Superior Coal Co.

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 439 (N.L.R.B. 1989)

SUPERIOR COAL CO. 439
Superior Coal Company and International Union of
United Mine Workers of America . Case 18-
CA-9814
June 15, 1989
DECISION AND ORDER
BY MEMBERS JOHANSEN , HIGGINS, AND
DEVANEY
On November 28, 1988, Administrative Law
Judge William A. Pope II issued the attached deci-
sion. The Respondent and the General Counsel
filed exceptions and supporting briefs.
The National Labor Relations Board has delegat-
ed 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 decided to affirm the judge's rulings, findings,2
and conclusions and to adopt the recommended
Order as modified. 3
AMENDED CONCLUSIONS OF LAW
Substitute the following as Conclusions of Law 6
and 7.
1 The Respondent 's motion to reopen the record is denied as the evi-
dence the Respondent seeks to admit relating to the mine 's subsequent
closing would not affect the judge 's findings , which we adopt The Re-
spondent may, however , present its evidence in the compliance proceed-
ings to determine the backpay owed to discriminatees.
2 The Respondent has excepted to some of the judge 's credibility find-
ings. 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.
While we agree with the judge that the comments of the Respondent's
president, Huyser, at the meeting on September 15 or 16, 1986, constitut-
ed a threat , we find it unnecessary to rely on the judge's conclusion that
Huyser was implying that he would not negotiate with the Union. We
find that by stating if "we could not sell coal at a profit , we would not
sell coal ," in the context of the rest of his speech , Huyser was threatening
to close the mine if the Union won an election , and not merely making a
prediction based on his belief as to demonstrate probable consequences
beyond his control
Contrary to his colleagues , Member Higgins would not find that
Huyser 's statement that if "we could not sell coal at a profit, we would
not sell coal ," constituted an unlawful threat to close In the absence of
other unlawful statements made by Huyser during his meeting with em-
ployees , Member Higgins views this remark as a lawful expression of
opinion.
8 The judge inadvertently dismissed allegation 5 (e) of the General
Counsel's complaint which stated , "On or about September 15, 1986, Re-
spondent , by its Mine Superintendent Lee, threatened that employees
would be discharged because of their activities for and on behalf of the
Union " Thus, the judge specifically found , and we agree, that Lee did
make such a threat and ordered that the Respondent cease and desist
from such conduct . We correct this technical error by reinstating the al-
legation . The judge also found that Mine Manager Lebo 's comment to
employee McCarty that employee Bregar's termination would "calm the
problems with the union down " violated Sec . 8(axl), but failed to in-
clude this violation in his conclusions of law , and failed to provided a
remedy for this violation . We shall accordingly amend the judge's con-
clusions, Order , and notice to conform to his findings in this regard.
"6. The Respondent violated Section 8(a)(1) of
the Act during the month of September 1986 by in-
terrogating an employee concerning his union ac-
tivities, by threatening that employees who actively
participated in the union organizing campaign by
the Union would be fired, by threatening closure of
Respondent Superior No. 2 mine if the employees
selected the Union as their representative for col-
lective-bargaining purposes , and by stating that em-
ployees were fired because they engaged in con-
certed, protected activities."
"7. Paragraphs 5(c), (f), and (g) of the complaint
are repetitive, or have not been proven by a pre-
ponderance of the evidence , and are dismissed."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Superior Coal Company, Lovilia, Iowa,
its officers, agents, successors , and assigns, shall
take the action set forth in the Order as modified.
1. Insert the following as paragraph 1(d) and re-
letter the subsequent paragraph.
"(d) Stating that employees have been fired be-
cause they joined , supported , or assisted a union, or
otherwise engaged in concerted activities for the
purpose of collective bargaining or other mutual
aid or protection."
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these
rights.
To organize
To form, join , or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT coercively question you about
your union support or activities.
295 NLRB No. 51
440 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten to close Superior No. 2
coal mine or any of our other facilities if you select
the United Mine Workers of America, or any other
union, to be your representative for collective-bar-
gaining purposes.
WE WILL NOT threaten you with discharge or
other reprisals, or discharge, lay off, or otherwise
discriminate against any of you for joining or sup-
porting the International Union of United Mine
Workers of America, or any other union.
WE WILL NOT state that employees have been
fired because of their union activity and support.
WE WILL NOT in any like or related manner
interfere with , restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Dennis Bregar , Norman Nupp,
Michael Bingham , Robert Carr, Jim Deeringer,
Eugene Fry, Rick Fry, Jon McCarty, Kyle Petty-
john , Norman Simmons , and Carlton Vinsick im-
mediate and full reinstatement to their former jobs
or, if those jobs no longer exist , to substantially
equivalent positions , without prejudice to their se-
niority or any other rights or privileges previously
enjoyed and WE WILL make them whole for any
loss of earnings and other benefits resulting from
their discharge , less any net interim earnings, plus
interest.
WE WILL notify Dennis Bregar and Norman
Nupp that we have removed from our files any ref-
erences to their discharges and that the discharges
will not be used against them in any way.
SUPERIOR COAL COMPANY
Everett Rotenberry, Esq., for the General Counsel.
James S. Clay, Esq. (Lindner & Matsack), of Milwaukee,
Wisconsin, for the Respondent.
Eldon Prettyman , of Pittsburg , Kansas, for the Charging
Party.
DECISION
WILLIAM A. POPE II, Administrative Law Judge. In a
complaint, dated November 26, 1986 , the Regional Di-
rector for Region 18 of the National Labor Relations
Board, alleged that since on or September 12, 1986, the
Respondent (Superior Coal Company) violated Section
8(a)(1) and (3) of the National Labor Relations Act (the
Act) by interrogating employee about union activities,
threatening to discharge employees because of their
union activities, threatening to shut down operations if
the employees became represented by a union , and dis-
charging two employees and laying off nine employees
because they engaged in protected concerted activieies.
The original charge in this case was filed by the Interna-
tional Union of United Mine Workers of America (the
Union) on September 22, 1986; an amended charge was
filed by the Union on October 8, 1986 . Trial took place
between February 24 and May 5, 1987 , in Des Moines,
Iowa, before Administrative Law Judge William A.
Pope II.
I. BACKGROUND
Superior Coal Company, the Respondent in this case,
is one of three Coal mining and marketing businesses
owned and operated by James Huyser in the area sur-
rounding the town of Lovilia, Iowa . Superior Coal Com-
pany has been engaged in the business of underground
coal mining since approximately 1983. Star Mining Com-
pany, another of the James Huyser 's coal businesses, op-
erates a strip coal mine . His third coal-related business,
Iowa Coal Mining Company, processes and markets coal
produced by Superior Coal Company and Star Mining
Company.
Superior Coal Company began underground coal
mining in 1983 in an underground mine designated as Su-
perior No. 1. That mine was abandoned in Janary 1986,
because of low coal production resulting from unfavor-
able geological conditions . Mining operations were trans-
ferred to a newly opened underground mine in a differ-
ent location . Most of the employees who went to work
in the new mine, known as Superior No. 2, had previous-
ly been employed by Superior Coal Company in its Su-
perior No. I mine.
Entry to Superior No. 2 is through horizontal shafts
dug into the earth at the bottom of a pit excavated into
the ground to a depth of 110 feet, where the coal seam is
located . The shafts, which branch out into chambers
inside the mine, provide for entry of men, equipment,
and air, and removal , by means of a conveyor belt, of
mined coal. The coal is mined by using cutting machines,
drills, explosives , loading machines , and shuttle cars. Pil-
lars of coal are left standing to support the roof, which is
reinforced with long bolts driven into the roof with bolt-
ing machines , and by erection of timbers to further sup-
port the roof and prevent cave-ins.
Superior No. 2 operates with coal production crews,
which mine coal at the face, or head of the shaft in use.
The supervisor of the production crew is called the face
boss.' Mine construction work, including timbering to
support the roof, is performed by workers known as the
"dead work crew," a term evidently derived from the
fact that they did not produce coal . Mechanics repair
and maintain the equipment, and the underground oper-
ating crews are supported by surface workers, who oper-
ate equipment such as loading machine.
John D. Lee Sr. was the mine superintendent in
charge of mining operations at Superior No. 1, and, until
September 1986, at Superior No. 2. Initially, Superior
No. 2 operated with two production crews, each of
which consisted of 10 to 12 men, and supervised by a
"face boss," who reported to Mine Superintendent Lee.
The crews alternated monthly between the first shift,
which started at 7 a.m. and ended at 3 p . m., and the
1 Prior to a reorganization on September 28, 1986 , the face boss of the
first shift was Terry Thompson. The face boss of the second shift was
Billy Joe Maddison The parties stipulated that both Terry Thompson
amd Billy Joe Maddison were supervisors within the meaning of the Act
at all times relevant to this case.
SUPERIOR COAL CO.
second shift, which started at 3 p.m. and ended at 11
p.m. There were also two "dead work crews," which
did not rotate shifts (one worked the morning shift, the
other worked the afternoon shift ), surface support work-
ers who worked during both of the production shifts,
and maintenance workers who worked from 11 p.m. to 7
a.m. Superior No. 2's employees worked 6 days per
week , from Monday through Saturday.
Once actual mining operation began at Superior No. 2,
production problems developed because of unexpected
unfavorable geological conditions primarily "low coal,"
a condition in which the height of the coal seam was less
than 48 inches . This problem slowed production of coal,
and caused dirt and rock to be mixed with the coal as it
was mined . According to mine owner James Huyser, the
miners reached an area of thicker coal seams (approxi-
mately 48 inches) in the summer of 1986, and production
improved , although it did not quite reach the 22,000 to
26,000 tons per month which Huyser wanted.2 Produc-
tion during September, October, and November 1986
showed a steady decline, while production during De-
cember 1986 showed a sharp increase. 3
On February 20, 1986, Iowa Coal Mining Company
entered into an agreement with Iowa Fuel and Minerals,
Inc., under the terms of which Iowa Fuel and Minerals,
Inc., assigned to Iowa Coal Mining Company perform-
ance of the remaining 4-1/2 years of a 10-year contract
which Iowa Fuel and Minerals, Inc., had to supply coal
to Iowa State University.4 Assignment of the contract
was subject to the approval of Iowa State University. On
July 21, 1986, however , Iowa State University gave
Iowa Fuel and Minerals , Inc. 30 days' notice that it was
cancelling the coal contract, because for 3 years (1983-
1984; 1984-1985; and 1984-1985 ;) Iowa Fuel and Miner-
als, Inc . had failed to deliver the quantity of coal re-
quired under the contract, even though for 1985-1986,
Iowa State University had agreed to drop the annual
tonnage from 100,000 tons to 80,000 tons. Correspond-
ence in the file makes reference to Iowa State Universi-
ty's refusal to approve the assignment of the contract to
Iowa Coal Mining Company, although the parties did
not offer into evidence a specific letter from Iowa State
University to that effect.
In the summer of 1986 , Respondent, citing the need
for increased production to keep its customers , informed
its employees that they would be paid for vacation time,
but would not be permitted to take the time off.
On September 9 or 10, 1986, Respondent hired an indi-
vidual named Dan Lebo to be mine manager to Superior
No. 2 His responsibilities were to increase productivity
and decrease costs, in order to increase profits. Lebo re-
2 Production in July 1986 was approximately 21,287 tons; production in
August was approximately 21,924 tons . Production from January through
June 1986 ranged from 9,466 tons to approximately 17,160 tons.
a The following are the production amounts for Superior No. 2 from
September through December 1986 September- 17,811 tons ; October-
16,033 tons , November-12, 550 tons ; and December-24,272 tons.
4 The contract originally called for Iowa Fuel and Minerals , Inc., to
supply 100,000 tons of coal a year to Iowa State University from July 1
to June 30 each year Before the contract was assigned to Iowa Coal
Mining Company , the amount of coal required under the contract had
been reduced by agreement with Iowa State University to 80 ,000 tons a
year
441
placed John Lee Sr . as the person with overall responsi-
bility for mining operations at Superior No. 2. Although
Lee retained the title of mine superintendent , his author-
ity and responsibilities were limited to overseeing the
work underground.
It is undisputed that on September 10, 1986 , Respond-
ent's employee , Dennis Bregar, contacted the Union by
telephone , and that he and a number of other employees
of Respondent met with Eldon Prettyman , a union repre-
sentative on September 11, 1986 . At that time, and at
various other times at the Respondent 's mine and else-
where a number of Respondent 's employees , including
Dennis Bregar and Norman Nupp , signed cards authoriz-
ing the Charging Party Union to be their representative
for collective-bargaining purposes.5
On September 20, 1986, Dennis Bregar, an employee
on the first-shift dead work crew, was discharged by the
Respondent for "reported absenteeism prior to and after
warnings by your supervisor ." On September 22, 1986,
the Respondent also discharged Norman Nupp, another
employee on the first-shift dead work crew, for absentee-
ism. By letter dated September 23, 1986 , Respondent no-
tified John D. Lee Jr., the son of Mine Superintendent
Lee, that his employment had been terminated effective
September 13, 1986, for absenteeism from works
On September 26, 1986 , Respondent posted a notice at
Superior No. 2, signed by James Huyser , announcing a
reorganization of the work force.' Under the reorganiza-
tion plan , the two existing production units would be re-
organized into one larger production unit, called a
"Super Section ," which would operate during one 9-
hour shift. The second shift would be a construction and
a dead work crew , which would maintain the mine, build
ventilation controls, and move equipment ahead as
mining progressed . The third shift would perform main-
tenance and repair functions on the equipment . Huyser
stated that the size of the work force at Superior No. 2
would be reduced under the planned reorganization, and
that the records of the employees would be reviewed to
determine if they would be retained, and if so, where
they would be placed . He stated a list of the crewmem-
bers and job classifications would be posted at the mine
the following Sunday.
The employees who were released were Terry
Thompson (previously a face boss), Jon McCarty, Kyle
Pettyjohn, Norman Simmons, Jim Deeringer, Robert
Carr, Rick Fry, Gene Fry, Carl Vinsick, and Mike
Bingham. All of those released (except Terry Thompson,
who was a supervisor), had signed union authorization
cards ; however, not all the miners who signed authoriza-
tion cards were released.8
S A total of 19 Respondent 's employees signed authorization for repre-
sentation cards between September 11 and 18, 1986.
4 Company records show that John Lee Jr. last worked for Respond-
ent on or about September 4, 1986.
The notice stated that Superior No 2 historically had not operated
efficiently or economically because of lack of preventive maintenance ont
eh underground equipment , and absenteeism which contributed to a
lower than possible rate of production
8 Nine employees (plus one supervisor ) were released on September 28,
1986 Two employees who had signed union authorization cards were
Continued
442 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Under the reorganization , John D . Lee Sr . became the
supervisor of the "Super Section" (the first shift). How-
ever, when Dan Lebo ended his employment with Re-
spondent on March 1, 1987, Lee was reinstated to his
former position of mine superintendent.
After about a month , the super section concept was
modified by Respondent through the creation of a small-
er second shift production crew, called the "Peanut
Crew," composed of members of the dead work crew
and three recalled former employees . The function of
this crew was to cut , drill, and shoot coal , so that there
would be coal ready to be loaded by the super section
when it reported to work. Eventually, more former em-
ployees were recalled, and the "Peanut Crew" evolved
into a second production shift, although not as large as
the super section.
II. ISSUES
The complaint alleges that the Respondent violated
Section 8(a)(1) and (3) of the Act, by the following ac-
tions:
(1) On or about September 12, 1986 , Respondent, by
its Mine Superintendent Lee, interrogated an employee
about that employee 's union activities.
(2) On or about September 12, 1986 , Respondent, by
its Face Boss Thompson, threatened to discharge em-
ployees because of their activities for and on behalf of
the Union.9
(3) On or about September 12, 1986, Respondent, by
its Mine Superintendent Lee, interrogated an employee
about that employee's union activities.
(4) On or about September 15, 1986, Respondent, by
its President Huyser, threatened to shut down operations
if employees chose to become represented by the Union.
(5) On or about September 15, 1986, Respondent, by
its Mine Superintendent Lee, threatened that employees
would be discharged because their activities for and on
behalf of the Union.
(6) On several occasions during the month of Septem-
ber 1986 , Respondent , by its Face Boss Adcock , threat-
ened that employees who sought to become represented
by the Union would be discharged , and on one occasion
also interrogated an employee about another employee's
union activities.
