speaking to any employee about the BCOA
agreement (Tr. 37-38). Before revealing that he had been
a part owner and superintendent of a union coal mining
company until 1980, working under the BCOA agree-
ment and serving as a company representative on the
mine committee handling grievances (Tr. 39-41), he
denied ever telling employees when hiring them that he
followed the BCOA agreement except for clothing al-
lowance, paid birthdays, and sick or floating days, claim-
ing he had never seen or read the agreement (Tr. 33-34).
When asked if he had a blacklist he denied ever seeing
"that list," then denied knowing if there is such a list in
existence and denied ever asking his supervisors to make
a list of those they thought voted for the Union (Tr.
210). He denied making the statement to any supervisor
about workers being fat and getting hungry (Tr. 209-
210).
Concerning the February 24 layoffs, Foreman Darnell
denied that until quitting time that evening when he
opened an envelope from President Williams containing
the names, he had any idea who were being laid off; "I
didn't even know whether my name was in there or not"
(Tr. 246). He denied telling any employee that Williams
had said something about some of them getting fat and
about going hungry for a while (Tr. 243). He denied pre-
paring a list of employees thought to have supported the
Union, claiming "I have no way of knowing" (Tr. 245),
although he later admitted that the men never hid how
they felt about the Union (Tr. 262). He denied knowing
that Varca was laid off because of a drinking problem,
claiming "This layoff was never discussed with me" (Tr.
259).
Concerning the 1983 election, Foreman Darnell denied
telling any employee that if the mine went union, Presi-
dent Williams was going to shut it down, or that a new
portal would open on Helen's Run, claiming that he in-
stead said that "If this place ever goes union and the man
can't make it, he will have to shut it down" (Tr. 243-
244). He denied telling any employee that if the mine
went union the operation would move to the Williams
mine and reopen, claiming he had heard the Williams
mine would never open (Tr. 246-247). He denied remem-
bering if he stated it was lucky that the election ended in
a tie "or we'd all be out of a job" (Tr. 245), and denied
telling any employee that Mine Foreman King had in-
structions to shut the mine down if the Union won an
election (Tr. 247). He also denied telling any employee
they should thank the men who voted against the Union
because it saved their jobs (Tr. 247).
By their demeanor when testifying, both President
Williams and Foreman Darnell appeared willing to give
whatever testimony would help the Company's cause. I
discredit the denials as fabrications.
58
4. Finding of threats
On the credited evidence that Foreman Darnell in-
formed roof bolter Kyer February 20, 22, and 24 that he
and other employees were being laid off because of their
union support and that Darnell further informed him that
all the layoffs except possibly Kyer's were permanent, I
find that the Company through this admitted supervisor
unlawfully threatened to discharge the employees be-
cause of their protected concerted activity in violation of
Section 8(a)(1) of the Act.
D. Alleged Discriminatory Layoffs
1. Staffing of mine before layoffs
Before the February layoffs, there were 9 persons in
the salaried and supervising staff, 1 office secretary, and
22 mine employees. The salaried staff were President
Perry Williams and his son Evan, James Boring, Joseph
Boring, Robert Boring, Robert Darnell Sr., Mike Khalil,
Bernard King Sr., and Danny Wood . Williams' secretary
was Martha Boring (who was not related to the other
Borings). Joseph Boring was the assistant superintendent,
Khalil was the head electrician , and the foremen of the
three shifts were King, Darnell , and James Boring.
There were nine employees each on the productive
first and second shifts and four employees on the dead-
work and maintenance third shift . They are listed below
by their clock number (Tr. 192), showing their seniority
at the mine in the order they were hired (except James
Darnell , whose clock number is not disclosed in the
record). The initials "EMT" indicate the emergency
medical technician on the shift , "E" indicates that the
employee has the essential skill of electrician , and "Rel"
indicates that the employee is related in some way to
President Williams, Assistant Superintendent Boring,
Foreman Darnell , or Foreman King. The names of the
laid-off employees are in all capitals, and the names of
the five alleged discriminatees are also italicized.
FIRST SHIFT SECOND SHIFT THIRD SHIFT LAID OFF
6 Steve Harrison (Rel) EMT
7 James Cowan
8 Kevin Wood
9 JAMES PUCCIO Feb 24
10 WILLIAM EVANS Feb 24
12 David Wright E
13 J R King Jr (Rel)
14 Joseph Amalett
15 Joseph McDonald
16 MARK VARCA Feb 24
17 FRANK KYER Feb 24
18 JOHN ANDERSON EMT Feb 24
19 RONALD HILLING EMT Feb. 24
20 Dale Eagle E
23 THOMAS GREYNOLDS Feb. 20
24 Mike Waggy (Rel)
James Darnell (Rel)
26 Robert Darnell (Rel)
27 Robert Menear
28 ALAN BORING (Rel) EMT Feb 20
31 Allen Lee
33 Paul Van Meter
2. Elimination of third shift
It is undisputed that the Company's remining operation
was unsuccessful until the large solid block of coal was
reached in February. The Company was indebted to its
broker, West Virginia Coals, for about $200,000 in
unpaid advances (Tr. 26). When this large area of coal
was reached, the Company decided that it would be able
to save on labor costs by eliminating the entire third
shift. There would be much fewer belt movements and
therefore less dead work to be performed on the night
shift.
