S.M.K. Mining and Construction

National Labor Relations Board - Board Decisions

Mar 17, 1992

306 N.L.R.B. 718 (N.L.R.B. 1992)

718
306 NLRB No. 142
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Several paragraphs of factual narrative were inadvertently omit-
ted from the originally issued decision. This omission was corrected
by errata issued on December 26, 1991. The attached corrected deci-
sion itself inadvertently omits one paragraph of text from the judge’s
earlier decision. Accordingly, the following should be reinstated as
the penultimate paragraph of sec. II,D of the judge’s decision:
In as much as Marcum was not an employee when he spoke
with Kiscaden, Kiscaden’s statement, however credited, does not
violate the Act and I shall recommend dismissal of that allega-
tion.
2 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
3 In adopting the judge’s conclusion that the Respondent lawfully
discharged Darrell Marcum, we find it unnecessary to pass on the
judge’s conclusion that picketing by Marcum subsequent to the dis-
charge decision was protected concerted activity or that subsequent
threats by Marcum would warrant a denial of reinstatement.
1 All dates are 1991 unless otherwise specified.
2 The General Counsel’s motion to strike Respondent’s reply brief
is granted. There is no provision in the Board’s Rules and Regula-
tions for the filing of reply briefs in proceedings before an adminis-
trative law judge. Compare Board’s Rules and Regulations, Secs.
102.42 and 102.46. In any event, given my disposition of this matter
upon resolutions of factual issues, reply briefs would not aid in the
decision-making process.
S.M.K. Mining and Construction Company, Inc.
and Darrell Marcum. Case 9–CA–28413
March 17, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On November 25, 1991, Administrative Law Judge
Michael O. Miller issued the attached decision.1 The
General Counsel filed exceptions and a supporting
brief. The Respondent filed cross-exceptions and a
brief in support of the cross-exceptions and in response
to the General Counsel’s exceptions. The General
Counsel filed a brief in reply to the Respondent’s an-
swering brief and in answer to the cross-exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions,3 and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Donald A. Becher, Esq., for the General Counsel.
Barbara L. Krause, Esq. (Smith, Heenan & Althen), for the
Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. This
case was tried in Huntington, West Virginia, on September
5, 1991,1 based on an unfair labor practice charge filed on
March 28, by Darrell Marcum, an individual, and a com-
plaint issued by the Regional Director for Region 9 of the
National Labor Relations Board (the Board) on May 10, as
amended at hearing. The complaint alleges that S.M.K. Min-
ing and Construction Company, Inc. (S.M.K., the Employer
or Respondent) threatened and discharged Darrell Marcum
because of his protected concerted activities, in violation of
Section 8(a)(1) of the National Labor Relations Act (the
Act). Respondent’s timely filed answer denies the commis-
sion of any unfair labor practices.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and Respondent,2 I make the
following
FINDINGS OF FACT
I. THE EMPLOYER’S BUSINESS; PRELIMINARY
CONCLUSIONS OF LAW
S.M.K. Mining and Construction Company, Inc., a cor-
poration, is engaged in the operation of a deep coal mine
near Dunlow, West Virginia. At that facility, in the course
and conduct of its business operations, it annually sells and
ships products valued in excess of $50,000 directly to Pen
Coal Corporation, a nonretail enterprise located within the
State of West Virginia which, in turn, annually sells and
ships goods, products, and materials which are valued in ex-
cess of $50,000 from its West Virginia facility directly to
points outside the State of West Virginia. The Respondent
admits and I find and conclude that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Employer operates a coal mine on property leased by
Pen Coal from Columbia Gas, about 10 miles from Dunlow,
West Virginia. It is owned by Todd Kincaid and Michael
Castle. At all material times, the superintendent of this and
the Sumate mine, located on the same property, was Don L.
‘‘Donnie’’ Robertson. The second-shift foreman was David
Runyon; he was the Charging Party’s immediate supervisor.
