TAFT COAL SALES & ASSOCIATES, INC. AND WALTER ENERGY, INC. AND WALTER MINERALS, INC. AND UNITED MINE

National Labor Relations Board - Board Decisions

Jan 10, 2014

360 N.L.R.B. 96 (N.L.R.B. 2014)

96 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
360 NLRB No. 19
Taft Coal Sales & Associates, Inc. and Walter Ener-
gy, Inc. and Walter Minerals, Inc. and United
Mine Workers of America, District 20. Cases
10–CA–088599 and 10–CA–093022
January 10, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS JOHNSON
AND SCHIFFER
On June 13, 2013, Administrative Law Judge Robert
A. Ringler issued the attached decision. The Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Taft Coal Sales & Associ-
ates, Inc., Walter Energy, Inc., Walter Minerals, Inc., a
single employer, Birmingham, Alabama, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order.
Jeffrey D. Williams, Esq., for the Acting General Counsel.
Stephen E. Brown, Esq. (Maynard, Cooper & Gale, PC), for
the Respondents.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
2 We note that the Respondent did not assert, as an affirmative de-
fense, that the Board should defer this case while the Union’s grievance
over the June 27, 2012 layoff at the Choctaw mine is being processed.
We adopt the judge’s recommendation of a full reinstatement and
backpay remedy, rather than the limited backpay remedy set forth in
Transmarine Navigation Corp., 170 NLRB 389 (1968). See, e.g.,
Plastonics, Inc., 312 NLRB 1045 (1993). (“The traditional and appro-
priate Board remedy for an unlawful unilateral layoff based on legiti-
mate economic concerns includes requiring the payment of full back-
pay, plus interest, for the duration of the layoff”). Here, the Respond-
ent failed to bargain in good faith with the Union about both the deci-
sion to lay off unit employees and its effects. We correct the judge’s
analysis to the extent that it suggests a Transmarine remedy would only
be applicable if the Respondent had laid off the entire unit. See KGTV,
355 NLRB 1283, 1286 (2010).
DECISION
STATEMENT OF THE CASE
ROBERT A. RINGLER, Administrative Law Judge. This case
was heard in Birmingham, Alabama, on April 23, 2013. The
original charge was filed by the United Mine Workers of Amer-
ica, District 20 (the Union) on September 5, 2012.1 The con-
solidated complaint (the complaint) alleged, inter alia, that:
Walter Energy, Inc. (Walter Energy), Walter Minerals, Inc.
(Walter Minerals) and Taft Coal Sales & Associates, Inc. (Taft)
constituted a single employer enterprise (the Respondents); and
violated Section 8(a)(1) and (5) of the National Labor Relations
Act (the Act) by threatening and interrogating employees, and
unilaterally laying off workers.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the parties’
briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Taft, a corporation, has operated a coal
mine in Walker County, Alabama (the Choctaw Mine). Annu-
ally, in conducting such operations, it purchases and receives
goods valued in excess of $50,000 directly from suppliers out-
side of Alabama. Based on the foregoing, the Respondents
admit, and I find, that Taft is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act. They further admit, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The majority of the controlling facts are undisputed.2 Walter
Energy, a publicly traded Delaware corporation, is a leading
producer of coal. Walter Minerals, a coal mining operation, is
a wholly owned subsidiary of Walter Energy. Taft, which is a
wholly owned subsidiary of Walter Minerals, operates the Reid
School and Choctaw Mines in Birmingham, Alabama.
1. Common corporate leadership
Several key leaders hold simultaneous roles for the Re-
spondents:
WALTER
ENERGY
WALTER
MINERALS
TAFT
Walter
Scheller
Chief Executive
Officer (CEO)
and Director
Director Director
Charles
Stewart
Senior Vice
President (Sr.
VP), Project
Development
President President
Robert VP, Corporate Director Director