No one has questioned the necessity of ending the
third shift. There is a question, however, why the Com-
pany retained junior employees from this unneeded shift
and transferred them to another shift, and then 4 days
later laid off senior employees from the other shifts.
Relying on President Williams' inaccurate testimony
(Tr. 29), the Company contends in its brief that it "laid
off the entire third shift," but this is not true. On Febru-
ary 20 the Company laid off employees Thomas Greyn-
olds and Alan Boring, but it transferred employees Allen
Lee and Paul Van Meter to the first shift (Tr. 76, 83,
239).
These two transferred employees, Lee and Van Meter,
had the lowest seniority in the mine. Alan Boring had
the next lowest seniority. He was laid off even though he
is the son of Assistant Superintendent Joseph Boring. He
had a high accident rate (Tr. 260) and missed over 50
workdays in 1983 (Tr. 122). The other third-shift em-
ployee laid off, Greynolds, had the next lowest seniority
except for relatives on the second shift and one employ-
ee, Robert Menear, on the first shift. (Although Menear
59
had earlier solicited for the Union, he was not one of the
outstanding union supporters. The Company's claim in
its brief that employee William Evans characterized
Menear as an "avid union supporter" is apparently based
on the first word of Evans' answer to the question, "You
say Bob Menear was an avid union supporter on the
second go round when the election came up?" The
answer was "Yeah, he talked like he might be for the
union." (Tr. 200.))
Thus the Company eliminated the third shift, but it re-
tained and transferred the two least senior employees in
the mine. Having inaccurately contended in its brief that
it "laid off the entire third shift," the Company offers no
explanation why it retained its two newest employees in-
stead of simply laying off the entire low-seniority crew
on the unneeded shift.
It is of course true that the Company was not bound
by the seniority provisions in the BCOA agreement, re-
quiring employers to recognize seniority if the employees
are qualified. The Company's contention is not true,
however, that "There has never been a seniority system,
express or implied" at the mine. President Williams had
worked under the BCOA agreement many years, he had
orally agreed to follow the wages and certain other ben-
efits in the agreement, and the Company followed a
practice of posting a bid sheet for employees to bid on
jobs (Tr. 53, 101, 137, 152). The seniority list (the clock
numbers in the order the employees were hired) is
posted both in the office window and in the lamp house
where the miners pick up their lights (Tr. 192-193). Em-
ployee John Anderson bid on the job of shuttle car oper-
ator and about a year later, on a job of miner operator
helper, and he was granted each of the jobs on the basis
of his seniority. Employees Kevin Wood and Dale Eagle
bid on the roof bolter helper job, and the job was award-
ed to Wood because he was the senior quality bidder. (I
discredit Williams' claim that "Not that I know of' does
the Company have any seniority policy (Tr. 27), and that
"I don't think we ever did I don't remember of it" when
asked if employees are permitted to bid on jobs (Tr. 34).)
Because of the Company's practice of temporarily clos-
ing down the mine from time to time, retaining all the
employees, the question of recognizing seniority in a par-
tial layoff had never arisen.
The question is not whether the Company had the
right to ignore seniority in layoffs, although it recog-
nized seniority in job bidding. It was not bound by the
BCOA agreement and it clearly had the right to ignore
the seniority provisions in that agreement. The question
instead is whether it decided to retain its newest employ-
ees from the third shift as part of a maneuver to discrimi-
nate against union supporters when it laid off senior em-
ployees 4 days later.
3. Layoff of senior employees
a. Temporary closing of second-shift production
Before the February 24 layoff of six senior employees,
the Company had operated both the first and second
shifts (each with a nine-man crew) to produce the 5000
tons of low-sulfur coal for the power plant. Normally
production on the second shift was as much as 20 to 25
percent higher than on the first shift (Tr. 55) because
Second-Shift Foreman Darnell "would produce coal at
all costs," leaving more of the dead work for the night
and morning shifts to perform (Tr. 174). (Although Dar-
nell denied telling the second-shift employees to leave
the dead work and get the production done first (Tr.
250), he finally admitted that he preferred to have them
mine coal than to do dead work (Tr. 252).)
As discussed above, on February 17 Foreman Darnell
revealed to roof bolter Kyer that the second shift was
going to be laid off completely except for a maintenance
shift. On February 24 Darnell revealed that the Compa-
ny intended to resume second-shift production by in-
forming Kyer, "You may be hired back . . . . as long as
you don't run your mouth about . . . the union" because
Darnell had informed President Williams that Kyer
"could bolt four places" while Amalett (the antiunion
roof bolter helper who was not being laid off) "bolted
one 11
The temporary closing of the second-shift production
did occur. At quitting time on February 24 the Company
laid off four second-shift employees (antiunion employee
Mark Varca and outstanding union supporters Kyer,
John Anderson, and Ronald Hilling) and transferred one
employee (Joseph McDonald) to the first shift, retaining
only outside man James Cowan, antiunion employee
Amalett, and James and Robert Darnell (Foreman Dar-
nell's sons) on the second shift. The only employees laid
off from the first shift were the two outstanding union
supporters, miner operator James Puccio (the union ob-
server at both elections) and William Evans, his helper.
