Soldier Creek Coal Co.

National Labor Relations Board - Board Decisions

Jul 13, 1979

243 N.L.R.B. 456 (N.L.R.B. 1979)

D)E(CISIONS OF NATIONAL LABOR RELATIONS BOARD
Soldier Creek Coal Company, a Division of California
Portland Cement Co. and Elven Ray Stokes. Case
27-CA 5689-2
July 13, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
ANI) MUIRPHIY
On April 10, 1979, Administrative Law Judge Joan
Wieder issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel filed exceptions
and a supporting brief, and the Respondent filed an
answering 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-meimber panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings.' and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of' the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative l.aw Judge and hereby or-
ders that the complaint be, and it hereby is. dismissed
in its entirety.
I The Administrative Law Judge held that eidence of disparate treatment
regarding Stokes' attendance and discharge did not result in a prima faci'
case. We agree with the General (Counsel's exception Iowever. we find that
the Respondent rebutted the prima rru e case the Respondent warned
Stokes when he was hired that it was aware of his poolr attendance record
with his previous employer and that similar conduct would nt he tolerated.
Consequently, we find that the Respondent's apparently disparate treatment
of Stokes was justified and that it rebutted the General (Counsel's prima facie
case. Pepsi (ola Bottling (nmpan. 242 NLRB No. 48 (1979)
The General Counsel also excepts to the Administrative I.aw Judge's lail-
ure to draw an adverse inference because the Respondent did not call two
foremen as witnesses. We agree with the General Counsel's contention that
the Administrative Law Judge's reliance on lx.al 25%v United Automoble,
Aerospace, and Agricultural Implement Workers o' America Atherton ('addl-
lac, Inc.] v N L RB.. 608 F.2d 1369 (2d. (ir. 1977), enid as modified 225
NLRB 421 (1976). is misplaced. That case dealt with the failure to call a
neutral nonparty. However, the General C'ounsel was attempting to prove
that Ross had direct knowledge of Stokes' absence. Stokes' testimony. when
viewed most favorably to the General (Counsel's case. is only that he told the
foremen that he was not getting on the bus The Respondent did not dispute
this conversation; however, there is no evidence that this was communicated
to Ross. who made the discharge decision and unequivocally denied that he
knew of Stokes' absence. We therefore conclude that the Administrative Law
Judge correctly did not draw an adverse inference from the Respondent's
failure to call the foremen. Trinity ('oncrete Produ tIv Crompanv, Rac/le Divi-
sion, 162 NLRB 1237 (1967,
DECISION
S1AfIEMF N1 OF IHE CASE
JOAN WIIF)lR. Administrative Law Judge: This case was
heard at Price. Utah, on November 14 and 15. 1978. The
charge was filed on December 29. 1977.' by Elven Ray
Stokes (Stokes). A complaint2 was issued September 1 alleg-
ing that Soldier ('reek Coal Company, a Division of' Cali-
fornia Portland Cement Co., herein called the Company or
Respondent. violated Section 8(a)( I) of the National Labor
Relations Act. as amended (Act), by discharging Stokes for
engaging in protected concerted activity and by refusing, in
good faith, to perform labor under abnormally dangerous
conditions at work. The Respondent admits that it dis-
charged Stokes, but denies that the discharge was unlawful
or that it in any way violated the Act.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briet's. Briefs. which
were filed on behalf of the General Counsel and the ('Com-
pany. have been carefully considered.
Upon the entire record, including especially my observa-
tion of the wttnesses and their demeanor. I make the follow-
ing:
IINI)IN(;S ti FA( I
1. i111 Al I (il) INI AIR I.AB()R PRA( Ill ES
Background
Respondent is engaged in the underground mining of'
coal at a site approximately 22 miles from the city of' Price.
Utah.' The (Company acquired this property in September
1974 and it started prodtiucing coatl in June 1976. ('urrently.
approximately 115 people are employed at the mine. of'
which 85 are hourly workers and 30 are supervisors and
managers. I he mine is a nonunion operation.' During nor-
mal operations the ( onipany uses three shifts.5
The , ice president arnd general manager of' Respondent is
Marion Donaldl Ross Ross), who is responsible for the op-
era.tions of the C('ompanv. Ross is assisted by Reed W. Olsen
(Olsen) among others. Olsen is the mine manager and has
served in that capacity for approximately 1-1/2 years." It is
admitted that Ross and Olsen are supervisors.
I Unless otherwise indicated all dates herein reler to the year 1977.
The complaint was amended pursuant to stipulation at the hearing
Jurisdiction is not in issue. The Respondent admits, and I find, that it
meets the Board's $50,000 direct outflow standard or the assertion of'juris-
diction.
' The other nonunion mines in the Price area are Swisher (coal Company,
Plateau Mining Company, and Southern Utah Fuel Company. 'here are
seven or eight union mines in the area, whose employees are represented by
the United Mine Workers (UMW)
I'wo of the shifts are engaged in production and the third, the graveyard
shil:, is engaged in maintenance. The graveyard shift is designated shift No.
I and employs approximately 15 to 16 men working from II p.m. to 7 a.m.
The day shift is designated shift No. 2 and employs approximately 40 to 45
men, working from 7 a m. to 3 p.m The third shift, referred to as the swing
shift, employs approximately 20 miners working rom 3:15 p.m. to 11:15
p.m. For every six to eight miners there is one supervisor
, Prior to being employed by Respondent. Olsen worked at Braztah ('or-
poration for approximately I year as general mine foreman. Employees at
Braztah Corporation were represented by the United Mine Workers.
243 NLRB No. 75
456
SOLDIER ('REEK COAL CO.
The Charging Party was hired by Respondent on Octo-
ber II. New employees hired by Respondent in October
1977 were subject to a 60-calendar-day probationary pe-
riod.' Stokes had been previously employed by Braztah
Corporation.
