Swan Coal Co.

National Labor Relations Board - Board Decisions

Aug 2, 1984

271 N.L.R.B. 862 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Swan Coal Company and United Mineworkers of
America. Cases 9-CA-17926, 9-CA- 19032, and
9-RC- 13948
2 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 10 August 1983 Administrative Law Judge
Robert A. Giannasi issued the attached decision.
The Respondent filed exceptions and a supporting
brief, the General Counsel filed cross-exceptions
and a supporting brief, the Charging Party filed a
brief in response to the Respondent's exceptions,
and the Respondent filed a brief in opposition to
the General Counsel's cross-exceptions.
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,' and
conclusions, as modified herein, and to adopt the
recommended Order.
1. The judge concluded that the Respondent vio-
lated Section 8(a)(1) when Supervisor Bruns testi-
fied in the presence of employees at a representa-
tion hearing held in November 1981 that a reduc-
tion in work hours was prompted by the employ-
ees' display of union badges. We find merit in the
Respondent's exception to the finding that this tes-
timony violated the Act. In light of the facts that
the statement was made in a prior Board proceed-
ing, under oath, and in response to a question put
by counsel, that it was not specifically alleged as a
violation in the complaint, and that the General
Counsel stated on the record in this proceeding
that it was being introduced only as a "statement
against interest" to support the allegation that the
hours reduction itself was unlawfully motivated,
we reverse the judge's finding that Bruns' testimo-
ny violated the Act.
2. The judge found that, sometime in November
1981, Supervisor Bruns told employee Allberry
that certain employees who opposed unionization
did not "appreciate" Allberry's prounion position
and that Bruns could not assure Allberry's safety
on the job. The judge also found that Supervisor
Nelson asked employee Buchanan why he had
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.
271 NLRB No. 140
stopped to speak to a group of union advocates
who had gathered for one of their frequent proun-
ion rallies outside the mine's main entrance, and
that Nelson then asked Buchanan to "stop by" in
the future to tell Nelson "what was going on." In
addition to finding that the statement to Allberry
constituted an unlawful threat of physical harm and
that the statement to Buchanan contained an un-
lawful interrogation and request that Buchanan
report on future union activities, the judge found
that both conversations conveyed the impression
that the Respondent had been engaging in surveil-
lance of union activities. We find merit in the Re-
spondent's exceptions to the finding of impressions
of surveillance in these two statements.
We find that Allberry's prounion stance was a
matter of public knowledge, for he was an open
union advocate and prominently displayed a union
button on his work clothes from the time of the
Union's election petition until the date of the elec-
tion. Accordingly, we conclude that Bruns' mere
reference to that stance did not tend to convey the
impression that management had acquired sensitive
information from unknown sources, and we reverse
the finding that this reference violated the Act.
Likewise, the rally at which Buchanan spoke to
union advocates was one of a series of similar
events openly held at an entrance gate that was
used by both employees and supervisors. Because
employees who engaged in these activities were
aware that they were in plain view of supervisory
personnel who frequently and appropriately passed
by the rally site, Nelson's statement that he had
seen Buchanan in conversation there did not tend
to imply that management had been engaged in
covert observation. Accordingly, we reverse the
finding that this portion of Nelson's remarks violat-
ed the Act.
3. The judge concluded that the Respondent's
unlawful conduct warranted a bargaining order
under NLRB v. Gissel Packing Co., 395 U.S. 575
(1975), a conclusion which we affirm. 2 The Gener-
al Counsel, however, excepted to the judge's ap-
parently inadvertent failure to determine on what
date the Respondent's bargaining obligation began.
The General Counsel argues that the duty to bar-
gain arose on 21 October 1981, but we shall date
2 In affirming the judge's imposition of a bargaining order, we find it
unnecessary to rely on his finding that the work force constituted a
"small unit." Furthermore, in view of the fact that the Union enjoyed a
card majority before the election and that the Respondent's conduct
clearly had "the tendency to undermine majority strength and impede the
election processes," we find it unnecessary to reach the judge's further
finding that the unfair labor practices were also the so-called Category I
"outrageous" and "pervasive" variety. See Gissel, 395 U.S. at 613-614.
We do not adopt his definition of category I Gissel cases. See our respec-
tive opinions in Gourmet Foods, 270 NLRB 578 (1984).
862
SWAN COAL CO.
the bargaining obligation as of 27 October 1981.
The judge found that the Union attained majority
support on 20 October, that it mailed a bargaining
demand to the Respondent on 21 October, that the
Respondent began committing unfair labor prac-
tices on either 21 or 22 October, and that it re-
ceived the bargaining demand on 27 October. Be-
cause the record does not disclose any unfair labor
practices that occurred before the demand's receipt
that are not otherwise individually remedied by the
following Order, we conclude that the Respond-
ent's bargaining obligation began on the date that it
received the Union's majority-supported demand
and was simultaneously engaging in unfair labor
practices calculated to undermine that support. See
Doug Hartley, Inc., 255 NLRB 800, 801 (1981). 3
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusions of Law
7 through 10, and renumber present Conclusions of
Law 9 and 10 accordingly.
"7. The following employees constitute a unit
appropriate for collective bargaining within the
meaning of Section 9(b) of the Act:
"All production and maintenance employees
employed by Respondent at its Valeski, Ohio
mine, preparation plant, loading facility, and
repair shop, including reclamation employees,
but excluding all office clerical employees, and
all professional employees, guards and supervi-
sors as defined in the Act.
"8. Since 20 October 1981, the Union has been
designated by a majority of the employees in the
above-described unit as their exclusive representa-
tive for the purpose of collective bargaining within
the meaning of Section 9(a) of the Act.
"9. By virtue of the misconduct occurring be-
tween the filing of the election petition on 23 Octo-
ber 1981, and the election on 29 December 1981, as
set forth above, the Respondent has interfered with
a free election.
"10. By refusing on 27 October 1981, and at all
times thereafter, to recognize and bargain with the
Union, and by committing serious unfair labor
practices to that end, the Respondent has violated
Section 8(a)(5) and (1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
s However, since we have found in agreement with the judge that the
Respondent's August 1982 layoffs violated Sec. 8(aX3), we find it unnec-
essary to pass on the General Counsel's futher allegations that they also
violated Sec. 8(a)(5).
Order of the Administrative Law Judge and
hereby orders that the Respondent, Swan Coal
Company, McArthur, Ohio, its officers, agents,
successors, and assigns, shall take the action set
forth in the recommended Order.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNSI, Administrative Law Judge.
Cases 9-CA-17926 and 9-RC-13948 were first tried in
Athens, Ohio, on November 8, 9, and 10, 1982. After
completion of the hearing, a new complaint was issued in
Case 9-CA-19032. Pursuant to a motion filed by the
General Counsel, I issued an order consolidating the
latter case with the original one and reopened the matter
for another hearing. The second hearing was held on
April 18 and 19, 1983, in Athens, Ohio.
The consolidated complaint alleges that Respondent
violated Section 8(a)(1) of the Act by various acts of co-
ercion, Section 8(a)(3) and (1) of the Act by discharging
three union adherents, laying off some nine other em-
ployees, and other acts and conduct, all for discriminato-
ry reasons, and Section 8(a)(5) and (1) of the Act by fail-
ing to bargain with the Union which had obtained au-
thorization cards from a majority of Respondent's em-
ployees. The General Counsel seeks a bargaining order
because it asserts that Respondent's unfair labor practices
improperly interfered with a representation election held
among the employees on December 29, 1981, and pre-
clude a free election. The Charging Party Union filed
objections to the election which ended in a tie vote of 15
for the Union and 15 against. There were no challenged
ballots. Respondent denies the essential allegations in the
complaint. The parties filed two sets of briefs which I
have read and considered.
Based on the entire record, including the testimony of
the witnesses and my observation of their demeanor, I
make the following
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, an Ohio corporation, is engaged in the
mining of coal at its facility in McArthur, Ohio. During
a representative 12-month period, Respondent had pur-
chased and received products, goods, and materials
valued in excess of $50,000 from other enterprises locat-
ed in the State of Ohio, each of which other enterprises
received such products, goods, and materials from points
outisde the State of Ohio. Accordingly, I find, as Re-
spondent admits, that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
1. THE LABOR ORGANIZATION
The Charging Party Union (the Union) is a labor orga-
nization within the meaning of Section 2(5) of the Act.
863
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
111. THE UNFAIR LABOR PRACTICES
Some time in October 1981, employee James Dailey
contacted a representative of the Union about organizing
Respondent's employees. A meeting was held on Octo-
ber 15, 1981, at Dailey's home. Those in attendance in-
cluded two union representatives and some 9 or 10 em-
ployees, including Dailey, Paul and Phillip Martin,
Lester Eugene Haybron, Eddie Mullins, Jack Allberry,
Rick Zimmerman, and Leonard Burris. At the meeting a
number of the employees signed cards authorizing the
Union to represent them. At a subsequent meeting in
Logan, Ohio, in late October, more cards were signed.
Prounion buttons, signs, and bumper stickers were also
distributed at the Logan meeting.
In late October, some employees began to wear union
buttons openly at Respondent's mine site. Employees
Phil and Paul Martin, Dailey, Haybron, Burris, Zimmer-
man, Allberry, Gene Coleman, Virgil Jackson, and
Donnie Waldren all wore buttons. With the exception of
Allberry, who was a mechanic, most of the employees
who wore union buttons were equipment operators. Sev-
eral of the employees, including the Martins, Zimmer-
man, Haybron, Jackson, and Allberry, also placed
bumper stickers on their cards or trucks which were
parked on Respondent's premises during the working
day. Haybron also placed prounion stickers on his lunch-
box and thermos.
