McDonald Land & Mining

National Labor Relations Board - Board Decisions

Jan 31, 1991

301 N.L.R.B. 463 (N.L.R.B. 1991)

463
301 NLRB No. 61
MCDONALD LAND & MINING
1 Both the Respondent and the General Counsel have excepted to some of
the judge’s credibility findings. The Board’s established policy is not to over-
rule an administrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for re-
versing the findings.
In the second paragraph of his decision, the judge stated incorrectly the date
of the Union’s petition in Case 6–RC–10084. The correct date is September
7, 1988.
2 In adopting the judge’s finding that the gap in the voting booth curtain
was not objectionable, we rely solely on the fact that there was no evidence
that the secrecy of the election was breached or that the gap in the curtain
would have a tendency to have an impact on the election.
We agree with the judge that the Respondent violated Sec. 8(a)(1) through
Twig McDonald’s statement to employee Ralph Kester, a union supporter, that
if he did not like working for the Company, he should find a job elsewhere.
We therefore find it unnecessary to pass on whether the Respondent also vio-
lated the Act by making a similar statement to Lee Weber because such a
finding would be cumulative and would not affect the Order.
In adopting the judge’s dismissal of the allegation that Lee Weber’s job as-
signment was changed in violation of Sec. 8(a)(3) and (1) of the Act, we find
that the General Counsel made out a prima facie case that union animus was
a motivating factor in the job assignment change. We conclude, however, that
given the judge’s crediting of Twig McDonald’s and Mike McDonald’s testi-
mony concerning Weber’s deteriorating job performance and the Respondent’s
belief that Weber was ‘‘goofing off when he should have been working,’’ the
Respondent has established that Weber’s job assignment would have been
changed even in the absence of unlawful motive. Wright Line, 251 NLRB
1083 (1980), approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983).
We affirm the judge’s dismissal of the allegation that Mike McDonald
threatened to withhold a planned wage increase because of employee union
activity. In doing so, we note that in addition to telling the employees that
the Respondent was not allowed to give the increase because it was afraid that
the Union would perceive such an increase as an attempt by the Respondent
to buy votes against the Union, McDonald also told the employees at the same
time that ‘‘[I]f and when we are able to give you the raises, we will give them
to you.’’ In conjunction with McDonald’s initial statement, which related the
withdrawal of the wage increase to a desire on the part of the Respondent not
to appear to be attempting to influence the election by implementing the in-
creases, we find that McDonald’s follow-on statement, quoted above, made it
reasonable for the employees to believe that the wage increases would be rein-
stated at a time when the danger of such an appearance of improper influence
had passed, i.e., after the election. Indeed, as it turned out, at the express urg-
ing of several of the most active union supporters, the Respondent reinstated
the planned wage increase in the pay period immediately following McDon-
ald’s remarks in question, about a month before the election. Under all of
these circumstances, then, we affirm the judge’s dismissal of this allegation.
McDonald Land & Mining Co., Inc.; McDonald
Trucking Co., Inc.; McDonald Coal Co.;
McDonald Coal Sales Corp.; Thomas Coal
Sales, Inc.; Thomas Coal Company, Inc. and
United Mine Workers of America. Cases 6–
CA–21378, 6–CA–21551, 6–CA–21636, and 6–
RC–10084
January 31, 1991
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On January 25, 1990, Administrative Law Judge
Stephen J. Gross issued the attached decision. The
General Counsel filed limited exceptions and a sup-
porting brief, and the Charging Party filed exceptions.
The Respondent filed cross-exceptions and a sup-
porting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions,2 and to adopt his recommended Order.
The General Counsel has excepted to the judge’s
finding that Twig McDonald ‘‘happened on’’ em-
ployee Wes Lippert at the London jobsite on Sep-
tember 2, 1988. We find merit in this exception. In
this regard, Twig McDonald testified at the hearing
that after he learned that four of his men were passing
out union cards, he ‘‘picked’’ Lippert to talk to ‘‘since
he was the oldest McDonald Land & Mining em-
ployee.’’ We agree with the judge, however, for the
reasons stated by him, that Twig McDonald’s inter-
view of Lippert did not violate Section 8(a)(1).
In this regard, we cannot agree with our dissenting
colleague’s characterization of the underlying incident.
We find no support in the record for our dissenting
colleague’s characterizations that Twig ‘‘targeted’’ and
‘‘confronted’’ Lippert and ‘‘confrontationally’’ interro-
gated him. On the contrary, the record clearly estab-
lishes that Twig sought out Lippert because, as the
senior employee and an open union adherent, Lippert
was in the best position to explain why the employees
felt they needed a union. Further, the record clearly in-
dicates that the two men engaged in an honest ex-
change of views without rancor and in the absence of
threats or promises or other coercive activity. In these
circumstances, we conclude that Twig’s interrogation
of Lippert was not unlawful under the criteria set out
in Rossmore House, 269 NLRB 1176 (1984), affd. sub
nom. Hotel & Restaurant Employees Local 11 v.
NLRB, 760 F.2d 1006 (9th Cir. 1985).
Finally, we note that Atlantic Forest Products, 282
NLRB 855, 856 (1987), a case cited by our dissenting
colleague, is distinguishable on its facts. In that case,
the Board found the interrogation of a known union
adherent to be unlawful under the totality of the cir-
cumstances set out in Rossmore House, supra. In find-
ing the violation, the Board emphasized that the inter-
rogation took place within the context of other related
unlawful activity and that the supervisor isolated the
employee in the breakroom and acknowledged the im-
propriety of his question before asking the employee
how he was going to vote in the election the next day.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, McDonald Land & Mining
Co., Inc.; McDonald Trucking Co., Inc.; McDonald
Coal Co.; McDonald Coal Sales Corp.; Thomas Coal
Sales, Inc.; Thomas Coal Company, Inc., Clearfield,
464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 According to Twig, Lippert replied that ‘‘things ain’t getting any better,
and we just don’t know what to do, and we figured this is the way to go about
it.’’ I find no material inconsistency between the testimonies of Lippert and
Twig on this subject.
2 My colleagues characterize this episode as ‘‘an honest exchange of views
without rancor.’’
