Russell Coal & Clay Co.

National Labor Relations Board - Board Decisions

Jun 23, 1967

165 N.L.R.B. 978 (N.L.R.B. 1967)

978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lester Russell d/b/a Russell Coal & Clay Co.
and International Union, United Mine
Workers of America
Lester Russell d/b/a Russell Coal & Clay Co.
and International Union , United Mine
Workers of America and Southern Labor
Union , Local Number 209 , Party to the
Contract . Cases 10-CA-6460 and 10-CA-6448.
June 23, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On February 1, 1967, Trial Examiner Phil
Saunders issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, Respondent and the General
Counsel filed exceptions to the Trial Examiner's
Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as herein modified.
THE REMEDY
The Trial Examiner found that Respondent
discriminated against Willie Alexander in violation
of Section 8(a)(3) of the Act, and recommended that
Respondent offer him immediate and full
reinstatement to his former or other substantially
equivalent position, without prejudice to seniority
and other rights and privileges, and make whole for
any loss of pay he may have suffered by reason of
discrimination against him. Although we affirm the
Trial Examiner's finding of a violation of Section
8(a)(3) of the Act, we are unable, from presently
available data, to compute the dates for which
Alexander is entitled to backpay. In addition, the
mine at which Alexander worked has been closed,
and there has been no showing that the closing was
other than economically motivated. It cannot at this
time be determined whether or not Alexander is
entitled to reinstatement in one of Respondent's
other operations. Accordingly, we leave the details
of the remedy as to Alexander to the compliance
stage of the proceeding.
With respect to the remedy for the violation of
Section 8(a)(2) of the Act, the General Counsel has
excepted to the limited remedy recommended by the
Trial Examiner. We agree and shall provide that
Respondent cease and desist from giving effect to
the collective agreement between it and the
Southern Labor Union, Local Number 209, or to any
extension, modification, or renewal thereof, with the
understanding that nothing contained in the Board's
Order shall be construed as requiring or permitting
the varying or abandoning of wages, hours, seniority,
or other substantive provisions contained in the
contract. Additionally, Respondent shall reimburse
its employees for any dues or assessments withheld
from their wages pursuant to the contract with the
Southern Labor Union, Local Number 209, or in
accordance with any other arrangement existing
between the parties.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Lester Russell
d/b/a Russell Coal & Clay Co., its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as herein modified:
1. Add the following as paragraphs 1(c) and (d)
and consecutively reletter the subsequent
paragraphs:
"(c) Recognizing the Southern Labor Union,
Local Number 209, as the representative of its
employees for the purpose of dealing with
Respondent concerning grievances, wages, rates of
pay, hours of employment, or other terms and
conditions of employment.
"(d) Giving any force or effect to the collective-
bargaining agreement executed with the above-
named labor organization on August 9, 1965, or to
any modification, extension, renewal, or supplement
thereto, provided, however, that nothing herein shall
require the Respondent to vary or abandon any
wage, hour, seniority, or other substantive feature of
its relations with its employees which has been
established in the performance of this agreement, or
to prejudice the assertion by employees of any rights
they may have thereunder."
2. Delete paragraph 2(a) and add the following as
paragraphs (a), (b), and (c) and consecutively reletter
the subsequent paragraphs:
"(a) Withdraw and withhold all recognition from
the Southern Labor Union, Local Number 209, as
the collective-bargaining representative of its
employees for the purpose of dealing with
Respondent concerning grievances, wages, rates of
pay, hours of employment, or other terms or
165 NLRB No. 128
RUSSELL COAL & CLAY CO. 979
conditions of employment , unless and until said
Southern Labor Union, Local Number 209, shall
have demonstrated its exclusive representative
status pursuant to an election conducted by the
National Labor Relations Board.
"(b) Reimburse its employees in the amount it
has withheld and deducted from their wages as dues
and assessments to be remitted to Southern Labor
Union, Local Number 209.
"(c) Make whole Willie Alexander for any loss in
job status he may have suffered by reason of his
discriminatory discharge, and pay him backpay with
6-percent interest thereon, all in a manner to be
determined hereinafter at the compliance stage of
this proceeding."
3. Insert the following inbetween the sixth and
seventh indented paragraphs to the notice:
WE WILL NOT give effect to the collective-
bargaining agreement with the Southern Labor
Union, Local Number 209, dated August 9,
1965, or any extension , renewal , or modification
of it, nor any other agreement with Southern
Labor Union, Local Number 209, which may
now be in force unless and until Southern Labor
Union, Local Number 209, has been selected by
our employees in an election conducted by the
National Labor Relations Board ; we are not
required, however, to vary the wages, hours,
seniority , or other substantive terms of
employment established under such agreement,
and our employees are free to assert any rights
they may have thereunder.
WE WILL NOT recognize Southern Labor
Union, Local Number 209, as the exclusive
representative of our employees for the purpose
of collective bargaining unless and until it has
been selected by them in the manner described
above.
