Plateau Coal Sales, Inc.

National Labor Relations Board - Board Decisions

May 29, 1986

279 N.L.R.B. 1151 (N.L.R.B. 1986)

PLATEAU COAL SALES
Plateau Coal Sales , Inc. and District 29, United
Mine Workers of America
Local Union No . 6046, United Mine Workers of
America and International Union , United Mine
Workers of America and Plateau Coal Sales,
Inc. Cases 9-CA-17947, 9-CB-5170- 1, and 9-
CB-5170-3
29 May 1986
DECISION AND ORDER
BY MEMBERS DENNIS, JOHANSEN, AND
BABSON
On 14 December 1982 Administrative Law
Judge Irwin Kaplan issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
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, I and
conclusions only to the extent consistent with this
Decision and Order.
We adopt the judge's conclusions that Respond-
ent Plateau Coal Sales unlawfully sought to induce
employees to work without union representation,
and withdrew offers of employment from its entire
work force when the employees refused to work
nonunion. We also agree that the Unions did not
violate the Act. Contrary to the judge, we find that
a bargaining order is required to remedy this mis-
conduct.
The relevant facts, set forth at length in the ad-
ministrative law judge's decision, are in essence as
follows. Respondent Plateau purchased the facili-
ties of Summerlee Coal, which had operated under
a contract with the Union. Before commencing op-
erations, Plateau informed the Union that it would
hire from Summerlee Coal's seniority list and ar-
ranged for the five men at the head of the list to
take physical examinations. All passed. Plateau
then sent offers of employment to these five men.
Several days later, Plateau's two owners, Graybeal
and Williams, met one of the five, Vest, who was
also the Local Union's president. Graybeal suggest-
ed to Vest that Plateau would offer better wages
than the union contract if the men would agree to
work nonunion. Vest responded negatively and the
i In adopting the judge's conclusion that the Respondent Plateau was
not a successor to Summerlee Coal Processing, we do not rely on his
finding that the Respondent would use "only 2 percent of Summerlee
Coal's equipment", we agree, however, that Plateau would continue only
a loading operation , which was 10 percent of Summerlee 's business, and
that it modified substantially the equipment Summerlee had used in this
operation
1151
meeting ended. Within the hour, Plateau Superin-
tendent Thompson informed Vest that three of the
men who had already been sent offers of employ-
ment had failed their physicals. Thompson further
informed Vest that if the men decided to work
nonunion, reexaminations would "probably not" be
necessary.
Plateau hired none of the five men previously of-
fered employment. About 10 days after the discus-
sion between Graybeal, Williams, and Vest, Plateau
began operations with a new nonunion crew. The
Union set up a picket line. The next day, 14 of
Summerlee Coal's 15 former employees signed au-
thorization cards.
Two days into the strike, Co-Owner Graybeal
met with two of the pickets, Marshall and Lafferty,
who were among the five who had previously been
offered employment. Graybeal told Marshall and
Lafferty that he would better the terms of the
union contract if they would b6 willing to work
nonunion. Graybeal also told Lafferty, who was
one of the three who had allegedly failed his physi-
cal, that no reexamination would be necessary if
the men would work nonunion. Matters were not
resolved, however. None of the five men originally
offered employment was actually hired by the Re-
spondent, and the Respondent has operated with-
out recognizing the Union. The judge found, and
we agree, that Plateau violated Section 8(a)(3) and
(1) by refusing to hire these employees.
Contrary to the judge, we find that this conduct
plainly calls for a bargaining order. There is no
question that the Union represented a majority of
the employees. Moreover, the unfair labor prac-
tices implicated the highest management officials
and affected every employee in a small unit. They
were not only pervasive but extremely serious: the
withdrawal of employment offers-an action tanta-
mount to the discharge of the entire unit.2 The
other unfair labor practices, Owner Graybeal's at-
tempts to persuade the employees to work non-
union, make it plain that Plateau's withdrawal of
the employment offers was for the purpose of frus-
trating the employees' union sympathies and avoid-
ing what Plateau saw as an otherwise inevitable
union contract.
When, as here, an entire unit of employees is un-
lawfully denied employment, traditional remedies
are insufficient to restore the situation as it existed
prior to the employer's misconduct. The coercive
impact of Plateau's unfair labor practices, having
reached and adversely affected each and every unit
employee, would continue to have a tendency to
undermine union support and impede the election
2 Indeed , Plateau does not contest the violations
279 NLRB No. 156
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
process. Thus, without a bargaining order, the em-
ployees would be deprived of the union representa-
tion they sought and Plateau would reap the bene-
fit of its unlawful strategy. For all these reasons, a
bargaining order is warranted.3
The administrative law judge rejected in a foot-
note the General Counsel's and the Charging
Party's request for a bargaining order. The judge
found that a normal complement of employees
could not be determined and thus that the Union
could not establish majority status . The judge also
reasoned that since the discriminatees had all "long
supported union activities . . . and one of them is
union president," traditional remedies would effec-
tuate the purposes of the Act. These arguments are
legally and factually without merit.
It appears that the five employees first offered
employment by Plateau would have been a normal
complement. Thus, Plateau operated only a small
portion of the Summerlee Coal facility and equip-
ment and with a fraction of the Summerlee staff.
Indeed, the record is devoid of evidence that the
Respondent intended to hire additional employees.
In any event, Plateau had committed itself to hiring
from Summerlee Coal's seniority list. Because 14 of
Summerlee Coal's 15 former employees had signed
authorization cards, there can be no doubt that
even had Plateau intended to resume Summerlee's
complete operation, which it did not, the Union
would have represented a clear majority of the
work force.
The judge's second argument, that traditional
remedies (reinstatement and backpay) will suffice in
this case because the discriminatees were strong
union supporters, is seriously misguided. The
judge's reasoning necessarily rests on an assessment
of the subjective effect of Plateau's conduct on
these particular employees. It is well settled, how-
ever, that the Board does not act on such assess-
ments , but on the objective tendency of conduct to
interfere with the free exercise of employee rights.4
3 See Greengate Mall, 209 NLRB 37, 38 ( 1974) In that case, in which
the employer refused to hire certain individuals from a putative predeces-
sor because of their refusal to abandon the union , the Board stated as fol-
lows (footnotes with supporting citations omitted)
But we hold, further, that, even absent the independent evidence
of an express request and refusal to bargain within the meaning of
the language of Section 8(a)(5), a bargaining order would be apro-
priate under the Gtssel concepts as a remedy for the serious 8(a)(3)
violations committed by Respondent Respondent's failure to hire an
entire complement of employees because of their refusal to renounce
their union adherence is not a lesson likely to be forgotten The issu-
ance of an affirmative bargaining order as part of the remedy for
these 8(a)(3) violations is necessary in our view in order to restore
the status quo ante, i e, that existing prior to Respondent 's unlawful
conduct
4 See, for example , Amason, inc, 269 NLRB 750 (1984) The fact that
the employees signed authorization cards after the unlawful withdrawal
of employment offers does not indicate that the unfair labor practices
would not have a tendency to coerce the employees and impede the elec-
tion process The employees' action at the time of the unfair labor prac-
The Board has never ordered or withheld a bar-
gaining remedy based on the perceived strength of
the individual employees' union sentiments.
AMENDED REMEDY
We adopt the remedy given by the judge per-
taining to reinstatement and backpay with the addi-
tional provisions that if the number of available
jobs increased, or the named employees became un-
available for employment, then Respondent Plateau
Coal Sales' reinstatement and backpay obligations
shall extend to those junior employees on the se-
niority panel next in line.
We will also order the Respondent to bargain
with Local Union No. 6046, United Mine Workers
of America, as the collective-bargaining representa-
tive of the employees in the appropriate unit.
ORDER
The National Labor Relations Board orders that
the Respondent, Plateau Coal Sales, Inc., Summer-
lee, West Virginia, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to employ or otherwise discriminat-
ing against employees for supporting Local Union
No. 6046, United Mine Workers of America, or
any other union.
(b) Offering employees better wages, benefits, or
other concessions to induce them to work without
union representation.
(c) In any other manner interfering with, re-
straining , or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Local Union
No. 6046, United Mine Workers of America, as the
exclusive representative of the employees in the
following appropriate unit concerning terms and
conditions of employment and, if an understanding
is reached, embody the understanding in a signed
agreement:
All employees employed by Plateau Coal
Sales , Inc., at its Summerlee, West Virginia
tipple facility, excluding office clerical em-
ployees, all professional employees, guards,
and supervisors as defined in the Act.
Offer Edgar Fry, Dennis Lafferty, Clarence
Marshall, William Taylor, and Homer Vest, and
other employees listed on the seniority panel if the
number of available jobs increased since 20 January
tices does not blunt the fact that the Respondent 's conduct has cost them
their rightful employment since January 1982
PLATEAU COAL SALES
1982, or the named employees became unavailable
for employment, immediate and full reinstatement
to the positions for which they applied, or, if those
jobs no longer exist, to substantially equivalent po-
sitions , without prejudice to their seniority or any
other rights or privileges previously enjoyed, and
make them whole for any loss of earnings and
other benefits suffered as a result of the discrimina-
tion against them, in the manner set forth in the
remedy section of the decision.
(c) Before hiring other employees in the bargain-
ing unit , hire the former employees of Summerlee
Coal Processing, in the order set forth in the se-
niority panel previously used.
(d) Remove from its files any reference to the
unlawful refusals to employ and notify the employ-
ees in writing that this has been done and that the
unlawful refusals will not be used against them in
any way.
(e) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(f) Post at Summerlee, West Virginia, copies of
the attached notice marked "Appendix."5 Copies
of the notice, on forms provided by the Regional
Director for Region 9, after being signed by the
Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(g) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is
dismissed insofar as it alleges violations of the Act
not specifically found.
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
1153
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 ordered us to post and abide by this notice.
WE WILL NOT refuse to employ or otherwise dis-
criminate against you because of your support for
Local Union No. 6046, United Mine Workers of
America, or any other union.
