Pyro Mining Co.

National Labor Relations Board - Board Decisions

Jun 28, 1973

204 N.L.R.B. 607 (N.L.R.B. 1973)

PYRO MINING CO.
Pyro Mining Company and United Mine Workers of
America, District No . 23. Cases 9-CA-7023 and 9-
CA-7128
June 28, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On January 16, 1973, Administrative Law Judge
John M. Dyer issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge' and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent , Pyro Mining Company,
Wheatcraft , Kentucky , its officers , agents , successors,
and assigns , shall take the action set forth in the said
recommended Order.
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board 's established policy not to overrule
an Administrative Law Judge' s resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record
and find no basis for reversing his findings Nor do we find merit in the
Respondent 's contention that because the Administrative Law Judge cred-
ited the General Counsel's witnesses , and discredited the Respondent's wit-
nesses, his credibility resolutions are erroneous or attended by bias or
prejudice See N L R B. v Pittsburgh Steamship Company, 337 U.S 656
(1949)
DECISION
STATEMENT OF THE CASE
JOHN M. DYER, Administrative Law Judge: The United
Mine Workers of America, District No. 23, herein called the
Union, or the UMW, filed the charge in Case 9-CA-7023
on May 9, 1972,' against Pyro Mining Company , herein
i Unless specifically stated otherwise all dates herein refer to 1972
607
called Respondent or the Company, alleging that the Com-
pany had violated Section 8(a)(1) and (3) of the Act. The
charge in Case 9-CA-7128 was filed on June 21, also alleg-
ing violations of Section 8(a)(1) and (3). An order consoli-
dating cases and the consolidated complaint and notice of
hearing was issued by the Regional Director on June 30.
The consolidated complaint alleged that Respondent had
discharged four employees and adversely changed working
conditions of a fifth employee and committed various viola-
tions of Section 8(a)(1). At the hearing the complaint was
amended to allege that the fifth man had also been discrimi-
natorily discharged.
Respondent's July 6 answer, as amended at the hearing,
admitted the requisite commerce and jurisdictional allega-
tions and the supervisory status of the supervisors named in
the complaint, but denied that it had committed any unfair
labor practices.
All parties were afforded full opportunity to appear, to
examine and cross-examine witnesses, and to argue orally
at the hearing held on October 11 and 12, in Madisonville,
Kentucky. Briefs from General Counsel and Respondent
have been carefully considered. To a considerable extent
Respondent's witnesses did not deny statements attributed
to them which were alleged as violative of Section 8(a)(1).
In other instances, Respondent's witnesses sought to blunt
the effect of the testimony by changing or adding one or two
words.
Most of the General Counsel's witnesses appeared to
make an effort to answer questions directly and candidly.
Several of Respondent's witnesses, particularly Riley, Sulli-
van, and McGregor, appeared in some instances to dissem-
ble and attempt to avoid answers to questions. Further it
appeared that these three witnesses embellished their testi-
mony by exaggeration in order to establish reasons for the
discharges. I do not credit their testimony where it is in
conflict with that of the General Counsel's witnesses.
The principal question in this case is whether the assigned
reasons for discharges are pretextual or not. I find that they
are and that Respondent has violated Section 8(a)(1) and (3)
of the Act and will make appropriate recommendations to
remedy these violations.
Upon the entire record in this case, including my evalua-
tion of the reliability of the witnesses based on the evidence
received and my observation of their demeanor and the
nature and manner in which responses were made, I make
the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION
INVOLVED
Respondent is an Illinois corporation engaged in coal
mining near Wheatcraft, Kentucky. During the past year,
Respondent bought and received directly from points out-
side the State of Kentucky goods and products valued in
excess of $50,000.
Respondent admits and I find that it is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
Respondent admits and I find that the Union herein is a
labor organization within the meaning of Section 2(5) of the
Act.
204 NLRB No. 104
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II THE UNFAIR LABOR PRACTICES
A. Background and Undisputed Facts
The rule, as stated, maintained and enforced, prohibits
any solicitation during nonwork or nonproductive time in
the mine. Respondent did not demonstrate or attempt to
demonstrate any necessity for such a rule, merely stating
that this has always been its rule. Under Board law, this rule
is invalid since it prohibits solicitation on nonworking time
without giving a legitimate basis for such prohibition. See
Daylin, Inc., Discount Division d/b/a Miller's Discount Dept.
Stores, 198 NLRB No. 40.
I therefore conclude and find that Respondent's no-soli-
citation rule as enunciated by Vice President Riley is invalid
and violates the Section 7 rights of Respondent's employees
and Section 8(a)(1) of the Act, and that its enforcement by
warnings or threats in several incidents as set forth below
also violates Section 8(a)(1).
Respondent offered testimony that the Union had sought
to organize it since it began operations in 1963. Respondent
stated that it secured a state court injunction limiting picket-
ing by the Union around 1966 and that in 1969 the Union
lost a National Labor Relations Board election. Sometime
between 1969 and 1971, the Company stated, it got the state
court to enlarge the injunction to prohibit all picketing by
the UMW. The Company defends some of its inquiries as
to the union affiliation of employees on the basis that it
sought information to determine whether the employees
were acting for the Union in picketing the mine. This de-
fense, the facts of which will be discussed below, is one
which I find does not adequately cover the offenses.
According to Respondent, the mine is in an isolated area
and a number of the miners drive as far as 40 miles to get
to work. Respondent instituted a system of monthly $10
bonus payments for employees who had no unexcused ab-
sences during a month and this bonus was paid at the end
of the year. Vice President Riley posted a notice on Decem-
ber 24, 1970, stating that any absences other than for sick-
ness would have to be cleared by the office with an excuse
before credit towards the bonus could be given. It is clear
from the testimony which follows that when they were off
sick, some employees brought excuses and some did not.
This could depend on how long they were out, but in any
event such absences in many cases were excused.
It is clear from the testimony of the employees and Riley
that there is no clearly consistent pattern in enforcement of
the rule concerning excuses and it seems to have been hon-
ored more in the breach than in the observance. It is also
clear that there were no clear standards concerning absen-
teeism prior to May 1, with Riley and his supervisors acting
as they saw fit in individual cases. The notice of December
24, 1970, did not establish a rule regarding absenteeism, but
relates only to the granting of credit for excused absences
leading towards a bonus. The first specific written rule re-
garding absenteeism, and possible punishment therefor, was
set forth in a written rule published sometime after May 1.