1 The dates of the original unfair labor practice charges and the complaints
are as follows:
Case Charge–Complaint
6–CA–21378 11/3/88–12/27/88
6–CA–21551 1/20/89–3/10/89
6–CA–21636 3/2/89–3/24/89
2 The Acting Regional Director for Region 6 ordered a hearing on the
Union’s objections and ordered that that case be consolidated with Case 6–
CA–21378. Thereafter Cases 6–CA–21551 and 6–CA–21636 were consoli-
dated with those cases.
3 The General Counsel has moved to the correct the transcript in various re-
spects. No one opposes the motion and it accordingly is granted.
Pennsylvania, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
IT IS FURTHER ORDERED that the election held on
October 27, 1988, in Case 6–RC–10084 is set aside
and that a new election be conducted.
[Direction of Second Election omitted from publica-
tion.]
MEMBER CRACRAFT, dissenting in part.
I agree with my colleagues in all respects except
that I find that the Respondent’s co-owner and chief
executive, Twig McDonald, unlawfully interrogated
employee Wesley Lippert about his union activities.
Lippert was the Respondent’s most senior employee
in length of service—about 15 years—and was one of
the three or so most vigorous open supporters of the
Union’s organizational effort. A few days after Twig
first found out about the organizational campaign and
about Lippert’s aggressive supporting role in it, he
sought Lippert out to speak with him about the Union.
By this time, Lippert was openly campaigning for the
Union and distributing authorization cards.
Twig went to where Lippert was working. He asked
him whether he was handing out union cards. Lippert
replied that he was. In a way that, according to the
judge, made it plain that Twig disapproved of
Lippert’s union activity, Twig then asked Lippert why
he was doing it. According to Lippert, he replied that
he thought it would help the employees.1 Twig said he
was disappointed in Lippert for soliciting union cards,
that the Union was no good, and that it probably
would not help the employees. In response to Lippert’s
question about what Twig had ‘‘against organized
labor,’’ Twig replied that:
[I]t took his power away from him to control his
employees and would probably break him, and it
also took care of the deadheads. Then he went on
to say that Fred [London, a leading union sup-
porter] was dumb and that Ralph Kester [another
leading union supporter] had a loud mouth.2
Analyzing the incident within the framework set
forth in Rossmore House, 269 NLRB 1176 (1984),
affd. sub nom. Hotel & Restaurant Employees Local
11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985), I find that
Twig’s questioning of Lippert was itself circumstan-
tially coercive. By way of background, Twig, the Re-
spondent’s co-owner, chief executive, and acknowl-
edged leader, specifically targeted longtime employee
Lippert for interrogation. He then went to Lippert’s
workplace unannounced and confronted him on the
job. Beyond just confrontationally interrogating Lippert
about his motives for seeking representation, Twig
made his personal disappointment and displeasure over
Lippert’s protected activities known to Lippert then,
and topped the conversation off with a terse ‘‘pre-
diction’’ of financial ruin as the likely result of union-
ization.
Under all the circumstances, I find that Twig unlaw-
fully interrogated Lippert as alleged. See, e.g., Atlantic
Forest Products, 282 NLRB 855, 856 (1987).
Robin F. Wiegand and Karen M. McCullough, Esqs., for the
General Counsel.
Carl Belin, Jr., Esq. (Belin, Belin & Naddeo), of Clearfield,
Pennsylvania, and Michael Eggert, Esq. (Kirkpatrick &
Lockhart), of Pittsburgh, Pennsylvania, for the Respondent.
Michael Dinnerstein, Esq., of Washington, D.C. and Louis J.
Maholic, of DuBois, Pennsylvania, for the Charging Party.
DECISION
STEPHEN J. GROSS, Administrative Law Judge. The var-
ious companies named in the caption together constitute a
single integrated business enterprise and a single employer
that I will collectively refer to as the Company. The Com-
pany admits that it is an employer engaged in commerce
within the meaning of the National Labor Relations Act (the
Act).
The Company mines coal from surface mines in north-cen-
tral Pennsylvania. On September 2, 1988, the United Mine
Workers of America (the Union or the UMWA) filed a peti-
tion (in Case 6–RC–10084) seeking an election among all of
the Company’s production and maintenance employees. The
Board conducted the election on October 27, 1988. The
UMWA lost (37 votes cast for the Union, 63 against, 8 chal-
lenged ballots, and 1 void ballot) but filed timely objections.
The General Counsel alleges that the Company violated
the Act before, during, and after the Union’s election cam-
paign—from as early as September 2, 1988, to as late as
February 27, 1989.1 The Union’s objections, of course, claim
misconduct by the Company during the period between the
filing of the elections petition and the election.2
I held a hearing in these consolidated cases in Clearfield,
Pennsylvania, on April 26, 27, and 28, and on June 12, 1989.
Briefs have been filed by the General Counsel, the UMWA,
and the Company.3
Parts I through XI of this decision discuss, in chrono-
logical order the various unfair labor practices alleged by the
General Counsel. Part XII covers the Union’s election objec-
tions.
465MCDONALD LAND & MINING
4 NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969).
5 For example, see the discussion of the insanity defense to criminal charges
in, e.g., Wade v. United States, 426 F.2d 64 (9th Cir. 1970).
6 I rejected that offer of evidence. Tr. 554–555.
I. DID THE COMPANY UNLAWFULLY INTERROGATE AN
EMPLOYEE ON SEPTEMBER 2, 1988
Fahy McDonald is one of the Company’s two owners and
is its chief executive. Everyone associated with the Company
calls him ‘‘Twig.’’ (Since several different McDonalds
played roles to the McDonalds by their first names.)
Wesley Lippert has been with the Company longer than
any other employee, about 15 years. Twig McDonald learned
in late August 1988, that the UMWA was trying to organize
the Company’s employees and that Lippert was one of the
three or so most vigorous supporters of the organizational ef-
fort. A few days later, on September 2, Twig happened on
Lippert at one of the Company’s jobsites. By then Lippert
had begun openly campaigning for the Union. Twig asked
Lippert if Lippert was handing out union cards. When
Lippert said that he was, Twig asked, ‘‘Why are you doing
this’’ in a way that made it plain that he disapproved.
Lippert said, ‘‘[t]hings ain’t getting any better and we just
don’t know what to do, and we figured this is the way to
go about it.’’ Twig then responded by saying that he thought
unionization would be bad for the Company and the employ-
ees, and by talking about the Company’s financial woes.
The General Counsel contends that the Company thereby
violated the Act.
