Miami Springs Properties, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Miami Springs Properties, Inc. and James H. Kinley and Associates, Joint Employers and Kenneth Wade Salyer; Joe Salyer; Cleveland Bailey; O'Banion Ritchie; United Mine Workers of America.' Cases 9-CA-9276-1, 9-CA-9276-2, 9-CA-9276 3, 9 CA-9276-4, 9-CA-9276-5, and 9-CA-9368 September 25, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS MURPHY AND TRUESDALE On April 12, 1978, Administrative Law Judge Stan- ley N. Ohlbaum issued the attached Decision in this proceeding. Thereafter, Respondents filed exceptions and a supporting brief, the United Mine Workers of America, herein called the Union, filed exceptions and a supporting brief, and the General Counsel filed limited cross-exceptions and a supporting brief. Re- spondents then filed an answering brief to the Union's exceptions and the General Counsel's limited cross- 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, cross-ex- ceptions, and briefs and has decided to affirm the rul- ings, findings,2 and conclusions3 of the Administrative Law Judge 4 as modified below.5 The General Counsel's exception to the case caption as set forth in the Administrative Law Judge's Decision is sustained and the caption is modi- fied to include the appropriate corrections. 2 Respondents have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an administrative law judge's resolutions with respect to credibility un- less the clear preponderance of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (19501, enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. We also find totally with- out merit Respondents' allegations of bias and prejudice on the part of the Administrative Law Judge, since we do not perceive any evidence that the Administrative Law Judge prejudged the case, made prejudicial rulings, or demonstrated a bias against Respondents in his analysis or discussion of the evidence. The Administrative Law Judge incorrectly designated a number of Re- spondents' unfair labor practices as violations of Sec. 8(aX3) and (1) of the Act. The violations incorrectly designated include: (I) laying off employees on March 7 and/or 10, 1975, prior to the advent of union activity; (2) threat- ening to close in the event of unionization; (3) informing employees that they had been laid off because they engaged in protected concerted activity; (4) issuing threats to employees exhibiting sympathy for the Union or engaging in prounion activity; and (5) promising benefits to employees if they rejected the Union. We correct those errors and find that the above-described unfair labor practices violate only Sec. 8(a)(I) of the Act. 4 In affirming the Administrative Law Judge's finding that Respondents unlawfully laid off employees on March 7 and/or 10, 1975, we do not adopt or rely on his finding that Respondents' president. Joyce, indicated in his March 11 response to the employees' demands that he was willing to rein- The Administrative Law Judge found Supervisor Pat Montgomery's statement of April 10, 1975, to be no more than predictive personal opinion. The Gen- eral Counsel excepts to that finding, contending that Montgomery's statement, when examined in the con- text of Respondent's pervasive and egregious unfair labor practices, constituted an unlawful threat to close in violation of Section 8(a)(l) of the Act. We find merit in the General Counsel's contention. Employee Horace Grant Thompson testified 6 that Montgomery told him, "if you guys keep trying to make Jim Joyce sign a union contract, that I feel he will move out of Magoffin County and if he does go ahead and move out that will be a big loss to Magof:- fin County. It would be one big job less." At the time Montgomery made this statement to Thompson, Re- spondents had already embarked upon an extensive and persistent campaign of threats and reprisals in retaliation for their employees having engaged in pro- tected concerted and prounion activities. As part of this campaign Respondents discharged a large num- ber of employees and even bluntly informed some of these discriminatees that their terminations were the result of their having engaged in protected concerted activities. Other discriminatees were told by Respon- dent's supervisors that any return to work would be contingent upon the employees' agreement to with- hold their support from the Union. Furthermore, Re- spondents threatened other employees with closure of their coal operations in the event the Union was suc- cessful in its organizational effort. When evaluated in this context of unlawful discharges, threats, and repri- sals, Montgomery's remarks become but one in a se- ries of thinly veiled warnings to Respondents' em- ployees to halt their efforts to obtain better working conditions and to obtain union representation or face the most severe consequences. Consequently, we find that Montgomery's statement constituted an unlawful state all employees and resume full operations if certain conditions were met. since it is not supported by the record. I The General Counsel has excepted to the refusal of the Administrative Law Judge to find that Respondents violated Sec. 8(aXI) by curtailing their operations in order to discourage their employees' protected concerted ac- tivities. The Administrative Law Judge indicated that he would have found such a violation had the allegation been included in either of the complaints. The General Counsel's exception is accompanied by a motion to amend the complaint, in conformance to proof. to add the appropriate allegation. In support of its position, the General Counsel argues that the issue was fully litigated at the hearing and that Rule 15(b) of the Federal Rules of Civil Procedure has eliminated ngid pleading requirements. In response, Respon- dents contend that to allow the amendment and find the violation would violate due process since it would punish Respondent without either provid- ing them with reasonable notice of the charge or affording them a full oppor- tunity to present a defense to the purported violation. Our view is that Re- spondents were not fully appraised of the nature of this alleged violation at the hearing and. consequently, the motion to amend is denied. In the view of Chairman Fanning. the allegation that Respondents unlawfully curtailed their operations was fully litigated at the hearing and. accordingly. he would grant the motion to amend and find the violation. 6 Montgomery did not testify at the hearing, and consequently Thomp- son's account of Montgomery's remarks stands uncontroverted in the record. 24q NI.RR No. 22 278 MIAMI SPRINGS PROPERTIES. INC. threat to close in violation of Section 8(a)(1) of the Act.7 Notwithstanding the fact that the Union never was able to demonstrate majority support among unit em- ployees, the General Counsel and the Union except to the Administrative Law Judge's failure to grant a bar- gaining order to remedy Respondent's unfair labor practice violations. In United Dairy Farmers Coopera- tive Association,8 we considered the issue of whether a bargaining order remedy is appropriate in situations where a union has never obtained majority support from unit employees. For the reasons expressed in the majority and concurring opinions in United Dairo, we deny the General Counsel's and Union's request for a bargaining order.9 However, in United Dairy we also recognized that in situations involving serious and pervasive unfair labor practices, our conventional remedies might be inadequate to dissipate effectively the coercive impact created by a respondent's unfair labor practices. Re- spondents here engaged in extensive unfair labor practices, including many unlawful terminations, nu- merous threats of closure in the event of unionization, and promises of benefits for the purpose of deterring employees from supporting the Union. In addition, Respondents have previously been found to have en- gaged in similar serious violations of the Act.' We conclude that the imposition of extraordinary rem- ' Intertherm, Inc., 235 NLRB 693 (1978), and Marathon LeTourneau Com- pany. Gulf Marine Division of Marathon Manufacturing Company. 