S.M.K. began its mining operations on this site in June
1990. Darrell Marcum (Marcum) was hired in January; he
had 18 years of deep mining experience. In March, S.M.K.
had about 60 employees, working three shifts. Those em-
ployees were not represented by any labor organization.
B. The Three-Wheeler Incident
As of March, Marcum, still within his probationary period,
was working as the scoop operator-supplyman, driving the
719S.M.K. MINING & CONSTRUCTION CO.
3 While Runyon’s testimony is more probable, it is not necessary
to resolve this minor disagreement. There is no question but that
Marcum hit and damaged the scoop; the extent of his culpability for
doing so is not at issue here.
4 According to Marcum, he reported the accident to Runyon and
Runyon merely said, ‘‘shit happens,’’ directing him to go about his
work. While I find Runyon’s testimony to be somewhat more candid
and credible, I do not find Marcum’s testimony to be necessarily in-
consistent with that of Runyon. Had Marcum reported the accident
to Runyon, he would not have described the extent of damage later
observed by or reported to Runyon. If Marcum had said that the
damage was slight, Runyon might well have passed the incident off
as being insignificant.
5 Mahon generally corroborated this testimony, relating that Rob-
ertson told him that ‘‘it looked like he was going to have to get rid
of a scoop man.’’
6 This statement is susceptible of several interpretations. It could
mean that Robertson had not yet decided on Marcum’s discharge;
it could mean that he had not decided what to do about replacing
or repairing the damaged three-wheeler. Robertson did not relate any
such statement in his version of this conversation with Runyon. Nei-
ther did he claim to have told Runyon that he was going to dis-
charge Marcum. Next, Robertson called Marcum. Marcum admitted
hitting the cart and Robertson told him that they would talk when
Marcum came in to work. According to Robertson’s (albeit self-serv-
ing) testimony, it was his intention to discharge Marcum, in the
presence of Runyon, at that time; he preferred not to fire someone
over the telephone.
7 The credible evidence, particularly Runyon’s testimony, estab-
lishes that Marcum was reassigned from a roof bolter’s position to
that of scoop man because of dissatisfaction with his bolting. The
dissatisfaction, particularly in regard to what was perceived as his
lack of industriousness, continued while he worked as a scoop oper-
ator. Runyon testified that he discussed Marcum’s performance with
Robertson and they concluded that they would ‘‘more or less . . .
try to find a man and do what we had to do with Darrell [Marcum],
if it was fire him, we’d, you know. Man almost had to because I
give him ever[y] opportunity in the world to perform.’’ This, I find,
falls short of describing a firm decision to discharge Marcum at any
specific time prior to the accident.
8 Castle’s testimony, while sounding somewhat pat, corroborates
that of Robertson.
9 Marcum’s version, that he said that he would take this up with
the second shift and that there might be no work, is not materially
different.
scoop, an 18-ton, 4-foot high, 11-foot wide, and 23-foot long
vehicle, in the mine. His duties included securing supplies
for the roof bolters, scooping up rock and coal dropped along
the road and passageways in the mine, applying incombus-
tible rock dust to the roofs and supports in the mine, and
building brattices, the concrete block walls which are used
to direct the flow of air within the mine.