By October 20, 1981, 16 of Respondent's 30 employees
had signed cards authorizing the Union to represent
them in collective bargaining. By letter dated October
21, 1981, the Union informed Respondent that it repre-
sented a majority of the employees and requested that
Respondent recognize and negotiate with it. The letter
was received on October 27, 1981. The Union also filed
an election petition with the Board on October 23, 1981;
it was received by Respondent on October 28, 1981.
Throughout the period between late October and late
December, when the Board-conducted election was held,
the prounion employees met regularly before work for
rallies on public property near the sole entrance to Re-
spondent's mine. At these rallies signs were displayed
and union materials were distributed. Respondent's su-
pervisors and management officials who drove by the en-
trance were able to observe the employees engaged in
union activity.
A. The Alleged Violations by Mine Manager Ernest
Bruns
Paragraph 5 of the complaint alleges numerous viola-
tions on the parts of Bruns. Most of the allegations were
supported by the testimony of employee witnesses. They
were generally credible and candid witnesses whose tes-
timony was not impeached on cross-examination. Bruns
essentially made general denials that he had ever made
the coercive statements attributed to him. In some cases
he responded to questions of counsel phrased in terms of
whether he could recall any such incidents. He generally
was not as detailed or candid in his testimony as were
the employee witnesses. Based on my assessment of his
unreliability as a witness, and in view of the testimony of
several employee witnesses that he did engage in coer-
cive conversations with employees, I do not credit
Bruns.
Eugene Coleman testified that in October, about the
time he signed a union authorization card, Bruns ap-
proached him on the mine site and asked him if he knew
anything about the Union. Coleman said he did not.
Bruns also asked if anyone had approached him to sign a
card. Coleman replied in the negative. Bruns then asked
Coleman to tell him if anyone did approach him and to
"tell him who they were." Coleman replied that he
would. He also instructed Coleman not to sign a union
card. Bruns further accused the men of "stabbing him in
the back." There is also testimony from Eugene Coleman
that Bruns approached him and employee Woody Zinn
on another occasion shortly before the election. Bruns
spoke to them about the Union and he said, according to
Coleman, "We'd better straighten up because we wasn't
going to be working at any other mine, because they
knew who was working at Swan and who wasn't."'
Bruns' remarks to Coleman constitute unlawful and
coercive interrogation. Also unlawful was Bruns' request
that Coleman report to him the identity of people who
approached him about the Union. See Arrow Automotive
Industries, 256 NLRB 1027, 1033 (1981). Finally, Bruns'
threat that the employees would not work in another
mine because of their union activity not only suggested
blacklisting but also carried the implied threat of dis-
charge. They would have no reason to fear blacklisting
unless they lost their jobs. Such conduct is unlawful. See
Captain Nemo's, 258 NLRB 537, 541 (1981).
On October 21 or 22 Bruns was in the scale house
with several other employees. Employee Leonard Burris
walked in and Bruns asked him for his father's phone
number. Burris asked why and Bruns said, "I hear you're
the main instigator of this union bullshit." Bruns said that
he wanted to let Burris' father know what was going on.
Bruns also told Burris he would be "blacklisted" and
unable to get a job in any strip mine in the area. Bruns
also stated that even if Burris obtained unemployment
compensation benefits, they would "run out" and he
would be "without anything." Burris denied he had any
knowledge of union activity.2
Bruns' remarks set forth above clearly establish a vio-
lation of Section 8(a)(l) in that they create the impres-
sion of surveillance. See Overnite Transportation, 254
NLRB 132, 133 (1981). In addition, Bruns' threat that
I Coleman's testimony was not contested on cross-examination and he
appeared to me to be an honest witness. Bruns did not specifically con-
trovert Coleman's testimony except that aspect of it in which he is ac-
cused of threatening the blacklisting of Coleman and saying that union
supporters were stabbing him in the back. Bruns also testified that his
conversation with Coleman dealt primarily with the latter's desire for
more hours. As I have indicated, I did not find Bruns to be a credible
witness. I therefore credit Coleman's testimony.
2 The above is based on the testimony of three employee witnesses,
Burris, Dailey, and Waybright. Bruns' testimony is not significantly at
odds with the above except that he tended to downplay the antiunion
character of his remarks. Bruns testified that he told Burris, "I want to
talk to your father. He got you the job here, and now you're getting into
something here that you're going to raise the costs of the mine approxi-
mately $4 a ton, which the mine cannot bear." He did not controvert the
testimony concerning Burris being "blackballed." To the extent that
Bruns' testimony differs from that of the mutually corroborative testimo-
ny of the employee witnesses, I do not credit it.
864
SWAN COAL CO.
Burris would be blacklisted by other employers for his
union activity had the reasonable tendency to coerce
him.
There is also evidence that Bruns interrogated and
threatened employee Delmar Waybright the same day as
the confrontation between Bruns and Burris. According
to the credible testimony of Waybright, Bruns asked him
if he had signed a card for the Union. Waybright said,
"No." Bruns told Waybright to get off his "duff and put
a stop to this" or the mine would close down. Bruns tes-
tified that he could not recall ever asking Waybright if
he had signed a union card but was not asked about the
remainder of Waybright's testimony. I found nothing
that would impeach Waybright's testimony. I thus credit
his testimony.
Bruns' interrogation of Waybright was not based on
any lawful purpose and was accompanied by a threat of
closure of operations. The threat was unaccompanied by
any factual basis which would attribute it to reasons
other than retaliation for union activity. Accordingly, I
find both the interrogation and threat of closure unlawful
violations of Section 8(a)(l) of the Act.
Employee Jack Allberry testified that Bruns spoke to
him about his involvement with the Union only one
time. This was in November near the shop where he was
working. Bruns stated that several nonunion employees
did not "appreciate" his prounion position and that he,
Bruns, could not assure Allberry's "safety on the job."
Foreman Willard Cumbo was also present. Cumbo said
nothing at the time but disassociated himself from Bruns'
remarks in a conversation with Allberry some 2 or 3
weeks later. Bruns denied ever making such a statement
to Allberry. Cumbo did not testify about either the
Bruns statement or a subsequent conversation with All-
berry. Thus Allberry's testimony on this latter point was
uncontroverted. Accordingly, and because I found Bruns
not to be a reliable witness, I credit Allberry's account
of the entire conversation with Bruns.
Bruns' statement implied that he knew and was con-
cerned about the views of the employees concerning the
Union. This created the impression of surveillance of
union activities and was thus unlawful. In addition,
Bruns' suggestion that Respondent would not protect
Allberry from possible physical harm was also coercive.
It is unclear on this record whether there was violence
or threats of violence betwen pro and antiunion employ-
ees. But there certainly was no evidence that Respondent
was powerless to prevent physical violence, at least on
its own premises. Nor was there any reason given by
Bruns as to why the remark was called for. Thus Bruns'
suggestion that he would not protect Allberry was a gra-
tuitous attempt to coerce Allberry into foresaking his
union activities and an unlawful threat under Section
8(a)(1) of the Act.
At one point, in November 1981, Bruns spoke to em-
ployee Lester Haybron while he was giving the latter a
ride in his pickup truck. Bruns told Haybron that wheth-
er or not the Union succeeded in obtaining representa-
tion rights "there was going to be a lot of people get
hurt in it." Bruns also asked why the employees wanted
a union. Haybron said "for the benefits and the money."
Bruns then replied, "You can't take the wealth from the
wealthy" and called Haybron a "communist."
In a related incident sometime in January 1982, after
the election, prospective employee John Beck spoke to
Bruns about obtaining work. He had had an earlier con-
versation with Bruns some 2 weeks before. On this occa-
sion in January, Bruns told Beck that he would not be
employed because he was a friend of Lester Haybron.
Haybron had sent Beck to Bruns in the first place and
Beck had used Haybron as a reference. Bruns called
Haybron a radical and a "communist." He stated that he
thought Beck was also a union supporter and he did not
want Beck working for Respondent.
The above is based on the credited testimony of Hay-
bron and Beck who were not cross-examined concerning
the above portions of their testimony. Bruns' only specif-
ic testimony, which might possibly bear on this issue,
was his concession that he had had conversations with
Haybron but did not call him a communist. Bruns did
not controvert Beck's testimony, which in one particu-
lar-Bruns referring to Haybron as a "communist"-
tends to support Haybron's testimony that Bruns made
the same accusation to him directly. In these circum-
stances, I credit both Haybron and Beck.
Bruns' remarks to Haybron were clearly unlawful. His
threat that people would get hurt implied that Respond-
ent would retaliate against the employees because of the
union activity. His interrogation of Haybron in the same
conversation was also unlawful as it was undertaken in
the context of a threat and with no lawful purpose being
given for the questioning. Such conduct therefore violat-
ed Section 8(a)(1) of the Act. Bruns' remarks to Beck
were also unlawful. Bruns stated that he would not hire
Beck because he knew Haybron and the implication was
that Bruns suspected Beck was prounion as was Hay-
bron. The statement that an employer would refuse to
hire an applicant because of real or suspected union af-
filiation is violative of Section 8(a)(l) of the Act.
According to the testimony of employee Eddie Bu-
chanan, Bruns approached him and other employees on
one occasion before the election and told them that they
had to vote against the Union "if we wanted to keep our
jobs." He also attributed to Bruns the statement that
"before the union was voted down, that he would have
15 new faces out there." Buchanan was not cross-exam-
ined on this point. Bruns testified he would not recall
much about his conversations with Buchanan but denied
telling him "there would be 31 new faces around here."
I find, based on Buchanan's testimony, which I found
credible on this point, that Bruns told employees that
they should vote against the Union if they wanted to
keep their jobs. This statement was an unlawful threat of
retaliation violative of Section 8(a)(l) of the Act. I am
unable to determine what else was said about new faces
on the job but I believe something to that effect was
mentioned. Even though I do not make specific findings
on that aspect of Buchanan's testimony, I believe some-
thing was said about new faces and this reinforced his
testimony that Bruns meant to threaten the employees
with loss of work.