208 NLRB 213 (1974). '242 NLRB 1026 (1979). 9Chairman Fanning believes that a bargaining order is the only adequate remedy for Respondents' flagrant and pervasive violations of the Act. See his dissenting opinion in United Dairy Farmers Cooperative Association, supra. In view of his colleagues' refusal to implement a bargaining order remedy. Chairman Fanning agrees with the additional remedial measures applied herein. However, he would also apply the additional extraordinary measures implemented in United Dairy in the instant case. He would require that Respondents' president and owner. James V. Joyce. read a copy of the notice to current employees, assembled for that purpose. This measure is necessary to insure that employees receive adequate assurances that in the future their Sec. 7 nghts will be respected. Here, as in Unrted Dair,, it is clear that Respondents' unlawful campaign emanated from the top, and, accordingly. any reassurances that this campaign will stop should also come from the top Furthermore, Chairman Fanning would also order that: (I) the Union be given reasonable access to bulletin boards and all places where notices to employees are customarily posted; (2) the Union be given reasonable access to employees in nonwork areas during employees' nonwork time; (3) the Union be given adequate notice of, and equal time and facilities to respond to, any address made by Respondents to their employees on the question of union representation: and (4) the Union be allowed to deliver a 30-minute speech to employees on working time prior to any Board election which may be scheduled in which the Union is a participant. These additional measures are required, in the opinion of Chairman Fanning, if the pernicious effects of Respondents' extensive campaign of unfair labor practices are to be dissi- pated and if an atmosphere resembling the status quo ante is to be restored. In the context of this case, involving a large, powerful employer in a small. isolated community, the impact of Respondents' unlawful conduct is partic- ularly strong and the lingering coercive effects are particularly difficult to eliminate. Accordingly, Chairman Fanning believes that the strongest avail- able remedial measures are required to remedy adequately Respondents' unlawful conduct. " Joyce Western Corporation and Miami Springs Properties, Inc., Case 9 CA 8642 1 (1974). Not reported in bound volumes of Board Decisions. edies is necessary to alleviate the lingering coercive effect created by Respondents' unlawful conduct. Therefore, we will require Respondents to take the following affirmative steps in addition to the nonbar- gaining order remedies recommended by the Admin- istrative Law Judge: () post copies of the attached notice marked "Appendix B" at their offices and at their coal mining and tippling facilities, include it in any appropriate company publications, and mail it to every employee at his home address, including, but not limited to, all employees on the payroll at the time the unfair labor practices were committed. All such notices, both mailed and posted, shall be person- ally signed by Respondents' president, James V. Joyce;"t and (2) publish in local newspapers of gen- eral circulation a copy of the above notice two times per week for a period of 4 weeks. Finally. we shall order Respondents to supply to the Union. upon re- quest made within 1 year of the issuance of the Order herein, the names and addresses of their current em- ployees.' 2 We believe that the above remedies insure that each employee will be made individually aware of his statutory rights and will personally be assured that those rights will be respected. In addition. by requir- ing Respondents to furnish the names and addresses of all current employees, the Union will be afforded an opportunity to present its views not only to em- ployees on the payroll at the time the unfair labor practices were committed, but also to those employ- ees who have not yet had a chance to formulate their desires with regard to representation, but who are nonetheless affected by the lingering effects of Re- spondents' violations."3 Respondents have also excepted to the Administra- tive Law Judge's backpay remedy.'4 We hereby mod- ify the backpay remedy to provide for the payment of " Joyce owns and serves as president of Miami Springs Properties. Inc Although the Carver tipple is owned by James H. Kinley & Associates. it operates on land leased by Miami Springs. and Joyce conceded at the hear- ing that Miami Springs exercised full control over the operation of the tipple. 12 Similar remedial measures were ordered in J. P Stevens & Companvy Inc.. 240 NLRB 33 (1979)., and United Dairy Farmers Cooperative Associ- ation, supra. See also The Loray Corporation, 184 NLRB 557. 558 (1970) J. P. Stevens and Company, Inc., 157 NLRB 869, 878 (1966). enfd. as modi- fied 380 F.2d 292 (2d Cir. 1967), cert denied 389 U.S. 1005: and H W Elson Bottling Company, 155 NLRB 714 (1965). enfd. as modified 379 F.2d 223 (6th Cir. 1967), cert. denied 390 U.S. 904. i' Man) of the remedies we are applying in this proceeding are dependent, of course. upon Respondents' operation of an ongoing enterprise. In view of Respondents' contention that they have totally ceased their operations. it may prove that some of these additional remedies are inapplicable However. we agree with the Administrative Law Judge's finding that the record is clouded with uncertainty and doubt with respect to Respondents' claim that they have discontinued their business operations. Therefore. we are in accord with the conclusion that the matter is appropriate for investigation and de- termination at the compliance stage in this proceeding 4' Member Murphy would modify the backpay remedy to provide for re- imbursement from March 28, 1975. the date of the unconditional offer to return to work. See the dissenting opinion by Members Penello and Murphy in Abiities and Goodwill. Inc, 241 NI.RB 27 (1979} 279 DECISIONS OF NATIONAL LABOR RELATIONS BOARD backpay to unlawfully laid-off employees until such time as said employees are offered immediate, full, and unconditional reinstatement to, or employment in, their former or substantially equivalent positions, without prejudice to their seniority, or other rights and privileges previously enjoyed, or, alternatively, in the event Respondents are able to demonstrate that they have totally closed their entire operations, until the date upon which Respondents ceased their opera- tions.'5 In all other respects, we adopt the Adminis- trative Law Judge's recommended Order as our own, except that we shall incorporate the modifications specified above. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondents, Mi- ami Springs Properties, Inc. and James H. Kinley and Associates, Joint Employers, Salyersville, Kentucky, their officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Laying off, furloughing, separating from em- ployment permanently or temporarily, suspending, terminating, discharging, or failing to reinstate, reem- ploy, or rehire, any employee for exercising or seeking to exercise any right under the National Labor Rela- tions Act, as amended. (b) Threatening to close, suspend, or terminate op- erations in whole or in part, in violation of the Act, if employees exercise or continue to exercise or attempt to exercise any right under the Act, or if employees join, assist, remain members of, or are sympathetic to any labor organization. (c) Promising, offering, or suggesting to any em- ployee that he or she will be hired, rehired, reinstated, reemployed, or called back to or permitted to work again if such employee withdraws from union ac- tivity, membership, affiliation, or sympathy, or re- frains from exercising any right under the Act, or if the enterprise does not become unionized, or if any union seeking election or designation as the employ- ees' bargaining representative is not so elected or des- ignated; or conditioning employment, reemployment, rehire, or call back to employment upon any employ- ee's withdrawal from union membership, activity, or support, or nonexercise of any right under the Act. (d) Promising economic benefits from Respondents to any employee if Respondents' enterprise is not '5 The Administrative Law Judge inadvertently indicated in the section of his Decision entitled "Remedy" that the employees' unconditional offer of reinstatement was delivered on March 21, 1975, instead of the correct date of March 28. 1975. We hereby correct this error. However, in accordance with the rule established in Abilities and Goodwill. Inc., supra, we will modify the order to provide that backpay for unlawfully discharged strikers will com- mence on the date of the unlawful discharges. unionized by employees, or if employees refrain from exercising any right under the Act. (e) Threatening, announcing to, or informing any employee that he or she was laid off, furloughed, sus- pended, or otherwise separated or terminated from job or work because he or she exercised or sought to exercise any right under the Act. (f) Discouraging or encouraging membership in any labor organization by discriminating with regard to hire or tenure of employment or any term or condi- tion of employment, in violation of the Act. (g) In any other manner interfering with, restrain- ing, or coercing any employee in the exercise of the right to self-organization; to form, join, or assist any labor organization; to bargain collectively through representatives of his or her own choosing; to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; or to refrain from any or all such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer to each of the unlawfully laid-off employ- ees herein immediate and full reinstatement to their former jobs, dismissing, if necessary, anyone who may have been hired or assigned to perform the work they had been performing, or, if their former posi- tions do not exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of earnings they may have suffered (including all regular periodic incremental pay increases on and since March 10, 1975, and also including overtime, holiday, and vacation pay, and hospitalization, medical and insurance benefits, claims, and reimbursements, if any), from the date of their discharge to the date they are offered reinstate- ment, together with interest. Backpay is to be com- puted in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as pre- scribed in Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Alternatively, in the event Re- spondents demonstrate that they have totally closed their entire operations, backpay shall cease to accrue on the date upon which Respondents ceased their op- erations. The employees in question are: Lowell Adams Milton H. Adams Roy Arnett Walter Auxier Monroe Bach Cleveland Bailey Paul Bailey Arlie Holbrook Bobby Ray Howard Joe Randall Minix Roy Von Minix Bubby Montgomery Marcus Pennington Burlie C. Perkins O'Banion Ritchie Joel Salyer Kenneth Wade Salyer Robert Wayne Salyer 280 MIAMI SPRINGS PROPERltIS. IN(C. Calla Howard Conley Turner Henry James Glenny Wisecup Luther Jordan (b) In the event any of Respondents, any corporate or other enterprise in which any of Respondents or any principal of any of Respondents, including hut not limited to James V. Joyce, or any nominee, proxy, dummy. fiduciary, trustee, deputy, partner, associate, manager, superintendent, foreman, supervisor, agent. attorney, subordinate, employee, designee. or person acting for, or in concert with, or subject to, the au- thority of the foregoing, singly or together, directly or indirectly, has or have a controlling interest, resumes, intitiates, or conducts any mining or strip mining, earth-boring, or excavating or moving, prospecting. tippling, coal production or transportation or factor- ing or selling or related operation, in or within a ra- dius of 100 miles of Magoffin, Breathitt, or Knott County, Commonwealth of Kentucky (whether within or outside of the Commonwealth of Ken- tucky), within a period of 10 years from the date of this Order, then and in that event he, she, it, or they and their associates shall, immediately prior to actu- ally commencing any such operation establish and for I year thereafter maintain a preferential hiring list for each such enterprise and location, giving immediate. absolute, and unqualified hiring preference to each of the unlawfully laid off employees herein, listed in paragraph 2(a) of the Order, and thereafter secondary hiring preference to Respondents' other employees displaced from their employment by reason of Re- spondents' having terminated their operations herein under the circumstances described in the Decision of which this Order forms a part, before hiring any other persons at or for any such enterprise or location. Written notice of such preferential hiring requirement shall be publicly and prominently posted and con- tinuously maintained during said year at all of said minesites, enterprises, and locations, their local head- quarters and offices, and at all other places where employees therefore are locally interviewed for hire. hired, or paid. Such posting shall be in such form and wording as shall be provided or approved in advance by the Regional Director for Region 9 and shall not be removed, altered, defaced, or covered by any other material during said I-year period. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, wage scale records and notations, social security payment records, timecards. personnel records and reports, job sheets and cards and records, deeds, minesite and other leases and options, con- tracts for the sale of coal, production records. income records, audits, reports, tax returns, records and documents bearing upon any of Respondents' or any of Respondents' principals' ownership of. or eco- nomic relationship to. other enterprise (in whatsoever torm) or person engaged in ownership or production of any mine, strip mine or related business or opera- tion within a radius of 100 miles of' Magoffin. Breath- itt, or Knott County. Commonwealth of Kentuck (whether within or outside of Kentucky). and all other records, documents. and entries necessar or appropriate to determine the amount of hackpay and other sums and benefits due under and the extent of compliance with this Order. (d) Mail a copy of the attached notice marked "Appendix B"'' to every employee at his or her home address. post copies thereof at their facilities in Breathitt. Knott. and Magoffin Counties, Common- wealth of Kentucky. and include a copy in appropri- ate company publications. Copies of said notice, on forms provided by the Regional Director for Region 9, shall be personally signed by Respondents' pres- ident and owner, James V. Joyce. Copies of said no- tice shall be mailed by Respondents to each employee working in their operations on the date on which such notice is mailed, as well as every employee who worked in their operations during the period of Re- spondents' unfair labor practices. and additional cop- ies shall be posted by Respondents immediately upon receipt thereof, and be maintained by them for 60 days thereafter, in conspicuous places. including all places where notices to employees are customaril\ posted. Reasonable steps shall be taken by Respon- dents to insure that said notices are not altered. de- faced, or covered by any