Two M

National Labor Relations Board - Board Decisions

Sep 17, 1986

281 N.L.R.B. 502 (N.L.R.B. 1986)

502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Five M Coal Corporation d/b/a Two M and District
30, United Mine Workers of America. Case 9-
CA-22737
17 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 21 July 1986 Administrative Law Judge
Frank H. Itkin issued the attached decision. The
General Counsel filed limited exceptions and a sup-
porting brief.
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 brief and has
decided to affirm the judge 's rulings, findings, and
conclusions and to adopt the recommended
Order.'
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Five M
Coal Corporation d/b/a Two M, Phelps, Ken-
tucky, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
' The General Counsel excepts to the judge 's failure to include a vlsi-
tatorial clause in the recommended Order . A visitatorial clause authorizes
the Board , for compliance purposes , to obtain discovery from the Re-
spondent under the Federal Rules of Civil Procedure under the supervi-
sion of the United States court of appeals enforcing the Board 's Order.
Under the circumstances of this case, we find it unnecessary to include
such a clause . Accordingly, we deny the General Counsel's request.
Mark Mehas, Esq., for the General Counsel.
Alan Shachter, Esq., for the Employer.
Vernon Adkins, Esq., for the Union.
DECISION
FRANK H . ITKIN , Administrative Law Judge. The
Union filed an unfair labor practice charge in this case
on January 7 and a complaint issued on February 20,
1986 . The General Counsel, in her complaint, alleged
that Respondent Employer had violated Section 8(axl),
(3), and (5) of the National Labor Relations Act by solic-
iting employees to enter into individual employment con-
tracts; by bypassing the Union and dealing directly with
unit employees; and by locking out its employees be-
cause they refused to accept lower wage rates, fewer
paid holidays and sick days, and different medical insur-
ance than provided for in their existing collective-bar-
gaining agreement . Respondent Employer, in its answer,
denied violating the Act as alleged.
A hearing was held on the issues raised in Pikeville,
Kentucky, on April 30, 1986.1 On the entire record, in-
cluding my observation of the demeanor of the wit-
nesses, I make the following
FINDINGS OF FACT
Respondent, as the parties have admitted here, is an
employer engaged in commerce as alleged . Charging
Party Union is a labor organization as alleged. Since
about October 13, 1985, the Union has been the exclusive
bargaining agent of the unit employees described below:
All production and maintenance employees em-
ployed by [Respondent] at its Phelps, Kentucky,
coal mine, excluding all office clerical employees,
professional employees , guards and supervisors as
defined in the Act.
The Employer's recognition of the Union as bargaining
agent for the unit employees is embodied in its current
collective-bargaining agreement, effective from October
13, 1985 , to September 30, 1987.
John Barnes testified that he had worked at the Em-
ployer's Phelps coal mine for about 2 years prior to his
resignation on January 27, 1986 ; that he was and is a
member of the Union; and that on December 30, 1985,
he and his coworkers had the following conversation
with Company President Jesse Meadows:
We had finished a shift's work. We came out, we
walked into the mine office and Mr . Meadows
handed us a sheet of paper [G .C. Exh . 2.] He said to
me personally ... John, here read this . So, I hesi-
tated a few moments, read it and didn 't say any-
thing . I overheard him tell [coworker] Harold Ste-
venson that he had to have an answer by the fol-
lowing evening . So, I just walked out and got in my
vehicle and went home.
General Counsel 's Exhibit 2 recites , inter alia, that it is
an "agreement" between "Two M Coal Corporation
And Its Employees"; that "all Union employees agree to
work for $100 a shift," "no holiday pay," "no sick days,
floating days or birthday pay"; that "Two M ... agrees
to furnish reasonable hospital insurance to cover major
medical expenses"; and that "this agreement [is] effective
January 1, 1985 and stays in effect until Two M ... re-
ceives an increase in the price of coal or until the new
UMWA contract becomes effective." These recited
terms and conditions of employment are, admittedly, less
beneficial for the employees than those contained in the
existing collective-bargaining agreement . (See G.C. Exh.
