Power, Inc.

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 599 (N.L.R.B. 1993)

599
311 NLRB No. 63
POWER, INC.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The General Counsel has excepted to the judge’s failure to find
violations of Sec. 8(a)(1) based on Supervisor Prohaska’s statements
in early January 1989 that General Foreman Dipko was ‘‘gunning’’
for an employee because of his union activities. We find it unneces-
sary to pass on this issue because the finding of such additional vio-
lations would be cumulative and would not affect the Order.
2 In his decision the judge concluded that challenges to the ballots
of the 13 laid-off employees should be overruled and counted. In his
recommended Order, however, the judge ordered the election set
aside. Accordingly, we shall modify the judge’s recommended Order
by severing the representation case and remanding it to the Regional
Director to open and count the ballots and to take further appropriate
action.
3 Member Oviatt agrees that the Respondent violated Sec. 8(a)(5)
and (1) by its unilateral subcontracting. He also agrees that a restora-
tion remedy for the operation and maintenance of the rock trucks
and graders is appropriate. In Member Oviatt’s view, however, the
situation regarding the Respondent’s decision to subcontract the
drilling operations and sell its drilling rigs is clearly distinguishable.
As found by the judge dismissing the 8(a)(3) allegations concerning
subcontracting, the Respondent had begun a reorganization program
Continued
Power, Inc. and United Mine Workers of America
and United Mine Workers of America, Region
1 and United Mine Workers of America and
Tire Tec. Inc. and Operators Unlimited, Inc.,
Single Employer, Party in Interest and United
Mine Workers of America, AFL–CIO. Cases 6–
CA–21680, 6–CA–21713, 6–CA–22177, 6–CA–
22303, 6–CA–22555, 6–CA–22663, 6–CA–22854,
6–CA–23185, and 6–RC–10137
May 28, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On May 6, 1992, Administrative Law Judge Irwin
H. Socoloff issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, and the
General Counsel and the Charging Party filed cross-ex-
ceptions and supporting briefs. Thereafter, the General
Counsel filed an answering brief to the Respondent’s
exceptions, the Respondent filed a consolidated an-
swering brief and a reply brief to the General Coun-
sel’s answering brief, and the General Counsel filed a
reply brief to the Respondent’s consolidated answering
brief.
The National Labor Relations Board has delegated
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 briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt his recommended Order as modi-
fied.2
1. In its exceptions, the Respondent contends, inter
alia, that it had no duty to bargain with the Union over
its decision to subcontract the operation and mainte-
nance of the rock trucks and graders, or its decision to
subcontract its drilling operation, because these deci-
sions were not mandatory subjects of bargaining under
the test set forth in Dubuque Packing Co., 303 NLRB
386 (1991). We find no merit in this contention.
As we explained in our subsequent decision in
Torrington Industries, 307 NLRB 809 (1992), the Du-
buque test does not apply in cases factually similar to
Fibreboard Corp. v. NLRB, 379 U.S. 203 (1964), ‘‘in
which virtually all that is changed through the subcon-
tracting is the identity of the employees doing the
work.’’ In such cases, there is no need to apply any
further test in order to determine whether the decision
is subject to the statutory duty to bargain. The Su-
preme Court has already determined that it is.
Torrington Industries is controlling here. The deci-
sion to subcontract the operation and maintenance of
the rock trucks and graders involved essentially the
substitution of nonunit employees for unit employees
to perform the same work using equipment of the Re-
spondent that the unit employees could have operated.
There was no change in the scope and direction of the
enterprise. Indeed, this decision presents an even
stronger case for finding a duty to bargain than the de-
cision at issue in Torrington Industries, because here
the subcontracting decision was based primarily on a
desire to reduce labor costs.
Similarly, the decision to subcontract the drilling op-
eration also involved the substitution of nonunit em-
ployees for those of the Respondent. Although the Re-
spondent sold off four of its drilling rigs (two to the
subcontractor and two to other companies), we find
that the sale of the drilling rigs was incidental to the
decision to subcontract, especially in light of the testi-
mony of the Respondent’s treasurer, Reed, that the
subcontracting decision was based primarily on a sav-
ings in labor costs. In addition, the Respondent contin-
ued to mine, process, and sell coal; it did not substan-
tially change its production process. Cf. Eltec Corp.,
286 NLRB 890, 897–898 (1987), enfd. 870 F.2d 1112
(6th Cir. 1989) (employer’s breach of its obligation to
bargain over its decision to transfer and subcontract its
parts assembly operation ceased as of the time it sold
the parts assembly equipment, as that action resulted in
a fundamental alteration of the business).
Based on the foregoing, we find, in agreement with
the judge, that the Respondent violated Section 8(a)(5)
and (1) by unilaterally subcontracting unit work, name-
ly, the rock truck, grader, and drilling operations, and
permanently laying off unit employees.3
600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in early 1988, well before any union activity, designed to bring its
business into profitability, had closed departments, subcontracted
portions of its operations, and laid off affected employees. The sub-
contracting at issue here was similarly motivated. Unlike the mainte-
nance and operation of rock trucks, as to which the Respondent re-
tained the ownership, the subcontracting out of the drilling oper-
ations here also entailed the sale of its equipment. The judge offered
no explanation for his remedy requiring Respondent to fully restore
both operations, and none is offered here. In the context of the ongo-
ing attempt to bring the business into profitability, Member Oviatt
deems an order requiring the Respondent to reinstate its own drilling
operations—with the concomitant capital expenditures—while bar-
gaining over their cessation to be unduly burdensome. Membr Oviatt
therefore finds a restoration remedy as to the drilling operations to
be inappropriate here. Mountaineer Petroleum, 301 NLRB 801
(1991).
4 Although the record does show that the Respondent subsequently
sold its drilling rigs, the record does not show that purchasing new
rigs would be unduly burdensome (a proposition which our dis-
senting colleague assumes) or even that the purchase, as opposed to
the lease, of new drilling rigs would be necessary to restore the sta-
tus quo ante.
We note that under the Board’s decision in Lear Siegler, supra at
862, ‘‘both the Respondent and the General Counsel will have every
opportunity at the compliance stage to introduce any evidence that
may be pertinent to the remedy, provided of course that such evi-
dence was not available prior to the unfair labor practice hearing.’’ 5 Ryan International is the parent company of the Respondent.
2. Contrary to our dissenting colleague, we agree
with the judge that an order requiring the Respondent
to reinstate its drilling operations, as well as the oper-
ation and maintenance of its grader and trucks, is an
appropriate remedy for the Respondent’s unilateral
subcontracting of that work. Remedial orders in gen-
eral are designed so far as possible to restore the status
quo ante. Franks v. Bowman Transportation Co., 424
U.S. 747, 769 (1975). When bargaining unit work has
unilaterally and unlawfully been removed, whether by
subcontracting or relocation, it is appropriate to order
restoration of the work to the bargaining unit, unless
the employer has demonstrated that restoration would
be unduly burdensome. Fibreboard Corp. v. NLRB,
379 U.S. 203, 216 (1964); Lear Siegler, Inc., 295
NLRB 857, 861 (1989). In this case there is no record
evidence, and the Respondent does not contend, that
restoration of the drilling work would be unduly bur-
densome. Cf. Mountaineer Petroleum, supra at 801–
802, 816 (restoration of the subcontracted work would
be unduly burdensome where the record contained sub-
stantial evidence supporting that finding).4
3. We agree with the judge that a bargaining order
to remedy the Respondent’s misconduct is necessary
and warranted under NLRB v. Gissel Packing Co., 395
U.S. 575 (1969). The Respondent’s conduct, including
repeated threats of plant closure and the unlawful lay-
off of 13 employees, struck at the core of the employ-
ees’ organizational efforts. The seriousness of the un-
lawful conduct is underscored by the widespread
threats made by numerous management officials to
nearly all the unit employees and by the layoff of a
substantial part of the unit. We are convinced that the
Respondent’s misconduct involves the type of severe
and pervasive coercion that has lingering effects and
that is not readily dispelled by time. Accordingly, we
agree with the judge that an election would not reliably
reflect genuine, uncoerced employee sentiment.
We also find, contrary to the Respondent’s asser-
tions, that neither the passage of time nor the turnover
in management is a relevant consideration when as-
sessing the propriety of issuing a Gissel bargaining
order. See F & R Meat Co., 296 NLRB 759 (1989).
Further, even if we considered these factors, they
would not require a different result. Passage of time,
by itself, does not necessarily erase the lingering ef-
fects of such egregious and widespread unfair labor
practices. That the two management officials who en-
gaged in the largest number of offenses, General Fore-
man Dipko and Supervisor Prohaska, may no longer be
employed by the Respondent would not dissipate the
effects of the unfair labor practices, which were, as
found by the judge, engaged in by many officials, from
the highest level executives to the lowest level super-
visors. Dipko and Prohaska were not the only ones to
commit unfair labor practices. Threats were directly
made by Production Manager Bratton, Ryan Inter-
national’s5 board chairman, Hotson, and Attorney
Bosch; Treasurer Reed (the second highest official on
the site) stated that he intended ‘‘to get rid’’ of union
supporters; Reed and President Armstrong selected the
employees who were unlawfully laid off; and Wash
Plant Manager Andrews unlawfully refused to rehire
former employee Dillen. Furthermore, to withhold an
otherwise necessary bargaining order in these cir-
cumstances would reward the Respondent for its own
wrongdoing.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Power, Inc., Osceola Mills, Pennsylvania, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
Substitute the following for the final paragraph of
the recommended Order.
‘‘IT IS FURTHER ORDERED that Case 6–RC–10137 is
severed and remanded to the Regional Director for the
purpose of opening and counting the challenged ballots
of John Acey Sr., John Acey Jr., Robert Adams,
Charles Berg, Larry Blake, Roy Demko, Jesse Howe,
Elmer Laird, Ken Noel, Keith Petrosky, Ron Petrosky
Jr., Terry Petrosky, and Dave Stephens. Thereafter, the
Regional Director shall prepare a revised tally of bal-
lots. If the tally shows that the Union has won the
election, the Regional Director shall issue a certifi-
601POWER, INC.
1 General Counsel’s unopposed motion to correct the transcript in
the Power I cases is granted.
2 Respondent’s motion to dismiss certain allegations of unfair labor
practice conduct in violation of Sec. 8(a)(1) of the Act, as contained
in amendments to the consolidated complaint in the Power I cases,
as time-barred under Sec. 10(b) of the Act, is denied. The allegations
contained in the amendments are entirely and closely related to the
matters contained in the timely filed charges, arising, as they do,
from the same sequence of events and involving similar conduct dur-
ing the same period of time and, also, the same legal theory.
cation of representative; if it shows that the Union has
lost the election, the Regional Director shall set aside
the election and dismiss the petition.’’
Patricia J. Scott, Esq., for the General Counsel.
Frederick J. Bosch, Esq., of Philadelphia, Pennsylvania, for
the Respondent Employer.
William B. Manion, Esq., of Washington, Pennsylvania, for
the Charging Party Petitioner.
DECISION
STATEMENT OF THE CASE
IRWIN H. SOCOLOFF, Administrative Law Judge. On
charges dated March 20 and 30 and October 17, 1989, and
amendments thereto, filed by United Mine Workers of Amer-
ica (the Union), against Power, Inc. (the Respondent), the
General Counsel of the National Labor Relations Board, by
the Regional Director for Region 6, issued multiple com-
plaints which were thereafter amended and consolidated for
hearing. The complaints allege violations by Respondent of
Sections 8(a)(1), (3), and (5) and 2(6) and (7) of the National
Labor Relations Act (the Act). Respondent, by its answers,
denied the commission of any unfair labor practices. On July
11, 1989, the Acting Regional Director for Region 6 issued
an order consolidating Case 6–RC–10137 with the unfair
labor practice cases for purposes of hearing, ruling, and deci-
sion with respect to the representation case issues raised by
certain objections to conduct affecting the results of the elec-
tion, and by certain challenged ballots.