At the time he was employed by Respondent. Stokes re-
ceived orientation which included the receipt of a firm let-
ter stating that he was hired effective October 11. 1977. for
a 60-day probationary period; at the expiration of 60 days.
the Company would either terminate his employment or
decide to retain him. The letter further stated that in the
event he was terminated during the 60-day probationary
period, the reasons for the termination were not subject to
the Company's grievance procedure. Additionally. a
woman, whom Stokes described as the person in charge of
personnel, explained the probationary period, and further
said that if Stokes were discharged during his probation.
there was no recourse.
In early December 1977. the nationwide UMW contract
expired. On December 6, UMW members started picketing
Soldier Creek Mine.' Prior to the expiration of the UMW
contract. Ross had heard rumors" that LUMW members
would picket, and if nonunion miners attempted to work
during the forthcoming strike, violence was threatened.
Ross also heard reports of several incidents involving com-
pany employees."' Around December 5. 1977. the whole
community, according to Ross. was buzzing with reports'
that there would be sabotage to stop production at the non-
union mines.
In response to the anticipated mass picketing. the non-
union operators contacted the county sheriff and state offi-
cials, including the governor, the director of the highway
patrol, and the safety director. Three meetings were held
with the state officials, and Governor Matheson assured the
nonunion mine operators that they would have whatever
security was necessary to insure the continued operations of
the nonunion mines. The Company took other precautions.
including supplementing the "antiquated" telephone system
with two-way radios and hiring a private security firce to
protect the physical plant.
On November 29, 1977, Ross held a meeting with Re-
spondent's employees' to discuss the general situation re-
garding the impending strike. Specifically, Ross discussed
the plans of law enforcement officials to assure the workers
I In May 1978 the probationary period was increased to 90 days.
'There are several UMW locals. for each union mine has its own al
There was no reference to picketing by particular LJMW union locals.
'The source of the rumors was the news media, including newspapers.
0m On or about November 3. Ross heard a report that an employee had the
lug nuts on his truck wheels loosened; on or about November 25 the Com-
pany's safety engineer had some problems. but Ross did not hear that his
mailbox had been run over or that a black cat had been shot in the head and
was thrown on the cement in his backyard. Initially. Ross stated he had
heard that the Company's safety director had a small tree in his yard uproot-
ed, but changed his testimony to indicate that he did not hear such a report.
On or about November 29. Ross' wife received an anonymous phone call
warning her that Ross had better not go to work during the forthcoming
strike. Ross did not recall whether any of the other supervisors received
similar calls at the same time.
i" The source of the reports was characterized by Ross as hearsay
" All employees of Soldier Creek Coal Company plus the employees of
Coal Service. a trucking company that transported the coal produced by
Respondent to the railroad. The facilities ,ffCoal Service were located on the
access road to the mine.
of adequate security when they traveled to and from work.
Ross informed the employees that he had met with the gov-
ernor and state highway officials and had been promised
two 15-man riot squads to assist with security. Ross also
indicated that management would at no time risk the work-
ers' lives or well-being. Ross further stated that each em-
ployee, as well as the Company, had the right to work and
that the normal work schedule would be followed under
normal rules, regulations. and policies. A system for trans-
porting employees to and from work using vans and a bus
in lieu of personal vehicles was also discussed. Finally. Ross
mentioned the possibility of obtaining injunctive relief to
protect the employees. After the November 29 meeting.
Ross had a sign posted to remind all employees that the
Company would keep the present work schedule under the
current rules and policies. Stokes attended the meeting.
A. Ev Cnl.s of Decembe'hrr 6
The anticipated mass picketing commenced on Decem-
ber 6. The picket site was established near the Coal Service
maintenance yard. According to Ross. there were approxi-
mately 75 to 80 picketers who completely blocked the road
by standing several ranks deep across the two-lane road.'
Ross stopped his vehicle and conversed with several picket-
ers. Picketers he personally knew requested that Ross close
the mine in support f' their action. Ross stated that there
were the "usual obscenities that go with this type of thing."
The car was spat upon, a cup of coffee was spilled on the
back of the vehicle, and the car was struck with picket
signs. There was no damage to Ross' car. Similar actions
were taken against other cars that were attempting to pass
through the picket line to take the employees to work. The
picketers also tried to stop the C(oal Service trucks as well as
other delivers trucks. Ross did not see any weapons either
in any of the picketers' vehicles that were parked near the
picket line or carried b the picketers. Ross testified that
there were no reports of rocks being thrown on the first day
of picketing.
Ross crossed the picket line on several occasions on De-
cember 6. 1977. to ascertain whether the mines' employees
had adequate security going to and from work. During one
of the safety checks. Ross observed a car stopped by the
mass picketers who were blocking the highway. Ross con-
versed with a picket who reiterated the request to support
the Union and close the mine. One picketer. Diporto,
crawled onto the hood of Ross' car, trying to block his view.
Ross inched his car through the picket line and proceeded
to the Coal Service garage area with the picketer on the car
hood. Diporto and his brother were on Coal Service prop-
erty. Ross informed the brothers they were on private prop-
erty, and he escorted them one at a time off the property. A
Coal Service security guard reported to Ross after the Di-
porto incident that one of the brothers had threatened and
manhandled him and that possibly the picketer had a knife
in his pocket. The Diporto brothers were described as being
highly intoxicated.
Stokes was working the swing shift on December 6. 1977.
13 The road was described as a normal secondary highway, rto lanes wide
and having a blacktop surface.
457
DE('ISIONS OF NATIONAI. .ABOR RELATIONS BOARD
Stokes carpooled with a coworker and it was Stokes' turn to
drive. Stokes prepared to go to work, though he testified
that he was feeling ill, and picked up his rider. During the
drive to the mine. Stokes felt sufficiently incapacitated as to
constitute a threat to his coworkers and to his personal
safety, so he decided not to report for work. Stokes took his
coworker to an unspecified meeting point, which appears to
be the Coal Service facility, where the workers were to
gather for transport to the mine in vans or buses. Stokes
waited until he was sure his coworker had a ride home, then
returned to his residence. When Stokes arrived home he
telephoned Respondent to report that he was feeling ill and
would not be working that day. Stokes also advised the
Company that he did not know if he would be working the
following day, December 7.
