Carbonex Coal Co.

CARBONEX COAL COMPANY 779 Carbonex Coal Company and United Mine Workers of America. Cases 16-CA-7964' and 16-CA- 8116 March 28, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On September 28, 1979,2 Administrative Law Judge J. Pargen Robertson issued the attached De- cision in this proceeding. Thereafter, Respondent and the Charging Party filed exceptions and sup- porting briefs, the Charging Party filed a brief in support of the Administrative Law Judge's Deci- sion, and Respondent filed an answering brief to the Charging Party's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,3 and conclusions of the Administrative Law Judge as modified herein, but not to adopt his rec- ommended Order. Both Respondent and the Charging Party have, in conjunction with their exceptions, presented a number of motions relating to evidentiary matters as well as the Administrative Law Judge's recom- mended remedy and Order. We dispose of such motions as follows. 1. The Charging Party's "Motion To Reopen the Record and Take Official Notice of Certain Por- tions of the Proceedings" in Case 16-UC-98, a pro- ceeding involving the parties hereto, is denied. In our view, the evidence sought to be introduced is cumulative in nature and, in any event, would have no impact upon our decision on the merits of the instant case. See Section 102.48(d)(1) of the Nation- ' Cases 16-CA-7964 and 16-CA-8116 were part of a consolidated complaint which was issued on November 18, 1978. That consolidated complaint also included Cases 16-CB-1507 and 16-CC-609. At the con- solidated hearing, on December 7. 1978, the Administrative Law Judge approved a settlement agreement in Cases 16-CB-1507 and 16-CC-609, and granted a motion to sever those cases from Cases 16-CA-7964 and 16-CA-8116. 2 The Administrative Law Judge's Decision inadvertently indicates that such Decision was issued on September 28, 1978. 3 Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Productrs Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. We are also satisfied that Respondent's contention that the Administra- tive Law Judge was biased is without merit. In our opinion, there is nothing in the record to suggest that his conduct at the hearing or his evidentiary and procedural rulings were based on either bias or prejudice 248 NLRB No. 107 al Labor Relations Board Rules and Regulations, Series 8, as amended. 2. The Charging Party's motion to strike is denied in part and granted in part. Those portions of the motion seeking to strike various of Respon- dent's exceptions for failure to comply with the provisions of Section 102.46(b) of the Board's Rules and Regulations, Series 8, as amended, are denied. Although certain of Respondent's excep- tions and its brief in support thereof do not con- form in all particulars with the Board's Rules and Regulations, they are not so deficient as to warrant striking. That portion of the Charging Party's motion seeking to strike the factual allegations of Respon- dent based on Respondent's Exhibits 10, 16, and 20 is denied. Although the Administrative Law Judge refused to accept Exhibits 10, 16, and 20 into evi- dence, Respondent did except to those evidentiary rulings. Having done so, it is proper for Respon- dent to present arguments predicated upon such ex- hibits. 4 That portion of the Charging Party's motion seeking to strike certain of Respondent's factual as- sertions as being unsupported by record testimony is denied. In our review of the record, any factual assertions presented by a party which are not sup- ported by competent evidence are accorded no weight in our consideration.5 That portion of the Charging Party's motion seeking to strike Respondent's references in its brief to Respondent's Exhibits 18(a), 18(b), 12, and 22 and all factual assertions based thereon is granted. Respecting Respondent's Exhibits 18(a) and 18(b), such exhibits were stricken by the Administrative Law Judge. Respondent did not except to that ruling and, thus, cannot now rely on those exhibits. As for Respondent's Exhibits 12 and 22, Respon- dent at no time sought their introduction into evi- dence. Therefore, Exhibits 12 and 22 were not made part of the record and cannot now be relied upon by the parties or considered by the Board.7 ' We are not unmindful of the Charging Party's contention, in this regard, that our consideration of Resp. Exhs. 10, 16, and 20 would be improper since the General Counsel and the Charging Party were not ac- corded a full opportunity to cross-examine witnesses concerning the ex- hibits in question. That particular contention is addressed at fn. 10, infra,. in connection with our ruling on the admissibility of the exhibits. 6 That portion of the Charging Party's motion seeking to strike Re- spondent's reference to Appendix F of Respondent's brief for failure to serve such appendix on the parties is denied as moot. In the documents submitted to the Board by Respondent, Appendix F was not included. Respondent has informed the Executive Secretary for the Board and the parties by letter dated February 25, 1980, that an Appendix F was not submitted, but was instead included as part of Appendix E. Thus, we are not in receipt of any documents which have not been properly served on all the parties hereto. See ALJ's D, fn. 1. 7 The record reveals that Exhibits 12 and 22 were marked for identifi- cation A controversy arose, however, over the necessity of Respondent Continued CARBONEX COAL COMPANY 779 __ 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. We find merit in Respondent's exception to the Administrative Law Judge's refusal to accept into evidence Respondent's Exhibits 10, 16, and 20. Essentially, the exhibits represent monthly summar- ies assertedly reflective of Respondent's efficiency, productivity, and profitability for the months sub- sequent to the time when Respondent claims it made the decision to lay off the 18 employees found by the Administrative Law Judge to have been laid off in violation of Section 8(a)(3) of the Act. The Administrative Law Judge refused to accept the summaries into evidence, reasoning that since the information contained in the summaries was not available to Respondent at the time it made the decision to lay off employees, such infor- mation could not be relied on by Respondent in seeking to establish that the layoffs were motivated only by economic considerations. We find, howev- er, that the legitimate concerns expressed by the Administrative Law Judge bear more upon the weight to be accorded the evidence in question than upon the initial issue of its admissibility. The principal issue to be addressed in determin- ing admissibility of evidence is one of relevance, i.e., whether the proffered evidence is probative of a party's claim or defense. 8 As noted above, Re- spondent's defense to the 8(a)(3) allegations is that the layoffs were motivated only by economic con- siderations. Thus, even though the information con- tained in the exhibits in question was not available to Respondent at the time it made the layoff deci- sion and, therefore, could not have been relied on by Respondent in making its decision, we find that the information is probative of the legitimacy of Respondent's assertion that the only motivation for the layoffs was to improve Respondent's economic situation.9 Therefore, Respondent's Exhibits 10, 16, and 20 should properly have been admitted. Having found that Respondent's Exhibits 10, 16, and 20 are admissible evidence, we nevertheless find, upon consideration of the exhibits and Re- spondent's arguments based thereon,10 that the ex- supplying the Charging Party and the General Counsel with the underly- ing documents used to compile Exhs. 12 and 22. The Administrative Law Judge ruled that, until such steps were taken to verify the accuracy of the exhibits, they would not be accepted into evidence. The record does not reveal clearly whether those steps were taken. 8 Rule 401, Fed. R. Evid., defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of conse- quence to the determination of the action more probable or less probable than it would be without the evidence." 9 The Board has. in the past, examined economic developments subse- quent to allegedly discriminatory discharges in determining the legitima- cy of a respondent's asserted economic defense. Ryder Truck Rental, Inc., 135 NLRB 53, 60 (1962). "i As noted above, see fn. 4, upra, the Charging Party asserts that we may not properly consider Resp. Exhs 10, 16, and 20 since the General Counsel and the Charging Party were not fully able t cross-examine witnesses concerning the disputed exhibits. In view of our finding that the exhibits in no way affect the propriety of the Adnministrative Law hibits do little to further Respondent's defense and do not undermine the propriety of the Administra- tive Law Judge's finding that the layoffs took place in violation of Section 8(a)(3). This is so because, even viewed in the light most favorable to Respon- dent, the exhibits serve to show only that Respon- dent's financial and productivity situation improved somewhat following the layoffs," but do not es- tablish that Respondent conducted the mass layoffs based only on economic considerations. In the instant case, the General Counsel has pre- sented what can easily be termed an overwhelming case of discriminatory motivation on the part of Respondent. In this regard, the record is replete with uncontroverted threats by foremen, superin- tendents, and the mine president to employees that a union victory in the election would result in sub- stantial layoffs, as well as curtailment or cessation of mine operations. The layoffs then took place in the days immediately following the Union's elec- tion victory. Several employees were told at the time of their layoffs that they were being let go be- cause of the union victory while not a single em- ployee was told that the layoff was because of Re- spondent's economic situation. The credited testi- mony of the former mine superintendent also re- veals that Respondent's upper level management kept track of which employees supported the Union, determined that massive layoffs would best serve to destroy the Union, and that Respondent's asserted economic justifications were the result of knowing and calculated fabrication. In the face of these findings of the Administrative Law Judge and the other evidence of wrongful motivation out- lined in his Decision, Respondent's claimed eco- nomic upsurge, standing alone, can hardly be viewed as an effective rebuttal of the General Counsel's case and does not serve to establish Re- spondent's assertion that the layoffs were motivat- ed only by economic considerations. 4. We find merit in the Charging Party's excep- tion which asserts that its certification year should Judge's Decision, we find it unnecessary to pass on this assertion, We do note, however, that the record does contain a substantial amount of evi- dence concerning Respondent's economic situation after the layoffs and the reasons therefor. I1 We do note, however, that Respondent's claim of increased profits and productivity is somewhat diminished by a variety of other factors, For example. increases in productivity must at least in part be attributed to improved weather conditions and the benefits derived from the sub- stantial "blasting ahead" program which greatly facilitated removal of stone overburden. The alleged increase in productivity per man-hour is similarly colored by the fact that Respondent reduced its number of em- ployees but at the same time utilized subcontractors. Thus, production levels could be maintained while direct man-hours of Respondent's em- ployees were reduced. Respecting costs, and therefore profitability, the better weather allowed the use of cheaper and lesser quantities of explo- sives. Cost reductions were also the result of the "blasting ahead" pro- gram since the blasting costs had already been attributed to earlier months and incurred costs related only to the removal operation. CARBONEX COAL COMPANY 781 be extended to 1 year from the time Respondent commences to bargaining in good faith. Lawrence Textile Shrinking Co., Inc., 235 NLRB 1178, 1179 (1978). We shall so provide in our remedy. 5. The Charging Party's request for an order di- recting Respondent "to repay Charging Party for all litigation expenses incurred in investigation, preparation, presentation and conduct of this pro- ceeding" is denied. An award of such expenses is appropriate only when a respondent raises "patent- ly frivolous defenses." Neely's Car Clinic, 242 NLRB No. 69 (1979), citing Tiidee Products, Inc., 194 NLRB 1234 (1972). Although we find Respon- dent's defenses here to be without merit, we are unable to conclude that they constitute patently frivolous defenses. 6. Pursuant to certain of our rulings herein and in order to clarify portions of the Administrative Law Judge's recommended remedy, we shall grant the following remedy in lieu of that recommended by the Administrative Law Judge. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, we shall order that it cease and desist therefrom and take certain affir- mative action designed to effectuate the policies of the Act. Having found that Respondent, in viola- tion of Section 8(a)(5), has engaged in surface bar- gaining and has otherwise failed in its obligation to bargain in good faith, we shall, in order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, construe the initial period of certification as beginning on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. 12 Having further found that Respondent laid off and has thereafter refused to reinstate Junior A. Berry, Ed Davenport, Derrell L. Jordan, Jimmy E. Legates, Charles F. Lewis, James M. Lewis, Jerry D. Magness, Wayne M. Moore, Rex Daniel Rymer, Paul D. Pinkston, James Presfield, Howard W. Robinson, Roy J. Stephenson, William R. Swick, Hooley G. Thompson, Howard M. Timms, Mark W. Walker, and Pete Triplett in violation of Section 8(a)(3) and () of the Act, we shall order Respondent to offer the above-named employees immediate and full reinstatment to their former po- sitions or, if those positions no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges, and 12 Lawrernw Texrile Shrnnkira i Co, Inc.. ul-ra. and ases cited at fn 7 thereiln make them whole for any loss of earnings they may have suffered as a result of the discrimination practiced against them. We have further found that the strike which began on October 2, 1978, was an unfair labor practice strike from its inception. Accordingly, we shall order that Respondent offer the strikers, upon their unconditional applications to return to work, immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, dismissing, if necessary, persons hired on or after October 2, 1978, and to make them whole for any loss of earnings they may suffer as a result of Re- spondent's refusal, if any, to reinstate them in a timely fashion by paying to each of them a sum of money equal to that each would have earned as wages during the period commencing 5 days after the date on which each unconditionally offers to return to work to the date of Respondent's offer of reinstatement, less any net earnings during such period. The Board has found that the 5-day period is a reasonable accommodation between the inter- ests of the employees in returning to work as quickly as possible and the employer's need to ef- fectuate that return in an orderly manner. 