Top Gun, Inc.

National Labor Relations Board - Board Decisions

Nov 23, 1993

313 N.L.R.B. 185 (N.L.R.B. 1993)

185
313 NLRB No. 23
TOP GUN, INC.
1 We correct the following inadvertent, and inconsequential, errors
in the judge’s decision: (1) the correct citation to Wilson Trophy Co.
is 307 (not 309) NLRB 509 (1992); (2) Gary Scott was called as
a witness by the General Counsel, not by the Respondent; (3) the
witness who testified that the seriousness of sleeping on the job had
not been driven home to supervisors was William Skewes, not Ken-
neth Bolton.
In adopting the judge’s finding that Top Gun, Inc. and Rustcorp
Company are a single employer, we do not rely on his statement
that, because Skewes owns both Top Gun and Rustcorp, Rustcorp’s
guards at the Top Gun mine are Skewes’ responsibility to manage.
Nor do we rely on his citation to Milford Services, 294 NLRB 684
(1989), which we find to be inapposite to the facts of this case.
2 We are aware that the judge discredited a different portion of
Stark’s testimony, partly on demeanor grounds and partly because of
Stark’s relationship (half-brother) to Jesse East. We do not think,
however, that the judge meant to discredit Stark entirely, for several
reasons. First, he explicitly discredited only a discrete part of Stark’s
testimony; indeed, he appeared to credit Stark’s description of a
mine page phone. (‘‘It’ll wake you up.’’) Second, he plainly found
the discredited testimony itself improbable. Finally, the discredited
testimony was contradicted by Gale Whitt, who was called by the
Respondent as a rebuttal witness, and whose demeanor impressed the
judge favorably. By contrast, there is nothing improbable about
Stark’s claim that Kenny East was hired as a guard at Nevarro, espe-
cially given the judge’s finding that the Respondent took a non-
chalant attitude toward guards sleeping on the job until it learned
that Jesse East was about to file a grievance. Also, Skewes was
present and testified at the hearing, but was not called on to rebut
Stark’s testimony that Kenny East had been hired as a guard at
Nevarro. As Skewes obviously would have known whether or not
Kenny East had been hired as a guard (and thus as an employee of
Rustcorp, which Skewes owns), we infer from his failure to testify
on that subject that Stark’s testimony was accurate.
3 However, we find it unnecessary to pass on the judge’s sugges-
tion that an employer who sets out to trap an employee may not be
entitled to assert the affirmative defense that the employee would
have been discharged even in the absence of his protected concerted
activities. Cf. Wright Line, 251 NLRB 1083 (1980).
Top Gun, Inc. and Rustcorp Company, a Single
Employer and Jesse East. Case 9–CA–29902
November 23, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On July 30, 1993, Administrative Law Judge Ber-
nard Ries issued the attached decision. The Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and brief and has decided to affirm the judge’s rulings,
findings,1 and conclusions and to adopt the rec-
ommended Order.
The judge found that on August 28, 1992, the Re-
spondent discharged the Charging Party, Jesse East,
from his security guard job in violation of Section
8(a)(3) and (1) of the Act. In so finding, the judge
noted that, although East’s brother Kenny had been
discharged for sleeping on the job at the Top Gun
mine about a year earlier, East testified without con-
tradiction that ‘‘they turned around and hired him right
back’’ at the Nevarro mine. Although William Skewes
Jr. (Skewes) is the sole owner of Top Gun, Inc. and
Rustcorp Company, and his father is the owner of
Nevarro, the judge observed that the operation of
Nevarro was closely tied in to the operation of other
mines owned by Skewes, and that Rustcorp furnished
guards to Nevarro as well as to Top Gun. The judge
thus found that Kenny East’s ‘‘prompt reassignment to
Nevarro indicates that what Skewes really did was sus-
pend him for a short while.’’
In exceptions, the Respondent argues that the record
does not support the judge’s finding that Skewes sim-
ply reassigned Kenny East to Nevarro. We find no
merit to that argument. In addition to the factors cited
by the judge, we note that a former employee at the
Nevarro mine, Michael Stark, testified that Kenny East
came to work at Nevarro as a guard.2 Kenneth Bolton,
the superintendent at the Top Gun mine, testified that
he fired Kenny East about a year before he terminated
Jesse East—that is, around August 1991. In April
1991, according to Skewes’ testimony, all the guards
formerly employed by the mining companies owned by
Skewes and his father (including those at the Top Gun
and Nevarro mines) were transferred to the Rustcorp
payroll. It thus appears that when Kenny East was
hired as a guard at Nevarro, he must have been hired
by Rustcorp, because the mining companies had ceased
to hire guards directly several months before. Accord-
ingly, we find that the judge aptly characterized Kenny
East’s rehiring at Nevarro as, in fact, a reassignment
by Skewes, and his ‘‘discharge’’ from his job at Top
Gun as merely a brief suspension. For that reason, as
well as those relied on by the judge, we affirm the
judge’s finding that Jesse East was unlawfully dis-
charged.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Top Gun, Inc. and
Rustcorp Company, a Single Employer, Elbert and
Thorpe, West Virginia, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The charge was filed on September 3, 1992, and amended on Oc-
tober 9, 1992. On October 16, the Regional Director issued a com-
plaint, and on February 23, 1993, the complaint was amended.
