Pyro Mining Co.

National Labor Relations Board - Board Decisions

Nov 3, 1977

233 N.L.R.B. 233 (N.L.R.B. 1977)

PYRO MINING COMPANY, INC.
Pyro Mining Company, Inc. and Jack Lambert
Matthews. Case 9-CA-10855
November 3, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO AND MURPHY
On August 12, 1977, Administrative Law Judge
Michael O. Miller issued the attached Decision in
this proceeding. Thereafter, 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
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, to
modify his remedy so that interest is to be computed
in the manner prescribed in Florida Steel Corporation,
231 NLRB 651 (1977),1 and to adopt his recom-
mended Order, as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Pyro Mining Company. Inc., Sturgis, Ken-
tucky, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
I. Substitute the following for paragraph 2(a):
"Offer to Jack Lambert Matthews immediate and
full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges previously enjoyed, and make him whole
for any loss of pay he may have suffered as a result of
the discrimination practiced against him in the
manner set forth in the section of this Decision
entitled 'The Remedy.' "
2. Substitute the attached notice for that of the
Administrative Law Judge.
i See. generally. LIis Plumbing & Heating Co., 138 NLRB 716(1962).
2 We do not adopt the Administrative Law Judge's conclusion that,
during the course of this hearing, Respondent offered the discriminatee
Matthews full and unconditional reinstatement to his former position and
that, therefore, no reinstatement remedy is required. In our judgment, the
issue was not full) nor fairly litigated and the record evidence is equivocal as
to whether Respondent's offer guarantees that Matthews will receive his full
seniority and other accrued benefits. Accordingly. we shall modify the
Order to provide our usual reinstatement remedy. In so doing. we are not
precluding the Respondent from raising and litigating this issue at the
compliance stage of the proceeding.
233 NLRB No. 44
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge employees because of
their union membership, activity, or support.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights to self-organization, to
form, join, or assist the United Mine Workers of
America, or any other labor organization, to
bargain collectively through representatives of
their own choosing, and to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or
to refrain from any or all such activity.
WE WILL offer immediate and full reinstate-
ment to Jack Lambert Matthews to his former
position or, if that job no longer exists, to a
substantially equivalent job, without prejudice to
his seniority or other rights and privileges previ-
ously enjoyed.
WE WILL make Jack Lambert Matthews whole
for any loss of pay he may have suffered by
reason of our discrimination against him with
interest.
PYRO MINING COMPANY,
INC.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge: This
case was heard on April 26, 1977, at Morganfield,
Kentucky, upon a charge filed on November 30, 1976, by
Jack Lambert Matthews, an individual, herein referred to
as Matthews, and a complaint issued on January 18, 1977,
by the Regional Director for Region 9. The complaint
alleged that Pyro Mining Company, Inc., herein Respon-
dent, discharged Matthews because of his membership in.
or activities on behalf of, the United Mine Workers of
America, herein the Union, in violation of Section 8(a)(3)
and (I) of the Act. Respondent denied that it had been so
motivated and contended that Matthews was discharged
for violation of company rules concerning absenteeism.
Upon the entire record in this case, including my
observation of the witnesses and their demeanor, and after
due consideration of the briefs filed by Respondent and
General Counsel, I make the following:
233
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS AND THE UNION'S LABOR
ORGANIZATION STATUS-PRELIMINARY CONCLUSIONS OF
LAW
Respondent is a Kentucky corporation engaged in the
operation of an underground coal mine near Sturgis,
Kentucky. During the past 12 months, Respondent sold
and shipped directly to points outside the State of
Kentucky coal valued in excess of $50,000. Respondent
admits and I find and conclude that it is an employer as
defined in Section 2(2) of the Act, engaged in commerce
and in operations affecting commerce as defined in Section
2(6) and 2(7) of the Act.
The complaint alleges, Respondent admits and I find
and conclude that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background--The Prior Cases
On General Counsel's motion, official notice was taken
of two prior unfair labor practice cases involving Respon-
dent:
Pyro Mining Company, 204 NLRB 607, 608 (1973),
involved events occurring in April and May, 1972, at a time
when Respondent had different owners and managers then
were involved in the subsequent cases. In that case,
Respondent was found to have violated Section 8(a)(1) by
promulgating, maintaining and threatening to enforce an
unlawfully broad no-solicitation rule, interrogating em-
ployees, surveilling their union activities, and threatening
them with loss of benefits, promotional opportunities, or
employment. It was further found that Respondent's
asserted reason for discharging three employees, alleged
violations of its requirement that they furnish doctor's
excuses for absences, was pretextual, that the rules were
disparately applied, and that these employees and two
others were discriminatorily discharged in violation of
Section 8(a)(3). As noted by the Administrative Law Judge
(whose Decision was adopted by the Board) in language
particularly appropriate to the instant case:
It is clear from the testimony . . . that there is no
clearly consistent pattern in enforcement of the rule
concerning excuses and it seems to have been honored
more in the breach than in the observance. It is also
clear that there were no clear standards concerning
absenteeism prior to May 1 [1972], with [the operating
manager] and his supervisors acting as they saw fit in
individual cases.