Pursuant to notice, trial was held before me in Clearfield,
Pennsylvania, on January 8, 9, 10, and 11, February 12, 13,
14, and 15, and March 20 and 21, 1990, at which all parties
were represented by counsel and were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence. Thereafter, the parties filed briefs
which have been duly considered. These cases, 6–CA–21680,
6–CA–21713, 6–CA–22177, and 6–RC–10137, shall be re-
ferred to herein as the Power I cases.
On further charges filed by the Union against Power on
December 11, 1989, March 21, April 26, July 20, and No-
vember 30, 1990, and amendments thereto, the Regional Di-
rector for Region 6 issued additional complaints, which were
thereafter amended and consolidated for hearing, alleging
violations by Respondent of Sections 8(a)(1), (3), (4), and (5)
and 2(6) and (7) of the Act. Respondent, by its answers, de-
nied the commission of any unfair labor practices.
Pursuant to notice, trial in Cases 6–CA–22303, 6–CA–
22555, 6–CA–22663, 6–CA–22854, and 6–CA–23185 (the
Power II cases) was held before me in Clearfield, Pennsyl-
vania, on May 22 and December 4 and 5, 1990, and April
16 and 17, 1991, at which all parties were, again, represented
by counsel and afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to introduce evi-
dence. Following close of hearing in the Power II cases, all
parties filed briefs which have been duly considered.
On the entire record in these cases,1 and from my observa-
tions of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Pennsylvania corporation, has a facility and
place of business in Osceola Mills, Pennsylvania, where it is
engaged in the business of strip mining and preparation of
coal. During the months ending February 28, 1989, a rep-
resentative period, Respondent, in the course and conduct of
its business operations, purchased and received products,
goods, and materials valued in excess of $50,000, directly
from points located outside the Commonwealth of Pennsyl-
vania, for use within the Commonwealth. I find that Re-
spondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES2
A. Background
In 1978, Power became a wholly owned subsidiary of
Derek Crouch, plc, a diversified United Kingdom-based mul-
tinational corporation with coal and noncoal business activi-
ties. In 1987, Crouch and Power were acquired by another
United Kingdom company, Ryan International. Ryan dis-
posed of Crouch’s noncoal divisions and, thereafter, held
Crouch Mining, Ltd., a British coal company, and Power, a
Pennsylvania coal company, as separate, wholly owned sub-
sidiaries. On February 14, 1989, Disger, plc, a corporation
formed by members of the Ryan International management
group, effectuated a buyout of Ryan.
At least since 1978, Power has operated at a loss. In Sep-
tember 1987, after Ryan acquired Crouch and Power, Cris
Rotson, Ryan’s chairman of the board, sent Crouch’s man-
aging director, Les Nicholson, from Scotland to Pennsyl-
vania, to study the Power operation. Thereafter, Hotson and
Nicholson transferred Crouch Mining’s Dan Armstrong to
Power with a view toward instituting British mining methods
in an effort to improve Power’s performance. Armstrong
joined Power in November 1987, as vice president. He be-
came president of Power in March 1988.
Armstrong looked to reduce overheard costs, and increase
coal production through institution of operating efficiencies,
in order to stem the tide of losses. As a result of the oper-
ational changes which he instituted, layoffs at Power oc-
curred throughout 1988. In March, due to an increase in
wash plant efficiency, three wash plant employees were per-
manently laid off. In May, 16 field operation employees, in-
cluding equipment operators, were laid off. Two of those em-
ployees were later recalled. In June, nine more field oper-
ation employees were laid off. Power laid off its production
602 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The factfindings contained herein are based on a composite of
the documentary and testimonial evidence introduced at trial. Where
necessary to do so, in order to resolve significant testimonial con-
flict, credibility resolutions have been set forth, infra.
manager in August and, in October, it discontinued its blast-
ing department, subcontracted the work, and permanently
laid off six employees. On December 12, Respondent perma-
nently closed its dry plant after instituting operational
changes. As a result, four dry plant employees were perma-
nently laid off. Power did not replace the employees laid off
in 1988, nor, with one exception, did it replace the employ-
ees who resigned or were discharged during the course of
that year. Likewise, employees who resigned or were dis-
charged early in 1989 were not replaced. Despite the reduc-
tions in force, and operational changes, Power, which had
suffered a net operating loss in 1987 of $235,000, saw its
losses dramatically increase, for 1988, to $2 million. In the
first 4 months of 1989, Power lost an additional $1 million.
The continuing losses caused a cash-flow crisis.
For purposes of layoff and recall, Power utilizes a job
classification seniority system, that is, selection of employees
for layoff and recall is based on relative seniority within each
job classification. Length of service with the Company is not
considered. This method of selection was utilized throughout
1988, and caused considerable disgruntlement amount the
Power employees, many of whom viewed it as arbitrary. In-
deed, it was in response to the layoff of senior employees
on December 12 that is, senior in terms of service time with
Power, that employees John Acey Jr., his brother, Mike
Acey, and Elmer Baird initiated contact with the Union, in
mid-December and began an organizing drive.
In the Power I cases, the General Counsel contends that
Respondent, in reaction to the organizing drive, threatened
employees with closure and other reprisals in violation of
Section 8(a)(1) of the Act; shut down all field operations for
1 week, in violation of Section 8(a)(3); temporarily laid off
John Acey Jr. in violation of Section 8(a)(3); permanently
laid off 13 known union supporters, in violation of Section
8(a)(3); warned employees that exercise of their Section 7
rights would be futile and would result in job loss, in viola-
tion of Section 8(a)(1), and refused to recognize and bargain
with the Union in violation of Section 8(a)(5). Respondent
denies that it unlawfully threatened employees and asserts
that its layoff actions were taken for lawful business reasons.
Respondent further denies that it was under any obligation to
recognize and bargain with the Union.
In the Power II cases, the General Counsel contends that
Respondent engaged in further violations of Section 8(a)(1);
violated Section 8(a)(3), (4), and (5) of the Act by subcon-
tracting portions of its operations, and laying off employees,
for discriminatory reasons and without notifying and bar-
gaining with the Union; violated Section 8(a)(3) of the Act
by refusing to reinstate an unfair labor practice striker; dis-
ciplined and discharged employees in violation of Section
8(a)(3) and refused to rehire former employees in further vio-
lation of Section 8(a)(3). Respondent denies that it engaged
in conduct violative of Section 8(a)(1) and asserts that its ac-
tions with regarding to hiring, discipline, discharge, and sub-
contracting of operations were lawful.
B. Facts and Conclusions3
1. The Power I cases
a. The organizing drive and the alleged
unlawful threats
Acey Jr. first contacted the Union on December 13, 1988,
and, thereafter, he and fellow employees Mike Acey, Elmer
Laird, and Ken Noel met with the Union’s International rep-
resentative, Lou Maholic, on December 22. At that meeting,
the employees were supplied with cards authorizing union
representation and were instructed with respect to the solici-
tation of signatures. In the period December 22, 1988, to
January 6, 1989, the date on which the representation petition
was filed in Case 6–RC–10137, and the date on which Re-
spondent received a mailgram from the Union demanding
recognition. In a unit of 74, 41 employees signed authoriza-
tion cards. After that date, and during the month of January,
seven more employees signed cards.
Employee Robert Dillen testified that, in late December
1988, the production equipment manager, William Bratton,
an acknowledged statutory supervisor, told the maintenance
department employees that there would be people coming
around to ask them to sign union cards. Bratton told the em-
ployees that, if the Union were put in at Power, the Com-
pany would close. Dillen’s testimony in this regard was cor-
roborated by employee Allen Legrand. Bratton, in his testi-
mony, denied that he threatened the employees with closure
if they opted for union representation. As Legrand and, par-
ticularly, Dillen, impressed me as honest and forthright wit-
nesses, and as Bratton, considering his demeanor as a wit-
ness, did not so impress me, I find that the conversation oc-
curred as described by the employees. I conclude that, in late
December 1988, Respondent, through Bratton, threatened
employees that Respondent would close its operations if the
employees selected the Union to represent them, in violation
of Section 8(a)(1) of the Act.
Employee Ken Noel testified that, late in December, he
was informed by statutory supervisor Pete Prohaska that Re-
spondent’s general foreman, Larry Dipko, had stated that, if
the Union came in, the Company would shut its doors, buy
coal in Pittsburgh, and run it through Respondent’s wash
plant. Later that day, Noel testified, Dipko confirmed
Prohaska’s statement, telling Noel that England had told
Power that they were going to close the doors at Power if
the employees brought in the Union, buy coal in Pittsburgh,
and run it through the wash plant. Prohaska, in his testimony,
initially denied telling employees that Power would shut
down if the Union came on. He conceded, however, that he
did make such a statement to fellow Supervisor William
Mowe, and that he ‘‘might have’’ also made that statement
to others. Dipko testified that he did not have any conversa-
tions with Noel concerning what would happen if the Union
came in. I found Noel a convincing witness, while Prohaska
testified in a vague manner and displayed an uncertain mem-
ory of events. Dipko did not impress me as a truthful wit-
ness. Based on Noel’s testimony, I conclude that, late in De-
603POWER, INC.
cember 1988, Respondent, through Prohaska and Dipko,
threatened employee Noel that Respondent would close its
operations if the employees opted for union representation, in
violation of Section 8(a)(1) of the Act.
Acey Jr. testified that, on or about January 2, 1989, he re-
ceived a telephone call from Supervisor Prohaska. According
to Acey, Prohaska asked him not to go through with the or-
ganizing drive, as the Company would shut down if the em-
ployees tried to organize. Acey stated that the employees
were too far into it to back out; that it was out of Acey’s
hands and that a representation petition, imminently, would
be filed with the NLRB. Prohaska stated that, probably, they
would all be out of work. During this conversation, or at an
earlier time, Acey asked Prohaska to sign an authorization
card, and Prohaska declined to do so. Prohaska, in his testi-
mony, stated that the telephone conversation with Acey oc-
curred in late December, and not in January. According to
Prohaska, the call was placed by Acey Jr. and, during the
conversation, Acey asked Prohaska to sign a card, and
Prohaska said that he would get back to Acey. About 15
minutes later, Prohaska testified, when he was unable to
reach Acey Jr. by telephone, he called Mike Acey and told
him that he wanted nothing to do with the Union. Prohaska
further testified that he reported the card solicitation matter
to Dipko. I have, previously, found Prohaska an unreliable
witness. Acey Jr., on the other hand, throughout his lengthy
testimony, described events in a detailed, comprehensive, and
believable manner and I found him a thoroughly credible
witness. I accept his version of the telephone conversation
with Prohaska and find that it occurred, as Acey testified, on
or about January 2, 1989. I further find that, during the con-
versation, Prohaska told Acey that the Company would shut
down if the employees tried to organize. I conclude that, by
Prohaska’s remarks, Respondent again threatened the em-
ployees with closure if they sought union representation, in
violation of Section 8(a)(1) of the Act.
According to the uncontradicted and credited testimony of
employee Robert Adams, Dipko, late in 1988, or early in
1989, told Adams and employee Dave Miles that Dipko had
heard that the Union was coming in. Dipko further stated
that, if the Union came in, Power would ship its equipment
back to England, and close down. Based on Adams’ testi-
mony, I find and conclude that Respondent, by Dipko, vio-
lated Section 8(a)(1) of the Act by this further threat of clo-
sure.
Employee Roy Demko testified that, on January 9, 1989,
he had a conversation with General Foreman Dipko. Demko
asked Dipko how things looked for Power as Demko was in-
terested in purchasing a new truck. According to Demko,
Dipko replied, stating that, if the Union came in, they would
shut Power down. Dipko did not testify about this alleged
conversation. He did state, in his testimony, that he did not
talk to any employees about the Union after being so in-
structed, by counsel, sometime in January or February. As
Demko testified in a believable manner, and as Dipko’s testi-
mony, even taken at face value, does not fully amount to a
denial, I credit Demko. I find and conclude that, on January
9, Respondent, by Dipko, violated Section 8(a)(1) of the Act
by threatening an employee with closure if the employees
chose representation by the Union.
