The Mower Lumber Co.

National Labor Relations Board - Board Decisions

Sep 26, 1985

276 N.L.R.B. 766 (N.L.R.B. 1985)

766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Mower Lumber Company and/or its ' Subsidiary
Newera Resources - Corp . and United Mine
Workers, of America : Case 6-CA-T6809-
26 September 1985:_•
DECISION AND ORDER
BY MEMBERS'DENNIS , JOHANSEN, AND
BABSON
On 10 May 1985 Administrative Law Judge
Bruce C . Nasdor issued the attached decision. The
General Counsel and the Charging Party filed ex-
ceptions and supporting briefs, and the Respondent
filed a brief in response to the exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings , findings,] and
conclusions2 and to adopt . the recommended
Order.
ORDER
The complaint is dismissed.
i The General Counsel and the Charging Party have excepted to some
of the judge's-credibility findings The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd
188 F 2d 362 (3d Cir 1951) We have carefully examined the record and
find no basis for reversing the findings
The General Counsel further excepts to the judge's finding that the
employees who signed authorization cards in March 1983 were on layoff
status at that time and his finding that the Respondent hired "several
active union adherents " We find merit in these exceptions The record
indicates that of the eight employees who signed cards, only Gum, Wood
Jr, Broschart, and possibly P Channell were on layoff status Further,
although two employees hired, P Channell and Broschart, signed author-
ization cards in 1983, there is no evidence that any of the individuals
hired by the Respondent were active union adherents These findings,
however, do not 'affect the result herein
2 The General Counsel and the Charging Party contend that Black and
Vandevender"were supervisors or agents of the Respondent We agree
with the judge that, for the reasons stated by him, these individuals were
not supervisors within the meaning of the Act. We further, note that al-
though the Respondent sought the opinions of Vandevender and Black as
to the skills and qualifications of prospective employees, there is no evi-
dence that these opinions were the only source of information on which
the Respondent relied in making its hiring decisions Moreover, to the
extent that individuals were interviewed by the Respondent, it clearly
had an independent basis for its selections Even assuming, however, that
the Respondent relied solely on Vandevender's or Black's comments and
opinions, there is no evidence that Vandevender or Black considered pro-
spective employees' union activity in formulating their views and no evi-
dence that the Respondent directed that they take such activity into ac-
count We therefore conclude that there is no basis for finding that Van-
devender or Black acted as agents of the Respondent
We note no exceptions have been taken to the judge's conclusion that
Respondent Mower and Respondent Newera are joint employers -
Stanley R. Zawatsky, Esq., for the General Counsel.
David Johnson, Esq., for the Respondent.
'DECISION
STATEMENT OF, THE CASE
BRUCE C. NASDOR , rAdministrative Law Judge. This
case was tried at Elkins , West Virginia, on 2 and 3 May
1984. The charge and first amended charge were filed on
12 October 1983,1 and 23 November 1983, • respectively,
by the United Mine Workers of America (the Union). A
complaint issued on 30 November 1983, and an amend-
ment to the complaints issued on 12 April 1984 , alleging
that , in addition to the individuals previously designated
as agents and/or supervisors of Respondents in the origi-
nal complaint , Robert L . Black , of Respondent Newera,
was also a supervisor and agent of Respondents within
the meaning of Section 2(11) and ( 13) of the Act. The
complaint alleges violations of Section 8(a)(1) and -(3) of
the National Labor Relations Act.
On the entire record ,2 including my observation of the
demeanor of the witnesses and after due 'consideration of
the briefs ,3 I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Mower at all times material is a West Vir-
ginia corporation with its principal offices located in
Durbin , West Virginia , where it has been engaged in the
operation of various diversified businesses located in var-
ious States of the United States. -
During the 12-month period ending 31 October 1983,
Respondent Mower , in the course and conduct of its
business operations , purchased and received -products,
goods , and materials valued in excess of $50 ,000 directly
from suppliers located outside the State to which the
goods and materials were delivered . During the same
period of time Respondent Mower sold and shipped
products , goods , and materials valued in excess of
$50,000 from its various facilities to points located out-
side the States in which its facilities are located. -
Respondent Newera at all times material is a West
Virginia corporation with an office and place of business
in Durbin , West Virginia (Respondent Newera's facility),
where it is engaged in the operation of a coal preparation
plant.
Since commencing operations about 15 June, Respond-
ent Newera in the course and conduct of its operations
has sold and shipped from its Durbin, West Virginia fa-
cility products, goods , and materials valued in excess of
$50,000 directly to points located outside the State of
West Virginia. -
Respondent Newera is a wholly owned subsidiary of
Respondent Mower.
At all times material, Respondents Mower and Newera
are employers engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
All dates are in 1983 unless otherwise specified.
z The General Counsel's unopposed motion to correct the transcript
and admit an exhibit is granted -
8 Deborah Stern, counsel for the Charging Party, also submitted a
brief
276 NLRB No. 86
MOWER LUMBER CO 767
II THE LABOR ORGANIZATION
The United Mine Workers of America is now, and has
been at all times material , a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A The Issues
1. Whether Respondents constitute a joint employer.
2. Whether the alleged discriminatees Gerald E. Gum,
Curtis F. Hayes, Troy McCauley, Thomas W. Meadows,
Donald D. Wood Sr., and Donald D. Wood Jr. were
denied employment by Respondents, and were not given
consideration for employment in violation of Section
8(a)(1) and (3) of the Act -
3. Whether David L. Vandevender and Robert L.
Black are supervisors within the meaning of Section
2(11) of the Act, and agents of Respondents within the
meaning of Section 2(13) of the Act.