other material. (e) Publish in local newspapers of general circula- tion copies of the attached notice marked "Appendix B." Such notice shall he published twice weekly for a period of 4 weeks. (f) Upon request of the Union made within I year of the issuance of the Order herein, without dela, make available to the Union a list of names and ad- dresses of employees employed at the time of the re- quest. (g) Notify the Regional Director for Region 9. in writing, within 20 days from the date of this Order, what steps Respondents have taken to comply here- with. ' In the event that this Order is enforced by a Judgment of a tiniled States Court of Appeals, the words in the notice reading "Posted h Order ,I the National Labor Relations Board" shall read "Posled Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the N.a- tional Labor Relations Board." APPENDIX B No-rctE To EPI.OYEES POS'iED BY ORI)DIR O() 1IL NAIIONAi_ LABOR REAI.II()NS BOARD An Agency of the United States Government Following a hearing at which all parties had an op- 281XI DECISIONS OF NATIONAL LABOR RELATIONS BOARD portunity to present evidence and cross-examine wit- nesses, the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice. We intend to abide by the following: The National Labor Relations Act gives all em- ployees the right: To engage in self-organization To form, join, or assist any union To bargain collectively through representa- tives of their own choice To engage in activities together for the pur- pose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. Accordingly, we assure you that: WE WILL. NOT violate these rights of yours. WE WILL NOT lay off, permanently or tempo- rarily, or discharge, or fail to reinstate or rehire, any employee because he has engaged in a law- ful strike or because he has exercised or seeks to exercise any other right under the National La- bor Relations Act, as amended. WE WILL NOT threaten to close or shut down our operations because any employee has exer- cised or seeks to exercise any right under the Act, or in case our employees become unionized or join, vote for, or designate a union as their col- lective-bargaining representative or seek to bar- gain with us collectively. WE WILL NOT promise, offer, or suggest to em- ployees that they will be hired or called back to work if they cease their union affiliation or sym- pathies, or if a union is not elected or designated to represent them, or if they stop trying to bar- gain with us collectively, or stop exercising any of their rights under the Act; or that we will grant employees benefits in any such case. WE WILL NOT threaten, announce to, or inform employees that they were laid off because of their union or other activities under the Act, or that they would not have been laid off if they had not engaged in such activities. WE WILL NOT discourage or encourage mem- bership in any labor organization by discriminat- ing with regard to hire, tenure of employment, or any term or condition of employment in viola- tion of the Act. WE WILL NOT in any other manner interfere with, restrain. or coerce any employee in the ex- ercise of their Section 7 rights. WE WILn, offer the following employees imme- diate and full reinstatement to their former jobs, dismissing, if necessary. anyone who may have been hired or assigned to perform the work which they had been performing prior to the time they were terminated or. if their formerjobs no longer exist, to substantially equivalent jobs. without prejudice to their seniority or other rights and privileges previously enjoyed: Lowell Adams Milton H. Adams Ray Arnett Walter Auxier Monroe Bach Cleveland Bailey Paul Bailey Arlie Holbrook Bobby Ray Howard Calla Howard Henry James Luther Jordan Joe Randall Minix Roy Von Minix Bubby Montgomery Marcus Pennington Burlie C. Perkins O'Banion Ritchie Joel Salyer Kenneth Wade Salyer Robert Wayne Salyer Conley Turner Glenny Wisecup WE WILI also pay each of these employees for any earnings they have lost by reason of our dis- crimination against them, plus interest. If no such jobs exist, we shall establish a preferred hir- ing list under which they shall be entitled to hir- ing preferences in the event we or our nominees resume or go into business within the next 10 years within a 100-mile radius from Magoffin. Breathitt, or Knott County, and under which our other employees displaced from their jobs by the termination of our operations following the un- fair labor practices which we have been found to have committed shall he entitled to secondary hiring preference, before any other employees are hired. Such hiring preference shall be valid for a period of I year after any resumption or establishment of operations by us, and notices to that effect will be posted by us at those locations and jobsites. WE WILL send all our employees copies of this notice; and WE WItl publish copies of this notice in local newspapers. WE WILl., upon request of the Union made within I year, supply the Union with a list of the names and addresses of all our employees cur- rently employed. All employees are free to join. assist, or sympathize with any union, or to exercise any other right under the National Labor Relations Act, as they see fit, without discrimination, interference, restraint, coer- cion, or reprisal from us in any shape or form. MIAMI SPRIN(iS PRO()ER I IIS IN(. ANI) JAMES H. KINI.IY & ASS()(IAIIS. JOIN I NM- PI.()YERS 282 MIAMI SPRINGS PROPERIIS IN(. DEC'ISION INIROD( I()ORY SIAI FMINI ISS I:S SIANLEY OIII.BALM. Administrative l.aw Judge: These consolidated proceedings' under the National Labor Rela- tions Act. as amended (29 U.S.C.A. Sec. 151. e seq., Act) were heard before me in Salyersville. Kentucky, from Sep- tember 15 through November 11. 1976. with all parties par- ticipating throughout by counsel, who were afforded and fully availed themselves of opportunity to present evidence and arguments and who, upon unopposed post-hearing ap- plication for time extension, filed voluminous, excellent. and helpful briefs received on January 31. 1977. Aside from the voluminous transcript, encompassing 48 witnesses, these complex proceedings involved the additional submis- sion or receipt of some 334 exhibits with briefs. aggregating close to 2,500 pages.' Record and briefs have been reviewed carefully and considered. The principal issues presented are whether, on the heels of an earlier unfair labor practices case culminating in an adverse Board order, Respondent thereafter continued to engage in a similar course of conduct, violative of Section 8(a)(3) and () of' the Act, including employee layoffs. promises of economic benefits in case of nonunionization, threats of business shutdown in case of unionization, and. finally, actual shutdown, by reason of unionizational ac- tivity and a strike by its employees caused and prolonged by Respondent's violations of the Act. Respondent has in- terposed general denials. as well as a number of affirmative defenses to the allegations resulting in these issues. In the event these violations are established, a further substantial issue is tendered with regard to remedy. All of these matters have been weighed carefully. Upon the entire record and my observation of the testi- monial demeanor of the witnesses, I make the following: FINI)IN(;S AND CON('It'stoNS 1. JURIS)I( TION At all material times, Respondents3 Miami Springs Prop- erties, Inc.. a Florida corporation. and James H. Kinley Associates, a New York corporation. Joint Employers, have jointly been engaged in the mining of coal in Breathitt, Ma- i Consolidated complaint In Cases 9 CA-9276 I through 5 issued through the Board's Regional Director for Region 9 on May 19. 1975. based upon charges filed by Charging Parties on April 9 (Case 9-CA 9276- I: Kenneth Wade Salyer). Apnl 14 (9 CA 9276 2: Joe Salyer), April 15 (9-CA 9276 3: Cleveland Bailey), and April 18. 