Mountaineer Steel, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1998

326 N.L.R.B. 787 (N.L.R.B. 1998)

MOUNTAINEER STEEL, INC. 787
Mountaineer Steel, Inc. and International Union,
United Mine Workers of America, AFL–CIO
and United Mine Workers of America, Local
1582, AFL-CIO. Cases 9–CA–34103–1 and 9–
CA–34103–2
August 27, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS LIEBMAN
AND BRAME
On November 12, 1997, Administrative Law Judge
Margaret M. Kern issued the attached decision. The Re-
spondent filed exceptions and a supporting 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 brief and has decided to
affirm the judge’s rulings, findings1 and conclusions2 and
to adopt the recommended Order as modified.3

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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 reversing the findings. Further, the Respondent, in its brief,
contends that some of the judge’s credibility findings demonstrate bias.
On careful examination of the judge’s decision and the entire record,
we are satisfied that the contention is without merit.
In adopting the judge’s credibility resolutions with respect to Perry
Miller, Member Brame does not rely on the judge’s discussion of
Miller’s reaction to the hiring of Ronald Caudil after the discussion of
the need for layoffs in sec. IV,B,g of her decision.
2 Member Brame disagrees with the judge’s finding in sec. IV,B,a of
her decision, that Shop Foreman Grover Chamber’s comment to em-
ployee Williams that, “I thought you was [sic] a union radical and now
I know you are” violated Sec. 8(a)(1) by creating the impression of
surveillance. He notes that the General Counsel did not allege that the
comment constituted an impression of surveillance, but only that the
statement was an “accusation.” Further, Member Brame does not find
that the facts here would lead employees reasonably to infer that the
Respondent was covertly observing their protected activities. As the
judge found, some employees were discussing the Union while they ate
lunch in the shop, when Foreman Chambers rounded a corner and made
the comment at issue. Member Brame notes that an 8(a)(1) impression
of surveillance violation will lie only when an employer’s “willful
conduct” gives the employees the “justifiable impression” that their
union activities are under surveillance. NLRB v. Typographical Union,
452 F.2d 976, 978 (10th Cir. 1971).
Contrary to the judge, the first part of the Chambers’ comment, “I
thought you was a union radical, “falls well short of implying covert
surveillance of Williams’ union activities; indeed the tenor the remark
is that Chambers had only a suspicion of Williams’ sentiment, plausibly
stemming from a rumor or a report volunteered by a fellow employee.
The second part of Chambers’ statement, “and now I know you are”
reflects a remark based on inadvertently overhearing a conversation
involving Williams, carried on openly in the shop, and thus would not
convey an impression of surveillance.
3 We shall modify the judge’s recommended Order to include a pro-
vision inadvertently omitted by the judge requiring the Respondent to
cease and desist from laying off or otherwise discriminating against
employees because of their union support or activities.
Contrary to Member Brame, we agree with the judge
that the Respondent created the impression of surveil-
lance when Foreman Grover Chambers accused em-
ployee Ronnie Williams of being a “union radical.” Spe-
cifically, the judge found that on July 29 or 30, 1996,
before the union meeting on July 31, 1996, Williams was
eating lunch in the shop area and was talking about the
Union with other employees. Chambers walked around a
corner and said to Williams, “I thought you was [sic] a
union radical and now I know you are.”
The Board’s test for determining whether an employer
has created an impression of surveillance is whether the
employee would reasonably assume from the statement
in question that his union activities had been placed un-
der surveillance. United Charter Service, 306 NLRB 150
(1992).

The Board does not require employees to attempt
to keep their activities secret before an employer can
be found to have created an unlawful impression of
surveillance. . . . Further, the Board does not require
that an employer’s words on their face reveal that
the employer acquired its knowledge of the em-
ployee’s activities by unlawful means. Id. at 151.

Applying these principles here, we agree with the
judge that Chambers’ direct, personal reference to Wil-
liams’ union sympathies would reasonably lead Williams
to believe that his protected activities were under surveil-
lance. As the judge pointed out, the first part of the
statement (“I thought you was [sic] a union radical”)
reasonably suggested to Williams that Chambers had
spent some time in the past closely monitoring the degree
and extent of Williams’ union activities. The second part
of the statement (“and now I know you are”) reasonably
suggested to Williams that Chambers had been listening
to Williams’ lunchtime conversation about the Union
with his coworkers. There is no record evidence of a
legitimate purpose for making the statement. Accord-
ingly, we adopt the judge’s finding that Chambers’
statement created the impression of surveillance of Wil-
liams’ union activities and violated Section 8(a)(1) of the
Act.4
4 Although the complaint alleges that Chambers’ statement consti-
tutes a violation of Sec. 8(a)(1), our dissenting colleague “notes” that
the complaint does not specifically characterize the statement as creat-
ing the impression of surveillance. We agree with the judge that the
impression-of-surveillance issue “was sufficiently raised by the plead-
ings and fully litigated at the hearing,” and the Respondent does not
contend otherwise.
With respect to the merits, Member Brame, citing NLRB v. Interna-
tional Union, 452 F.2d 976, 978 (10th Cir. 1971), applies a different
test, one requiring “willful [employer] conduct” that gives employees a
“justifiable impression” that their union activities are under surveil-
lance. The dissent then misapplies this test by attempting to construct
an innocent explanation for Chambers’ comment when, in fact, none
was communicated to Williams. Even under the dissent’s test, properly
applied, a violation has been established. The “willful conduct” is the
statement Chambers made to Williams and, for the reasons set forth
326 NLRB No. 66
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 788
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Moun-
taineer Steel, Inc., Accoville, West Virginia, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
Insert the following as paragraph 1(a) and reletter the
subsequent paragraphs.
“(a) Laying off or otherwise discriminating against
employees because they support or engage in union ac-
tivities.”

Deborah Jacobson, Esq., for the General Counsel.
Forrest Roles, Esq. and Christopher Slaughter, Esq.,
for the Respondent.
DECISION
STATEMENT OF THE CASE
MARGARET M. KERN, Administrative Law Judge. This case
was tried before me in Charleston, West Virginia, on May 19,
20, and 21, 1997. The consolidated complaint, which issued on
December 10, 1996,1 was based on unfair labor practice
charges filed on August 13 and 21 and October 18, 1996, by
the International Union, United Mine Workers of America,
AFL–CIO (International) and by the United Mine Workers of
America, Local 1582, AFL–CIO (Local 1582) (collectively the
Union) against Mountaineer Steel, Inc. (Respondent).
The complaint alleges, and Respondent admits, that in Au-
gust 1996, 14 employees were laid off. The General Counsel
maintains that these employees were laid off because they had
attended a union meeting on July 31 and signed union authori-
zation cards. Respondent defends by claiming that the employ-
ees were laid off due to lack of work and poor work perform-
ance. Respondent also argues that the signing of the authoriza-
tion cards constituted an attempt by employees to enforce an
illegal union-security clause, and was therefore unprotected
activity.
The complaint further alleges that in July and August, Re-
spondent threatened and interrogated employees, and Respon-
dent denies these allegations.2
FINDINGS OF FACT
I. JURISDICTION
Respondent admits and I find that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits and I find that the International and Local
1582 are each labor organizations within the meaning of Sec-
tion 2(5) of the Act.

above, it would reasonably tend to give him a “justifiable impression”
that his union activities were under surveillance.
1 All dates are in 1996 unless otherwise indicated.
2 The General Counsel amended the complaint at the commencement
of the hearing to include an additional allegation of interrogation by
Harry Chambers in August 1996. In her brief, the General Counsel
moved to withdraw the allegation as unsupported by the testimony, and
the motion is granted.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent, which is engaged in the repair and maintenance
of coal mining equipment, performs work at customer sites in
the Charleston area and also maintains a shop and office com-
plex in Accoville, West Virginia. Many of Respondent’s cus-
tomers are signatory to the National Bituminous Coal Wage
Agreement with the Union which provides for three successive
2-week vacation periods, called miners’ vacation. Because the
mines do not operate during the vacation periods, it is an oppor-
tune time for machinery and equipment to be repaired, and
miners’ vacation is Respondent’s busiest time of the year. In
1996, Respondent performed on-site repair work for Hobet
Mining Company during the first 4weeks of miners’ vacation,
from June 22 to July 20: the first 2 weeks at Hobet’s Dal-Tex
mine, and the second 2 weeks at Hobet’s Mine 21.
Roy Stanley is Respondent’s president and Grover Chambers
(Grover) is the shop foreman. Harry Chambers (Harry) was
Respondent’s field foreman until September when he founded
and became president of Federal Welding Service, Inc. (Federal
Welding), a company which is engaged in the same business as
Respondent in the same geographic area.3 Federal Welding is
party to a collective-bargaining agreement with the Union,
whereas Respondent’s employees are not represented by any
labor organization.
Respondent employs machinists, welders, truckdrivers, me-
chanics, general laborers, and office clericals. Initial pay rates
are set by Stanley and are based solely on the level of skill an
employee possesses and the quality of his or her work perform-
ance. Wage increases are determined by Stanley and are also
merit-based. Decisions with respect to hiring, firing, layoffs,
and reinstatement are made by Stanley with input from Grover
and Harry.
The parties stipulated that in June 1995, Respondent and the
Union entered into the National Coal Mine Construction
Agreement of 1995 (the 1995 agreement) at a time when the
Union did not represent a majority of Respondent’s employees
in an appropriate unit. The evidence establishes that the agree-
ment was enforced by the parties for only a limited period of
time during miners’ vacation that year, and was thereafter given
no effect. A number of unfair labor practice charges were filed
by both Respondent and the Union in 1995 and 1996 with re-
spect to the enforcement of the 1995 agreement, none of which
are before me in this case.

