Maidsville Coal Co., Inc.

National Labor Relations Board - Board Decisions

Sep 1, 1981

257 N.L.R.B. 1106 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Maidsville Coal Co., Inc. and United Mine Workers
of America, District 31. Cases 6-CA-12289 and
6-CA-12533
September 1, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On March 16, 1981, Administrative Law Judge
Robert G. Romano issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief. The General Coun-
sel and the Charging Party each 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 Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
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
We agree with the Administrative Law Judge that a fair election has
been precluded by Respondent's unfair labor practices, and that a bar-
gaining order is the appropriate remedy. In this regard, we note that the
Employer engaged in repeated violations of Sec. 8(a)(1) and (3) of the
Act and that these violations were of such a pervasive and extensive
nature that our ordinary and usual remedies would not erase them suffi-
ciently so as reasonably to insure the future holding of a fair election. In
particular, the evidence establishes that, at the outset of its employees'
union organizational activities, the Employer commenced a campaign de-
signed to undermine and erode the Union's majority support among its
employees by discharging four identified union supporters on the sole
basis of these employees' union sentiments. At the same time, the Em-
ployer violated the Act by interrogating employees concerning their
union activities and sentiments; by granting wage increases; by making
various promises of improved working conditions and benefits in order to
dissuade employees from supporting the Union; and by threatening em-
ployees with discharge, layoff, and other reprisals, including the cessation
or reduction of operations, if they continued to engage in activities on
behalf of the Union. Thereafter, the Employer enlisted the aid of a third
party to threaten an employee with physical harm if he continued to sup-
port the Union.
ings, t and conclusions of the Administrative Law
Judge and to adopt his recommended Order.2
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 and
hereby orders that the Respondent, Maidsville Coal
Co., Inc., Maidsville, West Virginia, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order,3 except
Under these circumstances, including the small size of the employee
complement in question and the substantial percentage of the work force
subjected to the Employer's unlawful terminations and other unfair labor
practices, we find that a bargaining order is necessary and appropriate in
order to protect the majority sentiment expressed through the authoriza-
tion cards and to otherwise remedy the violations committed. However,
as the Union did not request recognition until April 19, 1979. and Re-
spondent's other unfair labor practices are remedied by the Order herein,
we find, contrary to the Administrative Law Judge, that Respondent's
bargaining obligation arose as of April 19, 1979. See Cas Walker's Cash
Stores Inc., 249 NLRB 316 (1980), and cases cited therein at fn. 3.
Member Jenkins would, as he stated in IDAK Convalescent Center of
Fall River. Inc. d/b/a Crawford House, 238 NLRB 410 (1978), date the
bargaining obligation from either the date of the Union's demand for rec-
ognition or from the commencement of the unfair labor practices, which-
ever is necessary to remedy all the unfair labor practices
The Administrative Law Judge correctly found that Respondent vio-
lated Sec. 8(a)(1) in granting an unscheduled wage increase to, inter alia,
employee James Fain. However, we disavow the Administrative Law
Judge's characterization of Respondent's motivation for the size of the in-
crease as having been "in part" for antiunion reasons. We find the 8(a)(1)
violation because the Administrative Law Judge correctly determined
that the overall effect of the wage increase was to "interfere with, re-
strain, or coerce" Fain in the exercise of his Sec. 7 rights.
2 Nothing contained in our Order will require or authorize Respondent
to withdraw or discontinue any wage increases previously granted.
3 In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
257 NLRB No. 148
1106
MAIDSVILLE COAL CO., INC.
that the attached notice is substituted 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
WE WILL NOT unlawfully interrogate our
employees because of their union activities,
sympathies, and desires and the union activi-
ties, sympathies, and desires of their co-em-
ployees.
WE WILL NOT unlawfully grant our employ-
ees wage increases in order to dissuade them
from supporting the United Mine Workers of
America, or its District 31; and WE WILL NOT
promise our employees increased hourly
wages, improved working conditions, and
other benefits in order to dissuade them from
selecting the Union as their collective-bargain-
ing representative and/or from engaging in ac-
tivities on behalf of the Union.
WE WILL NOT threaten our employees with
discharge, layoff, and cessation or reduction of
operations if they select the Union as their rep-
resentative, and with nonrecall because of
union activities; and WE WILL NOT utilize a
third party to threaten employees with reprisal
or physical harm if they continue to engage in
activities on behalf of the Union.
WE WILL NOT discriminatorily discharge, or
cause the termination of and/or constructively
discharge, our employees.
WE WILL NOT refuse to recognize the
United Mine Workers of America, as the des-
ignated exclusive collective-bargaining repre-
sentative of an appropriate unit of employees
at our Maidsville, West Virginia, facility. The
appropriate bargaining unit is:
All production and maintenance employees
employed at our Maidsville, West Virginia,
facility; excluding office clerical employees
and guards, professional employees and su-
pervisors as defined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named labor organization as the exclu-
sive representative of all employees in the
above-described appropriate unit with respect
to rates of pay, hours of employment, and
other terms and conditions of employment of
the employees included within the appropriate
bargaining unit.
WE WILL offer Richard G. Heller immediate
reinstatement to his former job of weighmas-
ter, or, if such job no longer exists, to a sub-
stantially equivalent job, without prejudice to
his seniority and other rights and privileges;
and WE WILL make whole employees Earl F.
Bowman, William Kent Eddy, Charles L.
Trippitt, and Richard G. Heller for any loss of
earnings, plus interest, they may have suffered
by reason of the unlawful discrimination
against them.
MAIDSVILLE COAL CO., INC.
DECISION
STATEMENT OF THE CASE
ROBERT G. ROMANO, Administrative Law Judge:
These consolidated cases were heard in Morgantown,
West Virginia, on December 3-7, 1979.' The original
charge in Case 6-CA-12289 was filed on April 20
(amended on April 27) by United Mine Workers of
America, District 31 (herein the Charging Party or the
Union), against Maidsville Coal Co., Inc. (herein Re-
spondent); and the original complaint thereon was issued
on June 13. The original charge in Case 6-CA-12533
was filed on July 6 by the Union against Respondent;
and the complaint thereon was issued on August 21.
Thereafter, the above cases were ordered consolidated
for hearing.
The consolidated complaints allege that Respondent
on various dates in April and May unlawfully interrogat-
ed and created the impression of having unlawfully inter-
rogated employees as to their union activities, sympa-
thies, and desires; variously threatened employees with
discriminatory discharge, layoff, cessation of operations,
nonrecall of employees, and reprisals of physical harm;
discriminatorily promised and granted wage increases;
and promised improved working conditions and other
benefits in violation of Section 8(a)(1) of the the National
Labor Relations Act, as amended. The complaints fur-
ther allege that on April 13 Respondent discriminatorily
discharged employees Earl F. Bowman, Charles L. Trip-
pitt, Richard G. Heller, and Willard Kent Eddy, thereaf-
ter refusing to reinstate them until April 23, and that it
subsequently caused the termination of (constructively
discharged) Richard G. Heller on May 21, all in viola-
tion of Section 8(a)(3) and (1) of the Act. Finally, the
complaints allege that Respondent has refused to bargain
with the Union as the designated representative of its
production and maintenance employees as of April 19 in
violation of Section 8(a)(5) and (1) of the Act, though it
is also alleged that the Union had obtained its majority
designation earlier on April 10, and a remedial bargain-
ing order is sought as of that date in view of certain ear-
All dates are in 1970 unless otherwise indicated.
1107
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lier conduct by Respondent. On June 19 and August 23,
Respondent filed answers to the respective complaints
denying the commission of any unfair labor practices.
Upon the entire record,2 including my observation of
the demeanor of the witnesses, and after due considera-
tion of the extensive briefs filed by the General Counsel
on February 11 (dated February 6), by Respondent on
February 7, and by the Charging Party on January 31,
1980, 1 make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a West Virginia corporation with its
sole place of business in Maidsville, West Virginia,
where it is engaged in the preparation and nonretail sale
of coal. Respondent annually ships goods and materials
valued in excess of $50,000 to firms or enterprises locat-
ed within the State of West Virginia which are them-
selves directly engaged in interstate commerce. The
complaints allege, Respondent by its answers admits, and
I find that Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act. At the hearing Respondent also admitted, and I
find, that United Mine Workers of America, and United
Mine Workers of America, District 31, are labor organi-
zations within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. Respondent's operation and the stipulated
management hierarchy
Respondent has been engaged in the nonretail sale of
specialized coal to industrial users for approximately 9
years at its Maidsville, West Virginia, tipple facility.
John Petitte is president of Respondent and has occupied
such position since Respondent's formation in October
1970. Jasper Petitte is vice president of Respondent.
Charles Guseman, brother-in-law of John Petitte, has
been employed by Respondent since 1970, and, during all
material times herein (I find), was employed as superin-
tendent. On the basis of the parties' stipulations and/or
the evidence of record, I find that John and Jasper Pe-
titte and Superintendent Charles Guseman, during all
material times herein, were supervisors within the mean-
ing of Section 2(11) of the Act. The parties have further
stipulated, and I additionally find, that, during material
times herein through and inclusive of April 21, James
Casino occupied the position of day-shift foreman, and
also was a supervisor within the meaning of Section
2(11) of the Act. As of April 10, Respondent operated
just two shifts, a day shift and an afternoon shift. The
utilization of an afternoon-shift foreman is in issue. Gen-
erally, in the conduct of its above tipple operation, Re-
spondent essentially employed plant, machine, and barge
operators and a scaleman or weighmaster.
2 The General Counsel's unopposed motion to correct the record dated
January 30, 1980, is granted, and it is received as G.C. Exh. 18.
2. The appropriate unit; unit composition and
majority issues preliminarily defined
a. The appropriate unit
The complaints allege, and on this record I find, that
all production and maintenance employees employed by
Respondent at its Maidsville, West Virginia, facility, ex-
cluding office clerical employees, guards, professional
employees, and supervisors as defined in the Act, consti-
tute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
b. Composition and majority issues
It is uncontested that a bargaining demand was first
made by the Union upon Respondent on April 19. The
General Counsel and the Union additionally contend
(and it is denied by Respondent) that the Union had at-
tained collective-bargaining representative status, as evi-
denced by a valid card majority of the employees in the
above-determined appropriate unit, as of April 10. On
the basis of allegations of Respondent's simultaneous and
extensive commission of unfair labor practices in viola-
tion of Section 8(a)(1) and (3), commencing early in
April, the General Counsel and the Union have herein
requested, inter alia, in remedy thereof, a remedial bar-
gaining order as of April 10, in addition to the finding of
a violation of Section 8(a)(5) in Respondent's subsequent
refusal to bargain with the Union upon demand on and
after April 19. At these material times Respondent oper-
ated day and afternoon shifts.
In that respect, employed on the day shift and work-
ing as of April 10 were Willard Eddy, William Elliot,
Dennis Ingersoll, Howard Tennant, and Richard Heller.
Further, it is uncontested that James Fain, a recently
hospitalized day-shift employee, remained an employee,
and that Fain is thus to be included in the unit as of
April 10 (indeed as of April 19).3 Employed on the after-
noon shift as of April 10 were Earl Bowman, Kenneth
R. Roberson, Charles Trippitt, and Jeffrey Freeman. The
record clearly reveals, and I find, that employee
Bowman validly designated the Union as his exclusive
collective-bargaining representative on April 9, and that
afternoon-shift employees Roberson and Trippitt did so
on April 10, as did day-shift employees Eddy and Heller.
The parties are in major dispute over the inclusion/ex-
clusion of Heller and Freeman.
Heller was originally hired as a scaleman or weigh-
master in 1976. Following a layoff in February, Heller
was recalled to employment, but as a general yardman,
or feeder operator as Heller asserts, in place of injured
employee Fain. The General Counsel and the Union
would include Heller as a production and maintenance
a Though not appearing on the time and attendance payroll records
specifically for April 10, other record evidence reveals that Fain had
been previously employed in February and March on the day shift (ap-
parently) as a general yardman before being shot (apparently) and hospi-
talized over a weekend. Such records as were made available reveal that
Fain's absence began on March 26 (a Monday) and that he returned to
work on April 23. Fain was thus absent for about a month. Fain, who
worked until he quit on November 5, did not testify and the record re-
flects that his whereabouts were not known at the time of the hearing.
1108
MAIDSVILLE COAL CO., INC.
employee, and they would exclude Freeman on the basis
of the contention that he was the afternoon-shift foreman
and a supervisor and/or because of the special status he
otherwise is shown to have occupied in relationship to
Respondent. (The complaint herein alleges that Freeman
was a supervisor and agent of Respondent and that
through Freeman's conduct Respondent engaged in cer-
tain of the above unfair labor practices.) In contrast, Re-
spondent would include Freeman, contending that he
was not a supervisor but a production and maintenance
employee; Respondent, in turn, would exclude Heller,
contending that he was a supervisor and/or a manageri-
al, confidential, or office clerical employee.
It is readily apparent from the above and the record
otherwise4 that the parties are in essential agreement as
to the inclusion of eight employees in the unit, four of
whom had signed valid designation cards for the Union
by April 10, and four of whom had not. The major issues
of contention as raised by the parties over the unit place-
ment of Heller and Freeman are observed to involve
issues not only of unit composition, but also of the ma-
jority status of the Union itself. It would appear neces-
sary only to additionally note in passing that, although
the record reflects that an additional authorization card
was signed by one former employee, Andrew Long, on
April 11, it also reveals that another former employee,
William Randy Phillips, who (uncontestedly) occupied
the same employment status as did Long, did not sign an
authorization card. All parties appear to be in agreement
that the actual status of Long and Phillips need not be
resolved, since as a practical matter all parties would
concede that an identical status is occupied by them; and
their inclusion or exclusion could thus not affect the ma-
jority designation issue herein. In agreement with the
parties, I thus find it unnecessary to resolve their status
in this proceeding. 5 As Heller and Freeman occupied
' The parties stipulated that Eric Shreve (a day-shift welder), who ap-
pears on certain records, had earlier quit Respondent's employment on
March 21 and is not to be included in the unit. New employees Pete
Guariglia, William Howdershelt, and John Price apparently were hired
on April 18, and did not begin work until April 23. Clearly they were
not employed as of April 10. The General Counsel also correctly ob-
serves that employees who had been hired but who had not yet begun to
work as of the material date of the demand for, and refusal of, recogni-
tion and the commencement of bargaining are not to be included in the
unit for purposes of determining majority status. Cf. Western Drug, 231
NLRB 890 (1977), enforcement denied on other grounds 600 F.2d 1324
(9th Cir. 1979). The parties also clarified by stipulation that employee Ni-
cholas Myers quit Respondent's employment in August 1978, was later
rehired, but similarly began work on April 24. Accordingly, all parties
appear to be in agreement, and in any event I find, that employees Guar-
iglia, Howdershelt, Price, and Myers are not to be included in the unit
for purposes of establishing the Union's claimed majority on either April
10 or 19.
s I do note that Jasper Petitte testified that he had instructed Foreman
Casino to fire Long and Phillips, and that they had received low earnings
slips (for unemployment compensation) through the deceit of the office
clerical, Janice Cyzick. However, Cyzick, called by Respondent, testified
that Foreman Casino had told her that Long and Phillips were laid off
and could receive low earnings slips. Jasper Petitte acknowledged that hby
the time he became aware of it he simply decided to let it go. As noted
herein, Casino was not called on this or any other matters. Employee
Eddy related that Long and Phillips missed work on Thanksgiving at the
same time that Eddy did. Eddy testified that he was suspended for 3 days
after which he was returned to employment, but that Long and Phillips
were either fired or laid off and did not work again.
their employment status in a relatively small employer
operation, and since resolution of their individual status
appears to be central to the contentions of all parties, and
resultingly was much litigated by all parties, I shall ad-
dress and evaluate the record evidence of their duties
and performances only after an initial review of Re-
spondent's business and operational structure and back-
ground.
B. The Operations
John Petitte testified that when a predecessor coal
company moved from Respondent's present locale it had
left him mostly junk. There were then four to six piers in
the river and an abandoned tipple. Petitte originally
worked in Respondent's yard (with two or three other
employees), and for about 4 years he operated a highlift
(front-endloader) and loaded barges. In 1975-76 Petitte
had a preparation plant built, in 1978 he added a scale
and built a scalehouse, and in 1979 he refurbished the
river tipple, discussed infra. Petitte related that he pres-
ently spends 2-3 days at Respondent, and is still occa-
sionally active in physical work, though otherwise
roughly estimating that he regularly spends about one-
third of his time in the office, one-third at the plant and
loading operations, and the remaining one-third at his
mines, one organized by the Union (Petitte Brothers
Mining Company, Inc.) and one unorganized (Electra
Fuels, Inc.). (Still another mine, Jasper Coal Company,
was shut down in early 1979 for economic reasons.)
Broadly and physically viewed, Respondent's present
operation is thus composed of a (truck) scale for weigh-
ing incoming coal; an adjacent weighscale house, or
building, with several rooms (supply and offices); a tipple
preparation plant with plant waste-discharge settling
ponds; a yard area with some stockpiling space, two
loading facilities, a river tipple (with barge access), and a
railroad tipple (with rail access); and various equipment,
including two to three front end-loaders (highlifts). The
functional operation coal supply is purchased and
brought in by independent truckers either from the mines
owned and independently operated by the Petittes or
from independent mine producers. On arrival the raw
coal is first weighed by a scaleman (or weighmaster),
who records the tonnage received, and the coal is then
dumped for either further coal preparation or raw proc-
essing prior to loading and shipment to Respondent's
customers by barge or railroad car.
Coal dumped by a feeder near the preparation plant is
pushed or carried into a hopper by a front-end loader
(feeder) operator from which point the coal travels up a
conveyor belt into the preparation plant, which is itself
operated by a separate plant operator. At the mouth (ap-
parently an end) of the plant there are three stacker
belts. Respondent's plant has the capacity to stack only
350-400 tons. Thus, normally a second front-end loader
is kept at this location to move processed coal away.
However, it appears that the front-end loader kept at this
location to move processed coal away is one which may
be operated by anyone of several individuals. There is
considerable regular and ongoing maintenance associated
with (all) conveyor belts and rollers over which belts are
1109
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
propelled. Both have to be kept greased and/or clear to
run freely at all times. The conveyor belt lines thus have
to be regularly walked and checked; and from time to
time broken belts and rollers have to be repaired. There
is also a "Gig" or wash box in the plant where coal is
washed. Steel graded hoses have to be kept in repair. Re-
sulting slurry (from coal washing) is itself pumped under-
ground beneath railroad tracks and up a hill to a series of
settling ponds where the coal residue is designed to settle
with discharged clear water that is eventually made into
a creek which runs by the scalehouse into the river. Dis-
charged water must be periodically checked for accept-
able clarity.
As noted, Respondent has a loading facility at the
river where barges are pulled up and filled with coal by
a barge operator/loader. Movement of the barges in the
past has been either manually, by power wench, or, on
request, with the assistance of a tugboat owned by a
nearby and organized company. Respondent has a
crusher for coarse coal at its river tipple (and one at its
railroad tipple). The crusher from time to time will plug
up with fine coal at which time they must be cleaned
out. This cleaning operation is itself a two-to three-man
operation requiring electrical power disconnects by a
knowledgeable employee, and laborious prying, sledge
hammer, and shovel work by two to three employees.
Often times railroad cars, prior to their being filled at the
railroad tipple, have to be first cleaned of pellet, iron,
and other debris by shovel or spill, and the waste is then
moved away by shovel or front-end loader. The two to
three front-end loaders used in Respondent's operation
are described as old and requiring considerable mainte-
nance and/or prompt repair as they may be needed in
several locations for the operation to continue. Since
April 23 Respondent has operated three shifts. Prior to
the start of each shift, under existing governmental regu-
lations, Respondent must inspect and certify that its plant
and equipment are safe and ready for use. (The record-
ing is made on a separate preshift report.) In passing it is
noted that the weighmaster (who works the day shift)
will record on the daily report (in addition to recording
incoming coal tonnages) any and all barge and railcar
shipments, including tonnages shipped, discussed infra.
As noted, the central issues of litigation in this proceed-
ing have revolved around the status of two individuals,
Jeffrey Freeman and Richard Heller.
C. The Employment History and Duties of Jeffrey L.
Freeman and Richard G. Heller Through April 10
1. Jeffrey L. Freeman
In 1975-76 Petitte had Respondent's preparation plant
built by Interstate Engineers, a local construction firm.
Freeman was hired at that time from one of the latter's
working crews by Jasper Petitte and Guseman because
of Freeman's demonstrated welding skills and mechanical
ability. In a word, Petitte summarized that Freeman can
do everything, and Petitte testified, with much record
support, that, in addition to a varied use of such welding
skills for Respondent, Freeman can operate all the equip-
ment; he is more skilled with the high lift and (general)
machinery repair than others; he can operate the plant at
least as well as others, has loaded barges and railcars, is
the most experienced employee in electrical matters, and
handles the power disconnects; and he does other physi-
cal work, essentially doing whatever needs to be done,
including shoveling tailpieces as necessary. 6 Freeman
confirmed that he had done welding and pipefitting work
on the original preparation plant; that he was then hired
by Respondent on June 15, 1976; and that he initially
worked on the day shift as a plant operator, but also had
run a highlift and did anything else required to be done.
Following about 6 months of working on the day shift
Freeman began working on the afternoon shift where he
had continued working through early 1979.