WE WILL NOT offer you better wages, benefits,
or other concessions to induce you to work with-
out union representation.
WE WILL NOT in any other manner interfere
with, restrain , or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with Local Union
No. 6046, United Mine Workers of America, as the
exclusive representative of the employees in the
following appropriate unit concerning terms and
conditions of employment and, if an understanding
is reached, embody the understanding in a signed
agreement:
All employees employed by Plateau Coal
Sales, Inc., at our Summerlee , West Virginia
tipple facility, excluding office clerical em-
ployees, all professional employees , guards,
and supervisors as defined in the Act.
WE WILL offer Edgar Fry, Dennis Lafferty,
Clarence Marshall, William Taylor, Homer Vest,
and other employees listed on the seniority panel, if
the number of available jobs with us increased
since 20 January 1982, or the named employees
become unavailable for employment , immediate
and full reinstatement to the positions we previous-
ly offered to them or, if those jobs no longer exist,
to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privi-
leges previously enjoyed and make them whole for
any loss of pay or other benefits they may have
suffered by reason of our discrimination against
them, plus interest, and WE WILL notify each of
them that we have removed from our files any ref-
erences to our refusal to employ them, and that
these refusals will not be used against them in any
way.
WE WILL hire the former employees of Summer-
lee Coal Processing, in the order set forth in the se-
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
niority panel previously used , before hiring other
employees in the bargaining unit.
PLATEAU COAL SALES, INC.
Damon W. Harrison Jr., Esq. (Case 9-CA-17947), and
Richard Kopenhefer, Esq. (Case 9-CB-5170-1-3), for
the General Counsel.
Forrest H. Roles, Esq. (Jackson, Kelly, Holt, & O Farrell),
of Charleston, West Virginia, and Paul O. Clay, Esq.,
of Fayetteville, West Virginia, for the Charging Em-
ployer and the Respondent Employer.
James Swart, Esq., of Beckley, West Virginia, for the
Charging Union District 29 and the Respondent Local
Union
James M. Haviland, Esq. (McIntyre, Haviland & Jordan),
of Charleston, West Virginia, for the Respondent
International Union.
DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN, Administrative Law Judge. These
consolidated cases' were heard in Beckley, West Virgin-
ia, on June 28, 29, and 30, and July 1, 1982.
The underlying charges in Case 9-CA-17947 were
filed by District 29, United Mine Workers of America
(District 29) on February 4, 1982, and gave rise to a
complaint and notice of hearing on May 6, 1982, alleging
that Plateau Coal Sales, Inc. (Respondent Employer and
Plateau) engaged in certain acts and conduct violative of
Section 8(a)(5), (3), and (1) of the National Labor Rela-
tions Act (the Act).
In particular, it is alleged that the Respondent Em-
ployer is, and has been, at all times material "a succes-
sor" to Summerlee Coal Processing, Inc. (Summerlee
Coal) and as such has obligated itself to recognize and
bargain with District 29 and its constituent local, United
Mine Workers of America, Local Union No. 6046 (Local
6046) and that by its failure to do so, it has violated Sec-
tion 8(a)(5) and (1) of the Act. Alternatively, the General
Counsel contends that a bargaining order is appropriate
even in the absence of successorship or a finding that the
Respondent Employer otherwise violated Section 8(a)(5)
of the Act, based on alleged serious 8(a)(3) allegations,
citing, inter alia, NLRB v. Gissel Packing Co., 395 U.S.
575 (1969). It is alleged that the Respondent Employer
violated Section 8(a)(3) and (1) of the Act by refusing to
employ former employees of Summerlee Coal In con-
nection therewith, it is alleged that a strike was caused in
part and prolonged by the Respondent Employer's al-
leged unlawful refusal to employ the aforenoted employ-
ees. It is also alleged that the Respondent Employer in-
dependently violated Section 8(a)(1) of the Act by offer-
ing former Summerlee Coal employees 25 cents an hour
more than union scale along with certain fringe benefits
to induce them to work for the Respondent Employer
without a union. Still further, it is alleged that certain
' An order sevenng Cases 9-CC-1161-2 and 9-CC-1161-3 from the
proceeding issued June 25, 1982 Accordingly, the caption appears as cor-
rected
former Summerlee Coal employees were told that the
Respondent Employer would disregard the fact that they
assertedly failed their physical examination if they would
agree to work nonunion and that the Respondent Em-
ployer additionally violated Section 8(a)(1) of the Act.
The Respondent Employer filed an answer conceed-
ing, inter alia, jurisdictional facts and the supervisory and
agency status of individuals named in the complaint but
denying all allegations that it committed any unfair labor
practices. In connection therewith, the Respondent Em-
ployer denies that it is obligated to recognize and bargain
with District 29 and/or Local No. 6046 on any other
basis.
The Respondent Employer is also the Charging Em-
ployer in Cases 9-CB-5170-1 and 9-CB-5170-3 The
charges in the aforenoted cases gave rise to an order
consolidating cases, consolidated complaint and notice of
hearing on March 11, 1982, alleging that the Internation-
al Union, United Mine Workers of America (the Re-
spondent International) and Local No. 6046 (the Re-
spondent Local) and collectively the Respondent Unions
engaged in certain acts and conduct violative of Section
8(b)(1)(A) of the Act. More, particularly, the allegations
therein relate to certain conduct by the Respondent
Unions in connection with the operation of a picket line,
to wit, and impeding ingress to Plateau 's coal site in
Summerlee , West Virginia, and the assault by pickets on
one of Plateau 's principal owners in the presence of the
Respondent Unions' agents.
The Respondent International and the Respondent
Local 6046 filed separate answers denying the commis-
sion of any unfair labor practices.
All of the aforenoted cases were consolidated on May
7, 1982, by order consolidating cases and rescheduling
hearing. Thus all allegations for and against Plateau and
for and against the Unions were consolidated and tried
before me on the dates previously noted.
On the entire record, including my observation of the
demeanor of the witnesses, and after careful consider-
ation of the posttrial briefs, I make the following
FINDINGS OF FACT
1. JURISDICTION
Plateau Coal Sales, Inc. (the Respondent Employer
and the Charging Employer), a West Virginia corpora-
tion, is and has been at all times material engaged in the
business of buying, loading, and selling bituminous coal
at its tipple facility in Summerlee, West Virginia. In con-
nection therewith it commenced operations about De-
cember 19, 1982, and it is anticipated that during a repre-
sentative and material 12-month timeframe that Plateau
Coal Sales, Inc. will derive revenue in excess of $50,000
directly from points outside the State of West Virginia.
It is admitted, and I find, that Plateau Coal Sales, Inc.
is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATIONS INVOLVED
It is admitted , the record disclosed , and I find that
International Union, United Mine Workers of America is
PLATEAU COAL SALES
a labor organization within the meaning of Section 2(5)
of the Act.
It is admitted , and I find, that District 29, United Mine
Workers of America is a labor organization within the
meaning of Section 2(5) of the Act
It is admitted , the record disclosed, and I find that
Local 6046, United Mine Workers of America is a labor
organization within the meaning of Section 2(5) of the
Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
The tipple involved herein, located in Summerlee,
West Virginia, has long been leased and/or operated by
various coal companies including Respondent Plateau,
the present leaseholder From at least 1948 until about
May 16, 1980, the tipple was operated by the New River
Company (New River) whose employees were represent-
ed for collective-bargaining purposes by the Internation-
al, District, and Local (the Unions). About May 16,
1980, the New River tipple at Summerlee was shut down
and the employees were laid off. Subsequently, the prop-
erty was purchased by Mine Management Corporation
(Mine Management ) a nonoperator company which in
turn leased the premises to Summerlee Coal Processing,
Inc. (Summerlee Coal) in January 1981. Summerlee Coal
was engaged in substantially the same business as New
River, to wit, the operation of a preparation plant which
eliminated impurities from raw coal through a complex
process of cleaning or washing the coal. Not all the coal
was processed through the preparation plant, approxi-
mately 10 percent of the coal went through a crusher
and was loaded directly into railroad cars for shipment.
Joseph Hunnicutt, president and principal owner of Sum-
merlee Coal, hired his production and maintenance em-
ployees from the seniority panel which had been in exist-
ence at the New River Company. About the time Sum-
merlee Coal commenced operations, Hunnicutt signed
the National Bituminous Coal Wage Agreement of 1978.
Later in the year Hunnicutt signed the newly negotiated
National Bituminous Coal Wage Agreement of 1981
(G.C. Exh. 3).
Summerlee Coal suffered financially and about No-
vember 6, 1981, it was forced to lay off its hourly pro-
duction and maintenance employees.2 Some of the non-
unit personnel and supervisory staff, including Foreman
Kenneth Thompson, continued working to phase out the
business . This included , inter alia , shuting off all electrici-
ty and about December 12, 1981, the entire Summerlee
Coal work staff was laid off and the Company was effec-
tively out of business.
In August 1981 (a few months before Summerlee Coal
ceased operations) Summerlee Coal loaded some raw
coal for Tamory Mining Inc. (Tamory), a corporation
whose stock is owned equally by Jack Williams and Carl
2 The parties stipulated that when Summerlee actually ceased oper-
ations it laid off the following individuals - Homer Vest, Edgar Jennings
Fry, Clarence Marshall , Daniel Kincaid , Danny Lafferty , Thomas Rodes,
Glen Perry, Joe Fernandez ; Danny Sullivan , William Taylor, Earol Van-
natter ; William Drennen Jr, Willard Taylor, Robert Sloan, and James
Murphy
1155
Graybeal, the two principal owners of Respondent Pla-
teau . Tamory, as well as other companies in which Wil-
liams and Graybeal shared ownership, had long used the
marketing services of Philpot Coal Company (Philpot)
for the loading and purchasing of its coal In November
1981 Philpot went bankrupt and Williams and Graybeal
began a search for a new company to load their coal.