3 All three men are admitted by Respondent to be agents and super-
visors within the meaning of the Act at all times material herein.
MOUNTAINEER STEEL, INC. 789
B. The Alleged Unfair Labor Practices
1. June and July 1996: employees
learn of the 1995 agreement
Sixteen employees signed authorization cards at the meeting:
Lawrence Kammerer, Ronnie Williams, William Bayless, Ben
Lambert, Michael Frye, Marcus Honaker, Walter Steven
Mounts, David Lusk, Brian Gibson, Tommy Mullins, Freddie
Wingler, Sidney Dwayne Stroud, Arnold Vance, Joseph Nel-
son, John Spence, and Michael Lodato. Two other employees
who attended the meeting, Jeffrey Phillips and James Simpkins,
took the cards with them and signed them on August 3.

Sometime during the summer of 1996, employee Lawrence
Kammerer learned about the execution of the 1995 agreement.
He obtained a copy of the contract and showed it to several
other employees, including Ronnie Williams. Williams con-
tacted Jerry Kerns Jr., president of Local 1582, and obtained a
copy of the signature page bearing Stanley’s signature. Both
Kammerer and Williams testified that they wanted the Union to
enforce the terms of the 1995 agreement and it was resolved
amongst the employees that they would meet with representa-
tives of the Union to discuss the situation.
Employee Ben Lambert testified that sometime during the
1996 miner’s vacation, he was working at Hobet when Jerry
Kerns Sr., a union representative, came to the job and spoke
with him and other employees, including Terry Wilson, James
Chambers (brother of Harry and Grover), and Robert Char-
candy. Kerns Sr. asked the employees if they were aware that
they were under a union contract. Lambert testified that nobody
had too much to say because Harry was present.
2. The events of July 29 or 30
On or about Monday, July 29 or Tuesday, July 30, Williams
was eating lunch in the shop area and was talking about the
Union with other employees. Grover walked around a corner
and came into Williams’ view. According to Williams, Grover
looked directly at him and said, “I thought you was [sic] a un-
ion radical and now I know you are.” Williams did not respond.
Grover denied making this statement, and testified that he was
not in the shop on either day as he was away on vacation in
Myrtle Beach, South Carolina.
3. The events of July 31
On July 31, a meeting was held in the outdoor parking lot of
Tudor’s Biscuit World restaurant, located 2 miles from Re-
spondent’s Accoville facility. The meeting took place sometime
in the late afternoon, during daylight hours, and approximately
15 to 20 employees from the first and second shifts attended.
Present from the Union were Kerns Sr. and Kerns Jr. During
the course of the meeting, there was discussion about the ad-
verse working conditions at Respondent’s facility, including the
fact that employees were frequently called upon to work exces-
sive amounts of overtime. Different employees related inci-
dents of having to work 24 to 26 to 38 hour shifts, without rest.
This discussion related, in turn, to the 1995 agreement and to
the perception that Stanley was failing to live up to its terms.
Kerns Sr. told the employees that the Union was willing to
represent them and was in a position to enforce the contract. In
an affidavit given by Kerns Jr., he explained that “we discussed
how the Company had signed the union contract. The employ-
ees said they wanted the Union to enforce the contract. That’s
when we handed out the cards and employees signed them.”
The union representatives distributed a form captioned
“United Mine Workers of America, Checkoff Authorization
Form.” Preprinted language and a signature line appeared at the
top of the form which provided authorization to an employer to
deduct membership dues, initiation fees, and assessments from
the employee’s wages and to remit the money to the Union.
The last sentence of the same paragraph further provided, “By
my signature, I hereby authorize the United Mine Workers of
America to act as my representative in all matters concerning
wages, hours, and other terms and conditions of employment.”
Ronnie Lee Thompson is a security guard employed by Re-
spondent. Thompson testified that sometime on July 31,
Stanley told Thompson that there were going to be layoff inter-
views on August 2 and he asked Thompson to attend.
4. Alleged interrogations and threats by Grover and Harry
Simpkins testified that Grover told him that he had heard
rumors about a union and wanted to know if Simpkins knew
anything about it. Simpkins told him no. Simpkins could not
recall when or where this conversation took place, and Grover
denied that he ever had such a conversation with Simpkins.
Kammerer testified that late one evening, sometime between
July 31 and August 5, he was getting ready to go home when
Grover asked him if he knew how many people signed cards for
the Union. Kammerer said he did not know. Grover stated that
people who were organizers could be labeled as troublemakers.
Michael Lodato testified that sometime in August, he was
operating a drill press in the shop and Grover approached him
and stated, “I feel sorry for you guys if this union stuff goes
through. I can always get my job back at Smithers. You all will
be labeled as organizers and it’ll be hard for you to get another
job around here.”
Lee Hancock and William Sargent, both employees of Fed-
eral Welding at the time of the hearing, testified that shortly
after miners’ vacation, in late July or early August, while they
were still working for Respondent at Hobet, Harry stated to
them that if anybody signed a union card they would be laid off
or fired. Neither Hancock nor Sargent responded. Harry denied
making any such statement.
5. The events of August 2
Phillips testified that sometime between the hours of 1 and 4
p.m. on Friday, August 2, he had a conversation with Grover
outside of Grover’s office in the shop. James Simpkins was
present for at least part of the conversation. According to Phil-
lips, Grover told him that he had left for vacation but that his
car had broken down and he had to return to pick up his
brother’s truck. Phillips was not certain whether Grover had
finished his vacation at the time of this conversation, or
whether he was in the hiatus period trying to find a working
vehicle. Phillips testified that Grover said that since he had
gotten back, he had heard rumors that employees were going to
try to vote the Union in. Grover said that he was aware that
there had been a meeting, and he asked Phillips if he had at-
tended the meeting. Phillips said yes. Grover asked him if he
were “involved,” and Phillips told him that plenty of employees
had signed cards for the Union. Grover said he was surprised at
a few of the people whom he heard had signed cards. Phillips
replied that a lot of people’s minds were made up when they
saw Stanley’s signature on the 1995 agreement. Grover said
that it was only a 2-week contract that had applied to steam
cleaners working at a single mine. Phillips said that was not the
way he heard it, and that there was no such thing as a 2-week
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 790
contract. Grover concluded by stating that “if you people want
to vote yourselves out of a damn job, go ahead, I can go back to
Smithers any day of the week.” Simpkins’ testimony regarding
this conversation was similar to Phillips’ testimony. Grover
denied that this conversation ever took place, again testifying
that he was away on vacation.
On August 2, eight employees were laid off: Williams, Frye,
Mullins, Gibson, Mounts, Honaker, Conely, and Caudill. All of
the laid-off employees, with the exception of Conely and
Caudill had signed cards for the Union.4
Williams testified that at the end of his shift, Grover ap-
proached him and told him that Stanley wanted to see him.5
Williams entered Grover’s office, and present were Stanley,
Grover, Thompson, and Perry Miller, Stanley’s secretary.
Stanley handed Williams an envelope and told him that he was
laid off. Stanley said that it would probably not amount to
much, and there was no reason to go to the unemployment of-
fice because he would probably be called back to work on
Monday. Stanley stated there would be six or seven more em-
ployees laid off that day, and “then, if this stuff don’t straighten
up, there’ll be some more Friday, this union stuff.”
Stanley denied making any reference to the Union when he
laid off Williams, and testified, similar to Grover, that Grover
was not present for the interview because he was on vacation
that day. Thompson’s and Miller’s testimony regarding the
Williams’ layoff interview was consistent with the testimony of
Stanley.
6. Grover’s Myrtle Beach vacation
Grover testified that he left for vacation shortly after mid-
night, Sunday, July 28, with his wife and stepdaughter. They
were en route to Myrtle Beach when Grover’s new car began
acting up. Grover turned around and returned to West Virginia.
He borrowed his brother Harry’s truck, and set out again for
Myrtle Beach, at around 10 a.m. on July 28. The family stayed
at the Holiday Sands North Hotel in Myrtle Beach from Sunday
night through Thursday night. Grover drove back to West Vir-
ginia on Friday, August 2 and arrived back at his home at
around 7 p.m. At around 8 p.m. Grover received a phone call
from Harry who was experiencing difficulties at a jobsite. The
two brothers spent most of the next 3-1/2 hours on the phone
discussing Harry’s problems. At first Grover testified that
Harry needed certain measurements which Grover could recite
from memory. On cross-examination, however, Grover con-
ceded that Harry had the measurements all along, and that they
spoke for 3-1/2 hours because the superintendent on the job
where Harry was working was yelling at him, and Grover
needed to calm Harry down.
Judith Chambers, Grover’s wife, testified about the family
vacation and corroborated Grover’s testimony in every respect,
including that they stayed at the Holiday Sands North Hotel.
She also specifically recalled that Grover spent all evening on
August 2 with Harry on the phone because it was her birthday,
and she was unhappy that Grover had not bought her a birthday
cake.

