Shawnee Caol Co.

National Labor Relations Board - Board Decisions

Aug 3, 1979

243 N.L.R.B. 1067 (N.L.R.B. 1979)

Shawnee Coal ('ompany and United Mine Workers of
America. ('ase 9 ('A 11964
August 3. 1979
DECISION AND ORDER
BY MEMBERS PNELI.O, MUIRPIY, ANt) TRUI!SDALF
On March 19, 1979, Administrative Law Judge
James M. Fitzpatrick 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 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, as modified herein.2
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 Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Shawnee
Coal Company, Shawnee, Ohio, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order, as so modified:
1. Substitute the following for paragraph l(k):
"(k) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative 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 Dio Wall Products, Inc., 91 NLRB 544
(1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings. We also find no error, as
urged by Respondent, in the Administrative Law Judge's refusal to take a
judicial view of Respondent's coal mining operation.
I2 n par. (k) of his recommended Order, the Administrative Law Judge
used the broad cease-and-desist language "in any other manner." However.
we have considered this case in light of the standards set forth in Hickmort
Foods. Inc., 242 NLRB 1357 t1979), and have concluded that a broad reme-
dial order is inappropriate. Accordingly, we shall modify the recommended
Order and notice to use the narrow injunctive language. "in any like or
related manner."
SIIAWNIE (COAl. (()MPANY
APPEN )IX
No [I( To EMII () iS
POSItl) B ORI)I:R (I 1111
NAIIONAI. LAB()R R.AII()ONS BARI)
An Agency of the United States Governmient
After a hearing at which all sides had a chance to give
evidence, the National Labor Relations Board has
found that we violated the National Labor Relations
Act and has ordered us to post this notice.
The Act gives all employees these rights:
To engage in self'-organization
To form, join, or help unions
To bargain collectively through representa-
tives of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all these things.
WE WIl.l. NO I accuse employees of union orga-
nizing.
WE WXI LL NOI interrogate employees about
their own or other employees union activities.
WE Wll.l NOI inform employees we cannot
have a union.
WE W11.1 NOI threaten to close down if em-
ployees choose a union to represent them.
WE WILL. NOT inform employees that the or
other employees were discharged because of
their union activities.
WE WII.I. NI threaten to discharge any em-
ployees who engage in union activities.
WE WIt. NOt promise raises to employees to
induce them to withhold support from a union.
WE W11.1. NOI interrogate employees about the
circumstances of their giving statements to
Board investigators.
WE WILL. NOT discharge or otherwise discrimi-
nate against employees for engaging in union ac-
tivities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them in
Section 7 of the Act.
WE WIL.L reinstate Wilbur Klinebriel with
backpay and interest thereon.
SHAWNEE COAL COMPANY
DECISION
STATEMENI OF HE CASE
JAMES M. FITZPATRICK. Administrative Law Judge: The
central issue in this case is whether an equipment operator
243 NLRB No. 177
1() 7
D)( ISIO)NS () NA I II()NAI IAB()R RFK.A'I'IONS BOARD)
i a strip coal mine \bas fired for nion organillng 1 lfor
cause. .\dditional qIuestlils. wlhich also heatl on the first.
arc whetiher officials of ihe mine made a variety of' state-
ments which interfered %with protected employee rights. As
set out belo,. I find the operator was ired for his unionism
and also that on a number of occasions mine managers
unlawfullN interfered with emniployee rights.
T''he case arises from charges filed November 25. 1977. by
United Mine Workers of America (herein L'MW or UInion)
against Shawnee ('Coal ('ompany (herein called Respondent
or Company ). Based on these charges. a complaint issued
l)ecember 27, 1977. alleging that Respondent had engaged
in unfair labor practices within the meaning of Section
8(a)(l) and (3) of' the National abor Relations Act. as
amended (the Act). by discharging employee Wilbur .
Klinebriel. Jr.. on November 17. aid thereafter refusing to
reinstate him, because of his activities on behalf of the
UMW. The complaint, as amended at the hearing, also al-
leges various independent violations of Section X(a)l I) in
the form of remarks directed at employees. including accu-
sations of union activity. threats to close the mine if they
selected the tIMW, informing Klinebriel he was being fired
because of' his union activities and informing another em-
ployee that was the reason he was fired. informing an em-
ployee that union activities were tinder surveillance, in-
forming employees that those active in the Inion would he
discharged. interrogating employees about their union ac-
tivities informing one employee that the employer knew
another employee had signed a union card, promising a pay
raise and other financial assistance to an employee to per-
suade him to abandon his allegiance to the Union, and in-
terrogating an employee about a statement he had given to
a Board investigator. Respondent answered, admitting ju-
risdictional allegations. but denying commission of the al-
leged unfair labor practices. fhe issues were heard before
me at L.ancaster. Ohio., on April 13 and 14 and May 8.
1978.
Based on the entire record. including my observation of
the witnesses and consideration of the briefs filed by the
parties, I making the following:
FINDIN(GS O() FA(I
I. I MIPI.()YIR
Respondent. an Ohio corporation, has, since October
1976, operated a strip coal mine at Shawnee. Ohio. The
Company is owned entirely by James Graham. an industri-
alist who also owns substantial interests in 15 other corpo-
rations operating in Ohio. Day-to-day management of the
Shawnee mine is in the hands of Claude Imler. Jr.. the mine
superintendent, and his son Claude W. Imler, the mine
foreman. The elder Imler has a financial interest in the
mine in that he is entitled to royalties based on the amount
of coal mined.