1975 (9 CA 9276 4: O'Banion Ritchie: and 9 CA-9276-5: United Mine Workers of America). This consolidated complaint is hereinafter referred to as complaint I or C-l. Complaint (here- inafter referred as complaint 2 or C-2) in Case 9 CA 9368 was issued through the Acting Regional Director for Region 9 on July 31. based upon charge filed on May 21. 1975. by United Mine Workers of America. The two cases (C-I and C-2) were further consolidated by July 31. 1975. order of the Acting Regional Director for Region 9. and all were heard together before me. 2 It is not only for this reason, but because of numerous other, continu- ingly intervening trial assignments resulting from engorged Board hearing calendars, that preparation and final issuance of this decision have been regretfully, but unavoidably. delayed. I Name as amended on unopposed motion of the General Counsel at the heanng. Respondent and Respondents are used nterchangeably herein goffin, and Knott Counties. Kentucky. constituting a joint employer of the employees involved herein.4 During the representative 12-month period immediately preceding issu- ance of each of the complaints herein, Respondents sold and caused to be shipped, directly in interstate commerce from their Kentucky locations to places outside of Ken- tucky, coal valued in excess of $50.000. I find that at all material times Respondents have been and are an employer engaged in commerce and in opera- tions affecting commerce within the meaning of Section 2(2), (6). and (7) of the Act: and that at all of those times. Charging Party United Mine Workers of America tUnion or UMW) has been and is a labor organization within the meaning of Section 2(5) of the Act. 11. Al:(il:t) NFAIR AB()R PRA('II I:S A. fi'rct. as fIolntd I. Background a. Imltncldialc./v prior unfiJlir labor prantirey prcieelding Shortl3 prior to the inception of events giving rise to these proceedings. a Board order was issued on December 31. 1974. adopting pro /;rma, in the absence of exception. the decision. findings, conclusions, and recommended order of Administrative Law Judge Samuel M. Singer dated No- vember 21. 1974 (G.C. Exh. 2) in Case 9 ('A 8642 1. hat case, officially noticed here, involved a pattern of behavior by Respondent and its officials closely parallel to that alleg- edly repeated or continued here specifically. economic threats of layoff and actual discharges of employees of the same strip mines here involved, for engaging in concerted activity protected under the Act. That case appears to have been essentially a "straight-line" lhiJtinuton IAhonilum vio- lation.' In the course of his decision adopted by the Board. Administrative Law Judge Singer had occasion to point out that "this is one of those 'rare' cases where there is direct ' See fn. I, supra. Notwithstanding the General Counsel's amendment (on unopposed motions at the outset f trial) of the name of the I-mploser- Respondent in Cases 9 CA 9276 1 through 5 to conform to the name oif the Employer-Respondent as set forth In Case 9-CA 9368, and of the jurisdic- tional allegations of complaint paragraphs 2. 2(a), and 2(b) n Cases 9 CA 9276 I through 5 to conform to the jurisdictional allegations of complaint paragraph 2 in Case 9 CA 9368, it is noted that In the earlier, related Board proceeding. Case 9 CA 8642 . resulting in Board order dated tecember 31. 1974. wherein "Joyce Western Corporation and Miaml Springs Proper- ties. Inc " were (essentially as in Cases 9 CA 9276 I through 5 herein, ex- cept that in these cases the latter compan, is named as '"liamn Springs Property. Inc."), there were findings, conclusions. and an order directed to "Joyce Western Corporation and Miami Springs Properties,. Inc ." as well as a stipulation that both of those corporations were engaged In commerce un- der the Act "and that the) consutite a single employer engaged In com- merce within the meaning of the Act" (G.C. Exh. 2. JD 727 74 dated No- vember 21, 1974. pp. I 2. adopted hb the Board on December 31. 1974. pr, forma in absence of exceptions While normally such a finding and stipula- lion may be regarded as binding and concluslse. it is unnecessary here to determine their effect In view of the General (Counsel's indicated preliminary amendatory motions. (It is additionally noted that the applihction In Magol: fin Circuit (Court for a restraining order against the striking emplo,ees here was brought in the nilme of,. and granted on. March 1. 1975. fon .pphaIiiiIon of "Joyce-Western (Coal Co , Inc. and Miami Spring, Properlies, Inc" (;(' Cxh 391 ' . 1. R B s t 4 'ash,git.,i /,,uii (i , 7 l[ S 9 ( 1962, 283 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence 'of a purpose to violate the statute' "6 (G.('. Exh. 2, JD, p. 7). The Board order required Respondents to: (I) offer unconditional reinstatement, with. backpay to em- ployees unlawfully discharged for having engaged in a law- ful strike: (2) cease and desist from threatening employees with layoffs and economic reprisals for engaging in con- certed activities protected under the Act; (3) cease and de- sist from "in any other manner interfering with, restraining, [or] coercing their employees in the exercise of rights guar- anteed in Section 7 of the National Labor Relations Act": and (4) post, at their minesites, for 60 days after receipt, copies of informative notices to employees accordingly (G.C. Exh. 2, pp. 9 10). Since the Board order is dated December 31, 1974 (id.), it is apparent that the required 60- day posting period could not have expired befbore March 1975, which is precisely the time of the alleged inception of the unfair labor practices at issue here.7 b. Respondents' managerial/supervisorv hierarchy The following is alleged to have constituted Respondents' managerial/supervisory hierarchy at the times here mate- rial. Respondents' responsive pleadings are shown. My resolution of resulting issues, with the basis therefore, are Alleged Capa- city 8/ Pres.; S &A Gen. Supt.; S &A Fore- man; S &A Fore- man; S &A Carl Fore- Salyer man;S &A James Fore- Arnett man;S &A Pat Fore- Mont- man; S gomery & A Millard Fore- Jordon man; (Jordan) S & A Resp. Plead- ing Reso- lution Basis Admit- Found Admit- ted S & A ted in Answer Admit- Found Admit- ted S & A ted in Answer Admit- Found Admit- ted S & A ted in Fore- Answer; man & S credit- ed test- imony 9/ Admit- Found Admit- ted S & A ted in Fore- Answer; man & S credit- ed test- imony Denied Found Credit- S & A ed test- imony 9/;10/ Denied Found Credit- S & A ed test- imony 9/;11/ Denied Found Credit- S & A ed test- imony 9/;12/ Denied Found Credit- S & A ed test- imony 9/;13/ IHartseil Aill (Coonypn Ns . R. .B., 111 F 2d 291, 293 (4th ('ir. 1940) 7Precise posting dates of' the notice to employees in the earlier case have not been shown here, hut the accuracy of' the above statement is apparent from the date (December 31, 1974) of the Board order I S: supervisor within meaning of' Act. Sec. 2(1 ): A: agent within mean- ing of Act, Sec 2(13). 