My conclusion is that Twig’s questioning of Lippert did
not violate the Act. Lippert openly and actively supported the
Union. It’s true that Twig made it clear that he was
troubuled by Lippert’s union activities. But that alone is not
enough to turn an otherwise lawful exchange between em-
ployer and employee into a violation of the Act. Moreover
Lippert’s position with the Company McDonald was a secure
one. He is virtually an institution at the Company by virtue
or his long career there. Finally, as in Blue Grass Industries,
287 NLRB 274 (1987), ‘‘the questions directed at [the em-
ployee] were not made in connection with any threats or
other unlawful acts and do not appear from their context to
have been aimed at obtaining information which the Re-
spondent could in turn use to take adverse action against [the
employee] or the Union.’’
Like virtually any other employee in that kind of situation
Lippert found it uncomfortable to be questioned by his boss
about union activities. But being made uncomfortable is not
necessrily the same as being unlawfully coerced, and in my
view was not here. See Blue Grass Industries, above; Clark
Equipment Co., 278 NLRB 498, 502 (1986).
II. DID THE COMPANY, AT THE KRESS SITE ON
SEPTEMBER 8 OR 9, THREATEN TO CLOSE OR TO LAY
OFF EMPLOYEES IF THE EMPLOYEES VOTED FOR
THE UNION?
Mike McDonald is Twig McDonald’s son, a vice president
of the Company, and an admitted supervisor. On September
9, 1988, Mike gave a talk to employees at the Company’s
‘‘Kress’’ jobsite.
A. Mike McDonald’s Speech
Prior to the Union’s campaign the Company had advised
the employees that it was having problems with its primary
customer, Potomac Electric Power Company (PEPCO), and
that the Company was facing serious financial problems.
Mike McDonald’s speech at the Kress site returned to the
subjects of PEPCO and the Company’s financial difficulties,
but painted a bleaker picture than anything previously told to
the employees. Again noting that PEPCO was the Com-
pany’s biggest customer by far, Mike pointed out that the
Company’s contract with PEPCO ran out in February (1989),
and that in negotiations looking toward a new contract
PEPCO was insisting on coal prices the Company could not
agree to since they were below the Company’s costs. If the
PEPCO contract could not be renewed and if Twig could not
find new customers to replace PEPCO, said Mike, the impact
on the Company would be disasterous. In the very least the
Company would have to lay off ‘‘quite a few guys,’’ perhaps
two-thirds of its employees. And bankruptcy was by no
means out of the question. Mike did not link the PEPCO sit-
uation to the Union.
Mike also discussed the emotional impact on Twig of the
Company’s financial problems and of Twig’s recent divorce.
As for the UMWA’s campaign to orgainze the Company’s
employees, Mike continued, the employees should recognize
that it presented three problems. First, the Company couldn’t
afford to pay UMWA wages and fringe benefits. Second, if
the Company’s creditors knew that its employees were trying
to bring the UMWA in, the creditors ‘‘might get nervous and
decide to throw us [into] Chapter 11.’’ Third, the adverse im-
pact of the unionization effort on Twig’s emotional well-
being might be enough, along with Twig’s other problems,
to rob Twig of the drive he needed to fined new customers
to replace PEPCO.
B. The Alleged Emotional Impact of the Unionization
Effort on Twig McDonald
What Mike McDonald told the employees was that the
employees’ unionization efforts might have an adverse emo-
tional effect on the chief executive of their Company and
that as a result he might be unable to get his job done, there-
by dooming the Company.
An employer, says Gissel,4
May even make a prediction as to the precise effects
he believes unionization will have on his company. In
such a case, however, the prediction must be carefully
phrased on the basis of objective fact to convey an em-
ployer’s belief as to demonstrably probable con-
sequences beyond his control . . . .
The law, certainly, is broad enough in at least some contexts
to accept the position that a given set of circumstances may
set off a response in someone that is ‘‘beyond his control’’
to do anything about (to use Gissel’s word).5 Moreover,
Mike McDonald was sincere about what he said; he ex-
plained to the employees the unusual circumstances that, he
believed, impaired Twig’s ability to rebound emotionally;
and at the hearing the Company offered to introduce evi-
dence on the subject that, the Company claimed, would sup-
port what Mike said about Twig.6
I will assume, for present purposes, that Mike had reason-
able grounds for his claim about Twig’s state of mind. But
on a number of counts the Board would be trodding treach-
466 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The Company sought to introduce its financial records into evidence on
the ground that they would prove the accuracy of the statements by Mike and
Twig McDonald that the Company was suffering financial difficulties and
could not afford to pay employees higher wages or provide more expensive
fringe benefits. I refused to allow those financial records into evidence for rea-
sons discussed at Tr. 536–540 and 552–553.
erous sands indeed were it to permit an employer, under any
circumstances, to tell employees’ protected activities on a su-
pervisor’s emotional well-being might cause the destruction
of the Company. Moreover precluding employers from using
as an argument against unionization the emotional instability
of their managers would not appear to cut unfairly into the
arsenal of antiunion contentions available to management.
I accordingly conclude that an employer violates Section
8(a)(1) if one of its supervisors claims that the employees’
unionization efforts may damage the viability of the em-
ployer because those efforts may adversely affect the emo-
tional well-being of the employer’s chief executive, whether
or not that claim is accurate, and whether the supervisor con-
tends that that reaction of the chief executive is beyond his
control. I accordingly further conclude that Mike McDonald
violated the employees’ Section 7 rights when he told the
employees that a vote by the employees to be represented by
a union might affect Twig in a way that would result in the
closing of the Company.
C. The Import of Mike McDonald’s Statements to
Employees that the Company Could Not Afford
the Union
From an employee’s viewpoint, the inescapable implica-
tion of what Mike McDonald told the employees was that the
Company was financially on the ropes, that if the UMWA
won the election the Union would demand substantially high-
er wages and more costly fringe benefits, that the Company
would be unable to meet the Union’s demands, and that dis-
aster would result.
I will assume that Mike’s statements about the state of the
Company’s finances were protected by Section 8(c).7 But I
nonetheless conclude that his contention that the Company
could not afford the Union violated Section 8(a)(1).
If, in the course of an organizational campaign, employees
have made statements about the benefits they expect from
unionization, or if a union has stated to employees that
unionization would produce certain wage increases or the
like, an employer is entitled to refer to those statements and
to discuss why those purported benefits might redound to the
employees’ detriment if the employer is forced into agreeing
to provide them. Benjamin Coal Co., 294 NLRB 572 (1989);
Clintonville Shoe Co., 272 NLRB 609 (1984); and Chester
Valley, 251 NLRB 1435, 1447 (1980).