(7) In about the middle of September 1986, the Re-
spondent, by its Mine Superintendent Lee, threatened to
discharge employees because of their activities for and
on behalf of the Union.
(8) On or about September 20, 1986 Respondent, by its
Mine Manager Lebo, stated that an employee was dis-
charged because of the employee 's union activities.
(9) On or about September 20, 1986 , Respondent dis-
charged its employee Dennis Bregar; on or about Sep-
tember 22 , 1986, Respondent discharged its employee
discharged prior to that date allegedly for absenteeism (Dennis Bregar
and Norman Nupp). Eight of the 19 employees who had signed union
authorization cards were retained by Respondent after September 28,
1986
9 Pursuant to Sec 102 . 35(h) of the Board 's Rules , this allegation of the
complaint was dismissed upon Respondent 's motion at the conclusion of
the General Counsel 's case , because there was no evidence offered to
support the allegation
Norman Nupp; and on or about September 28, 1986, Re-
spondent laid off its employees Michael Bingham , Robert
Carr, Jim Deeringer , Eugene Fry, Rick Fry, Jon
McCarty, Kyle Pettyjohn, Norman Simmons, and Carl
Vinsick, because the employees engaged in union activi-
ties and concerted protected activities for the purpose of
collective bargaining or other mutual aid or protection.
A. General Counsel's Theory of the Case
The General Counsel argues that employees Bregar
and Nupp were discharged by Respondent because of
their activities on behalf of the Union. According to the
General Counsel , the reason given by Respondent , exces-
sive absenteeism , was pretextual, and was designed to
conceal its real, unlawful motivation . The General Coun-
sel contends that although Respondent 's officials denied
knowledge of Bregar and Nupp's union activities (the
evidence , says the General Counsel , indicates that Bregar
was the leading activist at the mine, and Nupp , alone,
among all of Respondent 's employees, displayed a union
bumper sticker on his car ), there is evidence that they
had such knowledge before Bregar and Nupp were dis-
charged. The General Counsel says that the pretextual
nature of the discharges is shown by the timing of Re-
spondent's alleged concern about absenteeism, which co-
incided with the union activities of Bregar and Nupp.
According to the General Counsel, particularly dam-
aging to the credibility of James Huyser , Respondent's
president , who denied knowledge of Bregar 's union ac-
tivities , is the testimony of Respondent 's witness, Jo
Bingham , who testified that she told Huyser of Bregar's
involvement with the Union on the day Huyser said he
decided to discharge Bregar . Finally, the General Coun-
sel cites the testimony of employee Jon McCarty, to the
effect that Mine Manager Lebo stated that Bregar and
Nupp were fired in order to discourage employee inter-
est in the Union.
Counsel for the General Counsel states that he has met
the General Counsel 's burden under Wright Line (251
NLRB 1083 (1980)) by producing evidence which re-
futes the Respondent's claim that Bregar and Nupp
would have been fired for absenteeism notwithstanding
their union activities . In this regard, the General Counsel
points to Mine Manager Lebo's remark to employee
McCarty, and the fact that Respondent did not take
action against Bregar and Nupp until they were identi-
fied with union organizing.
The General Counsel argues that the restructuring of
the work force in September 1986 was merely a dis-
guised effort to permanently reduce the work force. Ac-
cording to the General Counsel the one-shift production
unit, the super section , was soon replaced by two pro-
duction shifts , the same system used before the reorgani-
zation . The second production crew, referred to as the
"Peanut Crew," composed of employees from the
second-shift dead work crew and was augmented by re-
calling laid-off employees . The Respondent, in effect, re-
turned to a two -shift coal production schedule, and, in
the process, neglected the dead work.
The fact that each of the employees (with the excep-
tion of Face Boss Thompson , who was a supervisor) laid
SUPERIOR COAL CO. 443
off on September 28, 1986, had signed an authorization
card for the Union shows unlawful discrimination, con-
tends the General Counsel. The General Counsel con-
cludes that the discharge of Bregar and Nupp , and the
layoff of nine other employees who had signed union au-
thorization cards, eliminated the first -shift dead work
crew and decimated Terry Thompson 's production
crew . t ° According to the General Counsel, union senti-
ment was strong on both of these crews.
All these factors taken together , suggests the General
Counsel, refute any argument by Respondent that it
would have laid off the nine employees notwithstanding
their union activities or the union organizing activities
among the employees. According to the General Coun-
sel, the Respondent 's announced purpose of creating a
one-shift production crew was a sham , and the Respond-
ent had failed to show any standard for selecting those to
be laid off, other than according to their union activities.
The General Counsel contends that the other allega-
tions of the complaint have been established through the
testimony of various witnesses . According to witness Jon
McCarty, on September 12, 1986 , Mine Superintendent
Lee asked him if he had attended the union meeting. On
September 11, 1986, Lee told Dennis Brear that the
union handbill did not state in it where the employees
would work next, a comment which the General Coun-
sel concludes was not intended as a joke . The General
Counsel notes that at the time Lee made the two re-
marks, he had been replaced as mine manager by Dan
Lebo, and in that context, Lee's interrogation of
McCarty and his remark to Bregar could be perceived as
an interference with the employees' Section 7 rights and
a violation of Section 8(a)(1).
According to the General Counsel, Company Presi-
dent Huyser, at a meeting of company employees on
September 15, stated that he knew of the union organiz-
ing effort , and stated that anything which drove up the
Company's costs would make it noncompetitive and
cause it to stop selling coal. The General Counsel con-
cludes that Huyser's comments were a sophisticated way
of telling his employees tha union organizing would
drive up costs and force the closure of the mine. Such a
threat, says the General Counsel , violates Section 8(a)(1).
Allied Products Corp., 220 NLRB 732, 735 (1975).
According to the General Counsel, William Adcock,
the head of the dead work crew upon which Dennis
Bregar and Norman Nupp worked , t t questioned Bregar
about whether Black (another employee) had signed a
union card, and on another occasion in response to Bre-
gar's comment "united we stand," Adcock replied,
"united we fall," indicating that the union organizing
effort was placing the employees' jobs in jeopardy.
10 According to the General Counsel Respondent had reason to be-
lieve that Terry Thompson was sympathetic to the Union because he had
been a charging party in a Board proceeding involving a coal mine in
Illinois some years before.
I I Respondent denied that Adcock was a supervisor or agent, as al-
leged in the complaint. The General Counsel asserts, however , that he
had the requisite authority to constitute him a supervisor within the
meaning of Sec 2 ( 11) of the Act, and as a supervisor his remarks violated
Sec. 8(a)(1) of the Act.
B. Respondent 's Theory of the Case
Respondent argues that it had little knowledge of
union activities involving Superior No. 2 and its employ-
ees, and did not act on what knowledge it had . Respond-
ent denies that it engaged in unlawful interrogation or
threats of discharge , or that it threatened plant closure.
Respondent argues that it discharged employees for non-
discriminatory reasons, and engaged in a work force re-
structure and layoff of legitimate business reasons in a
nondiscriminatory manner.
Respondent contends that there is no evidence that
management was aware that employees at Superior No.
2 delayed for 1 hour before going to work on September
10, 1986. Respondent agrees that its chief electrician,
Hutch Bingham, advised the employees they might be
fired it they refused to go to work, but contends there is
no evidence in the record that Bingham relayed this in-
formation to anyone in the management of Superior No.
2. Further, there is no evidence that Respondent investi-
gated what had occurred or attempted to impose any
type of disciplinary action on the employees involved.
Respondent denied that any management employees
attended the union meeting in Bussey, Iowa, on Septem-
ber 11 , 1986, or that any management employees were
present when employees signed union authorization cards
in Bussey on September 11 and 12, 1986 . According to
Respondent , only Dennis Bregar was present in the mine
when union authorization cards were signed by Jeff
Beary, Harold Bennett, Rick Fry, and Mike Bingham.
According to Respondent , Robert Black handed Dennis
Bregar an envelope containing a signed card in the pres-
ence of William Adcock, but that Bregar refused to tell
Adcock whether Black had signed a card. Bregar did
offer a card to Adcock, who refused it. Bregar did hand
a card to Jim Chenet in front of Adcock, and one to
Mark McKay in front of William Maddison (a face boss).
Neither Chenet nor McKay , nor a number of other em-
ployees agreed to sign union authorization cards.
Respondent argues that the Union did not disclose
who had signed authorization cards to James Huyser,
Dan Lebo, or John D. Lee Sr. Huyser acknowledged
that he learned of the meeting between union representa-
tives and mine employees in Bussey, but he did not know
or inquire about the identities of the employees involved.
Mark Wilson , Superior's office manager and safety di-
rector, testified that Jow Wing, an employee, told him
that 80 percent of the employees had signed union au-
thorization cards, but that he did not ask Wing who the
employees were or otherwise attempt to discover that in-
formation.
Mine Manager Dan Lebo testified that Wilson told
him that 80 percent of the employees had allegedly
signed union authorization cards, but that he did not see
any of the cards, and wondered why the company had
not been notified of the organizing effort, which he be-
lieved was a necessary part of union organizing . In a dis-
cussion with Face Bosses Terry Thompson and William
Maddison , Lebo learned that the Union was planning to
hold a rally with chicken and beer . Mine Superintendent
Lee also learned of a union meeting, but he was not told
who attended the meeting , nor did he ask.
444 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent argues that the evidence simply is inad-
equate to show that Mine Superintendent Lee, Mine
Manager Lebo, or President Huyser had any knowledge
of the nature and extent of the union organizing effort,
or who was involved in the distribution of union authori-
zation cards , or who had signed them.
Respondent does not deny that union handbills were
distributed at the mine, but it does deny that it knew
who was responsible for taping a handbill to the bath-
house door or distributing the handbills to employees.
Mine Superintendent Lee saw the handbill posted on the
door, and he knew that Mine Manager Lebo took it off
the door, but he did not know what Lebo did with it. He
denied talking to Lebo or Huyser about the handbill, and
he did not recall talking to the face bosses about it.
Office Manager/Safety Director Wilson was aware of
the Union 's organizing effort at the mine in September
and the posting of the handbill , but he did not talk to
Huyser about it. Lebo testified that after he tore down
the handbill , he told Huyser by telephone what he had
found , then drove to the main office to give the handbill
to Huyser . t 2 Lebo said he had a brief discussion about
the matter with Huyser , but that Huyser did not seem to
be overly upset . Huyser said he did not try to discover
who was involved in the union organizing at the mine,
or who had brought the handbill onto company proper-
ty.
Thus, concludes Respondent , there is no evidence that
Respondent had any knowledge regarding who was en-
gaged in handbilling or made any effort to find out. Ac-
cording to Respondent, the handbill incident does not
demonstrate a discriminatory motive for any conduct on
the part of Respondent.
Respondent argues that the small plant doctrine, Per-
manent Label Corp., 248 NLRB 118 (1980), cannot ap-
propriately be applied in this case to establish an infer-
ence of knowledge by management of union activity on
the part of the alleged discriminatees . The underground
portion of the Respondent's mining operation is not con-
ducive to contact among employees or management,
argues Respondent . An inference of knowledge or em-
ployees' union activities is inappropriate, says Respond-
ent, unless it can be shown that union activities were car-
ried out in such a manner that under normal circum-
stances the employer must have noticed them. Whale
Mfg. Corp., 108 NLRB 1641 (1954).
Respondent agrees there were four meetings of em-
ployees called by Respondent between August 14 and
September 28, 1986 . The spokesmen for the Respondent
variously included James Huyser, Randy Luwe, and Dan
Lebo. According to Respondent , the first meeting, held
on August 14, 1986, concerned the quality of coal being
produced. Huyser announced production goals and
threatened to fire anyone caught "shooting the top" or
"cutting the bottom ," practices which resulted in mixing
dirt or rock with the coal . Huyser testified that he also
said that any employee who had more than one excused
12 Lebo implicitly denied the testimony of Dennis Bregar , who said
that he told Lebo that he had taped the handbill to the shower door
Lebo testified that he did not have a meeting with the face bosses to de-
termine who was responsible, and that as far as he was concerned it did
not matter who did it.
absence during a month would not participate in the
bonus (a system for financially rewarding employees
based on production for the month), and that he would
make a success of the mine or without the employees.
Huyser said there was no way of knowing at that time
whether an employee 's absence was excused or unex-
cused , so he directed Mark Wilson to establish a system
of review.
At the second meeting, on September 5, 1986, held in
response to a request from employee Jon McCarty and
other complained about how the bonus was computed.
McCarty also asked when the employees would receive
benefits , such as retirement and dental plans, and em-
ployees Harold Bennett and Rick Fry complained about
the state of disrepair of the pinner/bolter machine and
shuttle cars.
At the third meeting, held on September 15, 1986,
Huyser introduced Mine Manager Lebo. Huyser said
anything that drove up costs would have an adverse
effect on the Company, and that if the employees chose
to be represented by a third party, that would have an
adverse impact on communications between the employ-
ees and management . Huyser acknowledged that he told
the assembled employees that he was aware of the union
organizing effort, and that it tied his hands as to what he
could say. He admitted that he went on to say that the
only thing the Union could do for the employees for cer-
tain was to charge dues, assessments , and levy fines; the
Union could not guarantee employment , only the Com-
pany could do that . Huyser said that he told the employ-
ees that if there was a union, they could not deal directly
with him anymore.
At the fourth meeting, held on September 26, 1986,
Lebo announced there would be a reorganization of the
work force at Superior No. 2, and that three individuals
had been terminated for absenteeism , and a fourth,
Eugene Fry, would have been terminated had Lebo
known he had been warned about absenteeism earlier by
his supervisor.
Respondent denies that William Adcock was a super-
visor within the meaning of the Act. Adcock lacked the
indicia of a supervisor and was not an agent of the Re-
spondent.
Relying on Rossmore House, 269 NLRB 1176 ( 1984),
and Westinghouse Electric Corp., 277 NLRB 136 ( 1985),
Respondent argues that an incidental inquiry by a super-
visor about an employee's union activity is not unlawful
interrogation , where, as here, there is but a single inci-
dent of interrogation of a well-known union supporter
which does not tend to restrain , coerce, or interfere with
rights guaranteed under the Act. Respondent contends
that the isolated incidents of alleged interrogation in this
record did not rise to the level of unlawful interrogation.
Further, argues Respondent, the isolated remarks by
John D. Lee Sr. and William Adcock were ambiguous
and subject to multiple interpretations , and given their
plain meaning , cannot be characterized as threats of dis-
charge.
Citing NLRB v. Gissel Packing Co., 395 U.S. 575
(1969), and W & F Building Maintenance Co., 268
NLRB 849 (1984), Respondent contends that an employ-
SUPERIOR COAL CO. 445
er has a right to express its opinion about a union,
"absent threats or promises ." Respondent argues that an
employer does not go too far when "it talks about union
dues, fines , assessments and the vagaries of the collective
bargaining process." "Even in the context of a union or-
ganizing effort," says the Respondent , "it is not unlawful
for an employer to make a valid assessment about busi-
ness costs and its affect on competition and the survival
of its business as long as those predictions have an objec-
tive factual basis." James Huyser, says the Respondent,
did not go beyond the bounds of the Act and threaten to
close down operations if the employees chose to become
represented by the Union.
Respondent denies that it discharged Bregar or Nupp
because of their union activities. Instead , both were ter-
minated for excessive absenteeism . The General Counsel,
says the Respondent , must first make a prima facie show-
ing that the employees were discharged because of the
employer's antiunion animus . Only then does the burden
shift to the employer to demonstrate that the employee
would have been discharged regardless of his union ac-
tivities . It is the Respondent 's position that even if there
was an illegitimate motive for the termination of Bregar
and Nupp , the evidence shows that nevertheless their ex-
cessive absenteeism would have resulted in their termina-
tion in any instance . The employer 's burden here is only
to neutralize the prima facie case by asserting legitimate
reasons for the discharge . The burden of showing that
the reasons were pretextual still remains with the Board.
NLRB v. Webb Ford, Inc., 689 F.2d 733 (7th Cir. 1982).
The General Counsel had failed to meet its burden in
this respect in this case , concludes the Respondent.