When President Williams gave Puccio his layoff slip at
quitting time, as Puccio credibly testified, "I asked Mr.
Williams why I was being laid off and persons with less
seniority were not. His reply was that they had to cut
back and that was the way it was supposed to be." (Tr.
170-171.)
The next week the Company recalled two employees,
enabling it to resume some production on the second
shift. It first recalled an emergency medical technician,
who must be present on each shift. It had laid off the
only EMT on the second shift, shuttle car operator Hill-
ing. But instead of recalling union supporter Hilling to
have both an EMT and a shuttle car operator on duty
for resuming production, and instead of recalling union
supporter Kyer, who was not only its highest producing
roof bolter but also a versatile employee on other jobs in
the mine (Tr. 81), it recalled two others. One was shuttle
car operator Mark Varca, the antiunion employee with
the drinking problem. (As discussed above, Darnell told
Kyer before the February 24 layoff that Varca was being
laid off because "I've turned him in three times for
drinking myself' and that "Mark probably wouldn't be
hired back.") The other one recalled was the junior em-
ployee Alan Boring, the third-shift general inside laborer
and roof bolter (Tr. 81) who had been laid off February
20 from the third shift after he had missed over 50 work-
days the year before. Production of coal was resumed on
the second shift when needed (Tr. 231).
60
Thus, when temporarily closing down production on
the second shift, the Company eliminated all five of the
outstanding union supporters from the mine . It retained
three of the four junior employees on the unneeded third
shift (transferring the two newest employees to the first
shift and recalling the next junior employee to the
second shift) and recalled the one laid -off antiunion em-
ployee despite his drinking problem.
b. Neither seniority nor ability followed
Miner operator Puccio and miner operator helper
Evans were fourth and fifth on the posted seniority list.
Both were laid off from the first shift despite their high
seniority and their wide expenence in performing other
jobs in the mine (Tr. 189, 193-194).
The other three laid-off union supporters, Kyer, An-
derson , and Hilling, were 11th through 13th on the se-
niority list, with higher seniority than eight or nine other
employees (depending on when James Darnell was
hired). One of these junior employees, Greynolds, was
laid off February 20 and was not recalled. Dale Eagle
had an essential skill of electrician , and Mike Waggy and
Robert Darnell , as well as James Darnell , were relatives.
The remaining four were the least senior employees in
the mine, Robert Menear and the three employees from
the discontinued third shift, Alan Boring, Allen Lee, and
Paul Van Meter. All four were retained, despite the
higher seniority of Kyer and Anderson, who had wide
experience in performing other jobs in the mine (Tr. 81,
125), and Hilling, who was both an EMT and a shuttle
car operator, a required job when production was re-
sumed on the second shift.
It is therefore clear that although the Company fol-
lowed the seniority provisions in the BCOA agreement
for job bidding, it did not follow seniority February 24
when it laid off the five leading union organizers. The
evidence is also clear that even if seniority had been
completely ignored, at least three of the five union sup-
porters, Kyer, Hilling, and Puccio, would have been re-
tained.
It is undisputed, as Kyer credibly testified, that Fore-
man Darnell told him that he was "the best bolt man"
Darnell ever had (Tr. 82). And as found above, Darnell
revealed to Kyer on the day of the layoffs that Darnell
had advised President Williams that Kyer could operate
the roof bolter four times as fast as the more senior (an-
tiunion) employee Joseph Amalett, whom the Company
was retaining to do the bolting. I find that if the Compa-
ny had been primarily concerned with higher produc-
tion, it would have retained Kyer because of his greater
ability
Shuttle car operator Hilling was the only EMT on the
second shift, and a shuttle car operator was required for
second-shift production. Yet the Company on February
24 laid off both Hilling and the antiunion employee
Varca, the more senior shuttle car operator who was not
an EMT, and recalled Varca the next week despite this
drinking problem.
The third employee who was laid off despite his supe-
rior ability was first-shift miner operator Puccio. He was
not only one of the five outstanding union supporters at
the time of the layoffs, but he had been the union observ-
er at both the elections. It is undisputed that after the
second election , Assistant Superintendent (now Head
Electrician) Khalil warned him that he had better not
make any mistakes as President Williams was "just wait-
ing for a chance to fire you" because of Puccio 's role in
having the first election set aside and a second election
held, as discussed above.
Puccio was one of the most experienced employees on
the job. Since his employment in February 1981, soon
after the mine opened , he had worked on every job
(except certified electrician ) at the mine site , including
the jobs of roof bolter , outside man , shuttle car operator,
beltman , mechanic , and welder (Tr. 152, 189). He was
the regular operator of the continuous mining machine
on the first shift , and President Williams at one point
conceded having no problems with him "insofar as the
way he ran a shift, or did his job" (Tr. 217), with one
purported exception discussed later. As Puccio credibly
testified , he had never received any warnings about his
work, or about his attitude or attendance , or concerning
any other aspect of his employment (Tr. 154 - 155, 173,
182).