4 Caudill’s layoff is not alleged as violative of the Act. The circum-
stances of his layoff are nevertheless relevant to the issues herein, and
are discussed, infra.
5 Williams’ timecard for August 2 reflects that he punched out at
about 4:30 p.m.
Bayless testified that a month after Harry hired him to work
at Federal Welding, he met Grover at a local Seven Eleven
store. Grover asked him if he was upset with him and were they
still friends. Bayless said yes, he had no hard feelings. Grover
said if he had known there was going to be a meeting at Tu-
dor’s that week, he would not have gone on vacation. Bayless
recalled Grover returned from vacation on Friday, August 2.
7. The events of August 3
At around noon on Saturday, August 3, Phillips and Simp-
kins were standing between the main office area and the shop.
Stanley approached them and said that he guessed they had
heard there had been a layoff. Stanley said he had to hire extra
help through vacation and that he had too many people work-
ing. He said he didn’t have as much money as people thought
he did and he never intended on getting that big, nor did he
intend to stay that big. Stanley told both Phillips and Simpkins
that he did not have any problems with either of their work, but
if business did not pick up, there would be another layoff in a
week. Simpkins’ testimony was corroborative of Phillips testi-
mony regarding this conversation. Simpkins also recalled that
during this conversation, Stanley stated that he could not afford
to pay union.
Stanley testified that it was Phillips, not he, who initiated this
conversation and that Simpkins was nearby but did not partici-
pate. According to Stanley, Phillips stated that he was aware of
the layoffs the day before and he wanted to know if there were
going to more layoffs and would he have a job. Stanley told
him that there could be more layoffs if work kept slowing
down. Stanley denied making any reference to the quality of
Phillips’ or Simpkins’ work.
8. The August 5 layoffs
On the morning of Monday, August 5, Stanley stayed at
home. Between 8 and 8:30 a.m. Grover, in the presence of
Miller, handed out layoff slips in his office to Kammerer, Bay-
less, Simpkins and Phillips, all of whom had signed cards for
the Union.
9. Respondent’s knowledge of union activity
On the second day of the hearing, Stanley testified that he
first learned of the July 31 union meeting sometime on August
6 or 7 when three employees, John Spence, Brian Lusk, and
Roy Hurst met with him individually. Spence asked Stanley
what was going on about the Union and Stanley said he didn’t
know anything about a union, and that the layoffs were due to
lack of work. Brian Lusk asked the same question, and Stanley
repeated he didn’t know anything about a union. Roy Hurst told
Stanley that he had signed a union card because he had been
threatened by a fellow employee. Stanley testified, “I told him,
I said I didn’t want to hear it. I told him I didn’t want to hear it.
I said, ‘that’s your business. That is your business.’”
On the morning of the third day of the hearing, Grover was
called to testify, and Stanley was not present in the hearing
room during his testimony. Grover testified that the first he was
aware of any union activity was on August 5 at around 10 a.m.
when Michael Lodato came into his office and told him there
had been a union meeting. Lodato said that there was a rumor
that Stanley had signed a contract in 1995. Grover said he re-
membered something like that but that he did not have anything
to do with it. According to Grover, Lodato asked him if the
Company would be able to operate if it was unionized, and
Grover said he didn’t know because he never worked in a union
MOUNTAINEER STEEL, INC. 791
shop before. Lodato asked Grover if the Company shut down,
what would Grover do and Grover said he would probably go
back to his former employer, located in Smithers, because he
had a good record with them and he enjoyed his work there.
They discussed the fact that none of the shops in the area were
unionized and Lodato asked Grover if he thought the other
shops would hire Respondent’s employees. Grover said he
didn’t know, but that a company might think twice about hiring
someone who was involved with a union. Grover testified that
he called Stanley on August 5 and told him about his conversa-
tion with Lodato.
On the afternoon of the third day of the hearing, Stanley re-
sumed the witness stand and testified that he first learned of
the July 31 union meeting on the afternoon of August 5 when
he called the shop and spoke with Grover. Grover told Stanley
that Michael Lodato had told him about some union activity.
Grover mentioned the 1995 agreement and asked Stanley what
was going on. Stanley replied that he did not know what was
going on and that this was the first he had heard of any union
activity.
10. The events of August 9
On Friday, August 9, Williams, who had been laid off on
August 2, went to the office to pick up his final paycheck. He
had prepared a written grievance statement concerning his lay-
off and he tried to hand it to Grover. Grover refused to accept
the paper, stating that this was not a union shop. He told Wil-
liams to get off the property and to “tell Jerry Kerns he can kiss
my ass.”
That same day, a meeting was held between representatives
of Respondent and representatives of the Union. Present for
Respondent were Forrest Roles, Respondent’s counsel, and
Stanley. Present for the Union were Kerns Sr., Kerns Jr., and
Chuck Donnelly, an attorney. The meeting was convened to
discuss the relationship between Respondent and the Union,
including the fact that the Union had commenced picketing
Respondent at various jobsites shortly after the layoffs. At-
tempts to work out the terms of a collective-bargaining agree-
ment were not successful.
Kerns Jr. testified that at the end of the meeting, Roles and
Stanley stood up to leave. Kerns Jr. heard his father say that he
had something for Stanley, and saw him slide a stack of au-
thorization cards across the table in Stanley’s direction. Stanley
looked at the stack of cards, but did not touch them. At first,
Roles stated that they were not going to take the cards, but then
he said he would keep them for himself. Roles picked up the
cards, and he and Stanley left.
Roles testified that he has been practicing labor law since
1967. At the time of the meeting, Respondent had filed unfair
labor practice charges against the Union alleging violations of
Section 8(b)(2) of the Act for seeking to enforce a minority
contract, and Section 8(b)(4) for engaging in secondary boycott
activity. The Union was picketing Respondent’s jobsites and it
was Roles’ hope that the situation could be resolved. There was
an attempt to reach agreement on the terms of a collective-
bargaining agreement and there was specific discussion about
wage rates and to which of Respondent’s operations any collec-
tive bargaining agreement would apply. Roles testified that it
was close to the end of the meeting, but not at the very end,
when Kerns Sr. made a display of placing the authorization
cards one by one in a pile on the table. He then slid them across
the table at Stanley, with the comment, “[T]his is something I
want you all to know about.” Roles testified as follows: “I did
not believe it in our best interest that [Stanley] have knowledge
of the contents of those cards. I picked them up, put them in my
briefcase without looking at them or reading them or otherwise
getting the knowledge from them. I took them to my office and
threw them away, and I never told Mr. Stanley or anyone else
about the contents of those cards.”
On cross-examination, Roles conceded that he could have
slid the cards back across the table without looking at them, but
he testified that he did not want to engage in a “shoving match”
over the cards which would have ended the ongoing discussion.
Roles further conceded that he could have simply left the cards
on the table and not touched them at all. Roles admitted that
prior to the meeting, he had anticipated that the issue of Re-
spondent’s motivation for the layoffs would be discussed, and
that a claim of majority status might be made.
Stanley testified that towards the end of that meeting he got
out of his chair and was getting ready to leave when Kerns Sr.
slid a stack of cards across the table. He saw Roles pick them
up, but he was never shown the cards by Roles, nor advised of
the names on the cards by Roles.
11. The layoffs of August 9, 13, and 19
On August 9, the same day as the meeting between the Un-
ion and Respondent, Dwayne Stroud was laid off. Stroud’s
timecard for August 9 reflects that he punched out at 4:55 p.m.,
but the record does not establish whether he was laid off before
or after the meeting.
On August 13, Respondent laid off Ben Lambert, and on
August 19, Respondent laid off Arnold Vance. A week after
Stroud was laid off, Stanley reinstated him because he discov-
ered that after he laid Lambert off, he had “cut down too low.”
C. Respondent’s Business Justification for the Layoffs
In 1992, Respondent employed 12 employees during miners’
vacation, and did not lay any of them off at the conclusion of
the vacation period. In 1993, Respondent employed 11 employ-
ees during miners’ vacation, and laid 1 off at the conclusion of
the vacation period. In 1994, Respondent employed 13 employ-
ees during miners’ vacation, and laid 1 off at the conclusion of
the vacation period. In 1995, Respondent employed 30 employ-
ees during miners’ vacation, and laid 10 off at the conclusion of
the vacation period. In 1996, Respondent employed 39 employ-
ees during miners’ vacation, and laid off 15 employees at the
conclusion of the vacation period. Fourteen of these fifteen
individuals are alleged by the General Counsel to have been
laid off due to their union activities. Respondent asserts that the
layoffs were motivated solely by lack of work, and that the
selection of who was to be laid off was done on the basis of
individual job performance.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 792
1. Lack of work
From late April to June, Stanley hired 15 to 18 new employ-
ees in anticipation of the increased workload during miners’
vacation. During the 4-week period of the Hobet vacation re-
pairs, Respondent’s resources were stretched to the limit. Stan-
ley testified that not only did he have to perform the work at
Hobet, but he also had to service his regular customers and
employees worked “tremendous” amounts of overtime. Stanley
himself spent the entire 4-week period working at the Hobet
sites, and every available employee was dispatched to do field
work. As a result, a large backlog of repair work developed in
the shop.
The Hobet work ended on July 20. Stanley first testified that
on Monday, July 22, he assigned all employees, with the excep-
tion of Harry’s regular field crew, to work in the shop.6 He
quickly realized, however, that there were too many employees
in the shop, and that the backlog was quickly diminishing. He
met with Grover at lunchtime on July 22 or 23 to discuss the
need for a layoff and to determine which employees should be
laid off. Six employees were discussed as possible candidates:
Hurst, Honaker, Gibson, Mullins, Williams, and Conely. No
final determination was made.
Later in his testimony, Stanley testified that it was not until
the following week, when he was running the shop during
Grover’s vacation, that he made the decision to execute a lay-
off. On July 29, he spoke with Harry about the idea, and he did
not make up his mind whom to layoff until sometime later in
the week.
On Friday, August 2, Stanley directed Miller to type layoff
notices. Stanley did not keep a copy of any of these notices, and
none were made part of the record in this case. Friday was also
the regular payday, and at 4:30 p.m., Stanley handed out the
paychecks to all employees and gave layoff slips to the afore-
mentioned eight employees.
Stanley testified that he knew on August 2 that more layoffs
were necessary, but he wanted to speak to Grover to get his
input before he laid off any more employees. According to
Stanley, he did not speak to Grover until Sunday, August 4,
when Grover called Stanley from a jobsite. Stanley told Grover
that there had been a layoff on Friday and that four or five more
employees would also have to be laid off. They discussed spe-
cific employees, and as a result of this conversation with
Grover, Stanley determined to layoff Kammerer, Bayless,
Simpkins, and Phillips.
Timecards for the weeks ending June 30 through August 11
were introduced into evidence by the General Counsel. For the
week ending July 28, 35 employees worked 685.5 hours of
overtime. For the week ending August 4, 29 employees worked
717.5 hours of overtime. For the week ending August 11, 24
employees worked 558.75 hours of overtime. In the week prior
to the August 2 layoff, Frye, Mullins, Gibson, Mounts, Conely,
and Honaker each worked overtime, ranging from 3.5 to 42.75
hours. In the week prior to the August 5 layoff, Kammerer,
Simpkins, Phillips, and Bayless each worked overtime, ranging
from 4.25 to 43.25 hours. Thus, 13 of the 14 laid-off employees
worked in excess of 40 hours in the week prior to their layoff.