1 All dates are in 2012, unless otherwise stated.
2 Unless otherwise explained, factual findings arise from admis-
sions, joint exhibits, stiulations and uncontroverted testimony.
TAFT COAL SALES & ASSOCIATES, INC. 97
Kerley Controller &
Chief Account-
ing Officer
Michael
Hurley
VP, Tax VP, Tax VP, Tax
Earl
Dopplett
Sr. VP, General
Counsel & Sec-
retary
Secretary Secretary
Michael
Griffin
Assistant Treas.
& Interim Treas.
Asst. Treas. Asst. Treas.
(Jt. Exh. 2(a).)
2. Labor relations
Steve Dickerson, human resources manager for Walter Min-
erals,3 handles labor relations and personnel matters for both
Walter Minerals and Taft.4 See, e.g. (R. Exh. 11). He testified
that he is unauthorized to bind Walter Energy concerning labor
relations and personnel matters. He added that Walter Energy
has no involvement in Taft’s day-to-day labor relations or per-
sonnel matters. He receives his performance review and direc-
tion from Thomas Lynch, senior vice president, human re-
sources at Walter Energy.5 (Tr. 229.) He also reports to Jan
Kizziah, vice president of operations for Walter Minerals. (Tr.
230.)
3. Wages and benefits
Taft’s employees receive their paychecks and benefits direct-
ly from Taft,6 which independently sets their wages. Taft’s
wage, bonus and retirement system differs from Walter Ener-
gy’s compensation system. Regarding insurance, Lynch testi-
fied:
There’s a master corporate policy. It essentially functions as
an umbrella policy, where the subsidiaries, including Taft . . .
have unique provisions and unique administration in the area
of workers’ compensation . . . . And the corporation pays the
premium under the master policy and then charges back the
cost of that to the subsidiary.
(Tr. 169.) Taft independently handles its unemployment insur-
ance.
4. Operations
Lynch testified that Walter Energy has no involvement with
Taft’s day-to-day operations, personnel matters or labor rela-
tions issues. Each entity maintains separate bank accounts and
fiscal records. Taft transmits monthly financial reports to Wal-
ter Energy. Walter Energy and Taft share a common address
and phone number in Birmingham. (Jt. Exh. 2(a).) Walter

3 The parties stipulated that he is an agent of Walter Minerals, with-
in the meaning of Sec. 2(13) of the Act.
4 Although the record reveals that Walter Energy acquired Taft in
2008, it is silent regarding how Dickerson of Walter Minerals became
responsible for Taft’s labor and personnel relations.
5 The parties stipulated that Lynch is an agent of Walter Energy,
within the meaning of Sec. 2(13) of the Act.
6 Taft has a unique employer ID number, and independently handles
payroll taxes. (R. Exh. 9.)
Minerals has a separate address and phone number, although it
is also headquartered in Birmingham. (Id.) Walter Minerals
and Walter Energy share an email system and web address. (Jt.
Exh. 2(g), (j).)
B. Neutrality Agreement
On December 9, 2011, Walter Energy and the Union agreed
that, if the Union attempted to unionize the Choctaw Mine or
its other mines, Taft would remain neutral and use a card check
procedure to gauge employee support (the Neutrality Agree-
ment). (Jt. Exh. 2(b).) The Neutrality Agreement, however,
banned the Union from using it to prove single employer status
in the current litigation. Specifically, it stated that:
Nothing in this MOU, its implementation . . . or the negotia-
tions for the labor agreements . . . shall . . . be . . . offered as
evidence . . . to create a . . . single employer . . . relationship
between . . . [Walter Energy and the] mining operation.
(Id.)
C. Union’s Organizing Drive
In March, the Union began organizing the following bargain-
ing unit (the unit):
All hourly paid non-supervisory employees [employed by
Taft at its Choctaw Mine] . . . , excluding all supervisory em-
ployees, coal inspectors, weigh bosses, watchmen, clerks,
technical employees and engineering employees.7
(GC Exh. 1.)
1. Supervisor Nixon Hill’s statements
a. Plant closure allegation
Robert Plunkett, a driver, stated that, in March,8 he and Hill
had this exchange:
He picked me up [in his truck] from dropping off another
piece of equipment and we was riding back to my truck and
he just said, “I wonder how many people’s going to lose their
jobs,” and I said, “what are you talking about?” He said,
“well, they sign that Union in, they’ll be a lot of people lose
their jobs, and they’ll close the mine down.” He said, “if you
all sign in, they’ll close the mine down,” and I said, “well,
they can’t close it down because of Alabama Power owns the
coal and they’re going to want to get it out.” And he said,
“they can sure shut it down.”
(Tr. 29–30.) (Grammar as in original.)
Hill flatly denied this conversation, and averred that Plun-
kett’s account was implausible because he never would have
allowed him to ride in his truck. He added that he and Plunkett
had a poor relationship, and suggested that Plunkett’s bias like-
ly colored his testimony.
Given that Plunkett testified that Hill threatened him, and
Hill denied the threat, I must make a credibility determination.