Yet, President Williams summarily laid Puccio off
without explanation. Williams replaced him with former
miner operator McDonald , who had previously worked
for Williams in a union mine , for a total of about 14
years . Although McDonald had remarked that he
wanted to see the Union come back because he had
about 4 years to go for retirement, he was not an active
union organizer . (Tr. 58-59.)
McDonald had been ill and absent from work. Since
his return to the second shift , he had been working as a
miner operator helper , although still rated as an operator.
(Tr. 58, 221-222.) Foreman Darnell admitted at one
point that McDonald "very seldom" ran the miner (Tr.
255). After giving this positive , unequivocal testimony,
Darnell appeared eager to change his testimony to sup-
port the Company 's cause and claimed that McDonald
ran the miner about half the time. I discredit this change
in testimony and find , in accordance with other evi-
dence , that Foreman Darnell 's son Robert was the regu-
lar miner operator on the second shift and that McDon-
ald and Darnell 's son James merely substituted on the
miner from time to time (Tr. 24-25, 54, 58, 71, 173).
Thus, despite union observer Puccio's ability, wide ex-
perience , and satisfactory work on the continuous mining
machine , the Company replaced him with a former
miner operator who was no longer operating the mining
machine regularly because of his health but who was less
ardent in his union support.
c. The Company's defenses
1. The Company contends in its brief that the layoffs
were not permanent and that they were "only temporary
layoffs brought about by poor economic conditions."
There is much evidence to the contrary.
As found , Second-Shift Foreman Darnell told roof
bolter Kyer toward the beginning of the shift on the day
61
of the February 24 layoffs that union men were being
laid off and, except possibly Kyer, "they're not going to
be hired back." By the time of trial, about 3-1/2 months
later, none of the union supporters had been recalled de-
spite the need for additional employees on the second
shift.
The layoff of three union supporters (Kyer, Anderson,
and Hilling) and one antiunion employee (Varca) from
the second shift left the shift without enough workers to
produce any coal and without an employee certified as
an EMT. If the Company had recalled Hilling (who was
both a shuttle car operator and an EMT) and Kyer (who
was the highest producing roof bolter and a versatile em-
ployee in performing many jobs in the mine), the need
for additional employees would have been filled without
recalling unsatisfactory or less qualified employees. In-
stead, the Company recalled the laid-off shuttle car oper-
ator Varca, who had the drinking problem and who was
not an EMT, after first recalling as an EMT employee
Alan Boring, who had been laid off earlier from the
third shift following his excessive absenteeism. Even
when Foreman Darnell continued to have a problem
with Varca's drinking after his recall (Tr. 259), the Com-
pany still retained him on the job instead of recalling
Hilling.
In an effort to explain why the Company would recall
Alan Boring, the Company's brief inaccurately states that
"Mr. Williams testified that he chose to call back Mr.
Boring based on Mr. Boring 's EMT qualification and
overall experience with each and every job associated with a
deep mine." (Emphasis added.) Williams did not testify
that he chose Boring for recall because of Boring's
"overall experience with each and every job associated
with a deep mine." (Alan Boring was a general inside la-
borer on the midnight shift and he had done some roof
bolting.) Williams merely testified what Boring did when
recalled and assigned to the second shift (Tr. 16).
A. Well, if they have to bolt any he does that, or
whatever there is to do.
Q. Well, maybe I should ask: Is there any job
that he doesn't do?
A. Well, you'd have to ask his foreman about
that because they clean up and have everything
ready for the next day.
Alan Boring clearly was not the highly qualified, high-
producing employee that Kyer was.
Again on April 30 the Company demonstrated that it
considered the laid-off union supporters to be permanent-
ly laid off. Instead of recalling Puccio, who was fully
qualified to replace outside man James Cowan when he
quit, it hired a new employee Frederick Boring (who
was not related to President Williams or any of his su-
pervisory staff).
2. Relying on President Williams' inaccurate testimo-
ny, the Company contends in its brief that because less
cleanup and maintenance was necessary after the solid
block of coal was reached, the Company (on February
20) "laid off the entire third shift." To the contrary, as
found above, it laid off only two of the four employees
(recalling one of the two to the second shift). Having
relied on the inaccurate testimony, the Company offers
no explanation why it transferred the other two third
shift-employees (the newest employees in the mine) to
the first shift, increasing the crew from 9 to 11 employ-
ees I also note that, without explanation, the first shift
remained overstaffed following the February 24 layoffs.
After laying off union supporters Puccio and Evans and
transferring in McDonald, the Company retained 10 em-
ployees on the first shift (Harrison, Wood, Wright, King,
McDonald, Eagle, Waggy, Menear, Lee, and Van
Meter), one more than the 9 employed before the reduc-
tion in the amount of dead work, cleanup, and mainte-
nance work.
