Prince Trucking Co.

National Labor Relations Board - Board Decisions

Apr 30, 1987

283 N.L.R.B. 806 (N.L.R.B. 1987)

806 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Ersel Prince d/b/a Prince Trucking Company and
Local Union 9553 , United Mine Workers of
America. Cases 9-CA-23189, 9-CA-23364-2,
9-CA-23457, and 9-CA-23475
30 April 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On,12 February 1987 Administrative Law Judge
Robert T. Wallace issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light,of the exceptions and brief and has
decided to affirm the judge's rulings, findings, I and
conclusions and to adopt the recommended Order
as modified. 2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Ersel Prince d/b/a Prince Trucking
Company, Ethel, West Virginia, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order as-modified.
1. Substitute the following for paragraph 2(a).
"(a) Make the following employees whole, with
interest, for'any loss of wages and benefits suffered
by them as a result of unlawfully laying them off
about ' 5 June and 18 July 1986, in the manner set
forth in the judge's recommended remedy. The em-
ployees laid off about 5 June 1986 were John Size-
more, Jerry Carter, James Dean, Arnold Toler,
Arvid Con Barker, Randall Morgan, Cecil Bobbet,
Everett Vance, Arthur Farley, Roger Johnson,
Chauncy Adams, and Aubrey John Hartman. The
employees laid off about 18 July 1986 were John
Sizemore, Aubrey John Hartman, Arthur Farley,
James Dean, Roger Johnson, Chauncey Adams,
and Arnold Toler."
2. Substitute the attached notice for that of the
administrative law judge.
1 Although the judge found that the Respondent laid off certain em-
ployees on 17 July 1986, the parties stipulated that the layoffs occurred
about 5 June and 18 July 1986
2 In response to the General Counsel's exceptions, we shall modify the
recommended Order and notice to include the names of unlawfully laid-
off employees and, as discussed above, to correct the dates of the second
unlawful layoff The General Counsel's request that the remedial Order
include a visltatonal clause is denied.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations. Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT threaten not to hire and WE WILL
NOT refuse to hire or recall people because they
filed grievances or engaged in other protected ac-
tivities.
WE WILL NOT attempt to deter you through
threats and coercion from filing grievances or en-
gaging in other protected activities.
WE WILL NOT threaten you with physical harm
because you file grievances or engage in other pro-
tected activities.
WE WILL NOT lay you off in retaliation for
grievance filing and for engaging in other protect-
ed activities.
WE WILL NOT in any like or related manner
interfere 'with, restrain, or coerce you in the exer-
cise of the rig'hts' guaranteed you by Section 7 of
the Act.
WE WILL make whole, with interest, the follow-
ing employees for any loss of wages and benefits
suffered as a result of unlawful layoffs effected by
me about '5 June and 18 July 1986.
John Sizemore
Jerry Carter
James Dean
Arnold Toller
Arvid Con Barker
Randall Morgan
Aubrey John Hartman
Arthur Farley
Cecil Bobbet
Everett Vance
Roger Johnson
Chauncy Adams
ERSEL PRINCE D/B/A PRINCE
TRUCKING COMPANY
Donald Becker, Esq. and David L. Ness, Esq., for the
General Counsel.
Ersel Prince, Jr., pro se.
DECISION
ROBERT T. WALLACE, Administrative Law Judge. On
a series of charges filed by the Union between 9 June
and 29 August 1986, as amended, a second consolidated
amended complaint was issued on 8 September in which,
as further amended at the hearing, it is alleged that Re-
spondent Prince violated Section 8(a)(1) and (3) of the
National Labor Relations Act by threatening and by
laying off employees because they filed grievances and
engaged in other protected activities.