Vice President Riley's explanation of his conception of ab-
senteeism was that if a man was off from work too often
without a legitimate excuse he would be fired. Asked what
"too often" meant, Riley replied that was up to him to
decide and that it would depend on why the person was out
and what he felt about it and what period of time it covered.
This could not be called an objective standard.
Respondent's promulgation of an absenteeism rule fol-
Respondent operates an underground slope mine with
two production shifts, the first ending at 3 p.m. and the
second beginning at 4 p.m., and a third, a maintenance shift.
At the beginning of each shift the miners assemble at the
mine opening or portal and are conveyed in a motorized
train called a "mantrip" into the mine to their job locations.
At the time material the production shifts had four sections,
each having a 10-man crew, operating in different areas of
the mine. Each section would operate in a "run" where they
might have eight or more coal faces which would be cut,
drilled, and shot. Thereafter the coal would be loaded on a
cart which would take the coal to a conveyer belt. Conveyer
bolts from various points in the mine converged to a main
belt which took the coal out of the mine to the tipple. After
an area had been cleared, a "pinner operator" would come
in and run bolts into the roof to strengthen the roof to
protect against slate or roof falls. The bolts used by Respon-
dent are 30 inches long. The "pinner operator" would drill
a hole into the roof and then insert a bolt and a plate and
tighten it snugly to the roof. The bolts according to the plan
were to be placed within 2 feet of the coal face, within 2-1/2
feet of the side or rib of the mine, and no more than 5 feet
apart over the mine roof.
Respondent has been in business at this location since
1963. James H. Riley is a vice president and part owner of
the Company and the operating manager of the mine. As-
sisting him is Austin Tyson, the mine manager, a night and
a day superintendent, section foremen, and face foremen.
Men reporting to work ordinarily go to the change house
and change their clothes, then take their lunch with them to
the mine entrance, and ride the mantrip into the mine. They
have their breaks and eat their lunch underground. The
return trip at the conclusion of the shift again takes approxi-
mately 45 minutes until they emerge from the mine portal.
In summation, there are two 45-minute periods entering and
leaving the mine , a half-hour lunch period, and the break-
times , all of which are taken below ground and are nonpro-
ductive or nonwork time, although the Company pays the
men for all time spent below ground.
According to Vice President Riley, the Company has al-
ways had a rule prohibiting soliciting of any type on compa-
ny time, which Riley defines as all the time the Company
pays for, which would include lunch and breaktime and the
time spent in the mantrip. Respondent did not explain the
reason for this broad rule but simply stated it as a fact.
When Vice President Riley stated this rule during his testi-
mony, General Counsel moved to amend the complaint to
allege that Respondent had promulgated, maintained, and
enforced an illegal no-solicitation rule. This was the only
testimony received about this rule and, although Respon-
dent objected to the complaint amendment, which was
granted, Respondent stated it needed no additional time to
defend this allegation. The parties agreed that the validity
or invalidity of the rule rested solely on the interpretation
to be given to Riley's testimony.
PYRO MINING CO.
lowing the initiation of union activity and Respondent's
officials' knowledge of such activity make the rule some-
what suspect . The Company attempts tojustify imposition
of the rule by stating that the stringent requirements of the
1969 Federal Coal Mine Health and Safety Act made it
necessary for'the Company to cut down on absenteeism
since when a man is absent from hisjob , it causes a shortage
of the necessary manpower on the particular shift . Respon-
dent promised to get tough on "safety violations " in Safety
Director Paul Sullivan 's May 1 speech in which he also
stated that Vice President Riley would not run the mines if
the Union came in . Since the Federal act was in existence
since 1969 and Respondent had been having inspections
regarding the act for a long time before May 1, the timing
of this tightening up on safety is also suspect. This becomes
more evident by the exaggerations in some of Respondent's
testimony.
The following section contains a credited version of the
events in chronological order with findings as to the viola-
tions.
B. The 8(a)(1) and (3) Violations
1. Marvin Phillips testified that , after some discussion
among the men , he contacted the Union around April 15
and arrangements were subsequently made for a meeting of
employees to be held on April 30. Testimony indicated that
there had been no union organizational attempts for some
time prior to this date.
2. A well-attended union meeting was held on April 30.
Testimony indicates that a considerable number of
Respondent 's employees including Robert Mooney, Bobby
Rich , Marvin Phillips , Harvey Baker, and David Brooks,
the alleged 8(a)(3) discriminatees in this case , were present.
A number of employees signed union authorization cards at
the meeting and blank authorization cards were distributed
to those who wished to try to sign up other employees.
Mooney and Phillips were active in this endeavor.
3. Vice President Riley, although first stating that he was
not aware of the April 30 union meeting , admitted he heard
of the union organizational effort and said he heard the men
talking about it on April 30 or shortly thereafter . He admit-
ted that he responded to this news by telling some of the
men that he would not operate the mine if it went union.
Riley said he was present when Mine Safety Director Paul
Sullivan spoke to the first shift before they started work on
May 1. According to Riley, Sullivan told the men that Riley
had said that he would not operate the mine if it went union.
Sullivan also spoke about safety and , according to several
General Counsel witnesses , stressed the danger of smoking
and said that those violating the safety regulations could be
immediately discharged.
Riley's testimony clearly indicates that he knew of the
union meeting and organizational attempt prior to the first
shift on May 1, contrary to the impression he attempted at
first to create.
4. After completing work on the first shift on May 1,
Marvin Phillips went to the bathhouse and while he was
taking a shower , Vice President Riley came in and yelled to
him, "Phillips , I want to see some of those damn cards you
are passing out." Phillips answered , "I don't know what you
609
are talking about." Riley said he had four men that said
PhilliPs asked them to sign cards. Phillips replied that Riley
had four lying "s.o.b.'s" on his hands. Riley said , "as good
as I have been to you, and you do something like this to
me." Phillips again said that he didn't know what Riley was
talking about . Riley called Phillips a backbiting b- and left
the bathhouse.