Respondent further contends that the General Counsel
has failed to establish a prima facie case of discrimination
concerning the September 28, 1986 layoff. The General
Counsel has provided no evidence that Respondent's
staffing of the mine after September 28, 1986, was for
either a discriminatory motive or carried out in a dis-
criminatory manner . Respondent asserts that it was justi-
fied in taking the action it did because of geological, pro-
duction , and economic problems. It cannot be faulted,
Respondent says, because the attempted remedy did not
work . But, argues Respondent, even assuming that the
General Counsel has established a prima facie case, the
Respondent only had the burden of going forward with
evidence of a legitimate business reason to rebut the
prima facie case . Behring International v. NLRB, 675
F.2d 83 (3d Cir . 1982). Respondent claims that in this
case it restructured the work force for legitimate business
reasons; namely, that it did not have enough employees
to properly staff two production shifts, it needed to im-
prove the financial status of the Superior No. 2 oper-
ation , it needed to create a separate maintenance crew
for machine repair when the machinery was not in oper-
ation , and, it needed to reduce its work force because of
the loss of the Iowa State University coal contract.
Finally , Respondent asserts that the selection of em-
ployees to be laid off was not discriminatory , in violation
of Section 8(a)(1) and (3) of the Act. Respondent did not
know which employees had signed union authorization
cards, and not all employees who had signed the cards
were laid off. Further, says Respondent , President James
Huyser, who approved the creation of the super shift,
did not participate in the selection of employees to staff
it. Further , asserts the Respondent , after selection of
those it considered the best employees , the remaining
employees were notified that their jobs were terminated,
as it was not the Respondent 's intention to call employ-
ees back if the super shift concept worked. But, when
Respondent found that the super shift concept did not
work , it recalled three employees and created a second
production crew called the "Peanut Crew." Gradually,
the second production shift was enlarged , and more
former employees were recalled , but not in a discrimina-
tory fashion , the Respondent insists.
Even if it is found that the discharge of Bregar or
Nupp was discriminatory, these individuals would have
been laid off on September 28, 1986, anyway, and back-
pay should be adjusted to reflect that. If it is found that
the layoff of September 28, 1986 , was in violation of Sec-
tion 8(a)(3) of the Act, backpay should be modified to
reflect the dates on which the nine employees laid off
were rehired , and that the work week has been changed
from 6 to 5 days a week.
III. FINDINGS AND CONCLUSIONS
A. Discharge of Dennis Bregar
The complaint alleges that the Respondent discharged
employee, Dennis Bregar because of engaged in union
activities and concerted protected activities for the pur-
pose of collective bargaining or other mutual aid or pro-
tection . The Respondent concedes that it discharged
Dennis Bregar on September 20, 1986 , but asserts that it
discharged him for nondiscriminatory reasons, specifical-
ly, excessive absenteeism.
To establish a violation of Section 8(a)(3) and (1), the
General Counsel has the burden of proving that the dis-
charge was illegally motivated . Hambre Hombre Enter-
prises v. NLRB, 581 F.2d 204 (9th Cir. 1978). The Gener-
al Counsel can meet its burden by either direct or cir-
cumstantial evidence . NLRB v. Fort Vancouver Plywood
Co., 604 F.2d 596 (9th Cir. 1979); American Mfg. Assn. v.
NLRB, 594 F.2d 30 (4th Cir. 1979). In 8(a)(3) cases in
which the employer's motive is an issue, the Board has
adopted a two-part test under which the employer will
prevail if the discharge would have occurred even in the
absence of protected conduct. Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982); NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983). Under Wright
Line, supra, first, the General Counsel must make a
prima facie showing sufficient to support the inference
that protected conduct was a "motivating factor" in the
employer's decision. If the General Counsel meets this
burden, Respondent can avoid a finding it violated the
Act by demonstrating as an affirmative defense by a pre-
ponderance of the evidence that its decision would have
been the same in the absence of the protected conduct.
I find that the General Counsel has made a prima facie
showing that Bregar 's protected conduct was a motivat-
ing factor in Respondent 's decision to discharge him.
446 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The evidence clearly establishes that Dennis Bregar
was one of the leaders, if not the leader, of a union orga-
nizing campaign among Respondent 's employees at its
Superior No. 2 coal mine in September 1986. On Sep-
tember 10, 1986, Bregar placed a telephone call to Eldon
Prettyman, an International representative of the Interna-
tional Union of United Mine Workers of America, whose
office is in Pittsburg, Kansas, and informed Prettyman
that there were safety problems at the Superior No. 2
coal mine, near Lovilia, Iowa, and the men were consid-
ering a wildcat strike . Prettyman arranged to meet
Bregar in Bussey, Iowa, the next morning. At an early
morning meeting with Bregar and several other Superior
employees on September 11, 1986, Prettyman gave
Bregar campaign material , leaflets, and authorization
cards to pass out to Superior No. 2 employees. t 3 Bregar
solicited fellow-employees to attend a meeting that
evening with Prettyman at a bar in Bussey, known as the
Long Branch . At the meeting, a number of miners em-
ployed by Superior Coal Company signed union authori-
zation cards. Bregar and other Superior employees met
with Prettyman, and a union organizer named Junior
Bishop, early in the morning of September 14, 1986, on
Main Street, in Bussey, Iowa. Prettyman returned to
Bussey on September 17 and 23, 1986, to pick up signed
authorization cards from Bregar.
On the morning of September 11, 1986, Bregar passed
out union handbills at the mine to the first shift, and
taped a union handbill to the showerhouse door at Supe-
rior No. 2 mine. At various times, he handed out cam-
paign materials, such as union stickers for the miners'
hats and bumper stickers for their cars, to miners em-
ployed at Superior No. 2 mine. Both on the premises of
Superior No. 2 mine, and elsewhere, he handed out
union authorization cards to Superior No. 2 employees,
and collected signed cards from miners who were will-
ing to sign the cards.
According to Bregar's testimony, his union organizing
activities did not go unnoticed by the management of Su-
perior Coal Company. On September 11, 1986, while
working underground in Superior No. 2 mine, Bregar
heard Mine Manager Dan Lebo ask Jack Adcock, the su-
pervisor of the dead work crew upon which Bregar
worked,14 who had taped the union handbill to the
showerhouse door. Bregar testified that he told Lebo
that he had taped the handbill to the door and had
handed out handbills to the miners. t s
's Prettyman advised against a wildcat strike and, in fact , no wildcat
strike occurred.
14 Respondent contends that Jack Adcock was not a supervisor within
the meaning of the Act. Adcock was in charge of the first-shift dead
work crew There is no evidence that he had the authority to hire or fire,
however, there is evidence that on two occasions he sent miners home
for sleeping on the job or arriving at work in an intoxicated condition. I
find that Adcock did not have the authority to use significant independ-
ent judgment in the interest of management in performing any of the su-
pervisory functions listed in Sec 2(11) of Act Therefore, he cannot be
considered a supervisor within the meaning of the Act Hydro Conduit
Corp., 254 NLRB 433 (1981), NLRB Y. Security Guard Service, 384 F.2d
143, 147-148 (5th Cir. 1967).
is Bregar also testified that he passed out union campaign materials
and authorization cards to miners in the presence of Jack Adcock, and
received a signed authorization card in an envelope from Robert Black, a
Four days later, according to Bregar, mine owner
James Huyser addressed a meeting he had called at the
mine with the first -and second -shift employees , and told
the assembled miners they had let him down by calling
in outside people . Bregar said he told Huyser that the
miners had tried to talk to him (Huyser). Huyser replied
that his hands were tied , and he would do nothing.
Huyser also said that he was not going to talk to Bregar
anymore, because Bregar had called in the outsiders.
Bregar stated that during the morning of September
20, 1986, he was summoned from the mine , where he
was working, to Mine Manager Dan Lebo's office.
There, Lebo informed him that he was being terminated,
and handed him a letter and check in an envelope. The
undated letter, bearing the signature of James E . Huyser,
stated that Bregar was dismissed "[d]ue to reported ab-
senteeism prior to and after warnings by your supervi-
sor." Bregar testified that he had not received any writ-
ten or verbal warnings about excessive or missing too
much work , and, although he had missed work in the
past, he had not been questioned by supervisors about it.
According to Bregar , he had missed work on September
19, 1986 , because he had driven his truck into a ditch on
the way work , and it took him until 4 p.m. that day to
get the truck out of the ditch and repair it.
It is undisputed that Bregar placed a telephone call
that morning to Mark Wilson , the safety director and
purchasing agent at the mine, and reported that his truck
had gone into a ditch because of a malfunction. Other
testimony establishes that Mark Wilson frequently re-
ceived telephone calls from miners who were reporting
that they would be absent from work for the day.
Jon McCarty, a shuttle car driver on the first produc-
tion shift, supervised by Face Boss Terry Thompson, tes-
tified that the day after Bregar was fired (Bregar was
discharged on Saturday , September 20, 1986), he spoke
to Mine Manager Dan Lebo about his own situation.
Lebo told McCarty that he was not going to be termi-
nated . In the course of the conversation , Lebo said it
was his understanding with Jim (Huyser), that they felt
that by getting rid of Bregar that would calm the prob-
lems with the Union around the coal company. t a
According to Bregar 's testimony , on September 9,
1986, he was in attendance when the first and second
shifts met with James Huyser, the mine owner , outside
the showerhouse at Superior No. 2 mine. Bregar testified
that he complained to Huyser that the roof bolter ma-
chine was not working properly, and in response Huyser
said he would look into it . Bregar also asked about a
promised pay raise to $11 per hour, to which Huyser re-
sponded there would be no raises.
Bregar stated that on the morning of September 10,
1986, the first shift delayed going underground for about
an hour the start of their shift , while they discussed the
miner also in Adcock's presence , although, according to Bregar, he re-
fused to confirm to Adcock what the envelope contained.
16 Nevertheless , despite Lebo 's assurances , Jon McCarty was one of
the employees discharged or laid off on September 28, 1986. He returned
to work at Superior No . 2 mine on January 7, 1987.
SUPERIOR COAL CO. 447
possibility of a wildcat strike. 17 McCarty tried to get
Mark Wilson to call Huyser to arrange a meeting, but
Wilson refused . Bregar testified that he said that maybe
the only way they could get satisfication was through
the Union , and he said he would call Eldon Prettyman
that night . He stated that the men went below at 8 a.m.
(an hour late). The only supervisor present was Harrison
Bingham, the chief electrician.18
The evidence presented by counsel for the General
Counsel in his case in chief is sufficient to meet his
burden under Wright Line or establishing a prima facie
case that Dennis Bregar's protected conduct was a moti-
vating factor in the Respondent's decision to terminate
his employment.
It is clear from the testimony offered by counsel for
the General Counsel, that James Huyser, the owner of
Superior Coal Company , was opposed to unionization of
the miners employed at the Superior No. 2 mine. It is
also clear that Dennis Bregar was a leader, if not the
leader, of the union organizing effort underway at the
Superior No. 2 mine, a fact which both James Huyser
and Dan Lebo , the mine manager, knew. Although
James Huyser gave absenteeism as his reason for termi-
nating Bregar, the circumstances of the termination
strongly indicate that absenteeism was only a pretext, in-
tended to hide a real reason, which was to break the
union organizing effort by intimidating the employees.
Supporting this conclusion , Huyser acted rapidly and
personally, terminating Bregar the day after an absence
from work, without affording to Bregar any opportunity
to explain why he was absent. The inference to be drawn
here is that Huyser did not care why Bregar was absent,
only that he was absent, and that could be used as an
excuse to terminate him. At least in so far as the case in
chief presented by the counsel for the General Counsel is
concerned , the remark by Mine Manager Dan Lebo that
he and Huyser felt that getting rid of Bregar would calm
the problem with the Union around the mine is strong
evidence of Respondent's illegal motive in discharging
Dennis Bregar.
The Respondent offered considerable testimony in an
effort to demonstrate that its decision to terminate
Bregar would have been the same in the absence of Bre-
gar's protected conduct . I find that the Respondent has
failed to meet that burden by a preponderance of the evi-
dence, as required under Wright Line.
James Huyser testified that he was concerned about
low production at the Superior No. 2 mine in August
1986, and that he called a meeting of the employees on
the first and second shifts to discuss with them the poor
quality of coal coming from Superior No. 2 and absen-
teeism . Huyser testified (with corroboration by numerous
witnesses) that he told the assembled miners that miners
17 There is no evidence that the management of Superior Coal Compa-
ny was aware of the 1 -hour delay by the first shift in going underground
on September 10, 1986 , or, even assuming that they were aware of it,
there is no evidence that management took any action against any of the
miners involved.
18 Ronald Bregar , Dennis Bregar's brother, testified that Harrison
Bingham was at the Long Branch Bar during the union meeting on Sep-
tember 11 , 1986 There is no evidence in the record that Bingham report-
ed either incident to any other management official of Superior Coal
Company.
who had more than one unexcused absence during a
month would be ineligible to participate in the monthly
production bonus (elsewhere stated to amount to as
much as $300 per miner per month ). Huyser admitted
that at that time there was no way to tell from company
records whether a miner's absence was excused or unex-
cused . To cure that, Huyser testified , he directed Mark
Wilson, the safety director and purchasing agent, to do a
review whenever miners called in an absence.
According to Huyser, Mine Superintendent John Lee
Sr. told him in August that he (Lee) had warned Bregar
about his attendance . Huyser characterized Bregar's at-
tendance as "very, very , very bad."
Huyser testified that he met again with his employees
on September 5, 1986, at the request of employee Jon
McCarty, at which time there was a discussion concern-
ing how the bonus was computed, and the state of main-
tenance of some of the mine machinery.
According to Huyser, he first had an indication that
the employees at the Superior No. 2 mine were seeking
representation by the United Mine Workers of America
when Mine Manager Lebo came to his office at Iowa
Coal Mining Company and delivered a crumpled UMW
flyer which Lebo said he had found taped to the shower-
house door at the mine . Huyser testified that Lebo did
not identify the employees involved.
According to Huyser, after first contacting someone to
find out what he could legally do to protect the compa-
ny, he met with the employees of Superior No. 2 on Sep-
tember 15, 1986 (possibly September 16), at the mine.
Huyser stated that he told the assembled miners that he
was aware of the union organizing effort, and that it tied
his hands somewhat as to what he could say to them.
But, he testified , he told them he could explain some
things that unions could or could not do for them. He
statd that unions could charge dues and assessments, but
they could not guarantee a paycheck or employment. He
testified that he told the miners that Superior Coal could
write their paychecks and guarantee some security in
employment. He added that he could not deal directly
with the employees anymore . Huyser also told the
miners that the coal business was competitive , and any-
thing which drove costs up would put the mine in a non-
competitive position , and if he could not sell coal at a
profit, he would not sell coal.
Huyser admitted that prior to discharging Dennis
Bregar, he had not personally discharged any employee
of Superior Coal. According to Huyser, that was John
Lee Sr.'s responsibility. Huyser acknowledged that he
made the decision to discharge Dennis Bregar on Sep-
tember 20, 1986. He said Lee was working nights and
was not around; however, he stated that Lebo could
have terminated Bregar . Huyser said he did not know
why he did it himself.
According to Huyser, he terminated Dennis Bregar
because he had a bad attendance record , an on the previ-
ous Friday , instead of coming to work , he had been run-
ning around the town of Bussey. He learned of this, he
said, through a telephone call from Mary Joann
Bingham, the wife of one of Superior Coal Company's
employees (Chief Electrician Harrison Bingham), who
448 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
had called him around noon and reported that she had
seen Bregar coming from the Long Branch Saloon with
"a bunch of guys."
Huyser testified that he called Mark Wilson at the
mine, and Wilson reported that Bregar had called in and
stated that his truck was in the ditch and he could not
come to work . Huyser stated he called M . J. Bingham,
and asked her to come to his office , which she did that
afternoon . She told the same story as before,19 and after
that, Huyser made out a termination notice for Berger.
Huyser stated that he contacted Dan Lebo, and instruct-
ed him to come to Huyser's office to pick up Bregar's
termination notice and final check . According to Huyser,
John Lee Sr. had told him in August that he had warned
Dennis Bregar about his attendance.
