Schlabach Coal Co.

National Labor Relations Board - Board Decisions

Sep 13, 1977

231 N.L.R.B. 1322 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Schlabach Coal Company and United Mine Workers
of America
Schlabach Coal Company and United Construction
Workers Local No. 10 of the Christian Labor
Association, Petitioner. Cases 8-CA-10252 and 8-
RC-10366
September 13, 1977
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENEI.LO
On June 3, 1977, Administrative Law Judge Elbert
D. Gadsden issued the attached Decision in this
proceeding.' Thereafter, Respondent filed exceptions
and a supporting brief.
Purshant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
modify his remedy.3 Rather than adopt the Adminis-
trative Law Judge's recommended Order, we substi-
tute therefor an order which more closely conforms
to the evidence and his Conclusions of Law.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Schlabach Coal Company, Baltic, Ohio, its officers,
agents. successors, and assigns, shall:
I. Cease and desist from:
(a) Threatening to go out of business and render
employees jobless if they assist, support, or select as
their collective-bargaining agent the United Mine
Workers of America, or any other labor organiza-
tion.
(b) Threatening its employees to go out of business
and render employees jobless if they do not assist,
support, or select as their collective-bargaining agent
I On June 14, 1977, the Administrative Law Judge issued the attached
erratum.
2 Respondent has excepted to certain credibility findings made by the
Administrative L.aw Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credihility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products.
n1i., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefull examined the record and find no basis for reversing his findings.
:' In accordance with our decision in Florida Steel Corporation, 231
231 NLRB No. 154
the Christian Labor Association, or any other labor
organization.
(c) Threatening to discharge, discharging, or
otherwise discriminating against an employee for his
support of the United Mine Workers of America, or
any other labor organization.
(d) Contacting the Christian Labor Association, or
any other labor organization, on behalf of its
employees, attending organizing meetings with the
employees, or assisting or supporting such labor
organization in its organizing efforts.
(e) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Offer Larry Mills reinstatement to his former
position or, if such position no longer exists, to a
substantially equivalent position, without prejudice
to his seniority or other rights previously enjoyed,
and make him whole for any loss of pay suffered by
reason of the discrimination against him with interest
at the rate of 7 percent per annum.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at Respondent's places of business in
Cambridge and Baltic, Ohio, copies of the attached
notice marked "Appendix." 4 Copies of said notice,
on forms provided by the Regional Director for
Region 8, after being duly signed by Respondent's
representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
iT IS FURTHER ORDERED that the election held on
May 6, 1976, in Case 8-RC-10366, be, and it hereby
is, set aside.
NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior
to August 25, 1977, in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
4 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
1322
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONA. LABOR RELATIONS BOARD
An Agency of the United States Government
The hearing held in Dover, Ohio, on November 25,
1976, in which we participated and had a chance to
give evidence, resulted in a decision that we
committed certain unfair labor practices in violation
of Section 8(a)(3) and (1) of the National Labor
Relations Act. This notice is posted pursuant to that
decision.
WE WILL NOT threaten to go out of business if
our employees assist, support, or select the United
Mine Workers of America or any other labor
organization as their collective-bargaining repre-
sentative.
WE WILL NOT threaten to go out of business if
our employees fail to assist and support the
Christian Labor Association or any other labor
organization.
WE WILL NOT contact the Christian Labor
Association or any other labor organization on
behalf of our employees and attend organizing
meetings with the employees, or assist and
support it or any other labor organization in its
organizing efforts.
WE WILL NOT threaten to discharge employees
who assist or support the United Mine Workers
of America, or any other labor organization.
WE WILL NOT discourage membership in the
United Mine Workers of America, or any other
labor organization, by discharging employees or
otherwise discriminating in any manner with
respect to their tenure of employment or any term
or condition of employment because of their
activities on behalf of a labor organization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of the rights guaranteed in the National Labor
Relations Act, which are:
To engage in self-organization
To form, join, or assist a labor organiza-
tion
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all of these things.
SCHLABACH COAL COMPANY
WE WILL offer Larry Mills immediate and full
reinstatement to his former position, or, if such
position no longer exists, to a substantially
equivalent one, without prejudice to the seniority
and other rights and privileges enjoyed by him,
and make him whole for any loss of pay he may
have suffered by reason of his discharge with
interest at the rate of 6 percent per annum.
All our employees are free to become, remain, or
refuse to become and remain, members of the United
Mine Workers of America or any other labor
organization.
SCHLABACH COAL
COMPANY
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge: A
charge having been filed on July 2, 1976, in Case 8-CA-
10252, by United Mine Workers of America, herein called
Mine Workers, and an order directing a hearing on
objection in Case 8-RC-10366, on behalf of United
Construction Workers Local No. 10 of the Christian Labor
Association, the Petitioner, herein called the Christian
Labor Association or the CLA, the General Counsel, by
the Regional Director for Region 8, issued the consolidated
complaint herein on September 16, 1976.
The complaint, in substance, alleges that Respondent
interfered with, restrained, and coerced its employees by
threatening to go out of business if the Mine Workers were
successful in their organizational efforts; that said employ-
ees would be out of a job if they supported the Mine
Workers, that a particular employee would be discharged
for serving as an observer at a Mine Workers' election, by
discharging such employee for serving as an observer, and
that by assisting and supporting the Christian Labor
Association in its organizing efforts, Respondent violated
employees' Section 7 protected rights, in violation of
Section 8(a)(1) of the Act; and that by discharging and
thereafter refusing to reinstate an employee because
Respondent believed such employee joined, supported.
assisted, or favored the Mine Workers, and/or served as an
observer for the Mine Workers in an election, Respondent
has discriminated against its employees in violation of
Section 8(a)(3) and (1) of the Act.