Williams learned from Kenneth Thompson that Summer-
lee Coal had shut down its operations and Williams
thereupon explored with Chuck Law, president of Mine
Management, the possibility of acquiring a lease for the
facility at Summerlee. Williams and Graybeal formed
Respondent Plateau, a new corporation and, under that
name , executed a lease on December 19, 1981, with Mine
Management. Kenneth Thompson was hired as the su-
perintendent for the new company and, in connection
with his new responsibilities, he was asked by Williams
to contact Local 6046 representatives and arrange a
meeting to discuss the Company' s future preparations
and employment opportunities.
About December 21, 1981, Williams met with Homer
Vest, president of Local 6046, and Daniel Kincaid, chair-
man of the Mine and Safety Committee of the Local at
Plateau 's tipple facility in Summerlee . Although there is
some conflict about what was actually agreed to on that
occasion, there is no dispute that Williams had at least
agreed to hire employees from the seniority panel in
effect at Summerlee Coal. However, Williams refused to
sign any panel forms because the company identified
thereon was Summerlee Coal and not Plateau.3 Williams
told Vest and Kincaid that he wanted to install two bins
and make repairs and asked for their permission to use
nonunion help. The union panel members were not quali-
fied to perform the construction work that was necessary
to get the tipple operational and, in any event, Vest and
Kincaid expressly indicated that they did not object. Wil-
liams told Vest that he was planning on hiring four or
five people in January and, in turn, was told by Vest that
he had to hire from the names at the top of the seniority
list. In this connection Vest pointed out that all the indi-
viduals on the seniority panel were qualified to perform
any of the jobs.
About January 1, 1982,4 Thompson telephoned Vest,
Dennis Lafferty, Edgar Jennings Fry, Clarence Marshall,
and William Taylor, the five men at the top of the se-
niority panel, and instructed them to report to Dr. Cor-
dell R. Honrado for physical examinations on January 4.
All five men reported, as requested and, according to
Honrado's reports dated January 7, they were all phys-
ically fit to perform the work for which they applied.
(G.C. Exhs. 6(a)-(e).) Within a few days of the physical
examination all five men received letters of recall which
had been drafted by Thompson for Williams' signature.
The letters were identical to the one sent to Lafferty
noted below except for the job classification. The body
of the letter in its entirety reads as follows:
8 Williams, testified that he anticipated using the seniority panel even
before he met Vest and Kincaid because he had undertaken a similar pro-
cedure when he purchased Tamroy, a union company
4 All dates refer to 1982 unless otherwise indicated
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
You are being recalled by Plateau Coal Sales, Inc.,
as a End Loader Operator according to seniority in
reference to panel you and your fellow employees
filled out when laid off on 12/15/81 at Summerlee
Coal Processing Plant [G.C. Exh. 5].
According to Kincaid, on January 4 he had heard at
the District 29 headquaters erroneously that one of the
five men selected from the seniority panel refused to take
a physical examination. Kincaid testified that he went to
Respondent Plateau's tipple to investigate and met with
Thompson who told him that he did not know of anyone
refusing to take the examination. A moment or two later
Graybeal came over to Kincaid and, after they ex-
changed amenities, Graybeal assertedly questioned Kin-
caid whether he believed the men would work at the
tipple without the Union promising to pay them more
than the hourly union rate as well as other union bene-
fits. Kincaid assertedly told Graybeal that the men had
been union members for a long time and indicated that
neither he nor the men would be receptive to working
nonunion. Further, Kincaid testified that Graybeal
opined that if the men got rid of Vest, 75 percent of the
problems would be eliminated. According to Kincaid, he
was not interested in pursuing the subject further and
started to leave, when Graybeal began to list various ob-
jections he had to the union contract such as black lung
and pension benefits.5
About January 10 (several days after Vest had re-
ceived his recall letter) Thompson telephoned Vest at
Graybeal's behest and told him that Graybeal wanted to
speak with him. On January 11 Graybeal and Thompson
met Vest at the tipple and sounded him out whether he
and the other members on the panel would work for Re-
spondent Plateau without the Union. What transpired at
that meeting is largely undisputed. Graybeal testified as
follows:
I asked Mr. Vest if they would consider or be inter-
ested in working non-union and giving them 25
cents more an hour plus all benefits that the UMW
offered, along with 25 cents a ton to be put in
escrow, that would be divided equally among the
employees once a year.
To Graybeal's offer, Vest responded, "I ain't taking
nothing like that back there because they'd probably
whip me." He then left Graybeal's office with the latter
promising to get back to Vest on this matter. According
to Vest (denied by Thompson), approximately 30 to 40
minutes later, Thompson informed him for the first time
that three of the men had failed their physicals. Vest, in
turn, assertedly advised Thompson that the Company
5 The Respondent objected to the testimony regarding Kincaid's con-
versation with Graybeal on January 4 because the latter's statements on
that occasion are not alleged independently as violative of Sec 8(axi)
As the General Counsel offered the testimony only for purposes of
animus and discriminatory motive in failing to hire the men selected from
the panel , and as Graybeal had a similar conversation with Vest about
January 10 which is alleged to be and I find independently violative of
Sec 8(axl), I find it unnecessary to make an additional finding regarding
Graybeal 's statements on January 4, noting particularly that the proposed
remedy, set forth infra, covers all such misconduct
would have to select the next three men on the seniority
panel. Further, Vest assertedly asked Thompson, if the
men decided to work nonunion, would they still be
deemed to have failed their physicals, to which Thomp-
son assertedly responded, "Probably not."
At various times during the month of January, Interna-
tional Organizers Luther Young and Frederick Gross
separately visited with and/or telephoned Williams in ef-
forts to get him to accept and sign the National Bitumi-
nous Coal Wage Agreement of 1981. This Williams re-
fused to do unless the Union satisfied him regarding the
Company's obligations on such subjects as black lung
benefits, health and welfare insurance, retirement bene-
fits, and royalties Williams told Gross that his attorney
advised him that if the Company was nonunion, he
would not have to pay black lung benefits. Gross took
issue with Williams on this subject stating that he be-
lieved that such benefits were covered under a Federal
program. According to Williams, if he hired an employ-
ee who had contacted black lung while working for an-
other company, Williams, under the union contract,
would be responsible to pay black lung benefits for the
rest of that employee's life. At Gross' suggestion, Wil-
liams agreed to get together with Dennis Saunders, presi-
dent of the District, at the District headquarters on Janu-
ary 21 to work out their differences.
Plateau had a contract with a company known as Coal
Arbed to load 250,000 tons of coal for that company for
the year 1982. It began fulfilling its first order for Coal
Arbed on January 20. According to Williams and
Thompson, loading coal on that occasion gave them the
opportunity to test the equipment at the tipple which
they still found to be inadequate to meet long-term com-
mitments. The local union learned that coal was being
loaded at the tipple in Summerlee and decided to picket
to protect the jobs of the members who had received
recall letters, as well as the employment opportunities of
other members on the seniority panel. Thus, at approxi-
mately 6:30 a.m., on January 21, employees and members
of the seniority panel commenced picketing the entrance
road to the tipple.
According to Thompson, on January 21 between 6:30
and 7 a.m. he arrived at work in his truck and came
upon approximately 25 pickets who were blocking the
road and forced him to stop. A moment or so later, Vest
and Kincaid approached and Kincaid assertedly instruct-
ed Thompson to tell his boss that Thompson was not
going to work an that location. However, after Thomp-
son assertedly told Kincaid that he had a job to do and
had to get through, the latter relented and instructed the
pickets to back up and make way for Thompson to pass.
Although it is undisputed that picketing commenced in
the morning of January 21, Kincaid, Gross, Lafferty, and
other witnesses on behalf of the General Counsel denied
that the pickets at any time blocked ingress to Plateau's
tipple.
Around noon, January 21, Williams called Gross be-
cause of the picketing and canceled the scheduled meet-
ing with Saunders at the District office. However, the
next day, January 22, at approximately 10 a.m., Williams
telephoned Saunders directly and asked whether he
PLATEAU COAL SALES
would meet with him and Graybeal at the District office
to discuss the situation at Plateau's tipple and Saunders
agreed to meet with them that day. Essentially what oc-
curred at the meeting on January 22 in the District office
is not disputed. Graybeal did most of the talking and he
voiced a number of the concerns which he and Williams
had expressed on earlier occasions to union representa-
tives regarding the Company's obligations to pay hospi-
talization and black lung benefits under the National Bi-
tuminous Coal Wage Agreement of 1981. During the
course of the session, Graybeal disclosed that three of
the five men selected from the seniority panel had failed
their physical examinations but intimated that he would
hire them if they would be reexamined. According to
Saunders, neither Graybeal nor Williams would identify
the doctor and, in such circumstances, Saunders did not
deem it appropriate to order any of these individuals to
take another physical Saunders also refused to go over
the contract line by line in order to satisfy Graybeal's
and Williams' objections. At the end of the meeting
Saunders indicated that Plateau could not operate with-
out union help, to which Graybeal took issue, promising
to use "armed guards," if necessary.
That same day (January 22), International Organizer
Young visited the picket line and obtained signed union
authorization cards from 14 of the 15 employees who
had been employed by Summerlee Coal at the time it
ceased operations (G.C. Exhs. 7(a)-(o)).6
On January 23, Marshall and Lafferty, both engaged in
picketing, accepted Graybeal's invitation to accompany
him around the tipple to see for themselves the work
that was being performed at the facility. Lafferty rode to
the tipple in the same car with Graybeal, and Marshall
got into his own car and followed. According to Laf-
ferty and Marshall, on that occasion Graybeal noted cer-
tain terms and conditions of employment at Plateau if
they worked nonunion and sounded them out for their
reaction Marshall testified, for example, that Graybeal
promised to start employees off with six graduated vaca-
tion days which would increase in number as they con-
tinued to work for the Company. Graybeal also asserted-
ly made reference to the individuals who failed the phys-
ical examination, that he would be willing to sign a con-
tract if those who failed were reexamined, and telling
Lafferty that they need not be reexamined if they
worked nonunion. Although Graybeal conceded inviting
Marshall and Lafferty to accompany him around the
tipple to examine for themselves the temporary work
that was being performed at that time, he denied discuss-
ing the Union, physical examination, or any terms or
conditions of employment.