B. The Facts
Prior to 15 June 1983, Ingram Coal Company owned
and operated a coal preparation facility known as the
Cheat Bridge preparation plant. In approximately 1979,
Ingram purchased New Era Resources, Inc., and its
assets which included the Cheat Bridge Prep plant. The
operations of New Era Resources, Inc. merged into
Ingram and became known as Ingram 's Elkins Division.
During 1981, alleged discriminatee McCauley set up a
meeting with union organizers which took place at a
park in Huttonsville, where employees signed union au-
thorization cards. Originally McCauley had been ap-
proached by employee Vandevender, who suggested that
the employees would benefit from union representation.
Thereafter, an RC petition was filed by the Union with
the National Labor Relations Board, seeking to represent
Ingram employees. According to the testimony of Hayes
and McCauley, Vandevender changed his allegiance and
told employees that Ingram would either shut down or
sell the plant if the Union was successful in its organiz-
ing.' Hayes testified that he, Meadows, Gum, McCauley,
and Dixon were outspoken in their prounion positions.
This outspokeness, according to McCauley, occurred
during discussion with their coworkers as well as at
meetings with management According to the testimony
of McCauley, Black stated at meetings that the employ-
ees did not need the Union. This in Black's opinion was
based on the wages and apparently the benefits employ-
ees were receiving. The Union lost the election which
was conducted in September 1981, where Gum acted as
the Union's observer and Vandevender acted as the Em-'
ployer's observer.
Some time in August 1982, the Cheat Bridge Prep
plant laid off its employees. Some were recalled from
layoff while others, namely, Wood Jr., Channell (Pete),
Channell (Tim), and Brochart were not recalled from
layoff. Gum was on workmen's compensation at the time
of the layoff but was placed in layoff status in September
1982, when he was released to return to duty.
In-March 1983, Hayes and McCauley again sought
union representation and met with organizers at McCau-
ley's house. A meeting was arranged between the union
organizers and the employees of the Cheat Bridge Prep
plant to be conducted at a motel on 31 March 1983. At
this meeting, Hayes, McCauley, Wood Sr., Wood Jr.,
Meadows, Channell (Pete), and Brochart signed union
authorization cards 5 The next day Gum, also signed a
union authorization card. An RC petition was filed on 7
April 1983 in Case 6-RC-9345.
In October or November 1982, Respondent Mower
Lumber Company commenced negotiations with Ingram
for the purchase of the prep plant. On 11 May 1983,
Newera, a wholly-owned subsidiary of Mower, was in-
corporated, and on 15 June 1983, purchased assets from
Ingram including the Cheat Bridge Prep plant. At the
time of the incorporation, Ralph L. McDonald, vice
president of Mower, was named president of Respondent
Newera.
The initial negotiations for the sale of the prep plant
and other assets were conducted by Ingram as seller and
Mower as purchaser. Respondent Mower created the
wholly-owned subsidiary Respondent Newera so that the
name could identify and be related to the original New
Era Resources, Inc.
McDonald testified that during the negotiations be-
tween Mower and Ingram there was no discussion with
regard to the ongoing organizational campaign among
Ingram's employees. On 15 June 1983 Newera represent-
atives were told that the RC petition at Ingram had been
filed, and that Ingram had petitioned for a delay because
of the pending sale of the facility McDonald testified
that' this was the first time that he had become aware of
the 1983 union campaign.
Exhibit 39 of General Counsel's Exhibit 5, which is
the sales agreement between Ingram and the Respond-
ents, list .the petition filed before the ' Board in Case 6-
RC-9345. , In spite of knowledge by Newera of the
Union's organizational efforts, the sale was consummat-
ed.
After Ingram submitted a memorandum of sale dated
15 June 1983, the Board's Regional Director for Region
•6 approved a withdrawal request by the Union, and the
petition was, withdrawn. _
On 15 ^ June 1983 Ingram notified ' its employees that _
they were being laid off and that they should report to a
company meeting on 17 June at 'Ingram's offices in
Elkins, West Virginia. At this meeting Ingram's manage-
ment advised the hourly employees who were working
at the 'prep plant that the facility had been sold to
Mower, and that ' if they desired to continue their em-
ployment with Mower, they should contact Mower's of-
fices in Durbin, West Virginia, with regard to the possi-
bility of employment. Ingram officials also advised the
employees who attended the meeting, Gum, McCauley,
Hayes, Meadows, Wood Sr., Cassidy, Rexrode, Vande-
* This is not alleged as an independent violation of Sec' 8(a)(1) of the
Act 5 These employees were still in layoff status
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vender, and Glendenning, that insurance would continue
until the end of July.