9 Upon Respondent's admissions in its answer concerning its Foremen Bailey and Carpenter, and upon my findings as to the other alleged foremen, and the record as a whole regarding all of the toremen. I find that each of the fobremen was likewise not only a supervisor but also, with regard to his actions on behalf of Respondent herein is-a lis the unit employees. Respon- dent's agent as well, acting within the scope of his authority. In n way has the evidence to this effect been credibly rebutted nor has the contrary been established. See Act, Sec. 2(13). ;0 Credited testimony of Respondent's former tipple worker Robert Way ne Salyer establishes that Carl Salyer was Respondents' tipple toreman under whom he worked and who, on Respondents' behalf' on March 31, 1975. gave him the option of' returning to work on condition that he "drop the Uniton and to not cause any trouble in the future." and that when he (Robert Salyer) declined such a condition Carl Salyer handed him a layoff slip (G.C Exh. 29, signed by General Superintendent Stoddard), together with one for Kenneth Salyer and Joel (Joe) Salyer. Credited testimony of Respondents' other tipple workers Kenneth Wade Salyer (a minister), Joe Salyer, and Marcus Pennington, further establishes substantially the same thing: namely, actions by Carl Salyer, soliciting their return to work on Respondents' behalf upon the same condition as to Robert Salyer. and that the worked at the tipple under Carl Salyer as their foreman and "boss" who, hired, fired, gave time off, distributed paychecks, and gave them and other employees orders with which they complied. Finally, Respondents' own bookkeeper, Ruth Ann Patrick, identified Carl Salyer as Respondents" "tipple . foreman," with authority to hire and fire and give orders to tipple employees (Patrick, a loyal former servitor of Respondents who also testified on their behalf at the trial, attempted unconvincingly at the trial to dilute her sworn statements to this effect in her pretrial afidavit.) Carl Salyer was, without explanation. not called by Respondents. Thus, the foregoing testimony as to his state- ments, actions, and status remains uncontradicted. ii Credited testimony of Respondent's former Bee-lree Mine endloader Luther Jordan establishes that when Jordan applied to Respondents' Pres- ident Joyce for a job, the latter referred him to James Arnett, who hired him, that James Arnett was the "boss" of Jordan's entire crew: and that it was James Arnett who made work assignments and gave time off independently to the crew. Credited testimony of Respondents' former Bee-Tree Mine drill operator Bobby Ray Howard establishes that he, too. was hired by James Arnett, who gave him his work orders, with which he complied, and also time off: that he, tx). regarded James Arnett as his foreman and "boss": that it was James Arnett who laid him off by a layoff slip (G.C. Exh. 24. signed by Joyce): and that James Arnett also attempted. on Respondents' behalfl to induce him to return to work. on condition that he "drop this Union and not vote for it." Former Bee-Tree Mine bulldozer operator Milton H. Adams credibly testified that he. too, was laid off by his Foreman James Arnett. And again. as In the case of ('arl Salyer (rupr, fn. 10). Respondents' loyal former booxkkeeper Ruth Patrick, after some attempted but unpersuasive equivocation. indicated that James Arnett, also classified as a "foreman." had "authority ito hire and fire" and conceded that Arnetl as well as Carl Salyer gave orders to employees, which the latter carried out. Finally, if' more is needed. James Arnett ("James F. Arnett, II") himself testifying as Respondents' own witness identified his job as "Foreman" at the Bee-Tree Mine, with "power to hire and fire," and with about 10 men under him; and that it was he who paid off and laid off the men under him. 12 Credited testimony of Respondents' former Bailey Mine operator Hor- ace Grant Thompson establishes that he regarded Pat Mmntgomery as his foreman and "truck boss." So did Respondent's former employee Bobby Ray Howard, according to the latter's credited testimony, and truck me- chanic Bubby Montgomery who (according to his credited testimony). also testified that Pat Montgomery was the truckdrivers' bss and that, unlike the drisers under him, Pat Montgomery never drovse a coal truck Also, Respon- dents' former truckdriver, Gerald Arnett, Jr.. identified Pat Montgomery as the truckdrivers' loreman and "boss." explicitly so specified to the truckdriv- ers by Respondent's frmer General Superintendent W\'lis, and that Pat Montgomery. who unlike the drivers drove no coal truck. gave the drivers orders, which they carried out Respondents' frmer employee Joe R. Minix's credited testimony is to the same effect Respondents' former book- keeper. Ruth Patrick. identified Pat Montgomnery as the yard "toreman" who "directed the truckdrivers." with 10 or 12 emnplosees in that category under him, to whom he gave rders with which the complied Respondents' for- also shown Name James Joyce James Stod- dard Melvin Bailey Kenny Car- penter 284 MIAMI SPRINGS PROPERTIES. INC. 2. Alleged continuing unfair labor practices To attempt to recreate the situation as it actually unfold- ed, alleged events have been sorted out and will be pre- sented chronologically. Those events involved mining em- ployees at Respondents' following strip-mine operations: Bee-Tree (or "Carver") Mine, Magoffin County. Oakley Creek Road; Bailey (or "Montgomery mer General Superintendent Willis, testifying as Respondents' witness, iden- tified Pat Montgomery as the "truck boss" and "overseer" who worked out of Willis' office with responsibility to "organize" the work to insure its per- formance "without delays" and to effect speedy carloadings. Willis further testified that Pat Montgomery was "in charge of transportation of coal to the tipple." and directed the truckdrivers what to do. According to Willis, while Pat Montgomery had no power to hire and fire, nevertheless his recommen- dations to that end would "carry ...weight" with Willis (cf. Act. Sec. 21 1]). Called as Respondents' witness, Pat Montgomery testified that he was hired by President Joyce as "the truck boss" (Joyce's own designation); that he was the "only truck boss"; that Joyce told him he "would look to you to see that the trucks were out on time and would keep moving": that this is what he, in fact, did, directing the drivers where to go and what to do: that the drivers at all times complied with his orders; and that his recommendation to fire a dnver was carried out. Finally, notwithstanding Respondents' denial in the Answer, and its persisting refusal to concede his status, Pat Montgomery is indentified in Respondents' own payroll record (GC. Exh. 741 as "Fore{- manl.' 3 Credited testimony of Respondents' former Bailey Mine employee, Rocky Jenkins, establishes that Millard Jordon was "in charge of auger" (i.e., hill-bonng equipment) operations there, in the course of which Millard Jordon gave orders to Jenkins and other employees with which they com- plied. (Although Millard Jordon also did some manual work at times, this is not inconsistent with supervisory authonty or status. Some owners of busi- nesses also perform manual, and even menial, tasks.) Former Bailey Mine bulldozer operator Morns Thompson also credibly regarded and character- ized Millard Jordon as the foreman "boss over the auger" there. Respon- dents' own payroll record for the Bailey Mine identifies Millard Jordon as the "Auger Cont.Irollerr' (G.C. Exh. 76), with others as various categones of helpers or laborers at lesser pay. According to Respondents' witness and Bailey Mine Superintendent Melvin Bailey (so characterizing himself), Mil- lard Jordon, who worked directly under Bailey himself, "watched" over and "directed" at least a part of the operation there. telling crew members and their replacements what to do, and they complied with his directions; that Millard Jordon has had 40 years of auger experience and the men working under him none: and that Millard Jordon's responsibility in "overseelingl" the auger operations was, in part, to "minimize its} ... danger." since it is a "very difficult and very dangerous" operation, involving the hazard of the collapse of an entire mountain and burial of all operators as well as equip- ment. Millard Jordon, testifying as Respondents' witness, stated that he had been hired "to train the auger crew" and to "stay around .. . and help them"--an excessively modest perspective of his responsibilities, in view of the aforedescribed credited testimony, including that of Respondents' other witness Bailey and Millard Jordon's