GEX of Colorado, Inc.

National Labor Relations Board - Board Decisions

Jul 14, 1980

250 N.L.R.B. 593 (N.L.R.B. 1980)

GEX OF COLORADO, INC.
Roadside Mining Corporation a/k/a GEX of Colora-
do, Inc. and United Mine Workers of America,
Western Region. Cases 27-CA-5996 and 27-
CA-6148
July 14, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On February 22, 19O0, Administrative Law
Judge Richard J. Boyce issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the
Charging Party filed a brief in answer to Respond-
ent's exceptions.
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
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
I We agree with the Administrative Law Judge's conclusion that em-
ployee Leonard Trujillo was unlawfully discharged because of his union
activities. In so doing, however, we find it unnecessary to rely on his
basis for determining that Trujillo's alleged lying was not serious miscon-
duct and that, in these circumstances, Respondent's consultation with its
"legal people" indicated a lack of confidence in the sufficiency of the
stated reasons for Trujillo's discharge. However, in addition to the fac-
tors relied on by the Administrative Law Judge in finding the discharge
unlawful, we note that in giving the specific reason for Trujillo's dis-
charge, both before and during the hearing herein, Respondent's officials
vacillated between two asserted separate reasons consisting of Trujillo's
lying to Respondent about the reasons for his absence, and his alleged
excessive absences, certain of which had been excused by Respondent
Moreover, although Trujillo's father was not in the hospital as Trujillo
initially told Respondent's officials, Respondent does not controvert the
fact that Trujillo's father was ill, and concedes that it readily grants
leaves of absence for handling personal problems. Hence, Respondent's
reliance on the fact that Trujillo did not tell the truth about his father's
hospitalization, particularly in light of the other circumstances surround-
ing Trujillo's discharge, as set forth by the Administrative Law Judge, is
indicative of a desire to build a case against the last of four known union
activists, two of whom had already been unlawfully discharged, with the
third having resigned voluntarily. In this regard, we also note that, de-
spite Respondent's admission that Trujillo's absence was initially an ex-
cused absence. Respondent saw fit to have a meeting concerning it in-
volving Respondent's underground mine superintendent, manager of un-
derground operations, and personnel director, upon Trujillo's return to
work but prior to Respondent's discovery of the factual discrepency
which allegedly led to the discharge. Finally, Trujillo had apparently re-
ceived no prior reprimands or disciplinary warnings Thus, upon consid-
eration of Respondent's records of verbal and written warnings given to
other employees for various other offenses and the nature of Trujillo's
offense. Respondent's treatment of Trujillo appears not to have been for
either reason alleged by Respondent, warranting the conclusion that the
true reason for the discharge was his union activities
250 NLRB No. 79
Judge and to adopt his recommended Order as
modified herein.
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,
Roadside Mining Corporation a/k/a GEX of Colo-
rado, Inc., Palisade, Colorado, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order, as so modi-
fied:
I. Substitute the following for paragraph l(h):
"(h) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT ask employees if they know
of anyone on their crew "that is pushing the
Union"; or if they would "check around and
see if there is anybody pushing unions"; or if
specified coworkers have been "talking
union."
WE WILL NOT give employees the impres-
sion that their union activities are under sur-
veillance by returning their signed union cards
to them; or by warning them to "be careful"
about their union activities, after telling them
593
DECISIONS ()F NATIONAL LABOR RELATIONS BOARD
of management comments about their distribu-
tion of union cards.
WI- WI.L. NOT threaten employees with dis-
charge should they post notices of a union-
sponsored marathon, or threaten employees
that they "could get run off the job for taking
part in the union activity."
WE WILL NOT demand that employees
remove union stickers from their lockers.
WE WILL NOT request that employees make
available affidavits they have given to agents
of the National Labor Relations Board.
WE WILL. NOT announce or grant wage in-
creases to undermine support of the Union;
provided, however, nothing herein shall be
construed as requiring that Respondent rescind
the unlawful wage increase.
WE WILL NOT discharge, suspend, or other-
wise discriminate against employees for engag-
ing in union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them in
section 7 of the Act.
WE WILL offer to Carvel Donley, Daniel
Kalvar, and Leonard Trujillo immediate and
full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially
equivalent jobs, without prejudice to their se-
niority or other rights and privileges; and WE
WILL make them whole for any loss of earn-
ings or benefits suffered by reason of their un-
lawful suspensions and discharges, with inter-
est.
ROADSIDE MINING CORPORATION A/
K/A GEX OF COLORADO, INC.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This
matter was heard before me in Grand Junction, Colora-
do, on May 22-25, 1979. The charge in Case 27-CA-
5996 was filed on October 16, 1978, and that in Case 27-
CA-6148 on March 19, 1979, both by United Mine
Workers of America, Western Region, hereinafter the
Union. The complaint in Case 27-CA-5996 issued on
November 30, 1978, and was amended on February 28,
1979, and during the hearing; the complaint in Case 27-
CA-6148 issued on April 27, 1979. Orders consolidating
the two for purposes of hearing and decision issued on
April 27 and May 9, 1979. The complaints allege that
Roadside Mining Corporation a/k/a GEX of Colorado,
Inc., respondent herein, committed certain violations of
Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended, hereinafter the Act.
I. JURISDICTION
Respondent is a Delaware corporation engaged in the
operation of a coal mine near Palisade, Colorado. It an-
nually ships materials of a value exceeding $50,000 across
state lines, and thus is an employer engaged in and af-
fecting commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
1I. I.ABOR ORGANIZArlION
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
Issues
The complaint in Case 27-CA-5996 alleges that in the
fall of 1978 Respondent interrogated employees about
their union activities, asked employees to inquire into
and report on the union activities of others, threatened to
discharge an employee if he posted notice of a union-
sponsored marathon, threatened to discharge an employ-
ee for engaging in union activities, and directed an em-
ployee to remove a union sticker from his locker, thus
violating Section 8(a)(l) in each instance. The same com-
plaint alleges that Respondent violated Section 8(a)(3)
and (1) by suspending Carvel Donley and Daniel Kalvar
on October 5, 1978, and then discharging them on Octo-
ber 19.
The complaint in Case 27-CA-6148 alleges that in
January 1979 Respondent announced a wage increase to
discourage support for the Union, and, in March 1979,
asked that an employee supply it with an affidavit he had
given the Board, thus violating Section 8(a)(1) in each in-
stance. This complaint also alleges that Respondent vio-
lated Section 8(a)(3) and (1) by implementing the wage
increase on March 1, 1979, and by suspending and then
discharging Leonard Trujillo on March 8 and 9.