According to the uncontradicted and credited testimony of
former employee David Danko, Supervisor Prohaska, in early
January 1989, told Danko to warn his fellow employee, Mike
Acey, to watch his step, as Larry DiPko was gunning for him
because of his union activities. Prohaska, according to the
uncontradicted and credited testimony of Mike Acey, then
delivered that warning to Acey, directly.
Employee Dave Stephens testified that, in mid-January, he
and fellow first-shift employee Robert Ryver were ap-
proached by Dipko. Dipko stated that he did not know what
work the second-shift employees had done the night before,
and that it did not look like they had done anything. Dipko
added that he had heard that the employees were saying that
they did not have to work hard anymore, since the Union
was around. According to Stephens, Dipko then stated that
he, Dipko, would tell Power’s president, Armstrong, that ‘‘he
might as well just close it up and go back to England if the
guys were going to be that way,’’ that is, ‘‘wanted the
Union.’’ Dipko testified that he did not recall such a con-
versation. As Stephens testified in a believable manner, and
as I have previously found Dipko to have been a less than
candid witness, I find that the incident occurred substantially
as described by Stephens. I conclude that, in mid-January, by
General Foreman Dipko, Respondent, in violation of Section
8(a)(1) of the Act, issued a thinly veiled threat of closure in
response to employee union activity.
Theresa Cantolina, who served as Respondent’s office
manager until October 31, 1989, credibly testified that, in
December 1988, or January 1989, Derek Reed, Respondent’s
treasurer and second highest ranking on-site official, told her
that he felt that the instigators of the employee union activity
were employees John Acey Sr., John Acey Jr., and Mike
Acey. Reed said that the Aceys were troublemakers. Also in
that time period, Reed told Cantolina that he would get rid
of the union supporters. Dipko told Cantolina, according to
her testimony, that he would fire Mike Acey because he was
a troublemaker who had instigated the whole union matter.
In July, Crouch’s managing director, Nicholson, told her that
there would never be a union at Power; they would shut it
down before they would let that happen.
On January 24, 1989, the Board conducted a representa-
tion case hearing in Case 6–RC–10137, attended by Re-
spondent’s president, Dan Armstrong. Acey Jr. testified for
the Union. Pursuant to a Decision and Direction of Election
issued by the Board’s Regional Office on February 24, 1989,
an election was scheduled for March 23. On March 10, Re-
spondent laid off 13 known union supporters.
Employee David Farabaugh testified that, on March 21,
1989, Prohaska informed Farabaugh, and fellow employees
Forrest Shepherd, Ken Bratton Jr., and Larry Foster, that
Dipko had stated that, if the Union got in, the 13 employees
laid off on March 10, would return to work and take the jobs
of the employees then working. Prohaska, in his testimony,
stated that he did not recall having had any such conversa-
tion. As Farabaugh impressed me as a truthful witness, and
as I have previously found Prohaska’s testimony unreliable,
I find that that the conversation occurred as described by
Farabaugh. I conclude that, on March 21, Respondent,
through Prohaska, violated Section 8(a)(1) of the Act by
threatening employees with reprisals if they should opt for
union representation.
Also on March 21, Ryan’s chairman of the board, Cris
Hotson, conducted two meetings of employees. Farabaugh,
who attended the early meeting, for the first-shift employees,
604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Coal, which is mined but cannot be processed, is stockpiled—it
cannot he sold. Obviously, to incur the costs of mining such coal
exacerbates the cash-flow problem.
testified that Hotson stated that he expected the employees
to vote ‘‘no’’ and that he, Hotson, would be very upset with
them if they voted ‘‘yes.’’ Referring to the employees laid
off on March 10. Hotson said that they were trying to put
the Company on strike and, further, that they were past his-
tory; they would never be back to work at Power. Prohaska,
who also attended this meeting, did not recall that Hotson
mentioned the 13 laid-off employees. As Prohaska exhibited
a less than clear recollection of the meeting, and as
Farabaugh testified in a detailed and believable manner, I
credit the employee’s version of events at the meeting.
With respect to Hotson’s March 21 meeting, with the sec-
ond-shift employees, employee Jonathan Wisor testified that
Hotson stated that 20 percent of his mines in the United
Kingdom were organized and, in one case, when he was un-
able to reach agreement with the Union, he shut the jobsite
down. Hotson added, according to Wisor’s testimony, that,
eventually, any union would put a company out of business.
Wisor’s testimony was, in material respects, corroborated by
employee Jim Keith. Dipko, who also attended the second
meeting, testified that Hotson asked employees for support.
Dipko did not dispute, specifically, the accounts of the meet-
ing offered by Wisor and Keith.
Wisor and Keith impressed me as truthful witnesses and
I accept their accounts of the second March 21 meeting, as
true. Hotson’s comment, that he had shut down an organized
British minesite when he was unable to reach agreement with
a union, and his further comment that, eventually, any union
would put a company out of business, must be viewed in the
context in which they were uttered. Respondent, since incep-
tion of the employees’ organizing drive, had repeatedly
threatened to close the facility if the employees brought in
the Union. In such a setting, Hotson’s statements reasonably
cannot be viewed as other than a thinly veiled restatement
of the earlier threats. I conclude that Respondent, by Hotson,
on March 21, again threatened the employees with a close
of operations should they select representation by the Union,
in violation of Section 8(a)(1) of the Act.
b. The shutdown of operations for the week, January 3
through 9, 1989
At Respondent’s wash plant, the coal which is extracted
at the Power field sites is cleaned, processed, and readied for
market. In January 1988, Power modified the plant by install-
ing an ITN system, a fine coal recovery system designed to
increase the amount of coal recovered, and enable Power to
salvage coal which, previously, could not be processed. After
the installation, the wash plant operated at low capacity, and
further modifications to the system were required. As this oc-
curred at a time when Power was experiencing a cash flow
problem, it decided to shut down field operations for 2
weeks, and lay off all field employees.4 The wash plant em-
ployees were not laid off; they worked at making repairs and
modifications to the system.
In mid-December 1988, the barrel in the vacuum filter of
the new system failed. It was removed and shipped out for
repair, halting normal wash plant operations. In order to meet
its contractual obligations to sell coal, Power first blended
dry screened coal with that previously run through the wash
plant. Simultaneously, it modified its piping arrangement to
wash coal by utilizing water from surface ponds, with the re-
sultant slurry material placed in an equalization pond. This
process was only effective with certain coals.
Moreover, only a limited amount of slurry could be dis-
charged into the equalization pond without running afoul of
regulations promulgated by the Pennsylvania Department of
Environmental Resources. Power washed coal in this manner
during the last 2 weeks of December, until the equalization
pond was full and it ran out of coal which could be proc-
essed in that way.
Based on the original estimates which it had received,
Power had anticipated that the barrel would be returned by
the end of December. It was not. On the morning of January
3, 1989, Armstrong testified, faced with a cash flow crisis
caused by the huge operating losses sustained in 1988, un-
able to raise funds, uncertain when the vacuum filter barrel
would be returned, unable to process mined coal for market,
Power decided temporarily to shut down all operations in
order to conserve cash. The employees were so advised,
when they reported for work on the morning of January 3,
by General Foreman Dipko and Wash Plant Manager Jeff
Andrews.
Thursday, January 5, was a payday. Some 30 to 40 em-
ployees reported to Respondent’s premises to receive their
checks, and approximately 19 or 20 of them were wearing
union hats. Local television newscasters were present at the
gate, and they conducted an interview with Acey Jr. When
he entered the premises, Acey Jr. told Dipto that TV 10 Ac-
tion News wanted a statement from him, and Dipko said that
he would not make a comment. Dipko told the employees to
report back to work on Monday, January 9, and Respondent
resumed operations on that date. Returning wash plant em-
ployees performed maintenance work for several days and,
then, returned to their normal work on return of the repaired
barrel.
As of January 3, 1989, when the shutdown occurred, the
organizing drive was several weeks old. By the unlawful
statements issued by Supervisors Dipko, Bratton, and
Prohaska, Respondent had demonstrated its awareness of its
employees’ union activities, and its overwhelming antipathy
toward same. The temporary shutdown was sudden, without
warning, and came amid Respondent’s threats permanently to
close operations if the employees brought in the Union.
Nonetheless, I conclude that the January 3 through 9, 1989
shutdown was not in violation of the Act, as Respondent has
shown that it would have taken that action in the absence of
protected activities by its employees. The uncontradicted
record evidence shows that, when Respondent resorted to the
temporary shutdown, it was no longer able to process coal
by alternate means, and was uncertain when the missing bar-
rel would be returned so that it could resume normal wash
plant operations. It faced a cash crisis, caused by the huge
operating losses incurred in 1988, rendering prohibitive the
cost of mining coal which it could not process and sell. Re-
spondent’s actions were consistent with its past practices
which preceded the onset of employee union activities. In
these circumstances, I conclude that the shutdown was
prompted by business concerns not union concerns, and was
not violative of the Act.
605POWER, INC.
5 After investigation, Respondent, on January 12, discharged the
dragline operator, David Danko, the oiler, Mike Acey, and the
lubeman, Rodney Brown Jr., for negligence.
6 In his testimony, Acey contended that two other oilers, not laid
off, were junior to him, namely, Jeff Ralston and Mike Gregg. How-
ever, Ralston worked in a separate oiler classification, while Gregg
was classified as an equipment (dozer) operator.
c. The January 9 temporary layoff of John Acey Jr.
On January 9, 1989, the engine on a 380 B.E. dragline
blew up, rendering it inoperable5 With a dragline used by
employees on two shifts so idled, Power laid off its two most
junior dragline operators, Keith Petrosky and Terry Petrosky,
and its two most junior dragline oilers, Glen McClosky and
John Acey Jr.6 When advised of the layoff by Supervisor
Bratton, Acey Jr. stated that Bratton could tell Power’s presi-
dent, Dan Armstrong, that ‘‘this damn place will be union,
or we’ll get rid of it.’’ Acey Jr. and Terry Petrosky were re-
called to work on January 12.
The General Counsel does not contend that the layoffs of
McClosky and the Petroskys were violative of the Act. In
claiming that the Acey Jr. layoff was for unlawful reasons,
General Counsel points to the overwhelming hostility dis-
played by Respondent toward the union activities of its em-
ployees, in general, and toward the activities of Acey Jr. in
particular. In this connection, I note that it was in this time
period that Treasurer Reed told Office Manager Cantolina
that the Aceys were the instigators of the union activities and
that he, Reed, would get rid of the union supporters. None-
theless, Respondent has shown that the layoffs would have
occurred in the absence of protected activities. The precipi-
tating cause was a sudden and unexpected loss of the use of
equipment. The established system of selection for layoffs,
seniority within the affected job classifications, was utilized.
Acey Jr.’s layoff meaningfully cannot be distinguished from
the concededly lawful layoffs of McClosky and the
Petroskys. I conclude that Respondent did not violate the Act
by its temporary layoff of Acey Jr. on January 12.
d. The permanent layoff of 13 employees on March
10, 1989
Beginning January 9, 1989, many if not most of the field
employees were observed by management officials wearing
and displaying union insignia—hats, buttons, and stickers—
at work. In this connection, Acey Jr., on several occasions,
assisted by employees Larry Blake, Ron Petrosky Jr., and
Dave Farabaugh, was seen by Supervisor William Bratton
passing out those objects, bearing the United Mine Workers
logo, at Power’s gates. Starting March 6, several employees,
including Bob Adams, Ken Noel, and Elmer Laird, placed
signs on the windshields of the vehicles which they drove to
work, seeking support for the Union. On March 8, Acey Jr.,
accompanied by Mike Acey and Larry Blake, hand-delivered
letters to President Armstrong and Treasurer Reed, from the
Union, challenging Power to a preelection debate. On March
10, Respondent permanently laid off 13 employees, in var-
ious job classifications, all of whom had signed union au-
thorization cards—John Acey Sr., John Acey Jr., Robert
Adams, Charles Berg, Larry Blake, Roy Demko, Jesse Howe,
Elmer Laird, Ken Noel, Keith Petrosky, Ron Petrosky Jr.,
Terry Petrosky, and Dave Stephens. There is record evidence
that at least 10 of those employees—Acey Sr., Acey Jr.,
Adams, Blake, Howe, Demko, Laird, Noel, Ron Petrosky Jr.,
and Stephens—wore and/or displayed union insignia at work.