4.)
Barnes next testified that during the evening of De-
cember 30, Meadows telephoned Barnes at his home, and
they had the following conversation:
[H]e [Meadows] told me that he was calling work
off for the following day, December 31 ...; he
I The complaint was amended at the hearing to delete allegations per-
taining to the failure to remit deducted union dues
281 NLRB No. 78
TWO M
said until you men sign that agreement there's no
more work for you.
Meadows also apprised Barnes that "there was a meeting
tomorrow for all the men to get together and discuss it."
Shortly thereafter, during the evening of December 30,
Barnes also spoke with coworker Stevenson on the tele-
phone . Stevenson , a "mine committeeman ," informed
Barnes that District 30 Field Representative Vernon
Adkins "had instructed [Stevenson] to tell the men not to
sign the contract." (G.C. Exh. 2.)
Barnes did not attend the "meeting called for the next
day." Barnes explained : "I didn 't have any reason to
attend ... because I had no right to do any bargaining."
Later, on January 3, Barnes and his coworkers went to
the Phelps mine to get their paychecks . There, Barnes
asked Meadows "about work," and Meadows replied:
[Y]ou know better than to ask me that . . . you
know what I told you ... there won't be no more
work until you sign this agreement ....
Barnes insisted , "I'm not signing it."
Oliver Bevins testified that he too worked for Re-
spondent Employer ; that on December 31 Meadows
"handed" him a copy of General Counsel 's Exhibit 2;
and that Meadows then said , "we'd have to sign that in
order to continue working ... every member would
have to sign that . . . ." Bevins further recalled that
Meadows held a meeting that day , December 31, attend-
ed by the employees . There, Meadows told the workers,
"that the agreement would have to be signed in order for
us to work." The "mine " was "closed that day ," and re-
mained closed for about 2 weeks . Bevins, as he testified,
returned to work on January 17, 1986.2
Harold Stevenson testified that he is employed by Re-
spondent Two M Coal Corporation as a shuttle car oper-
ator; that he is also "mine committeeman" for the Union;
and that on December 30 Meadows told the employees
that "he needed to have [G.C. Exh . 2 signed] the follow-
ing day . Stevenson replied: "I told him [Meadows] I
wouldn't sign the agreement ' because I couldn 't. I didn't
have the authority to sign ." Meadows insisted that "he
needed it signed the following day." Stevenson later
spoke with Union Field Representative Vernon Adkins
who "told [Stevenson] not to sign it and to advise the
others not to sign it ." Stevenson relayed Adkins ' instruc-
tions to his coworkers. Stevenson did not attend the
meeting conducted by Meadows on December 31. The
Phelps mine was then shut down and remained closed
for 13 days . The mine was reopened on Friday , January
17.
Vincent Charles is president of the Local Union, Local
1528 , which "represents the men at Two M Coal Corpo-
ration." Charles related the following telephone conver-
sation with Meadows about December 31:
Q. Do you recall Jesse Meadows talking to you
about getting lower contract rates?
8 Bevins also witnessed Meadows tell employee Barnes about January
3 that "the agreement would have to be signed by every man there or we
couldn't go back to work."
503
A. Yeah, one time he called me.
Q. Approximately when was that?
A. It was around the-it was around-pretty
close to my birthday, the 30th, the 31st of Decem-
ber.
Q. And do you recall what he said to you during
that conversation?
A. Yeah, I do.
Q. Tell the Judge what he said.
A. He called me and told me he wondered about
Harold Stevenson. He said he had a meeting up
there that day and Harold had never come. And I
said, What kind of meeting do you got? He said,
We're going to take a vote on this contract.
I said, What kind of contract are you talking
about? It's United Mine Workers . I said, What do
you mean , to take a vote on it?
He said, I can't pay your wages that are in that.
He said, I've got all the men here excepting Harold.
We're going to take a-.
