Beech Branch Coal Company

National Labor Relations Board - Board Decisions

Mar 12, 1982

260 N.L.R.B. 907 (N.L.R.B. 1982)

IFEECH BRANCH COAI COMPANY
Beech Branch Coal Company and Donald Pittman.
Case 9-CA-15425
March 12, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DIl WATI-R AND
MIMNIBERRS FANNING AND) HUNTER
On September 29, 1981, Administrative Law
Judge J. Lee Benice issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed limited exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Laxw Judge and
to adopt his recommended Order, as modified
herein.
We find merit in the General Counsel's limited
exceptions to the Administrative Law Judge's fail-
ure to order that Respondent offer discriminatees
Larry Caudill, Harrad Clevins, Robert Davis,
Curtis Dean, Sr.. Cecil Lamb, Henry Quesenberry,
and Ernest Vickers 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
and privileges previously enjoyed. While the
record discloses, as the Administrative Law Judge
found, that Respondent presently is not engaged in
the business involved herein, there is always the
possibility that Respondent may decide to resume
such operations. Accordingly. we shall order the
conditional reinstatement of these employees pre-
mised on the resumption of the same or substantial-
ly similar business operations. Carpel City Mechani-
cal Company, Inc.. et al., 244 NLRB 1031 (1979).
Further, in his recommended Order, the Admin-
istrative Law Judge inadvertently failed to include
any injunctive cease-and-desist language. We have
considered this case in light of the standards set
forth in Ilickmnott Foods. Inc., 242 NLRB 1357
(1979), and have concluded that a narrow remedial
order is appropriate here. Accordingly, we shall
modify the recommended Order so as to provide
for the narrow injunctive language.
i' n the .Ihbc, I f etvIploI n,,i k I c .t;il prr /lrtrl i, I Ad ,[lllll rr.,lll\tr
I .au Judge.' itnrldilng, of 8(ati ) ) x dIl l hid }1u rcioni cicin d illllll-;tl
of the comin plai llc a lllig.i o. irlc t ruinIg I[lrlliil'% d.ICh large ih i tlilig o .,
us do ilot ilCC-,ailril! aIlrll'c \\%itf1 fl dlll --li ,,ol ) ' A i t' grotlllllS "11'""
uhliclh lthe iBoard might rel, Ir lironlg f . tMl[%ri l-ri 'i oi. d islg xii1lil.d
the Act
260 NLRB No. 122
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Beech Branch Coal Company, Lewellyn, Ken-
tucky, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
1. Substitute the following for paragraph 1:
"1. Cease and desist from:
"(a) Discharging or otherwise discriminating
against employees in regard to their hire or tenure
of employment or any term or conditions of em-
ployment because they engage in concerted activi-
ties protected by Section 7 of the National Labor
Relations Act.
"(b) In the like or related manner interfering
with, restraining, or coercing its employees in the
exercise of the rights guaranteed them by Section 7
of the Act."
2. Insert the following as paragraph 2(a) and re-
letter succeeding paragraphs accordingly:
"(a) In any event that Respondent should resume
the same or substantially similar business operations
as engaged in by Beech Branch Coal Company, at
Lewellyn, Kentucky, it shall offer Larry Caudill,
Harrad Clevins, Robert Davis, Curtis Dean, Sr.,
Cecil Lamb, Henry Quesenberry, and Ernest
Vickers immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions without prejudice to
their seniority or other rights and privileges previ-
ously enjoyed."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NoliciE To EMPItOEiIS-.S
Pos lit) BY ORDI)IR O rTHIF
NATIONAI. LABOR RI- ATIONS BOARI)
An Agency of the United States Government
WE Wll.l NOt discharge or otherwise dis-
criminate against employees because they have
engaged in concerted activities which are pro-
tected under the National Labor Relations
Act. including the right to protest collectively
and discuss changes in working conditions.
hours of service, and rates of pay.
Wl w.ii I NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ces in the exercise of the rights guaranteed
them by Section 7 of the Act.
'4)07
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the event that we should resume the same
or substantially similar business operations as
engaged in by Beech Branch Coal Company at
Lewellyn, Kentucky, WE WILL offer Harry
Caudill, Harrad Clevins, Robert Davis, Curtis
Dean, Sr., Cecil Lamb, Henry Quesenberry,
and Ernest Vickers immediate and full rein-
statement to their former jobs or, if those jobs
no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or
other rights and privileges previously enjoyed.