Apart from the contentions made by the General
Counsel and the Union that Freeman also served as an
afternoon supervisor, it is clear from the evidence of
record that there was otherwise no supervisor present
throughout the afternoon shift. Nonetheless Petitte, with
corroboration from Freeman, testified that Freeman had
never been granted authority to hire or to fire, to disci-
pline, or to grant wage increases, nor recommend same;
that the work on the afternoon shift got done because
the work was basically routine; that the afternoon crew
was a closely knit experienced work force that knew
what had to be done; and (with corroboration from Gu-
seman) that the crew received such instructions as were
necessary directly (or indirectly by note) from Guseman,
who frequently worked beyond 3 p.m., or from Petitte,
who was frequently there at shift overlap or returned at
night. As otherwise described and summarized by Pe-
titte, Freeman was simply a skilled employee and a hard
worker, a go-getter with nerve, who kept the plant run-
ning on the afternoon shift mainly because of his welding
and mechanical skills, and who, because of his personal
attributes and characteristics, became a self-appointed
leadman and in the eyes of the Employer, a spokesman
for them.
Guseman confirmed that he usually worked from 7
a.m. to 3 p.m. (the day shift), but that he would stay
after 3 p.m., usually two to three times a week, and that
he was on call 24 hours a day. Guseman testified that he
was responsible for the operation of the yard, and that
he instructed the day shift employees as to what they
were to do, including deciding when maintenance work
needed to be done and also making employee reassign-
ments upon job completion. Guseman reported directly
to both Johnny and Jasper Petitte, and he testified that it
was Jasper Petitte who decided what type of coal was to
go in a given barge, and that the latter's instructions
thereon were relayed to the employees through Guse-
man. Guseman confirmed that Petitte was there most of
the time during daily operations, and testified that Petitte
was unquestionably known to be the boss. According to
Guseman, Respondent had had no prior set policy with
regard to the various authorities of hiring, firing, or
granting wage increases, though everyone recognized
6 It appears that tailpieces are actually part of the machinery located at
belt line ends and that they regularly create coal spillages. In any event.
coal at certain locations would pile up under the belt. and the coal then
had to be manually shoveled out from time to time. Such a work assign-
ment is herein referred to as shoveling tailpieces.
1110
MAIDSVILLE COAL CO.. INC.
that Petitte was the individual in charge, and before any-
thing happened it went over Petitte's desk. Nonetheless,
Guseman also testified that hiring had theretofore been
accomplished by the Petittes and himself. (Guseman's
variant testimony as to firing and discipline by himself
and Freeman is deemed too inconsistent to be disposi-
tive.)
According to Guseman, Casino, though assigned and
working (since April 23) as a plant operator on a newly
instituted night shift, had formerly worked with him as a
foreman on the day shift. Guseman confirmed that when
necessary he had left general instructions with Casino
(directly or indirectly by note) as to what Guseman
wanted done on the day shift, and he (significantly) ac-
knowledged that general instructions were similarly left
by him for Freeman as to what work he wanted done by
the afternoon crew. While confirming that Freeman had
performed various physical work (which none of the em-
ployees herein deny), including shoveling tailpieces, Gu-
seman acknowledged that (admitted) Supervisor Casino
had similarly done as much on the day shift, and, indeed,
that Guseman himself also had shoveled tailpieces,
though only when necessary.
Employed on the afternoon shift with Freeman were
feeder operator Trippitt, plant operator Roberson, and
barge operator Bowman. (Bowman and Trippitt were
called as witnesses by the General Counsel and Freeman
and Roberson by Respondent.) Trippitt testified that,
when he spoke to Guseman about a job and was hired (I
find on May 22, 1978), Guseman informed him that Free-
man was the afternoon-shift boss. Trippitt also testified
that when he reported for work it was Freeman who
took his name and social security number, who told him
what his pay would be, $4.50 per hour, and who then
showed him what he was to do, telling Trippitt that
every man should know what to do on the job. Freeman
initially put Trippitt to work in the plant, hosing and
shoveling tailpieces, and later directed Trippitt to learn
how to run the highlift. The record reveals that Trippitt
has received three raises. Trippitt testified that on the
first two occasions he had asked Freeman for a raise,
that Freeman had said he would check into it, and that a
week or so later Freeman had come back to him and
said the raise would be on Trippitt's next check-and it
was. 7
Trippitt also testified that, when he wanted to leave
early, he informed Freeman, who then told him to go
ahead and leave. On other occasions Freeman instructed
him to work all night to get the barges loaded, and told
Trippitt that if he did not want to work not to bother to
come back. On other occasions Freeman told Trippitt to
quit work before the regular end of the shift at 11 p.m.
(e.g., because a barge was struck or power was out).
Trippitt also testified that Freeman has frequently taken
him off one job and put him on another, e.g., while run-
ning the loader, and that Freeman has told him (and
others) to go to the river and pick slate, to gauge barges,
or to do maintenance work, grease the belt (rollers),
shovel tailpieces, or change filters. Freeman was called
The first rate received after 3-4 months was for 50 cents., and the
second was for 75 cents. The special circumstances under which Trippitt
received the third raise are discussed infra.
when there were problems at work, e.g., when the
crusher became plugged; or for instructions as to the
type of coal that was to be put into a barge.8 Trippitt
also testified that he has been sent by Freeman to pick
up parts.
Earl Bowman, herein Bowman, testified that on
August 7, 1978, he received a call from his father, herein
Bowman Sr., who operates a tug (Donna Lee) for Con-
solidated Coal, advising him that Bowman Sr. had heard
there was a barge gauger job opening at Respondent.
They went there that evening about 5 p.m. At that time
Respondent was building its (temporary) scalehouse, and
Petitte and Freeman were both present. Bowman's ver-
sion is that his father asked Petitte if he was doing any
hiring. Petitte advised him to talk to Freeman. 9 Bowman
recalled that his father then asked Freeman if they were
doing any hiring; and Freeman asked Bowman if he
knew how to run a front-end loader. Bowman replied in
the negative, but added that he was not afraid to learn.
Freeman told Bowman to come back the following after-
noon with his hardhat, hard toes (shoes), and lunch
bucket. Bowman acknowledged that Petitte was present
while Freeman spoke to him, but Bowman repeatedly
could not remember if Freeman had talked to Petitte in
the interim; i.e., before telling him to report for work the
next day. Respondent's version (Petitte and Freeman) is
essentially that it was at the direction of Petitte that
Freeman had made the inquiry of the Bowmans as to
what they wanted; that Freeman reported back to Petitte
before Bowman was hired, and that Petitte had thus
done the actual hiring. In the light of the unsureness on
Bowman's part as to whether Freeman had conversed
again with Petitte before Bowman was told he was
hired, I conclude and find that Freeman did so. Howev-
er, the record also reflects a candid acknowledgement by
Petitte of an initial unfavorable impression as to the
physical suitability of Bowman for the job, and that Pe-
titte asked for the opinion of Freeman, who pointed out
the favors 't that the tugboat Donna Lee had done for
Respondent, along with the observation that they did
need some river help at the time. In my view the eviden-
tiary circumstances described above reflect an effective
hiring recommendation. However, the issue of Freeman's
status need not be left resolved on such limited basis.
On August 8, 1978, Bowman reported for work at 3
p.m. According to Bowman, Freeman first recorded
Bowman's name and social security number, and then
took Bowman through the yard to the plant. There Free-
man introduced Bowman to loader/operator Trippitt,
telling Trippitt that he was to show Bowman what to
' On the other hand, Trippitt candidly acknowledged that in the spring
of 1979, while Freeman was welding in remodeling the tipple at the river
(some 100 yards from the plant), the employees could and did run the
plant without Freeman just as well as if he were there. However, the
record reveals that Freeman was on call even then for breakdowns. Trip-
pitt also testified that more recently Superintendent Guseman and Free-
man were rotating on the day and afternoon shifts every 2 weeks.
9 On one occasion Bowman said that Petitte initially replied "Yes," and
on another that he did not know. to ask Freeman.
'o Consolidated Coal has river tipple facilities about 300 yards from
Respondent On several occasions barges arriving at Respondent's tipple
for loading had become hung up because of river dredging. Upon re-
quest, they were brought in by the tug Donna Lee.
111I
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
do, and advising Trippitt that Bowman would be in there
for a couple of weeks on a trial basis. During that period
Bowman shoveled tailpieces under belt lines, and hosed
down coal dust in the plant basement. Bowman was
thereafter put on loading barges on the afternoon shift,
which at the time of hearing he had been doing for over
a year, and proficiently so. Bowman testified that he re-
garded Freeman as his boss and a foreman. More signifi-
cantly, he testified credibly that one day in October
(1978) Freeman came to the barge and (without an earli-
er request by Bowman) told Bowman that he was due
and deserved a raise, that Freeman would tell Guseman
to tell Petitte that, and that 2-3 hours later Freeman
came back and told Bowman that he had a $1 raise in
pay effective immediately. (Petitte confirmed that his ini-
tial impression was incorrect and that Bowman has
proven to be an excellent worker.) Bowman testified that
occasionally Freeman had told the afternoon employees
that they could quit early (when there was no coal to
clear and all agreed to go home), that on other occasions
Freeman has told them they were to do other jobs (e.g.,
perform maintenance, grease belts, shovel tailpieces, or
hose down the plant), that, when the barge was stuck,
Freeman had told Bowman to tie it up and to go up to
the plant and clean there and that in March-April Free-
man had also told him to work overtime; and Bowman
corroborated Trippitt that Freeman had told the employ-
ees that, if they did not work overtime, they might just
as well not come back to work because they would be
fired. Bowman also testified that Freeman has taken him
off one job and put him on another; e.g., if he was work-
ing on railroad cars and a barge came in, Freeman would
send him down to the barge, saying that Freeman would
finish up on the railroad cars. Freeman has also told
Bowman to get a front-end loader and clean up the nut
coal (stock), or directed him to pick up supplies.
Bowman related that, on another occasion in March or
April at a time when there were three barges in, Free-
man had also told the employees that they had let him
down because he had told Petitte that they would load
all three barges, but they had only loaded one. Bowman
responded that they were having problems at the time,
but Freeman nonetheless thought they should have
loaded the barges. Bowman related that there was an ar-
gument between them. On the following day Guseman
came up to Bowman and inquired as to what had hap-
pened. Bowman told him. Guseman then told Bowman
that there was no reason why Bowman could not get
along with Freeman, and that Guseman thought Free-
man treated Bowman pretty good down there. Bowman
agreed.
Freeman testified that he had received vocational-tech-
nical and military maintenance training in auto motors,
front-end loaders, trucks, and heavy equipment, and that
over the years he had obtained other various certifica-
tions; viz, a state-certified welder certificate, an electri-
cian's surfaces certificate, and gas detection, mine safety,
and first aid certificates. Freeman related that he was
" Somewhat less convincing, because of the nature of the leading ques-
lion eliciting it, was Bowman's additional testimony that Guseman explic-
itly stated to him (also) on this occasion that Freeman was the boss of the
afternoon shift though Guseman had no recollection.
thus qualified to fill out the preshift (inspection) reports
for Respondent, noting that such have to be additionally
countersigned usually by Superintendent Guseman. 12
Freeman related in summary of his duties that he per-
forms maintenance work on the equipment, welds and
fits pipe, loads railroad cars and barges, checks the
ponds, and shovels tailpieces, and that he knows how to
run the scales and has on occasion weighed trucks (as
have certain other employees). However, Freeman
denied that he had authority to hire or fire employees.
Freeman related that he arrives at work usually at 3
p.m., thus at a time when the Petittes and Guseman are
there; and he asserts that they tell him what they want
done, either directly or by note left at the scalehouse or
passed on to him by Heller or office clerical Nikki Rog-
gish, which he then passes on to the men, that he tells
the men what to do because he is instructed to tell them
what to do, and that one of the Petittes may direct him
to see if the men will work overtime (and he will in-
quire), or on other occasions the Petittes may require the
crew to work overtime, which he then only passes on to
the crew.
Employee Roberson related that following his retire-
ment from the military he was hired by Respondent, and
that he has been employed by Respondent for a little
over 2 years. During that period he has regularly
worked as plant operator on the afternoon shift, though
he has also performed other work, including operating a
highlift and doing some welding on the third shift. Ro-
berson confirmed that he had received instructions di-
rectly and indirectly from Guseman or, after Heller left,
from Roggish, and that employee duties were more or
less routine. Roberson related that in the event of a plant
shutdown he would notify Guseman. Other testimony of
Roberson, however, then candidly acknowledged that
Guseman was mostly present for only the first one-half
hour of the afternoon shift; that normally Roberson re-
ceived his orders from Freeman, who told Roberson
what to do on the shift; that Freeman, from time to time,
took him off one job and assigned him to another (e.g.,
from plant operation to running a highlift or loading
barges or trucks); and that Roberson informed Freeman,
who took Roberson's place with the end of shift, when
12 In contrast, Heller made no such inspections, and testified that he
had filled out the (routine) preshift reports for Foreman Casino, and
signed Casino's name, at Casino's direction. Roggish in that respect testi-
fied that there was a preshift or shift report which supervisors had to
keep and that she did not put any information in that book. Heller has
also filled out the form for Freeman, which the latter then signed.
13 Roberson described plant operation and his related duties as follows:
Coal is fed into the plant through a hopper by a highlift operator, nor-
mally Trippitt, though Roberson and Freeman have on occasion also
done this work. The plant itself is fed by conveyor belt, and coal is proc-
essed through a crusher and carried (out) by belt. The plant operator reg-
ulates the coal flow. However, Roberson also explained that, if coal is
not continuously fed into the hopper, the plant itself has to be shut down,
in sequence (bled down through a series of switches and valves), to mini-
mize damage to the equipment. Thus, Roberson related that if he were to
observe the highlift (feeding) operation shut down, he would contact the
feeder by phone to determine what was wrong; and, if coal was not con-
tinued to be fed into the plant, Roberson would then automatically shut
the plant down. If the situation were one where there was no coal to
feed into the plant, it was also shut down, and employees would then do
whatever maintenance work they could.
1112
MAIDSVILLE COAL CO., INC.
he needed to leave early. Thus, Roberson also testified
that if the plant was shut down, and Freeman was pres-
ent on the premises, Freeman was the one first notified,
and that Freeman would then decide what maintenance
work was to be done to get the plant back in operation,
and whether Roberson was to do some other work or to
go home. According to Roberson, if Freeman was not
there, usually Guseman was. Otherwise he would leave
word for Guseman or Freeman (or Casino) for further
advice or instructions as to what he was to do; e.g.,
whether (in case of a highlift breakdown) to seek a high-
lift from another area, or whatever. Finally, Roberson
revealingly testified that, though Freeman did more me-
chanical work and Guseman more supervisory work, the
one job that Freeman did more than another was to
oversee everything and check on what the afternoon
shift was doing and whether they needed equipment,
cars, or whatever; and that Freeman regularly told the
afternoon-shift employees what they were to do, not vice
versa.
Freeman, an hourly paid employee (unlike Heller),
during the UMW strike which commenced on December
7, worked longer than other hourly employees, but only
until December 21, before layoff. However, prior to the
last raise received (effective April 4), Freeman was the
highest paid hourly employee at $7.75 an hour. Addition-
ally, this record reveals that Freeman had initially rented
a house from Petitte for $200, but had since lived in the
house without rent as part of his salary. (He has per-
formed some caretaker functions and made some proper-
ty improvements; and he has a first option to buy.)
Freeman himself has otherwise acknowledged that em-
ployees wanting time off have reported their leaving
early to him; that on occasion he has worked the crew
overtime on his own, e.g., to repair equipment when
broken down; that he does spend most of his time
moving around ensuring that plant operations are kept
running; that he can charge parts up to $100 on his own;
that he has sent other employees out to get parts; that
Guseman does rely on him to make sure the work for
the afternoon shift gets done because Guseman knows
that Freeman knows how to get things done; that the
employees have openly referred to him as foreman; that
he has told employees during a shift to do certain work;
that on other occasions, e.g., the work having been com-
pleted, he and the crew have gone home early; and that
employees regularly have asked him for raises, and he, in
turn, has spoken to Guseman (or Petitte) on their behalf
and in doing so has reported how the employees have
been working.
Guseman, too, has acknowledged that he left instruc-
tions with Freeman (as he did with Casino) because
Freeman got things done running the shift and usually
saw to it that the work was done, and that the employ-
ees knew that Freeman was to let them know what they
were to do, and understood that Freeman was the person
whom Guseman was depending upon to get things done
on the afternoon shift. Consistently, Guseman testified
that it would not surprise him, nor would he regard it as
unusual, that employee Roberson would approach Free-
man with a request for personal time off, and Guseman
(eventually and essentially) acknowledged that Freeman
had approached him at different times about raises for in-
dividual employees and Guseman had used Freeman's
evaluations therein."4 Finally, Petitte acknowledged that
he had been aware that Freeman had let another employ-
ee leave early and had not subsequently reprimanded
Freeman for doing so (indeed, Petitte had no reason to
question Freeman's authority to do that); that he does
have regard for the opinion of Freeman as to what is
going on down there; and that he assumed that Guseman
had talked to Freeman as to his opinion on wage in-
creases; and that Guseman had used that opinion as a
basis to establish wage increases.
This evidence and other evidence of record has thus
wholly convinced me that prior to April 10 Jeff Freeman
was more than simply a self-appointed working leadman.
Thus, this record makes it abundantly clear that Free-
man regularly directed the afternoon-shift work force,
and that he exercised independent judgment in doing so.
Moreover, whatever may have been his personal and
ability characteristics that led to his occupying such posi-
tion, his performance in that capacity was with Respond-
ent's clear awareness and equally clear implied concur-
rence and consent. It is also readily apparent that he oth-
erwise exercised supervisory authority: In exercising his
independent judgment in granting time off to individual
employees; in occasionally regulating the usual hours of
the shift, reducing them when slack, and working the
shift overtime when desired (and warranted); and (I find)
in effectively recommending pay increases for employ-
ees. Accordingly, I conclude and find that, during all
times material herein prior to April 10, Jeff Freeman oc-
cupied the position of working foreman, and that Free-
man was a supervisor within the meaning of the Act.'5
Having so reached this conclusion of supervisory status
which carries with it an automatic exclusion from the ap-
propriate unit herein, I need not reach other arguments
advanced by the General Counsel and the Union herein
that Freeman during material times occupied a special
status with Respondent which carried with it substantial
interests so divergent from the interests of other unit em-
'4 Guseman testified that he had to confer with Petitte, and usually did
so, though he also asserts that he did not do so before granting certain
raises to Freeman, Tennant, and Roberson (effective April 4), discussed
infra. Although at one point asserting that he did not recall discussing the
matter (of granting raises) with Freeman, asserting rather that he used his
own judgment, Guseman then otherwise testified, and I find much more
plausibly so on this entire record, that, since Freeman worked more with
the employees than he did, it was possible that he would have asked
Freeman what Freeman thought, and that he had used it (Freeman's eval-
uation) in formulating whether he (Guseman) should go on to Petitte to
get an increase approved.
'' Additional record evidence of actions taken subsequent to April 10
only buttress such conclusion. Thus, on Friday, April 13, as discussed
infra, Freeman delivered discharge letters to employees Bowman and
Trippitt. Petitte would seek to minimize this action as the mere carrying
out of an instruction given an employee, as with Heller, also discussed
infra. I disagree with such a cavalier view of that circumstance. The
record fact is that it was Freeman who brought his crew employees
(Trippitt and Bowman) to the office and there notified them of their dis-
charge; as notably also did Foreman Casino the next day to Heller, and
Guseman the following day to Eddy. I further note in passing that Petitte
acknowledged that he was aware that Freeman more recently sent an in-
dependent truckdriver home for engaging in horseplay, an action which
was neither countermanded by Guseman nor censured subsequently by
Petitte
1113
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees as to reflect a lack of community of interest with
those unit employees and consequently clear warrant for
Freeman's exclusion from the unit on that account
alone. 6
2. Richard G. Heller
Heller was initially hired by Respondent in November
1976, and worked as a scaleman or weighmaster until he
was initially laid off on February 24. Heller describes the
weighmaster's duties as follows: Essentially his duties in-
cluded the daily weighing and recording of all coal ton-
nages that came in by (triaxle) dump truck from individ-
ual supply mine sources; and the daily recording of such
coal tonnages as were shipped out to Respondent's indus-
trial customers in barges and railroad cars. In regard to
such shipments, recordings were regularly made by
Heller as to the identity and number of barges that ar-
rived, were loaded, and then pulled away by tugboat, as
well the identity and number of railroad cars similarly
received, loaded, and pulled away. Correlatively, Hell-
er's duties involved notifying a tugboat dispatcher in
Pittsburgh, Pennsylvania, who would arrange for a tug
to pull the barges readied for shipment. According to
Heller, railroad cars were scheduled for departure on a
certain day and routinely readied in advance thereof. In
contrast with other unit employees who worked out in
the yard or in the preparation plant, Heller essentially
conducted most of his duties at the scalehouse, working
at a desk or standing behind scales. Heller's duties in-
cluded making entries in two daily forms, viz, a daily
mine report and a daily report, on which he entered es-
sentially the above coal tonnages received and shipped
and employee (general) attendance clarifying, however,
that he kept such employee attendance records regularly
only for the day shift. " Heller's additional responsibility
16 Essentially the record does establish that Freeman during material
times had occupied a mutually beneficial and increasingly significant sep-
arate business relationship with Respondent. Thus, Petitte acknowledged
that in the past 2 years Freeman has been independently contracted two-
three times to perform work for Respondent, e.g.. to build (weld and in-
stall) iron pipe gates, and further acknowledged that Freeman as Free-
man Welding Service had done welding work for other Petitte interests.
including welding work on a strip job in Pennsylvania for the Petittes.