Q. Except who?
A. Except Harold Stevenson . He said, We're
going to take a vote on it to get the wages cut
down . He said, That fellow over at Majestic told
me that I could do it. I said , I don 't believe nobody
could do that, now. And he said , Well, that's what
that guy said over there . And I said , You've been
misinformed wrong. I said, You can't take a vote on
it. It's done been voted on. I said, They don't have
but one contract , and one only .... So I give him
the District number to call and told him to talk to
Vernon Adkins . And he told me he would.
United Mine Workers District 30 Field Representative
Vernon Adkins explained that Local 1528 "represents
the men at the [Phelps] mine"; that "Two M Coal Cor-
poration [is] currently signatory to a collective bargain-
ing agreement with the United Mine Workers of Amer-
ica" (G .C. Exh. 4); that he had advised employee Ste-
venson on December 30 that "he shouldn't sign anything
to this effect [referring to G.C. Exh. 2] and that he [Ste-
venson] should advise the other employees also of this";
and that, previously, I [Adkins] told him [Meadows] that
we did not have the right to reopen this contract [G.C.
Exh. 4] that it was signed, and he would have to go
through the International .... a
Randy Blankenship , a witness for Respondent Employ-
er, testified that he previously had worked at the Phelps
mine as night watchman ; that Meadows had asked him
about December 30 "to call" all the employees ' and "tell
them we was going to have a meeting the next day," De-
cember 31 ; and that "I [Blankenship] told them [the em-
ployees] we was blocked off, that there wouldn't be no
work and we was going to have a meeting ." Blankenship
a On cross-examination , Adkins recalled that Meadows in fact had not
signed the contract with the Union, G.C. Exh. 4, until about December
13; that Meadows had asked Adkins for "some concessions before signing
the agreement"; and that Adkins had explained to Meadows that "there
was no possibility of concessions without dealing with the International."
See also the testimony of employees Miles Casey (Tr. 61-64); Charles
Casey (Tr. 76-77); and Vincent Henderson (Tr. 109-110).
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
noted that "blocked off ... means the stockpile is full
and it wouldn 't hold no more coal ." Blankenship later at-
tended the December 31 meeting . However , he could
not "remember" what Meadows said "to the group of
men about the agreement [G.C. Exh. 2], or anything else
at that meeting." Elsewhere, Blankenship recalled advis-
ing Meadows on December 31 "to call a certain Union
official"-Harvey Hess . Blankenship was then asked,
"what's Hess' position?" Blankenship responded : "I don't
really know what he is-he's a president or something of
a local."
Bertrue Meadows, brother of Jesse Meadows, also tes-
tified for the Employer. He explained how the previous
operator of the Phelps mine had "left the operation"
owing employees, including Meadows, back wages; that
his brother Jesse Meadows was then manager of the
mine; and that the employees wanted "Jesse to pay them
for the wages that [the previous operator] owed them."
Bertrue Meadows also claimed that employees later en-
gaged in a slowdown in an attempt to get their back
wages from Jesse. Consequently , Jesse Meadows, at
some time before December 31, "fired" the "day shift."
Later, however, Union Representative Adkins and the
employees, apparently , settled their dispute and "agreed
to go back to work." Nevertheless, "production prob-
lems continued on the first shift."
Bertrue Meadows further testified that he had wit-
nessed a meeting or conversation between his brother
Jesse and an unidentified "local president" during De-
cember 1985 . Bertrue Meadows could not "remember
what date it was" and also could not remember the visi-
tor's "name." Bertrue Meadows testified:
He [the unindentified visitor] said he was-I forget
what his name was, but the way he told us, he told
us what his name was , and he said I'm the local
president down here ....4
This visitor, we are told, then advised Jesse Meadows:
Why don't you do like some of the rest of the guys
around here ... get your men at the mine to sign a
paper to lower their wages and work for less
money, and to do away with their floating days and
their grievance days.
If Jesse could get the men to sign this kind of paper
and get it approved by the local board and every-
thing . . . then everything would be all right.
And, that is what Jesse Meadows attempted to do here.
However , according to Bertrue Meadows , Jesse was
later advised by Local President Vincent Charles (whose
testimony is recited above) that "he never heard of no
such contract being done like that" and, accordingly,
Jesse Meadows therefore told the mine employees on
December 31 to "just drop it."