In his testimony , Huyser said there were no written
rules concerning attendance in existence in August, and
he did not know if there were any in September. He ac-
knowledged that he did not personally ask Bregar for an
explanation for his absence that day. He stated he had
never discussed Bregar's attendance with Jack Adcock
(supervisor of the day-shift dead work crew of which
Bregar was a member ). Huyser denied that he had made
any effort to find out who had brought the yellow union
handbills on the mine property . He stated that he did not
instruct Lebo to find out anything more about Bregar's
absence on September 19, 1986.20
Huyser testified that at the time he fired Dennis
Bregar, he did not know that Bregar had been involved
in the union organizing effort at Superior No. 2 mine,
and he did not know if Bregar was sympathetic to the
Union . Huyser stated that he learned of the meeting be-
tween Superior No. 2 employees and the Union about
the time it happened ; however, he did not know the
names of the employees who had attended , and he did
not interrogate anyone to find out how far the union or-
ganizing campaign had gone, or how many employees
had signed cards or were sympathetic to the Union.
Mark Wilson , the safety director and purchasing agent
for Superior Coal Company (whose office was at the Su-
perior No . 2 mine), testified that daily attendance records
were filled out by the face bosses and then turned over
to him. He said that James Huyser had reviewed compa-
ny attendance records, which he kept, on occasion, most
recently in August 1986. According to Wilson, Huyser
commended on that occasion on the attendance of
Dennis Bregar, Jim Deeringer, and Philip Maddison. Ac-
cording to Wilson , Mine Manager Dan Lebo looked at
the attendance records after his arrival on September 9,
1986 . Wilson acknowledged that the attendance records
did not reflect whether an absence was excused or unex-
cused , but, Wilson said , after one of Huyser 's meetings
with the miners (in August or September), he tried to
keep a note of when miners called in. Wilson admitted
that the company did not have a formal attendance
policy until November of December 1986. Wilson denied
that he had participated in the decision to terminate
Dennis Bregar . Wilson testified he did not see who put
up the union handbill on the showerhouse door, and
made no effort to find out, although he admitted being
curious to a degree (Wilson stated he did not learn who
put up the handbill until several days before the trial of
this case). Wilson stated that an employee named Joe
Wing told him that 80 percent of the miners had signed
union authorization cards . The conversation took place
either a few days before or after September 28, 1986, in
the showerhouse at Superior No. 2 mine . Wilson testified
that he did not ask Wing who the miners were, and he
did not tell anyone else what Wing had said.21
Dan Lebo testified that he is a graduate engineer, and
that he operated his own coal mine consulting business
for over 4 years prior to September 1986, during which
time he had performed work for Superior Coal Company
in connection with the design and layout of Superior No.
1 and Superior No. 2 mines . On September 4 and 5,
1986, he was contacted by James Huyser and Randy
Luwe, vice president and chief geologist of Iowa Coal
Mining Company (of which Superior Coal Company was
a wholly owned subsidiary), about a position at Superior
No. 2. He accepted the position of mine manager, and
started work on September 9, 1986. His responsibilities
were to increase production , reduce costs, and increase
profitability. He replaced John Lee Sr. as the person in
charge of day-to-day operation of the Superior No. 2
mine.
According to Lebo, between 8 and 9 a.m., on Septem-
ber 11 or 12, 1986, he saw a union handbill taped to the
showerhouse door at Superior No . 2 mine . He stated that
his reaction was "here we go again ," referring to another
company at which he had worked, where the same thing
happened . He stated he was concerned because he
thought the union organizing campaign there had diluted
a lot of management effort and time, and at Superior No.
2 management had enough to worry about as it was. Al-
though he was concerned about the situation , Lebo testi-
fied, he made no effort to find out who had distributed
the flyer. As for the flyer, he tore it down, stuck it in his
pocket, and went to his office, where he called James
Huyser and reported what he had found. Subsequently,
he drove to Huyser's office at the Iowa Coal Mining
Company, and turned over the handbill to Huyser. Lebo
stated that Huyser did not seem upset.
Lebo acknowledged that he had discussed the union-
ization campaign with Face Bosses Terry Thompson and
Billy Joe Maddison , and that from Thompson , he learned
there was going to be a UMWA rally in the near future.
He denied that he tried to find out through the face
19 Huyser said he asked M. J Bingham to come to his office because
he wanted to be sure of the circumstances under which she saw Bregar
She said she saw Bregar coming out from behind the Long Branch
Saloon with several guys . Huyser said he told M. J. Bingham it occurred
to him that Bregar should have been at work . Huyser said he asked M. J.
Bingham if she had seen Bregar 's car in the ditch
20 Huyser stated that he thought that if Bregar could ride around with
his buddies in a vehicle, he certainly could come to work.
21 Wilson's professed lack of knowledge concerning the union organiz-
ing campaign contrasts sharply with testimony by Carlton Vinsick. Vin-
sick stated that in a conversation with Wilson which took place about a
week after the September 28, 1986 reorganization (Vinsick was released
as an employee of Superior Coal Company), Vinsick disclosed to Wilson
that he had signed a union authorization card. Wilson replied that "he
knew just about everybody who did sign a card "
SUPERIOR COAL CO. 449
bosses who had distributed the handbill , or who was in-
volved in the union organizing campaign.
Lebo stated he heard from Mark Wilson that 80 per-
cent of the employees had signed union authorization
cards . He stated that he wondered if that was so, why
the Union had not notified the Company.
Lebo stated that he did not participate in the decision
to fire Dennis Bregar . He stated that Huyser had told
him that Bregar and Ronald Nupp had been warned
about their attendance records, and the next absence
would be cause for their termination . 22 Lebo stated that
Huyser told him in person that Bregar was going to be
fired after Bregar missed work on September 19, 1986.
Lebo stated that he did not ask Bregar why he had been
absent, because the reason was unimportant ; Bregar's
work record was spotty, and the president of the compa-
ny had said that he would be fired if he had one more
absence.
John Lee Sr. testified that he was the superintendent
of Superior No. 2 until September 28, 1986 , when the
work force was reorganized . After that he was a face
boss, until he resumed his position as mine superintend-
ent in early 1987 . Lee stated that he saw the union hand-
bill attached to the showerhouse door, as did Dan Lebo.
He stated that he did not know what Lebo did with the
handbill.23 Lee stated that he did not know who was
distributing the handbills, or who put the handbill on the
showerhouse door . He acknowledged that he saw an-
other handbill of the same kind on the floor inside the
showerhouse , and that he said to Joe Bregar (the brother
of Dennis Bregar), "well, babe, they didn't say nothing
about where we're going to work next."
Lee stated that during that time (September 1986) he
saw no other evidence at the mine of union organizing,
such as stickers on employees' hats, or bumper stickers.
He said Jon McCarty told him there was going to be a
union meeting in Bussey , but he told McCarty that he
was not going to attend.
According to Lee, he had terminated four miners for
absenteeism while Superior No. 1 was in operation. They
were Norman Nupp (subsequently rehired), Jim Ricka-
baugh Jr., Billy DeRaad, and John Gall.
Lee stated that sometime in August , James Huyser
asked him about Dennis Bregar, Norman Nupp , and Jim
Deeringer missing work . Lee testified that he told
Huyser that he had talked to the employees about it, and
thought they were doing better.24 Lee denied that he
22 Lebo stated that Huyser had told him that John Lee Sr . had warned
Bregar and Nupp that their next absence would be cause for termination
According to Lebo that conversation with Huyser had taken place earlier
in the week that Bregar was fired, or late in the week before . Lebo said
that the name of John Lee Jr. and Eugene Fry came up in the conversa-
tion, and Lee was to be terminated when Lebo saw him. (Company at-
tendance records show that John Lee Jr . worked last on September 4,
1986.) Lebo stated that he deferred terminating John Lee Jr . until Sep-
tember 23 , 1986, because he was the son of John Lee Sr . and in deference
to the father , Lebo "wanted to do it like a gentleman ." Lebo made the
termination of John Lee Jr. effective September 13, 1986.
23 Lee denied talking to Lebo or Huyser about the union handbill.
24 According to Lee , in the summer of 1986, there were a few men
taking days off, including Mike Bingham, Dennis Bregar , Norman Nupp,
James Deennger, Mike Carter, and Philip W. Maddison. Lee said others
of these employees were warned , in addition to Bregar , Nupp, and Deer-
inger.
had recommended the termination of Bregar or Nupp, or
had participated in the decision to terminate them, or
even knew about their terminations until after the fact.
Mary Joann Bingham , the wife of Harrison Bingham,
chief electrician of Superior Coal Company , testified that
around 11:15 or 11 : 30 a.m ., September 19, 1986 , she saw
Dennis Bregar driving a pickup truck (matching the de-
scription of Bregar 's pickup truck) in an alley behind the
Long Branch Bar in Bussey . 25 She stated that she called
for Bregar to stop, and that when he did, she asked him
for some UMWA stickers, which he gave her.26 Mrs.
Bingham stated that she knew Bregar had UMWA stick-
ers and caps , because other people had gotten them from
him.
According to M. J . Bingham , earlier that day she had
made an appointment to see James Huyser that afternoon
at his office at Iowa Coal Mining Company . 27 She said
that her purpose was to obtain permission for her son to
take pictures of the mine and "to visit." She said she had
some ideas concerning absenteeism at the mine which
she wanted to tell Huyser.
M. J. Bingham stated that she brought up the subject
of Dennis Bregar while meeting with Huyser during the
afternoon of September 19, 1986 . Also present , in addi-
tion to Huyser , was Dan Lebo. She said that she told
Huyser that she had seen Dennis Bregar and talked to
him (that day), and asked if he was not supposed to be
working. She also told Huyser she had received UMWA
stickers from Bregar . M. J. Bingham stated that she did
not think that Huyser said anything about the union
stickers , and neither Huyser nor Lebo said anything
about the Union while she was an Huyser's office.
M. J. Bingham stated that she had a longstanding ar-
gument with Dennis Bregar concerning the Union. She
stated that Bregar was very prounion , but she did not
want to see the workers at Superior No. 2 organized.
She stated that she did not believe the Union could orga-
nize enough people to succeed in Iowa . According to
M. J. Bingham , her hobby was doing research on coal
mining in Iowa, and she expected to make a presentation
at a local college on May 1, 1987.
Counsel for the General Counsel called Dennis Bregar
as a rebuttal witness . Bregar denied that his truck was in
downtown Bussey before noon on September 19, 1986.
He acknowledged that he had given bumper stickers to
M. J. Bingham , at her request , but said that the incident
had taken place 2 or 3 days earlier.
The issue here is not whether Dennis Bregar's absence
from work was excused or unexcused. Nor is the issue
whether or not Dennis Bergar actually drove his truck
25 M. J . Bingham testified that she was the former owner of the Long
Branch Bar, and that she had employed Dennis Bregar as a bartender for
about 10 months . She stated that she had known Bregar for 25 to 30
years
26 M J Bingham said that she did not tell Bregar why she wanted the
stickers, but, in fact , she wanted them to use in playing a joke on another
person.
27 M. J . Bingham stated she had known Huyser to 5 or 6 years, and
that she had met him while working for McConville Coal Company. She
stated that she had never been employed by Huyser , but, on occasion,
had used her truck to pick up parts from out-of-town for the Huyser's
mining operations On those occasions , Huyser paid her travel expenses.
450 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
into ditch on September 19, 1986, as he claimed . Rather,
the issue is whether or not James Huyser used Bregar's
absence from work on September 19, 1986, as a pretext
to cover up his real motive in terminating Bregar, which
was to get rid of Bregar because of his union organizing
activities.
It is clear from the record that there were three people
who played pivotal roles in the dismissal of Dennis
Bregar . Two of these individuals were James Huyser, the
owner of Superior Coal Company , and Dan Lebo, the
manager of Superior No. 2 coal mine . The third individ-
ual was Mary Joann Bingham , who was not an employee
of Superior Coal Company , although she was personally
acquainted with James Huyser, and is the wife of Harri-
son Bingham , the chief electrician at Superior No. 2
mine . M. J. Bingham , it appears, made it a point to bring
to James Huyser's attention Dennis Bregar's absence
from work on September 19, 1986 , and his involvement
in the union organizing campaign at the Superior No. 2
mine.
Two things are apparent from the testimony of these
three individuals . First, each of them was personally op-
posed to the United Mine Workers organizing the work-
ers at the Superior No. 2 mine and, second , their testimo-
ny concerning the events leading to the termination of
Dennis Bregar is inconsistent and contradictory.
I find from the record as a whole, and his demeanor as
a witness , that James Huyser's testimony concerning his
motive for terminating the employment of Dennis Bregar
is disingenuous . Huyser's claim that he terminated Bre-
gar's employment for excessive absenteeism , after the
latter had been warned , and without any knowledge that
Bregar was involved in union organizing activities at Su-
perior No. 2 mine, is contrary to the weight of the evi-
dence, and is unbelievable.
The timing of the termination , alone, suggests that
Bregar's protected activities and his termination were
connected . Huyser personally terminated the employ-
ment of Dennis Bregar, whose union organizing activities
were openly conducted and well known among the
miners and in the community , approximately 5 days after
a meeting which he called with his employees, during
which he made clear that he opposed unionization of the
work force at the Superior No. 2 mine.
Other persuasive evidence further establishes that
Huyser's termination of Bregar for excessive absenteeism
was a pretext which Huyser seized upon to get rid of
one of the leaders, if not the principal leader, of the
union organizing effort at the Superior No. 2 mine.
First , Huyser had never in the past personally termi-
nated any employee at either of the Superior mines.
Huyser stated that function was a responsibility of John
Lee, the mine superintendent. Huyser could offer no
good reason why he acted personally in Bregar 's case.
At one point he stated that he acted because Lee was
working nights , then he stated that Dan Lebo could have
done it. Finally , Huyser said he did not know why he
did it.
Second , Huyser acted precipitously, without giving
Bregar any opportunity to submit his explanation for his
absence from work on September 19, 1986 . Huyser ad-
mitted that he first learned of Bregar 's absence from
Mary Joann Bingham , who, according to Huyser , placed
a telephone call to him on that date to report that she
had seen Bregar in downtown Bussey . Huyser called
Mark Wilson at the mine, and learned that Bregar had
reported that he could not get to work because he had
driven his vehicle into a ditch . Huyser then had M. J.
Bingham come to his office to verify that she had seen
Bregar in Bussey , and proceeded to prepare Bregar's ter-
mination papers . The clear inference to be gained from
the manner in which Huyser handled Bregar's termina-
tion is that Huyser was simply looking for an excuse to
fire Bregar, and seized on the latter 's absence from work
on September 19, 1986, as the excuse for which he had
been looking . Clearly, Huyser did not care why Brager
was absent from work . The fact that he was absent was
all that mattered.
Third , contrary to James Huyser's testimony that at
the time he terminated Bregar, he did not know that the
latter was involved in the union organizing campaign,
the evidence overwhelmingly shows that he did know.
Huyser acknowledged that he first learned of the union
organizing campagign on the day it started, September
11, 1986, from Dan Lebo, who brought Huyser a copy
of a union handbill which Lebo found attached to the
showerhouse door at the mine . Regardless of whether he
found out that Dennis Bregar was involved in the union
organizing campaign before September 19, 1986, Re-
spondent 's own witness , Mary Joann Bingham testified
that she told Huyser on September 19, 1986, that she had
obtained a union bumper sticker from Bregar.
Also tending to show knowledge by Huyser of Bre-
gar's union activities is Bregar 's testimony that he told
Dan Lebo on September 11, 1986, that he had posted the
union handbill on the showerhouse door, and Jon
McCarty's testimony that Lebo told him after Bregar's
termination that it was Lebo's understanding with Jim
Huyser that if they got rid of Dennis Bregar, that would
calm the problems with the Union around the mine. I
find the testimony of Dennis Bregar and Jon McCarty to
be credible . Conversely, I find Dan Lebo's testimony
that he did not attempt to find out which employees
were involved in the union organizing campaign to be
incredible, especially in view of his negative view of the
effect unionization of miners has on the operation of coal
mines.
Further, I find it incredible that if Lebo knew which
employees were involved in the union organizing cam-
paign , he would withhold that information from his em-
ployer, James Huyser . Indicative of Lebo's lack of
candor in his testimony concerning his knowledge of
which mine employees were involved in the union orga-
nizing campaign , Lebo gave the impression in his testi-
mony that he had nothing to do with the decision to ter-
minate Bregar, other than to carry out the orders of
James Huyser . In fact, Lebo was involved in the termi-
nation of Bregar at a much earlier stage than he admit-
ted. Respondent 's witness , Mary Joann Bingham , testi-
fied that Lebo was present in Huyser 's office when she
met with Huyser during the afternoon of September 19,
1986, and reported his absence from work and the fact
that she had obtained union bumper stickers from him.