The record reveals as well that Freeman Welding Service has performed
welding work for other independent concerns (all with conceded business
relationships with Petitte). More materially and significantly, Freeman
had personally contracted with Petitte to refurbish the river tipple for
Respondent about April 1979. (Since Petitte recalled that the job took 2-
1/2 months to complete and he otherwise related that the refurbished
tipple had been in operation for 5-6 months at the time of the hearing, it
would appear that this work had begun sometime in April 1979.) Free-
man, in turn, acknowledged that he had an independent business which is
known as Freeman Welding Service; and which pursuant to an oral con-
tract had supplied Respondent, inter alia, with a welding crew and equip-
ment for an agreed price, with Respondent purchasing required supplies.
The record reveals that on the tipple job Freeman himself worked
(welded) from 7 a.m. to 3 p.m. (and on weekends) as Freeman Welding
Service, and then on weekdays at 3 p.m. continued in the same work (ex-
cepting interruption for other required repairs) on Respondent's payroll
at his usual hourly rate. Freeman, as Freeman Welding Service, had also
provided extra work to other employees of Respondent by employing
them to do this work on weekends, all with at least Respondent's aware-
ness.
" As described by Respondent's controller, Frabutt, the above reports,
examples of which (post April 19) are in evidence, are a two-page daily
record. According to Frabutt, the first page entitled "Daily Mine
Report" served as a daily employee status report and an employee per-
was to total up the shift hours that were worked by the
day shift and forward the same to the office. Heller
would receive relevant informational input from Guse-
man or Casino, from his personal observation, or from
the employee directly. Heller testified credibly (I find)
that, if he had a question as to when an employee had
left for the day, he would simply inquire of supervision.
While employees would turn in their written excuses for
absences to Heller (e.g., from a doctor), Heller testified
that he would just (as the form directed) attach and for-
ward them, or, in the case of an oral excuse, he would
make a notation of the offered excuse when and as ad-
vised by the employee. However, Heller testified that he
had no authority to approve or disapprove of any ab-
sence excuse, nor to reprimand or to discipline any em-
ployee therefor, but his function was only to note and
forward the same to the office.
Respondent's operations also occasionally involved
trucking of coal on its premises from a hillside process-
ing tipple, in connection with the loading of railcars or
barges, or from stock areas. In that connection, Heller
would contact certain truckers by phone to provide such
services when directed. In that regard, however, Re-
spondent maintained a telephone file on such truckers to
whom Heller would place random calls until Heller had
secured the specified number of truckers. However,
Heller testified that he had no authority to establish for
Respondent rates at which these truckers were to be
paid. It is uncontested that none of these truckdrivers
was paid for his services when provided as employees of
Respondent. Moreover, I find on the record before me
that they were not employees of Respondent but rather
independent contractors. Heller also had certain respon-
sibilities in the testing of coal samples, which required
someone (Heller or another) to go out to the yard and
obtain a sample from the coal stock. Heller would bring
the sample back to the scalehouse, and then notify the
test lab to pick up the samples for testing. Testing results
would be subsequently phoned back to Heller, who
would then pass the results on to (iuseman or to the Pe-
tittes. However, Heller testified without apparent contra-
diction (and he is otherwise supported by the record)
that it was certain members of Respondent's management
who determined what coal was to be sampled and tested
and when such was to be done.
Heller normally worked regular day-shift hours (7 a.m.
to 3 p.m.) though he was given a standing instruction by
Petitte that he was to work until 5 p.m. when required to
handle coal trucks scheduled to arrive later (principally
hauling from outside coal producers). Prior to February
24, Heller was paid a salary of $525 biweekly (without
overtime), which may be compared with (admitted) day-
sonnel file for Respondent in that it listed (generally) the number of man-
hours worked per shift, any individual absences and reasons therefor, and
the superintendent's time. The second page entitled "Daily Report" is a
record of the tonnages, which he referenced as being Respondent's sole
documentation of coal production received from the mines (apparently
excepting actual weigh slips, copies of which Roggish testified she re-
tained at the scalehouse), and, in any event, which also served as custom-
er billing input for the coal tonnages shipped out by rail and barge. Fra-
butt also testified that these reports were used by him in the preparation
of cost analyses; e.g., tons (loaded) per man.
1114
MAIDSVILLE COAL CO., INC.
shift Foreman Casino's biweekly salary rate of $1,000.1s
Heller also testified that he (unlike Roggish who suc-
ceeded him as weighmaster) occasionally performed
some operator jobs, including repair work. Although Pe-
titte related that Heller had no experience running the
plant and loading barges and Heller himself acknowleged
that he performed operator work on the belt and repair
work infrequently, Heller did testify without convincing
contradiction that he did do some operator work or did
help operate equipment sometimes (on Saturday). In any
event, Heller has otherwise testified convincingly, and I
find, that he had work-related contact with other unit
employees every day.
Heller was notified by Petitte that he was to be laid
off as of Saturday, February 24. At that time a supply
mine which had supplied coal for the processing tipple
was closed. According to Heller, Petitte advised Heller
at that time that it might be 2 weeks or more before
Heller would be hired back, and told Heller that it
would not be held against him if Heller looked for work
elsewhere. Heller was the only yard employee on the
day or afternoon shift who was laid off. (There was no
third shift working at this time.)
Petitte confirmed that in early 1979 he had to shut
down the Jasper Coal Company mine for economic rea-
sons and he related that this condition led him to make
certain other changes in his office staff. Thus, Petitte tes-
tified that he released one (of four) office clerical out-
right and transferred another office clerical, Nikki Rog-
gish, who had prior experience as a weighmaster, to take
Heller's place as weighmaster. 1' Petitte's version of Hell-
er's layoff announcement and arrangements made with
him at the time was that Petitte approached Heller at the
scalehouse and informed Heller that due to market con-
ditions Pettite was going to have to cut back. According
to Petitte, Heller was not surprised as he could see the
coal piling up at the time. Petitte told Heller that due to
personal reasons, viz, that some of the office staff were
friends of the family, Petitte was going to have to reshuf-
fle them, and he was going to have to lay Heller off ef-
fective that Saturday, February 24. However, Petitte
told Heller that he had done a good job; that Heller was
subject to recall when the market picked up, which Pe-
titte thought would be in 2-3 weeks; and that Petitte was
going to give Heller $300 (which he later increased that
afternoon to $500) to tide Heller over. According to Pe-
titte, he also told Heller that he would probably give
Heller a sizeable increase in salary when he returned, if
the market warranted, to help make up for money Heller
lost. This latter alleged promise of a future compensable
'" The record does reveal that, during a UMW strike in the general
coal mining industry which occurred a year earlier, Heller was continued
on salary during its duration (as were all salaried employees).
" Roggish had been in the Petittes' employment for 7 years, and only
since May 1978 working as a payroll and accounts payable office clerical.
Prior to that Roggish had worked as a weighmaster in another Petitte
operation. (Heller had thus been more recently employed as such.) Rog-
gish recalled that it was about the middle of February that Petitte told
Roggish that he was cutting back on the work force, and told her that,
since she had previously worked as a weighmaster, he wanted her to go
down and weigh coal. She recalled that she worked there until Heller
(following interim employment in the yard) came back as the weighmas-
ter, and that she subsequently returned there to work with him only a
few days before Heller quit on May 21
loss increase on his return is a matter of major factual
dispute by Heller. Thus, although not contesting Petitte's
testimony that Heller was given S500 at the time of his
layoff to tide him over, Heller testified that Petitte did
not at the time specify what job he might be recalled for,
and Heller categorically denied that Petitte had at that
time promised Heller a new salary, let alone $1,280 bi-
weekly when he returned as weighmaster.
After about 5 weeks of layoff, Heller was recalled for
employment on March 29, though not as weighmaster,
but for yardwork. Whether recalled as a general yard-
man as such, or as a feeder operator, it is clear that
shortly upon his return Heller began running a front-end
loader, working as a feeder operator, and performing the
same work as had been performed by the recently in-
jured day-shift employee, James Fain. For this work
Heller was paid at the rate of $5.50 per hour (the same
as Fain), and he received overtime. Heller testified with-
out contradiction that when foreman Casino notified him
of the recall to fill Fain's job Heller inquired of Casino
what Heller would do when Fain returned, and that
Casino replied only that they would have to wait and
see. Thus, Heller asserts that at the time he took the
yardman job he actually did not know if he would be
again employed as the weighmaster. However, I find
that such employment was temporary.20
Petitte testified without subsequent contradiction that
it was approximately after the third week of Heller's
layoff that Heller started showing up at the yard looking
for work. According to Petitte, Guseman and Casino
(who had such authority) hired Heller back, without Pe-
titte's prior awareness, to help Heller over a financial
crisis. Petitte testified otherwise that he had (always) in-
tended to call Heller back as a scaleman.
During her periods of employment as weighmaster,
discussed infra, Roggish essentially comparably described
her duties as weighmaster as follows: Roggish kept daily
records of how many hours each employee worked,
noting who was off and why and if they called in. She
also prepared the daily tonnage reports. She weighed the
coal on incoming trucks, recorded it, and on the follow-
ing day added the totals up. At the end of the month she
turned the records into the main office, keeping, howev-
er, a copy of weigh slips at the scalehouse. The office
would then pay for the coal bought. Roggish testified
that she also would call truckers when needed, relating,
however, that she decided which truckers to call, though
also acknowledging that she did so only from a group
who had worked for Respondent in the past.
20 Petitte did not deny that employer motivation existed to fill in for
the injured Fain. Guseman did not testify as to this matter, and Casino
did not testify at all. I am convinced that Heller was reemployed by
Casino, as Heller essentially related, to do Fain's work until he recov-
ered, though such employment was no doubt mutually beneficial to him.
I conclude that Casino was noncommittal about Heller's future employ-
ment because the duration of Fain's absence and future economic condi-
tions were probably not then compatibly discernible to him. I do con-
clude and find, however, on the evidence before me, both that Heller's
interim employment in the yard was temporary employment, and that he
retained, as earlier informed by Petitte that he would have (and con-
firmed by Petitte), an expectancy of recall from layoff to the position of
weighmaster in the reasonably foreseeable future.
1115
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roggish also placed calls to determine when and how
many barges Respondent was going to get, and she noti-
fied the barge gauger when barges were loaded and
ready to be pulled. She maintained the barge book which
records barge numbers, when in, when out, and their
gauge. Roggish testified that she also made similar calls
in regard to railroad cars' availability and maintained
certain records thereon (for her own use) and on the rail-
road cars' numbers and shipments. According to Roggish
(unlike Heller), the weighmaster would always know
where the barge or railroad car was going, and thus
would know to whom the coal was to be shipped.
Since mid-summer Roggish has kept all such records
locked in a file unavailable to others (with the exception
of Casino at night), explaining generally that the work
force has no need for them and she does not want them
lost or misplaced. Unlike Heller, Roggish related that
while serving as weighmaster she never operated any
equipment, shoveled tailpieces, or did any other blue
collar work.
3. Party contentions and analysis
According to Petitte, as of January 1979, in addition to
the operational supervisory direction that was provided
day-shift employees by himself, his brother Jasper Pe-
titte, Superintendent Guseman, and (admitted) day-shift
Foreman James Casino, Petitte would have one of the
(then) five other day-shift employees viz, Richard Heller,
also concluded to be a supervisor or part of management
because Heller, as weighmaster, have access to certain
(daily) purchase and sale tonnage information which Pe-
titte regarded as important to management and thus con-
fidential, and because Heller was in charge of arranging
for the coal testing and reporting the results to him. In
further support Petitte also related that from his office
(200 yards away) he could oversee the yard, and that on
occasion when he observed a problem developing he had
Heller inquire what the problem was and/or had Heller
deliver instructions to the work crew. In its brief Re-
spondent additionally argues that the above business in-
formation which Heller regularly gathered would be in-
valuable to the Union in any decision to strike. Respond-
ent thus contends that Heller meets the Board's defini-
tion of a confidential employee, citing The B. F. Goodrich
Company, 115 NLRB 722 (1956), in that Heller, in col-
lecting such confidential information concerning the coal
yard, assists or acts in a confidential capacity to Petitte,
who unquestionably formulates, determines, and effectu-
ates management's policies in the field of labor relations.
Alternatively, Respondent contends on brief that Heller
should be excluded as a managerial employee because
(by work function) Heller was so closely related to man-
agement as to place him in a position of conflict of inter-
est between Respondent and fellow workers, and/or be-
cause Heller formulated and effectuated Respondent's
policies or had independent discretion thereon, relying
on Illinois State Journal Register, Inc. v. N.L.R.B., 412
F.2d 37 (7th Cir. 1969). Finally, Respondent would alter-
natively exclude Heller as an office clerical. Respondent
thus argues that Heller's union card designation made
while only temporarily employed in the yard before re-
turning to his regular position of weighmaster (an office
clerical position) should not be counted. Respondent (at
the hearing) made certain additional arguments as to
Heller's contended supervisory position occupied in Feb-
ruary resting on certain documents Heller executed in
May.
The General Counsel would appear to correctly con-
cede on the facts established herein, and, in any event, I
conclude (on the basis of findings made supra) that it is
proper herein to assess Heller's unit placement only by
evaluation of his weighmaster's duties, a position, as
noted, with which Respondent would appear to be in es-
sential agreement. Both the General Counsel and the
Union reserve that the same issue is not to be resolved
on the basis of (contended) self-serving changes made by
Respondent in that position after the Union's demand for
recognition, Respondent's admittedly discriminatory dis-
charge of Heller, and the latter's eventual reemploy-
ment. 2
I first address Respondent's urged exclusion of Heller
on the basis of the claimed confidentiality of his position.
The critical consideration for exclusion of Heller as a
confidential employee is not whether there is some work
contact by the employee touching upon, or even directly
involving, what may in some business sense be regarded
as sensitive business information. Mere access to produc-
tion records, receiving and shipping information (pur-
chases and sales), or what may be regarded by the em-
ployer in some other business aspect as entailing sensitive
data and/or information is much too broad a base of dis-
enfranchisement of employees from their collective-bar-
gaining statutory rights, and thus the same has been pre-
viously held insufficient by itself to render an employee
excludable as a confidential employee. Aeronca, Inc., 221
NLRB 326, 330 (1975); Ohio State Legal Services Associ-
ation, 239 NLRB 594 (1978). The critical consideration
rather is how the employee operates and functions by as-
signment for the employer in relationship to a certain
kind of sensitive business information, viz, whether it af-
firmatively appears that the employee performs work in
essentially a confidential capacity for a person while the
latter is engaged in the exercise of "managerial" func-
tions in the field of labor relations. Cf. Ernst & Ernst Na-
2" The General Counsel would appear to correctly observe that, if
Heller's initial recall from layoff is shown to be one of only temporary
assignment to a yardman position (albeit the same is included in the unit),
under existing Board precedent such would not displace the basic issues
of both unit placement and the efficacy of Heller's designation of the
Union while occupying such temporary position as nonetheless necessar-
ily to be resolved on the showing to be made of Heller's substantial and
continuing community of interest in other unit employees' terms and con-
ditions of employment by virtue of Heller's (prior and reasonable expec-
tation of recall to) permanent position as weighmaster (Willett Motor
Coach Co.. et al., 227 NLRB 882 (1977); Eastern Rock Products, Inc., 239
NLRB 892, 893, fn. 5 (1978)), and further correctly notes that, vice versa,
employee Roggish at material times was thus shown only as temporarily
employed in Heller's place as weighmaster, with her own (uncontested)
anticipated return to her prior permanent position of office clerical. Thus,
Roggish is to be excluded from the unit as an office clerical. Honolulu
Sporting Goods Co., Ltd. a subsidiary of Zale Corporation, 239 NLRB
1277, 1281-82 (1979); he Trustee of the Stevens Institute of Technology,
222 NLRB 16 (1976). Moreover, to any extent the Union would in effect
contend to the contrary in urging that a count of Heller's union represen-
tation designation is warranted since it was made while he was a yard-
man, e.g., even if, and as I have found was the case shown, only tempo-
rarily so recalled and assigned, I would reject same.
1116
MAIDSVILLE COAL CO., INC.
tional Warehouse, 228 NLRB 590, 591 (1977). 1 can dis-
cern no such showing made herein, and I find that Heller
possessed no more sensitive business information in the
performance of his work functions as weighmaster, than
shipping, receiving, and other production clerks and,
indeed, office clerical employees heretofore have been
shown to possess without loss of their statutory rights. I
thus conclude and find that Heller, while working in
(and with expectancy of recall to) the weighmaster posi-
tion prior to April 10, was not employed in a confiden-
tial capacity to Petitte or any other managerial official.
Similarly, managerial status itself is not to be engrafted
on truly rank-and-file workers to the detriment of their
established statutory rights. Thus, even discretionary but
essentially routine work performances are to be differen-
tiated. As the Board has stated, managerial status proper-
ly is to be "reserved for those in executive-type posi-
tions, those who are closely aligned with management as
true representatives of management." Lockheed-California
Company, a Division of Lockheed Aircraft Corporation, 217
NLRB 573, 574 (1975). Indeed, with Supreme Court ap-
proval, the Board has defined managerial employees as
those "who formulate, determine, and effectuate an em-
ployer's policies." N.L.R.B. v. Bell Aerospace Company, a
Division of Textron, Inc., 416 U.S. 267 (1974); Eastern
Camera and Photo Corp., 140 NLRB 569, 571 (1963). It is
clear on this record that Heller's function in arranging
coal sample testing and in relaying test results to man-
agement was but perfunctory. I am as well convinced
and I find that Heller's contacting of the nonemployee
independent truckers to perform services for Respondent
did not involve exercise of managerial skill, rather in-
volved only a routine phone contact of a preexisting
pool of truckers who had previously agreed to provide
services to Respondent on such call and at rates and con-
ditions set by others. I thus conclude and find that Hell-
er's work activities and functions in relation to both coal
sample testing and independent trucker contact were not
such as to constitute him a managerial employee in the
performance of his duties as weighmaster.
Respondent's contentions in regard to the office cleri-
cal status of the weighmaster are no more persuasive,
and need not be belabored beyond noting that Roggish
was selected to temporarily replace Heller not because of
her prior performance of office clerical duties, but be-
cause Roggish was a long time employee who had had
more service, including significant experience in service
of the Petitte's interests as a weighmaster. That she may
have additionally also occupied a favored position as a
friend of the Petittes in the small family-run operation
does not call for a different conclusion.
Apart from arguments based on certain documents and
related action executed or occurring after the admitted
discriminatory discharge, and/or questioned as self-serv-
ing, there is no convincing evidence herein of any statu-
tory supervisory conferral of power to, or exercise of
power by, Heller (or Roggish) while working at material
times as weighmaster. In that regard it is clear beyond
question that Heller, in delivering an occasional work di-
rection for Petitte, was acting as a conduit of instructions
and exercised no independent judgment in the execution
or responsibility for completion thereof, and as we have
seen, that this was quite different from the case of Free-
man on the afternoon shift who worked largely in the
absence of other supervision and who was personally
looked to by the superintendent to get the work done.
The circumstance that an employee is salaried is not the
dispositive factor of supervisory status is too long and
well established to occasion even need for citation of
supporting authority. What emerges clearly from the
above is that the weighmaster's duties in this material
period were essentially that of a scale operator weighing
incoming coal and/or a shipping and receiving or plant
clerical recording certain raw material receipt and pro-
duction shipment data. In regard to the former the cir-
cumstance that Heller would take various action, includ-
ing, pursuant to instruction, rejection of a defective raw
material delivery (only) from an outside source, did not
make him any more supervisory in function than was the
case with other receiving clerks who acted similarly in
refusing to accept obviously damaged, defective, or un-
ordered supplies for the Respondent.
Sufficient showing of a community of interest with
other unit employees such as to warrant inclusion of the
weighmaster position in the unit is clearly made out in
the employees' common supervision, daily work contact,
and enjoyment of the same employee benefits, and,
indeed, the essentially similar work hours. I am thus fur-
ther wholly convinced, and I conclude and find, that the
work functions and duties of the weighmaster as depict-
ed above were those of a scaleman with other duties es-
sentially similar to those of a shipping and receiving
clerk and/or a plant clerical and thus includable in the
production and maintenance unit herein, unless the cer-
tain post-demand and (admitted) post-discriminatory dis-
charge evidence is to be deemed such as to convince
nonetheless that Heller, as weighmaster, had earlier oc-
cupied a supervisory position. From that remaining issue
I momentarily digress (necessarily) for development of
the context of the employees' union activity and Re-
spondent's alleged unlawful reaction thereto. In passing,
I would only presently observe that, if there is no such
convincing evidence that Heller was a supervisor earlier,
the record has established that the Union occupied a col-
lective-bargaining representative status at the time of its
demand on April 19 and, indeed, earlier on April 10.
D. The Alleged Unfair Labor Practices
1. The commencement of union activity
Prior to February 19, Clifford Bonnett had served as
recording secretary and/or an officer of the Local Union
for 15 years, and was employed by Christopher Coal
Company, a Division of Consolidated Coal Company, as
a pilot operating the tugboat Donna Lee on the afternoon
shift (4 p.m. to 12). (Bowman Sr. operated the tugboat in
that period, normally on the night shift (12 to 8 a.m.) but
occasionally on the afternoon shift.) On February 19
Bonnett resigned from his positions to become an orga-
nizer for the International Union from February 19 until
he resigned from that position to return to his prior em-
ployment on the tugboat on June 15, but he has not re-
turned to the present holding of any Office in the Local
1117
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union. Leonize "Dutch" Morris became employed as an
International organizer also on February 19, and he has
remained such to date.