865
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In November 1981, Bruns had a conversation about
the Union with employee Anthony Breeze. Bruns told
Breeze that Respondent could not afford the Union and
that he should not be involved in union activities. Ac-
cording to Breeze, Bruns also told him that he "might be
able to get a raise or would be getting a raise .... "
Breeze did not elaborate any further on the conversation.
Bruns testified he did not recall any such conversation.
Even accepting Breeze's testimony, I do not find a
violation in Bruns' remarks. Breeze's testimony concern-
ing a possible raise was sketchy and not placed in con-
text. I am thus unable to conclude that a raise was prom-
ised to Breeze if he abandoned the Union.
B. The Violations Committed by Owner James
Graham
Several employees testified concerning a speech made
by James Graham, the owner of Respondent, on Decem-
ber 28, 1981, the day before the election, to assembled
employees. Their testimony, which was mutually cor-
roborative and credible, establishes that Graham argued
that he could not afford to pay union wages and that he
showed employees copies of his tax returns to support
the position that his was a marginal operation. Graham
also told employees that he would not bargain with the
Union if the employees selected it. He also stated that, if
the employees did select the Union, he would close the
mine and bring in a construction company also owned
by him to reclaim the land. Graham also told employees
that, if they tried to find other jobs after leaving Re-
spondent, they would not be able to find work because
their union activity would be known to other employers
in the area. He stated that the employees would have the
"kiss of death" on them.3
Graham's remarks in his speech to employees amount-
ed to unlawful threats of closure of operations. His asser-
tion of economic peril was not supported in this hearing
by any factual basis or documentary evidence. There
was no assertion that the closure would be caused by cir-
cumstances outside his control. Nor was it shown that
union representation itself would cause any kind of eco-
nomic difficulties. After all, the only result of a favorable
union vote was a requirement that Respondent bargain
with the Union. Graham's threats were thus violative of
3 Graham's denial that he referred to negotiations or the likelihood of
Respondent ceasing operations came in testimony which I considered
evasive, self-serving, and lacking in candor. His testimony cannot be
credited over the mutually corroborative testimony of employee wit-
nesses. Moreover, his testimony conflicts with, or at least is not corrobo-
rated by, that of other management officials who were present and testi-
fied about the speech. Bruns testified that he could not recall in any way
what Graham said in his speech; yet Graham claimed that Bruns an-
swered some questions from employees during the speech at Graham's
request. Cumbo also testified he could not recall the statements attributed
to Graham by the employee witnesses. Cumbo did admit on cross-exami-
nation that Graham said that "I will not personally negotiate with the
UMW." This tends to corroborate the employee witnesses and refutes
Graham's testimony. Supervisor Gary Nelson was asked only if Graham
said he would close the mine. Nelson testified Graham did not say that,
but said only that he could not afford to run it under the Union. Nelson
admitted that he told employees that he believed Graham would close
the mine in conversations with them dealing with the Union. I view Nel-
son's testimony as somewhat supportive of that of the employees, particu-
larly since he did not refute the testimony that Graham threatened to
blacklist employees and that he would not bargain with the Union.
Section 8(a)(l). See NLRB v. Gissel Packing Co., 395
U.S. 575 (1969). Graham even rejected negotiations. His
statement that he would not negotiate with the Union,
even if it won the election, was also violative of Section
8(a)(l) in that it demonstrated a refusal to abide by the
law and demonstrated to employees the futility of sup-
porting the Union. Finally Graham threatened that em-
ployees would be blacklisted and would not be able to
find employment if they selected the Union. Such threats
are coercive and violative of Section 8(a)(1) of the Act.
The next day, the day of the election, Graham ap-
proached a number of the operators, called on them to
meet with him in the pickup truck he was driving, and
talked to them individually about the election. Nine em-
ployees testified that he made coercive statements to
them. Their testimony is mutually corroborative.
Graham himself concedes that he questioned these em-
ployees about their union activities. Many of his state-
ments to employees were repetitive of the unlawful re-
marks Graham made in his speech the day before. In
view of my credibility determinations concerning the
speech of the day before, I credit the testimony of the
employee witnesses.
Graham told five employees, Phil Martin, Virgil Jack-
son, Breeze, Waldren, and Burris that he would close the
mine if the Union won the election. In the course of a
45-minute conversation, Graham told Jackson that he
would never sign a UMW contract and, if Jackson sup-
ported the Union, he would never get a job in any other
strip mine in the area. He also threatened employee Bu-
chanan that Buchanan would lose his job if he voted for
the Union. Such threats were similar to threats made by
Graham the day before and are clearly unlawful.
Graham told employee Jackson that things would be
better if the Union lost the election. He told employee
Dailey that working conditions would improve and that
Graham would think about paying the employees more
money if the Union were defeated. Graham also prom-
ised employee Delmar Waybright he would "take care"
of him if the Union were defeated. This statement came
after Waybright told him, in response to a question from
Graham, that he did not support the Union. Graham also
asked employee Zimmerman why he supported the
Union and why Zimmerman had not contacted him di-
rectly for a raise. Graham's questioning of employees
was unlawful as it was not done for any lawful purpose,
was not accompanied by assurances against reprisals and
was undertaken in the context of other unfair labor prac-
tices. His promise of benefits to employees were also vio-
lative of Section 8(a)(1). 4
C. The Violations Committed by Foreman Willard
Cumbo
The complaint alleges that Respondent violated the
Act by ordering employees to remove union posters and
4 I do not believe that Graham's remarks to employee Zimmerman
constituted an unlawful solicitation of employee grievances. Nor do I
find it unlawful that Respondent kept a list of employees names with
their union affiliation next to them. Phil Martin saw it while Graham was
talking to him in the truck but there was no reference to the list. In both
situations I have found other aspects of Graham's remarks unlawful.
866
SWAN COAL CO.
bumper stickers from their private vehicles which were
parked on Respondent's premises during the workday. It
is uncontradicted that Foreman Willard Cumbo told em-
ployee Burris to remove a prounion sign from his car,
sometime in October 1981. It is also uncontradicted that
shortly after the election, Cumbo told employees Virgil
Jackson and Lester Haybron to remove prounion
bumper stickers from their vehicles.
Displaying prounion signs on private vehicles is pro-
tected concerted activity. There is no evidence that dis-
playing the signs interfered with discipline or production
since the employees' vehicles were parked where em-
ployee vehicles were normally parked on the employer's
premises. There was no legitimate business reason ad-
vanced for preventing the employees from displaying
prounion signs on their private vehicles. Thus Reespond-
ent's prohibition against displaying prounion signs was
improper interference with protected activity and viola-
tive of Section 8(a)(1) of the Act.
Prior to the union campaign, the Respondent kept no
specific records concerning tardiness and absenteeism.
On or about December 15, 1981, Foreman Cumbo an-
nounced to employees that Respondent was changing its
policies concerning tardiness and absenteeism. He stated
that he was starting to keep written records of absences
and tardiness and that these records would be available
to future employers should the employees leave Re-
spondent. This program was implemented, according to
Cumbo, and it was his idea.
Cumbo testified that he announced and implemented
the new recordkeeping policy because "we were having
a problem with tardiness, absenteeism, quitting before
quitting time, the breaks they were taking were too
long." He estimated that Respondent was losing 30 to 40
minutes per day of production time per man because of
lax attendance and absenteeism. On cross-examination,
Cumbo admitted he had no basis for this estimate except
"adding it up in my head." He also admitted that he did
not watch each employee report to work on his return
from lunch. Moreover, Respondent submitted no docu-
mentary evidence to support Cumbo's testimony. Nor
did Cumbo or any other management official offer any
specific evidence of legitimate absenteeism and attend-
ance problems. It does not appear that Cumbo enforced
his policy change after the election. He testified that on
January 10, after the election, several employees came in
from their work areas early for lunch and he made no
notations in the files of the employees. Cumbo testified
that he kept records pursuant to his change in policy, al-
though they were very limited records, and that the rec-
ordkeeping procedure was still going on. It seems obvi-
ous to me, in analyzing Cumbo's testimony, that he had
no serious and legitimate business concerns in announc-
ing and implementing the recordkeeping changes. His
testimony on this issue was not credible or reliable. I do
not believe that Cumbo announced or implemented this
change in policy for the reasons he stated.
In view of my rejection of Cumbo's testimony on this
point and his reasons for announcing and implementing a
change in recordkeeping policies and in view of the
other unfair labor practices committed by Cumbo and
Respondent's other officials involving retaliation against
employees for supporting the Union, and in view of the
timing of the change shortly before the union election, I
find that the change was undertaken to coerce employees
in violation of Section 8(a)(1) of the Act.
In November 1981, Respondent announced and imple-
mented a new policy on employee breaks. Prior to that
point, the employees took breaks at 9 a.m. and 3 p.m.,
and employees were permitted to take their breaks to-
gether. Foreman Cumbo announced the change in policy
to employees. Under the new policy employees were to
take their breaks, individually, on a staggered basis. The
rule was also applied to the two employees on the night
shift who were not permitted to take their breaks togeth-
er. On the day Cumbo announced the change, employee
Haybron asked Cumbo why the break system was
changed. Cumbo said the change was made because
"there was too much talk about the union during
breaks." Haybron's testimony concerning this conversa-
tion was uncontradicted.
About 2 or 3 weeks later the old individual break
system was put back into effect. No reason was given to
the employees for the reversion to the old system.
Cumbo, however, testified that the new staggered breaks
lasted some 3 hours and he could not police the breaks.