On March 11, Marcum entered the mine with his foreman
and the rest of the shift employees, riding a mantrip to the
end of the track and then walking up to the section, where
the coal is removed. He determined what supplies the roof
bolters needed and drove the scoop, which had been parked
in a break, out-of-the way, up to the supply area along the
track. On the way back to the section, the scoop hit a three-
wheeler, a golf cart-like vehicle weighing about 500 pounds
which is used to move light supplies or injured miners in the
mine. To Marcum’s observation, not much damage was
done. Subsequent inspection, however, revealed substantial
damage to the axle, tires, and front end; repairs were esti-
mated at $1200 or more. Marcum claimed that the three-
wheeler had not been at that point when he drove the scoop
to the supply area; Runyon said that it had not been moved
from the time they entered the section and that Marcum
would have had to see it when he took the scoop to the sup-
ply area.3
Runyon learned of the accident from the electrician and
queried Marcum. Marcum acknowledged hitting the cart,
claiming that he did not see it on his return trip with the
scoop. Runyon told him that he did not know how long it
would take to repair it or what the Employer would do about
the accident. Marcum then went about his job with nothing
further being said during the shift.4
Superintendent Robertson was not at the mine during the
second shift when the accident occurred. The following
morning, one of the men told him that the scoop man had
run over the three-wheeler. Robertson then learned the extent
of the damage from the third-shift electrician. In a conversa-
tion with Jackie Mahon, the outside man, Robertson men-
tioned the damage to the three-wheeler, saying, ‘‘Whoever
did it is history. I’m going to get rid of him.’’5
Robertson called Runyon to learn more of the details.
Runyon reported that Marcum should have seen the three-
wheeler because it was sitting in the same place as it had
been when Marcum went to the supply area; no one had
moved it. Marcum, he said, had avoided hitting it on the way
up and should have seen it on the way back. According to
Runyon’s candid testimony, Robertson said, ‘‘I don’t know
what I am going to do about it right now.’’6
In the course of that morning, Robertson spent time in one
of the mines with Michael Castle, one of S.M.K.’s owners.
He told Castle that the scoopman had run over the three-
wheeler, that he had been generally unhappy with that em-
ployee’s work performance,7 and intended to discharge him
that evening.8
Later that morning, a mining machine in section 1 broke
down, precluding production in that part of the mine until it
was repaired. In order to reduce labor costs, Robertson in-
structed Mahon to call three named employees and tell them
not to come to work. Marcum and two others, one of whom
rode with Marcum, were named. They were chosen, Robert-
son testified, because they lived closest to the mine and were
individuals who could still be reached before they left home
for work.
Mahon called Marcum and told him that Robertson had
said that there would not be any work for him that evening,
that Robertson would talk to him tomorrow. Marcum inter-
preted this as being a disciplinary layoff because he had hit
the three-wheeler and protested, ‘‘If this is over the three-
wheeler . . . if I don’t get to work, nobody will get to
work.’’9 He insisted on speaking with Robertson.
When Robertson came to the phone, Marcum protested
that the accident was not his fault and that it was not right
that he be given a day off because of it. He reiterated his
threat to take the matter up with the second shift and prevent
anyone from working that evening if he did not work. Rob-
ertson reminded him that he was still a probationary em-
ployee and had signed a paper stating that he could be dis-
charged at any time during the first 90 days of his employ-
720 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Robertson, under direct examination, did not claim to have ex-
pressly told Marcum that he was discharged. On cross-examination,
he asserted that Marcum knew by the end of that heated conversa-
tion that he was terminated. Marcum claimed to have heard no such
statement.
11 It is alleged that Marcum’s pickup truck was driven in front of
the first truck and blocked the second. Because of inconsistencies in
the drivers’ recollections as to whether the second truck was actually
blocked by that pickup, I credit Marcum and his wife in finding that
there was no actual blockage. I do find it credible that, as driver
Jude testified, the Marcum vehicle passed in front of his truck and
stopped alongside it. Jude’s identification of Marcum as the driver
of the pickup was an innocent and insignificant mistake.
12 They were not identified as S.M.K. employees. As the shift had
not yet changed in the S.M.K. mine, it would appear possible that
they were employees of the Sumate mine.
13 Marcum did not deny this statement which Clifford Williamson
credibly attributed to him.
14 Marcum denied making any statement to the effect of ‘‘pushing
ducks’ heads under water’’ or saying that things can get ‘‘nasty and
dirty.’’ I credit Robertson, noting the undenied threat to his cowork-
ers and the absence of any denial that Marcum had served time in
a penitentiary.