WE WILL reimburse any employee from
whose wages we have withheld or deducted
moneys to be remitted to Southern Labor
Union , Local Number 209 for the purposes
aforesaid.
4. Substitute the following as the last paragraph
to the notice:
WE WILL make whole Willie Alexander for
any loss in job status he may have suffered by
reason of his discriminatory discharge , and pay
him backpay with 6 -percent interest thereon, all
in the manner to be determined hereinafter at
the compliance stage of this proceeding.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PHIL SAUNDERS , Trial Examiner : Upon charges and
amended charges filed by International Union , United
Mine Workers of America , herein called the Charging
Union or U.M . W., the General Counsel issued a complaint
in Case 10-CA-6460 on June 14, 1966, and in Case
10-CA-6448 on July 5, 1966 , with order consolidating
cases, alleging that Russell Coal & Clay Co., herein the
Respondent or. the Company, violated Section 8(a)(1), (2),
and (3) of the National Labor Relations Act, as amended. A
hearing was held before me in Jasper , Alabama, and all
parties were represented by counsel and participated fully
at the hearing. Oral arguments were waived , but briefs
were filed by all the parties and the same have been given
due considerations.
Upon the entire record in this case and my observation
of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Lester Russell and Vester Russell are , and have been at
all times material herein , copartners doing business under
the trade name and style of Russell Coal & Clay Co.,
maintaining an office at Cordova, Alabama , and mines in
the vicinity of Cordova, Alabama, including a mine
operating under the name of the strip mine.
Respondent is, and has been at all times material
herein, engaged in the mining of coal at its mines located
in the vicinity of Cordova , Alabama, and in the nonretail
sale of its coal to the Smith Coal Sales Company of
Birmingham , Alabama. During the past calendar year,
which period is representative of all times material herein,
Respondent sold coal valued in excess of $50,000 directly
to Smith Coal Sales Company, which , in turn , sold coal
valued in excess of $50,000 which was shipped directly
from within the State of Alabama to points located outside
the State of Alabama . Respondent is an employer engaged
in commerce within the meaning of Section 2 (6) and (7) of
the Act, and I so find.
II. THE LABOR ORGANIZATION INVOLVED
International Union, United Mine Workers of America,
and Southern Labor Union, Local Number 209, herein
Local 209 or Southern Labor Union, are labor
organizations within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The alleged 8(a)(1) violations include interrogation,
threats to close the strip mine if the employees did not join
Local 209, threats of discharge , and telling its employees
that it would not sign a contract with the Charging Union.
The alleged 8(a)(2) violation involves rendering unlawful
assistance and support to the Southern Labor Union, by
recognizing and executing a collective -bargaining
agreement with it on August 9, 1965. The alleged 8(a)(3)
violation involves the unlawfully motivated layoff or
discharge of Willie Alexander . There is also a threshold
question of whether or not the General Counsel has the
power to reinstate a charge which has been dismissed and
where a new charge would be barred by Section 10(b) of
the Act.
The charge in Case 10-CA-6448 was filed on
January 31 , 1966 , and specified that in order to discourage
and forestall membership in the Charging Union the
Respondent had fostered and supported Local 209. On
April 13, 1966 , the Board's Regional Director notified the
Charging Union there was insufficient evidence to issue a
complaint , and the charge in Case 10-CA-6448 was,
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefore , dismissed .' The Regional Director also cited the
Board Rules and Regulations (Section 102 . 19) wherein the
Charging Union could obtain a review of this dismissal by
filing a request for review or appeal with the General
Counsel in Washington , but that1 such appeal must be
received by the close of business on April 26, 1966. On
May 11, 1966 , the Charging Union sent a letter to the
General Counsel in Washington advising that the refusal
of the Regional Director to issue a complaint in Case
10-CA-6448 was before the General Counsel for review.
The Charging Union also attached to this letter several
affidavits in support of their contentions. By letter dated
May 16 , 1966, the Charging Union notified the Board's
General Counsel in Washington that on April 21 , 1966, the
Charging Union had forwarded to Washington a request
for review in Case 10-CA-6448. The Charging Union
stated in this letter that today (May 16 , 1966) was their first
notice that the request for review had not been received in
Washington or by the Regional Director , and that the
Charging Union had no explanation as to why this appeal
was not received within the time limits set forth in Section
102.19 of the Board Rules and Regulations , Series 8, as
amended . The Charging Union then also requested in their
letter of May 16, 1966 , that the General Counsel treat an
attached copy of their request for review as if timely filed.
By letter dated May 23, 1966 , the Board 's Office of
Appeals in Washington notified the Charging Union that
the General Counsel had received their letter of May 16
with the copy of the request for review in Case
10-CA-6448, and although the time for filing an appeal
had expired on April26 , 1966 , the General Counsel's
office, on the basis of the representations contained in the
letter from the Charging Union , had decided to open the
default and would entertain the request for review "numc
pro tunc." By letter on June 23, 1966 , the Regional
Director notified the Charging Union that after further
consideration he was withdrawing his refusal to issue a
complaint in Case 10-CA-6448 , and the dismissal letter of
April 13, 1966 , was revoked and that the case was
reinstated and would be continued under the amended
charge filed on June 22, 1966 . On June 24, 1966, the
Charging Union notified Washington and the Regional
Director that in view of the decision to issue a complaint
the Charging Union was withdrawing its request for review
or appeal.2
The Company maintains that since the initial charge in
Case 10-CA-6448 was dismissed by the Regional Director
and was not appealed within the 10 days allowed pursuant
to the Board Rules and Regulations , this amounted to a
final determination on the merits, and that the amended
charge is barred by the 6-month statute of limitations.