6 Harry’s regular field crew consisted of six employees: James
Chambers, Robert Charcandy, Richard Sampson, Lee Hancock, Wil-
liam Sargent, and Westin Harvey. Occasionally supplementing the
regular crew were Ronnie Williams, Fred Wingler, and James Simp-
kins.
Respondent maintains a job card system for billing and pay-
roll purposes. Whenever a job order is placed with Respondent
by a customer, a job card is originated which reflects the date
that the order is placed. The job is assigned a number, and
every employee that works on the job is listed by name, date(s)
worked, and hours worked. Respondent offered into evidence
“New Job Card Summaries” which were a series of calculations
reflecting the number of hours worked on “new jobs” for the
months of June through November 1996. “New jobs” were
defined by Stanley as those jobs which originated in that pe-
riod. All hours worked on the “new jobs” were attributed to the
month in which the job was received, not in the month that the
work was actually performed. For example, if a new job order
was received in June, and the work did not commence until
July, all of the hours worked on that job were summarized as
new job hours for the month of June. Respondent’s “New Job
Card Summaries” reflect that in June 1996, 9320 new job hours
were recorded; in July 1996, 7250 new job hours were re-
corded; and in August 1996, 3247 new job hours were re-
corded.
2. Individual employee performance
Ronnie Williams testified that he was hired in March 1996 as
a welder. During the 1996 miners’ vacation, Harry observed
Williams welding pieces incorrectly. When he corrected Wil-
liams, Williams cursed, threw things and walked off the job.
The next day, Williams showed up at the shop and told Grover
of the incident. Grover called Stanley and Stanley told Grover
to put Williams to work in the shop because there was a lot of
work to do and he needed every man he could get. After rein-
stating Williams to the shop, Stanley put Williams’ back on the
field crew on the night shift. In addition to this incident with
Harry, Stanley testified that another reason Williams was laid
off on August 2 was because his welding skills were mediocre.
Williams did not deny the cursing incident with Harry, but
did testify that his welding skills were better than other em-
ployees, that his work never had to be re-done, and that he was
called upon from time to time to correct other welders’ work.
Respondent challenged Williams’ assertion that he corrected
other welders’ work.
Mike Frye did not testify. The evidence establishes that Frye
was employed during the 1995 miners’ vacation, and was not
laid off at the end of that vacation period. He continued to work
until he was laid off sometime in early 1996, and he was re-
hired in April 1996 as a general laborer. Stanley testified that
Frye tried to learn welding skills, but was unable to perform as
a welder, and he was laid off on August 2 because of poor
overall performance.
Tommy Mullins, Brian Gibson, and Marcus Honaker did not
testify. All three were hired from a vocational high school in
May and June 1996, and according to Respondent’s records,
they were hired as welder trainees. Stanley testified that they
did not have good welding skills and lacked the qualities which
he believed were necessary to become long-term employees.7