15 Respondent has the capacity to record calls to and from that of-
fice and did not deny that Robertson had said he was going to do
so. Robertson denied, however, that a recording was made and none
was adduced.
ment if the Employer was dissatisfied with his work. His
work performance was unsatisfactory, Robertson said.10
C. Marcum’s Picketing and Subsequent Events
Marcum decided to make good on his threat. With his
wife driving, he came to the junction of state highway 37
and Sweetwater Road, the road which leads up to the mines.
He got out of the truck and stood at the intersection with a
sign stating, ‘‘Going on Strike.’’ Several coal trucks, owned
by Lee Sartin Trucking, the concern which hauled coal from
the Pen Coal tipple at the mines, came by. They stopped and
Marcum told them why he was there.11
The next vehicle contained three miners coming down
from the mines.12 Marcum told them why he was there and
was told, in reply, that they would not cross his picket line
if he was still there the next morning.
The fourth vehicle was that driven by C. K. Lang, presi-
dent of Pen Coal. Lang told Marcum that he did not want
any stoppage of coal shipments and asked what the problem
was. He suggested that Marcum talk with Robertson and the
Marcums followed him back up the road to the mine. Lang
then prevailed upon Robertson to speak with Marcum.
Marcum went in to Robertson’s office and repeated that he
did not feel that it was right to be given a day off over run-
ning into the three-wheeler. As he recalled it, Robertson said:
Well, you’ve tied [our] hands . . . . There’ll not be no
man work at this Company and picket one of these
mines . . . . The man I work for would fire me if I
let you come back to work after you’ve been down
there. . . . Ain’t no way.
With explicit leading questions, Marcum further recalled
Robertson saying that he would be unable to control his men
‘‘if he allowed that’’; that Robertson referred to him ‘‘pick-
eting and trying to take matters up with the second shift to
cause a strike here’’; and finally saying that he ‘‘was fired
for picketing down there.’’
Robertson, on the other hand, recalled that Marcum said
that he needed the job. To this, Robertson replied:
[W]ith everything that had happened, I couldn’t rein-
state him because by doing that I’d lose all the respect
of my employees. . . . And, then also, I’ve got people
that look at me and not only the operators that I work
for look at me, Pen Coal would look at me, and if I
let somebody go down and—or do the things that Dar-
rell had been doing, there was no way that I could jus-
tify reinstating him. That’s where we left it, right there.
Robertson admitted that he was referring to Marcum’s block-
ing of Sartin’s coal trucks as well as the three-wheeler inci-
dent and Marcum’s general work performance.
Given Marcum’s inability to recall, without specific lead-
ing questions, the very significant aspects of this conversa-
tion, key to his contentions, and Robertson’s candor and gen-
eral demeanor, I credit Robertson’s version. I find that his
statements were in the nature of a refusal to reconsider
Marcum’s discharge, previously decided upon, and were
fully consistent with an understanding that Marcum had al-
ready been terminated.
On the road down from the mine, Marcum saw incoming
second-shift workers. He flagged them down and told them
that he been fired ‘‘over an incident with the three-wheeler’’
and for picketing and trying to get the second shift to join
him. They refused to join in Marcum’s protest and proceeded
to the mine. As they were departing, Marcum stated ‘‘ Well,
boys, I’m not responsible for what happens to you guys after
dark tonight, you know.’’13
Marcum subsequently called Robertson to reiterate his re-
quest for reconsideration. When Robertson refused, Marcum
allegedly stated, ‘‘Now, I’m going to tell you. . . . I didn’t
go to the penitentiary for pushing ducks in the water . . .
this thing can get dirty and nasty.’’14
One or two days after the discharge, Marcum’s wife se-
cured the telephone number of Todd Kiscaden, one of the
mine’s owners, and called him to discuss the discharge.
Kiscaden spoke separately with both Marcum and his wife.
He told Marcum that if Marcum had been standing there
picketing one of his mines when he came by, he’d have
‘‘flatten[ed him] out.’’ To Marcum’s wife, he stated that if
he had been ‘‘coming down the holler and somebody was
out there picketing, I would probably flatten them.’’