The Company further points out that after the initial
charge was dismissed in April 1966 there was picketing by
the Charging Union, and that it incurred considerable legal
expenses in attempts to get an injunction against such
picketing , and that the Company altered its position to its
detriment in the injunction proceeding relying upon the
dismissal of the initial charge.
The Charging Union argues that a timely appeal was
taken on the Regional Director 's dismissal of the charge,
that the appeal was prepared in mimeographed form
because of the number of copies necessary , and then
forwarded to the General Counsel on April 21, 1966. The
Charging Union maintains that it had no notice that its
appeal had not been received until the time when the
Charging Union furnished the General Counsel with
additional information in the form of affidavits, as
aforestated. The Charging Union admits that they have no
documentary evidence or return receipts that the appeal
was mailed on April 21, 1966, but states that sufficient
copies were prepared-that such have never been
returned-and that the appeal or request for appeal was
sent out by regular mail and postpaid.
As the initial charge was filed within the 6-month
limitation to reach the unfair labor practices alleged in the
complaint, the only question before me is whether the
equities in this case compel a dismissal of the complaint
and charge in Case 10-CA-6448 in view of the total
circumstances surrounding this aspect of the case.
As the Supreme Court has stated, Section 10(b)
constitutes "a provision for a 6-month period of limitations
upon the filing of charges."3 A charge "sets in motion the
machinery of an inquiry."4 Under Section 3(d) of the Act,
exclusive control or disposition of the charge once filed is
vested in the General Counsel who "shall have final
authority, on behalf of the Board, in respect to the
investigation of charges and the issuance of complaints
before the Board. ." Thus, as further stated by the
Board in Silver Bakery Inc. of Newton, 150 NLRB 421,
424-425, "it is clear that the General Counsel acting in the
public interest to effectuate the policies of the Act has
virtually unlimited discretion to proceed on charges as he
deems fit in the exercise of his office. And there is nothing
in the Act limiting his authority to issue a complaint once a
charge is filed." It seems apparent that the General
Counsel or the Board's Office of Appeals in this
proceeding acted within their overall discretion, and
within the permissible guidelines as set forth in the above
decisions by the Supreme Court and by the Board.
Furthermore, it appears to me that at all times the
Charging Union acted promptly, filing the original charge
(January 31, 1966) and within 6 months of the unfair labor
practices allegedly occurring in August 1965, and then
immediately filing the copy of their appeal from the
Regional Director 's ruling when it was ascertained that the
General Counsel had not received their first mailing. I also
fail to see from this record wherein the Company may now
claim that it is prejudiced because of the dismissal and the
subsequent issuance of the complaint. Respondent's
counsel stated that in April 1966 a strike occurred
generally throughout Walker County, and Lester Russell,
one of the Respondent's owners, testified that prior to the
Federal court injunction proceeding involving this strike,
he had received a copy of the Regional Director's
dismissal letter (Trial Examiner's Exhibit 1-A), and that on
the morning of the Federal court proceeding the Company
learned that it was not going to be a party in such
proceeding and could not, therefore, be liable for any
penalty. From these circumstances I am unable to see how
the Company suffered any detriment as a result of the
dismissal of the charge by the Regional Director on
April 13, 1966. My analysis of the above shows that
because of the dismissal of the charge the Company was
stricken as a party to the Federal court injunction
' There is no question as to the validity of the charge involving Co.] v. N L.R.B , 362 U S 411, 427
alleged discnmmatee Willie Alexander in Case 10-CA-66460 * N.L R.B. v. Tex-O-Kan Flour Mills Company, 122 F.2d 433,
i See Trial Examiner 's Exhibits 1-A through 1-H. 437 (C A 5).
' Local Lodge No 1424, Machinists [Bryan Manufacturing
RUSSELL COAL & CLAY CO.
proceeding and, therefore, could not be liable for any
possible penalty involved. From the sketchy testimony
presented by the Respondent in this respect, it seems to
me that the Company actually received a benefit in the
Federal court from the dismissal of the charge, and, if
there are any additional ramifications showing a detriment
to the Company, these factors, if any, were not reflected in
the record made before me. Moreover, as the Supreme
Court explained, the "policies [of the 6-month limitation of
Section 10(b)] are to bar litigation over the past events
`after records have been destroyed, witnesses have gone
elsewhere, and recollections of the events in question have
become dim and confused."' Bryan Mfg. Co., supra, 419.