Stokes testified that when he drove through the picket
line he observed the picketers' private vehicles and esti-
mated that a large number of' vehicles had gun racks con-
taining firearms. It is uncontroverted that many residents of
the Price area own pickup trucks with guns placed in gun-
racks in the truck cab and that this manner of equipping
the trucks was considered a status symbol among the min-
ers.
B. Events ofJ Dclcmher 7
The mass picketing continued. In the morning, at about
2:30 a.m.. Ross received a telephone call from the local
sheriff who asked him to meet with some Unitcd Mine
Workers' representatives. The meeting was held at the sher-
iffs office at 6:30 a.m., and three UMW local presidents
attended. The union representatives asked Ross to close the
mine. Ross asserted that he had a right to work and stated
that mining operations would continue. One tIMW repre-
sentative said that if the mine were not closed, violence
would continue and could become worse.
Ross then met with Colonel Reed of the highway patrol
at a place designated as the assembly area.' When Ross
reached the picket site, he noted that there were between
150 to 175 picketers who completely blocked the road. The
picketers shouted obscenities and banged signs on the sides
of the buses, rocks were thrown at one bus at least, and one
secretary was struck a glancing blow on the forehead by a
rock. No other injuries were reported. A windshield and
two other windows were broken. Later in the day Ross re-
ceived reports that a supervisor had his company car
stopped, and some picketers started rocking the car, some
stating the intent to roll the car over. During this incident a
"pop can" had been thrown against the windshield.'5 Subse-
quently, Ross received reports that, on or about December
7, law enforcement officials had also been subjected to
abuses such as rock throwing and obscenities. Patrol cars
operated by state troopers had windows broken. Also, on or
about December 7, Respondent used a helicopter to supply
4 The assembly area was located in the center of Price and was the point
where all Respondent's employees met to he transported to the mine in vans
or buses leased by the ('ompany.
15 Similar incidents were occurring a tlhe same time at the iother nonunion
mines which were also the subjects of mass picketing.
the security guards at the mine.? The helicopter was used
just once.
Ross did pass through the picket line on December 7 by
slowly inching his vehicle through the several rows of pick-
eters lined up across the road. At the time of these incidents
the sheriffs office, which had approximately seven employ-
ees, was experiencing great difficulty meeting the exigencies
arising at the three nonunion mines, which were geographi-
cally separated. Ross admitted that the local law enforce-
ment agencies were inadequate to protect the employees
and control the picketers on December 7. The state high-
way patrol troopers had not yet been assigned to the Com-
pany's mine.
Stokes went to work on December 7. After picking up his
coworker he drove toward the Coal Service facility, which
had previously been the meeting site, to load onto buses' 7
for the trip to the mine, when he noticed the mine foreman
and another employee driving back toward Price. T'he mine
foreman signaled Stokes to follow him. Stokes turned
around and followed the foreman to a municipal parking
lot. Stokes stated he was told "that things were pretty heavy
on the picket line and for them not to take their private
vehicles there." Stokes also stated he was told that the em-
ployees were driven out to the mine in vans with every
intention of working, but that conditions would he evalu-
ated once they reached the site of the mass picketing.
When the vans reached the picket line, Stokes found the
picketers to be in a violent mood, and heavy objects struck
the bus (van). No rocks were thrown at the bus Stokes occu-
pied and he did not know what objects were striking the
vehicles. Stokes testified that the employees passed through
the picket line with the assistance of' troops who formed a
wedge and bodily forced back the picketers.
About halfway through Stokes' shift, work was termi-
nated at the (iGovernor's request. According to Ross. the
request was prompted by the (;ovcrnor's inability at that
time to provide security forces consistent with the assur-
ances previously given the nonunion mine operators. Ac-
cording to Stokes, this decision to close the mine halfway
through the shilt was not explained to employees at the
time. 'Ihey were told to leave the mine face and head for a
point called the kitchen area. which was an underground
area where the employees ate their lunches. There was
some undescribed speculation among the employees regard-
ing the order to leave. but they did not know what exactly
led to the order. When the employees reached the kitchen
area, they were telephonically informed that they would
immediately exit the mine. When they reached the surface,
the employees showered, got dressed, and waited for trans-
portation to the municipal parking lot in Price.' According
I The use of the helicopter was pursuant to an offer made by another
mine The security officers at Soldier ('reek needed liftd to stock a trailer at
the mine site. Ross stated that management thought it would be easier to
take the offered privilege of using the helicopter to fly the food in rather than
to go through the picket line one more time.
17 The witnesses described the vehicles used to transport employees to the
mine site as vans and buses. At limes these vehicles were described as vans
and at other times as buses. The terms were used interchangeably and the
record ails to accurately differentiate when a certain type of' vehicle was
used. Accordingly. the terms are used interchangeably herein.
i Stokes initially testified that they waited a short time for the vans to
arrive, then modified his testimony by stating that nl vans arrived, but police
vehicles came to transport the employees.
458
SOLDIER ('RIEK COA (
to Stokes. no reason was given for the work stoppage: an
unspecified "theY" merely expressed the need for "expedi-
ency and quickness." Stokes described the ride in the police
car as being extremely fast. in excess of the speed limit.'?
Darkness had fallen and, as the police vehicles passed
through the picket line. Stokes observed many fires and an
abundance of picketers, possibly twice as many picketers as
he had observed when passing the picket line at the start of
the shift. Stokes admitted that the fires could have been lit
to keep the picketers warm since it was a very cold eve-
ning.2 0
Ross stated that, with the exception of the rock-throwing
incident which occurred on December 7. there were no
other occasions when rocks were thrown during the mass
picketing at Soldier Creek. The picketing lasted from De-
cember 6 through December 16. During the picketing, and
subsequent to December 7. the picketers did make threats
and hold rocks in their hands, but no violence of any kind
occurred at the Company. There was a rock-throwing inci-
dent at Plateau Mining and a bridge on the access road to
Plateau Mining was burned. To Ross' knowledge that was
the extent of the violence.