III. THE AI.I.LGED UNFAIR L ABOR PRACTICES
A. Norman (Tex) Smith
1. Allegation
The complaint in Case 27-CA-5996 alleges that, in
September 1978, Smith, Respondent's underground mine
superintendent, "interrogated employees about the union
organizational activities of employees"; and "requested
and instructed employees to obtain information concern-
ing other employees' union activities and that the infor-
mation obtained be conveyed to" him, violating Section
8(a)(1) in each instance.
Evidence: Donald Johnson, a roof bolter helper, testi-
fied that Smith called him and a coworker, Brent Bur-
gess, aside in September 1978, asking: "Do you know of
anyone on your crew that is pushing the Union?" Smith
added, according to Johnson: "I have heard rumors that
somebody is pushing the Union, and I was wondering if
you could check around and see if there is anybody
pushing unions. We don't want to get a union started."
Smith admittedly asked Johnson and Burgess "at one
time" if they "knew of anybody on their crew that was
594
EX ()OF COLORADO, INC.
"behind the organizational effort, and instructed them to
let him know "who might be instigating" it.'
Conclusions: It is concluded that Smith violated Sec-
tion 8(a)(l) as alleged in this conversation with Johnson
and Burgess.
2. Allegation
The complaint in Case 27-CA-5996 alleges that, on
October II11, 1978, Smith "interrogated an employee
about the union activities engaged in by other employ-
ees," violating Section 8(a)(l).
Evidence: Henry Barbe, a supply man, testified that in
a conversation with Smith on October 11, 1978, he asked
Smith the status of Carvel Donley and Daniel Kalvar.
They had been suspended on October 5, and in-house
hearings concerning them had been held on October 10.
Smith replied, according to Barbe, that things were "up
in the air," then asked Barbe if he thought that Donley
and Kalvar had been "talking union." Barbe assertedly
answered that, while he did not know about that, they
had spoken to him about getting a lawyer "at no charge"
regarding a finger he had lost on the job.
Smith testified that Barbe approached him on or Octo-
ber II, asking if he knew that Donley and Kalvar had
been organizing, and reporting that they had spoken to
him about union help in seeking damages over the lost
finger. Smith's reputed response was that he did not feel
that the employees needed a union.
Conclusion: Barbe is credited that Smith asked if he
thought that Donley and Kalvar had been talking union.
He was a direct and persuasive witness. Smith on the
other hand, and as indicated in footnote 1, seemed in-
clined to self-serving falsehood on certain critical mat-
ters. It is concluded, therefore, that Smith violated Sec-
tion 8(a)(l) as alleged in this exchange with Barbe.
3. Allegation
The complaint in Case 27-CA-5996 alleges that, on or
about October 19, 1978, Smith "interrrogated an employ-
ee concerning the identities of employees engaged in ac-
tivities on behalf of the Union, and the number of em-
ployees who had signed cards for the Union," violating
Section 8(a)(1). Counsel for the General Counsel stated
at the start of the hearing that this interrogation in fact
was conducted by David Casey, but pursuant to Smith's
instructions, and that Smith therefore "is the one basical-
ly that is interrogating the employees."
Evidence: Tom Barrington, a roof bolter helper, testi-
fied that Casey pulled him aside on October 19, 1978,
then related that Smith had asked him who, besides Bar-
rington, had been passing out union cards on the grave-
yard shift, and if he knew how many of the employees
I The only difference of note between Johnson and Smith concerns the
timing of this incident Johnson testified that it happened about 2 weeks
before Donley and Kalvar were discharged; Smith, that it happened after
the discharges, in the -"very last of October" -" am certain it was after "
While not important for present purposes, this difference is significant in
analyzing the two discharges. for Respondent denies knowledge of Don-
ley's and Kalvar's union proponenc) when the discharge decisions were
made. Johnson is credited He was a convincing witness. whereas. as is
more full) developed later, Respondent in general and Smith in particular
went to exaggerated and unconsin.ing length, in an effort to show nol
prior knowledge
had signed cards. Casey cautioned Barrington to "be
careful," as Barrington recalled. Casey was a utility fore-
man at the time, admitted by Respondent to be a supervi-
so r.
That same day, according to Barrington and conceded
by Smith, Smith presented Barrington with the union
card that Barrington previously had signed, explaining
that the person to whom Barrington had given the card,
Casey, had given it to Smith and had asked that Smith
return it to Barrington.
Casey, although testifying, did not address these mat-
ters. Barrington is credited.
Conclusion: While the complaint perhaps mischaracter-
izes the conduct in question, it is concluded that Casey's
telling Barrington of his conversation with Smith, coup-
led with the admonition to be careful, conveyed the im-
pression that Barrington's union activities were under
surveillance, and likely had a chilling effect on those ac-
tivities and consequently violated Section 8(a)(l).
It is concluded that Smith's return of the card to Bar-
rington, in combination with the style in which it was
done, conveyed the same impression and was to like
effect, also violating Section 8(a)(1).
B. James Diamanti
Allegation: The complaint in Case 27-CA-5996 alleges
that, in September 1978, James Diamanti, Respondent's
manager of underground operations, "threatened an em-
ployee with discharge if he posted a notice concerning a
marathon sponsored by the Union," thereby violating
Section 8(a)(1).
Evidence: Kalvar testified that he asked James Dia-
manti, in early September 1978, if he could post notice of
a marathon to be run September 30 in Grand Junction.
Diamanti asked what it was about; according to Kalvar,
Kalvar replied that it was sponsored by the Union, and
Diamanti declared: "If you do [post the notice], I will
fire you. No, I will let you hang yourself."
Diamanti denied that Kalvar ever asked him about
posting a notice, and that anything resembling this con-
versation ever took place.
The Union in fact had no part in the marathon, which
was sponsored by a Grand Junction running club. Kalvar
explained that he misrepresented the sponsorship to Dia-
manti because he had decided "to initiate a drive . . . to
organize [Respondent], and . . . wanted to know what
the company reaction would be to posting union materi-
al."
Conclusion: Kalvar is credited that the conversation
occurred and that Diamanti made the remark attributed
to him. He displayed excellent witness-stand demeanor,
and his recall was convincing. That he falsified to Dia-
manti, for a tactical reason, does not suggest unreliability
under oath. Diamanti's credibility, in contrast, suffered
from occasional evasiveness and a seeming penchant for
the self-serving.
It is concluded that Diamanti's remark violated Sec-
tion 8(a)( 1 ) as alleged.