7 A fourth student, Roy Hurst, was hired at the same time as Mullins,
Gibson, and Honaker, but was not laid off due to his alleged excellent
welding skills and work ethic. As previously noted, Hurst volunteered
to Stanley that he had signed a union card under duress.
MOUNTAINEER STEEL, INC. 793
Steven Mounts did not testify. Respondent’s records show
that Mounts was hired in July 1996 as a welder. Stanley testi-
fied that Mounts was not a good welder.
Mike Conely did not testify. Respondent’s records show that
Conely was hired in June 1996 as a welder. Stanley testified
that Conely’s welding skills were not up to par and that he had
received several complaints from Grover about Conely’s absen-
teeism.
Lawrence Kammerer testified that he was first employed by
Respondent in March 1995. He worked during the 1995 min-
ers’ vacation, and was not laid off at the end of that vacation
period. A former high school teacher and coach, Kammerer was
hired as a draftsman to create blueprints for parts which were
fabricated in Respondent’s shop. In addition, Kammerer costed
out jobs, tallied employees’ timecards, and submitted the time-
cards to the office secretary at the end of each week. Stanley
testified that Kammerer was hired as a draftsman, but there
were many problems with his work. During the first week of
miners’ vacation in 1996, he made many incorrect measure-
ments. Grover testified that for several days during miners’
vacation he put Kammerer in charge of the shop to cover emer-
gency jobs, but he was ineffective in that position as well.
Stanley moved him to a welder position after miners’ vacation,
but he had very poor welding skills. Grover testified that when
Kammerer was first employed he did a good job, but he got
“terrible” as time went on. Kammerer did not testify regarding
the quality of his work or whether there were ever any com-
plaints about his work.
James Simpkins testified that he was hired in December 1994
as a welder. He worked during the 1995 miner’s vacation, and
was not laid off at the end of that vacation period. Stanley testi-
fied that Simpkins’ welding skills never improved during the
course of his employment and that two customers complained
about the quality of his work. Stanley also testified that there
were rumors that Simpkins used marijuana on company prop-
erty together with Bayless and Phillips. Stanley admitted, how-
ever, that in February 1995, Simpkins was earning $8 per hour
and was subsequently given a raise to $8.75 per hour. Harry
testified that Simpkins was not a good welder, and that Hobet
had complained about his work during the 1996 miners’ vaca-
tion. According to Harry, Simpkins also had a bad temper and a
severe alcohol problem. Harry testified that he suspected Simp-
kins was drinking on the job, and “a lot” of employees told
Harry they did not want to work with Simpkins because of his
drinking problem. Harry reported this situation to Stanley and
to Grover, but never recommended that Simpkins be dis-
charged.
Jeffrey Phillips testified that he was first hired in June 1995
as a contract laborer doing welding, and was hired as a regular
employee in July 1995. He was retained after the 1995 miners’
vacation period. Stanley testified that Phillips had mediocre
welding skills which never improved during the course of his
employment, and that he had spoken to Phillips sometime in
early 1996 about his use of drugs and alcohol on company
property. Grover also testified that in his opinion, Phillips was
slacking off on the job.
William Bayless testified that he was hired in March 1995 as
a welder. He worked through the 1995 miners’ vacation, and
was not laid off at the end of that vacation period. Stanley and
Harry testified that when Bayless was “normal” he was a
welder of high average quality. Frequently, however, he experi-
enced violent mood swings which resulted in fits of rage, curs-
ing, and throwing objects around the shop. Stanley testified that
one time, Bayless “threw a fit” with Grover and quit. Four or
five days later he come back, and Stanley gave him his job
back. After that incident, he had several more fits of rage, and
Stanley talked to him about his behavior. Both Stanley and
Harry believed that Bayless had a drug and alcohol problem,
and employees asked not to be assigned to work with him.
Grover testified that on one occasion, he told Bayless, Simpkins
and Phillips that he did not want them “coming in drunk like
that. If they’d been out partying all night, they needed to stay at
home or give me a call.” Stanley testified that he once saw
many beer cans behind the shop and he immediately suspected
Simpkins, Bayless, and Phillips because they were heard to
brag about staying out late at night and partying.
Bayless testified that approximately 5-1/2 weeks after he was
laid off by Respondent, he was called by Harry and asked if he
would be interested in working for him at Federal Welding
under a union contract. Bayless agreed and was hired.
Dwayne Stroud did not testify. Stanley testified that some-
time between August 5 and 9, he told Grover that he had to lay
off a machinist and that he had selected Stroud because the
other machinists were better. Grover agreed and Stroud was
laid off on August 9.
Ben Lambert testified that he first worked for Respondent
from January to September 1994 when he quit. He reapplied for
work in January 1995, and was rehired. He therefore worked
during both the 1994 and the 1995 miners’ vacations, and was
not laid off at the end of either vacation period. Lambert per-
formed machine work, mechanic work, welding, and line bor-
ing. Stanley testified that Lambert was a “fairly good” machin-
ist, but that he had a lot of other problems. He had frequent
arguments with Grover and several times he left the job with-
out telling anyone where he was going. On one occasion, Stan-
ley testified that Lambert got into an argument with Grover and
quit. He came back 2 or 3 days later, asked Stanley for his job
back, and Stanley reinstated him. Lambert admitted that he left
the job at times, but testified that each time he had gotten per-
mission to leave from Stanley, Grover or Terry Wilson, a senior
employee.
In February 1995, Lambert was earning $12 per hour, and
was one of Respondent’s highest paid employees. He subse-
quently received a raise to $13 per hour. Harry testified that he
occasionally worked with Lambert in the field, and in his opin-
ion, Lambert was a good worker with very good skills. Harry
further testified that Lambert was one of the best line borers
that ever worked for him. Phillips testified that Lambert did 99
percent of the line boring work because he was the best at it.
On the other hand, Grover testified that he found Lambert hard
to get along with and difficult to supervise.
Lambert was laid off on August 13, 4 days after Stroud was
laid off. Several days after Lambert was laid off, Stroud was
recalled to work. Stanley testified the reason Stroud was re-
called was because after he laid off Lambert, he realized he had
cut too low and additional jobs had come in. Stanley also testi-
fied that Grover preferred Stroud to Lambert, although Grover
had not previously suggested that Lambert be laid off before
Stroud.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 794
Arnold Vance did not testify. Respondent’s records reflect
that Vance was hired in July 1996 as a truckdriver. Stanley
testified that prior to the 1996 miner’s vacation, he had bought
a tractor/trailer to transport large pieces of equipment and he
hired Vance as the driver. After working for some period of
time, Vance told Stanley that he did not know how to hook a
lowboy trailer to the truck, a task which Stanley considered to
be elementary to the performance of Vance’s job. Stanley testi-
fied that since work was slowing down anyway, he laid Vance
off. He also testified, however, that he hired a replacement
driver.
Ronald Caudill was hired as a welder by Stanley after
Grover allegedly left for vacation. His timecard shows that he
worked on July 30 and 31 and August 1. According to Stanley,
after this brief period it became clear that Caudill was a poor
welder, and he laid him off on August 2.
IV. ANALYSIS
A. Respondent’s Knowledge of Union Activity
The pivotal issue in this case is when Respondent learned of
employees’ union activity. The General Counsel maintains that
Respondent was aware of the Union’s organizing efforts prior
to the first round of layoffs on August 2. Respondent maintains,
first, that it was not aware of any union activity until after the
August 5 round of layoffs had been completed, and second, that
at no time was Stanley aware of the identity of those employees
who had signed authorization cards.
Ben Lambert testified that it was sometime between June 22
and July 20, during miners’ vacation, when Kerns Sr. spoke to
employees about the 1995 agreement in Harry’s presence.
Lambert was an entirely credible witness, who had enjoyed an
excellent work reputation with Harry and with his fellow em-
ployees. I credit Lambert’s testimony and I find that Respon-
dent, through Harry, was aware no later than July 20 that the
Union was engaging in an organizing effort amongst its em-
ployees.
Further evidence that Respondent was aware that employees
were talking about the Union prior to August 2 was adduced
through the credible testimony of Ronnie Williams who testi-
fied that on July 29 or July 30, Grover walked through the
shop, heard Williams talking about the Union, and called him a
“union radical.”
Phillips and Simpkins also testified credibly that on the af-
ternoon of August 2, Grover told them that he had heard about
the July 31 meeting and indicated that he was aware who had
signed authorization cards. He also stated that if the employees
wanted to vote themselves out of a job, that was all right with
him because he could always go back to work for his former
employer in Smithers. It is significant that Grover acknowl-
edged that he used the same phrase, “I can always go back to
Smithers,” 3 days later when he was talking to employee Mi-
chael Lodato. Grover’s testimony is corroborative of Phillips’
and Simpkins’ testimony and is demonstrative of Grover’s state
of mind and his willingness to openly express his antiunion
animus.
Finally, I credit the testimony of Williams that during his
layoff interview on August 2, Stanley delivered a very clear
message: that Williams was being laid off because of “this
union stuff,” and that if the situation did not straighten out to
Stanley’s satisfaction, there would be more layoffs.
Stanley and Grover’s denials of any knowledge of union ac-
tivity until after the August 5 layoffs were not credible, and I
need look no further than the inconsistencies in their testimony
to make this determination. Stanley testified on the second day
of the hearing that on August 6 or 7, after the first 12 employ-
ees were laid off, he had three separate conversations with 3
named employees, each of whom came to him and volunteered
information about the Union’s organizing efforts. Stanley testi-
fied that he told each of these employees that he didn’t know
anything about a union. On the morning of the third day of the
hearing, Grover was called by Respondent and testified that he
had told Stanley about the union activity in a phone conversa-
tion on August 5. Stanley, who had been present throughout the
hearing as Respondent’s representative, was absent from the
room during Grover’s testimony. Later that day, Stanley re-
sumed the witness stand and changed his testimony to coincide
with Grover’s recollection that they had discussed the Union’s
organizing efforts on August 5. I make no further observation
with respect to this conduct other than to state that it leads me
to totally discredit Stanley and Grover’s testimony regarding
when they first gained knowledge of the Union’s activity.
In order for me to credit the testimony of Williams, Phillips,
and Simpkins with respect to statements attributed by them to
Grover on July 29, 30, and August 2, I must necessarily dis-
credit the testimony of Grover and his wife that they were on
vacation in Myrtle Beach at the time these statements are al-
leged to have been made, and I do so without hesitation. Five
employees, Williams, Phillips, Simpkins, Bayless, and Kam-
merer reported seeing Grover in the shop during the period of
time he claimed to have been away on vacation. I found all of
these witnesses more credible than Grover. Grover and his
family supposedly stayed at a place of public accommodation
in Myrtle Beach where, presumably, there exists a record of
their stay. Grover made a point during his testimony that he
was upset that his new car had broken down en route to Myrtle
Beach and that he had to take the car back to the dealer. Yet, no
receipt or invoice was produced for the repair of the car. Given