It is undisputed that on January 25 Graybeal was in-
volved in a scuffle with pickets Marshall, Lafferty, and
Rodes. However the degree of involvement, on the part
of each of them, as well as the overall circumstances, is
in conflict. According to Graybeal, on the occasion in
question he arrived at the tipple complex about 7 a.m.
6 The General Counsel contends that Plateau , as "successor," is obli-
gated to recognize and bargain with the Union as the presumed majority
representative or, alternatively , as the actual representative of its employ-
ees as established by signed union authorization cards
1157
and saw approximately 20 to 25 pickets, some of whom
were standing in the road and some just off the road.
None of them carried any signs although picket signs
were hanging from a tree and some were in car win-
dows. In any event, Graybeal did not experience any dif-
ficulty driving through the picket line on his way to the
tipple. At approximately 8 a.m. someone (unidentified)
told Graybeal that some coal trucks had arrived down
the road and the pickets were not letting them pass
through. Graybeal testified that he proceeded down the
road to the problem area where he observed approxi-
mately eight trucks. Among the pickets he recognized on
that occasion were Vest, Kincaid, Marshall, Lafferty,
and Dave Fontana. He noticed International Organizer
Gross engaged in conversation with Williams and Gray-
beal walked over. Graybeal testified that he heard Gross
tell Williams that he would permit the trucks to go
through this time, but not again. According to Gross, he
had a conversation with Graybeal in the presence of
Fontana where he asked Graybeal to sign the contract so
the men could return to work and Graybeal assertedly
responded only if they agreed to work nonunion. In any
event, it is undisputed that Graybeal led the coal trucks
through the picket line to the tipple where the coal was
dumped. There, Graybeal remained until approximately
11 a.m. when it came to his attention that approximately
12 trucks had arrived but were not passing through the
picket line. Graybeal spoke to each of the drivers, but
they refused to go through the picket line.?
Graybeal spotted a T&C Coal Company truck owned
by him, and asked the driver if he would take the truck
up to the tipple and dump the load but the driver refused
to cross the picket line. According to Graybeal, he then
got into the truck (a Brockway) and started moving
when he observed Lafferty pull his car out into the road
partially blocking it, the front of the vehicle facing the
tipple. Graybeal then backed up his Brockway and ma-
neuvered the truck so that he could skirt the obstruction
and drive directly to the tipple when Vest's pickup
truck, driven by Kincaid, pulled out in front of him com-
pletely blocking the access road to the tipple. The vehi-
cles were lined up diagonally across the road nose to
nose and linked by cables ostensibly to "lump" Lafferty's
car. Graybeal testified that Williams, who had been noti-
fied that trucks were not getting through, had now ar-
7 The only truckdriver to testify regarding the events of January 25
was Gene Broyles According to Broyles, he was under the impression
based on what he had heard on television that the strike was merely in-
formational, but was told by Kinard and Gross that the activity at the
picket line was a union-backed strike and in this regard , Kincaid showed
Broyles one of the panel recall letters Broyles overheard Williams ask
Gross for permission to let the trucks dump the coal and Gross assented
The pickets cleared the road and Broyles ' truck, as well as the other
trucks, passed through and proceeded to the tipple where the loads were
dumped Broyles remained at the tipple for approximately 3 hours when
he got back into his truck and proceeded down the access road on his
way out of the facility when he assertedly witnessed the scuffle involving
Graybeal and the pickets Broyles, as well as Williams, substantially cor-
roborates the version of the scuffle provided by Graybeal Broyles also
testified that he was told on January 21 by one of the pickets that al-
though he would be permitted to make a delivery on that occasion, they
told him not to come back He also testified that, on that occasion, there
were approximately 25 pickets in the access road preventing any truck
from getting through without making physical contact with the pickets
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rived at the scene. The two owners assessed the situation
and they decided that Graybeal should get his camera to
photograph what was unfolding. Thus, Graybeal went to
his truck and got his Polaroid camera. He then walked
over to where the two vehicles were stationed in the
road and snapped a few pictures (see G.C. Exh. B and
C.P. Exhs. 1 and 2). According to Graybeal, with cor-
roboration from Williams and Broyles,8 he was attacked
first by Rodes and a moment later by Lafferty and Mar-
shall, plummeting to the ground where he remained
briefly until he heard someone holler "That's enough."
Graybeal testified that during the melee Rodes first
broke the camera strap which was around his neck and
then freed the camera from Graybeal's grasp, throwing it
aside. As Graybeal stood up, Marshall assertedly took
another swing at him which Graybeal managed to duck.
About the time the scuffle ended, the sheriff and the
state police arrived and directed everyone to clear the
highway. Graybeal got into his coal truck and started to
drive to the tipple and, as he passed Rodes, Graybeal
looked at him and remarked, "Oh boy, I'll remember
you for this." Rodes then jumped up on the running
board of the truck and asked Graybeal to repeat what he
said and the latter did so. It is undisputed that Rodes
reached inside the window and began swinging at Gray-
beal when Chief Deputy David Brown of the Fayette
County sheriff department immediately climbed up on
the running board and pulled Rodes off.
The account provided by the General Counsel's wit-
nesses regarding the initial scuffle is vastly different.
With regard to the second encounter involving Rodes
and Graybeal, the only material dispute is the language
used by Graybeal as he slowly drove by Rodes. Accord-
ing to Rodes and other witnesses on behalf of the Gener-
al Counsel, including Chief Deputy Brown, Graybeal
pointed to Rodes and threatened, "I'll get you, you son-
of-a-bitch." With regard to the initial scuffle, Kincaid,
Rodes, and Marshall testified that Graybeal swung at
Rodes first with his camera and that the latter was
merely trying to stop Graybeal from photographing him.
It is undisputed that Rodes asked Graybeal not to take
his picture. In any event, according to them, after physi-
cal contact was made, Kincaid sent Marshall over to
break up the altercation. Marshall testified that as he at-
tempted to separate Rodes and Graybeal, the latter
smacked him and he , in turn , swung but missed hitting
Graybeal. Lafferty testified with corroboration that he
did not swing at Graybeal at all but was bumped or
tripped while Graybeal and Rodes were wrestling and
they all fell to the ground. These witnesses not only pro-
vided a different version of the scuffle but also testified
contrary to the Company's witnesses whether the truck
driven by Graybeal had sufficient room to maneuver
around Lafferty's car and pickup truck to get up the
tipple thereby avoiding the scuffle which occurred mo-
ments later. Chief Deputy Brown testified that in his
a Broyles testified that at that time he was on his way out of the facility
but was blocked by Lafferty's car and pickup truck
opinion there was enough space for Graybeal's coal
truck to pass through.9
Respondent Plateau contends that Rodes , Lafferty, and
Marshall forfeited any rights to reinstatement under Sec-
tion 8(a)(3) which they might otherwise be entitled to by
virtue of assaulting Graybeal, a principal owner. t ° Al-
though there are no allegations that the Union was en-
gaged in picket line misconduct subsequent to January
25, it is noted that the parties met in the judge's cham-
bers on January 26 in the circuit court of Fayette
County regarding an injunction over the picketing.
Gross, Young, and Saunders met with Graybeal and Wil-
liams on that occasion. The participants discussed, inter
alia, Dr. Honrado's findings regarding the physical con-
dition of Vest, Lafferty, and Fry and for the first time
provided the doctor's reports. The union representatives
took issue with Williams and Graybeal with regard to
the doctor's findings and whether these individuals were
physically able to perform the work for which they ap-
plied. At some point the discussion shifted to the execu-
tion of the contract, and Graybeal agreed to sign if the
agreement could be postdated to permit the Company to
complete repairs. The union representatives refused at
that time but soon after that Young telephoned Williams
and indicated that the Union would agree to execute a
postdated contract. At the time of the trial the parties
had not yet executed a contract nor had Plateau hired
any new employees.
B. Discussion and Conclusions
1. The successorship issue
The General Counsel contends that Respondent Em-
ployer is a "successor" to Summerlee Coal, that as such
it succeeded to Summerlee Coal's obligation to recognize
and bargain with the Union, and that its failure to do so
violated Section 8(a)(5) and (1) of the Act. According to
the General Counsel and the Charging Union, Respond-
ent Plateau qualifies as a "successor" because it operates
at the same location with the same equipment to produce
the same product as the predecessor company, Summer-
lee Coal, while using substantially the same supervision
and committing itself to hiring its employees from the
same labor pool. It is now well settled that when the em-
ploying industry remains substantially the same (as is al-
leged to be the situation herein) and the new company's
work force is comprised of a majority of the former
company's employees, the new company is deemed to be
a "successor" for the purpose of recognizing and bar-
gaining with the predecessor's employees' collective-bar-
gaining representative NLRB Y. Burns Security Services,
9 The record disclosed that Chief Deputy Brown, inter alia, has known
Rodes for approximately 20 years On the other hand the record also dis-
closed that Broyles who corroborated the testimony of Williams and
Graybeal, inter ails, became the manager of a racetrack owned by Pla-
teau's owners 6 weeks before In assessing the overall credibility of
Brown and Broyles , as well as other witnesses , their relationships to the
principal parties, as will be discussed more fully, infra , have been consid-
ered
10 It is alleged that Local 6046 and the International violated Sec
8(b)(1)(A) by blocking ingress to the tipple and for the physical attack on
Graybea! at or near the picket line
PLATEAU COAL SALES
406 U.S. 272 ( 1972) Respondent Plateau , however, has
placed in issue whether the employing industry under its
operations remained substantially the same and relying
on Howard Johnson Co. Y. Hotel & Restaurant Employees,
417 U.S. 249, 262-263 (1974), denied that it is under any
obligation to hire Summerlee Coal's employees as al-
leged.