The case was tried before me at Logan, West Virginia,
17 and 18 November. On the entire record, including my
283 NLRB No. 128
PRINCE TRUCKING CO. 807
observation of the demeanor of the witnesses and after
due consideration of a brief filed by the General Coun-
sel, I make the following
FINDINGS OF FACT AND ANALYSIS
Ersel (June Bug) Prince operated a coal-hauling truck-
ing company' in the Logan area since 1973. On 11 April
1986, however, he abandoned that business and began to
produce coal in the Rich Creek Hollow area of Logan,
West Virginia, at mine 4. He operated the mine pursuant
to an agreement with the owner (Chafm Coal Company)
under which he was paid a fixed amount for each ton of
coal produced . Prior operators were lessees Hunt Mining
Company (during February and March 1986) and
Caryco Mining (1980 through January 1986), and Chafm
Coal Company (1980 and earlier).-The latter is owned by
John Chafm. His sons, John Jr. and Arthur, were officers
and managers of Caryco.
During 1986 , Prince provided services valued , in excess
of $50,000 for Chafin Coal Company, and the latter sold
and shipped from its Logan County facilities coal valued
in excess of $50,000 directly to points outside the State
of West Virginia . It is undisputed , and I find, that Prince
and Chafm Coal Company are, employers engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
As operations began, all of Prince 's nonsalaried em-
ployees (between 10 and 12) were members of the Union
and at least 8 had worked for the predecessor lessees,
and Prince recognized the Union nand signed the applica-
ble National Bituminous Coal Wage Agreement. Here
too it , is undisputed, and I find, that the Union is a labor
organization within the meaning of Section 2 (5) of the
Act.
John Sizemore and Arnold Toler were among those
initially hired by Prince. On filing their applications for
employment on 10 April, they urged Prince to hire a
friend (Neal Dingess) who had worked with them for
Caryco. Prince declined stating that Chafm Sr . told him
he would have to leave the Hollow (i.e., his lease would
be canceled) if he hired Dingess. In context, the state-
ment was violative of Section 8(a)(l) of the Act as it
could be expected to have a chilling effect on the will-
ingness of the applicants to engage in protected activities
as employees of Prince. They were aware that Dingess
had been a thorn in the side of Chafin by filing numerous
grievances in his capacity as the Union's mine safety
committeeman while employed by Caryco and by his ef-
forts as recording' secretary of the Union to force sever-
al lessees of Chafin' operating in the Hollow (including
Hunt) to observe state law by posting bonds guarantee-
ing employees' wages. That dispute , and Dingess' promi-
nent role in it, had been the subject of then ' current arti-
cles in newspapers of general circulation in the Logan
area, to wit: The Logan Banner and The Charleston Go-
zette. In these circumstances, an inference is warranted
and taken that Prince was aware of Dingess' activism
and the probability that it prompted Chafin' s admoni-
i The Board has held that statements to job applicants may constitute
conduct violative of Sec. 8(a)(1) of the Act. See Semi-Alloys, Inc, 260
NLRB 992, 995 (1982).
tion;2 and by choosing to cite that admonition as his
reason for not hiring Dingess , Prince was effectively
conveying what his attitude would be towards union ac-
tivists . Any doubt in that regard is dispelled by his subse-
quent conduct ,as described herein.
On 22 April, five individuals who had formerly
worked at mine 4 (including Dingess, Arthur Farley, and
Audrey Hartman) filed a grievance with Prince claiming
that he had deprived them of "panel rights" to bid for
jobs at the mine . Later that day Sizemore (who had been
hired as an electrician and promptly named by the Union
as mine safety committeeman with duties similar to those
of a steward) urged Prince to hire some or all the griev-
ants. In the presence of two other employees (Everett
Vance and Jerry Carter), Prince , reiterated his statement
that Chafin would make him leave the Hollow if he
hired Dingess; and he added that he would hire Farley
and Hartman on the following Monday provided they
took their names off the grievance.3 I find both state-
ments coercive in violation of . Section 8(a)(1). The
former for reasons indicated above , the latter because of
its inhibiting effect on the right of employees to avail
themselves of contractual, grievance procedures. See
United States Steel Corp., 250 NLRB 387, 390 (1980).
On Wednesday, 4 June, Prince told the employees that
he wanted to run coal during a 2-week shutdown for va-
cations scheduled to begin on 28 June , and he asked
them to work through that period.
On the morning of 5 June, Sizemore handed two writ-
ten grievances to General Foreman Bill Merritt , his own
and that of Carter.4 Both contained complaints that su-
pervisors - had performed unit work . Merritt took the
grievances to Prince who, on reading them , became
highly incensed and said : "Well, we'll just cut them off."