595
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. James Mann
Allegation: The complaint in Case 27-CA-5996 alleges
that, in November or December 1978, Mann "threatened
an employee with discharge for taking part in union ac-
tivities," violating Section 8(a)(1).
Evidence: Leonard Trujillo testified that he had a con-
versation with Mann in November or December 1978 in
which Mann commented that "not everybody wanted
UMWA in." 2 Mann was a section foreman at the time,
admitted by Respondent to be a supervisor. Trujillo re-
plied, as he recalled, that "we need it"; Mann asked why,
and Trujillo cited "too much favoritism" in the assign-
ment of the better paying jobs. Mann responded, accord-
ing to Trujillo, that seniority should not be a factor, then
warned that Trujillo "could get run off the job for taking
part in the union activity."
Trujillo continued that Gary Hartfile, also present, in-
terjected that "they were shutting all the coal mines
down back east" because of the Union, and that he disa-
greed, attributing the closures to enviromentalists.
Neither Mann nor Hartfile testified. Trujillo is cred-
ited.
Conclusion: It is concluded that Mann's warning that
Trujillo could get run off the job violated Section 8(a)(l)
as alleged.
D. Larry Diamanti
Allegation: The complaint in Case 27-CA-5996 alleges
that, in November 1978, Larry Diamanti "instructed an
employee to remove a union sticker that was pasted on
his locker," a violation of Section 8(a)(1).
Evidence: Trujillo testified that he had a locker room
exchange with Larry Diamanti in November 1978 in
which Diamanti demanded that he "take that f. . .ing
UMWA sticker off" the inside of his locker and Trujillo
replied that, if Diamanti wanted it off, he should take it
off himself. Trujillo continued that, upon his subsequent
return from taking a shower, the striker was gone.
Diamanti was a section foreman at the time, conceded
by Respondent to be a supervisor. He did not testify.
Trujillo is credited.
Conclusion: It is concluded that Diamanti's demand to
Trujillo violated Section 8(a)(l) as alleged. E.g., Tekform
Products Co., 229 NLRB 733, 744 (1977); Bingham-Wil-
lamette Company, 203 NLRB 394, 396 (1973); Floridan
Hotel of Tampa, Inc., 137 NLRB 1484, 1486 (1962).
E. The Allegedly Unlawful Request for an Affidavit
Allegation: The complaint in Case 27-CA-6148 alleges
that, on March 16, 1979, an unnamed agent of Respond-
ent "requested of an employee that [the agent] see an af-
fidavit given by that employee" to the NLRB, thereby
violating Section 8(a)(1).
Evidence: On March 16, 1979, Respondent's attorney,
Carl Hall, was at the mine preparing for the hearing in
Case 27-CA-5996, then set for March 20. Henry Barbe
testified credibly and without refutation that, after being
directed by Tex Smith to meet with Hall that day, Hall
inquired about his knowledge of the Donley and Kalvar
2 "UMWA" is a shorthand reference to the Union.
discharges. In the course of the discussion, Barbe men-
tioned that he had been subpenaed and that, when he tes-
tified, he intended "to try to stay close to what my affi-
davit said to the NLRB officer." With that, Hall said he
"would like to see" the affidavit, and asked if Barbe
"would mind" bringing it to him. Barbe said he would
bring it, but he never did.
Hall's request for the affidavit was accompanied by the
assurance that production "was completely voluntary"
on Barbe's part. Similarly, at the start of the meeting,
Hall explained to Barbe that he was preparing for the
hearing and that Barbe's speaking to him was "strickly
voluntary." The meeting took place in the office of Re-
spondent's president, Wallace Brown. Only Hall and
Barbe were present.
Conclusion: In Johnnie's Poultry Co., et. al., 146 NLRB
770, 775 (1964), the Board stated that it "has generally
found coercive, and outside the ambit of privilege, inter-
rogation concerning statements or affidavits given to a
Board agent." Explicating, the Board observed in Wag-
goner Corporation, 162 NLRB 1161, 1163 (1967), that
management inquiry into an employee's comments about
the employer to an NLRB investigation "can only exert
an inhibitor effect upon the employee's willingness to
give a statement at all . . . thereby frustrating the poli-
cies of the Act and the vindication of the statutory rights
protected thereby." It is concluded, therefore, that Hall's
request in violation of Section 8(a)(1) as alleged.3 His as-
surance to Barbe that production was voluntary was not
exculpatory. Robertshaw Controls Company, Lux Time
Division, 196 NLRB 449, 454-456 (1972). See also,
Tamper, Inc., 207 NLRB 907, 936-937 (1973); W. T.
Grant Company, 144 NLRB 1179, 1180-82 (1963).
F. The Allegedly Unlawful Announcement and
Implementation of a Wage Increase
Allegations: The complaint in Case 27-CA-6148 alleges
that, in January 1979, Respondent "announced an across-
the-board wage increase to all its hourly-paid employees,
in the face of the Union's in campaign," violation of Sec-
tion 8(a)(1); and that it "implemented the wage increase"
on about March 1, in violation of Section 8(a)(3) and (1).
Evidence: Effective March 1, 1979, Respondent grant-
ed an hourly wage increase of 75 cents to all its hourly
paid employees.
Announcement of the raise was made on January 19
by Wallace Brown, Respondent's president, during an
all-employee meeting at Twin Rivers Plaza, a convention
facility in Grand Junction. Present for management, be-
sides Brown, were members of Respondent's board of di-
rectors and of its executive hierarchy, all of whom ad-
dressed the employees. Dinner was provided. James Dia-
manti testified that the meeting was called, "partially," to
undermine employee support of the Union. After Brown
:a This is not to say that an employer is precluded in all circumstances
from inquiring about and requesting copies of employee affidavits. As
noted in Johnnies Poultry. supra, at 146 NLRB 775-776, the respondent in
an unfair labor practice proceeding is "entitled to the availability, upon
request, of the affidavits of General Counsel witnesses for use in cross-
examining those witnesses" See also Sec. 102.118(b)(1) of the Board's
Rules and Regulations-the so-called Jenkn Rule
596
GEX OF COL.ORADO. INC
had made his announcement and the meal was over,
there was an antiunion slide show.
The record offers no basis for supposing that Respond-
ent ever before had called a meeting of this nature. The
last previous general raise was granted in May 1978, ret-
roactive to March 26. Respondent's raise policy, as
stated in its Employee Policy Guide, is this:
It is the policy of [Respondent] to provide wages
and benefits for our employees at rates equal to or
better than the top wages in the area. To accom-
plish this, [Respondent] will continually keep
abreast of the prevailing wages and benefits in the
coal mining industry.