Finally, Bertrue Meadows testified:
4 As counsel for Respondent acknowledged (Tr 142), " it turned out
later that he [the visitor] was not of that Local [involved here]
This evidence was assertedly being offered to explain "motive."
Q. Now , was the mine having financial difficul-
ties to your knowledge at the time that this meeting
occurred?
A. Jesse said it was, yeah . He told me that he
was going in the hole on the mine.
James Hilton, mine foreman for the Employer , testified
that the first shift at the mine produced less coal than the
second shift. However, Hilton admittedly "wasn't famil-
iar how they worked" and therefore could not provide a
"reason" for this difference . Hilton, as he further testi-
fied, attended the December 31 meeting at the mine and
had been given a copy of General Counsel 's Exhibit 2.
Jesse Meadows, assertedly , "dropped" his attempt at this
meeting to get the employees to sign his "agreement."
Hilton was asked : "Was there any mention that if you
don't sign this , you don 't work?" Hilton responded: "I
didn't hear him say that."
Ricky Hilton, James Hilton's brother, also employed
by Respondent, testified that he too attended the Decem-
ber 31 meeting at the mine . There, "he [Jesse Meadows]
asked if we 'd care to come to an agreement . . . to work
with the wages that he had in [G.C. Exh. 2] . . . `till he
got it straightened out ...." Hilton was asked : "Did he
[Meadows] make any threats about closing the mine, say
anything about closing the mine?" Hilton responded:
"Not that I know of." Hilton claimed that the "meeting"
called by Meadows-to have General Counsel's Exhibit
2 signed by all the employees-did not "ever get going"
"because Harold [Stevenson] and them didn't show up to
represent us."
David Nichols, a certified public accountant, testified
for the Employer. Nichols explained that the Employer
was a "contract miner"; the Employer was "to contract
mine for Sovereign Coal Corporation"; the Employer
"started business in the middle of October 1985" and had
financial problems from the beginning. Nichols cited as
reasons for the Employer 's unsatisfactory financial condi-
tion, inter alia, poor mining conditions, poor equipment,
a high reject rate, and the Employer's contract arrange-
ment with Sovereign . Nichols then claimed that the Em-
ployer "closed" in January 1986 because the Employer
"didn't have enough money to operate ...." Nichols
acknowledged, however, that the Employer later re-
opened in January "for a short period." According to
Nichols, the Employer reopened in January to satisfy
"minimum tonnage" requirements under its contract and
there was apparently a pending sale of the operation.
Nichols noted:
During the month of March, I believe, the Compa-
ny was sold out completely to a gentleman by the
name of Mr. Smith.
Jesse Meadows, assertedly, had no "connection with the
corporation" after March 1986.8
5 Nichols explained:
[Wjhen the Corporation was sold out the last part of March, the
stock was transferred , 100 percent of it what Mr Meadows owned
was transferred to the new owner, continuing doing business, and
the contract was transferred over to hun as president . [under the
same name]
TWO M
Nichols generally claimed that • the Employer could
not "continue to function ." In support of his testimony,
he produced a financial report dated March 31 , 1986 (R.
Exh. 1). In that report , Nichols states, in part:
A compilation is limited to presenting in the form
of financial statements information that is the repre-
sentation of management . I have not audited or re-
viewed the accompanying financial statements and,
accordingly, do not express an opinion or any other
form of assurance on them.
Management has elected to omit substantially all
of the disclosures and the statement of changes in
financial position required by generally accepted ac-
counting principles . If the omitted disclosures and
statement of changes in financial position were in-
cluded in the financial statements, they might influ-
ence the user's conclusions about the Company's fi-
nancial position, results of operations, and changes
in financial position . Accordingly, these financial
statements are not designed for those who are not
informed about such matters.