Mike, however, never told the employees precisely what
he was referring to when he said that the Company couldn’t
afford the Union. Presumably the reference was to the terms
of the collective-bargaining contract between the UMWA
and the Bituminous Coal Operators Association (BCOA).
And I will assume that the employees knew that Mike was
referring to those terms. Moreover I recognize that the
UMWA does generally require that employers whose em-
ployees it represents agree to BCOA’s terms. Nonetheless, I
think the employees were entitled to an explanation from
Mike about why he thought that the UMWA would demand
that the Company agree to the terms embodied in that con-
tract. He failed to provide that explanation, and I accordingly
conclude that the Company violated Section 8(a)(1). See
Gissel, 395 U.S. at 618; Paul Distributing Co., 264 NLRB
1378, 1383 (1982).
D. Mike McDonald’s Claim that the Company’s
Creditors Might Force the Company into Bankruptcy
Mike told the employees that if the Company’s creditors
knew that the employees favored unionzation, the creditors
‘‘might get nervous and decide to throw us [into] Chapter
11.’’ Those are threatening words. Yet Mike uttered them
without providing the employees with any facts that would
have permitted the employees to make their own evaluation
of the likelihood of such action by the creditors. I have no
doubt that Mike was merely voicing real worries of his own.
But in this ‘‘particularly sensitive’’ area of possible plant
closure (Gissel, 395 U.S. at 619), that is not good enough.
Where the continued existence of the company is under dis-
cussion, an employer violates the Act unless its predictions
are ‘‘carefully phrased on the basis of objective fact.’’ Id. at
618. Mike’s prediction about the creditors’ action was not
phrased that way, and the Company thereby violated Section
8(a)(1).
III. DID THE COMPANY, AT THE LONDON SITE ON
SEPTEMBER 8 OR 9, THREATEN TO CLOSE IF THE
EMPLOYEES VOTED FOR THE UNION
As he had at the Kress site, Mike McDonald told the em-
ployees at the London site that Twig was already tired and
despondent because of the Company’s many problems, that
if the UMWA was voted in Twig might not have the desire
to hunt for new customers for the Company’s coal, and that
would mean either drastic reduction in the Company’s em-
ployment or a complete shutdown.
For the reasons discussed in connection with Mike
McDonald’s speech at the Kress site, Mike thereby violated
Section 8(a)(1) of the Act.
IV. DID THE COMPANY THREATEN TO WITHHOLD A
PLANNED WAGE INCREASE BECAUSE OF THE
EMPLOYEES’ UNION ACTIVITIES
During the period at issue the Company’s highest wage
rate was $8.50 per hour. The Company started new employ-
ees at $5 or $5.50 an hour. Twig McDonald testified credibly
that if a new employee is performing well, then ‘‘every three
or four or five months, and as I’m able . . . I’d add a quar-
ter on here and a quarter on there, and gradually bring them
up.’’ Pursuant to that policy, on September 1, 1988, Twig or-
dered pay increases for four junior employees. Six days later,
which was before the pay increases had gone into effect, the
UMWA filed its election petition. The Company’s labor
counsel advised Twig that because of the petition Twig
should rescind his order about the pay increases. Twig acted
in accordance with that advice.
Twig discussed these circumstances at a supervisors’ meet-
ing at which Mike McDonald was present. The discussion
there led Mike, on September 15, to tell employees at the
Kress site that several of the younger employees who were
due pay raises would not be getting them because ‘‘we were
not allowed to give it to them because we were afraid the
467MCDONALD LAND & MINING
8 Employee Fred London testified that Twig McDonald told employees that
the Company was going to have to withdraw certain pay increases because
of the organizing drive. The Union’s brief makes the same claim. But the
record shows that only Mike McDonald made a statement of that kind to em-
ployees.
9 Some witnesses spoke of Twig’s speech at the Kress site on October 6,
some referred to a speech there on October 7. But there was only one such
speech, probably on October 6.
Union [would] look at it as though we were trying to buy
their votes.’’
Several of the most actively prounion employees later
talked to Twig about the withdrawn pay increases, saying
that they did not want to stand in the way of the higher pay
for the employees involved and that they wouldn’t object if
Twig granted the higher pay. Twig thereupon reinstated his
September 1 order, and the four employees did begin getting
the increased wage rates.
The General Counsel contends that Mike McDonald’s re-
mark violated Section 8(a)(1).
Where employers have previously provided certain bene-
fits in an ‘‘indefinite manner,’’ as here, the Board permits
the employers to ‘‘tell their employees that those benefits
. . . will be deferred during the pendency of organizational
efforts where they make clear that the purpose in doing so
is to avoid the appearance of inteference’’ Village Thrift
Store, 272 NLRB 572, 572–573 (1984). On the other hand,
an employer may not blame a union for causing a ‘‘wage
freeze.’’ J. & G. Wall Baking Co., 272 NLRB 1008, 1012
(1984).
The question ultimately, is the coerciveness of the utter-
ance. Here Mike did say that but for the unionization effort
the employees in question would be making more money.
But he did not use words of blame in referring to the Union,
and did, in a way, take responsibility on behalf of the Com-
pany for the withdrawn pay increase (‘‘we were afraid’’).
My conclusion is that Mike’s remark did not violate the
Act.8
V. DID TWIG MCDONALD, ON OCTOBER 6, 1988, AT THE
KRESS SITE, THREATEN TO CLOSE THE COMPANY IF THE
EMPLOYEES VOTED FOR THE UMWA?
The General Counsel contends that on October 6 or 7,
1988, Twig, speaking at the Kress site, threatened to close
the Company if the employees voted in favor of representa-
tion by the UMWA.
Twig McDonald gave an informal speech at the Kress site
on October 6. He spoke of the financial difficulties the Com-
pany was facing and said that because of those difficulties
he didn’t see how he could provide the employees with any
improvements in pay or fringe benefits. Twig invited the em-
ployees to examine the Company’s books to verify what he
was saying. He went on to discuss the Union’s effort to or-
ganize the Company. Twig referred to the royalties that em-
ployers have to pay under the Union’s BCOA agreement and
said that, just considering those royalties, there was ‘‘no way
I could survive’’ under that kind of agreement.