The evidence is overwhelming that the staggered
break system was announced and instituted to curtail
union activity. Cumbo admitted as much to employee
Haybron. Owner James Graham also conceded that the
change was instituted because Bruns and Cumbo "were
trying to keep the people from an election hearing and-
and were trying to get more productivity out of the
mine."5 In addition, the change in policy came about
shortly after the union activity began and in the midst of
numerous unfair labor practices. There is also evidence
that Cumbo failed to enforce the new rule when he ob-
served nonunion employees taking their breaks together.
Respondent's contention that there was a productivity
based reason for the change is without merit. No such
reason for the change was mentioned to employees, and
common sense, as well as Respondent's rather quick re-
version to the old system, demonstrates that, if anything,
the change hurt productivity. In many cases, the ma-
chines had to work in tandem and, if one operator was
on a break, the other machine operator could not per-
form at full efficiency. Cumbo himself admitted that the
staggered breaks caused problems. In these circum-
stances, Respondent's change in break policy violated
Section 8(a)(3) and (1) of the Act. Moreover, Cumbo's
statement to Haybron that the change was occasioned by
"too much talk about the union" independently violated
Section 8(a)(1) of the Act.
Employee Eugene Coleman testified that, in several
conversations with him in November 1981, Foreman
Cumbo questioned him about the Union. Cumbo asked
Coleman how he felt about the Union. When Coleman
answered that he thought the Union was "pretty strong,"
Cumbo responded, "If that's the way its going to be,
S It is likely that there is a transcript error in the above quote. "An
election hearing" should probably read "electioneering." In either case,
however, it appears that the change was instituted because of the Union's
presence on the scene.
867
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there will be 31 of you going down the road talking to
yourself." Employee Delmar Waybright testified that, on
four or five occasions, Cumbo told him that Respondent
would close the mine if the Union won the election.
Waybright and Coleman have been found to be credible
witnesses in other aspects of their testimony and there is
no reason to discredit their testimony as to these conver-
sations. Cumbo denied threatening employees that the
mine would close or that they would lose their jobs.
However, I did not find Cumbo to be a reliable witness.
He was evasive in testifying that he could not recall talk-
ing to employees about the Union and that the employ-
ees brought up the subject. In addition, his explanations
concerning why he implemented certain changes in
policy during the preelection period did not withstand
scrutiny. Moreover, Cumbo's remarks were similar to
unlawful comments made by Bruns and Graham. There-
fore, I do not credit Cumbo's general denials that he
threatened employees.
Cumbo's interrogation of Coleman was accompanied
by a threat that 31 employees would be "going down the
road" if the Union won the election. The latter was an
implicit threat that employees would lose their jobs. He
also threatened Waybright that the mine would be
closed. The threats of retaliation were violative of Sec-
tion 8(a)(1) and the interrogation of Coleman in the con-
text of a threat was also unlawful.
Coleman also credibly testified that, on the day of the
election, Cumbo told him and employee Woody Zinn
that there would be no jobs for them if the Union won
the election. This was similar to other threats by other
management officials and Cumbo himself. It was thus an
independent violation of Section 8(a)(l) of the Act.
D. The Violations Committed by Supervisor Gary
Nelson
Employee Buchanan testified without contradiction
that he complained to Supervisor Gary Nelson about his
hours being cut in October. 1981. Nelson answered that
he and Bruns felt that Buchanan was prounion and that
Buchanan would work a full week only if he convinced
Bruns he was not prounion. Buchanan also testified,
without contradiction, that Nelson told him that the
mine would be closed down if the Union won bargaining
rights. Nelson himself testified that, in numerous conver-
sations about the Union with employees, he told them
that he believed Graham would close the mine. Finally,
Buchanan also testified, without contradiction, that, on
another occasion, Nelson asked him why he stopped to
speak with prounion employees assembled at the en-
trance gate to the mine. Buchanan told Nelson he simply
wanted to find out what was going on. Nelson then
asked him to "stop by again" so he could let Nelson
"know what was going on."
The above uncontradicted testimony establishes that
Respondent violated Section 8(a)(1) of the Act by inter-
rogating employees about union activities, threatening
closure of the mine if the Union won representation
rights, and announcing that an employee's hours were re-
duced because he supported the Union. Nelson's remarks
also created the impression that union activities were
being observed and were thus violative of the Act. Nel-
son's request that Buchanan report to him what he ob-
served after talking with prounion employees was also
violative of Section 8(a)(l) of the Act.
E. Miscellaneous Violations
1. Announcement of reduction and actual reduction
in work hours
On October 28, 1981, the Respondent reduced the
hours of a number of the employees from 58 hours a
week to 30 hours per week. This reduction remained in
effect for about 2 or 3 weeks. The General Counsel al-
leges that the reduction itself was unlawful and violative
of Section 8(a)(3) and (1) of the Act because it was dis-
criminatorily motivated and he also alleges that the an-
nouncement of the reduction was unlawful.
Respondent gave no reason to the employees for the
reduction of hours. Employee Coleman's uncontradicted
testimony is that he asked Bruns on the day the an-
nounced cutback of hours was made the reason for it.
Bruns replied that it was "because of the union." Bruns
said that if the "union got in" the mine would be shut
and that Respondent had "700 tons surplus that they was
going to get rid of before the election." In addition,
Bruns testified at a Board representation case hearing on
November 12, 1981. Many employees were present at
that hearing. Bruns was asked why the reduction was ef-
fectuated. This was his answer:
Well, when the boys started wearing UMWA
badges and so forth, why Mr. Graham, said well we
better use up our inventory of coal. So we didn't
need to strip six days a week.
The above clearly shows that, in his statements ex-
plaining the action, Bruns attributed the reduction in
hours to the onset of the Union. Such statements suggest
retaliation because of union activities and are thus classic
violations of Section 8(a)(1) of the Act.
The evidence is also clear that the reduction itself was
unlawful. Bruns' statements concerning the reason for
Respondent's action are admissions of illegal motive. In
addition, the timing of the change shortly after Respond-
ent first learned of the onset of union activity and the
fact that Respondent committed numerous other unfair
labor practices suggesting retaliation for such activities
confirm the discriminatory character of the action. Not
only was no explanation given to most employees for the
reversion to the 58-hour-per-week schedule, but the fact
that the reduction in hours lasted only 2 or 3 weeks, re-
futes any economic justification for it. Moreover, James
Graham's attempt to explain the reduction not only
failed to withstand scrutiny but confirmed the discrimi-
natory character of the action. He admitted that once the
Union appeared on the scene he decided to reduce in-
ventory preparatory to shutting down the mine. Re-
spondent submitted no documentary evidence to show
that the inventory of coal was at unsually high levels or
that there was a need for a reduction of purely economic
reasons. Moreover, there is evidence that employee Bu-
chanan had his hours cut and was told by Supervisor
Nelson that he could escape the reduction in hours if he
868
SWAN COAL CO.
told Bruns he was not a union supporter. Buchanan did
so and, as a result, he worked a full week. The evidence
is thus overwhelming that the reduction in hours was im-
plemented for discriminatory reasons in violation of Sec-
tion 8(a)(3) and (i) of the Act.6
2. Sending union supporters home early
The General Counsel also alleged that Respondent
violated the Act when it sent two prounion machine op-
erators home after a mechanical breakdown, contrary to
past practice. The evidence shows that normal procedure
during a mechanical breakdown is that the operators
remain at work to assist the mechanic or operate other
equipment, although at times in the past machinists had
also been sent home. Two operators, Phil Martin and
Lester Haybron, testified that, on two separate occasions
on December 3, 1981, their machines broke down and
they were sent home. Martin was sent home at noon and
Haybron was sent home at about 2:30 or 3 p.m. Martin
testified that before he went home he saw a nonunion
employee waiting for his equipment to be repaired.
It is true that Martin and Haybron were known union
adherents who were subsequently discharged. It is also
clear that Respondent was intent on defeating the Union
and retaliating against union supporters. However, there
is no evidence which would show a causal connection
between the union activity of Martin and Haybron and
the fact that they were sent home when their equipment
broke down on December 3. Both returned to ' work the
next morning. In Haybron's case the supervisor of me-
chanics, Nelson observed that Haybron did not seem to
want to help the mechanic and the repairs were going to
take the rest of the day. He did not beleive it useful to
keep Haybron around and there were no spare machines
for Haybron to work on. Nelson testified that "he wasn't
doing me no good" so he suggested that Cumbo send
him home. I find the explanation plausible and I cannot
attribute any antiunion motivation to Nelson in this in-
stance. Martin's testimony on this point was as follows:
"It was the first day of deer season. And I had a flat, and
the foreman kind of told me to go home and go deer
hunting." Cumbo testified that he could not recall ever
having sent Phil Martin home. Moreover, it appears that
there were no spare machines available on December 3.
In view of my finding that the treatment of Haybron on
December 3 was not discriminatory and, because I con-
sider Martin's testimony on this point to be ambiguous, I
do not believe that the treatment of Martin was improp-
er. It appears that, in both cases, the employees were
perfectly willing to take the rest of the day off and there
is no evidence that they were penalized for their union
activity.
Accordingly, I find that the General Counsel has not
proved that Respondent discriminated against Martin and
6 In view of my finding that the reduction of hours in and of itself was
discriminatorily motivated, it is of no import that certain nonunion em-
ployees may also have been affected. See Majestic Molded Products v.
NLRB, 330 F.2d 603. 606 (2d Cir. 1964). Any dispute concerning the
number and identities of employees affected or the amount of backpay
due is to be resolved in the conipliance phase of this proceeding. See
NLRB v. Ironworkers Local 433, 600 F.2d 770 (9th Cir. 1979), cert. denied
445 U.S. 915 (1980).
Haybron when it sent them home before the end of the
workday on December 3, 1981.