Since inception of the organizing drive, and until the eve
of the March 23 election, Respondent’s officials, from its
highest level executives to its lowest level supervisors, made
clear to the employees that Power would close its operations
if the employees selected the Union to represent them. The
treasurer, Reed, informed Power’s office manager that Re-
spondent would ‘‘get rid of’’ the prounion employees. On
March 10, 2 weeks before the election, 13 employees, all of
them supporters of the Union, were suddenly terminated. In-
cluded in this group were employees whom Respondent
knew were among the leading union activists. To say that the
General Counsel has established a strong prima facie show-
ing of massive unlawful discharges is to understate the case.
Armstrong testified that, late in 1988 and in January and
February 1989, in an effort to turn around an increasingly
unprofitable operation, Respondent, with the assistance of
Crouch Mining and Ryan officials, developed a new mining
plan. Respondent decided to concentrate production in those
areas which offered a better ratio of coal recovered to over-
burden or dirt which had to be removed in order to recover
the coal. It was also decided to introduce new and heavier
equipment and, concurrently, to reduce staff. In this connec-
tion, Armstrong testified, Respondent decided to discontinue
use of its 35- to 50-ton capacity rock trucks, or end dumps,
which were used to haul removed overburden, and to replace
them with rock trucks with a capacity for hauling 100 tons
of material. These new 100-ton rock trucks, which were ob-
tained from Crouch Mining, began arriving on site in January
and February, but were not operational until March. By mid-
February, Respondent had also decided to obtain, through
lease arrangement with Crouch Mining, an O & K shovel,
which has greater dirt removal capacity than a dragline or a
D-Mag, then in use by Respondent. Power did not actually
receive the O & K until mid-May. Between February 28 and
March 2, Armstrong testified, the foregoing plans were final-
ized and, in conjunction therewith, Armstrong was instructed
by British officials to terminate 13 employees, primarily on
the expectation that use of the new and larger equipment
would result in a need for fewer employees. Selection of em-
ployees for dismissal was left to Armstrong, who was as-
sisted in that regard by Reed. Permanently laid-off were one
driller (Demko); two dragline oilers (Acey Jr. and Stephens);
three dozer operators (Laird, Noel, and J. Howe); two loaders
(Berg and Ron Petrosky Jr.); two B.E. dragline operators
(Terry Petrosky and Keith Petrosky) and three 35-to 50-ton
rock truck operators (Acey Sr., Blake, and Adams). In this
latter connection, it is important to note that, until the lay-
offs, Respondent employed eight 35-to 50-ton rock truck op-
erators and, under its new mining plan, it intended to employ
an equal number of operators, eight, to run the 100-ton rock
trucks. However, rather than simply having the eight existing
operators run the new trucks, Power chose to lay off the
three most junior rock truckdrivers (Acey Sr., Blake, and
Adams), and to fill the slots with three employees that it
transferred from the equipment maintenance department be-
cause, Armstrong testified, he wanted the maintenance and
repair ability of those employees. Ostensibly, Respondent
followed the established method of layoff by classification
seniority in effectuating its March 10 action.
606 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent urges that the March 10 layoffs be seen as an
effectuation of an urgently needed new mining plan. It ar-
gues that the timing of the layoffs, 2 weeks before the elec-
tion, was coincidental, as Power needed to take action when
it did. In Respondent’s view, the layoff action was but a con-
tinuation of the layoff program begun in early 1988, and Re-
spondent contends that, as in 1988, it adhered to the principle
of layoff by classification seniority. For the reasons stated
below, I reject Respondent’s argument that the layoffs were
the product of business judgments, uninfluenced by union
considerations, and find and conclude that they occurred in
response to the employees’ organizational activities.
As noted, Respondent’s threat to close its operation if the
employees selected the Union to represent them was repeated
throughout the course of the union campaign. Its second
highest ranking onsite official stated that Power would ‘‘get
rid of’’ the union supporters, and he singled out the Aceys
as the ‘‘instigators’’ of the organizational drive. In these cir-
cumstances, the sudden, massive layoff of 13 union sup-
porters, including the Aceys and others known by Respond-
ent to be particularly active and vocal on behalf of the
Union, 2 weeks before the election, is not easily explained.
Moreover, the new mining plan notwithstanding, Respondent
has not set forth a clear explanation of why it acted when
it did. In this connection, it is significant that the O & K
shovel, one of the key ingredients of the new plan, did not
arrive on site until 2 months after the layoffs.
There are factors in addition to animus and timing that
convince me that the layoffs were unlawfully motivated.
Thus, the record evidence reveals that the process of selec-
tion of employees for layoff, while supposedly governed by
classification seniority, was, in fact, dictated by other consid-
erations. As noted, Respondent chose to lay off three experi-
enced 35-to 50-ton rock truck operators, including Acey Sr.,
and, then, to transfer three employees from the mechanic
classification to the new 100-ton rock truck ‘‘opera-
tor/mechanic’’ classification, assertedly because of the main-
tenance and repair ability of those employees. Yet, the
uncontradicted record evidence establishes that, after the
transfers, which did not occur until April, those employees
worked as drivers, only, and they performed no maintenance
or repair work. In the weeks before the layoff, Respondent
transferred one of its most junior dozer operators, Ken
Bratton Jr., to the position of grader operator, to meet a tem-
porary condition. Bratton, who did not sign an authorization
card, was chosen for the transfer despite the fact that, several
weeks earlier, Dipko had asked the more senior dozer oper-
ator, Laird, if he would accept such a transfer, and Laird had
responded, affirmatively. In his testimony in this proceeding,
Armstrong conceded that one of the considerations in the
Bratton transfer decision was to avoid having to lay him off
as a junior dozer operator. While Laird, thus, remained a
dozer operator, he would still have avoided layoff, under the
classification seniority system, had his classification seniority
date been left in tact. However, immediately prior to the lay-
off, Respondent ‘‘discovered’’ that, for classification senior-
ity purposes, Laird had been credited with time earlier spent
operating a dozer at the tipple, as well as for the time he
spent operating the same piece of equipment in the field. On
this basis, Laird’s classification seniority date was altered,
and he lost service credit for the time spent operating a dozer
at the tipple, despite the lack of difference in the equipment
operated there, and in the field. Had this charge not been
made, Laird, one of the originators of the organizational
drive, would have maintained his standing as a senior dozer
operator, and would not have been laid off.
There is another important reason to reject Respondent’s
argument that the March 10, 1989 layoffs were but a con-
tinuation of the layoff program begun in 1988. The employ-
ees laid off in 1988 were, uniformly, not replaced. The em-
ployees laid off on March 10, 1989, at least many of them
were, in fact, replaced, beginning the following month. Thus,
starting in April, and continuing through December, when, as
detailed hereinafter, Respondent subcontracted the rock truck
operation, a stream of employees of Crouch Mining, as many
as seven to nine at a time, arrived on site and engaged in
production work, including the operation of the rock trucks,
O & K shovel, dozers, and all of Power’s heavy-duty equip-
ment. While Respondent argues that these individuals were
not replacement workers but, rather, were brought in to
‘‘train’’ Power’s employees on the operation and mainte-
nance of the 100-ton work trucks, and the O & K shovel,
the record is replete with evidence that this is not how they
spent their time. Rather, there is ample record evidence
showing that, what training Power’s employees received with
respect to the new equipment, consumed but a matter of
hours and, for the most part, even that training was not sup-
plied by the British ‘‘visitors’’ who were busily engaged in
production tasks. Indeed, despite Respondent’s contention
that the operation and maintenance of ‘‘new and different’’
pieces of equipment required extensive training of the em-
ployees assigned to those tasks, Respondent, in December,
subcontracted the operation and maintenance of its 100-ton
rock trucks to a business enterprise which had had no pre-
vious experience with that equipment.
In light of Respondent’s repeated threats to close its oper-
ation in response to the employees’ union activities; its stated
intent to rid itself of union adherents; the timing of the per-
manent layoffs of 13 union activists, 2 weeks before the
election; the demonstrated manipulation of the layoff by clas-
sification seniority system and the fact that many of the laid-
off employees were, soon thereafter, replaced, I conclude that
the layoffs occurred for discriminatory reasons and that Re-
spondent has entirely failed to show that the layoffs would
have occurred in the absence of protected activities. I con-
clude that the 13 employees permanently laid off on March
10, 1989, were laid off, or discharged, because of their union
activities, in violation of Section 8(a)(3) of the Act.
e. Further alleged unlawful threats
Armstrong left Power and returned to the United Kingdom
several days after the March 10 layoffs. In April, Crouch
Mining Contracts Engineer John McBean arrived onsite and,
in August, he became, in fact, if not in title, Power’s onsite
chief executive officer. In August and September, the em-
ployees discussed among themselves the possibility of calling
a strike.
Late in September, Respondent’s attorney, Frederick
Bosch, accompanied by McBean and General Foreman
Dipko, entered Respondent’s premises and held small group
meetings with the employees. William Howe, an acknowl-
edged statutory supervisor, attended one of the meetings,
along with employees Tim Gray, Dan Merritt, and Bob Ral-
ston. According to Howe’s testimony, Bosch told the em-
607POWER, INC.
7 At that time, the Union was soliciting contributions to a hardship
fund for the benefit of those employees.
ployees that, if there were a strike, the Company would con-
tinue to operate, and the people who went on strike would
be replaced. Referring to the then impending unfair labor
practice case hearings, Bosch said that it ‘‘is going to be a
long drawn-out affair.’’ Bosch further told the group that
anyone caught helping the 13 employees laid off on March
10 ‘‘will be out there looking for help from somebody
else.’’7
Employee Dillen testified about another such meeting, also
attended by employees Roy Prentice, Rick Long, and Dave
Miles. According to Dillen, Bosch stated that the Board’s de-
cision regarding the 13 laid-off employees would be ap-
pealed. Further, if the Board won the case at the hearing
stage, there would be a further appeal. Employee Prentice
raised the possibility of a strike. Bosch said that, if the em-
ployees went out on strike, it would be called an unfair labor
practice strike, but the Company would term it an economic
strike. Either way, Bosch stated, striking employees would be
replaced and, ‘‘in the end,’’ the employees ‘‘could fight for
our jobs’’ and ‘‘might win 3 or 4 years down the road.’’
Dillen stated that the money spent on Bosch could better be
spent calling back some of the laid-off employees. Bosch re-
sponded, stating that the ‘‘fucking thirteen guys ain’t coming
back.’’ Employee Long also testified about this meeting. Al-
though his recollection was limited, Long did confirm
Dillen’s testimony that Bosch informed the employees that
the 13 men laid off on March 10 were not coming back.
At a third meeting, Bosch addressed employees Allen
Legrand, Forrest Shepherd, Larry Foster, and Edmund
Kantowski. Legrand testified that Bosch stated that he could
make the proceedings drag on. When employee Shepherd
asked what would happen if there were a strike, Bosch stated
that striking employees would be replaced. Legrand then
asked what would happen if the strike were an unfair labor
practice strike. Bosch replied, asking ‘‘who’s to say its an
unfair labor practice strike?’’ He then related to the employ-
ees the facts of a prior case, in which a group of employees
struck for 3 years only to lose their jobs when he, Bosch,
proved that the strike was not an unfair labor practice strike.