Grover’s demonstrated lack of credibility throughout this case,
I simply do not rely on his, or his wife’s, representation that
Grover was away from the shop for the entire period from July
28 to August 5. It is entirely possible that Grover was in the
shop on July 29 as testified to by Williams, left for Myrtle
Beach for a few days, and was back in the shop on August 2 as
testified to by Bayless, Phillips, Simpkins, and Kammerer.
Respondent’s second argument with respect to the knowl-
edge issue, is that “although [Respondent’s] counsel had cop-
ies of the authorizations on August 9, it is undisputed that
knowledge was not supplied to Roy Stanley” (R. Br. 16). Re-
spondent’s argument is contrary to the credible evidence, and
ignores the status of Respondent’s counsel as an agent of Re-
spondent with both actual and apparent authority to act in Re-
spondent’s behalf.
On August 9, Stanley and attorney Roles met with the Kerns
Sr., Kerns Jr. and the Union’s attorney. Roles, a labor lawyer
with 30 years of experience, anticipated prior to the meeting
that the Union might well make a demand for recognition based
on a card showing of majority status. He also anticipated that
the Union would claim that the layoffs had been discriminato-
rily motivated. Fully cognizable of the significance of the pres-
entation of the authorization cards at the conclusion of the
meeting, Roles nevertheless took possession of the cards in the
presence of Stanley. Respondent argues that since Roles denied
ever telling Stanley who the card signers were, there is no evi-
dence to establish that Respondent had knowledge of the indi-
MOUNTAINEER STEEL, INC. 795
vidual card signers’ identities. I find this argument unpersua-
sive.
Roles chose his words carefully when he testified he knew
that it was not in Respondent’s best interest that Stanley have
knowledge of the contents of the cards. His failure to specifi-
cally deny that he ever looked at the cards prior to throwing
them out leads me to conclude that he did, in fact, look at the
cards and the names on the cards. I further discredit Roles’
testimony that he did not impart this knowledge to Stanley.
There was no reason for Roles to take possession of the au-
thorization cards other than to gain information from them. I
reject Roles’ explanation that he took the cards in order to
avoid conflict and to keep the meeting going in view of Stan-
ley’s testimony, corroborated by Kerns Jr., that the cards were
presented at the very end of the meeting when Roles and
Stanley were getting ready to leave. I therefore conclude, con-
trary to his testimony, that he did tell Stanley the identity of the
card signers.
Respondent is also chargeable with the knowledge gained by
Roles by his acquisition of the cards under agency principles.
During the August 9 meeting, Roles was clearly acting within
the general scope of his agency authority as labor counsel to
Respondent. The meeting had been convened to resolve the
outstanding issues between Respondent and the Union, includ-
ing pending unfair labor practice charges before the Board, the
possible negotiation of the terms of a collective-bargaining
agreement, and the cessation of picketing by the Union at Re-
spondent’s jobsites. Roles’ acceptance of the authorization
cards in this context was a undeniable exercise of his actual
agency authority. Acme Bus Corp., 320 NLRB 458 (1995);
Batavia Nursing & Convalescent Inn, 275 NLRB 886 fn. 2
(1985). In addition to his actual agency status, Roles also had
apparent authority to accept the proffered cards. It is not dis-
puted that Roles took possession of the cards in Stanley’s pres-
ence and Stanley did not disavow Roles’ actions. By standing
next to Roles in silence, Stanley clothed Roles with the appar-
ent authority to accept the cards in Respondent’s behalf. Alle-
gany Aggregates, Inc., 311 NLRB 1165 (1993).
In summary, the evidence establishes that Respondent was
aware by July 20 that the Union was engaging in organizing
efforts amongst its employees. Respondent was further aware
by July 30 that Ronnie Williams was an outspoken union sup-
porter. On July 31, the same day as the meeting at which the
employees signed authorization cards, Stanley told his security
guard to be available for layoff interviews in 2 days. On the
afternoon of August 2, Grover Chambers told employees he
knew who the card signers were, and on August 9, Respon-
dent’s agent took physical possession of the signed authoriza-
tion cards.
B. Respondent’s Alleged Statements of Animus
1. Calling Williams a “union radical”
The General Counsel alleges in the complaint that Grover’s
statement to Williams on July 29 or 30, “I thought you was
[sic] a union radical and now I know you are,” constitutes a
violation of Section 8(a)(1). The complaint does not allege this
statement to be a threat or reprisal, either express or implied.
Nor is Grover’s statement alleged to constitute an interrogation
or the creation of an impression of surveillance. Rather, the
complaint broadly characterizes this statement as “an accusa-
tion” which interfered with, restrained, and coerced employees
in the exercise of their Section 7 rights.
There is no doubt that this statement establishes Respon-
dent’s knowledge of Williams’ union activity at a critical time.
The issue, however, is whether the statement also constitutes an
independent violation of Section 8(a)(1) of the Act. I conclude
that it does because it created the impression of surveillance of
Williams’ union activities. The first part of the phrase, “I
thought you was [sic] a union radical,” suggests that Grover
had spent some time in the past watching Williams’ union ac-
tivities, and the second part of the phrase, “and now I know you
are,” indicates that Grover had been listening to Williams’
lunchtime conversation about the Union. Even though the Gen-
eral Counsel did not specifically allege the creation of an im-
pression of surveillance as the theory of the 8(a)(1) violation,
the issue was sufficiently raised by the pleadings and fully liti-
gated at the hearing. Williams Pipeline Co., 315 NLRB 630
(1994); Pergament United Sales, Inc., 296 NLRB 333, 334
(1989), enfd. 920 F.2d 130 (2d Cir. 1990).
2. The interrogation of Simpkins
Simpkins testified that one day Grover asked him if he knew
anything about a union, and Simpkins stated no. Simpkins
could not recall when Grover asked him this question, and
could not approximate the month or year the statement was
allegedly made. Although the General Counsel argued at the
hearing that this statement related to paragraph 7(a) of the
complaint, Simpkins testimony was entirely too vague and I
make no finding with respect to this testimony.
3. The threat and interrogation of Kammerer
Kammerer testified that sometime between July 31 and Au-
gust 5, Grover asked him how many employees had signed
cards for the Union and further stated that employees who were
organizers could be labeled as troublemakers. Kammerer was
unique amongst Respondent’s employees in that he was a for-
mer high school teacher, and was obviously more educated than
many of the other employee witnesses. I was impressed by his
maturity and his self-possessed demeanor on the witness stand,
and I found him to be a credible witness. Grover maintained
that the statement could not have been made because he was
away on vacation. In view of the fact that I discredit the vaca-
tion alibi, and in view of Kammerer’s credible testimony, I find
that Grover interrogated Kammerer and threatened him with
unspecified reprisals because he had engaged in activities on
behalf of the Union in violation of Section 8(a)(1).
4. The threat to Lodato
Lodato testified that sometime in August, Grover approached
him in the shop and told him if the union stuff goes through, he
could always get his job back at Smithers, and that “you all”
will be labeled as union organizers and it will be hard to get
another job. I credit Lodato’s testimony in its entirety. Lodato
had signed a card for the Union on July 31, and at the time of
the hearing, he was still employed by Respondent. His willing-
ness to testify against his employer’s interest in this case was
impressive. Grover admitted during his testimony that he told
Lodato on August 5 that if the Company shuts down he would
probably go back to his former employer in Smithers. Grover
also admitted to telling Lodato that a company might think
twice about hiring someone who was involved with a union.
Lodato and Grover’s versions of this conversation are very
similar, the essential difference being that Lodato testified that
Grover approached him in the shop and threatened him,
whereas Grover testified that Lodato came to his office and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 796
asked Grover to speculate about the consequences of employ-
ees being represented by the Union. I credit Lodato’s version
over Grover’s, and find Grover’s statement to constitute a
threat of loss of employment in violation of Section 8(a)(1).
5. Threat to Hancock and Sargent
Hancock and Sargent testified that in late July or early Au-
gust, while they were working for Respondent at one of the
Hobet mines, Harry stated to them that if anybody signed a
union card they would be laid off or fired. At the time of the
hearing, Hancock and Sargent were working for Harry at Fed-
eral Welding, and by testifying to Harry’s threat, they undoubt-
edly placed themselves at risk of economic reprisal. This was
particularly evident from the testimony given by Hancock,
which I credit, that from Saturday evening May 17, 1997, to 2
a.m. on the morning of May 18, 1997, less than 48 hours prior
to his testimony in this hearing, Harry called Hancock at his
home 28 times. Hancock testified that he answered these calls,
which he perceived as harrassment, because Harry was his
boss. During these calls, Harry told Hancock that he wanted
him to sign a statement favorable to Respondent.
The Board has recognized the appropriateness of according
enhanced credibility to witnesses testifying under such circum-
stances. Oster Specialty Products, 315 NLRB 67, 72 fn. 9
(1994); Unarco Industries, 197 NLRB 489, 491 (1972). I dis-
credit Harry’s denial that he made this threat, and I credit the
testimony of Hancock and Sargent. Accordingly, I find that
Harry’s threat of loss of employment violated Section 8(a)(1).
6. Threat and interrogation of Phillips and Simpkins
I credit the testimony of Phillips and Simpkins that they were
confronted by Grover in the shop on the afternoon of August 2,
interrogated and threatened. Phillips is a young man who was
as equally responsive and respectful to counsel for the General
Counsel as he was to counsel for Respondent. I found him to be
a credible witness. Simpkins was somewhat more cautious and
less certain in his recollection of details, but his testimony was
generally corroborative of Phillips’ testimony, and reliable. As
previously noted, I discredit Grover’s assertion that he was on
vacation at the time of this conversation.
Based on the testimony of Phillips and Simpkins, I find that
Grover interrogated Phillips regarding Phillips’ attendance and
involvement in the union meeting of July 31, and threatened
Phillips and Simpkins with loss of employment if they voted
for the Union, in violation of Section 8(a)(1).
I also conclude that Grover’s statement during this same
conversation that he was aware that there had been a union
meeting, and his indication that he was aware who had signed
cards created an impression of surveillance in violation of Sec-
tion 8(a)(1). Even though not specifically alleged in the com-
plaint, the issue was sufficiently raised by the pleadings and
fully litigated at the hearing. Williams Pipeline, supra; Perga-
ment United Sales, supra.
7. Threat to Williams
I credit the testimony of Ronald Williams that when he was
summoned into the office on the afternoon of August 2, Stanley
told him he was laid off and that there would be more layoffs if
the “union stuff” did not straighten out.
I discredit the testimony of Stanley, Thompson, and Miller
that Stanley made no mention of the Union during Williams’
layoff interview. For the reasons previously discussed, I found
Stanley to be untruthful in many aspects of his testimony. With
respect to Miller, her bias in favor of Respondent was apparent.
On direct examination by counsel for Respondent she was
asked if there had come a time when she was asked to partici-
pate in layoff interviews, and Miller responded yes. Roles pro-
ceeded to ask a series of questions, and used the words “inter-
view” and “layoff interview” a total of nine times in the course
of the direct examination. Miller’s response to each these ques-
tions was responsive and concise. The first question asked on
cross-examination by the General Counsel was as follows:

