The American Coal Company

National Labor Relations Board - Board Decisions

Aug 1, 2002

337 N.L.R.B. 1044 (N.L.R.B. 2002)

1044 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The American Coal Company and Bill Bishop. Case
14–CA–25400
August 1, 2002
DECISION AND ORDER
BY CHAIRMAN HURTGEN, AND MEMBERS LIEBMAN
AND BARTLETT
On July 26, 2000, Administrative Law Judge Martin J.
Linsky issued the attached decision. The General Coun­
sel and the Charging Party filed exceptions and support­
ing briefs. The Respondent filed an answering brief, and
the General Counsel filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order.
The main issue presented in this proceeding is whether
the judge erred in recommending dismissal of the com­
plaint allegation that the Respondent violated Section
8(a)(3) and (1) of the Act in June 1998 by selecting 33
employees for inclusion in a layoff of 88 hourly employ­
ees because they supported the United Mine Workers of
America (the Union) during the organizing campaign
conducted a few months earlier when the mine was
owned by another employer. We fully agree with the
judge’s finding, contrary to our dissenting colleague, that
the Respondent has met its burden under the Wright
Line1 test of proving its affirmative defense that it would
have selected the alleged discriminatees for layoff even if
they had not engaged in protected activity.
The judge found, and the record shows, that the
Respondent applied neutral objective criteria in selecting
employees for layoff. The selection criteria were: (1) the
total number of disciplinary letters on file for each em­
ployee; (2) the average number of yearly absences from
work for each employee; and (3) employee evaluations
conducted by the Respondent’s supervisory personnel.
With respect to the evaluations, the judge found that the
Respondent told its supervisors that they were not to
consider union activity (vis -à-vis the predecessor em­
ployer) in preparing employee evaluations for use in se­
lecting who would be laid off. Further, a large number
of supervisors testified that they were so told, and that,
accordingly, they did not consider such matters. The
judge, in upholding the Respondent’s Wright Line de-
1 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
fense, obviously credited this testimony.2 Accordingly,
the judge’s findings that supervisors did not consider
union sentiment in the evaluations they furnished, and
were told not to consider union affiliation in making the
evaluations, are firmly rooted in the judge’s credibility
determinations.3
The dissent makes no argument of any impropriety as
to the Respondent’s use of employees’ disciplinary and
attendance records in making the layoff determination.
The dissent nevertheless asserts that the evaluations are
“suspect” because a “small number” of evaluations noted
union activity of certain employees. The written remarks
cited by the dissent appear in only four evaluations by
three supervisors involving only two discriminatees.
There were 600 evaluations by 20 supervisors in this
proceeding; the dissent does not dispute that the vast
majority of these evaluations have no irregularity what-
soever and are fully consistent with the judge’s Wright
Line determination.4
Nor are there conflicts in the testimony of the Respon­
dent’s chief executive officer, Robert Murray, that call
into question the judge’s Wright Line determination. The
dissent seeks to challenge the testimony of CEO Murray
that he did not play a role in the selection of employees
for layoff. The dissent misses the point: the issue is not
whether Murray played such a role, but rather whether, if
he did, he used discriminatory considerations in playing
such role. There is no record evidence that he did.5 The
2 The dissent’s contention that the judge failed to make explicit
credibility determinations lacks merit. It is well established that ex­
plicit credibility findings are unnecessary when a judge has “implicitly
resolved conflicts in the testimony by accepting and relying on the
testimony of [one party’s] wi tnesses.” Electri-Flex Co. v. NLRB, 570
F.2d 1327, 1330 (7th Cir. 1978).
3 The General Counsel and the Charging Party have excepted to
some of the judge’s credibility findings. The Board’s established pol-
icy is not to overrule an administrative law judge’s credibility resolu­
tions unless the clear preponderance of all the relevant evidence con­
vinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
4 Moreover, the fact that a supervisor, in an isolated instance, made
such a reference in his written evaluation does not itself establish that
the supervisor relied upon that union activity in making a recommenda­
tion.
We note that the Respondent openly concedes that, in the aftermath
of the layoffs, a number of evaluations were either discarded in the
ordinary course of business or inadvertently misplaced. Given the large
number of documents that the Respondent did produce at the hearing,
the judge properly declined the General Counsel’s request to draw an
adverse inference from the Respondent’s inability to locate all of the
documents related to the layoffs.
5 As the dissent concedes, a spreadsheet compiled by Eric Anderson
and Clyde Borrell was the key document that the Respondent used in
selecting employees for layoff. The dissent also concedes that the
judge specifically credited the testimony of Anderson and Borrell,
including their testimony that the data they entered on the spreadsheet
337 NLRB No. 164
AMERICAN COAL CO. 1045
dissent likewise seeks to challenge Murray’s testimony
that he was not the one who asked the supervisors to pre-
pare evaluations. The critical issue is not whether
Murray was the one who asked the supervisors to prepare
evaluations; the critical point is that whoever asked for
the evaluations told the supervisors not to consider union
activity of employees, and the judge credited that testi­
mony. The judge made all credibility and factual deter­
minations necessary to support the finding that the Re­
spondent established its Wright Line defense and, unlike
the dissent, we would not remand this case and thereby
further prolong this proceeding, the events of which took
place over 4 years ago.
We further find that the judge appropriately recom­
mended dismissal of the complaint allegation that the
Respondent violated Section 8(a)(1) of the Act when
CEO Murray allegedly informed employees at January
1999 “awareness” meetings that the Respondent would
not hire employees who supported the Union. The Ge n­
eral Counsel (GC) presented four witnesses who testified
that CEO Murray made such a statement at the January
awareness meetings. The Respondent presented eleven
employee witnesses who testified that Murray made no
such statement. The Respondent also presented CEO
Murray and a vice-president who testified that no such
statement was made. The judge found all witnesses to be
credible, i.e., no one was deliberately lying. However,
the judge specifically found that the four GC witnesses
were mistaken about what the CEO said. In finding no
violation, the judge obviously credited the testimony of
the Respondent’s witnesses, including CEO Murray and
the vice president, who denied that such a statement was
made. The judge’s dismissal of this allegation is firmly
anchored in his credibility resolutions.
The dissent nevertheless seeks to remand this issue,
noting that there were three “awareness” meetings (one
for each shift). Three of the four GC witnesses attended
one meeting, and a fourth attended another, leading the
dissent to speculate that there is a “possibility” that the
Respondent’s eleven witnesses attended meetings other
than the meetings which the four attended. We think it
unnecessary and unwise to remand this case based on
such a theoretical possibility. In addition, CEO Murray
and the vice president attended all of the meetings, and
they denied that the statement was made.
We accordingly adopt, for all the above reasons, the
judge’s recommended dismissal of the complaint.
was not tainted by any information concerning the employees’ union
activities or preferences. Given the judge’s finding that the layoff
decisions were a product of the employees’ statistical ratings entered on
the spreadsheet, it follows that even if Murray harbored antiunion sen­
timents, they played no role in the selection process.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
MEMBER LIEBMAN, dissenting
This case involves the permanent layoff of 33 pro-
union mine workers in June 1998, shortly after the Re­
spondent purchased Kerr-McGee’s Galatia, Illinois coal
mine, in the wake of the Union’s defeat in a Board-
conducted representation election. Despite the destruc­
tion and disappearance of important documents related to
the layoffs, there is considerable evidence—including
testimony about later statements by the Respondent’s
chief executive officer (CEO) that union supporters
would not be hired—that the Respondent was hostile to
union activity and was prepared to act on that hostility.
It was undisputed, for example, that the CEO told em­
ployees that they had made the right decision in voting
against union representation and that the Respondent
would not have bought the mine otherwise.
The majority agrees with the judge’s finding that the
complaint should be dismissed, because the Respondent
proved that it “applied neutral objective criteria in select­
ing employees for lay off.” But the judge—who noted
that it was clear that some workers would be laid off and
that “life can indeed be tough” —failed to resolve impor­
tant conflicts in the evidence that potentially undermine
the Respondent’s defense. It was the Respondent’s bur-
den, of course, to prove not simply that it used objective
criteria in making layoffs, but also that those criteria (and
not union activity) explain each of the 33 challenged
layoff decisions individually. Given the absence of im­
portant credibility resolutions and factual findings, the
Board cannot fairly make that determination. Accord­
ingly, I would remand the case to the judge.
The exceptions filed by the General Counsel and the
Charging Party raise two main issues:
(1) Did the judge err in recommending dismissal of the
complaint allegation that the Respondent violated Sec­
tion 8(a)(3) and (1) of the Act in June 1988 by selecting
33 employees for layoff because they supported the
United Mine Workers of America (the Union) during the
organizing campaign conducted a few months earlier?
(2) Did the judge err in recommending dismissal of the
complaint allegation that the Respondent violated Sec­
tion 8(a)(1) of the Act in January 1999 by informing em­
ployees that it would not hire union supporters?
As the judge correctly acknowledged, the January
1999 statements, made in “employee awareness” meet­
ings, would throw light on the Respondent’s motivation
in laying off the 33 mine workers the previous June. I
1046 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
thus address the evidence related to those statements
first.
CEO Murray’s Alleged Statements during the January
1999 “Employee Awareness” Meetings
Four employee witnesses called by the General Coun­
sel testified that Robert E. Murray, the Respondent’s
chief executive officer, told employees that the Respon­
dent would not hire workers who supported the Union.1
The judge found each employee to be a credible witness.
Eleven employee witnesses called by the Respondent
“contradict[ed]” the four witnesses for the General Coun-
sel.2 The judge also found each of them to be a credible
witness.
Unwilling to discredit any of the witnesses, the judge
concluded that the General Counsel’s four witnesses
must simply have been “mistaken about what Murray
said.” What accounted for their mistake, the judge did
not explain. Rather, focusing only on the testimony of
the Respondent’s eleven witnesses, along with the testi­
mony of CEO Murray (whose testimony in other respects
was contradicted by documentary evidence and by the
testimony of the Respondent’s own officials, as I will
explain) and the testimony of Respondent’s vice presi­
dent for human resources, Bruce Hill,3 the judge held that
the General Counsel failed to prove by a preponderance
of the evidence that Murray made the unlawful statement
at the January 1999 awareness meetings.
1 Charles Jacoby testified that Murray stated that he wanted to hire
young “non-union oriented” people; Jan Conci testified that Murray
remarked that the Respondent needed to hire young experienced “non-
union oriented employees,” Debra Mikalauskas test ified that Murray
stated that he wanted to hire experienced “nonunion oriented” workers;
and Marty Yosanovich testified that Murray told the assembled em­
ployees that he (Murray) wanted experienced people but did not want
to hire “union people.” The judge specifically found Jacoby, Conci,
Mikalauskas, and Yosanovich “to be credible witnesses.”