Employee Foster also testified about this meeting. According
to Foster, Bosch told the employees that the Board pro-
ceedings could drag on for several years and, in response to
an employee’s question about an unfair labor practice strike,
stated that strikers would be replaced.
McBean, in his testimony, confirmed the fact of the fore-
going meetings. According to McBean, Bosch told the var-
ious employee groups that the then impending unfair labor
practice hearing would not produce an immediate result and,
as the losing side could appeal, the entire process could take
2 years. In response to employee questions, Bosch explained
the difference between an economic strike and an unfair
labor practice strike, and stated that, if there were a strike,
the Company would continue to operate with replacement
employees. McBean testified that he could not recall any dis-
cussion at the meetings concerning what would happen to in-
dividuals who helped the 13 laid-off employees. However, he
conceded that Bosch told Dillen that ‘‘the 13 men are not
coming back.’’ Dipko, in his testimony, stated that, at the
meetings, Bosch explained to the employee groups the dif-
ference between an unfair labor practice strike and an eco-
nomic strike and stated that, what they might view as the
former might later be found to be the latter. Dipko could not
recall any statement by Bosch concerning what would hap-
pen to individuals who aided the 13 laid-off employees.
In assessing the testimony concerning the group meetings
conducted by Bosch in late September 1989, I have accorded
particular weight to the testimony of William Howe, in light
of his supervisory status at the time that he testified and the
overall impression I formed, as I observed him testify, of his
candor as a witness. I have previously found that Dillen and
Legrand were honest and forthright witnesses, and their testi-
mony concerning the September meetings was convincing.
On the other hand, McBean and Dipko were vague in their
descriptions of the September meetings, and where their tes-
timony differed from that of Howe, Dillen, and Legrand, it
has not been accepted.
Based on the testimony of Howe, Dillen and Legrand, I
find that, at the September meetings, Respondent, through
Bosch, informed the employees that the Board proceedings
would be a long drawn out affair; if the employees engaged
in an unfair labor practice strike they would have to fight to
get their jobs back, and, even if they were successful, the
fight could take 3 or 4 years; the 13 employees laid off on
March 10 were not coming back; anyone caught helping
them ‘‘will be out there looking for help from somebody
else,’’ that is, will be discharged. By the foregoing state-
ments, Respondent, in violation of Section 8(a)(1) of the Act,
warned its employees that exercise of their Section 7 rights
would be futile and would result in job loss.
f. The refusal to bargain
(1) Unit composition
In his Decision and Direction of Election dated February
24, 1989, the Acting Regional Director found the following
unit appropriate:
All full-time and regular part-time production and
maintenance employees including oilers, end dump op-
erators, wash plant operators, assistant wash plant oper-
ators, partsmen, drillers, loader operators, dozer opera-
tors, dragline operators, mechanics, service employees,
mechanic operators, electricians, chemists, coal loader
operators, scalesmen, purchasing employees, mechanic
trainees, operators, welders, utility operators,
sample/loader operators and grader operators, but ex-
cluding engineers, the safety employee, office clerical
employees, guards, professional employees and super-
visors as defined in the Act.
Respondent contends herein that an appropriate unit for pur-
poses of collective bargaining must include the two engi-
neers, the safety employee, and the four clerical employees.
The clerical employees, Jennifer Lumedue, Judy Matia,
Michelle Matthews, and Justine Reed, are supervised by the
office manager who, herself, reports directly to Treasurer
Reed. Prior to December 1988, they performed their duties
in an office located some 3 miles from the mining site. How-
ever, at the direction of Ryan’s chairman of the board, Cris
Rotson, they were moved, in December 1988 to an office
trailer at the tipple, so as to be close to the production units.
608 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The clerks perform routine office functions—typing and fil-
ing—process the payroll, process unemployment and work-
er’s compensation forms, handle licensing and royalty docu-
ments, keep track of production figures, record machine
hours, process invoices, and pay bills. These employees have
access to confidential information, including personnel files
and financial records. Prior to the filing of the representation
petition, none of the clericals had performed any production
work. However, in late February each of them was required
to work for 1 day in the scale house, weighing trucks. Also
in February, Respondent, for the first time, scheduled safety
classes for the clericals; however, not all of them attended.
The clericals have direct contact with the field employees
on those occasions when a field employee has a question
concerning pay, insurance, or compensation. They also have
occasional interaction with the weigh master, concerning pro-
duction figures, and the purchasing agent, concerning pur-
chase orders and shipping. There are times when the clerks
leave their separate trailer and visit the administration trailer,
the engineers’ trailer, the records trailer, and the
scales/purchasing building.
While the vast majority of the production employees are
hourly paid, the clericals are salaried, and they are not paid
for overtime work. Unlike the production employees, the
clericals receive paid sick leave, can anticipate vacation time,
and can take their vacations when desired. They work on a
7-hour day, 5-day-per-week schedule, with an hour each day
for lunch. While production employees are required to wear
a uniform, the clericals were not required to do so until Feb-
ruary 1989, when they were issued lab coats and shoe-type
boots.
The clericals are separately located, separately supervised,
have only incidental contact with the field employees, are
salaried, work standard office hours, receive sick leave, can
anticipate vacation time, and spend their time performing
routine clerical duties. I conclude that they are, essentially,
office clerical employees who do not share a sufficient com-
munity of interest with the production and maintenance em-
ployees to warrant their inclusion in the unit.
The safety director, Harry Kanour, has an office located in
an onsite trailer, which he shares with the engineers. He is
salaried, does not receive overtime pay, wears a uniform, and
reports directly to Respondent’s onsite chief executive offi-
cer. Ranour does not have a formal educational background
in the mine safety field, but did attend a 40-hour training
class conducted by the Mine Safety and Health Administra-
tion (MSHA), which is supplemented, every 18 months, by
refresher courses.
Ranour is responsible for all onsite safety-related matters.
He arranges safety training for new employees and conducts
annual safety classes for experienced employees and, also,
for supervisors. Kanour accompanies MSHA inspectors on
tours of the minesites, and reports their findings. He also
conducts his own minesite inspections, and has authority to
direct employees to correct safety problems that present an
imminent danger. Kanour, too, is responsible for ensuring
Respondent’s compliance with the regulations promulgated
by the Pennsylvania Department of Environmental Regula-
tions (DER), and, in this connection, too, he performs onsite
inspections, and issues instructions to employees. Kanour is
able to operate certain of Respondent’s heavy equipment and,
in cases of emergency, related to safety or environmental
matters, has done so.
Kanour acts as Respondent’s representative at all meetings
with Federal (MSHA) and state (DER) authorities. He has
also attended Respondent’s management meetings to discuss
safety and environmental issues.
While Kanour has direct daily contact with the field em-
ployees, his duties bear little relation to the production of
coal. Rather, his time and efforts are spent, exclusively, on
matters pertaining to compliance with Federal safety laws
and state environmental regulations. He is salaried, works out
of an office, and reports directly to the onsite chief executive
officer. The duties which he performs, and the skills which
he utilizes, are dissimilar to those of the employees included
in the unit. I conclude that he does not share a sufficient
community of interest with them to warrant his inclusion in
the unit.
The engineers, Ron Krise and Richard Liptak, as noted,
have an office in an onsite trailer, which is also utilized by
Kanour. They are salaried, do not receive overtime pay, and
wear coveralls, a uniform shirt and steel-toe shoes to work.
Neither Krise nor Liptak has had any formal education be-
yond high school. They do not possess, nor are they pur-
suing, a degree in engineering, and they have no educational
background in surveying. Nor did they participate in a formal
apprenticeship program. Rather, they received on-the-job
training from professional engineers who were previously
employed by Respondent. It is not contended herein that they
are technical employees.
Krise and Liptak report to the onsite chief executive offi-
cer. They arrive at work at 7 a.m., 1 hour later than the pro-
duction employees, and spend 60 to 70 percent of their
worktime surveying the pit areas to determine the amount of
coal being mined, and to measure and mark the mining area
so as to maintain a straight highwall and conform mining to
the limitations imposed by state mining authorities. In the
performance of these duties, the engineers utilize a sur-
veyor’s instrument. They do not operate heavy equipment.
Krise and Liptak communicate with the field employees
working in the pit areas, for safety reasons, by hand signals,
on]y. The remaining 30 to 40 percent of the engineers’
worktime is spent working in their office, compiling reports,
and prospecting for future mining sites. In this later connec-
tion, they locate prospect holes and mark their location on
a map. They use spray paint to mark the lines for the con-
struction of a road or the establishment of a highwall. While
Krise and Liptak perform the foregoing duties, field employ-
ees are often in the area, usually performing other work. In
fact, the engineers generally convey their instructions con-
cerning how an area is to be worked to the supervisors, rath-
er than directly to the field employees.
As Krise and Liptak are salaried, report directly to the on-
site chief executive officer, do not operate heavy equipment,
spend much of their time in an office, have no meaningful
interaction with the field employees, and utilize dissimilar
skills, they do not share a sufficient community of interest
with Respondent’s other employees to warrant their inclusion
in the unit. I so find and conclude.
(2) Majority status
As earlier noted, by January 6, 1989, a majority of the unit
employees, 41 of 74, had signed single-purpose cards des-
609POWER, INC.
8 Levi Strauss & Co., 172 NLRB 732 (1968), affd. 441 F.2d 1027
(D.C. Cir. 1970).
9 See Boston Pet Supply, 227 NLRB 1891 (1977).
10 395 U.S. 575 (1969).
ignating the Union as their collective-bargaining representa-
tive. Thereafter, in the month of January, seven more em-
ployees signed such cards. Respondent challenges the valid-
ity of five of the cards signed on or before January 6 (those
of Dave Farabaugh, Dan Merritt, Jim Eirich, Allen Legrand,
and Larry Foster), and of five cards signed on January 8
(Robert Dillen, Howard Kitko, John Kitko, Albert Legrand,
and Rick Long).
Farabaugh’s signed card was solicited by Acey Jr.
Farabaugh testified that, during the course of the solicitation,
Acey Jr. stated that the purpose of signing the card was to
authorize the Union to represent the employees. Acey Jr. did
not discuss an election. Nonetheless, because Farabaugh fur-
ther testified that he entertained the belief that there would
be an election at some point, Respondent urges that the card
be discounted. As the card unambiguously designates the
Union as exclusive collective-bargaining representative, and
as Farabaugh was not told anything at odds with the wording
of the card, I reject Respondent’s argument and find that the
card is valid, and should be counted.
Respondent’s challenge, to the card purportedly signed by
Dan Merritt, is based on the failure of General Counsel to
call Merritt as a witness to authenticate the card. Rather,
General Counsel introduced the card through the testimony
of the solicitor, John Acey Jr. In this latter connection, Re-
spondent urges that the card be rejected because neither
Acey’s pretrial affidavit, nor his personal diary, contained
reference to the Merritt card. These arguments do not raise
substantial issues, and they are rejected. I find that General
Counsel has met her burden, and established the authenticity
and the validity of the Merritt card, and that the card should
be counted.
The cards signed by Jim Erich, Allen Legrand and Larry
Foster were solicited, respectively, by Acey Jr., Mike Acey,
and Elmer Baird. In each case, Respondent contends, the so-
licitor misrepresented the purpose of the card. Eirich testified
that he was told by the solicitor, Acey Jr., that the purpose
of the card was to ‘‘get the union in to represent the men
there at Power.’’ Eirich further testified that Acey Jr. also
stated that the purpose of signing the card was to get an elec-
tion. Allen Legrand testified that the solicitor, Mike Acey,
did not tell him what the purpose of the card was, and he,
Legrand, did not ask. Rather, Legrand testified, he simply
read the card and signed it. Legrand further testified that, be-
fore he signed the card, Mike Acey stated that, if there were
enough cards, it would come down to an election. Foster tes-
tified that, before he sighed a card, he was told by the solic-
itor, Elmer Laird, that the card was for union representation.
Foster further testified that Laird also stated that there would
be a vote later on.