C. Events of December 8
The mine did not operate on December 8 at the Gover-
nor's request, although the other nonunion mines did con-
tinue operations. Ross met with state and local officials and
was satisfied that the authorities had made arrangements
adequate to insure the safety of the Respondent's employ-
ees going to and from work. Ross also caused steel mesh to
be placed over the windows of the rented vans or buses
which conveyed the employees to the mine. Additionally.
since Ross was aware of one incident where tires had been
slashed or punctured on the picket line, extra rubber belting
was placed on the vans or buses to protect the tires.
The Company called a meeting for the evening of De-
cember 8 to inform the employees why the mine was not
operated that day and to announce the security measures
assured by the Governor for the following day. December
9. The meeting was conducted by Ross, Olsen. and an un-
named representative of California Portland Cement, the
parent company. The witnesses generally agreed that man-
agement discussed the increased protective features added
to the vans or buses and said that all employees would work
one shift, the day shift, so that no one would have to travel
at night; that they would meet at the municipal parking lot
again for transportation to the mine: and that two 15-man
riot police units were promised.2'
Ross also discussed the efforts to get a restraining order
against the picketers and indicated the possibility that the
restraining order could be granted the next morning, which
could greatly limit the number of picketers. Arrangements
I' The speed limit was 55 miles per hour. and Stokes estimated that the
vehicles went through the picket line at more than 60 miles per hour.
10 Ross stated that he heard an employee's statement of concern over has-
ing to go through the picket line on December 7 at great speed for the first
time during Stokes' testimony in this proceeding. Ross was not present at
that time and has no knowledge of how the miners proceeded through the
picket line that evening
:1 It is not clearly stated whether the riot police were to provide security
for all nonunion mines or solely for Respondent's facility.
were made for Ross and two employees to drive out to the
picket site to scout the area. If the area was unsafe, the,
would not work, but the employees at the parking lot would
be paid one half day's wages for showing up. The meeting
then became a question-and-answer session.
What transpired during the question-and-answer period
is the subject of controversy. Ross admits that the mood of
the employees was "concerned." but he asserted the con-
cern regarded the cause for calling the meeting and when
they would next work. Ross further admits that some ques-
tions were asked regarding safety traveling to and from
work as well as safety at home. However. Ross denied tell-
ing anybody to use guns.
Stokes and Richard L. Statler: (Statler) testified that the
carrying of guns was discussed during the meeting. Both
Stokes and Statler admitted that the meeting was noisy and
that they had difficulty hearing the questions and answers
at limes. Nevertheless. both testified that security was
deemed insufficient to protect either the employees or their
families at home, and personal safety during nonworking
hours was a matter of individual discretion: that if an em-
ployee shot someone outside his home, management stated
"just bring that individual inside": when asked if the em-
ployees should carry firearms to work, management did not
say that would be grounds for termination. so Statler con-
strued the lack of a discouraging response as permission to
carry guns.2' and ire was expressed by several employees
toward the picketers.
Statler also testified that he saw quite a few employees
carrying handguns. including the bus driver. Statler also
carried a gun24 and apparently publicized the fact to pre-
vent harassment or any threats to his person.
I credit the testimony of Stokes and Statler regarding the
question-and-answer portion of the meeting, based on the
similarity of their renditions, though the witnesses were se-
questered. and on the facts that Ross admitted that the
employees asked questions regarding their personal safety
and the safety of their families: Ross did not deny that
questions regarding firearms were asked; and it is undisput-
ed that some employees did carry handguns to and from
work subsequent to the meeting. as discussed more fully
hereinafter.
D. Events of December 9
When Ross and two other employees scouted the picket
line on Friday morning, they saw mass picketing was still
occurring on the road leading to Respondent's mine. Ross
2 Statler was employed by Respondent as a miner about November I.
1977. He left the Company's employ around July 18. 1978. At the time of the
hearing Statler was undergoing rehabilitation for alcoholism in Florida. He
admitted having an alcohol problem while employed by the Company and
being reprimanded for coming to work while under the influence of alcohol
1i Stokes testified that Ross specifically replied. "Well. whatever you guys
do. it is up to you. but just don't come up and tell me about it" Staller was
not sure who responded for management
24 Statler's testimony was unclear at times, he appeared to have difficulty
concentrating and at times became hostile and vas ery nervous. Statler's
demeanor does not warrant the discrediting of his testimony. however. for
his rendition of what occurred at the meeting was ery similar to Stokes'
testimony. even though the witnesses were sequestered and Stokes and Stat-
ler did not converse prior to the hearing
459
DEI) CISIONS OF NAI'IONAL LABOR REILATIONS BOARD)
then returned to the municipal parking lot which was the
bus staging area and saw Stokes. Stokes drove to the stag-
ing area "somewhere after 7 a.m." The bus was not sched-
uled to leave until 8 a.m. Eventually, the "scouts" reported
the continuation of mass picketing. Stokes claims that he
then confronted Ross with the fact that there were many
pickets." Ross allegedly looked at him with "disdain" but
did not respond. Stokes was instructed to remain at the
parking lot until management decided if they would oper-
ate the mine. He wandered around for a few minutes, then
returned to his vehicle to get warm. Stokes stated that three
coworkers noticed that he was running the engine of his
vehicle to warm up and asked to join him. The four miners
were having a general discussion when, Stokes stated. one
coworker pulled out of his belt a loaded semiautomatic
handgun. The other coworkers then exited the vehicle.
Stokes then went to speak to a supervisor and found two
foremen. Stokes claims to have informed the foremen., 2
"[T]hese guys have guns and someone is calling for war:
someone is looking for some kind of war, and I don't be-
lieve that I'm going to show up for it." According to Stokes,
two other employees were talking with the foremen and
they both said, "This is crazy. I'm not going." The two men
then made a hasty exit. At this time the buses were starting
to depart but Stokes did not board.