2 The eleven Respondent witnesses were Michael Jeter, Dan Inabit,
Lester Burklow, David Dixon, Francis Hammer, Christopher Barter,
Kenneth Hoercher, David Sneed, Dwight Jackson, Travis Tate, and
Rodney Powell.
3 It seems clear from the judge’s decision that despite his citation of
the Murray and Hill testimony, the cumulative weight of the testimony
of the eleven other witnesses for the Respondent was essential to his
determination. The testimony of Murray and Hill, then, cannot serve as
an independent basis for the judge’s finding.
In any case, the judge failed to make any clear credibility findings
with respect to Murray’s testimony that “there was nothing said about
unions in connection with any hiring” at the January 1999 awareness
meetings. (Tr. 129: 2–3.) Similarly, the judge failed to make any clear
credibility findings with respect to Vice President Hill’s testimony that
at the January 1999 awareness meetings Murray did not say that he
wanted “experienced non-union oriented workers.” (Tr. 1295:7–8.)
I believe that the judge should make individual credibility findings
with respect to Murray and Hill. In evaluating Murray’s credibility, of
course, the judge should consider the apparent discrepancies between
his testimony on other, material matters and the testimony of other
company officials credited by the judge.
In my view, the judge failed to properly reconcile this
conflicting testimony. Thus, he did not consider the dis­
tinct possibility that the General Counsel’s witnesses and
the Respondent’s witnesses may have attended different
awareness meetings. Three separate meetings were con­
ducted in January 1999, one for each of the three differ­
ent work crews. (Tr. 1291:20–1292:6.)4
In exceptions, the General Counsel argues that because
the judge credited the testimony of its four witnesses that
Murray stated that he wanted to hire nonunion oriented
employees, and because the Respondent failed to estab­
lish that any of its eleven witnesses attended the A-crew
meeting, the judge should have treated the testimony of
the General Counsel’s witnesses as unrebutted and found
that the Respondent violated Section 8(a)(1) as alleged.
In its answering brief, the Respondent acknowledges
that its witnesses “could not recall which shift (and con­
sequently which awareness meeting) they were assigned
to at the time.” However, the Respondent asserts that “it
is reasonable to infer that between the eleven witnesses,
all three January awareness meetings were covered by
the testimony.”
I believe that the trier of fact should make an explicit
finding whether any of the Respondent’s eleven wit­
nesses were present at the A-crew awareness meeting
attended by General Counsel witnesses Jacoby, Conci,
and Mikalauskas. If none were present, then the 8(a)(1)
violation should be found on the basis of the testimony of
the Ge neral Counsel’s witnesses, absent some proper
reason to reject their testimony. In turn, the judge then
should consider Murray’s statements as probative evi­
dence of the Respondent’s motive in connection with the
June 1998 layoffs, which I now address.
The June 1998 Selections for Layoff
The judge found that the Respondent knew of the un­
ion support or activity of the 33 discriminatees selected
for layoff; that after taking over the mine from Kerr-
McGee, CEO Murray told employees several times that
they had made the right decision in voting against union
representation; and that when Murray was asked at meet­
ings if he would have bought the mine if the employees
had voted to unionize, he indicated, using his fingers,
that the chances were “zero.” Nonetheless, the judge
found that, in selecting employees for layoff, the Re-
4 The record supports the General Counsel’s contention that wi t­
nesses Jacoby, Conci, and Mikalauskas all attended the same awareness
meeting because they all worked on A-crew in January 1999. (Jacoby:
Tr. 191:24–25 and 194:18–24; Conci: Tr. 208:13–15; Mikalauskas: Tr.
235:16–17.) It appears that the judge in his decision erroneously refer­
enced the crew that Conci and Mikalauskas worked on at the time the
Respondent purchased the coal mine in June 1998. The awareness
meeting at issue occurred 6 months later in January 1999.
AMERICAN COAL CO. 1047
spondent relied solely on neutral objective criteria. Find­
ing that the Respondent had carried its Wright Line5 bur-
den, the judge concluded that it did not violate the Act
when it laid off the 33 coal miners.
In this aspect of the case, as well, the judge failed to
come to terms with important evidence tending to show
that the challenged layoff decisions, for all their ostensi­
ble objectivity, were actually determined by antiunion
animus. The decisions were based in crucial part on su­
pervisory evaluations that are suspect. The Respondent’s
defense of its layoff decisions, in turn, was premised on
the claim the process was insulated from CEO Murray,
evidence of whose antiunion animus has already been
discussed. Murray’s testimony, however, was clearly
dubious, a fact that should have been brought to bear in
evaluating the Respondent’s defense.
Central to the Respondent’s Wright Line defense is its
assertion that it applied objective criteria to select em­
ployees for layoff. These criteria included contempora­
neous performance ratings completed by foremen, super-
visors, and management during the days immediately
preceding the layoffs. But the documentary evidence
demonstrates that some of the Respondent’s supervisors
did consider and refer to union affiliation and activity in
the evaluations that they prepared:
1. Roy Jones’ evaluation of employee Bruce Clarry,
an alleged discriminatee, states that Clarry is “a union
organizer that has a chip on his shoulder for the com­
pany.” [GC Exh. 13(t).] In contrast, Jones’ evaluation of
employee Dave McBride, who is not alleged as a dis­
criminatee, states that “[h]e was working with [an em­
ployee who was] a union organizer and remained loyal to
[the company].” [GC Exh. 13(t).]
2. David Strunk’s evaluation of Clarry states: “Until
about a year ago, Bruce had a good attitude about his job
and Galatia mine. After that he became a leader in the
UMWA drive at Galatia. Even after the vote failed,
Bruce continues to carry the banner.” [GC Exh. 13 (jj).]
3. Robert Conn’s evaluation of Clarry states: “Bruce
has a challenge with his attitude and was a strong union
advocate.” [GC Exh. 13(f).]6
4. Dave Columbo’s evaluation of alleged discrimina­
tee Edward Williams states: “car runner/20+ years ex­
perience big union man/drags down the whole unit using
petty gossip[.]” [GC Exh. 13(uu).]7
5 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
6 Conn testified that he thought “it was very important to tell them
[management] that Bruce Clarry was a strong union advocate.” (Tr.
1227:19–22.)
7 Columbo testified that employee Williams “had alot of years in the
Union and he did a lot of recruiting at work” (Tr. 1093:1–2), which
While the number of such evaluations is small, they
remain probative, not least with respect to the layoff de­
cisions affecting the particular employees evaluated, be-
cause they undercut the Respondent’s contention that
union activity was not a factor in the evaluations. More-
over, approximately 10 percent of the underlying em­
ployee evaluations are missing and cannot be accounted
for, which is not the only troubling evidentiary gap in the
record.8
Without addressing the tainted evaluations, the judge
concluded that union activity was not a decisive factor in
the layoffs. He recited that a “large number” of supervi­
sory personnel testified that they did not consider union
sentiment in the evaluations they completed, and were
told not to consider union affiliation in making the
evaluations. Such statements are refuted by the evalua­
tions themselves, which as just explained show that su­
pervisors Jones, Strunk, Conn, and Columbo clearly did
consider union sentiment, despite their contrary testi­
mony. The judge, in any case, made no explicit credibil­
ity findings about any of the supervisors’ testimony.9
I do not see how the judge’s Wright Line determination
can survive his failure to make these findings. It is un­
clear, for example, how the judge could conclude that
employee Bruce Clarry, one of the 33 alleged discrimina­
tees, was laid off for lawful reasons. His evaluations
establish that his union activity was considered. Pre­
sumably, the antiunion animus reflected there influenced
the numerical rating Clarry was given, which in turn re­
sulted in his layoff.10 The record does not explain how
meant “recruiting for the UMWA” (Tr. 1095:24–1096:2), and that
Columbo “thought it was something that new management should
know.” (Tr. 1095:20–23.)
8 The evaluations were used to create a spreadsheet that served as the
basis for the actual layoff decisions. The final version of the spread-
sheet, however, is not part of the record: it was deliberately destroyed.
9 The other supervisors cit ed by the judge are Charles Bowlin, Don­
ald Eroh, Doug Harver, John Dunn, Calvin Melvin, Dan Ramsey, Wil­
liam Penrod, Jimmy Wilson, Steve Roye, Vern Brotherton, Duane
Lambert, Vernon Dunn, James Allen, Jerry Whitehead, Daryl Tolbert,
Doug Huie, William Devine, Denzil Hughes, Bob Dupuis, and Bruce
Hill. Bruce Hill testified that he did not commence employment with
the Respondent until approximately 3 months after the layoffs had
occurred. (Tr. 1290:1–3.)
10 Clarry was laid off because he received a low performance rating
of “4.” Clarry’s supervisory evaluations included the remarks:
“UMWA organizer, I cannot trust him” (GC Exh. 13(pp)); “a union
organizer that has a chip on his shoulder for the company” (GC Exh.
13(t)); “became a leader in the UMWA drive” and “even after the vote
failed . . . continues to carry the banner” (GC Exh. 13(jj)); and “was a
strong union advocate” (GC Exh. 13(f)). The evaluations make clear
that other, critical comments about Clarry’s performance were inextri­
cably linked to his union activity. Clarry had received a positive
evaluation in February 1998. In his testimony, supervisor Roy Jones
admitted that his subsequent, negative evaluation of Clarry was based
1048 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the taint of antiunion animus could have been eliminated
during the evaluation process. Testimony about instruc­
tions that union activity was not to be considered is in-
sufficient to counter evidence that, in fact, it was.
Similarly, the judge failed to make clear credibility
findings about CEO Murray’s testimony that: (1) he did
not ask supervisors to prepare employee evaluations to
be used in the selection of employees for layoff; and (2)
he played no role in selecting employees for layoff.
Murray’s testimony on both questions is contradicted.
Numerous witnesses, including the Respondent’s
president, Donald Gentry, testified that Murray did ask
supervisors to prepare employee evaluations.11 Indeed,
when recalled at the end of the hearing, Murray testified
that “I am told by [Respondent’s counsel] that there has
been some testimony, that I directly asked some employ­
ees to rate the people under them . . . “I guess it’s a little
fuzzy as to who really asked them.” (Tr. 1324:10–13.)
Likewise, Murray’s unequivocal and repeated asser­
tions that he “played no role at all in the selection of
those people who were about to be reduced [laid off],”
(Tr. 79:5–6),12 were also contradicted by Eric Anderson
and Clyde Borrell. Anderson and Borrell were employed
by the Respondent for the purpose of assimilating the
data, including employee evaluation scores, upon which
the Respondent’s layoff decision was made. Their testi­
mony was specifically credited by the judge. Murray
on a change in Clarry that Jones attributed to his relationship with the
Union. (Tr. 985.)