3. The Company contends that the first and second
shifts "were realigned to create the most cost efficient
crews." To the contrary, it is clear that when the Com-
pany laid off the five union supporters and the one an-
tiunion employee February 24, it was closing down pro-
duction completely on the second shift, converting it
into a maintenance shift (as Foreman Darnell told em-
ployee Kyer February 17 that the Company planned to
do). It was not until the Company had the union sup-
porters off the payroll that the Company restored some
productive capacity on the second shift by recalling the
antiunion employee with the drinking problem and the
laid-off third-shift employee who had the high accident
rate and an absentee record of over 50 workdays the
year before. Still the shift was understaffed for full pro-
duction, having only six employees in the crew (Cowan,
Amalett, Varca, James Darnell, Robert Darnell, and
Alan Boring), three :ewer than before.
4. The Company contends that the layoff of antiunion
employee Varca and the retention of union supporters
Kevin Wood, McDonald, and Menear show that the
layoff of the five alleged discriminatees ( the outstanding
union supporters) was not discriminatory. In making this
contention the Company ignores the fact that Varca was
recalled after a few days, that Wood was the third most
senior employee, and that McDonald and Menear were
not leading union organizers at the time.
5. The Company contends that because of President
Williams' "past experience with Mr. McDonald" and the
higher production on the second shift, Williams decided
to move McDonald to the first shift and "By doing this,
he was forced to lay off Mr. James Puccio," the first-
shift miner operator. This contention clearly has no
merit . Because of poor health, McDonald was no longer
the regular miner operator on the second shift and he
very seldom ran the miner. Moreover, it was the shift
foreman, not McDonald, who was responsible for the
higher production on the second shift. Foreman Darnell
"would produce coal at all costs," leaving more of the
dead work for the night and morning shifts to perform.
Although not mentioned in the Company's brief, Presi-
dent Williams at one point conceded having no problems
with Puccio as the first-shift miner operator "insofar as
the way he ran a shift, or did his job," testifying, "Not
anymore than advancing beyond roof control bolts" (Tr.
216-217). Williams claimed that sometime in the past, "I
don't remember the date" (Tr. 217), Foreman King told
62
him that Puccio advanced with the miner beyond the
roof bolts once or twice (Tr. 228). But Williams had
never mentioned this to Puccio , and nobody suggested
that Puccio should be laid off for it. Puccio credibly
denied being personally warned about cutting beyond
the bolts. He was aware , however , that cutting beyond
the bolts had occasionally happened on the second shift
when the regular miner operator Robert Darnell, or
sometime McDonald or James Darnell, operated the
mining machine (Tr. 172- 173). Roof bolter Kyer credi-
bly testified that he had seen the two Darnells and
McDonald cutting beyond the bolts without being disci-
plined , as when cleaning out 3 or 4 feet of "gob" (non-
coal matter) to get back into the coal (Tr. 118-120). Al
though Kyer worked on the shift following Puccio's
shift , he had never seen Puccio take the miner beyond
the bolted area (Tr. 102). In any event , Williams did not
mention cutting beyond the bolts when he summarily
laid Puccio off. I find that this was raised later as an
afterthought.
Having found above that Puccio had superior ability
to operate the continuous mining machine , that he was
not only one of the five outstanding union supporters but
also the union observer at both the elections, that one of
the supervisors had warned him that President Williams
was "just waiting for a chance to fire" him for his part in
getting the first election set aside , and that the Company
replaced him with a former miner operator who was no
longer operating the mining machine regularly because
of his health but who was less ardent in his union sup-
port, I find that the purported reasons for laying Puccio
off were pretextual.
6. In developing its economic defense , the Company in
its brief argues that it "was necessary to produce even
larger quantities of coal" to reduce the cost per ton of
coal, and that the statistics regarding production "con-
firmed the wisdom of Mr. Williams' decisions" in laying
off the employees and realigning the shifts. The Compa-
ny argues that "First of all , the first shift is now produc-
ing as much , if not more , than the second shift and both
shifts have now increased their level of production. A
comparison of the total monthly tonnage figures revealed
that a good month in 1983 was 5000 tons . For the month
of May 1984 alone," the Company "produced approxi-
mately 8500 tons."
These arguments are at least misleading.
The reason "a good month in 1983 was 5000 tons" was
that the Company made the practice of temporarily clos-
ing the plant after the 5000 tons of low -sulfur coal was
produced for the Riversville Power Plant . As President
Williams admitted on cross -examination (Tr. 231),
Q. Now, in the past, say in 1983, didn't you, after
you had mined your five thousand tons to supply
the power plant, shut down for a couple of days at
the end of the month?
A. We did, no place for it to go.
When asked "do you mine coal beyond the orders you
have for coal in a particular month?" Williams answered,
"Not unless it's high sulfur. If it is, we have to get out of
it before we can start back to Riversville ." (Tr. 230.)
(Earlier he had testified that the high -sulfur coal is sold
through his broker West Virginia Coals, that it is harder
to sell , and that "I've had it to lay up there for two or
three weeks at a time , couldn't move it" (Tr. 36-37).)