During the calendar year preceding issuance of the com-
plaint Respondent purchased and received goods and mate-
rials valued at over $50,000 which were shipped directly to
the Shawnee mine from points outside Ohio. I find that the
Respondent is an employer within the meaning of Section
2(2) of the Act And is engaged in commerce and operations
affecling comminierce within the meaning of Section 2(6) and
(7) of the Act.
At the Shawnee mine. Respondent is engaged in second-
arN recovery ot coal tfrom a long abandoned underground
mine first worked hby orthodox methods in the 19th century.
I his earlier extraction had left coal in pillars supporting the
ceiling of rooms in which the original mining was done. The
ceilings have long since collapsed. The present et'fort is to
extract these pillars of coal using strip mining methods.
Ihis entails scraping off the overburden, then grading the
earth to within an inch or two of' the coal, then cleaning the
surtace of the coal manually with shoxels and with brushing
machines, then digging out the coal with a backhoe and
loading it onto trucks for delivery to the mine tipple.
DIuring the relevant period. the mine employed approxi-
mately 20 employees including equipment operators. man-
ual laborers, mechanics. truckdrivers, and a tipple operator.
II. IliFl NION
'The Shawnee mine has been a nonunion operation. In
the summer of 1977. the UMW. a labor organization within
the meaning of Section 2(5) of the Act. became interested in
organizing the mine employees. UMW International Rep-
resentative Robert Porter contacted Wilbur Klinebriel. a
longtime member of UMW who at that time was employed
at the Shawnee mine. In the ensuing weeks Klinebriel casu-
ally talked individually to approximately eight employees
in and around the mine in an effort to interest them in
U!M W' representation.
11it1. 1111 i 11(t1) tUNIAIR I A(BOR PRA( 1( LS
A. The Empilow ent ti and 'orA 4AiWgnlcenl o Klinebrilc/
Klinebriel was hired by Superintendent Imler on June 4.
1977, as an equipment operator. The elder Imler already
knew him from having worked with him in the past on
highway construction jobs. He also knew that in the past
Klinebriel had been involved in union-related grievances
with various employers.
At Shawnee. Klinebriel was first assigned to operate a
rubber-wheeled front-end loader to load clean coal from the
mine tipple onto trucks for outside transport. After 3 to 5
weeks of this work. Superintendent Imler reassigned him to
a mine pit to operate the 988 loader." a backhoe. This
more difficult assignment involved cleaning off unmined
coal and, after the coal was dug out with a backhoe load-
ing it onto pit trucks for transport to the mine tipple for
processing. Until his discharge in November. operating the
988 loader continued to be his primary, although not his
only, task. With this new assignment he received a raise of
$1 per hour, making him the highest paid worker at the
mine. At the time of his discharge on November 17, he was
earning $6.50 per hour.
B. Klinebriels Union 4 cilvities
As already noted, shortly after Klinebriel began working
at the mine. UIMW International Representative Porter dis-
SIIAWNI' L ('()AI ('()NIPANY'
cussed with him prospects for organizing the mine emplo\-
ees. Thereafter Klinebhriel talked about the U nion with em-
ployees at the mine.
About 3 days before his discharge on Thursday. Novem-
ber 17, he had a talk about lUMW with Ricky Whitmer. a
scraper operator at the mine. Klinebriel gave Whitmer Por-
ter's business card with Klinebriel's telephone number writ-
ten on the hack and told Whitmer to call Porter to tell him
that they would like to talk with him about having a union
at the mine. According to Whitmer. he put the card in his
pocket and never saw it again.
Respondent denies knowledge of Klinebriel's union ac-
tivity at the mine. However, based on the above Lfacts, to-
gether with other facts found hereinafter indicating such
knowledge. I find that by November 17 both Imlers knew
of Klinebriel's efforts to organize for the UINMW among
mine employees.
After Klinebriel's discharge. both he and Porter contin-
ued their efforts to interest mine employees in the UMNW.
These organizing efforts occurred chiefly at the homes of
individual employees and continued into Januar 3 1978.
Their efforts resulted, according to Klinebriel. in their ob-
taining 13 authorization cards for MW. including his
own.
C. The Evenlts o/ N'v'mchur 7
I. Klinebriel's work in the mine pit
At starting time on the morning of November 17 the 988
loader which Klinebriel usually operated was broken down.
Because of this, Foreman Imler assigned him to operate a
road grader in one of the mine pits. He was instructed first
to grade off the access road into the pit and then to clean off
the overburden from two or three pillars of coal so that a
backhoe could dig out the coal and load it on trucks fobr
hauling to the tipple.
It is undisputed that he performed the grading on the
access road. The parties are in dispute as to whether he
performed the second part of his assignment. the General
Counsel and the Union claiming that he did. and Respon-
dent claiming that he did not. The issue is crucial because
Respondent relies on his alleged failure as the immediate
reason for discharge.