11 Gentry testified that he was familiar with who asked supervisors to
evaluate employees, and that Murray did request supervisors to com­
plete employee evaluations. He said:
Bob Murray and Mark Bartkowski interviewed management people
as a team. Myself, Bill Mallicoat, and Maynard St. John separately in­
terviewed as a separate team. And it’s my understanding and my be-
lief that both - when a manager interviewed with Bob Murray and
Mark Bartkowski, and when they interviewed with us, they were re-
quested to rate the people that worked directly for them or they had di­
rect knowledge of their work performance.
(Tr. 578:2–16.) Numerous supervisors testified that Murray asked them
to complete evaluations. Foreman Robert Conn testified that Murray
asked him to complete employee evaluations. (Tr. 1214:2–6.) Foreman
Steve Roy testified that Murray asked him to complete evaluations of
employees that worked for him. (Tr. 1077:16–25.) Foreman David
Strunk (Tr. 1045:7–14), foreman Danny Ramsey (Tr. 1022:16–18),
foreman Donald Eroh (Tr. 966:22-25; 967:25–968:1), foreman Dwayne
Lambert (Tr. 1099:9–16), and foreman Daryl Tolbert (Tr. 1124:24–
1125:7) each testified that he was asked by Murray to complete evalua­
tions of employees. In addition, the evaluations submitted by foreman
Dave Washinisky (GC Ex. 13(pp)) states on a cover sheet, “Mr.
Murray, I ranked the people attached.”
12 He declared: “I was not involved at all, in any way, in the deter­
mination of anyone that was laid off in applying those criteria.” (Tr.
1327:9–11.) “I had no input in the process. Into the actual decisions.”
(Tr. 1328:19–20.)
denied ever seeing the spreadsheet (GC Exh. 6) that
listed each employee’s name and corresponding score
from the supervisory evaluations, and which was the
principal document that the Respondent used in selecting
employees for layoff.13 Anderson testified, however, that
he saw CEO Murray looking at the spreadsheet. (Tr.
862:17–863:1.) A review of the spreadsheet (GC Exh.
6) shows green markings next to the names of 80 em­
ployees, reflecting, according to the credited testimony
of Borrell, some sort of comment by CEO Murray. (Tr.
927:13–25; 944:11–13.]14 Borrell testified that “Mr.
Murray came in at the very end, and reviewed the list
that we had put together . . .” (Tr.: 944:14–17.) There is
a square conflict, then, between the testimony of CEO
Murray15 and the credited testimony of Anderson and
Borrell.
Conclusion
Under Wright Line it was the Respondent’s burden to
prove that it would have laid off each of the 33 alleged
discriminatees regardless of his union affiliation and ac­
tivity. Entirely apart from the troubling destruction and
disappeance of some documents, the documentary record
contains ample evidence of antiunion animus on the part
of the Respondent’s supervisory personnel. The judge
himself found that CEO Murray had made statements
consistent with a strong desire to avoid unionization of
the Respondent’s work force.
If the layoff decisions challenged here were the result
of a process directed by CEO Murray, if CEO Murray
falsely disclaimed any role in that process, if Murray
13 Murray testified:
Q: You referred to someone making some spreadsheets that were used
in making the [layoff] decision. Were you familiar with those spread-
sheets, or did you ever see those spreadsheets.
A: No I did not. [Tr. 86:9–12.]
14 As Anderson explained:
Q: Who took the final information, the numbers that were produced in
General Counsel’s Exhibit No. 6 [the spreadsheet], and from that,
made the decision as to who to terminate, or who not to retain?
A: Mr. St. John was privy to this sheet, as you can see his initials
there. Mr. Gentry was obviously involved in these decisions. And I
know, as I testified yesterday, that Mr. Murray had made some com­
ments on some individuals. As far as the actual decision, who would
go or who would stay, it was . . . all those three would look at the
numbers, as a group, and really decide, from person-to-person, to my
knowledge, who would go. [Tr. 861:25–862:16.]
15 Murray, recalled to the witness stand at the end of the hearing fol­
lowing the testimony of Anderson and Borrell, admitted that he was in
the room where the layoff selection process was taking place for 30 to
45 minutes (Tr. 1326:21–22), but testified that “he hadn’t focused on a
single name.” (Tr. 1327:21–22.)
AMERICAN COAL CO. 1049
falsely denied requesting the preparation of supervisory
evaluations like those that demonstrably considered un­
ion activity, and if Murray later stated that the Respon­
dent would not hire prounion workers, then the Respon­
dent’s invocation of objective criteria might well have
been a pretext, with respect to some or all of the 33 em­
ployees involved here, to eliminate union supporters. At
this stage of the litigation, given the judge’s failure to
make crucial factual findings and credibility determina­
tions, it is certainly impossible to conclude that the Re­
spondent did not discriminate. The majority’s willing­
ness to do so strikes me as clearly wrong, and therefore I
dissent.
Christal J. Cuin and Paula Givens, Esqs., for the General
Counsel.
Richard E. Lieberman, Jules I. Crystal, and James A. Lawson,
Esqs. (Ross & Hardies), of Chicago, Illinois, for the Re­
spondent.
Richard J. Whitney, Esq. (Speir & Whitney), of Carbondale,
Illinois, for the Charging Party.
DECISION
STATEMENT OF THE CASE
M ARTIN J. LINSKY, Administrative Law Judge. On Decem­
ber 22, 1998, Bill Bishop, an individual, filed a charge in Case
14–CA–25400 against the American Coal Company, Respon­
dent herein.
Thereafter, on May 28, 1999, the National Labor Relations
Board, by the Acting Regional Director for Region 14, issued a
complaint, which was amended on August 5, 1999 and again on
August 25, 1999.
The complaint, as amended, alleges that Respondent violated
Section 8(a)(1) and (3) of the National Labor Relations Act (the
Act) when on June 23, 1998, it laid off 33 employees because
the employees formed, joined, and assisted the Union and en-
gaged in concerted activities, and to discourage employees
from engaging in these activities and further that Respondent
violated Section 8(a)(1) of the Act when on January 8, 1999, by
its Chief Executive Officer Robert E. Murray, it “informed
employees that Respondent would not hire employees who
supported the Union” and “informed employees that it had
terminated employees because of their support for the Union
and now that it was rehiring, it would not hire employees who
supported the Union.”
Respondent filed an answer in which it denied it violated the
Act in any way.
The case was tried before me in West Frankfort, Illinois,
from August 31, 1999 through September 3, 1999, and in Har­
risburg, Illinois, from November 1, 1999 through November 5,
1999.
Based on the entire record in this case, to include posthearing
briefs submitted on March 20, 2000, by the General Counsel,
Respondent, and the Charging Party, and upon my observation
of the witnesses and their demeanor, I have concluded that
Respondent did not violate the Act in any way. More specifi­
cally I make the following1
FINDINGS OF FACT
I. JURISDICTION
At all material times, Respondent, a Delaware corporation,
with an office and coal mining facility in Galatia, Illinois, has
been engaged in the underground mining and surface prepara­
tion of coal for shipment.
Respondent admits, and I find, that at all material times Re­
spondent has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATI ON INVOLVED
Respondent admits, and I find, that at all material times the
United Mine Workers of America, herein the Union, has been a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR L ABOR PRACTICES
A. Introduction
In early January 1998 a group of five employees who
worked for Kerr-McGee at the Galatia, Illinois coal mine went
to see a representative of the United Mine Workers seeking
assistance in organizing the employees at the Galatia coal mine.
The five employees were Bruce Clarry, Larry Brown, Mark
Hall, David White, and George Yarbrough. All but Mark Hall
would later be laid off after the mine was sold to Respondent.
The union was somewhat reluctant to assist these employees as
previous efforts to organize the mine had not met with success.
The five employees returned to work with union authoriza­
tion cards and union stickers and tried to get their fellow em­
ployees to join the Union.
Kerr-McGee resisted the union organizing effort and cam­
paigned against the Union. It urged its production foremen,
supervisors and managers to try to ascertain how the employees
felt about the Union.
On May 14 and 15, 1998 the National Labor Relations Board
conducted a representation election at the Galatia mine. The
employees voted 318 to 146 to reject representation by the
Union. In other words, the Union lost the election by more
than 2 to 1.
On June 16, 1998, some 2 months after the election, Respon­
dent purchased the mine from Kerr-McGee. Respondent had
earlier made what it called a “preemptive bid” to buy the mine
prior to the union election but it was rejected by Kerr-McGee.
After the election Respondent submitted a second bid to buy
the Galatia mine which was accepted by Kerr-McGee. The
second bid was 33.3 percent higher than the “preemptive bid”
made by Respondent prior to the election and was accepted by
Kerr-McGee.
1 Respondent’s motion to strike portions of the General Counsel’s
brief is denied. The arguments made by the General Counsel in the
objected to portions of the brief are all fair comment and argument
based on the evidence as she views it and not objectionable.
1050 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent’s chief executive officer, Robert E. Murray, tes­
tified without contradiction that the Galatia mine was 26th in
the country in productivity but third in employment, i.e., al­
though it had the third highest number of employee of any coal
mine in the United States it was only 26th in productivity.
When Respondent took over the mine it set as its first task
the elimination of a number of jobs. It wanted to eliminate
between 210 and 250 of the more than 600 hourly and salaried
jobs. Within a 4-day period Respondent selected 160 salaried
employees and 86 hourly employees for permanent layoff.
It is alleged in this case by the General Counsel that the 33
named discriminatees in the complaint were selected for per­
manent layoff and laid off on June 23, 1998 because of their
support for the Union during the union organizing campaign
some months earlier when the mine was owned by Kerr-
McGee.
It is also alleged that Respondent, through its chief executive
officer Robert E. Murray, made certain 8(a)(1) statements on
January 8, 1999, which also tend to support the allegation that
the discriminatees were unlawfully laid off.
Respondent laid off more salaried employees (160) than
hourly employees (86). Thirty three (33) hourly employees are
alleged discriminatees. Respondent claimed it used a criteria
for lay off that did not discriminate against employees based on
union activity or support. Respondent admits discrimination in
the layoff selection process in favor of women and minorities
but vehemently denies discrimination in selection for layoff
based on activity on behalf of the Union or support for the Un­
ion.
B. Respondent’s Criteria for Layoff
With respect to salaried employees, Respondent restructured
the salaried job organization which resulted in the elimination
of job positions, including an entire layer of management, and,
after a series of interviews, salaried employees were selected to
fill the remaining jobs. Those not chosen were laid off and they
numbered 160.