SUPERIOR COAL CO. 451
M. J. Bingham had no evident motive to falsely testify
that Lebo was present ; accordingly I credit her testimo-
ny on this point . I find that Lebo's lack of candor on this
point in this testimony reflects adversely on his overall
credibility as a witness in this case.
Fourth , Respondent 's claim that Dennis Bregar was
warned that he would be fired if he had another unex-
cused absence from work in not supported by the record.
To begin with, Respondent had no work rule prior to
September 19, 1986, which , as part of a disciplinary
scheme, defined what constituted an excused or unex-
cused absence . Further, even if such a rule did exist, it is
not possible to tell from Respondent 's attendance records
whether a particular employee's absence on a particular
date was excused or unexcused , or for that matter, what
the reason for the absence was. Finally , in August 1986,
John Lee told James Huyser that he had talked to
Dennis Bregar and several other employees who had
missed more days of work most of the other employees,
and he thought they were doing better.
Nothing in Lee's testimony , however, indicates that
anything was said to Bregar and the other employees to
the effect that they would be fired if they had another
unexcused absence . In fact, Respondent 's records indi-
cate that Dennis Bregar missed work during the weeks
ending August 23, 1986 ; August 30 1986 ; and September
6, 1986 ; yet no action was taken by Respondent to termi-
nate his employment because of any of these absences.
The only thing that had changed when Bregar missed a
day or work on September 19, 1986, was that he had
become involved in a union organizing campaign. Then,
belatedly, he was terminated for excessive absenteeism.
The connection between his termination and his protect-
ed activities is evident.
Fifth, the termination of Dennis Bregar for excessive
absenteeism constituted disparate treatment . Although
John Lee Sr. had terminated the employment of several
miners working at the Superior No. 1 mine in 1985, be-
cause of absenteeism , no one working at the Superior
No. 2 mine between January 1986 and September 19,
1986, had been terminated for that reason , although there
were a number of miners , in addition to Dennis Bregar,
who accumulated a substantial number of days absent
from work . Among those was John Lee Jr., who was
absent from about September 5, 1986, until he was termi-
nated on September 23, 1986, after Dennis Bregar's ter-
mination on September 20, 1986 . The Respondent clearly
condoned the repeated absence of some of its employees,
even after absenteeism was identified as a problem inhib-
iting the achievement of desired production goals. The
sudden reversal of the policy of condoning absence start-
ed with the peremptory dismissal of Dennis Bregar, no
doubt because he had become a problem for Respondent
by his union organizing activities . The comparison of the
termination of Dennis Bregar, initiated on the day of his
absence, with the termination of John Lee Jr., on Sep-
tember 23, 1986, after an absence of approximately 18
days, convincingly illustrates the disparity in the treat-
ment of Dennis Bregar.
Two of Respondent 's key witnesses were James
Huyser and Mary Joann Bingham. There are substantial
inconsistencies and contradictions in the testimony of
these two individuals . And, to complicate matters fur-
ther, Dennis Bregar's rebuttal testimony substantially
conflicts with the testimony of M. J . Bingham . For ex-
ample, Huyser testified that he received a telephone call
from Mrs . Bingham at about noon on September 19,
1986 , during which she reported seeing Dennis Bregar in
Bussey . Later that afternoon according to Huyser, he
asked M. J. Bingham to come to his office at Iowa Coal
Mining Company to. confirm her story, which she did.
Huyser made no mention of any discussion with Mrs.
Bingham concerning permission for her son to take pho-
tographs of the Superior No. 2 mine, or of any discus-
sion concerning Bregar's union activities . Neither, for
that matter, did he mention that Dan Lebo was present.
M. J. Bingham , on the other hand , testified that she tele-
phoned Huyser during the morning of September 19,
1986, before she saw Bregar in Bussey , and made an ap-
pointment to see Huyser at his office that afternoon in
order to obtain approval for her son to take photographs
of the mine . It was during the afternoon meeting, she
said , that she brought up seeing Dennis Bregar in down-
town Bussey that morning , and mentioned she had ob-
tained union bumper stickers from him. She also testified
that Dan Lebo was present during the conversation.
Bregar, for his part, stated he did not have his truck in
Bussey between 11 a .m. and noon , because it was still
stuck in a ditch , and he gave Mrs. Bingham the bumper
stickers 2 or 3 days before September 19, 1986.
There is no way to reconcile the testimony of these
three witnesses , or to ascertain , with any degree of cer-
tainty, which , if any of them , was wholly truthful in his
or her testimony . However, I find it unnecessary to the
disposition of this case fo fully resolve the conflicts in
the testimony of the three witnesses. There is no dispute
that Huyser first learned of Dennis Bregar's absence
from work on September 19, 1986, from M . J. Bingham,
and that she visited his office during the afternoon of
that day. There is no dispute that M. J. Bingham ob-
tained union bumper stickers from Dennis Bregar,
whether on September 19, 1986 , or earlier . I credit M. J.
Bingham's testimony that she told Huyser both that
Bregar was not at work and that she had obtained the
union material from him . I also credit her testimony that
Dan Lebo was present during her conversation with
Huyser that day. I can discern no reason for M. J.
Bingham to lie in this regard about what she told
Huyser. The question of when she obtained the union
material from Bregar and whether or not he was driving
his truck between 11 a.m. and noon in downtown Bussey
is immaterial . There is no dispute that he was in Bussey
at that time, and not at work at Superior No. 2 mine, as
he was supposed to be . His reason for missing work on
September 19, 1986, is not an issue in this case, and had
no bearing on whether his rights under Section 7 of the
Act were violated. The relevant issue are why Respond-
ent terminated Bregar, and whether or not Respondent's
motive violated Bregar's Section 7 rights.
Accordingly, based on the record and the demeanor of
the witnesses, I find that Respondent violated Section
8(a)(3) and (1) of the Act by discharging Dennis Bregar
on September 20, 1986 . The Respondent has failed to
452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
demonstrate that it would have taken the same action
against Bregar in the absence of his engaging in union
activities . The General Counsel has proven by a prepon-
derance of the evidence that the Respondent was moti-
vated by antiunion animus and discharged Dennis Bregar
because he had engaged in protected concerted activities,
specifically , because he was involved in union organizing
at Respondent 's coal mine known as a Superior No. 2.
The discharge of Dennis Bregar on September 20, 1986,
interfered with, restrained , and coerced him in the exer-
cise of rights guaranteed by Section 7 of the Act.
B. Discharge of Norman Nupp
The complaint alleged that the Respondent discharged
its employee, Norman Nupp , on September 22, 1986, be-
cause he had engaged in union activities and concerted
protected activities for the purpose of collective bargain-
ing or other mutual aid or protection . The Respondent
concedes that that it discharged Nupp on September 22,
1986, but asserts that it discharged him for nondiscrim-
inatory reasons , specifically , excessive absenteeism.
The law applicable to resolving the allegation involv-
ing Norman Nupp's discharge is the same as a law set
out above in connection with the allegation involving the
discharge of Dennis Bregar.
I find that counsel for the General Counsel has made
the requisite prima facie showing that Norman Nupp's
protected conduct was a motivating factor in Respond-
ent's decision to terminate his employment on September
22, 1986.
Although Nupp was not a leader in the union organiz-
ing campaign at Superior No. 2 in September 1986, he
was the only miner employed by Superior No. 2 who ad-
vertised his prounion sympathies by displaying a UMWA
bumper sticker on the vehicle he drove to and from the
mine, and parked in the mine parking lot. According to
Nupp, he signed a union authorization card at the Long
Branch on September 11, 1986, and on September 17,
1986, he attached a UMWA bumper sticker, which
Dennis Bregar had given to him , to the back bumper of
his vehicle . Nupp stated that he put the bumper sticker
on his car while it was parked beside the showerhouse in
the Superior No. 2 parking lot. According to Nupp, after
he had finished putting the UMWA bumper sticker on
his car, Dan Lebo walked by, and , in Nupp 's opinion,
"looked funny" at him "with his eyes."
Nupp testified that he had car trouble on September
20, 1986 , and made no effort to get to work.28 He was
not scheduled to work on September 21, 1986 on Sep-
tember 22, 1986, his next schedule workday, after work-
ing in the mine for about an hour, he was summoned to
Dan Lebo's office . 29 Nupp testified that Lebo told him
that he was terminated because he had missed too much
work, and they wanted employees to be there every day.
Lebo did not ask Nupp why he had missed work on Sep-
28 Nupp did not call the mine to report his absence . According to
Nupp, he lived in his car, and did not have a telephone
29 Mark Wilson came into the mine in a golf cart , and transported
Nupp out of the mine to Lebo 's office.
tember 20 , 1986; in fact Nupp said absolutely nothing to
Lebo on that occasion.30
Nupp admitted that he had missed 4 days of work
around Labor Day 1986, and when he returned to work
on September 2, 1986 , John Lee Sr. asked him if he had
gotten lost . Nupp replied , "Yea." Lee responded that if
he got lost again , just stay lost. However, Nupp missed
work on September 12 and 13, 1986, because of car trou-
ble. When he told Lee that he had been working on his
car, Lee told him to go to work.31
Jon McCarty testified that during the morning of Sep-
tember 21 , 1986, the day after Dennis Bregar had been
fired, he asked Dan Lebo whether he was going to be
terminated for absenteeism , also. Lebo stated, "no," and
stated that McCarty had not missed that much work. In
response to McCarty 's question if absenteeism was the
reason for Bregar's termination, Lebo stated that it was
his understanding from James Huyser that getting rid of
Bregar "would calm the problems with the union down
around the coal company ." Later that morning, McCarty
had occasion to go to Hutch (Harrison) Bingham's shop
for parts. There he overheard a conversation between
Lebo and Mark Wilson concerning the bumper sticker or
Nupp's car . According to McCarty, Lebo said he
thought that Nupp was involved with the Union, too.
Norman Simmons, a miner employed at the Superior
No. 2 mine, testified that over a period of several days
he saw a UMWA bumper sticker on the back bumper of
Nupp's car. Ronald Bregar , the brother of Dennis
Bregar, testified that Nupp put the UMWA bumper
sticker on his car about a week before he was fired.
I find the evidence presented by counsel for the Gen-
eral Counsel in his case in chief is sufficient to meet his
burden under Wright Line of making a prima facie show-
ing that Norman Nupp 's protected conduct was a moti-
vating factor in the Respondent 's decision to terminate
his employment.
As noted previously, the evidence clearly shows that
James Huyser and Dan Lebo were opposed to unioniza-
tion of the miners working at the Superior No. 2 mine.
Norman Nupp advertised his support for the Union by
displaying a UMWA bumper sticker on his car, some-
thing which no other miner employed at the Superior
No. 2 mine did. There is credible evidence from which it
can be inferred that Dan Lebo saw the UMWA Bumper
sticker on the rear bumper of Nupp's car , and credible
evidence that he was overheard stating that Nupp was
involved with the Union. The timing of Lebo's remark,
made the day after Dennis Bregar had been discharged,
because of his union organizing activities , according to
Lebo's statement to Jon McCarty, and the day before
Nupp was terminated, supports the inference that Nupp
was also discharged because of his participation in union
organizing activities . Nupp's sudden discharge, ostensibly
so Nupp testified that on September 21, 1986 , his brother, Joe Nupp,
told him that he had heard a rumor from Hutch (Harrison) Bingham, that
Norman Nupp was going to be fired.
31 Nupp acknowledged that he had been terminated as an employee at
Superior No I in 1985 by John Lee Sr . for absenteeism. He was rehired,
missed work , and was laid off in October 1985 He was rehired by Lee,
on a temporary basis, in July 1986, to work at Superior No. 2
SUPERIOR COAL CO. 453
for absenteeism , which had been condoned by the em-
ployer earlier in the month of September , indicates that
absenteeism was no more than a convenient pretext, and
that the real reason for Nupp 's discharge was because of
his union organizing activities , and to deter other em-
ployees from supporting the Union.
The Respondent offered testimony in an effort to dem-
onstrate that its decision to terminate Nupp would have
been the same in the absence of his protected conduct. I
find , however, that the Respondent has failed to meet
that burden by a preponderance of the evidence, as re-
quired under Wright Line.
James Huyser testified that the day after Bregar had
been terminated , Dan Lebo informed him that Norman
Nupp had failed to report for work . Huyser stated that
Nupp 's attendance record was very bad , he had been
warned , and Huyser determined that he would have to
be terminated , too. Huyser stated that he did not recall if
Nupp received a termination letter . He stated he did not
discuss Nupp 's termination with John Lee Sr., who was
in West Virginia , with Jack Adcock , Nupp's supervisor,
or with Nupp , himself. Huyser said he had reviewed the
company attendance records earlier , and had been ap-
praised of Nupp 's poor attendance record . He stated that
he believed Nupp had been warned.32
Mark Wilson testified that when he brought Nupp to
Dan Lebo's office on September 22, 1986 , he heard Lebo
say to Nupp that he had reveiwed Nupp 's time records,
and there was an indication of excessive absenteeism.
Lebo informed Nupp that he was being terminated for
that reason . Nupp said absolutely nothing . Wilson stated
that Nupp 's letter of termination and final check were
sent from the main office (Iowa Coal Mining Company).
The letter was signed by James Huyser . Wilson stated
that he gave the letter and check to Nupp.
John Lee Sr. stated that he had previously terminated
Norman Nupp for "laying off," missing too much work
(when Nupp was employed at Superior No. 1 mine in
1985). After Lee reemployed Nupp in 1986, at Superior
No. 2 mine, he told Nupp that he was going to have to
stop missing work if he wanted to work there . The last
warning occurred when Nupp said he had gotten lost,
after missing several days' work , and Lee told him if he
got lost again , just stay lost. Lee stated that in August
1986, he had discussed with Huyser the attendance
records of Dennis Bregar, Norman Nupp , and Jim Deer-
inger . At that time he told Huyser he thought they were
doing better . Lee stated that he did not participate in the
decision to terminate the employment of either Bregar or
Nupp, and, in fact , did not know they had been terminat-
ed until after the fact.
The testimony offered by Respondent in an effort to
show by a preponderance of the evidence that it would
have discharged Norman Nupp in the absence of his pro-
tected conduct is unpersuasive.
It was unusual for James Huyser to personally involve
himself in the discharge of employees of Superior Coal
Company, yet within the space of 2 days he personally
32 As noted previously , before terminating Dennis Bregar, James
Huyser had not personally involved himself in the termination of the em-
ployment of any employee of Superior Coal Company
terminate the employment of two miners, both to whom
were visibly involved in the union organizing campaign,
which Huyser oppposed , at Superior No. 2 mine. In the
case of Norman Nupp , as in the case of Dennis Bregar,
whose discharge preceded that of Nupp by 2 days,
Huyser acted precipitously , without giving Nupp any op-
portunity to explain why he was absent from work. The
clear inference is that Huyser did not care why either
Bregar or Nupp was absent; the only thing significant to
Huyser was that they were absent , and that provided
him with an excuse to terminate their employment.
It may be reasonably inferred from the evidence that
at the time he acted , Huyser knew that Nupp actively
supported the Union . There is credible evidence that
Dan Lebo, who also opposed the Union , knew of Nupp's
support of the Union , and, it is simply not believable that
he would fail to inform his employer of that fact when
he reported Nupp 's absence on September 21, 1986.
Respondent 's claim that Nupp had been warned that
his next absence would result in his termination is not
substantiated by the record . John Lee Sr., who sup-
posedly gave that warning to Nupp, in fact condoned
Nupp 's absences on September 12 and 13 , 1986. Casting
further doubt on Huyser's claim that Nupp had been
warned , the evidence clearly shows that Respondent had
not provided any guidance to its employees concerning
what constituted an unexcused absence, as opposed to an
excuse absence , and it is not possible to tell from Re-
spondent's records covering the first 9 months of 1986
what the reason for any employee 's absence was.
As discussed with reference to the termination of
Dennis Bregar, for the same reason , the termination of
Norman Nupp constituted disparate treatment.
Considered as a whole, the record establishes that the
termination of Norman Nupp for absenteeism was a pre-
text . James Huyser terminated the employment of Nupp
because Nupp had engaged in union organizing activities,
and was a visible supporter of the Union, whose termina-
tion would serve as a object lesson to other employees of
Superior No. 2 mine.