Kiscaden denied threatening to ‘‘flatten’’ anyone who was
picketing but said he would not tolerate anyone trying to stop
him driving down the road. I credit Marcum’s testimony as
corroborated by that of his wife.
Sometime later, Marcum applied for unemployment com-
pensation and called Robertson to inquire about a form indi-
cating the reason for his discharge. When Robertson said that
their conversation would be recorded, Marcum directed his
wife to similarly record it from their end, using a small
microcassette recorder.15
According to the relevant portions of a transcript of that
recording, made by Marcum’s wife, Robertson said that a let-
ter stating that insubordination was the reason for the termi-
nation was being put in the mail. When Marcum questioned
that, Robertson allegedly said, ‘‘It has nothing to do with the
721S.M.K. MINING & CONSTRUCTION CO.
16 Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474
U.S. 948 (1985).
17 Thus, even assuming that the General Counsel has established
a prima facie showing that protected conduct was a motivating factor
in the Employer’s decision to discharge Marcum, the Employer has
met its burden of demonstrating that he would have been discharged
even if there had been no protected activity. Wright Line, 251 NLRB
1083, 1088 (1980), enfd. 662 F.2d 899 (1st Cir. 1981).
18 Even assuming that Marcum was discharged for having picketed
at the foot of Sweetwater Road, his subsequent threats to Robertson,
and particularly to the other second-shift employees, would warrant
Continued
section [tape garbled at this point] or anything that happened
on the section, it was the incident down the road.’’
At another point, the transcript shows Marcum as saying,
‘‘I know what you told the guys that when I said if I didn’t
get to work nobody was going to get to work you flew mad
right then that’s the reason you fired me.’’ To this, Robert-
son appears to have replied, ‘‘No when you said you was
coming down there to picket you’d be down there and no-
body else would come to work . . . [garbled for a long pe-
riod] on strike sign.’’
Robertson assured Marcum that the employer would not
block his unemployment compensation and again suggested
that Marcum merely claim that he was terminated because he
could not get along with his boss. Marcum protested that he
was not going to lie, Robertson said that that was not what
Marcum was being asked to do, and said that he would not
lie either.
D. Analysis and Conclusions
Assuming that Marcum was still an employee when he
threatened to bring about a work stoppage and then picketed
at the mine, the relevant precedent would require a conclu-
sion that he was engaged in an activity both concerted and
protected.
In Meyers Industries, 268 NLRB 493 (1984), and in the
supplemental decision therein, at 281 NLRB 882 (1986),
Meyers I and Meyers II, respectively, the Board, in reliance
on NLRB v. City Disposal Systems, 465 U.S. 822 (1984),
noted that the concepts of ‘‘concerted activity’’ and that of
‘‘for mutual aid and protection’’ were separate. It adopted
the following definition of concerted activity:
In general, to find an employee’s activity to be
‘‘concerted,’’ we shall require that it be engaged in
with or on the authority of other employees, and not
solely by or on behalf of the employee himself. [Mey-
ers I at 497, Meyers II at 885.]
With respect to the issue raised by the court in reviewing
and remanding Meyers I,16 concerning whether an employ-
ee’s efforts to enlist others to induce group action was itself
concerted, the Board, in holding that it was, expressly incor-
porated the standards of the line of cases identified with
Mushroom Transportation Co. v. NLRB, 330 F.2d 683 (3d
Cir. 1964); including Root-Carlin, Inc., 92 NLRB 1313, 1314
(1951); Vought Corp., 273 NLRB 1290, 1294 (1984), enfd.
788 F.2d 1378 (8th Cir. 1986); and Ontario Knife Co. v.
NLRB, 637 F.2d 840 (2d Cir. 1980). Thus, conduct which in-
volves only a speaker and a listener and which looks toward
or seeks to induce group action is concerted activity.