In the instant case I find , for reasons discussed more
fully, infra , that Respondent Plateau unlawfully refused
to employ former Summerlee Coal employees in viola-
tion of Section 8(a)(3) as alleged and these employees
would have comprised the new company 's initial hourly
work force at the time it commenced operations. How-
ever , in order to treat Respondent Plateau as a "succes-
sor" the case now turns on the ultimate issue whether
the employing industry has remained substantially the
same . See Georgetown Stainless Mfg. Corp, 198 NLRB
234 (1972), C.J.B. Industries, 250 NLRB 1433 ( 1980);
Border Steel Rolling Mills, 204 NLRB 814 (1973). In
making this critical determination , the Board considers
such factors as (1) whether there has been a substantial
continuity of the same operations , (2) whether the new
employer uses the same plant ; (3) whether it has the
same or substantially the same work force ; (4) whether
the same jobs exist under the same working conditions;
(5) whether it employs the same supervisors ; (6) whether
it used the same machinery , equipment , and methods of
production , and (7) whether it manufactures the same
product or offers the same services. Georgetown Stainless
Mfg. Corp., supra at 236 ; Border Steel Rolling Mills, supra
at 821
In applying the aforenoted factors to the instant case,
the record disclosed considerable evidence tending to
support and militate against a finding that the employing
industry remained substantially the same . Thus , in sup-
port of the General Counsel's case, the record disclosed
that Respondent Plateau is engaged in the business of
buying , loading , and selling bituminous coal at the same
tipple facility with essentially the same equipment as
used by the previous leaseholder , Summerlee Coal Fur-
ther , the coal loaded by Respondent Plateau goes
through a crusher into railroad cars for shipment as had
been done by Summerlee Coal whether it is raw coal or
coal processed through the preparation plant. It is also
noted that Tamory, a mining company owned by the
principals of Respondent Plateau , had been a major cus-
tomer of both companies.
Still further , the record discloses that the employees
employed by Summerlee Coal have the requisite skills to
perform the work at Respondent Plateau. As the oper-
ations under Summerlee Coal were diversified (it also
operated the preparation plant), the employees per-
formed a number of different tasks and were qualified to
perform each other's job. As noted above, the General
Counsel contends , and I find for reasons discussed , infra,
that Williams and Graybeal had committed themselves to
the labor pool at Summerlee Coal as the source for their
own complement of employees. Also noted is the fact
that Kenneth Thompson, the day-shift foreman employed
by Summerlee Coal, was hired to be the superintendent
at Respondent Plateau
1159
Although the aforenoted factors are not inconsequen-
tial, the record discloses other factors tending to militate
against any finding that the employing industry under
Respondent Plateau remained substantially the same.
Thus, it is noted that Summerlee Coal was engaged pri-
marily in the operation of a preparation plant where the
coal was washed or cleaned to eliminate impurities. On
the other hand , Respondent Plateau has not operated the
preparation plant nor does the record disclose any con-
crete evidence that it intends to do so in the foreseeable
future . In this regard , I find that the General Counsel's
assertion in her brief that Respondent Plateau acquired
the tipple mainly because of the preparation plant is not
supported by the record
The record disclosed that Graybeal and Williams
owned a number of coal companies , including Tamory,
which companies were serviced by Philpot for loading
purposes and when that company went bankrupt, Gray-
beal and Williams began a search for another coal load-
ing company . Summerlee Coal performed services for
Tamory over a 2-week period in August 1981. As noted
previously , Summerlee Coal also experienced financial
difficulties (as had Philpot ) and was compelled to shut
down and go out of business . Williams and Graybeal de-
cided that they would do their own loading and their
search for an appropriate facility came to a choice of
two locations : one located in Carlisle, West Virginia, and
the other located in Summerlee, West Virginia. The prin-
cipal difference between the two facilities was that the
Summerlee site already had a preparation plant which
had some potential use should Graybeal and Williams
decide some time in the future to involve themselves in
the cleaning process rather than loading coal exclusively
at the tipple facility . Thus, I find , contrary to the Gener-
al Counsel , that the main reason for purchasing the tipple
in Summerlee was not to acquire a preparation plant as
contended by the General Counsel , but rather it was this
feature which made the facility in Summerlee more at-
tractive than the location in Carlisle In any event, the
record disclosed and I find that the principal reason for
purchasing the complex in Summerlee was for Graybeal
and Williams to acquire a loading facility to service their
several companies . Although over 90 percent of the coal
processed by Summerlee Coal went through its prepara-
tion plant and the remainder loaded as raw coal, 100 per-
cent of Respondent Plateau's coal is intended to be
crushed and loaded as raw coal and the preparation plant
is not used at all.
The record also discloses that while on one hand Sum-
merlee Coal during its approximately 10 months of exist-
ence serviced a number of companies , including Tamory,
Respondent Plateau was set up to service companies
principally owned by Williams and Graybeal , including
Tamory . Insofar as Tamory is concerned , it is noted that
although Summerlee Coal had a contract to load some
19,000 tons of coal for Tamory, the work performed
covered only a 2 -week period. Significantly , none of Ta-
mory's coal under the contract with Summerlee Coal
went through the preparation plant . Further , there is no
evidence that Summerlee Coal loaded raw coal which
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remained in that form for any company other than
Tamory while it operated the tipple.
Other differences involve fewer shifts, use of only 2
percent of Summerlee Coal's equipment, a greatly re-
duced hourly work force, and the retention of only one
of four supervisors. For example, at the time of the shut-
down, Summerlee Coal was operating on a two-shift
basis employing approximately 16 hourly unit employees
with a supervisory staff consisting of Joe Hunnicutt,
president; Richard Dillon, superintendent; Charles
Prather and Kenneth Thompson, day-shift foremen. The
Company also employed two nonunit employees, one
classified as a car tagger and the other as the night
watchman. On the other hand it appears that Respondent
Plateau intended to hire only five hourly employees (the
alleged discriminatees), although it agreed to use the
Summerlee Coal seniority panel for additional employees
as needed. However, on the state of this record, it is
only an exercise in speculation to attempt to ascertain
what will comprise a representative employee comple-
ment for Respondent Plateau. With regard to the super-
visory staff employed by Summerlee Coal, the new com-
pany retained only Kenneth Thompson. Moreover,
noting that it is not contended that Respondent Plateau is
under any obligation to honor the 1981 Bituminous Coal,
it cannot be determined whether the small group of
Summerlee Coal employees Respondent Plateau commit-
ted itself to retain will be working under similar terms
and conditions of employment which they had under the
previous company.
Still further, it is noted that Respondent Plateau did
not make any contractual arrangement with Summerlee
Coal in acquiring the property. Rather, Respondent Pla-
teau acquired a lease from Mine Management, a noncoal
operating company. As noted previously, Summerlee
Coal laid off its employees about November 6, 1981, and
only caretaking functions were performed over the next
several weeks to completely shut down the Company.
Although Respondent Plateau acquired the lease on De-
cember 19, 1981, it was not until the following January
20 when it attempted for the first time to load coal at its
newly acquired tipple. Thus there was approximately a
2-1/2-month hiatus from the time Summerlee laid off its
hourly employees until the new company commenced
operations. The Board has also considered the hiatus in
operations as one of the many factors in assessing the
nature and character of the employing industry. See, e.g.,
Gladding Corp., 192 NLRB 200 fn. 2 (1971) (over 2-
month hiatus); Diamond National Corp., 133 NLRB 268
(1961) (nearly 2-month hiatus); Georgetown Stainless Mfg.
Corp., supra (3-week hiatus).
Although the record disclosed certain common factors
shared by the two enterprises, I find that it is premature
to characterize Respondent Plateau as a "successor" for
collective-bargaining purposes. As noted above, it cannot
be determined with any reasonable degree of certainty
what the normal complement of employees will be and
what terms and conditions of employment will apply.
Under all the circumstances, noting particularly that I
have found that the two companies perform substantially
different services for different customers, I find that the
General Counsel has failed to establish by a preponder-
ance of the credible evidence that the employing indus-
try under Respondent Plateau has remained substantially
the same as it existed under Summerlee Coal. In short, I
find that Respondent Plateau does not qualify as a "suc-
cessor" as alleged. Accordingly I shall dismiss this alle-
gation. I t
2. The 8(a)(3) and (1) allegations
a. Credibility resolutions
The 8(a)(3) and ( 1) allegations turn largely on credibil-
ity resolutions. Vest, Lafferty, and Marshall testified,
inter alia , that Graybeal offered them 25 cents an hour
more than union scale and better fringe benefits if they
agreed to work nonunion . Graybeal, on the other hand,
admitted making such an offer to Vest but not to Mar-
shall and Lafferty. Noting that Graybeal admittedly
made an offer to Vest, I find it highly likely that he
made similar offers to Marshall and Lafferty, particularly
as he was so inclined and, as the record disclosed, he had
the opportunity.
The opportunity arose on January 21 (as testified by
Graybeal) or January 23 (as testified by Lafferty and
Marshall), soon after the picketing began, when Gray-
beal admittedly invited Lafferty and Marshall to leave
the picket area and accompany him around the tipple fa-
cility to see for themselves that only salaried personnel
were then working. According to Lafferty and/or Mar-
shall (at times Graybeal spoke to them separately), Gray-
beat offered, inter alia, a graduate vacation plan starting
with 6 vacation days and hospitalization benefits and to
pay them for a full day's work if they agreed to work
nonunion. Further, they testified that Graybeal made ref-
erence to their physical examinations and, according to
Lafferty, Graybeal told him that if the men agreed to
work nonunion, they would not have to be reexamined.
According to Vest, Thompson conveyed the same mes-
sage when the latter phoned him on January 11, some 30
to 40 minutes after Vest met with Graybeal and the
latter had urged him to work nonunion. Vest asserted
that he learned from Thompson for the first time that the
Company was contending that three of the men had
failed their examinations.