3. Discrimination against Jack Allberry
The General Counsel also alleged that Respondent
violated the Act by reducing mechanic Jack Allberry's
customary truck allowance and granting him a smaller
pay raise than other employees.
Allberry used his private truck in performing his
work. Respondent paid him for the use of the truck. It is
undisputed that Respondent's rental payment was cut in
November and December 1981. According to Allberry,
the rental payment was "cut in half" because "they was
going to start basing our truck rental on the amount of
hours we worked instead of by the month." Allberry's
cut in rental payments lasted a "couple of months"
whereas the cut in hours lasted just 2 or 3 weeks. No ex-
planation was given for the return to the original method
of computing the rental payments.
In view of Respondent's discriminatory action in cut-
ting the hours of employees and because Allberry was
informed that the cut in truck-rental payments was relat-
ed to the cut in hours, it is a fair inference that the cut in
truck-rental payments was likewise discriminatory. All-
berry was the only mechanic who regularly wore union
buttons to work and he placed a bumper sticker on his
truck. He circulated union cards and participated in nu-
merous union rallies. Bruns knew of Allberry's prounion
sympathies and had warned Allberry that he could not
assure his safety on the job. Respondent offered no ex-
planation for the cut in the truck-rental payment and
none exists on this record. The cut lasted well beyond
the 2 or 3 weeks that the reduction in hours lasted. In
these circumstances, I find that Respondent's cut in All-
berry's truck rental payment was discriminatory and vio-
lative of Section 8(a)3) and (1) of the Act.
There is also testimony that Allberry, who was the
most senior mechanic, did not receive the normal pay
raise which was given to all employees in January 1982.
He received a 50-cent-per-hour increase instead of $1-
per-hour raise received by other mechanics. Allberry
complained to Graham about this and, the very same day
he complained, Allberry, was notified that he would get
the full S1 increase. According to Allberry, this disparity
in wages lasted for "a couple or three weeks." The only
explanation Allberry received for his lower raise was
from Bruns who said he received less because "anybody
else on the job could do anything I would do." This was
contrary to uncontradicted testimony by Allberry con-
cerning his own experience and his duties. At the hear-
ing, Respondent offered no other explanation for All-
berry's lower pay raise.
In view of Allberry's known union activity, the other
discrimination against him in the matter of his truck
rental payments and the failure of Respondent to explain
its disparate treatment of Allberry, the most senior me-
chanic and the best known union supporter among the
mechanics, I find that Respondent's delay in granting
Allberry a full pay raise was violative of Section 8(a)(3)
and (1) of the Act.
869
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. The Discharges of Phil Martin, Haybron, and
Zimmerman
On January 21, 1982, Respondent fired operators
Philip Martin, Lester Haybron, and Richard Zimmer-
man. The General Counsel alleges that the discharges
were discriminatorily motivated. Respondent alleges that
the discharges were for cause. I agree with the General
Counsel.
The three discharged employees were known union
adherents. All wore prounion buttons at work and
placed prounion bumper stickers on their cars or trucks.
They participated in the union rallies at the entrance to
the mine, handing out literature and carrying signs. Hay-
bron and Martin were particularly vocal in asking ques-
tions during Graham's December 28, 1981 speech to em-
ployees. Haybron suggested that the employees could get
a raise if Graham sold "UMW coal" and, after Graham
pleaded economic problems, he said he had "never heard
a rich man yet say that he had any money." When
Graham said something about people cutting "your nuts
for a dime," Martin retorted that the employees knew
how that felt. Graham responded "what," and Martin re-
peated his statement. Phil Martin was also the Union's
observer during the December 29 election.
On January 21, 1982, Graham made another appear-
ance at the mine site. He spoke to the employees early in
the day. He announced a pay raise for employees and
told them that they would be informed of the amount of
the pay raise by the supervisors. Graham's own testimo-
ny shows his continuing concern about the Union and its
supporters. According to Graham, "the labor force did
not continue to-or just meld together" after the elec-
tion. He referred to the work force as "bifurcated. Those
were the union, not union, still fussing." Graham also
noted that other mines, one of which was the object of a
union campaign, had given raises to its employees. He
told the employees that "unless they worked together
and quit the tomfoolery and really get to work and
produce, I didn't know how much longer we could stay
in business." Graham remained at the mine for the rest of
the day.
On that same day, Cumbo told Martin and Zimmer-
man to move their pans to a location where they would
be working with Delmar Waybright who was operating
a dozer. Waybright had signed a union card on Novem-
ber 12, but he did not wear prounion insignia at work.
Graham had reason to believe that Waybright was
against the Union. It appears that his sister owned the
land the mine was situated on and leased it to Respond-
ent. In a conversation with Graham on the day of the
election, Waybright answered Graham's interrogation by
stating, "I don't like the union, and never did." He also
assured Graham that he could be counted on to vote
against the Union and was told that Graham would "take
care of" him.
About 1:30 p.m. on January 21, Phil Martin's pan de-
veloped a steering problem. Martin stopped his machine
which had blocked Zimmerman's pan. Both employees
stepped down off their machines and surveyed the prob-
lem. They spoke for 2 or 3 minutes, then returned to
their machines and continued working. At this point,
Waybright, who was working nearby, also left his ma-
chine and undertook to clean mud off its tracks. He was
off his machine for about 30 minutes.
Later that same day, about 2 p.m., the two pan opera-
tors, Martin and Zimmerman, were having difficulties re-
moving material because of the hard surface. It was nec-
essary to have Waybright help them by "ripping" the
surface with his dozer. Martin and Zimmerman dis-
mounted their pans, as did Waybright, and communicat-
ed with Waybright as to what they wanted him to do.
There is much evidence that operators must dismount
their machines to communicate in such situations and
that this occurs several times a day. Martin told Way-
bright what he wanted him to do and Waybright agreed.
The conversation lasted about 2 or 3 minutes. 7
According to Cumbo and Graham, they were survey-
ing the area in Cumbo's pickup truck, when they ob-
served Martin and Zimmerman off their machines. They
did not see Waybright who was also off his machine
when the other two operators had dismounted. Neither
Cumbo nor Graham stopped and talked to any of the
employees. They did, however, decide to fire Martin and
Zimmerman for being off their machines.
About 3 p.m., about 1 hour after having observed
Martin and Zimmerman, Cumbo returned to their work-
site and told them that Graham had seen them stopped
and decided to fire them. They both rode back to their
cars with Cumbo. Martin explained that they were off
their vehicles because they had to communicate with
Waybright. Martin also asked about Waybright who had
also been off his equipment. Cumbo stated, "Well, they
say that you were holding Delmar up. He was waiting
on you. You was the one that got them all stopped."
Zimmerman said to Cumbo, "Well, you know why this
is," and Cumbo responded affirmatively.
That same day Respondent fired Lester Haybron.
During the Cumbo-Graham drive around the mine site,
they went to where Haybron was working. According
to Graham, Cumbo told him Haybron was one of the
best operators but said that he was "nothing but trou-
ble." Cumbo described the "trouble" with Haybron as an
"attitude" problem, mostly in questioning Cumbo's judg-
ment on how to proceed with his work. Graham and
Cumbo testified that, on this occasion, they observed
Haybron fill up his pan with only partial loads. Accord-
ing to Cumbo, "one of his favorite tricks was to get a
pan of dirt, go half way out with it, dump it, and come
back and sit." This is apparently referred to as "short
dumping."
During Haybron's break, about 3 o'clock, Cumbo noti-
fied him that he was terminated, and gave him a termina-
tion slip which described his work as unsatisfactory.
When Haybron asked what caused his discharge, Cumbo
responded by asking, "Who was here today?" Haybron
also said he knew "what this is all about" and Cumbo
agreed, "I'm sure you do." Haybron then asked about
the "unsatisfactory work" notation on his discharge slip.
Cumbo responded, "I had to put something down." Hay-
bron pressed Cumbo for a reason. Cumbo then men-
' The above is based on the mutually corroborative and credible testi-
mony of the employees involved.
870
SWAN COAL CO.
tioned Haybron's alleged "short dumping." Haybron
gave Cumbo an explanation and Cumbo agreed that
Haybron had a good point. Haybron also told Cumbo he
was going to take his discharge "to court." Cumbo said
that Haybron had a good case.
Haybron and Martin spoke to Cumbo later in the day.
Cumbo spoke to them separately. He told Martin that he
and Zimmerman "got screwed." He also told Haybron
that he was "one of his best pan operators" and that he
would try to get Haybron put back to work. Still later,
according to Zimmerman, he visited Cumbo at home.
Cumbo told him that he had gotten a dirty deal. The
next day, Cumbo spoke to Waybright and told him that
Martin and Zimmerman had been fired for being off
their equipment and that there had been a charge that
Waybright had also been off his equipment. He then told
Waybright that if he admitted he was off his equipment
talking to Martin and Zimmerman he would have to fire
Waybright. Waybright denied he had been off his equip-
ment.
The above postdischarge conversations were reported
by the four employee witnesses, including Waybright
who had not been fired. Cumbo denied he made the
statements attributed to him, although he did admit talk-
ing to at least three of the four employees. For example,
he conceded that Martin told him he was going to file
charges because of his discharge. The accounts of the
four witnesses tended to confirm the testimony of each.
Cumbo was not a reliable witness as I have explained els-
where in this Decision. His testimony concerning the ob-
jections he had to the three employees who were dis-
charged seemed to me to be vague and unsubstantiated.
In these circumstances, I credit the account of the four
employee witnesses concerning Cumbo's postdischarge
comments.