After the meeting, in a parking lot next to the build-
ing, McCauley and Hayes told the other employees they
had arranged a meeting with the union representatives to
discuss Ingram's sale. All employees were invited to
attend, but Vandevender, Glendenning, and and Rexrode
declined. The other employees met with the union repre-
sentatives at the "Big T" restaurant in Elkins, West Vir-
ginia. According to the testimony of Gum, the employ-
ees went inside the restaurant to eat and then went out-
side to discuss what was going to happen to them. Gum
testified at that time that McDonald drove through the
parking lot, turned around, and left. There is no evidence
that McDonald addressed any of the employees nor was
there any direct testimony that he observed the employ-
ees
On 15 June 1983 Lonzo Patton was hired by Newera'
as manager of the preparation plant. He had previously
been employed by Enviro Energy Corporation, which
was another Mower subsidiary. Patton testified that he'
was aware of the fact that there had been an organiza-
tional drive in 1981, which resulted' in an election, but he-
knew nothing of the Union's organizational efforts
among Ingram's employees in 1983. He had taken a leave
of absence in August 1982,;when he went to Greenbriar
County for the year. Thus,-he was away from the area
from August 1982 until June 1983. The coal being pro-
duced or acquired by Mower and its subsidiary, Enviro,
was being trucked long distances to be prepared for sale
at other preparation plants at the time Newera acquired
the preparation plant. Also, as testified to by McDonald,
Newera's agreement with Ingram provided that Newera
would process a stockpile of coal created- by Ingram
prior to the sale. Moreover, immediately following ' the
sale, Newera received a raw coal order. Therefore,
McDonald testified that key personnel were needed im-
mediately for orders upcoming as well as the raw coal
order. Newera had orders to fill that required cleaning,
although they were not large orders. McDonald testified
that people were needed to operate the plant, to do all
types of maintenance and repair work, and be able to
interchange from 'the first day, because Respondent
Newera ascertained that a variety of things that were
wrong had to be remedied. Management was looking for
employees with very broad background experience,
rather than single job type experience, -they must have
the capabilities of doing "just about anything that had to
be done in the plant operations."
McDonald continued to testify that one of the top pri-
orities was to hire personnel to operate the plant,analysis
laboratory because of the need to put the lab in oper-
ation immediately for purposes of quality control analysis
at the plant, and to avoid the costs involved in sending
coal samples to an independent outside laboratory for
analysis . Another priority was to hire an employee to
perform coal quality analysis- with respect to environ-
mental control, and a need for two employees who had
combined abilities to operate, the plant and do repair and
maintenance work in the plant. McDonald testified fur-
ther that another priority was to hire an experienced em-
ployee to work the refuse site at which residual material
is disposed of.
In conformity with its priorities, the first individual
hired by Respondent Newera was Black, who had per-
formed lab work and coal analysis for Ingram. McDon-
ald contacted Black immediately prior to the closing of
the sale and discussed employing him to do the same
type of work. McDonald testified that Black was not of-
fered the job until Ingram closed, but that he, McDon-
ald, made an inquiry prior to the closing as to Black's
availability. Black was hired to begin work for Newera
on June ' 15, 1983. Black testified, "but then he [McDon-
ald], you know, asked me if I would-I would probably,
you know, be staying."
McDonald was cognizant of Black's performance, had
observed his work, and knew his qualifications.
-McDonald was also familiar with the work of employ-
ee- Isner . He held Isner in high regard and he asked
Black his opinion. Phil Isner had worked for a number of
years in Ingram's laboratory along with Black. Black
recommended Isner stating that he was a good worker
and was familiar with the lab apparatus Therefore, Isner
was hired at approximately the same time as Black on
the basis of McDonald's personal knowledge and the
opinion of Black. .
Black and Isner performed the same functions, i.e.,
testing coal to determine that incoming and outgoing
shipments met certain contract specifications. After
Black is told what needs to be done on any given day,
he relays his instructions to Isner. Black testified that he
spends most of his time iii the lab, running samples. He
further testified candidly that he did not support the
Union during the 1981 organizational drive, but did vote
in the Board-conducted election as a member of the unit.
Occasionally; when the lab works overtime, both
Black and Isner who operate the same equipment and
perform the same tests worked overtime. They are super-
vised by Patton. Any requests emanating from either one
of them goes to Patton Black and Isner are salaried em-
ployees and were such while employed by Ingram. Black
has been employed in the laboratory for approximately 9
years and Isner for 3 or 4 years. Black has never been
told that he has the authority to hire or fire nor does he
have the authority to discipline, and he has never exer-
cised such authority. According to his testimony, every-
thing Black does goes through Patton. Isner and Black
frequently interchanged in the 'performance of their
duties. Black ,testified that he is given the work assign-
ments by Patton and he in turn relays the information to
Isner , or in some cases Patton relays the information di-
rectly. Black testified: "Well, on, a typical morning I
would come in and say Phil, we have go to do this, such
and such. And you known, we both know, it has to be
done. And if he-there is usually two different steps in-
volved and one of us would do one step and one the
other, until we get tired of this and then we'll switch,
you know, and do the other." In addition Black testified
that he and Isner usually discussed what has to be done.
If Isner is not in the mood to perform a particular task,
Black states that he will perform said tasks. Moreover,
the jobs are, according to Black, pretty much repetitious.