Thus, both before and after the February layoffs, the
Company produced 5000 tons of low-sulfur coal for the
power plant . It does not mine coal beyond that amount
unless it has other orders or unless it strikes high -sulfur
coal.
When questioned by company counsel on direct exam-
ination , President Williams testified that production had
increased , but he did not reveal whether the increase was
low- or high-sulfur coal (Tr. 211, 218).
Q. When you made the change with the layoffs
in February of '84 and the restructuring of the work
shifts, did you increase your production?
A. We did.
Q. How much?
A. Last month we-month of May we run
eighty-five hundred tons.
Q. Okay. And what was an average tonnage, say
in '83?
A. Couldn't have been more than five thousand
tons.
On cross-examination he implied that the extra produc-
tion of 3500 tons of coal in May was high-sulfur coal,
and not coal produced under contract, because he testi-
fied that "we was just lucky that we got rid of this coal
in the month of May. Now, this month [June] I think
that five thousand tons is all we 're going to be able to
get rid of." (Tr. 230-231.)
In any event, before the February 24 layoff when each
of the first and second shifts was staffed with nine em-
ployees and when the Company was mining in previous-
ly tunneled areas (with much dead time caused by fre-
quent belt movements), the Company always covered
the monthly requirement of 5000 tons of low-sulfur coal
for the power plant (Tr. 230), mined whatever high-
sulfur coal they found to get it out of the way, and
sometimes had to shut down the mine at the end of the
month for lack of orders. Undoubtedly if the Company
had been able to obtain additional orders when it
reached the large area of solid coal in February, the pro-
duction could have been increased with the two produc-
tive crews, each fully staffed with the experienced,
senior employees, working without the excessive dead
time caused by the frequent belt movements.
Moreover, it is obvious that on February 24 President
Williams reduced the productive capacity of the mine
rather than increased it. He temporarily stopped produc-
tion on the second shift by laying off and transferring
five of the nine employees, leaving only one outside man
and three employees to work in the mine. He laid off
from the two shifts five senior employees (the leading
union supporters), including the highly qualified miner
63
operator Puccio from the first shift and the highly pro-
ductive roof bolter Kyer from the second shift. He re-
placed Puccio with miner operator helper McDonald
from the second shift, although McDonald had been
unable because of ill health to work regularly in his
former position of miner operator. He failed to recall
Kyer and union supporter Hilling when they were
needed to resume production on the second shift. He re-
called instead general inside laborer Alan Boring, a less
qualified employee whom he had laid off February 20
from the third shift following an absentee record of over
50 workdays the year before, and also the antiunion shut-
tle car operator Varca, whom he had laid off because of
a drinking problem . After all the realigning was finished,
Williams had increased the crew on the first shift from 9
to 10 employees, had decreased the crew on the second
shift from 9 to 6 employees (presumably leaving it under-
staffed for full production), had replaced 3 of the 5 laid-
off senior union supporters with the least senior employ-
ees from the discontinued third shift, had retained the
next junior employee Menear on the overstaffed first
shift, and had retained on the second-shift employees
Amalett and Varca, who were either less productive or
less satisfactory than Kyer and Hilling.
In arguing that Williams ' decisions were wise because
"First of all, the first shift is now producing as much, if
not more, than the second shift," the Company ignores
not only the fact that the number of employees was in-
creased to 10 on the first shift and reduced to 6 on the
second shift, but also Williams' admission that although
the two shifts are running, the second shift does not run
all the time, "They do repair work and stuff like that"
(Tr. 231).
I am not persuaded by these misleading arguments that
the layoff of the union supporters and the realigning of
the productive shifts were "due to business and econom-
ic changes" as the Company contends in its brief. To the
contrary, I find that the February 24 layoff of the union
supporters was not designed to get more coal per man as
Williams claimed.
7. At the trial, President Williams claimed that he was
able to conclude who was to be laid off and who was
not because "I just knew the men, which ones I needed
and which ones I didn't," that "all we could go by is
production," and "I pick the ones that produce the most
coal" to keep on the job (Tr. 22, 217-218).
He did not reveal how he obtained this information
about the individual employees. He is not in the mine
much to observe the men working (Tr. 227). "If every-
thing's okay" he goes home at noon, and he is not at the
mine "too often" at the 3 p.m. starting time for the
second shift (Tr. 225). He claimed he could tell who was
productive by reading the production reports in the
morning , but they showed production for the whole
shift, not how well individual employees were working.
He claimed, however, that "when they run any produc-
tion in any amount, why, everybody's got to be working.
One man can't lay down." (Tr. 228-229.) He also made
the discredited claims that he had no input from any su-
pervisor about whom to lay off and that he did not dis-
cuss the impending layoff at all with his supervisors.
As justification for transferring miner operator
McDonald from the second to the first shift and laying
off miner operator Puccio and miner operator helper
Evans, President Williams appeared to imply ( in agree-
ment with his counsel) that employee McDonald was re-
sponsible for the higher production on the second shift.
He testified, in answer to questions by the company
counsel on direct examination (Tr. 213),
Q. . . . Can you tell us whether or not McDon-
ald's shift was more productive than Puccio's shift?