The hearing in the above matter was held before me in
Dover, Ohio, on November 23, 1976. Briefs have been
received from counsel for the General Counsel and counsel
for Respondent which have been carefully considered.
Upon the entire record in this case and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACr
I. JURISDICTION
Alvin Schlabach is, and has been at all times material
herein, an individual proprietor doing business under the
1323
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trade name and style of Schlabach Coal Company, with its
principal office and place of business located in Baltic,
Ohio, where it is engaged in the business of coal mining. In
the course and conduct of its business, Respondent
annually ships goods valued in excess of $50,000 to
Columbus and Southern Electric Power Company, located
within the State of Ohio, which itself receives goods valued
in excess of $50,000 from points located outside the State of
Ohio.
The complaint alleges, Respondent admits, and I find
that Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, Respondent admits, and I find
that the United Mine Workers of America and the United
Construction Workers Local No. 10 of the Christian Labor
Association are, and have been at all times material herein,
labor organizations within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Schlabach Coal Company, Respondent, is engaged in
coal mining at various minesites including the Cambridge
and Baltic mine operations. Several years prior to 1976, the
Christian Labor Association represented a part of Respon-
dent's coal operation. Although the Christian Labor
Association no longer represented a portion of Respon-
dent's operation, the record indicates that some time in late
1975, the United Mine Workers were engaged in organiza-
tional activity within the vicinity of Respondent's coal
operation. Consequently, as a result of an aroused interest
on the part of some employees (managerial and nonmanag-
erial) of Respondent, the Christian Labor Association was
contacted and proceeded to organize Respondent's em-
ployees. Simultaneously or shortly thereafter, the United
Mine Workers proceeded to organize Respondent's em-
ployees.
The dispute in this case raises a question as to whether
the Christian Labor Association was drawn into the
organizational campaign as a result of the efforts of
Respondent or its nonsupervisory employees, whether
Respondent embarked on a coercive and restraining course
of conduct designed to discourage its employees obtaining
the representative services of the United Mine Workers,
and whether Respondent, in an effort to further discourage
its employees from favoring, supporting, or assisting the
efforts of the United Mine Workers, discharged and
thereafter refused to reinstate an employee.
During this proceeding, the parties stipulated to the
following:
I The facts set forth above are undisputed and are not in conflict in the
record.
2 I credit the testimony of Larry Mills. Charles Newell, Steven Hunter.
and David Ehrett. not only because I was persuaded by their individual
demeanor on the witness stand that they were testifying truthfully, but also
because their testimony is consistent and corroborative of one another's.
An election was conducted in Case 8-RC-10366
involving the Christian Labor Association and the
United Mine Workers, and the Employer being
Schlabach Coal Company; that at that time the ballots
were impounded because of a charge that was filed on
May 5, 1976, by the Mine Workers in Case 8-CA-
10090. The Charge in Case 8-CA-10090 was with-
drawn on June 24, 1976, and a tally of ballots
subsequently issued on July 7, 1976, indicated that
there were approximately 51 eligible voters, 51 votes
were cast, 22 were for the Christian Labor Association,
15 were for the intervenor, 5 for neither organization
and 3 were void. There were also six challenged ballots.
The parties further stipulated during this proceeding that
the following named management persons were employed
by Respondent at the time its employees voted in the union
election on May 6, 1976: Alvin Schlabach, sole proprietor,
Vernon Beachy, foreman, Gilbert Smith, foreman, Jerry
Trout, superintendent, and Glenn Hoagland, land agent.'
B. How Union Activity Commenced
Dischargee Larry Mills testified that around the latter
part of 1975, Superintendent (Supervisor) Jerry Trout came
to the pit where he and other fellow workers were working
and got them to congregate around him and told them that
he heard the United Mine Workers were snooping around,
and that if they (the employees) brought in the Mine
Workers, Respondent would be out of business. Likewise,
Charles Steven Newell and Steven Hunter testified that
some time in February, Superintendent Trout appeared
and told the men to congregate around him during which
time he said the United Mine Workers were snooping and
if the employees went union, Schlabach would shut down
and sell all of his equipment because he could not operate.
David Ehrett testified that, in November or December,
Jerry Trout called the men together and told them that
some United Mine Worker guys were around, and if they
(the employees) voted for the United Mine Workers
Respondent would close its doors and they would not have
a job.2
Superintendent Jerry Trout admitted that he held such
conversations with Mills, Ehrett, Hunter, and Newell, but
he contends that he told them that it was his personal
opinion that, if the United Mine Workers got in, Respon-
dent would close its plant. However, I do not credit
Superintendent Trout's afterthought and technical expla-
nation that he advised the employees that his prophecy was
his personal opinion because the aforena/ned employees'
credited testimony shows that Trout made his statements
as statements of fact and not as an opinion.
Moreover, Mr. Schlabach acknowledged that after
December 1975, since the opening of the Cambridge
operation, he has had discussions with management during
Although there appears to be some discrepancy in the testimony of the latter
four witnesses as to the date of the conversations with Trout, I conclude and
find that said conversations were carried on primarily during the month of
February 1976, and a few months before, since Superintendent Trout
apparently spoke to the employees at different times, different places, and
on different days.
1324
SCHLABACH COAL COMPANY
which he told them he was going to sell out if the United Mine
Workers came in.
Based on the foregoing credited evidence, I conclude and
find that Respondent (Alvin Schlabach-Superintendent
Jerry Trout) threatened employees with closure of its
mining operation if the employees assisted, supported, or
selected the United Mine Workers as their collective-
bargaining representative.
Alvin Schlabach testified that on or about March 15 (his
affidavit said the fall of 1975) he supervised the Cambridge
mine for Foreman Beachy, who was ill. While there, Avery
Green and Lawrence Reece came to him and said they
wanted some kind of representation because of the size of
the organization and asked him if he would consider
allowing the Christian Labor Association to come in and
do what they could for the employees. However, Avery
Green denied that he and Reece made such a request.
