Gamble Coals, Inc.

National Labor Relations Board - Board Decisions

Apr 8, 1980

248 N.L.R.B. 1053 (N.L.R.B. 1980)

GAMBLE COALS, INC. 1053
Gamble Coals, Inc. and United Mine Workers of
America. Case 6-CA-11063
April 8, 1980
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On August 25, 1978, the National Labor Rela-
tions Board issued its Decision and Order in this
proceeding.' The Board found that Respondent
violated Section 8(a)(5) and (1) of the National
Labor Relations Act, as amended, by refusing to
bargain with the Union, which had been certified
by the Board on December 30, 1977, in Case 6-
RC-7800. Thereafter, Respondent filed with the
United States Court of Appeals for the Fourth Cir-
cuit a petition for review of the Board's Order.
The Board, by its answer, sought enforcement of
its Order. On June 29, 1979, the court entered an
unpublished order remanding the case to the Board
for a hearing with respect to Respondent's objec-
tions alleging misrepresentations and threats of vio-
lence by the Union. On September 7, 1979, the
Board issued an order reopening the record of this
proceeding and ordering that a hearing be held
before an administrative law judge for the purpose
of taking evidence in accordance with the remand
of the court.
A hearing was held on October 30, 1979, in
Elkins, West Virginia, before Administrative Law
Judge James L. Rose. On December 31, 1979, he
issued the attached Supplemental Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the Charging
Party filed an answering 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 Supplemental Decision in light of the ex-
ceptions and briefs and has decided to affirm the
rulings, findings, and conclusions of the Adminis-
trative Law Judge.
We agree with the Administrative Law Judge's
conclusion that employees were not coerced into
signing authorization cards at the March 11 organi-
zational meeting. In particular, we find that the
evidence fails to establish that employees signed
cards at the meeting in response to an alleged state-
ment that a rollcall be conducted to determine
which employees had not returned cards. The evi-
' 237 NLRB 932.
248 NLRB No. 136
dence shows that Union Organizer Nikses asked
for a showing of hands at the outset of the meeting
to measure employee interest in the Union. This re-
quest occurred before authorization cards were dis-
tributed and was prompted by an earlier unsuccess-
ful organizing campaign at Respondent's facility.
As for the alleged rollcall statement, employee
Currence testified that approximately 12 employees
signed cards at the meeting after someone suggest-
ed that a rollcall be taken. The Administrative Law
Judge discredited Currence's testimony on this
matter, however, and also found Currence to be a
supervisor. Only one other employee remembered
a rollcall announcement, but he did not recall any
employees signing cards as a result of threats or
coercion. We therefore agree with the Administra-
tive Law Judge that the evidence does not demon-
strate that the Union coercively obtained authoriza-
tion cards at the March 11 meeting by threatening
to identify those employees who had not yet signed
cards.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts the recommendations of the
Administrative Law Judge and hereby reaffirms its
Order issued in this proceeding on August 25, 1978
(237 NLRB 932).
SUPPLEMENTAL DECISION
JAMES L. ROSE, Administrative Law Judge: This
matter was heard before me at Elkins, West Virginia, on
October 30, 1979, pursuant to the National Labor Rela-
tions Board's remand following remand of the case by
the United States Court of Appeals for the Fourth Cir-
cuit dated June 29, 1979.
Procedural History
On March 21, 1977,1 United Mine Workers of Amer-
ica (herein the Charging Party or Union) filed a repre-
sentation petition for a unit of employees of Gamble
Coals, Inc. (herein the Employer or Respondent). Fol-
lowing a hearing, a Decision and Direction of Election
was issued by the Regional Director for Region 6 and an
election was held on May 31. The tally of ballots shows
that, of approximately 80 eligible votes, 40 votes were
cast for and 27 against the Union. There were four chal-
lenged ballots.
The Employer filed timely objections to conduct af-
fecting the results of the election. The first objection al-
leged that during the course of the organizational cam-
paign employees were promised a benefit-waiving initi-
ation fees. The second objection concerned the Employ-
er's contention that a letter sent to employees by the
Union's International president, Arnold Miller, dated
May 23 contained substantial and material misrepresenta-
All dates are in 1977, unless otherwise indicated.
Gamble Coals, Inc. and United Mine Workers of
GAMBLE COALS INC.
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions concerning the scope of health and welfare and
pension benefits as an inducement to employees to vote
in favor of the Union. In its third objection, the Employ-
er contends that an atmosphere of fear and violence was
created at the initial organizational meeting which affect-
ed the employees' freedom of choice in the election.
The objection involving the Miller letter was over-
ruled on the basis of the Board's then existing doctrine
concerning misrepresentations as set forth in Shopping
Kart Food Market, Inc., 228 NLRB 1311 (1977).