A. It . . . was. And they turned in the shuttle
cars they loaded and they're rated at five tons and a
half per car.
Q. Okay. Was the second shift with Mr. McDon-
ald as an operator substantially better than Mr. Puc-
cio's shift?
A. Oh, yes. [Emphasis added.]
Despite the wording of the questions, McDonald was not
a miner operator responsible for production on the
second shift. In the first place, Foreman Darnell was re-
sponsible for the higher production, because he extended
the production time by leaving more of the dead work
for the night and morning shifts to perform (Tr. 174). In
the second place, McDonald would not have been re-
sponsible for the higher production anyway because he
was working as a miner operator helper and very seldom
ran the continuous mining machine.
Williams offered no explanation for not picking Kyer,
Anderson, and Hilling-all of whom worked on the
higher producing second shift-as "ones that produce
the most coal" to keep on the job. He knew that roof
bolter Kyer was a top producer because, as Foreman
Darnell informed Kyer just before his February 24
layoff, Darnell had told Williams that Kyer "could bolt
four places" to one over roof bolter helper Amalett, the
antiunion employee whom Williams retained when
laying off Kyer.
After weighing all the evidence and considering the
absence of any plausible explanation for not picking the
five union supporters as "ones that produce the most
coal" to justify their retention on the job, I reject the
Company's contention that they were laid off "to de-
crease the cost per ton of coal." I discredit President
Williams' claim that he just knew he did not need these
men because "all we could go by is production." (As
found above, he appeared willing to give whatever testi-
mony would help the Company's cause.)
The Company's brief does not assert any other reasons
for the Company's laying off the union supporters. It
contends that after the Company "allowed the floating
and sick days, it was found that the men took advantage
of the benefit it had awarded." The brief gives as exam-
ples Anderson' s admission that he had exceeded the
number of sick and personal days allowed (Anderson tes-
tifying (Tr. 134-135) that he had the flu and was off 1
day more than the 9 days allowed), that Hilling "had
used up all nine of his sick and floating days" (as he was
64
entitled to do), and that Kyer attempted "to use a combi-
nation of his vacation and floating days to go hunting
without approval by Mr. Williams" (and was paid for the
unused personal days, as discussed above). The brief cites
these examples to justify the Company's reduction of the
number of floating and sick days from nine to three, not
to justify laying off the union supporters.
8. Finally the Company contends that "It was nearly
eight and one-half months after the second union election
and the date of the allegedly discriminatory layoffs," that
"the NLRB has consistently held that the timing .. . re-
mains one of the singularly most important elements of
circumstantial proof in an unfair labor charge," and that
this 8-1/2-month time lapse "is clearly too long to sup-
port" the alleged violations. The Company further
argues in its brief, "We shudder to consider the vocaliza-
tion that would emanate from the claimants had these
economic layoffs followed closely on the heels of an
election defeat or shortly preceding the eligibility period
for a new one."
In making these arguments, the Company completely
ignores the fact that the renewed union organizational
effort began nearly 2 months earlier, the fact that the
layoffs occurred about 3-1/2-months before a new elec-
tion could be held, and the credited testimony that on
February 22, 2 days before the layoffs, roof bolter Kyer
told Foreman Darnell, "You know that the union is
coming back," and Darnell responded that President Wi-
liams "knows the union's coming back and he's getting
ready for it."
d. Concluding findings
In two earlier union organizing campaigns at this pre-
viously mined deep coal mine, the Company repeatedly
threatened to close the mine if the employees voted for
the Union. After the second election, in which there was
a tie vote, the Company prepared lists of employees sus-
pected of supporting the Union.
The third organizational campaign began around the
end of 1983. In February, when a large solid block of
coal was reached, enabling the Company to discontinue
the third shift, Second-Shift Foreman Darnell revealed
to roof bolter Kyer that President Williams was "getting
ready" for the Union in the campaign. Not realizing that
Kyer was making notes each night after work of what
Darnell was saying about the company plans, Darnell re-
vealed that Williams was going further than eliminating
the unneeded third shift (an action that is not alleged to
be unlawful). Williams was also planning to lay off union
supporters permanently, using his list of suspected union
supporters. Darnell also revealed how Williams planned
to carry out the layoffs, by temporarily reducing the
higher producing second shift to a maintenance shift
with a skeleton crew.
In carrying out these plans, President Williams first
eliminated the third (midnight) shift February 20. But in-
stead of laying off the four low-seniority employees, it
transferred the two newest employees to the first shift,
increasing the crew from 9 to 11 employees. On Febru-
ary 24 Williams reduced the number of employees on the
second shift from nine to four, temporarily ending its
productive capacity. He did this by transferring one em-
ployee to the first shift and by laying off four senior em-
ployees One of the four was an antiunion employee
whom Williams recalled the following week despite the
employee's continuing drinking problem. Earlier Wil-
liams recalled one of the two laid-off third-shift employ-
ees despite that employee's low seniority and high absen-
teeism (over 50 workdays in the last year). These two re-
called employees enabled the Company to resume some
production on the second shift (with six employees in-
stead of a full crew of nine employees).