MOWER LUMBER CO 769
On 15 June 1983 Newera.hired Glendenning, Vande-
vender, and Rexrode All three formerly were employed
by Ingram Vandevender and Glendenning were hired as
plant operators, maintenance men, and hacks-of-all-trades.
Rexrode' was hired principally as a 'result of his experi-
ence and ability in the performance of work around the
plant refuse disposal site.
Patton, who has been involved in'the coal industry in
West Virginia for 14 years, testified regarding his in-
volvement in the hiring or notification of employees for
hire for the initial startup crew. He discussed individuals
with McDonald and they agreed that Black, Vande-
vender, .Glendenning, Isner, and Rexrode should be em-
ployed. McDonald also consulted Black, a couple of
days - after his 14 June conversation with Patton, and, the
discussion revolved around the hiring of Glendenning
and Vandevender. McDonald told Black that he needed
"two people that know the plant inside and out to do ba-
sically everything that needs to be done around here."
Black recommended Vandevender'and Glendenning stat-
ing, "They can do what he asks them and do, it 'Well'
Glendenning had worked as a mechanic at Ingram begin-
ning about 1976 or 1977, according to Black's testimony.
Black testified that Glendenning could do anything that
had to be done. According to Black, Glendenning's pre-
vious foreman talked about how good a worker he was
and the things he could do. Moreover, Black testified
that he personally had seen Glendenning "tear pumps
apart, run a few things in the plant,-seen'him work on
equipment, automobiles, run equipment." Black testified
that he told Patton that Glendenning could do every-
thing.
McDonald testified that he had personally observed
.the work of Vandevender, although he based his judg-
ment on Black's and Patton's recommendations.
McDonald also testified that he had personally, ob-
served the work of Rexrode for a period of 9 years. and
new him personally as a result of his brother working for
Mower as a heavy-equipment operator and mechanic for
over 20 years.
Joe Ross, Ingram's manager, furnished a list of, the
Ingram employees to McDonald, who requested same,
including their telephone numbers, so that McDonald
could contact them if he so desired. Ross testified that no
one, including McDonald, ever-asked him for any infor-
mation regarding the union activity of any employees,,
and the subject was never discussed. McDonald also tes-
tified that he never made any inquiry concerning union
activity.
Patton utilized McDonald's list with Black in discuss-
ing the qualifications of individuals He went down the
list and asked Black what he knew with respect to the
qualifications of each individual. Black testified that. he
made positive comments about Vandevender, Glenden-
ning , Rexrode, and Cassidy. He testified further that he
made no comments with respect to any other employee.
Black testified that he told Patton that Cassidy was a
good truckdriver and that if he, Black, had a• personal
truck of his own, he would try to hire Cassidy. to drive
it. He further testified that he never discussed with
McDonald or Patton the union activity of any employee.
After 15 June 1983, and after Newera had hired the
initial complement of five employees, it hired James
Nunns- on 21 June 1983. He was hired to operate the
plant water pollution prevention system. Patton testified
that he talked • to. McDonald and Black about hiring
Nunn. According-to Patton he,actually did the hiring of
Nunn and he needed someone who was familiar with the
laws and regulations of the .Department of Natural Re-
sources. Patton testified that McDonald and Black rec-
ommended Nunn as a well-qualified man for the job and
also that he could "drop railroad cars." This is in refer-
ence to what is known as the load-out facilities.
Patton next hired Michael Gilardi on 1 July 1983 as a
security man. Ingram had no individual fulfilling this
function, but when the plant was acquired by Newera,
Patton was instructed to hire a security man because
Newera employees were present on the premises only 8
hours' a day, leaving the premises unattended the other
16 hours. Moreover, management was of the opinion that
according to Patton Newera's insurance rates would be
lower. -
Patton made inquiries of Black and Isner if they knew
of any individual -with security experience to'which they
responded negatively. Patton then inquired of Vande-
vender "and Glendenning, and Vandevender suggested
Gilardi Vandevender testified that Gilardi was his broth-
er=in-law and he, Gilardi, had received security training
in the air force, and worked security jobs in the private
sector. ' -
Based on McDonald's recommendation, Patton hired
Bonita Phares on 8 July 1983. Patton 'testified, that he
needed "an individual to operate Newera's scales, and
McDonald advised him of the fact that Phares had expe-
rience operating ' the scales for Ingram. Moreover,
McDonald testified that he knew Phares personally from
when' she had worked as a• secretary for New Era Re-
sources, Inc. and-also after she was transferred to the
plant area to run the scale house for Ingram.
On 13 July and 25 July 1983 Patton hired Aaron.
Channell and Donald Brochart, both having previously
filed applications with Newera. Channell was hired to
operate the load-out at the preparation plant, i.e., drop-
ping and switching railroad cars and operating the con-
trols on the loading 'facility. Patton testified that he was
recommended by Vandevender and could perform main-
tenance work and was an all-around individual.
Brochart was hired to operate a loader, backhoe, and
grader. Patton testified that he reviewed Brochart's em-
ployment application and .also sought information from
Vandevender. Vandevender recommended Brochart He
testified that he told Patton that Brochart could out per-
form anybody on the backhoe and could do just about
any kind of work that could be done with a backhoe.