According to Klinebriel. whom I credit because he testi-
fied in a forthright and explicit manner, his instructions
were to grade the road and then to clean off the pillars of
coal. After grading the road he proceeded to scrape off dirt
from the coal but did not remove rock because to do so
would have damaged the grader and in his judgment he
would have been fired had he done so.' His testimony indi-
cates that the coal he worked on was not entirely cleaned
because of the rock. Having done as much as he thought he
could with the grader, he drove it to the yard to see whether
the 988 loader was available for use and to obtain further
instructions.
I According to Klinebriel's undenied tesulmons. the other 5lpes ot equip-
ment appropriate for removing rock from a coal pillar include froni-end
loaders, pans, bulldozers, and the 988 loader.
In support of its contention that Klinehricl had not per-
tirmed his work as directed. Respondent offered the testi-
mon? of Superintendent Imler. F-oreman Imler. and laborer
Richard Stickdorn. Other workers in the pit. which would
include :t least two truckdrivers and a hulldoicr operator.
were not called to testif\.
Stickdorn's job was to ha;nd-shoel remaining dirt off the
coal pillar after the gralder scraped it and then to hrush it
with a machine brush before it was dug out. I o the extent
that he contradicts Klinebriel. I do not credit him. lie tcsti-
fied that Klinebriel did not finish his work of grading he-
cause he departed from the pit leaving an inch of dirt on the
coal whch Stickdorn then had to remove b hand. Other
evidence in the record establishes that a tolerance of about
I inch is as clo.e as a grader can come to the coal. Stick-
dorn also testified that Klinehriel got off his grader and
talked with him on three toccasionl that morning but he
could not recall anything said in those con ersations. As to
Klinebhriel's aclities hetween their alleged con ersatilons.
he first testified that he did not know and then that Kline-
briel just sat on his grader doing nothing between the first
and second conversation and again between the second and
the third. lie also testified that about an hour's time sepa-
rated each conversation. The overall thrust of his testimon,
is that Klinehriel did nothing that morning. Ihis. hiow ever.
does not square with his other testimon\ that the! loaded
two coal trucks each with a capacits of 17 of 18 tons. vhich
was about average production. Stickdorn also testified in a
self-contradictors manner respecting Klinebricl's usual
work assignment. He first denied thatl Klinebriel usuall
operated the 988 loader but then on cross-examination re-
versed himselfl'. In sum. I find Stickdorn's testimon\ not
worth) of credit.
Superintendent Imler testified that. following complaints
from his son. the foreman, that lie could not keep Kiinebriel
working. he went to the pit himself where he learned that
Klinebriel had left with the grader to go to the maintenance
yard. lie testified that the coal on which Klinebriel had
worked was not clean. In this he does not contradict Kline-
briel. whose testimon3 indicates that the coal was oerbhur-
dened with some material which he thought a grader would
not handle and he had gone to the ard to see if the 988
loader. which was a more appropriate machine. was read)
for use. Although Superintendent Imler. Foreman Imler.
and Stickdorn all testified after Klinebriel had described the
rock problem. none of them specifically addressed that situ-
ation. As it is, Klinebriel's testimony regarding the rock
stands uncontradicted.
It thus appears that. although the coal was not com-
pletely cleaned. it was burdened with material which, argu-
ably at least, was too difficult for a road grader prudently
operated. and Klinebriel had gone for a heavier dut' ma-
chine. Even if others might reasonably disagree with his
judgment. it obviously was not loafing on the job, which is
what Respondent contends he was guilty of. In an) case.
loafing seems out of character for Klinebriel. He had never
been reprimanded for loafing. Although an employer has
A preponderance of other eidence establishes heond question hat op-
eration of the 988 loader Has Klinebriei's usual assignment although he was
qualified to operate, and on occasion did operate. other equipment
I (69
I)t('lSI(ONS ()i NAI'IONA I.AB()R R.AFIONS BOARDI
no responsibility to explain an emplovee's conduct. the rea-
sonableness. or lack thereof, of conduct which an employer
contends the employee engaged in is of some value in deter-
mining whether in fact that conduct occurred. In the pre-
sent matter, I find that Klinebriel did not loaf' on the job.
He did what in his judgment he reasonably could do with
the equipment he was operating and then went to the yard
for a machine with greater capacity. Later that day, after
his discharge his replacement was assigned to operate the
same machine which he went to the yard to get.
Foreman Imler testified that during the morning of No-
vember 17 he visited the pit on two occasions, that on the
first he found Klinebriel off his machine talking with a
truckdriver and that on the second he was off his machine
talking with Stickdorn. On both occasions, according to
him, he told Klinebriel that the coal had to be cleaned and
Klinebriel responded by resuming his work. Stickdorn. on
the other hand, testified that the foreman came to the pit
two or three times that morning and instructed them to get
the coal ready, but instead of working Klinebriel ignored
the foreman and just sat. Klinebriel specifically denied that
the foreman visited the pit as either Foreman Imler or
Stickdorn described.
Stickdorn was not a credible witness. If' Foreman Imler's
version is correct, then Klinebriel did virtually nothing that
morning respecting the cleaning of coal, leaving from I to 6
inches of mud on the coal, and then left the pit in violation
of instruction. However. as indicated above, such conduct
by Klinebriel seems unlikely. Also, as found above, there
was a problem with rock for the removal of which other
equipment was indicated and none of Respondent's wit-
nesses, including Foreman Imler, addressed that problem.