Moreover, such conduct remains concerted even though
the other employees fail to overtly support the instigating
employee’s cause. See, for example, Charles H. McCauley
Associates, 248 NLRB 346, 350 (1980), cited with approval
in Meyers II, at 886 fn. 34.
In Cub Branch Mining, 300 NLRB 57 (1990), the thresh-
old issue was whether concerted activity prompted by an in-
dividual’s personal complaint was protected. The Board, in
affirming the conclusions of the administrative law judge,
held that it was. As there stated, at 60:
The Board has consistently held that concerted em-
ployee action, when invoked peaceably, to further an
employment claim, such as a wrongful discharge, albeit
personal in nature, remains within the protective mantel
of Section 7 of the Act. See, e.g., Buck Brown Con-
tracting Co., 283 NLRB 488, 489, and cases cited at
513 (1987). . . . By this very process [workers mak-
ing common cause to reverse management’s judgment
on a personnel matter] management was put on notice,
that its work force would not stand idly by in the face
of unfair treatment. . . . [S]ince the striker’s endeavor
was inoffensive to statutory policy, it fell within Sec-
tion 7 guarantees, without regard to whether the under-
lying grievance was meritorious. [Emphasis added.]
On the basis of the foregoing, I would therefore find that
the threat to involve fellow employees in a work stoppage
and lawful, peaceful primary picketing engaged in to secure
that involvement would, if engaged in by an employee, be
both concerted and protected. I would not find that the single
act of driving a small truck across the front of an incoming
18 wheeler, was so violent as to deny protection to otherwise
protected activity. Neither would I find that the activity en-
gaged in here at the foot of Sweetwater Road was an illegal
secondary boycott, as asserted by Respondent.
Having said all of the foregoing in response to the parties’
legal arguments, I must find it all inapplicable to the instant
case. As noted above, I have concluded that Marcum was
marked for discharge as soon as Robertson learned of the
damage to the three-wheeler.
Whether or not Robertson had decided to discharge
Marcum before the accident, the evidence satisfies me that
Marcum, still in his probationary period, was not a highly
valued employee. Having damaged the three-wheeler, by
what appeared to Respondent to be negligent conduct, he lost
whatever value he had to the Employer and was immediately
slated for discharge. Thus, as soon as he learned of the acci-
dent, Robertson expressed his intention to discharge Marcum
to Mahon and Castle. Even his telephone conversation with
Marcum, wherein he said that they would talk about the acci-
dent when Marcum came in to work, is somewhat indicative
of an intention to discipline. Moreover, Marcum’s defensive-
ness when called by Mahon, when he erroneously jumped to
the conclusion that he was being given a day off for hitting
the cart, indicates an expectation of discipline.
Thus, the decision to discharge Marcum was completed, if
not effectuated, before Marcum engaged in any protected
concerted activity. He would have been discharged when
next he arrived at the mine whether or not he engaged in any
such activity.17 Therefore, his discharge contravenes no pro-
vision of the Act and I shall recommend dismissal of this
complaint.18
722 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a denial of reinstatement. Columbia Portland Cement Co., 294
NLRB 410 fn. 1 and 415 (1989); Axelson, Inc., 285 NLRB 862, 866
fn. 11 (1987).
19 Had that issue been pleaded and litigated before me, I would
be inclined to find such a refusal violative of Sec. 8(a)(1). Respond-
ent, however, was not put on notice of any such contention and to
find such a violation would deny Respondent of basic due-process
rights.
20 If no exceptions are filed as provided by Sec. l02.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. l02.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
I have no doubt that Robertson was extremely displeased
by Marcum’s efforts to bring about a work stoppage. His
statements at the mine and in the recorded telephone con-
versation establish that he was. However, those statements,
when considered in light of Robertson’s previously uttered
intention to discharge Marcum, are insufficient to establish
that he would not have been discharged had he not engaged
in the protected activity. At most, they tend to indicate an
unwillingness to reconsider the discharge decision because of
that activity.19
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended20
ORDER
The complaint is dismissed.