Bonnett recalled it as being one evening in late Janu-
ary or early February that Freeman visited the Donna
Lee with a request for some tugboat assistance, and that
while there Freeman spoke with Bonnett about the
Union. Bonnett's version is that Freeman mentioned his
understanding that Bonnett was going to become an or-
ganizer for the International Union. Bonnett replied that
he might do so. According to Bonnett, Freeman asked
Bonnett to come down and organize Respondent's em-
ployees first. Bonnett replied that he would try to do so.
Bonnett testified that he did not know that Freeman was
a foreman at the time, but that he considered him to be
"like a pusher." Bonnett asked Freeman on that occasion
to give him a list of the names of Respondent's employ-
ees and their phone numbers, and Freeman at the time
promised Bonnett that he would. Freeman admitted
visits to the tugboat (with Bowman) but denied that he
asked Bonnett to organize Respondent's employees, and
his version is that employee Bowman was with him at
the time and that they were "razzed" for being non-
union. Morris testified that on February 23 both he and
Bonnett traveled together to attend an orientation pro-
gram arranged by the International Union for its new or-
ganizers, and he recalled that Bonnett mentioned to him
on that occasion that afterwards they were going to go
to Respondent first, because of the conversation he had
with Freeman.
Bonnett testified that after he became an organizer he
called Freeman on the phone and notified Freeman that
he had become an organizer and inquired of Freeman
whether Freeman had gotten the list for him. Freeman
said that he had not, but that he would as soon as he
could get up to the office. Bonnett related that Freeman
never thereafter supplied a list, and that he did not call
Freeman again because he figured that Freeman was not
going to get it for him. However, Bonnett, when specifi-
cally questioned, related that he had made such a call to
Freeman at the end of March. Freeman does not deny a
Bonnett contact about a list of names, addresses, and
phone numbers. Thus, Freeman confirmed that Bonnett,
at a time that Bonnett was known by Freeman to have
become an organizer, thus necessarily after February 19,
had contacted Freeman at his home to get a list of the
names, etc., of employees. What is in issue is not whether
Freeman came to know that an active union campaign
was under way, but when he first knew of it and its
effect.
Morris testified that he assisted Bonnett in the organiz-
ing of Respondent's employees, and he placed the start
of the campaign at the end of February rather than the
end of March. Notably, however, he described the start
of their organizational efforts as with but some names
and it being after Bonnett had contacted Freeman.
Morris thus testified (generally) that, after Bonnett talked
to Freeman, they got some names; that he, around Feb-
ruary 27-28, started visiting and talking to employees at
their homes, at bars, and at churches; and that, as they
went along, they got the names of all the employees.
Morris also testified that eventually he had talked to all
the employees, that he had found that seven of the nine
employees he had calculated to be in the unit were
agreeable to the Union, and that thereafter the union rep-
resentatives obtained and witnessed six authorization
card signings by employees who designated the Union as
their collective-bargaining representative. The union
cards were obtained from employees at their individual
homes on April 9, 10, and 11. (In the referenced six
cards signed, Morris has included the card of Long, the
only one signed on April 11.) As found materially signifi-
cant herein, Morris testified that a seventh employee
who had earlier also favored the Union was James Fain,
who had been at this time shot and hospitalized.
Thus, aside from dates, in summary and essentially, the
Union's organizational movement took the form of var-
ious successive individual contacts with employees in
which the Union ascertained the identity of unit employ-
ees, explained the Union to the employees, first explored
with employees those in favor of the Union, and then ob-
tained in a few days from individual employees at their
homes majority designation evidenced by authorization
cards signed in the second week of April, viz, on April 9
(Bowman) and April 10 (Heller, Roberson, Trippitt, and
Eddy). The only seeming appearance of inconsistency
bears limitedly on when the organizational efforts start-
ed; viz, the end of February as Morris specifically re-
called though in circumstances suggestive of being after
a Bonnett-Freeman contact, or the end of March as Bon-
nett at least on one occasion stated was the time of his
sole followup contact with Freeman. Bowman, Heller,
Trippitt, and Eddy confirmed signing their union cards
on those respective dates under circumstances I find con-
clusive of their validity, and Roberson, called as a wit-
ness by Respondent, did not deny same. The validity of
the card designations on those dates is not in any sense in
question, but Freeman's contact as to an actual campaign
undertaking and Respondent's first awareness of the
union activity of its employees are in issue, as the same
bears upon certain wage increases granted in early April.
2. The April wage increases
The record reveals that day-shift machine operator
Howard Tennant received a 25-cent wage increase, and
that afternoon-shift plant operator Kenneth Roberson
and Freeman each first received a 50-cent wage increase,
all being made effective April 4. The remaining employ-
ees received wage increases effective April 18 as follows:
On the day shift.22 Willlard Eddy-25 cents, Dennis In-
gersoll-35 cents, William Elliott-25 cents, and James
Fain-$1.50; and, on the afternoon shift, Charles Trippitt
and Earl Bowman-50 cents each.
Bowman testified that the afternoon shift received
their raises on April 10. Thus, Bowman related that they
were called to the scalehouse. Petitte and Freeman were
there. Petitte told them it was time for a raise, saying he
thought they deserved one. They then went to the
supply room where Petitte had a paper with the names
of the employees and what they were making. Bowman
22 Richard E. Heller, returning to employment under special circum-
stances to be described infra, was shown as receiving a biweekly salary
or $590.77. also effective April 18.
1118
MAIDSVILLE COAL CO.. INC.
then at $5.75 received a 50-cent raise to $6.25. Petitte
said the raise would go into effect the following pay
period (and the payroll shows that it was effective on
April 18). Bowman testified that in that respect this in-
crease was implemented differently from his last raise re-
ceived which had been put into effect immediately. Trip-
pitt confirmed that on April 10 when he went to work
Freeman told him that there was to be a meeting for em-
ployees in the scalehouse. When Trippitt arrived he
found that other afternoon-shift employees (Bowman and
Roberson) were also there, as was Petitte. Petitte showed
Trippitt his raise on a piece of paper, and he told Trip-
pitt that he would not get it the coming paycheck, but
that it would be in the following paycheck. Trippitt also
was raised 50 cents from $5.75 to $6.25.23 (It appears that
Trippitt had already signed his authorization card.) Day-
shift employee Eddy related that it was not until April
11 at 9:30 a.m. that Petitte had come down to the river
and informed Eddy that he had put Eddy in for a raise.
Eddy asked how much and was told 25 cents. Eddy
asked when (the effective date), and was also told by Pe-
titte that it would not be in this paycheck. (Eddy was
raised from $6.75 to $7, effective April 18.) According to
Eddy, Petitte also told him that, if things went good or
continued to go as well as they were then, Eddy would
receive another raise in 6-8 months. (Eddy, first em-
ployed in 1974, testified that he had received several
raises prior to this time, the last such being received but
2-3 months earlier.) On the previous day, April 10, after
work, Eddy had signed his authorization card for the
Union.
3. The alleged earlier interrogation and threats by
Freeman
Trippitt related that he had a conversation with Free-
man earlier about the Union which Trippitt placed about
the end of March, though it is noted in passing that the
record has revealed some unreliability in Trippitt in re-
calling dates. According to Trippitt's recollection other-
wise, Freeman spoke to Trippitt in the basement of the
plant, and asked Trippitt if he had signed a union card.
Trippitt answered no. Freeman then told Trippitt that
there would be no union; that he might as well forget it;
and that the Petittes, or the Petitte brothers, would "put
their hardhats on and run the place themselves, they had
put them on before and would do them [sic] again."24
Bowman also testified that it was a few days before he
signed his card on April 9 that Freeman informed
Bowman that Freeman had told Superintendent Guse-
man that the union organizer had been around talking to
the employees. According to Bowman, it was later that
he told Freeman that he had signed a card. Significantly,
Bowman also testified that it was a day or so after he
23 Trippitt related that he also believed that Petitte at the time had said
that he did not know why he had decided to give us a raise, but he did.
In my view. the remark, even if spoken as recalled. is too cryptic to be of
significance.
24 Respondent also established that, in a prior statement obtained by
the Union, Trippitt had referred to Jasper Petitte as having been said to
have made the above statement, but at the hearing Trippitt related and
maintained in his testimony that his recollection was that Freeman had
stated it more generally as the Petittes or the Petitte brothers. In view of
Bows man's corroboration the ariance is not significant.
had signed the union card, and at quitting time at the
plant while he was waiting for Roberson to finish, that
Freeman had told Bowman and Trippitt that they might
just as well forget about the Union because the Petittes
were going to put their hardhats on themselves and run
the business, and that Freeman had told him that before
the Petittes went union they would put their own hard-
hats on and run it themselves.
Freeman's version was that he thought it was April 10
but he otherwise confirmed that he had told both Trip-
pitt and Bowman that they might just as well forget this
Union as the Petittes would just put on their hardhats
and "toes" and go back to work if worse got to worse.
However, Freeman denied that he was instructed to do
so by Respondent. Freeman also confirmed that in April
Earl Bowman had told Freeman that he had signed a
card, and Freeman testified that he later told Guseman in
the shower house that he had heard talk about the
Union, and that the employees were trying to organize.
Freeman said that Guseman replied that it was not the
first time, but that he had then inquired what made Free-
man think that. Freeman then told Guseman that
Bowman had signed a card. Freeman testified that the
next day, which he recalls as April 12, he repeated the
information to Jasper Petitte. Thus, Freeman would have
his notice to Guseman of employees' union activities
given only after all the wage increases were announced.
However, Bowman, a credible witness, testified that
Freeman had already, a few days before April 9, told
Guseman that the union organizer had been around talk-
ing to the employees. Moreover, this record reveals that
Freeman had initially testified that he had only first
learned of the union activity in April after the employees
were fired, and it was only after reflection overnight that
he then related he recalled he first found out in February
and then otherwise testified, inter alia, as above noted,
including that Bonnett had earlier asked him for a list of
names, etc., and his conversation with the employees,
Guseman, and Jasper Petitte. Under these circumstances
Freeman's relations as to his first awareness and contact
with the Union must be concluded to have been simply
something less than initially candid, and his other denials
and account appear much the more questionable. I credit
Bowman that Freeman told Bowman earlier that he had
alerted Guseman of union activity prior to the an-
nounced April 10 wage increases, though it would
appear to have been after the April 4 wage increases
were effective. However, I am convinced by the above
circumstances, and in the light of subsequent events, that
it was late on April 10 (thus after raises were announced)
that Freeman told both Trippitt and Bowman in sub-
stance and effect that they should forget about the
Union, and also that it is more probable than not that it
was on that occasion that Bowman told Freeman he had
already signed a card for the Union, and Freeman asked
Trippitt if he had done so.
1119
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Respondent's offered explanations
a. The increases granted-a normal annual increase
keyed to union operation increases
David Frabutt, a West Virginia CPA, has been em-
ployed as controller for Maidsville Coal since March
1977. Though paid by Respondent, he does work for the
Petitte brothers' related companies as well, including Pe-
titte Brothers Mining Co., Inc., a union mine operation
owned by Johnny and Jasper Petitte (and one other indi-
vidual), and Electra Fuels, Inc., a wholly owned subsidi-
ary of Respondent which operates a nonunion mine. Fra-
butt's responsibilities include preparation of financial
statements and corporate returns, and he testified that he
is also involved in wage discussions for employees of the
above companies. An annual raise (as Frabutt described
it) was granted to Respondent's employees in November
1977. It was Frabutt's further understanding that there
was a general policy to try to give annual raises at the
nonunion operations when union operations received
one. In that connection, a UMW strike occurred shortly
thereafter, on December 7, 1977, and lasted until March
28, 1978, at which time a new BCOA agreement was
reached between the UMW and coal producers with cer-
tain raises being received by contractually covered em-
ployees in March 1978 and thus at the Petitte Brothers
union operations. Frabutt testified however, that it was
financially impossible at that time for Respondent to give
its tipple employees a raise, but that it did subsequently
grant an across-the-board raise to them on May 24,
1978.25 There was no further raise granted that year.
In 1979 the BCOA's next contractual date for a raise
was (apparently) again the end of March. It appears un-
contested of record that Electra Fuels' employees re-
ceived at least a partial wage increase the first week of
April.2 6 In any event, Frabutt's recollection was that
there were further discussions on April 10 for raises for
Respondent's employees; that it was on April 11 that the
employees were formally notified that they were to re-
ceive raises and that their raise was to be effective April
18. However, Frabutt elsewhere testified that there were
even earlier wage discussions, and it was during such
wage discussions on 4 days before April 12 (thus April 8
or 9) that he first found out that Guseman had already
given raises to three employees of Respondent, with
grants effective April 4. (Mechanically, such raises
would be put in relatively simply by telling payroll clerk
Cyzick the new rates to be applied.)
The record in its entirety will simply not support Re-
spondent's contention that it has granted annual raises
regularly or at the time union operations received them,
but at best indicates that the timing of increases received
by union operations were a factor considered. Employees
2s Respondent had operated until December 15, 1977, at which time its
hourly work force was essentially laid off until the completion of the
strike. returning to work on March 28, 1978. Frabutt related that in the
interim Respondent's two superintendents (whom he identified as Guse-
man and Heiller) had continued on salary and had acted as guards visiting
the tipple. However, Guseman could not recall ever seeing Heller at the
tipple during the strike and I am convinced that Frabutt is in error in the
latter respect.
2 A certain amount of the anticipated increase was earmarked for im-
provement of benefits which took place in the future, discussed infru.
testified that they had never heard of an annual wage in-
crease, that they knew of no set time for their raises, and
that the superintendent or foreman would just put the
employee in for a raise and it came in the next paycheck,
and there are individual instances of such evidence in the
record. Indeed, Frabutt conceded as much in testifying
that it (e.g., an annual wage increase keyed to the time of
a union wage increase) was not a formal written policy,
acknowledged that supervisors were not told of it, ad-
mitted that Respondent was not tied to it, and eventually
and significantly testified that both a wage increase grant
and the amount of same was always up to Johnny Pe-
titte.
Frabutt also testified that he and Respondent were
perplexed over the three earlier wage increases granted
by Guseman, their having been given prior to the time
when an asserted (annual) increase would be up for con-
sideration, that he would have believed that Guseman
did not have authority to do so without Petitte's knowl-
edge, and that he did not know why Guseman did not
first talk it over with Petitte. According to Frabutt, there
was no discussion of the Union in his conversations
about wage increases, and he related that his first aware-
ness of employee union activity was shortly before he
read the Union's demand letter of April 19, thus clearly
later than Guseman and Petitte knew of it.
b. Claimed existence of a standard wage for a plant
operator and individual action by Guseman as to the
first three raises
Freeman testified that in February he had asked for a
raise, and that subsequently he, Tennant (day shift), and
Roberson (afternoon shift) received one effective April 4.
Roberson testified only generally that he normally would
ask Guseman for a raise, but also that he mentioned to
Freeman that he was due for a raise, or something to
that effect, because Freeman was in the chain of com-
mand. Tennant did not testify.
In explaining his wage increase grant to Roberson,
Guseman asserted that there was a standard wage for a
plant operator, and that Freeman came to Guseman on
several occasions with Roberson (who had been operat-
ing the plant for some time) and stated that Roberson
had been asking when he was going to be brought up to
the standard wage. 27 Guseman related that Freeman and
Tennant had also asked him on several occasions for a
raise. According to Guseman, he simply decided to give
them a raise at this time. Guseman further asserted that
he did so on his own without consulting Petitte, though
he also acknowledged that it was unusual; indeed, on this
record, it was not shown to have been done theretofore.
In what must be deemed equally unusual, Guseman
could not even recall whether Petitte was upset when
Petitte found out about the raises he had granted to
Freeman, Roberson, and Tennant. Day-shift plant opera-
tor Dennis Ingersoll, hired on April 9, 1977, prior to the
last increase granted, was paid at the rate of $7.50 as
compared with the $6.25 of Roberson who was hired on
27 Guseman could not recall Roberson's ever asking him for a raise di-
rectly.
1120
MAIDSVILLE COAL CO.. INC.
April 25, 1977. Roberson made no claim to a standard
operator rate. More significantly, Respondent introduced
no records to establish that there was any such standard
(with or without progression) rate for a plant operator.
Indeed, the only such records made available would indi-
cate that, if anything, Roberson had just recently ob-
tained $6.25 on "1-24-79." In any event, I find that Gu-
seman's assertion that Roberson's increase was one de-
signed to bring him up to a standard plant operator rate
is simply not shown to be supported in the record, and
that Freeman's testimony on when it was granted is in-
consistent.
c. Petitte's response to Freeman's report that employees
had learned of earlier raises given
Petitte testified that Freeman, Roberson, and Tennant
were granted raises by Guseman without even his aware-
ness until April 10. According to Petitte, it was on that
day that Freeman approached Petitte and told him that
the other employees had heard of the raises that Free-
man, Roberson, and Tennant had received and wanted to
know if they also could get a raise (denied by Freeman);
and that Freeman also told him that it had been a while
since the employees had last received a raise, that every-
one in the Hollow 28 had gotten a raise, and that the rest
of the employees were kind of looking forward to it. Pe-
titte told Freeman that he did not foresee any problem.
According to Petitte, he promptly went to the records,
determined what the employees were then making, de-
cided the raise to be given to each one, and notified
them between April 10 and 12 as he saw them on the
property. Petitte testified (with corroboration by Guse-
man) that the granting of wage increases by Guseman
was within his authority, and that he did not reprimand
Guseman for giving the above three employees a raise
earlier. Petitte acknowledged that as Respondent's presi-
dent he would have wanted to know about union author-
ity, and would have been upset if Guseman (and Casino)
had known about union activity at the time and had not
told him, but asserted that he did not believe that they
knew about it. Petitte categorically denied that he him-
self had any knowledge that union cards were being so-
licited or that a union campaign was going on at Re-
spondent at the time, and otherwise testified that, other
than the employees who had been recently granted a
raise by Guseman, it had been a year since the employ-
ees had received their last raise. In that regard Petitte
confirmed that Respondent did not have a set rule that it
went by, but contended that normally when Respond-
ent's union mines got a pay raise it would raise its non-
union operations. Petitte related that Respondent had
given a raise to the employees at its nonunion mine at
the time. Petitte asserted that he paid wages to the em-
ployees in his nonunion mine that were higher than pro-
vided for by the Union's (BCOA) agreement, and, can-
didly, that he did so, inter alia, to keep the Union out. In
testifying categorically that he had no inkling that a
union organizational campaign was going on at Respond-
21 In Robins Run Hollow there are apparently three to five independ-
ent operations. Petitte testified without contradiction that it was common
knowledge that March-April was the time for raises. and that in a small
mining town news of raises travels fast.
ent, Petitte asserted that had he known, "[He] would
have increased their wages probably fifteen or twenty
percent and [he] would have probably raised the hourly
rate a minimum of a dollar and a half to two dollars"
and specifically that he would have done so "to prevent
the Union from coming in."
Bowman testified that on April 12 Petitte came up to
him as he was cleaning belt lines. Petitte asked Bowman
if Dutch Myers (Morris) had been around his house.
Bowman replied yes. Petitte asked Bowman what he had
told Morris. Bowman said that he had told Morris to get
to hell out of his house. Petitte then told Bowman that
the employees would get a raise during the summer if
work picked up. According to Bowman, in the same
conversation, Petitte also told him that he could not
afford the Union, that he would just lay all the employ-
ees off, and that he would run the place himself, and Pe-
titte told Bowman to tell his father to stay away because
he thought that was where the union problem was
coming from.
According to Petitte, he had first found out about the
union activity earlier in the afternoon of April 12
through receiving a message from a hospitalized employ-
ee delivered to him by an independent trucker. 29 The
message was that union organizer Morris had been to
Fain's hospital room on several occasions trying to get
Fain to unionize. Fain, who had been with the Company
for years in different capacities, was apparently last hired
on October 2, 1978, and received his first raise in April.
Previously the lowest paid employee, as noted, Fain re-
ceived a $1.50 raise effective April 18.
Petitte testified that he was infuriated, or as he re-
thought later extremely upset, to learn, only a day or
two after giving the employees raises, that they had
launched a campaign to unionize Respondent. Petitte tes-
tified that his first reaction then was for revenge, specifi-
cally to fire the employees involved.
Petitte related that he had received reports from his
employees as much as some 4-5 years earlier that Eddy
was union oriented and wanted to organize Respondent's
tipple. More recently there was an occasion when Eddy
had been escorted off the property in regard to drinking,
though without subsequent reprimand. In any event, Pe-
titte acknowledged that he felt sure Eddy would be in-
volved in the union organizational campaign up to the
hilt, and that number two would be Bowman.
Thus, Petitte related that he also knew through rumors
that Bowman and his family were for the Union. Petitte
confirmed that he spoke to Bowman on the afternoon of
April 12, and acknowledged that he was at the time
trying to pick out the people involved with the Union.30
29 The hospitalized employee, James Fain, allegedly shot during a dis-
pute with his wife, had last worked on Friday, March 23. The trucker
did not testify.
a3 Petitte also testified, though in another context, that he eats at a
local restaurant at which men from the (organized) tug Donna Lee also
eat; he had been hearing rumors there in March that some of the union
men who worked the docks at Consolidated Coal were raising hell be-
cause when they needed the tug Donna Lee it was down at a scab oper-
ation, and had heard that if it did not stop they were going to go over
the boat's captain (understood by Pettite to be Bowman Sr.) to Consoli-
dated Coal's officials.