In this case it appears that because of the Federal court
proceeding, documents were preserved, witnesses were
examined, and recollections kept current and such then
became available when the Regional Director
subsequently revoked his dismissal and issued the
complaint in question here.
In J. A. Bentley Lumber Company v. N.L.R.B., 180 F.2d
641, 642 (C.A. 5), the court stated as follows: _
That the charge, alleging illegal discharges in March
and April of 1946, and filed August 25, 1946, was
dismissed "without prejudice," August 15, 1947, and
was reinstated by the Regional Director May 28, 1948,
when it was ascertained that the dismissal resulted
from an administrative error, the nature of which
appears from the record, does not require the
complaint's dismissal. Petitioner alleges that it was
"lulled into a false sense of security," but fails to
show legal prejudice resulting from the reinstatement
of the charge. The lapse of two years between the
filing of the charge and the filing of the complaint
upon which is predicated the petitioner's claim of
laches preventing further proceedings, is likewise
without merit.
In the situation here the General Counsel extended the
time for filing the appeal because of the extraordinary
circumstances or administrative error somewhere along
the lines, as aforestated. It appears that under these
circumstances the General Counsel felt that it would have
been unduly harsh to enforce strictly the time limit for
filing appeals and accordingly permitted the Charging
Party to perfect its appeal promptly after it learned of the
oversight. I further agree that in balancing the policy of
Section 10(b) against the Act's broad remedial policy, the
General Counsel was not unreasonable under the
exceptional circumstances of this case in concluding that
the considerations favoring reinstatement nunc pro tunc of
the dismissed charge should prevail, and I so find. In
accordance with the above, Case 10-CA-6448 is properly
before me.5
As has been pointed out Lester Russell and Vester
Russell are copartners doing business under the name
Russell Coal & Clay Co., maintaining an office, loading
ramp, and garage with a parking lot at Cordova, Alabama,
and a mine at Cordova operating under the name of the
strip mine, where it mines coal , clay, and shale. The
partnership also formerly operated an underground mine
known as the sulphur springs mine, but that operation
closed on August 5, 1965, was later reopened, and then
apparently closed again on or about February 22 or 23,
' In the cases cited by the Respondent I can find no factual
situations which parallel the overall and controlling
circumstances or equities present here
s G.C Exh. 2.
981
1966. Lester Russell operates the Riceton Mining
Company as a sole proprietor with an underground mine
operating under the name of the Riceton Mine. It appears
that on August 9, 1965, the Riceton Mining Company
recognized and executed a collective-bargaining
agreement with Southern Labor Union, Local Number
209, covering its employees at the Riceton Mine. The
General Counsel is not attacking this contract. On
August , 1965, the Company also recognized and executed
a bargaining agreements with Local 209 covering its
approximately 15 to 17 employees at the strip mine,
loading ramp , and garage based on a numerical card
majority. The General Counsel contends that any
numerical majority which Local 209 may have had in the
strip mine unit was tainted by Respondent's unlawful
conduct.
Employee Willie Whitlow testified that he did not know
anything about Local 209 until employee Cecil Burton
talked with him on or about August 5, 1965. Whitlow
stated that their conversation arose out of a discussion
about hospital insurance, and that Burton then informed
him about the Southern Labor Union. Whitlow stated that
he and Burton then contacted a person by the name of
Swindle at the K and S Coal Company, and he told them of
an organizer for the Southern Labor Union named Richard
Davis, and according to Whitlow, Davis was then
contacted. On August 9, 1965, the employees met with
Davis at the Riceton Mine about 3:30 p.m. Whitlow
testified that he informed some of the other employees
about the meeting, and asked the ones he told to inform
the others, and further stated that a majority of employees
working at the strip mine were present at the meeting and
all but one employee signed an authorization card for
Local 209. Whitlow also did some of the talking at the
meeting in efforts to persuade employees to sign the cards.
An employees' committee of three then left the meeting
and discussed the proposed contract with Lester and
Vester Russell.' Whitlow stated that the Russells and the
employees' committee engaged in some arguments about
certain provisions in the proposed contract, but eventually
there was an agreement reached and the contract was
signed. Whitlow admitted that he used the company truck
in going to the Riceton Mine and in notifying employees
about the meeting , and that he left his job about 2:30 p.m.
on August 9, 1965, and that 3 p.m. was his quitting time.
Whitlow stated that it was common practice for him to
drive the company truck, and that he normally drove it to
his home most of the time.
Vester Russell testified that prior to August 9, 1965, he
had no contact with Local 209, and that he did not arrange
for anyone to attend the meeting at Riceton Mine. Russell
stated he had heard that Local 209 was trying to organize,
but on August 9 he did not go to the Riceton Mine until he
was sent for. Vester Russell admitted that he told the strip
pit employees, "that we could not live under the U.M.W.
contract."
Lester Russell testified that he had never met any
representative for the Southern Labor Union prior to the
signing of the contract, and that on August 9, 1965, he
went to the Riceton Mine because someone had informed
him about a meeting there. Russell also stated that
employees then told him that they were negotiating a
7 The Russells were also in the vicinity of the Riceton
Mine-some 200 or 300 feet from where the employees ' meeting
took place.