Jesse Meadows testified that prior to March 18, 1986,
he was president and chief stockholder of Five M Cor-
poration; that Five M Corporation was a holding compa-
ny and Two M had been established "to do ... contract
mining for Sovereign Coal Company"; and that presently
he has no "relationship" with Five M Corporation or
Two M. Meadows claimed that his employees ' "attitude"
was "real bad" because the prior owner had left owing
them back wages . Meadows recalled how he "sent [the
employees] home" and, later, with the assistance of
Union Representative Adkins, reached some form of so-
lution or compromise . According to Meadows , "if the
boys would get together and keep our production up
... I paid [or would pay] out of my personal stuff."
Meadows observed that "production stayed pretty high
and then all of a sudden ... they just fell under ...."
Meadows noted that his "reject rate" was also too high.
Meadows was critical of the production of his first
shift-he emphasized that the "difference in production
is the attitude of the people . . . ."
Meadows admittedly had asked Adkins about contract
"concessions ." Adkins was "unaware" that any conces-
sions were being granted . Meadows "agreed" with and
adopted Adkins' earlier testimony, summarized supra,
concerning their conversation about contract conces-
sions. Meadows further testified that later , shortly before
Christmas, "some other individual came" to him "and in-
troduced himself as a local president "; that this individ-
ual was named Chapman; and
that week before Christmas , Chapman came up
there ... and told me he was president of the local
over there ... the other hill right there ... and he
told me that all the mines in the neighborhood
wasn 't paying nothing like we was ... and he said
it was just an agreement that they worked out with
their men ....
Meadows, assertedly relying on Chapman 's advice, then
tried to get the employees to sign General Counsel's Ex-
505
hibit 2 . Meadows added: "That [his] mine would not be
operating no longer Christmas day if that man [Chap-
man] hadn 't come up there and told me what he told
me"-"before that we had planned closing the mine, we
was going to work up until Christmas ...."
Meadows then testified that he presented General
Counsel 's Exhibit 2 to the employees to "look at it and
agree on it."e A meeting was scheduled at the mine for
December 31. However , Local 1528 President Vincent
Charles "told me [Meadows] I couldn't do it" and, in ad-
dition, committeeman Stevenson did not show up at the
December 31 meeting. Accordingly, "I [Meadows] told
them [the employees] that we couldn't do it, that was it,
and the meeting was over."
The mine was closed from about December 31, 1985,
until January 17 , 1986. Meadows testified , "I done fig-
ured out that there wasn't no way that I could run the
mine." Meadows, at the time , was "in the process of
making a deal with the Smith boys" to take over the op-
eration-"to take the mine and keep all my employees
... and it come up, I believe , it was on the 16th we was
supposed to come back ...." Meadows, however, then
explained that the "deal" with the "Smith boys" fell
through "and that left me going back and having to
manage the mine" and meet the lease or contract ton-
nage requirements . Later, however, we are further told,
on March 18, Meadows sold out to the "Smith boys."8
I credit the testimony of Barnes, Bevins, Stevenson,
Charles, Adkins, M. Casey, C. Casey , and Henderson as
summarized above . Their testimony is in large part mutu-
ally corroborative . Their testimony is also substantiated
in significant part by admissions of Respondent's wit-
nesses . And, relying on demeanor, they impressed me as
credible and trustworthy witnesses . On the other hand, I
do not credit the testimony of Blankenship, B. Meadows,
J. Meadows , J. Hilton, R. Hilton, and Smith insofar as
their testimony conflicts with the testimony of the
former witnesses . The testimony of Blankenship, the
Meadows, the Hiltons, and Smith was, at times, vague,
unclear, incomplete, and contradictory. They did not im-
press me as reliable or trustworthy witnesses . And, as for
the accountant Nichols, his general observations con-
cerning the financial condition of Respondent are of lim-
ited assistance here . His own financial report acknowl-
° Meadows claimed that he had Randy Blankenship call the employees
to arrange the December 31 meeting at the mine.
7 Meadows was asked about his conversation with employee Barnes on
January 3, as recited supra. Meadows replied : "I remember Mr. Barnes
saying something to me on that right there , but I don 't remember reply-
ing like he said I done ......