He then instructed Merritt to hand out layoff slips to all
hourly employees5 at the end of the shift. Merritt asked
what he should write on the slips as a reason for, the lay-
offs. Prince replied : "Uneconomic conditions," but
added: "[and] be sure to tell them that they were filing
too many grievances." Merritt complied, in part, by pre-
paring and issuing the layoff slips that afternoon. How-
ever, when Morgan asked him "Why?", he told the as-
sembled employees: "I ain't going to lie to you. The man
told me' that too many grievances have been filed, and
poor economic conditions."
The next day (Friday) normally would have been the
last workday of the' week. About noon on that day, Mer-
ritt and his two section foremen (his brother Roger and
Dallas Vance) were alone at the mine . About noontime
they, attempted to persuade Prince to call the men back.
Prince replied heatedly, "No. I'll starve the, ,sons-of-
3 See NLRB v. Radcliffe, 211 F.2d 309, 315 (9th Cir 1954), cert.
denied 348 U.S. 833.
3 Farley and Hartman complied , and they were hired by Prince on 28
April as promised.
4 Earlier (on 21 April) Sizemore filed a grievance over Respondent's
contracting out of , coal transportation from the mine. In it he asked that
such work be posted for bidding and that backpay be paid for the time
involved.
s At the time these were 12 in number, as follows. Vance, Randall
Morgan , C Barker, Carter, Toler, C. Bobbett, Sizemore, Hartman,
Farley, R. Johnson, C. Adams, and J. Dean.
808 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bitches to death ..: for two or three months if I have
to. If I want to run a scoop or :.. want you to .. .
that's the way I'll have it. This is my mines [sic] and I'm
going to run it the way I want to . I'm tired of John Size-
more and his union bitching and'his fucking grievances."
Shortly thereafter Sizemore came to the mine to get
his paycheck. While doing so he asked Prince if the men
had been laid off over the two grievances. He responded,
"Yes," and characterized them as "chicken shit griev-
ances." A brief discussion ensued during the course of
which Prince offered to call everyone back if Sizemore
and Carter agreed to drop the grievances. Sizemore
agreed on the spot and he phoned Carter and obtained
his withdrawal . Prince then had Sizemore call the men
by telephone and tell -them to return to work on
Monday. Later on Friday, Prince bragged to the Mer-
ritts that he' had made Sizemore pull in his horns. I find
the notice of layoff and the actual layoff to have been
prompted solely by an unlawful purpose (i.e., retaliation
for grievance filing) and so to be in violation of Section
8(a)(1), (3), and (1), respectively-as alleged in the com-
plaint . I also find the prerequisite for ending the layoff
(i.e., dropping the grievances) to have been coercive in
violation of Section 8(a)(1).
Work at the mine progressed without significant inter-
ruption until 17 July (Thursday) when another layoff
was ordered. On that morning, Sizemore reminded Gen-
eral Foreman Bill Merritt that as mine safety committee-
man he had a duty to make quarterly inspections of the
mine accompanied by a representative of the Union's
safety department and someone selected by management;
and he gave Merritt the customary 24-hour notice of
intent. Merritt, in turn, informed Prince who became in-
dignant and' told him: "What do they want to make a
safety run for, we just got through with the Federal in-
spector. It looks like we are going to have to cut them
off again to teach John ,Sizemore a lesson." He thought
for a while"And then instructed Merritt to lay off all
hourly employees (then 11 in number) except 4 who had
most seniority, effective at the -end of the workday; and
he confided that the man with fifth highest seniority
(Toler) was being laid off only so that the sixth senior
(Sizemore) "wouldn't think I am discriminating against
him." He added, "That, ought to teach John a lesson."