5. Mooney corroborated Phillips' testimony , stating that
he was outside the bathhouse at the time and heard the
conversation . When Riley came out of the bathhouse he
said , "Mooney, if you know whats good for you you'll get
your damn a- up over the hill and take your brother with
you." Riley then called Mooney a backbiting b-. Mooney
asked , "Is I fired?" Riley said, "No, you are not fired, not
yet." Elmond Todd was near Mooney when Riley spoke to
him and testified that he heard Riley call Mooney a backbit-
ing b-. The brother referred to by Riley is Mooney's half-
brother , Harvey Baker.
Riley testified that he talked to Mooney and Phillips be-
cause he was told they had been passing out union cards on
company time and since this violated his rule he told them
not to do it . He said he knew Mooney was passing out union
cards because he had received one of them.
Riley did not deny the testimony of Phillips and Mooney.
He further admitted he told a couple of employees that he
wouldn't operate a mine with a union and this was com-
pounded by his authorization to Sullivan to voice this threat
to the employees.
These are clear calculated threats to the employees from
the top management official present at the mine who was
also a part owner of the Company. The attempted qualifica-
tion by Riley and Sullivan , that Riley personally would not
run the mine , is an attempt to alter the testimony which
lacks credence or force. The threat was clear and I find that,
through Riley and Sullivan, Respondent violated Section
8(a)(1) of the Act by threatening not to run the mine if the
Union came in. I further find that the questions and state-
ments to Phillips and Mooney on May 1 by Riley were
illegal interrogations of the employees in regard to their
union activities and threats of reprisals against them for
engaging in union activity and, as such, violated Section
8(a)(1) of the Act. Even if Riley considered these questions
as relating to the Company' s no-solicitation rule, they are
unlawful , as is the Company' s rule.
6. Harvey Baker signed a union card on April 30 at the
union meeting and later offered union authorization cards
to seven or eight fellow employees. On May 2 near the mine
entrance , Riley said , "Harvey, I have been good to you, I
give you a job." Baker replied that he knew that. Riley
asked , "Have you been going to these union meetings?"
And Baker answered, "Yes, sir." Riley stated that he knew
everyone that had been going to the meetings." Baker said,
"I am aware of that." Riley said if the mine went union he
would not operate it. Baker replied , "that's your business."
About that time , Baker's half-brother, Robert Mooney,
came over and Riley said, "Bobby, I've been good to you.
Have you been going to union meetings?" Mooney an-
swered yes . Riley again said that he would not operate the
mine if it went union . Mooney corroborated this conversa-
tion and added that Riley told them he wanted the union
thing talked down.
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Riley testified that he did not recall this conversation but
admitted that it was possible he had had such a conversa-
tion.
I credit the conversation as described by Baker and
Mooney and find that the Company , by Riley 's questioning
and statements , illegally interrogated these two employees
and threatened that the mine would be closed if it went
union and , by this questioning and these threats, Respon-
dent violated Section 8 (a)(1) of the Act.
7. On either May I or 2 , Mine Superintendent James
Tyson approached Mooney and handed him a union card.
Mooney asked what it was and Tyson said it was Mooney's,
that a boy had given it to him to give back to Mooney, and
he was doing so. Mooney said that whoever told Tyson that
told him a lie . Tyson said , "Well, don 't you be going to no
more union meetings and don ' t be giving out no more
cards." Mooney answered, "Yes sir."
In essence, Tyson confirmed this conversation but at-
tempted to pass it off as a joke , saying he was going to have
some fun with Mooney by giving it to him.
The comments made by Tyson take this clearly out of the
realm of any joke and establish it as an unlawful interroga-
tion of Mooney's union activities and a threat to him not to
engage in any union activities . I find that the Company, by
Tyson 's conversation with Mooney , violated Section 8(a)(1)
of the Act.
8. Bobby Rich attended the April 30 meeting and, on
May 2, was asked by Riley to come to the office following
his shift. Mine Safety Director Paul Sullivan was present at
the office and Riley began the conversation by saying,
"What in the hell have I done to you that you are about to
cut my throat?" Rich said he hadn 't done anything. Riley
then said , "Mr. Sullivan , ain't you got something you want
him to say , that you want him to hear?" Sullivan said yes,
he wanted him to understand it word by word . Sullivan then
said , "Mr. Riley has run the mines for 30 years and he ain't
running no union mine , and he ain ' t fixing to start now
because he would close it first ." Riley then said it would be
best for Rich to get his clothes and get up the hill. Rich said,
"In other words, I take it I'm fired." Sullivan said no. Riley
said , "He'll be out of here before the week 's over." Rich
then left.
In regard to this conversation , Riley said he asked Rich
why he was causing a disturbance among the men but did
not recall what Sullivan said . (Riley had testified earlier that
he didn 't use the word "union" but used the word "distur-
bance .") He testified that he called Rich into his office
because he was informed that Rich was causing a distur-
bance in the mine , making speeches and trying to get the
men to sign union cards on company time on the ride in the
mantrip coming out of the mine at the end of the shift. Riley
maintained that any such solicitation on company time, i.e.,
while the men were in the mine , was absolutely forbidden
by his no-solicitation rule.
I find that Respondent violated Section 8(a)(1) of the Act
by Riley 's interrogation of an employee 's union activities
and sentiments and by threatening him with discharge.
Sullivan 's reiteration of the mine-closing threat is an addi-
tional violation of Section 8(a)(1). As noted above, I have
found Respondent's no-solicitation rule to be unlawful and
the threats to enforce it also violate Section 8(a)(1).
9. Marvin Phillips testified that on May 3, while his sec-
tion foreman , Glenn Menser , a fellow employee , Paul Rey-
nolds , and himself were discussing the Union , Menser told
Phillips that the Company had been thinking about using
him as a section foreman on the No . 4 unit before he started
this "mess ." Menser said that if Phillips forgot about this
"mess" he might still get that job.
Menser's testimony concerning this event was not specif-
ic. He stated he believed the conversation about the bossing
job started with somebody in the crowd saying something
about who was going to be the boss in the No . 4 unit and
he said he believed he asked whether Phillips was going to
take it . He thought Phillips replied that he might have
messed that up already . Menser said he didn't know about
that . Asked whether anything was said about the Union,
Menser said that he equated the Union with "messing up"
and that there had been rumors about the Union around
that time.