It is not contended that the raise in question was for the
purpose of keeping Respondent abreast of prevailing in-
dustry levels, nor is there evidence that it had that effect.
Conclusion: The raise was announced during an appar-
ently unprecedented meeting admittedly called in part to
quell the union drive, after which antiunion slides were
shown. The announcement plainly shared the antiunion
purport of the meeting generally, and thus violated Sec-
tion 8(a)(1) as alleged.
Concerning the raise itself, the circumstances of its an-
nouncement and its nonadherence to any demonstrable
pattern or policy compel the conclusion that it violated
Section 8(a)(3) and (I) as alleged.
G. The Allegedly Unlawful Suspension and Discharge
of Donley and Kalvar
Allegation: The complaint in Case 27-CA-5996 alleges
that Respondent suspended Donley and Kalvar on Octo-
ber 5, 1978, discharged them on October 19, and since
has refused to reinstate them, because of their union ac-
tivities, all in violation of Section 8(a)(3) and (1).
Evidence: Donley and Kalvar were roof bolters and
working partners at relevant times. Their section fore-
man was John Javernick. Donley had been on the pay-
roll since March 1977; Kalvar, since December 1977.
They were suspended on October 5, 1978, and were dis-
charged, without returning to work, on October 19. The
asserted reason for both actions was that they had violat-
ed an alleged company policy prohibiting breaks in the
underground lunchroom at other than lunchtime. The ac-
tions were the joint decision of James Diamanti and Tex
Smith.
The triggering incident occurred on October 5. At
about 2:45 p.m., Javernick told Donley and Kalvar to
"go out and get a breath of air" because mechanical
problems had caused a suspension of production and it
was "awful dusty" in their portion of the mine. They
proceeded to the underground lunchroom, being joined
by a third employee, Douglas Ogden, along the way.
The lunchroom, a mobile structure made of sheet metal,
was several hundred feet from their worksite.
The three helped themselves to coffee and lingered in
the lunchroom. Kalvar, in addition, cleaned his glasses
with tissue paper kept there. Five or 10 minutes later,
perceiving an approaching cart, Kalvar exclaimed, "Oh,
shit," and he and Donley left "in a hurry." Their plan
was to hide behind the structure, then beat on it with
hammers if those in the cart went inside. This was a
common form of amusement in the mine. As Javernick
testified, "there was somebody always" hitting the lunch-
room with a hammer-"it makes you jump out of your
skin." As secondary reason for the hasty exit, in Kalvar's
mind, was to avoid apprehension should the cart's occu-
pants turn out to be supervisors. He was heavily in-
volved in union activities, he explained, and did not want
to furnish a convenient pretext for discharge. Ogden,
unlike the other two, departed the lunchroom in orderly
fashion.
The plan went awry when Donley's hardhat fell off
during the exodus. And the occupants indeed were su-
pervisors-namely, Smith and Ken Short, general mine
foreman. In the ensuing face-off, Donely stated: "We
have been caught again." This was a jocular allusion to
that morning, when Smith had come upon some of the
employees, Donley among them, standing on a piece of
equipment, waiting for parts. Smith did not respond in
the same spirit, instead pointedly asking what they were
doing and if their day's work was finished. Kalvar an-
swered that he had been to the lunchroom for tissue to
clean his glasses and had gotten a cup of coffee, and that
work remained to be done; Donley, that he had had a
cup of coffee. Smith ordered them, but not Ogden, to see
Diamanti and himself at shift's end, which was 4 p.m.
Smith promptly told Javernick what had happened
and that he had ordered the two employees to report to
the office. This angered Javernick, who felt that Donley
and Kalvar had done "a good day's work." He described
in detail the work they had done that day, and said they
had not been gone long. Smith countered that he had not
liked their running out of the lunchroom. Javernick re-
plied that they were "just playing," adding that, if Smith
suspended them, he "could as well suspend the whole
underground and outside crew." Smith did not ask Ja-
vernick if he had authorized the employees to take a
break.4 He concededly had no idea whether they had
been in the lunchroom 15 seconds or 10 minutes, nor did
he seek to find out. He explained:
Their actions pretty well told me they had been in
there goofing off, 'cause otherwise why would they
break and run like that?
Smith and Diamanti then discussed the situation for
about 30 minutes, jointly deciding to suspend the two
with the intention of firing them. Smith thereupon in-
structed Respondent's personnel director, Carla Budd, to
prepare letters reflecting this decision. Smith explained
to Budd at the time that, since Donley had been suspend-
ed once before,5 it would be necessary to suspend him
now; and that, since Kalvar's misconduct had been the
same as Donley's, he would have to receive the same
treatment.
I Smith testified that, when he spoke to Javernick, Javernick stated
that he had been looking for Donley and Kalvar Javernick denied so
stating and is credited He was a direct and eminently believable witness.
whereas Smith, as previously noted. s"eemed inclined to self-serving
falsehood on certain critical mattiers."
. Although the record is sparse ,on the rectord is point. it intimates that
Donle)c', previous suspenion was for driisng a vehicle through a door
597
I)ECISI()NS ()l NATI()NAl IAI3()R RIFLATIONS BO(ARI)
Donley and Kalvar reported lo Diamanli and Smith as
ordered, receiving thile letters Budd had prepared. They
slated:
This letter is to advise you that effective October 5,
1978 you are suspended from our payroll with the
intent to discharge, under the provisions of the Em-
ployee Policy Guide." The reason for the suspen-
sion is neglect and abuse of duty.
You may request a review with the Mine Manager,
concerning this matter, within three working days
of the suspension date. If no request for a review is
made, the discharge shall be considered final at the
end of the third day.
Donley wadded up his letter and announced that they
could take their job "and stuff it." Kalvar protested: "If
this is about the coffee thing, everyone else does it."
Javernick was not consulted about the decision to sus-
pend and discharge, and was "surprised" when told of it
after work on the 5th. The next day, he informed Dia-
manti that he was quitting in protest. He later reversed
himself, however, and is still on the payroll. Donley is
his son-in-law.
On October 6, Smith orally reprimanded Ogden for his
part in the lunchroom affair, telling him that "it was not
company policy at no time to take breaks other than
during the regular scheduled lunch hour." 7 Smith testi-
fied that Ogden would have been suspended and fired
like Donley and Kalvar, had he not been "a new em-
ployee that was unaware of the company policies." He
stated that Ogden's tenure "couldn't have been over two
weeks" at the time. Similarly, Budd cited Ogden's being
"a very new employee" as the reason for his receiving
leniency. She estimated that he had been on the payroll
not more than a month. In fact, Ogden began working
on July 10, 1978.