Schlabach also said Harry Tope of the Baltic Operation
made the same request because they had previously
worked under the Christian Labor Association contract. In
response thereto, Schlabach said he thereupon contacted
Dykhius of the Christian Labor Association on March 21
and asked him to check with the employees and see if he
could become their labor union representative.
Schlabach further testified that Dykhius called his office
and made arrangements to come down and meet with
whichever employees he wanted him to meet. The first
meeting was attended by Glynn Hoagland, Jerry Trout,
Gilbert Smith, Bill Madden, and himself, all supervisors
except Hoagland, who is land agent for Respondent.
Madden suggested that Dykhius meet with Harry Tope
and Tom Miller from the northern pit, and Andy DeShong
and either Larry Reece or Dave Ehertt, from the southern
pit. He (Schlabach) said the purpose of the first meeting
was to learn how the men function in the mines but in his
affidavit he said the purpose was to discuss pay scales and
other contractual matters. When Dykhius asked him when
could he meet with the employees, according to his
affidavit, he (Schlabach) said he had no objections.
Tom Dykhius. national representative of the Christian
Labor Association, testified that during the first part of
March 1976, he received a telephone call from Alvin
Schlabach (Respondent) who informed him that his men
(employees) had asked him to call the Christian Labor
Association and ask them if they would be interested in
unionizing Respondent's operation. Dykhius said he left
his toll-free telephone number with Respondent and
advised that, if any of the employees were interested, to
have them contact him. He acknowledged that the Mine
Workers were working in the area of Respondent's coal
operation.
Later Dykhius said he received a call from Alvin
Schlabach and he told him he would be in the area (The
Sugar Creek Restaurant) on a certain afternoon in April.
Subsequently, Dykhius met at the said restaurant along
:' I do not credit Schlabach's testimony to the effect that employees
Aver) Green. Lawrence Reece. and Harry Tope requested him to intercede
lor them in contacting the Christian Labor Association, because I was
persuaded by his demeanor on the stand that he was not truthful in this
regard. and because not only was such a request improbable but employee
Aver) Green denied that he and fellow employee Reece made such a
request. Meanwhile. although I credit most of Schlabach's testimony
with Alvin Schlabach, William Hoagland, and about four
other employees. He said he explained what was involved
in a collective-bargaining agreement and the procedure to
obtain recognition. On the next morning he met with Jerry
Trout (who was formerly a member of CLA) and two other
employees. He told Trout he wanted to talk with the
employees in his absence since Trout was a supervisor.
They next met at the Holiday Inn in Bayesville. Present
were William Hoagland, Andy DeShong, Reece, and
another person. At that time Dykhius said he answered
questions and gave those in attendance literature and
cards. He paid for the breakfast for tvo meetings and for
the lunch at a third meeting. Subsequently, he received
approximately 42 signed cards and he then requested an
election of the National Labor Relations Board. He said he
first learned about the United Mine Workers participation
in the election when the National Labor Relations Board
received a call for a showing of interest. He did not object
to the UMW intravening in the election because the order
of the elections stated the UMW had only two cards.3
I therefore conclude and find upon the above evidence
that Schlabach took the initiative to contact the Christian
Labor Association on behalf of his employees and sat in
the first organizing meeting with some of his employees,
and that, by doing so, he assisted and supported the
Christian Labor Association in its organizing efforts and
thereby interfered with employees' Section 7 rights.
C. The Union Activity of Larry Mills
Larry Mills testified that, in or about April, he was in the
Cambridge office when Andy DeShong told him he had
been to a meeting with the Christian Labor Association.
DeShong gave him a union card and some literature. A
couple of days later, he signed the card and gave it to Dave
Ehrett. Mills continued to testify as follows:
A. I called in Tom Bell of the United Mine
Workers, and told him what was going on, because I
didn't know what this Christian Labor Association had
to offer. It was going to cost us $20.00 to join, and $8.00
a month dues. Since we didn't have a contract, Tom
Bell got in touch with me, and me and Dave signed
cards.
Q. When was this?
A. This was April 20th, I believe.
Q. After signing the card, did you engage in any
organizing activities on behalf of the Mine Workers?
A. Yes, I met with the organizers at the Holiday
Inn, and helped them make phone calls to the
employees at the Schlabach Coal Company.
Q. Did you do anything further?
A. At dinner time, and on my breaks, I supported
the United Mine Workers, and talked to as many men
as I could, on my dinner time and break time.
because it is consistent with the testimony of Christian Labor Association
Representative Dykhius, whom I credit, in toro, I do not credit his testimony
that the purpose of the March meeting was to learn the function of the men.
In this regard, Schlabach had previously stated in his affidavit that the
purpose of that meeting was to discuss pa) scales and contractual matters. I
credit his sworn statement which is inconsistent with his current testimony.
1325
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mills also testified without dispute that he served as an
observer for the United Mine Workers at the election (at
both minesites) on May 6, 1976.
I conclude and find upon the above evidence that Larry
Mills was engaged in union activity on behalf of the United
Mine Workers prior to and during the election on May 6,
1976, and that Respondent had knowledge of such fact.
D. Respondent Threatened to go out of Business if
the United Mine Workers Prevailed
Mills further testified that just before the election he
asked Foreman Vernon Beachy when the United Mine
Workers got into the organizing picture and Beachy said he
did not know, but somebody had to bring them in. Mills
said that he then tried to assure Beachy that he did not
bring in the UMW because Respondent did not need a
union if Respondent would just pay more money. Beachy
said Respondent could not afford a union.