Stokes then telephoned an unnamed friend and informed
the friend that some employees were carrying handguns.
The friend suggested that they meet at the United Mine
Workers office. Stokes went to the UMW office and re-
ported the situation to the union president. The union pres-
ident telephoned the county attorney who replied that he
would contact the local sheriff to stop the buses and remove
all firearms."
The buses were escorted by law enforcement personnel to
the mine, crossing the picket line without incident. From
December 9 to the date picketing ceased no further violence
or harassment was reported.
E. Stokes' Termination
Stokes reported to work the following workday. Monday.
December 12, 1977. Before he could change into his work
clothes he was asked to come to Olsen's office. Stokes was
informed by Olsen that he could not go to work that day,
that he had been terminated for absenteeism. The actual
content of the conversation is in dispute, as hereinafter de-
tailed.
Ross and Olsen testified that the decision to terminate
Stokes was unrelated to his activities on December 9, 1977:
rather the determination was based on Stokes' record of
absences prior to that day. Ross said he knew of Stokes'
atrocious absentee record at Braztah Corporation, which
was a factor considered in the decision to terminate. The
72 Stokes testified that Ross had indicated during the meeting the previous
evening that if there were more than 15 picketers the mine would not oper-ate. This testimony was not confirmed by Statler and was not mentioned in
the testimony of the other witness.
26 Neither or the two foremen was called as a witness." There was no evidence indicating that the buses were in fact stopped bythe authorities for removal of firearms. The "friend." the union president,
and the county attorney did not testify.
policy for terminating probationary employees has no fixed
standards and, hence, has no fixed pattern. The determina-
tion is made after considering the employee's reliability,
whether he is a good. safe worker, as well as other similar
management considerations. The decision is strictly Ross'
and once he makes an adverse decision, he terminates the
employee. Ross stated that he decided to terminate Stokes
on December 7, the day he received the daily report of
absences for December 6.2 s He did not discuss his decision
with anyone else and, due to the mass picketing, did not
have time to effect the termination prior to December 9,
1977.
Ross and Olsen further testified that at the time the ter-
mination was made. December 9, 1977. they did not know
Stokes was absent." This lack of knowledge is due to the
manner of recordkeeping used at the mine. The lampman
prepares the attendance sheet, covering a 24-hour period or
covering each of the three shifts. After the report is finished,
the lampman places the attendance sheet on Olsen's desk at
approximately 5:30 a.m. the following morning. After Ol-
sen reviews the records. they are given to the data process-
ing manager so that the data may be recorded on the em-
ployees' records. The attendance reports are then passed on
to Ross. Under their procedures, Olsen and Ross did not
receive information regarding Stokes' absence on Decem-
ber 9 until the next workday, December 12, 1977.
Olsen further testified that during the morning on De-
cember 9. he telephoned Ross to inform him that it was the
last day of Stokes' probation. At that time, Olsen did not
know whether Stokes was present at the mine, for he did
not receive the attandance report for the day and he does
not believe anyone informed him that Stokes did not board
the bus at the municipal parking lot." Ross asked Olsen for
his recommendation. Olsen recommended that Stokes' em-
ployment not be continued based on his absenteeism at Sol-
dier Creek. Ross agreed and told Olsen to terminate Stokes.
Stokes was absent on October 25 and 28. November 15,
and December 6. as well as December 9. In late October
1977, after Stokes began having unexcused absences, Olsen
informed Stokes that he was a probationary employee who
was beginning to miss work. Olsen may have been sensitive
to Stokes' absenteeism since Olsen, while employed at Braz-
tah mine, knew of Stokes' absentee record there. In fact,
Olsen stated that the day Stokes applied for a job at Soldier
Creek, he informed Stokes that he was aware of the absen-
teeism problem at Braztah, and Soldier Creek could not
allow that type of activity. Olsen hired Stokes because if the
absenteeism could be overcome, Stokes had a chance of
being a good employee. On October 31, Olsen prepared a
2 Absences are reported in two ways: one method is through a call-in
procedure. where the employee telephones to report he will be absent, and
the other is the check-in and checkout procedure. Federal law requires the
keeping of these attendance records. Check-in and checkout are recorded on
a sheet by an individual called the lampman, who is present at the change
house at all times.
9, The separation notice filed by Respondent with the Utah Department of
Employment Security, filed December 9. 1977. stated that the last day Stokes
worked was December 9, 1977.
I There was no evidence introduced indicating that either Ross or Olsen
knew Stokes did not board the bus. nor was there an indication that a special
report was prepared on December 9 showing which employees ailed to
board the bus or report for work.
460
SOIDIFR (RIEEK COAl (CO.
written reprimand. stating "Stokes was also told at this time
that his absenteeism should improve." The reprimand was
placed in Stokes' personnel file.
Stokes denied he was excessively absent while employed
at Braztah Corporation and stated that he never received
any discipline. Stokes said he had an average amount of
unexcused absences while employed by Braztah Corpora-
tion. Respondent placed in evidence a certified letter writ-
ten by a Braztah Corporation superintendent to Stokes. and
a return receipt signed by Stokes dated December 18. 1976.
The letter states in part:
A review of your absentee record indicates that you
received a verbal warning for excessive absenteeism on
9-24-76. Since that time you have continued to log an
excessive number of absences from scheduled work.
This letter will serve as final written warning to you
that you must correct your pattern of excessive absen-
teeism.
In closing, I want to make it perfectly clear that we
cannot tolerate your record of excessive absenteeism.
Your record must improve or you will no longer be
working for this company.
Stokes did admit that he had a bet with a coworker at
Braztah Corporation regarding whether he could make it
through a 2- or 3-week period on the graveyard shift with-
out missing work.