13 Ac- cordingly, if Respondent herein has already reject- ed, or hereafter rejects, unduly delays, or ignores any unconditional offer to return to work, or atta- ches unlawful conditions to its offer of reinstate- ment, the 5-day period serves no useful purpose and backpay will commence as of the uncondition- al offer to return to work. 4 Having further found that Respondent, on Octo- ber 2, 1978, terminated and has thereafter refused to reinstate William Robinson, Edward Williams, and Lester Robinson, Jr., in violation of Section 8(a)(1) of the Act, we shall order the Respondent to offer the three above-named employees immedi- ate and full reinstatement to their former positions or, if those positions no longer exist, to substantial- ly equivalent positions, without prejudice to their seniority or other rights privileges, dismissing, if necessary, persons hired on or after October 2, 1978, and to make them whole for any loss of earn- ings they may have suffered as a result of the dis- crimination practiced against them.' 5 I': Drug Package Company, Inc , 228 NLRB 108 (1977). Member Jen- kis., for the reasons set forth in the partial dissent in Drug Package Corn pan). Inc.. would begin Respondent's backpay obligation from the date of each striker's unconditional offer to return to vi rk " Aplit iVe', Shiphuiddin ad Drr Drok ( ,mpany 2 N RB 1637 ' h Abdile and (;odmwil. Inc., 241 NLRB No 5 (1')79), enforcement denled oi: oither grounds 103 LRRM 2029, 87 LC 111,753 Ist Cir 19791 I:.r lihe rea Tis stated in his di,scnl in Abilrtie rand Govxdwill. Inc.. C'ontinucd CARONEX COAL COMPANY 78! 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In each of the above instances where backpay is appropriate, such backpay and interest shall be computed in the manner prescribed in F. W. Wool- worth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).16 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Carbonex Coal Company, Tulsa, Oklahoma, its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act, in violation of Sec- tion 8(a)(1) of the Act, by threatening its employ- ees with mine closure because of the employees' union activities; by interrogating its employees about their union activities; by creating the impres- sion of surveillance of its employees' union activi- ties; by soliciting grievances of its employees in order to discourage the employees' union activities; by soliciting employee assistance in determining its employees' willingness to form a company union; by informing its employees it would be futile to support the United Mine Workers of America; by directing its employees to remove union stickers from their helmets; by threating its employees with termination of employment because of their union activities; by soliciting its employees to support an- other labor organization or a company union; and by promising its employees economic benefits in order to discourage their union activities. (b) Laying off and terminating its employees and refusing to reinstate them because of their protect- ed concerted activities or their union activities. (c) Refusing to bargain in good faith with United Mine Workers of America, as the certified collec- tive-bargaining representative of the employees in the following described unit: All production and maintenance employees, in- cluding truck drivers, employed by Respon- dent at its mining operation near Chelsea, Oklahoma, excluding all other employees, coal processing and loading employees, office cleri- cal employees, guards and supervisors as de- fined in the Act. (d) Subcontracting its hauling operations to a greater extent than its subcontract operations exist- ed prior to June 20, 1978, and refusing to employ Member Penello would begin Respondent's backpay obligation from the date that each of the three above-named employees submitted an uncon- ditional offer to return to work. Io See, generally, Isis Plumbing & Hearing Co., 138 NLRB 716 (1962). its own employees in its hauling operations, with- out negotiating with the Union. (e) In any other manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is deemed to be necessary to effectuate the policies of the Act: (a) Bargain in good faith with the aforesaid labor organization, upon its request, as the exclusive rep- resentative of the employees in the above-described appropriate unit, and embody in a signed agree- ment any understanding reached. (b) Offer immediate and full reinstatement to Junior A. Berry, Ed Davenport, Derrell L. Jordan, Jimmy E. Legates, Charles F. Lewis, James M. Lewis, Jerry D. Magness, Wayne M. Moore, Rex Daniel Rymer, Paul D. Pinkston, James Presfield, Howard W. Robinson, Roy J. Stephenson, William R. Swick, Hooley G. Thompson, Howard W. Timms, Mark W. Walker, and Pete Triplett to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered as a result of the discrimination practiced against them in the manner set forth in the section of this Decision entitled "The Remedy." (c) Offer the unfair labor practice strikers, upon their unconditional applications to return to work, immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, dismissing, if necessary, persons hired on or after October 2, 1978, and make them whole for any loss of earnings they have suffered or may suffer as a result of the discrimination practiced against them in the manner set forth in the section of this Deci- sion entitled "The Remedy." (d) Offer immediate and full reinstatement to em- ployees William Robinson, Edward Williams, and Lester Robinson, Jr., to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their se- niority or other rights and privileges, dismissing, if necessary, persons hired on or after October 2, 1978, and make them whole for any loss of earn- ings they may have suffered as a result of the dis- crimination practiced against them in the manner set forth in the section of this Decision entitled "The Remedy." CARBONEX COAL COMPANY 783 (e) Reestablish its own hauling operations to the extent those operations existed prior to the June 20, 1978, election. (f) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (g) Post at its Rogers Mine near Chelsea, Okla- homa, copies of the attached notice marked "Ap- pendix."' 7 Copies of said notice, on forms pro- vided by the Regional Director for Region 16, after being duly signed by Respondent's representa- tive, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (h) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. l? In the event that this Order is enforced by a Judgment of a United Staltes Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Following a hearing at which all parties had an op- portunity to present evidence and cross-examine witnesses, the National Labor Relations Board has found that we violated the National Labor Rela- tions Act, as amended, and has ordered us to post this notice. WE WILL NOT threaten to close the mine be- cause our employees engage in activities on behalf of United Mine Workers of America, or any other labor organization. WE WILL NOT interrogate our employees about their union activities. WE WILL NOT create the impression that we are engaged in surveillance of our employees' union activities. WE WILL our employees to determine if other employees would prefer a company union to the United Mine Workers of Amer- ica. WE WILL NOT solicit grievances from our employees in order to discourage their union activities. WE WILL NOT inform our employees it would be futile to support the United Mine Workers of America, or any other labor orga- nization. WE WILL NOT our employees to remove union stickers on their clothing. WE WILL NOT threaten to discharge or lay off our employees because of their union ac- tivities. WE WILL NOT solicit our employees to sup- port an independent union or a labor organiza- tion other than the United Mine Workers of America. WE WILL NOT promise our employees eco- nomic benefits in order to discourage their union activities. WE WILL NOT discharge or lay off, and refuse to reinstate or otherwise discriminate against, our employees because they engage in protected concerted strikes or activity on behalf of a labor organization. WE WILL NOT refuse to bargain in good faith with United Mine Workers of America, as the certified collective-bargaining represen- tative of the employees in the following de- scribed unit: All production and maintenance employees, including truck drivers, employed by Car- bonex Coal Company at its mining operation near Chelsea, Oklahoma, excluding all other employees, coal processing and loading em- ployees, office clerical employees, guards and supervisors as defined in the Act. WE WILL NOT subcontract our hauling oper- ations to a greater extent than such operations existed prior to June 20, 1978, or refuse to employ our employees in our hauling oper- ations, without negotiating with the Union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. WE WILL bargain in good faith with the aforesaid labor organization, upon its request, as the exclusive representative of the employ- ees in the above-described appropriate unit, and embody in a signed agreement any under- standing reached. WE WILL offer immediate and full reinstate- ment to Junior A. Berry, Ed Davenport, Der- rell L. Jordan, Jimmy E. Legates, Charles F. CARONEX COAL COMPANY 783 .......... 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lewis, James M. Lewis, Jerry D. Magnes, Wayne M. Moore, Rex Daniel Rymer, Paul D. Pinkston, James Presfield, Howard \V. Robin- son, Roy J. Stephenson, William R. Swick, Hooley G. Thompson, Howard M. Timms, Mark W. Walker, and Pete Triplett, to their former positions or, if those positions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, and WE WILL make them whole for any loss of earnings they may have suffered as a result of the discrimination we practiced against them, plus interest. WE WILL offer the unfair labo:r practice strikers, upon their unconditional applications to return to work, immediate and full reinstate- ment to their former positions or, if those posi- tions no longer exist, to substantially equiv- alent positions, without prejudice to their se- niority or other rights and privileges, dismiss- ing, if necessary, any persons hired on or after October 2, 1978, and make them whole for any loss of earnings they may have suffered or may suffer as a result of the disc rimination practiced against them, plus interest. WE WILL offer immediate and full reinstate- ment to employees William Robinson, Edward Williams, and Lester Robinson, Jr., to their former positions or, if those positions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, dismissing, if neces- sary, any persons hired on or after October 2, 1978, and WE WILl. make them whole for any loss of earnings they may have suffered as a result of the discrimination we have prac- ticed against them, plus interest. WE WILI. reestablish our hauling operations to the extent those operations existed prior to the June 20, 1978, election. CARBONEX COAL COMPANY DECISION STATEMENT OF THE CASE J. PARGEN ROBERTSON, Administrative Law Judge: This case was heard on December 6, 7, 11, 12, 13, 14, 15, 18, and 19, 1978, and on January 10, 11, 12, 15, 16, and 17, and February 6, 1979, at Tulsa, Oklahoma. The charges in Case 16-CA-7964 and 16-CA-8116 were filed by the United Mine Workers of America, herein the Union, on June 29, 1978, and October 2, 1978, respec- tively. Case 16-CA-7964 was amended on three occa- sions on July 5 and 10 and August 4, 1978. The charges in Cases 16-CB-1507 and 16-CC-609 were filed on Oc- tober 10, and 19, 1978, by the Company. A consolidated complaint issued in Cases 16-CB-1507 and 16-CC-609 on November 13, 1978. The consolidated complaint alleges that Respondent Carbonex Coal Company (hereafter called Respondent in view of the settlement of the cases against the Union) violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, by threatening its em- ployees with various action because of their support of the Union, by laying off a number of employees, and by engaging in surface bargaining. The allegations against the Union included Section 8(b)(3) and 8(b)(4)(i) and (ii)(A) of the Act by insisting to impasse on contract pro- visions prohibited by Section 8(c) of the Act. A settle- ment agreement was approved in Cases 16-CB-1507 and 16-CC-609 and a motion to sever those cases from the consolidated complaint was granted. Upon the entire record' and from my observations of the witnesses, and after due consideration of the briefs filed by General Counsel, Respondent, and the Union, I hereby make the following: FINDINGS AND CONCIUSIONS The Evidence Respondent is engaged in surface mining of coal at various mines in northeast Oklahoma. The mine involved in these proceedings is one located in Rogers County near Chelsea, Oklahoma. 2 In the spring of 1978, Respon- dent's employees at the Rogers mine became interested in representation by the United Mine Workers of Amer- ica. 3 A representation petition was filed pursuant to which an election was held on June 20, in which a ma- jority of the employees cast valid ballots designating the Union as their bargaining representative. On June 28, the Union was duly certified. The complaint alleges that numerous 8(a)(1) violations occurred during the union organizing campaign and after the June 20 election; that Respondent laid off 18 employ- ees after the election because of its employees' union ac- tivities; and violation of Section 8(a)(5) by Respondent engaging in surface bargaining and various other bar- gaining violations. On October 2, 1978, the employees struck Respondent's Rogers mine. The picketing stopped during November 1978. However, the facts failed to show that the Union has ended the strike or made an un- conditional offer for the employees to return to work. A. Calendar of Events During February 1978, the Union started an organiz- ing campaign at Respondent's Chelsea, Oklahoma, mine. The Union's motion to strike which wsas filed on June 11 is granted to the extent that I will not consider as evidence Resp. Exhs 18(a) and 18(b). hose exhibits were not received during the hearing. Itoweser, as to, the remainder of the Union's motion and the entirety of Respondent's motion to strike, which was received on July 19, those motions are denied. I view the materials which tle two parties seek to strike to con- stitute nothing more than portions of their briefs and they will be consid- ered as argument but not as eidenlce in the case. a Jurisdiction is not in issue. The complaint alleges, the answer as amended admits. ad I find that Respondent meets the Board's standards for the assertion of jurisdiction. :' The complaint alleges, the answer as amended admits, and I find that the Union is a labor organization as defined in the Act. _ A . CARBONEX COAL COMPANY 785 The campaign culuminated in an NLRB election on June 20, 1978, among employees in the unit: All production and maintenance employees, includ- ing truckdrivers, employed by Respondent at its Chelsea, Oklahoma mining operation. The Chelsea mine which is located in Rogers County was referred to as the Rogers mine or, occasionally, as the Chelsea mine. Following institution of the organizing campaign there followed a chronology of events which led to this litigation. 4 1. March On March 20, Mine Superintendent Jim Smith talked to employee James Presfield about the union campaign. Smith said, "Frank Podpechan 5 had heard rumors of a union." Smith appeared concerned that he would lose his job. Presfield asked, "What would Mr. Podpechan do if it did go union?" Smith replied, "He would shut it down." Subsequently, between March 20 and the June 20 elec- tion, Smith and Presfield had frequent conversations about the Union. During one of those conversations Presfield asked Smith why the title to the vehicles was all in the name of Chaparral. Smith replied that "all the equipment was under the name of Chaparral. Carbonex didn't even own a paperclip, so that they could shut it down if it went union." 