2 The exhibits received from the reporting company failed to in-
clude the original formal documents, with the exception of the
‘‘Index and Description’’ thereof, and the reporting company has
been unable to locate the remainder of this exhibit. On my request,
counsel for the General Counsel has supplied copies of the missing
documents, which have been placed in the exhibits file.
3 Certain errors in the transcript have been noted and corrected.
4 There is no dispute about the appropriateness of the Board’s as-
sertion of jurisdiction over Respondent Top Gun or about the status
of United Mine Workers of America, AFL–CIO, as a labor organiza-
tion within the meaning of the Act.
5 An ‘‘outside communications’’ person is there to respond to any
alarm which may be raised by underground miners in the event of
an emergency, and he may also be called on to perform minor tasks
on the surface. A security guard is usually also an outside commu-
nications person; when he is more properly called a security guard,
it is because there are no miners working the mine at that time. Par-
enthetically, the mystery of why the mine is called ‘‘Top Gun’’
while the security guard service is named ‘‘Rustcorp’’ was not
solved at this hearing.
6 The other mines are also separately incorporated.
7 This move was apparently caused by a ruling from the State that
workmen’s compensation rates for guards employed by a mining
company must be the same as for the miners, while the same guards
working for a nonmining corporation would require less expensive
coverage.
Vyrone A. Cravanas, Esq., for the General Counsel.
Albert F. Sebok, Esq. (Jackson & Kelly), of Charleston, West
Virginia, for the Respondent.
DECISION
BERNARD RIES, Administrative Law Judge. This matter
was heard in Beckley, West Virginia, on March 10, 1993.1
The amended complaint principally presents the issues of
whether the two employers named in the complaint constitute
a ‘‘single integrated business enterprise and a single em-
ployer’’ and whether Jesse East, the Charging Party, was dis-
charged on August 28, 1992, because he ‘‘assisted the Union
and engaged in concerted activities.’’
Briefs were received from the General Counsel and the
Respondent on or about April 30, 1993. Having reviewed the
entire record,2 the briefs, and my recollection of the de-
meanor of the witnesses, I make the following findings of
fact,3 conclusions of law,4 and recommendations.
I. THE SINGLE EMPLOYER ISSUE
As indicated above, the complaint alleges that Top Gun,
Inc. and Rustcorp Company constitute a single employer. As
both parties point out, the Board and courts principally ex-
amine four factors in making this judgment: common owner-
ship, common management, interrelation of operations, and
centralized control of labor relations. The latter three factors
are stressed, especially centralized control of labor relations.
Single employer status depends on all the circumstances, and
it is often characterized by the absence of the arm’s-length
relationship usually found between unrelated companies.
Truck & Dock Services, 272 NLRB 592 fn. 2 (1984).
Rustcorp was formed as a corporation in 1986, and Top
Gun was incorporated in 1990. Both corporations have the
same business address. William G. Skewes Jr. owns all the
shares of both corporations. The charters of both corporations
state that they have been created for the purpose of engaging
in coal mining. However, while Top Gun operates a deep
coal mine in Elbert, West Virginia, Skewes testified that
Rustcorp engages only in (1) performing construction around
the surface areas of underground coal mines, and (2) provid-
ing security guards and ‘‘outside communications’’ people to
mining companies.5
Skewes is president of Top Gun (and maybe the secretary
and treasurer), and his mine superintendent at Top Gun, Ken-
neth Bolton, is vice president of that corporation. Skewes is
president and secretary of Rustcorp, and his father is treas-
urer. Skewes and Bolton constitute the board of directors of
Top Gun, and Skewes and his father make up Rustcorp’s
board. Neither corporation holds formal board meetings; cor-
porate decisions are made by Skewes alone.
Skewes owns ‘‘controlling interest’’ in three other deep
mines within a 9-mile radius of the Top Gun mine, named
Southern Edge, Murphy’s Branch, and Tipple Mine.6 There
is also a mine called Nevarro, which Skewes testified is
owned by his father, but which seems to be linked in some
informal way to Skewes’ businesses.
According to Skewes, his four mining operations use to di-
rectly employ guards until April 1991, when he transferred
the guards (then 10 of them, which includes 2 at Nevarro)
‘‘out of those mining companies’’ and onto the payroll of
Rustcorp.7 Rustcorp has performed construction work for the
mines which Skewes controls and also now provides security
guards to those mines. Skewes described Rustcorp’s con-
struction work as involving a ‘‘very small crew,’’ which usu-
ally does one job at a time. The only other construction work
identified at the hearing as having been performed by
Rustcorp for mines not owned by Skewes was at a company
called Benefactors, of which Skewes owns 40 percent, and
three other mines.
Although each of Skewes’ mines has an office at the
minesite, and maintains some safety, disciplinary, and absen-
teeism records at those offices, they employ no clerical help
there, and the basic recordkeeping, insurance, and benefits
administration for both Rustcorp, Skewes’ four mines, and
Nevarro, is done in the Rustcorp office at Thorpe, West Vir-
ginia, about 5 miles from the Top Gun mine. There, Gail
Whitt, the office manager, with two assistants, maintains
basic personnel records and performs other services for the
miners at the different mines and for the Rustcorp employ-
ees, and sends paychecks for the miners and the Rustcorp
guards to the mines for transmittal to the employees. The
mines pay a fee to Rustcorp for performance of these serv-
ices. Rustcorp and Skewes’ four mines (and apparently
Nevarro) have the same accountant, a decision made by
Skewes.