- 299-352 0-70-63
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract and the employees had signed authorization cards
with Local 209. Russell stated he then asked to see the
cards, and did so before the signing of the contract.
Russell further related that not all the provisions in the
proposed agreement were acceptable, and that before it
was executed concessions on both sides were made.
Employees Willie Whitlow, Ervin Handley, E. E.
Hitchcock, and Arlie Bridges testified that prior to
August 9, 1965, neither of the Russells had talked to them
about the Southern Labor Union. Handley stated that he
received word about the meeting from Whitlow; Hitchcock
stated that employee Clarence Ratliff came and picked
him up; Bridges testified that Ratliff notified him about
the meeting.
The General Counsel offered credible evidence through
the testimony of Ray Brand to the effect that Vester
Russell told him and six other employees on or, about
August 6 or 7, 1965, that he had heard the Charging Union
was trying to organize. Brand testified that on this
occasion Vester Russell also told them that if the
Company signed a contract with the Charging Union they
could not pay the 40-cent- a-ton royalty, that the Company
would have to shut down, and that the employees would
have to look or hunt for another job. Brand further stated
that Vester Russell then inquired of him as to whether or
not he knew anything about the Southern Labor Union.
Brand replied that he formerly belonged to the Southern
Labor Union, but that he did not want any part of it. Brand
also testified that on August 9, 1965, Vester Russell
wanted employees to be at the Riceton Mine and to see
what the Local 209 representative had to say. Employee
William Barton credibly testified that a few weeks prior to
August 9, 1965, Vester Russell told him that the strip mine
would have to "get organized" or go out of business,
inquired whether or not the employees knew anything
about the Southern Labor Union, and stated that he did
not see how they could live with royalty the Company
would have to pay if under contract to the Charging Union.
Rayburn Wilson credibly testified that on August 6 or 7,
1965, Vester Russell called employees together at the strip
mine and inquired as to what they thought about the
Southern Labor Union and suggested that the employees
see what they had to offer. Wilson further related that
Russell then told them that an organizer for the Charging
Union-Harold Moon-was "around" and that he was
going to have to "do something" or the Charging Union
would shut the mine down, and that he could and would
not sign a contract with the Charging Union. Gerald Staggs
credibly testified that Vester Russell asked him if he had
heard anything about Local 209, and asked Staggs if he
would go up and listen to the "man." Russell told Staggs
that the dues were only $4 a month. Clarence Ratliff gave
credited testimony to the effect that on August 9, 1965,
Lester Russell told him that there was a man from the
Southern Labor Union at the Riceton Mine and "to get"
the shovel operator and go up and see what he had to say.
Ratliff further stated that Russell on this occasion also told
him that he would have to shut the strip mine down if the
Charging Union was successful in organizing, and that the
Company could not sign a contract with the Charging
Union and would not do so. Ratliff also related that on one
occasion Harold Moon, a representative for the Charging
8 Hump Mushatt admitted that when he was hired he was also
asked whether or not he was a union radical
9 This apparently was a reference to the charge in this case,
10-CA-6460 , which was filed on February 15, 1966, and mailed to
Union, had asked him where he might find Russell and at
which time Russell drove up and he then observed the two
of them talking together. Gerald Rigsby gave credited
testimony to the effect that on August 9, 1965, Russell
called him off his truck and told him to go over to the
Riceton Mine as the "man" from the Southern Labor
Union wanted to talk to the employees.
International representative for the Charging Union,
Harold Moon, testified that he had a conversation with
Lester Russell and informed him that the Charging Union
was attempting to organize the employees and that he had
been requested to do so. Moon further stated that on or
about August 5 or 6, 1965, he and another organizer for the
U.M.W. stopped at the Riceton Mine, and that Vester
Russell told them, "If you are who I think you are, you are
trespassing, and I will ask you to get off my property."
Moon testified that later on the same day they also saw
Respondent's Supervisor Luther Yarborough who ordered
them off the road, and that when they parked their car
alongside the road Vester Russell parked his car about 100
feet from them.
Hamp Mushatt, a witness called by the Respondent,
testified on cross-examination that about 2 or 3 days before
the sulphur springs mine closed in August 1965, Lester
Russell came to the sulphur springs mine and told
employees working there that someone was trying to
organize a union, that he could not pay the royalties and
continue to operate, and that he could not sign a contract
with the Charging Union.
Alleged discriminatee, Willie Alexander, started
working for the Company at the Respondent sulphur
springs mine in November 1965. Alexander testified that
when he asked Lester Russell for the job Russell inquired
if he was a "union radical ," and Alexander told him no.8
Alexander then went to work loading coal, and on the
second day of his employment for the Company at the
sulphur springs mine, he signed a card for the Charging
Union. Alexander stated that after he started work for the
Respondent he was not laid off until his discharge on
February 6, 1966. On that day Supervisor Luther
Yarborough told Alexander that he was being discharged
because he (Alexander) had been a member of another
local for 16 years and to get off the property. Alexander
further testified that Yarborough told him that reason for
his discharge was because Alexander was associated with
the Charging Union. Alexander then explained
Yarborough's reference to 16 years as a member of
another local by testifying that for about 16 years he was a
member and held several offices such as recording
secretary, safety committee, and bank committee in
United Mine Workers, Local 5831, while working for
Alabama By-Products Company at their Bugle Mine.