2. April On April 15, Pit Foreman Diacon told employee Wayne M. Moore that he already knew about the Union, that he had heard about it before Moore told him. Superintendent Jim Smith, during the period of time between the last of April and the first of June, talked with employee Jerry D. Magness at the Stagecoach Tavern in Chelsea. Smith told Magness that the equip- ment belonged to Chaparral, that Carbonex was not any- thing but just the people working there, and if the Union came in Frank Podpechan would probably just shut the mine down. Smith told Magness that the truckdrivers probably started the instigation of the Union. During late April or early May, employee Presfield was called into a meeting with Vice President Richard Growitz, Superintendent Smith, and Respondent Attor- ney Richard Barnes. Presfield was called into the meet- ing to determine the employees' feelings toward the Union. Presfield stated that the employees felt Frank Podpechan had lied to them about a raise and that they felt two of the foremen treated the employees with fa- voritism. Presfield said "that if a vote was taken that day, that they would probably go union." After Presfield left the meeting, Smith was directed by Growitz and Barnes to let the employees know there were alternatives to the United Mine Workers Union. Smith was told not to volunteer anything about the alternatives unless the employees brought up the Union in discussions with him i Unless otherwise noted, evidence supporlting the following incidents stands undenied Respondentl's president Chaparral is a sister corporation *,f (arb';illex or any of the pit foremen. If that occurred, the employ- ees were to be told that either the Operating Engineers7 or an independent union were alternatives to the UMW and that Podpechan would negotiate with an indepen- dent union. 3. May On May 1, Supervisor Paul Minnick8 asked employee William Swick if Swick had signed a union card. Swick said no, and asked Minnick what it was. Minnick ex- plained and told Swick he should not sign one. On May 7, a Sunday, Swick talked with Superinten- dent Smith at the mine. The Union was discussed and Smith said "if the Union came into the mine, they would shut the mine down and they would bring in construc- tion companies to haul the coal-remove the coal from the ground and process it." Smith showed Swick a finan- cial statement from March which indicated Carbonex was making a profit at the Rogers mine.9 Smith told Swick, "Petroleum Resources' ° had the land and Chap- arral Productions had all the equipment. That everything had been charged to these two." Smith also showed Swick business cards of three construction companies and said "one of these companies would come in and move the coal." On May 8, Frank Podpechan spoke to an assembly of employees. Podpechan said he had heard rumors about the Union and he wanted to know what the problems were. None of the employees replied. Podpechan said, "I feel it would make everyone more comfortable if I would remove the supervisors." The supervisors then left the meeting. Podpechan then said, he felt that if the men would get together and talk to him-have a committee to get together with him and tell him what the problems and complaints were-that he felt that they could work them out. Podpechan said he was not supposed to say anything about the Union, but "he felt that most of the problems were in management and stuff that could be worked out if we would get a committee of men to talk to him." Following Podpechan's meeting with the employees, Podpechan talked with employee Wayne M. Moore. Podpechan asked Moore if he had any problems and what Moore's problems were. Podpechan said he be- lieved Moore was in favor of the Union. Podpechan said ]he Operating Engineers represents some of Respondent's employees al other mines. including the "Porunm" mine. The record demonstrates and I find that Minnick was a supervisor and agent of Respondent at all times material. Respondent stipulated that all those alleged as supervisors were in fact supervisors and agents with the exception of Minnick and Antone Hopper. Both Minnick and Antone Hopper (who was identified to employees as the vice president in charge of maintenance) directed employees in their work Hoth were held out as supervisors by management. Richard Groswitz admitted during his testi- mony that Minnick was a supervisor during June 1978 1 find that Hopper and Miniick were agents of Respondent at all times material. 9 Approximately I or 2 weeks before his conversation with Smith, Swick had been told by Frank Podpechan that the Rogers mine was not making a profit. " A sister corporation of Carhonex CARHONEX COAL COMPANY 785 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union was not the answer: "The Union is no good- all they do is grab your money and run." On May 11, Wayne M. Moore attended a meeting in- volving employees and Frank Podpechan at the Cattle- man's Restaurant. Podpechan told the employee that he would not work under the United Mine Workers. Podpe- chan said they had the Operating Engineers at Porum and that he would recognize the Operating Engineers or he would be agreeable to an independent union. Superintendent Jim Smith testified that on May II, prior to an NLRB representation case hearing, a meeting was held in Growitz' office which included Attorney Barnes, Superintendent Smith, Vice President of Sky Re- sources' Bill Preacher, and Growitz. The "general tenor" of the discussion was Carbonex would be broken up, done away with, if the employees voted in the Union. Preacher said they were going to form a compa- ny called Petroleum Reserve Resources which would be a wholly owned subsidiary of Petroleum Reserve Corpo- ration and they would own the oil and coal leases so that Carbonex would have no control over any coal whatso- ever. Barnes and Growitz identified the truckdrivers as the troublemakers and union organizers and they intend- ed to get them out of Carbonex. The tipple operators were also identified as union organizers. Barnes men- tioned "the Dixie-Tipple Corporation" which would be formed "to haul the coal and process it and load it for Carbonex." Barnes said, "That if it went UMW, which they could not negotiate with, that these-that Carbonex Coal could be dissolved. These other corporations were merely corporate officers, which could not be organized, and had no people or laborers. We could hire an inde- pendent contractor to come in and mine coal leases for Petroleum Resources reserved and lease equipment. The coal could be hauled by the Dixie-Tipple Corpora- tion."' 2 Later on May 11, at the NLRB hearing Growitz, Barnes, and Smith were talking. Barnes asked the Hear- ing Officer if he had heard anything about Lonestar Op- erations. The Hearing Officer replied no but that he had heard that the independent contractor who was taking out the coal for Lonestar Steel had hired some previous Lonestar miners and that the Mine Worker; was claim- ing jurisdiction. Barnes then turned and said to Growitz, "Don't you make that same silly mistake and hire back any people." On May 12 or 13, employee Presfield had a conversa- tion with Superintendent Smith. Smith said he had talked with Podpechan and some of the others in reference to getting a company union, and he wanted to know how the men felt about it. Smith told Presfield that, since he was one of the working men, he felt that Presfield could talk to them better. Presfield admitted that hie did go out and talk to some of the employees about a company union and that he reported back to Smith that the men were cool on the idea, but that some of them had open minds. Presfield suggested to Smith that he set up a meeting between the men and Frank Podpechan to dis- 11 The parent corporation. owner of Carbonex and ils sister corpora- tions. 12 The parties stipulated that the tipple operation was sold to a compa- ny named Chelsea-Tipple Corporation in August 1978. cuss the company union. Smith called but Podpechan was out. However, Smith talked to Growitz on the phone in Presfield's presence. Presfield testified that Smith told Growitz, "Dick, they are believing this shit about me getting fired, and I think they will go for the company union now." Smith testified to a May 13 conversation with Podpe- chan. Podpechan told Smith that it was his "intention to come over Monday morning and fire me, but he was sur- prised that the men liked and" respected Smith. Podpe- chan said he felt that, as mine superintendent, Smith was responsible that the men were unhappy and were want- ing to form a union. Podpechan said, "We are going to work this out. We cannot negotiate with the UMWA and I will not. If they want to form an independent union or belong to Operating Engineers, I will discuss it. I will absolutely not negotiate with the UMWA." Podpe- chan also told Smith "to inform the men that if they formed an independent union, that he would sit down and negotiate with their representative. Or if they wanted to appoint representatives from the different group, like the drivers and the operators and so forth, he would meet with them at any time and discuss this possi- bility. But if they voted UMWA, that Carbonex would shut down" (and Smith) and they would be out of work. On May 13, Podpechan told Smith he wanted the "Peabody" tipple cleaned up so he could move "the troublemakers, those truckdrivers and tipple operators out of there and make it separate." Employee Paul Pinkston testified to four conversations he had with Foreman Lonnie Wassom between May 15 and June 20. Pinkston asked Wassom what he thought of the Union. Wassom said it was no good and he opposed it. Pinkston testified that during each of the conversa- tions Wassom said that Podpechan had said he would close the mine if the employees went union. In late May Growitz, Podpechan, and Smith met. Smith testified that Podpechan stated that the reason that the UMW was interested in the Carbonex operation was because it was the largest mine in that immediate area. Podpechan said he wanted to cut the number of employ- ees to 30 employees, that the UMW would not have gone after the mine if they had limited the number of employees to 30 or less. Podpechan wanted to immedi- ately lay off sufficient employees to reduce the work force to 30. However, Smith advised Podpechan to wait until after the election and Podpechan agreed. Podpe- chan also mentioned that he had "toyed" with another idea of making each pit a separate mine so that each mine would have a limited number of employees and that way they would be separately operated and in dif- ferent company names so as not to be a target for a union organization. 3 :a Podpechan did not specifically deny Smith's testimony regarding this late May conversation. Podpechan testified that he did not recall a conversation between himself, Growitz. and Smith regarding the layoff. I was impressed with Smith's demeanor. He appeared straightforward and candid when responding to questions from all parties. In large measure his testimony regarding matters other than his opinion of mining oper- ations was uncontested I credit Smith's testimony regarding the late May conversation. CARBONEX COAL COMPANY 787 4. June In late May or early June, Pit Foreman Bill Rogers was asked by employee William Robinson what he thought about the Union and what would happen. Rogers answered, "Frank Podpechan would shut down before he would sign a contract." Employee Jerry Magness was told by Superintendent Smith that Carbonex had ordered two new haul trucks for June delivery. The haul trucks transport the coal from the mine to the tipple where it is loaded for ulti- mate delivery. Around June 1, Relief Foreman Bill Rogers had a con- versation with employees Lester Robinson and Ed Dav- enport, Jr., regarding the Union. Davenport testified that he and Robinson asked Rogers how he thought the elec- tion for the Union was going to go. Rogers replied that he did not really know but he did know that if the Union were elected the mine would shut down because he had known Podpechan some time and Podpechan would carry through what he had been saying he would do. Lester Robinson corroborated Davenport's testimony. On June 1, employee Jimmy Legates was asked by Foreman Bill Rogers how he was going to vote. Legates and other employees present told Rogers that they did not know. Rogers told them if they voted that Frank Podpechan was going to shut the mine down. Rogers said they would be laid off and would not have jobs. Former Mine Superintendent Smith testified that, a few days before his June 6 termination, Frank Podpe- chan told him to contact an employee named Bo Bean, that Bean was interested in starting a company union. Smith drove over to where Bean was working and told Bean "that Mr. Podpechan had asked him to get a group of men together to try to form a company union." On June 5, Jimmy Legates asked Foreman Jim Diacon if he thought Frank (Podpechan) would shut the mine down if (the employees) voted Union. Diacon replied, "Yes, he knew [Podpechan] would. This place isn't nigger rich like a lot of you guys think it is." On June 6, Foreman Bill Rogers again asked Jimmy Legates if he was going to vote for the Union. Employee Timothy Pinkston testified of a June 6 meeting between employees and Frank Podpechan at a restaurant near Chelsea. Podpechan told the employees that job favoritism would stop, that people would be promoted according to seniority, and there would be better working conditions. Podpechan said he would not bargain with the mine workers because of the violence in strikes. Podpechan said he had one mine under the Oper- ating Engineers and he felt he should keep all his mines under that union. On cross-examination Pinkston testified that he recalled Podpechan saying, "If it went union, you would not work under me. You would work under somebody else."' 4 William Swick testified that Jim Smith asked him, on June 6, "Bill, would you please remove those [union] stickers [from your helmet] just for me." According to Swick, Frank Podpechan also made a statement about " Podpechan admitted telling his employes, "If you choose to join the United Mine Workers, you will choose to have no coal mine because of economic reasons." the union stickers Swick was wearing on his helmet on June 6. Podpechan said, "Aren't you about two weeks early?" Employee Hooley Thompson testified that, on June 6, Richard Growitz asked him what he thought of the Union. Thompson said he had not given it much thought. Growitz asked how he was going to vote. Thompson answered that he did not know. Growitz asked what he thought of an independent union. Thomp- son replied that he did not think much of it. Frank Podpechan talked with Jerry Magness about 2 weeks before the June 20 election. Podpechan asked what he thought about Jim Smith being terminated. Magness replied that he did not like it. Podpechan asked what he thought about the Union. Magness told Podpe- chan that it looked like the Union would go in. Podpe- chan said that he culd probably live with a private union or just "our own union or Operating Engineers," but that he just could not afford to operate under the UMWA; that he would just have to close the mine down. During a June 6 conversation with Foreman Rogers, Jimmy Legates was told by Rogers, "If we vote he could tell us boys how it was going to be. That he used to be the pit foreman at Porum for Podpechan and if we voted the Union in he'd do us the same way he'd done Porum. Laying them off and thinning them out. Just gradually fading away to nothing." On June 8, Wayne Moore asked Foreman Diacon if he thought that Frank (Podpechan) would shut the mine down if it went union. Diacon replied, "Yes, he probably would shut it down." On June 10, Growitz said to William Swick, "I don't know if you are the union