The second case, Pyro Mining Company, Inc., 230 NLRB
782 (1977), involved Respondent's present management,
the same organizational drive as involved herein, and
events much more proximate in time. Therein, the Board
found that Respondent threatened employees with loss of
jobs and with physical violence, interrogated employees,
promised and granted them benefits to discourage union
activity and discriminatorily laid off 46 employees, approx-
imately one-third of its work force, in violation of Section
8(a)(l) and (3) of the Act. Among those discriminatorily
laid off was Jack Lambert Matthews, the Charging Party
herein. Indeed, Matthews' continued layoff in the face of
overtime assignments to other employees in his classifica-
tion figured prominently in the conclusion that Respon-
dent's asserted economic defense was pretextual.
The Decision in the latter case reflects that the organiza-
tional activity involved therein had begun in April 1976.1
The unfair labor practices occurred between April and
mid-July, with the discriminatory layoffs taking place
between June 5 and August 10. On September 10, the
Board conducted a representation election among Respon-
dent's employees. The Union lost, no objections were filed,
and a certification of results issued on September 20.
B. Matthews' Employment History and Discharge
There is no question but that Matthews had less than an
exemplary attendance record. His absences, since he began
working for Respondent in April 1974, were frequent,
generally unreported and unexcused. Matthews main-
tained no records regarding his attendance during 1974,
but testified without contradiction that if he missed any
time at work during that year, he neither called in
beforehand nor provided a doctor's excuse afterward.
During 1975, Matthews was absent from work for a total of
38 days, in 16 separate incidents of absenteeism ranging
from I to 12 workdays in length. On only one occasion in
1975 did Matthews have someone call in to report that he
would be absent. He never brought in a doctor's excuse.
Neither was he asked for such an excuse and he was never
reprimanded or disciplined for his absenteeism or for his
failure to call in or provide medical support for his
absences.
In January 1976, Matthews worked only 3 days when he
was assigned to the night shift. Because of his objection to
this change, he ceased reporting to work. He told no one
that he was taking off or quitting until he went to the office
a week later to pick up his paycheck. At that time, he told
an office employee that because of the night shift
assignment he would not be coming to work. In the week
before he went to the office, no representative of Respon-
dent sought him out or indicated that he was to be
disciplined or terminated. He returned to work, at his own
request, on April 26. He was absent on May 13, for
nonmedical reasons, and, on that occasion, called in to say
that he would be absent. He was absent on May 24, 25, and
26 and neither called in nor provided any excuse. He was
neither disciplined nor admonished.
Matthews was laid off, discriminatorily, between June 5
and early August. When he returned, he wore union
insignia on his person, something only a few other
employees did, and had a union bumper sticker on his car.
He served as one of two union observers at the NLRB
election on September 10, and was the only one still
employed following the election - the other voluntarily
All dates hereinafter are 1976 unless otherwise specified.
234
PYRO MINING COMPANY, INC.
quit. Respondent admitted knowledge of Matthews' union
activity.
On September 13 and 14, Matthews was out sick. On this
occasion, he had his mother call in to report that he would
be absent. Notwithstanding that he had called in, he was
told by foreman Varney Coleman 2 that he had to have a
medical excuse. He was not permitted to return to work
without one. This was the first time that he had ever been
asked for such an excuse. He secured the excuse and was
permitted to return to work.
Matthews was not absent again until October 18, when
the fumes from car painting aggravated his respiratory
ailment and caused him to be absent for a week. He told
the two employees with whom he had been that he would
probably be absent. He was under doctor's care and, when
he returned, brought a doctor's excuse. When he reported,
Don Hatfield, the second shift mine foreman, told him,
"You're supposed to call in. You're fired.... The man
tells me you don't have a job."
Respondent's only witness was George W. Martin, its
president. Martin denied that Matthews was discharged for
his union activity. However, Martin claimed that he did
not participate in Matthews' discharge, did not know who
made the decision to discharge Matthews, and did not
evaluate the evidence leading to Matthews' discharge. He
testified that Respondent had a policy, republished in a
handbook in early June, which had been announced
consistently prior to that time, in regard to absenteeism.
That policy purported to require employees to report for
work regularly, to call in and report the reason if unable to
report for work, and provided for discharge for an
unexcused absence of 2 days. Martin admited that
employee violations of that policy were not always
punished by discharge, that usually only chronic violators
were dealt with in that manner. First and second offenses
were excused, as were employees who presented valid
excuses for being absent. An absence wherein the employee
failed to call in but produced a valid excuse upon return to
work, he said, would be treated as excused. Notwithstand-
ing its specific language the rule was administered by the
supervisors as they saw fit. Martin testified that absentee-
ism was the most common grounds for discharge. How-
ever, Matthews testified, without contradiction, that viola-
tions of the absenteeism policy were used to discharge
employees management wanted to be rid of for other
reasons.