Alexander also testified that at the time of his discharge
several employees with less seniority were retained. A few
weeks after Alexander's termination employee Hamp
Mushatt brought a message to Alexander's home to report
back to work, and Mushatt also made a remark that
Alexander had sued Russell.9 The. record shows that
Alexander never actually returned to his job at the sulphur
springs mine because it was closed in late February 1966.
Lester Russell testified that he attempted to hold the
working force at the sulphur springs mine to 14 employees,
Russell Coal & Clay Company, Cordova, Alabama, on
February 16, 1966 It is reasonable to presume that this Russell-
Mushatt conversation happened after the charge in Case
10-CA-6460 was received by the Respondent.
RUSSELL COAL & CLAY CO.
but due to certain circumstances the working force had
increased to 17 men and he did not have jobs for that many
employees. Hamp Mushatt then testified, as a witness for
the Company, that he had complained about being
shorthanded at the sulphur springs mine and Russell then
asked Mushatt if he knew of anyone wanting work and
Mushatt replied that Alexander was out of work.
CONCLUSIONS
The aforementioned instances that have been credibly
attributed to the Respondent include threats to shut down
the mines if the Charging Union was successful in its
organizational attempts, threats of resulting discharge
because of union activity, interrogations into employee's
union sentiments , loyalties, and desires, and numerous
statements or warnings to employees that the Company
would not sign a contract with the Charging Union. This
conduct on the part of the Respondent constitutes
violations of Section 8(a)(1) of the Act, and I so find.
The evidence established throughout this record also
shows that the Company violated Section 8(a)(2) of the Act
by its assistance to the Southern Labor Union.10 The
testimony shows that in early August 1965, the Charging
Union was attempting to organize the employees of the
Company-and the Charging Union's International
representative, Harold Moon, specifically informed Lester
Russell in a conversation between them, as aforestated,
that this was the purpose of his preliminary visitations to
the mining properties." Lester Russell even admitted he
had seen Harold Moon in and around the various vicinities
involved herein, that he had seen employee Ratliff talking
with him, and that he had known Moon for 5 or 6 years.
From the above evidence the Company had knowledge of
the efforts on behalf of the Charging Union, and from
thereon suggested and sought the intervention by the
Southern Labor Union as this record so clearly indicates
and shows.
Vester Russell even admittedly informed employees
that the Company could not live under a U.M.W.
contract.12 The Company further demonstrated its open
hostility to the U.M.W. by refusing Harold Moon access to
their mining properties and employees working thereon.
The evidence further shows that Whitlow and Burton used
the company truck to travel some distance to initially
contact the Southern Labor Union (Swindle). Vester
Russell admitted in his testimony that- while on this
journey Whitlow and Burton were in an accident and
wrecked the truck. Russell also admitted that these two
employees told him where they had been, but stated that
he did not ask them what they were doing by making such
a trip. From these circumstances, and the record as a
whole, it is clear that Vester Russell knew where Whitlow
and Burton were, and had full knowledge in the purpose of
their travel and the specific mission to be accomplished.
Moreover, this record also shows that both Vester and
Lester Russell saw to it that on August 9, 1965, the
employees were instructed to be at the Riceton Mine from
the various operations or jobs they were then performing
10 See Tennessee Consolidated Coal Company, 131 NLRB 536
11 There is no evidence or contention in this proceeding before
me that the U M W , in the time period involved herein, ever
requested recognition or filed a representation petition
12 In the past the Company and the U M W had collective-
bargaining agreements and the last contract between them was
canceled by one party or the other back in about 1962 It also
appears that U M W. filed charges against the Company in a
983
elsewhere, and the employees at the strip mine admittedly
left work prior to their normal quitting time of 3 p.m.-but
received wages for a full day's work, and two of the
employees also traveled to the meeting place at Riceton
Mine in the company truck. There, within the view of
presumably hostile management who supposedly knew
nothing about the Southern Labor Union-the employees
of the strip mine were organized, a contract was negotiated
and signed with concessions on wages, and all within the
matter of a few short hours. The actual events and
circumstances leading up to the signing of the contract
and authorization cards are also indicative of assistance by
the Company, and further shows that the Southern Labor
Union was not the freely chosen representative of the
employees involved. Gerald Staggs testified that Southern
Labor Union Representative Davis handed the employees
a hospital book, made a speech,and tried to get them to
sign authorization cards.[' Staggs stated that the
employees kept the blank authorization cards in their
pockets until they filled out the contract. Employees Arlie
Bridges, Clarence Ratliff, and Ervin Handley then went to
Lester Russell where he was waiting with Vester Russell
about 200 feet down the road from where the employees
were located. This committee of three presented the
proposed contract to the Russells. When the committee
returned to report to the employees Davis then told them
that he "guessed everybody" would be happy except the
truckdrivers because the Russells did not want to pay the
truckdrivers what they had asked for. Staggs testified that
the truckdrivers told the committee that they wanted $2.75
per hour. Staggs further testified that he was "pretty sure"
the Russells could hear their discussions because later