Certain equipment, such as an end-loader and a bulldozer,
which is leased by Top Gun, is used by Rustcorp employees
at the Top Gun site. Decisions relative to those Rustcorp em-
ployees working at Top Gun, such as discharge (but not
hire), overtime, time off, and vacations, are made by Top
Gun mine superintendent Bolton. According to Skewes, the
Rustcorp guards are Bolton’s ‘‘employees, really. He has to
manage them. . . . [T]hey are his responsibility.’’ If a
Rustcorp guard has a ‘‘problem,’’ he would see Bolton.
187TOP GUN, INC.
8 The record is silent on the factual questions of the extent to
which Rustcorp performs these functions for mines independent of
Skewes and his father, except as earlier noted.
9 East testified that the other guard did not perform such work, but
did not explain his use of the word ‘‘we.’’
Skewes testified that a Thomas Woolwine of Personnel
Management Consultants, Princeton, West Virginia, was
hired by him to ‘‘handle . . . labor relations for Rustcorp
and for Top Gun.’’ A position paper prepared by Woolwine
in this proceeding states that ‘‘Rustcorp and Top Gun are
commonly owned and controlled corporations by W. G.
Skewes, Jr.’’
As earlier set out, in assessing a ‘‘single employer’’ claim,
the Board principally weighs the factors of common owner-
ship, common management, interrelation of operations, and
centralized control of labor relations; the first factor is con-
sidered the least significant, the fourth is deemed the most
important. To my knowledge, the Board has never explained
precisely how these factors are weighed against one another
or together, nor what the underlying policies are that would
provide guidance in undertaking the task. Single employer
status may be asserted for different reasons. The most promi-
nent would seem to be the assertion of jurisdiction over an
immediate respondent and a related enterprise when, under
the Board’s discretionary guidelines, the business of the
named respondent would not separately qualify for jurisdic-
tional purposes. A second major purpose for alleging single
employer status is to make both enterprises liable for any re-
medial order rendered. Does the difference in purpose man-
date a different analysis of the factors? Since the cases do
not indicate any such mandate, but seem rather to apply an
unstructured approach, and since I have no particularly in-
sightful theories to offer, I shall proceed the best that I can.
Common ownership is present here; Skewes wholly owns
Top Gun and Rustcorp. Common management is present in
the sense that Skewes dictates corporate policy for both com-
panies, without the formality of action by the nominal boards
of directors. Indeed, the corporations are, if Skewes so de-
sires, simply his compliant creatures: when he learned that
it was cheaper to have the guards on the payroll of Rustcorp
rather than their being employees of Top Gun and the other
mines, he moved them accordingly. He could move them
back just as easily.
In addition, Top Gun Superintendent Bolton both super-
vises Top Gun miners and Rustcorp guards; as to the latter,
he makes such decisions as whether they work overtime,
whether they can take time off, and when they take vaca-
tions.
As for interrelation of operations, there is such a relation-
ship, on two levels. One is the major bookkeeping and ad-
ministrative work, performed for all of Skewes’ corporations
at the same central site by the same clerical employees. The
other, more functional, relationship can be found in the
cheek-by-jowl employment of Rustcorp guards and the min-
ers whose work is, while different, closely related. There is,
moreover, use by Rustcorp employees at Top Gun of equip-
ment leased by Top Gun.
Finally, the factor of the extent of centralized control of
labor relations must be examined. As earlier set out, Skewes
testified that the guards furnished by Rustcorp at Top Gun
are Mine Superintendent Bolton’s ‘‘employees really.’’ But,
because Skewes owns both Rustcorp and Top Gun, the
Rustcorp guards at the Top Gun mine are also Skewes’ ‘‘re-
sponsibility’’ to ‘‘manage.’’ Because Woolwine was admit-
tedly hired by Skewes to ‘‘handle . . . labor relations for
Rustcorp and for Top Gun,’’ centralized control of labor re-
lations is apparent.
It thus appears that an affirmative response is appropriate
to all four of the questions which the Board asks about an
alleged single employer relationship. There sticks out in this
case, however, the fact that Rustcorp assertedly engages in
operations different from mining—the construction business
and the provision of security guards.8 The Board has held,
however, that one enterprise may be found to constitute a
single employer with another entity which also engages in
other diverse and unrelated functions. Milford Services, 294
NLRB 684, 689 (1989); see also Sogard Tool Co., 285
NLRB 1044, 1047 (1987). Given the obvious lack of arm’s-
length relationship between Rustcorp and Top Gun—as espe-
cially exemplified by the simple bookkeeping entries which
converted Top Gun employees into Rustcorp employees—it
would seem clear enough that, under the Board’s test, the
two corporations do constitute a single employer as alleged.
II. THE DISCHARGE OF JESSE EAST
Jesse East was hired by Skewes most probably in the sec-
ond quarter of 1990 to serve as a guard at the Top Gun
mine, whose miners are represented by the United Mine
Workers of America. At all times material to this case, Top
Gun and UMWA were bound by the National Bituminous
Coal Wage Agreement (NBCWA) in effect from 1988 to
1993. When East was hired, the Top Gun site was being
readied for operation, and East served principally as a night
watchman to guard the equipment. For the first few months,
he worked from 3 p.m. until 7 a.m. on Monday through
Thursday, and on Friday he would start at 3 p.m. and stay
at the mine until 7 a.m. on Monday. When another guard
was hired in the summer of 1990, East’s hours changed so
that he worked from 11 p.m. to 7 a.m. and only every other
weekend.