Twig’s reference to the Company’s inability to afford a
union contract comes closer to passing muster than did
Mike’s. One of the Union’s campaign brochures quoted em-
ployee Ralph Kester as stating that among the reasons that
he wanted to be represented by the UMWA were the Union’s
pension and ‘‘medical card’’ benefits—benefits that are fund-
ed by the royalties to which Twig referred. Twig backed up
his claims of inability to pay more to employees by inviting
the employees to check the Company’s books. He was rea-
sonably specific about the contract terms that he was con-
cerned about. And Twig probably did not say in as many
words that the Union would in fact insist that the Company
agree to the BCOA agreement’s terms.
But the implication of Twig’s talk was that the Union
would insist on the BCOA terms and that that would lead
to the shutdown of the Company. Again, the problem is that
Twig failed to discuss why he believed that the Union would
insist on those terms or, for that matter, on any terms that
the Company could not afford. Thus he made no mention of
Kester’s references to pension and medical benefits. I there-
fore conclude that the Company violated Section 8(a)(1)
when Twig McDonald expressed the belief, without adequate
explanation, that unionization would result in the closure of
the Company.9
VI. RUSS PERKS JR.’S ALLEGED THREAT
Scott Heuser is an employee of the Company. At one time
his foreman had been Russ Perks Sr. But Perks had been
away from work for months because of an injury. Russ Perks
Jr. also works for the Company.
Sometime in early October 1988 Heuser and Russ Junior
had a discussion about Heuser’s prounion stance in which
Russ Sr.’s name came up. That much is clear. Heuser’s
version is that Russ Jr. said that when his dad returned to
work, Heuser’s ‘‘ass [was] done around here’’ because of
Heuser’s prounion position. But Russ Jr. denied making any
such threat, and I did not find Heuser’s testimony any more
convincing than Russ Jr.’s Moreover the record is clear that
Russ Jr.’s status with the Company is that of employee and
nothing more.
I thus conclude that the complaint’s allegation about a
threat by Russ Perks Jr. should be dismissed.
VII. DID TWIG MCDONALD, ON OCTOBER 20, 1988,
THREATEN EMPLOYEES THAT THE COMPANY WOULD
CLOSE IF THE EMPLOYEES SELECTED THE UMWA
On October 20 Twig McDonald visited the Mahon site.
Twig’s express purpose was to talk to Rodney Bloom about
the upcoming election since Bloom was the only employee
to whom Twig had not yet spoken personally about the elec-
tion. Bloom was with Lippert, so Twig talked to them both.
Both Bloom and Lippert, it might be noted, openly supportd
that UMWA.
To some extent Twig repeated the ideas that he had ex-
pressed on October 6 in that he said the Company was in
bad financial shape, that he couldn’t afford to pay the em-
ployees anything more than they were presently getting, and
that Bloom and Lippert could examine the Company’s books
to verify that. Twig went on to say that if the Union came
in and demanded more for the employees, that might drive
the Company out of business. Bloom said his concern was
avoiding any more wage cuts. (Communications between
Twig and the employees prior to the union drive suggested
that a pay cut might be in the offing.) Bloom mentioned that
his daughter needed orthodontic work and that he couldn’t
afford it even at his present pay level. Twig responded that
468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 254 NLRB 22 (1980). Accord: Heritage Nursing Homes, 269 NLRB 230,
231 (1984), L. A. Baker Electric, 265 NLRB 1579, 1580 (1983). 11 See fn. 10, above, and the accompanying text.
it would be easier to pay for such things with a $1-an-hour
pay cut than if Bloom were unemployed.
On this occasion, I believe Twig did not exceed the
bounds of Section 8(c). Twig’s references to demands by the
Union and to the Company’s closure were conditional (‘‘if
the Union came in and demanded more’’). And, again, Twig
explained to the employees why he was concerned about
higher expenses and invited the employees to verify for
themselves the Company’s problems by examining the Com-
pany’s books of account.
VIII. DID TWIG MCDONALD, ON OCTOBER 28, 1988,
THREATEN EMPLOYEE LEE WEBER WITH DISCHARGE?
Lee Weber was one of the most ardent supporters of the
UMWA. Twig McDonald came across Weber the day after
the election. Twig had heard that Weber was looking for a
job with another employer and asked Weber if Weber had
found another job yet. Weber responded with the question,
‘‘are you firing me?’’ Twig retorted something on the order
of: ‘‘No, I’m not firing you, but if you don’t trust me, your
don’t like me, you think I’m a liar, then your must not want
to work around here. So why don’t you find another job?’’
Weber could not reasonably have heard McDonald’s re-
mark as a threat of discharge. To begin with, Twig said that
he was not firing Weber. Secondly, in the past Twig had
suggested to various employees that if they didn’t like work-
ing for the Company they should get a job elsewhere—gen-
erally in connection with complaints about the Company by
the employees. Yet the Company had not fired those employ-
ees or even disciplined them.
But as I understand cases like Rolligon Corp.,10 the Board
deems to be inherently coercive statements by management
officials that they would prefer that employees who favor
unionization find work elsewhere.
Twig did not explicitly refer to Weber’s support for the
Union when he proposed that Weber find another job. But
the record compels the conclusion that in Twig’s exchange
with Weber, Twig was referring to statements that Weber
made during the course of the Union’s campaign, and that
Weber knew that. I therefore conclude that when McDonald
suggested that Weber find another job, the Company violated
Section 8(a)(1).
IX. THE CHRISTMAS PARTY
Ralph Kester was one of the employees who worked the
hardest to bring the UMWA to the Company. The Company
held a Christmas party in the Company’s shop and Kester
and his wife attended. As it turned out, Kester was one of
the few prounion employees there, perhaps the only one. He
and Twig McDonald got into a spat about a nonunion matter
a few minutes after the Kesters arrived at the party. Twig
then began an verbal attack on the prounion employees gen-
erally (calling them ‘‘a handful of assholes’’) and Kester in
particular. Twig’s words to Kester were these, more or less:
When are you fucking guys going to quit [trying to
bring the UMWA in]? I’m tired of all this union
shit. . . . I won the election. You should leave me
alone. If you were any kind of man, you’d get a job
somewhere else.
Again, Kester could not reasonably have considered
McDonald’s statement to be a threat that Kester might be
fired. Moreover the election was long past when McDonald
uttered the statement, and the utterance occurred in an alto-
gether informal setting. But in light of Rolligon’s teach-
ings,11 I conclude that the Company violated Section 8(a)(1)
of the Act when Twig McDonald stated to Kester that if
Kester ‘‘were any kind of man,’’ he would ‘‘get a job some-
where else.’’