Avery Green had been employed by Respondent for 2
years as a bulldozer operator under the supervision of
Vernon Beachy. In the absence of Beachy, on every
Tuesday, he served as leadman. He said before the election
he promoted the Christian Labor Association by urging
most of the employees (75 or 85 percent) to vote for the
Christian Labor Association. He continued to testify as
follows:
Q. Did you ever have any conversations where you
were present during any meetings with Mr. Schlabach
concerning unionization of the Company?
A. We was up on the hill, him and I and another
employee.
Q. When was this, approximately?
A. It looked like we needed some kind of represen-
tation, and he said that he had heard of the Christian
Labor Union, and he thought it would be a fair
organization, and I told him that he had been very
good to all the men, and kept the equipment good, and
if this is what he wanted, then-
Q. When did this conversation take place?
A. I think it was sometime in the last of March, or
something.
Q. Did you ever have any other conversations with
any representatives of the Employer concerning these
unions?
A. I didn't have any meetings, but from time to
time I would talk to Vernon Beachy about it. He was
against the United Mine Workers, and if anyone voted
for anything but the Christian Labor Union, they
wouldn't have a job.
Green further testified that he had also talked with
Beachy from time to time about the Union and Beachy
said if anyone voted in any other way, except for the
Christian Labor Association, they would not have a job;
I I credit Larry Mills' testimony that sometime in April Foreman Vernon
Beachy said Respondent could not afford a union, and I credit the
testimony of Avery Green, Charles Newell, Steven Hunter, and Richard
West, that Foreman Beach) told them on several occasions between April I
and May 6, 1976, that if any employees voted for the UMW or not for the
('CL A Respondent would shut down and/or such employees would be out of
and, if the UMW won recognition, Respondent's mine
would be closed.
Charles Steven Newell, employed by Respondent since
October 1975 as a pan operator, also testified that he
recalled Beachy stating on several occasions before the
election that, if the men voted in the UMW, Alvin would
shut down or there would be guys without jobs; and that
whoever upheld the UMW would not have a job.
Steven Hunter, who was in the employ of Respondent as
a scraper operator for 1 year, also testified that about 3 or 4
days before the election he and Dave Ehrett were in the
truck with Beachy when he asked Beachy if Alvin
Schlabach would go out of business if the UMW came in;
that Beachy said he did not know right now, but he said a
year ago, he would have definitely gone out of business if
the UMW came in.
Avery Green also testified that just about the time of the
election on May 6, 1976, while sitting in the truck with
Steve Newell, Dick West and possibly Barry Ramsour,
along with Foreman Beachy, he (Green) told Beachy he
was confident 75 to 85 percent of the men would vote for
the Christian Labor Association, and Beachy said if they
don't, they would be out of a job.
Richard Eugene West was in the employ of Respondent
from February to May 1976 when he was laid off. He
testified that on the day of the election he was in the
company of Avery Green, Barry Ramsour, and Steve
Newell around Foreman Beachy's truck. He continued to
testify as follows:
So we talked for a little bit about the election, and I
didn't really know which way to vote, and he said if you
wanted to keep your job, that you better vote for CLA.
And then Vernon turned around and said, "Yes, if I
find out anybody did vote for the UMW, they would be
sent down the road looking for anotherjob. 4
I therefore conclude and find upon the foregoing
credited evidence, that on several occasions between April
I and May 6, 1976, Respondent (Foreman Vernon Beachy)
threatened its employees with going out of business if the
employees supported the United Mine Workers and not
the Christian Labor Association, and that they would be
out of a job for doing so.
David Ehrett testified that around May 24, 1976,
Foreman Beachy told him to be at the Holiday Inn at 11
o'clock that day because there would be a representative
from the Christian Labor Association to talk to him. He
went to the Inn and Bykhius, Beachy, Andy DeShond, and
Hoagland were there; that Dykhius told them about the
Christian Labor Association and asked them if they
wanted a union. He suggested that they sign union cards,
and thereafter gave them some literature, pens, self-
addressed envelopes and cards to sign and distribute.
Beachy and Hoagland remained present for the 1-1/2 hour
duration of the meeting and Dykhius paid for the meal.
a job. I credit the above employees' version because they are consistent and
corroborative of each other's, and because each witness appeared to be
testifying truthfully while Foreman Beachy's demeanor clearly indicated he
was not truthful in denying the above versions of his conversations with the
said employees.
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SCHLABACH COAL COMPANY
During the meeting they asked Dykhius if the Christian
Labor Association got in would the United Mine Workers
also get in, and he said, "No."
David Ehrett also testified that about 2 or 3 days before
the election, Foreman Gilbert Smith approached him and
Steve Hunter near their pickup trucks when Steve Hunter
asked foreman Smith what did Schlabach think about the
Union. Smith said he definitely wanted the Christian Labor
Association; that Steve Hunter then asked him what would
happen if the UMW got in, and Smith said, "Well, he
couldn't say, but Schlabach had said a year ago that if the
UMW got in, he would go out of business, and we would
be out of a job." I credit Ehrett's testimony because not
only was I persuaded by his demeanor on the stand that he
was testifying truthfully, but such testimony is conspicu-
ously undenied in the record. His testimony is also
consistent with other threatening statements made by
Proprietor Schlabach and Foreman Beachy. Accordingly, I
conclude and find that in earl) May 1976, Respondent
(Foreman Gilbert Smith) threatened employees Ehrett and
Hunter with going out of business if the United Mine
Workers were successful in organizing the employees.
E. Respondent's Conduct on and Subsequent to the
Election on May 6, 1976
Charles Steven Newell also testified that he was present
around Beachy's truck just prior to the election on May 6
when his father-in-law, Avery Green, said he thought it
would be a landslide for the Christian Labor Association
and Beachy said, "Well, it had better be, or there will be a
lot of people without a job."