In the circumstances. I do not credit Foreman Imler. The
testimony of Superintendent Imler indicates that when he
went to the pit coal was being loaded, but that the coal
ahead of the backhoe was not clean and the cleaning opera-
tion was not keeping sufficiently ahead of the digging. But
this, even if true. is not inconsistent with the fact that Kline-
briel left to get a heavier duty machine to handle rock.
2. The discharge of Klinebriel
As found above, Klinebriel left the pit for the mainte-
nance yard. In the meantime, Superintendent Imler. not
finding him at the pit, followed him to the yard. They ar-
rived about the same time. Imler got out of his truck. As he
did, Klinebriel saw him lean a shotgun against the truck
seat. Imler than got up on the grader with Klinebriel. He
admittedly was angry. According to Klinebriel, Imler stated
he was very disappointed in him, that he thought they had
an agreement. Klinebriel replied he did not know what he
was talking about. Imler then said they had an agreement
that there was not going to be a union at the mine. Kline-
briel said he knew nothing about this. Imler then showed
him Porter's business card, which Klinebriel had previously
given to Whitmore with Klinebriel's home telephone num-
ber written on the back. According to Klinebriel, Imler
then said that he did not know what he was going to do
about it. After a pause he told him that if he would keep his
mouth shut, he would give him a good layoff. Klinebriel
correctly understood this to mean that Imler would not
contest his claim for unemployment compensation. the su-
perintendent then told Klinebriel to gather his personal he-
longings. leave the job. and go to the office. At the office he
gave him his paycheck, again saying he was very disap-
pointed in him, that he had known Klinehriel so many
years. but there was no was they could have the UM\ at
the mine, that Graham would shut it down and write it off
as a tax loss and the employees would be without work.
Respecting this last comment, I note it was not a recitation
of past fact but rather a prediction of future action.
Superintendent Imler's testimony agrees with Klinebriel
in that he discharged him at that time, but contradicts
Klinebriel on what was said. He testified that he asked
Klinebriel why he had not cleaned the coal and that Kline-
briel replied that he had done the work. At another point in
his testimony he reported that Klinebriel replied that the
coal was as clean as he could get it. And finally he reported
that Klinebriel replied he had cleaned the coal. lie agrees
that he discharged him on the spot saying he could not put
up with him any more and telling him to go to the office. At
the office, according to his testimony. he had calmed down
some and decided to let Klinebriel have unemployment
compensation because jobs were hard to get. He denied
telling him to keep his mouth shut or conditioning his ac-
quiescence to unemployment compensation on Klinebriel's
agreement not to talk to other employees as to why he was
fired.
On these conflicts in testimony. I credit Klinebriel be-
cause Imler was slightly inconsistent in reporting Kline-
briel's part of the conversation. ie also spoke in anger at
the time in question. More importantly. however. as fiound
elsewhere herein, the superintendent was fearful that the
employees would be organized by UMW and the content of'
the conversation as reported by Klinebriel is more consis-
tent with that deep anxiety than is the version of Imler.
Based on the foregoing. I ind that, in the process of dis-
charging Klinebriel. Superintendent Imler committed in-
dependent violations of Section 8(a)( I ) of' the Act by accus-
ing him of attempting to organize mine employees into a
union, by declaring that there was no way they could have
the UMW at the mine, by declaring that Graham would
shut down the mine and write it off as a tax loss leaving the
employees without work, and also, in effect, informing him
that he was being discharged because of his union organiz-
ing.
I also find, based on the foregoing as well as facts set out
more fully hereinafter. that the discharge and subsequent
failure to reinstate Klinebriel discriminated against him be-
cause of his UMW activities, discouraged membership in
the UMW. and violated Section 8(a)(3) and ( I ) of the Act.
D. TI7e November Statements to Hanning
I. Assignment to the 988 loader
About midday on November 17. after Klinebriel was dis-
charged. the two Imlers approached Charles Hanning, who
was then operating a scraper. Superintendent Imler reas-
signed him to work on the 988 loader which Klinebriel usu-
ally operated. During their conversation, according to Han-
ning, he asked what had happened to Klinebriel and was
1070
SHAWNEE COAL COMPANY
told, apparently by Superintendent Imler, that Klinebriel
was terminated because he had been lying down on the job.
had been seen at a union representative's house, and was
passing UMW cards around. The superintendent further
said that if Graham had wanted the mine to be union, it
would have been union from the start, and if the Union got
in Graham would shut down the mine.
Both Imlers denied that the above statements were made.
I credit these denials because the Imlers corroborate each
other and also because of the possibility that Hanning's
view of the facts may have been affected by his heavy
drinking. On cross-examination he admitted it was possible
his testimony was based on ideas suggested by Union Rep-
resentative Porter or Klinebriel during his extended drink-
ing bouts subsequent to Klinebriel's discharge.