At the end of the summer of 1990, Superintendent Bolton
assertedly assigned East some new duties: ‘‘we loaded
scoops, we got supplies ready from them to go into the
mines, loaded rock dust.’’9 Superintendent Bolton disputed
East’s testimony. He admitted that as the mine went to three
shifts, East’s job changed somewhat, but only in that he
loaded supplies and minor duties of that nature (consuming
perhaps an hour of his time), in addition to his preexisting
work of cleaning the shop and bathroom and spraying the
concrete road.
As will be seen, I question the veracity of both Bolton and
East, and I have no particular reason to choose the testimony
of one over the other here, although I suspect that East may
be more accurate.
According to East, around the fall of 1990, Bolton ‘‘told
me that I had a job in the mines,’’ and sent him to take a
physical and a class in Sophia, West Virginia, which would
qualify him for a miner’s certificate, or ‘‘ADR card.’’ After
he had accomplished these missions, East began working un-
derground on the 8-hour second shift. He testified as follows
about what subsequently occurred:
188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 In fact, East’s finger eventually had to be amputated, after sev-
eral operations.
11 East denied that Bolton told him the work was temporary.
12 This tends to corroborate East’s testimony about the extra work
he performed as a guard.
13 As a guard, East earned $300–$350 per week. In one item of
the information to be filled out by the employer on the Report of
Occupational Injury, the question is asked whether the employer dis-
agrees with any of the information given by East. The ‘‘Yes’’ box
is marked, and the words ‘‘See Supt. Letter (Enclosed)’’ appear.
However, no such document is attached to the exhibit in evidence.
14 I find ambiguous East’s testimony that on the day he was in-
jured Bolton ‘‘had me outside’’ and ‘‘kind of got me and take me
underground at that time.’’
15 Skewes said that East had asked him a few times to work in
the mines and was told he could not; Skewes could not recall when
these requests were made.
I worked second shift about—I worked altogether nine
days. I worked five days on second shift and then he
brought me out on day shift one morning and me and
him shoveled belt. One day and then the next day I
come out—I broke my little finger.10
Bolton told a different story. He testified that East had
asked him repeatedly for the opportunity to work under-
ground and finally, at a time when Bolton had four injured
workers in 1991, he agreed to let East work in the mine, but
just until he ‘‘got my regular underground workers back.’’11
According to Bolton, he brought East out of the mine after
7 or 8 days, and reinstated him as a security guard, when
‘‘some’’ of the injured miners returned. According to Bolton,
the injury occurred when, after East had returned to his secu-
rity position, Bolton took East with him into the mine ‘‘for
an hour’’ to perform a specific job on some conveyor belt-
ing. Bolton conceded that East had been sent for a physical
examination, but he thought it was ‘‘after that,’’ i.e., after
East had returned to surface work. Bolton said that ‘‘we had
a salary meeting with Southern Safety and we told them that
our guards were moving man-trips and scoops and putting
them on charge. He advised us to make every one of them
take a physical and get an ADR card so we would be cov-
ered if any one of them got injured moving any of the man-
trips or anything.’’12
Although this subject is not material, the conflict raises a
credibility issue. Presumably there was documentation about
the physical examination and the ADR testing available to
both sides, but neither produced any. East’s testimony,
quoted earlier, is somewhat ambiguous. However, it seems
most likely to me that East would not have been assigned
underground work without first having the examination and
taking the ADR class and test. Furthermore, the record shows
that in a Report of Occupational Injury filed with the State
by East and signed by Office Manager Gale Whitt on Feb-
ruary 21, 1992, East listed his occupation as ‘‘Miner,’’ Top
Gun was shown as the employer, and Whitt showed East’s
daily rate of pay at the time of the injury as $135.76, which
was miner’s scale.13
Based on the foregoing, I conclude that Bolton was not
telling the truth, either about the reason for or purpose of the
ADR training or about East’s assigned duties at the time of
East’s injury.14
East testified that he returned to work about 5 days after
his injury and went back to a $300-per-week salary, with his
pay being issued on Rustcorp checks. He testified, without
contradiction, that when a miner is injured and cannot return
to work in the mine, he is usually brought back ‘‘to work
light-duty’’ outside the mine, and that is what he thought
was being done with him. According to the Report of Occu-
pational Injury, he returned on February 13, 1991. East testi-
fied that when he returned to work, he was not required to
fill out an application for Rustcorp and had no other contact
with that firm until he received a Rustcorp paycheck.
After returning to work, East had several operations on his
finger, eventually resulting, as noted, in amputation. When
he was not out on an injury-related absence, he was working
the 11 p.m. to 7 a.m. shift and every other weekend as a
guard/outside communications man (guard), but also, he says,
doing ‘‘a lot more’’ of nonguard work (‘‘Loading the scoops
with timbers, bending bolts, I moved some coal for them off
the unloader for them to run dirty coal at night, greased the
scoops, greased the belts’’) which he considered to be
‘‘union-type’’ work under the NBCWA. However, for a
lengthy period of time—according to East, probably ‘‘a year,
year and a half’’—he did nothing about raising his pay from
the $300 or $350 that he was receiving, other than once or
twice asking Bolton (who both told him ‘‘no’’ and also said
to speak to Skewes) about going back in the mine. Not long
before he was discharged, however, East spoke to Bolton
about the matter again, and Bolton told him to ask Skewes.