7 There were approximately 90 employees in the unit at that time.
8 He recalled that he signed a union authorization card on April 5
and placed this conversation roughly 2 weeks earlier. The complaint
identified this conversation as occurring on March 22, which is reason-
able.
I I I
98 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
For several reasons, I credit Plunkett. First, he had a credible
demeanor; he was consistent and equally helpful on direct and
cross examination, and appeared committed to relaying truthful
testimony. His testimony was generally consistent with his
sworn affidavit. Hill, on the other hand, appeared less than
credible. His explanation that Plunkett lied about riding in his
truck appeared concocted and implausible. It is also probable
that he was concerned that his threat, which violated the Neu-
trality Agreement, could result in his own disciplinary action,
and such anxiety colored his testimony.
b. Interrogation allegation
Joey Jones, another employee, testified that he and Hill had
this conversation in the “bathhouse” parking lot:9
He come up . . . at the end of the shift, and I asked him about a
day shift job and he told me . . . all the day shift guys voted on
the Union. How did you vote? I said I didn’t vote.
(Tr. 45–46.) (Grammar as in original.)10 Hill denied this ex-
change.
Given that Jones stated that Hill interrogated him, and Hill
denied such inquiry, I must make a credibility determination.
For several reasons, I credit Jones. First, he had a straightfor-
ward and honest demeanor. Second, he was consistent on di-
rect and cross-examination, and consistent with his affidavit.
Lastly, as noted, Hill was not credible.
2. Voluntary recognition
On April 18, the Union advised Scheller that it had obtained:
[A] majority of Authorization Cards signed by employees de-
siring . . . them as their Collective Bargaining Agent at the . . .
Choctaw Mine.
(Jt. Exh. 2(c).) On May 24, an arbitrator affirmed their majori-
ty status. (Jt. Exh. 2(e).) Since June, the parties have been
negotiating a first contract for the unit. (Jt. Exh. 2(g),(l)-(m).)
D. Decreased Coal Demand
At some point, Alabama Power, a major coal purchaser, in-
formed Taft that it would reduce its future purchases.11 On
June 21, Taft amended Alabama Power’s coal purchasing
agreement to reflect their decreased demand, which resulted in
a 125,000-ton cut in coal production at the Choctaw Mine. (Jt.
Exhs. 1, 2(h).)
E. Layoffs at the Choctaw Mine
In June, Taft’s superintendent, David Peters, and Dickerson

9 Although the complaint set this exchange on March 22, he recalled
it as occurring in May. I find, however, that he was likely confused and
will use March 22. Specifically, it is improbable that this discussion,
which centered upon the day-shift miners’ union votes, occurred in
May, given that their votes were previously cast in April. (Jt. Exh.
2(c).)
10 He acknowledged wearing a union sticker on his hardhat during
the campaign, but, reported that Hill did not supervise his shift or likely
observe the sticker. Hill solely denied the conversation at issue, and
never contended that he was aware that Jones was a union supporter.
11 This reevaluation was prompted by the existence of cheaper fuel
alternatives (i.e., natural gas), which made coal usage less desirable.
decided that the Choctaw Mine’s unexpected cut in coal pro-
duction necessitated a layoff. (Jt. Exh. 1.) On June 25, Lynch
informed Union International Vice President Daryl Dewberry,
that:12
[T]he Taft/Choctaw mine of Walter Minerals, Inc. has been
challenged [by] . . . reduced demand for thermal coal . . . .
Alabama Power has reduced the amount of coal it will be pur-
chasing . . . this year by 125,000 tons. Alabama Power has
not requested any coal . . . for 2013.
As a result . . . , this week we will be announcing workforce
reductions at the mine. A total of 21 represented positions
will be eliminated, and [affected] employees . . . will be noti-
fied on . . . June 27. Walter Energy continues to have oppor-
tunities for experienced surface miners in Northeast British
Columbia, and we are planning to . . . discuss these openings
the week following notification.
. . . .
Please let me know if you have any questions or would like to
discuss these actions in greater detail.
(Jt. Exh. 2(i)); see also (R. Exh. 12.)
Dewberry testified that he first learned about the layoff on
June 25. He recalled telephoning Dickerson on June 26 and
requesting a layoff list. He indicated that, on June 27, Dicker-
son emailed him this list.13 (Jt. Exh. 2(j).) He contended that,
after reviewing the list, he disappointedly learned that junior
miners were retained over qualified senior miners.14 He stated
that this discovery prompted him to telephone Scheller and
complain, who, in turn, assigned the issue to Lynch. He added
that, when he notified Scheller about Hill’s plant closure threat
and interrogation, he replied that, “if that did take place, he’d
fire [him].”15 (Tr. 64.)
Dickerson mostly corroborated Dewberry’s account, but,
added that Dewberry never sought bargaining, after being told
about the layoff. He stated that the layoff could have been
delayed by a couple of days, if the Union had sought to bargain.
He admitted, however, that he never told the Union that he
would delay the layoff. He indicated that unit employees were
selected for layoff on the basis of their skills, seniority, safety
practices, and attendance.
Lynch initially denied being involved in the layoff, beyond
communicating with the Union. He added, however, that he
reviewed the June 25 layoff letter before dispatch. He stated
that he became involved in the layoff discussions, after Scheller
directed him to respond to Dewberry. Lynch contended that his
layoff dealings were excluded from evidentiary usage under the
Neutrality Agreement.16