Donley and Kalvar requested review in accordance
with their suspension letters. Hearings, so called, fol-
lowed on October 10, Donley's in the morning, Kalvar's
in the afternoon. Smith presided over both. Budd took
notes. Short was present as a verifying witness for the
Company, but said little if anything. Richard Noble, a
lawyer for the Union, represented the employees, 8 who
also were there. Diamanti did not attend, being away on
business. Smith testified that the hearings were not going
to change his mind; Diamanti, that subsequent develop-
ments "possibly" could have changed his.
The employee policy guide provides: "The first three working days
arter the termination will be deemed to be a suspension and the employee
may request a review before the general manager. If no request for a
review is made. the discharge shall he considered finat the end of the
third day."
I Smith and Budd testified that Ogden received a written reprimand:
Ogden. that It was oral Respondenlt was unable to produce a copy. Budd
speculating that it may have been lost when Respondent's office was
broken into. Budd's notes of the Donley hearing reflect Smith's stating
that Ogden "was being verbally warned." It is concluded, based on
Ogden's testimony. Budd's note,. and Respondent's failure Io produce a
copy. that Ogden did not receive a written reprimand.
Noble did noi disclose his associationl with the Union during the
Donley hearing Respondent apparently learned about it shortly before
Kalvar's hearing
Smith stated in one or the other or both hearings that
the only reason for the adverse action was that the em-
ployees took a break in the lunchroom at other than
lunchtime; and that, while this prohibition was unwrit-
ten, he "just assumed" that they knew about it because
of their longevity, it being "just a known rule." In Kal-
var's hearing, Smith characterized him as "rather outspo-
ken," as "arrogant," and as a "borderline troublemaker,"
adding that one of the section foremen, Chuck Wise, had
so depicted him. Also in the Kalvar hearing, Smith rea-
soned, much as he had to Budd on the 5th, that Donley
had to be discharged because of his prior suspension, and
that Kalvar had to be discharged because he and Donley
had committed the same offense.
On October 19, letters were sent to Donley and
Kalvar over the signature of Wallace Brown, company
president. They stated:
On October 5, 1978, you were suspended from our
payroll with the intent to discharge. On October 10,
1978, you were given a hearing at which you were
represented by your attorney. The investigation of
this matter is now completed and it is the decision
of this company that you should be discharged.
Concerning Brown's involvement, Diamanti testified:
We had not ever had a matter of discharge handled
this way before, in a matter of attorneys, hearings,
such things as that matter, and I felt that it was nec-
essary to have the president of the company know
all the facts, review it with me before final decision
was made."
Echoing Smith's assertion, made during the October
10 hearings, that the policy against lunchroom breaks
was "just a known rule," Diamanti testified that the ban
is "common knowledge" and has never been posted or
published "because it isn't abused." Smith admittedly had
never told Donley or Kalvar about the rule before Octo-
ber 5, and is not aware that anyone else from manage-
ment ever had, instead assuming, so he says, "that they
was aware of the company policy pertaining to this." At-
tempting to define the policy, Smith testified that "some
of the people have to go in [the lunchroon] and get
water, some have to go in and get Kleenex ... for their
glasses," and that some go in for coffee or hot chocolate;
and that all of this is acceptable, provided the employees
"go in there and leave."
If there was such a rule, it languished in obscurity,
Diamanti and Smith to the contrary, and seldom if ever
was enforced before October 5.' Even Budd conceded
that she did not know what the rule was; and Javernick
and several employees testified either that there was no
' Regarding the reason for all the formality. Earlin Divinny. an office
employee. credibly testified that she overheard Budd warn Smith, on Oc-
tober 6, that a federal law was involved and that, since Kalvar "knew a
lot about the law," the hearings would present a "touchy situation." re-
quiring that they "watch what they said and what they did." Budd's
denial that she made these comments was unconvincing
"' There is some testimony that Smith once irally reprimanded an em-
ployee named Ron Johnson for taking a break in the lunchroom When
this happened and its circumstances are vague on the record Johnson left
the payroll in July 1978.
(Gt X O1 ('01.ORADX. INC'
such policy, or that they were unaware of it. Indeed, on
the very morning of the 5th, Smith was seen in the
lunchroom with James Mann, a section foreman, and
Dewey Walker, an employee; II and, in late September,
Smith saw Donley and Kalvar taking a break there, and
said nothing to them about it. Testimony of a more gen-
eral nature leaves no doubt that many employees and nu-
merous of management took breaks in the lunchroom
from time to time. 12
Kalvar was the principal union proponent in the work
force. He made the first contact with the Union, on Sep-
tember 7, signing a union card at that time. By October
5, he had spoken of the need for representation, at and
away from the mine, to 20 or 30 employees. He, in addi-
tion, had given cards to about 10 employees for signing,
and had given batches of cards to two coworkers, Tom
Barrington and Leonard Trujillo, for distribution among
the employees. Kalvar handed out the cards away from
the mine.
In early September, referring to a posted notice that
paychecks would not issue until enrollment forms for dis-
ability insurance were turned in by the employees,
Kalvar told Diamanti that the employees "wouldn't have
to put up with that shit" if there were a labor contract;'3
and, as previously described, Diamanti raised the pros-
pect of discharge should Kalvar post notice of a union-
sponsored marathon.
Donley, although decidedly prounion, was not particu-
larly active. He signed a card on September 13, but oth-
erwise referred interested employees-about 15 in all-to
Kalvar rather than promote the cause directly. He ex-
plained that he had been cautioned by Javernick a year
or so before about revealing his prounion feelings too
openly, lest he be fired.
Smith and Budd testified that they did not learn of
union activity at the mine, let alone Kalvar's and Don-
ley's part in it, until the afternoon of October 10, shortly
before Kalvar's hearing, when they were told that Rich-
ard Noble was a union lawyer. Diamanti testified that his
first knowledge came on the evening of the 10th, when
Budd told him upon his return from a trip. These protes-
tations of ignorance necessarily are unconvincing, Smith
having told Donald Johnson and Brent Burgess in Sep-
tember, as previously set forth, that he had heard
"rumors that somebody is pushing the Union," and
asking what they knew about it and if they would
"check around."
" Attempting to distinguish the situation of Mann and Walker from
that of Dontey and Kalvar. Smith testified that "their job was complet-
ed." and that they were awaiting transportation to another part of the
mine.