Q. Had you ever been asked to sit in on any interviews
between Roy Stanley and any of the employees before the
day of these layoff interviews?
A. What do you mean interviews, what do you mean
by interviews? If I ever sat in on interviews?

One measure of credibility is the demeanor of the witness
throughout his or her entire testimony, during both direct and
cross-examination. When a witness is called by one side and is
responsive to questions posed on direct examination, but sud-
denly develops a problem understanding the exact same lan-
guage and phraseology on cross-examination, I am led to con-
clude that the witness is hostile to the questioner, and unwilling
to concede that which is not in the best interest of the witness
proponent. I found Miller to be such a witness. Evidence of
Miller’s unwillingness to concede any fact adverse to her em-
ployer was further adduced during cross-examination when
Miller acknowledged that Ronald Caudill had been hired by
Respondent after the lunchtime meeting at which Stanley and
Grover discussed the need to layoff workers. When this obvi-
ous inconsistency was pointed out to Miller, she loyally insisted
that she didn’t think there was anything unusual about it.
I also discredit Thompson’s testimony regarding the Wil-
liams’ layoff interview. Thompson was a temporary employee
at the time of this interview, but was in Respondent’s full-time
employ at the time of the hearing. Thompson had been told to
sit in on the interviews by Stanley no doubt to serve as a cor-
roborating witness to Stanley’s version of events. Any sugges-
tion that Thompson was present at the August 2 interviews to
serve as security for Stanley is belied by the fact that when
Grover handed out the layoff slips on August 5, the only other
person present was the secretary, Miller. I assume that Grover’s
testimony that he thought Miller was there to protect him in
case someone hit him over the head was delivered tongue in
cheek.
I therefore find that on August 2, Stanley threatened that em-
ployees would be laid off if they continued to engage in activi-
ties on behalf of the Union in violation of Section 8(a)(1).
C. Respondent’s Assertion of Unprotected Activity: Application
of Wright Line
In all cases alleging a violation of Section 8(a)(3) or viola-
tions of 8(a)(1) turning on employer motivation, the General
Counsel is required, in the first instance, to make a prima facie
showing sufficient to support the inference that protected con-
duct was a motivating factor in the employer’s decision. Once
this is established, the employer has the burden to demonstrate
that the same action would have taken place even in the ab-
sence of the protected conduct. Wright Line, 251 NLRB 1083
(1980), enfd. 622 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982). The Supreme Court has said that a prima facie
case requires the General Counsel to prove by a preponderance
of the evidence that the employer had a discriminatory intent
MOUNTAINEER STEEL, INC. 797
that was a substantial or motivating factor in the discharge.
NLRB v. Transportation Management Corp., 462 U.S. 393, 400
(1983).
Respondent argues that General Counsel failed to establish
in the first instance that employees were engaged in protected
activity because the authorization cards which contained dues-
checkoff language were signed at a time when there was no
valid union-security clause in effect. This argument is without
any foundation in the law, and merits no further discussion.
I therefore turn to Respondent’s business justifications for
the August 1996 layoffs.
D. Respondent’s Business Justification for the Layoffs
1. Lack of work
Stanley testified that he realized he needed to layoff workers
by lunchtime on July 23, and that he and Grover met to discuss
specific shop employees who should be laid off. Later in his
testimony, Stanley testified that it was not until the following
week, when Grover was on vacation and Stanley was supervis-
ing the shop, that he made the decision to layoff shop employ-
ees because there was not enough work to keep them busy. He
consulted with Harry, the field supervisor, on July 29 about
which employees to lay off, and Harry’s only expressed con-
cern was that no one from his field crew be laid off.
Grover also testified to the need to lay off employees on di-
rect examination:

Q. What was the—the result of having that many peo-
ple in the shop?
A. We were doubling up, tripling up on jobs that was
left in the shop through vacation that was in no rush to get
out, and we was running out of welding machines and cut-
ting torches and everything for everybody to use. There
was just too many people in there.
Q. Was there enough work to be done—to do?
A. The first couple of days there was, you know there
was enough to keep everybody busy, but then eventually,
you know, you have people just wandering around, sweep-
ing floors, and picking up, and stuff like that.

On cross-examination, Grover reiterated that there was not
enough work to keep the employees busy:

Q. That was the week that you had the conversation
with Mr. Stanley about needing to have a layoff, right?
A. Yes.
Q. And that was when you said that there were clearly
too many people working in the shop. You didn’t have
enough for everybody to do, is that right?
A. More or less, yeah.
Q. You had people who were just sweeping floors?
A. Yes.
Q. You had people that you didn’t have any work to
assign to?
A. Yes.
Q. And that was the situation already by Tuesday
[July 23] when you had the conversation with Mr. Stanley,
right?
A. Yes.

Under persistent cross-examination by the General Counsel
using Respondent’s timecards, Grover was compelled to con-
cede that many of the employees who worked in the shop dur-
ing the week beginning Monday, July 22 worked large amounts
of overtime, even though he had earlier testified that there was
not enough work for them to perform. Given the opportunity to
explain, Grover testified that he misunderstood when the Gen-
eral Counsel asked about everybody in the shop, and that he
assumed that all employees were shop employees because they
all came into the shop at some point during the work day. The
reason that so much overtime was worked that week was be-
cause the employees which he had mistakenly characterized as
“shop employees” were really working in the field.
Following Grover’s testimony, Stanley resumed the witness
stand and was cross-examined by the General Counsel using
the timecards for the following week. Recall that it was this
week that Stanley testified Grover was on vacation and he was
supervising the shop and saw the need to layoff shop employ-
ees. Stanley was asked to go through the timecards and to iden-
tify which employees worked in the shop that week. Stanley
testified that he could not remember a single person who
worked in the shop, and that the reason he could not remember
was because the employees were so busy.