1121
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Essentially, Petitte's testimony as to this conversation
either confirmed, or did not effectively dispute, Bow-
man's account. Thus, Petitte related that he told
Bowman that he was having some problems with the
men, that he wanted to resolve it as best he could, and
that he knew Bowman's father had been down there
doing Bowman's work, and told Bowman that he did not
want any more of it, expressing other stated reasons, all
of which I do not find convincing under the circum-
stances of his earlier inaction.3 1
More materially, Petitte, although relating that he did
not believe he had asked Bowman if Morris had been to
Bowman's home, testified that he believed he did tell
Bowman that he had heard a rumor at the time that em-
ployees of Consolidated wanted to come down and orga-
nize Respondent and, although he did not believe so, he
could not say for sure that Morris' name never came up.
Petitte related that he also told Bowman that Respond-
ent had enough problems without having someone from
Consolidated Coal trying to organize Respondent. Al-
though Petitte initially asserted that he did not recall a
discussion of a further raise with Bowman at that time,
thinking he had discussed it with Bowman earlier on
April 10, Petitte also stated that it was quite possible he
had told Bowman that he would get a raise in the
summer or when work picked up. Finally, it is observed
that, although Petitte said he could not remember, he
also testified that he was not going to deny that he told
Bowman that the Company could not afford the Union,
that he would run the place himself, or that he might
have to lay somebody off if the Union got in, and testi-
fied that, if Bowman was quoting him, it was quite possi-
ble that he said it. In view of the above admissions
and/or nondenials, I credit Bowman. Accordingly, I find
that Respondent, through the acts and conduct of Com-
pany President Petitte on April 12, has engaged in un-
lawful interrogation of its employees as to their union ac-
tivities, sympathies, and desires, has coerced employees
with statements of threatened layoff of employees if the
Union got in, and has promised future wage increases to
employees in order to dissuade them from the Union, all
in violation of Section 8(a)(1) of the Act, as alleged in
the complaint.
Petitte offered in explanation of the $1.50 increase
given to Fain, that he did so because he felt sorry for
Fain, who was a hard worker; and Petitte also noted that
Bowman had previously received a comparable $1 raise
when Bowman was reviewed after his initial hire. How-
3 Petitte otherwise related that he explained to Bowman that they
were abusing the relationship by having his dad down there every night
placing barges, that it wasn't necessary as for years they had handled
barges by power wench, that Bowman was not doing his own work, and
that Petitte was afraid someone would get hurt on the tug and they
would all be in hot water. Bowman responded that his dad was only
trying to help them and him out. Petitte replied he understood that but
that he did not want him down there, that he did not think it was right
that his father was down there doing Bowman's work, and that he did
not want him down there because an emergency might arise where they
needed him and they would not be able to get him. However, the fact is
that Petitte knew about the situation in March, and that there was local
union unrest over it. but Petitte did nothing about altering the practice at
that time. Even more significantly, on one occasion Petitte did relate that
the rumor he had heard was that they wanted to come down and orga-
nize the plant.
ever, this record is also clear by the concession of Petitte
that, unlike Bowman, a new employee who started low
and turned out to be an excellent worker, Fain was an
old and intermittent employee who was "in and out of
more trouble than 50 people," when last employed, had
previously been the lowest paid employee, but had re-
ceived three times the amount of any raise received by
others at the time from Petitte's evaluation, and who had
(apparently) reported the campaign to Petitte. Finally,
the amount granted Fain significantly corresponded to
what Petitte otherwise admitted he would have granted
employees had he earlier become aware of the union ac-
tivity. I am thus wholly convinced that, at least with re-
spect to the amount granted employee Fain, Petitte was
clearly motivated in part by antiunion considerations,
and I find that such grant was clearly in violation of Sec-
tion 8(a)(1). Nor is the significance of the likely effect of
same on Fain's subsequent vote against the Union on
April 23 (discussed infra) one to be overlooked in that
context.
The complaint also alleges that certain interrogations
and threats by Freeman in early April (of a date uncer-
tain) were also violative of Section 8(a)(1) of the Act.
Respondent essentially defends that Freeman was not a
supervisor at the time but a leadman, a defense which I
have earlier found nonmeritorious. The Charging Party
argues that the questioning and coercive remarks of
Freeman to employees are imputable to Respondent
based on the determination that he was a supervisor, re-
lying on Jays Foods, Inc. and Nielsen Brothers Cartage
Co., Inc. v. N.L.R.B., 573 F.2d 438, 445 (7th Cir. 1978).
Therein it was also explicitly held that the possibility
that the company may not have known of a supervisor's
questioning did not free the company of responsibility
for his actions. However, that case did not, as found to
be present here, involve a supervisor who had had his
own earlier contact and some involvement with the
union which was known to the employees (e.g., Bowman
and those to whom Bowman had, to a degree, confided).
It is initially observed that the Board has not heretofore
determined the supervisory status of Freeman, and that I
now find that Freeman in fact did occupy such status
during material times herein. The Board has previously
held that employers must generally accept responsibility
for the conduct of foremen having supervisory status.
Glenroy Construction Co., Inc., 215 NLRB 866, 867
(1974). I have further found the facts to be that he did
interrogate Trippitt as to whether he had signed a card,
and that Freeman did coercively tell employees Bowman
and Trippitt, probably at the end of their shift about 11
p.m. on April 10, in substance and effect, to forget their
interest in the Union because the Petittes would run the
business themselves before they would accept the Union
as the employees' representative. The only further ques-
tion raised by the above facts herein found relevant to
these complaint allegations would appear to be whether
Freeman's earlier involvement in contacts with the
Union and/or his understood relationship to employees
was such a circumstance as to preclude the required con-
clusion that his acts in those respects would reasonably
tend to restrain and coerce employees. See and compare
1122
MAIDSVILLE COAL CO., INC.
Montgomery Ward & Company, Incorporated, 115 NLRB
645, 647 (1956), enfd. 242 F.2d 497 (2d Cir. 1957). It ap-
pears that neither the limited extent of Freeman's in-
volved contact with the Union such as has been found
herein nor his relationship (or assumed friendliness) with
employees constitutes excepting circumstances such that
the Board would not hold the Respondent responsible
for such antiunion conduct of the said supervisor.3 2
would only further note that the employees herein in
fact looked upon Freeman as their foreman. According-
ly, I further conclude and find, that by the above con-
duct of Freeman, Respondent has additionally violated
Section 8(a)(1) of the Act. Cf. Wolverine World Wide,
Inc., 243 NLRB 425 (1979); Daniel Construction Compa-
ny, a Division of Daniel International Corporation, 241
NLRB 336 (1979).
The remaining issues in regard to the certain raises
granted and made effective on April 4 and April 18 may
now be considered. Even without antiunion considera-
tion, a "well timed" benevolent grant of a wage increase
to employees in the midst of an employee union organi-
zational campaign constitutes an unlawful employer in-
terference in violation of Section 8(a)(l) of the Act.
N.L.R.B. v. Exchange Parts Company, 375 U.S. 405, 409
(1964). Whatever pragmatic reservation may arise in the
plausibility of attributing specific knowledge to Respond-
ent of the occasion of Bonnett's campaign opening in the
form of the personal followup request made of Freeman
for a list of employees, there is no such cause for reser-
vation with regard to Superintendent Guseman as to the
latter's awareness of the advent of union activity pro-
vided by Freeman's more limited general report that a
union organizer was then actively contacting Respond-
ent's employees. Guseman did not deny receiving such a
report from Freeman, and the same is, I have found,
credibly evidenced as occurring (at least) a few days
before April 9.33 To be sure, I am persuaded by the con-
viction of certain of Petitte's testimony, and its plausibil-
ity in the light of the weight of the record evidence
before me, to conclude that Petitte probably did not spe-
cifically know at the time he announced raises (beginning
on April 10) that certain of his employees had already
signed cards for the Union (commencing the day before).
However, I have the gravest reservation to full accept-
ance of his other urging that he was not aware at all of a
union campaign at the time, given his own admission that
he was aware in March (thus at least by the end of
March) that there was local union unrest over Respond-
ent's nonunion operation's use of the unionized tugboat,
other timely rumors, and the established awareness not
only of Freeman, but even more significantly of Superin-
tendent Guseman, of the specific fact that a union orga-
nizer was actively contacting Respondent's employees
prior to the announced grant of increases on April 10.
32 It is to be noted that, in any event, the Board has held, even in in-
stances of warranted exemption from unfair labor practice findings, that
the employer is chargeable with knowledge of union activities acquired
by such a supervisor, and that the supervisor's statements to employees
are admissible as evidence of his employer's motivation in discharging in-
dividuals. Montgomery Ward, Supra at 647.
"3 This finding is based on the credited testimony of Bowman and fair
inference therefrom and from Guseman's lack of denial.
Nor in my view has Respondent otherwise advanced
cohesive or persuasive explanations for the timing of the
announced grant of wage increases to employees at this
time. Rather, the strained compatibility of record fact
with Respondent's assertions of merely following the
policy of a claimed annual raises, and/or one keyed to
the timing of area union raises as initially asserted and
then substantially defaulted by Frabutt, together with the
inconsistencies of past practice evidenced thereon related
above and in the record otherwise, the lack of prior
awareness of same by employees and supervisors alike,
and the incongruity of a claimed initial review of wages
by Petitte on April 10 as a result of Freeman's report of
employee concern over earlier raises unusually granted
to but three individuals, under circumstances that partici-
pants have either reported divergently or denied, and as
compared with the recollection of Frabutt of wage dis-
cussions held even a day or two earlier, sufficiently dem-
onstrate, in my view, both reason for rejection and cause
to look elsewhere for purpose. In passing, I would only
add that even a mere advancement of raise increases
(e.g., from May to April) in the above circumstances
would be no less unlawful; nor does even the considera-
tion of an announcement of similar (partial) wage in-
creases as much as a week earlier (in April) at the non-
union mine warrant a different conclusion, where it is
conceded it also was carried out, inter alia, to keep the
Union out. Accordingly, I conclude and find that, by an-
nouncing the wage increases to Respondent's employees
on April 10 and at a time when Respondent knew a
union organizer was actively contacting its employees,
Respondent has interfered with the Section 7 rights of its
employees in violation of Section 8(a)(l) of the Act, as
alleged in the complaint. Honolulu Sporting Goods Co.,
Ltd., a subsidiary of Zale Corporation, 239 NLRB 1277,
1280 (1979); Montgomery Ward & Co., Incorporated, 220
NLRB 373 (1975), enfd. 554 F.2d 996 (10th Cir. 1977)."3
5. The termination and reemployment of employees
Earl Bowman, Willard Eddy, Charles Trippitt, and
Richard Heller
a. The discharges
Petitte did not think he spoke to other employees on
April 12 after he had spoken to Bowman, but he did
recall discussing the situation further that afternoon with
his brother, Jasper Petitte, to whom it will be recalled
Freeman reported on April 12, inter alia, that Bowman
had signed a card. At the hearing Respondent made a
major admission that it had discharged the four above-
named employees for a discriminatory reason. Thus, Pe-
titte acknowledged that on the afternoon of April 12 Re-
spondent decided to fire four men, and did so primarily
"' Having so found and concluded, I further conclude that I need not
reach or resolve whether the additionally observed inconsistencies as to
the indicated unusual earlier grant of wage increases by Guseman to
three employees (though made effective April 4), in the additional light
of Guseman's guarded testimony in not recalling the timing of same
except in relationship to other employee raises, relating "I'd like to say a
couple of weeks, but I'm not too sure about that." is merely to be regard-
ed as rendered suspicious. or has itself risen to the level to warrant still
further unfair labor practice findings therein
1123
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because Petitte believed they were union supporters and
were where the Union would concentrate its effort. 35
Thus, in addition to the suspected Eddy and Bowman,
employees Heller and Trippitt were also selected for dis-
charge.36 Petitte thereupon typed up individual discharge
letters for these four employees, placed them in separate
envelopes with the name of the respective employee
thereon, and left them in the filing cabinet at the scale-
house. Two of the employees were notified on Friday,
April 13. Petitte did not recall if Freeman gave them out
(but Freeman did give them to Bowman and Trippitt).
On the following day, April 13 (a Friday), at quitting
time, Freeman told Bowman and Trippitt to follow him
to the scalehouse. They first went to the supply room,
and Freeman then went inside the scaleroom, opened the
file cabinet, and withdrew two letters, handing them to
Bowman and Trippitt. Bowman's letter, in evidence,
reads:
This notice is to inform you that due to poor
market conditions there will be a general cutback in
personnel and labor force. Termination of your job
is to be effective immediately as of 4-13-1979.
Management,
Jasper Petitte
After Bowman had read his letter, he said to Freeman,
"[y]ou know what this was for?" Freeman replied, "I
figure, but I don't know for sure." Bowman said it was
due to the Union. Freeman said if they needed any refer-
ences to contact him, and he would give it.
Trippitt confirmed that Freeman called him to the
office at I I p.m. and that he was terminated on a Friday
night only 3 or 4 days after he received the last raise.
Freeman received the same "general cutback" notice as
did Bowman. Although not corroborated, as Bowman
could not recall what Trippitt said, Trippitt testified
credibly that he told Freeman that "it seems like its kind
of silly for us to get a raise 3 days ago and get laid off
today." Freeman replied, "I don't know, I talked to them
for over an hour, and they still wanted me to give you
this letter." Freeman also said that Respondent said he
(Freeman) might not even have a job. Trippitt also testi-
:` Petitte explained that he had not consulted a lawyer and did not take
legality or illegality of the action into consideration at the time, nor con-
sider if there would be any legal repercussions, but decided to fire the
four employees and just felt that was the end of it. The Union, in its
brief, while acknowledging the same as an exceedingly damaging admis-
sion, nonetheless argues that such is not an indication that Petitte is an
otherwise credible witness: but that (for asserted reasons) Petitte has ad-
mitted only what he could not conceivably deny. In evaluating Petitte's
testimony I have taken both arguments into account.
3s Petitte testified that he felt Heller would also probably be prounion
because he was a close friend of Eddy and Eddy would influence him to
so be and also because Heller had been "laid off to begin with, just let
go" and (he felt) would do anything to hurt Petitte However, also re-
vealingly. Petitte asserted as a further reason that Heller (had) had access
to confidential information and Petitie did not want same to continue.
(At the time Heller was working in the yard and had no such access. but
later he did when he returned as weighmaster.) Trippitt was suspected by
Jasper Petitte because. though a brother-in-law of the latter's son, Trip-
pitt had been recently "reamed out" by Jasper Petittle over an incident
involving alleged misleading of the son, and Jasper Petitte concluded that
Trippitt would go against Respondent for spite or revenge and probably
go union.
fled that there had not been a third shift before, but that
one was established after they returned to work on April
23, which shift is still in place, and he otherwise con-
firmed that Freeman offered that, if Trippitt needed a
reference for another job, Trippitt could call Freeman.
Eddy related that he received his termination letter on
April 14 (a Saturday) while working on a garden tiller
(at a neighbor's home). Guseman drove up and handed
Eddy an envelope. Eddy asked what it was. Guseman
said, "I guess its your walking papers," requesting Eddy
not to hold it against him because he was just doing his
job, and then Guseman drove away. Eddy's letter of ter-
mination was somewhat different from the basic "general
cutback" letter received by Bowman and Trippitt. It pro-
vided:
This notice is to inform you that due to poor
market conditions, lack of responsibility, unexcusa-
ble missing of work, drinking of alcoholic beverages
and coming on company property, I feel that you
have endangered the safety of our men and there-
fore must be terminated immediately. Effective 4-
13-19.
Management
Jasper Petitte
Eddy's missing of work (for a previously planned
hunting trip) at Thanksgiving and suspension for 3 days
has been earlier noted. With regard to the referenced
drinking Eddy related that about 1-1/2 months before
then he had finished work, gone home, eaten, and had a
few beers, and returned to the job. Eddy explained that
he had returned to see if Bowman wanted help with a
leaking barge. He related that Guseman was there, and
had asked him what he was doing there. Eddy told Gu-
seman, who said nothing to him in return. Eddy then
spoke to Bowman and left. Guseman confirmed the inci-
dent, though he could not recall the details, but signifi-
cantly testified that he made no recommendation that
Eddy be fired. Eddy testified that he otherwise only
drank on the premises when others had done so; viz, the
superintendent, the foreman, truckdrivers, and other em-
ployees. Superintendent Guseman generally confirmed
even this; viz, that in the past the supervisors and the em-
ployees would break open a case of beer when the shift
was over or on the weekend. Otherwise Eddy explained
the referenced absences as being occasioned because he
also had problems with an apparently work-related back
injury at the time while working 6 days a week, and
would have to take a day off once in a while. He ad-
mitted that Guseman had spoken to him orally, telling
Eddy that he wanted to see Eddy there 5 days a week
but that he would not thereafter have to work on Satur-
days. The asserted additional reasons for the discharge of
Eddy, under all the circumstances, were clearly pretex-
tual.
Heller testified that the last day he worked was
Friday, April 13, but that it was actually on April 15
(Easter Sunday) that William Harmon (a friend of
Heller) came by Heller's home and advised him that
Foreman Casino was outside and wanted to see him.
1124
MAIDSVILLE COAL CO., INC.
Heller went outside. Casino then handed Heller an enve-
lope with Heller's name on it, and he stated that Heller
was not to blame Casino, as Casino did not have any-
thing to do with it. Heller inquired what Casino was
talking about, and Casino told Heller to open the letter.
When Heller did so, he found the same "general cut-
back" letter of termination and a final paycheck.
On the basis of the above evidence and the admissions
of Petitte, I readily conclude and find that Respondent
has discriminatorily discharged employees Bowman,
Eddy, Trippitt, and Heller in violation of Section 8(a)(3)
and (1) of the Act.
b. The Union's intervening demandfor recognition
Petitte confirmed (through Morris and Bonnett) that
on April 19 union representatives came to his office and
presented him with their demand letter requesting recog-
nition and bargaining. According to Morris, Petitte de-
clined to do so, telling them to do what they had to do.
Petitte's version is that he told them that he did not have
anything to say to them at that time, and requested that
they leave his office, and that the union representatives
immediately told Petitte that he would hear from their
attorneys.
Petitte then took the demand letter to David Frabutt,
Respondent's controller, and it was decided that Re-
spondent should contact the local corporate (but appar-
ently nonlabor) counsel, which Petitte promptly did. Ac-
cording to Petitte, he was told that he did not have to
recognize the Union, that he should send the correspond-
ence on and counsel would look into what was to be
done, but that the firing of the employees was definitely
illegal, and they should be hired back to eliminate his ex-
posure to reinstatement with backpay. Petitte asserted
that he went out to try to round up the employees to
bring them back to work.
c. The evidenced circumstances of the recalls
(1) Trippitt's recall
It was Petitte's understanding that three of the men
did not have phones. He instructed Freeman to contact
Trippitt (who did have a phone), and Petitte intended to
contact Heller and Eddy himself but asserts that he
could not locate them during the afternoon of April 19.
On Thursday, April 19, Freeman contacted Trippitt.
Trippitt testified that Freeman asked him if he was
ready, or wanted, to come back to work. Trippitt re-
plied, "Yes," but not until the beginning of the next
week. Trippitt's version is that Freeman also said that he
was talking about (with) a sufficient raise. Trippitt in-
quired as to what Freeman called a sufficient raise, and
Freeman said $8 an hour. Trippitt asked if Freeman was
going to call the rest of the employees. Freeman said
that he would as soon as he could contact them, and
Freeman then asked if Trippitt could come down that
evening and talk to him about it. Trippitt recalled that
the Union was not mentioned in the phone conversation,
but testified that it was mentioned later that evening by
Freeman.
Thus, Trippitt testified that he subsequently met with
Freeman about 10 p.m. at the scalehouse, and Freeman
there told Trippitt that the employees would get the $8
an hour if they would forget about the Union and that
there would not be any union there. Trippitt asked again
if he was going to call back the other employees. Free-
man (again) said that he would as soon as he could con-
tact them. Although led, Trippitt testified that he also
asked if they would get their backpay, and Freeman re-
plied, "Yes, next payday." Trippitt promptly pointed out
that the next payday was the following day. Freeman
then said, "[O]kay, come in tomorrow and I'll have your
money at noon." Trippitt returned at noon the following
day, April 20 (a Friday). Freeman gave Trippitt his
money (in cash).3 ' Significantly, Trippitt testified that
Freeman at that time told him that there would be a
meeting Monday on the hill.