Accordingly , based on the record and demeanor of the
witnesses , I find that Respondent violated Section 8(a)(3)
and (1) of the Act by discharging Norman Nupp on Sep-
tember 22, 1986. The Respondent had failed to demon-
strate that it would have taken the same action against
Nupp in the absence of his engaging in union activities.
The General Counsel has proven by a preponderance of
the evidence that the Respondent was motivated by an-
tiunion animus and discharged Norman Nupp because he
had engaged in protected concerted activities, specifical-
ly, because he was involved in union organizing at Re-
spondent 's Superior No. 2 coal mine . The discharge of
Norman Nupp on September 22, 1986, interfered with,
restrained , and coerced him in the exercise of rights
guaranteed by Section 7 of the Act.
C. Layoff of September 28, 1986
On September 26, 1986, Mine Manager Dan Lebo told
the assembled employees of Superior No. 2 coal mine
that the two production shifts were going to be reorga-
nized into one production unit , referred to as a "Super
454 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Section ." A "Memorandum" (R. Exh . 3), dated Septem-
ber 26, 1986, signed by James Huyser, was posted at the
mine . It stated that historically , the mine had not operat-
ed efficiently or economically , due in part to lack of
maintenance (of equipment), and absenteeism . The pur-
pose of the reorganization was stated to be "to maximize
the productive output of the operation and allow the ex-
perience and abilities of our personnel to be afforded the
fullest potential ." The memorandum stated that not all
employees would remain on the payroll . The criteria to
be applied in selecting personnel for retention was stated
to be "ability to perform a job , past job performance, se-
niority, potential for personal development , job classifi-
cation and attendance record."
On September 28, 1986, nine employees (Jon McCarty,
Kyle Pettyjohn , Norman Simmons , Jim Deeringer,
Robert Carr, Rick Fry, Gene Fry, Carlton Vinsick, and
Mike Bingham), and one supervisor (Face Boss Terry
Thompson), were notified that they were released as em-
ployeees of the Superior Coal Company at its Superior
No. 2 coal mine . As previously noted , all of the released
employees had signed union authorization cards (except
Face Boss Terry Thompson), but not all the employees
who had signed union authorization cards were released.
Summarized, of the 19 employees who signed union au-
thorization cards prior to September 28, 1986, two were
fired before September 28, 1986 (Dennis Bregar and
Norman Nupp), nine were released on September 28,
1986, and eight were retained as employees of the Supe-
rior Coal Company at the Superior No. 2 mine (Ronald
Bregar, Rick Bregar, Harold Bennett , Jeff Beary, Robert
Black , Lawrence Laird , Robert M. Smith, and Michael
Carter).
Of the 11 -man pre-September 28 second-shift produc-
tion crew , of which Terry Thompson was the face boss,
only 4 were retained in the September 28 reorganization.
They were Mike McKay, Phillip W . Maddison, Law-
rence Laird , and Craig Marshall . The released employees
were Terry Thompson , Norman Simmons, Kyle Petty-
john , Eugene Fry, Jon McCarty, and Carlton Vinsick.
Of the 13-man first -shift production crew, only 2 were
released in the September 28 reorganization .33 They
were Rick Fry and Robert Carr. Of the five-man first-
shift dead work crew , four were released or terminated
on or before September 28. They were James Derringer
(released on September 28), Mike Bingham (released on
September 28), Dennis Bregar (terminated on September
20), and Norman Nupp (terminated on September 22).
The only employee from that crew who was retained in
the September 28 reorganization was William Adcock.
Not including Dan Lebo, John Lee Sr., Mark Wilson,
and Chief Electrician Harrison Bingham , the work force
at Superior No. 2 mine prior to the September 28, 1986
reorganization , totaled 35 employees.34 After the Sep-
33 Gary Zellman, who was listed as the cutter on the pre -September 28
first-shift production crew, quit , effective September 20, 1986.
34 The total of 35 employees also does not include Dennis Bregar, who
was terminated on September 20, 1986 , Norman Nupp , who was termi-
nated on September 22, 1986 , and Gary Zellman, the cutter on the pre-
September 28 first-shift production crew , who quit on September 20,
1986.
tember 28 , 1986 reorganization , the work force, includ-
ing John Lee Sr., whose new title was super section su-
pervisor, and two new employees hired as part of the
surface support group, totaled 29 employees . Of that
number, 14 employees , including John Lee Sr., worked
on the first-shift super section . As constituted on Septem-
ber 28, 1986, the super section was larger by one em-
ployee than the pre-September 28 first-shift production
crew, and worked a 9-hour day instead of the 8-hour
days worked by the pre-September 28 first-shift produc-
tion crew . There was no change in the 6-day workweek.
Of the eight employees who signed union authoriza-
tion cards and were retained as employees of Superior
Coal Company after the September 28 reorganization, six
performed the same job on the newly organized super
section as they had performed prior to September 28.
They were Ronald Bregar , driller ; Rick Bregar , shooter;
Jeff Beary, shuttle car operator ; Robert M. Smith,
feeder; Bob Black , belt; and , Michael Carter, dead work.
The two who were given new jobs were Harold Ben-
nett, formerly a shuttle car operator , but assigned as a
bolter in the super section; and, Lawrence Laird, former-
ly a scoop operator , but assigned as supply man in the
super section.
The six other members of the 14-man super section
(none of whom had signed union authorization cards)
were new to the positions which they occupied on the
super section . They were John Lee Sr ., supervisor (for-
merly mine superintendent); William (Billy Jo) Mad-
dison, loader (formerly face boss of the first-shift produc-
tion crew); Jim Chenet, shuttle car operator (formerly a
scoop operator on the first-shift production crew); Mark
McKay, scoop operator (formerly a mechanic on the
first-shift production crew); William Adcock, utilityman
(formerly the supervisor or leadman of the first-shift
dead work crew); and Phillip L. Maddison, mechanic (a
member of the surface crew prior to the September 28
reorganization).
Comparison of the seniority dates, as reflected on Re-
spondent 's Exhibit 15, shows that seniority was not used
as a factor in Respondent 's determination of which em-
ployees would be released and which would be retained
in the September 28 reorganization.35 For example, of
those employees released on September 28, Rick Fry
rank 11th in seniority on a list of 41 employees ; Norman
Simmons ranked 18th, and Terry Thompson ranked 19th.
The other seven released employees ranked between 21st
and 38th.36
Neither did Respondent consistently use employees'
absenteesm rates as a factor in determining who would
as The seniority list includes the names of Martin Laird and Billy Fry,
two employees who were not working on September 28 because of inju-
ries sustained in June and August 1986, respectively. It also includes the
name of James Darnell, who was hired on September 20, 1986, but who
had previously worked for Star Coal Company, a strip mine owned by
James Huyser Darnell, however, is ranked last on the seniority list.
sa The following is the seniority ranking on a roster of 41 employees
of the 10 employees, including Terry Thompson , released on September
28, 1986 . Rick Fry- 11/41, Norman Simmons-18/41; Terry Thomp-
son-19/41, James Derringer-21/41; Robert Carr-22/41; Carlton Vin-
sick-27/41; Michael Bingham-28/41; Jon McCarty-31/41, Kyle Pet-
tyjohn-37/41; Eugene Fry-38/41
SUPERIOR COAL CO. 455
be released in the September 28, 1986 reorganization.
For example, according to Respondent's Exhibit 13A of
the employees who has signed union authorization cards
ans were released , Rick Fry's absenteeism rate was 0 per-
cent; Norman Simmon 's absenteeism rate was 1.3 per-
cent ; Robert Carr's absenteeism rate was 0 percent; and
Carlton Vinsick's absenteeism rate was .4 percent. The
other five released employees who had signed union au-
thorization cards had higher absenteeism rates.37 By
comparison , some of the employees who had not signed
union authorization cards, and were retained in the Sep-.
tember 28 reorganization , had higher absenteeism rates
than some of the released emloyees, who had signed
union authorization cards . For example , Dennis Maddis-
on's absenteeism rate was 3 . 9 percent ; Mike McKay's ab-
senteeism rate was 3 percent ; Phillip W . Maddison's ab-
senteeism rate was 8 . 7 percent; Mark DeHeer's absentee-
ism rate was 3 percent; Robert Lankford' s absenteeism
rate was 3 . 9 percent ; and Robert L. Smith 's absenteeism
rate was 3 percent.
The following chart reflects production statistics for
the Superior No. 2 Coal Mine for 1986:
Vinsick testified that on September 28, 1986, after he
learned that he had been released as an employee by Re-
spondent he asked Mine Manager Dan Lebo why he had
been laid off. Lebo responded that he did not know, but
that John Lee Sr. did. Later, according to Vinsick, he
asked John Lee Sr . the same question , and Lee replied
that he knew nothing about it, and that it was Lebo's
idea . Lee said that if another mine opened up he would
hire Vinsick.
Vinsick also testified that about a week later he asked
Mark Wilson if the Union had anything to do with his
layoff. Wilson replied, "it could but I 'm not in a position
to say ." Vinsick said that he told Wilson he had signed
an authorization card , and Wilson replied that he "knew
just about everybody who did sign a card.
The evidence presented by counsel for the General
Counsel is sufficient to sustain his burden under Wright
Line of making a prima facie showing that retaliation
against the employees who signed union authorization
cards , and intimidation of the remaining employees into
not selecting a union as their collective-bargaining repre-
sentative , were motivating factors in the Respondent's
decision to release the nine employees on September 28,
Month Production Per Man Day No. ofMen
1/86 17,160.41 13.76 40
2/86 9,855.86 9.28 40
3/86 14,343.01 11.60 42
4/86 16 ,426.09 14.00 43
5/86 9,466.00 8.00 43
6/86 11,403 . 92 9.76 42
7/86 21 ,287.12 18.40 43
8/86 21,924 .37 17.60 -
9/86 17 ,810.81 15.76 43
10/86 16,032.75 16.56 34
11/86 12,550.42 13.92 36
12/86 24,272.24 29.76 37.5
As reflected on the chart above, the super section did
not materially improve production and, as the evidence
shows, it was augmented by a second-production shift
crew , called the "Peanut Crew," within a month after
the September 28, 1986 reorganization. Ronald Bregar
testified that the second crew , which was supposed to do
dead work, began running coal (a term meaning to mine
coal) in October 1986. Carlton Vinsick, who was re-
leased on September 28, 1986, was recalled in October
1986, and was assigned to a second -shift production
crew, called the "Peanut Crew." Vinsick stated that "our
job was to get coal up and to get some load(ed) out if
we could ." He stated that the "Peanut Crew" either con-
veyed the coal it mined outside, or stockpiled it for the
day crew . Initially, there were three workers on the
"Peanut Crew," including Vinsick. Vinsick stated that
about a week after he returned to work in October 1986,
the "Peanut Crew" was expanded in size by adding the
rest of the dead work crew to it.
97 Rates of absenteeism : Kyle Pettyjohn-9.4 percent ; Eugene Fry-
13.1 percent , Jon McCarty-11 percent, James Deeringer-28 95 percent;
1986.
Counsel for the General Counsel presented evidence
showing that within a week after terminating two em-
ployees because of their union activities , Respondent an-
nounced that it intended to reorganize its work force in a
manner which would reduce the number of workers it
employed . Following the September 26, 1986 announce-
ment of the reorganization, on September 28, 1986, Re-
spondent went from two coal production shifts to one
large production shift, called the "super section," and re-
leased 10 employees , 9 of whom had signed union au-
thorization cards, and 1 of whom was a supervisor under
the Act. The close proximity in time of the release of
nine employees who has signed union authorization
cards, to the termination of two employees because of
their union activities, is sufficient to support the infer-
ence that Respondent was motivated in releasing the nine
employees by its desire to frighten its remaining employ-
ees into abandoning any attempt to select the Union as
their bargaining representative, and that it made an ex-
ample of the nine emloyees for that purpose . The selec-
tion of only employees who had signed union authoriza-
tion cards for release, with the exception of one supervi-
sor who was also released, on its face indicates a dis-
criminatory discharge violative of the Act. Limpert Bros.,
276 NLRB 364, 374 ( 1985), quoting NLRB it Midwest
Hanger Co., 474 F.2d 1155,1158 (8th Cir . 1973). It may
reasonably be inferred that the selection of only employ-
ees who had signed union authorization cards for release,
with the exception of the supervisor, was no coincidence
where only 52 percent of the work force had signed
union authorization cards , and not one of the 48 percent
of the employees who had not signed union authorization
cards was selected for release in the September 28, 1986
reorganization. 38
and Michael Bingham-7 5 percent. Terry Thompson, who was a face 38 G.C. Exh 4 shows a total pre-September 28, 1986 work force of 35,
boss, and did not sign a union authorization cards, had an absenteeism not including Gary Zellman, who quit before the reorganization, and
rate of 0 percent. Continued
456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
That the discharge of only prounion workers was by
design , and not a coincidence , and thus was discriminato-
ry, is further shown by the fact that the Respondent ap-
plied neither seniority nor rates of absenteeism in select-
ing the employees who would remain, despite having
told the employees that those were two factors which
would be considered . Also indicative that the September
28, 1986 reorganization was pretext , within a matter of
weeks, Respondent abandoned the one production shift
"super section" concept, added a second production
shift, and began calling back employees who had been
released . With only 18 of 35 employees , including the 2
face bosses of production shift supervisors , having not
signed union authorization cards, Respondent could not
release more than 9 in the pretextual reorganization, oth-
erwise it would not have had enough employees to staff
the super section. See USA McDonald Corp., 288 NLRB
1416 (1988). As it was, Respondent hired two new em-
ployees to work as part of its reorganized work force.39
It is readily inferable from this evidence that the Re-
spondent intended that reorganization serve as a warning
to its remaining employees to abandon their attempt to
select the Union as their bargaining representative.
Knowledge by Respondent of which employees had
signed union authorization cards is inferable from the
fact that only employees who had signed cards were se-
lected for release. Supporting this inference is the testi-
mony of Carlton Vinsick, one of the released employees,
that Mark Wilson, a member of Respondent's manage-
ment, told him that he knew the identity of almost ev-
eryone who had signed a card.
Counsel for the General Counsel having established a
prima facie case that Respondent 's conduct was violative
of the Act, the burden shifts to Respondent to show that
it would have released the nine employees even in the
absence of their union activities . Lewis Mechanical &
Metal Works, 285 NLRB 514 (1987).
In an attempt to meet this burden, Respondent present-
ed the testimony of its president , James Huyser, its vice
president, Randy Luwe , its former mine manager, Dan
Lebo, and its present mine superintendent , John Lee Sr.,
all of whom gave testimony concerning how and why
the "super section" concept was adopted , and how it
was staffed . The relevant testimony is set out below.
James Huyser testified that Superior No. 2 mine start-
ed in January 1986 with one production crew . Geologi-
cal problems were immediately encountered , and to get
the kind of production which he wanted, a second pro-
duction shift was added . Although geological conditions
improved in July 1986, Huyser considered production
levels and coal quality to be unsatisfactory . Huyser
stated that in September 1986 he concluded that part of
the problem was the inability of Mine Superintendent
Dennis Bregar and Norman Nupp, who had been fired prior to Septem-
ber 28 . Not considering the two face bosses , William Maddison and
Terry Thompson , whom the parties stipulated to be supervisors under
the Act, the pre-September 28 work force totaled 33 employees. Of that
number, 17 had signed union authorization cards, and 16 had not. In the
reorganization , Face Boss Maddison was retained in a nonsupervisory po-
sition, and Face Boss Thompson was released.
as The two new employees were Jim Darnell and Dean See , both of
whom were assigned to "Surface Support."
John Lee Sr., to communicate with people. To remedy
that, Huyser hired Dan Lebo, a consulting engineer from
Kentucky, as a mine manager, with authority over John
Lee Sr . Lebo's task was to improve communications
with the employees and improve production.
Huyser stated that even after Lebo arrived , the mine
continued to lose money . Part of the problem , according
to Huyser , was that the work force was not adequate to
staff two production shifts and their was not enough
equipment . Huyser went on to state that on September
24 or 25, 1986, after consulting with Lebo, he decided to
restructure the work force , and this was accomplished
on September 28, 1986 . Huyser stated that he did not
consult with any one other than Lebo concerning the de-
cision to restructure . According to Huyser , Lebo and
John Lee Sr. decided which employees would remain on
the work force after September 28. Huyser denied he
looked at the list of employees prior to September 28, al-
though he acknowledged that he knew the list had been
prepared. Huyser said that on September 28, he did not
know if any of the released employees would ever be
called back.