12 That Kalvar said "oh, shit" prefatory to leaving the lunchroom does
not necessarily imply an awareness thal he was engaged in serious mis-
conduct While the record is silent on the point. it would seem beyond
cavil that this expression enjoys currency in communicating a vast range
of human emotions
3 This is Kalvar's credited version of the conversation with Diamanti
Diamanti initially denied that he had ever talked about the insurance
forms, later admitting that there had been such a conversation, but deny-
ing that any reference was made IOt a labor contract. As mentioned
before, in rcrsoting a credibility conflict between these Iwo,. Kalvar had
excellent wilness-stand demeanor and cons incing recall, whereas Dla.
manti's credihilily suferced from evasiveness and a seeming tendency ioe
be elf -servlng
Diamantti and Smith are deeply antiunion, Diamanti
admitting that he would do everything wvithin his power
that is legal to keep the mine nonunion, and Smith ex-
pressing his resolve "to keep the place free and clear of
unions.' In the same vein, Respondent's employee policy
guide states:
We want our employees to clearly understand that
we plan to operate our company union-free ....
We will strongly oppose any union attempt to de-
prive our employees of the legal right to deal di-
rectly with management.
Respondent had about 160 employees at relevant
times. Diamanti testified that he formed the impression.
sometime after the discharge of Donley and Kalvar, that
they, Barrington, and Trujillo were the only ones "push-
ing" the Union.
Conclusion: It is concluded that the suspension and dis-
charge of Donley and Kalvar violated Section 8(a)(3)
and (I) as alleged.
This conclusion derives from this aggregate of consid-
erations:
(a) They were two of only four employees identified
by management as being union "pushers." True, the evi-
dence is not conclusive that this identification was made
before the decision to suspend and discharge. However,
the exchanges between Diamanti and Kalvar over the
marathon notice and the insurance enrollment forms
would have given Diamanti cause to suspect Kalvar;
and, while Smith avowedly knew nothing of the organi-
zational ferment until October 10, he spoke to Donald
Johnson and Brent Burgess in September about "rumors"
of activity, and was seeking to ascertain those involved
at that time.
(b) The onset of union activity preceded the suspen-
sions by only a month or so.
(c) Respondent harbors pronounced antiunion feelings.
(d) The rule or policy supposedly violated either was
manufactured for the occasion, or given vastly inflated
prominence.
(e) Smith's stated reasoning (to the effect that Donley
had to be discharged because of his prior suspension, and
that Kalvar had to be discharged because he and Donley
had committed the same offense) was so palpably circu-
lar as to betray bad faith.
(f) Ogden, not linked with the Union, received vastly
different treatment, although he, too, was party to the
"offense"; and the professed reason for the difference re-
quired a distorted factual premise concerning Ogden's
time on the payroll and was unconvincing in any event.
(g) The involvement of the company president, admit-
tedly unprecedented, in what would appear to have been
routine discharge situations, indicates that union consid-
erations played a role in the adverse actions.
(h) Smith's depictions of Kalvar, during Kalvar's hear-
ing, as a "borderline troublemaker" and as "rather out-
spoken" would seem, in the circumstances, to have been
veiled references to his union activities; and suggested
that those activities figured in the decision to discharge.
I)I CI SI()NS ():F NA I()NAL I ABO()R RIT.A I()NS B()ARI)
H. Ihe l4legedly Unlatfiul Su.spensron and Discharge
ol 7'rujillo
Allegation: The complaint in Case 27-CA-6148 alleges
that Respondent suspended Trujillo on March 8, 1979,
discharged him on March 9, and since has refused to re-
instate him, because of his union activitics, violating Sec-
tion 8(a)(3) and (1) in each instance.
Evidence: Trujillo was a utility man on the graveyard
shift (12:01 to 8 a.m.) at relevant times. His section fore-
man was David Casey. He joined the payroll in August
1977, was suspended on March 8, 1979, and was dis-
charged on March 9. James Diamanti claims responsibili-
ty for these actions, asserting that they were taken be-
cause Trujillo "lied to me."
The events proximate to the discharge began on
Thursday, February 22. Trujillo had a telephone conver-
sation with his father that day in which the father dis-
closed that he was not feeling well and was beset by var-
ious problems of a family nature. The father is 72 years
old and lives in Rocky Ford, Colorado, 350 miles from
Trujillo's home in Grand Junction. On his next shift,
Trujillo told Casey of the situation and that he might
have to visit his father.
The following Sunday evening, February 25, Trujillo
received a call from a sister in Rocky Ford, who report-
edly told him that their father was "real sick" and urged
him to "get down there right away." Trujillo promptly
called Casey, saying that his father was in the hospital
with a heart condition, and that he "had to get down
there." Casey gave his assent. 14
Based on Casey's assent, Trujillo did not report for the
shift beginning at 12:01 a.m., Monday, February 26. Nor
did he embark immediately for Rocky Ford. He spent
Monday around Grand Junction, attending to assorted
personal matters. He spoke to Casey, among other
things, leaving a Rocky Ford phone number where he
could be reached and explaining that he had devoted the
time since they last had talked "getting ready to leave."
Casey advised him to clear with Diamanti or Tex Smith
before going.
Trujillo contacted Diamanti at about 8 o'clock that
night, stating that he was going to Rocky Ford because
his father "was real sick and . . . in the hospital." Dia-
manti, having learned of the situation from Casey, voiced
surprise that he had not already left. Trujillo explained
that he had had "things to do downtown." Diamanti told
him to "go ahead and go," adding: "When you get back,
please bring something back to verify that your father
was in serious condition or in the hospital." Trujillo said
he would. i5
Trujillo left for Rocky Ford at about 10 o'clock
Monday night.
14 Casey is credited that Trujillo said his father vsas in the hospital
with a heart condition. Trujillo's denials notwithstanding As will hbe
seen. Trujillo admittedly made similar representations to others
5 Trujillo initially testified of telling Diamanli that his father " as
real sick and . in the hospital." only to assert later that he did not
make the hospital reference. Diamanti's testimony conforms 'with the car-
lier version II is concluded in these circumstances that the refervnce Woas
made
Diamanli is crediled over Trujillo"s denial that D)ialmanti asked for ser-
ification While neither seemed adverse to sellf-serving resisionism. )ia-
manti s testimony carried greater conliiCilon ill this iislance.