Freeman confirmed that he called Trippitt and
Bowman (though I find that Bowman was called later on
Monday morning, April 23) after they were fired about
coming back to work. At the time he and Roberson were
trying to run the operation, and Freeman related that he
wanted them back because they knew their jobs. Howev-
er, Freeman acknowledged that it was Petitte who had
specifically asked him to call them and to get them to
come back to work. Freeman confirmed that he had
called Trippitt and had spoken to him at night (and
Bowman during the day). He also confirmed that he
asked Trippitt (and Bowman) to come back to work and
that he had also told them they should forget about the
Union, that the Union was a mistake, that they should
get back together and be like the family they were
before. His version otherwise is that he said, "I'll try to
get us a raise, and that they'd get the wages stepped up,
that he figured about $8." However, Freeman asserted
that he urged them to forget about the Union and men-
tioned future raises to them on his own. Of course, at
this time not only was Freeman a supervisor as found,
but also there would by this time have been no question
in the eyes of the employees that he was acting in that
capacity for management. Moreover, his offered answers
as to why he would have at the time (even) thought he
could anticipate receiving still further raises after all the
employees had only recently received substantial wage
increases were, if not discernibly and revealingly nonre-
sponsive, certainly and clearly not convincing. Far more
plausible is that Petitte was the source because of his
own expressed willingness to combat union interest
amongst his employees with the promise of still more
substantial wage increases. Accordingly, I conclude and
find that Respondent thereby has unlawfully promised
employees increased hourly wages to dissuade them from
interest in the Union in violation of Section 8(a)(1), as al-
leged in the complaint.
" Petitte (obviously upon the report from Freeman) confirmed that
Freeman contacted Trippitt, but that Trippitt could not come back to
work on the following day, April 20 (a Friday). because of a prior com-
mitment. and also that he was in need of some money. Freeman told
Trippitt that Petitte was going to bring him back and give him backpay
Petitte related that, when Trippitt came by on Friday to pick up his
(backpay) check, it was not ready. but that Freeman paid Trippitt out of
his pocket, and then reported what he had done to Petitte, who then had
reimbursed Freeman.
1125
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the early morning of April 20 Harmon again came
to Heller's house and told Heller that Foreman Casino
wanted to meet with Heller at 8 a.m. down in Maidsville
but across the road from the preparation plant on the hill
so no one could see them. Heller did as directed and
Foreman Casino met him up on the hill. According to
Heller's uncontested testimony, Casino on that occasion
asked him what he knew about a union, and specifically
asked Heller if he had signed a union authorization card.
Heller told Casino that he did not know what Casino
was talking about. Casino then inquired as to why Heller
was mad, and Heller replied that he was mad because he
had been fired and because of the way he had been fired,
stating that if he had done something wrong he could see
it, but that he did not appreciate the way he was fired.
In this conversation Heller also told Foreman Casino
that he had contacted a couple of attorneys (though he
had not as yet) and had spoken to a couple of govern-
ment officials who were going to take care of the matter
for him. With that said Heller left and went home. As
Casino did not testify, the testimony of Heller stands un-
contradicted. Accordingly, I conclude and find that Re-
spondent has thereby interrogated its employees as to
whether they had signed a card and otherwise as to their
union activities, interests, and sympathies, all in violation
of Section 8(a)(1), as alleged in the complaint.
(2) The Petitte and Heller-Eddy meeting of April
20; alleged threats and promises of benefits
Between 10:30-11 a.m. that same morning, Amelio Pe-
titte (another brother of the Petittes) came to Heller's
house, and informed Heller that Petitte wanted to see
Heller down at the preparation plant at the scalehouse.
Heller inquired, "[H]ow come," and Amelio Petitte re-
plied that he did not know why, but that Petitte had said
he wanted to see Heller down there. Heller responded
that he knew what it was about, and that it was because
of the Union. Amelio Petitte said that he did not know
and left.
It was not long thereafter that Eddy arrived at Hell-
er's house. Heller was asking Eddy if he had found a job
as Petitte pulled up in the driveway. Heller and Eddy
went outside to meet Petitte. Petitte began by saying that
he did not know what he was going to do with them. 38
Heller inquired as to what Petitte meant, and Petitte
asked if they wanted their jobs back. Heller replied,
"[W]e do and we do not." Petitte asked what kind of an
answer that was, and Heller responded, "[W]e'll let you
know in a couple of days." That was unacceptable to Pe-
titte, who told them, "[I]f you want your job back, you
report to work, and if you don't, that's it." Heller told
Petitte he did not, that he could not go back under the
conditions that they had worked under, and that he was
mad over receiving a termination letter rather than Pe-
titte's confronting them. Petitte said that he had written
the letter in haste, he knew it was wrong when he did it,
he was sorry for doing it, and he wanted them to come
back to work. Heller asked if Petitte was going to hire
"* The following is a composite of the mutually consistent and credited
testimony of Heller, Eddy, and Petitte. Where substantial conflicting var-
iances appear they are noted.
everyone back, and Petitte said that he was, and, upon
inquiry, that he would pay them their backpay. Petitte
asked what was so bad about the working conditions
down there. Both employees told Petitte that they were
tired of being harassed by Foreman Casino. Petitte de-
scribed in greater detail (which I credit) that as he start-
ed back to the truck Heller said to him, "[WJait just a
minute, you know that there is more here than just a job,
your problem is a lot more. You would not have had any
problems if it wouldn't have been for one boss down
there; and you know damn well who I am talking
about." Petitte replied that he thought so. Heller said
that Casino rode employees too hard and gave them too
much hell, that he did not think they had to work under
those conditions, that it was not (just) their opinion, that
50-60 percent of the work force felt that way, and that,
if Petitte got rid of Casino, everything would probably
get back to normal down there. Petitte said that he could
resolve that problem immediately (and he subsequently
did so).39 Heller said there were some other points and
he mentioned wages and other subjects and Eddy men-
tioned retirement. Petitte had them wait a minute while
he obtained paper and pencil from the truck so he could
write the items down, and then they went into Heller's
house.
There is conflict over what was said about wages.
Heller's version was that he said he did not think they
were paid enough, and that it was Petitte who said he
would pay them $8 an hour if they came back to work.
According to Petitte, Heller, referring to their conversa-
tion earlier in February, stated that he had calculated it
and he was looking for $8 an hour. Petitte replied, "[i]f
that's what it is, that's what it is, I told you that I would
take care of you when you came back to work." On re-
buttal, Heller denied that anything was said to him by
Petitte about having earlier promised him a sizable in-
crease, and he testified that they did not discuss his per-
sonal rate at all at that time. (Eddy did not remember
that part of the conversation.)
All confirmed that Eddy brought up retirement, and
Petitte recalled specifically that Eddy said he was look-
ing for some type of retirement, and that he did not want
to end up with 20 years down there and an empty
bucket. Petitte said he knew that they (Eddy and Heller)
had signed cards, and he told Eddy that he could oblige
Eddy with a job in the deep mines, which Eddy prompt-
ly declined. Heller also suggested that the employees re-
ceive vacation pay and paid holidays and that overtime
be made optional, and Petitte agreed immediately that
overtime could be optional. (Heller testified that the em-
ployees theretofore had been receiving an overtime re-
quirement at the last minute.)
Petitte related that the employees also requested that
there be mutual respect between employees and bosses.
Petitte said he did not see where there was any problem
"9 Petitte explained that Heller and Eddy did not know it but that was
the second or third time that employees (including Freeman) had com-
plained to him about Casino, and that Petitte had already made up his
mind to put Casino in another position. The three new job applicants
who were hired on April 18, but did not report for work until April 23-
24, were put to work on a third shift with Casino (as Petitte related) as-
signed not as foreman, but as their leadman.
1126
MAIDSVILLE COAL CO.. INC.
to resolve there, that he did not feel that he had ever
had any problem with them. They replied that it was not
Petitte, and that he knew who they were talking about.
They told Petitte that he had just a few problems down
there, and that they thought the union problem could be
resolved if he were willing to meet their demands.
Petitte said that he could not afford to have a union
down there, because it would break him, and that there
was no threat intended, but, if a union did come in down
there, the work force would be cut back, and it would
probably include both of them. Petitte said that he would
contact the insurance man and get a pension plan started
right away, however, with regard to the requested pay
increase, vacation pay, and paid holidays, he could not
give that to them unless the Union were voted out, and,
as soon as it was, he would give all the employees $8 an
hour, paid vacations, and paid holidays. 4
There is also some conflict as to who may have initial-
ly suggested that Heller act as spokesman for the em-
ployees. Heller testified that it was Petitte who suggested
to Heller that, since he was doing most of the talking,
"[W]hy didn't Heller just be the spokesman for the em-
ployees." Heller said that he would do so only if the em-
ployees could come directly to him with their grievances
and if he thought the grievances were menial they then
would not need any further discussion with the manage-
ment or bosses. However, Petitte asserts that he did not
suggest that Heller act as spokesman, but that Heller,
who was doing most of the talking, stated to him that he
would act as spokesman. Eddy confirmed Heller that it
was Petitte who asked Heller if he would be spokesman
and Heller agreed. In context either version would
appear plausible. The finding that I do make therein is
the uncontrovertible one that, at a time when Respond-
ent had received a demand for bargaining from the
Union as the exclusive collective-bargaining representa-
tive, Respondent recognized employee Heller as the em-
ployees' spokesman for discussions on improved wages,
hours, and working conditions. Petitte told Heller and
Eddy to report for work on Monday, and they said that
they would.
On the basis of the above findings I readily conclude
and find that Respondent has threatened employees with
a cutback in operations and layoff if they selected the
Union as their collective-bargaining representative, and
has promised employees increased hourly wages and im-
proved working conditions and benefits in order to dis-
suade them from selecting the Union as their collective-
bargaining representative and from engaging in activities
on behalf of the Union, in violation of Section 8(a)(1) of
the Act, as alleged in the complaint.
40 Although Petitte denied that he actually told the men he would
grant them what (benefits) he had on the paper, he acknowledged that he
did tell them at that time that he did not see any problems with their
demands; that he did not think they were outrageous or unreasonable;
that they would be taken under consideration and something could be
worked out, testifying finally, however, that, though not recalling it, it
was quite possible that he told them the above benefits could not be
given until the Union was voted out because that was what was in his
mind at that time-to get things back to normal without a union. Under
these circumstances I credit Heller's further recollection as well (as being
the more plausible) that Petitte said (essentially) that he would rather
split the savings from having no union with the employees and pay them.
(3) Petitte's second visit to Heller's home
Heller related that, on the following Saturday morn-
ing, April 21, on returning from the store, he observed
Petitte in his driveway talking to Mrs. Heller. As he ap-
proached, Petitte said that he had talked to the insurance
man about the retirement program; and that the way it
would be set up was that if an employee worked for the
Company for 30 years he could retire with $170,000 to
be paid all at one time or so much a year or month. Pe-
titte also informed Heller that there was to be a meeting
at 3 p.m, on April 23 (a Monday). Petitte also inquired of
Heller if he would like to have his job back in the scale-
house. According to Heller, he replied that he did and
asked what the rate would be (because when fired as
highlift operator he had been making $5.50 per hour),
and Petitte said that he would let Heller know on
Monday and told him to report in on Monday.
Petitte confirmed that on Saturday, April 21, he re-
turned to Heller's home, and that Heller was not there
when he arrived. Petitte spoke to Heller's wife. Accord-
ing to Petitte, Mrs. Heller said she would really like for
Petitte to take Heller back. Petitte told Mrs. Heller that
they had (already) decided that. Mrs. Heller then said
that Heller would like to have his old job back in the
scalehouse because it was private, and that their home
life had been disrupted by Casino's chewing Heller out,
harassing him, or expecting him to do more work. Petitte
did not recall Heller being there, but added he may
have. However, Petitte acknowledged that, in either that
conversation (with Heller present) or in the conversation
with Heller the day before, he told Heller that a meeting
had been arranged at the office for insurance purposes,
and told Heller what Hawkins, the insurance man, was
trying to provide for him, and some of the employees at
the mine, explaining that a sum would be taken out of
their pay and after 30 years it would amount to $175,000
and be available in a lump sum or installments, and that
they could talk to Hawkins about it. According to Pe-
titte, he told Heller how it worked, but that it would be
up to him if he wanted to inquire (further) about it. Pe-
titte denied that he said who was going to pay for it, or
that Respondent intended to set up the plan or pay con-
tributions to it. If not to report on the plan and a meet-
ing Monday on it, it is hard to discern from this record
the purpose of Petitte's additional visit. Additionally, I
would find it also hard to believe that there would have
been a discussion with Heller on Friday about his return
to his former job as weighmaster without his wife's
awareness of that arrangement as indicated by Petitte's
recollection of her request made of him on that subject
that day. I find that Heller's version is more consistent
with Petitte's admission of Mrs. Heller's having made
such an inquiry, and is more plausible, and I credit it. I
thus find that Petitte's visit that day to Heller's home
was to report to spokesman Heller on what he had addi-
tionally found out about the retirement plan and to
advise Heller that there would be a meeting on it on
Monday. I further find that after discussions with Hell-
er's wife Petitte offered Heller his former job back as
weighmaster. The record has persuasive support for
Heller's return as weighmaster at this time; viz, business
1127
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been both backed up and picked up, employees
began working more hours, a third shift was added and
kept on, and there is an essential admission by Petitte
otherwise of clear business improvement independently
warranting such at the time. However, it should be ob-
served that Petitte's willingness thereon came with Hell-
er's indication to Petitte of an equal willingness on his
part to speak on behalf of the employees without the
Union. These circumstances apparently changed.
(4) Petitte's seeking additional advice
Charles T. Lazzell has been a neighbor and friend of
one of the Petittes for some 25 years. Prior to March
1979 he had been employed at a state university (1966-
67), and had become president and business manager of a
Laborer's Local Union for years representing (1,000-
1,500) state employees. However, in March 1979 Lazzell
had resigned to go into business for himself as a building
contractor. Petitte related that his sister knew Lazzell
and had suggested that Petitte go talk to Lazzell. On
Sunday, April 22, Petitte and another person drove over
to Lazzell's home and spoke to him. They told Lazzell
what had taken place. 4' Petitte told Lazzell of the dis-
charges, and rehiring, and of the demands made upon
him by Heller and Eddy. Petitte also told Lazzell that he
had fired the four men because of the union organiza-
tional campaign, but that he fired Eddy also because
Eddy had caused him a lot of problems with drinking
and coming on the property. According to Petitte, Laz-
zell suggested that he contact present counsel of record,
which Petitte did later that evening. Lazzell also went
over some things Petitte should not do; viz, that he
should not fire anybody, that he should not get involved
in any negotiations (with the employees), and that he
should thereafter put everything in writing. Lazzell also
expressed a willingness to come down to Petitte's office
and do what he could to help make sure that Petitte's
conduct was (thereafter) orderly and that he not do the
kinds of things on which charges would be brought.
(5) The events of Monday, April 23
(a) Heller's limited return; Eddy's return delayed
On Monday morning, Heller went to the scalehouse
where he had worked before and where Roggish had
been working as the weighmaster in the interim. Petitte
arrived and told Heller that he was to work along with
Roggish for a while to observe the bookkeeping (and/or
filing) system that Roggish had set up, in the interim as
Petitte wanted it done that way. Petitte also told Heller
that he was to tell Eddy when he went in to go back
home until 10 a.m. Heller inquired why, and Petitte re-
plied that he was thinking about not hiring Eddy back
because Eddy had a drinking problem. Heller told Petitte
that he did not think that Eddy drank any more than the
" However, Petitte's recollections as to what he told Lazzell about his
earlier contact with (corporate) counsel were inconsistent if not in direct
conflict. Thus, on direct examination Petitte related that he told Lazzell
that he was not satisfied with his attorney and was looking for help. On
cross-examination he related that he did not tell Lazzell of his contacting
his attorney, or the advice received, though acknowledging that he was
kind of vague on this subject.
rest of them, and that was not right if Petitte was going
to have Heller back not to hire everybody else back.
However, Petitte did not change the instructions, and,
when Eddy arrived, Heller told Eddy what Petitte had
said. Eddy then left to return at 10 a.m.
After Petitte had spoken to Heller he proceeded on
through the yard and went up to the office where he
met with Lazzell, and Lazzell again went over with Pe-
titte some of the things Petitte could not do. Lazzell told
Petitte, inter alia, that he should not talk about wages,
anything beneficial to the men, or anything harmful to
the Union (with examples), but that he should run the
business the way he had in the past like the Union never
happened. As noted, Lazzell related that, in the first dis-
cussion of the terminations Sunday, he told Petitte that
he should hire everyone back and pay them their back
wages. However, in that regard Lazzell also testified that
they talked mainly about Eddy's drinking. Lazzell also
testified that he told Petitte that the matter of Eddy's
drinking had not been documented enough to support
Eddy's discharge, which suggested that there was a
review of the records. (Any such review would more
likely have taken place that Monday morning and may
have well accounted for the delay until 10 a.m. in the de-
cision to eventually reemploy Eddy.)
42 Eddy returned at
10 a.m. At that time Heller called Petitte and notified
him that Eddy was back. Petitte came down with Laz-
zell, whom he introduced as his advisor. Petitte inquired
of Eddy whether he wanted to work the afternoon shift
(that day) and Eddy replied affirmatively. Petitte then
said okay. Heller asked Petitte if he had contacted em-
ployee Earl Bowman about the 3 p.m. meeting. Petitte
replied that he could not and did not know how to get
ahold of him. With that Heller inquired if Petitte would
mind if he and Eddy tried to find Bowman and let him
know because this was an important meeting. Petitte
then told Heller that he could not go over the proposals,
that he could not make any promises to the employees,
and that he could not offer them anything because it
would be illegal. He also stated that he could not bargain
with them because it would be llegal. Petitte testified
credibly that Heller became extremely upset about their
not talking about the demands. Heller asked if he could
talk about it with the other employees, as they were
going to be upset. According to Petitte, Lazzell said that
it was up to Heller, and that the employees were allowed
to talk about anything they wanted. Heller then inquired
*2 Lazzell variously testified that the purposes for his appearance at Re-
spondent's plant on Monday (and presence off and on except for substan-
tial periods in the next 2 weeks) was to keep Petitte from engaging in
conduct that would be construed as unlawful activity, and that a priority
of his on Monday was to similarly instruct the foremen, and to be availa-
ble to explain to employees that Petitte could not discuss with them at
that time any improvements in their wages, hours, and working condi-
tions as they were expecting. Lazzell denied that he participated in an
antiunion stratagem, testifying that he had been a longtime business agent
who was proemployee, not promanagement, and that he had provided
this assistance of explaining the rules to Petitte as a friend of the family,
for which time and effort he was not paid, though he acknowledged
having at the time some current and potential business interests (in coal
property leasing) with the Petittes. Be that as it may. the record is clear
that he did give recommendations on Eddy's return whether on review
of just the discharge letter on Sunday or after a further review of Re-
spondent's records on Monday morning.
1128
MAIDSVILLE COAL CO., INC.
how it would be if at the meeting he brought up the pro-
posals; Petitte could either agree or not, and that would
get him off the hook. According to Heller, whom I
credit, Petitte did not answer, and Lazzell said, "[I]f you
bring it up at the meeting we'll give you your answer
then."4 3
Heller also appeared to relate that Petitte in the same
conversation (in Lazzell's presence) inquired of them
whether they really wanted the Union in, and that Heller
responded that if Respondent had taken better care of
the employees in the past no one would have had to
worry about a union coming in at that time, but it looked
like it was too late for that. Heller's testimony indicated
that Petitte stated on this same occasion that he was
thinking about not hiring Bowman back either because
Bowman came from a union family and Petitte was
afraid his family might influence Bowman's decision
about the Union, and that Petitte also said that he knew
Heller and Eddy had signed cards, that he could not
afford to have a union in there, and that if one did come
in a lot of people would lose their jobs. Although Heller
and Eddy placed these statements in the 10 a.m. conver-
sation with Lazzell present, Petitte denied making such
statements at that time, and Lazzell also denied ever
hearing them said by Petitte in his presence. Lazzell did
relate that Petitte, in telling the employees he could not
discuss the wages and benefits with the employees, told
them, "I can't talk to you about that now, but if you
would have come to me before, we could have talked
about it." 4 4
Petitte testified otherwise that he thought he did tell
Heller that he was thinking about not bringing Bowman
back because he was from a union family, but was unsure
when he did so, though he was sure that it was not after
Lazzell had just instructed him as to what he could not
do and further believed that it would have been before
April 22 (a Sunday). Lazzell testified that one of the rea-
sons he was present was to keep Petitte from engaging in
such unlawful conversations with employees, and that
Petitte did not threaten employees in his presence. I am
persuaded from Heller's testimony and Petitte's essential
affirmance that these remarks were made earlier and
Eddy's recollection of also being present that they were
thus probably made in their earlier conversation held on
Friday, April 20. In that connection I observe that a call
to Bowman was not made by Freeman until Monday
morning.4 5 I thus credit Petitte and Lazzell that such re-
43 Lazzell's explanation for same was that he did not know the answer
to the question if the employees themselves approached Respondent, and
that they had to consult counsel. When they did they found out they
could not do that either.
" I further credit Lazzell (and Petitte) that, in Lazzell's additional dis-
cussions with employees in the yard that morning informing them that
Petitte was unable to discuss wages and benefits with the employees, Re-
spondent followed a restrictive format. I thus further credit Lazzell that,
when one or more employees then inquired about employees' getting the
union cards back, they were told that was a matter between them and
their union.
" Bowman thus testified that he next heard from Freeman at 9 a.m. on
April 23. Freeman called Bowman and told him that, if he were to forget
about the Union, "We could all come back to work. and be one happy
family."
marks were not made in the 10 a.m. conversation with
Heller and Eddy as they recalled. However, I do find
that the remarks as made earlier in the April 20 conver-
sation were additionally violative of Section 8(a)(l) as a
further coercive threat of nonrecall for union interest
and threats of job loss if employees selected the Union,
and I find that they were likely made during the discus-
sion and prior to the amicable understanding in regard to
the future wage increase and benefits consideration by
the Respondent without the Union, eventually reached
that day as shown above.