The evidence clearly establishes that the discharges of
Haybron, Martin, and Zimmerman were unlawful. They
were known and outspoken union adherents. Respondent
had demonstrated union animus and threatened retaliato-
ry action. The timing of the discharges also supports
their discriminatory charcter. They all took place on one
day and on one of owner Graham's rare visits to the
mine. Objections were still pending to the election and
Respondent could well assume that another election
might be ordered. More importantly, the discharges were
effectuated on the same day that Graham authorized a
raise for employees. According to Graham's own testi-
mony, he was motivated to grant the raise by a desire to
stop the "bifurcated" work force which remained divid-
ed after the unresolved union election.
The circumstances of the discharges confirm the dis-
criminatoriy motive. As for the Martin-Zimmerman dis-
charge, neither Cumbo nor Graham spoke to the opera-
tors before they were discharged to find out why they
had dismounted from their machines. Nor did they speak
to Waybright, or consider firing him, although it is clear
that he was off his vehicle at the same time as the other
employees. This disparate treatment is explainable only
because Waybright was thought by Respondent to be an-
tiunion. In addition, there was evidence-even from
Cumbo himself-that operators often were required to
get off their machines to communicate. Cumbo admitted
that he observed such conduct on several occasions but
had never before discharged anyone for being off his
equipment. Neither Zimmerman nor Martin had been
warned or criticized about their work before their dis-
charge. Cumbo attempted to show that Zimmerman had
been warned prior to his discharge. But, on further ques-
tioning, it became clear that the only such instance had
been a conversation Cumbo had with Zimmerman about
a report from Bruns that Zimmerman had run over a big
rock; Cumbo told Zimmerman to "watch the rocks" in
the future and Zimmerman agreed to do so. Zimmerman
had been promoted to several jobs of increasing responsi-
bility and had worked for Respondent since 1978, well
before Cumbo was hired. Cumbo also testified that he
had warned Phil Martin once, about a week before, for
coming in 15 minutes early for lunch. Upon further ques-
tioning, he revealed that Haybron and the rest of the
crew followed Martin, all of whom were early for lunch.
He made no notations of any of these matters in the per-
sonnel files of the employees. Cumbo's attempt to bolster
the discharge decision based on these insignificant epi-
sodes reflects adversely on his reliability as a witness.
Accordingly, I find that the reasons advanced by Re-
spondent for the Martin and Zimmerman discharges
were pretexts.
Haybron's discharge was also unusual. Neither Cumbo
nor Graham was able to specify Haybron's dereliction.
More importantly, if Haybron had been doing something
wrong, it would have been normal-had Respondent had
only legitimate business reasons in mind-for Cumbo and
Graham to speak to Haybron and ask him why he was
operating in the manner he did and perhaps to correct
him. Yet they did not even speak to him before he was
fired. Cumbo, who said that it was he who decided to
fire Haybron, testified that he had talked to Haybron on
previous occasions about "short dumping" and that Hay-
bron explained that he was filling holes in the road. Al-
though at the hearing Cumbo attributed Haybron's short
dumping to an attempt to avoid work, he admitted he
had never accused Haybron of this in the past. Cumbo
also said Haybron began having an "attitude" problem in
early January, but he admitted he never noted the atti-
tude problem in Haybron's personnel file. Cumbo admit-
ted that Haybron had the ability to be a good operator
but stated that "with his attitude he was not." Such a
vague charge was unsupported by evidence of written
warnings or other disciplinary action against Haybron.
And Haybron himself credibly testified that he had never
been warned or criticized for his work or his attitude.
Cumbo's attempt to justify Haybron's discharge is just as
unreliable as his attempt to justify the discharges of
Martin and Zimmerman. In view of the circumstances of
the Haybron discharge which took place immediately
after two other discriminatory discharges, I find Cum-
bo's explanations for it implausible.
Respondent's failure to establish a legitimate basis for
the discharges is also supported by three separate deci-
sions of the Ohio Unemployment Compensation Board of
Review. After appropriate hearings, a Board of Review
referee found, in each of the three cases, that Haybron,
Zimmerman and Martin were discharged without just
871
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause. Although such decisions are not determinative,
they are probative and of some relevance in the determi-
nation of the reasons for a particular personnel decision
in Labor Board hearings. See Western Publishing Co., 263
NLRB 1110 fn. 1 (1982).
In these circumstances, I find that the General Counsel
has shown by a preponderance of the evidence that Phil
Martin, Haybron, and Zimmerman were discharged be-
cause of their union activities and that Respondent has
not shown that they were discharged for cause.
G. The Layoffs of August 20, 1982
On August 20, 1982, at the end of the working day
and without prior notice, Willard Cumbo handed termi-
nation slips to machine operators Paul Martin, Donald
Waldren, Virgil Jackson, Eugene Coleman, Delmar
Waybright, James Dailey, and Leonard Burris, and la-
borer Richard Nickels and mechanics helper Edward
Mullins, advising them that they were being laid off due
to "lack of work." The General Counsel alleges that the
layoffs were discriminatorily motivated in violation of
Section 8(a)(3) and (1) of the Act.8 Respondent alleges
that the layoffs were the result of legitimate business
considerations. I agree with the General Counsel.
All of the terminated employees, with the exception of
Evans, who had been hired after the election, were
active in the Union to the extent of at least signing an
authorization card. Martin, Waldren, Jackson, Coleman,
Dailey, and Burris were particularly active, wearing
prounion buttons, displaying signs in their cars or trucks
and participating in periodic rallies at the entrance to the
mine. Mullins also briefly displayed a prounion badge.
Only Delmar Waybright and Richard Nickels confined
their union support to the signing of cards.
As I have indicated, 16 employees had signed union
authorization cards by the end of October 1981. Two
more signed cards by the time of the December 1981
election. Thus a total of 18 employees had signed cards.
Three of the card signers were unlawfully discharged in
January. As of August 20, 13 card signers remained in
Respondent's employ, including 8 of its 18 operators.
After the layoff was effectuated, of the 10 remaining op-
erators, only one, Glendon Hughes, had signed a card.
Hughes, however, had never manifested any outward
union support. Among the other bargaining-unit employ-
ees, only three who had signed authorization cards re-
mained. Of those, only Jack Allberry, a mechanic who
was subsequently discharged, had openly supported the
Union. Thus, after the layoff, of the 24 employees re-
maining in the bargaining unit only four authorization
card signers, of which only one had been an overt sup-
porter of the Union, were left. The effect of the layoff
therefore was to decimate the remaining union support
among the employees.
Additionally, a significant number of the layoffs were
effectuated without any regard to seniority and the evi-
dence is clear that Respondent did utilize seniority in its
personnel policies. Eugene Coleman credibly testified
s Operator Jeff Evans, who had been hired on August 9, 1982, was
also laid off on August 20. Evans was recalled in November 1982. The
General Counsel has made no allegation concerning his layoff.
that, when he began his employment with Respondent in
June 1981, he questioned Ernest Bruns about the Compa-
ny's policy concerning layoffs and vacations. Bruns re-
sponded that the order of layoffs and choice of vacations
was to be determined by length of service. As an exam-
ple, Coleman offered that in 1981 he requested certain
vacation time which was denied because it had also been
requested by other more senior employees. None of these
assertions was challenged on cross-examination, nor was
Willard Cumbo, Respondent's sole witness on the layoff
issue, questioned on any of these points. This aspect of
Coleman's testimony was thus essentially unrebutted.
Furthermore, although there is nothing in the record
concerning the details of any layoffs by Respondent
prior to August 20, there is evidence that Respondent
did effectuate a layoff in April 1983 involving 13 em-
ployees. On that occasion, all determinations, with the
exception of one, were made according to the length of
service of the employees.
On August 20, only one of the eight operator layoffs
was made according to length of service, that of Jeff
Evans, who was the last operator hired, having been in
Respondent's employ for approximately 10 working
days. Of the 10 operators who remained after the layoff,
only 4 were more senior than the 7 union operators who
were laid off. Of those, only one, Glendon Hughes, had
signed a union card. The other six operators were not
only less senior than the seven laid off, but had been
hired after the December 1981 election. Thus, they were
not only nonunion, but had never had any contact with
the union campaign. The most senior had less than 8
months' service with Respondent.
As I have previously found, Respondent, through its
highest management officials, harbored a clear animus
toward the Union and its supporters. This animus was
manifested through a series of unfair labor practices
which I have found herein. These included not only co-
ercive interrogations, but discriminatory reductions in
hours, dismissals, and unlawful threats of dismissals and
mine closure. Furthermore, at the time of the August
layoffs, objections to the December election were still
pending. Coupling this animus with the facts I have
noted, including the prior unfair labor practices commit-
ted by Respondent, the union adherence of those dis-
missed, the resulting reduction of union adherents in the
remaining work force, and the Respondent's deviation
from its apparent policy of effectuating layoffs according
to seniority, I find that Respondent's desire to rid itself
of union supporters and to discourage union activity was
a motivating factor in its decision to effectuate the layoff.
Respondent submits, however, that the layoff was oc-
casioned by accumulation of a surplus of coal at the
mine, which necessitated a reduction in mining personnel
and thus was the result of a legitimate business consider-
ation. I find Respondent's evidence unpersuasive.
Willard Cumbo testified that, as of August 20, there
was a surplus of coal on hand, in the form of both inven-
tory and uncovered coal in pits, also referred to as coal
reserve. He further stated that there was so much uncov-
ered coal that it was difficult for the employees to work
around it. This, in turn, made it inefficient and unneces-
872
SWAN COAL CO.
sary to continue mining at what was then the current
pace. As a result, according to Cumbo, it was necessary
to lay off a certain number of Respondent's mining per-
sonnel.
Although Cumbo testified that part of his weekly
duties consisted of measuring coal reserve by pacing the
open pits and then converting the square footage into
tons per acre, Respondent produced no documentary
evidence concerning the amount of coal on hand as of
August 20 nor did Cumbo supply any precise figures.