X. LEE WEBER’S CHANGED JOB ASSIGNMENT
Lee Weber had been the Company’s ‘‘lube man’’ for
about 10 years when the UMWA campaign got underway.
As noted in part VIII, above, Weber was one of the Union’s
most ardent supporters.
As lube man, Weber had two main responsibilities. The
most important was to change the oil in the Company’s doz-
ers, rock trucks, loaders, and other such equipment. The
manufacturer of each such piece of equipment specifies how
many hours the equipment may be operated before having its
oil changed. For a number of reasons it is important that the
oil get changed on schedule. It was the responsibility of the
equipment operator and his foreman to notify Weber when
the equipment was due for an oil change. It was Weber’s re-
sponsibility, once he was notified, to promptly change the
oil.
Weber’s other main responsibility related to the 55-gallon
drums in the sheds at each of the Company’s jobsites. The
drums held various kinds of oil. The equipment operators
working at the jobsites drew from those drums when their
machines ran low. If, for some reason, the drums were
empty, equipment might have to be shut down until addi-
tional oil could be obtained from one of the other sites or
from the Company’s garage. Weber’s truck carried all the
various oils needed at the jobsites, and it was Weber’s re-
sponsibility to keep the drums filled.
Due to the nature of Weber’s job, close supervision was
impossible. The Company simply had to trust Weber to put
out a reasonable amount of effort in getting his job done.
Weber had never been able to get all needed oil changes
done precisely on time or always to fill the oil drums in the
shede as often as necessary. That was to be expected. Some-
times, for example, an emergency would require the contin-
ued use of a machine that was due for an oil change. In that
case the foreman at the site would tell Weber to return when
the emergency was over. Or when Weber was at one site,
he might get a call to handle an urgent job someplace else.
That meant that he would have to leave that first site imme-
diately, without checking the oil drums there.
But starting in August 1988 the Company’s foremen began
to notice that, more often than had ever been the case in the
past, oil changes were running late and Weber was leaving
jobsites without checking the oil drums.
Things got worse, not better, in the autumn and winter in
respect to both oil changes and the oil drums. The foremen
talked about Weber’s performance among themselves. But
into December they still had not raised the matter with Twig
469MCDONALD LAND & MINING
McDonald. In the meantime a couple of supervisors ques-
tioned Weber about his work. But Weber refused to accept
any responsibility for the delayed oil changes and empty oil
drums.
Things came to a head at a meeting that Twig McDonald
held with his supervisors in late December: A number of the
supervisors compained about Weber’s failure to get his job
done and about a why-should-I-give-a-damn attitude on We-
ber’s part. In response Twig ordered the person in charge of
the Company’s oil change records to prepare a list showing
any overdue oil changes in recent months. The list was pre-
pared and it did indeed show that on numerous occasions
Weber had been very late making oil changes.
In the meantime Mike McDonald happened across Weber
in circumstances which seemed to Mike to indicate that
Weber was goofing off when he should have been working.
That led Mike to investigate further, and on several other oc-
casions he noticed the same thing. Mike reported all this to
Twig. (Weber testified that Mike was wrong. But whether or
not Weber was in fact shirking work, the circumstances were
such as to lead Mike to believe that Weber was not doing
what he was supposed to be doing.)
On January 20 Twig, having decided that he could no
longer trust Weber to meet his responsibilities as lube man,
told Weber that he was being taken off the lube truck and
being assigned the job of shop mechanic. The Company did
not change Weber’s rate of pay. But Weber’s income may
have suffered from the switch because of less overtime.
The General Counsel contends that the Company’s real
reason for switching Weber’s job related to Weber’s vig-
orous support for the UMWA. As lube man Weber visited
all of the Company’s worksites and had ample opportunity
to talk to every employee. The mechanic job, on the other
hand, kept Weber in the shop. The Company made the
switch, argues the General Counsel, to reduce Weber’s effec-
tiveness as a prounion campaigner.
But as indicated in my account of Weber’s performance
and of the Company’s response to it, I find that: (1) the
Company had entirely appropriate reasons for switching
Weber from lube man to mechanic; and (2) the Company or-
dered the change solely for those reasons.
XI. DENNIS ROWLES’ SENIORITY DATE
Dennis Rowles first began working for Company in 1979.
In October 1987 he found another job and quit his employ-
ment with the Company. That other job didn’t pan out and
in June 1988 Rowles asked Twig McDonald if he could
come back to the Company. Twig offered to put Rowles on
part time, and Rowles agreed. Rowles did in fact start work-
ing part time for the Company in June.
The Company’s policy is that when an employee quits and
then returns to the Company, the employee’s seniority date
becomes the date the employee returned. (There is no dispute
about that.) Thus as of the day Rowles returned to work he
was the most junior of the Company’s employees.
A. Did the Company Promise Rowles
Special Treatment?
The Company has a pension program for its employees. In
February or March 1988, when Rowles had not yet returned
to the Company’s employ, Rowles had asked Kermit Tuning
about getting his pension money from the Company. Tuning
indicated that he thought that would be possible. When
Rowles rejoined the Company in June he again spoke to
Rowles about the pension money. Tuning’s response was that
since Rowles had come back to work, there was no way that
Rowles could receive any pension payout.
In the course of that discussion, Rowles asked if pension
would be based on that original date of hire or his rehire date
in 1988. Tuning, after checking with Twig McDonald, said
that although the pension would reflect Rowles’ 8 months
absence from the Company, Rowles would be treated as
though his date of hire was October 1979. Whether or not
Tuning specified that the 1979 date was relevant only for
pension purposes, that is what Tuning meant. Moreover any-
one knowledgeable about such matters would have realized
that Tuning was referring only to Rowles’ penison, not his
seniority date.
Rowles, however, is not at all knowledgeable about such
matters and, moreover, for obvious reasons Rowles wanted
to believe that the Company was going to use his original
hire date as his seniority date. Rowles thus concluded that
what Tuning meant was that the Company had decided to
override its usual policy and treat Rowles, for seniority pur-
poses, as though he had never quit.