With respect to hourly employees, which included the 33
discriminatees in this case, Respondent employed a different
criteria for selecting employees for lay off. CEO Murray cre­
ated a transition team to come up with a performance based
criteria for the layoffs and they did. In the end, three criteria
were selected upon which to base individual termination deci­
sions: (1) the average number of yearly absence occurrences for
each employee over a 3.5 year period, (2) the total number of
disciplinary letters on file for each employee for the past 3.5
years; and (3) contemporaneous performance ratings completed
by foremen, supervisors and management during the days im­
mediately preceding the layoffs but after Respondent took over
the mine on June 17, 1998, which, of course, was after the Un­
ion campaign and the election.
C. Respondent’s Knowledge of Union Activity or Support
Among the Employees Selected for Layoff
In all, 86 hourly employees were selected for lay off 33 of
whom are discriminatees in this case. Some laid off employees
were added and some deleted from the complaint at the request
of the laid-off employees apparently because they were pursu­
ing other avenues of relief. The case went to trial with 33 al­
leged discriminatees. One of the three criteria used in selecting
hourly employees for lay off was performance evaluations fur­
nished by foremen, supervisors, and management. Again, these
evaluations were made after respondent took over the mine on
June 17, 1998 and after the union election of May 14 and 15,
1998.
In her brief, counsel for the General Counsel has accurately
recited the evidence at the hearing before me which leads me to
conclude that Respondent, threw its supervisors and agents,
knew of the union support and/or activity of the 33 discrimina­
tees selected for layoff. See, e.g., MacDonald Engineering Co.,
202 NLRB 748 (1973).
In February 1998, discriminatee David L. Amberger put a
union sticker on his hard hat. Mine manager Denzil Hughes, in
the presence of Production Foreman Vernon Dunn, asked Am­
berger why he had the union sticker on his hard hat. Amberger
responded that he was wearing the sticker to show his support
for the Union. Hughes told Amberger that his days of filling in
as a boss were over because he supported the Union.
About 3 weeks before the election, assistant mine manager
Don McCluskey initiated a conversation with discriminatee
Mark D. Anderton about the Union. It is uncontroverted in the
record that Anderton told McCluskey that he supported the
Union. On about seven or eight occasions during the union
campaign, McCluskey attempted to give Anderton antiunion
literature. On one such occasion in mid-April, McCluskey told
Anderton that he supposed Anderton did not want any of the
antiunion literature.
During the union campaign, discriminatee James A. Barton
wore a union sticker on his hard hat. In mid-April, Assistant
Mine Manager Robert Dupuis walked up to mine examiners
Barton, Dolly Monte, and Brad Slankard. Dupuis said that he
was very disappointed that Barton, Monte, and Slankard sup-
ported the Union. Dupuis stated that he did not feel they
needed a union and that they could bargain with the company
on their own without a union. Barton responded that he felt
they needed a union and then asked Dupruis if they could bar-
gain without a union could he have a raise. Dupuis then walked
out of the room. In his evaluation, Dupuis stated that Barton
had a negative attitude towards his employment.
During the union campaign, discriminatee Wayne K. Beal
openly encouraged employees to support the Union. Beal regu­
larly ate meals and spent non working time with a group of
strong union supporters including Tim Russell, Jerry Sexton,
and Bill Bishop. During the union campaign, assistant mine
manager Hughes initiated a conversation with employees Lester
Burklow, Vigil Carpenter, and Wayne Beal. During this con­
versation, Beal stated he supported the Union because with a
union, employees would have seniority rights.
In February, discriminatee William Bish put a union sticker
on his hard hat.
Assistant mine manager Hughes testified he knew that dis­
criminatee and charging party Bill Bishop supported the Union.
In February, Bill Bishop put two union stickers on his hard hat.
Maintenance department manager Rocky Pike also admitted he
knew Bishop supported the Union. Pike knew this because he
observed Bishop wearing a union sticker. The notes supervi-
AMERICAN COAL CO. 1051
sors put on their evaluations of Bishop show that they were
happy with his work, but his disagreement with the manner his
employer operated the mine resulted in a poor score for him.
For example, Mine Manager James Wilson wrote, “good
worker, but complains and potential troublemaker.” Other
supervisory comments about Bishop included, “disruptive”
“bad attitude” and “deadwood or attitude problem.”
In mid-April, discriminatee Michael Brogan began display­
ing a union sticker on his hard hat.
Discriminatee Larry Brown was one of the five employees
who went to the Union to get the union campaign started.
Larry Brown distributed about 75 union authorization cards.
Right after the January 5 organizing meeting Larry Brown put a
union sticker on his hard hat. In April, Mine Manager Doug
Grounds initiated a conversation with Larry Brown. Grounds
asked why Larry Brown thought the employees needed a union.
Larry Brown replied that safety was the primary reason. In
March, right after the Union had filed its petition seeking to
represent Kerr-McGee’s employees, Grounds, in the presence
of mine manager Scott Schapkoff, asked Larry Brown why the
employees wanted a union. Brown responded that employees
were concerned about mine safety. Specifically, Brown told
Schapkoff and Grounds that employees were concerned about
the recent fire in the mine. Production foreman Doug Huie
admitted that he knew Brown supported the Union. Mainte­
nance department manager Rocky Pike also admitted he knew
Larry Brown supported the Union. Pike knew this because he
observed Brown wearing a union sticker. Brown also attended
the vote count to show support for the Union.
Electrical instrumentation foreman Bob Conn told discrimi­
natee Larry S. Brown that he had gotten word from upper man­
agement that Larry S. Brown was one of the union instigators.
Larry Brown and Larry S. Brown are different men. Conn
continued that Brown had better watch himself. Brown re­
sponded that he supported the Union because of safety issues
During his testimony, Conn did not deny this conversation with
Brown. About 2 weeks before the election, mine manager Wil­
liam Penrod raised the issue of the Union to Larry S. Brown.
Brown told Penrod that he supported the Union. Foreman
Conn’s evaluation of the three employees in his department
who supported the Union, Dwight Pray, Larry S. Brown, and
Bruce Clarry, all refer to a problem with their “attitude.” Pray
was not laid off. Although Brown and Clarry were laid off.
On the day of the election, Mine Manager Scott Schapkoff
asked discriminatee Benjamin Cain how he felt about the Un­
ion. Cain replied that he thought voting for the Union was a
good thing.
In separate conversations during the union campaign, Pro­
duction Foreman John Dunn and Mine Manager William Pen-
rod asked discriminatee Lawrence E. Carmon how he felt about
the Union. Carmon told Dunn and Penrod that he supported the
Union. During the week preceding the May election, Dunn
offered Carmon a “vote no” sticker, which Carmon declined.
Maintenance department manager Rocky Pike testified he knew
Carmon supported the Union because of statements Carmon
made and because Pike observed Carmon wearing a union
sticker.
In February, discriminatee George David Chick placed a un­
ion sticker on his hard hat and on his lunch box. Chick openly
discussed his support for the Union and encouraged other em­
ployees to vote for the Union. Production Foreman John Dunn
admitted that he knew Chick was a leading union organizer.
Mine Manager William Penrod also admitted that he knew
Chick supported the Union. Although Penrod testified that
Chick had a performance problem, the evaluation mentioned
only an “attitude problem.” Mine Manager James Wilson’s
evaluation of Chick stated that Chick was a good operator, but
a potential troublemaker. Production Foreman Doug Huie re­
ferred to Chick as, “hard to satisfy.”
Discriminatee Bruce E. Clarry was one of the five employees
who instigated the union campaign. Clarry gathered signatures
on about 30 union authorization cards and distributed about 75
union stickers. He was also an observer for the Union at the
May 14 and 15 election and was present for the vote count. In
February, foreman Roy Jones approached Clarry and asked him
to remove the large UMWA bumper sticker Clarry had on his
hard hat. In March, mine manager Doug Grounds told Clarry
that he was concerned about the UMWA sticker and the orga­
nizing campaign because it would hurt the sale of the mine.
Clarry replied that employees were concerned about a mine fire
and an explosion in the mine and safety was a key issue behind
the union campaign. In March, maintenance foreman Bobby
Jones told Clarry that his name was being thrown around
among management as a union supporter and Clarry had better
watch himself and be careful. During the May election, a local
television station aired an interview with Clarry in which he
stated he supported the Union because of safety issues. Staff
mine engineer James Webb admitted that he knew Clarry sup-
ported the Union. Statements made by supervision in their June
evaluations also show that management knew Clarry was a
leading union organizer. The following are comments supervi­
sors made about Clarry in their evaluations: “until about a year
ago, Bruce had a good attitude about his job and Galatia Mine.
After that, he became a leader in the UMWA drive at Galatia.
Even after the vote failed, Bruce continues to carry the banner.
He does continue to do his job. Bruce has great potential”;
“thinks he is mistreated”; “hard to satisfy”; “a union organizer
that has a chip on his shoulder for the company”; “UMWA
organizer, I cannot trust him”; and “Bruce has a challenge with
his attitude and was a strong union advocate”. Maintenance
manager Rocky Pike admitted that he knew Clarry supported
the Union because he observed Clarry wearing a union sticker.
Maintenance foreman Roy Jones admitted he knew Clarry was
a leading union organizer because of stickers he wore, because
employees reported to Jones that Clarry attended union meet­
ings and because of the people with whom Clarry associated.
Jones testified that discriminatees David White and George
Yarbrough were the other union organizers that Clarry associ­
ated with. Maintenance foreman Strunk, electrical instrumenta­
tion foreman Conn and long wall maintenance foreman Talbert
testified they knew Clarry was a union organizer.
About the second week of January discriminatee Barbara J.
Crabtree put a union sticker on her hard hat. In his evaluation
of Crabtree, Production Foreman Doug Huie referred to her as
1052 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
“hard to satisfy” and a “follower.” Foreman Huie admitted he
observed Barbara Crabtree wearing a union sticker.
During the union campaign, discriminatee Tony J. Crisp
wore a union sticker.
In mid-April, discriminatee Lance A. Damm put a union
sticker on his hard hat. During approximately the first week of
May, assistant mine manager Robert Dupuis told Damm that he
really needed to pay attention to the antiunion film that the
company was showing. Damm had a prounion sticker on his
hat during this conversation.
In March, discriminatee Mark E. Donoghue put a union
sticker on his hard hat.
During the union campaign, discriminatee Marty J. Gayer
distributed union leaflets at the mine. In March, Mine Manager
William Penrod told Gayer that an employee had felt threatened
when Gayer spoke to the employee about the Union. Penrod
said if there were any other such reports Gayer would be disci­
plined. A few weeks before the election, production foreman
Doug Harner initiated a conversation with some employees
during dinner. Gayer told Harner that he supported the Union
because of safety issues and because, with a union, a layoff
would have to be done by seniority. During meetings when
production foremen John Burke and Steve Roye distributed
antiunion literature, Gayer voiced his support of the Union.