Cumbo stated that he kept his calculation on scratch
paper and he had "probably" thrown them out. Cumbo
further testified that on August 20 he was notified by
Bruns, for the first time, that, because of the excessive
amount of coal on hand, layoffs were to be effectuated
that same day. Cumbo observed that he was not sur-
prised because he "had seen it coming." He then stated
that Bruns authorized him to select which employees
were to be laid off and that he made such selection based
solely on the individual abilities of each employee.
I reject Cumbo's testimony that the layoff was occa-
sioned by a surplus of coal. Several employee witnesses,
including James Dailey, who possessed previous experi-
ence in estimating coal reserves, testified that there was
no surplus of coal on hand in August 1982. They further
testified that the number of uncovered pits at the time of
the layoff was no greater than in the summer of 1981,
when no layoffs took place. In the absence of documen-
tary evidence to the contrary and based on the inexact-
ness of Cumbo's measuring techniques, I found their tes-
timony on this point no less persuasive than that of
Cumbo. Moreover, as I have previously noted, I have
found Cumbo not to be a reliable witness on other mat-
ters. His testimony must be viewed as colored by his
union animus. Finally, no other management official was
called on to corroborate Cumbo or to testify on the ne-
cessity for the layoffs.
Other evidence supports the finding that the layoffs
were not necessitated by the accumulation of a surplus of
coal. First, prior to August 20, the operation of the mine
was inconsistent with that of a business that was accumu-
lating a surplus of coal. The employee witnesses offered
uncontradicted testimony that, until August 20, the very
day of the layoff, they were working 44-hour weekly
shifts that were staggered in order to enable the mining
equipment to be utilized an extra 11 hours per week.9
This is contrary to Cumbo's assertion that on August 20
mining was difficult. During that time, according to
Cumbo himself, both he and Bruns were stressing pro-
duction, and the employees were involved in reclaiming
operations, as well as the opening of new coal pits. At
no time were the employees advised to reduce produc-
tion or told that they were accumulating an unusually
large surplus of coal. Neither were they advised of any
impending layoffs. Their first and only notification was
on August 20, when they were handed dismissal slips by
Cumbo. Indeed, in uncontradicted credible testimony,
Paul Martin stated that, during the summer of 1982,
Cumbo told him there would be no layoffs. Likewise,
9 Thus, when the employees worked a 44-hour shift, the equipment op-
erated 55 hours.
also in uncontradicted testimony, James Dailey stated
that during the very week of the layoff, Cumbo told him
that there was an additional 6 to 7 months stripping left
at the Respondent's mine. Finally, on August 9, 10 work-
ing days prior to the layoff, Cumbo hired an additional
operator, Jeff Evans. These actions are hardly consistent
with someone who "saw [an economic layoff] coming."
I likewise reject the assertion of Cumbo that the
choice of employees to be dismissed was left to his dis-
cretion and was based on the employees' ability as opera-
tors. Leonard Burris testified that, as Cumbo was passing
out the termination slips, he was asked why he was
laying off out of seniority. Cumbo responded, "Orders
from up above." The employees also asked him when
they would be recalled. Cumbo answered, "Probably
never. If you can go find a job." James Dailey testified
that in a private conversation with Cumbo on August 20,
Cumbo informed him that "he didn't want to lay him off,
he'd argued over him" but he had "orders from higher
up." Dailey further asked Cumbo if he was "that bad an
operator to be laid off," to which Cumbo responded in
the negative. Eugene Coleman testified that, in yet an-
other separate conversation, when he asked Cumbo why
they were being laid off, Cumbo answered, "Orders."
The testimony of these three witnesses concerning
these conversations, which I credit, was neither im-
peached on cross-examination nor disputed by Cumbo in
his testimony. In view of its unrebutted nature and of the
fact that it is in conflict with Cumbo's testimony con-
cerning the circumstances of the layoff, it further serves
to impeach Cumbo's credibility. Moreover, the substance
of this testimony, when considered in light of Respond-
ent's other unfair labor practices and its failure to estab-
lish a legitimate basis for the layoff, is also indication of
an unlawful motive.
The finding of discrimination is further supported by
Respondent's hiring and recall practices after the layoffs.
Of the 10 employees who were laid off on August 20,
only 2 were recalled by the Respondent. They were Jeff
Evans, who had been employed a mere 10 days prior to
the August 20 layoffs, and Richard Nickels. Although
Nickels had signed an authorization card, he had never
manifested outward support for the Union. Furthermore,
shortly after these two employees were recalled, Re-
spondent embarked on a hiring campaign in which it
hired 12 new employees, including 9 new operators.
Thus, Evans and Nickels were recalled in November
1982 and the new employees were hired beginning on
December 8, 1982. This hiring activity had the effect of
completely replacing the prounion employees who had
been laid off on August 20. None of the new hires were
employed during the union campaign, and, therefore, it
can be inferred that they were nonunion.
Despite unrebutted testimony that the remaining dis-
criminatees possessed significant experience in strip
mining operations, and that they had, during their
employ with Respondent, performed their duties in a sat-
isfactory manner, none was even considered for rehire.
This is true, even though all were available for work,
and this fact was known to Respondent. Indeed, employ-
ee Coleman testified that since the layoff he reported in
873
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
person to Respondent on three occasions and telephoned
on three occasions all for the purpose of seeking employ-
ment. During the period that Respondent was hiring new
employees, Coleman, without identifying himself, tele-
phoned and spoke with a person named Roger Hooper.
In response to an inquiry concerning employment possi-
bilities, Hooper stated that Respondent had recently
hired two employees and was taking applications. Within
30 minutes Coleman arrived at the mine to apply for em-
ployment. Upon meeting with Cumbo and Bruns, he was
told that Respondent was not hiring. The circumstances
of this out of hand rejection not only refute Cumbo's tes-
timony that he was concerned with quality when hiring
new employees, but also confirms Respondent's unlawful
motive in effectuating the layoffs.
Finally, Respondent introduced documentary evidence
indicating that its volume of sales remained constant
after the layoffs, despite an approximate one third reduc-
tion in staff. Respondent asserts that this was the result
of a surplus of coal which permitted the Respondent to
maintain its sales while reducing the number of mining
personnel. However, Philip Martin credibly testified that
during a period lasting from shortly after the layoff until
approximately October 1982, on three or four separate
Sundays, while passing by the Respondent's minesite he
observed mining operations taking place. This testimony
survived cross-examination and was not addressed by
Cumbo in his testimony. It is undisputed that during the
summer of 1982, prior to the layoffs, Respondent had op-
erated on a Monday through Saturday, 6-day schedule.
Thus, although Respondent reduced its staff, the evi-
dence indicates that it may have expanded its hours of
operation. Moreover, several months later, Respondent
clearly had a need for more personnel as it recalled two
laid-off employees and hired a substantial number of new
employees. Accordingly, Respondent's evidence con-
cerning its sales figures after August 20 is inconclusive
and does not rebut the overwhelming evidence of dis-
crimination in this record.
In these circumstances, I find that the General Counsel
has shown that the August 20 layoff was discriminatorily
motivated in violation of Section 8(a)(3) and (1) of the
Act.
H. The Bargaining Order Remedy
It is not disputed that by late October when the Union
requested recognition, 16 of the 30 employees in an ap-
propriate unit signed valid union authorization cards.
The following is the appropriate unit in which the elec-
tion was held and in which the Union secured majority
support:
All production and maintenance employees em-
ployed by [Respondent] at its Valeski, Ohio mine,
preparation plant, loading facility, and repair shop,
including reclamation employees, but excluding all
office clerical employees, and all professional em-
ployees, guards and supervisors as defined in the
Act.
Under NLRB v. Gissel Packing Co., 395 U.S. 575
(1975), the Board may require an employer to bargain
with a union based on a card majority in two types of
cases: (1) In "exceptional" cases where, regardless of
whether the union has ever represented a majority of
unit employees, the employer has committed "outra-
geous" and "pervasive" unfair labor practices of "such a
nature that their coercive effects cannot be eliminated by
the application of traditional remedies, with the result
that a fair and reliable election cannot be had," and (2) in
"less extra-ordinary cases," where the union has at some
point attached a card majority and the employer has
committed unfair labor practices which, though "less
pervasive," still have "the tendency to undermine major-
ity strength and impede the election process."
This case clearly calls for a bargaining-order remedy.
Four different management officials committed unfair
labor practices, including the owner of Respondent,
James Graham, who rarely spends time at the mine but
deviated from past practice in an attempt to defeat the
Union in this case. The unfair labor practices reached all
of the employees in what must be considered a small
unit. The unfair labor practices were serious ones, in-
volving the threat of closure of operations and of retalia-
tion against employees. They extended to the period well
beyond the election and included the most serious and
destructive type of violation. Three employees were dis-
criminatorily discharged and nine others discriminatorily
laid off. Thus, more than one-third of the people em-
ployed at the time of the election were discriminatorily
terminated.
The violations were so serious that free choice in the
December election was clearly not attained. I therefore
set aside the election of December 29, 1981. In addition,
under either of the standards set forth in Gissel, supra, I
conclude that traditional remedies are not sufficient to
restore the situation as it existed before the Respondent's
misconduct. The unfair labor practices were so pervasive
that their coercive effects could not be eliminated by tra-
ditional means and they surely would continue to have
the tendency to undermine union support and impede the
election process. Serious violations were committed
before and after the election and they are "likely to have
a lasting inhibitive effect on a substantial percentage of
the work force." NLRB v. Jamaica Towing, 632 F.2d 208,
212-213 (2d Cir. 1980). Accordingly, a bargaining order
reflecting the Union's actual majority before Respond-
ent's pervasive unfair labor practices were committed
better reflects employee sentiment than would be a theo-
retical free election after Respondent has polluted the at-
mosphere by its unlawful conduct.