Huyser testified that the super shift was not an uncom-
mon type of mine organization . Huyser stated that the
idea to restructure in September 1986 was his and
Lebo's; however, he proposed using the super shift.
Huyser said he hoped that production would increase to
a level nearly equal to two shifts; however , that goal was
never achieved on a consistent basis because of geologi-
cal and equipment problems. After about a month, the
super shift was modified by bringing people back and
creating a second production shift, known as the "Peanut
Crew." Its job was to shoot down coal and have it ready
to load for the super shift in the morning . Eventually,
Huyser said , the "Peanut Crew" evolved into a full
crew , although it was not as large as the super shift.
Mark Wilson, Superior Coal Company's purchasing
agent and safety director , stated that he knew about the
September 28, 1986 reorganization several days in ad-
vance, because he heard Huyser speak about it . Wilson
stated that he had no part in the decision to reorganize
or in the selection of men to be assigned to the various
shifts. Wilson said he was not consulted in any way.
Wilson testified that he had a conversation with Carl-
ton Vinsick after the latter had been laid off, during
which Vinsick mentioned the union organizing effort.
Wilson said he did not carry on the conversation . Wilson
also acknowledged that several days before the reorgani-
zation, Joe Wing, another employee, told him that 80
percent had signed cards . 40 Wilson said that he did not
ask Wing who the people were, and did not tell anyone
what Wing had said . He also said that no doubt he had
heard about the signing of cards from someone else
before September 28, but he did not remember who.
Wilson acknowledged that between September 11 and
29, 1986, he had discussed the union organizing effort
with John Lee Sr . out of Mine Manager Dan Lebo's
presence.
40 As noted earlier , the actual percentage of employees who signed
union authorization cards was approximately 52 percent.
SUPERIOR COAL CO.
According to former Mine Manager Dan Lebo, he
recommended the restructuring of the work force in Sep-
tember 1986, and Huyser approved of it. Lebo stated
that it was his thought to make one good super section
crew with enough men with the right qualifications to
get the job done . He stated that the super shift is a
common method of mining . According to Lebo, Huyser
endorsed his recommendations , and they were imple-
mented on September 28, 1986.
Lebo stated that he selected the crews , in the presence
of Huyser. According to Lebo, the maintenance people
and dead work crew which he selected were essentially
the same people already doing those jobs. He said he se-
lected John Lee Sr. as the supervisor of the super shift,
and Billy Joe Maddison as a cutting machine operator.
Lebo said that John Lee and Billy Joe Maddison com-
pleted the remainder of the assignments because he did
not know the people well enough . As he continued,
Lebo revised his testimony somewhat by saying that
John Lee Sr. actually selected Billy Joe Maddison as a
cutting machine operator , and basically filled out the rest
of the list. Lebo said there was some discussion as they'
went along, but not in any great detail.
Lebo also testified that about a month after the reorga-
nization , a second production shift, called the "Peanut
Crew," was started , in an effort to increase production.
The "Peanut Crew" loaded out coal which the day crew
had prepared but not loaded out, and blasted down coal
so the day crew could begin loading immediately. Addi-
tional employees were added to the "Peanut Crew" in
November , and that crew had the additional duty of
doing dead work, if needed.
Lebo testified that he made no attempt to find out
who was involved in the union organizing effort. He
stated that he discussed the union campaign with Face
Bosses Terry Thompson and Billy Joe Maddison, and
learned of the union meeting on September 11, 1986,
from Terry Thompson. Lebo also said that Mark Wilson
told him that 80 percent of the employees had signed
"intent cards."41
John Lee Sr. testified that he heard of the September
11, 1986 union meeting from Jon McCarty, but he told
McCarty he did not intend to attend. Lee stated that he
did not ask anyone the names of the persons who attend-
ed the meeting, and he did not report that there was
going to be a meeting to any company official.
Lee testified that he did not have any role in the deci-
sion to reorganize , and that he first learned of the reor-
ganization when he was told by Lebo and Huyser that
they were going to put it into effect . Lee stated that
Lebo asked him to go over a list of employee assign-
ments which would take effect after the reorganization.
The list shown to Lee already had some blanks filled in.
Lebo asked for some idea of where the mine employees
had worked and how long they had worked there, and
41 Lebo 's testimony on this point is contrary to that of Mark Wilson.
Wilson said that possibly several days before the September 28, 1986 re-
organization Joe Wing told him that 80 percent of the employees had
signed cards Wilson stated that he did not tell anyone what Wing had
said . Taking into consideration the demeanor on the witness stand of the
two witnesses , and the apparent lack of any reason for Lebo to testify
falsely on this matter, I credit the testimony of Lebo on this point.
457
what Lee thought about filling in the blanks on the list.
Lee stated he gave Lebo the answers the latter request-
ed.
According to Lee , Billy Joe Maddison was listed as
the cutting machine operator , and Mike McKay was
listed as the loader operator . 42 He told Lebo that the
two should be switched, since Maddison could operate
the loader, but not the cutting machine, and McKay
could operate the cutting machine , but not the loader.
Lee's suggestion was followed. According to Lee, the
names of the surface support crew , the maintenance
crew , and the dead work crew were already filled in.
Lee stated that Harold Bennett had prior experience
operating the bolter , although prior to September 28,
1986, the bolter operators were Rick Fry and Kyle Pet-
tyjohn . Bennett was selected for the bolter position on
the super section . (All three of these employees had
signed union authorization cards . Rick Fry and Kyle
Pettyjohn were released as employees on September 28.)
Lee stated that Ronald Bregar was already listed as the
driller operator , and Jim Chenet was listed as the scoop
operator . (Bregar had signed a union authorization card;
Chenet had not.) Lee stated that he had nothing to do
with placing Lawrence Laird in the supply man position.
(Laird had not signed a union authorization card.) Lee
said he told Lebo that Robert Carr had been there
longer than Robert M. Smith , who was listed as the
feeder operator. (Both Smith and Carr had signed union
authorization cards . Lebo retained Smith as the feeder
operator ; Carr was released .) Lee said he suggestd Wil-
liam Adcock for the utilityman position. (Adcock, who
had not signed a union authorization card , was placed in
that position .) Lee said he had nothing to do with
making Philip L. Maddison a mechanic on the first shift,
or with the assignment of Philip W. Maddison to the
second -shift dead work crew . (Neither of the Maddisons
had signed union authorization cards .) Lee said he told
Lebo that Terry Thompson should be on the list of those
staying, but Lebo said he could only have so many
people, and that was it . Lee stated that the Maddisons
are his first cousins, Harold Bennett is his son-in-law, and
Jim Chenet goes with his daughter. Lee testified that
when he helped Lebo formulate the super shift, he did
not know that those employees not selected would be
terminated . He said he surmised that some would be, but
thought more would be kept on than actually were. He
stated that he found out on September 28, 1986 , who was
being terminated.
I find that the Respondent has failed to rebut the Gen-
eral Counsel's prima facie case that it laid off or termi-
nated nine of its employees on September 28, 1986, be-
cause they had engaged in union organizing activities.
Respondent has offered no credible evidence that the
September 1986 decision to restructure the work force at
the Superior No. 2 mine, along the lines of a super sec-
tion , was solely for the purpose of increasing production,
and was unrelated to the union organizing activity going
on at the mine at that time . Neither Respondent Presi-
42 Neither Billy Joe Maddison (formerly a face boss ), nor Mike
McKay (formerly the cutter operator on the second production shift),
had signed union authorization cards.
458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dent James Huyser nor former Mine Manager Dan Lebo
gave credible testimony concerning the termination of
Dennis Bregar and Norman Nupp , which I found to
have been because the two employees engaged in union
organizing activities , despite testimony to the contrary
by Huyser and Lebo . Likewise , I do not find to be credi-
ble their testimony concerning the restructuring of the
work force , which followed closely the termination of
Bregar and Nupp . In view of their demonstrated antiun-
ion animus in terminating Bregar and Nupp . I do not be-
lieve their disclaimers that the termination (for that if
what the release of the employees amounted to) of nine
more union supporters was in any way related to their
union organizing activities.43
Although Huyser and Lebo each claimed in their testi-
mony to have first proposed the adoption of the super
section concept, which they said was a common method
of mining , they both said the purpose of the restructur-
ing of the work force was to increase production. While
both denied , implicitly , if not explicitly , that the selection
of employees to be retained and those to be discharged
was unrelated to the employees ' involvement in union
organizing activities , their testimony again diverged on
the issue of the circumstances under which the selections
were made . Respondent President Huyser claimed to
have had no role in making the selections, and went so
far as to testify that he did not know which employees
were being retained and which were being released until
September 28, 1986 . Huyser said that Lebo and John
Lee, Sr . decided which employees would remain on the
work force after September 28. Former Mine Manager
Lebo, on the other hand , testified that Huyser was
present when the selections were made, and that he se-
lected the maintenance and dead work crews, which
were composed of essentially the same people who did
that work before September 28. Lebo said he selected
John Lee Sr., as the supervisor of the super section, and
Billy Joe Maddison as the cutting machine operator. Lee
changed Billy Joe Maddison to the position of loader op-
erator , according to Lebo, and basically filled out the
rest of the list.
Contrary to Lebo's assertion that the maintenance and
dead work were composed of essentially the same people
who did that work before , 4 of the 10 persons assigned
to those crews in the restructuring of the work force
previously had worked on one or the other of the two
coal production crews . According to John Lee Sr., the
names of the surface support crew , the dead work crew,
and maintenance crew were already filled in when he
first saw the list, as were the names of the least 7 mem-
bers of the super section, which was composed of 14 po-
43 On the face of it, it seems unlikely that production would be in-
creased by reducing the coal production staff from two crews, with a
total of 24 miners (the first shift had a crew of 13, the second shift, a
crew of 11 ), to one production shift with a crew of 14 miners , even with
the one crew working an additional hour each day . And, indeed, the
super section concept was unsuccessful in meeting the goals set for it,
and within a month , Respondent added a small second production shift,
which was gradually enlarged , although it never equalled the super sec-
tion in size. However, as there is unrebutted testimony that the super sec-
tion concept is not uncommon in coal mining, I do not find that Re-
spondent's adoption of that concept of coal mining , standing alone, is evi-
dence of discrimination.
sitions, including that Lee as supervisor . Lee stated he
made recommendations that Mike McKay and Billy Joe
Maddison switch jobs, and other recommendations con-
cerning who should be on the super section, some of
which Lebo accepted and some of which he did not.
Among other inconsistencies in the testimony of Re-
spondent 's witnesses , Mark Wilson , Respondent's pur-
chasing agent and safety director , testified that he did
not tell anyone else that Joe Wing had told him that 80
percent of the employees had signed union authorization
cards . This contrasts with the testimony of Mine Manag-
er Lebo that Wilson told him that 80 percent of the em-
ployees had signed union authorization cards . On this
point, I credit the testimony of Mine Manager Lebo, be-
cause he had no apparent motive to lie concerning this
matter . Casting further doubt on the credibility of
Wilson, he left uncontradicted the testimony of Carlton
Vinsick that Wilson told him he knew just about all of
the men who signed union authorization cards . Wilson
gave the impression in his testimony that he did not
know who was involved in the union organizing effort,
and made no effort to find out. Under the circumstances,
I credit the testimony of Vinsick, and discredit the testi-
mony of Wilson , who tried to minimize his knowledge of
the union organizing campaign . Instead , I find that he
did know many of the employees who were sympathetic
to the Union, if not all of them . Wilson was a member of
Superior Coal Company's management , and I find that
there is strong circumstantial evidence that he shared
whatever knowledge he gained concerning the union or-
ganizing campaign with Mine Manager Lebo.
The testimony presented by the Respondent is contra-
dictory and misleading concerning numerous point, in-
cluding who originated the idea to go from a two-shift
production method to a single-shift production method,
and who made the selections regarding the staffing of the
restructured crew . Huyser said he had no part in it; Lebo
said he mostly left it to John Lee Sr .; and, John Lee Sr.,
said it was mostly done by Lebo.
Moreover, and perhaps more importantly , Respondent
offered no testimony which would explain how it hap-
pened that only employees, with the exception of one su-
pervisor . 44 who signed union authorization cards were
released in the reorganization.45
Considering the lack of consistent testimony by Re-
spondent's own witnesses on key issues concerning the
restructuring of the work force at the Superior No. 2
coal mine on September 28, 1986, and the absence of any
44 There is no evidence that Terry Thompson, the face boss in charge
of the second production shift until he was released on September 28,
1986, was engaged in union organizing activities, or even supported the
Union in this case . That he once filed an NLRB charge while working at
a mine in Illinois , and that his neighbor while he lived in Illinois was
Junior Bishop, a UMWA organizer , is inconclusive and too remote to
support an inference that his present employer, the Respondent , thought
he was prounion.
45 Contrary to Huyser 's assertion in his memorandum of September 26,
1986, announcing the restructuring of the work force , selection of the
employees to be retained or released was not based on a review of each
employee, based on an evaluation of job performance, potential , seniority,
and attendance . Respondent's records show that seniority and attendance
were not factors , and their is no evidence even from Respondent's own
witnesses , that each employee was evaluated individually.
SUPERIOR COAL CO. 459
rational explanation by any of Respondent's witnesses
clarifying why only nonsupervisory employees who had
signed union authorization cards were selected for re-
lease on September 28, 1986, I find that Respondent had
failed to rebut the General Counsel 's prima facie case,
and also failed to establish an affirmative defense under
Wright Line that it would have released the nine employ-
ees even in the absence of their engaging in union activi-
ties . The General Counsel has proven by a preponder-
ance of the evidence that on September 28, 1986 , the Re-
spondent released its employees Michael Bingham,
Robert Carr, James Deering, Eugene Fry, Rich Fry, Jon
McCarty, Kyle Pettyjohn, Norman Simmons, and Carl-
ton Vinsick, because they were engaged in union orga-
nizing at Respondent 's Superior No. 2 coal mine. Ac-
cordingly , I find that Respondent was motivated by an-
tiunion animus , and violated Section 8 (a)(3) and (1) of
the Act.
D. Threat and Interrogation by John Lee Sr.
Mine Superintendent Lee admitted that when he found
a union flyer on the floor of the bathhouse on September
11, 1986, he said to employee Joe Bregar , "Well, babe,
they didn't say nothing about where we're going to
work next." According to Lee, Bregar just laughed.
Ronald (Joe) Bregar testified that he has known Lee for
23 years, and that Lee told him a union flyer was mis-
printed , because "it did not say where we were going to
work next ." Bregar said he did not feel threatened by
Lee's remark and considered it to be a joke , but he said
he told other employees about Lee's remark about the
"misprint."
Jon McCarty, one of the employees who signed a
union authorization card and was released on September
28, 1968, testified that on September 12, 1986, Mine Su-
perintendent John Lee Sr ., asked him if he had attended
the union meeting in Bussey the night before . McCarty
told Lee that he had. John Lee testified that McCarty
told him about the union meeting on September 11, 1986,
before it had taken place. According to Lee, McCarty
asked him if he was going, and Lee responded that he
was not . Lee denied that he heard later who had attend-
ed, or asked anyone about who had attended.
Section 8(c) of the Act provides:
The expressing of any views , argument, or opinion,
or the dissmination thereof, whether in written,
printed , or graphic , or visual form, shall not consti-
tute or be evidence of an unfair labor practice under
any of the provisions of this Act, if such expression
contains no threat of reprisal or force or promise of
benefit.
The Supreme Court, in NLRB v. Gissel Packing Co.,
395 U.S. 575 (1969), stated that the language of Section
8(c) "merely implements the First Amendment," but the
Court went on to limit scope of an employer' s expression
by noting that any assessment of an employer's expres-
sion "must be made in the context of its labor relations
setting . Thus, an employer's rights cannot outweigh the
equal of the employees to associate freely, as those rights
are embodied in Section 7 and protected by Section
8(a)(1) and the proviso to Section 8(c)." 395 U.S. at 617.