' i As noted previously , the General Counsel and the Charging Union
contend alternatively that a bargaining order is appropriate under Gissel
Although approximately 14 of the l5 employees employed by Summerlee
Coal at the time it ceased operations signed authorization cards to be rep-
resented by the Union vis-a -vis Plateau , only 5 of these individuals (the
alleged discnminatees) are found to be employees of that company Fur-
ther , the uncontroverted and credited testimony disclosed that extensive
and costly repairs over a 5- or 6 -week period are necessary for Respond-
ent Plateau to become operational , although I find as will be discussed,
infra, that the five discnminatees would have performed some work on
January 20 As Respondent Plateau is not a "successor employer" or
fully operational and, as the normal complement of employees cannot be
determined, I find, without more , that the Charging Union has not estab-
lished its exclusive representative status Moreover as the record dis-
closed that Respondent Plateau has not yet hired any other hourly em-
ployees, and noting that the discnminatees have long supported union ac-
tivities, including the strike and picketing , and that one of them is union
president, I am persuaded that the traditional remedies are available to
effectuate the purposes of the Act Thus, I find that a bargaining order
under Gissel concepts, in the circumstances of this case , is also not war-
ranted Cf Greengate Mall, 209 NLRB 37 (1974)
PLATEAU COAL SALES 1161
Graybeal denied saying anything to Lafferty and Mar-
shall about their physical examinations as does Thomp-
son with regard to Vest. Thompson incredibly asserted
that he did not know the results of the examinations even
as he testified. Thompson, however, also admitted that
he phoned Vest under Graybeal's instructions to arrange
a meeting to discuss working for Respondent Plateau on
a nonunion basis. In these circumstances, I find it entirely
consistent and likely that Graybeal would continue to
press for a nonunion arrangement, as testified by Vest,
Lafferty , and Marshall.
Although Lafferty, Marshall, and particularly Vest
had some difficulty expressing themselves, I attribute this
to an inability to articulate rather than any lack of
candor. In assessing credibility, I note particularly that
Vest's account of Graybeal's efforts to induce him and
other ex-Summerlee Coal employees to work nonunion
was corroborated by Thompson and Graybeal in most
material respects . In view of the foregoing, consideration
of the witnesses' demeanor, and, as I have found the tes-
timony of Graybeal and Thompson implausible and unre-
liable in other critical areas, I credit Vest, Marshall, and
Lafferty over them in all material respects when their
testimony is in conflict.
I also found Williams (Respondent Plateau's other
principal) unreliable as a witness. Williams, inter alia,
was equivocal and implausible and his testimony did not
smack of candor, particularly when dealing with Dr.
Honrado's reports for reasons discussed fully, infra. It is
also noted that at times, Williams' testimony was at odds
with Graybeal's. For example, Williams testified that he
did not see Dr. Honrado's reports (dated January 7) until
Monday, January 11, and asserted that Graybeal did not
see the reports until January 12. Williams explained that
he knew that he had not seen the reports earlier because
over the weekend he had asked his wife, an RN, how
long it takes to complete such reports and have them de-
livered. Graybeal, on the other hand, testified that he
saw the reports about January 7.
The date is particularly important because, as noted
above, the credited testimony discloses that, Vest was
told on January 11 that three of the men failed their phy-
sicals and on that same date Graybeal urged Vest to
work nonunion. Insofar as discounting Williams' recol-
lection, it is noted that he testified without corroboration
from his wife and that there was no apparent reason for
him to make any inquiry at that time. Thus when Wil-
liams was asked whether he discussed time factors with
the doctor or whether time was an important consider-
ation on any other basis, he responded, "No, I just won-
dered where they [reports] were at."
Still further in assessing Williams' overall credibility, it
is noted that his testimony did not fully comport with his
affidavit in connection with the allegations of union mis-
conduct on the picket line. Thus in the affidavit given by
Williams , he noted, inter alia, that Graybeal 's camera
was "stomped on" by some of the pickets. Williams, on
cross-examination , acknowledged , however , that he did
not see the camera "stomped" but thrown in the road at
which time he turned away to look after Graybeal.
In short, Williams' testimony does not inspire confi-
dence in its accuracy and I reject it when in conflicts
with other witnesses.
b. Inducements to work nonunion and refusal to hire
It is undisputed that both Williams and Graybeal in-
tended to hire employees from the seniority panel as ex-
isted under Summerlee Coal and that they communicated
this intention to union representatives. It is also undis-
puted that pursuant to that intention, Respondent Plateau
sent letters of recall to five former Summerlee Coal em-
ployees whose names were at the top of the seniority
panel. However, Respondent Plateau argues,that as the
tipple was not yet operational at the time of the hearing
in that substantial repairs had to be undertaken, and as it
had not yet hired any other hourly unit employees, any
finding of discrimination in hiring is premature and un-
warranted. Moreover, Respondent Plateau denies that its
objections to hiring ex-Summerlee Coal employees were
predicated on their union adherence, but rather to their
physical condition, and the company's obligations under
the 1981 National Bituminous Coal Wage Agreement
dealing with this subject. However, the record does not
support these contentions, but rather persuades me that
Respondent Plateau refused to employ former Summer-
lee Coal employees because they refused to abandon the
Union.
It is undisputed that representatives of Respondent
Plateau had at least explored with Vest the conditions of
working for that Company under nonunion conditions.
Thus, Superintendent Thompson testified that he phoned
Vest under Graybeal's instructions and arranged a meet-
ing between Vest and Graybeal on January 11, which
Thompson attended because Graybeal wanted to talk
"about the possibility they wanted to work non-union."
Graybeal testified that at the meeting he sounded Vest
out as follows: `
I asked Mr. Vest if they would consider or be inter-
ested in working non-union and giving them 25t
more an hour plus all benefits that the UMW of-
fered, along with 25Q a ton to be put in escrow, that
would be divided equally among the employees
once a year.
It is inescapable that Respondent Plateau, through
Graybeal's own lips, conveyed an offer of certain terms
and conditions of employment as an inducement to Vest
and other Summerlee Coal employees to work for the
Company without the Union. Such an inducement is
clearly an unwarranted intrusion with the Section 7
rights of applicants and/or employees and violative of
Section 8(a)(1) of the Act. Greengate Mall, supra at 39.
The credited testimony disclosed that although Vest
made it clear that the former Summerlee Coal employees
were unwilling to abandon the Union, Graybeal made
similar inducements on January 23 to Lafferty and Mar-
shall but was unable to get them to agree to work non-
union.
Having found for reasons discussed previously that
Respondent Plateau was not "a successor ," it was not
therefore , under normal circumstances, required to hire
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees of the former company, Summerlee Coal
NLRB v. Burns Security Services, 406 U.S. 272, 280-281
fn. 5 (1972); Howard Johnson Co. v. Hotel & Restaurant
Employees, 417 U.S. 249, 262 (1974). However, Respond-
ent Plateau, having undertaken to commit itself to hire
these employees, could not then renege because of their
failure to abandon the Union. Thus the Supreme Court
in Howard Johnson Co. v. Hotel & Restaurant Employees,
417 U S. 249 at fn. 8 noted as follows.
Of course , it is an unfair labor practice for an em-
ployer to discriminate in hiring or retention of em-
ployees on the basis of union membership or activi-
ty under § 8 (3) of the National Labor Relations
Act. Thus, a new owner could not refuse to hire
the employees of his predecessor solely because
they were union members or to avoid having to
recognize the union , [Citations omitted.]
I am persuaded that but for the refusal of Vest, Laf-
ferty, and Marshall to embrace Graybeal's offer to work
only on a nonunion basis, they, as well as Fry and
Taylor, who were also selected from the seniority panel,
would have been retained, and that Respondent Plateau
contravened the precepts set forth above in Howard
Johnson. I therefore reject, for reasons discussed below,
Respondent Plateau's objections to the physical condi-
tion of these employees and the financial obligation im-
posed on the Company under the 1981 Bituminous Coal
contract. Thus , it is noted, inter alia , that the terms and
conditions of the initial contract even if the new compa-
ny is found to be a successor are negotiable, unless the
contract was assumed by the new company which is not
alleged to have occurred. NLRB v. Burns Security Serv-
ices, supra. In these circumstances, Respondent Plateau's
concerns over the terms and conditions of the union con-
tract are not material.
With regard to Respondent Plateau's objections to the
physical condition of Vest, Lafferty, and Fry, the evi-
dence is strong and convincing that Respondent Plateau
would have retained them and they would have been
employed and working in January had they agreed to
work nonunion Williams conceded that he told Vest in
December that he would need five employees in January
to begin to load coal and that he agreed to be bound by
the Summerlee Coal seniority panel. It is undisputed that
pursuant thereto Superintendent Thompson had phoned
Vest, Fry, Lafferty, Marshall, and Taylor and instructed
them to report to Dr. Honrado on January 4 for a physi-
cal examination before reporting for work. Within a few
days each of the aforenamed employees received letters
signed by Williams , advising them that they are "being
recalled by Plateau Coal Sales , Inc. . . according to se-
niority in reference to panel you and your fellow em-
ployees filled out when laid off on 12/ 15/81 at Summer-
lee Coal Processing Plant." While the written assessment
of Dr. Honrado, dated January 7, disclosed that each of
the five individuals he examined were physically able to
perform the work for which they applied, Williams and
Graybeal rejected this assessment at least insofar as they
demanded that Vest, Lafferty, and Fry be reexamined.
In discounting the concern expressed by Williams and
Graybeal over the physical condition of the aforenamed
individuals as pretextual, it is noted, inter alia, Marshall
and Taylor were admittedly without physical limitations
and they have not been employed nor have they been in-
vited to report to work Further, although Williams as-
serted that Dr. Honrado was not informed fully of the
physical conditions under which these applicants would
be employed, it is noted that it was Williams who select-
ed Dr. Honrado, and yet Williams admittedly made no
effort to contact the doctor after he received the reports.