Menser 's hesitating, qualified testimony makes an effort
to switch the conversation to an innocuous inquiry from a
direct threatening statement . It is clear that there was a
conversation about the supervisory job and Phillips' union
activity . I credit Phillips ' direct, clear testimony over
Menser 's hesitating , qualified version and find and con-
clude that Respondent violated Section 8(a)(1) of the Act by
Foreman Menser 's statement that the Company was think-
ing about using Phillips as a section foreman before he got
messed up with the Union and might still consider him if he
forgot about the Union.
10. Robert Mooney, who had worked for the Company
off and on since 1966 or 1967 , had in that space of time lost
an eye and one or more fingers working in the mine, some-
times as a "powder boss" and at other times as a "pinner
operator ." He was a "pinner operator" when he was dis-
charged on May 5 , a little more than halfway through the
shift, around 9 : 15 p.m. Mooney testified that his section
foreman , McGregor , and the shift foreman , Lewis watched
him work for a while and that shortly thereafter Lewis told
him his pins were 7 inches too far apart and to get his lunch
bucket and come on. As he was being escorted out of the
mine , Foreman Lewis told that Riley said Mooney was next
on the agenda.
Shortly thereafter , Lewis told employee Bobby Rich, "I
fired your buddy Mooney , they said his pins were too far
apart . I fired him and we will get you before tomorrow
night." Rich testified to this on cross-examination after
being asked how he knew that Mooney was fired because
of the Union.
Lewis did not testify , so this testimony is undenied.
Mooney testified that in putting pins into the roof he
followed what he had always known as standard procedure
for spacing the pins . He indicated that the pins were to be
placed within 2 feet of the face , 2-1/2 feet from the side or
rib of the mine tunnel , and 5 feet apart in the roof. In
spacing roof pins , Mooney followed what was described
during the hearing as the "bent wrist method," meaning that
he would measure the 5-foot distance with both arms ex-
tended and one wrist bent , with the distance calculated from
the tip of the fingers on one hand to the bent wrist of the
other hand . Mooney testified that he had always used this
method when he couldn 't tell by eye where the pin should
PYRO MINING CO. 611
be. Other pinner operators corroborated the use of this
method and that the Company did not provide any means
of measuring the 5-foot distance.
Kenneth McGregor, Mooney's section foreman on May
5, testified that Mooney told him he was getting tired of
running the pinner and this would be his last night of doing
so. McGregor's testimony was calculated to give the impres-
sion that Mooney deliberately did poor or bad work so that
he would be relieved of the pinning job. No explanation for
such a change or its desirability was offered. With
Respondent's testimony that roof falls are the number one
killer in coal mines , it is difficult if not impossible to imagine
an employee, charged with pinning the roof, deliberately
failing to do the job and leaving himself and his fellow
miners in what could be extreme danger.
McGregor testified that of the pins Mooney put in that
night, one out of three pins was hanging down some 4 to 5
inches, or was not touching the ceiling, and was anywhere
from 1 to 2 feet beyond the 5-foot limit. He said he found
areas where Mooney did not pin within 10 feet of the face.
Mooney had skipped room 8, according to McGregor, who
told him to run his complete cycle and come back and pin
it, and that they wouldn't cut there in the meantime. Mc-
Gregor said he asked Foreman Lewis to come and observe
Mooney's work and that they had talked to Mooney, who
answered that he was doing the best he could. About that
time , according to McGregor, Mooney had gone to pin
room 8 rather than follow the order to run the cycle and he
was then fired in midshift, although, according to McGre-
gor, Mooney was the only experienced pinner they had on
that shift in the mine.
McGregor testified he knew nothing of the union organi-
zation until after Mooney was fired. In the face of Sullivan's
speeches to the employees on May 1, threatening that Riley
would not run the mine if the Union came in , and with
Respondent's knowledge of the union activity, this state-
ment of McGregor's is not credible.
When questioned about the roof bolting operation, Mc-
Gregor indicated that after a coal face was shot only one
row of pins would be needed to meet the roof bolting plan,
which may be an indication of what Respondent was doing.
Further questioning revealed that such a procedure would
clearly violate the roof bolting plan since when a face is
shot, some 7 or 8 feet of coal would be removed. Since the
pins had to be placed within 2 feet of the old face and within
2 feet of the new face, it is clear that in keeping with those
requirements and the overall 5-foot spacing requirement, it
would be necessary to put in two rows of pins in each
instance when a face was shot.
Respondent's mine manager, Austin Tyson, testified that
he inspected the mine the day after Mooney was discharged
and he found some roof bolts 6 to 8 feet apart, and other
bolts loose and some bent. He testified that no work was
done except maintenance between the time that Mooney
was discharged and when he inspected the mine the next
morning.
In rebuttal to Respondent's testimony, David Brooks,
who was a pinner on the first shift, testified that when he
reported to work the day after Mooney was discharged,
having heard that Mooney had been discharged for having
pins way off, he inspected three places prior to the time that
Tyson came into the mine. He stated that he did not find
the pins grossly out of order and that since the pinner ma-
chine was cold it had not been run on the previous mainte-
nance shift. He was not told to repin any of the pins that
had been placed by Mooney and indicated that he did not
correct any work that had been done. He stated that some
of the pins may have been a bit more than 5 feet apart but
that none of them was as far as the 8 feet 2 inches to which
one respondent witness testified. Brooks said that when he
started work, there were three places that had not been
pinned. Since Mooney had been discharged with a couple
of hours left to go on his shift this would have been the right
amount of work left to be done.
Respondent offered no testimony that it ever ordered
repinning of Mooney's work, which undoubtedly would
have been necessary if the pins were as badly placed or as
misplaced as its testimony would indicate. Further Respon-
dent claims that it has never been cited for a roof bolting
violation, which clearly would have been in order if
Mooney's uncorrected work had been as bad as Respondent
painted it.