CONCLUSIONS OF LAW
i. By interrogating employees about their union activi-
ties and those of other employees; by requesting that em-
ployees obtain and report information concerning the
union activities of other employees; by creating the im-
pression that union activities were under surveillance; by
threatening employees with blacklisting, dismissal, and
other forms of reprisal for engaging in union activity; by
threatening to close operations in retaliation for union
activity; by ordering employees to remove prounion
stickers and posters from their cars and trucks; by telling
an employee that, because of his prounion stance, it
874
SWAN COAL CO.
could not be responsible for his personal safety; by prom-
ising grants of future benefits based on the Union losing
the election; by stating to a prospective employee that he
was not being hired because he was a union supporter;
by creating the impression that union support would be
futile by telling employees that it would never negotiate
with the Union; by announcing and implementing a
change in its recordkeeping policy concerning tardiness
and absenteeism in order to discourage its employees
from supporting the Union; by announcing that a new
policy concerning employee breaks had been implement-
ed to discourage employees from discussing the Union;
by informing an employee that his hours had been re-
duced because he was a union supporter; and by an-
nouncing that a general reduction in hours was imple-
mented because of union activities, Respondent has vio-
lated Section 8(a)(1) of the Act.
2. By implementing a change in break policy in order
to deter union activity, Respondent has violated Section
8(a)(3) and (1) of the Act.
3. By implementing a reduction of work hours as a
result of union activity, Respondent has violated Section
8(a)(3) and (1) of the Act.
4. By reducing the truck allowance of employee Jack
Allberry in November and December 1981, and by not
granting him a full raise in January 1982, Respondent has
violated Section 8(a)(3) and (1) of the Act.
5. By discriminatorily discharging employees Phillip
Martin, Lester Haybron, and Richard Zimmerman, Re-
spondent has violated Section 8(a)(3) and (1) of the Act.
6. By laying off employees Paul Martin, Donald Wal-
dren, Virgil Jackson, Eugene Coleman, Delmar Way-
bright, James Dailey, Leonard Burris, Richard Nickels,
and Edward Mullins for discriminatory reasons, Re-
spondent has violated Section 8(a)(3) and (1) of the Act.
7. By virtue of the misconduct occurring between the
filing of the election petition on October 23, 1981, and
the election on December 29, 1981, as set forth above,
Respondent has interfered with a free election.
8. By refusing to recognize and bargain with the
Union, and by committing serious unfair labor practices
to that end, Respondent has violated Section 8(a)(5) and
(I) of the Act. The appropriate unit is as follows:
All production and maintenance employees em-
ployed by [Respondent] at its Valeski, Ohio mine,
preparation plant, loading facility, and repair shop,
including reclamation employees, but excluding all
office clerical employees, and all professional em-
ployees, guards and supervisors as defined in the
Act.
9. The above are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act.
10. Except as found herein, Respondent has not com-
mitted any other unfair labor practices alleged in the
complaint.
THE REMEDY
I shall recommend that Respondent be ordered to
cease and desist from engaging in the conduct found un-
lawful herein and to post an appropriate notice. I shall
also recommend that Respondent be ordered to bargain
with the Union and that it offer reinstatement to employ-
ees found to have been unlawfully discharged or laid off.
Respondent will also be ordered to make whole all those
employees who have suffered any loss of pay or compen-
sation due to the unlawful actions of Respondent, as
found herein, computed as provided in F W Woolworth
Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231
NLRB 651 (1977).'1
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed "
ORDER
The Respondent, Swan Coal Company, McArthur,
Ohio, its officers, agents, and representatives, shall
i. Cease and desist from
(a) Interrogating employees about their union activities
and those of other employees.
(b) Requesting that employees obtain and report infor-
mation concerning the union activities of other employ-
ees.
(c) Creating the impression that union activities are
under surveillance.
(d) Threatening employees with blacklisting, dismissal
and other forms of reprisal for engaging in union activi-
ty.
(e) Threatening to close operations in retaliation for
union activity.
(f) Ordering employees to remove prounion stickers
and posters from their cars and trucks.
(g) Telling employees that, in light of their prounion
stance, it cannot be responsible for their personal safety.
(h) Promising the grant of future benefits based on the
employees' rejection of union representation.
(i) Telling prospective employees that they are not
being hired because they are union supporters.
(j) Creating the impression that union support is futile
by telling employees that it will never negotiate with a
union.
(k) Announcing that any implementation of, or change,
in personnel policies is the result of an effort to discour-
age or limit employees' union activities.
(1) Discharging, laying off, or otherwise discriminating
against employees with regard to their hire or tenure of
employment or any term or condition thereof because of
their union activities or in order to limit or discourage
union activities.
(m) Refusing to bargain collectively with the Union as
the exclusive bargaining representative in the appropriate
bargaining unit set forth herein.
IO See generally Isis Plumbing Co., 138 NLRB 716 (1962). I do not
order the reinstatement of employee Richard Nickels because the record
shows that he was recalled in the same capacity on November 20, 1982. 1
do not order, however, that he be made whole for any loss of earnings
he suffered.
I If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
875
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(n) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their Section
7 rights.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, recognize and bargain in good faith
with United Mine Workers of America, as the exclusive
representative of all employees in the appropriate unit set
forth below with respect to rates of pay, wages and
other terms and conditions of employment and if an un-
derstanding is reached, embody such understanding in a
written, signed agreement. The appropriate unit is:
All production and maintenance employees em-
ployed by [Respondent] at its Valeski, Ohio mine,
preparation plant, loading facility, and repair shop
including reclamation employees, but excluding all
office clerical employees, and all professional em-
ployees, guards and supervisors as defined in the
Act.
(b) Offer to Philip Martin, Lester Haybron, Richard
Zimmerman, Paul Martin, Donald Waldren, Virgil Jack-
son, Eugene Coleman, Delmar Waybright, James Dailey,
Leonard Burris, and Edward Mullins 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 other rights and privileges,
and make them and employees Jack Allberry, Richard
Nickels and any other employee discriminated against
whole for any loss of earnings, benefits or compensation
connected with their employment status they may have
suffered as a result of Respondent's discrimination
against them in the manner set forth in the section herein
entitled "The Remedy."
(c) Remove from its files any reference to the unlawful
discharges and notify the employees in writing that this
has been done and that the discharges will not be used
against them in any way.
(d) Post in conspicuous places at Respondent's mine,
including all places where notices to employees are cus-
tomarily posted, for 60 days, copies of the attached
notice marked "Appendix."' 2 Copies of the notice, on
forms provided by the Regional Director for Region 9,
after being signed on behalf of Respondent by its presi-
dent and by the highest managerial official of the mine.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(e) Preserve and, on 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.
12 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
(f) 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 ALSO ORDERED that the election of December 29,
1981, be set aside and that the election petition in Case
9-RC-13948 is dismissed.
IT IS FURTHER ORDERED that those allegations of the
consolidated complaint not found to be sustained are dis-
missed.
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 or-
dered us to post and abide by this notice.
WE WILL NOT interrogate employees concerning their
union activities or those of other employees.
WE WILL NOT request that employees obtain and
report information concerning the union activities of
other employees.
WE WILL NOT create the impression that the union ac-
tivities of our employees are under surveillance.
WE WILL NOT threaten employees with blacklisting,
dismissal and other forms of reprisals for engaging in
union activities.
WE WILL NOT threaten to close operations in retalia-
tion for union activity.
WE WILL NOT order employees to remove prounion
stickers and posters from their cars and trucks.
WE WILL NOT tell employees that, because of their
prounion stance, we cannot guarantee their personal
safety.
WE WILL NOT promise the grant of future benefits
based on our employees' rejection of union representa-
tion.
WE WILL NOT tell prospective employees that they are
not being hired because they are union supporters.
WE WILL NOT create the impression that union support
is futile by telling our employees that we will never ne-
gotiate with a union.
WE WILL NOT announce that any implementation of,
or change in, personnel policies is the result of an effort
to discourage or limit our employees' union activities.
WE WILL NOT discharge, discipline or otherwise dis-
criminate against employees with regard to their hire or
tenure of employment or any term or condition thereof
because of their union activities or in order to limit or
discourage union activities.
WE WILL NOT refuse to bargain collectively with
United Mine Workers of America as the exclusive bar-
gaining representative in the following appropriate unit:
All production and maintenance employees em-
ployed by [Respondent] at its Valeski, Ohio mine,
preparation plant, loading facility, and repair shop,
including reclamation employees, but excluding all
876
SWAN COAL CO.
office clerical employees, and all professional em-
ployees, guards and supervisors as defined in the
Act.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of their
Section 7 rights.
WE WILL, on request, recognize and bargain in good
faith with United Mine Workers of America as the exclu-
sive representative of all employees in the appropriate
unit set forth above with respect to rates of pay, wages
and other terms and conditions of employment and, if an
understanding is reached, embody such understanding in
a written, signed agreement.
WE WILL offer Philip Martin, Lester Haybron, Rich-
ard Zimmerman, Paul Martin, Donald Waldren, Virgil
Jackson, Eugene Coleman, Delmar Waybright, James
Dailey, Leonard Burris, and Edward Mullins 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 other rights and
privileges, and make them and employees Jack Allberry,
Richard Nickels, and any other employee discriminated
against whole for any loss of earnings, benefits or allow-
ances connected with their employment status they may
have suffered as a result of our discrimination against
them, including interest.
WE WILL expunge from our records and files any no-
tiations dealing with the terminations of the employees
found to have been discriminated against and WE WILL
notify these employees in writing that this has been done
and that evidence of such terminations will not be used
as a basis for future personnel actions.
SWAN COAL COMPANY
877