Williams, when asked why he did not contact Dr. Hon-
rado to advise him fully of the physical demands and in-
quire whether his recommendations would still be the
same, responded, "I just didn't. I didn't know if I should
do that or not." According to Graybeal, he and Williams
did not consult with Dr Honrado after reading his re-
ports because "it just didn't occur to us." In the circum-
stances of this case, I find it more likely that Williams
and Graybeal were not interested in Dr. Honrado's opin-
ion but rather they insisted on reexamination to further
delay dealing with the Union. Thus, Williams testified
that he did not consult with his attorney because "I
wanted them to have another physical with the Union
involved " Significantly, the credited testimony disclosed
that Graybeal told Lafferty that he and the other men se-
lected from the panel need not be reexamined if they
agreed to work nonunion.
Still further, it is noted that neither Graybeal nor Wil-
liams consulted with Superintendent Thompson on this
subject although they knew that Thompson had super-
vised ex-Summerlee Coal employees and was familiar
with the demands of the job and physical capabilities of
Vest, Lafferty, and Fry. As the record also revealed that
neither Williams nor Graybeal had owned or managed a
tipple previously, I find the failure to consult with
Thompson tends to further undermine the genuineness of
their asserted concern over the physical condition of
Vest, Lafferty, and Fry.
Under the foregoing circumstances and the entire
record, I am convinced and I find that Respondent Pla-
teau would have employed all five applicants on January
20 when it first loaded raw coal had they agreed to work
nonunion. As noted previously, the applicants, as well as
other members of the Union, commenced a strike or
picketing on January 21 a day after they learned that Re-
spondent Plateau had begun to load coal albeit, with
nonunit personnel. In the circumstances of this case, the
conclusion is inescapable and I find that the aforenoted
activity was caused in part and prolonged by the failure
of Respondent Plateau to hire former ex-Summerlee Coal
employees as alleged. In sum, I find that Respondent
Plateau refused to hire Vest, Fry, Lafferty, Marshall, and
Taylor because it wanted to avoid recognizing the Union
and they, as well as the other individuals, on the seniori-
ty panel were all union members.
Accordingly, I find that Respondent Plateau violated
Section 8(a)(3) and (1) of the Act 12 See , e.g., Potters
12 Respondent Plateau contends that Lafferty and Marshall forfeited
any rights to reinstatement based on their involvement in a scuffle with
Continued
PLATEAU COAL SALES
Chalet Drug, 233 NLRB 15, 19-20 (1977); Greengate
Mail, supra. Further, I find that Respondent Plateau, by
conveying to employees that they need not be reexam-
ined if they agreed to work nonunion and by promising
wage increases and fringe benefits to induce them to
work nonunion, independently violated Section 8(a)(1) of
the Act as alleged.
3. The 8(b)(l)(A) allegations
It is alleged that the Respondent Unions established
and maintained a picket line at Plateau's facility and in
connection therewith engaged in certain misconduct in
violation of Section 8(b)(1)(A). In essence, the alleged
picket line misconduct consisted of blocking and impend-
ing ingress to Plateau's tipple to Superintendant Thomp-
son and others; threatening Gene (Tommy) Broyles, an
independent trucker on January 21 and 25 not to return
and make further deliveries; and assaulting Graybeal on
two occasions on January 25. The first assault involved
Rodes, Lafferty, and Marshall and the second, occurring
minutes later, involved only Rodes.
Although it is undisputed that the Respondent Unions
established and maintained a picket line at Plateau's facil-
ity at all material times, the Respondent Unions denied
making threats and blocking or impeding access to the
tipple to anyone. Thus, the dispute is largely factual and
turns on the credibility of the witnesses.
As noted previously, I have found the testimony of
Thompson, Graybeal, and Williams largely unreliable.
Broyles was the only other witness supportive of the
General Counsel and the Charging Employer with
regard to the alleged picket line misconduct. According
to the General Counsel, "In a case where virtually every
witness was a principal, Broyles comes closest to the dis-
interestedness that is the earmark of reliability." Or, as
stated by counsel for the Charging Employer in his brief,
"There was only one neutral witness-Broyles."
I find, contrary to the General Counsel and the Charg-
ing Employer, that Broyles' interests are aligned with
those of Williams and Graybeal and while this fact by
itself clearly does not serve as a legally sufficient basis to
reject his testimony, I find under all the circumstances,
including my observation of his demeanor, that Broyles
did not testify credibly. It is noted, for example, that
Broyles has frequently hauled coal as an independent
trucker for several companies owned by Williams and
Graybeal including Tamory. Thus during the most
recent month alone, Broyles hauled coal for Tamory on
13 or 14 different days. Further, Broyles on cross-exami-
nation revealed that approximately 6 weeks before he
testified, he became manager of a racetrack over which
Williams and Graybeal at that time had acquired owner-
ship. In these circumstances, Broyles hardly qualifies as a
"neutral" in terms of assessing his credibility.
Broyles testified that on Thursday morning, January
21, while he and his brother were making a delivery for
Tamory to the Plateau facility, they came upon 25 pick-
ets including Kincaid, Rodes, and Fry who were block-
ing the access road to the tipple. According to Broyles,
Graybea ! For reasons discussed infra , I find that this contention is with-
out ment
1163
although the pickets had not locked arms, they had posi-
tioned themselves in the road making it "impossible" for
his vehicle to pass "without running over somebody."
Broyles testified that someone, whom he later learned
was Tim Adams, told him and his brother that they
"would be allowed to dump [this] load but not to come
back the rest of the day."
I credit the denial by Kincaid and other union wit-
nesses that they attempted to block trucks from making
deliveries. It is noted for example that while Broyles'
brother was in the same truck at the time the road was
allegedly blocked and the threat was made , his brother
did not provide corroborative testimony, nor was any
reason advanced for the failure to call him as a witness.
Insofar as Broyles ascribed the threat to Adams, it is un-
certain that Adams was engaged in picketing and the
record, at best, is ambiguous concerning both his identity
and whether a coercive threat was made. According to
Broyles' unsupported testimony, he later learned the
name while watching television and a reporter identified
the person as Adams.
Assuming arguendo, the disputed words were uttered,
I am unpersuaded that they reach the level of coercion
within the meaning of Section 8(b)(1)(A), particularly
when made at the primary situs and in the absence of
any credited testimony that someone else was coercively
threatened. In this connection, it is noted that Broyles
acknowledged that a truck in front of the one he was
driving went through the picket line without stopping.
Further, although at least five trucks crossed the picket
line on January 21, the only other witness to testify that
he was blocked was Thompson and I found him to be an
incredible witness previously.
According to Thompson, he drove up to the picket
line around 6:30 to 7 a.m. when "somebody [unidentified]
said, `you are not working here today."' Thompson testi-
fied that Kincaid then approached his vehicle and, in es-
sence , delivered the same message , to wit, "Tell your
boss you are not working here." According to Thomp-
son, after he appealed to Kincaid, the latter relented and
directed the pickets to let him through. Thompson testi-
fied that overall he was delayed 5 to 10 minutes. Kincaid
denied that he or any of the pickets blocked or impeded
ingress to the tipple. According to Kincaid, Thompson
stopped his vehicle on his own to inquire concerning the
purpose of the picketing and, in turn, Kincaid asked him
why the men who had received recall letters were not
yet working to which Thompson said he did not know.
Kincaid said nothing else-happened and Thompson went
through the picket line to the tipple. I credit Kincaid's
version over Thompson' s account as more plausible and
because I have not found Thompson otherwise to be a
credible witness . In short I am unpersuaded that the
General Counsel has established by a preponderance of
the credible evidence that Respondent Unions blocked or
impeded ingress to the tipple or coercively threatened
anyone on January 21 as alleged.
Nor do I find on the basis of credited testimony that
Respondent Unions attempted to block and impede in-
gress to the Plateau tipple on January 25 as alleged. Ac-
cording to Williams , he was present and participated in a
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
brief discussion with Kincaid, Gross, and Broyles the
morning of January 25 at which time the union repre-
sentatives reminded Broyles that they told him on Thurs-
day that he would not be permitted to dump coal then
and they would not now permit him to unload. Further,
Williams testified that he then negotiated with Gross and
Kincaid and they finally relented to let Broyles and the
other trucks through but only after Williams agreed not
to receive further deliveries. Gross and Kincaid denied
making any threat which appears to be confirmed by the
absence of any mention of a threat on that occasion in
the testimony of Broyles.'s Although Broyles testified to
the conversation, it centered on whether the strike was
union backed. According to Broyles, after watching the
news on television , reading the newspaper, and talking to
people, he concluded that the picketing was merely "in-
formative" and therefore drove to the Plateau jobsite on
January 25, when he came on the union representatives.
Kincaid showed Broyles his panel recall letter and in-
formed him that the strike was union backed. Broyles
was also asked to join the Union and said he would think
about it. It is also noted although Williams and Graybeal
asserted that around 11:30 a.m., there were some 13
other trucks denied access to the tipple by union miscon-
duct, none of these drivers testified. Significantly, Gray-
beal spoke to the drivers and they merely told him that
they did not want to go through the picket line.' 4 In
these circumstances, it is just as reasonable to conclude
that the drivers honored the picket line as it is to con-
clude that they were blocked, impeded, or threatened as
alleged . In any event the General Counsel has not car-
ried her burden.