I reject Respondent’s contention that the Eirich, Allen
Legrand, and Foster cards should be discounted. Those em-
ployees were not advised by the card solicitors, in word or
in substance, that the sole or only purpose of the cards they
were signing was to obtain an election. As the clear language
contained on the cards was not canceled, and as the signers
were not led to believe that the cards would be used for no
purpose other than to help get an election, the cards are
valid, and should be counted.8
Finally, the cards signed on January 8, 1989, by Robert
Dillen, Howard Kitko, John Kitko, Albert Legrand, and Rick
Long are challenged, because they were signed immediately
after a meeting of employees, conducted by the Union, which
was attended by first-level working Supervisors William
Howe, Ken Bandy, and Jim Supenia. While there is evidence
that, at that meeting, Supenia spoke, for several minutes in
support of the Union there is neither contention nor evidence
that the supervisors directly participated in the solicitation of
the employees’ signatures.
While activities by a supervisor in connection with a
union’s organizational drive may ‘‘taint’’ the validity of
signed cards, not every word or action by a supervisor, in
support of the Union, will have this effect. Here, the super-
visory status of the individuals who attended the meeting was
marginal, their participation in the campaign was slight, and
they were not involved in soliciting employees to sign
cards.9 I therefore conclude that the cards in question are
valid, free of taint, and should be counted.
(3) Bargaining order
In NLRB v. Gissel Packing Co.,10 the Supreme Court held
that a bargaining order is appropriate in two situations. The
first is in ‘‘exceptional’’ cases marked by ‘‘outrageous’’ and
‘‘pervasive’’ unfair labor practices of ‘‘such a nature that
their coercive effects cannot be eliminated by the application
of traditional remedies, with the result that a fair and reliable
election cannot be had.’’ The second is ‘‘in less extraor-
dinary cases marked by less pervasive practices which none-
theless still have the tendency to undermine majority strength
and impede the election processes.’’ Under Gissel, an em-
ployer can insist on a secret-ballot election unless he engages
‘‘in contemporaneous unfair labor practices likely to destroy
the Union’s majority and seriously impede the election.’’
In my view, this matter falls into the first category of
cases discussed in Gissel, those marked by outrageous and
pervasive unfair labor practices which destroy the possibility
of holding a fair election. Here, from the onset of the organi-
zational drive in December 1988, and for months thereafter,
Respondent, from its highest officials to its lowest level su-
pervisors, engaged in repeated threats to close down its oper-
ations if the employees selected the Union to represent them.
These threats reached, directly, nearly every employee in the
bargaining unit. Such threats of closure, repeated, numerous,
and widely disseminated, are among the most serious, fla-
grant, and long-lasting forms of interference with employee
rights which act to destroy employee support for a union and
the possibility of holding a fair election. In addition, 2 weeks
before the election scheduled for March 23, 1989, Respond-
ent discharged 13 union adherents, including those known to
be its most active supporters. Thereafter, it repeatedly ad-
vised its remaining employees that ‘‘the 13’’ would not be
back. As urged by the General Counsel, ‘‘it is difficult to
imagine any act of management better calculated to chill
union support’’ than those massive discharges. In view of the
egregious nature of Respondent’s unfair labor practices,
which occurred over an extensive period of time, it is likely
that its unlawful conduct will recur.
610 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 The complaint allegations of unlawful conduct in violation of
Sec. 8(a)(4) of the Act are entirely unsupported by record evidence,
and must be dismissed.
I conclude that the coercive effects of Respondent’s con-
duct, even allowing for the passage of time, cannot be elimi-
nated by the application of traditional remedies. As a fair and
reliable election cannot be held, the authorization cards
signed by a majority of the unit employees provide a better
test of their desires. The only available and effective remedy
for the unfair labor practices committed by Respondent is a
bargaining order.
g. Unilateral wage increase
The complaint alleges that, in late March 1989, Respond-
ent, without prior notice to the Union, and without having af-
forded the Union an opportunity to negotiate and bargain
about the matter, granted wage increases to certain unit em-
ployees. As there is an entire lack of record evidence to sup-
port this allegation, it must be dismissed.
h. The representation case
The tally of ballots following the election conducted on
March 23, 1989, showed that 27 votes were cast for the
Union, 30 votes were cast against representation, and there
were 19 challenged ballots. The Acting Regional Director
sustained the challenges to the ballots of three individuals,
and referred for hearing the issues raised by the remaining
16 challenges. In light of my earlier findings that Larry
Kanour, Ronald Krise, and Richard Liptak, the safety direc-
tor and the engineers, should be excluded from the unit, I
conclude that the challenges to their ballots should be sus-
tained. In light of my earlier findings that the 13 employees
permanently laid off on March 10, 1989, were unlawfully
discharged, I conclude that the challenges to their ballots
should be overruled, and that those ballots should be opened
and counted.
The objections to conduct affecting the results of the elec-
tion, filed by the Union, generally track the complaint allega-
tions with respect to conduct occurring between the time the
petition was filed on January 6, 1989, and the time the elec-
tion was held on March 23. In light of my earlier findings,
that Respondent, during the critical period, repeatedly threat-
ened its employees with a closure of operations if they opted
for representation by the Union and, also, during the critical
period, discharged 13 employees because of their union ac-
tivities, I conclude that the objections should be sustained
and the election set aside.
2. The Power II cases11
a. The strike
As more fully discussed hereinafter, in early December
1989, Respondent subcontracted the operation of the rock
trucks and grader, and the maintenance of that equipment,
and permanently laid off six rock truckdrivers. On December
10, at a union meeting, the Power employees voted to strike
in protest of that action, and in protest of the discriminatory
discharges that had earlier occurred on March 10. On Mon-
day, December 11, the strike commenced, and the Union es-
tablished a picket line at the entrances to Respondent’s facil-
ity. In view of my findings, supra, that the March 10 dis-
charges were in violation of Section 8(a)(3) of the Act, and
my findings, infra, that the early December layoffs were vio-
lative of Section 8(a)(5) of the Act, I find and conclude that
the strike was, from its inception, an unfair labor practice
strike.
b. The 8(a)(1) allegations
On or about December 18, 1989, Frank Zangari, an in-
spector for the Federal Mine Safety and Health Administra-
tion, visited the Power site to conduct an inspection. He was
accompanied by striking employee Jim Keith, a duly des-
ignated representative of the employees for mine safety pur-
poses. After completing the inspection, Zangari, accompanied
by Keith, stopped his vehicle near Respondent’s office trail-
er. Safety Director Larry Kanour, and a mining engineer
from the United Kingdom, William McCallister, approached
the vehicle. Zangari, in confused and sometimes self-con-
tradictory testimony, variously testified that Kanour and
McCallister told him that Keith had no right to be on the
mine property, as he was not working, and/or that Keith was
‘‘not employed by the Company.’’ The discussion was heat-
ed and, eventually, Kanour asked Zangari to speak to Re-
spondent’s attorney, Bosch, on the telephone. Bosch told
Zangari that, as Keith was a striker, and out on the picket
line, Respondent would prefer that he, Zangari, use another
employee on his walkarounds. Keith, in his testimony,
claimed that, during the confrontation, McCallister stated that
he, Keith, was no longer employed by Respondent, and had
no right to be on Respondent’s property. Keith further testi-
fied that he was reinstated on May 5, 1990, immediately fol-
lowing his offer to return to work.
In the General Counsel’s view, Respondent, by
McCallister, violated Section 8(a)(1) of the Act by informing
Keith, a striker, that he was no longer considered an em-
ployee. While there is no contention that McCallister is a
statutory supervisor, the General Counsel urges that he is an
agent. However, there is an entire lack of record evidence
showing that this individual had authority to speak for man-
agement, actual or apparent. Moreover, in light of the con-
fused state of the evidence as to the wording of the remarks
made, I am unwilling to base an unfair labor practice finding
on the proffered testimony. I conclude that this allegation
must be dismissed.
On December 27, 1989, Respondent, at the scale house,
distributed hams to its employees, including striking employ-
ees. On that occasion, Mining Engineer McCallister spoke to
a group of five strikers, including Randall Eckberg and Bob
Ralston. According to Eckberg, who professed to have little
memory of the matter, McCallister stated that he was offer-
ing contracts if the employees would come back to work.
Eckberg further testified that when he said, ‘‘Fine, give me
a contract and I’ll report to work tomorrow,’’ McCallister
said that he could not do that at that time. McCallister did
not describe the type of contract he was referring to, but did
state that, with such a contract, the employees would not suf-
fer the fate of the laid-off rock truckdrivers. Ralston testified
that, after McCallister spoke, he told him that he did not
know who he was, and that he did not like McCallister’s atti-
tude. Ralston told McCallister that ‘‘we should have an ass
kicking party and kick him right back to England.’’
The General Counsel contends that Respondent, by
McCallister, violated Section 8(a)(1) of the Act by offering
611POWER, INC.
12 Industrial Waste Service, 268 NLRB 1180 (1984).
13 McBean had instructed Mantz to offer employment to the six
laid-off drivers. However, as the wage rate offered by Mantz was
lower than that previously paid by Power, all six drivers rejected
Mantz’ offers of employment.
individual contracts to striking employees if they would re-
turn to work. I think it is unclear, from the state of the
record evidence, just what McCallister was offering. What is
clear is that the employees did not know who he was. There
is, as earlier found, an absence of record evidence showing
that McCallister had authority, actual or apparent, to speak
for management. I conclude that this allegation, too, should
be dismissed.
The complaint in the Power II cases alleges that Respond-
ent violated Section 8(a)(1) of the Act by offering induce-
ments to nonstriking employees to destroy a picket shack
and, thereafter, by destroying the picket shack in the pres-
ence of nonstriking employees. The General Counsel’s sole
witness, in support of these allegations, was James Weaver,
who, at the time he testified, had suffered a stroke which
rendered him totally unable to recall the events in question.
In view of Weaver’s condition, General Counsel introduced
into evidence Weaver’s pretrial affidavit, as prior recollection
recorded. The affidavit supports the complaint allegations.
While the Board has held12 that the trier of fact may, in
certain circumstances, rely on an affidavit in finding a viola-
tion of the Act, despite its hearsay character, the affidavit
must be consistent with other extraneous, objective, and un-
questionable facts. Such is not the case here, where there is
an absence of any other evidence even remotely bearing on
the subject allegations. In these circumstances, I am unwill-
ing to base unfair practice findings on the affidavit.
c. The subcontracting of the operation and maintenance
of the rock trucks and graders, and the resultant
layoff of six employees
Early in October 1989, David Mantz, president and sole
stockholder of Tire Tec, Inc., which then supplied some 90
percent of Power’s heavy equipment tires, approached Re-
spondent’s purchasing agent, Dave Semelsberger, about initi-
ating a tire maintenance plan. Mantz had observed an in-
crease in damage to the tires on Respondent’s equipment,
which he attributed to poor maintenance of haul roads, and
to equipment running at excessive speeds on those road. As
a tire for a rock truck costs approximately $5000, and as
each truck requires six tires, Mantz believed that a mainte-
nance program substantially could reduce Respondent’s oper-
ating costs. Semelsberger referred Mantz to Treasurer Reed
who, in turn, referred him to Les Nicholson, the managing
director of Disger, plc and the manager of Crouch Mining.
On October 16, Mantz met with Nicholson, Reed, and
other representatives of Power. At this meeting, Power offi-
cials suggested that Mantz take over the operation and main-
tenance of the rock trucks and graders (which are used to
free the haul roads from damaging debris). Mantz stated that
he had no experience in the mining industry, or in the oper-
ation of heavy equipment. However, Nicholson assured
Mantz that he need not be concerned with mining; he just
had to supply the labor to operate and maintain the heavy
equipment. Thereafter, agreement was reached and, on De-
cember 6, a contract was signed. Mantz formed a new com-
pany, Operators Unlimited, Inc., to engage in this business.