After being reassigned to the 988 loader, Hanning contin-
ued operating that machine for the balance of thc day and
the following morning. He testified that while he was at the
mine pit on the morning of November 18, Superintendent
Imler talked with him about Klinebriel, saying, among
other things, that Hanning could do a better job than
Klinebriel and that Klinebriel had been discharged for
lying down on the job, for complaining too much about the
condition of the machine, and because of his activities with
the union representative. Superintendent Imler denied mak-
ing these remarks. I credit his denial for the reasons set
forth above regarding the alleged conversations with Han-
ning on November 17 and also because Hanning, when first
asked what was said in the conversation on the 18th, testi-
fied that he was too nervous to recall what was said.
Hanning also testified that in the afternoon of November
18, while he was in the maintenance yard. Foreman Imler
told him his father went stark raving mad when he found
out about the union card. He further testified that later in
that afternoon, while he and the foreman were driving in a
truck, the younger Imler told him they had known Kline-
briel had a history of dealing with the Union on various
other jobs, and that he also told him that if Klinebriel got
one or two more statements, "he'd of had the Company by
the ass." In his testimony, Foreman Imler denied making
either statement. I credit his denial and do not credit Han-
ning's testimony for the reasons stated above respecting his
testimony about prior alleged incidents on November 17
and 18.
E. The Statement to Simpson in Iate November
Paul Simpson, the mine tipple attendant, has known the
elder Imler all his life. At the time of Klinebriel's discharge,
Simpson was unaware of any union activity at the mine.
But thereafter, Klinebriel continued his efforts to interest
employees in the UMW, and 2 or 3 days after Thanksgiv-
ing, he and Porter called on Simpson at his home. They told
him about the Union, gave him some literature. and per-
suaded him to sign a UMW authorization card.
The next day while Simpson was at work at the tipple,
the elder Imler commented to him that Klinebriel was gone,
that he had been trying to organize a union by going
around asking employees if they were interested, and that
anyone else that wanted a union would go down the road
too. By thus telling Simpson, in effect, that Klinebriel was
fired because of his union efforts. Imler violated Section
8(a)(1l of the Act. His general threat to fire anyone who
wanted a union also violated Section 8(a)( I).
Imler admitted saying that somebody would go down the
road, but he placed the time of his remark around March 6.
1978, by which time he had recalled some employees at the
end of the nationwide coal strike.' According to him the
remark had nothing to do with union organizing. He said
the coal strike had hurt everyone in the industry and that
any employee who did not do his work would have to go
down the road because one man could not do the other
man's work. To the extent that Superintendent Imler de-
nied making statements attributed to him by Simpson
shortly after Thanksgiving, I do not credit him. He obvi-
ously is interested in the outcome of the litigation. By con-
trast, Simpson has no interest and in fact testified for the
General Counsel even though he was still employed by Re-
spondent and has long been a friend of Imler.
Simpson testified further, respecting their conversation
on the day following his signing a union authorization card,
that Imler said he had been a unionman all his life and was
never against a union, but that if the Shawnee mine were to
go union, they would have to pull it out.' This. in effect. was
a management prediction that if the mine were organized
labor costs, in the opinion of management, would become
too expensive and management would then make a busi-
ness judgment to close down. This was a prediction that
management would take action disadvantageous to em-
ployees. not that the Union would take such action. It as-
sumed that unacceptable costs inevitably would result from
unionization, ignoring the possibility of resolving problems
through union representation. Such conclusionary commu-
nications necessarily interfered with the listening employ-
ee's right to choose or not to choose a union without having
his employer threaten a shutdown. Accordingly. I find that
the statement violated Section 8(a)( I ) of the Act.
F. The Decemlber .? Tele7phone Call to Kinebhril
On the morning of December 3. Superintendent Imler
telephoned Klinebriel to complain that he had heard that
Klinebriel had told a third person that Imler had run him
off the job with a shotgun. Klinebriel explained that in fact
he had seen the shotgun in Imler's truck when he was dis-
charged. Imler declared he had not threatened him. iHe
then, according to Klinebriel, inquired what Klinebriel was
going to do about the Labor Board charges he filed. Kline-
briel suggested that a fair resolution would be to reinstate
him with back pay and stop harassing him. Imler replied
that he had no authority to do so, as the matter was in the
hands of the Company's attorneys. He then asked Kline-
briel what his relations with the Union would be if Imler
put him back to work. Klinebriel replied that they would
not change. and that if the men wanted a union at the mine.
the Union would come in.
The above findings are based on the testimony of both
I During the nationwide coal stnke from December 6. 1977, to mid-March
1978, the Shawnee mine did not operate.
' Imler substantially admitted making such statements to someone.
1071
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Klinebriel and Superintendent Imler. 5 Imler, however, de-
nied that anything was said about the Union. I do not
credit his denial because, considering the whole picture, it
seems clear that on overriding consideration in his mind
was the economic viability of the mine operation in which
he had a financial stake. He felt strongly that the enterprise
could not survive under union conditions. On the other
hand. his feelings towards Klinebriel personally were
friendly. He considered him to be a good equipment opera-
tor, talents which the mine needed.
Superintendent Imler's inquiry to Klinebriel on Decem-
ber 3 as to what his relations with UMW would be if he
were reinstated tends to indicate that those relations were a
consideration in the minds of mine managers in determin-
ing whether Klinebriel would be reinstated. It also tends to
show that his relations with UMW were a consideration in
his November 17 discharge.