WE WILL make Harry Quesenberry, Cecil
Lamb, Curtis Dean, Sr., Harrad Clevins, Larry
Caudill, Robert Davis, and Ernest Vickers
whole for any loss of earnings they may have
suffered as a result of our discrimination
against them, plus interest.
BEECH BRANCH COAL COMPANY
DECISION
STATEMENT OF THE CASE
J. LEE BENICE, Administrative Law Judge: The
charge in this case was filed on June 9, 1980, by Donald
Pittman, an individual. On July 22, 1980, the complaint
issued alleging that Respondent had discharged Pittman
and eight other employees, in violation of Section 8(a)(1)
of the National Labor Relations Act, as amended, be-
cause they had engaged in protected concerted activity.
Respondent, in its answer, denies that it has committed
any unfair labor practices.
The case presents these issues: Whether the employees
were actually discharged by Respondent; and, if so,
whether Pittman, although a supervisor, is nevertheless
entitled to protection under the Act.
A hearing was held before me in Harlan, Kentucky,
on March 12, 1981. Briefs have been filed by the General
Counsel and Respondent.
Upon the entire record in this case, including my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS AND CONCL.USIONS
1. THE BUSINESS OF RESPONDENT
Respondent is no longer in business, but at the time of
the incident alleged in the complaint it was engaged in
the mining and sale of coal from facilities in Kentucky.
During a representative 1-year period, it purchased and
received goods and materials valued in excess of $50,000
shipped directly to its Kentucky facilities from points
outside Kentucky. I find that, at the time of the incident
alleged in the complaint, Respondent was an employer
engaged in commerce within the meaning of the Act,
and that it will effectuate the policies of the Act to assert
jurisdiction herein.
11. THE Al.LEGED UNFAIR LABOR PRACTICES
A. The Facts
In May 1980, Respondent was operating a coal mine at
Evarts, Kentucky, which had not been profitable. Re-
spondent's testimony attributes the unprofitability mainly
to the inefficiency of the first-shift foreman, Donald Pitt-
man, and his crew. Pittman blames the physical problems
encountered in the mine. Whatever the cause, Respond-
ent decided to improve profitability by exacting longer
hours from the employees at no increase in compensa-
tion.
On Friday, May 9, Respondent announced that, effec-
tive Monday, May 12, the working hours on the first
shift would be changed. Instead of working from 6 a.m.
to 2 p.m., with a paid lunch break, the men, for the same
pay, would work from 6:30 a.m., to 3 p.m., with a half-
hour unpaid lunch period. As the employees interpreted
this, it meant working an extra half-hour without pay.
On May 12, just before the men entered the mine, Bill
Shuler, the mine superintendent, told them again about
the new hours and stated that anyone who did not like
could "hit the road"; i.e., could resign. One did quit.
Walter David Gross left in response to these remarks,
and thus did not enter the mine that day.
The remaining employees discussed the new situation
while they were on the way into the mine and whenever
they gathered together in the mine. At lunch, at 10:30
a.m., they all ate together, discussed the matter, and de-
cided to leave the mine at once to discuss the problem
with Charles Eldridge, the vice president of the Compa-
ny. Pittman had said that if they decided to leave, he
would go out with them. He did so and, when they met
with Eldrige and Shuler shortly afterward, Pittman
became the spokesman for the employees.
The discussion began out of doors and the three men
soon adjourned to the office. Nothing was resolved.
Shuler made it plain that he did not feel that he and Pitt-
man should continue to work at the same mine. Eldridge
was unable to decide what to do. He said that he would
consult with the other family members of his who were
involved with him in various coal mining ventures, and
would give his answer to Pittman at 3 p.m. It was very
clearly understood that Pittman would then relay word
to his crew.
Eldridge did not call that afternoon, so Pittman called
Eldridge at home at at 8 p.m. According to Pittman, El-
dridge stated that he would replace the men, including
Pittman, with a new crew. According to Eldridge, he
merely stated that Pittman was not leaving him much
choice, whereupon Pittman, leaping to the conclusion
that he and his crew had been fired, said, "Well, if that's
the way you feel about it," and slammed the phone
down.
Pittman then told the crew members that they were
being replaced by another crew and should meet him at
the unemployment office the next morning.