Furthermore, according to Vandevender, he told Patton
that Brochart was the best backhoe operator among all
the former Ingram employees. With respect to the
grader, Brochart had spent most, of his career performing
road work. '
McDonald testified that Nunn had a college degree in either chemis-
try or biology
770 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vandevender, who at this -point in the proceedings
was- a 611(c) witness, testified that in mid-July Patton
discussed the qualifications of former Ingram employees
in an effort to fill positions at Newera. According to
Vandevender, Patton had a list of the former employees
and asked what he thought each man was capable of
doing. Vandevender gave his opinion regarding the abili-
ties and qualifications of each employee- on the list. Ac-
cording to Vandevender he did not recommend individ-
- uals, but merely explained what he thought each man
could do, and Patton made the selections. He testified
further, "I had nothing to do with the selection whatso-
ever."
Vandevender and • Patton discussed employees Dale
Cassidy, Timothy Channell, and Arnold Childers, all
former employees of Ingram. Patton testified that he
asked Vandevender who the best truckdriver was and
Vandevender named Cassidy. Vandevender testified that
Cassidy was a truckdriver who could also take care of
the equipment, would not need supervision, and would
put in a good days' work. Vandevender testified that he
told Patton that Cassidy had- driven a truck all- his life,
had taken care of it, and that he would not run the truck
into the ground or tear it up. Vandevender advised
Patton that Cassidy was the man most qualified for' the
truckdriver-fob.
Patton testified that he needed an employee to operate
the "bypass crusher." According to Patton, both Vande-
vender and Black recommended Timothy Channell.
Moreover, Vandevender told Patton that Channell was
best qualified to operate a ' compactor. Vandevender ad-
vised that.Channell could do the job without the expense
of training him. -
Patton testified that he hired Arnold Childers based on
the recommendations of Vandevender and McDonald.
McDonald advised Patton that he specifically knew of
Childers and his ability. Childers was hired by Patton as
a loader operator on the raw coal bypass system. More-
over, Vandevender testified he discussed Childers' quali-
fications with Patton and told him that Childers was a
skilled and good welder and he could do overhead-type
work and get the plant in good repair.? Vandevender
testified that he told Patton that other than himself,
Childers was the only one that could do that type of
work (welding overhead pipes).
Thus, on 15 August 1983 Cassidy, Channell, and
Childers were hired.
As of 15 June 1983, the date that the initial six em-
ployees were hired, no applications for employment had
been filed. Therefore, these six employees were hired
without reference to any applications for employment,
the first being presented on 17 June 1983.
Thereafter, Newera hired Kanzo Harrison 18 August
1983; Earl Osborne on 2 January 1984; Elmo Legg `on 18
March 1984; and Daniel Shomo on 23 April 1984.
'Patton testified that he was aware of-laws and regula-
tions, both state and Federal, requiring that he have a
certified electrician on the premises at all times. He fur-
7 The employment application of Childers dated 21 June 1983, and in
evidence as Jt Exh 12, reflects that Childers has had experience as a me-
chanic and welder
ther testified he was in violation of the law doing with-
out an electrician as long as he had. At that time a state
inspector told him " that he must get an outside certified
electrician immediately. He had known Harris and asked
him' if he would be interested in the job. Harris was em-
ployed and thereafter resigned in January 1984. Osborne
was hired to replace him as chief mine electrician. Os-
borne quit a few months later and Legg was hired to re-
place Osborne. '
Patton testified that Shomo had not been employed by
Ingram, but was hired to replace Nunn when he resigned
as-the Company's environmental pollution control opera-
tor. Patton further testified that he specifically hired
Shomo because there was no former employee of Ingram
who was qualified for that particular job. He learned
about Shomo's experience from a professional engineer,
Allen Ketcham, who worked for Enviro.
Patton testified that he recalled telling former Ingram
employees that they would have the first opportunity for
jobs at Newera. He specifically recalled telling McCau-
ley and Hayes at the office, and he believes he also told
Gum, that they would have first opportunities for jobs.
He testified that he continues to adhere to that policy.
McDonald testified that no decision was ever made by
Newera that the alleged discriminatees were ineligible
for employment should it arise in the future.
Vandevender testified that he had worked with the al-
leged discriminatees for 4 years and just as they were
aware of his capabilities he knew their capabilities. In
paraphrasing, Vandevender told Patton that Gum could
run a refuse truck and he had done some operation of a
bulldozer and could "work loadout some." He advised
Patton that Meadows was a good worker but needed su-
pervision and teaching. Meadows, when- driving a truck,
had some difficulty "hanging up." McCauley had driven
a refuse truck and worked load-out but other than that
he had only done shoveling and general labor He told
Patton that Hayes "played with the end loaders some,
and run [sic] the refuse truck a little bit. But he, like I
say, there is a difference between running it and operat-
ing it ." Hayes also worked the panel board and its elec-
trical controls. Vandevender advised Patton that Wood
Sr. had worked the "load-out," and he worked as a flock
attendant 'in the plant. With respect to Wood Jr., he had
worked the load-out and was learning to operate the end
loader. He was getting- "along pretty fair with it." All of
Vandevender's observations of these employees was in
the context of reviewing the original list which Ingram
furnished to McDonald.