Lester Russell told him that he knew Staggs (a
truckdriver) and Rigsby were the ones that griped so much
about the pay since he could hear their "big mouths." The
committee again went and talked to the Russells and
reached agreement on wages. Staggs testified that all of
the strip mine employees present then went down to where
the Russells were standing and then signed the
membership cards and the contract. The testimony by
Staggs is also consistent with the testimony of Whitlow
called by Respondent as a witness who admitted on cross-
examination that Russell was present when the
authorization cards were signed. By the obvious
reluctance of the employees to sign cards the Russells
must have realized the employees were not at all anxious
to join, and it is also quite obvious that at least some of the
employees would not have signed cards without the prior
insistence from the Company indicating their support and
preference for the Southern Labor Union, and at the same
time making its opposition to the U.M.W. clear to its
employees. Furthermore, the fact that in this case the
authorizations for the Southern Labor Union were made in
the presence of the Russells was certainly not conclusive
to a free and unassisted expression of the employees'
desire, and such designations under these circumstances
are far removed from the freedom of choice in selecting a
collective-bargaining representative contemplated by the
Act.
dispute involving the sulphur springs mine in 1965, and a
complaint was issued in Case 10-CA-6620 (not involved in this
proceeding), but this case was subsequently settled
i2
G C Exh 3 shows that the card is an application for
membership, designation of Southern Labor Union as the
exclusive bargaining representative , and dues - checkoff
authorization
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Supreme Court has said: "The active opposition of
the employer [to one union] ... has a direct bearing on
the events during that intermediate period. Known
hostility to one union and clear discrimination against it
may indeed make seemingly trivial intimations of
preference for another union powerful assistance for it.
Slight suggestions as to the employer's choice between
unions may have telling effect among men who know the
consequences of incurring that employer's strong
displeasure." The Court found that the Board was wholly
justified in finding that the employer assisted the union in
International Association of Machinists, etc., Lodge No. 35
[Serrick Corp.] v. N.L.R.B., 311 U.S. 72, 78.
In final arguments the Respondent continually
emphasizes and points out that the U.M.W. has but one
contract for all employers and under such contracts the
coal operators or employers are required to pay a welfare
payment of 40 cents per ton and a fixed wage scale far in
excess of that paid by the Respondent. The Company
further contends that simple arithmetic demonstrates the
impossibility to operate a mine if you make 20 cents a ton
and have to pay the Union 40 cents a ton, and that the
Company had the right to express and state these actual
facts to its employees. I think the Respondent is right in
the argument that Section 8(c) of the Act would permit
such expressions of fact or opinion. However, this issue is
not before me as the Russells did not confine their
remarks and activities to expressions of opinions, facts, or
predictions, but frequently left the permissible field of free
speech and on numerous occasions overlapped into the
violative area of the Act by making specific threats,
interrogations, and warnings, and by such conduct and the
other events and incidents mentioned herein repeatedly
demonstrated assistance and support to the Southern
Labor Union.
The General Counsel contends that the discharge or
layoff of Willie Alexander was discriminatively motivated
in view of the statement by Supervisor Yarborough to
Alexander that Alexander had been a member of another
local (United Mine Workers) for 16 years. Certainly
company knowledge is established by this statement, and
Yarborough did not testify nor was there any explanation
offered during the hearing as to the reason that he did not
testify. The Respondent is defending the discharge of
Alexander on two factors. First, by contending it was a
layoff necessitated by the fact that Respondent was trying
to maintain an employee complement of 14 men at the
sulphur springs mine to keep from being covered by a new
"federal mining law," and secondly, that this mine had 17
men on the payroll and Respondent did not have places for
that many, so laid off 3 men, and thereby reducing the
employee complement to 14 men. As further pointed out
by the General Counsel, the defense by the Company as to
the discharge of Alexander is not consistent with the
evidence in this record. As aforestated, shortly after
Alexander's termination, employee Mushatt complained to
Lester Russell that he needed help and Russell told him to
tell Alexander to return to work. There is no credited
testimony in the record that any other employees had left
the Respondent's employ, but assuming there were 14
employees working at the sulphur springs mine after the
discharge of 3 employees-the addition of Alexander
made a total of 15 men. If the jurisdictional standard of the
"federal mining law" is that jurisdiction will be asserted in
mines employing 15 or more employees, the addition of
Alexander made a total of 15 men. However, this factor
was apparently no actual consideration or detriment to the
Company as Russell told Mushatt to rehire Alexander. As
to factor two, even if the Respondent was trying to hold the
employee complement to 14 men, at least 2 employees
with less seniority than Alexander were retained while
Alexander was selected for termination. Moreover, it is
also noted that Alexander was an exemplary worker in the
performance of his job, and that the probable basis for
giving Alexander a notice of recall was either based on the
Respondent's knowledge that the sulphur springs mine
would close or on the basis that the Company had by this
time received the charge in this case (10-CA-6460).