I credit Pittman's testimony. He was more forthcom-
ing than Eldridge and was less inconsistent on critical
matters, and his story accords well with Eldridge's ad-
mitted frustration over what he considered to be an inef-
908
BEECH BRANCH COAl COMPANY
ficient crew that was causing him to lose money at the
mine. But even under Eldridge's version of the telephone
conversation, Eldridge, knowing that Pittman, reacting
in the apparent belief that they had all been fired, would
pass the word to his men, was content to leave Pittman
apparently believing that they had been fired, and was
content to send no different word to Pittman or to any
of the others. He merely watched the mine entrance
each morning for the rest of the week to see if anyone
came to work. Each day, as no one turned up, and as it
became increasingly probable that the men had been led
to believe that they had all been fired, he did nothing to
alter this belief.
On Monday, May 19, the beginnings of a replacement
crew took over the shift.' Significantly, Eldridge did not
contest the unemployment compensation claims of any of
the men, except for Pittman. Gross, who had walked off
the job on May 12, eventually returned, and was given a
job at another of Eldridge's mines.
B. Concluding Findings
Respondent contends that Pittman, by terminating the
telephone conversation with Eldridge and refusing to
discuss the situation further, had voluntarily quit his em-
ployment and from that point forward was no longer a
supervisor of the Company'. Thus, any actions that he
may have taken to seek out employees and notify them
that they were laid off or fired were done entirely as an
individual, and not as agent of the Company. However, I
have found that Eldridge knowingly passed the word to
the men, through Pittman, that they had been fired; and
even under Eldridge's own account, his act was not
different, in any significant way, from a face-to-face
firing or from the use of a fully tenture supervisor to an-
nounce formal discharges. In his own version of the
facts, he was content to let Pittman be the instrumentali-
ty by which the employees were told that they had been
fired, and was content to do nothing thereafter to alter
the impression that they received.
I conclude that the employees were fired, and that the
obvious reason for the firing was their having engaged in
the protected concerted activity of jointly protesting a
change in the their work hours and in their effective
hourly rate of compensation. Such action by the seven
nonsupervisory employees2 was clearly protected con-
certed activity, and their discharges clearly violated
Section 8(a)(l) by interfering with their exercise of these
Section 7 rights. On the other hand, I conclude that the
discharge of Supervisor Donald Pittman did not violate
the Act.
The Board has found that an employer violates
Section 8(a)(l) when it discharges a supervisor for refus-
ing to commit unfair labor practices3 or for protecting
'At this point. replacements were put to work as quickly as they could
be hired
I Employer Walter David Gross is not included in this list because he
voluntarily resigned before the violation of Sec 8(a)(l) occurred Con-
trary to the assertion of Ihe General Counsel. I conclude thal the doc-
trine of lleluiu (Cushion Co., Inc. 221 NLRH 999 (1975). does not pro-
tect an employee, acting alone, who soluntarils terminates his emplos-
ment rather than accept a change in working hours
' See. e g . uami (roca Cola Bottling Company dhu i al' ce4s' ((oca
Bottling Company, 140 Nt RB 1359 (1963). enforcement denied on oether
employees from such practices;' for testifying before the
Board or otherwise participating in a Board proceeding; '
or where the discharge of the supervisor was used as a
device for reaching and punishing employees who would
be protected by law from more direct methods.6 The
Board has even, on occasion, ordered reinstatement of
supervisors who were fired as examples to the employees
in order to discourage them from exercising their Section
7 rights.' However, the Board has found that the Act
does not protect an supervisor discharged merely for
siding with the employees in their grievance against the
company, whether the dispute is over union activity' or
is purely, economic.9
I find that the evidence does not support the General
Counsel's contention that Pittman's discharge was used
to make a point to any remaining employees and thereby
to eliminate dissension. I find that it was far more likely
that it was Pittman's siding with the employees against
management over the new work hours imposed by man-
agement which led to his discharge.
Ill. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that Respondent be
ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act. Because Respondent is not presently actively
engaged in business, it will not be required to post a
notice of the action taken here. However, some of its
former employees may now be working for an affiliated
Eldridge enterprise, or may seek employment there in
the future; or Respondent Company might resume oper-
ations. Therefore, I shall recommend that Respondent be
required to provide signed copies of a notice, and the
names and addresses of former employees, so that notices
can be mailed to all those who where employed by Re-
spondent at the time of the discharges.