12 The layoff reduced the unit by roughly 25 percent.
13 The email contained Walter Energy’s logo and website; in addi-
tion, Dickerson’s email address was associated with Walter Energy
(e.g., name@walterenergy.com).
14 The Union also filed a grievance over the layoff under another la-
bor agreement. (R. Exhs. 1, 13.)
15 Scheller was, without explanation, not called to rebut this testi-
mony.
16 This argument is unreasonable. First, the Respondents offered
voluminous evidence of Lynch’s layoff dealings as joint exhibits and
TAFT COAL SALES & ASSOCIATES, INC. 99
F. July 9 Meeting and Correspondence
On July 5, Dewberry sent Lynch a letter, which requested a
meeting about the layoffs. (Jt. Exhs. 1, 2(k), 9).) On July 6,
Lynch replied:
We would be happy to take you through the . . . methodology
used to select individuals for the workforce reduction. Does
Monday, July 9 . . . work for you? . . . . [T]he selections were
based on individual skills, with additional considerations giv-
en to seniority and age.
. . . .
If you have details on the claim that a mine supervisor told an
employee that signing a union card would be damaging to his
ongoing employment prospects, I would . . . like to have that
claim investigated. Walter Energy, Inc. and its subsidiaries
are committed to upholding the . . . Act.
(R. Exh. 6.)
Dewberry testified that, on July 9, he met with Lynch and
Dickerson, and protested his ongoing exclusion from the layoff
decision-making process. He added that every facet of the
layoff was already a fait accompli, by the time he was notified.
Lynch stated that he met with Dewberry on July 9 concern-
ing the layoff. He stated that the meeting was short; he recalled
describing Taft’s rationale. He added that the Union did not
make any proposals regarding the layoff.
G. Closure of Taft’s Reid School Mine
In March 2013, the Union and Taft held negotiations over
the closure of the Reid School Mine. (R. Exh. 11.) On March
29, 2013, the parties entered into a closure agreement, which
was signed by Dickerson. (Id.) This agreement provided, inter
alia, that Taft employees could be recalled to open positions at
Walter Minerals. (Id.) Following the closure of the Reid
School Mine, Taft’s mining equipment was shipped to a Walter
Minerals jobsite.17
III. ANALYSIS
A. Single-Employer Status
1. Applicable law
In Cimato Brothers, Inc., 352 NLRB 797, 798 (2008), the
Board held:
In determining whether two nominally separate em-
ploying entities constitute a single employer, the Board
examines four factors: (1) common ownership, (2) com-
mon management, (3) interrelation of operations, and (4)
common control of labor relations. No single factor is
controlling, and not all need be present. Rather, single-