° Verlin Smith, brother of the "current owner" of Respondent corpo-
ration, testified that he worked at the mine for Meadows ; that he was
"sort of acting mine committeeman" in the absence of Stevenson ; that he
was given a copy of G.C. Exh. 2 and notified about the meeting of De-
cember 31 ; and that the meeting never "really got going ." Smith told
Meadows on this occasion to call Local President Vincent Charles.
Meadows, after talking to Charles , "said the meeting was over." Smith
was asked : "Did Mr. Meadows make any statements about closing the
mine at that meeting?" Smith replied: "I can 't answer that because I don't
remember." Elsewhere , Smith claimed : "my memory ain't that good."
Elsewhere , Smith recalled Meadows telling him that we would be "going
back to work" "not until we sign the paper ." Vernon Adkins was re-
called to explain that Verlin Smith was not "designated as a committee-
man of the United Mine Workers of America."
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
edges the limitations of his investigation, as quoted Employer's assertions as incredible and insufficiently es-
above. tablished here.
Discussion
Section 8(a)(5) of the National Labor Relations Act
makes it an unfair labor practice for an employer "to
refuse to bargain collectively with the representatives of
his employees . . . ." Section 8(aX3) of the Act makes it
an unfair labor practice for an employer "to encourage
or discourage membership in any labor organization" by
"discrimination in regard to hire or tenure of employ-
ment or any term or condition of employment ...." It
is not seriously disputed here that an employer runs afoul
of these statutory proscriptions when he solicits his em-
ployees to enter into individual employment contracts,
bypasses their designated collective-bargaining agent, ig-
nores their existing collective-bargaining contract, and
then , in retaliation , locks them out because the employ-
ees refuse to accept substantially reduced terms and con-
ditions of employment . The credited evidence of record
makes it clear that is what happened in this case.
Thus, as recited supra, Respondent Employer was sig-
natory to a collective -bargaining agreement with the
Union. The Employer was unsuccessful in getting the
Union to grant him concessions. The Employer then pre-
sented to the individual unit employees a new contract
providing for substantially reduced wages and terms and
conditions of employment. The Employer repeatedly
warned the employees: "until you men sign that agree-
ment, there's no more work for you." The unit employ-
ees, as advised by their union representatives, refused to
sign the new individual agreements. The Employer, in
retaliation, closed down his mine from December 31,
1985, through January 16, 1986. The Employer locked
out the unit employees , reminding them during this
period, "you know what I told you . . . there won't be
no more work until you sign this agreement." The em-
ployees persisted in their refusal to sign the new individ-
ual agreements . Unfair labor practice charges were filed
and the mine was ultimately reopened on January 17,
1986.
Respondent Employer, by the above conduct, unlaw-
fully solicited employees to enter into individual employ-
ment contracts, bypassed their Union, dealt directly with
the employees, and ignored the existing contract, in plain
derogation of its obligation to bargain in good faith. Fur-
ther, Respondent Employer, in an attempt to coerce its
employees into signing the new individual agreements
and ignore their union representatives, locked out the
employees for some 13 days, in plain violation of Section
8(a)(3) of the Act. The Employer asserts here, inter alia,
that it was experiencing "financial troubles," the mine
was "blocked off," the "reject rate" was too high and
the employees had a bad "attitude." I reject these and re-
lated assertions as mere pretexts advanced in an attempt
to justify the Employer's bad faith and discriminatory
conduct, proscribed by Section 8(axl), (3), and (5) of the
Act. Further, this record does not sufficiently demon-
strate that the Employer would have ceased operations
from December 31, 1985, until January 17, 1986, for
lawful nondiscriminatory reasons . In sum , I reject the
CONCLUSIONS OF LAW
1. Respondent Employer is an employer engaged in
commerce as alleged.