As I have found that Respondent unlawfully dis-
charged seven nonsupervisory employees, but has since
gone out of business and is therefore unable to offer
them reinstatement, I shall recommend that Respondent
be ordered to make the employees whole for any loss of
earnings they may have suffered as a result of their dis-
charges, by payment to them of the amount they normal-
ly would have earned from the date of their discharge
until the date Respondent went out of business, less net
earnings, to which shall be added interest, to be comput-
grounds 341 F.2d 524 (5th Cir 1965), Russell Stover Candies. Inc.. 223
NLRB 592 (1976), enfd 551 F 2d 204 (8th Cir 1977)
' See. e.g., Buddies Super .1arkets, 223 NLRB 950 (19761, enforcement
denied 550 F.2d 39 (5th Cir 1977): V4DA of Oklahoma, Inc.. 216 NLRB
750 (1975); Donelson Packing Co.. Inc.. and Riegel Provision Company. 220
NLtRB 1043 (1975)
' See, e.g, Oil City Bras, I Works. 147 NLRB 627 (1964), enfd. 357 F2d
466 (5th Cir 1966); Better W.onkey Grip Company, 115 NLRB 1170
(1956), enfd 243 F 2d R36 (5th Cir 195
7
), cert denied 355 U S 864
Poneer Drilling Co Inc.. 162 NLRB 918 (1967). enfd in pertinent
part 391 F 2d 961 (10th Cir 1968)
? See. eg., Sheraton Puerto, Rico Corp d/b/a Puerto Rico Sheraton
toteml 248 NLRB 8607 (1980)
'Sibhlio' Golden (;rill. Inc, 227 NLRB 1688 (1977)
9 Long Beach Youth C'tnter Inc, a/ 'ka Long Beach }outh Home J(or-
noerli' Irailback~, Inc . 23) NLRH 648 (1977)
909
I)( II()ONS ()F1 NA\ I IO()NAI I ,xlB)R RIll A I IONS B()ARI)
ed in the manncr prescribed ii 1 I :t W 'oolworthi C'oenpu-
nyv. )40 NLRB1 289 (1950), anld I lortida Stee Corporalion,
231 NL RB 651 (1977).
CONI tJIISIONS 01 I1.x
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2). (6), and (7) of the
Act.
2. By discharging the scven nonsupervisory employeecs
namcd in the Order, ijro, for engaging in protected con-
certed activity, Respondent has engaged in unfair labor
practices affecting conimerce within the meaiing of
Sections 8(a)( 1) and 2(6) and (7) of the Act.
3. By discharging a supervisory employee, Donald
Pittman, Respondent did not engage in unfair labor prac-
tices within the meaning of Section 8(a)(l) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER "'
The Respondent, Beech Branch Coal Company,
Lewellyn, Kentucky, its agents, successors, and assigns.
shall:
1. Cease and desist from discharging or otherwise dis-
criminating against employees in regard to their hire or
"' rl Ihe evcn Inio cxctptr in arc filedl ;i pro sided h5 Sh c 102 4tt f
tile Rules land Regulatiron 1' oIhc. Naiirval I hbor Relatiols Itoalrd. Ihe
findings. conclusionrl iland reconllircridc ()rrder herein slall.l as pronided
ill Sec t102 4 of the Rules lnld Rcgutlaiion,. hbe ildoptid by thl ihclrd andi
bcoir le Its ilildrigs, coiiclusii llo' aild ()ltlti d i. I .ll a l robjc lt l, tihletIi
shill hbe dctrnied Li'. it IId f11 ill u 1pI se's,
tenure of employment or any term or condition of em-
ployment because they engage in concerted activities
protected by Section 7 of the National Labor Relations
Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Make the following employees whole for any loss
of earnings they may have suffered as a result of their
discharges, in the manner set forth in the section of this
Decision entitled "The Remedy": Henry Quesenberry,
Cecil Lamb, Curtis Dean, Sr., Harrad Clevins, Larry
Caudill, Robert Davis, and Ernest Vickers.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords relevant and necessary to a determination of com-
pliance with paragraph (a), above.
(c) Furnish to the Regional Director for Region 9 the
names and most recent addresses in its possession of all
employees employed by Respondent on May 12, 1980,
and those employed currently, if any, and sign a suffi-
cient number of copies of the attached notice marked
"Appendix"" for mailing by the Regional Director to
each employee.
(d) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply with the is Order.
" In the e\xcnl tlat that is Order is enforced by a Judgment of a United
Starlcs Court if Appeals, the \ ords in the notice reading "Posted by
()ier ,t tiel Natitonal l abor Relallions t oaird hilall read "'osted P'ursu
tint tO .i JtlUdgtlieul if Ilc Untited Slales Court of Appeals Enforcing an
()rder 1of tie N , on i Iabor Rc Iltiotn Il Fa ard"
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