Foreman Vernon Beachy admitted he was present in his
truck across the street from the voting office just prior to
the election on May 6 because, he said he wanted to use the
telephone and could not get in the office. He further stated
that Barry Ramsour and Charlie Harris came to his truck
before the election but he told them he could not talk with
them and sent them away. He denied that he told any of
the employees before the election how they should vote or
that they should vote against the UMW. 5
Avery Green also testified as follows:
Q. Now, on the day of the election, did you have
any conversation with Vernon Beachy concerning
Larry Mills being an observer?
A. I said to Vernon that I didn't know that Larry
was representing the United Mine Workers, and he
made the statement back to me that it wouldproJa5ly
cost him hisjo5.
Q. When did this conversation take place?
A. I think it was before I went over to vote. No, it
was afterwards, because I didn't even know that Larry
Mills was representing the United Mine Workers until I
went in the office. I am pretty certain of that.6
:' I credit Newell's testimony over that of Foreman Beachy because it is
consistent with the pattern of threatening statements made by Beachy and
iother management personnel already established in the record. I also
discredit Foreman Beachy's denial of such statement for the same reasons
hcretofore stated by me.
The Discharge of Larry Mills
I conclude and find that Foreman Beachy's comment to
employee Avery Green that Larry Mills will probably lose
his job for serving as an observer for the United Mine
Workers on May 6, 1976, and that such comment was a
threat, and an interference with employees' Section 7
rights.
Larry Mills testified that he met the Board agent at the
Baltic office where they held an election and then they
proceeded to the Cambridge office where they held the
election. He served as an observer for the United Mine
Workers at both Baltic and Cambridge election sites. The
ballots were then impounded. He said after the election
Vernon Beachy acted differently (cool) with the mine, as he
(Mills) did prior to the election.
Shortly after the election, Mills said Beachy told him he
would no longer be allowed to drive the equipment to the
trailer to eat dinner; that they (the employees) would have
to park the equipment wherever they were and walk to
dinner on their own time and not to take I minute more or
less at dinnertime. Mills continued to testify as follows:
Q. Could you describe to me the events on May
24th, '76?
A. That was the day he fired me. He came into the
pit shortly after starting time, and he walked up beside
the loader, and I got off to see what he wanted, and I
asked him what he needed, and he said he was going to
have to let me go. I said, what for, ard he just shrugged
his shoulders, and said, "We just ha' e to let you go."
I said, if you are firing me, I want to know why you
are firing me.
He said, "Unnecessary roughness of the equipment
and harassment of the men."
I asked him when I was rough to th:. equipment, and
he took me over to his truck and pulled ot't a little
black book, and it had my name and date, and a
notation that said I had lifted the back end of the
highlift off the coal.
There were several other peoples' names, and
notations and dates in there, but he wouldn't let me see
any more.
Vernon Beachy, foreman of the Cambridge operation,
testified that on May 24, 1976, he watched Mills operate his
machine for about 15 minutes and then he wert to him and
advised him that he could not use him any more because he
heard about him harassing (cussing Charlie Harris for
unknown reasons) one of his men, and for being rough on
equipment. He said he had warned Mills after several
incidents.
When the pan on the machine was damaged in
November, Beachy said he told Mills Respondent could
not have any more of that. He further stated that on May
24, he did not ask Mills about the words Mills had had with
Charlie Harris, but rather just told Mills he could n,-t use
him any more. In response to questions on cross-examina-
6 I credit Green's undisputed testimony because it is consistent with the
pattern of threatening anti-UMW s:atements Foreman Beachy had made to
several employees before the election.
1327
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, Beachy said he made his decision to fire Mills on May
23, the night before he observed Mills spinning the wheels
of the loader. When confronted with his affidavit in which
he previously stated that he decided to dismiss Mills on
May 24; Beachy said he thought about it on May 23 but he
did it on May 24.
Avery Green testified that he was in the pit when
Supervisor Beachy fired Larry Mills. He said shortly after
the discharge of Mills, Beachy took him (Green) in the
truck to another jobsite. In route to such site he asked
Beachy why was Mills fired and his testimony continued as
follows:
I asked him why he had fired Red, and he said that he
had been rough on equipment.
I said, well, he hasn't been any rougher on equip-
ment-he is no rougher now than the day he was hired.
It has been a year that he has worked this way.
But he said that Jerry Trout had told him to fire Red
(Mills) for representing the United Mine Workers.
Vernon said that Jerry told him to do this, but I don't
know whether it is true. It is just a statement that was
made to me.
With respect to the discharge of Larry Mills, Schlabach
testified as follows:
A. Mr. Mills called me at my home. He said he
didn't expect to find me at home. He said, "I guess you
know what happened," and I said, "No, I don't know
what happened."
He said, "I was fired this morning," and he said, "I
have been treated very unfairly and very unkindly, and
there is no just reason for my dismissal.
I said, "Larry, I have told you repeated time, and I
have warned you about rough use of equipment, and
the other men have decided to let you go, but because I
overruled them, they did not let you go, or you would
have been gone last November."
Superintendent Jerry Trout also testified that on May 24
he walked into Schlabach's home while he was talking to
Larry Mills on the telephone. He picked up the telephone
and heard Schlabach ask Mills if he wanted to come back
to work and Mills said, "Go to hell, or something like that,
that he wouldn't work for the company any more." He said
that he discussed the discharge of Mills with Beachy and
Smith at least six times prior to discharging him, and that
he had advised them that Larry Mills should be fired. He
stated that the Baltic mine is about 50 miles from the
Cambridge mine.
Alvin Schlabach further testified that he was present at
the December 2, 1975, meeting and called all of the men
together at the Cambridge mine along with Gilbert Smith,
Jerry Trout, and Vernon Beachy. He said he discussed a
number of things, including abuse and use of equipment.