Q. So they were busy?
A. They were working at minesites and, you know,
we’re working for four or five different customers and
plus we had a work load going in the shop and - and I
can’t recall on August, this week here, exactly where
every man was out. I can’t do that.
Q. Do you remember any particular employee who
didn’t have enough to do that week?
A. I can’t remember anybody’s name.

Whatever viability remained of Respondent’s economic de-
fense at the end of Grover’s testimony was extinguished by the
end of Stanley’s testimony. Equally unpersuasive were Re-
spondent’s “New Job Card Summaries” which were calculated
by Respondent in such a way as to be probative of nothing.
Respondent’s job card system enables Respondent to account
for every hour worked by every employee every day. Respon-
dent chose not to introduce that evidence. Respondent summa-
rized only “new jobs” defined as jobs that originated in the
months of June through November 1996, and omitted hours
worked on “old jobs” during the same period. There is no evi-
dence whether “new jobs” made up 100% or 1% of Respon-
dent’s work load during this period. Further muddying the wa-
ter, Respondent did not summarize the hours actually worked in
any given month, but attributed hours worked to the month in
which the new job originated. Out of this morass, Respondent
argues in its brief that the new job card summaries demonstrate
a dramatic decline in Respondent’s workload. They do no such
thing.
2. Individual employee performance
Because I conclude that there is no credible evidence to sup-
port Respondent’s argument of an economic justification for
the layoffs, I will only briefly discuss the reasons proffered by
Respondent for its individual employee selection.
Respondent had a very lax disciplinary policy prior to July
31. There were repeated occasions when employees, such as
Williams, Simpkins, Bayless, and Lambert exhibited fits of
rage, cursed at supervisors, threw things on the job, walked off
jobs and were thrown off jobs. In every instance they were
reinstated by Stanley. Harry testified that Stanley was pretty
good about giving employees their jobs back and he gave peo-
ple a break if they lost their temper. Harry explained that it was
understood that people get mad sometimes, and it happened
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 798
many times that an employee walked off the job but was put
back to work by Stanley. Nor was there was ever any form of
written discipline because, as Grover described it, they were
“just a small town shop . . . pretty much a good ole’ boy at-
mosphere.” Apparently, that atmosphere prevailed up until the
time employees signed cards for the Union. After that, the same
conduct which had been previously tolerated by Respondent
constituted poor work performance which justified selection for
layoff.
A striking example of the disparate application of discipline
before and after July 31 related to three employees, Simpkins,
Bayless, and Phillips, who had long been suspected of working
on the job under the influence of drugs and alcohol. They were
neither disciplined nor discharged for this behavior prior to July
31, despite the fact that other employees requested not to work
alongside them. Stanley, Grover and Harry testified that these
employees were never discharged because they couldn't
“prove” anything. Indeed, Simpkins, whom Harry described as
having a “severe” alcohol problem, was given a $.75 per hour
raise prior to his layoff. After July 31, however, the same un-
provable behavior was relied on by Respondent as a basis to lay
these three employees off.8
Frye, Kammerer, Simpkins, Phillips, Bayless, and Lambert
were all cited for poor work performance. All of these employ-
ees had worked miners’ vacation in 1995 and had not been
selected for layoff at the end of that vacation period. They
were, however, selected for layoff at the end of the miner’s
vacation in 1996, days after they signed cards for the Union.
Respondent did not offer any independent witnesses, such as
job superintendents, to substantiate purported episodes of poor
work performance or misbehavior. Nor was any documentary
proof introduced to support Respondent’s position. In view of
the fact that I find the testimony of Stanley, Harry, and Grover
to be almost wholly unreliable, there is no credible evidence
upon which I can fairly conclude that the employees who were
selected for layoff were selected because of poor work per-
formance.
E. Conclusion
Respondent’s business justifications for the layoff of 14 em-
ployees, lack of work and poor individual job performance, are
not supported by the credible evidence. I find that the reason
Respondent laid off these employees in August 1996 was be-
cause they had engaged in activities in support of the Union,
and Respondent’s action thereby violated Section 8(a)(1) and
(3) of the Act.9
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act, and has engaged in
unfair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The International and Local 1582 are each a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. Respondent, by Grover Chambers, violated Section
8(a)(1) of the Act

8 Bayless, whom Harry testified had a both a drug and alcohol prob-
lem, was hired by Harry to work at Federal Welding less than 6 weeks
after he was laid off by Respondent.
9 Mike Conely was the only discriminatee who did not sign an au-
thorization card. This fact, however, does not alter my finding that his
layoff was discriminatorily motivated.
(a) On or about July 30, 1996, by creating the impression of
surveillance of an employee’s union activities.
(b) On or about July 31, 1996, by interrogating an employee
about other employees union activities and by threatening to
label as a “troublemaker” any employee who engaged in union
activities.
(c) In August 1996, by threatening an employee with loss of
employment because employees engaged in union activities.
(d) On August 2, 1996, by interrogating employees about
their attendance at and involvement in a union meeting, by
threatening them with loss of employment if they voted for the
Union, and by creating the impression of surveillance of em-
ployees’ union activities.
4. Respondent, by Harry Chambers, violated Section 8(a)(1)
of the Act in July or August 1996, by threatening employees
with layoff or discharge if they signed a card for the Union;
5. Respondent, by Roy Stanley, violated Section 8(a)(1) of
the Act on August 2, 1996, by threatening to lay off employees
if they engaged in union activities.
6. Respondent violated Section 8(a)(1) and (3) of the Act by
laying off the following employees in August 1996:

Ronnie Williams
Michael Frye
Tommy Mullins
Brian Gibson
Walter Steven Mounts
Mike Conely
Marcus Honaker
Lawrence Kammerer
James Simpkins
Jeffrey Phillips
James Bayless
Sidney Dwayne Stroud
Ben Lambert
Arnold Vance

REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent, having discriminatorily laid off fourteen
employees, must offer them reinstatement and make them
whole for any loss of earnings and other benefits, computed on
a quarterly basis from the date of layoff to the date of proper
offer of reinstatement, less any net interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended10
ORDER
The Respondent, Mountaineer Steel, Inc., Accoville, West
Virginia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Creating the impression of surveillance of employees un-
ion activities.
(b) Interrogating employees about their or other employees
union activities.
(c) Threatening employees with loss of employment or other
reprisals because they engage in union activities.
10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
MOUNTAINEER STEEL, INC. 799
(d) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer to the
following employees full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other rights or
privileges previously enjoyed.

Ronnie Williams
Michael Frye
Tommy Mullins
Brian Gibson
Walter Steven Mounts
Mike Conely
Marcus Honaker
Lawrence Kammerer
James Simpkins
Jeffrey Phillips
James Bayless
Sidney Dwayne Stroud
Ben Lambert
Arnold Vance

(b) Make the above-named employees whole for any loss of
earnings and other benefits suffered as a result of the discrimi-
nation against them in the manner set forth in the remedy sec-
tion of the decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful layoffs and within 3 days
thereafter notify the above-named employees in writing that
this has been done and that the layoffs will not be used against
them in any way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(e) Within 14 days after service by the Region, post at its
Accoville, West Virginia facility copies of the attached notice
marked “Appendix.”11 Copies of the notice, on forms provided
by the Regional Director for Region 9, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since July 31, 1996.

11 If this Order is enforced by a Judgment of the United States Court
of Appeals, 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.”
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
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 violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

WE WILL NOT lay off or otherwise discriminate against em-
ployees because they support or engage in activities on behalf
of the United Mine Workers of America, AFL–CIO, or any
other union.
WE WILL NOT create the impression of surveillance of em-
ployees who support or engage in activities on behalf of the
United Mine Workers of America, AFL–CIO, or any other
union.
WE WILL NOT interrogate employees about their or other em-
ployees activities on behalf of the United Mine Workers of
America, AFL–CIO, or any other union.
WE WILL NOT threaten employees with loss of employment or
other reprisals because they support or engage in activities on
behalf of the United Mine Workers of America, AFL–CIO, or
any other union.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order,
offer to the following employees full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.

Ronnie Williams
Michael Frye
Tommy Mullins
Brian Gibson
Walter Steven Mounts
Mike Conely
Marcus Honaker
Lawrence Kammerer
James Simpkins
Jeffrey Phillips
James Bayless
Sidney Dwayne Stroud
Ben Lambert
Arnold Vance

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 800
WE WILL make the above-named employees whole for any
loss of earnings and other benefits resulting from their layoffs,
less any net interim earnings, plus interest.
WE WILL , within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful layoff of
the above-named employees, and WE WILL , within 3 days there-
after, notify each of them in writing that this has been done and
that the layoff will not be used against them in any way.

MOUNTAINEER STEEL, INC.