McDonald testified that after Newera had hired the
amount of employees necessary for a one-shift operation,
a group of employees who had not been hired8 ques-
tioned McDonald about the prospects for future employ-
ment . McDonald told them that Newera would not need
to hire at that time because it had already completed
manning the first shift. He elaborated further that man-
agement was hoping to raise the production and also in-
crease the volume of coal from the deep mines but "the
market just completely dropped out from under us." He
a He was not sure specifically which individuals were involved
MOWER LUMBER CO
testified further that he advised the employees, "The first
chance I. see of hiring any additional people is if we -put
on a second shift. I said that if you don't have, your ap-
plication in be sure to get it in and you'll be considered
for the job."
McDonald specifically , recalled conversations with
Wood Sr. and Wood-Jr. when they came to his office at
Durbin, West Virginia. He told them' that Newera had
ample people'to operate the plant at+its present' produc-
tion capacity. • He stated that he was hoping that the
Company would be increasing production, and that if a
second shift was put on, they would be considered for .a
job. He further advised that he did not known how soon
a second shift would be operating but he hoped it would
not be in the too distant future. -
On approximately 20 June 1983 Patton testified that
'McCauley' drove to his office , came inside , and asked
Patton if he was doing any hiring. At the time Newera
was 'still in" the process of hiring, and he advised McCau-
ley of this. - McCauley asked about employment - and
Patton responded that he would' be given full consider-
ation . This was prior to the employment of Cassidy as a
truckdriver. According to Patton, McCauley was also
considered at the time Cassidy was hired. Vandevender
recommended that 'Cassidy was ' the- better all around
truckdriver and more competent than McCauley. Cas-
sidy is the only employee at the plant, functioning. as a
truckdriver. • -
Sometime thereafter Wood Sr. and Wood Jr. 'went to
see Patton about-employment. They were told by Patton
that he expected to. do- some hiring and that he would
consider them for.employment.
-Shortly after Brochart and Pete Channell were -hired,
McCauley, Hayes, and Meadows approached Patton at
the jobsite to discuss employment. Hayes and McCauley
testified that during the course of the conversation they
asked why Channell and' Brochart were being hired
rather than them, •in view of the fact that they had •great-
er experience than either Brochart • and Channell, and
were also more versatile. According to the testimony of
Hayes and -McCauley, Patton' told them to see McDon-
ald as he was responsible for, hiring. Thereafter, they ap-
proached McDonald on the same- occasion and he told
them that Patton was responsible for hiring. According
to their testimony, when they returned to Patton to make
further inquiry, Patton told them they had been classified
as "troublemakers and they were too outspoken."9
Hayes, in his testimony, denied that Patton told him that
his activities on an employee -committee were no reflec-
tion on him , and had nothing- to do with the decision
who to hire -or not to hire. McCauley testified that they
were told by Patton he could.not help not hiring them,
and that he might.-even have to layoff Peter Channell
and Brochart, because there.were no coal orders.
- Patton testified that Hayes, McCauley, and Meadows
specifically asked him-wliy he hired Channell (Pete) and
Brochart. He testified : that he responded that in his view
Brochart was "an. all around equipment operator.-. He
could do any work that needed to be done with heavy
B This was alleged as'an independent violation of Sec 8(a)(1) of the
Act. • -
771
equipment." He did not have "any absentee problems,
and he had a- good. working attitude." Patton also told
them that Channell was- mechanically inclined, could also
do welding; and was an all around man. He also stated
that Brochart and Channell were the people he preferred
' .to fill the positions with. - •
Meadows continued to ask Patton 'why he was not
considered and told him he was more qualified than
either Brochart or Channel]. According, to Patton Mead-
ows became belligerent, and he Patton attempted to walk
off and told then he,would consider them later on. They
kept on asking him-other questions about why they were
not hired. Patton continued to- advance his preference for
Brochart and Channell, and stated that their coworkers
said they were good' about getting along with the other
men. Hayes then stated, "You knew we were on the
-committee." Patton responded he did not know anything
.about any committee. Hayes then asked whether the
committee had a' reflection on them not being hired, to
,which Patton repeated that he did not know'of any com-
mittee and that ho committee had any reflection on their
not being hired.' According to Patton, Hayes repeated
the question at'least •two times or more. Finally, Patton
testified ."but running his [Hayes'] mouth they way he
did.at that time, it did have, a-reflection on him being
employed." Patton also testified that Hayes explained
that the committee was a group of employees who were
to bring their grievances to the Ingram management.
Patton told Hayes he did '"not know what' committee
Hayes was talking about. - -
Patton testified specifically that he did not tell the men
that'they-were not hired because they were troublemak-
ers or too outspokei and that he never said ' anything to
that effect. Patton-'also testified that any participation by
employees in - any committee at Ingram had absolutely
nothing to, do' with any decision regarding' hiring at
Newera:
Thereafter; in'January 1984, McCauley and Hayes,re-
turned• to Patton's office to discuss employment.- Patton
testified that they asked if he was doing any hiring and
he told them he was not.' Neither McCauley nor Hayes
made any reference. to their last conversation with
Patton. -
In February 1984, Wood- Sr. and Wood Jr again came-
to see Patton asking about employment. He told them he
had considered hiring Wood 'Jr. as an operator and was
considering buying a new refuse truck and thought of
Wood' Jr. As a possible driver, because his application re-
flected' •truckdriving experience and experience as a
loader operator.. Because of-the lack of coal orders, busi-
ness conditions'did not, warrant buying a new truck and
hiring another driver. Approximately 2 months prior,'
during the McCauley-Hayes visit to Patton, Patton also
advised , them that at the present time Newera did not
have any orders.