By a clear preponderance of the evidence, I find, General
Counsel has established that Respondent discharged
Matthews because of his union activity, in violation of
Section 8(a)(3) of the Act. Matthews had engaged in overt
union activities, Respondent was aware of those activities,
and, as the prior cases establish, Respondent and its
supervision (including at least one who supervised Mat-
thews) had demonstrated animus in regard to such
activities. While it is axiomatic that an employer has a
legitimate interest in maintaining discipline and enforcing
attendance rules, the record herein establishes a long
history of virtual indifference to absenteeism and an
2 In the prior case. 230 NLRB 782. Coleman was found to have
threatened an employee with loss of employment and with physical violence
if the employee's union activity continued and to have created an
essentially arbitrary enforcement of attendance, call-in,
and medical excuse rules. In this respect, notwithstanding
changes in ownership and management, little has changed
at Pyro Mining since the initial unfair labor practices in
1972. The lack of enforcement of its rules as to Matthews
prior to the advent of the union activity, when compared
with the alacrity with which it punished Matthews
following his overt union activities is, I find, persuasive
evidence that Respondent was principally motivated by
those union activities.
Moreover, I note that while Matthews, prior to his union
activities, had been in gross violation of Respondent's
alleged policies on absenteeism without adverse impact
upon his employment, he had attempted to comply with
those policies following his return to work after the
discriminatory layoff. Thus, in his first absence, he had his
mother call in to report his absence. That did not satisfy
Respondent and he was sent home for a doctor's excuse. In
his second absence, he asked that fellow employees report
that he would be absent and brought a doctor's excuse. He
was discharged nonetheless, upon the purported grounds
that he had not called in. The disparity of Respondent's
conduct, and its strained effort to find Matthews in
violation of its rules, is apparent.
Finally, in agreement with General Counsel, I deem it
significant that Respondent adduced the testimony of no
witness who was involved in, or knowledgeable in regard
to, the reasons for Matthews' discharge. An inference,
adverse to Respondent, is warranted in the circumstances
present here. As was stated by the Administrative Law
Judge in Fred Stark and Jamaica 201 St. Corp., Inc., 213
NLRB 209, 214 (1974):
[W]here [as here] the General Counsel presents
evidence which, if accepted, establishes a material fact,
the failure of a respondent to produce evidence,
including testimony, in its possession or control with
respect to the existence or nonexistence of the fact, is a
relevant consideration in determining whether to find
the fact.
General Counsel's evidence established Respondent's
unlawful motivation. That evidence is supported by the
inference warranted from Respondent's failure to adduce
witnesses in possession of evidence concerning any con-
trary motivation.
CONCLUSIONS OF LAW
I. By discharging Jack Lambert Matthews because of
his union activity, membership or support, Respondent has
violated § 8(a)(3) and (1) of the Act.
2. The unfair labor practice described above is an
unfair labor practice affecting commerce within the
meaning of § 2(6) and (7) of the Act.
impression of surveillance of union activity, all in violation of Section
8(ax I).
235
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(3) and (1)
of the Act, it will be recommended that Respondent cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
In the course of the hearing, without admitting its
liability, Respondent unconditionally offered Matthews
reinstatement to his former position, without backpay. The
record does not reflect whether Matthews accepted that
offer. In view of the finding that Respondent discriminato-
rily discharged Matthews on October 25, 1976, and
unconditionally offered him reinstatement on April 26,
1977, it is recommended that Respondent be required to
make Matthews whole for any loss he may have suffered by
reason of the discrimination against him. Any backpay
found to be due shall be computed in accordance with the
formula set forth in F. W. Woolworth Company, 90 NLRB
289 (1950), and Isis Plumbing & Heating Co., 138 NLRB
716 (1962).
"A violation of Section 8(a)(3) goes to the very heart of
the Act." It therefore warrants that Respondent be further
required to cease and desist from infringing in any other
manner upon the rights guaranteed employees by Section 7
of the Act. Pan American Exterminating Co., 206 NLRB
298, fn. 1 (1973); Entwistle Manufacturing Company, 23
NLRB 1058 (1940), enfd. as modified 120 F.2d 532 (C.A. 4,
1941).
Upon the basis of the entire record, findings of fact, and
conclusions of law, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 3
The Respondent, Pyro Mining Company, Inc., Sturgis,
Kentucky, its officers, agents, successors, and assigns,
shall:
3 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 bfor all purposes.
1. Cease and desist from:
(a) Discharging employees because of their union
membership, activity, or support.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist the United Mine
Workers of America, or any other labor organization, to
bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purposes
of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Make Jack Lambert Matthews whole for any loss of
pay he may have suffered by reason of the discrimination
against him, in the manner set forth in the section of this
decision entitled "The Remedy."
(b) Preserve and, upon 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 backpay due under the
terms of this Order.
(c) Post at its mine copies of the attached notice marked
"Appendix." 4 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 notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the Respon-
dent has taken to comply herewith.
I In the event that 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."
236