Under all the circumstances Respondent's stated reasons
for discharging Mooney can not be credited. Its chief wit-
ness McGregor denies knowing of the union effort on May
5, testimony which under all the circumstances is incredible,
and which casts serious doubt on his credibility . Since there
was no pinning or repinning performed on the second shift
following Mooney's midshift discharge, and none was done
on the maintenance shift and Brooks did not do any repin-
ning on the succeeding first shift, Respondent has no evi-
dence that any repinning was ever done. It is clear that if
the conditions were as bad as Respondent's witnesses por-
tray, at some point there would have been a mine safety
violation concerning the roof bolting plan. Further, if condi-
tions were as bad as Respondent states, it certainly would
have ordered repinning since faulty pinning to that extent
would have presented an imminent danger to everyone in
the mine.
It is conceivable that there could have been a 3-foot dis-
tance from a pin to a face in the areas in which Mooney had
not yet worked, but this would seem to be the only conceiva-
ble basis for Respondent's testimony. If Respondent's testi-
mony was based on such an event then the testimony is
calculatedly deceptive. To credit Respondent's testimony it
would be necessary to decide that Mooney, who had al-
ready suffered severe physical impairments from mine acci-
dents, was determinedly reckless to the extent that he was
willing to endanger himself and every other man in the mine
by not properly setting roof bolts.
In considering all these circumstances as well as Riley's
threat to Mooney on May 1, Tyson's threat on May 2, and
Lewis' statements to Mooney and Rich on May 5, I con-
clude that Respondent's defense is not credible. I find that
Mooney's testimony is credible and that Respondent either
seized upon a minor matter or contrived this issue as a
pretext for Mooney's discharge. I find and conclude that the
credible testimony establishes that Respondent's motiva-
tion in discharging Mooney was his union activities and
sentiments and that by this discharge violated Section
8(a)(3) and (1) of the Act.
11. Bobby Rich testified that on the following day, May
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6, he was out on a road about a mile and a half from the
mine with Mooney and Bradley when at or about 3:20 p.m.
Riley drove up with the Company's surveyor . Riley ap-
proached Mooney and said "You know , we've got an in-
junction against the United Mine Workers . I'll call the
sheriff and have your d- a- in the jail ." He then turned
to Rich and asked if he was going to work . Rich , who was
due to be at work at 4 p .m., replied that it wasn 't time for
him to go to work . Riley said , "You're fired , as of now."
Riley testified that on May 6 , he heard from some of the
incoming second shift men that some employees were out
on the road trying to get others not to go to work, and he
drove out to see what was going on. He acknowledged ask-
ing Mooney if he belonged to the Union , stating that he
considered what they were doing as UMW picketing. He
said that Mooney replied yes and he told Mooney they had
an injunction against union picketing and that if they didn't
leave he was going to call the sheriff . Riley placed this
conversation at sometime between 3 and 4 p .m. He said he
turned to Rich and told him to go to work, and that Rich
said he couldn 't go to work yet, that he had to stay on the
picket line . He testified he again asked Rich to go in to work
and when Rich refused , he told thihim he was discharged.
During his later testimony, Riley placed this as occurring
about 3 : 45 p.m.
Respondent defends this discharge on the basis that the
activity out on the road was not protected activity since
Respondent had procured a state court injunction prohib-
iting the Union from all picketing and it considered that
these individuals were acting for the Union . Respondent
also claims that some of the men said they were acting in
support of Mooney and since it is obvious (to Respondent)
that Mooney was discharged for not following
Respondent's roof bolt plan, its subsequent action in disc-
harging Rich for refusing to come to work on time was
perfectly legal and proper.
There is testimony which indicates that about the time the
union organization began , a number of employees got to-
gether and solicited mutual support , stating that if any of
them was discharged because of the union activities they felt
they all should band together and withhold their services
from Respondent . The acts of Mooney , Rich , Bradley, and
others in congregating out on the road some 1-1 /2 miles
from the mine entrance could hardly be termed picketing
the plant entrance. The undisputed testimony is that these
men did ask their fellow employees to sign union authoriza-
tion cards and asked support to strike the mine in protest
of Mooney 's discharge . Such activity is legally protected by
the LMRA , and Respondent 's flat discharge of an individu-
al in the circumstances described above is clearly violative
of Section 8(a)(1) and (3) of the Act . Respondent's attempt
to mark these individuals as union agents , in an effort to
have them cited for contempt as UMW picketing agents in
the state court , is not equatable with their activities in sup-
port of one another and in launching their organizational
campaign . The facts clearly sustain the proposition that
employees under the LMRA have a right to withhold their
services if they desire and to strike an employer . It is not
clear whether Rich was prepared at that time to strike or
not, in that he did have his lunchbox with him and accord-
ing to his testimony still had plenty of time in which to get
to work . I do not credit the subsequently sharpened testimo-
ny of Riley from his first estimate of the event occurring
between 3 and 4 p .m., to 3 : 45 p.m . in his later testimony. I
believe the testimony of Mooney and Rich that it was short-
ly after 3 p .m. when Riley appeared . Riley's discharge state-
ment clearly interfered with Rich 's right to strike if he so
desired , or with his desire to go to work if that was his
choice , since he had time within which to appear at work,
the scene only being 1-1/2 miles from the mine . Riley's
authoritorian manner was again displayed here as it was in
other instances such as the no-solicitation rule in this pro-
ceeding.
As stated above , I find and conclude that Respondent
violated Section 8(a)(1) and (3) of the Act by its discharge
of Bobby Rich . Supervisor Lewis' statement of the night
before concerning Mooney and about "getting" Rich on the
following day apparently was more truth than poetry.
12. David Brooks , after having run a "pinning machine"
for a period of time for Respondent , was taken off the
machine on May 1 I and put to shoveling coal around the
conveyer belts. Some 5 years previously , Brooks had suf-
fered a fracture of his back in a slate fall in another mine
and was receiving workmen 's compensation with a continu-
ing disability allowance of 20 percent . This fact was known
to Respondent from Brooks' fob application. The pinning
machine did not require the lifting motions of shoveling
coal. The coal shoveling job paid a lower rate and Brooks
remained on that job with the exception of I day until his
May 20 discharge.
Respondent said that Brooks was reassigned because of
inattention to safety and production standards and offered
testimony that on one occasion Brooks, contrary to the
safety regulations, rolled over an electric cable with a piece
of equipment . There was also testimony that on one occa-
sion his "ginner" blocked a coal mine car. Brooks testified
that he did not block the coal car intentionally but was
repairing a loose bolt and hanging an electric cord across a
run so he could continue working.