In support of its objection alleging that an atmosphere
of fear and violence was created, the Employer relied
solely on certain alleged events occurring at the initial
organizational meeting on March 11. Since this preceded
the filing of the petition, the Regional Director summari-
ly overruled the objection, citing The Ideal Electric and
Manufacturing Company, 134 NLRB 1275 (1961).
A hearing was directed and held on the Employer's
objection alleging financial inducement. A report issued
by the Hearing officer was in essence adopted by the Re-
gional Director in his second supplemental decision. The
objection was overruled and on December 30 the Union
was certified as the collective-bargaining representative
of Respondent's employees in an appropriate unit.
Review by the Board of both the supplemental deci-
sion and the second supplemental decision was requested
and denied.
Thereafter, Respondent declined to recognize and bar-
gain with the Union, contending that it was entitled to a
hearing on, and to judicial determination of, its second
and third objections (the Miller letter and the alleged
threats).
The Union then filed a charge on which the complaint
in this matter issued. Respondent filed an answer and the
General Counsel moved for summary judgment. The
Board granted the motion and ordered Respondent to
cease and desist from refusing to bargain with the Union
and to recognize and bargain with the Union upon re-
quest. Gamble Coals, Inc., 237 NLRB 932 (1978). Re-
spondent then petitioned for a review in the Fourth Cir-
cuit and the Board cross-petitioned for enforcement.
In its decision ordering remand, the Fourth Circuit
concluded that the Board should conduct a hearing to
determine whether and to what extent the statements
contained in Miller's letter were objectionable, noting
that Shopping Kart Food Market, Inc., supra, had been
overruled in General Knit of California, Inc., 239 NLRB
No. 101 (1978). The court declined the Board's sugges-
tion to decide this issue on its merits, applying the then
existing standard. The court further ruled that the doc-
trine set forth in Ideal Electric should not be mechanical-
ly applied, and that evidence should be taken on the
issue of whether in fact the alleged threat which oc-
curred 10 days prior to the filing of the petition was of
such nature as to affect the results of the election.
Thus, the issues which came on for hearing, and
which are before me for decision, are: (a) whether state-
ments in the letter sent to employees on May 23 by
Union President Arnold Miller are misrepresentations of
such a nature and in such circumstances as to affect the
results of the election (Objection 2) and (b) whether the
alleged threat occurring at a meeting of employees on or
about March 11 was of such a nature and in such cir-
cumstances as to affect the results of the election (Objec-
tion 3).
Although this proceeding involves objections to con-
duct affecting the results of an election, the underlying
complaint alleges a violation of Section 8(a)(5) of the Na-
tional Labor Relations Act, as amended, 29 U.S.C. §151,
et seq. Accordingly, should either of the objections be
sustained, and the election set aside, the complaint should
be dismissed. Conversely, should the objections be over-
ruled, then the Board's Decision ordering Respondent to
bargain with the Union as the certified representative of
its employees should remain in effect.
Both Respondent and Union called witnesses and par-
ticipated in the examination and cross-examination of
witnesses. While the General Counsel was represented
by counsel, he did not take an advocatory position with
regard to the matters now before me and did not submit
a brief. Upon the record as a whole, including my obser-
vation of the witnesses, the briefs,2 and the arguments of
counsel, I hereby make the following:
SUPPLEMENTAL FINDINGS OF FACTS AND
CONCLUSIONS OF LAW
A. Objection 2
In his May 23 letter to employees Miller stated, among
other things, that the Union has a health and welfare
plan which will pay 100 percent of all medical costs of a
union member covered under a collective-bargaining
agreement, and his family. The clear implication in the
letter is that, should the employees vote for the Union,
they would receive similar treatment. However, both the
Union and Respondent had told employees that in the
event they vote for the Union any benefits would have
to be negotiated between the Union and the Employer.
Respondent generally contends that the statement con-
cerning 100-percent insurance coverage was a misrepre-
sentation, first because it implied that employees would
get such benefits automatically on voting for the Union.
Second, subsequent to the election the amount of cover-
age under this plan was substantially reduced, a fact
which Miller knew or should have known at the time the
letter was written.
A number of witnesses testified on behalf of Respon-
dent concerning receiving this letter and their subjective
understanding at the time they voted concerning what
the nature of the health and welfare benefits would be.
They each stated they believed the union health and wel-
fare benefits would be 100-percent coverage for their
families. Each also testified that this was based primarily
on his understanding of the health and welfare plan from
union employees in the area and not specifically from
Miller's letter. Most of the employees called by Respon-
dent did not even read Miller's letter.
During the entire course of the campaign, Respondent
put out a number of letters, newspaper clippings, and the
like, with accompanying statistics, which stated that the
Union's health and welfare and pension plans were "in
2 Respondent's motion to file its brief out of time, for good cause
shown, is granted.