Power required that Operators supply 23 employees to work
at the Power site, including 18 rock truckdrivers, 2 grader
operators, and 3 maintenance employees. Although none of
the rock truckdrivers hired by Mantz had ever run a 100-ton
rock truck, Mantz was at no time advised that the drivers,
or the mechanics, would require specialized training. What
training those employees ultimately did receive, on site,
came from Atlee Peters, a Power mechanic.
Respondent’s onsite chief executive officer, Operations
Manager John McBean, was informed of the subcontracting
arrangement in November, by Nicholson, and was told that
the effective date was December 11. Nicholson instructed
McBean to lay off Power’s 12 rock truckdrivers, but granted
him permission to retain any of them for whom vacancies
could be found.
On Friday, December 8, 1989, Respondent permanently
laid off six rock truckdrivers, Bob Dillen, Allen Legrand,
Tim Gray, Larry Foster, Roy Prentice, and Forrest Shepherd,
and invited them to apply for work with Mantz.13 Respond-
ent transferred to other positions rock truckdrivers Rick
Long, Dan Merritt, Dave Miles, Howard Kitko, Edmund
Kantowski, and Pete Baughman. McBean testified that, in se-
lecting employees for layoff, he did not consider classifica-
tion seniority, since the classification was being eliminated.
Rather, he considered the suitability of the individual drivers
for the available positions, and their past experience.
Reed credibly testified that Respondent entered into the
subcontracting arrangement because it anticipated a 10-per-
cent reduction in labor costs and, too, additional savings ‘‘by
amalgamating the tires, the operators, the maintenance of
those trucks, and . . . the conditions of the road . . . .’’ In
fact, Reed testified, very substantial savings were realized.
As detailed in the Power I cases, Respondent harbored an
overwhelming hostility toward the union activities of its em-
ployees, and demonstrated a willingness to attempt to thwart
those activities by unlawful means, including a massive dis-
charge of known union supporters. In connection with the
layoff of the rock truckdrivers, I note that all six laid-off em-
ployees were card signers, union supporters, and, concededly,
were known to Respondent as prounion.
Respondent’s assigned reason for entering into the subcon-
tracting arrangement withstood the considerable scrutiny that
it received at trial. It is important, too, to note that, as de-
tailed in the Power I cases, Respondent, beginning early in
1988, began a reorganization program designed to bring its
business into profitability, in part by reducing operating
costs. In this connection, and preceding employee union ac-
tivities, Power had closed departments, subcontracted por-
tions of its operation, and laid-off affected employees. When,
in December 1989, it subcontracted the rock truck and grader
operations, it laid-off six known union supporters. However,
four of the six drivers who were retained and placed in other
positions (Long, Merritt, Miles, and Kitko) were also card
signers and union supporters.
While the matter is not free of suspicion, I conclude that
the evidence is insufficient to establish that Respondent sub-
contracted the operation and maintenance of the rock trucks
and graders, and selected employees for layoff, for discrimi-
natory reasons. However, as found in the Power I cases, Re-
spondent, since January 6, 1989, was under obligation to rec-
612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 See Clear Pine Moldings, 268 NLRB 1044 (1984).
ognize and bargain with the Union as the exclusive collec-
tive-bargaining agent of the unit employees. It subcontracted
a portion of the unit work, and laid off employees, without
notifying the Union or affording it an opportunity to bargain.
The decision to subcontract was based, primarily, on a desire
to reduce labor costs. In these circumstances, I conclude that,
by unilaterally subcontracting unit work, and permanently
laying off unit employees, Respondent violated Section
8(a)(5) of the Act.
d. The refusal to reinstate unfair labor practice
striker Robert Ryver
Respondent operated during the strike, using temporary re-
placement employees. As strikers returned to work, the re-
placements were let go. Only one striker, Robert Ryver, was
denied reinstatement, for misconduct during the strike, on his
unconditional offer to return to work. Ryver had not signed
an authorization card, nor worn items containing union insig-
nia to work. While he honored the strike from its inception,
he did not join the picket line until mid-January 1990. On
March 3, he sought to return.
McBean testified that his decision to deny reinstatement to
Ryver was based on the reports he received from security
guards, that Ryver had threatened their lives, and the reports
he received from certain of the British replacement employ-
ees, which he, McBean investigated, that Ryver was fol-
lowing them to work, at 5:30 a.m., with his headlights on.
On receiving the latter reports, McBean further testified, he
drove one morning, late in December 1989, to the hotel
housing the British replacement employees, at 5 a.m. There,
he found Ryver, sitting in his pickup truck. A conversation
ensued and Ryver told McBean that ‘‘the boys were going
to get madder and madder’’ and somebody was liable to send
him ‘‘home in a box.’’
Security guards Shawn Bruner and John Mitchell both tes-
tified that, on December 18, 1989, Ryver repeatedly told
them that, if Bruner focused his video recorder on Ryver
again, neither Bruner nor Mitchell would ‘‘live to see Christ-
mas.’’ The security guards filed reports with Power officials.
Bruner further testified that, on other occasions, Ryver
threatened to follow him home and then ‘‘he wouldn’t be so
smart,’’ and told Bruner that ‘‘someone could be sitting
across the hill from us and put a slug between us’’ (referring
to Bruner and Mitchell).
Ryver, in his testimony, conceded that the foregoing inci-
dents had, in fact, occurred. Thus, he testified that, when he
met McBean in the hotel parking lot, at 5 a.m., he told him
that the employees were ‘‘mad enough to send you back to
England in a box.’’ He also testified that he had told the se-
curity guards, who were videotaping, that ‘‘if you keep it up,
you are not going to see another Christmas.’’
Based on the credited and uncontradicted testimony of
McBean, I find that Respondent, when it denied reinstate-
ment to Ryver, entertained a good-faith belief that he had en-
gaged in threats to human life and other intimidating con-
duct. The General Counsel has not shown that the alleged
acts of misconduct did not, in fact, occur. Accordingly, I
conclude that, in denying reinstatement to Ryver, Respondent
did not engage in conduct violative of the Act.14
e. The verbal warning issued to Dennis Webster and
the discharge of Albert Legrand
On Friday, April 13, 1990, strikers Dennis Webster and
Albert Legrand went to McBean’s office and offered to come
back to work. Subsequently, they were advised by McBean
that they would be returned to work, after safety training. On
the following Monday, April 16, Safety Director Larry
Kanour called and instructed them to report to a 1-day safety
training program, to be held offsite, on Wednesday, April 18.
Neither McBean nor Ranour specifically told the employees
when to report for duty. However, as safety training is paid
time, employees normally return to their jobs immediately on
its completion.
Webster and Legrand attended the mandatory safety class
on the designated day. Neither reported for work on the fol-
lowing day. On Friday, April 20, at midday, they went to
McBean’s office to submit their timecards for the safety
training, and to inquire when they should report for duty.
McBean asked them why they had not returned to work after
safety training. The employees stated that they had not been
told when to report and, therefore, they waited at home for
a call from Power. McBean said that the employees should
have known that they were to report for work on the morn-
ing following safety training, as other returning strikers had
done. He further stated that he, McBean, would have to take
the necessary action. While Webster remained silent,
Legrand said that he ‘‘would like to take some action,’’ and
that he was not going to ‘‘kiss his [McBean’s] ass for a
job.’’ According to the testimony of Wash Plant Manager
Jeff Andrews, who witnessed the matter, as Legrand, who
was standing, spoke, his structure became rigid and his fists
clenched at his sides.
McBean testified that, after consideration, he decided to
issue a verbal warning, only to Webster, as that employee
had a clean disciplinary record, and to return him to work
on the following Monday, April 23. However, as Legrand
had previously received verbal and written warnings, includ-
ing a final warning for excessive absenteeism, McBean de-
cided to discharge him. The April 20 termination letter, to
Legrand, cites, as an additional reason for the discharge, the
remarks made by Legrand to McBean on that day.
McBean agreed to reinstate Webster and Legrand on their
unconditional offers to return to work. They were treated in
the same manner as all other returning strikers. For whatever
reason, a misunderstanding developed with respect to report-
ing time, following safety class, a problem which did not
arise when other strikers returned. It may be argued that, in
disciplining Webster, and discharging Legrand, for their fail-
ure to report to work on the morning following safety class,
Respondent acted harshly. I believe that it did. However, in
the absence of evidence sufficient to show that it acted for
discriminatory reasons, the complaint allegations in this re-
gard must be dismissed.
f. The refusal to rehire Robert Dillen and
Allen Legrand
By mid-May 1990, all of the strikers had returned to work
and, thereafter, the picket line was maintained by those who
had been laid off or discharged, including laid-off rock truck-
drivers Robert Dillen and Allen Legrand. Both Dillen and
Legrand had worked as mechanics prior to their April 1989
613POWER, INC.
transfers to positions as 100-ton rock truck operators.
Legrand had also worked in the wash plant, as a
welder/mechanic.
Dillen and Legrand earlier signed union authorization
cards, displayed union insignia at work, and were, conced-
edly, known to Respondent as particularly active in support
of the Union. After their layoffs from the rock truckdriver
positions, and the commencement of the strike, each was at
the picket line, every day, from 5 to 14 hours per day, where
they were observed by Respondent’s officials.
In the spring of 1989, Dillen began photographing the re-
placement employees from the United Kingdom, as they op-
erated equipment. In that time period, he was approached by
General Foreman Dipko, and Safety Director Kanour, and
asked if he was, in fact, taking pictures. Dillen asked them
who it was who had told them that. When Dipko and Kanour
refused to reveal that information, Dillen said, well, ‘‘I guess
I wasn’t taking pictures.’’ In December 1989, when Dillen
was advised by McBean of his layoff, he learned that more
junior rock truckdrivers were being retained in other posi-
tions. Dillen protested to McBean, who responded, stating,
‘‘Bob Dillen, we’re through with you.’’
In June 1990, Respondent decided to hire two mechanics
to work in the wash plant. Rather than recall any of the laid-
off employees, it chose to advertise for new workers. Thus,
the following advertisement was placed in the local news-
paper:
MECHANIC: Local coal producer has immediate
opening for a mechanic at its preparation plant. Can-
didate should have demonstrated mechanical and weld-
ing skills.
Among the 20 to 30 resumes received by Jeff Andrews, the
then wash plant manager, in response to the advertisement,
were those of Dillen and Legrand. In addition, Andrews so-
licited the applications of Michael Shive, and another indi-
vidual, who had earlier worked at the Power site as employ-
ees of a subcontractor.
Legrand was not called for an interview. Andrews and
Wash Plant Supervisor Nick Minor did conduct interviews
with Dillen, Shive, and four other applicants. In this connec-
tion, Andrews testified that Legrand had worked for him at
the wash plant for a 4-month period in 1988, and that he,
Andrews, had found Legrand’s performance to be sub-
standard. In Andrews’ view, Legrand lacked the necessary
welding and mechanical skills. Legrand, in his testimony,
conceded that, while employed at the wash plant, and pre-
ceding the advent of the Union, his repeated requests for a
pay raise, so as to bring his wage into line with those of
other wash plant mechanics, were denied by Andrews. As a
result, Legrand testified, he and Andrews ‘‘never got along.’’
As noted, Andrews and Minor did conduct an interview
with Dillen. They told Dillen that they needed someone to
work on the equipment, such as loaders and dozers. Dillen
stated that he had worked on that equipment in the past. In
response to inquiry, he assured Andrews and Minor that he
possessed the necessary welding skills. He was not asked
whether he also had electrical skills. In his testimony, An-
drews conceded that Dillen was suitable for the open posi-
tions, and had, previously, established an excellent work
record with Respondent. Moreover, Dillen was the only
interviewed applicant with previous experience working on
coal mine industry equipment. In fact, Andrews testified,
with two available positions, Dillen was his third choice for
the openings. Andrews did not know whether or not Dillen
possessed electrical skills.
Respondent hired Michael Shive and Robert Passmore. In
Andrews’ view, Shive, while working onsite in the employ
of a subcontractor, had shown himself to be a truly out-
standing welder. Passmore, in addition to mechanical abili-
ties, offered electrical skills.