during their case-in-chief. These actions, as a result, waived any rea-
sonable objection concerning the admission of Lynch’s layoff dealings.
Second, evidence regarding Lynch’s layoff dealings was not excluded
under the Neutrality Agreement, which solely banned usage of evi-
dence concerning, “its implementation . . . or the negotiations for the
labor agreements.” Lynch’s layoff dealings, however, were far afield
of this evidentiary ban.
17 There is no evidence of analogous transactions, or that this trans-
fer was not an “arms-length” deal.
employer status ultimately depends on all the circumstanc-
es. It is characterized by the absence of an arm’s-length
relationship among seemingly independent companies.
Bolivar-Tees, Inc., 349 NLRB 720, 720 (2007); Mercy
Hospital of Buffalo, 336 NLRB 1282, 1283–1284 (2001).
This inquiry assesses whether nominally “separate corporations
are not what they appear to be, [and] that in truth they are but
divisions or departments of a single enterprise.” NLRB v.
Deena Artware, Inc., 361 U.S. 398, 402 (1960). Centralized
control of labor relations is, generally, considered to be the
most important factor in this analysis. See, e.g., Geo. V. Hamil-
ton, Inc., 289 NLRB 1335, 1337 (1988). “[C]ommon owner-
ship, while significant, is not determinative in the absence of
centralized control over labor relations.” Mercy Hospital, su-
pra, 336 NLRB at 1284.
2. Common ownership
Walter Minerals and Taft are wholly owned subsidiaries of
Walter Energy. The common ownership factor, consequently,
favors single-employer status.
3. Common management
There is strong evidence of common management. Scheller
is the CEO and director of Walter Energy, and director of both
subsidiaries. Stewart is a senior vice president for Walter En-
ergy, and president of both subsidiaries. Kerley is a senior vice
president for Walter Energy, and director of both subsidiaries.
Hurley is the senior vice president, tax, and Griffin is the assis-
tant treasurer for all Respondents. Dopplett is the senior vice
president for Walter Energy, and the secretary for both subsidi-
aries. The common management factor, thus, heavily favors
single-employer status. See Pathology Institute, 320 NLRB
1050 (1996).
4. Interrelation of operations
There is mixed evidence of interrelated operations, which
neither strongly supplements, nor greatly detracts from, single-
employer status. Specifically, although Taft and Walter Energy
share common addresses, each maintains separate bank ac-
counts and financial records, and, with the exception of labor
relations, as will be discussed below, are essentially run inde-
pendently. While Taft shipped its equipment to Walter Miner-
als after the Reid School Mine closed, there is no evidence of
similar transactions amongst the Respondents, or that this trans-
fer was not an “arms-length” deal. Moreover, even though the
Respondents share some common insurance benefits, there is
no evidence that any entity pays less than their pro rata share
for such benefits, or that such arrangements extend beyond
insurance. Each entity has unique tax identification numbers,
independently handles payroll taxes, and employs distinct com-
pensation systems. Respondents utilize Walter Energy’s email
system and website and display its logo on certain communica-
tions. Respondents make independent hiring decisions, and,
subject to the limited exceptions described below, there is no
evidence that employees transfer between Respondents.
5. Common control of labor relations
There is significant evidence that Walter Energy and Walter
Minerals exercise common control over Taft’s labor relations.
100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Scheller, Lynch, and Dickerson all exercise such control.
Scheller, Walter Energy’s top official, heard Dewberry’s
complaints about Taft’s layoff, a significant labor relations
issue, and assigned this matter to Lynch. He also entertained
Dewberry’s complaints about a Taft supervisor’s potential labor
law violations, and similarly assigned this task to Lynch. He
also pledged that, if these allegations were true, he would per-
sonally fire the offender. These actions demonstrate a substan-
tial wielding of labor relations power; it is highly significant
that Scheller never responded to Dewberry that these matters
were outside of his jurisdiction because Taft was an independ-
ent entity.
Lynch, Walter Energy’s top human resources official, be-
came heavily involved in Taft’s labor relations issues, when he
notified the Union about Taft’s layoff, met with the Union
about this matter, and scrutinized the layoff list before its re-
lease. He investigated the interrogation and plant closure threat
allegations involving a Taft supervisor. Finally, his June 25
layoff letter offered affected Taft employees jobs at Walter
Energy’s Canadian mining operations. These actions similarly
demonstrate a significant exercise of labor relations power over
Taft’s affairs.
Dickerson, Walter Minerals’ top human resources official,
handles labor relations issues for Taft and Walter Minerals. He
identified who would be laid off, and communicated with the
Union about this matter. He negotiated the closure agreement
at Taft’s Reid School Mine. There is also evidence that his
labor relations activities are monitored by Lynch, who reviewed
the Taft layoff list, and conducts his performance reviews.
6. Conclusion18
Respondents are a single employer. They are commonly
owned and managed. Although there is only limited evidence
of interrelated operations, there is strong evidence that Walter
Energy and Walter Minerals commonly control Taft’s labor
relations. It is also evident that Walter Energy, via Lynch’s
supervision of Dickerson, exercises common control over Wal-
ter Minerals’ labor relations. This centralized control, which is
the primary factor in the analysis, strongly favors a single-
employer finding regarding all three entities.
B. Unilateral Layoff19
Respondents violated Section 8(a)(5), when they unilaterally
laid off unit employees at Taft, without notice or bargaining.
An economic layoff decision is a mandatory bargaining topic.
McClain E-Z Pack, Inc., 342 NLRB 337 (2004); Toma Metals,
Inc., 342 NLRB 787, 787 fn. 1 (2004). This remains true, even
where the entity previously exercised unlimited discretion be-
fore unionization. See Adair Standish Corp., 292 NLRB 890
fn. 1 (1989), enfd. in relevant part 912 F.2d 854 (6th Cir. 1990).
This duty additionally requires bargaining over the layoff’s