I do not credit Respondent 's charge. Brooks, from his
testimony and from his actions, was a very careful individu-
al who kept detailed records regarding safety violations in
the mine . According to his testimony Brooks was accosted
by the mine foreman for blocking the run while taking the
time to hang an electric cord crossing the run , which is the
antithesis of someone being careless in safety matters. This
is the only occasion to which Respondent could possibly
have any reference (Respondent 's testimony being very gen-
eral and with no date specificity ) and it seems improbable
that this could come into the area of "inattention to safety
and production standards ." It appears that the only opera-
tive reason for this transfer , in the light of Brooks' back
problem , was to cause him back problems (which it did) in
an effort to cause him to leave Respondent 's employ.
Brooks was subsequently off from May 17 through 19
because of problems with his back.
I find and conclude that the transfer from "pinner" to
shoveling coal was discriminatorily motivated with the in-
tent of retaliating against Brooks . Riley had previously stat-
ed that he knew everyone who had attended the union
meeting , as Brooks did.
13. Marvin Phillips was discharged on May 15, asserted-
PYRO MINING CO. 613
ly for absenteeism . Phillips was a shuttle car driver in the
mine and contacted the union in mid-April and helped ar-
range the April 30 meeting . He signed a union card and
solicited others . His solicitation on behalf of the Union was
known to Riley (See #4 above). Foreman Glenn Menser
admitted that he knew Phillips was a unionman at the time
he had the conversation with him concerning the bossing
job (see #9 above). Phillips had worked for Respondent
since September 1971 and sometime after beginning work
had been absent on one occasion . He brought a doctor's
excuse to his foreman , but was told they didn' t need it and
would probably lose it and for him to take it to the time-
keeper . The timekeeper told Phillips he didn 't need it, so
Phillips threw it away and did not thereafter bother to bring
a doctor's excuse when he was absent for medical reasons,
nor was he thereafter asked for a doctor's excuse by Menser
or any other supervisor.
On May 15 Phillips worked the whole day and as he was
leaving Riley asked him where he had been the previous
day. Phillips answered that he was sick . Riley asked if had
a doctor's excuse and Phillips said that he didn't. Riley then
said , "you're fired." Phillips gathered his gear and left.
14. Harvey Baker had been out on the road 1-1/2 miles
from the mine entrance on May 13 when Manager Austin
Tyson asked him and Elmond Todd if they were UMW
men. Todd said no. Tyson asked the others present what
they were doing and Baker replied they were trying to better
themselves . Tyson drove off.
Tyson said he wasn't sure of the date but admitted he
drove out, saw Todd, Baker , and the others, and asked if
they were members of the United Mine Workers. He said
he asked for his own information . He believed that Todd or
Baker responded they were not and to his question of what
they were doing received the reply they were talking. He
told them they should go to work.
This conduct of Tyson's was for the sole purpose of ob-
serving the activities of Baker and the others and amounts
to surveillance of their union organizational activities and
as such violated Section 8(a)(1) of the Act and I so find.
15. On either May 15 or 16 Baker went to see Doctor
Neal Calhoun complaining of shortness of breath, and his
condition was diagnosed as black lung disease . When he
reported for work on the morning of May 17, foreman
Lewis asked if he had a doctor's slip. He said he did not and
Lewis discharged him.
On other occasions when Baker was absent he did not
bring in a doctor's slip and states he was never told to do
so and saw no notice on the bulletin board concerning
absences . He stated his half-brother Robert Mooney was
absent more than he was and that he knew of others who
had at least as many if not more absences and had not been
discharged.
Respondent 's brief claims that Baker was discharged for
excessive and unexcused absences which had made it diffi-
cult for Respondent to meet applicable Federal safety
standards and claims that he should have known about the
rule regarding a doctor's excuse. Respondent takes the posi-
tion that reinstatement should not be ordered for Baker
since he filed a claim that he was permanently and totally
disabled as of May 15, 1972, as a result of the black lung
diagnosis and because of his allergy problems.
16. David Brooks was absent from work on May 17
through May 19, and saw his doctor on May 18. When he
returned to work on May 20 he brought with him an excuse
from his doctor dated May 18 which said the patient
(Brooks) had been seen on May 18. Day shift mine Foreman
Pope asked Brooks if he had a doctor's excuse and Brooks
answered that he did. Pope said, "Well we figured you
would have." Brooks handed the excuse to Pope who stated
it was only good for 1 day and called Austin Tyson over and
asked him to look at it. Tyson shook his head and said it was
no good. Pope told him to turn in his equipment. Brooks
turned in his equipment and left.
Brooks testified that he had seen his doctor on three other
occassions in 1972, twice because of his back, on February
26 and May 18, and once on March 16 because of a sinus
condition . On each of these occasions he had been absent
for 3 days, seen the doctor on the middle day, and reported
back to work and handed in an excuse which read precisely
as the last one, i.e., this patient seen this day, and signed by
the doctor. Brooks asked for these excuses and handed them
in because he wanted his absences excused in order to quali-
fy him for the monthly bonus.
Respondent notes in its brief that Brooks was absent
some eight times in 1972 and concedes that Brooks' testimo-
ny was to the effect that these were excused absences. Re-
spondent insists the discharge was justified since the
statement was that the patient was seen on one date and he
was absent 3 days. Respondent makes no attempt to distin-
guish this latter occasion from the other two in 1972 when
the excuse had been accepted.
17. Basically the discharges of Phillips, Baker, and
Brooks rest on Respondent 's general proposition that it was
entitled to discharge them for their lack of a doctor 's excuse.
Respondent seeks to justify these discharges with several
reasons. It argues that since late 1970 the Company had
posted a notice regarding absences which expressed a need
for an excuse. However, testimony concerning a speech giv-
en at the Christmas party held in 1970, after which this
notice was produced, and the language of the notice itself
indicate that the principal reason for the notice was to re-
mind the employees that they would not receive their bonus
of $10 a month if they did not present excuses for the time
that they were absent. The bonus arrangement provided
that each employee would receive a $10 bonus per month,
payable at the end of the year, for each month in which he
had no unexcused absences . There is nothing in the notice
concerning any punitive measures to be taken for unex-
cused absences.