Merritt again asked what reason he should put on the
layoff slips. Prince replied,"Not a damn thing." Prior to
that moment Merritt had no inkling that a layoff was in
the offmg.6 Here too, I find that the layoff was motivat-
ed solely by Prince's desire to punish or retaliate against
Sizemore and, through him, the Union for engaging in a
protected act (i.e., performing a mine-inspection as pro-
vided in the collective-bargaining agreement)-in viola-
tion of Section 8(a)(3) and (1). Also, I credit testimony of
Merritt and Sizemore to the effect that on 18 July the
former told the latter that the layoff was meant to
convey a message that there was a price to be paid for
too assiduously pursuing his duties as mine safety com-
mitteeman. As communicated by admitted Supervisor
6 By 23 August all the laid-off employees were recalled and two new
ones had been hired.
Merritt, that message patently was coercive ; and it con-
stitutes an independent violation of Section 8(a)(l).
On Monday 21 July, Merritt complained to Prince of
being unable properly to run the mine with so few men,
and he emphasized the need for an electrician to main-
tain equipment. The only electricians were Sizemore and
Farley and both were on layoff. Sizemore was the
senior, and apparently to eliminate that obstacle to his re-
calling Farley, Prince- told Merritt to offer Sizemore a
job as a salaried chief electrician at a substantial increase
in pay. Prince explained that if Sizemore accepted he
would promptly "can him."7 Following instructions,
Merritt then called Sizemore and offered him the chief-
ing job. Sizemore declined and inquired, "What's he
trying to do to me, can me?" Faced with a direct ques-
tion Merritt replied honestly, "Yeah, probably." I find
that answer tantamount to a threat to punish Sizemore
for engaging in protected activities, and so violative of
Section 8(a)(1).8
Morgan was one of the four hourly workers not laid
off; and he succeeded Sizemore as mine safety commit-
teeman. On 29 July, he filed a grievance over salaried
employees performing classified work. Later in the day,
Prince and the Merritt brothers were at the mine helping
each other move supplies. Roger inquired of Prince, "Do
you think I can slip this rock dust by . . . Morgan with-
out him filing a grievance?" And Prince replied,-"Fuck
`Badeye' [Morgan]. He's already filed one grievance.
What you need to do is take him down ... to the boom
hole and . . . whoop the shit out of him . . . I thought I
got rid of my problem when I got rid of Sizemore and
now Badeye is trying to show his ass." That night
Roger, concerned about the conversation, called Morgan
and told him what Prince had said. Morgan replied, "Is
he that mad that he wants to whoop me?" Roger an-
swered, "Yes, because of the grievance . . . I just want
you to keep your eyes on him [Prince] and everything,
you know." I find a threat was communicated, in viola-
tion of Section 8(a)(1).
Prince ceased to operate the mine on 16 September,
assertedly for financial reasons. There is no allegation
nor is there any evidence that the shutdown involved
any unfair labor' practice.
Credibility Determinations
In making many of the findings above, I have credited
testimony of admitted Supervisors Bill and Roger Mer-
ritt. It seems to me that both testified in a'straightfor-
ward manner; and neither appears to have any prospect
of gain . On the contrary, they testified at considerable
risk because they then held supervisory jobs at other
mines and 'could not' expect that their appearance in a
proceeding of this type would endear them to their
7 Under art ., XVII, sec. (m) of the applicable National Bituminous Coal
Wage Agreement employees promoted to permanent supervisory status
forfeit their seniority rights immediately -
8 Further indication of Prince's ammus toward Sizemore is the fact
that, after consulting with his labor relations advisor (Clifford "Snooker"
Martin), he recalled Farley on 23 July ostensibly because he possessed a
qualification that Sizemore lacked, to wit. experience in rebuilding hy-
draulic pumps But, Farley testified credibly that on recall he performed
the same work as before and that it did not involve rebuilding pumps.
PRINCE TRUCKING CO.
present or any future employers. Further, their accounts
were consistent with and corroborated by that of the
seven .hourly workers who testified. In addition, I have
credited the hourly workers in situations where the sub-
ject of their testimony was peculiarly within their own
knowledge, having found them to have spoken without
guile . And finally, the testimony of both -the supervisors
and hourly workers rings true in the context of probabil-
ities arising out of objective facts. For example, both lay-
offs occurred immediately following assertion of protect-
ed rights, and on a Thursday instead of the normal end
of a workweek, Friday-thereby lending credence to the
claim that Prince acted solely in retaliation for assertion
of those rights.