O()n Wcdnesday, February 28, Trujillo called his
former wife-he being in Rocky Ford, she near Grand
Junction-arranging for her to call Diamanti that he
would be returning to work at 12:01 a.m. on Monday,
March 5. The former wife was unable to reach Diamanti,
but did leave word with Carla Budd. 16
Trujillo returned to work on Monday, as planned,
completing his shift without incident. During his next
night shift, however, Tuesday, March 6, Casey told him
to report to Diamanti "first thing in the morning" i.e., at
shift's end. He did so, whereupon Diamanti asked if he
had verification of his father's illness. Trujillo replied
that he did not; that he had forgotten about that. '
Smith and Budd presently joined the meeting, and Dia-
manti asked that one or the other check Trujillo's attend-
ance since January 1.
Budd returned with a slip of paper reflecting that Tru-
jillo had been absent from January 19 to 31, February 12,
and from February 26 to March 2. The absence from
January 19 to 31 had been for sinus surgery and was au-
thorized. That from February 26 to March 2, of course,
was for the just-completed trip to Rocky Ford. Diamanti
remarked, after scanning the slip, that Trujillo's attend-
ance record did not "look so good"; and Smith interject-
ed that the absences added up to about 4 workweeks.
Trujillo reminded them that the January absences had
been excused.
The discussion eventually returned to the matter of
verification. Trujillo said he could obtain something, but
that it might take "a couple of weeks." Budd proposed
that he instead give them the names of the father's
doctor and hospital, enabling immediate telephonic ver-
ification. Trujillo replied that he did not know the doc-
tor's name, and that his father might be out of the hospi-
tal by then. Budd persisted that, even so, the hospital
would have a record, and Trujillo named a hospital. Tru-
jillo was instructed, at meeting's end, to return at 4
o'clock that afternoon.
Between the two meetings, Budd called the hospital,
reporting back that it had no record of a patient named
Trujillo. Trujillo volunteered at the start of the afternoon
meeting, before he could be confronted with this, that he
had not told the complete truth that morning; that, while
his father had had the flu, he had not been in the hospital
or under a doctor's care. Trujillo explained that, having
missed so much time because of the sinus operation, he
had been afraid that he would not be granted the time
off if he told the truth.'i He then launched upon a de-
scription of his father's sundry problems, and how he
had worked to alleviate them while in Rocky Ford.
I" Casey testified that Trujillo also called him on Wednesday. convey-
ing the same message. Trujillo denied this Whether he did or not is of no
moment, so will he left unresolved
t7 This is Diamanti's credited sersion of the exchange to this point
Trujillo testified. im keeping with his story that [)iamanti had noti iold
him on the 26th to, bring verification. that he responded to that effect
when Diamanli raised the subject on this occasion As before, Diamantis
etiinonly carried greater uon¥1victiion
It Budd is credited thil t TruJillo explained his mlsrepresentatiin in this
nmanner. I rujillo's lestimonri sao roughly to, the sanme effect. although
less prci,c andl sonie fiiat e,,s plai,stihle
h(X)
(;EX OF CO)L.)RADO INC(
Someone asked if Trujillo had known Diamanti or
Smith ever "to refuse anyone time off for personal prob-
lems," and he admitted that he had not. 9 Diamanti
stated, at length, that Trujillo had gotten himself into "a
bad situation," and that it would be referred "to my legal
people" for them to decide how to handle it. Trujillo
was instructed to report for work that night and return
to the office the next morning. 2°
On Wednesday morning, March 7, Diamanti told Tru-
jillo that he was too busy to meet that day. Diamanti tes-
tified that, on Wednesday, he consulted someone about
discharging Trujillo. The record contains no details of
with whom, or what was said.
Trujillo worked again the morning of Thursday,
March 8. He was told, at the end of the shift, to report
to the office, where Diamanti announced his termination
and gave him a letter stating:
This letter is to advise you that effective March 8,
1979, you are suspended from our payroll with the
intent to discharge, under the provisions of the Em-
ployee Policy Guide. The reason for the suspension
is serious misconduct.
You may request a review with the Mine Manager,
concerning this matter, within three working days
of the suspension date. If no request for review is
made, the discharge shall be considered final at the
end of the third day.
Diamanti elaborated, in answer to Trujillo's question,
that the discharge was "for being absent and lying about
. . . the reasons for being absent." 2 ' Trujillo said that he
wanted a hearing, which was set for the next morning,
March 9.
Diamanti presided over the hearing. Smith was pres-
ent, as was Budd, who took notes. Jack Campbell, an at-
torney for the Union, also was there, along with Trujillo.
Diamanti summarized the previous days' events, then
stated that Trujillo was being fired for lying. Trujillo
mentioned that Diamanti had given absenteeism as a
reason the day before. Diamanti denied this, and Trujillo
persisted that he had. Campbell asked if Trujillo's union
activities had been a factor. Diamanti replied that they
had not.
Campbell suggested a suspension in lieu of discharge,
to which Diamanti declared: "No, he is fired, and that's
all there is to it." Campbell asked if Respondent would
"consider taking him back." Diamanti replied: "Trujillo
will never be able to work . . . in this coal mine."
19 Diamanti testified that Trujillo vwould have gotten the time off with-
out benefit of the misrepresenlation
20 Trujillo is credited that Diamanti said he would refer the matter "to
my legal people" for decision, as against Diamanti's testimony, echoed bh
Smith, that Diamanti said he could not accept Trujillo's lying and would
be giving him a letter of suspension swith intent to discharge. The weight
of plausibility is with Trujillo, for such a letter did not issue for another
two days and Diamanti admittedly conferred with someone about the
mailer during the intervening day
21 Budd is credited that Diamanti explained the discharge in thesc
terms, as against Diamanti's failure to describe this meecling in an) detail
and Trujillo'%s testimony that Diamanti referred only to his missing "too
many days" It is unlikely that Diamanli. ha. ing caught ' rujill hin i1 lie.
would fail to advanice that ;is at least one of the reas,ons
Referring to Trujillo's attendance, Smith offered that,
when one man misses work, it hurts the whole crew by
leaving it "short a man." Trujillo responded that his
crew had been short as long as he had been on it; and
that another employee, John Worley, had missed a lot of
work without adverse consequences. Diamanti stated
that Worley had had medical excuses. Campbell then
asked for the reason, again. why Trujillo was being fired.
Diamanti answered that it was for lying. Trujillo was
told, at the close of the meeting, that he would be in-
formed in writing of the outcome.
This letter, dated March 9 and signed by Budd, fol-
lowed:
On March 8, 1979, you were suspended from our
payroll with the intent to discharge. On March 9.