organizer." Swick replied, "Well, I don't know if I am the union organizer or not, but I'm going to vote for the Union on the 20th." Fol- lowing that Growitz told Swick, "You should consider your future." Growitz admitted he may have made the above statements to Swick in joking. On June 13, James Presfield asked Richard Growitz where he stood with Frank and with the Company. Growitz replied, "As long as a man did his job it didn't make any difference what he had said or done." Presfield told Growitz he had signed a union card. Toward the end of the conversation Growitz said, "Carbonex cannot afford UMWA." On June 14, Foreman Jim Diacon asked employee Erick Long how the Union was doing. James Presfield testified that, on June 15, the vice president in charge of maintenance, Antone Hopper, took him a side and asked, "I want to know-I have heard that you were a union organizer, and I want to know why. I want to know why you would be so stupid to organize something that was going to cost you your job? Safety men are always on the company side." The following day, June 15, Presfield asked Hopper if the Company was still mad at him. Hopper said he had heard around the office that they were mad at Presfield and Presfield was going to be fired. The record contains several references of antiunion speeches by Growitz and Podpechan on June 19, the day before the election. Ed Davenport testified that Growitz CARBONX COAL COMPANY 787 788 DECISIONS OF N'ATIONAL LABOR RELATIONS BOARD was the principal speaker. Davenport recalled that Growitz said the Company could not see any way that they could operate with the United Mine Workers repre- senting the men-that they could not pay the royalty on the coal that the Mine Workers wanted. Growitz said the men at the Porum mine had received a tonnage bonus and that the Rogers mine could come up with a "likewise plan" (tonnage bonus) by bringing in the Oper- ating Engineers or forming an independent union. Growitz pointed out some financial statements indicating the Company had been operating at a loss for about 6 months. One employee, William Swick, said he had seen papers showing the mine was operating at a profit. Growitz said he would be glad to go over the papers with Swick after the meeting. Davenport said Frank Podpechan also talked at this meeting. Podpechan said that the employees might be able to get along with the UMW, but that "he couldn't and wouldn't." Davenport said that Growitz told the men that the Company could simply recognize the Operating Engineers if the employ- ees wanted or they could form an independent union by choosing a board or group of men that would represent them. Timothy Pinkston testified that Growitz said Rogers employees would be getting $150 more per month begin- ning the following month. Pinkston recalled Podpechan saying that he would accept either the independent union or the Operating Engineers but that he would not bar- gain with the Mine Workers. William Swick testified that Growitz told them, "If [you] don't bring in the United Mine Workers and we went for the independent union, they were prepared to initiate a tonnage bonus system-or some kind of a wage bonus system in the amount of $150 a month." Erick Long remembered Growitz telling the employ- ees that "they could give us a $150 more for the Compa- ny union." Long recalled Podpechan saying that "he wouldn't work with the UMWA." Richard Growitz testified that he read a prepared text to the employees on June 19. The text was received in evidence. However, Growitz, when asked if he respond- ed to questions from employees, answered, "Doggone if I know. I may have. I really don't know." Subsequently Growitz testified in detail regarding William Swick ques- tioning his claim the Company was losing money. Then in response to a question from Respondent's attorney, Growitz testified that he said nothing that afternoon other than what was contained in his written speech and his response to William Swick. 5 Employee Lester Robinson testified that he was ap- proached by Frank Podpechan about 2 hours after the polls closed on June 20. Podpechan said to Robinson, "It looks like you voted yourself out of a job." Podpechan then walked away. William Swick, in his role of union observer during the election, challenged the ballot of Foreman Paul Min- nick. After the election Swick went up to Minnick, shook Minnick's hand, and said, "No hard feelings, 1' In view of Growitz' varying response to similar questions posed by Respondent's attorney and the attorney for General Counsel and the Union, I do not credit his version of the June 19 speech. Paul." Minnick replied, "There sure is, Bill, there sure is." Jimmy Legates testified that he overheard a conversa- tion between Foreman Bill Hill, Jim Diacon, and Lonnie Wassom immediately after the election results were an- nounced on June 20. Hill told Diacon and Wassom, "The man said get all the equipment in that you can get in. He's going to fold her up." Legates testified that Frank Podpechan was known as "the man" around the mine. On the day after the election, Hooley Thompson was told by his foreman to go home, that it was too muddy and wet to do anything. Later that day he was called by Respondent's secretary and told not to come back to work unitl they called him. Thompson testified that before the election he was never told it was too muddy or wet to work on days similar to the one after the elec- tion. Howard Robinson testified that, prior to the June 20 election, he averaged working 6 to 7 days a week. On June 20 or June 21, Robinson received a phone call from Carbonex Coal's secretary, Sandy Hagglebush. Haggle- bush told Robinson not to report back to work until called. Hagglebush gave no reason why Robinson was not to report to work. Robinson stated that he had never been told not to report to work prior to the election. Robinson came to the mine on June 23, and was given one-half day's work moving a drill inside. On June 26, Robinson asked Mine Superintendent Bill Benesla if he had been laid off. Benes stated he did not know but that he ought to know in 2 or 3 days. Approximately 3 days later Robinson picked up his check and found a dismissal slip attached to the check. He has never received a reason for his dismissal. On June 21, James Presfield asked Bill Benes when the (negotiation) meetings would start. Benes replied, "Frank Podpechan does not recognize the UMW, nor will he ever negotiate with them because you don't have a con- tract until you negotiate." Employee Edward Williams testified that Frank Pod- pechan walked up to him on June 22 and said, "Ed, you are right. You don't have a job. I won't negotiate under these conditions." Williams had told Podpechan on June 19, "If the Union doesn't get voted in in a few weeks I won't have a job anyway." James Presfield talked with Paul Minnick on June 23. Minnick told Presfield that, since the Union was voted in, he was "screwed because he was an old man." Pres- field asked Minnick what he meant, did he think Frank (Podpechan) would shut it down. Minnick replied, "I know damn well he will shut it down." On June 23, Wayne Moore was told by his foreman, Jim Diacon, that they were going to run straight through the weekend. However, later that day, Diacon came back and told Moore they were taking Ed Lewis off the third shift and Lewis was going to run Moore's shift. Diacon told Moore to leave, that they would call him when they needed him. Moore, who operated a 922 front-end loader, testified that both loaders were operat- ing that day, June 23. '6 Jim Smith was fired as mine superintendent in early June 1979. CARBONEX COAL COMPANY 789 Moore went back to the mine between June 23 and 29, and talked with Superintendent Bill Benes. Moore asked Benes, "I guess they didn't run the mine on seniority anymore-they just worked to kiss asses." Benes "said it was Ed's [Lewis'] machine and that they were going to take him [Lewis] off the third [shift] and put him on [the loader]." Ed Davenport testified that on June 27, or a couple of days before that, Respondent moved some of its equip- ment away from the Rogers mine. Respondent moved a couple of dozers, all the haul trucks, and the joy drill and compressor. On June 28, Superintendent Benes told Jimmy Legates that Podpechan was decreasing the work force and that Legates was on the list.17 Legates asked Benes if Podpe- chan was going to negotiate with the Union. Benes re- plied, "No [Podpechan] didn't have to talk to them, the mine workers. If they called [Podpechan] would not talk to them. There are ways of getting around these things." Legates said, "Like contracting?" Benes said, "Yes." On that same day Benes had told Legates that he had con- tracted the hauling to Flood & Sons Trucking. Legates asked Benes, "If we hadn't voted for the UMWA and would have voted for the Company independent union that they wanted, if we all would have had our jobs." Benes answered, "Most likely [you] would have all kept working like [you] were." Benes told Legates that Re- spondent had moved all their trucks to Porum and that "Frank [Podpechan] wanted to move the man-o-walk [dragline] to Porum." Benes said there would probably be things that they could do with the rest of the mine to get around the Union. He told Legates that he had a list of 21 to lay off but that Podpechan could not lay them all off at once without getting into trouble. On June 28, employee James Lewis was called into Mine Superintendent Benes' office. Benes told Lewis that he was going to lay Lewis off. Benes told Lewis that this was not something he wanted to do, that the reason for it was because of the Union trying to come into the Company. Immediately before his conversation with 17 Respondent admitted in its answer that the following employees were laid off on the date opposite their respective names: Benes, Lewis had worked his full shift plus 1-1/2 hours' overtime on June 28. On June 29, Ed Davenport was laid off. When Daven- port reported to work Foreman Bill Rogers told him of his layoff. Rogers said they were in the process of shut- ting the mine down and that they were going trhough the seniority list and laying the third-shift welders off. Rogers assured Davenport that it was not because of Davenport's work that he was being laid off. Rogers said it was because they were in the process of shutting the mine down and that Mr. Podpechan had told everyone all along that, if the Union were voted in, he would shut down the mine and that was what they were in the pro- cess of doing. Timothy Pinkston was also laid off by Bill Rogers on June 29. Rogers handed Pinkston his check soon after Pinkston reported for work. Rogers said, "Podpechan warned you boys he would shut it down." Also on June 29, James Presfield talked with Superin- tendent Benes regarding layoffs. Benes told Presfield, "I am going to lay a bunch of men off as soon as I talk to Frank to decide what to do with the men. They aren't laid off but they really haven't been working since the election." Later that day Presfield and Benes had an- other conversation. Benes said he was going to lay some more off. Presfield said he hoped he was not one of the men to be laid off. Benes replied, "You are not today. I will be strictly honest with you. You will be in the next few days." Presfield said, "Well, if you are going to lay me off, why don't you just lay me off with the rest of the men?" Benes said, "What were you doing at the union meeting at the park yesterday?" Presfield testified there had been a union meeting at a park in Allewe the day before. Presfield was laid off on June 29. Richard Growitz testified that, within 10 days follow- ing the June 20 election, Respondent contracted out all the haul truck operations at its Rogers mine. He testified that, with the exception of Donald Timms,' 8 every haul truckdriver was laid off within 10 days after the election. 5. August In early August employee William Robinson discussed the Union with Foreman Bill Rogers. Robinson asked Rogers what he thought of the Union and what was going to happen. Rogers replied, "I told you guys that if it went Union that Frank would shut down and lay a bunch of you guys off." Negotiation sessions started during August. The Union was certified as the employees' bargaining representative on June 28. During August, negotiation sessions between the Union and Respondent occurred on August 3, 23, and 24. a. August 3, 1978, negotiations (1) Union security In his letter to the Union dated July 10, Respondent's attorney stated Respondent's position relative to union security: ' Timms was an oiler on a dragline at the tine of the hearing herein Junior A Berry Ed Daven Derrell L. Jordan Jimmy E. Legates Charles F. Lewis James M. Lewis Jerry D Magness Wayne M Moore Rex Daniel Rymer Paul D. Pinkston James Presfield Howard W. Robinson Roy J Stephenson William R. Swick Hooley G. Thompson Howard M. Timms Mark W. Walker Pete Triplett June28 June 29 June 29 June 27 June 28 June 28 June 29 June 23 June 27 June 29 June 29 June 20 June 20 July 14 June 21 June 28 June 28 June 28 CARBONEX COAL COMPANY 789 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Our client has strong philosophical objections to any contract that requires a free American to become a member of any labor organization or any other group in order to retain his employment. We have found that the requirement of joining a union forecloses us from hiring a substantial number of qualified employees who have personal convictions strongly opposed to unionism. We simply cannot afford to eliminate from possible hiring these sub- stantial numbers of persons. On August 3, Respondent presented the Union a coun- terproposal contract. That proposal contained the fol- lowing provision: Section 2.1 The parties recognize the right of em- ployees to belong to or refrain from belonging to a Union and neither the Company nor the Union shall discriminate against any employees by reason of their exercise of these rights. The parties discussed union security at the August 3 session. The Union's western regional director, Steve Galati, attended that session as one of the Union's spokesmen. Galati testified'9 that Mr. Growitz spoke on behalf of Respondent regarding union security. Growitz stated that the Company had strong philosophical feel- ings about the union-security clause and, inasmuch as they had employees that voted against the Union, he was going to protect their rights. For no reason would he enter into an agreement that would bind those employees to have to belong to a union. Respondent's attorney, Richard Barnes, suggested there may be a middle ground, some sort of maintenance of membership. Galati said he suggested the parties negotiate concerning the union-security clause but that Mr. Barnes replied no. (2) Management rights Respondent's August 3 contract proposal contained the following: Article 4 Management Section 4.1: The provisions of this Agreement, except as herein expressly set forth and provided, are not intended, and shall not be understood or construed, to infringe upon, interfere with, or limit the exercise by the Company through its; managerial supervisory officers and employees, of the normal functions and rights of ownership and management; including all of the rights, powers, functions and au- 'g I have credited Steve Galati's testimony regarding the negotiation sessions. I found him a straightforward witness and his testimony was corroborated by the testimony of Richard Noble. To the extent his testi- mony conflicts with the testimony of Galati. I have not credited Richard Barnes. I found Barnes' August 9 letter to the Union (see infra) contained material misrepresentations and exaggerations which were never ex- plained. Therefore, I am unable to credit his testimony to