While I accept Andrews’ explanation of why he neither
interviewed, nor offered a position, to Legrand, as that expla-
nation is somewhat consistent with other record evidence, I
cannot accept his explanation of why a position was not of-
fered to Dillen. This individual, concededly, possessed the
necessary skills, had compiled an excellent work record and,
unlike the applicants who were hired, had previous experi-
ence in the mining field, in general and, in particular, with
the equipment on which the new employees were to perform
repair work. I reject Andrews’ claim that he hired Passmore,
in part, because of his electrical skills. The want-ad placed
by Respondent did not mention electrical skills. Rather, indi-
viduals with mechanical and welding skills were sought.
Moreover, during the interview process, Andrews did not
seek even to ascertain what, if any, electrical skills Dillen
possessed.
Respondent has previously demonstrated a total antipathy
toward the union activities of its employees, and a willing-
ness to engage in unlawful acts, including mass firings, in its
efforts to thwart those activities. It was aware of Dillen’s
support for the Union and the strike, and had previously
questioned him concerning certain of his activities. In ex-
plaining its decision to hire Passmore, rather than Dillen, de-
spite Dillen’s experience and conceded suitability for the po-
sition, Respondent has advanced a reason, electrical skills,
which is patently pretextual. In these circumstances, I find
and conclude that Respondent refused to rehire Dillen be-
cause of his union activities and sentiments, in violation of
Section 8(a)(3) of the Act. I also conclude, in light of the
credited portions of Andrews’ testimony, that the refusal to
rehire Legrand would have occurred even in the absence of
protected activities, and was, therefore, not violative of the
Act.
g. The subcontracting of the drilling operation and the
resultant layoff of two employees
In November 1990, Respondent subcontracted its drilling
work to Wampum, Inc. Unlike the earlier subcontracting ar-
rangement with Operators, Unlimited, under which Power re-
tained ownership of the equipment (rock trucks and graders),
Power, as part of the agreement with Wampum, sold its
drills.
As the entire driller classification was eliminated due to
the subcontracting arrangement, Respondent did not consider
classification seniority in selecting employees for the result-
ant layoff. Of the three drillers, the two most senior, Jeff
Beals and Dennis Webster, were laid off. The third driller,
Randall Eckberg, was reasgisned to the position of lubeman,
a position he had held in the past. All three individuals,
Beals, Webster, and Eckberg, had signed authorization cards
for the Union and participated in the strike from its incep-
tion.
614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Fibreboard Corp. v. NLRB, 379 U.S. 203 (1964). See also
Lapeer Foundry & Machine, 289 NLRB 952 (1988).
16 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
Reed credibly testified that, prior to the subcontracting de-
cision, he estimated that, by subcontracting the drilling work,
Power would achieve annual cost savings of $84,680, prin-
cipally labor cost savings. Nonetheless, before effectuating
the subcontracting arrangement, and laying off employees,
Respondent neither notified the Union, nor afforded it an op-
portunity to bargain.
For the reasons stated in my analysis of Respondent’s ear-
lier decision to subcontract a portion of its operations, and
the effectuation thereof—in that case, the operation and
maintenance of the rock trucks and graders—I find and con-
clude that the evidence is insufficient to establish that Re-
spondent subcontracted the drilling operation, and selected
employees for layoff, for discriminatory reasons, in violation
of Section 8(a)(3) of the Act. However, I find that, by unilat-
erally subcontracting this work, and laying off unit employ-
ees, Respondent violated Section 8(a)(5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent set forth in section III, above,
occurring in connection with its operations described in sec-
tion I, above, have a close, intimate, and substantial relation-
ship to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practice conduct in violation of Section 8(a)(5), (3),
and (1) of the Act, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative ac-
tion designed to effectuate the polices of the Act. Specifi-
cally, I shall recommend that Respondent be ordered to rec-
ognize and bargain with the Union, in the appropriate unit,
the bargaining order to be dated January 6, 1989, the date
Respondent received the Union’s recognition demand and the
approximate date when it embarked on a clear course of un-
lawful conduct designed to undermine the Union’s majority
status. I shall also recommend that the election held on
March 23, 1989, be set aside, and the petition be dismissed.
It is further recommended that Respondent be ordered to
restore the status quo ante by reinstating its rock truck, grad-
er, and drilling operations; to bargain with the Union con-
cerning the subcontracting decisions and the effects thereof;
and to reinstate the laid-off employees with backpay.15
Finally, it is recommended that Respondent be ordered to
reinstate, with backpay, the employees unlawfully discharged
on March 10, 1989.
CONCLUSIONS OF LAW
1. Power, Inc. is an employer engaged in commerce, and
in operations affecting commerce, within the meaning of
Section 2(2), (6), and (7) of the Act.
2. United Mine Workers of America is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By threatening employees with closure of operations
and other reprisals if they supported the Union, and by warn-
ing them that exercise of their Section 7 rights would be fu-
tile, and would result in job loss, Respondent has engaged
in unfair labor practice conduct within the meaning of Sec-
tion 8(a)(1) of the Act.
4. By permanently laying off John Acey Sr., John Acey
Jr., Robert Adams, Charles Berg, Larry Blake, Roy Demko,
Jesse Howe, Elmer Laird, Ken Noel, Keith Petrosky, Ron
Petrosky Jr., Terry Petrosky, and Dave Stephens, on March
10, 1989, because of their union activities, Respondent has
engaged in unfair labor practice conduct within the meaning
of Section 8(a)(3) of the Act.
5. All full-time and regular part-time production and main-
tenance employees including oilers, end dump operators,
wash plant operators, assistant wash plant operators,
partsmen, drillers, loader operators, dozer operators, dragline
operators, mechanics, service employees, mechanic operators,
electricians, chemists, coal loader operators, scalesmen, pur-
chasing employees, mechanic trainees, operators, welders,
utility operators, sample/loader operators, and grader opera-
tors employed by Power, Inc. at its facilities located in
Clearfield and Center Counties, excluding engineers, the
safety employee, office clerical employees, guards, profes-
sional employees, and supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collective-bar-
gaining within the meaning of Section 9(b) of the Act.
6. Since January 6, 1989, and at all times material herein,
the Union has been, and is now, the exclusive representative
of all employees in the aforesaid bargaining unit for the pur-
poses of collective bargaining within the meaning of Section
9(a) of the Act.
7. By refusing, since January 6, 1989, to recognize and
bargain with the Union as the exclusive collective-bargaining
representative of its employees in the appropriate unit set
forth above, Respondent has engaged in unfair labor practice
conduct within the meaning of Section 8(a)(5) of the the Act.
8. By unilaterally subcontracting unit work, namely, the
rock truck grader and drilling operations, and permanently
laying off employees Robert Dillen, Allen Legrand, Timothy
Gray, Larry Foster, Roy Prentice Sr., Forrest Shepherd, Den-
nis Webster, and Jeffrey Beals, without providing the Union
with notice and opportunity to bargain about those actions,
and the effects thereof, Respondent has engaged in unfair
labor practice conduct within the meaning of Section 8(a)(5)
of the Act.
9. By refusing to rehire Robert Dillen, because of his
union activities, Respondent has engaged in unfair labor
practice conduct within the meaning of Section 8(a)(3) of the
Act.
10. The strike which commenced on December 11, 1989,
was caused by Respondent’s unfair labor practices and was,
from its inception, an unfair labor practice strike.
11. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
12. Respondent has not otherwise violated the Act, as al-
leged in the consolidated complaints.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended16
615POWER, INC.
17 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
National 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.’’
ORDER
The Respondent, Power, Inc., Osceola, Pennsylvania, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with closure of operations and
other reprisals if they support the Union, and warning the
that exercise of their Section 7 rights would be futile, and
would result in job loss.
(b) Laying off or discharging employees because of their
union activities.
(c) Refusing to recognize and bargain with United Mine
Workers of America as the exclusive collective-bargaining
representative of its employees in the appropriate unit set
forth, above.
(d) Unilaterally subcontracting unit work, and permanently
laying off employees, without providing the Union with no-
tice and opportunity to bargain about those actions and the
effects thereof.
(e) Refusing to rehire employees because of their union
activities.
(f) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of their rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, recognize and bargain with United Mine
Workers of America as the exclusive collective-bargaining
representative of all employees in the aforesaid appropriate
unit with respect to rate of pay, wages, hours, and other
terms and conditions of employment and, if an understanding
is reached, embody the understanding in a signed agreement.
(b) Reinstate the rock truck, grader, and drilling operations
previously performed by the unit employees.
(c) Offer to John Acey Sr., John Acey Jr., Robert Adams,
Charles Berg, Larry Blake, Roy Demko, Jesse Howe, Elmer
Laird, Ken Noel, Keith Petrosky, Ron Petrosky Jr., Terry
Petrosky, Dave Stephens, Robert Dillen, Allen Legrand, Tim-
othy Gray, Larry Foster, Roy Prentice Sr., Forrest Shepherd,
Dennis Webster, and Jeffrey Beals, immediate and full rein-
statement to their former positions or, if those positions no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges.
(d) Make the above-listed employees whole for any loss
of earnings and other benefits suffered as as result of the dis-
crimination against them. Backpay shall be computed as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest ag computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
(e) Remove from its files any reference to the permanent
layoffs or discharge, and the refusal to rehire Dillen, and no-
tify the affected employees, in writing, that this has been
done.
(f) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports and all other records necessary to analyze
the amount of money due under the terms of this Order.
(g) Post at its Oceola, Pennsylvania facilities, copies of the
attached notice marked ‘‘Appendix.’’17 Copies of said notice,
on forms provided by the Regional Director for Region 6,
after being signed by Respondent’s representative, shall be
posted by it immediately on receipt and maintained for 60
consecutive day in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that
said notices are not altered, defaced, or covered by any other
material.
(h) 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 election held on March
23, 1989, in Case 6–RC–10137 be set aside and that the peti-
tion be dismissed.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT threaten employees with closure of oper-
ations and other reprisals if they support the Union, or warn
them that exercise of their Section 7 rights would be futile,
and would result in job loss.
WE WILL NOT lay off or discharge employees because of
their union activities.
WE WILL NOT refuse to recognize and bargain with United
Mine Workers of America as the exclusive collective-bar-
gaining representative of our employees in the appropriate
bargaining unit.
WE WILL NOT unilaterally subcontract unit work and per-
manently lay off employees without providing the Union
with notice and opportunity to bargain about such actions
and the effects thereof.
WE WILL NOT refuse to rehire employees because of their
union activities.
WE WILL NOT in any other manner interfere with, restrain,
or coerce employees in the exercise of their rights guaranteed
in Section 7 of the Act.
WE WILL, on request, recognize and bargain with United
Mine Workers of America as the exclusive collective-bar-
gaining representative of all employees in the appropriate
unit with respect to rates of pay, wages, hours, and other
terms and conditions of employment and, if an understanding
is reached, WE WILL embody the understanding in a signed
agreement.
WE WILL reinstate the rock truck, grader, and drilling op-
erations previously performed by unit employees.
WE WILL offer to John Acey Sr., John Acey Jr., Robert
Adams, Charles Berg, Larry Blake, Roy Demko, Jesse Howe,
Elmer Laird, Ken Noel, Keith Petrosky, Ron Petroswky Jr.,
Terry Petrosky, Dave Stephens, Robert Dillen, Allen
Legrand, Timothy Gray, Larry Foster, Roy Prentice Sr., For-
616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rest Shepherd, Dennis Webster, and Jeffrey Beals, immediate
and full reinstatement to their former positions or, if those
positions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other rights
or privileges.
WE WILL make the above-listed employees whole for any
loss of earnings and other benefits suffered as a result of the
discrimination against them, plus interest.
WE WILL remove from our files any reference to the per-
manent layoffs or discharges, and the refusal to rehire Robert
Dillen, and notify the affected employees, in writing, that
this has been done.
POWER, INC.