2. The Union is a labor organization as alleged.
3. Respondent Employer violated Section 8 (aX5) and
(1) of the Act by failing and refusing to bargain in good
faith with the Union as the exclusive bargaining agent of
its employees in the following appropriate unit, by by-
passing the Union and dealing directly with the unit em-
ployees, by soliciting the employees to enter into individ-
ual employment contracts , and by ignoring its existing
contract with the Union. The appropriate bargaining unit
consists of:
All production and maintenance employees em-
ployed by [Respondent] at its Phelps, Kentucky,
coal mine, excluding all office clerical employees,
professional employees, guards and supervisors as
defined in the Act.
4. Respondent Employer violated Section 8(aX3) and
(1) of the Act by locking out its employees from Decem-
ber 31, 1985, through January 16, 1986, because they re-
fused to accept lower wage rates, fewer paid holidays
and sick days , and different medical insurance than pro-
vided in the existing contract with the Union.
5. The unfair labor practices found above affect com-
merce as alleged.
REMEDY
Respondent Employer will be directed to cease and
desist from engaging in the conduct found unlawful
herein, or like or related conduct, and to post the at-
tached notice. Affirmatively, to effectuate the policies of
the Act, the Employer will be directed to, on request,
bargain in good faith with the Union as the bargaining
agent of the unit employees. Further, the Employer will
be directed to make whole the unit employees for any
loss of pay or benefits they may have sustained as a
result of the Employer's unlawful conduct, by paying to
them a sum of money equal to that which they would
have earned but for the Employer's unlawful action, less
their net earnings during this period, to be computed in
the manner described in F. W. Woolworth Co., 90 NLRB
289 (1950), with interest to be computed as set forth in
Florida Steel Corp., 231 NLRB 651 (1977).8
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edto
9 See, generally, Isis Plumbing Co., 138 NLRB 716 (1962)
10 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
ORDER
The Respondent, Five M Coal Corporation d/b/a
Two M , Phelps, Kentucky, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
the Union, District 30, United Mine Workers of Amer-
ica, as the exclusive bargaining agent of its employees in
the following appropriate unit , by bypassing the Union
and dealing directly with the unit employees , by solicit-
ing the employees to enter into individual employment
contracts, and by ignoring the existing collective-bar-
gaining agreement . The appropriate unit consists of:
All production and maintenance employees em-
ployed by Respondent at its Phelps, Kentucky, coal
mine, excluding all office clerical employees , profes-
sional employees, guards and supervisors as defined
in the Act.
(b) Discouraging membership in the Union by discri-
minatorily locking out its employees because they re-
fused to accept lower wage rates, fewer paid holidays
and sick days, and different medical insurance than pro-
vided in the existing collective -bargaining agreement.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the purposes and policies of the Act.
(a) On request , bargain in good faith with the Union as
the exclusive bargaining agent of its employees in the ap-
propriate unit.
(b) Make whole all unit employees for all losses sus-
tained as a result of its unlawful conduct , together with
interest, as provided in this decision.
(c) Preserve and, on request , make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its facilities in Phelps, Kentucky, copies of
the attached notice marked "Appendix." 11 Copies of the
notice, on forms provided by the Regional Director for
Region 9 , after being signed by the Respondent 's author-
ized representative , shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
I I If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail and refuse to bargain collectively
and in good faith with the Union , District 30, United
Mine Workers of America , as the exclusive bargaining
agent of our employees in the following appropriate unit,
by bypassing the Union and dealing directly with the
unit employees, by soliciting the employees to enter into
individual employment contracts , and by ignoring the ex-
isting collective-bargaining agreement . The appropriate
unit consists of:
All production and maintenance employees em-
ployed by us at our Phelps, Kentucky, coal mine,
excluding all office clerical employees , professional
employees , guards and supervisors as defined in the
Act.
WE WILL NOT discourage membership in the Union by
discriminatorily locking out our employees because they
refuse to accept lower wage rates , fewer paid holidays
and sick days, and different medical insurance than pro-
vided in the existing collective -bargaining agreement
with the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request , bargain in good faith with the
Union as the exclusive bargaining agent of our employ-
ees in the above appropriate unit.
WE WILL make whole our employees for all losses sus-
tained as a result of our unlawful conduct, as found by
the Board, together with interest.
FIVE M COAL CORPORATION D/B/A
TwoM