On December 19, 1977. Stokes filed a "Statement of Rea-
son for Discharge" with the Utah Department of Employ-
ment Security. The statement gave as the reason for his
discharge, "Not fulfilling a 60 day probationary set of re-
quirements." Stokes admitted that he had been warned pre-
viously about the conditions which led to his discharge, but
he asserted that he did not miss another day without calling
in. He claimed to have received only one verbal warning
and no written reprimands. In addition to Olsen's repri-
mand for his absence on October 28. 1977. the mine fore-
man, on November 16, gave Stokes a verbal warning on his
absenteeism, and the foreman, Wilson, also told Stokes that
if he continued to miss work the Company would take dis-
ciplinary action. That the reprimand was given was noted
in Stokes' personnel file.
On December 23, the Company was informed by a "No-
tice of Claim Filed" with the Utah Department of Employ-
ment Security that Stokes claimed he was fired unjustly
because he was "friendly with a union organizer." The
Company replied to the claim, stating that the termination
was "because of numerous unauthorized absences."
Stokes testified in the instant matter that he believed the
reason for his discharged was because he asked questions at
the December 8, 1977, meeting "which rubbed Ross the
wrong way," but he was not absolutely sure why he was
fired.
According to Olsen, after Ross stated Stokes was to be
terminated, Olsen was unable to inform Stokes of the deci-
sion because Stokes was absent. Olsen went to the bath-
house on December 12 to inform Stokes that he was not to
get changed but was to come over to his office. At his office
Olsen informed Stokes that he was terminated because of
his absenteeism. Olsen also stated that Stokes could discuss
the matter with Ross. On the other hand. Stokes claims that
Olsen said at the December 12. 1977. discharge interview
that "This isn't anything personal between you and I . . .
but Ross told me not to allow anyone to come back up and
go in the mine." The actual import of this version is un-
clear. inasmuch as there is no evidence that other employ-
ees who failed to board the bus on November 9 were also
precluded from working on December 12. Olsen's alleged
reticence, interred by Stokes' version, is also unexplained,
particularly in light of Olsen's previous warning to Stokes
because of Stokes' first unexcused absence in October.
These factors. cojoined with Stokes' demeanor and his fail-
ure to acknowledge all the warnings he received for absen-
teeism lead me to not credit his testimony in this regard."
On December 19, Stokes met with Ross. The meeting
took place in Ross' office. Two other individuals were pre-
sent.": Ross informed Stokes that in reviewing his attend-
ance record he decided that Stokes was not the type of
individual Soldier Creek wanted as an employee. Stokes
replied that he did not think that he missed an outrageous
amount of work. Ross stated the dates Stokes had unex-
cused absences. Stokes then stated that he wished to follow
the mediation program. Ross replied that he was not enti-
tled to a mediator since he was terminated as a probation-
ary employee. Stokes then said that if that was his only
recourse, then "possibly we'll see you in court."
11. ANA,.YSIS ANI) ()N('It'SNS()
Section 8(a(I) of the Act prohibits an employer from
interfering with, restraining or coercing its employees in the
exercise of their rights guaranteed in Section 7 of the Act. If
the employer punishes an employee for engaging in con-
certed activity, it is a violation of the Act, even though the
employer may not have enmity against such collective ac-
tivity. N.L.R.B. v. Was.vhinglon A/uminum (Company , Inc.,
370 U.S. 9(1962).
To hold an employer in breach of Section 8(a)( 1) of the
Act, however, "[I]t is necessary to establish that at the time
of the discharge the employer had knowledge of the con-
certed nature of the activity fobr which the employee was
discharged." Diagnostic Hospital Center Corp. of Texa.l., 228
NLRB 1215. 1216 (1977). Respondent argues that at the
time Stokes was discharged, it was not known that he failed
to board the bus. Furthermore, Respondent asserts that
such failure was not concerted activity protected by the
Act.
General Counsel contends that Stokes' discharge was, at
least in part, based on his unexcused absence of December
9. To support this contention, reference is made to employ-
ment records of Respondent selected by counsel for the
General Counsel. The records cited 12 instances where em-
ployees of Soldier Creek had four or more absences but
I The crediting of only portions of Stokes' testimony is required under the
circumstances of this case. and does not require rejection of his entire testi-
mony. Carolina Canners. Inc., 213 NLRB 37 (1974). Accordingly. the dis-
crediting of this portion does not require discounting all of his testimony.
"Nothing is more common than to believe some and not all of what a witness
says." Edwards Transportation Companv. 187 NI RB 3-4 (1970). enfd. per
curiam 437 F.2d 502 5th Cir. 1971).
12 Jack Coprer was one of the individuals present. Copfer was terminated
about the same time as Stokes. The reasons for Copfer's discharge were not
placed in evidence.
461
I) ('ISIO)NS () N IONAI I ABOIR R A'IO()NS BOARDI)
were not termioin ted during the prob;tiMn;lar period. he
employee records also show, it is argued, thal Respondent
was ery tolerant of absenleeism, terminlaltiig one employee
after 9 consecutive working days of' unauthorized ab-
sences This same employee during his probationary pe-
riod had nine additional absences. Counsel for General
Counsel fails to state how mans of these nine absences were
unexcused. Another employee had four unexcused absences
during his prohationar? period and was not terminated un-
til thereafter, accumulating many more unexcused absences
and a total of 19 absences, excused and unexcused. The last
employee singled out by (ieneral Counsel for comment had
a total of ive unexculsed absences during his probationary
period, and he was not discharged. The reason why some
employees were retained though they had more unexcLused
absences than Stokes was not explained by either party.
The analssis of the records does not include information
indicating whether or not the selected employees received
verbal or written reprimands relating to their unexcused
absences. Furthermore, as Respondent argues, the em-
ployee records introduced by General Counsel did not con-
tain all the relevant facts surrounding the retention or ter-
mination of the employees whose records were selected by
General Counsel, such as: whether the employee(s) were
retained because they possessed unusual skills, whether the
employee(s) left voluntarily because the) knew their attend-
ance record(s) warrant(ed) termination: and the condition
of the labor market at the various times to indicate the
availability of potential replacement employees.