G. The Mid-March Telephone (all to Kliniehriel front
Foretman lnmer
In mid-March 1978. according to Klinebriel, a friend
named Frank Glennaman telephoned him to say he was in
a tavern talking with the younger Imler. Imler himself then
got on the telephone and told Klinebriel he never had any-
thing against him or his work. that his work was always
satisfactory. He asked if Klinebriel wanted to come back to
work. Klinebriel replied that he did, that if the Company
paid his back wages and settled matters with the Board, he
would return. The foreman then became angry, declaring
that he did not figure Klinebriel would ever do this to him.
Klinebriel asked what he meant. Imler replied, ".. bring
the Union in...." He said the attorneys would settle it.
Respondent objected and moved to strike this testimony
on the ground that settlemient negotiations are not admissi-
ble. At the hearing I ruled they were and now reaffirm that
ruling. Arguably the testimony is not admissible under Rule
408 of the Federal Rules of Evidence on the ground that it
involves statements made in compromise negotiations. At
the hearing the General Counsel urged that these conversa-
tions were not compromise negotiations. Considering that
the younger Imler was in lower level management and that
the telephone call originated from a tavern, and considering
also the absence of any indication that the foreman was
authorized to negotiate a compromise, I find that compro-
mise negotiations within the meaning of Rule 408 were not
involved.
These same considerations detract from the probative
value to the affirmative case of the foreman's statements.
Nevertheless, they add some further basis for finding that
management was biased against the UMW and that Kline-
briel's discharge as well as the failure to reinstate him were
motivated by antiunion considerations.
H. The Mid-March Statements of Superintendent Inmer to
Simpson
As already noted, the Shawnee mine shut down during
the nationwide coal strike. In mid-March, in anticipation of
I The testimony was received without objection.
the end of the strike, Superintendent Imler recalled Simp-
son, instructing him to put the tipple in working order. In
the course of their conversation they also talked about
other things. Simpson testified as follows about the conver-
sation:
Well, Mr. Imler told me, he says, well, it's like this.
Paul, he said, this tipple goes union you know we ain't
going to be able to be working here. We're going to be
pulling it out. And United Mine Workers are not going
to give you any moley or feed ou or nothing else.
And. which I agreed to that fact.
He further testified that the subject of union cards came up
as follows:
Well, Mr. Imler told me, he said, you don't have to tell
me nothing, it's up to you. Did you sign a union card'!
And I said, yes, I did. I said, I won't hold nothing
hack.
Simpson went on to testify that Imler also asked him
whether employee Dave Binkley had signed a union card.
Simpson replied that he did not know. But he olunteered
that he himself had given an affidavit to a Board investiga-
tor,
I he above conversation occurred in the company trailer
in the vicinity of the tipple. The two men continued talking
as thev walked from the trailer to the tipple. In that part of
the conversation I mler mentioned that all the employees
would get a raise just as soon as the coal strike ended and
they got their orders (presumably for coal).
l)uring that period of time Simpson had been looking for
a house to purchase. a fact known to Imler. In their conver-
sation he told Simpson. as he had on other occasions. that
any time Simpson found a house, he (Imler) would help
him in purchasing it by either advancing him the down
payment or by cosigning a promissory note for the pur-
chase.
Superintendent Imler did not specifically, deny the con-
versation as testified to by Simpson. In testimony appar-
ently related to an earlier conversation, he generally denied
saying anything about a union. Simpson's testimony re-
specting the mid-March conversation appears to be uncon-
tradicted and, in any case, I credit him.
I find that, in the course of the conversation. Superinten-
dent Imler violated Section 8a)(1) of the Act by stating
that the tipple would close down if the mine were organized
by the UMW and by interrogating Simpson as to whether
he had signed a union authorization card and also as to
whether Binkley had signed one. I also find that he violated
Section 8(a)( 1) by informing Simpson that all employees
would receive a wage increase as soon as the strike ended.
Although standing alone, this announcement would not
have been unlawful, it must be taken in context with the
other remarks and could reasonably have been understood
by Simpson as an inducement not to support the Union.
With respect to Imler's offer to assist him in buying a
house. I find to the contrary because, in light of their long
friendship, Simpson would reasonably have attributed this
offer to their personal relationship rather than to the pres-
ence of an unwanted union campaign.
1072
SHAWNEE COAI. COMPANY
I. The (arage Meeting on April 7
On April 7, 1978. in preparation for hearing in the pre-
sent matter, seven or eight mine employees including Simp-
son and James Hoops were called to a meeting at the elder
Imler's residential garage. Both Imlers ias well as Respon-
dent's Attorneys Robert Weaver and Jack McClelland,
were present. The meeting opened with the attorneys intro-
ducing themselves and Attorney Weaver stating that. if
there's anybody that didn't have anything to say, or `as
afraid to say anything. there was the damn door, hit it."
According to Simpson, the attorney repeated to or three
times that if a person did not wish to talk there would be no
problems from the Company, and Simpson understood that
he did not have to talk with the attorney. Nevertheless. it is
apparent that he felt some pressure. He testified that he had
earlier felt pressured when counsel for the General Counsel
interviewed him, and when he thereafter was called to the
meeting in Imler's garage to talk, he felt under tension. Ob-
viously he felt caught in the middle."