the extent it conflicts with the credited testimony of Steve Galati Although Richard Growitz testified at length, his testimony did not include the negotiations. Barnes was Respondent's only witness regarding negotiations. Both Galati and Noble testified on behalf of General Counsel. thorities of the Company which it had prior to the Union becoming the certified bargaining representa- tive of the Company's employees; nor shall any- thing contained herein be construed as giving to the Union any voice or authority with respect to the conduct, operation and management of the business, property, or affairs of the Company. Section 4.2: It is expressly agreed that the Compa- ny has the sole right to make and enforce such rules and regulations relating to operations and to mainte- nance, operation and protection of machinery and equipment, and to the safety of employees and to the performance of the work and duties of their em- ployment as shall not be inconsistent with the ex- press provisions of this Agreement. Section 4.3: Among the other rights which the Company specifically retains (although not intended as a complete list, and by way of example only) are the rights to determine the location of the business, including establishing, relocation and/or closing op- erations, departments, divisions and/or plants; to select, hire, promote, transfer, assign, lay off, recall, or relieve employees from duty; to determine the means, methods, processes and schedules of oper- ations and production; to subcontract work and to arrange for work to be done inside or outside the plant by others, and by other divisions or affiliates of the Company; to plan, direct, and control oper- ations; to schedule and assign work to employees; to fix, alter, or change the workweek, the work day, the number of hours of work, the number of shifts, and the starting and ending time of each, and make shift assignments; to establish reasonable time and quality standards within each classification for each work operation; to terminate, merge or sell the business or any part thereof, purchase, trade or ac- quire additional plants, or liquidate, merge, consoli- date, or dissolve divisions and/or the Corporation; to determine the continuance of its operating de- partments; to establish and require employees to ob- serve reasonable company rules and regulations; to maintain order and to take disciplinary action for just cause, which may include, but not be limited to, oral warnings, written warnings, suspension from duty without pay, or discharge, as in the Compa- ny's judgment the case may warrant; to establish new jobs, abolish, modify, and change existing jobs and job content; to increase, combine, or separate job content, or decrease the number of jobs or in- terchange employees or work as needed; to change materials, processes, products, equipment, and oper- ations; to achieve the highest level of employee per- formance consistent with safety, good health and sustained effort. Galati testified that the August 3 discussion concerning Respondent's management-rights proposal was limited to his statement to Respondent that the clause was unaccep- table as it removed from the bargaining table those items that (the Union) felt were issues that the Union intended to bargain on. CARBONEX COAL COMPANY 791 (3) Negotiations and the pending unfair labor practice charges Steve Galati testified that, during the August 3 session, Richard Barnes stated that the unfair labor practice charges should be resolved as Respondent could not liti- gate and negotiate at the same time. Respondent's spokesman stated the layoff had been economic and de- manded that the Union withdraw the unfair labor prac- tice charges. Richard Noble responded on behalf of the Union that, if agreement could be reached, the Union would talk to the employees that were involved in the charges and work toward the ends of resolution of those charges consistent with the Union's duty to fairly repre- sent those employees. After the August 3 negotiation sessions the Union mailed a new contract proposal to Respondent. b. August 23, 1978, negotiations; negotiations; and the pending charges Again, in the August 23 session, Barnes brought up the pending unfair labor practice charges. Galati recalled Barnes asking, "What is the Union's position toward these unfair labor charges? We are going to insist upon the resolution of these unfair labor charges. Let the Union get them off the table. We are not going to sit here and let you use them as a lever to bargaining, and we demand that you drop them." At the end of the ses- sion, Growitz remarked, "We still have the ULP charges hanging over our heads and we cannot and will not liti- gate and negotiate at the same time." c. August 24, 1978, negotiations (I) Management rights Galati asked Barnes if a reserved-rights clause would be acceptable to Respondent rather than their proposed management-rights clause. Barnes replied that for 15 years his firm has consistently rejected management- rights clauses that contained a reserved-rights doctrine and he was not at that time going to change one word in the management-rights clause they had presented. Galati told Barnes that the management-rights proposal re- moved from the bargaining table those things that the Union wanted to bargain for-"it took away the rights of these people to file grievances on them and all the other things that were bargainable issues." Galati listed to Barnes several specific items which he felt the man- agement-rights clause removed from bargaining, includ- ing employee discipline, grievances, safety and health, job rights, job bidding, the assignment of work, subcon- tracting of work, changing of work hours and shifts and rules and regulations, and establishment of new jobs. Galati remarked to Barnes, "You only left out one sen- tence, the Company will, the Union won't and we will break your damn arm if you try." Galati told Barnes that he would submit a counterproposal to the management clause. (2) Negotiations and the pending charges At the end of the August 24 session, Growitz stated, "We still have the unfair labor charges hanging over our heads. We will not be able to litigate and negotiate at the same time." 6. Late August-early September Foreman Jimmy Diacon told employees William Rob- inson and Tim Pinkston, in late August and early Sep- tember, that "Frank [Podpechan] would shut it down before he would sign a contract." 7. September The final negotiation sessions occurred on September 14 and 15, 1978. a. September 14, 1978, negotiations (1) Management rights The Union made a counterproposal to Respondent's management clause: The management of the mines, the direction of the working force and the right to hire and discharge are vested exclusively in the Employer. The Em- ployer retains each and every right it heretofore had accept [sic] as it is relinquished by this Agree- ment. Respondent rejected the above counterproposal. Barnes stated that for 15 years his firm had consistently rejected a management-rights clause that contained the reserved-rights doctrine. (2) Successorship provision The Union's contract proposal would bind the Em- ployer and its successors. At the September 14 meeting, Barnes told the Union that he had no intention of ham- stringing his client's right to sell its property, subcontract or lease any part of it. Prior to this meeting Barnes had told the Union that their successorship clause was unlaw- ful and unreasonable. At the September 14 meeting, Barnes said he would not hamstring his client from sell- ing any portion or leasing any portion of the mine. (3) Mine health and safety On August 19, the Union submitted a contract propos- al which included an article on health and safety. The provision included the establishment of a mine health and safety committee. The committee would be com- posed of miners. The provision required training for members of the committee. The committee's duties were to include inspections for unsafe or unhealthy conditions with the right to require the removal of all employees from a hazardous area. However, a provision of the arti- cle permitted the removal of an employee from the com- mittee if the employee's action in closing down an area was found to be arbitrary or capricious. The article also provided that union officials would have access to the mine at the request of management or the mine health and safety committee. The article provided for coopera- tion between management and the committee in the de- velopment of mining plans; it provided for the preserva- tion of individual employee rights to work under safe CARBONEX COAL COMPANY 791 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and healthy conditions; it provided for a procedure to re- solve disputes concerning unsafe and unhealthy condi- tions; and it provided for workmen's compensation cov- erage and settlement of health or safety disputes. Barnes commented on the Union's safety proposal on September 14. He told the Union that it was unnecessary to have all these rights spelled out because all were pro- vided under OSHA law. Barnes said the Company had the right to make any rules and regulations over and above OSHA. Galati asked if it was his intent to imple- ment these rules and regulations without input from the Union. Barnes replied that was their intention. Galati asked, "That excludes our safety committee?''" Barnes re- plied, "There is no need for a safety committee or a mine committee at the mine. The Company will handle those problems. That is a managerial function." Barnes said they would not negotiate those matters under health and safety. b. September 15, 1978, negotiations (1) Employee appraisals Respondent informed the Union they were going to implement an appraisal. Barnes said they would furnish the Union with a copy of the appraisal form. However, Galati testified the Union was never furnished a copy of the form. Respondent spokesman said the Union could have no input into the appraisal unless and until disci- plinary measures are taken. If an employee objected to how Respondent appraised his job, he could take it up with his foreman or the superintendent, buit the Union would have no right to intercede or sit in with the em- ployee. (2) Negotiations and the pending charges The Union was told that unless the unfair labor prac- tice charges were withdrawn, Respondent would have no time to prepare for the litigation of the cases. They would have no time to negotiate. Galati asked Barnes, "Do you mean we are not going to have any more negotiating sessions?" Barnes replied, "That is correct." Barnes or Growitz then said, "In the course of preparation for the litigation of the unfair labor practice charges if we have a couple of hours during the day, we will let you know and we will negotiate." Galati replied, "We [are] prepared and ready to negotiate at any time, but on a 2-hour notice it would be rather diffi- cult for me to get from Denver down here and be pre- pared on such short notice as that." 20 Although the Union has requested negotiations since September 15, Respondent has refused to meet unless the Union first makes counterproposals regarding the layoffs. The employees voted on September 29 to strike Re- spondent. Prior to the vote the employees discussed the layoffs and Respondent's bargaining. An employee, Ray Martin, who had attended one of the September negoti- ating sessions, told the employees at the meeting that he believed Respondent was not trying to reach a bargain, or get a contract. Testimony indicated that the employ- 20 The hearing in this matter had been set for December 6, and the parties notified before the September 15 session. ees, during the September 29 meeting, also discussed the subcontracting of the hauling operations and Respon- dent's threats to close the mine because of the Union. 8. October On October 2, a number of Respondent's bargaining unit employees struck Respondent's Rogers mine. Testi- mony indicated the picket signs read "unfair labor strike," or "unfair labor practices." On October 2, William Robinson returned home and did not report to work at the Rogers mine because of the picket line. Foreman Paul Minnick called Robinson's father and told him to tell Robinson not to come back to work until they called him. Some 6 or 7 weeks later Robinson talked to the then mine superintendent, Gallo. Robinson asked Gallo about going back to work. Gallo had Robinson fill out a form listing the jobs he could do. Robinson asked how long it would be before he could go back to work. Gallo replied, "It would be a few weeks because we got some legal matters to go through." Paul Minnick called employee Edward Dean Williams on October 2, after the strike started. Minnick told Wil- liams that he could not return to work until he was called. Minnick also called Lester Robinson, Jr.'s father and told him to tell Lester not to return to work until he was called. Neither Edward Williams, Lester Robinson, Jr., nor William Robinson have been recalled since their October 2 layoffs. Around October 15, Hooley Thompson asked Paul Minnick how everything was going out at the mine. Minnick replied, "They didn't have but 8 or 9 men working-that the Company couldn't afford the Union." 9. November Some 6 or 7 weeks after October 2, the picket line was removed at the Rogers mine. Shortly after that, on No- vember 13, Lester Robinson, Jr., went into the mine and talked with the mine superintendent, Gallo. Robinson filled out forms listing what jobs he could perform. Gallo told him that "they had a lot of legal stuff to go through before they could call us back." 10. December During December, Respondent opened a new mine, the "Defiance Mine." Richard Growitz admitted Re- spondent intends to move the 4600 dragline and some other equipment from Rogers to the Defiance mine. Growitz admitted "a nominal amount of employees" have been hired for the Defiance mine, and that those employees are members of Operating Engineers. B. Conclusions 1. Section 8(a)(l) General Counsel, in the consolidated complaint and amendments at the hearing, alleged:2 ' 2' Unless otherwise noted the following testimony (under Sec. 8(a)(1)) stands undenied and is credited CARBONEX COAL COMPANY 793 (a) Respondent, by the following named supervi- sors, on or about the dates set opposite their names, threatened to close the Chelsea, Oklahoma mining operation if the Union was successful in its attempt to become the collective bargaining representative of Respondent's employees: Richard Growitz-June 19, 1978: Employee Ed Davenport testified 22 that during his June 19 speech to employees, Growitz said that the Company couldn't see any way that they could operate with the United Mine Workers representing the men-that they couldn't pay the royalty on the coal that the Mine Workers wanted. James C. Smith-March 20, several occasions be- tween mid-April and June 1, and May 7: James Presfield, an employee, testified that, on March 20, Smith, in response to his question of what would Mr. Podpechan do if [the Mine] did go union, replied, "he would shut it down." Presfield testified he and Smith had several other conversa- tions between March 20 and the June 20 election. During one of those conversations Presfield asked Smith why the title to the vehicles was all in the name of Chaparral. Smith said, "Carbonex didn't even own a paperclip, so that they could shut it down if it went union." On May 7, Smith told employee William Swick, "if the Union came into the mine, they would shut the mine down and they would bring in construc- tion companies to haul the coal-remove the coal from the ground and process it." Frank W. Podpechan-May 8 and June 6: Employees James Presfield and Wayne Moore testified about incidents involving Podpechan on