I absolutely reject Rowles’ claim that Tuning told Rowles
that the Company would treat Rowles as though his seniority
date was his original date of hire. First, I did not find cred-
ible Rowles’ testimony about the use of 1979 as his seniority
date. Second, the Company had no reason to make that kind
of exception in Rowles’ favor. Third, the Company had plen-
ty of reasons not to make that kind of exception—namely,
the inevitable reactions of all the employees hired between
October 1979 and June 1988 if the Company had granted
special treatment to Rowles. And fourth, if the Company had
nonetheless inexplicably granted that benefit to Rowles, there
probably would have been documentation of that departure
from policy, which there was not.
The Company’s vacation policy is that everyone with over
1 year’s employment with the Company gets 40 hours of va-
cation pay.
Rowles resumed working full time on September 1, 1988.
About 2 months later Rowles asked if he could have a paid
vacation. Twig said that he could. That is consistent, of
course, with the Company deeming Rowles to be an em-
ployee with a seniority date of 1979 (although, even if the
Company had granted Rowles the 1979 seniority date, it
could presumably have refused to grant him the vacation
time since he had not in fact been working throughout the
past year). It is also consistent with Twig being willing to
do a favor in that one way for an employee he had known
since 1979. I find the latter to be the case.
B. Rowles’ Protected Activities
During the campaign Rowles did not take a stand about
the Union, one way or the other. But in December or January
Rowles decided to support the Union and began wearing a
UMWA hat to work.
In mid-January Rowles began complaining orally and in
written truck reports about problems with the rock truck that
the Company had assigned to him. In one of those reports
Rowles said that he was operating the truck against his will.
Not long therafter the Mine Safety and Health Administra-
470 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Question to union activist Fred London:
[D]idn’t you . . . call [Twig McDonald] and indicate to him that you
people felt that he should go ahead and give the raises?’’
A. Yes, I did.
Q. And didn’t you tell him the Union wasn’t going to object to him
giving these raises?
A. Yes, we had discussed it and that is what we decided upon. Tr.
356–357.
tion (MSHA) conducted a spot inspection of that truck as a
result of a complaint to MSHA. The result was that the truck
had to be parked until repaired and that the Company had
to pay a small fine. Moreover MSHA subsequently checked
another piece of the Company’s equipment—also as a result
of a complaint someone filed with that agency—and found
problems with it, too.
As far as Twig McDonald was concerned, employee com-
plaints to MSHA were not in good faith. Rather, they were
the doing of the UMWA and its supporters among the
empoyees and were intended to give the Company a hard
time.
Not long after the MSHA inspection, Twig called Rowles
into a meeting in which Twig reminded Rowles that under
longstanding company policy Rowles did not have to run any
equipment that he considered unsafe. As both Rowles and
Twig described the meeting, it was low key and not un-
friendly.
The Company laid off Rowles in February. Had Rowles
had a 1979 seniority date he would not have been laid off.
But there is no contention that the layoff was improper in
any other respect.
Conclusion
The General Counsel’s position is that the Company’s lay-
off of Rowles was the Company’s way of punishing Rowles
for his protected activities. The Company promised Rowles
special treatment, the General Counsel contends, and then
reneged on that promise because of those activities.
As discussed earlier, however, I am convinced that the
Company never intended to treat Rowles specially regarding
his seniority date and never said that it would. I therefore
conclude that Rowles’ layoff in February was a routine event
in which Rowles’ protected activities played no role what-
ever.
XII. THE UNION’S OBJECTIONS
A. Pay Raises Granted by the Company During the
Organizing Drive
In its Objections e, the Union contends that the Company
granted pay raises during the organizing drive to employees
Jim Anderson and Bill Kendall. The Company did that, the
Union claims, because Anderson and Kendall opposed the
representation by the UMWA.
The objection is without merit.
Part IV of this decision, above, discusses the pay increase
the Company granted. The Company did in fact grant pay in-
creases to Anderson and Kendall during the organizing drive.
The Company also granted pay increases to employees Irwin
and Wanson, and the Union makes no claims about their
prounion or antiunion sympathies. In any case (1) the Com-
pany granted the increases only after several of the most ac-
tive supporters of the Union asked the Company to do so and
promised not to object to the pay increases;12 and (2) the
Company had originally ordered the increases prior to the fil-
ing of the election petition.
B. The Defaced Election Notice
The Board conducted the election in the Company’s
Curwensville shop on October 27, 1988. Two days earlier,
on October 25, employee Lee Weber noticed that an official
NLRB election notice posted in that shop had been defaced.
Someone had placed a checkmark in the ‘‘NO’’ box of the
sample ballot. Shop Supervisor John McDonald (Twig’s
cousin) had tried to deal with the mark by covering it with
correction fluid, but the mark showed through. Weber no-
ticed the partially obscured mark and complained about it to
John. John’s only communication to Weber was to shrug his
shoulders. But John then did promptly obtain another notice
and, about 15 minutes after Weber’s complaint, replaced the
defaced noticed with the new one.
The Union contends, in its Objection g. that the presence
of the defaced election notice constitutes objectionable con-
duct. But of course it does not. See Patsy Bee, Inc., 249
NLRB 976, 986–987 (1980); Fort Worth Steel Co., 242
NLRB 917 (1979). I thus conclude that the objection is with-
out merit.
C. The Gap in the Voting Booth Curtain
As usual in Board-conducted elections, voters marked their
ballots in a voting booth. To provide secrecy the booth had
a curtain across the front that voters were supposed to be
able to pull shut. But this time there was a problem with the
voting booth: sometimes the curtain would not completely
pull shut. That left a gap of up to 10 inches. (Whether there
was a gap or not apparently depended upon the size of the
voter.) A voter could nonetheless maintain the secrecy of his
ballot by positioning himself so that his body was between
onlookers and his ballot. If a voter did not do that, and if
in the voter’s case there was a gap in the curtain, strategi-
cally located persons outside the booth could see how the
voter marked his ballot.
Lee Weber, who served as observer at the polling place
for the UMWA, was one of the persons who noticed the gap
in the curtain. Weber did not raise the matter with anyone.
No employee complained to the Board agent about the gap
in the curtain.
One of the Union’s objections to the conduct of the elec-
tion, Objection h, is that the gap in the voting booth curtain
destroyed the secrecy of the balloting process.
I conclude the objection is without merit. It is most un-
likely that the gap in the curtain affected the way any em-
ployee voted, the gap in the curtain obviously was not the
fault of the Company, and the Union’s observer did not bring
the matter to the attention of the Board agent. See Sewell
Plastics, 241 NLRB 887 (1979).