Maintenance Manager Rocky Pike admitted he knew Gayer
supported the Union because of statements he heard Gayer
make.
Mine examiner and discriminatee Ernest Eugene Harvel put
a union sticker on his hard hat in January. In mid-April, Harvel
told Assistant Mine Manager Terry Ward that Harvel believed
the employees needed a union because of safety issues in the
mine. Foreman Huie admitted that employees told him that
Harvel supported the Union. On his evaluation, Huie wrote
that Harvel was “hard to satisfy.”
In February, discriminatee Dennis Lampert put a union
sticker on his hard hat. During meetings when Foremen John
Burke and Steve Roye distributed antiunion literature, Lambert
voiced his support of the Union. About two weeks before the
May election, Roye verbally disciplined Lambert for soliciting
for the Union during worktime. In separate conversations,
Lambert told maintenance manager Calvin Melvin and Fore-
man Dave Strunk that he supported the Union. Melvin wrote in
his evaluation that Lambert had an “attitude problem.” Main­
tenance manager Rocky Pike admitted that he knew Lambert
supported the Union because of statements Lambert made and
because he observed Lambert wearing a union sticker.
In about March, discriminatee Alan L. Minton spoke with
foreman Dwayne Lambert and advised him that he supported
the Union because of the pension benefits provided by the Un­
ion. Maintenance Manager Pike wrote in his evaluation that
Minton had an “attitude problem.”
In March, discriminatee Dolly M. Monte put a union sticker
on her hard hat and assistant mine manager Dupuis approached
her and said when this was all over she would be sorry for sup-
porting the Union. Monte responded that she supported the
Union because of safety issues in the mine. In mid-April, Du­
puis told discriminatees Barton, Monte, and Slankard that he
was very disappointed that they supported the Union. Respon­
dent laid off three of the six examiners on Monte’s crew, Bar-
ton, Slankard, and Monte.
Discriminatee Bernard A. Reynolds was one of three exam­
iners on the B crew who Respondent laid off. Reynolds wore a
union sticker during the union campaign.
During the first part of March, discriminatee Timothy L.
Russell put a union sticker on his hard hat. Assistant Mine
Manager Hughes and staff engineer Webb both admitted they
knew Russell supported the Union. Hughes testified Russell
was a hard worker, but that Russell complained a lot and talked
down the Company. Right before the May 14 vote, Mine Su­
perintendent Mike Davey and Assistant Mine Manager Hughes
approached Russell. Davey commented “nice sticker.” Right
after the election, Davey and Hughes approached discrimina­
tees Sexton and Russell and asked why they had pushed so hard
for the Union. Russell responded he was concerned about
safety.
In about March, discriminatee Thomas Simpson put a union
sticker on his hard hat. Maintenance Manager Pike admitted
that he knew Simpson supported the Union because of state­
ments Simpson made and because Pike observed Simpson
wearing a union sticker.
In March, discriminatee William B. Slankard put a union
sticker on his hard hat. In mid-April, Assistant Mine Manager
Dupuis walked up to discriminatees Barton, Monte, and Slank­
ard, and said that he was very disappointed that Barton, Monte,
and Slankard supported the Union.
In January, discriminatee Larry D. Thuilliez put a union
sticker on his hard hat. Right after Thuilliez put the sticker on
his hard hat, Production Foreman Charles Bowlin asked him
why he wanted a union. Thuilliez responded that he was inter­
ested in the pension and benefits. During the Union’s cam­
paign, Thuilliez distributed union stickers. During meetings
when foremen Burke and Roye distributed antiunion literature,
Thuilliez voiced his support of the Union. In March, mine
manager Doug Grounds asked Thuilliez why he supported the
Union. Thuilliez responded it was because of the pension and
retirement rights. Maintenance Foreman Pike admitted he
knew Thuilliez supported the Union because of statements
Thuilliez made and because he observed Thuilliez wearing a
union sticker. Electrical instrumentation foreman Jerry White-
head put on his evaluation of Thuilliez “bad attitude never im­
pressed me.” Whitehead formed this opinion about Thuilliez
based on comments he had heard Thuilliez make in the staging
area. Whitehead admitted he could not make any assessment
about Thuilliez’ work, because he did not have enough knowl­
edge about his work to comment on it.
In February, discrimnatee Michael E. Vosbein put a union
sticker on his hard hat. During the week preceding the election,
Assistant Mine Manager Hughes asked Vosbein why he sup-
ported the Union. Vosbein responded that it was because of
safety issues. During that same week, mine manager Doug
Grounds asked Vosbein why he was wearing a union sticker.
Vosbein declined to respond. During the week of the election,
mine manager James Wilson spoke to employees in Vosbein’s
crew and distributed some antiunion literature. While distribut­
ing this literature, Wilson asked for feedback. Vosbein told
AMERICAN COAL CO. 1053
Wilson that it did not matter what Wilson said, he was still
going to vote for the Union.
During the union campaign, discriminatee Michael L. Wal­
lace wore a union sticker.
Discriminatee David G. White was one of the five employ­
ees who initially went to the Union to get the union campaign
started. On about January 6, White put a union sticker on his
hard hat. White gathered about 25 union authorization cards,
openly encouraged employees to vote for the Union, told them
about upcoming union meetings and distributed union leaflets.
White attended the vote count to show support for the Union.
Respondent laid off three out of the five mine examiners C
crew, i.e., discriminatees David White, George Yarbrough, and
Ernest Harvel. In mid-April, White asked Assistant Mine Man­
ager Terry Ward why management never approached him to
talk about the Union. Ward responded that he knew White
supported the Union because of safety issues and there was no
way to change White’s opinion. Maintenance Foreman Roy
Jones testified that employees David White and George
Yarbrough were the other union organizers with whom Bruce
Clarry associated. Webb testified he knew White supported the
Union. Statements made by supervisors on their June evalua­
tions of White include “My opinion of him is that he is opin­
ionated and a troublemaker”; “bad attitude, contagious”; and
“deadwood or attitude problem.”
On his evaluation of discriminatee Edward A. Williams,
production foreman Dave Colombo wrote, “big union man.”
About 1 week before the election, Colombo had initiated a
conversation with Williams about the Union. Colombo told
Williams that if the Union came in, the company might lose
contracts and the mine might shut down. Williams told Co­
lombo that he had 20 years in the Union and he supported the
Union because it would allow him to increase his pension.
During meetings when foremen John Burke and Steve Roye
distributed antiunion literature, discriminatee Charles T. Wright
voiced his support of the Union. Maintenance Manager Pike
admitted he knew Wright supported the Union because of
statements Wright made and because he observed Wright wear­
ing a union sticker. Electrical instrumentation foreman Jerry
Whitehead put on his evaluation of Wright “bad attitude.”
Whitehead admitted that he formed this opinion about Wright
based on comments he had heard Wright make in the staging
area. Whitehead also admitted he could not make any assess­
ment about Wright’s work, because he did not have enough
knowledge about it to comment on it.
Discriminatee George T. Yarbrough was one of the five em­
ployees who initially went to the Union to get the union cam­
paign started. Yarbrough gathered about 50 union authoriza­
tion cards and distributed about 75 union stickers. As a mine
examiner, Yarbrough traveled throughout half of the mine
every day. While traveling through the mine Yarbrough dis­
tributed union literature. As a mine examiner, Yarbrough’s job
required him to perform safety inspections. Mine safety was
the most important issue in the union campaign. In April, mine
manager Scott Schapkoff denied Yarbrough’s request to take
off on Easter Sunday. Schapkoff admitted that part of the rea­
son he refused was because Yarbrough supported the Union.
Maintenance foreman Roy Jones testified he knew discrimina­
tees Yarbrough, White, and Clarry were union organizers.
Staff engineer James Webb admitted he knew Yarbrough sup-
ported the Union. Production Foreman Doug Huie admitted he
knew Yarbrough was a union supporter and that he provided
Kerr-McGee’s management information about which employ­
ees supported the Union.
Respondent admits that mine superintendent Mike Davey,
mine managers Doug Grounds, Todd Grounds, William Pen-
rod, Scott Schapkoff, and James Wilson, Assistant Mine Man­
agers Robert Dupuis, Denzil Hughes, Terry Ward, and manager
of Employee Relations William “Bosco” Watson was supervi­
sors and agents of Respondent within the meaning of the Act.
Respondent denies that the production foremen, electrical in­
strumentation foremen, maintenance foremen, maintenance
department manager, and staff mine engineer were supervisors
or agents within the meaning of the Act.
The men who held these positions under Kerr-McGee held
the same positions under Respondent. They were not eligible
to vote in the May 1998 election among Kerr-McGee’s em­
ployees. And Respondent relied, along with other factors set
forth more fully below, on their evaluations of employees in
deciding which employees would be retained and which em­
ployees would be laid off. Lastly, the evidence at trial reflects
that the production foremen directed the work of crews of men
numbering between 8 and 10.
I find that the production foremen, electrical instrumentation
foremen, maintenance foremen, maintenance department man­
ager, and staff mine engineer are supervisors and agents of
Respondent within the meaning of Section 2(11) and 2(13) of
the Act.
D. Credibility Resolutions
In reaching the conclusions I reach that Respondent did not
violate the Act. I have made a number of credibility resolu­
tions. I will speak to a number of them separately.
1. Testimony of James Webb
James Webb was a staff mine engineer and after Respondent
took over the mine but before the layoffs were announced on
June 23, 1998 Webb testified he was interviewed by CEO
Robert E. Murray and Murray told him in the presence of Mark
Bartkowski and possibly Keith McGilton who came in during
the interview that he wanted a list of employees who were dead
wood and a list of employees who were union supporters be-
cause now is the time to get rid of them.
Webb said he prepared such a list and slipped it under the
door of the office of Steve Rowland, a Kerr-McGee manage­
ment official who did not go with Respondent.
The list contained the names of 25 hourly employees. They
were listed as “dead wood or attitude problem.” Some of the
names on the list were those of discriminatees in this case.
They were not specifically identified as union supporters and
some on the list were not union supporters.
Webb claims he listed 10 discriminatees among the 25 be-
cause of their support for the Union, and did not specifically
state they were union supporters or words to the effect because
he had been instructed by Kerr-McGee not to identify employ­
ees in writing as being union supporters. His evaluation ranked
1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
all sorts of people and is quite lengthy and at no point does it
state anything about a union.
Murray claims he never asked anyone for a list of union sup-
porters, which would include, of course, James Webb.