1979, you were given a review by the mine man-
ager, at which time you were represented by your
attorney.
After careful consideration of this matter, it is the
decision of this company that your employment
should be terminated.
Casey was not consulted regarding the discharge, and
learned about it from Trujillo. A day or two later, Dia-
manti told Casey that Trujillo had been fired "because
he lied to us." About a week before the present hearing,
Smith told Casey that Trujillo had been discharged be-
cause of his "high rate of absenteeism, and partly in the
last week or two he was there, he missed a week and
went and seen his father."
Diamanti knew of Trujillo's union sympathies at rele-
vant times-"it was a common fact that he was having
people sign cards, or trying to get people to sign cards
for the Union; he never . . . did anything to hide it." As
mentioned above in connection with Donley and Kalvar.
Diamanti testified that he was of the impression that
those two, along with Barrington and Trujillo, had been
the only ones "pushing" the Union.
Concerning job performance, Casey testified that Tru-
jillo "was starting to work out pretty good" at the time
of discharge.
Conclusion: It is concluded that the suspension and dis-
charge of Trujillo violated Section 8(a)(3) and (1) as al-
leged.
This conclusion is based on the totality of these fac-
tors:
(a) It has been established that Respondent bears a
union animus capable of discharge, as witness Donley
and Kalvar.
(b) By discharging Trujillo, Respondent had eliminat-
ed three of the four known union "pushers."
(c) Trujillo's lying was not serious misconduct. Re-
spondent admittedly was not induced by it to grant him
time off he otherwise would not have received.
(d) The unfavorable references to Trujillo's absences,
before and after the lying was known, even though they
generally had been authorized, suggest an overly eager
groping to make a case against him, and a realization
that the lying alone was of doubtful sufficiency.
ht I
)EttCISI()NS ()F NATI()NAL I.ABOR REI.AlIONS B()ARI)
(e) The withholding of a decision until Respondent's
"legal people" could be consulted, in a seemingly routine
situation, likewise indicates a lack of confidence in the
sufficiency of the stated reason, and the presence, as
well, of nonroutine-i.e., union-considerations.
(f) Diamanti's flat refusal to consider a suspension in
lieu of discharge, and his summary dismissal of any possi-
bility of eventual rehire, displayed a rigidity out of pro-
portion with the professed reason for discharge, particu-
larly since Trujillo had developed into a "pretty good"
employee.
CONCI.USIONS OF LAW
Respondent violated Section 8(a)(l) of the Act, as pre-
viously concluded by:
(a) Asking employees if they knew of anyone on their
crew "that is pushing the union"; if they would "check
around and see if there is anybody pushing unions"; and
if specified coworkers had been "talking union."
(b) Giving an employee the impression that his union
activities were under surveillance by returning his signed
union cards to him, and by warning him to "be careful"
about his union activities after telling him of management
comments about his passing out union cards.
(c) Threatening an employee with discharge should he
post notices of a union-sponsored marathon, and threat-
ening another employee that he "could get run off the
job for taking part in the union activity."
(d) Demanding that an employee remove a union
sticker from his locker.
(e) Requesting that an employee make available an af-
fidavit he had given to an agent of the NLRB.
(f) Announcing an across-the-board wage increase in
January 1979 to undermine support of the Union.
Respondent violated Section 8(a)(3) and (1) of the Act,
as previously concluded by:
(a) Granting an across-the-board wage increase, effec-
tive March 1, 1979, to undermine support of the Union.
(b) Suspending Carvel Donley and Daniel Kalvar on
October 5, 1978, and discharging them on October 19,
because of their union activities.
(c) Suspending Leonard Trujillo on March 8, 1979,
and discharging him on March 9, because of his union
activities.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this proceeding,
and pursuant to Section 10(c) of the act, I hereby issue
the following recommended:
ORDER 2 2
The Respondent, Roadside Mining Corporation a/k/a
GEX of Colorado, Inc., Palisade, Colorado, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
2Z All outstanding motions inconsistent with this recommended Order
hereby are denied. 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 findings. conclusions. and recommended Order herein shall. as
provided in Sec. 102.48 of the Rules and Regulations., he adopted bh the
Board and become its findings., conclusion", and Order, and all obhjections
thereto shall he deemed waived for all purposes.
(a) Asking employees if they know of anyone on their
crew "that is pushing the Union"; if they would "check
around and see if there is anybody pushing unions"; or if
specified coworkers have been "talking union."
(b) Giving employees the impression that their union
activities are under surveillance by returning their signed
union cards to them, or by warning them to "be careful"
about their union activities after telling them of manage-
ment comments about their distribution of union cards.
(c) Threatening employees with discharge should they
post notices of a union-sponsored marathon, or threaten-
ing employees that they "could get run off the job for
taking part in the union activity."
(d) Demanding that employees remove union stickers
from their lockers.
(e) Requesting that employees make available affidavits
they have given to agents of the NLRB.
(f) Announcing or granting wage increases to under-
mine support of the Union. 23
(g) Discharging, suspending, or otherwise discriminat-
ing against employees for engaging in union activities.
(h) In any like or related manner interfering with em-
ployees in their exercise of rights under the Act.
2. Take this affirmative action:
(a) Offer to Carvel Donley, Daniel Kalvar, and Leon-
ard Trujillo, immediate and full reinstatement to their
former jobs, or, if those jobs no longer exist, to substan-
tially equivalent jobs, without prejudice to their seniority
or other rights and privileges, and make them whole for
any loss of earnings or benefits suffered by reason of
their unlawful suspensions and discharges, with interest
on lost earnings.2 4
(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 rec-
ords necessary to analyze the amount of backpay and
benefits owing under the terms of this Order.
(c) Post at coal mines near Palisade, Colorado, copies
of the attached notice marked "Appendix."
25 Copies of
said notice, on forms provided by the Regional Director
for Region 27, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
::' Nothing herein shall be construed. however, as requiring that Re-
spondent rescind the unlawful wage increase
:4 Backpay is to be computed in accordance with F W Hoolworth
Company. 90 NLRB 289 (1950). with interest to be computed as set forrth
in Florida Steel Corporrtion. 211 NLRB 651 (1977) See generally Ivis
Plumbing & Hlatring Co., 138 N. RB 716 (1962).
e' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National l.ahbr Relatioins Board" shall read "Posted Pursu-
ant to a Judgmelt of the United S;les Court of Appeals Enforcing ail
)rder if the National L ahor Relations Board.-
602
GEX OF COLORADO, INC
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 27, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
6()3