May 8. However, my examination of their testimo- ny revealed no statements which could be charac- terized as a threat to close the mine. Podpechan met with several employees at a restaurant near Chelsea on June 6. Podpechan admitted telling the employ- ees, "If you choose to join the United Mine Work- ers you will choose to have no coal mine because of economic reasons." Employee Timothy Pinkston testified he recalled Podpechan saying, "If it went union, you would not work under me. You would work under somebody else." Lonnie Wassom-Several occasions between May 15 and June 20: Employee Paul Pinkston testified he had four conversations with Lonnie Wassom between May 15 and June 20. During each of those conversations Wassom told Pinkston that Podpechan had said he would close the mine if the employees went union. Bill Rogers-June 1, 6, and 29, and August : 22 found Davenport to be a straightforward and candid witness I credit his version of (irowitz' June 19 speech (See fn 15, supru ) Rogers told employee Jimmy Legates on June 1, "If (the employees) voted that Frank Podpechan was going to shut the mine down; the employees would be laid off and wouldn't have jobs." On June 6, Rogers told employees Jimmy Le- gates and Tim Sheers, "If we vote he could tell us boys how it was going to be. That he used to be the pit foreman at Porum for Podpechan and if we voted the Union in he'd do us the same way he'd done Porum. Laying them off and thinning them out. Just gradually fading away to nothing." Rogers told Timothy Pinkston on June 29, "Pod- pechan warned you boys he would shut it down." On August 1, he told employee William Robin- son, "I told you guys that if it went Union that Frank would shut down and lay a bunch of you guys off." Jim Diacon-June 5 and 8: On June 5, Diacon, in response to employee Jimmy Legates asking if he thought Podpechan would shut the mine down if the employees voted union, said yes, he knew Podpechan would. "This place isn't nigger rich like a lot of you guys think it is." Employee Wayne Moore asked Diacon, on June 8, if he thought Podpechan would shut the mine down if it went union. Diacon replied, "Yes, he probably would shut it down." Bill Hill-June 20: Shortly after the announcement that the Union had won the election, on June 20, Hill told two other foremen in the presence of at least one em- ployee, "The man said get all the equipment in that you can get in. He's going to fold her up." Frank Podpechan was known as the "man" at the mine. Paul Minnick-June 23: On June 23, Minnick told employee Presfield that since the Union was voted in he was screwed be- cause he was an old man. Presfield asked what he meant, did he think Podpechan would shut it down. Minnick replied, "I know damn well he will shut it down." As indicated above, I credit the above testimony which is generally undenied. With the lone exception of the May 8 allegation against Frank Podpechan, all the al- legations are fully supported. The record supports, and I find, that Respondent violated Section 8(a)(1) in each of the above-referenced instances, with the exception of the May 8 Podpechan allegation. (b) Respondent, by the following named supervi- sors, on or about the dates set opposite their name, interrogated its employees relative to their union membership, activities, and desires: Paul Minnick--May 1: Minnick asked William Swick if he had signed a union card, on May 1. CARBONEX COAL COMPANY 793 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bill Rogers-June 6: On June 6, Rogers asked Jimmy Legates if he was going to vote for the Union. Frank W. Podpechan-June 6: Employee Jerry Magness testified that, on June 6, Podpechan asked him what he thought of Jim Smith who had just been terminated. Magness re- plied that he didn't like Smith's termination very much. Podpechan then asked Magness what he thought of the Union. Magness replied that it looked like the Union would go in. Podpechan said that he could live with a private union or the Oper- ating Engineers but that he couldn't operate under the UMWA-he would just have to close the mine down. Richard J. Growitz-June 6: On June 6, Growitz asked employee Hooley Thompson what he thought of the Union. Growitz asked how he was going to vote and what he thought of an independent union. 23 Antone Hopper-June 15: On June 15, Vice President of Maintenance Hopper took employee Presfield to the side and asked him, "I want to know-I have heard that you were a union organizer, and I want to know why. I want to know why you would be so stupid to orga- nize something that was going to cost you your job? Safety men are always on the Company side." In view of Growitz' admission, I credit Thompson's testimony that Growitz asked him what he thought of the Union. In view of the total context of Respondent's antiunion campaign, I find that all the above instances constitute interrogations in violation of Section 8(a)(1). (c) Respondent, by the following named supervi- sors, on or about the dates set opposite their names, created the impression of surveillance of its employ- ees' union activities: James C. Smith-March 20: On March 20, Smith told James Presfield, "Frank Podpechan had heard rumors of a union." When Presfield questioned what Podpechan would do, Smith said he would shut it down. Frank W Podpechan-May 8: In his speech to an assembly of employees on May 8, Podpechan said he had heard rumors about the Union. Later in a conversation with Wayne Moore, Podpechan said he believed Moore was in favor of the Union. 2: Growitz denied he asked any employee how the employee was going to vote but admitted he may have asked how an employee felt about the Union. In view of Growitz' admission, I find it unnecessary to determine whether he asked Thompson how he would vcte. Richard J. Growitz-June 10: On June 10, Growitz told William Swick, "Well, I don't know if you are the union organizer." After Swick told Growitz he was going to vote for the Union, Growitz said, "You should consider your future." Antone Hopper-June 15: As indicated above, on June 15, Hopper told Presfield, among other things, that, "I heard that you were a union organizer." Again, in view of the total context of Respondent's campaign, I find in agreement with General Counsel that the above statements, which stand undenied, violate Sec- tion 8(a)(l). (d) Respondent, by Frank W. Podpechan, on or about May 8, solicited grievances of employees at a time when the Union was conducting an organiza- tional campaign among its employees and in order to induce its employees to forgo their union activ- ity. On May 8, Podpechan asked an assembly of em- ployees what their problems were. When no one re- plied Podpechan excused the supervisors. Podpe- chan then said, he felt that if the men would get to- gether and talk to him-have a committee to get to- gether with him and tell him what the problems and complaints were, that he felt that they could work them out. Podpechan said he wasn't supposed to say anything about the Union, but he felt that most of the problems were in management and stuff that could be worked out if "we would get a committee of men to talk to him." Following the meeting Pod- pechan asked employee Wayne Moore if he had any problems and what Moore's problems were. By the above statements to his employees Podpechan was soliciting grievances in violation of Section 8(a)(l), and I so find. (e) Respondent, by James C. Smith, on or about May 12, solicited an employee to determine the de- sires of his fellow employees relative to the forma- tion of a "Company Union." Smith told James Presfield, on May 12 or 13, that Podpechan wanted to know how the men felt about a company union. Smith suggested that Presfield could talk to the men since he was one of them. Presfield did talk to the men and reported back to Smith that the men were cool on the idea. Presfield suggested a meeting between the men and Podpe- chan to discuss the company union. The above action by Superintendent Smith constitutes illegal interference by Respondent into its employees' union activities. I find it violates Section 8(a)(l). (f) Respondent, by its following named supervi- sors, on or about the dates set opposite their names, informed its employees that it would be futile for them to vote for or support the Union, in that Re- CARBONEX COAL COMPANY 795 spondent would not recognize or bargain with the Union: Frank W Podpechan-May II and June 5, 6, and 19: On May 11, Podpechan told a group of employ- ees at the Cattleman's Restaurant that he would not work under the United Mine Workers. Podpechan said they had the Operating Engineers or he would be agreeable to (the employees') own independent union. I find nothing in the record to support General Coun- sel's June 5 allegation. In a June 6 meeting with employees at a restau- rant near Chelsea, Podpechan told the employees, among other things, that he would not bargain with the Mine Workers because of violence in strikes. At a June 19 meeting Podpechan said that the employees might be able to get along with the UMW, but that he couldn't and wouldn't. Timothy Pinkston recalled Podpechan saying he would not bargain with the Mine Workers. William Benes-June 21 and 28: On June 21, James Presfield asked Superinten- dent Benes when the negotiation meetings would start. Benes replied, "Frank Podpechan does not recognize the UMW, nor will he ever negotiate with them because you don't have a contract until you negotiate." Jimmy Legates asked Benes, on June 28, if Pod- pechan was going to negotiate with the Union. Benes replied, "No [Podpechan] didn't have to talk to them, the Mine Workers. If they called [Podpe- chan] would not talk to them. There are ways of getting around these things." Richard Growitz-June 19: During his June 19 speech, Growitz said the Company couldn't see any way that they could op- erate with the United Mine Workers representing the men-that they couldn't pay the royalty on the coal that the Mine Workers wanted. I find that the May 11 and June 6 and 19 statements by Podpechan and the June 21 and 28 statements by Benes constitute 8(a)(1) violations as alleged in this sec- tion (complaint par. 7 (f)). The statements cited above, which were made by Growitz, have already been dealt with under paragraph b(l), of this section. I find that Growitz' statements violate Section 8(a)(1) as alleged in paragraph 7(a) of the complaint, but do not constitute an expression that it would be futile for the employees to vote for the Union. I find no other statements by Growitz on June 19 which, in my opinion, would consti- tute a violation as alleged in complaint paragraph 7(F). (g) Respondent, by its supervisor James C. Smith, on or about June 6, directed an employee to remove union insignia from his clothing. On June 6, Smith asked employee William Swick, "Bill, would you please remove those [Union] stick- ers [from your helmet] just for me." Respondent of- fered no evidence in denial of Swick's testimony, nor did Respondent attempt to defend Smith's state- ment on any basis. Again, in view of the total context of Respondent's an- tiunion campaign, I find a violation of Section 8(a)(l). (h) Respondent, by Antone Hopper, on or about June 16, threatened an employee with termination of employment in retaliation for his union activities. The evidence reflects that, on June 15, Hopper told James Presfield, among other things, "I want to know why you would be so stupid to organize something that was going to cost you your job?" I find Hopper's statement, which was not denied, con- stitutes a threat of termination as alleged, in violation of Section 8(a)(l). (i) Respondent, by Frank W. Podpechan, prom- ised economic benefits to its employees if they would not support the Union. This particular allegation failed to allege a date. I am unaware of evidence supporting the allegation. In any event, I find that the allegation is not sufficiently specific to afford Respondent an adequate opportunity to defend. Therefore, I find no violation as to this allegation. (j) Respondent, by William Benes, on or about June 28, threatened its employes with termination of employment as a result of the Union's winning the election of June 20. Jimmy Legates asked Benes on June 20, "If we hadn't voted for the UMWA and would have voted for the Company independent union that they wanted, if we all would have had our jobs?" Benes replied, "Mostly likely [you] would have all kept working like [you] were." Also on June 28, Benes told James Lewis that he was going to lay Lewis off. Benes said the reason for it was because the Union was trying to come into the Company. I find the above statements constitute threats of termi- nation in violation of Section 8(a)(1). (k) Respondent by Richard J. Growitz, on Sep- tember 29, threatened to close the Chelsea, Oklaho- ma mining operations and move said operations to Porum, Oklahoma in the event its employees en- gaged in a strike at the Chelsea, Oklahoma mine. I found nothing in the record or in General Counsel's and the Union's briefs regarding this allegation. There- fore, as to this allegation, I find no violation. (1) Respondent, by Frank W. Podpechan on or about June 19, solicited the support of its employees for labor organizations other than the Union, in- cluding the formation of an "independent union." CARBONEX COAL COMPANY 795 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (m) Respondent, by Richard Growitz, on June 19, solicited employees to form a company union. (n) Respondent, by Richard Growitz, on June 19, solicited support of his employees for labor organi- zations other than the Union including formation of an independent union. The above allegations refer to the same meeting during which Growitz and Podpechan both spoke to all Respondent's employees. In matters material to this par- ticular allegation the evidence includes: Podpechan said, the employees might be able to get along with the UMW, but that he couldn't and wouldn't. Growitz told the men that the Company could simply recognize the Operating Engineeers if the employees wanted or they could form an inde- pendent union by choosing a board or group of men that would represent them. One employee recalled Podpechan saying that he would accept either the independent union or the Operating Engineers but that he would not bargain with the Mine Workers. Another employee, William Swick, recalled Growitz remarking, "if [you] don't bring in the United Mine Workers and [you] went for the inde- pendent union [Respondent was] prepared to initiate a tonnage bonus system. Erick Long recalled Growitz saying " they could give us a $150 more for the Company union." Although I recognize some discrepancies in the above- mentioned versions of the June 19 speech, the evidence clearly suggests that I find that Respondent, through Growitz or Podpechan, if not both solicited its employ- ees to either form an independent union or support the Operating Engineers. (o) Respondent, by Richard Growitz, on June 19, promised economic benefits to its employees if they would not support the Union. During his June 19 speech, employee Ed Daven- port recalled Growitz telling the employees that the Rogers mine could receive a tonnage bonus plan by bringing in the Operating Engineers or forming an independent union. William Swick testified that Growitz said, "If [you] don't bring in the United Workers and [you] went for the independent union [Respondent] was prepared to initiate a tonnage bonus system-or some kind of a wage bonus system in the amount of $150 a month. Erick Long remembered Growitz telling the employees that "they could give us $150 more for the company union." As indicated above, I do not credit Growitz' version of this speech. I find the evidence fully supports General Counsel's allegation. The