Mark Bartkowski was not called as a witness by either side.
Keith McGilton, a management official of Respondent, testi­
fied that no one was asked to make a list of union supporters.
Webb quit Respondent’s employ some 6 months after Re­
spondent took over the mine. At one point he made a claim
against Respondent with the Illinois Department of Labor for
vacation pay and severance pay.
Looking at Webb’s evaluation (GC Exh. 13 qq) which is
several pages in length and hearing the testimony of Webb,
Murray, and McGilton I do not credit the testimony of James
Webb.
2. Ed Williams and Vern Brotherton
Discriminatee Ed Williams, who had been a union man for
20 years, worked for Kerr-McGee. His immediate supervisor
was Production Foreman Dave Columbo. During the union
organizing campaign Columbo told Williams that he knew
Williams was prounion.
In his evaluation of Williams, Columbo wrote that Williams
was a “big union man.” According to Williams he and
Columbo had not gotten along.
Williams was laid off on June 23, 1998.
Williams testified that early in the summer of 1999 he went
to his daughter’s softball game and met and spoke with Produc­
tion Foreman Vern Brotherton. Williams asked Brotherton
why he (Williams) had been laid off and, according to Wil­
liams, Brotherton said it was because Williams had too much
union time and because of Dave Columbo, whom Brotherton
said he saw write down Williams’ name and put UMWA next
to it. In addition, according to Williams, Brotherton said
Murray asked him and other foremen to write down the names
of “troublemakers, union people, and a (sic) policy abusers.”
Brotherton admits he spoke with Williams at the game but
testified that Williams asked him if he could put Brotherton’s
name down as a job reference and Brotherton said yes. And
that was all that was said.
I credit Williams. He appeared honest and was corroborated
by the fact that Columbo did put in writing in his evaluation of
Williams that Williams was a “big union man.”
Brotherton’s statement to Williams is not alleged as a viola­
tion of the Act but was introduced by the General Counsel to
show Respondent’s motivation in selecting employees for lay
off.
Just because Brotherton thought that Williams was selected
for lay off because of his support for the union doesn’t make it
so.
Brotherton may have thought that this was the reason Wil­
liams was laid off and he is in good company because counsel
for the General Counsel firmly believes likewise but on the
basis of all the evidence I conclude otherwise. I do not credit
as accurate Williams’ statement in its entirety about what
Murray said to Brotherton and the other foremen. I do not find
that Murray asked the foremen to list “union people” but
Brotherton well might have said this to Williams.
3. Derek Haskins and Bruce Hill
Derek Haskins was laid off on June 23, 1998 but is not a dis­
criminatee in this case.
He testified that he spoke with Bruce Hill, Respondent’s vice
president for human resources, in October 1998 at a Days’ Inn
in Benton, Illinois in connection with resolving a matter and
Haskins told Hill that Haskins found it hard to believe that Re­
spondent laid off discriminatee Marty Gayer.
According to Haskins, Hill said if you think Marty Gayer
feels bad how do you think William “Bosco” Watson feels
because Watson was asked to prepare a list of which employees
supported the Union and then Respondent let Watson go. Wat­
son was manager of employee relations.
Bruce Hill admits he met with Haskins and said how do you
think Bosco Watson feel because Watson was asked to put
together a list one day and fired the next. But, according to
Hill, he was referring to a list of absenteeism and discipline and
not a list of union supporters.
I credit Hill over Haskins. I do not believe Haskins said any-
thing he did not believe to be the truth but it just doesn’t make
sense for Hill to have said to Haskins what Haskins claims he
said about Watson being asked to prepare a list of union sup-
porters.
Interestingly enough Watson worked in the building where
one of the 2 weeks of trial was held in this case. He was read­
ily available to be called as a witness. No one called Watson to
testify.
4. Allegations by Rocky Pike
Rocky Pike was a maintenance department manager who
was laid off in June 1998. He is a management official and not
a discriminatee.
In April 1998 CEO Robert Murray toured the Galatia mine.
This was before Respondent’s purchase of the mine. Murray
asked Pike if Pike thought the Union would win the election.
Pike said no and Murray said “good.” This is not alleged nor is
it an unfair labor practice. It does reflect that Murray would
prefer that the mine remain nonunion but I don’t believe that is
seriously disputed.
After Respondent took over the mine, Pike claims that he
was interviewed by Murray and Mark Bartkowski. Murray
read him a list of employees’ names and Pike was asked if they
were union supporters or not. Pike answered Murray but
doesn’t remember the names of the employees he was asked
about.
Bartkowski did not testify. Murray admitted he spoke with
Pike and more than 100 others just after taking over the mine
but denies Pike’s allegations that he asked about union support­
ers among the workforce. I do not credit Pike’s testimony.
Pike had a motive to fabricate, i.e., he had been fired by Re­
spondent.
5. Carlos Burton and John Dunn
Carlos Burton was laid off by Respondent on June 23, 1998
but is not a discriminatee. Burton testified that he ran into pro­
duction foreman John Dunn in a restaurant in Harrisburg, Illi­
nois, after he had been laid off.
AMERICAN COAL CO. 1055
He asked Dunn why he had been laid off and Dunn, who ini­
tially said he didn’t know why, said, after Burton kept pressing
him, that Dunn’s understanding was that people were laid off
because of workmen’s compensation, sick days, and union
support.
Dunn admits he ran into Burton at the restaurant but claims
he told Burton that he (Dunn) did not know why Burton was
laid off and didn’t say anything about the Union.
Dunn still works for Respondent. I found Burton to be quite
credible and believe that when Burton pressed Dunn as to why
Burton was laid off Dunn said that it could have been, in part,
because of Burton’s union activity. However that doesn’t make
it so. I find that Dunn really didn’t know why Burton was fired
but opined that workmen’s compensation, sick days and union
support were the reasons. Dunn may well have thought that
union activity by Burton was a factor in his layoff and possibly
others but I conclude otherwise.
6. Steve Falmier and Don Cotter
Steve Falmier was laid off by Respondent on June 23, 1998
but is not a discriminatee in this case. He testified that he asked
production foreman Don Cotter after Respondent announced
there would be lay offs if he (Falmier) would be kept on or laid
off. According to Falmier, Cotter said it would depend on how
active he was in the union and how many times he was hurt.
Cotter who left Respondent’s employ in early November
1998 did not testify.
Falmier appeared believable and I credit his testimony. I
find however that Cotter was expressing his opinion only.
Even if production foremen are supervisors and agents within
the meaning of the Act as I so find, they are low in the chain of
command and there is no evidence that I credit which puts them
in the group that made the decision as to who was laid off and
what the criteria was for being selected for layoff.
7. “Mysterious Markings” on GC Exhibit 5
General Counsel’s Exhibit 5 was a tally sheet Respondent
used to record evaluation scores given employees by foremen,
etc.
There is on GC Exhibit 5 something marked out or scratched
out above the names of some of the discriminatees, i.e., Bill
Bish, Bruce Clarry, George David Chick, Barbara Crabtree,
Ernest Eugene Harvel, David White, and George Yarborough.
However, there is something marked out or scratched out
above the names of several other people, i.e., Lynn Barnett, Bill
Beltz, Jim Benns, Kelly Hefner, Terry Johnson, Roger Joyner,
Ed Lanum, Tim Smith, Dave Spiller, Ron Wilson, and Sam
Woods, none of whom are alleged discriminatees and about
which there is no evidence they even supported the Union.
Respondent tried to explain the marked out or scratched out
portions above certain names by saying they made marks to
crosscheck similarly named persons on another list.
I don’t know why the marked out or scratched out areas are
there but it is for 7 of the 33 discriminatees and for another 11
person who are not discriminatees.
In other words, it doesn’t help one way or the other in decid­
ing whether or not Respondent violated the Act in any way.
E. The Layoff of 86 Hourly Employees to Include the 33 Al­
leged Discriminatees in this Case
As noted above Respondent took over the Galatia Mine on
June 16, 1998 and immediately set about the task of eliminating
salaried and hourly employees. Within a period of 4 days Re­
spondent had decided that 160 salaried employees and 86
hourly employees would be terminated. The legality of the lay
off of the salaried employees is not an issue in this case.
Further, it is not alleged that Respondent violated the Act in
conducting a lay off of hourly employees but only that Respon­
dent violated the Act in selecting the alleged discriminatees to
be among the employees laid off.
On June 17, one day after the closing, a transition team was
appointed by Murray to administer the managerial and opera­
tional transfer from Kerr-McGee to Respondent including the
proposed work force reduction. Most of the members of the
transition team were consultants retained by Respondent from
Murray’s other coal companies, and they were selected based
upon their individual expertise and experience in various areas
of the coal mining business. The transition team was com­
prised of the following individuals: Robert E. Murray;
Murray’s three sons Robert, Jonathan and Ryan; Donald Gen­
try; Maynard St. John; William Mallicoat; Mark Bartkoski, Eric
Anderson; Clyde Borrell; Robert Moore; Paul Piccolini; John
Forrelli; Greg Smith; Jerry Taylor; Jerry Fankhauser; Ernie
Martin, Pat Swallie, and Keith McGilton. No member of the
team had ever been employed by Kerr-McGee, nor did any
member have any prior knowledge of the mine or its hourly or
salaried employees.
Within hours after their appointment to the transition team,
team members traveled to Galatia from various locations out-
side Illinois to begin taking control of the business. Following
their arrival in Marion, Illinois, at approximately midnight on
June 17, the team was assembled in a local hotel conference
room for a meeting regarding the transition process. There,
Donald Gentry, the newly appointed president of Respondent,
and Murray outlined a multitude of tasks to be completed by
the team when they visited the mine later that morning. These
tasks included delivering insurance and permit bonds to gov­
ernment agencies (to transfer title of the mine to Respondent)
and analyzing the mine’s myriad departments and processes for
wastefulness and areas for improvement. In addition, and most
critical for the eventual success of the operation, the transition
team was advised of the economics behind the planned reduc­
tion-in-force, citing the projected staffing figures in the finan­
cial plan, and the critical importance of effectuating layoffs
within a matter of days.
Regarding hourly employees, Murray asked the transition
team to retain the best employees, based on their objective
work records. Although he added that attendance data, safety
records, discipline histories, versatility, years-of-service, and an
employee’s ability to help the company were relevant consid­
erations, he left it to transition team members to develop the
precise criteria for assessing their performance. Team members
were not instructed to consider union affiliations or preferences,
nor was there any discussion at the meeting, or any subsequent
meeting, pertaining to unions, the United Mine Workers or the
mine’s recent organizing campaign and election.