After the meeting he said he called Larry Mills aside and
told him he was to have been fired that morning, but he
(Schlabach) felt Respondent was not gaining anything by
firing a man. He said he thought he would rather give Mills
another chance because he considered Mills a good hard
worker, although a little rough on the equipment. He said
he also told Mills he overruled Trout and Beachy's decision
to discharge him.
During his meeting on December 2, Schlabach admits
that he told Larry Mills he was a good worker. With
respect to Mills' work performance, he testified as follows:
Q. What instances was that?
A. The first time I met Larry Mills, I was down
there one morning when it was cold, and he was trying
to release the brakes, which he had referred to in his
testimony. Instead of taking it and letting a mechanic
fix it, he would go down across the field and jam on the
brakes and slide the machine, come back up and do the
same thing over again. I told Vernon Beachy at that
time, I said, "Go stop that man. Have that thing fixed,
instead of tearing the machine up." That is the first
time that I saw Larry Mills, the first time that I met
him.
Q. Were there any other incidents?
A. Yes, sir. When he tore up the scraper, trying to
force large rocks into it. That is the time that he was
supposed to have been terminated.
Q. You were supposed to have terminated him then
because he tore up the transmission?
Q. ... Did you you continue to receive complaints
about his operating the equipment?
A. Yes Idid.
Q. How often were these complaints?
A. We had company meetings every Tuesday
morning, and it didn't come up every Tuesday
morning, but at various times, "What shall we do" We
are still having a lot of expense, a lot of problems with
the machines that he is on, and we feel we ought to let
him go."
Q. Why didn't you let him go then?
A. Because I had overruled it to begin with.
Jerry Trout, Superintendent of Respondent, testified that
he was present at the December 2 meeting and recalled a
discussion of other business and also the operation of the
machines and misuse of equipment. The Union was not
discussed while he was present. Trout said, although he had
talked to other management persons about Mills' reckless
and rough operation of equipment, he admitted that he had
not talked to Mills about such operation of the equipment.
On cross-examination, Mills was asked if he could recall
a management discussion with him about abusive use of
equipment. He readily admitted such a conference after
blowing two break rings a day on his equipment which he
said was caused by a faulty hose, a replacement for which
Respondent repeatedly ordered but did not receive the
correct hose. However, he said Respondent never told him
he was responsible for the ring's problem. Mills also
acknowledged that he knocked the stockblock off his
machine on one occasion.
Avery Green, also a bulldozer operator, testified that he
had observed Larry Mills operating the equipment several
times and had commented to himself how good a job Mills
was doing on the machine. He considered Mills a good
1328
SCHLABACH COAL COMPANY
worker and his handling of the equipment reasonable,
under the circumstances. He further testified that he was
present at the meeting in November 1975 concerning the
dismissal of a man, when Schlabach said, "Work the
machines to their full capacity, but take care of them," but
he did not hear any discussion about the abuse of
equipment.
With respect to the handling of the equipment, Steven
Hunter testified that it was not unusual for the back end of
the equipment to rise up off the ground if you had a full
bucket. He said he had seen Beachy operate the equipment
when the end would rise up off the ground and he (Hunter)
has done the same thing. He said he observed no difference
in the way Mills operated the equipment from the
operation of Supervisor Beachy.
Avery Green testified that the loader that was operated
by Mills is and has been loading coal ever since Mills was
dismissed; that it has not been used on any terrain where
coal has not been shot (dynamited) or where it could be
damaged. When Mills was there, he said the loader was
used on unshot rock and you had to work the machine
extra hard to get any meaningful results; and that the rock
in that particular area was not shot (dynamited) because it
was too close to the road. In this regard, Foreman Fred
Taylor testified that the 988 loader is operated 60 percent of
the time in the yard (loading coal) and 40 percent in the pit
(digging coal) for the past 3 months.
I hereby conclude and find upon the foregoing credited
evidence that Respondent discriminatorily discharged
Larry Mills for opposing the Christian Labor Association,
and for actively supporting the United Mine Workers in its
organizing effort; and that Respondent's contention that it
discharged Mills for cause (unnecessary roughness on
equipment and harassment of its men) is pretextual.
Analysis and Conclusions
It is clearly established by the credited evidence of record
that on several occasions between November 1976 and
February 1977, Respondent (Foreman Jerry Trout) threat-
ened the employees by telling them Respondent would sell
all of its equipment and close down its mining operations if
the employees assisted, supported, or selected United Mine
Workers as their collective-bargaining representative. Such
conduct on the part of Foreman Jerry Trout constituted
conduct of Respondent, since Trout is admittedly an agent
acting on behalf of Respondent and a supervisor within the
meaning of the Act. Consequently, such conduct on the
part of Respondent was an interference with, a restraint
upon, and coercion against the employees in the exercise of
their Section 7 rights, in violation of Section 8(a)(1) of the
Act.
Since Respondent (Schlabach) took the initiative to
contact the Christian Labor Association on behalf of his
employees and sat in on the first meeting with some of his
employees, he therefore assisted and supported the Chris-
tian Labor Association in its organizing efforts, and
thereby interfered with, restrained, and coerced its employ-
ees in the exercise of their rights protected by Section 7, in
violation of Section 8(a)(1) of the Act.
It is also clearly established by the credited evidence of
record that dischargee Larry Mills was engaged in
promoting the United Mine Workers Union by talking to
employees on the job during early May 1976, and by
serving as an observer for the United Mine Workers at the
Cambridge and Baltic sites during the election on May 6,
1976. Since Mills served as an observer during the election
on behalf of the United Mine Workers, Respondent knew,
as the evidence later shows, that Foreman Vernon Beachy
said Mills would probably lose his job for serving as an
observer. Thus the evidence is clear not only that Mills was
engaged in union activity prior to the election but that
Respondent had clear knowledge of such activity.