testimony convirces me that Growitz promised a tonnage bonus to the employees if they defeated the Union. I find that action violates Sec- tion 8(a)(1). (p) Respondent, by Frank Podpechan, June 20, threatened an employee with termination of em- ployment as a result of the Union's winning the June 20 election. Approximately 2 hours after the polls closed on June 20 Frank Podpechan told employee Lester Robinson, "It looks like you voted yourself out of a job." I find that comment violates Section 8(a)(1). (q) Respondent by Bill Rogers on or about August I threatened its employees with termination of employment as a result of the Union's winning the June 20 election. In early August employee William Robinson asked Foreman Bill Rogers what he thought of the Union and what was going to happen. Rogers re- plied, "I told you guys that if it went Union that Frank would shut down and lay a bunch of you guys off." I find Rogers' comment violates Section 8(a)(l). (r) Respondent, by Bill Rogers, on or about June 6, threatened its employees with layoff in the event the Union was successful in its organizational activi- ties. On June 6, Rogers told employee Jimmy Le- gates, if [you] vote [Rogers] could tell you how it was going to be; that he used to be the pit foreman at Porum for Podpechan and if [you] voted the Union in [Podpechan would] do you the same way he'd done Porum; laying them off and thinning them out; just gradually fading away to nothing.2 4 2. Section 8(a)(3) The consolidated complaint alleges and Respondent admits that it laid off 18 employees between June 20 and July 14. General Counsel alleges those layoffs were vio- lative of Section 8(a)(3). Respondent contends the layoffs were necessitated by economic conditions. Additionally, General Counsel alleges that Respondent has, since June 28, subcontracted all its hauling and laid off its truckdrivers in violation of Section 8(a)(3). Re- spondent contends that action was also necessitated by economic conditions. General Counsel alleges that Respondent violated Sec- tion 8(a)(3) by laying off 18 employees shortly after the June 20 election. Respondent admits the layoff but denied it was motivated by its employees' union activi- ties. Respondent contends the layoff was motivated by economic factors. Richard Growitz testified that he made the decision to lay off employees at the Rogers mine. According to Growitz, he made the initial decision to reduce the work force in mid-April to early May 1968. Growitz testified that he made that initial decision on the basis of records revealing "productivity, the current runaway cost struc- ture at the mine [and] low operating time of the equip- ment." Growitz testified that he discussed his decision to 24 I make no further finding regarding the June 6 incident involving Rogers in view of my finding under sec. B, I, (a), above, that this same incident constitutes a violation of Sec. 8(a)(l). CARBONEX COAL COMPANY 797 reduce the work force at the Rogers mine with Respon- dent's president, Frank Podpechan, shortly after the de- cision was made, "some time in April." This testimony by Growitz was not supported by other evidence. Frank Podpechan testified in conflict to Growitz. According to Podpechan, his first discussion with Growitz regarding the layoff occurred after Jim Smith was terminated as mine superintendent on June 6. Podpechan recalled a meeting regarding the budget which he recalled oc- curred in early May. Podpechan was asked if anyone suggested "layoff of people" as an alternative to budget problems. Podpechan replied, "I don't think so." He then testified, "I don't see how you can solve a blasting prob- lem with laying somebody off." Podpechan went on to testify that if anything was brought up relative to reduc- tion in force it would have been in the nature of possibly not mining anymore "Fort Scott coal," and if that were brought up at all, it would have been brought up by him (Podpechan). This testimony reflects discussion and rea- soning completely different from Growitz' claim that a layoff, based on productivity, cost, and loss of operating time, was being recommended by Growitz. Additionally, Growitz' testimony is in conflict with that of former Mine Superintendent Jim Smith. Accord- ing to Smith, Growitz told him to hire more employees in early May. 25 Growitz suggested to Smith that they should hire 15 new employees to eliminate the amount of overtime they were then working. Growitz suggested there were some good men at the Porum mine that they might transfer. Respondent, in its brief, points to three key positions which allegedly affected its June-July layoff. Those posi- tions were (a) the truckdrivers, (b) the "992" loaders, and (c) the blasting crews. (a) Truckdrivers: Respondent admitted subcontracting 100 percent of their trucking of coal from the mine to the tipple, within a few days after the June 20 election, without bargaining with the Union. Respondent contend- ed, however, that it subcontracted approximately 70 per- cent of its hauling prior to the election and that its own trucking operation was used solely to supplement the contract hauler. Respondent does not deny that this sub- contract contributed to the layoff of its drivers, but it contends the subcontract resulted from economic factors. In defending its layoff decision, Respondent said the fol- lowing about its trucking subcontract: Although the Company owned four trucks, experi- ence showed that only two, on the average, were operable at any one time. The condition of the trucks were [sic] so poor that they would have to be replaced at a considerable cost if the Company was to continue this supplemental trucking oper- ation. 2a As indicated above I found Smith to be a credible witness. Growitz' testimony was not impressive. He was often evasive on cross and his testimony on material issues, including the testimony regarding the basis for his decision to lay off employees, included different and variate responses to similar questions Growitz' testimony also conflicted in material aspects with testimony from other witnesses, including the tes- timony of Respondent's chief executive, Frank Podpechan. Therefore. I do not credit Growitz' testimony to the extent it conflicts with the testi mony of Smith or other credited evidence In addition, the contractor charge per ton of coal hauled is substantially less than the $1.91 a ton that it cost the Company to operate its own trucks.2 6 However, evidence at the hearing revealed that Re- spondent ordered two new trucks for its Rogers mine in April 1978. Furthermore, evidence at the hearing failed to support Respondent's claim that it cost $1.91 a ton to operate its own trucks. Former Superintendent Smith testified credibly that the trucking subcontractor was retained in March, to demonstrate to Respondent the cost savings which would result from using good trucks. Respondent's trucks were in poor repair and the downtime on those trucks was, according to Smith, causing its trucking cost to average approximately $1.35 per ton. In April, Smith convinced Growitz that his analysis of the subcontract hauling demonstrated that Respondent could operate its own trucks for approximately 95 cents to 98 cents per ton. On the basis of Smith's recommendation, Growitz ordered two new trucks for June delivery. However, upon arrival, those trucks were assigned to Respondent's mine at Porum, rather than to the Rogers mine. (b) "992" loaders: In regard to its layoff of the opera- tors of its front-end loaders (992 front-end loaders), Re- spondent stated: In June, one of the two 992 front-end loaders broke down, eliminating the work for three operators. Our equipment dealer estimates that it will cost approxi- mately $100,000 to restore this machine to good op- erating condition. 27 The evidence revealed that one of the "992s" did break down in early June with a cracked head. Howev- er, the cost of that repair was estimated to be less than $10,000. Respondent did produce its "equipment dealer." However, the equipment dealer, Jim Kuykendall, testi- fied that his repair report was on both 992s and was not made until July 27, long after the early June breakdown and the layoff. Furthermore, Kuykendall testified that his repair report reflects repairs which would bring the equipment into like-new condition. Those estimates were approximately $52,000 per machine. (c) Blasting crews: In regard to its layoff of the blasting crews, Respondent stated: In May, the new management of the Company completed its evaluation of the operation of the Rogers Mine. The Company discovered that the Mine Superintendent had embarked on a massive blasting program utilizing two crews working around the clock on 12 hour shifts. Apparently, the Mine Superintendent was trying to get way ahead in the blasting operations. Unfortunately, blasting in a strip mine is effective only for short distances back from the existing pit area unless you utilize very expensive techniques and explosives. This is why the prudent mine operator does not try to get way ahead on blasting operations. The Mine Super- t6 This statement is contained in a letter from Respondents attorney to the Union dated August 9, 198 2 See fn 26. upra CARBONEX COAL COMPANY 797 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD intendent was consuming large quantities of the very expensive explosives and using ineffectively some of the most expensive techniques. As a result, most of this massive effort was totally useless, and a substantial waste of money. 28 However, at the hearing, testimony from Respondent's witnesses demonstrated that the above statement was not correct. Richard Growitz admitted learning of Mine Su- perintendent Smith's blasting program as early as March 1978. Growitz testified that, on noticing the high cost of explosives, he transferred authority to purchase explo- sives to himslef. By May, according to Growitz, he had brought the explosive cost into line. Additionally, the evidence developed that the high explosive cost was partly due to defective explosives. Eventually Respon- dent received a $33,000 reimbursement and 800 cases of explosives due to those defective explosives. Frank Podpechan testified that he too was concerned about the high explosive cost. However, according to Podpechan, that problem did not contribute to the layoff. Podpechan testified, "I don't see how you can solve a blasting problem with laying somebody off." Growitz testified that, under Smith's program of blast- ing ahead, a layoff was planned in the blasting crew once the blasting progressed three pits in advance of the dig- ging. Smith disputes this assertion, saying the only item of that nature he and Growitz discussed involved over- time and the use of a relief driller. Smith testified that he told Growitz that the blasting ahead program would eventually reduce the amount of overtime and eliminate the necessity of using a relief driller. In any event, Growitz admitted that the blasting ahead program never succeeded in advancing three pits ahead of the digging. Smith anticipated reaching the three-pit advance stage during the summer since a dry summer would permit them to blast more on a daily basis than during the wet, winter months. Again, I credit Smith's testimony. More- over, even Growitz' testimony demonstrated that Re- spondent's August 9 statement to the Union regarding layoff of the blasting crew was a fabrication as to materi- al issues including the timing of Respondent's knowledge of the blasting ahead program. The testimony of Respon- dent's president, Frank Podpechan, demonstrated that there was no real relationship between the alleged high cost of explosives during the cold weather months and the June layoff. On the basis of the above facts, and the record as a whole, I am convinced that Respondent has been in the process of fabricating an economic justification for its June-July layoff, since August 9, 1978, and before. The evidence received at the hearing demonstrated that Re- spondent's August 9 letter to the Union was designed to mislead and confuse consideration of the layoff issue. The letter misrepresented the basis for the trucking sub- contract and the cost of using company trucks. It misrep- resented the extent of the repairs necessary to repair the 992 loader during June 1978. It also misled I:he Union as to the relationship between the "blasting ahead" program 'a See fn. 26, supra. and the layoff.2 9 In view of those misrepresentations, and the record as a whole, I find that Respondent's as- serted economic basis for the layoff is pretextuous.3 0 Although Respondent claimed the layoff was economi- cally motivated, I note that none of the laid-off employ- ees were told anything other than they were being laid off because of the Union. In a speech on the day before the election, the employees were told they could receive a $150-per-month bonus similar to that the Porum em- ployees were receiving, if they voted down the UMW. Although Respondent claimed that it could not afford to repair a cracked head on a 992 loader at a cost of less than $10,000, it was able to purchase four new tractors and three trailers for the Porum mine. The record re- flects that the tractors alone cost $45,000 each. In June 1978, Porum was not as productive as the Rogers mine. Additionally, Respondent is now in the process of open- ing a new mine, the Defiance mine.3 ' The evidence is conclusive that the June-July layoff resulted from the union campaign and victory in the June 20 election. As indicated above, the employees were threatened on numerous occasions, both before and after the election, that a union victory could result in loss of jobs. The threats came from foremen, superinten- dents, and even the president of the Company. Several of the laid-off employees were told by supervision that they were being laid off because Frank Podpechan would not operate under the UMW. Additionally, undenied evi- dence reveals that one of the reasons for the layoff was Frank Podpechan's desire to reduce the number of em- ployees at Rogers mine to a level that would not be so attractive to the UMW. Therefore, I find that Respondent's asserted economic defense is not supported by the record. On the basis of statements to employees, the testimony of former Mine Superintendent Smith, and the record as a whole, I am convinced that economic considerations did not play a substantial part in Respondent's decision to lay off 18 employees in June and July. I am convinced and find that Respondent was motivated in substantial measure by its employes' union activities and in particular by the Union's victory in the June 20 election. The evidence is unrebutted that several of the laid-off employees were told by supervision that they were being laid off because they selected the UMW. No one was told the layoff was caused by economic factors. I have also considered' the timing of the layoffs, and the strong evidence of animus against the UMW,3 2 in determining that the layoffs vio- late Section 8(a)(3). I am aware that the evidence shows that several, but not all, of the alleged discriminatees were engaged in union activity. However, in view of the 29 When Respondent wrote the Union on August 9, it had no reason to anticipate its former mine superintendent would give evidence to the Union and General Counsel. If Smith had not testified there would have been little basis on which the contents of the August 9 letter could have been disputed. 