During the meeting McClelland in the presence of both
Imlers and the other employees asked Simpson whether
Union Representative Porter was present when Simpson
gave his pretrial affidavit to the General Counsel. Apart
from any other coercive aspects of the meeting in the ga-
rage, this inquiry interfered with the Section 7 rights of the
employees and constituted a violation of Section Xta)( I ) of
the Act. Johnnies Poulln Co. and John Bishop Pouhrl Co.,
146 NLRB 770. 775 (1964).
J. The April 8 Interrogation of Simp.son
On April 8, the day following the meeting at Imler's ga-
rage Simpson and Superintendent imler talked about his
pretrial affidavit while they were working. On direct exami-
nation Simpson testified that Imler said he would like to see
the affidavit and Simpson responded that he would like for
him to see it. On cross-examination Simpson indicated he
requested Imler to read it. Although at the time Simpson
had already received a copy of his affidavit from the Board
agent, he never showed it to Imler.
Imler denied that he talked with Simpson about his pre-
trial affidavit. On this conflict, I credit Simpson for reasons
already stated herein.
The complaint alleges that the superintendent unlawfully
interrogated Simpson in this conversation. I find he did not.
Simpson's testimony indicates he may have suggested to
Imler that he read the affidavit. Other evidence in the rec-
ord shows that Simpson was inclined to unburden himself
to the older man. In sum, a preponderance of the evidence
fails to establish unlawful interrogation.
K. Discu.sio n of Motive
Respondent contends that Klinebriel was discharged for
cause and not because of his union activitv. Respondent
makes two contentions in this regard. The first is that on
November 17 Klinebriel did not clean the coal as directed
and instead spent the morning loafing. As already noted
herein, I find that was not the case.
6 T he General Counsel neither alleges nor contends that Respondent altr-
ney's unfortunale choice of 'ords, amounted Io an unfair lihor practice
Respondent's second contention is that he made a nui-
sance of himself. causing problems with other employees.
including the oiler James Hoops and the mechanic J. C.
Wyatt b too frequently calling for hdraulic oil for his
nlachine and b requesting unnecessar' repairs. I ind this
aspect of the defense also lacks merit. The prime difficult!
with Respondent's contention is that although this situation
admitledly went on fr an extended period. no mention of it
Was made to Klinebriel. The defense is also questionable on
another ground. The weight of the evidence shows that Re-
spondent's equipment. including the 988 loader, was in
poor condlition. Hanning credibly described it as junk. On
the day he replaced Klinebriel on the 988 loader, the ma-
chine required repair of a ruptured "O" ring. Respecting
the contention that Klinebriel too often called for hdra ulic
oil, the e idence shows that the 988 loader was in such
condition that it used a large amount of hdraulic oil.
Whether oni an given occasion it needed a new supply may
he an arguable matter. hut the fact that no mention of it
was e\,er made by management to Klinebriel supports the
conclusion that it any problem existed, it was too minor to
warrant a reprimand, let alone discharge
On the other hand, the suddenness of the discharge xwith-
out prior notice. in the middle of a pa3! period and in the
middle of a shift, supports a finding that Klinebriel as
discharged because of his union organizing. This is particu-
larly so in light of the independent 8(a)( I) violations hb
Superintendent Imler which accompanied the discharge
and which clearly show his antiunion motivation. At that
time he accused Klinebriel of organizing the Union among
the employees. declared that the ('ompan could not h;lave
the UMW in the mine. declared that mine owner Graham
would close the mine and discharge the employees if 1MW
represented them. and in effect stated that Klinebriel was
being discharged because of his union organizing. Other
independent 8(a)( ) violations, which occurred later. further
support the finding of discrimination. Thus, in late Novem-
ber. Superintendent Imler told Simpson that Klinebriel had
been discharged because of his organizing and threatened
to discharge any other employee who organized. He further
threatened the mine Would close ift' the employees chose the
Union as their representative. In mid-March he again indi-
cated to Simpson that the mine would close if UMW \ ere
chosen. He further interrogated Simpson about his and
BinkleN's signing of union authorization cards. and prom-
ised a raise in pay. which in context was an inducement to
withhold support from the Union. And on April 7. in the
presence of both Imlers. Respondent's attorney interro-
gated Simpson as to the circumstances under which he gave
the Board a pretrial affidavit. In addition. Superintendent
Imler's December 3 telephone call to Klinebriel and Fore-
man Imler's mid-March telephone call lend support to the
conclusion that both the discharge and the subsequent fail-
ure to reinstate Klinebriel were founded on his union actik-
ismn.
I\. IlII- lIItt :(t lY I } IS ' NI IR I AllIR 'R\ [i( I S t 'i\
( ()MMI:Rt I
T'he unfair labor practices of Respondent set forth In sec-
tion Ill. above, occurring in connection with the operations
1073
DECISIONS OF NATIONAL LABOR RELATIONS BOAR[)
described in section I, above, have a close, intimate, 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.
CON(CI.USI() NS ()I LAUW
I. Respondent is an employer within the meaning of Sec-
tion 2(2) and is 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. Respondent, by the following conduct of its agents,
interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed in Section 7 of the Act and
thereby committed unfair labor practices within the mean-
ing of Section 8(a)( 1) of the Act:
(a) The conduct of Mine Superintendent Claude Imler.