18 In making this finding, no reliance was placed on the Neutrality
Agreement, which precluded usage of “[its terms,] its implementation,
its execution, the discussions leading up to its execution, or the negotia-
tions for the labor agreements” in finding single employer status. See
(Jt. Exh. 2(b).)
19 These allegations are listed under pars. 12 and 14 of the com-
plaint.
effects. Toma Metals, Inc., supra.
The Board has held that “when an employer notifies a union
of proposed changes in terms and conditions of employment, it
is incumbent upon the union to act with due diligence in re-
questing bargaining.” Jim Walter Resources, 289 NLRB 1441,
1442 (1988). To establish waiver of a statutory right to bargain
over mandatory subjects, there must be a clear and unmistaka-
ble relinquishment. Metropolitan Edison Co. v. NLRB, 460
U.S. 693, 702 (1983). A waiver can be gleaned from: express
contract language; or conduct (i.e., past practice, bargaining
history, action or inaction). American Diamond Tool, 306
NLRB 570 (1992). A party asserting waiver has the burden of
establishing its existence. Pertec Computer, 284 NLRB 810
(1987).
Good-faith bargaining requires timely notice and a meaning-
ful opportunity to bargain. No impasse is, accordingly, possi-
ble when an employer presents a union with a “fait accompli”
regarding a mandatory bargaining topic. Dorsey Trailers, Inc.,
327 NLRB 835, 858 (1999), enfd. granted in part and denied in
part 233 F.3d 831 (4th Cir. 2000). The Board has further held
that:
To be timely, the notice must be given sufficiently in advance
of the actual implementation of the change to allow a reason-
able opportunity to bargain. However, if the notice is too short
a time before implementation or because the employer has no
intention of changing its mind, then the notice is nothing more
than a fait accompli.
Ciba-Geigy Pharmaceutical Division, 264 NLRB 1013, 1017
(1982), enfd. 722 F.2d 1120 (3d Cir. 1983); see also Toma
Metals, Inc., supra, 342 NLRB at 787 fn. 1 (announcement of
layoffs on implementation date is unlawful).
In the instant case, Lynch advised the Union, on June 25,
that Taft was eliminating 21 unit positions on June 27. When
Dewberry asked Dickerson to supply him with a layoff list on
June 26, Dickerson declined and advised him that he would
release the list, after affected employees were first advised on
June 27. Under these circumstances, the Union was presented
with a fait accompli, which precluded meaningful pre-
implementation bargaining. Respondents unilaterally decided
to conduct the layoff, identified who would be laid off, and
determined what transfer opportunities would be allocated to
affected miners, without offering the Union any opportunity to
bargain over these matters. Simply put, the Union was not even
told who would be laid off, until after the layoff was enacted.
Such unilateral action was unlawful.
C. Threat and Interrogation Allegations20
1. Threat
Hill violated Section 8(a)(1), when he advised Plunkett that,
“they’ll close the mine down,” if employees unionized. An
employer violates Section 8(a)(1) when it engages in conduct
that might reasonably tend to interfere with employees’ Section
7 rights. American Freightways Co., 124 NLRB 146 (1959).
This includes plant closure threats in retaliation for engaging in
union activity. Mid-South Drywall Co., 339 NLRB 480 (2003).