D. Danny McDonald’s Threats
Danny McDonald is Twig’s first cousin, once removed.
He works for the Company on the reclamation crew. He is
paid on an hourly basis. (All of the persons whom the parties
agreed are supervisors of the Company are paid a salary.) In
the summer he runs a tractor that is equipped to plant seeds
471MCDONALD LAND & MINING
13 Dal-Tex Optical Co., 137 NLRB 1782, 1786 (1962).
14 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
and often directs two temporary employees in planting
chores. In the winter he fills in wherever the Company needs
him. For example he sometimes helps ash the Company’s
roads. He has no authority to hire, fire, or discipline employ-
ees, or to responsibly recommend such actions. And while
Danny sometimes does direct employees, such direction is
routine in nature.
When Danny went to vote on October 27 the Union chal-
lenged his ballot on the ground that he was a supervisor.
Danny lost his temper, perhaps because he had been drink-
ing. In short order he threatened to shoot holes in a prounion
sign, threatened to beat up a prounion employee, and threat-
ened to shoot another prounion employee and the Board
agent.
The Union claims, in Objection a, that the Company rati-
fied Danny’s ‘‘acts of violence against employees.’’ The
Union further claims that (1) Danny’s behavior may be at-
tributed to the Company because he is a supervisor, and (2)
even if Danny is not a supervisor and even if the Company
did not ratify Danny’s behavior, ‘‘his conduct created such
a general atmosphere of fear and coercion that it mandates
setting aside the election results.’’
I conclude that the objection is without merit.
To begin with, Danny is an employee, not a supervisor.
Secondly, there is no evidence in the record whatever to the
effect that the Company ratified Danny’s actions in any way.
Thirdly, Danny’s threats occurred relatively late in the day
(around 4 p.m.). And the Union presented no evidence that
any of the employees who were around Danny when he ut-
tered his threats had not yet voted. Rather, the evidence on
that subject cuts the other way.
E. Was the Company’s Election Observer a Supervisor?
In Objection i, the Union contends that the election ob-
server named by the Company, Donald Hepfer, is a super-
visor. That objection too is without merit.
The record fails to show that the Company has granted
Hepfer any supervisory authority. Hepfer does the mainte-
nance work on the Company’s buildings and, in the winter,
runs an ash truck. His maintenance work involves repairing
furnaces, miscellaneous carpentry, and the like. The Com-
pany sometimes provides him with assistants (for example
Danny McDonald sometimes helps Hepfer on the ash truck).
The Company pays Hepfer $8.50 an hour, a pay rate all the
Company’s senior employees make.
F. Alleged Illegal Surveillance and Promises of Benefits
In its Objection d, the Union contends that the Company
engaged in illegal surveillance of its employees’ protected
activities. Objection c contends that the Company promised
benefits to employees if the Union were defeated. No evi-
dence supports either contentions and I conclude that they
are without merit.
G. Threats by the Company, Including Threats
of Shutdown
In Objection b, the Union objects to threats by the Com-
pany of shutdown or loss of jobs if the Union were voted
in. Objection f alleges that the Company assembled groups
of employees and made threatening statements.
In parts II, III, and V of this Decision I found that Mike
and Twig McDonald did unlawfully threaten assembled
groups of employees by the manner in which they contended
that the employees’ selection of the Union to represent them
might result in the closing of the Company or the layoff of
many employees. Those unlawful threats, moreover, occurred
during the election campaign. I conclude, therefore, that Ob-
jections b and f have merit.
Since ‘‘[c]onduct violative of Section 8(a)(1) is, a fortori,
conduct which interferes with the exercise of a free and
untrammeled choice in an election,’’13 I shall recommend
that the October 27, 1988 election be set aside and second
election be held.
CONCLUSIONS OF LAW
1. The Company interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act, thereby violating Section 8(a)(1) of the
Act, by the following actions:
(a) Predicting that the employees’ selection of the UMWA
to represent them might result in the closing of the Company
or the layoff of many employees, doing so without sufficient
explication of objective facts substantiating such predictions.
(b) Communicating to employees Lee Weber and Ralph
Kester that, because of their protected activities on behalf of
the UMWA, the Company preferred that they find other em-
ployment.
2. The above unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
3. The record fails to show that the Company violated the
Act in any other respect.
4. The unfair labor practices referred to in paragraph 1(a)
interfered with the rights of the Company’s employees to a
free and untrammeled choice in the election conducted in
Case 6–RC–10084 on October 27, 1988, and have tainted the
results of that election.
REMEDY
The recommended Order requires the Company to cease
and desist from engaging in the unfair labor practices re-
ferred to in the above conclusions of law and requires the
Company to post appropriate notices.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended14
ORDER
The Respondents, McDonald Land & Mining Co., Inc.;
McDonald Trucking Co., Inc.; McDonald Coal Co.; McDon-
ald Coal Sales Corp.; Thomas Coal Sales, Inc.; and Thomas
Coal Company, Inc., Clearfield, Pennsylvania, their officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Predicting, without sufficient explication of objective
facts substantiating such predictions, that the employees’ se-
lection of the United Mine Workers of America (UMWA),
472 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
or any other union, to represent them may result in the clos-
ing of the Respondents or the layoff of employees.
(b) Telling employees who engage in protected activities
on behalf of the UMWA, or any other union, that because
of such activities the Respondents preferred that those em-
ployees find other employment.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at their facilities copies of the attached notice
marked ‘‘Appendix.’’15 Copies of the notice, on forms pro-
vided by the Regional Director for Region 6, after being
signed by the Respondents’ representative, shall be posted by
the Respondents immediately upon receipt and maintained
for 60 consecutive days in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondents to ensure
that the notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondents have
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
I recommend that the election in Case 6–RC–10084 that
was held on October 27, 1988, be set aside and that Regional
Director for Region 6 conduct a second election at such time
as the Regional Director determines that the circumstances
permit the free choice of a collective-bargaining representa-
tive.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT try to convince you to vote against union-
ization by telling you that if a union comes in the Company
might be forced to close or lay off employees.
WE WILL NOT tell employees who campaign for the United
Mine Workers of America or any other union that we prefer
that they find jobs someplace else.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
MCDONALD LAND & MINING CO., INC.;
MCDONALD TRUCKING CO., INC.; MCDONALD
COAL CO.; MCDONALD COAL SALES CORP.;
THOMAS COAL SALES, INC.; THOMAS COAL
COMPANY, INC.