1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Later that same morning (June 17), after arriving at the mine,
the transition team convened in the staging area of the mine’s
administration building. At approximately 6:30 a.m., before
the morning crew began its shift, the new owners conducted the
first of a series of meetings with the workforce. At this meet­
ing, and at subsequent meetings that day with other crews, the
future of the Galatia operation was discussed, including mining
locations, safety, scheduling, fostering communication with
management, various customer issues, upgrading mine infra­
structure (e.g., improving the mine’s belt system, preparation
plant and other raw coal handling facilities) and the acquisition
of coal reserves. It was also announced that although most
existing employee programs would remain in place under Re­
spondent’s management, Respondent would eliminate the Kerr-
McGee antinepotism policy, restructure management and
downsize the salaried and hourly staff. In particular, regarding
hourly layoffs, Murray apprized the work force, as he had in-
formed the transition team, that all employment decisions
would be performance based.
Over the next 6 days, beginning on June 18, the transition
team worked virtually around the clock to accomplish their
assigned tasks, including preparation for the imminent reduc­
tion-in-force. Given the economic pressures to reduce the
workforce as articulated in the financial problems it was deter-
mined that termination decisions had to be made within a mat­
ter of days. On June 23, only 6 days after arriving in Galatia,
the team finalized its determinations and notified approximately
86 hourly employees of their termination. The salaried reduc­
tions of approximately 160 employees (“2 salaried for every
hourly person, because they were top heavy in management”)
were accomplished within the same timeframe.
Shortly before the formal closing, Gentry asked a senior of­
ficer with Kerr-McGee in Oklahoma to provide a current em­
ployee roster and attendance records for Galatia employees in
preparation for the reduction in force contemplated by the fi­
nancial analysis. The employee roster information was pro­
vided to Gentry and the data was transposed into an Excel
worksheet format, detailing each employee’s name, job title,
pay rate, hire date and birth date. Prior to the transition team’s
arrival at the mine on June 17, the mine’s personnel and payroll
departments gathered various personnel data regarding work-
days missed, disciplinary letters received, letter-grade perform­
ance ratings created by Kerr-McGee managers prior to the sale,
and a document listing the number of absence occurrences for
hourly employees. The performance ratings filled out some
months before the sale to Respondent were not used as it turned
out. As noted above Respondent relied on performance evalua­
tions filled out just after Respondent took over the mine. Other
than providing this data to the transition team, current or former
Kerr-McGee management did not participate in the evaluation
of employees or in the selection of employees for layoffs, and
at no time did Kerr-McGee ever provide Respondent with any
information, either written or oral, regarding the union or non-
union preferences of any of its employees.
As personnel data was gathered, it was provided to two
members of the transition team, Eric Anderson, an operations
engineer for Maple Creek Mining in Bentlyville, Pennsylvania,
and Clyde Borrell, a senior projects engineer for the Ohio Val-
ley Coal Company in Aladonia, Ohio, who were initially
charged with assimilating the material. I credit the testimony of
Anderson and Borrell. To accomplish this task, Anderson dic­
tated the numbers to Borrell, who entered them on his laptop
computer into an evolving spreadsheet. Borrell had been se­
lected for a central administrative role in the hourly reduction-
in-force selection process because of his expertise in spread-
sheet programs and statistics, including data entry. Given the
volume of employees under consideration, it was clear from the
earliest stages of the transition process that large amounts of
information would be analyzed. As the process continued and
new information was provided to Borrell, he added the data to
his laptop computer’s data base, eventually generating a com­
prehensive spreadsheet which was used as the basis for the
reduction selections.
Given their goal of retaining the best employees, it was nec­
essary to determine the precise criteria by which the top per-
formers could most accurately and most expeditiously be iden­
tified. To this end, prior to settling on three primary factors, the
suitability of numerous performance-related criteria were con­
sidered. Ultimately, several criteria were excluded as too sub­
jective or ambiguous, and—because of the short time period
involved— impracticable. Specifically, safety infractions noted
in employees’ records were not considered as an appropriate
yardstick for layoffs, unless the infractions involved
insubordination, since underlying information regarding safety-
related incidents would be difficult to gather. It was also
concluded that it would be arbitrary, for comparison purposes,
to assign concrete numbers to different types and degrees of
safety infractions. Length-of-service was also rejected as a
factor, since newer employees in Respondent’s nonlegally
objectionable judgment were not per se less valuable than em­
ployees with longer work histories. Additionally, the employee
ratings contained in the Kerr-McGee hourly employee perform­
ance evaluations—95 percent of which rated employees
“Meets” expectations or higher—were too uniformly positive
and superficial to be of use (Of the 443 employees who
received Kerr McGee letter ratings, 308 (or 69.5%) received
“Meets” ratings and 107 (or 24.1%) received “Exceeds”
ratings). The relative homogeneity of these ratings did not
meaningfully differentiate one employee from another, thus
depriving them of evaluative utility in the process.
In the end, three criteria were selected upon which to base
individual termination decisions: (1) the average number of
yearly absence occurrences for each employee (over a 3.5 year
period); (2) the total number of disciplinary letters on file for
each employee (for the past 3.5 years); and (3) contemporane­
ous performance ratings completed by foremen, supervisors,
and management during the days immediately preceding the
layoffs. These factors were considered to be objective and
quantifiable, and amendable to a numerical, systematic analysis
—an important consideration given the number of terminations
to be effectuated within a very short time period. As the proc­
ess moved forward, the quantitative numbers derived from
these three factors dictated the termination decisions.
With respect to the first factor, by considering absence oc­
currences rather than straight absences, Respondent wanted to
distinguish employees who were sporadically absent—whose
AMERICAN COAL CO. 1057
frequent absences disrupted the workforce and created repeated
scheduling problems—from those employees who may have
incurred numerous absences as the result of infrequent but pro­
tracted illnesses or injuries. Thus, based on documentation
listing the yearly occurrence figures for each mine employee,
the transition team members generated an Occurrence Rate,
which it used as a key numerical benchmark for determining
who would be terminated. This Occurrence Rate was deter-
mined by dividing the number of occurrences by 3.5, or a lesser
number if the employee in question had not been employed by
Kerr McGee for at least 3.5 years.
The second factor relied upon was supervisor evaluations, or
foreman ratings. To gather these ratings, transition team mem­
bers instructed foremen and supervisors to evaluate employees
with whom they had directly worked and to evaluate other em­
ployees if they had knowledge of the performance of such em­
ployees. They were told to base their evaluations of the em­
ployees’ work records, to rate the employees using a “1” to
“10” scale (“10” being the most favorable) and to return the
completed ratings within 2 days—by June 21.
As the foremen and supervisors completed their evaluations,
they delivered them to Anderson and Borrell. Anderson re-
viewed and recorded the numerical ratings and, where neces­
sary, converted reviewers’ narrative comments into numerical
“1” to “10” ratings when the reviewers failed to do so. Where a
reviewer submitted written comments instead of numerical
ratings, it was Anderson’s responsibility to critically review the
comments and convert the reviews into numerical ratings. In
accordance with explicit instructions from Gentry, Anderson
based all of his numerical ratings solely on work-related com­
ments, and he ignored any remarks unrelated to actual work
performance. In the six isolated cases (of the more than 1800
evaluations) where supervisors’ comments specifically alluded
to an employee’s union preference, Anderson ignored such
comments when formulating his ratings.
As Anderson reviewed the supervisor and foreman evalua­
tions, he compiled a table with corresponding numerical ratings
adjacent to each employee’s name. Depending upon the num­
ber of foremen who had evaluated a given employee, Anderson
tabulated, with a red-inked pen, one to twelve individual ratings
for each employee. Since Anderson knew neither the foremen
completing the evaluations nor the employees being evaluated,
and because he did not have sufficient time to contact the
evaluators to request follow-up information or investigate the
specific criteria used in the foremen’s comments, Anderson’s
task was limited to interpreting and recording the evaluations as
written. After Anderson had recorded all of the individual
foreman scores on the tabulation sheet, he read them to Borrell,
who entered these figures into the master spreadsheet on his
laptop computer. Using an averaging function in the spread-
sheet program, Borell thereafter generated an average foreman
rating for each employee.
The third factor, which was reflected in a handwritten tally
on Anderson’s tabulation sheet (GC Exh. 5) under the heading
“Discipline,” was the number of discipline letters in each em­
ployee’s Kerr-McGee file. This data was also entered into the
spreadsheet by Borrell. In some cases, asterisks were noted
next to employees’ names on the tabulation sheet to highlight
disciplinary letters for egregious conduct, such as insubordina­
tion or safety violations where an employee was put at risk of
bodily injury.
After all of the data pertaining to employee occurrences, dis­
cipline and foremen ratings was synthesized in the spreadsheet
by Anderson and Borrell, certain threshold determinations were
made regarding unacceptable and “gray-area” scores in each
category. With respect to occurrences, an Occurrence Rate of
“3.0” was deemed generally unacceptable, thus placing an em­
ployee with such a rate in the category of likely terminations.
Those employees whose Occurrence Rates were slightly above
or below “3.0” were considered to be in the gray area, and,
depending on the two other key criteria—Foreman Rating and
prior disciplinary letters—may or may not have been retained.
Regarding the foreman evaluations, each employee’s nu­
merical foreman rating was determined by dividing his or her
total number of individual rating points (as recorded in Ander­
son’s tabulation sheet (GC Exh. 5), by the number of foreman
who evaluated that employee. In general, a foreman rating
below five was considered “less than desirable.” Here too,
however, there existed a range—slightly above or below
“5.0”—where, depending on the employee’s two other rank­
ings, the employee could have been selected for either termina­
tion or retention.
With respect to disciplinary letters, in most cases the pres­
ence of such a letter in an employee’s file resulted in an unfa­
vorable view towards the employee’s continued employment,
especially if the employee’s Occurrence Rate or Foreman Rat­
ing was in the gray area. Absent very favorable ratings in the
other factors, the presence of more than one disciplinary letter
resulted in the employee’s termination. In a few select in-
stances, the reason for the discipline (i.e., the severity of the
employee’s offense or insubordination) was considered, and in
such cases, the discipline letter tabulations were cross-
referenced to ascertain whether the particular employee’s disci­
pline letter was severe, as indicated by an asterisk.
Two groups of employees were exempted from the review
process: (1) employees on a workers’ compensation leave of
absence, and (2) employees in the Mine’s Preparation Plant
(“Prep Plant”). Employees in these categories were all re­
tained, regardless of the individual rankings. With respect to
Prep Plant operators, they were excluded from the spreadsheet
(and thus retained) due to the highly technical nature of their
work and the importance of running the Plant as efficiently as
possible during this critical period. During the transition proc­
ess, at the request of mine supervision, four additional employ­
ees were removed from surface or underground jobs and reas­
signed to the Prep Plant because according to Clyde Borrell the
“[P]lant was way behind in production.” Employees who were
on Workers’ Compensation leaves also were exempted from
the termination process. In addition, for purposes of affirma­
tive action, in several instances individual employees e.g., Gary
Young (multiple sclerosis), Charles Duie (Black) and Barbara
Strickler (woman), within certain protected categories (e.g.,
African Americans, women, disabled individuals), whose
scores would otherwise warrant possible terminations, were
retained.