In accordance with the above I find that Willie
Alexander was discriminatorily terminated on February 6,
1966.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth above in section
III, occurring in connection with their operations
described above in section I, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices , I shall recommend that it
cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the
Act.
Since it has been found that the Respondent
discriminated against Willie Alexander in violation of
Section 8(a)(3) of the Act, I shall recommend that the
Respondent offer him immediate and full reinstatement to
his former or substantially equivalent position , without
prejudice to seniority and other rights and privileges, and
make him whole for any loss of pay he may have suffered
by reason of discrimination against him less interim
earnings, and that the said loss of pay be computed in
accordance with the formula and method prescribed by
the Board in F. W. Woolworth Company, 90 NLRB 289, to
which shall be added interest at the rate of 6 percent per
annum as prescribed by the Board in Isis Plumbing &
Heating Co., 138 NLRB 716. In event the Respondent's
sulphur springs mine continues closed Alexander shall be
offered reinstatement of substantially equivalent work in
one of the other mines or installations of the Company, and
details of such to be arranged at the compliance stage. I
am also recommending the issuance of a broad cease-and-
desist order , and that the Company preserve and make
available to the Board , upon request, payroll and other
records to facilitate the computation of the backpay due.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Charging Union and the Southern Labor Union
are labor organizations within the meaning of the Act.
3. By discriminating in regard to the hire and tenure of
employment of Willie Alexander, thereby discouraging
membership in the Charging Union, the Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
4. By further engaging in the conduct set forth herein
the Respondent has engaged in and is engaging in unfair
RUSSELL COAL & CLAY CO.
labor practices within the meaning of Section 8(a)(1) of the
Act.
5. By contributing support and assistance to Southern
Labor Union the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(2) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
it is recommended that Russell Coal & Clay Co., Cordova,
Alabama, its officers, agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Requiring employees and prospective employees as
a condition of employment to execute union membership
and dues-checkoff authorization cards for Southern Labor
Union or any other labor organization.
(b) Unlawfully assisting or contributing support to the
above-named or any other labor organization.
(c) Interrogating coercively'employees concerning their
union sentiments , membership, and activities.
(d) Threatening to close the mine down, and
threatening resulting discharges because of union activity.
(e) Threatening or warning employees that the
Company would not sign a contract with the Charging
Union or any other labor organization.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization , to form labor organizations , to join or assist
the Charging Union, or any other labor organization, to
bargain collectively through representatives of their own
choosing or 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 activities.
2. Take the following affirmative action;
(a) Offer Willie Alexander full reinstatement to his
former or substantially equivalent position without
prejudice to his seniority or other rights or privileges, and
make him whole in the manner set forth in "The Remedy."
(b) Notify the above-named employee if presently
serving in the Armed Forces of the United States of his
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(c) Post in their mining office at Cordova and offices in
the vicinity of Cordova, Alabama, copies of the attached
notice marked "Appendix."14 Copies of said notice, to be
furnished by the Regional Director for Region 10, after
being duly signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt thereof,
and be maintained by them for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices
are not altered, defaced, or covered by any other material.
(d) Notify said Regional Director, in writing , within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.is
14 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
985
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words " a Decision and Order."
is In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify the
Regional Director for Region 10, in writing , within 10 days from
the date of this Order, what steps Respondent has taken to
comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT interrogate coercively our employees
concerning their union sentiments , membership, and
activities-past or present.
WE WILL NOT threaten employees with discharge
because of union activity.
WE WILL NOT threaten employees with closing the
mine or mines because of their union activity.
WE WILL NOT warn or threaten our employees that
the Company will not sign a contract with the U.M.W.
or any other labor organization.
WE WILL NOT require employees and prospective
employees as a condition of employment to execute
membership and dues-checkoff authorization cards
for Southern Labor Union, or any other labor
organization.
WE WILL NOT in any manner unlawfully assist or
contribute support to the Southern Labor Union or
any other labor organization.
WE WILL NOT in any manner interfere with,
restrain, or coerce employees in the exercise of their
statutory rights.
WE WILL offer to Willie Alexander immediate and
full reinstatement to a former or substantially
equivalent position without prejudice to seniority and
other rights and privileges, and make him whole for
any loss of pay suffered as a result of the
discrimination against him.
WE WILL notify the above-named employee if
presently serving in the Armed Forces of the United
States of his right to full reinstatement upon
application in accordance with the Selective Service
Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed
Forces.
RUSSELL COAL& CLAY CO.
(Employer)
Dated By
(Representative) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 528 Peachtree-
Seventh Building, 50 Seventh Street, NE., Atlanta,
Georgia 30323, Telephone 404-526-5760.