It was noted above in #3 that it was only after the union
meeting of April 30 and knowledge of that meeting by Riley,
Sullivan, and Respondent's supervisory hierarchy, that Re-
spondent in its May I employee meeting threatened to stop
operating the mine if the Union came in and announced
that it was going to be strict in enforcing its safety rules,
particularly the one on smoking. Although the Federal Coal
Mine Health and Safety Act has been in existence since
1969, as far as this record shows this was the first time
Respondent announced it was going to be strict about its
enforcement. Shortly after this May I meeting Respondent
posted a notice (not seen by all the men) in which it claimed
it had been under severe pressure due to the numerous mine
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inspections which were caused by complaints to the Bureau
of Mines that they were not conforming to safety proce-
dures. The notice then said that absenteeism had been and
was considered ground for dismissal as it left the unit short
of the necessary men to conform to the act. (The act did not
set a specific number of men as being necessary for a shift.)
Respondent seeks to use this as justification for the dis-
charges of Phillips, Baker, and Brooks. According to
Respondent's Exhibit 1, Marvin Phillips during 1972 until
his discharge had 14 unexcused absences, Baker had 7, and
Brooks had 8. This exhibit also showed that another man
named Phillips, until the time he was discharged in July
1972, had 26 unexcused absences; and another individual
named Lynn discharged on April 24 had some 27 unexcused
absences. This exhibit shows that some employees had large
amounts of absenteeism in a very short space of time which
apparently led to their discharges.
Respondent through Riley and other witnesses sought to
give the impression that the employees by being absent were
violating the Federal Coal Mine Health and Safety Act
because there would not be a full complement of men on the
shift. For example in commenting on the reason for Marvin
Phillips' discharge, Riley stated it as "Laying off from work
too often and throwing us short of manpower and noncom-
pliance of the health and safety act." After extensive ques-
tioning and some dissembling by him, Riley admitted that
absence did not violate this act. He further admitted that the
number needed on each shift fluctuated. Respondent in its
brief again seeks to give that impression by stating in regard
to Marvin Phillips and Baker that their absences impeded
Respondent's ability to meet Federal health and safety stan-
dards. There would seem to be a question as to whether
Baker's absences were unexcused since Baker testified he
was only absent some 8 days and brought in an excuse for
those dates.
When questioned as to the amount of monthly bonuses
Respondent paid over a year's period, on the absence pro-
gram, Respondent's supervisors including Riley had no idea
of what amounts were paid in total or the average to each
of its employees. One of General Counsel's witnesses testi-
fied that he had had 1 good year for unexcused absences
and had received a $60 bonus, which would mean there
were only 6 months when he had no unexcused absences.
If this is typical of the employees, and it would seem to be,
there were a large number of unexcused absences at the
mine.
It appears from the totality of the evidence that prior to
May 1, 1972, no stress was placed by Respondent on having
an excuse for an absence. There is no contrary testimony
despite Riley's asserted unsubstantiated claim that the men
knew they were to bung excuses. There is no doubt that
Respondent does have an interest in keeping its men work-
ing regularly in the mine. But presumably it has had such
an interest since the first day the mine opened and would
have been interested in keeping a full crew, as far as the
Federal Coal Mine and Safety Act goes, since the first day
that act came into existence. The immediate rigorous setting
of standards on May 1 was not explained by Respondent as
occasioned by any new event or necessity. The union orga-
nizational attempt stands out as a beacon light signaling the
reason for the inception of toughened standards.
Similarly it would appear from Respondent's evidence
that these employees were disparately treated in regard to
others who were retained and in contrast to Riley's state-
ments regarding doctor's excuses, infra.
Riley testified that a man is not always discharged if he
doesn't have an excuse and said that the day shift or night
shift foremen make such decisions in regard to absenteeism,
although he took it upon himself to discharge Phillips,
whom he had questioned closely concerning the Union and
accused of stabbing him in the back by soliciting for the
Union (see #4 above). Finally Riley admitted that the num-
ber of unexcused absences for which a person would be
discharged is up to him or the superintendent and that there
was really no rule concerning it. He also admitted that if a
man came without a doctor's excuse he might be permitted
to get one.
These statements of Riley contrast rather starkly with the
treatment accorded Phillips, Baker, and Brooks who were
discharged abruptly with no thought given to allowing them
to procure a new or enlarged doctor's excuse. There did not
appear to be any warning given to the men as to how Re-
spondent was prepared to enforce the "doctor's excuse"
requirement nor did Respondent assert any reason for
changing its past practice as testified to by the employees.
It could be safely predicted that the employees would con-
tinue to operate as they had in the past unless the "new
requirements" were made to have been set up with one of
the central purposes being to provide Respondent with an
opportunity to rid itself of those whom it felt favored union
organization. This becomes more apparent when the 8(a)(1)
statements found above are considered in this context.
I find and conclude that Respondent, by discharging
Phillips, Baker, and Brooks, violated Section 8(a)(1) and (3)
of the Act.
Respondent's claim that there is no reason to reinstate
Baker, because he filed a disability claim, has no merit in
this proceeding. The question being decided here is the
reason for his discharge and I have found that the reasons
for the discharge were discriminatory and in violation of the
Act. It is not known now whether Baker is permanently
disabled or not. It would be premature for me to make such
a judgment and I decline to do so. It will be recommended
that Baker be given reinstatement and backpay and ques-
tions in this area may be raised by Respondent at a later
stage in this proceeding if necessary.
III THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section II, above,
have been found to constitute unfair labor practices in vio-
lation of Section 8(a)(3) and (1) of the Act and, occurring
in connection with Respondent's business operations as de-
scribed in section I, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of com-
merce.
IV THE REMEDY
Having found that Respondent discriminatorily termi-
PYRO MINING CO.
nated Robert Mooney on May 5 , Bobby Rich on May 6,
Marvin Phillips on May 16 , Harvey Baker on May 17, and
David Brooks on May 20 , after having demoted Brooks on
May 11, because of their actual and suspected union sympa-
thies and activities , I recommend that Respondent offer
them immediate and full reinstatement to their former posi-
tions or , if those positions no longer exist , to substantially
equivalent positions without prejudice to any seniority or
other rights and privileges they may enjoy . Respondent
shall make them whole for any loss of pay they may have
suffered by reason of the discrimination against them, by
payment to them of a sum equal to that which each would
have received as wages from the date of his discharge, and
demotion in Baker 's case , until he is fully reinstated, less any
net interim earnings . Backpay is to be computed on a quar-
terly basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289, with interest at the rate
of 6 percent per annum to be computed in the manner set
forth in Isis Plumbing & Heating Co., 138 NLRB 716. I
further recommend that Respondent , upon request, make
available to the Board payroll and other records to facilitate
checking the amounts of backpay and any other rights due
these discriminatees.