In contrast, Prince's flat denial that he made any of the
statements attributed to him is unpersuasive. Similarly, I
regard as unpersuasive , and indeed pretextual,9 his claim
that the layoffs on 5 June and 17 July were due to eco-
nomic reasons . In reaching that conclusion I accept (de-
spite absence of adequate data) his assertion that the fi-
nancial situation of the mine during his tenure as lessee
was precarious. But at the time of the layoffs that cir-
cumstance is not shown to have been a contributing
factor. As to the 5 June layoff, Prince claimed in an affi-
davit taken prior to the hearing that it was due to his
running out of cash and a delay in obtaining a $10,000
loan from his father. But at the hearing he admitted
having obtained that loan in April when he began oper-
ations. Further, the evidence shows that lessor Chafin
had issued Prince a check for $46,196 on 3 June; and
absent any explanation from Prince, an inference is war-
ranted that he knew that check (one of the largest he
was to receive) was coming and would be received by
him on or prior to payday (6 June) when he did in fact
meet the payroll. And as to Prince's claim that the 17
July layoff was due to adverse mining conditions
(badtop) that condition was known and was being dealt
with since 1 June (Tr. 145), and no reason is given as to
why the situation would improve by operating the mine
with less miners. In that regard, Prince made no reply to
Section Foreman Roger Merritt's estimate that they
would have been out of the badtop area and operating at
full capacity within 2 weeks had a full complement been
maintained.
CONCLUSIONS OF LAW
I find that Respondent violated Section 8(a)(1) and (3)
of the Act in the particulars and for the reasons stated
above; 'that it is not shown to have violated the Act in
any other respect; and that the unfair labor practices
here found to have been committed affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
In addition to the customary cease-and-desist order
and requirement for notice mailing,10 my order will re-
9 Wright Line, 251 NLRB 1083 (1980), enfd . 662 F 2d 899 (1st Cir.
1981), cart denied 445 U.S. 989 (1982).
10 Because Respondent indisputably has ceased operations , mailing
(rather than posting) of the notice is appropriate in this case
809
quire Respondent to make whole affected employees for
all wages and benefits lost as a result of their unlawful
layoffs on 5 June and 17 July, in accordance with the
principles set forth in F. W. Woolworth Co., 90 NLRB
289 (1950), and Florida Steel Corp., 231 NLRB 651
(1977).11 I see no need for, and consequently will not re-
quire, the visitatorial clause sought by the General Coun-
sel.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed12
ORDER
The Respondent, Ersel Prince, d/b/a Prince Trucking
Company, Logan, West Virginia, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Threatening not to hire, and refusing to hire or
recall, individuals because they filed grievances or en-
gaged in other protected activities.
(b) Attempting through threats and coercion to dis-
suade employees from filing and pursuing grievances.
(c) Threatening to inflict bodily harm on an employee
for engaging in protected activities.
(d) Threatening to fire an employee for engaging in
protected activities.
(e) Laying off employees in retaliation for filing griev-
ances and for engaging in-other protected activities.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed by the Act.
2. Take the following affirmative action necessary to
effectuate the purposes of the Act.
(a) Make employees whole, with interest, for any loss
of wages and benefits suffered by them as a result of un-
lawfully laying them off , about 5 June and 17 July 1986,
in the manner set forth in the remedy section.
(b) Preserve and, on request, make available for exami-
nation and copying, all payroll records, social security
payment records, timecards, personnel records and re-
ports, as well as other records necessary and useful in
analyzing the amounts due employees under the terms of
this Order.
(c) Mail to the Union and to each unit employee who
was on its payroll at any time during the period from 11
April to 16 September 1986, copies of the attached
notice marked "Appendix."13 The notice shall be duly
signed by Respondent on forms provided by the Region-
al Director for Region 9.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
al See generally Isis Plumbing Co., 138 NLRB 716 (1962).
12 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall , as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to 'them shall be deemed waived for all pur-
poses
is If this Order is enforced by a judgment of a 'United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Circler of the National
Labor Relations Board "