When he met with Skewes, East asked to be put in the mines
‘‘or could he give me a raise with my pay.’’ According to
East’s uncontroverted testimony, Skewes said that if he did
not like his pay, he ‘‘could get the hell off the hill.’’15
East testified that after that reasoned response, having just
gotten off duty, he immediately went to see Roger Yates, a
union district executive board member located in Welch,
West Virginia. He discussed his situation with Yates and
Yates told him that he ‘‘had a good case.’’ The two men
filled out a grievance on a standard UMWA form, and Yates
said, according to East, that he would mail a typed copy to
East, and he should present it to Bolton. Yates testified that
he had East sign and date the grievance form before he left
the office, which was his practice. The date appearing on the
form is ‘‘8–27–92,’’ and it appears to have been done by a
different writing instrument from East’s signature. Unlike
East, Yates said that East left the office with the grievance.
I am inclined to accept East’s detailed recollection that he re-
ceived the grievance in the mail.
The typed grievance reads as follows:
Issue #1: I am requesting my proper rate of pay for
each day that I work. I was injured on the job under-
ground in the mine doing classified work for this em-
ployer. Management has junior employees to me per-
forming classified work that I have the ability to per-
form. I am asking pay for each day that I am denied
the right to work. I feel my rights have been violated
under Article I, Article XVII, Sections (a) and (b)
[‘‘Seniority’’] of the NBCWA of 1988. I also wish to
use any other Articles or Sections that may support my
claim. Issue #2: I also feel that I am being discrimi-
nated against because of my on-the-job injury and
therefore was taken out of my classified work assign-
189TOP GUN, INC.
16 Although Yates testified that there was a ‘‘substantial’’ dif-
ference in pay between the amount paid to in-mine employees and
to surface bargaining unit employees, the General Counsel cites no
relevant contract provision, and I can find none, which clearly estab-
lishes the pay of a ‘‘light-duty’’ unit employee. However, the
NBCWA does refer (R. Exh. 6, p. 61) to a ‘‘light-duty classified
job’’ for employees recovering from disabilities.
ments. I feel my rights have been violated under Article
XXV [‘‘Discrimination Prohibited’’].
As can be seen, the written claim is clear: it asserts that
East was doing ‘‘classified’’ (bargaining unit) work and has
been denied the right to assert his unit seniority to return to
it; and that he has been discriminatorily denied classified
work because of his injury. At the hearing, however, both
East and Yates contended that what they were really com-
plaining about was Respondent’s failure to pay him for his
classified ‘‘light duty’’ work (although Yates frequently
equivocated on the matter; compare Tr. 147, LL. 19–20, with
Tr. 147–148, LL. 25–2). In my judgment, Yates had simply
forgotten the nature of the grievance and was bluffing it out
at hearing.16
A critical issue now arises. Yates testified that later on
August 27, he made contact with Skewes and told him ‘‘so
this won’t come as no surprise to you, a gentleman by the
name of Jesse East just left the office and he’s filing a griev-
ance’’ claiming he should be in the bargaining unit. Skewes
replied that he had hired East as a watchman, and Yates as-
sertedly responded (again contrary to the plain meaning of
the grievance), ‘‘He tells me that he’s been doing what we
determine as classified work in the coal industry.’’ Yates fur-
ther told Skewes that East had mentioned two other employ-
ees, Steve Trent and Ronald Padgett, who reportedly were
doing bargaining unit work and not paying dues. Skewes tes-
tified that Yates gave the impression that East’s complaint
was totally unfounded (‘‘[I]t was like, what’s this guy doing
down here? He’s not in the Union up there.’’)
I doubt that, having drawn up the August 27 grievance
(and then, on September 1, drafting another grievance con-
cerning East’s August 28 discharge), Yates intended to, or
did, give Skewes any such impression. The critical issue re-
ferred to above is whether, as both Skewes and Bolton de-
nied, the former said anything to the latter, prior to East’s
termination, about Yates’ reference to East in his conversa-
tion with Skewes and, more specifically, whether Skewes
then told Bolton that Yates had said that East was filing a
grievance.
Skewes was a likeable witness, and his willingness to con-
cede that Yates had mentioned East in their telephone con-
versation would seem, at first glance, to boost his credibility.
However, Skewes had little choice about making such a con-
cession, because labor consultant Woolwine’s September 30,
1992 position statement to the Board admits that Skewes
‘‘did have a conversation with United Mine Workers Rep-
resentative, Roger Yates, on August 25 [sic], 1992. The con-
versation was initiated by Mr. Yates who requested to know
the job duties of Mr. East, but there was no conversation or
presentation of a grievance until after Mr. East had been dis-
charged’’ (emphasis added). It will be seen that Woolwine’s
description of the Yates-Skewes conversation is considerably
more serious and businesslike than the version given by
Skewes at the hearing.