He-testified'that he did apprise former Ingram employ-
ees who had not yet been hired, that they would be con-
sidered for a second shift if same-materialized. Accord-
ing to his' testimony Respondent Newera was considering
putting on a- second shift if coal production improved at
the deep mines. It was on the increase at that time, and
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coal production from the stip operation of Tom B Coles
was on the increase. Some time thereafter, Tom B.
Coles10 filed bankruptcy and shut down its operation,
which limited Newera's raw coal output. Its permit af-
fected another. coal company which was getting coal
from the stip mine. Moreover, according to the testimo-
ny of Patton production at the deep mines at Enviro was
dwindling.
Conclusion and Analysis.
A. The Joint Employer Issue
The instant record amply - supports a finding of joint
employer . status . Mower Lumber Company is the parent
of Newera , which is 100 percent wholly owned as- a sub-
sidiary of Respondent Mower . - The initial negotiations
for the sale and purchase of the prep plant were between
Ingram and Mower . Mower created the wholly owned
subsidiary Newera so that the name would identify the
original New Era Resources , Inc. At the time of incor-
poration , McDonald , vice president of Mower, was
named president - of Newera . Newera purchased the
assets from Ingram , including the Cheat Bridge Prep
plant . Newera has no office and handles administrative
functions from the Mower office in'Durbin , West Virgin-
ia, including employment applications. °
Record evidence discloses that McDonald , president
of Newera and vice , president of Mower Lumber, ulti-
mately controls labor relations of both companies.
McDonald was also vice president of another Mower
subsidiary , Enviro Energy.
McDonald hired the key individuals needed to start up
the prep plant and he determines what new positions, if
any, should be created and who should fill those posi-
tions:
I therefore conclude - that the relationship between
Mower and Newera is a joint one, and McDonald is re-
sponsible for overall control of this joint employer and
its labor relations.
B. The Status of Vandevender and Black
Based on the evidence -I conclude that Vandevender
and Black share equal footing as employees of Respond-
ent and are not supervisors within the meaning of the
Act. •
Management sought their advice as to the talents- and
potential of prospective employees, with whom they had
worked prior thereto. This falls far short of clothing
them with the authority to hire. Nor can it be said that
they made effective recommendations,' because they
made no recommendations. Vandevender and Black nat-
urally were aware of the performance and abilities of
some of the potential, hirees. There is no evidence that
either employee can hire, fire, or effectively recommend
same.
Black and Isner interchanged identical duties and are
not.vested with any supervisory indicia or authority.
Therefore, any knowledge they may have had with re-
spect to any union activity cannot be imputed to Re-
10 An independent contractor.
spondent . Nor is there any evidence that , Vandevender
or Black communicated any such information to -manage-
ment.
C. The 8(a)(1) and (3) Allegations
The General Counsel in his brief_points out, "this case
is not one in which the evidence is so blatant as to pre-
clude the possibility of any other determination." The
critical prerequisites necessary for finding violations of
Section 8(a)(1) and (3) of the•Act, knowledge , antiunion
animus, and motivation are totally absent on this record.
McDonald's unrefuted testimony is that he had no
knowledge of any union organizational campaign , subse-
quent to the union activity which occurred in 1981.
Moreover, he did not learn of the 1983 organizational ac-
tivity or the representation case at Ingram until .15 June,
when he attended the final closing with respect to the
sale of the assets . Moreover, McDonald credibly testified
that he had never received.any information with respect
to which employees were pro or anti union.;
Furthermore, Patton, who was geographically absent
from the area, possessed no knowledge of.the 1983 union
drive at Ingram . Nor was he aware of any employee
committee until late July or early August-after the hiring
of Aaron Channell and Brochart. , When employees
broached the subject of the employee committee, and ac-
cused Patton of refusing to hire them as the basis, they
were immediately told by Patton that not only did he
have no knowledge of any such committee .but if they
were in fact involved in an employee committee it had
nothing to do with their failure in being hired.
Ross, Ingram 's manager , corroborated McDonald and
Patton by testifying that he never had any discussions
with anyone at Respondent's plant regarding the union
activity of. Ingram employees. It should be noted that
Ross was told prior to the sale that -Newera would not,
and in fact did not, hire him. Nor did the list of employ-
ees contain any references to their union affiliation or
nonaffiliation or sentiments. . -,
I completely reject and discredit the testimony of
Hayes and McCauley that Patton told-them that they
were not hired because they were troublemakers and too
outspoken. Employee Meadows was not called to testify.
The demeanor of Hayes and McCauley was one of
anger . I firmly believe they concocted their testimony.