GAMBLE COALS, INC. 1055
trouble." Indeed, the matter of the financial solvency of
the Union's health and welfare and pension funds was
apparently a matter of general knowledge in the coal
communities of West Virginia.3 In any event, whatever
the statements made by Miller in his letter of May 23
they were amply answered by Respondent in preelection
propaganda even though Respondent did not have a
copy of the precise May 23 letter until the Friday (May
27) before the election.
In fact, by letter of May 24 to employees, Homer
Gamble, Respondent's president, specifically attacked the
financial integrity of the funds; and on May 26 showed a
videotape to employees of a debate between two candi-
dates for the union presidency in which this subject was
thoroughly discussed.
As indicated above, during the pendency of this litiga-
tion, the Board changed its policy concerning the stan-
dard to be applied in testing whether a preelection state-
ment requires setting aside an election. The Board re-
verted to the test set forth in Hollywood Ceramics Compa-
ny, Inc., 140 NLRB 221 (1962), which in essence states
that there (1) must be a representation which (2) involves
a substantial departure from the truth (3) made at a time
when the other party is precluded from making an effec-
tive reply (4) such that the misrepresentation may rea-
sonably be expected to have had a significant impact on
the election.
The alleged misrepresentation here is one of omis-
sion-Miller's failure to suggest that the 100-percent cov-
erage might be changed, as indeed it was. There is no
contention that Miller's assertions at the time were inac-
curate. Certainly the status of the union funds was a ma-
terial consideration to employees. And by not including
in his explanation of the funds their financial difficulty
Miller misrepresented them.
However, the goal of Hollywood Ceramics is not abso-
lute purity in campaigns. Rather it is to avoid one side
gaining an advantage by resorting to trickery at a time
when the other cannot effectively reply. Such was not
the case here.
Respondent summarizes its argument by stating: "If
trustworthy sources had made the shaky status of the
Funds clear to Gamble's employees prior to the election,
the results would have been different." But, in fact the
"shaky status of the Funds" was a major thrust of Re-
spondent's campaign and was well presented to employ-
ees after they had received the Miller letter. Respondent
does not suggest what more it could have, or would
have, said about the funds had it received a copy of the
Miller letter sooner. The essence of the Hollywood Ce-
ramics test, and Respondent's objection, is the opportuni-
ty to take issue with a representation so that the employ-
ees will be fully informed when they vote. Such, I con-
clude, was the case here.
Respondent seems also to contend that Miller's letter
promised the health and welfare and pension benefits to
3 On March 21, the funds' trustees wrote each covered employee set-
ting forth the adverse situation and predicting that, unless coal produc-
tion levels increased substantially, benefits would have to be reduced.
There is no evidence that anyone involved in this matter saw, or had, this
letter prior to the election. But the facts it contained were used by Re-
spondent in the preelection campaign
employees should they vote for the Union. But both Re-
spondent and the Union, throughout the campaign, made
it clear that voting for the Union did not guarantee any
specific benefit. I conclude that employees were not
misled concerning what a vote for the Union would
mean.
I conclude that Respondent's objection concerning the
alleged misrepresentation in Miller's letter should be
overruled.
B. Objection 3
A few days before March 11, a majority, if not all, of
Respondent's unit employees determined to seek a wage
increases from Gamble. Apparently a group of employ-
ees petitioned him for a raise. He made an offer to them
which was unacceptable and they went on strike. Shortly
thereafter the Union's International representative for the
area, Steve Nikses, learned that employees of Respon-
dent were interested in organizing. Nikses arranged to
meet with Respondent's employees at Huttonsville, West
Virginia, on March 11.
A number of Respondent's witnesses testified that,
before Nikses arrived, Merritt Lambert, carrying a stick
about 5 feet long and the size of a baseball bat, told em-
ployees who were in favor of the Union to stand on the
grass and for the "scabs" to stand on the side of the
road. All of the employees stood on the grass; one wit-
ness testified that Lambert then went to the road, waved
his stick, and said something to the effect, "Buddy, you
had better not be standing there," talking to an imagin-
ery nonsupporter of the Union.
It is further alleged that, following the passing out of
authorization cards, some employees started to leave the
meeting when a statement was made to hold it, there
were more people there than cards signed so a rollcall
would be taken. Following this statement some employ-
ees, specifically Eddie Currence and Troy Tackett (ac-
cording to the testimony of Currence), then signed au-
thorization cards.4
These events, particularly the statements by Lambert,
were alleged to be threats which created an atmosphere
of fear which affected the results of the election.