The alleged union misconduct now turns on the two
assaults on Graybeal on January 25. It is undisputed that
Rodes, Lafferty, and Marshall were involved in a brief
scuffle with Graybeal. However, as noted previously, the
degree of involvement and the overall circumstances are
contested. On the occasion in question , Lafferty's car
and Vest's pickup truck (driven by Kincaid) were parked
in the access road to the tipple, facing each other and
hooked up with a set of jumper cables, ostensibly to start
Lafferty's car. According to Graybeal, Williams, and
Broyles, the aforenoted vehicles were situated in a
manner which made it impossible for other vehicles to
pass without making contact. This was disputed by Kin-
caid, Gross, Lafferty, and other witnesses including
Chief Deputy Brown of the sheriff's department. Chief
Deputy Brown testified credibly that when he arrived at
the scene he drove around the two vehicles and parked
as "[t]here was enough space that we could pass com-
fortably."'b (See B . R. Exh. 3, B. Jt. Exh. 1(e).) He also
13 Williams also testified without corroboration that Gross was in-
volved in blocking access to the tipple to Broyles on January 21 Broyles
made no reference to Gross with regard to the January 21 incident and
Gross denied that he was at the picket line site on that occasion I find
Williams ' unsupported testimony in this area a further reason for assessing
his overall testimony as unreliable
14 One of the drivers is employed by T & C Company which is owned
by Gmybeal.
i s In assessing Brown 's credibility, it is noted , inter alia , that while he
has long known Rodes (Rodes graduated from the same high school sev-
eral years later), they are not close friends As Brown was responsive, ap-
opined that a coal truck had enough space to pass. In
any event, I am not persuaded that Lafferty's car and the
pickup truck were linked for any illegitimate purpose
such as blocking the road, rather than to get Lafferty's
car started.
Graybeal testified that while he was taking pictures of
the two vehicles blocking the road, he was rushed by
Rodes, Lafferty, and Marshall and with their fists flying,
they knocked him to the ground, and he lost his camera.
He testified further that while he was on the ground, he
heard someone say, "That's enough" and, as they got off
him, Graybeal straightened up, and Marshall swung at
him again but missed.
The Respondent Unions contend that Graybeal pro-
voked the incident. Thus, Kincaid, Lafferty, Marshall,
and other union witnesses testified that Graybeal drove
his Brockway in an intimidating manner as if he were
bent on smashing the two vehicles but stopped just short,
backed up, and repeated his charge two or three times.
According to these witnesses, Graybeal could have ma-
neuvered his truck around and driven to the tipple with-
out much difficulty. I credit this latter view which Chief
Deputy Brown's testimony tends to confirm. Respondent
Unions also note Graybeal's actions in brazenly walking
up to the vehicles and pickets to snap pictures, particu-
larly in a context where the pickets were discriminatorily
denied employment at that site.
According to Rodes, Graybeal struck him with his
camera when Rodes tried to prevent Graybeal from
taking his picture and, in the ensuing struggle for the
camera, both of them fell to the ground. Although I did
not find Graybeal credible otherwise , I was not im-
pressed with Rodes as a witness either and I find it
highly unlikely that Graybeal would have made the ini-
tial contact noting that Rodes is much taller and much
stronger. In any event, Rodes improperly confiscated
Graybeal's camera and was in possession of it at the time
of the trial.
On the other hand, I reject Graybeal's testimony that
he was also assaulted by Lafferty and Marshall. With
regard to Lafferty, it is noted, inter alia, that he appeared
benign in manner and much older (59 years old) and
smaller (5 feet 4 inches, 135 pounds) than Graybeal.
Thus Lafferty testified credibly that the surface that day
was slick due to the cold weather and that he tripped
when bumped by Rodes and Graybeal, who were then
wrestling, and all three of them fell to the ground. I
credit Lafferty's denial of any effort by him to hit Gray-
beal. Similarly, I credit the testimony of Kincaid, Laf-
ferty, and Marshall that Marshall got involved only
when Kincaid directed him to break up the scuffle and
that Graybeal resisted and even swung at Marshall who
returned the favor but missed.
The scuffle lasted approximately 30 seconds, as testi-
fied to by Broyles or up to 2 minutes, as testified to by
Graybeal. It is undisputed that Graybeal did not get
hurt. As testified to by Broyles, "There was a lot of arm
peared forthright, and impressed me with his overall demeanor, I find
that the law officer testified credibly
PLATEAU COAL SALES
flailing and that kind of stuff. I never saw a good solid
punch land "
Under all the circumstances, noting that Rodes is not
alleged to be a union agent , that admitted Union Agent
Kincaid took immediate steps to break up the scuffle,
and that there is no finding that union representatives
and/or agents engaged in other picket line misconduct, I
find that the General Counsel has not established by
credible evidence union responsibility within the mean-
ing of Section 8(b)(1)(A) as alleged. Cf. Teamsters Local
810 (Russell Plastics), 235 NLRB 40, 45-46 (1978).
The credited testimony disclosed that after the police
arrived, Graybeal got into his Brockway and, as he start-
ed to drive away, he pointed at Rodes and threatened,
"I'll get you, you son of a bitch." It is undisputed that
Roder then jumped on the running board of the Brock-
way, reached inside the window, and was swinging at
Graybeal when pulled off the truck by Chief Deputy
Brown For the same reasons noted above, I find Rodes'
conduct, however reprehensible, cannot be imputed to
the Respondent Unions 1 6 In sum , the General Counsel
has not carried her burden with regard to these allega-
tions. Accordingly, I find that the Respondent Unions
did not violate Section 8(b)(1)(A) as alleged and I shall
dismiss these allegations in their entirety
CONCLUSIONS OF LAW
1. Respondent Plateau Coal Sales, Inc. (Respondent
Plateau or the Respondent Employer) is now and at all
times material herein has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Respondent Plateau is not a "successor employer"
to Summerlee Coal Processing, Inc. (Summerlee Coal)
within the meaning of the Act.
3 International Union, United Mine Workers of Amer-
ica; District 29, United Mine Workers of America; and
Local Union No. 6046, United Mine Workers of Amer-
ica (the Unions or the Respondent Unions) are labor or-
ganizations within the meaning of Section 2(5) of the
Act
4. Respondent Plateau has not at any time material
herein obligated itself to recognize the Unions, either
collectively or independently, as the exclusive collective-
bargaining representative for any of its employees
5 Respondent Plateau has not violated Section 8(a)(5)
of the Act as alleged in the complaint.
6. By refusing to employ former Summerlee Coal em-
ployees Edgar Fry, Dennis Lafferty, Clarence Marshall,
William Taylor, and Homer Vest, Respondent Plateau
has engaged in unfair labor practices within the meaning
of Section 8(a)(3) and (1) of the Act.
7. By offering former Summerlee Coal employees
better wages and fringe benefits and by telling them that
it would disregard the fact that they failed their physical
examinations, if they agreed to work nonunion, Respond-
ent Plateau has independently violated Section 8(a)(1) of
the Act
16 On the other hand , Rodes, by confiscating Graybeal's camera and
other misconduct, has disqualified himself as a potential employee of Pla-
teau Coal, Inc See the remedy section above
1165
8. The strike or picketing engaged in by certain of Re-
spondent Plateau's employees was caused and prolonged
by unfair labor practices found herein as alleged
9. The Respondent Unions have not violated Section
8(b)(1)(A) of the Act, as alleged.
10. The unfair labor practices found herein are unfair
labor practices within the meaning of the Act.
THE REMEDY
Having found that Respondent Plateau has engaged in
certain unfair labor practices, I shall recommend that it
be required to cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies
of the Act.
Having found that Respondent Plateau would have
employed Edgar Fry, Dennis Lafferty, Clarence Mar-
shall, Homer Vest, and William Taylor had they agreed
to work without being represented by District 29 and/or
its constituent local, Local Union No. 6046, United Mine
Workers of America (UMW), and that it violated Sec-
tion 8 (a)(3) and (1) of the Act, I shall recommend, inter
alia, a make-whole remedy.
Thus, I shall recommend that Respondent Plateau be
ordered to offer Fry, Lafferty, Marshall, Taylor, and
Vest immediate and full reinstatement to the positions for
which they applied 17 (see G.C. Exhs. 6(a)-(e) or, if those
positions are not available, to substantially equivalent po-
sitions, without prejudice to their seniority or other
rights and privileges, and make them whole for any loss
of pay as a result of the discrimination against them, i e in
accordance with the formula set forth in F W. Wool-
worth Co., 90 NLRB 289 (1950), with interest thereon
paid in the manner prescribed in Florida Steel Corp., 231
NLRB 651 (1977). See generally Isis Plumbing Co., 138
NLRB 716 (1962).
Further, having found that Respondent Plateau had
committed itself to the Summerlee Coal seniority panel
as the source for its labor pool and then reneging in vio-
lation of Section 8(a)(3) of the Act, I shall recommend
that it be ordered to resort to the seniority panel in
hiring employees as needed. 19
17 The record disclosed that William Taylor was examined by Dr. Hon-
rado and on January 7 declared "physically fit for the job he is apply-
ing " (See G C Exh 6(b)) Superintendent Thompson testified that he
phoned Taylor to confirm a rumor that he was not returning to work and
the latter told him that it was true However, as there is no showing that
Taylor was offered employment and/or asked to report to work after his
examination , I do not find that Thompson's uncorroborated testimony
constitutes a waiver to reinstatement by Taylor
11 As noted previously , I have found that the aforenamed discnmina-
tees would have performed some work on January 20 and for some un-
specified time thereafter while nonunit personnel were performing their
functions The record also disclosed that extensive repairs had to be un-
dertaken in order for the tipple to become fully operational It appears
that these matters can be entertained at the compliance stage in arriving
at the make-whole remedy
19 With regard to Thomas Rodes, the credited testimony disclosed that
he physically assaulted Graybeal and confiscated his camera I find that
his actions were disproportionate to any provocation by Graybeal and un-
warranted Accordingly, I recommend that this provision not apply to
Rodes
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inasmuch as Respondent Plateau has engaged in seri- cease and desist from infringing in any other manner on
ous misconduct demonstrating a general disregard for the the rights guaranteed its employees by Section 7 of the
employees ' fundamental rights , I find it necessary to rec- Act. See Hickmott Foods, 242 NLRB 1357 (1979).
ommend a broad order requiring Respondent Plateau to [Recommended Order omitted from publication.]