Prior to drawing an adverse inference because of dispa-
rate treatment, a basis for comparing attendance records
must be established. Best Products (Companv, In(c.. 236
NLRB 1024. 1025, fn. 5 (1978). It is not disputed that
Stokes received two reprimands for unexcused absences.
The absences of October 28 and November 15. 1977, which
were the subject of the reprimands. occurred well before
any alleged protected activity. Furthermore, it was undis-
puted that both Ross and Olsen were aware of Stokes' ex-
cessive absenteeism while employed at Braztah Corpora-
tion. Although Stokes denied he had excessive unexcused
absences at Braztah Corporation, the reprimand letter, dis-
cussed in/ra, more than adequately refutes Stokes' claim of
a reasonable attendance record at his former employment.
Ross admitted that Stokes' attendance record at Braztah
Corporation was considered in deciding to discharge
Stokes. As noted previously, Olsen's actions were also ap-
parently influenced by these same fiactors. Olsen gave
Stokes a written reprimand the second time Stokes had an
unexcused absence. In the absence of evidence that the em-
ployees allegedly treated more leniently than Stokes had
similar employment histories and similar skills during simi-
lar labor and other market conditions, there is no basis for
comparing their attendance records. Best Products Coim-
panvy Inc.. supra.
General Counsel also asserts that the testimony of Ross
and Olsen to the effect that Stokes was discharged on De-
cember 9 1977, should not be credited. In support of this
1] It is noted that General ('Counsel listed the coinsecutive days of unek-
cused absences as numbering 8, not 9 he difference is found not to be
significantl
assertion. it is argued that Ross. though claiming to have
made the decision to terminate Stokes on December 7 after
recei ing the report of Stokes' unexcused absence of De-
cember 6, took no action on December 7 a day Stokes
worked: called Stokes to the meeting of [)ecember 8, for
which he was paid: and, in fact, terminated an employee
who was admittedly a good worker 4 for unexcused ab-
sences, three of which were due to illness.
General ounsel does not address the explanation for
Ross' failure to implement his decision to discharge Stokes
prior to D)ecember 9, that he was extremely occupied by the
problems caused by the nationwide IJMW strike resulting
in mass picketing at Soldier (reek. I find the exigencies
created by the mass picketing a credible explanation obr
Iailure to discharge Stokes on December 7 as well as the
iaiulure to relay that decision to other supervisor personnel
who telephoned Respondent's employees on I)ecember 8 to
infoirm them of the meeting. Inasmuch as Ross did not im-
plement his decision by discharging Stokes on December 7
or 8, it is not inconsistent, as General Counsel alleges, that
Stokes was paid for those days.
General Counsel further avers that Stokes' testimony
supports the conclusion that he was actually discharged on
December 12 after Ross and Olsen were informed he failed
to report for work following the concealed weapons inci-
dent of December 9."
In addition to the reasons given previously for not credit-
ing Stokes' testimony indicating that Olsen did not fire him
on December 9 I further find that, based on Olsen's demea-
nor, his testimony is to be credited. Additionally, Stokes
filed a statement with the Utah Department of Employ-
ment Security admitting that he was told he was discharged
for unexcused absences, which failed to "fulfill a 60 day
probationary set of requirements." Stokes never claimed he
was not informed or did not know his last day of probation
was December 9. Yet the form filed December 19 claims he
was discharged for being "friendly with union organizers
. . and personal prejudice." The "personal prejudice" ap-
parently retfers to Stokes' belief that he angered Ross when
he asked questions at the December 8 meeting. Stokes ap-
parently dropped the allegation that his discharge was
caused by his friendship with a union organizer. The differ-
ing and somewhat contradictor clainms of causative factors
in his discharge further discredit Stokes' testimony. On the
other hand, Respondent has consistently contended in all
its filings with the Utah Department of Employment Secu-
rity that Stokes was terminated during his probationary pe-
riod for unexcused absences. The Respondent's stated mo-
tive has not been shown to be implausible, inconsistent, or
inadequate.
To support an inference of inadequate or implausible
motive, General Counsel asserts that Stokes' employee rec-
ord lists December 9 as an unexcused absence, which was
crossed out at some unknown point, and the C(harging
Party was marked terminated at some unknown point. The
record fails to clearly state which employee marks the at-
Olsen tesitied that Stokes was a good worker with the exception If his
absenteeism problem.
" As discussed in detail injra, Olsen's rendilmln o the December 12 discus-
sion, wherein Stokes was told not to dress and not to reporlt or work in the
mine, is credited
462
SOLDIlR CREEK (OAL CO.
tendance record, when that employee marks the specific
record when that employee is informed of management's
decision to discharge a worker, or whether the same em-
ployee records absences and terminations. These factors.
cojoined with the absence of any indication that the mall-
ner of marking Stokes' record is different from normal prac-
tices, or that the termination was recorded on a date proha-
tive of the allegation that termination was effectuated after
Stokes' absence on December 9 was known to Ross and
Olsen, fail to support the requested inference.
General Counsel argues that Ross and Olsen knew Stokes
was absent on December 9 prior to the decision to dis-
charge. In support of its argument. Stokes' conversation
with Ross referring to the fact that mass picketing contin-
ued, when Ross looked at Stokes with "disdain" and re-
fused to answer. is cited. Stokes' inquiry of concern. it is
alleged, when added to the above arguments. presents suffi-
cient evidence that Stokes was terminated. at least In part,
for his failure to report to work on l)ecember 9. In further
support of this argument. the following testimony of Ross
was quoted. as pertinent, as follows:
Q. In considering Mr. Stokes' attendance record.
did you take into consideration part of' his absences in
making the determination to discharge him'?
A. In fairness, we took his whole record during his
temporary employ ment.
This testimony, it is asserted, includes a reference to De-
cember 9. This assertion is not persuasive. Ross testified.
without direct contradiction, that he had ()lsen discussed
Stokes' termination on I)ecember 9 prior to receiving the
attendance records Ifr that date. Stokes' "w hole record" on
that date did not contain the I)ecember 9 unexcused aib-
sence. Though General Counsel fails to argue the point.