own concessions on cross-examination that he was told when he was hired by General Superintendent Willis to "take the auger ... [andl train the men." that he directed the men what to do dangerous work, and that they complied without demur. as did their replace- ments or extra men whom Mine Superintendent Bailey supplied on his (Mil- lard Jordon's) recommendation. Upon the record presented, I am persuaded that Millard Jordon, who was denominated as Respondents' auger controller on their payroll and worked directly under the Bailey Mine Superintendent. responsibly directed the employees who assisted him in the highly hazardous mountain augering, boring, or excavating operations of which he was in charge. If Millard Jordon was not in charge of these men, the concededly highly dangerous but essential mountain augenring-excavation operations would have been unsupervised--a contention I cannot accept. At the very least, Millard Jordon "responsibly .. . directjed]" the augering crew, and therefore had supervisory status under Sec. 2(1 1) of the Act. 14 The somewhat confusing juxtaposition of allegations in the first consoli- dated complaint ("C-I") and the second consolidated complaint ("C-2") will be relieved by consulting Appendix A lomitted from publication] of this decision, which tracks each complaint allegation chronologically and reca- pitulates findings. Branch") Mine, Magoffin County, Montgomery Branch; Miller Mine, Breathitt County. Route 542; Patrick Mine, Knott County; Carver Tipple.' 5 Magof- fin County, Oakley Creek Road; and Yard or "Office." Magoffin County, Oakley Creek Road (between Bee- Tree Mine and Bailey Mine). As has been shown, on the heels of. if not during, the employees' notice posting period in the prior unfair labor practices proceeding against Respondents, resulting in the Board's first order against them, the events here speedily unfolded or continued to unfold. a. March 7 strike and ensuing mass /laoff Credited testimony of General Counsel witnesses Calla Howard and Luther Jordan, Respondents' former mine workers, establishes that as a result of dissatisfaction with working conditions, they and other fellow-workers on Tues- day, March 4, discussed what to do. They decided to ar- range a general meeting of employees on the following day. Wednesday, March 5, to take up improvement of working conditions. Following more talk along the same line among the miners of both the Bee-Tree and Bailey Mines another meeting took place on the evening of March 5, attended by perhaps as many as 30 of Respondents' miners, at which general work dissatisfactions were aired and desired job im- provements (including hospitalization and vacations) were discussed. One of the employees, Shepard, volunteered to have his wife type up their requests and to present it to Respondents' President, James Joyce. This was done. On the next morning, Thursday, March 6, Shepard, accompa- nied by six fellow-miners, presented the typed-up requests (G.C. Exh. 15) to Joyce in his trailer. As he reviewed these requests, according to the men. Joyce expressed sympathy if not assent to some (Christmas holiday, hospitalization etc.), but rejected a pay increase because "the coal business was slow," and invited the miners' emissaries to meet with him again that evening. When they did so, they again met with Joyce in his trailer and emerged with another set of typed papers (G.C. Exh. 16) from Joyce, captioned "THE FOL- LOWING SUBJECTS WERE BROUGHT TO MY AT- TENTION," wherein Joyce addressed himself in the first person to the miners' preceding requests (G.C. Exh. 15). It is noted that the miners' requests (G.C. Exh. 15) are couched in terms of: "We want what we were promised. We are tired of promises. We want action.... You said you would pay the same as Fa[l]con [Mine] pays. You're not keeping up your end of the deal. You're the lowest paying strip job in the co[unty].... We want proff[sic] showing our insurance is paid up.... We were promised two days off at a time at Xmas with pay and we want it .... Ever [sic] man should be paid the same [pay scale].... Local men only we want to work for you because when you ' The Carver tipple, located in close proximity to the Bee-Tree Mine on Oakley Creek Road, serviced all of Respondents' operations here. The tipple not only sifts out dross, but crushes and sorts coal into desired sizes. All of Respondents' crude excavated product was conveyed to the tipple, whence, after processing, the coal yield was transported out via railroad cars. 16 Unless otherwise specified, this and all dates hereafter are in 1975 285 DECISIONS OF NATIONAL ABOR RELATIONS BOARD have worked out Magoffin County and all of the coal is gone what have we got left you can go back to your home land with your barrel full and we will be left holding the bag.... We want to meet with Jim Joyce once a month to talk over benifits [sic] if things don't go right." Joyce's responsive document (G.C. Exh. 16) in turn, is couched in terms of answers to these requests. While prom- ising to "check into" various matters apparently concededly "agreed to" (e.g., Christmas holiday), Joyce's response de- clines "to pay higher wages at this time," while assuring the workers that: "it will take thirty (30) to forty (40) years to mine this area or more. The higher wages and higher price that we sell our coal for will help to speed the use of nuclear power and this is a threat that is only 10 years off ... Don't think coal is Kentucky's only resource. It has potential for everything over the whole United States. However, it takes every employee to help extend the good will needed for a company to come in here with money to make jobs for the men in the county.... This subject [higher pay for rock truck drivers] will be throughly [sic] discussed with all rock truck drivers.... I most certainly want to work with you fellows. I don't ask any of you to do a job that I wouldn't do myself. It takes all of us to make a team and it takes a DAMN good team to make competition. You are all welcome to talk to me individually'7 anytime. I will be as fair as I possibly can be." In view of defenses raised herein and to be considered be- low, that Respondent had determined to lay off employees and terminate operations for "economic" reasons at this time and possible intimations that the employees were aware of this, it is to be noted that (1) men faced with imminent layoff would hardly have presented such demands (G.C. Exh. 15) which clearly looked toward the future and a continuing relationship, not one which has ended or is about to end, and (2) Respon- dent's written responses (G.C. Exh. 16) likewise are not only totally silent about the possibility of an impending layoff or shutdown, but are cast throughout in terms of indefinite con- tinuation of operations. At the trial, Respondents' President Joyce conceded that at no time during these discussions or exchange of documents did he in any way indicate to the employees that he had decided previously to lay them off the next day (March 7) as he now incredibly claims. After giving the miners' spokesmen his written responses (G.C. Exh. 16) to their requests (G.C. Exh. 15), Joyce emerged from his trailer and orally repeated some of the positions in his responses-that he would provide the re- quested extra Christmas day holiday and vacation, but that he could not give them a raise. Again, he said nothing what- soever about a layoff or shutdown, or that business was slow- ing down. ' "1 Emphasis supplied. It will be recalled that this insistence on "individ- ually," as opposed to group or collective discussion, is the same unlawful practice of which Respondents, through Joyce, had just been found guilty by the Board in the earlier case (9-CA-8642-I) described above (G.C. Exh. 2). I The foregoing findings are based upon credited testimony of General Counsel witnesses Calla Howard, Luther Jordan, and O'Banion Ritchie, as well as upon the indicated documentation (exhibits). Joyce's responses of March 6 (Thursday) did not satisfN Respondent's miners. Credited testimony of an impressively consistent array of General Counsel witnesses'" overwhelm- ingly establishes and I find that, as alleged (Cl: paras. 