20 These allegations are listed under pars. 8 and 13 of the complaint.
TAFT COAL SALES & ASSOCIATES, INC. 101
2. Interrogation21
Hill unlawfully interrogated Jones, when he asked him
whether he voted for the Union. In Westwood Healthcare Cen-
ter, 330 NLRB 935 (2000), the Board held that the following
factors determine whether an interrogation is unlawful:
(1) The background, i.e. is there a history of employer
hostility and discrimination?
(2) The nature of the information sought, e.g., did the
interrogator appear to be seeking information on which to
base taking action against individual employees?
(3) The identity of the questioner, i.e. how high was he
in the company hierarchy?
(4) Place and method of interrogation, e.g. was em-
ployee called from work to the boss’s office? Was there an
atmosphere of unnatural formality?
(5) Truthfulness of the reply.
Id. at 939. In applying these factors, however, the Board con-
cluded that:
In the final analysis, our task is to determine whether under all
the circumstances the questioning at issue would reasonably
tend to coerce the employee at whom it is directed so that he
or she would feel restrained from exercising rights protected
by Section 7 of the Act.
Id. at 940.
Hill, a supervisor, tied his query about whether Jones voted
for the Union to Jones’ question about whether he might be
awarded a coveted day-shift position. Under these circum-
stances, Hill’s interrogation left Jones with the very reasonable
and strong impression that his union support, if any, would
deeply prejudice his ability to obtain the day-shift position.
This interrogation was, therefore, unlawful.
CONCLUSIONS OF LAW
1. Walter Energy, Walter Minerals, and Taft are a single em-
ployer, and are jointly and severally liable for the violations of
the Act found here.
2. Walter Energy, Walter Minerals, and Taft are individually,
and as a single employer, employers engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
3. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
4. The Union is, and, at all material times, was the exclusive
bargaining representative for the following appropriate unit:
All hourly paid non-supervisory employees employed by the
Respondents at the Choctaw Mine, excluding all coal inspec-
tors, weigh bosses, watchmen, clerks, technical employees,
engineering employees, and all guards and supervisors as de-
fined by the Act.
5. Respondents violated Section 8(a)(1) of the Act by:
a. Interrogating employees about their Union or other pro-
tected concerted activities.

21 Respondents’ assertion that this allegation is precluded under Sec.
10(b) is meritless. The interrogation occurred on March 22, which is
less than 6 months before the September 5 filing of the charge.
b. Threatening to close the Choctaw Mine, if employees
selected the Union as their collective-bargaining representa-
tive.
6. Respondents violated Section 8(a)(1) and (5) of the Act by
failing to bargain in good faith with the Union concerning the
June 27 layoff at the Choctaw Mine.
7. The unfair labor practices set forth above affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY22
Having found that Respondents committed unfair labor prac-
tices, they must be ordered to cease and desist and to take cer-
tain affirmative action designed to effectuate the policies of the
Act.
Since Respondents violated Section 8(a)(5) by unilaterally
laying off 21 unit employees at the Choctaw Mine on June 27,
they must offer those employees immediate and full reinstate-
ment to their former jobs, or if those jobs no longer exist, to
substantially equivalent positions, without prejudice to their
seniority or other rights. Respondents shall also make whole
these employees for any loss of earnings and other benefits they
may have suffered by reason of their unilateral action. Backpay
shall be computed on a quarterly basis from the date of their
layoffs to the date of their proper offers of reinstatement, less
any net interim earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily under Ken-
tucky River Medical Center, 356 NLRB 6 (2010). Respondents
shall also file a report with the Social Security Administration,
which allocates backpay to the appropriate calendar quarters.
Latino Express, Inc., 359 NLRB 518 (2012). They shall also
compensate affected employees for any adverse tax conse-
quences associated with receiving one or more lump-sum back-
pay awards covering periods longer than 1 year. Id.
In addition to the traditional physical posting of paper notic-
es, Respondents will distribute remedial notices electronically
via email, intranet, internet, or other appropriate electronic
means to their employees, if they customarily communicate
with workers in this manner. See J Picini Flooring, 356 NLRB
11 (2010).
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended23