The other three employees laid off from the second
shift, and the two laid off that day from the first shift,
were the five outstanding union supporters in the mine.
Williams did not recall any of them. On April 30, when
one of the second-shift employees quit, Williams hired a
new employee instead of recalling the fully qualified
union supporter who had been the union observer at
both the elections.
When laying off the five union supporters, President
Williams followed neither seniority (as he did for job
bidding) nor ability and qualifications. Previously the
Company had always retained all the employees and
closed the mine temporarily if the production goal was
reached ahead of schedule.
One result of the layoffs, transfers, and recalls was that
all the known antiunion employees were retained and all
five of the most active union organizers were eliminated
about 3-1/2 months before a third election could be held
(preventing an election as planned). Another result was
that senior employees were permanently laid off and em-
ployees who had lower seniority or were less qualified
or less satisfactory were retained. The third result was an
imbalance in the staffing of the mine. Before the laycffs
and realignment of the shifts, two productive crews of
nine employees each on the first and second shifts had
succeeded in always covering the monthly requirement
of 5000 tons of low-sulfur coal for the power plant cus-
tomer. After the changes were made, the first shift was
overstaffed with 10 instead of 9 employees (including the
2 newest employees from the third shift), and the second
shift was understaffed with only 6 instead of 9 employees
(including the employees with the drinking and absentee-
ism problems). This imbalance in the staffing, and the re-
placement of more qualified and experienced senior em-
ployees with less qualified or less satisfactory employees,
undoubtedly reduced the efficiency of the two crews in
increasing production after the solid block of coal was
reached.
I find that the evidence is overwhelming that Presi-
dent Williams was discriminatorily motivated when he
laid off the five outstanding union supporters February
24. His conduct in retaining three of the four junior em-
ployees from the unneeded third shift and realigning the
first and second shifts was clearly a maneuver to effectu-
ate the plans previously reported by Foreman Darnell to
roof bolter Kyer that Williams was "getting ready" for
the Union in the election campaign by permanently
laying off union supporters.
65
Having overruled the Company's economic and other
defenses, I find that in the absence of a discriminatory
motivation Williams would not have laid off any employ-
ees from the first and second shfits (except possibly the
antiunion employee with the drinking problem), and that
if any of the productive employees had been laid off for
economic reasons, none of the five senior union support-
ers would have been included in the layoff.
I therefore find that by laying off the five union sup-
porters, the Company violated Section 8(a)(3) and (1) of
the Act.
CONCLUSIONS OF LAW
1. By discriminatorily laying off John Anderson, Wil-
liam Evans, Ronald Hilling, Frank Kyer, and James
Puccio February 24, 1984, because of their support of
the Union, the Company engaged in unfair labor prac-
tices affecting commerce within the meaning of Section
8(a)(3) and (1) and Section 2(6) and (7) of the Act.
2. By threatening to discharge employees because of
their protected concerted activity, the Company violated
Section 8(a)(1).
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
The Respondent, having discriminatorily laid off five
employees, must offer them reinstatement and make them
whole for any loss of earnings and other benefits, com-
puted on a quarterly basis from date of layoff to date of
proper offer of reinstatement, less any net interim earn-
ings, 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 Respondent's egre-
gious misconduct, demonstrating a general disregard for
the employees' fundamental rights, I find it necessary to
issue a broad order, requiring the Respondent to cease
and desist from infringing in any other manner on 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-
ed2
ORDER
The Respondent, Pittsburgh Coal Works, Monongah,
West Virginia, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
2 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.
(a) Laying off or otherwise discriminating against any
employee for supporting United Mine Workers of Amer-
ica, District 31, or any other union.
(b) Threatening to discharge any employee for sup-
porting a union.
(c) 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. 1
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer John Anderson, William Evans, Ronald Hill-
ing, Frank Kyer, and James Puccio immediate and full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed, and make them whole for any
loss of earnings and other benefits suffered as a result of
the discrimination against them, in the manner set forth
in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
layoffs and notify the employees in writing that this has
been done and that the layoffs will not be used against
them in any way.
(c) Preserve and, on request, make available to the
Board or its agents for 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.
(d) Post at its facility near Monongah, West Virginia,
copies of the attached notice marked "Appendix."3
Copies of the notice, on forms provided by the Regional
Director for Region 6, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
3 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."
66
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 NationalLabor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join , or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT lay off or otherwise discriminate against
any of you for supporting United Mine Workers of
America, District 31, or any other union.
WE WILL NOT threaten to discharge any employee for
supporting a union.
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 John Anderson, William Evans,
Ronald Hilling, Frank Kyer, and James Puccio immedi-
ate and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights
or privileges previously enjoyed and WE WILL make
them whole for any loss of earnings and other benefits
resulting from their discharge, less any net interim earn-
ings , plus interest.
WE WILL notify each of them that we have removed
from our files any reference to his layoff and that the
layoff will not be used against him in any way.
PITTSBURGH COAL WORKS
67
THIS PAGE LEFT BLANK INTENTIONALLY.