By way of contrast, Patton was scrupulous and unerring
in his demeanor and testimony. He evidenced assured-
ness and attempted to be exacting and unequivocal in his
testimony. Moreover , it is inconsistent and is inconceiv-
able to me that during the same conversation Patton ad-
vised them that they were not hired because business
was bad and there were no job openings or orders, and
that management may have to layoff some of the em-
ployees they had already hired, including Channell and
Brochart. It is also noted that both-McCauley and Hayes
returned to the plant and talked to- Patton-about being
hired on numerous -occasions after -the alleged statement
by Patton occurred.
The evidence is uncontioverted, McDonald and
Patton consistently and repeatedly assured the former
Ingram employees that they would be given first consid-
MOWER LUMBER CO 773
eration for any job openings which may occur for which
they were qualified rather than.hiring employees "off the
street " • . _
It is my view that the jobs and functions of the six
original key employees were of such ilk that none of the
alleged discnminatees could logically have been qualified,
for them. Thus, Black and Isner were hired by Newera
in the laboratory jobs that they had held with Ingram
There is no evidence that any other Ingram employee
had the background or experience in order to qualify for
these jobs. Nunn was hired in the water pollution and
environmental control job he had held at Ingram . Again,
no former Ingram employee was qualified for that job.
Moreover, Shomo, who replaced Nunn, had similar
qualifications for the enivronmental control job not pos-
sessed by any other former employees. Ingram had no
security employee. Gilardi, although not an Ingram em-
ployee, had experience in security work. Harris, Os-
borne, and Legg were hired successively for the position
of chief electrician. At Ingram this function had been
performed by a supervisor, Cash, who was not employed
by Newera. There is a dearth of evidence that any of the
alleged discriminatees were qualified for the job of chief
electrician, nor were any of them certified as electricians.
Vandevender was hired because Black advised
McDonald that he was a man with experience who was
multitalented and could do anything and everything
around the plant, including welding. Glendenning was
hired because Respondent was limited and could hire
only a few employees, therefore it was looking for em-
ployees with diverse abilities. Glendenning fitted this de-
scription. Rexrode was hired because he had operated
Ingram 's refuse disposal and McDonald was familiar
with his work. McDonald was also advised by Black
that Rexrode was "the only man alive" that could do the
work at the refuse site. Phares was hired for the scale
house because McDonald knew her personally, was fa-
miliar with her work, and as a result recommended her
to Patton. Aaron Channell was hired to operate the load-
out because he had performed that work for Ingram and
was recommended to Patton by Vandevender as being a
good load-out operator, and also able to do maintenance
and all around work. Brochart was recommended to
Patton as the best backhoe operator with the flexibility
necessary to operate other equipment. Cassidy was-hired
as a truckdriver because of his past experience at Ingram
and Vandevender's reference to him as the man most
qualified for truckdriving. Timothy Channell was hired
to operate the raw coal crusher and do other work based
on Vandevender's recommendation to Patton that Chan-
nell was best qualified to operate a compactor, and was
the only former employee who could do the job without
additional training and expense. Childers was hired basi-
cally as a loader operator for the raw coal bypass
system. Vandevender had advised Patton that Childers
was also a good welder, and that, other than himself,
Childers was the only, former employee who could do
the more complicated welding, including overhead weld-
ing. -
It is also noted that because of the urgency to -hire key
employees, the first employees were hired without even
having filed applications, simply on the basis 'of knowl-
edge and information obtained from third parties. More-
over, some of the employees hired later, such as Nunn,
Gilardi, Phares, and others, were hired again because of
personal knowledge and recommendations, rather than
on the basis of their written job applications.
By far the majority of employees hired by Respondent
were former Ingram employees. Moreover, although the
element of knowledge is absent, Respondent hired sever-
al active union adherents. 'Respondent has consistently
advised - former Ingram employees that if more jobs
became available they would be considered for employ-
ment and hired if qualified.
- In my opinion, Respondent has fully met its burden in
establishing and demonstrating that it would not have
hired the alleged discriminatees, even in the absence of
any union or protected concerted activities. Wright Line,
251 NLRB 1083 (1980).
CONCLUSIONS OF LAW
1. Respondent Newera is a wholly owned subsidiary
of Respondent Mower.
2. At all times material herein Respondent Mower and
Respondent Newera have had common control over the
labor relations policies regarding the employees em-
ployed at Respondent Newera's facility.
3. At all times material herein, Respondent Mower and
Respondent Newera have been, and are now, joint em-
ployers of the employees employed at Respondent's
Newera facility.
4. Respondents, and each of them, are now and have
been at all times material herein, a joint employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
5. The Union is now, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
6 The allegations of the complaint that Respondent
has engaged in conduct violative of Section 8(a)(1) and
(3) of the Act by denying employment to the alleged dis-
criminatees and not giving consideration for employment
to, said alleged discriminatees, have not been supported
by substantial evidence.
7. The allegation of the complaint that Respondent has
engaged in independent conduct violative of Section
8(a)(1) of the Act has not been supported by substantial
evidence. .
8. David L. Vandevender and Robert L. Black are not
supervisors within the meaning of Section 2(11) of the
Act, and are not agents of Respondents within the mean-
ing of Section 2(13) of the Act.
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
edti
ORDER
It is recommended that the complaint be dismissed in
its entirety.
11 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended Board and all objections to them shall be deemed waived for all pur-
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the poses