The Court made a distinction between "threats" and
"predictions" in the context of statements by employers
concerning plant closings:
[a] prediction must be carefully phrased on the basis
of objective fact to convey an employer 's belief as
to demonstrably probable consequences beyond his
control . . . . If there is an implication that an em-
ployer may or may not take action solely on his
own initiative for reasons unrelated to economic ne-
cessities and known only to him, the statement is no
longer a reasonable prediction based on available
fact but a threat of retaliation based on misrepresen-
tation and coercion , and as such without the protec-
tion of the First Amendment.
The labor relations setting at the Superior No. 2 mine
was one of tense labor relations . James Huyser had met
three times with his employees, and during those meet-
ings the employees had expressed dissatisfaction with
working conditions and pay. Huyser, for his part, had
urged the men to produce more coal, while at the same
time threatening to fire any employee who produced
dirty coal , and to withhold the monthly production
bonus from any employee who had more than one unex-
cused absence during the month.
The statement by Mine Superintendent Lee to employ-
ee Ronald Bregar , concerning the UMWA flyer , solicit-
ing membership in the UMWA , to the effect that it omit-
ted crucial information, because it "didn't say nothing
about where we're going to work next ," clearly falls into
the category of a threat and not a prediction , particularly
in the context of the tense labor relations which pre-
vailed at the mine, and were at the bottom of the effort
by some employees to organize and select the UMWA as
their collective-bargaining representative . Up until early
September 1986, Lee had been in charge of the Superior
No. 2 coal mine , and even after Lebo's arrival, he was
still clearly a member of management, holding a position
of no less than second in charge of the mine . When Lee
spoke on matters of such a significant nature as the
future of mining at the Superior No. 2 mine, by virtue of
his position the employees would perceive him to be
speaking for management . Indeed , Lee did not indicate
in his testimony that he meant the remark to be a joke,
whatever Bregar may have thought of it at the time. Sig-
nificantly, Bregar testified that he told other employees
about Lee's comment , and there is nothing in the record
concerning how the other employees interpreted it. An
uncalled for remark of that nature coming from a person
in Lee's position in the management of the mine had, on
its face, too chillng a nature to be dismissed as a joke.
Lee gave no economic justification, or for that matter
any justification at all, which would explain why the
mine would close if the UMWA represented the miners.
He merely made a bald, unsupported statement, which
could be construed in no other way that if the employees
selected the UMWA to represent them , they would all
be out of a job.
460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Based on the record, I find that Lee's remark to em-
ployee Ronald Bregar interfered with the employees'
Section 7 rights, and violated Section 8(a)(1) of the Act.
In the case of Rossmore House , 269 NLRB 1176 ( 1984),
cited by Respondent , the Board partially reversed PPG
Industries, 251 NLRB 1146 (1980), which held that ques-
tions concerning union sympathies , even when addressed
to open and active union supporters in the absence of
threats or promises, are inherently coercive . In Rossmore
House, the Board said that it overruled "PPG and similar
cases to the extent they find that an employer 's question-
ing open and active union supporters about their union
sentiments , in the absence of threats or promises , neces-
sarily interferes with, restrains , or coerces employees in
violation of Section 8(a)(1) of the Act." 269 NLRB at
1177-1178. The Board then proceeded to examine the
questioning involved under the totality of the circum-
stances and found no violation of Section 8(a)(1) of the
Act.
The instant case, however, in distinguishable from
Rossmore House, supra . Here the questioning was not of
an open and active union supporter about his union senti-
ments, but of an individual to determine whether he had
attended a union meeting and , therefore, by inference,
was a union supporter . The coercive nature of Lee's
questioning of McCarty , and the chilling nature of it, is
clear . Whatever Lee may have meant by it, the question-
ing put the employee in the position of having to admit
to a high -ranking member of the Superior Coal Compa-
ny's management , if chose to tell the truth, that he had
attended a union meeting , and marked him as a possible
union supporter.
I find that under all the circumstances , the interroga-
tion of Jon McCarty by John Lee Sr. reasonably tended
to restrain , coerce, and interfere with McCarty's exercise
of rights guaranteed by Section 7 of the Act, and, there-
fore, violated Section 8(a)(1) of the Act.
The allegations underlying the findings above are con-
tained in paragraphs 5(a) and (b) of the complaint. The
General Counsel cited no evidence in his posttrial brief
to support the allegations involving violations of the Act
by John Lee Sr., contained in paragraphs 5(c), (e), and
(g) of the complaint . Accordingly, those sections of the
complaint are dismissed.
E. Threats and Interrogation by Jack Adcock
The complaint alleges that Respondent violated the
Act because on several occasions during September
1986, its face boss, Jack Adcock, threatened that employ-
ees who sought to become represented by the Union
would be discharged , and one occasion interrogated an
employee about another employee 's union activities.
Even assuming , arguendo , that Jack Adcock commit-
ted the acts alleged, his conduct does not constitute a
violation of the Act, because he was not a face boss or
supervisor , and there is no evidence that he was author-
ized to speak for the Respondent or acted as its agent.
The evidence established that Adcock supervised the
first shift dead work crew before the September 28, 1986
restructuring of the work force . He did not have the au-
thority to hire or fire employees , but on two occasions
he sent employees home, on one occasion because he
caught an employee sleeping on the job, and on other
occasion because an employee reported for work in an
intoxicated condition . While Adcock directed the dead
work crew in their assigned tasks, there is no evidence in
the record that he independently determined what tasks
the dead work crew would perform on any particular
day.
It is well settled that to qualify as a supervisor, an indi-
vidual need not possess all of the powers enumerated in
Section 2(11) of the Act.46 Possession of any one of the
enumerated powers may be sufficient to confer supervi-
sory status , Hydro Conduit Corp., 254 NLRB 433, 436
(1981); however, possession of one or more of the
powers enumerated in Section 2(11), alone, is not suffi-
cient to confer supervisory status . To qualify as a super-
visor under the Act, an individual most have the author-
ity to exercise independent judgment in the interests of
the employer . Hydro Conduit Corp., supra , 254 NLRB at
437, citing NLRB v. Security Guard Service, Inc., 384
F.2d 143, 147-148 (5th Cir. 1967).
In the instant case, the record does not show that
Adcock exercised independent judgment in determining
the priority of work or in sending employees home on
two isolated occasions . Overall the record shows that
Adcock did not demonstrate the exercise of discretion or
independent judgment . Therefore, I find that Adcock
was a leadperson , but not a supervisor within the mean-
ing of the Act. Because Adcock was not a supervisor
within the meaning of the Act, in September 1986, he
did not violate Section 8(a)(1) when he allegedly threat-
ened employees and interrogated an employee concern-
ing union activities . 47 Kent Products, 289 NLRB 824
(1988).
F. Threats by James Huyser
The complaint alleges that on or about September 15,
1986 , the Respondent , by its president , James Huyser,
threatened to shut down operations if the employees
chose to be represented by the Union.
Huyser testified that he met with the personnel of the
first and second shifts on September 15 or 16, 1986.
Huyser stated he told his employees that he was aware
of the union organizing effort in the area , and said that it
tied his hand in regard to what he could say . Huyser said
he told the employees that a union could charge dues
ae Sec. 2(l1) of the Act defines a supervisor as "any individual having
authority, in the interest of the employer, to hire, transfer, suspend, lay
off, recall, promote, discharge , assign , reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their grievances, or
effectively to recommend such action, if in connection with the foregoing
the exercise of such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment
47 Dennis Bregar testified that on numerous occasions after the union
organizing campaign started in September 1986, he said to Jack Adcock,
"united we stand," and Adcock replied, "united we fall " A day or two
before he was fired, according to Bregar, Adcock told him he hated
Bregar more each day, and wished he would quit, because all that was
going to happen was tht it would get Bregar fired, and possibly Adcock
"to boot " On another occasion, when Bregar accepted a signed union
authorization card in an envelope from Robert Black, while both were
working underground, Adcock asked if Black had signed a union authori-
zation card Bregar testified that he told Adcock that he could not say
Then, according to Bregar, Adcock asked what was in the envelope, and
Bregar replied that it was none of his business.
SUPERIOR COAL CO.
and assessments , but it could not guarantee a paycheck
or employment . Huyser said that he told the employees
they would not be able to deal directly with him, and he
would not be able to deal directly with them . Finally,
according to Huyser, he told the employees that the coal
business was competitive , and anything that drove the
Company's costs up would put the Company in a non-
competitive position , and if "we could not sell coal at a
profit, we would not sell coal."
Even assuming , arguendo , that Company President
Huyser said nothing more than he admitted saying in his
testimony , I find that what he admitted saying constitut-
ed a threat to close the mine if the employees selected
the Union to represent them, and not a prediction.
NLRB v. Gissel Packing Co., supra. In effect, by saying
that the mine would be put in a noncompetitive position,
and would be closed , if anything drove its costs up,
Huyser was saying that he would not negotiate with the
Union . Stripped of its circumlocution , the plain meaning
of Huyser 's remark was that he would not negotiate with
the Union concerning any matter which might increase
the Company 's costs, and if the Company's costs were
increased , he would close the mine as being noncompeti-
tive . The threat of reprisal if the employees selected the
UMWA as their collective-bargaining representative may
have been veiled , but it was thinly veiled , and it was
clearly a threat of reprisal , not a prediction based on his
belief as to demonstrably probable consequences beyond
his control.
Accordingly, I find that Company President Huyser's
remarks on or about September 15, 1986, concerning the
consequences of his employees selecting the UMWA as
their collective-bargaining representative, interfered with
the employees ' exercise of their Section 7 rights, and vio-
lated Section 8(a)(1) of the Act.
G. Threat by Mine Manager Dan Lebo
Jon McCarty , an employee of Superior Coal Compa-
ny, testified that on September 21, 1986 , the day after
Dennis Bregar had been terminated , Mine Manager Dan
Lebo said that it was his understanding with James
Huyser that getting rid of Bregar "would calm the prob-
lems with the union down around the coal company."
Lebo, however, testified that Huyser told him that he
was firing Bregar because he had missed work on Sep-
tember 19, 1986 , after being warned that his next absence
would be cause for termination. Of the two , I find that
Jon McCarty is by far the more credible witness. Mine
Manager Lebo consistently minimized his knowledge of
who was involved in the union activities at the mine, and
his involvement in the termination of Bregar and Nupp,
and the layoff of nine other union supporters on Septem-
ber 26, 1986. I do not find his testimony to be credible
when it concerns his personal involvement in any aspect
of the alleged unfair labor practices which took place at
the Superior No. 2 mine in September 1986.
The chilling nature of Lebo's admission to McCarty
that Bregar had been fired to calm the union organizing
activities at the mine is obvious. The plain implication of
the admission was that anyone else who actively sup-
ported the Union would suffer the same fate . On its face,
Lebo's admission was an interference in the free exercise
461
of Section 7 rights by McCarty and other employees at
the mine, and , as such , as a violation of Section 8(a)(1) of
the Act.48
CONCLUSIONS OF LAW
1. Superior Coal Company is an employer engaged in
commerce within the meainig of Section 2(2), (6), and (7)
of the Act.
2. International Union of United Mine Workers of
America is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(3) and (1) of
the Act on or about September 20, 1986, by discharging
Dennis Bregar because he had engaged in union organiz-
ing activities, and joined , supported , and assisted the
Charging Party Union.
4. The Respondent violated Section 8(a)(3) and (1) of
the Act on or about September 22, 1986, by discharging
Norman Nupp , because he had engaged in union orga-
nizing activities, and joined, supported, and assisted the
Charging Party Union.
5. The Respondent violated Section 8(a)(3) and (1) of
the Act on or about September 28, 1986, by selecting for
layoff, and laying off, its employees Michael Bingham,
Robert Carr, Jim Deeringer, Eugene Fry, Rick Fry, Jon
McCarty, Kyle Pettyjohn, Norman Simmons, and Carl-
ton Vinsick, because they engaged in union organizing
activities , and joined , supported , and assisted the Charg-
ing Party Union.
6. The Respondent violated Section 8(a)(1) of the Act
during the month of September 1986, by interrogating an
employee concerning his union activities , by threatening
that employees who actively participated in the unon or-
ganizing campaign by the Charging Party Union would
be fired , and by threatening closure of Respondent Supe-
rior No . 2 mine if the employees selected the Charging
Party Union as their representative for collective-bar-
gaining purposes.
7. Paragraphs 5(c), (e), (f), and (g) of the complaint are
repetitive , or have not been proven by a preponderance
of the evidence , and are dismissed.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices , I find that it must be ordered
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
Respondent, having engaged in unfair labor practices
in violation of Section 8(a)(3) and (1) of the Act, shall be
ordered to cease and desist from engaging in these unfair
labor practices.
Respondent, having violated Section 8(a)(3) and (1) of
the Act, by discrimnatorily discharging its employees
481 reject General Counsel's request for a visitatorial clause. The
record does not show it likely the Respondent would seek to evade com-
pliance with any order the Board should issue in this case. Such clauses
are not routinely included in the Board's orders . (See Cherokee Marine
Terminal, 287 NLRB 1080 (1988).)
462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Dennis Bregar and Norman Nupp , on or about Septem-
ber 20 and 22, 1986 , respectively , and by on or about
September 28, 1986 , discriminatorily laying off its em-
ployes Jon McCarty , Kyle Pettyjohn , Norman Simmons,
Jim Deeringer , Robert Carr, Rick Fry , Eugene Fry,
Carlton Vinsick , and Michael Bingham, shall offer them
immediate and full reinstatement to their former jobs or,
if those jobs no longer exist , to substantially equivalent
positions , without prejudice to their seniority or any
other rights or privileges previously enjoyed , and make
them whole for any loss of earnings and other benefits,
computed on a quarterly basis from the date of discharge
or layoff, to the date of a proper offer of reinstatement,
less any net interim earnings , as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded , 283 NLRB
1173 (1987).4°
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed5o
ORDER
The Respondent , Superior Coal Company , Lovilia,
Iowa , its officers, agents, successors , and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about their
union activity and support.
(b) Threatening employees with retaliatory closure of
Superior Coal Company 's Superior No. 2 coal mine if
the employees select the International Union of United
Mine Workers of America as their exclusive representa-
tive for the purpose of collective bargaining.
(c) Threatening with discharge or any other form of
retaliation , or discharging or laying off employees be-
cause they join, support, or assist a union , or otherwise
engage in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection.
(d) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
*B In accordance with the Board's decision in New Horizons for the Re-
tarded, supra, interest on and after January 1 , 1987, shall be computed at
the "short-term Federal rate" for the underpayment of taxes as set out in
the 1986 amendment to 26 U.S C § 662 . Interest on amounts accurued
prior to January 1, 1987, the effective date of the 1986 amendment to 26
U.S.C. § 6621), shall be computed in accordance with Florida Steel Corp.,
231 NLRB 651 (1977).
50 If not exceptions are filed as provided by Sec. 10246 of the Board's
Rules and Regulations, the findings, conclusions , and recommended
Order shall, as provided in Sec . 102 48 of the Rules, and adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Dennis Bregar, Norman Nupp , Michael
Bingham , Robert Carr, Jim Derringer , Eugene Fry, Rick
Fry, Jon McCarty, Kyle Pettyjohn , Norman Simmons,
and Carton Vinsick immediate and full reinstatement to
their former jobs or, if those jobs no longer exist , to sub-
stantially equivalent positions , without prejudice to their
seniority or any other rights or privileges previously en-
joyed , and make them whole for any loss of earnings and
other benefits , computed on a quarterly basis from date
of discharge to date of proper offer of reinstatement, less
any net interim earnings , as prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950 ), plus interest as comput-
ed in New Horizons for the Retarded, 283 NLRB 1173
(1987), as set forth in the remedy section of this decision.
(b) Remove from its files any reference to the unlawful
discharges of Dennis Bregar and Norman Nupp, and
notify the employees in writing that this has been done
and that the discharge will not be used against them in
any way.
(c) Preserve and, or request , make available to the
Board or its agents for examination and copying , all pay-
roll records , social security payment records , timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Superior No. 2 coal mine , in or near Lo-
vilia, Iowa, copies of the attached notice marked "Ap-
pendix ." 51 Copies of the notice , on forms provided by
the Regional Director for Region 18, after being signed
by the Respondent 's authorized representative , shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted . Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced , or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that sections 5(c), (e), (f), and
(g) of the complaint are dismissed because they have not
been proven by a preponderance of the evidence.
5' If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."