Stokes did testify that he informed two foremen about the
gun situation."?
The fact that Stokes maN have told two foremen that he
wanted no part of traveling to work with employees carry-
ing concealed weapons, under these circumstances, is insuf-
ficient to establish a riniafl'ie case of unlawful motivation
or even that the official who decided to discharge Stokes
had knowledge of his absence on December 9. both Ross
and Olsen testified, without refutation by any witness, that
they did not know Stokes was absent on December 9, the
day Olsen recommended the discharge to Ross, and Ross
instructed Olsen to terminate Stokes. It is agreed by all
parties that mass picketing continued to occur that day. a
fact which kept management very occupied. It is not con-
tended that the method of recordkeeping, which informs
management of employees' attendance the ifollowing work-
day, was altered on December 9 although all employees
worked a single shift.
Stokes did not testify that the two foremen saw him leave
the area or knew that he did not board the bus. There was
" General Counsel argues that Respondent's ailure call these forenlen
requires crediling Stokes' estimon). No adverse inference ill e drawn for
failure to call witnesses which were equall, available to both parties General
Counsel did not allege the foremen were unavailable as witnesses lor his
case. Local 259. Unted .4Autmobhile. A4eropae., and A4grilrlaurl Inpl/ernnt
Workers of.America Atherton ('adila. In 1, 225 NI.RB 421. 422, at n
(1976).
no clear showing that Stokes' statement to the foremen that
"he wasn't going to be part of this" was clearly understood
as a declaration that Stokes was not going to work either
because of his concern for his saf'elt or tor other reasons.
Stokes admitted that the foremen "went about their husi-
ness. got in the ans and left." Exactl ahat "their busi-
ness" was or how long it took was not explained. Accord-
ingly. it canlit be found that Ross or Olsen had knowledge
that Stokes was absent on December 9. nor can such knowl-
edge be inferred from Stokes' statement to the foremen.
T'he General Counsel has the burden of establishing e-
cry element of' a iolation under the Act. Il .'stern T ran
Bargt' ('or/lorilton. 207 NlRB 13. tfootnote 1 (1973). 1 find
that (eirneral ('ounsel has failed t mIeet lis blurden. A-\
though. or the purpoises of' this )cclslon. I assunc rgu-
undl that Stokes' failure to board hl- e ani: ,n I)cccbll e r 9
was acti\it x, protected b the Act.' the record does not
establish ui ful1 termi;natiton. or it tliils to dea;l\l ctab-
lish that the prortected actiit i was cnisidered ior impellled
the discharge. Otn the particular fcts of this case. the Re-
spondent. in ulnicon t rotverted testi mon'. stated Stokes w:as
emnplh) ed because he had the potential ot' beto ning of g od
emplioee it' he culd overcome the problem ol excessive
absenteeism. At the time he was elplo? edl at Soldier ('reek
he was w'a rned that excessie ulnexcuscd abhsenlteeisl , Iould
not be tolerated. l'his ; arning a;is repeated. lihcn Stokes
had an tllexcused absence.' ill tle forml ot' a xerbl rlelri-
nanlld hich as reduced to a Ienlortnd. Ill placd i his
personnel ile. Stokes' personnel file ilsIo contains I mtIello-
randuni recording the fact that Stokes receltctd a erbal
warnling t'ron hi ls reiman. Rn krlsiit. t n1 Nolembehr (
regardiig Stokes' iuiccusedi ahsncte ot" Nx enllhc 15 . Wil-
son also intirnted Stokes tihat i hlie contilued to minss work
lie w:ouldl be subiectied I tlisciplitar ictilt. I hese eeilts
;re uncotlllrltlecl ted.
()n the last dai of' Stokes' prhbatlionar preriod. inage-
mnent assessed his suitabilit\ 'ir cnitiinued epltrLrent. al
activit li nlt shitnli to ei ate tIr'tt its nrilal slanlarlds.
T'hle fact that the phatiolnar pcrli)L. discharge. and a;s-
sunied protteteed ictivit\! ccurred oin the sale cdla is lound
to be coincidlental, p-articullarly in light o' the finding that
the engaging in plrrrteted cticit .as not kno n to Ross
and Olsen at the time of the discharge. I he assessmenlt was
conducted at tie whee en lte attendance records failed to
indicate Stokes' absence for \ hat has been assulied cir/it-
u,'ndo to be a protected activit. (ieneral ('ounsel failed to
demonstrate through the presentation of prohatie persua-
sie evidence that the !)ecember 9 absence was considered
in the determination to discharge. he absence of indepen-
dent evidence on which to rest ia reasonable interence that
the Respondent acted either out ot' hstilit tovard r in
reprisal for the protected actisity Stlokes is assunle t have
' General ('Cunsel contends hat Stokes had a prolected right under Sec-
lion 502 ,I the Act rto refuse I) work n D)ecembniher lr the abhnornmill
dangerous w .orklng co lill on, Uhich els te.d .it the ilille B.lsed n the con-
clusion reached herein, i 1i Lllnnllc sars l dleternlen¢ I Stikcs ' i.t 11,is 1 i
I)ecemhei 9 was in lfact prtectecl rghtl ilnler Sei 2 oi the -\lI
"q Stokes . aIhbSTlll in ()ctoher 25 inll 28. No,eillhcl 1i
.
aldl I)ccmber
6 and 9 t he reprillani d relerred I hi e sc A i, r the illneclc sed .hbence lI
Octobher 28
463
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in requires the conclusion that the Respondent did
not violate Section 8(a)(l) as alleged.
Accordingly, I recommend that the complaint be dis-
missed in it entirety.
CON(LTUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent has not engaged in the unfair labor prac-
tices alleged in the complaint in Case 27-CA-5689-2.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 19
The complaint is dismissed in its entirety.
1' 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. he adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.