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1058 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Based on the team’s analysis of Occurrence Rates, Foreman
Ratings and Discipline Letters, 86 hourly employees were se­
lected for termination. While some were selected because their
numerical score in one of these categories was below the ac­
ceptable parameters set by the transition team, the majority was
selected because their scores in more than one category, either
independently or taken together, warranted their termination.
The following 14 alleged discriminatees were selected for
termination because their scores in more than one of the dispo­
sitive categories (i.e., Occurrence Rate, Foreman Rating and
Discipline Letters) —either independently or taken together—
warranted their termination:
Name Occur- Foreman Discipline
rence Rating Letters
Rating
1. David Amberger 3.14 6.0“ at least one”
2. Michael Brogan 4.57 2.7 “serious disci­
pline letter”
3. Benjamin Cain 2.69 6.31
4. Lawrence Carmon 2.86 5.0
5. George Chick 3.43 2.31
6. Tony Crisp 3.43 2.4 “at least one"
7. Mark Donoghue 2.86 6.8 “at least one”
8. Dennis Lampert 3.71 5.4
9. Allan Minton 3.71 4.3
In addition, 19 other employees, who were not discrimina­
tees, were layoff for this reason.
One alleged discriminatee, Lance Damm, was terminated be-
cause he had four discipline letters in his Kerr-McGee file.
Finally, the following four alleged discriminatees were se­
lected for termination due to Occurrence Rates that were unac­
ceptable or in the gray area:
Name Occurrence Rate
1. Mark Anderton 3.14
2. Larry Thuillez 2.57
3. Kenneth Wallace 6.0
4. Charles Wright 2.86
In addition, 10 other employees, who were not discrimina­
tees, were laid off for this reason.
F. Further Discussion
It is clear from the record that after Respondent took control
of the mine on a number of occasions at various awareness
meetings between management and employees, CEO Robert E.
Murray told employees that they had made the right decision in
voting against union representation when the mine was owned
by Kerr-McGee.
It is also clear that when Murray was asked at awareness
10. Bernard Reynolds 3.43 2.7
11. Timothy Russell 3.14 3.8 “at least one”
12. Thomas Simpson 4.4 4.4 “at least one”
13. William Slankard 0.0 3.5 “severe disci­
pline letter”
14. Edward Williams 3.25 2.6
In addition, 21 other hourly employees, who were not dis­
criminatees were layoff for this reason.
The following 14 alleged discriminatees were selected for
termination because of Foreman Ratings that were either in the
“unacceptable” range or in the lower range of the gray area:
Name Foreman Rating
1. James Barton 1.0
2. Wayne Beal 2.0
3. Ernest Harvell 2.0
4. William Bish “considerably below 5”
5. Bill Bishop 2.6
6. Larry Brown “considerably below 5”
7. Larry S. Brown 1.0
8. Bruce Clarry 4.0
9. Barbara Crabtree 3.5
10. Marty Gayer 4.0
11. Dolly Monte 2.0
12. Michael Vosbein 2.6
13. David White 1.8
14. George Yarbrough 1.6
meetings between management and employees if he would
have bought the mine if the employees had voted to be repre­
sented by a union Murray, using his fingers, informed employ­
ees that the chances of him buying the mine if it were union
were “zero.”
In January 1999, more than 6 months after the layoff, it be-
came apparent that Respondent needed to hire some additional
miners to work on weekends. They were referred to as “week-
end warriors.” At a series of awareness meetings in early Janu­
ary 1999 CEO Robert E. Murray spoke about the need to hire
these additional mines.
It is alleged in the complaint that Murray “informed employ­
ees that Respondent would not hire employees who supported
the union” and that Murray “informed employees that it had
terminated employees because of their support for the union
and now that it was rehiring it would not hire employees who
supported the union.”
In support of these allegations, which, of course, if true
would throw light on Respondent’s motivation in laying off
certain personnel in June 1998, the General Counsel offered
four witnesses, Charles Jacoby, Jan Consi, Debra Mikalauskas,
and Marty Yosanovich.
All four had survived the layoff in June. All four testified
about Murray’s statements at the January 1999 awareness meet­
ings. The same awareness meeting would be held for different
elements of Respondent’s workforce.
Charles Jacoby, who worked on A crew, testified that
Murray stated that he wanted to hire young “non-union ori­
ented” people.
Jan Consi, a member of D crew, who voluntarily resigned
from Respondent’s employ in March 1999, testified that at the
AMERICAN COAL CO. 1059
meeting she attended Murray said that Respondent needed to
hire young, experienced “non-union oriented employees.”
Debra Mikalauskas, a member of C crew, also testified that
Murray in the January 1999 awareness meeting she attended
said he wanted to hire experienced “non-union oriented” work­
ers.
Lastly, Marty Yosanovich, a member of C crew, testified
that Murray wanted experienced people but he did not want to
hire “union people.” In February 1999 Yosanovich got into a
dispute with management and was asked to quit or he would be
fired. Yosanovich quit.
Interestingly enough Yosanovich by his own admission was
antiunion during the campaign. Both Consi and Mikalauskas
were prounion during the campaign, and in their opinion, man­
agement knew they were prounion and both survived the June
1998 layoff. However, they are both women and Respondent
admits it discriminated in favor of women. In addition, Dwight
Pray, who did not testify, was active on behalf of the Union and
one of two union observers at the election and he also survived
the layoff. Again, Respondent admits it discriminated in favor
of minorities and Pray is an African-American.
I found Jacoby, Consi, Milkalauskas, and Yasanovich to be
credible witnesses and I have no doubt they told what they
believed to be the truth. However, Respondent called a large
number of witnesses all of whom also appeared credible to
testify that Murray did not say what Jacoby, Consi, Mi­
kalauskas, and Yosanavich testified he said about wanting to
hire “non-union oriented” workers or not wanting to hire “un­
ion people.” The witnesses who contradict the General Coun­
sel’s four witnesses were Michael Jeter, Dan Inabit, Lester
Burklow, David Dixon, Francis Hammer, Christopher Barter,
Kenneth Hoercher, David Sneed, Dwight Jackson, Travis Tate,
and Rodney Powell.
Dudley Williams credibly testified that he recommended two
people to be hired after the January 1999 awareness meetings
and both were hired and both were union men.
In February 1999 Respondent hired approximately 70 em­
ployees and 70 percent of those hired had a union background.
A number of Respondent’s witnesses who testified that
Murray never said he wanted to hire “nonunion oriented” em­
ployees or “nonunion” employees readily admitted that Murray
said things that were antiunion, e.g., Francis Hammer testified
that Murray had said he was glad Respondent was non-union,
Christopher Barter testified Murray said he was not in favor of
the union, David Sneed testified that Murray said he would
prefer the mine to be union free and Dwight Jackson and Travis
Tate testified that Murray said he would not have bought the
mine if it had gone union.
While a fact finder may credit one witness over several wit­
nesses who contradict that witness I find in light of all the tes­
timony that the General Counsel’s four witnesses are mistaken
about what Murray said in the January 1999 awareness meet­
ings. The only question is the reliability of their testimony.
The testimony of the witnesses for the Respondent on this is-
sue, i.e., the 11 referred to above plus Murray and Vice Presi­
dent for Human Resources Bruce Hill cause me to conclude
that the General Counsel has failed to prove by a preponder­
ance of the evidence that Respondent violated Section 8(a)(1)
of the Act by Murray’s statements at the January 1999 aware­
ness meetings.
The testimony from Respondent’s highest management, i.e.,
CEO Robert E. Murray, was that foremen and others who filled
out evaluations on employees were told that they were not to
consider the union affiliation of employees they were evaluat­
ing. A large number of such persons testified they did not con­
sider union affiliation or sentiment in the evaluations they fur­
nished and were told not to consider union affiliation in making
their evaluations.
They were as follows: Charles Bowlin, Donald Eroh, Doug
Harver, Roy Jones, John Dunn, Calvin Melvin, Dan Ramsey,
William Penrod, David Strunk, Jimmy Wilson, Steve Roye,
Vern Brotherton, Dave Columbo, Duane Lampert, Vernon
Dunn, James Allen, Jerry Whitehead, Daryl Tolbert, Doug
Huie, Robert Conn, William Devine, Denzil Hughes, Bruce
Hill, and Bob Dupuis.
William Penrod, who is noted above, no longer worked for
Respondent when he testified before me but his current em­
ployer has Respondent as a customer. Steve Roye and William
Devine, also noted above, no longer work for Respondent.
Denzil Hughes did not work for Respondent when he testified
before me but had applied for a job with Respondent.
The principal issue in this case is not whether Respondent is
nice or not but whether Respondent violated the Act in select­
ing the discriminatees in this case for layoff because of their
union affiliation or their support for the Union and in order to
discourage employees from engaging in these activities.
A large number of employees were laid off, i.e., 160 salaried
and 86 hourly employees. Statistically we can assume that
many had families, some had disabled children, and some had
fought in battle for their country. Life can indeed be tough.
It is not alleged that Respondent did anything unlawful in ef­
fectuating the layoffs. The only question is whether or not the
employees selected for lay off were selected in an unlawful
manner. In other words the same number of employees with
the same statistical profile were going to be laid off whether
Respondent selected the employees to be laid off in a lawful or
an unlawful manner.
I find that Respondent applied neutral objective criteria in se­
lecting employees for lay off and did not violate the Act when
it laid off the 33 alleged discriminatees in this case. In reaching
this conclusion I rely on the Board’s landmark decision in
Wright Line, 251 NLRB 1083 (1980), enf’d, 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 US 989 (1982). I find Respondent
would have selected for lay off the alleged discriminatees in
this case even if they had not been active in the union or sup­
portive of the union.
CONCLUSIONS OF LAW
1. Respondent, The American Coal Co., is an employer en-
gaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. The United Mine Workers of America is a labor organiza­
tion within the meaning of Section 2(5) of the Act.
3. Respondent did not violate the Act as alleged in the com­
plaint.
1060 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On these findings of fact and conclusions of law and on the ORDER
entire record, I issue the following recommended2 The complaint is dismissed in its entirety.
2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Board and all objections to them shall be deemed waived for all pur-
Rules and Regulations, the findings, conclusions, and recommended poses.
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the