22 Counsel for the Acting General Counsel’s request for a remedy
under Transmarine Navigation Corp., 170 NLRB 389 (1968), in his
posthearing brief is denied. A Transmarine remedy would be warrant-
ed, for example, if Taft announced on June 27 that it was closing the
Choctaw Mine and unilaterally laying off the entire unit, which was not
done. See, e.g., Piggly Wiggly Midwest, LLC, 357 NLRB 2344 (2012).
In the instant case, however, the June 27 layoff reduced the unit by 25
percent and Taft continued to operate the Choctaw Mine. As a result,
the Board’s traditional make-whole remedy is appropriate. See Toma
Metals, supra.
23 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The Respondents, Taft Coal Sales & Associates, Inc. and
Walter Energy, Inc. and Walter Minerals, Inc. Birmingham,
Alabama, a single employer enterprise, their officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees that mining operations will close,
if they engage in union or other protected concerted activities.
(b) Interrogating employees about their union or other pro-
tected activities.
(c) Laying off employees, without notifying the Union, or af-
fording it an opportunity to negotiate over the decision or the
effects upon this appropriate bargaining unit:
All hourly paid nonsupervisory employees employed by Re-
spondents at the Choctaw Mine in Birmingham, Alabama,
excluding all coal inspectors, weigh bosses, watchmen, clerks,
technical employees, engineering employees, and all guards
and supervisors as defined by the Act.
(d) In any like or related manner interfering with, restraining,
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 effec-
tuate the policies of the Act.
(a) On request, bargain collectively in good faith with the
Union as the exclusive representative of employees in the
above-described unit concerning its decision to lay off employ-
ees at the Choctaw Mine, as well as the effects of this decision,
embody any resulting understanding in a signed agreement and,
thereafter, comply with the terms of such agreement.
(b) Within 14 days from the date of the Board’s order, offer
the 21 employees, who were laid off at the Choctaw Mine on
June 27, 2012, full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
(c) Make the 21 affected employees whole for any loss of
earnings and other benefits suffered as a result of the unilateral
action against them, in the manner set forth in the remedy sec-
tion of this decision.
(d) File a report with the Social Security Administration al-
locating backpay to the appropriate calendar quarters for the 21
affected employees.
(e) Compensate the 21 affected employees for the adverse
tax consequences, if any, associated with receiving one or more
lump-sum backpay awards covering periods longer than 1 year.
(f) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the backpay amounts
due under the terms of this Order.
(g) Within 14 days after service by the Region, physically
post at each of its Walter Energy, Walter Minerals, and Taft
facilities in Birmingham, Alabama, and electronically send and
post via email, intranet, internet, or other electronic means to
unit employees, who were employed at its Choctaw Mine fa-
cility in Birmingham at any time since March 22, 2012, copies
of the attached notice marked “Appendix.”24 Copies of the
notice, on forms provided by the Regional Director for Region
10, after being signed by Respondents’ authorized representa-
tive, shall be physically posted by Respondents and maintained
for 60 consecutive days in conspicuous places including all
places where Notices to employees are customarily posted.
Reasonable steps shall be taken by Respondents to ensure that
the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, any of the Respondents has gone out of business or
closed the facilities involved in these proceedings, Respondents
shall duplicate and mail, at their own expense, a copy of the
Notice to all current employees and former employees em-
ployed by it at the Choctaw Mine facility at any time since
March 22, 2012.
(h) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that it
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
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT threaten you that our mining operations will
close, if you support the United Mine Workers of America,
District 20 (the Union), or any other union.
WE WILL NOT interrogate you about your union activities.
WE WILL NOT fail or refuse to bargain in good faith with the
Union, as the exclusive collective-bargaining representative of
employees in the bargaining unit described below, by laying off
employees at the Choctaw Mine without prior notice to the
Union or affording it an opportunity to bargain concerning the
layoff and its effects on unit employees.

24 If this Order is enforced by a judgment of a United States Court of
Appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
TAFT COAL SALES & ASSOCIATES, INC. 103
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights set forth
above.
WE WILL, on request, bargain collectively in good faith with
the Union as the exclusive representative of employees in the
following appropriate unit concerning our decision, and the
effects of our decision, to lay off employees, and, thereafter,
comply with the terms of such agreement:
All hourly paid nonsupervisory employees employed at Taft’s
Choctaw Mine in Birmingham, Alabama, excluding all coal
inspectors, weigh bosses, watchmen, clerks, technical em-
ployees, engineering employees, and all guards and supervi-
sors as defined by the Act.
WE WILL within 14 days from the date of the Board’s order,
offer the 21 employees, who were laid off at the Choctaw Mine
on June 27, 2012, immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make the 21 affected employees whole for any loss
of earnings and other benefits suffered as a result of our unlaw-
ful action against them, with interest.
WE WILL file a report with the Social Security Administration
allocating backpay to the appropriate calendar quarters for the
21 affected employees.
WE WILL compensate the 21 affected employees for the ad-
verse tax consequences, if any, associated with receiving one or
more lump-sum backpay awards covering periods longer than 1
year.
TAFT COAL SALES & ASSOCIATES, INC. AND WALTER
ENERGY, INC. AND WALTER MINERALS, INC.