It is further established by the credited evidence that on
several occasions between April I and May 6, 1976,
Respondent (Foreman Vernon Beachy) threatened its
employees with closure of the mining operations if the
employees supported the United Mine Workers and not
the Christian Labor Association, telling them that they
would be out of a job for doing so. It is also clear that such
conduct on the part of Respondent had an interfering,
restraining, and coercive effect on the employees protected
rights under Section 7, in violation of Section 8(a)( ) of the
Act.
It is well established by the evidence of record that
Respondent (Foreman Gilbert Smith) threatened employ-
ees Ehrett and Hunter with going out of business if the
United Mine Workers were successful in organizing
Respondent's employees. Again this instance and pattern
of conduct on the part of Respondent constituted an
interference with, a restraint upon, and coercion against
the exercise of employee rights protected by Section 7, in
violation of Section 8(aX 1) of the Act.
Likewise, it is further established by the credited
evidence that Respondent (Foreman Vernon Beachy), on
the day of the election (May 6, 1976), told employee Avery
Green that Larry Mills would probably lose his job for
serving as an observer for the United Mine Workers during
the election. Since Vernon Beachy is a foreman for
Respondent and a part of the managerial hierarchy of
Respondent, it is logical for the employees to rely on the
authenticity of his prophecy of the probable termination of
Larry Mills' employment. Although Foreman Beachy
might have said Mills would "probably" lose his job, since
"probably" means the likelihood of occurrence his state-
ment was sufficiently definitive of the consequences Larry
Mills would face for his service as an observer. Certainly,
such a threat by a foreman would and did have an
interfering, restraining, and coercive effect upon the
exercise of employees' Section 7 rights, in violation of
Section 8(a)(l) of the Act.
The evidence clearly shows that immediately following
the election Foreman Beachy told Larry Mills that he
could no longer drive the equipment to the office to eat
lunch, but must park it wherever it is and walk to lunch,
and not be I minute late. Such an order by Beachy
immediately following Mills' serving as an observer for the
United Mine Workers, clearly punctuates an act of reprisal
by Beachy against Mills for opposing the Christian Labor
Association in the face of Beachy's repeated warnings and
threats to employees not to do so.
Subsequently (May 24, 1976), Foreman Beachy said he
made it a point to observe Mills operating the coal mining
1329
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equipment for a few minutes on May 24, 1976, and then he
went to Mills and advised him that Respondent would
have to let him go. When Mills asked why, Foreman
Beaco: simply said, "We just have to let you go." Mills
made a irther inquiry as to why he was being terminated
and Beachy in .n:ed him that it was because he was
unnec-esarily rough on the equipment andfor harassment of
his men.
On cross-examination Foreman Beachy admitted that he
did not ask Mills for his version of the incident which
Beachy characterized as harassment and he further
acknowledged that he had never spoken to Mills, personal-
ly, about his operation of the coal mining equipment. In an
effort to support the validity of Mills' discharge, Respon-
dent attempted to show that Mills was exceedingly rough,
if not reckless, in the operation of his equipment and cited
instances of small damage or causes for repeated repairs
(rings problem). However, the evidence of record does not
substantiate that Mills' operation of the equipment caused
the rings problem or that he was entirely responsible for the
other fender and block damages. Cost of the block and
fender damages was not established by the evidence.
When all of the evidence of record is viewed in its
entirety, it is particularly observed that Respondent
terminated the employment of Mills, who had been in its
employ for 6 months preceding the day of the union
election on May 6, 1976; that Mills' operation of the
equipment was established to have been similar to the
operation of Foreman Beachy and other employees who
operated the same equipment, or at least not unnecessarily
rough: that Respondent had not issued a single written
warning to Mills about his operation of the equipment; that
the evidence of record is not clear that he was given any
serious and ultimate oral warning about his operation of
the equipment; that supervisory personnel of Respondent
had repeatedly urged the employees to support the
Christian Labor Association and oppose the United Mine
Workers; that Foreman Beachy had told employee Green
that Mills would probably be terminated for serving as an
observer for the United Mine Workers; and that on May
24. 1976, exactly 18 days subsequent to Mills' serving as an
observer for the United Mine Workers during the election,
Foreman Vernon Beachy, the chief opponent of the United
Mine Workers, precipitously discharged Larry Mills.
When all of the above evidentiary factors are considered
in light of the antiunion background of Respondent, it is
clear that the principal motivating cause for Mills'
discharge was his union activity on behalf of the United
Mine Workers, in opposition to the Christian Labor
Association. It is equally clear that Respondent's conten-
tion that Mills was discharged for unnecessary roughness
on equipment or harassing the men, is a mere pretext to
conceal Respondent's unlawful discharge of Mills. Since
Mills was discharged because of his active and open
support of the United Mine Workers in adamance to
Respondent's urging employees to support the Christian
Labor Association, it is obvious that Mills' discharge was
discriminatorily motivated and therefore, violative of
Section 8(a)(3) and (1) of the Act.
The record herein shows that pursuant to stipulation for
certification approved by the Regional Director on April
23, 1976, an election was conducted on May 6, 1976 in the
following described unit:
All production and maintenance employees including
truck drivers employed at the Employer's strip mines
located at Route No. 3, Fresno, and Route No. I,
Byesville, Ohio, but excluding pit foreman, all office
clerical employees, professional employees, guards and
supervisors as defined in the Act.
The Acting Regional Director's Report on Objections
and Challenges in Case 8-RC-10366 further shows that:
United Mine Workers of America, hereinafter
referred to as Intervenor, intervened in this proceeding
thereby becoming a party thereto. On May 5, 1976,
prior to the election the Intervenor filed an unfair labor
practice charge designated Case No. 8-CA-10090.