(b) The meeting at Eddy's house
Eddy and Heller then left and contacted employees
Earl Bowman and Charles Trippitt and arranged a meet-
ing at Eddy's home to go over the proposals. 46 The four
employees met and went over what they thought would
improve the working conditions and the morale of ev-
eryone. The proposals discussed included employees' re-
ceiving $8 an hour with overtime, paid vacations and
holidays, a suggestion box, optional overtime, and no ha-
rassment from the bosses to the employees or vice versa.
Also the four who were fired would be paid backpay.
The aforesaid employees then left Eddy's trailer and re-
turned to Respondent's office to attend the meeting
scheduled for 3 p.m.
(c) The office meeting
Heller related that before he got in the door Petitte
took Heller aside and informed him that he could not
even bring up the proposals because Petitte had received
a letter from the NLRB prohibiting him from bargaining
with them in any way, and that he definitely could not
grant any proposal that might come from employees.
Heller responded that "this [development] isn't going to
go over very good with everyone else." Petitte respond-
ed that his hands were tied and there was nothing he
could do, and that it would be illegal if he did anything
because of the NLRB letter. Petitte confirmed approach-
ing Heller in the hall before the meeting that afternoon,
and testified that he told Heller that they had received a
letter from the NLRB, that his hands were tied, and that
he could not talk about anything to anybody even if he
wanted to, that management could not discuss the terms
of demands or negotiate, that it was too late for that and
that he was not allowed to discuss any of the things that
they had talked about at Heller's home. He also testified
that Heller said that the guys were going to be upset,
and that he would bring it up. Petitte handed the NLRB
papers to Lazzell in the hallway. They went into the
meeting.
In attendance at the meeting held in Respondent's con-
ference room were Petitte, Guseman, Lazzell, and almost
all of the employees, including Fain, but excluding em-
ployee William Elliot, who was absent that day.47
*6 Bowman confirmed that he received a call from Heller at or about
noon. Heller told him that there was going to be a meeting at 3 p.m. at
the office, but that before going there Bowman should meet him at
Eddy's house.
47 The following is a composite of the mutually consistent and credited
testimony of Heller, Trippittll, Eddy, Petitte. Lazzell, and Freeman
1129
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Petitte started the meeting by telling the employees
that he could not talk to the employees because he had
received a letter4s from the NLRB, and introduced Laz-
zell to them as a man knowledgeable in such matters.
With the papers in his hand, Lazzell then told the em-
ployees that Respondent had been served by the NLRB,
and could not get involved with them in a conversation
about benefits. Heller said that he would like to have a
meeting with the Company, and he asked that they dis-
cuss the money and benefits. Lazzell replied that was im-
possible, that it was illegal for them to discuss wages,
hours, or working conditions, that Respondent could not
negotiate or promise them anything, and that it would be
like bribery. Lazzell introduced Hawkins saying Hawkins
was going to go over the existing insurance plan changes
(the dental plan).4 9 An employee (probably Eddy) sought
to raise an inquiry about the retirement plan, and Lazzell
told the employees that Hawkins could not talk to them
about a new retirement program, explaining that such
would also be considered bargaining, or bribery, but that
Hawkins would be going over the existing benefits, and
he would answer all their questions in regard to claims
and the new dental coverage.
Heller then asked if the employees could have a meet-
ing. Lazzell told them that they could, but that manage-
ment would have to leave. Heller asked that manage-
ment leave, and they did, except for Freeman.5o
Heller had a paper and told the employees what they
were supposed to get if they did not join the Union.
Heller then read off the proposals that the employees
should put to the Company for improved benefits and
working conditions. Freeman said that it sounded good,
and he then suggested that they have a vote to see who
was for or against the proposals by raising hands. All did
and it was unanimous. Freeman then went outside and
brought in Respondent's secretary, Janice Cyzick (also a
notary public), who typed as directed a memorialization
that a vote was held on the employees' specific proposals
and that it was unanimous.
Freeman then stated that they would have a vote on
the Union and if it were in favor of the Union they
would make all of these proposals effective that day.
However, Heller responded that he was not going to
s The referenced letter was apparently a letter from the Board's Re-
gional Director dated April 20 which had accompanied a copy of the
charge filed on April 20 by the Union, charging Respondent with the
commission of unfair labor practices in the discriminatory discharges of
employees Bowman, Eddy, Heller, and Trippitt on April 13. I do note
that the petition was filed on April 20 as well.
14 There was much evidence presented by the parties on the origin of
this meeting with Respondent's urging that the meeting was one which
had been set up previously with the insurance agent for the sole purpose
of responding to prior questions posed by employees as to their insurance
claims service and prior changes made in the existing benefits. However,
I find that this meeting had been set up at this time for other purposes as
well, including, inter alia., a discussion of the proposed new retirement in-
surance plan, which discussion was at the last moment canceled under
the circumstances described above.
50 In that regard Respondent would have it noted that Freeman's re-
maining was unquestioned by Heller. It might just as well be observed
that Heller, urged by Respondent to be a supervisor, had also remained
without a question raised by Respondent. Of course the explanation for
this arrangement being satisfactory is readily apparent. Respondent knew
what was to be discussed, knew the likely outcome, and approved and
supported same.
vote on the Union, and that if an election were held he
would vote on the Union at the election. Freeman, how-
ever, pressed that they were going to vote on the Union
and requested all that were against the Union to raise
their hands. Five people raised their hands (including
Fain). He then asked all who were for the Union to raise
their hands, and no one raised his hand. Freeman then
said that if it took all day long they were going to have
a vote, and that they were going to vote the Union out.
Heller replied, "You're not going to make us vote; there
will be a time and place," and he said that even if they
did vote it would not be fair anyway because it would
not even be a secret ballot. Freeman then suggested that
they could write down on a piece of paper either yes or
no. However, Heller rejected that also, saying that he
was not going to vote. The other three (discriminatees)
agreed with Heller. Heller then stated that was the end
of their meeting. However, the vote on the Union that
transpired was first also memorialized at Freeman's
urging. Heller then told the secretary to mark on the
paper that four had abstained. The four who abstained
were the named 8(a)(3) discriminatees (Bowman, Eddy,
Trippitt, and Heller). All present signed this memorial-
ization as well.
I find that by the acts and conduct of Supervisor Free-
man, and of Petitte with his awareness, and the support
and assistance provided employees in such, Respondent
has effectively interrogated and polled employees as to
their union sympathies and desires, and has unlawfully in
effect promised employees increased hourly wages and
other benefits, in order to dissuade the employees from
selecting the Union as their collective-bargaining repre-
sentative, and that it has thereby unlawfully interfered
with, restrained, and coerced its employees in regard to
their Section 7 rights in violation of Section 8(a)(1), es-
sentially as alleged in the complaint and/or as fully liti-
gated herein.
The insurance meeting with Hawkins followed. After
that meeting was over Heller met Petitte in the hallway.
Heller brought up the subject of the employees' backpay.
It was Heller's understanding that Petitte's promise on
the earlier Friday was to give the employees their back-
pay if the Union were voted out. In any event, Heller
brought up to Petitte that Petitte had said that he would
give them their backpay. Petitte acknowledged that he
had done so. Heller then suggested that, if Petitte wanted
to win the employees over to the Company's side, it
would probably help to give them backpay since they
could not get the proposals. Petitte said okay and asked
him to wait a minute while he got Lazzell. Lazzell then
said that if Petitte had promised it he could give it. Pe-
titte agreed to do so. Petitte then left, obtained checks
for the employees, and handed them out. Petitte's ver-
sion is that after the latter insurance meeting Heller
asked him in the hallway if the four employees could get
their backpay. Petitte had told the employees personally
and by others that he would reinstate them with back-
pay. When asked, Petitte said he did not see any reason
that he could not do so, and he inquired of Lazzell, who
agreed. Petitte then instructed the secretary to make up
the checks, but he did not know how they were comput-
1130
MAIDSVILLE COAL CO., INC.
ed. He confirmed that Trippitt, who had already been
paid, endorsed his check back over to Petitte. The em-
ployees went to work that afternoon, except Heller, who
returned to work the following morning. The recorded
and signed memorializations of wage and benefit re-
quests, and the vote on the Union, were turned in to Pe-
titte and Lazzell and, after review, forwarded to Re-
spondent's attorney. Given the prior discriminatory dis-
charges, I do not find any additional violation of the Act
in the award of a sum of money to employees as backpay
in the above circumstances.
(d) The subsequent treatment of Heller and related
issues bearing on the allegation of constructive
discharge
On April 24 (a Tuesday) Petitte came by the scale-
house in the morning and asked Heller how the employ-
ees felt about the Union then especially since he could
not give them the proposals. Heller responded that he
could not be sure, that he felt they were upset because
they had been looking forward to the new benefits. Hell-
er's testimony at the hearing was that it was his best rec-
ollection that it was either in this conversation or a later
conversation that day that he had asked Petitte what his
rate of pay would be since he had received his weigh-
master's job back. According to Heller, Petitte replied
that it would be $8 an hour, $320 a week, or $1,280 a
month effective April 23. There is no question that
Heller received such rate of pay as of April 23. There is
a dispute as to when said arrangement was made be-
tween Heller and Petitte, discussed infra.
On the same day, April 24 (I find), Guseman told
Heller that Petitte had instructed Guseman to tell Heller
that he was not to go outside and help around the yard,
but was to stay in the scalehouse and just weigh the
trucks, though Roggish had remained there also perform-
ing weighmaster duties, including handling all the paper-
work.
On April 25 (a Wednesday) Petitte again came by the
scalehouse and asked Heller how he was doing. On this
occasion, Heller replied, "[N]ot very good," and Petitte
asked what was the matter. Heller replied that the thing
about the Union had gotten him pretty nervous and he
just did not feel good. Petitte asked how the employees
felt and Heller responded that he did not know; he was
not sure. Petitte continued, "[D]o you think they'll vote
it in or out." Heller again responded that he did not
know and he was not sure. Heller then said that he was
sick, and he asked to go home. Petitte told Heller to wait
a moment. Petitte went to speak to Lazzell, who was
nearby but not in the conversation. They returned to
Heller, and Lazzell told Heller, "[Y]ou can go ahead and
go home if you feel that bad." Heller said that he would
contact them by Friday to let them know how he felt.
Though somewhat unclear in the record, either Petitte or
Lazzell then said, "You're not going to quit are you,"
and Heller replied, "No, he was not going to quit."
The record herein has been left somewhat choppy (by
both parties) as to the days that Heller subsequently
worked. It is thus on the basis of such records as were
made available and the inherent plausibilities of the
credible evidence of record that I have made the follow-
ing findings. Petitte sent a letter to Heller dated April 27
which recorded that a grant of time off had been made
because of Heller's being physically ill, and, after reciting
that Heller was to have contacted Petitte by phone but
had not done so as of 9:30 a.m. on Friday, April 27, it
went on to provide as follows:
Per our conversation Friday morning, April 20,
1979, you requested your previous duties and re-
sponsibilities as weighmaster, timekeeper and assist-
ant supervisor of coal movement. At this time I
would like to confirm your reinstatement and salary
as $1280 per month which annualizes at $15,360. In
regard to salary, per our conversation, your new
salary became effective Monday, April 23, 1979,
and your supervisory responsibilities will commence
on Monday, April 30, 1979. We are holding your
job open presently. Please call me not later than 3
p.m. Monday, April 30, 1979, regarding to your
return to work. [Emphasis supplied.]
It should be noted, however, that I have found earlier,
on the weight of credible evidence, that the subject of
Heller's return to the weighmaster job was actually
broached by Heller's wife (as reported by Petitte) and
then raised by Petitte and agreed to by Heller and Petitte
on Saturday, April 21. Heller also credibly testified, I
find, that nothing had been said concerning any supervi-
sory duties at all before certain discussions he had later
with Petitte about the content of the letter in that re-
spect. Not only does the letter reflect a self-serving
nature, but I observe in passing, it also reveals on its face
an in futuro commencement of the asserted "supervisory
responsibilities" on Monday, April 30. In that connection
Heller testified credibly that he did not go back to work
that Friday, April 27, nor on Monday, April 30. Howev-
er, it is clear that Heller contacted Petitte on that Friday
afternoon. Heller recalled it as a phone call while Petitte
indicated there was a visit. Thus, Petitte acknowledged
that there was an occasion when Heller came to the
office and reported that he had been terribly upset and
gone to the doctor; that the doctor had told Heller that
his nerves and job were getting to him, and that the
doctor had told Heller to take 2 weeks off. That Heller
did contact Petitte in that manner on the afternoon of
Friday, April 27, is additionally supported by the cir-
cumstance that Petitte sent Heller a second letter that
day, also dated April 27, which then provided:
Since you have requested 2 weeks off due to ir-
regular health problems, there is no reason why the
two weeks of absence without pay cannot be grant-
ed. However, we expect you to report to work at
7:00 A.M., Monday, May 14, 1979.
In regard to your illness, Janice Cyzick, Secre-
tary, will answer any questions you might have
about sickness and accident benefits. 5'
I am thus persuaded, and I find, that Heller probably
visited with Petitte on the afternoon of April 27 (a
5" The new procedure of putting such arrangements made with em-
ployees i writing was one initially urged upon Petitte by Lazzell.
1131
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Friday), some time after consultation with a doctor who
had suggested that he take 2 weeks off, and that it was
later in the next week, and probably early that week,
that Heller called Petitte and told him that he was feel-
ing better and would be coming back to work (early). I
further note in the latter connection that Heller's recol-
lection (that there was also a discussion with Petitte in
regard to the reference to "supervisory responsibilities,"
a matter appearing in the first April 27 letter, and that
Petitte had told Heller, when Heller questioned him on
it, that Heller had the same duties that he had before) is
then also wholly compatible with Heller's prior receipt
of the letter, whereas a conversation thereon on April 27
would have been less plausible.
Heller testified that he returned to work on May I or
2, and I find it was more probably on May 2 (a Wednes-
day).5 2 Petitte told Heller that he had a problem with
one of the employees; i.e., that Freeman and Guseman
had told Petitte that Eddy was not doing his job on the
day shift-"he was not shoveling the tailpieces down on
the river. Petitte then told Heller that he could not go to
Eddy and reprimand or holler at him because Eddy
would just get mad at Petitte and probably try to go
ahead and vote the Union in. Petitte told Heller that he
wanted Heller to tell Eddy that he was going to have to
do his job better or else Petitte was going to have to let
him go. Heller agreed to do so. Heller recalled it as
being the following day that he told Eddy, as instructed
by Petitte that he was to shovel tailpieces like everybody
else on the afternoon and midnight shift otherwise he
would lose his job. Heller testified that Eddy became
upset, contending that others were also involved, and as-
serting that it was not right that he should be getting all
the blame. (Heller, of course, would have had no oppor-
tunity for observance of Eddy's performance on that job,
nor that of others on it.)
Heller also testified that later that same morning (May
2) Petitte came by and said that he was mad at them.
Heller inquired why. Petitte said that every time he had
talked to them about the Union or anything like that it
seemed like outsiders would find out about it, and he
would get into deeper and deeper trouble. Petitte told
Heller that every time he would ask them if they were
talking to anybody other than him about it they would
give no comment, and he told Heller that he figured all
his talk about trying to make working conditions better
was just going to waste because they were running to
somebody at night telling them what Petitte was telling
the employees.
Heller also testified generally that on almost every day
he worked Petitte continued to ask him what the em-
ployees thought about the Union, and if they were going
to vote it in or vote it out, and that Petitte would also
repeatedly tell Heller that he could not afford to have
52 This would have constituted about a -week absence, and is essen-
tially compatible with the testimony of Lazzell, who, during the 2-week
period commencing April 23, was there off and on, but for substantial
periods, and who testified that Heller was not there much in that period.
In that connection, however, I presently observe that Lazzell's recollec-
tions tend to substantiate Heller in that Lazzell recalled it as the late
afternoon of April 23, or the next morning. that there were discussions
with Petitte over whether Heller wanted to come back as weighmaster.
and that he told Petitte to put it in writing.
the Union, and that a lot of them would lose their jobs.
Heller testified that Petitte's continuing questioning of
him about the Union made Heller nervous, and that,
when he told that to Petitte, Petitte replied it (the Union)
was upsetting him too.
On the morning of May 3, Heller became sick on the
stomach to the point that he had to leave the scalehouse
and go to the restroom. On his return to the scalehouse
Heller informed Roggish that he was sick, and requested
her to notify Petitte that he would contact Petitte later.53
On the same day Heller called Petitte about noon. Heller
told Petitte that he wanted to quit. Petitte told Heller
that he did not want Heller to quit, and asked Heller to
come out to the office. Heller agreed to do so that after-
noon.
Heller went to Petitte's office on May 3 at 2 p.m.
Heller told Petitte that the biggest thing upsetting him
was being questioned about the Union all the time while
working. He also complained that he was supposed to
have his job back in the scalehouse but that Roggish was
still there. Heller told Petitte that Petitte had told him
that as soon as he got back Petitte would take Roggish
out and put her back in the office, and that Petitte had
said he wanted Heller to assume all of the duties and re-
sponsibilities of the weighmaster job, but Heller could
not do so with Roggish still there. Heller also pointed
out what Guseman had said Petitte had earlier said about
Heller's staying in the scalehouse. Heller said that it
would be better if Roggish went back to the office. Pe-
titte agreed to put Roggish back in the office, and did so
the next day. Heller returned to work the next day,
Friday, May 4, as sole weighmaster (though only for a
time). I note that Petitte confirmed Heller's return on
May 4.
As noted, Heller actually had returned as weighmaster
earlier on April 23 with a salary of $1,280 ($640 biweek-
ly) computed at $8 an hour on the basis of 8 hours a day
for 20 days per month (though $590 is shown on the
payroll record as effective April 18) and Petitte's letter
reflects the effective date of same as April 23. Heller as-
serted that the agreement on his individual pay rate for
the weighmaster job was reached after he had returned
to the job, on either April 23 or 24, though his prior
statements thereon have not always been consistent
therewith. Thus, Respondent established that Heller in
the prior affidavit given on August 7 related that the
conversation with Petitte in which Petitte told him he
would earn $320 per week or $8 an hour with the same
duties as before had occurred on April 20, the prior
Friday. (The statement with regard to a discussion of the
job, but not the rate, would clearly correspond to Pe-
titte's letter of April 27.) Though acknowledging that he
53 In evidence is the following note dated May 3, 1979, and addressed
to Roggish:
Nikki
Tell Johnny that I came out to work this morning but that I got sick
again. I'll be in touch with him. I guess I came back to work to [sic]
soon.
Thanks
Rich.
1132
MAIDSVILLE COAL CO., INC.
had so stated in that affidavit, Heller's testimony at the
hearing was nonetheless that it was not April 20, but
later, and that he was almost sure that it was April 24.
Additionally, in a prior affidavit dated May 8 (closer to
the event), Heller had there recorded that Petitte had
raised his salary to $1,280 per month on April 23. What
is clear from the above is that there had been agreement
on a wage increase or wage increases for Heller reached
by Petitte and Heller at least before Petitte's first April
27 letter was issued. Respondent introduced additional
evidence in the form of a later statement by Heller,
dated May 3, that would have the arrangement made
thereon even before the advent of the Union.
Before consideration of this evidence, I would note
that Heller admitted that prior to his layoff in February
he asked Petitte for a raise, and that Petitte related that
at the time of the layoff he had promised Heller a raise
when he returned. However, Heller categorically denied
that it was agreed at the time that his pay would be
raised to the specific amount of $1,280 per month upon
his return to the weighmaster job. Respondent intro-
duced a handwritten statement dated May 3, addressed
to Petitte and signed by Heller, which on its face recites
the contrary. It provides:
To John Petitte Jr.,
This letter is to inform you that I will be satisfied
with my old job back as scaleman at the salary of
$1280.00 per month that we agreed on prior to my
layoff in February, 1979, at which time when I was
layed off the agreement between us was that when
production picked up I would be hired back as
scaleman at an increase of salary which we had dis-
cussed several months ago, when I had asked you
for a raise but could not get [one] because produc-
tion was down.
The intent of this letter is to let you know that I
accept my old job back at the increase in salary.
Sincerely,
Richard G. Heller
Heller's explanation was that in their conversation on
May 3 Petitte had said that he was worried about the
pay increase that he had given Heller, and that he might
get in trouble over it. Heller otherwise acknowledged
that he wanted the money, and that, when Petitte asked
him if he would write a letter in his own words stating
that he had agreed to the raise in February, Heller
agreed to do so at that time even though they had not in
fact agreed to it in February.
Petitte's version was that on that day he had called
Heller at home and told Heller that he needed a letter
from Heller confirming that Heller was accepting the
weighmaster job offered. Petitte acknowledged that this
was a new procedure which had never been used before,
and that it was used pursuant to Lazzell's suggested pro-
cedure that everything should be put into writing. Pe-
titte's explanation for doing so at this time was because
Heller had informed him that he was coming back and
Petitte wanted confirmation of that fact. With regard to
the rate of pay, Petitte explained that when he and
Heller discussed the rate, since Petitte had earlier told
Heller that he would compensate Heller for the time off,
Petitte did not see any problem in paying Heller that
figure, and he asserted that he did not discuss it on April
23 or 24, but acknowledged telling Heller later that he
needed written verification. Petitte related (with cor-
roboration by Cyzick) that the statement was Heller's
voluntary statement thereon and was orally acknowl-
edged before Cyzick as being such by Heller at the time.