Although, as indicated, there was nothing about Skewes’
demeanor to suggest that he was not telling the truth, I be-
lieve that the totality of the evidence points to a finding that
Skewes did inform Bolton that Yates had called about a
grievance being filed by East. In so concluding, although, as
will be discussed, I find East to have lied at the hearing, I
rely on the testimony of East that, after he visited Yates, a
miner named Kasky and Third-Shift Foreman Hagy told East
that they had heard he was going to file a grievance. Hagy
was not called by Respondent to deny this testimony, and no
representation was made that he was unavailable. I can only
infer from Hagy’s nonappearance that Hagy would have tes-
tified that he did indicate on August 27 knowledge of East’s
intent to file a grievance, knowledge which presumably
would have been conveyed to him by someone in manage-
ment.
I am also influenced by the logic of the situation. If, as
Skewes testified, he was ‘‘concerned’’ about the alleged non-
payment of dues for Padgett and Trent, would he not have
contacted Bolton about Yates’ call? And, in doing so, would
Skewes have not told Bolton that it was East who had
brought the matter to Yates’ attention and that East was, in
fact, making a claim for himself?
On the other hand, based on demeanor considerations, I
am reluctant to credit the testimony of Michael Stark, East’s
half-brother and a former employee of Nevarro Mining, that
before East was discharged, Nevarro Superintendent Mike
Poskas told him that Office Manager Gale Whitt had called
Poskas to say that East had filed a grievance. Aside from
Stark’s demeanor and his relationship to East, I can see no
reason for Whitt to have called Poskas to communicate such
information. Whitt testimonially denied that she had called
Poskas about the grievance prior to the termination and,
while her testimony was quite brief, she seemed honest
enough.
I am, moreover, led to infer that Bolton knew about the
grievance by both the circumstances of the discharge and
Bolton’s serious prevarications. As I have noted, I will also
find that East lied about the asserted basis for his discharge,
but that, in my view, is not meaningful in this case.
East was discharged by Bolton on the morning of August
28, allegedly for having been asleep at his Top Gun guard
post earlier that night. Bolton testified that he had received
complaints about East sleeping on duty (about which more
later) and he had in mind to set a trap.
Bolton testified that he had attempted to get together with
the two guards about a grievance they had concerning
changes in their method of pay, but found that East was not
at home on the afternoon of August 27. Figuring that East
did not sleep during the day and ‘‘there was no way he could
be ready for his next shift,’’ Bolton set out to catch him
sleeping. Although he normally did not arrive at work until
6 a.m., Bolton, having arranged for Foreman Marcus to be
there at 5 a.m. as a witness, came to the minesite about 3:45
a.m. He parked at the bottom of the hill instead of driving
up the hill and making noise. He entered the office and al-
legedly observed East sitting at the desk with his head down
on his arms folded on the desk. Bolton sat there for over an
hour, smoking, drinking coffee, and watching East. Because
it looked as if Marcus might have overslept, about 5 a.m.
Bolton took some 28 miners’ head lamps from a rack on
which they were customarily stored near where East was sit-
190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 There was usually no mining on weekends.
18 It may also be noted that on the morning of August 28, Bolton
did not arrive at the mine until perhaps 3:30 p.m., or 4 hours after
he might have expected East to have fallen asleep—and the miners
left unprotected.
ting, and carried them outside. When miners Scott and
Shrewsbury arrived shortly before 5 a.m., Bolton told them
to ask East where the lights were.
We pause momentarily to consider East’s testimony about
this episode. He said that he was awake when Bolton arrived
around 4 or 4:30 a.m., that he watched Bolton move the min-
ers’ lights, that he said nothing to him, and that when Scott
and Shrewsbury arrived and asked about the lights, he told
them the lights were outside and ‘‘took them to the lights.’’
I find it preposterous for East to claim that he saw Bolton
enter the office and move the lights, and that he said not a
single word to him. Gary Scott was called as a witness by
Respondent, and he made an excellent impression on me.
Scott contradicted Bolton in several ways. He said that East
was ‘‘sitting in a chair with his feet propped up on the desk
and his hat was tipped forward.’’ He firmly denied Bolton’s
twice-given testimony that Scott touched East on the arm to
wake him. But Scott also testified that when he and Shrews-
bury came in, and East acknowledged them, Scott asked
where the lights were and East said that ‘‘they were out in
the rack’’ where they were normally stored. When Scott said
that they were not there, East ‘‘looked in the rack and seen
they weren’t there.’’ After East ‘‘looked around for a few
seconds,’’ he looked outside and walked out to the miner
boom to which the lights had been transferred.
Crediting Scott, I conclude that East must in fact have
been asleep when he says that he was watching Bolton move
the lights. After Scott and Shrewsbury left, Bolton told East
that he had observed him sleeping for over an hour and had
no choice but to terminate him. East cleaned out his locker,
handed Bolton the typed grievance, and left. On September
1, East went back to see Yates and another grievance was
drawn up, this one claiming that the discharge was ‘‘a result
of me trying to get my classified job back and my proper
wage rate as a bargaining unit employee in the union.’’
The final factual question is what motivated Bolton to get
up so early in the morning to try to catch East asleep. This
is where Bolton’s testimony runs into trouble, with witness
conflicts and inherent improbabilities scattered all over the
landscape.
For starters, Bolton and Skewes both testified to the vital
importance of the guard being vigilant at all times so that he
could respond to any emergencies in the mine. Bolton said
that he had told the two guards, East and Gentry, on ‘‘sev-
eral different occasions’’ that they could not sleep on the job
during the week,17 and that the last time he had done so was
‘‘probably a month’’ before East’s discharge. But Gentry,
testifying as Respondent’s witness, stated on cross-examina-
tion that Bolton had not mentioned the rule to him since he
was first hired in January 1991.