Jr., on November 17. 1977 in:
(I) Accusing Wilbur L. Klinebriel of organizing a union
among mine employees.
(2) Stating to him that Respondent could not have the
LUMW in the mine.
(3) Stating to him that if the employees chose UMW to
represent them, mine owner Graham would close the mine
and the employees would be without jobs.
(4) In substance stating to him that his union organizing
activities were the reason he was being discharged.
(b) His statements to Paul Simpson in late November
1977:
(1) Informing Simpson that Klinebriel had been dis-
charged because of his union organizing activity.
(2) Threatening to discharge any other employees who
might organize.
(3) Threatening to close down the mine if the employees
chose UMW to represent them.
(c) His statements to Simpson in mid-March 1978:
(1) Threatening a shutdown of the mine if the employees
chose UMW to represent them.
(2) Interrogating Simpson as to whether he and Binkley
signed UMW authorization cards.
(3) Promising a wage increase as an inducement to with-
hold support from UMW.
(d) The conduct of Respondent's attorney on April 7.
1978, in questioning Simpson about the presence of a union
representative at the time he gave a statement to a Board
investigator.
4. Respondent committed unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act by dis-
charging Wilbur L. Klinebriel on November 17. 1977. and
thereafter failing to reinstate him.
5. The unfair labor practices found above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
Tit RtMDY
Having found that Respondent engaged in unfair labor
practices, I recommend that it cease and desist therefrom
and take certain affirmative action to effectuate the policies
of the Act. I recommend that Respondent be ordered to
offer Wilbur L. Klinebriel immediate and full reinstatement
to his former position, or if that position is not available. to
a substantially equivalent position, without prejudice to his
seniority or other benefits and privileges. and that he be
made whole for any' loss of earnings incurred as a result of
being discharged on November 17, 1977, which backpay to
be computed in the manner prescribed in F . ' Woolaworth
(ompaln tv. 90 NLRB 289 (1950). and with interest as pre-
scribed in Florida Steel Corporation, 231 NL.RB 651 (1977).'
I further recommend that Respondent be required to pre-
serve and make available to hoard agents, upon request, all
pertinent records and data necessary in analyzing and de-
termining whatever backpay may he due. I also recommend
that Respondent be required to post appropriate notices at
its Shawnee. Ohio mine.
Upon the foregoing findings of fact. conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act. I hereby issue the following recommended:
OR[)ER"
The Respondent, Shawnee ('oal ompany. Shawnee,
Ohio, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging employees for engaging in union activi-
ties.
(b) Accusing employees of union organizing.
(c) Interrogating employees about their own and other
employees' union activities.
(d) Informing employees that Respondent could not
have the Union.
(e) Threatening to close down if the employees choose
the Union to represent them.
(f) Informing employees they were discharged because
of their union activities.
(g) Informing employees that others were discharged be-
cause of union activities.
(h) Threatening to discharge an, employees who engage
in union activities.
(i) Promising pay increases as an inducement to with-
hold support from a union.
(j) Interrogating employees about giving statements to
Board investigators in the presence of union representa-
tives.
(k) In any other manner interfering with, restraining or
coercing employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist a
labor organization, to bargaining collectively through rep-
resentatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection as guaranteed in Section 7
of the Act, or to refrain from any or all such activities.
2. Take the following affirmative action which it is found
will effectuate the policies of the Act:
See, generally. Iis Plumbing & Heating ( o, 138 NLRB 716 (1962).
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 h the Board and become its
findings. conclusions, and Order. and all objections thereto shall he deemed
waived for all purposes.
1074
SIHAWNEE ('OAl. COMPANY
(a) Offer to Wilbur L. Klinebriel immediate and full re-
instatement to his ftrmer position or, if that position is not
available, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
make him whole for an) loss of earnings in the manner set
forth in the section titled "The Remedy."
(b) Preserve and, upon request. make aailable to the
Board or its agents. for examination and copying all rec-
ords necessary to analyze the amount of backpay due under
the terms hereof.
(c) Post at its Shawnee, Ohio. mine copies of' the at-
tached notice marked "Appendix." 4 ('opies of said notice,
9 In the event that this Order is enforced hy a Judgment ot a Unlled Stales
Court of Appeals, the ords in the notice reading "Posted bh Order of the
National Lahl)r Relations Board" shall read "Posted Pursuant t a Judgmenl
on forms provided by the Regional l)irector br Region 9,.
after being duly signed b Respondent's authorized repre-
sentative, shall he posted h Respondent for 60 consecutive
days thereafter. in conspicuous places. including all places
where notices to emplo ees are customaril posted. Reason-
able steps shall be taken h Respondenl to insure that said
notices are not altered. defaced. or co\cred bh ;in\ other
material.
(d) Notitl the Regional Director for Region 9. in writ-
ing. within 20 days from the date of this Order ,khat steps
have been taken to comply heresilh.
It Is t-t tiR R ()RI)IRI) that allegations inl the complaint
of unfalir lahor practices not specificall fiound herein are
hereby dismissed.
io the I nited Siaes ( ourl o, appeals lnltrcin g n Order ol the N.alional
l;habor Relations tBoard
1075