Finally, according to Petitte, the fact of the matter was
that Heller was interested in the job and the money, and
wanted it confirmed as much as Petitte did. I have no
doubt on this record that the latter was the case.
It is Heller's testimony that he returned to work on
May 4 (a Friday), but that in the next week, beginning
on May 7, Petitte was back to telling him that he could
not afford to have the Union come in, that he was not
kidding, that he was not threatening, but that Heller had
to understand that Petitte could not afford to have a
union come in, and, "If it does, you're probably going to
lose your jobs." According to Heller, Petitte spoke to
him that way just about every day that week, and it
upset him. (Heller acknowledged that Petitte on one
such occasion, on May 10 (a Thursday), told Heller that
he should not be so upset, and should not let the union
campaign get to him.) According to Heller, during the
week of May 14, Petitte continued to talk to him each
day, wanting to know if the employees had changed
their minds about the Union and how they were going to
vote. 54 Heller testified that he became nervous every
time he saw Petitte coming.
(e) The alleged threat to Heller of physical harm or
reprisal
Heller related that on either May 17 or 18 (Thursday,
May 17, 1 find he was in the scalehouse with another in-
individual from Black Rock Test lab taking coal samples.
At the time he observed that Petitte was out on the
scales talking to a couple of other individuals. Heller re-
lated that the following incident then occurred." Heller
s, Respondent also established that in a prior statement of July 26
Heller had stated that he had talked to Petitte on May 16 and had not
returned until May 17 (a Thursday). However, any suggestion thereby
that Heller had not worked in the interim since May 3 is clearly to be
rejected. Respondent's witness Roggish recalled that it was 3 weeks to a
month before she was called back out of the office to work as the weigh-
master. Respondent also (selectively) introduced certain records (reports)
which establish that Heller had worked specifically on May 8 (a Tues-
day), 11 (a Friday), 16 (a Wednesday), and 17 (a Thursday). In regard to
the latter documentation I would note in passing that such reports reflect
that Heller not only signed them, as he usually did, but that he also
signed his name and showed his hours worked under the caption "Super-
intendents and Bosses exposure time" along with Guseman. However, the
earliest such record produced was that of May 8, and thus no such docu-
mentary evidence was offered by Respondent to establish that such re-
ports were filled out by Heller in that fashion prior to May 3. It is well
founded in the law that, when weak evidence is offered where strong
evidence is available, an inference is warranted that the strong evidence
is not offered because it is not supportive of the holder's position. I con-
clude and find that such is the case here.
s$ Heller's affirmance that Petitte had subsequently told Heller not to
let the pressure get to him. I find, also occurred on May 17 but after the
above incident herein described. Apparently, Heller had not worked on
May 14 and 15 of that week, although I note that Respondent has not
established such documentarily, but through one of Heller's concessions,
which I have found not always supported by the record
1133
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that one of the men whom he had seen convers-
ing with Petitte came into the scalehouse. The man then
locked the door behind him. Heller described the man as
being "6-foot tall, 250 pounds, with great big arms and
neck." The man walked up to Heller and pointed his
finger in Heller's face saying, "What's this I hear about a
labor problem down here?" Heller backed into the
corner and replied that he did not know what the man
was talking about. The man kept shaking his finger in
Heller's face saying, "I'm going to tell you something, I
do not want to hear no more about a labor problem
down here. The Petittes do not want a union down here,
so I better not hear no more about it." He then pointed
to the Black Rock individual and told him that it went
for him too. Heller identified the individual as being
from another company and not involved. At that point
there was a knocking on the door, and, after Petitte was
let in, Petitte inquired what was the matter, telling Heller
he looked like he had seen a ghost. Heller told Petitte
that he did not appreciate what Petitte had just had the
man do to him. Petitte then apologized in front of every-
one and said that he was just kidding. Heller responded
that it (the apology and the explanation of its being a
joke) did not help his nerves, and that he thought the
guy was going to put him through the wall. Petitte said
that he was just razzing Heller a little bit, joking with
him and did not mean it seriously. Heller said he still did
not appreciate it. Petitte again told Heller not to let it
get to him, but Heller replied he could not go by what
Petitte was telling him. On this matter I fully credit
Heller.
Petitte essentially confirmed the incident, and would
explain it as just a joke on Heller, who was then regard-
ed as part of the operation. However, Petitte acknowl-
edged that the man was opening up the Jasper mine and
compatibly described him as; "This guy's a big burly
looking guy, pretty rugged looking." I would only addi-
tionally note that Roggish recalled that it was on a
Friday (after her 3-4 weeks in the office) that Heller was
absent and she was directed to return to the scalehouse,
and that she continued to work there thereafter by Pe-
titte's direction given the latter and the absence of any
record (daily report) produced for Heller as to May 18
(a Friday) I find that Heller was absent that Friday.
Heller would return for work one last day, Monday,
May 21.
On May 21 (a Monday) Heller went back to work.
That morning he observed that the creek by the scale-
house had begun running black. That meant to Heller
that the ponds were overflowing. It was Heller's respon-
sibility to have it taken care of immediately. Heller
promptly told Superintendent Guseman that the creek
was running black and (pursuant to his own instruction
from Petitte) that Guseman had better get somebody up
there to take care of it. Guseman replied that he would
take care of it. Heller waited an appropriate length of
time but Guseman did nothing about it. When Guseman
continued to do nothing about it Heller again told Guse-
man that he had better go up there, or get somebody to
go up there, and take care of it, and that, if Petitte came
to work and saw it, Heller was going to catch hell. Gu-
seman again replied that he would take care of it. Heller
acknowledged that a few minutes later Guseman did so.
However, Heller testified that in the interim he became
nervous, began shaking, and got sick again. Heller decid-
ed that he was just going to quit. Heller went up to Gu-
seman and told him that he was going to quit, that he
could not take it anymore, and told him to tell Petitte
not to bother sending Harmon or anybody else to his
house, because he did not want to see anybody and he
had quit. I credit Heller.
Nonetheless, Heller related that shortly after that,
Harmon again (after leaving a message for Heller at his
home) spoke to him and his wife, telling them that Pe-
titte wanted to know why Heller had quit. Heller replied
that he had just had it, that there was too much pressure
on him, and he could not take it anymore. Heller's wife
told Harmon that Petitte was picking on him all the time
and that it was not right. Heller then said to Harmon,
"Tell Petitte that it's just too much pressure, I can't take
it anymore." Heller also told Harmon that when he had
quit earlier he had told Guseman not to send anybody
because he did not want to talk to anyone. Heller asked
why Petitte kept sending Harmon up there. Harmon re-
plied that it was because Petitte knew that they were
friends and that Harmon could probably talk to Heller
better. Heller testified that Harn-on on this occasion did
not say that Petitte had asked Heller to come back, but
only to find out what was wrong.
6. Analysis, conclusions, and findings
Petitte essentially did not deny the various question-
ings of Heller as to the union activities and sympathies of
the employees. Thus, Petitte admitted that, after Heller
returned to work as weighmaster, he spoke to Heller on
several occasions about the Union, asking Heller if he
had heard any of the employees talking about the Union,
and probing him as to such matters as whether he felt
that the Union had a foothold, whether the employees
would be for or against the Union, and whether Re-
spondent would get a favorable reaction or not. While
not recalling them individually, Petitte did not deny
having conversations (pre-May 3) with Heller in which
he stated that the Company could not afford the Union
or what might happen in regard to jobs if the Union got
in; e.g., that Heller would probably lose his job. I credit
Heller in all the above respects. Essentially, Respond-
ent's defense is that, when Heller returned as weighmas-
ter, Petitte regarded him as management and that Lazzell
had told Petitte that management could talk to manage-
ment about unions. Of course, Respondent has been ob-
served not to have been consistent in even that position
in its urging that it took pains to have management leave
the April 23 meeting in spite of the fact that it left said
meeting to be called for and conducted by a contended
supervisor. I have found for reasons earlier stated that
Heller was not shown to have occupied a supervisory
position prior to April 10. The question reserved is
whether certain documentation, i.e., the April 27 letter of
Petitte, the May 3 statement of Heller, and the reports
(post-May 8), warrant a different conclusion.
To begin with, as above noted, I have no doubt that
Heller wanted both his weighmaster job back and the
1134
MAIDSVILLE COAL CO., INC.
new salary increase or increases when specifically of-
fered. However, the content of the May 3 statement of
Heller to the extent it would import that there was long
prior agreement on a specific salary increase to $1,280 a
month just simply does not comport with the facts other-
wise established of record. I conclude and find on the
basis of the above evidence that the May 3 documenta-
tion was in fact a document generated pursuant to Re-
spondent inspiration and pursued by instruction and di-
rection of Petitte; that it was not one founded on fact as
revealed by the credible record evidence herein; and
that, as such, it is revealed to be, in substance and effect,
equally as self-serving in nature as is found to be Petitte's
April 27 letter on its face. The reports offered by Re-
spondent were equally unconvincing for reasons earlier
related. In short, I find the documentation offered by Re-
spondent wholly inadequate to reveal that prior to April
10 or 19 Heller had occupied a supervisory status. More-
over, in all the above circumstances, I find myself
wholly unpersuaded by the alternative contention, if
raised, that Heller thereafter was effectively constituted
and acted as a new supervisor. The credible evidence
also clearly reveals that Respondent granted Heller a
salary increase in the hourly base amount as he was here-
tofore unlawfully found to have promised employees. It
is also clear that Petitte granted Heller a specific wage
increase which, considered in the light most favorably to
Respondent was at best previously left contingent and in-
definite as to the the amount months earlier, and is then
observed to have been granted to a known and leading
employee union adherent at a time when Respondent
was itself vigorously urging employees, and that employ-
ee in particular, to guide employees into forgetting about
the Union. I find that such constituted unlawful interfer-
ence by Respondent with important Section 7 rights of
employees and thus violated Section 8(a)(l) of the Act.
Having found that Heller was not a supervisor at the
time Petitte repeatedly questioned him about the Union,
and variously threatened Heller (and others) with job
loss if the employees selected a union, it is clear beyond
questioning that Respondent has thereby engaged in ex-
tensive unlawful interrogation as to employees' union
membership, activities, and sympathies, has unlawfully
interrogated employees as to the union membership, ac-
tivities, and sympathies of their fellow employees (in-
cluding how they felt about the Union and how they
were going to vote), and has variously threatened loss of
jobs to employees if they selected a union to represent
them, all in violation of Section 8(a)(1) of the Act, as al-
leged in the complaint. 56
It also follows from the finding that Heller was not a
supervisor on or before April 19 that the Union occupied
the position of collective-bargaining representative desig-
nated by the majority of the employees in the unit here-
tofore found appropriate.
I have considered Respondent's arguments why a bar-
gaining order should not issue in this case and I find
them all without merit under the circumstances set forth
56 In view of the extensive interference, restraint, and coercion found
therein committed by Petitte, it is deemed unnecessary to consider any
further allegation of such conduct by Freeman. the same, if found, being
regarded as but clearly cumulative.
above.5 ' The litany of violations found need not be re-
peated. I further find that by refusing on April 19 the
bargaining request the Union which represented a major-
ity of its employees in an appropriate unit, in the light of
the unfair labor practices herein found, Respondent has
further violated Section 8(a)(5) and (1) of the Act, and
that a bargaining order is necessary and appropriate to
protect the majority sentiment as found expressed
through the valid authorization cards.5 " Moreover, Re-
spondent had a duty to bargain with the Union as of
April 10, the date on which the Union had attained a
majority and Respondent had set out on its unfair labor
practice path to undermine the Union's majority status
and make the holding of an election improbable, under
applicable principles established by the Board.59
There remains but to consider the complaint allegation
that Heller was constructively discharged and the related
alleged threat of reprisal and physical harm to Heller.
The latter was obviously itself seriously violative of Sec-
tion 8(a)(l) of the Act.
Heller's reaction in quitting on May 21 because of as-
serted pressure he felt on the job after Guseman's delay
in taking the established and prompt action called for on
Heller's report of coal pollution of the creek, a plant
condition itself involving an established responsibility on
Heller, whose performance in regard thereto had been
the subject of prior criticism by Petitte, is nonetheless
not an action to be concluded as having been taken in
that factual isolation. Resultingly, the burden of the re-
quired showing of intended causation of such a termina-
tion by Respondent (the same being then protected as a
constructive discharge) is itself not one to be weighed
and determined solely in that context; i.e., as an act in-
volving but speculation on Heller's part and/or an in-
stance of unnecessary, and thus unwarranted (unprotect-
ed), self-help thereon. The burden otherwise remains of
showing that Heller's act of quitting was a reasonably
forseeable reaction to the imposition by Respondent of
burdensome and discriminatory work circumstances and
conditions. For me to otherwise restrictively view as the
cause of this termination the limited circumstances of the
creek pollution incident depicted herein would require
my ignoring the other surrounding facts of record that
this employee was theretofore involved and identified as
a leading union adherent by Respondent; that he was the
7 I would only additionally note as to N.L.R.B. v. Pilgrim Foods. Inc..
591 F.2d 110 (Ist Cir. 1978), and similar such cases, that, with all due def-
erence to the view of that court as to other factors properly to be consid-
ered by the Board on the issue of a bargaining order issuance, I am
bound to apply established Board precedent which has not been reversed
by the Supreme Court or the Board. Fred Jones Manufacturing Company,
239 NLRB 54 (1978); Ford Motor Company (Chicago Stamping Plant), 230
NLRB 716, 718, fn. 12 (1977).
s I specifically conclude and find that the unfair labor practices com-
mitted by Respondent were so pervasive and extensive that the possibility
of erasing their effects on the employees and ensuring a fair election by
the use of traditional remedies is slight. With employees being so condi-
tioned, I find that in this case employee sentiment, as expressed by the
authorization cards, is best protected by a bargaining order. N.L.R.B v.
Gissel Packing Co.. Inc., 395 U.S 575 (1969): Staoat and Staats. Inc., 254
NLRB 888 11981).
9 Trading Port. Inc., 219 NLRB 298 (1975): The Kroeger Company. 228
NLRB 149 1977): and Honolulu Sporting Goods Co.. Ltd., a Subsidiary of
Zale Corporation, 239 NLRB 1277. 1283.
1135
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clear brunt of a prior unlawful discharge; that he was
thereafter brought back with a reward under the aus-
pices of a stated willingness to reject the Union and in a
former position held which Respondent viewed as confi-
dential; that he was known by Respondent subsequently
to have been unwilling to informally vote the Union out
without a Board election; that he was thereafter continu-
ously interrogated (despite a repeatedly demonstrated un-
willingness to informingly respond); and that he was
threatened with personal and other job loss despite an
expressed and reported state of nervousness and illness
associated with such continuous unlawful Employer con-
duct by Respondent and was then recently further vic-
timized by an employer-sponsored and orchestrated seri-
ous threat of individual physical harm and reprisal if he
continued his union advocacy. Nor need I ignore the fact
that Heller at the time occupied a position with access to
Respondent's supply, production, and shipment data
which Respondent has acknowledged it did not want to
risk being available to the Union. I find that there is
merit in the Charging Party's argument that the entirety
of Respondent's course of conduct is revealed thereby as
one designed to force Heller out.6 If the triggering inci-
dent of an unusual delay by Guseman and Heller's per-
sonal trepidation of likely criticism by Petitte stands
starkly in relief to the recent prior physical threat tempo-
rarily withstood, Heller's understandable point of view
that he could no longer believe what his employer was
saying in light of what it was doing to him was not ill
grounded, and its cumulative effect on the employee has
not been overlooked. In short, this is a case situation in
which the familiar tort principle that the transgressor
must take its victim as it finds him would hold equal
sway were it not for the clear showing made that this
Respondent also already knew, or had cause to know,
the victim's circumstances of anxiety and the disposition
to quit. I conclude and find that Respondent by an on-
going course of conduct constructively and discrimina-
torily discharged Richard G. Heller on May 21 in viola-
tion of Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
I. Maidsville Coal Co., Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The United Mine Workers of America, and United
Mine Workers of America, District 31, are labor organi-
zations within the meaning of Section 2(5) of the Act.
3. By unlawfully interrogating employees concerning
their union activities, sympathies, and desires, and con-
cerning the union activities, sympathies, and desires of
their co-employees; by unlawfully granting wage in-
creases in order to dissuade employees from supporting
the Union; by promising employees increased hourly
wages, improved working conditions, and other benefits
in order to dissuade employees from selecting the Union
as their collective-bargaining representative and/or from
engaging in activities on behalf of the Union; by threat-
0o Cf. Crystal Princeton Refining Company, 222 NLRB 1068, 1069-70
(1976); Boyles Galvanizing Company, 239 NLRB 530, 540 (1978); Dodson's
Markel, Inc. d/b/a Dodson IGA Foodliner, 194 NLRB 192, 193 (1971).
ening employees with discharge, layoff, and cessation or
reduction of operations if they selected the Union as
their representative and with nonrecall because of union
activities; and by utilizing a third party to threaten em-
ployees with reprisals or physical harm if the employees
continued to engage in activities on behalf of the Union,
Respondent has interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed
them in Section 7 of the Act in violation of Section
8(a)(1) of the Act.
4. By discriminatorily discharging employees Earl F.
Bowman, William Kent Eddy, Richard G. Heller, and
Charles L. Trippitt on or about April 13, 1979, and by
refusing to reinstate them to their former positions of
employment until on or about April 23, 1979; and by
thereafter discriminatorily causing the termination of
and/or constructively discharging employee Richard G.
Heller on or about May 21, 1979, and by thereafter refus-
ing to reinstate him, Respondent has engaged in conduct
in violation of Section 8(a)(3) and (1) of the Act.
5. All production and maintenance employees em-
ployed by Respondent at its Maidsville, West Virginia,
facility, excluding office clerical employees and guards,
professional employees, and supervisors as defined in the
Act, constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b) of
the Act.
6. At all times since April 10, 1979, United Mine
Workers of America has been duly designated by a ma-
jority of the employees in the appropriate unit set forth
above, and by virtue of Section 9(a) of the Act has been,
and is now, the exclusive collective-bargaining repre-
sentative of all employees in said unit.
7. By refusing since April 10, and upon demand there-
for on or about April 19, to recognize and bargain col-
lectively with the Union, Respondent has engaged in
conduct in violation of Section 8(a)(5) and (1) of the Act.
8. Except as found herein Respondent has not engaged
in any other unfair labor practices as alleged in the com-
plaints.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Re-
spondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act.
Having found that Respondent wrongfully discharged
Earl F. Bowman, William Kent Eddy, Richard G.
Heller, and Charles L. Trippitt on April 13, 1979, and
failed and refused to reinstate them until April 23, 1979,
and that Respondent thereafter wrongfully caused the
termination of and/or constructively discharged employ-
ee Richard G. Heller on May 21, 1979, and failed and
refused thereafter to reinstate him all in violation of Sec-
tion 8(a)(3) and (1) of the Act, I find it necessary to
order Respondent to offer Richard G. Heller immediate
reinstatement to his former job of weighmaster or, if
such job no longer exists, to a substantially equivalent
job, without prejudice to his seniority and other rights
and privileges, and to make whole Earl F. Bowman, Wil-
1136
MAIDSVILLE COAL CO., INC.
liam Kent Eddy, Charles L. Trippitt, and Richard G.
Heller for any loss of earnings they may have suffered
by reason of the unlawful discrimination against them.
The backpay provided herein and any interest due there-
on shall be computed in the manner prescribed in F W
Woolworth Company, 90 NLRB 289 (1950), and Florida
Steel Corporation, 231 NLRB 651 (1977).61
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 62
The Respondent, Maidsville Coal Co., Inc., Maidsville,
West Virginia, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Unlawfully interrogating employees concerning
their union activities, sympathies, and desires, and con-
cerning the union activities, sympathies, and desires of
their co-employees.
(t) Uranting wage increases in order to dissuade em-
ployees from supporting the Union and promising em-
ployees increased hourly wages, improved working con-
ditions, and other benefits in order to dissuade employees
from selecting the Union as their collective-bargaining
representative and/or from engaging in activities on
behalf of the Union.
(c) Threatening employees with discharge, layoff, and
cessation or reduction of operations if they select the
Union as their representative, threatening employees
with nonrecall because of their union activities, and uti-
lizing a third party to threaten employees with reprisal
or physical harm if the employees continue to engage in
activities on behalf of the Union.
(d) Discharging or causing the termination of employ-
ees because of their membership in and activities on
behalf of the Union and/or in order to discourage mem-
bership in the Union.
(e) Refusing to recognize and bargain collectively with
United Mine Workers of America as the designated ex-
clusive collective-bargaining representative of an appro-
6, See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
*2 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, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
priate unit of all production and maintenance employees
employed by Respondent at its Maidsville, West Virgin-
ia, facility, excluding office clerical employees and
guards, professional employees, and supervisors as de-
fined in the Act.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Scction 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Offer Richard G. Heller immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent job, without prejudice
to his seniority or other rights and privileges, and make
employees Earl F. Bowman, William Kent Eddy,
Charles L. Trippitt, and Richard G. Heller whole in the
manner described in the section herein entitled "The
Remedy."
(b) Recognize and, upon demand, bargain collectively
with United Mine Workers of America as the duly desig-
nated exclusive representative of the employees in the
appropriate unit described above.
(c) 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 necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its Maidsville, West Virginia, facility copies
of the attached notice marked "Appendix." 63 Copies of
said notice, on forms provided by the Regional Director
for Region 6, 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
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 6, in writ-
ing, within 20 days of the date of this Order, what steps
Respondent has taken to comply herewith.
63 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 Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1137