More importantly, Bolton first testified that Scott and
Shrewsbury had complained to him ‘‘just the one time right
before the 28th’’ that ‘‘every morning they come in, they
was having a hard time to get Mr. East to open the door.
They had to beat on the side of the trailer to get him up.’’
On cross, however, Bolton testified that the two men had not
actually complained to him, but rather to Foreman Marcus.
Subsequently, Bolton recanted, saying that the two had
talked to him after speaking to Marcus. Marcus was not
called to testify nor was his absence explained. Moreover,
the credible Scott, who appeared as Respondent’s witness,
while testifying that he had seen East asleep on the job a
‘‘couple of times,’’ said he never told this to any member
of management, including Marcus.
Even more significantly, Bolton testified on cross that
Scott’s and Shrewsbury’s complaint had been made to him
‘‘maybe 3 or 4 days’’ before the termination and that Marcus
had spoken to him around that same time. Despite testimony
(such as that given by Skewes) about the heavy responsibility
of the guards ‘‘for the lives and safety and welfare of the
men underground,’’ Bolton testified that he waited the 3 or
4 days after receiving the complaint to try to catch East be-
cause ‘‘I had other duties so I bided my time.’’
This nonchalant attitude clearly lends support to an infer-
ence that Bolton had no real concern about East’s reported
sleeping on duty until he heard that East had been to see
Yates. Indeed, Bolton testified that after Scott and Shrews-
bury had allegedly complained to Marcus about East, he
spoke to both East and Gentry, saying that ‘‘[T]here has
been several complaints about you all’s performance on the
job.’’ If this were true (and I doubt that it was), it would
indicate that Bolton was willing to let the matter go with this
verbal reprimand—until the call from Yates provoked the
early morning excursion.18
The record indicates that the failure of a guard to stay
awake all night is not considered as catastrophic as Skewes
and Bolton made it out to be at the hearing. Bolton testified
that, just the day before he testified, Third-Shift Foreman
Hagy had told him that he had personally caught East asleep
‘‘a bunch of times,’’ but had not said anything about it to
Bolton. Because Hagy would have presumably been working
in the mine himself, his lack of concern about East’s state
of alertness suggests that Hagy did not regard sleeping as
posing a real danger. In response to a question whether the
seriousness of such behavior had not been driven home even
to the supervisors, Bolton said that it obviously had not. But
with Hagy’s own skin potentially at stake, his alleged failure
to mention the matter to Bolton implies that it was not
deemed a major problem. The reason probably can be found
in the testimony of Michael Stark about a mine page phone:
‘‘It’ll wake you up.’’
Bolton did testify that about a year prior to East’s dis-
charge, Bolton had terminated East’s brother, Kenny, assert-
edly then working as a security guard, ‘‘for sleeping.’’ There
was no further explanation of the circumstances, which may
have included repeated offenses, graduated discipline, etc.
But Jesse East testified that his brother had been a ‘‘contract
employee,’’ which seems to indicate that he had not been a
regular guard. Two questions on cross-examination of East
by counsel for Respondent tend to support this view: ‘‘Did
one of your brothers work as a contract laborer at Top
Gun?’’ and ‘‘He was a contract employee?’’ East testified
that his brother had worked during the day ‘‘cleaning off the
high wall so it wouldn’t come down in the coal pile. Then
he worked night shift too.’’
In addition, East testified without challenge that after his
brother’s discharge ‘‘they turned around and hired him right
191TOP GUN, INC.
19 Sec. 7 endows employees with ‘‘the right to self-organization,
to form, join, or assist labor organizations, . . . and to engage in
other concerted activities for the purpose of . . . other mutual aid
or protection.’’
20 The only other possible motivation for Respondent’s anger at
East was that he told Yates of the two employees who were not pay-
ing dues, a matter which Skewes testified was of more concern to
him than the fact that East had spoken to Yates. But even that effort
by East to remedy what he perceived to be a failure of Respondent
to comply with a contract of a bargaining representative which he
reasonably believed to be his own would constitute concerted activ-
ity. Compare, for example, Wilson Trophy Co., 309 NLRB 610
(1993), in which a nonbargaining unit employee was discharged for
contacting a union, which represented the bargaining unit of which
her son was a member, to inquire if the union knew anything about
a rumored wage disparity contrary to the bargaining agreement.
21 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
22 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
Continued
back’’ at the Nevarro mine. It is true that the testimony of
Skewes was that his father, not he, owns Nevarro. The
record indicates, however, that the operation of Nevarro was
closely tied in to the operation of the other Skewes mines
(common bookkeeping and accountant, for example), and
also that Skewes/Rustcorp furnished guards to Nevarro. So
even if Kenneth East had simply been a guard when he was
discharged for sleeping, his prompt reassignment to Nevarro
indicates that what Skewes really did was suspend him for
a short while.
I conclude that the evidence establishes that the General
Counsel has made out a prima facie case under Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981).
Although I would agree that union animus, one of the ele-
ments frequently referred to as constituting a prima facie
case—the others being protected activity, employer knowl-
edge of that activity, and timing—has not been shown here,
the General Counsel has proved his case in another way. The
evidence compellingly demonstrates that the reason that
Bolton stalked East while he dozed peacefully on the morn-
ing of August 28, and then discharged him permanently, is
related to East’s visit to Yates for the purpose of filing a
grievance.