30 The credited testimony of former Superintendent Smith contributed to my determination that Respondent's financial condition was not a sub- stantive factor in the layoff 3' Growitz admitted the name "Defiance" was selected in view of its opening the mine despite the activities of the UMW. 32 Additionally, none of the laid-off employees have been recalled or offered positions at other locations. CARBONEX COAL COMPANY 799 record as a whole, and especially unrebutted evidence that Frank Podpechan planned to reduce the work force so the Rogers mine would not be so attractive to the UMW, I find that all the layoffs were occasioned by the employees' selection of the UMW as their representa- tive. 3 3 In view of the preelection comments by supervision demonstrating that Respondent considered the truck- drivers to be "troublemakers" and among the instigators of the Union, and the June 28 comment by Superinten- dent Benes that one of the ways to get around the Union was to contract out the trucking, I find that Respon- dent's conversion to 100-percent subcontract of its haul- ing operation was in violation of Section 8(a)(3). In reaching this decision, I have also considered evidence demonstrating that the trucking subcontract was initiated in order to consider the wisdom of Respondent investing in new trucks. Respondent's purchases of new trucks for the Rogers mine, and the subsequent diversion of those trucks to Porum, clearly show it intended to continue its own trucking operation. Respondent's 100-percent sub- contract resulted in the layoff of two truckdrivers and violates Section 8(a)(3). 34 3. Section 8(a)(5) General Counsel contends that Respondent engaged in surface bargaining. General Counsel and Respondent agree that Respondent proposed, and the Union agreed to, a tonnage bonus system 35 which went into effect on October 1, 1978. Nevertheless, it is contended that, in consideration of Respondent's entire course of conduct, the evidence demonstrates that Respondent did not engage in bargaining with a sincere intention to arrive at an agreement with the Union. I find that the record sup- ports General Counsel's surface-bargaining contention. Respondent engaged in numerous 8(a)(1) violations in- cluding several threats that it would not negotiate with the UMW and that it would not sign a contract. The record shows that Respondent continually demonstrated strong animus against the UMW in particular. I find most disturbing Respondent's continuous insis- tence that it would not simultaneously negotiate and liti- gate the pending unfair labor practice matter. During the parties' negotiations the original complaint in the instant case was outstanding. The December 6 hearing date was set by order dated August 8, 1978. The evidence demon- strated that Respondent threatened to terminate negotia- tions during the August 3, 23, and 24 sessions unless the Union withdrew its unfair labor practice charges. On September 15, Respondent did terminate negotiations on that basis. Subsequently, by telegram dated October 6, the Union offered to meet to discuss any subject appro- priate for collective bargaining. Respondent responded on October 10, stating "further meetings fruitless unless 5 days after receipt by Company of written union proposal 13 Pyro Mining Company, Inc., 1230 NLRB 782 (1977). s4 As indicated below, I find this action by Respondent also violated Sec. 8(aX5) since it did not bargain over the subcontract. 2 I credit evidence that Richard Growitz, in the June 19 preelection speech, promised the Rogers employees a "tonnage bonus system" if they decided on the Operating Engineers or an independent union rather than UMW (supra). regarding said layoff."3 6 Of course, the layoffs were an issue in the unfair labor practices proceedings but not di- rectly involved in negotiations. There have been no ne- gotiations since September 15. When Respondent broke off negotiations on September 15, the unfair labor prac- tice hearing was over 2-1/2 months off. Nevertheless, Respondent claimed it did not have the time to both con- tinue negotiations and prepare for the hearing. The Board has found that similar refusals to negotiate unless unfair labor practice charges are withdrawn violate Sec- tion 8(a)(5). 37 Further evidence of Respondent's bad faith are two unilateral actions it took immediately after the June 20 election. Prior to June 20, Respondent was supplement- ing its trucking operations with a subcontract trucker, Flood & Sons. This subcontractor commenced hauling in March 1978, at the suggestion of former Mine Superin- tendent Jim Smith. Smith recommended supplementing the trucking operation with a subcontract in order to demonstrate to the Company the wisdom of investing in new trucks. At the time of the election, Respondent was subcontracting to Flood & Sons somewhat less than 60 percent of its hauling. The remaining 40 percent of the hauling was performed by Respondent's own drivers. However, on June 27, Respondent commenced to sub- contract 100 percent of its hauling to Flood & Sons and Respondent's two drivers were laid off. Respondent stip- ulated that it did not bargain over this increase in sub- contract trucking. Additionally, Respondent stipulated that it did not bar- gain with the Union over its decision to lay off 18 em- ployees during the few weeks after the June 20 election. Respondent's obligation to recognize and deal with the Union arose on June 20, when a majority of the employ- ees voted for the Union.3 8 Therefore, I find that Respon- dent's unilateral acts in subcontracting 100 percent of its trucking operations and laying off 18 employees (ap- proximately 30 percent of its work force) violate Section 8(a)(5) and contribute to my determination that Respon- dent was acting in bad faith. On August 9, Respondent's attorney advised the Union of the reasons for its layoffs. As indicated above, I find that letter contained material misrepresentations designed to mislead the Union. That letter contributed to my de- termination that Respondent was not acting in good faith. On August 3, Respondent proposed a management- rights clause which would require the Union, in effect, to waive practically all its rights. Respondent continued to insist on this provision throughout negotiations. Such a proposal in the context of all the circumstances of this case supports a finding of bad faith.3 9 Respondent insist- ed on the management-rights clause despite the Union's s6 These telegrams followed Respondent's October 6 telegram: Assume strike beginning October 2, is Union's final proposal re June layoff, demand written justification for proposal by October 11. Available to meet October 17 regarding this layoff issue if mediator available 3a Griffin Inns.% etc., 1229 NLRB 199 (1977) 38 Valley Oil Co.. Inc., 1210 NLRB 370. 379 (1974). 3a Crystal Springs Shirt Corporation, 1229 NLRB 4 (1977); San Isabel Electric Services, Inc., 225 NLRB 1073 (1976). CARBONEX COAL COMPANY 799 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD willingness to accept a reserved-rights clause similar to the clause Respondent had agreed to in its contract with the Operating Engineers union at its Porum mine. Respondent also refused to negotiate regarding a union-security clause. Again, Respondent took a position contrary to its agreement with the Operating Engineers at Porum. I find this fact contributes to a showing of bad faith in its dealings with the UMW. The credited evidence reveals that Respondent refused to negotiate with the Union regarding its safety and health proposal. The Board has found such actions which would strip the Union of any effective method of representing its members on the issues of safety and work rules expose the employer to a finding of bad faith.40 Therefore, I find that Respondent's course of conduct demonstrates that it has engaged in surface bargaining. Respondent has not engaged in bargaining with a sincere intention to arrive at an agreement with the Union. 4. The unfair labor practice strike General Counsel alleges and Respondent admits that certain of Respondent's employees engaged in a strike at Respondent's Rogers mine. The evidence is uncontested that the employees struck on October 2. Various employ- ee witnesses testified on behalf of General Counsel and Respondent regarding the discussions during the meeting of September 29, in which the strike vote was taken. The evidence indicates that the employees present and voting during that meeting discussed, as bases for the strike, the June-July layoff, the subcontracting of the hauling oper- ations, and Respondent's surface bargaining. Therefore, the evidence clearly demonstrates that the October 2 strike was, as alleged, caused by Respondent's unfair labor practices. The complaint does not allege but uncontested evi- dence clearly indicates that at least three employees were laid off because of the employees' October 2 strike.4' Employees Edward Williams, Lester Robinson, Jr., and William Robinson were informed on October 2 that they were not to return to work until further notice. At the time of the hearing none of the three had been recalled. Following their layoff, both William and Lester Robin- son, Jr., were told by the mine superintendent that they could not be recalled until some legal matters were con- cluded. William Robinson testified that on seeing the picket line on October 2 he pulled over and started talk- ing to the guys on the picket line. He did not cross the picket line but subsequently returned home where he was told that Paul Minnick had called and left word for him not to return to work. Under those circumstances the record reflects that William Robinson, Edward Wil- liams, and Lester Robinson, Jr., qualified as strikers who were terminated because of the strike.4 2 Respondent ad- '° San Isabel Electric Services, Inc., supra. 4, The layoff of the three employees was related to and intertwined with the complaint allegations, especially with the unfair labor strike alle- gation, and I find that the layoff of the three was fully litigated. See The Estate of Alfred Kaskel d/b/a Doral Hotel and Country Club, 240 NLRB No. 150 (1979). 42 Pittsburgh and New England Trucking Co., 238 NLRB No. 227 (1978). vanced no legitimate reason for notifying the three em- ployees of their layoff following the strike. Therefore, I conclude Respondent took this action to punish the three employees because they did not cross the picket line on the day of the strike. All employees who fall into the category of strikers who were terminated because of the strike would be entitled to backpay from the date of their termination. 4 3 CONCLUSIONS OF LAW I. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. United Mine Workers of America is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. By threatening its employees with mine closure be- cause of their union activities; interrogating its employ- ees about their union activities; creating the impression of surveillance of its employees' union activities; solicit- ing grievances of its employees in order to discourage the employees' union activities; soliciting employees' as- sistance in determining its employees' willingness to form a company union; informing its employees it would be futile to support the United Mine Workers of America; directing its employees to remove union stickers from their helmets; threatening its employees with termination of employment because of their union activities; solicit- ing its employees to support another labor organization or a company union; and promising its employees eco- nomic benefit in order to discourage their union activi- ties, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. Respondent, by laying off and thereafter refusing to reinstate its employees named below on the dates oppo- site their respective names, because of its employees' union activities, has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act: Junior A. Berry Ed Davenport Derrell L. Jordan Jimmy E. Legates Charles F. Lewis James M. Lewis Jerry D. Magness Wayne M. Moore Rex Daniel Rymer Paul D. Pinkston James Presfield Howard W. Robinson Roy J. Stephenson William R. Swick Hooley G. Thompson Howard M. Timms Mark W. Walker Pete Triplett June 28 June 29 June 29 June 27 June 28 June 28 June 29 June 23 June 27 June 29 June 29 June 20 June 20 July 14 June 21 June 28 June 28 June 28 5. All production and maintenance employees, includ- ing truckdrivers, employed by the Respondent at its mining operation near Chelsea, Oklahoma, excluding all 4' Abilities and Goodwill, Inc, 241 NLRB No. 5 (1979). CARBONEX COAL COMPANY 801 other employees, coal processing and loading employees, office clerical employees, guards and supervisors as de- fined in the Act, constitute an appropriate unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 6. Since June 20, 1978, the above-named labor organi- zation has been and now is the exclusive representative of all employees in the aforesaid unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 7. By engaging in surface bargaining and not bargain- ing with a sincere intention to arrive at an agreement with the above-named labor organization as the exclusive bargaining representative of all the employees of Respon- dent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 8. Respondent, by engaging in the above-mentioned unfair labor practices, caused and prolonged a concerted work stoppage and strike by various employees in the above-described unit, commencing on or about October 2, 1978, at Respondent's mine near Chelsea, Oklahoma. 9. Respondent, by terminating and thereafter refusing to reinstate its following-named employees on October 2, 1978, because of its employees' involvement in the above-mentioned strike, has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act: William Robinson, Edward Williams, and Lester Robinson, Jr. 10. Respondent, by subcontracting 100 percent of its hauling operations on or about June 28, 1978, and laying off two of its trucker employees (included among those employees named in subpar. 4, above) because of its em- ployees' union activities and without bargaining with the above-named labor organization, has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l), (3), and (5) of the Act. 11. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(l), (3), and (5) of the Act, I shall recommend that it be ordered to cease and desist therefrom, and to take certain affirmative ac- tions designed to effectuate the policies of the Act. My recommended Order will require Respondent to offer Junior A. Berry, Ed Davenport, Derrell L. Jordan, Jimmy E. Legates, Charles F. Lewis, James M. Lewis, Jerry D. Magness, Wayne M. Moore, Rex Daniel Rymer, Paul D. Pinkston, James Presfield, Howard W. Robinson, Roy J. Stephenson, William R. Swick, Hooley G. Thompson, Howard M. Timms, Mark W. Walker, Pete Triplett, William Robinson, Edward Williams, and Lester Robinson, Jr., reinstatement to their former jobs and, upon application, all striking employees, terminat- ing, if necessary, any strike replacements, and make whole each of the named employees for any loss of earn- ings they may have suffered by reason of Respondent's discrimination against them, 44 and that it post appropri- ate notices. Loss of backpay shall be computed and inter- est thereon shall be added in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Flor- ida Steel Corporation, 231 NLRB 651 (1977). 4 5 In the event Respondent does not reinstate the striking employees in the manner set forth above within 5 days from the date of their application, backpay with interest (computed as indicated above), shall commence running from the date on which the 5 days expire. [Recommended Order omitted from publication.] 44 In accordance with the rule announced in .4biilies and Goodwill. Inc.. 241 NLRB No. 5, find Respondent's liability for loss of earnings runs from October 2, 1978, as to employees William Robinson, Edward Williams, and Lester Robinson, Jr. 4' See, generally. Isis Plumbing & Heating Co., 138 NLRB 716 (1962) CARBONEX COAL COMPANY 801