Because the charge was filed in such close temporal
proximity to the election I permitted the election to be
run but directed that the ballots be impounded until the
matters raised by the charge had been resolved. The
charge in 8-CA-10090 was withdrawn on June 24,
1976.
The Tally of Ballots subsequently issued on July 7,
1976, shows that of approximately 51 eligible voters, 51
cast ballots, of which 22 were for the Petitioner, 15 for
the Intervenor, 5 for neither labor organization, and 3
were void. There were 6 challenged ballots, a number
which is sufficient to affect the results of the election.
On July 13, 1976, the Intervenor filed an objection to
conduct affecting the results of the election, duly serving a
copy thereof on the Employer and the Petitioner.
In its objection, the Intervenor alleges that the Employ-
er's foreman, Vernon Beechy, was stationed within 125 feet
of the polling place and spoke to the employees as they
proceeded to vote. The Acting Regional Director's report
on objections and challenges further disclosed that:
On June 30, 1976, the Intervenor filed an unfair labor
practice charge against the Employer is Case No. 8-
CA-10252. On August 12, 1976, 1 issued a Complaint in
that case alleging that the Employer violated Section
8(a) and (3) of the Act by various acts including threats
and interference and the discriminatory termination of
an employee because of his union activity.
Since the unfair labor practice charge allegedly arose out
of the same set of facts upon which the Intervenor's
objection to the election is based, the Board ordered
consolidation of both cases for hearing on November 23,
1976.
An examination of the credible evidence of record along
with the Regional Director's Report on Objection and
Challenges, substantially supports Intervenor's principal
Objection I and its unnumbered objections regarding
employer's threatening conduct prior to and during the
election.
Thus, based on the foregoing credible evidence, the
findings of fact, and the analysis and conclusions hereto-
fore stated, I further conclude and find that Respondent's
conduct (through Foreman Vernon Beechy and other
1330
SCHLABACH COAL COMPANY
supervisory personnel) had such an interfering, restraining,
and coercive effect upon the voting predilections of the
employees, that they were thereby deprived of a free and
untrammeled choice to elect a bargaining representative of
their own choosing. I therefore recommend that the
Intervenor's objections to the election be sustained and a
new election be ordered.
It is recommended that the National Labor Relations
Board representation election in Case 8-RC-10366, held
on May 6, 1976, be set aside.
It is further recommended that the Board direct that a
second, or another, election by secret ballot be conducted
among the employees in the appropriate unit, at such time
as the Regional Director for Region 8 deems appropriate,
under his direction and supervision, and pursuant to the
National Labor Relations Board Rules and Regulations,
Series 8, as amended. It is also recommended that the
eligibility of voters shall be in accord with the eligibility of
voter requirements set forth in J. P. Stevens & Co., Inc., 167
NLRB 266(1967).
It is further recommended that the Employer shall be
required to file an election eligibility list with the Regional
Director in accord with and for the purposes set forth in
Excelsior Underwear Inc., 156 NLRB 1236 (1966).
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices warranting a remedial order, I shall
recommend that it cease and desist therefrom and that it
take certain affirmative action to effectuate the policies of
the Act.
It having been found that Respondent interfered with,
restrained, and coerced its employees Larry Mills, Avery
Green, Charles S. Newell, Steve Hunter, David Ehrett, and
Richard West in the exercise of their protected Section 7
rights in violation of Section 8(a)(1) of the Act; and that on
May 24, 1976, Respondent discriminatorily discharged
Larry Mills and has since that time failed and refused to
recall or offer him reinstatement to his former position, and
make him whole for loss of earnings within the meaning
and in accord with the Board's decision in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Isis PlumJing &
Heating Co., 138 NLRB 716 (1962), except as specifically
modified by the wording of such recommended Order.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that.
Respondent cease and desist from discriminating against
or in any other manner interfering with, restraining, and
coercing employees in the exercise of their rights guaran-
teed by Section 7 of the Act. N.L.R.B. v. Entwistle
Manufacturing Company, 120 F.2d 532, 536 (C.A. 4, 1941).
Upon the basis of the above findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
I. The Respondent, Schlabach Coal Company, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. United Mine Workers of America is and has been at
all times material herein, a labor organization within the
meaning of the Act.
3. United Construction Workers Local No. 10 of the
Christian Labor Association (Christian Labor Associa-
tion), is and has been at all times material herein, a labor
organization within the meaning of the Act.
4. By threatening its employees to go out of business if
the employees assisted, supported, or selected the United
Mine Workers, or any other labor organization as their
collective-bargaining representative, Respondent interfered
with, restrained, and coerced its employees in the exercise
of rights guaranteed under Section 7 of the Act.
5. By threatening employees with going out of business
if the employees did not aid, assist, and select the Christian
Labor Association as their collective-bargaining represen-
tative, Respondent interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed them
under Section 7 of the Act.
6. By taking the initiative on its own to contact the
Christian Labor Association on behalf of its employees and
thereafter attending the meeting along with the employees,
Respondent assisted and supported the Christian Labor
Association in its organizing efforts, and thereby interfered
with, restrained, and coerced its employees in the exercise
of rights guaranteed by Section 7 of the Act.
7. By threatening its employees to go out of business
and render the employees jobless if the employees assisted
or selected the United Mine Workers as their collective-
bargaining representative, Respondent interfered with,
restrained, and coerced its employees in the exercise of
rights guaranteed under Section 7 of the Act.
8. By discriminating in regard to the tenure of employ-
ment of Larry Mills, thereby discouraging membership in
the United Mine Workers or other labor organizations,
Respondent has engaged in unfair labor practices con-
demned by Section 8(aX3) and (I) of the Act.
9. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
1331