Although Respondent’s brief only addresses in a footnote
the question of whether East was engaged in activity pro-
tected by Section 7 of the Act, it is a subject worth examin-
ing in more detail. Respondent contends, citing NLRB v. City
Disposal Systems, 465 U.S. 822 (1984), that in order for
East’s activities to have been ‘‘concerted’’ under Section 7,
he must have been ‘‘invoking rights in a collective-bargain-
ing agreement that covered him.’’ That statement is not cor-
rect. City Disposal Systems does involve a situation in which
the employee who complained about safety was in fact cov-
ered by the agreement in question (although there was an ab-
sence of evidence showing that he was aware of a safety pro-
vision in the bargaining agreement). The Supreme Court stat-
ed, however, that Section 7 of the Act is not confined to a
‘‘narrow meaning,’’ id. at 831, and even may protect an em-
ployee who ‘‘acts alone.’’ Ibid.19
This case involves something different from the evidence
on which City Disposal Systems was decided. Here, an em-
ployee did not simply invoke the provisions of a bargaining
contract, but he in fact solicited the assistance of a union
agent to help him prosecute his grievance. Whether East was
correct or not in believing that he was a member of Top
Gun’s bargaining unit, Union Representative Yates encour-
aged him to believe that he had a viable grievance under the
contract, and it was therefore certainly reasonable for East to
have pursued that course. As the City Disposal opinion
points out, Section 7 provides for a single employee to en-
gage in concerted activities, ibid., by ‘‘joining’’ or ‘‘assist-
ing’’ a labor organization; so it may be said that seeking aid
and support from a labor organization in an effort to secure
representation by that organization constitutes ‘‘other con-
certed activities’’ for the purpose of mutual aid or protec-
tion.20
I thus find that Respondent violated Section 8(a)(1) by dis-
charging East on August 28, 1992. Not only has the General
Counsel made out a prima facie case, but Respondent has
failed to carry its burden, under Wright Line, supra, of dem-
onstrating that it would have permanently discharged East in
any event, despite his protected activity. I am not sure that,
in a situation in which an employer sets out to trap an em-
ployee, an employer is entitled to assert that affirmative de-
fense. But assuming that he would be, in this case the evi-
dence does not show that security guards are permanently
fired by Top Gun/Rustcorp for sleeping on the job. In fact,
in the case of East’s brother, Skewes turned ‘‘right around’’
and assigned him to the Nevarro Mine.
Furthermore, because the discharge arose in a union set-
ting and Respondent’s motivation is inextricably linked to
East’s contact with the Union, I also conclude that Respond-
ent violated Section 8(a)(3), as alleged. See Fairfax Hospital,
310 NLRB 299 (1993).
CONCLUSIONS OF LAW
1. Top Gun, Inc. and Rustcorp Company constitute a sin-
gle employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. United Mine Workers of America, AFL–CIO is a labor
organization within the meaning of Section 2(5) of the Act.
3. By discharging Jesse East on August 28, 1992, Re-
spondent violated Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent unlawfully discharged Jesse
East on August 28, 1992, I shall recommend that it be or-
dered to offer him immediate and full reinstatement to his
former job, without prejudice to his seniority and other rights
and privileges, and to make him whole for any net loss of
earnings he may have suffered from August 28, 1992, to the
date of Respondent’s offer of reinstatement, with interest, in
accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), and New Horizons for the Retarded, 283 NLRB 1173
(1987).21
I shall also recommend the issuance of a cease-and-desist
order and that Respondent be required to post appropriate
notices.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended22
192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
23 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ORDER
The Respondent, Top Gun, Inc. and Rustcorp Company, a
single employer, Elbert, West Virginia, their officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against em-
ployees because of any activities protected by Section 7 of
the Act.
(b) In any other manner interfering with, restraining, or co-
ercing its employees in the exercise of their rights to self-
organization, to form, join, or assist any labor organization,
to bargain collectively through representatives of their own
chosing, to engage in concerted activities for the purposes of
collective bargaining or other mutual aid, or to refrain from
any and all such activities.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to Jesse East immediate and full reinstatement to
his former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his seniority
or other rights and privileges, and make him whole in the
manner set forth in the remedy section of this decision.
(b) Expunge from its files any references to the discharge
of Jesse East on August 28, 1992, and notify him in writing
that this expunction has been made and that evidence of this
unlawful discharge will not be used as a basis for future per-
sonnel actions against him.
(c) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary or appro-
priate to analyze the amount of backpay due.
(d) Post at its place of business in Elbert, West Virginia,
copies of the attached notice marked ‘‘Appendix.’’23 Copies
of the notice, on forms provided by the Regional Director for
Region 9, after being signed by Respondent’s authorized rep-
resentative, shall be posted for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge or otherwise discriminate against
any employee because of any activities protected by the Act.
WE WILL offer Jesse East immediate and full reinstatement
to his former job; WE WILL compensate him with interest for
any loss of pay he may have suffered because we terminated
him; and WE WILL remove from our personnel files any ref-
erence to his August 28, 1992 discharge, and notify him of
this action and of our intention not to rely on such discharge
in future personnel actions.
TOP GUN, INC. AND RUSTCORP COMPANY