Respondent also engaged in interrogation of its employ-
ees concerning their union membership , activities, or sym-
pathies and threatened them with loss of benefits and
promotion possibilities and with cessation of mine opera-
tions if successful, and further engaged in surveillance of
their organizational activities , and promulgated, main-
tained , and enforced an unlawful no-solicitation rule, and
I recommend that Respondent be ordered to cease and
desist from violating the Act in the same or any other man-
ner.
On the basis of the foregoing findings and the entire
record, I make the following:
CONCLUSIONS OF LAW
1. Pyro Mining Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discriminatorily terminating Robert Mooney on
May 5, Bobby Rich on May 6, Marvin Phillips on May 16,
Harvey Baker on May 17, and David Brooks on May 20,
after having demoted Brooks on May 11, and not thereafter
reinstating them to their positions because of their actual
and suspected union sympathies and activities , Respondent
engaged in and is engaging in unfair labor practices affect-
ing commerce within the meaning of Sections 8(a)(3) and (1)
and 2(6) and (7) of the Act.
4. Respondent has engaged in and is engaging in unfair
labor practices affecting commerce within the meaning of
Sections 8(a)(1) and 2 (6) and (7) of the Act by: (a) Interro-
gating employees concerning their union membership, ac-
tivities , and sympathies ; (b)threatening employees with loss
of benefits if an employee continued union activities; (c)
threatening loss of promotional possibilities if an employee
continued his union activities ; (d) threatening to cease mine
operations if the employees were successful in their union
615
organizing activities ; (e) engaging in surveillance of employ-
ees' organizational activities ; and (f) promulgating, main-
taining, and enforcing an unlawful no-solicitation rule.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER2
Respondent , Pyro Mining Company, its officers , agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Discharging employees and refusing to reinstate them
in order to discourage these employees and other employees
from being or becoming union members.
(b) Interrogating employees concerning their union sym-
pathies, activities , desires, or membership.
(c) Threatening employees with loss of benefits if they
continue their union activities.
(d) Threatening loss of promotional possibilities if an
employee continues his union activities.
(e) Threatening to cease mine operations if the employ-
ees are successful in their organizing activities.
(f) Engaging in surveillance of employees ' union organi-
zational activities.
(g) Promulgating , maintaining , and enforcing an unlaw-
ful no-solicitation rule.
(h) In any like or other manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights to self-organization , to form labor organizations, to
join or assist The United Mine Workers of America , District
No. 23 , to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or
protection , or to refrain from any or all such activities.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer to Robert Mooney , Bobby Rich , Marvin Phil-
lips, Harvey Baker , and David Brooks reinstatement in ac-
cordance with the recommendations set forth in the section
of this Decision entitled "The Remedy."
(b) Make Robert Mooney, Bobby Rich , Marvin Phillips,
Harvey Baker, and David Brooks whole for any loss they
may have suffered by reason of Respondent's discrimina-
tion against them in accordance with the recommendations
set forth in the section of this Decision entitled "The Reme-
dy„
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards , person-
nel records and reports , and all other records necessary to
analyze the amount of backpay and the rights and privileges
due to Robert Mooney, Bobby Rich, Marvin Phillips, Har-
vey Baker , and David Brooks as set forth in the section of
2 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings , conclusions , and order , and all objections thereto shall be deemed
waived for all purposes
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this Decision entitled "The Remedy."
(d) Post at its Wheatcraft, Kentucky, mine, bath or
change house, sand house, and office, copies of the attached
notice marked "Appendix."3 Copies of said notice, on forms
provided by the Regional Director for Region 9, after being
duly signed by Respondent's authorized representative,
shall be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other mate-
rial.
(e) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith.
7 1n the event that the Board 's 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which the Company, the Union, and the
General Counsel of the National Labor Relations Board
participated and offered evidence, the National Labor Rela-
tions Board found that we violated the law and ordered us
to post this notice and we intend to carry out the Order of
the Board and abide by the following:
WE WILL NOT ask our employees about their union
sympathies, activities, desires, or membership.
WE WILL NOT threaten to discharge or otherwise harm
employees who are active for the Union or employees
who favor the Union.
WE WILL NOT threaten to stop or lessen our employees'
benefits if they should choose to have a union as their
bargaining agent.
WE WILL NOT threaten employees with loss of promo-
tional possibilities if they continue their union activi-
ties.
WE WILL NOT threaten to stop operating the mine if the
employees choose to be represented by a union.
WE WILL NOT keep employees' organizational activi-
ties under surveillance.
WE WILL rescind and not enforce our unlawful no-
solicitation rule.
WE WILL offer Robert Mooney, Bobby Rich, Marvin
Phillips, Harvey Baker, and David Brooks full rein-
statement together with all of their rights and any back-
pay due them.
WE WILL NOT discharge, lay off, or refuse to hire or
rehire any employee in order to try to discourage our
employees from being or becoming members of United
Mine Workers of America, District No. 23.
WE WILL NOT in any like or other manner interfere
with, restrain , or coerce our employees in the exercise
of their rights to self-organization , to form labor organ-
izations , to join or assist United Mine Workers of
America, District No. 23, to bargain collectively
through representatives of their own choosing, or to
engage in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
All our employees are free to become or remain union
members.
Dated By
PYRO MINING COMPANY
(Employer)
(Representative) (Title)
We will notify immediately the above-named individuals,
if presently serving in the Armed Forces of the United
States, of the right to full reinstatement, upon application
after discharge from the Armed Forces, in accordance with
the Selective Service Act and the Universal Military Train-
ing and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, Room
2407, Federal Office Building, 550 Main Street, Cincinnati,
Ohio 45202, Telephone 513-684-3686.