It is noted that not all Respondent's witnesses remem-
bered Lambert carrying a stick, although they all did tes-
tify that sometime prior to Nikses arriving somebody
said something to the effect that they should take a vote
and all the union supporters stand in one place and those
not for the Union, or scabs, stand at another place. And
most of the witnesses attributed that statement to Lam-
bert.
Lambert testified that he does not remember whether
he carried a stick at the meeting on March 11 nor does
he remember making the statement concerning people fa-
voring the Union standing to one side and the nonunion
people standing on another side. He did testify that he
had been drinking, although he did not attributed his
lack of memory to that fact.
Given that other witnesses called by the Charging
Party similarly were unable to recall Lambert having
I As noted infra, I do not credit Currence's version of this event Fur-
ther, he is a supervisor and was thus ineligible to vote in the election
GAMBLE COALS, INC.
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
carried the stick or making the statement attributed to
him, on balance I am constrained to conclude that Lam-
bert probably had a stick in his hand and probably was
the one who announced that they should take a poll to
see who was in favor and who was against the Union.
But even accepting a version of this event most favor-
able to Respondent, namely, the testimony of Eddie Cur-
rence, I nevertheless conclude that Lambert did not
make a threat of sufficient magnitude that it could or
would affect the results of an election held 2 months
later. While it may be true that Lambert has a reputation
for physical violence in the community, having served a
term in prison for assault, not even Currence testified
that he felt particularly threatened by Lambert on March
11. The other witnesses denied feeling threatened.
In addition, this event occurred in the context of what
might be termed a wildcat strike by unorganized employ-
ees prior to the presence of any union agent. Everyone
present was a striker, thus it is understandable that no
one lined up on the "scab" side. Lambert's threatening
gesture was to a nonexistent person. Under these circum-
stances, I do not believe that an atmosphere of fear was
created.
The statements made by Lambert on March 11 were
simply insufficient to constitute a threat which could rea-
sonably be said to have affected the results of the elec-
tion 2 months subsequently. To conclude otherwise, on
the state of this record, would effectively foreclose to
some 60 other employees in the bargaining unit the right
to vote for union representation. I believe that the em-
ployees' right to self-organization should not be so light-
ly dissipated. To find a threatening act by an employee
not associated with the Union, occurring prior to the or-
ganizational campaign, to have effected the results of the
election would require one more substantial than that tes-
tified to by Respondent's witnesses. In any event, the
type of activity allegedly engaged in by Lambert will
not be considered by the Board as sufficient to set aside
an election where it occurs prior to filing the petition.
The Ideal Electric and Manufacturing Company, supra.
The Fourth Circuit admonished that Ideal Electric
should not be mechanically applied, and indeed the
Board does recognize exceptions. Thus if, for instance,
the facts here could support a conclusion that the threats
of Lambert, or the rollcall caused some employees to
sign cards and otherwise give the appearance they were
union supporters, then the fact such occurred prior to
the petition filing would be no bar to considering this ob-
jection. Gibson's Discount Center, A Division of Scrivner-
Boogaart, Inc., 214 NLRB 221 (1974); Lyon's Restaurants,
a wholly-owned subsidiary of Consolidated Foods Company,
234 NLRB 178 (1978).
In both the above cases the prepetition conduct was
engaged in by the Union's agents and reasonably did
affect employees' determination to sign authorization
cards. Thus, the unlawful conduct directly related to the
showing of employee interest in the Union. In such cir-
cumstances the Board held that the unlawful conduct
would require setting aside the election. But in both
cases the Board emphasized it did not intend any broad
departure from Ideal Electric.
I do not believe that the statement and gesture of
Lambert, occurring before the union organizer even ar-
rived at the meeting, could reasonably have affected em-
ployees' decision to sign authorization cards.
While Nikses did call for a showing of hands to deter-
mine employee interest in the Union5 he had once before
had an organizational campaign among these employees
which was unsuccessful and he was not interested in
wasting his time), there is no evidence of any threat or
other unlawful inducement in soliciting signatures. It
should be remembered that all the employees present
were strikers and were at the meeting voluntarily.
I therefore conclude that nothing occurred at the
March I I meeting which would require setting aside the
election or departing from the Ideal Electric rule. Objec-
tion 3 should be overruled.
Upon the foregoing findings of fact and conclusions of
law, and the entire record in this matter and pursuant to
the provisions of Section 10(c) of the Act, I hereby issue
the following:
RECOMMENDATION 6
It is recommended that the Board overrule the Re-
spondent's objections to conduct affecting the results of
the election; reaffirm its previous conclusion that the
Union was properly certified; and reaffirm its Order
dated August 25, 1978, that the Respondent bargain with
the Union, the certification year to begin the date the
Respondent commences bargaining with the Union.
s Based on their relative demeanor, and Currence's rather vague testi-
mony. I credit Nikses' version of when and how the rollcall came about.
a In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.