7 & 8), on March 7, Respondents' miners therefore initiated a lawful economic strike against Respondents, commencing in the early morning of that day and that, thereafter. Re- spondents promptly and precipitately effectuated a mass layoff of employees through "layoff' notification distrib- uted on Monday, March 10. or later, but dated as of the preceding Friday, March 7, involving some 18 employees. 2 There is no contention that the employees' strike action was in any' way' unlawful. Credited testimony' of these employ- ees further establishes, and I find, that they had been given no prior notification, indication, or intimation of layoff, and that there was ample work for them in continue to do. No serious or persuasive contention is raised or credibly estab- lished by Respondents as to the work performance of the employees so laid of- 2, nor have they been rehired or re- called." Respondents' explanation for its precipitate mass layoff of these employees swiftly on the heels of their initiation on the morning of Friday, March 7, of their lawful economic strike 2 , is that the mass layoff in relation to the strike was ' I.e,, Lowell Adams, Milton H. Adams, RoN Arnett, Walter Auxier, Monroe Bach ("Back"). Cleveland Bailey, Paul Bailey. Arlie Holbrook. Bob- by Ray Howard. Calla Howard. Henry James. Luther Jordan. Joe Randall Minix. Roy Von Minix, Bubby Montgomery. Marcus Pennington. O'Banion Ritchie, and Glenny Wisecup. It is unnecessary to regurgitate the testimony of all of these witnesses (as well as others) essentially to the same effect- overwhelmingly establishing that Respondents' miners began a stnke in the early morning of Friday, March 7. 12 Date as amended during the hearing. 2 I.e., the 18 listed in fn. 19, supra, with the seeming exception of Paul Bailey who testified that his layoff slip was dated March 31 (and whose layoff. in that event, coincided with the other March 31 layoffs, infra). A 19th employee, Troy Sword, was withdrawn from this allegation by the General Counsel during trial. (Of the large multitude of employees who testified, only one-Cleveland Bailey testified that he received a layoff slip on March 7. rather than on March 10 or later. Upon close observation of Cleveland Bailey, within the record as a whole, I am persuaded he was confused as to the date.) 22 With the possible exception of Conley Turner. considered infra. 2i Following the strike, while at least some employees returned to work at the Bailey Mine seemingly none were recalled or rehired at the Bee-Tree Mine. although there is corroborated testimony that work was carried on there as well as elsewhere. See Remedy infra. 24 This swift reaction bears remarkable similarity to Respondents' response to the earlier lawful "Washington Aluminum" strike of their employees, resulting in the Board order of December 31. 1974, in Case 9-CA 8642 , which has already been described. In weighing issues of the nature pre- sented, it is appropriate to interpret them in the light of Respondents' dem- onstrated past behavior and reactions under similar circumstances, as well as in the light of the remark credibly attributed by its employee, Walter Auxier, to its President, Joyce, upon Auxier's hire in August 1974, that Joyce would not hire anybody who had anything to do with a union, that he "wouldn't operate under a union, that he would move out and quit operating before he would operate under a union." Another of Respondents' former employees. Gerald Arnett, Jr., testified credibly along the same line- that around June 1974, while the employees also were unsuccessfully attempting to organize or unionize, Joyce told him, "Jerr [Arnett]. you'se got a good job here and these guys, they are wanting to get the Union in. Now, I can work under the Union and I can make the Union work for me. But I have cut it [i.e.. payroll] down to approximately a third rather than join the Union. I won't join the Union. now. Rather than join the Union, I will 'shut down' or 'pull out.' " Joyce also told Arnett that "they had tned to bring unions in before and that rather than join the unions, I had shut the jobs down." At the trial. Respon- dents' President Joyce explained his seemingly obdurate insistence on deal- ing with employees "individually" rather than collectively by rather naively asserting it is "very difficult" to talk to more than one person at a time. 286 MIAMI SPRINGS PROPER1IES INC purely coincidental (or that the layoff or layoff decision pre- ceded the strike), since Respondents had determined prior to the strike to effect the layoff for economic reasons. We must therefore examine Respondents' contention that they actually took the layoff action involving the layoff slips allegedly dated March 7, but concededly distributed later. prior to the initiation of the March 7 strike, or that the layoff determination had, in fact, been made prior to March 7 to be effective on March 7. (I) Strike first or layoff/layoff decision first? For numerous reasons, including my credibility evalu- ations based upon testimonial demeanor as observed. I re- ject Respondents' contention that they made or had deter- mined to make the layoffs prior to the employees' March 7 initiation of their strike. It is reiterated that Respondents' (e.g., G.C. Exh. 16) as well as the miners' (e.g., G.C. Exh. 15) behavior during the days antedating commencement of the Friday, March 7 strike, was not only wholly inconsistent with any pending or projected layoff, but was consistent only with the prospect of continued employment. 5 Furthermore, the vast quantum of thoroughly credible and mutually corroboratory employee testimony adduced by the General Counsel establishes beyond doubt in my mind that the employees initiated their strike action on Fri- day morning, March 7. in the absence of so much as a suggestion of the possibility of a layoff. After hearing and observing Respondents' contentions to the contrary, I emerged unimpressed. For one, as already stated, Joyce's responsa (G.C. Exh. 16) and verbal reactions to the miners' economic requests (G.C. Exh. 15) earlier that week contained no suggestion of layoff, but clearly the con- trary-of a continuing employment relationship. Moreover. the entire situation is pregnant with the prospect of contin- ued, not abandoned or discontinued, mine operations here-this certainly would have been true if the miners had not collectively made economic demands which Respon- dents were unwilling to meet or perhaps even to entertain through collective bargaining. Upon the record presented, I totally reject Respondents' contention that they had previ- ously resolved or decided upon the layoffs here prior to the strike, and that the strike action occurred as a coincidence. After rather interminable testimony and countertesti- mony on this subject-much, if not most, inconclusive since, in the last analysis, seeking to establish or disestablish Respondents' "state of mind" concerning whether as well as when to effectuate a "layoff" of indeterminate extent, de- gree, and duration-the record left me in the position where I would have had little difficulty in finding, if required, that the strike was in progress before any layoff or decision to lay off here, and that it was the strike which catalyzed and precipitated the layoffs. However, I was spared the neces- sity for making a less informed resolution of this issue upon what might have been, in part, my subjective preference (upon the basis of testimonial demeanor comparisons) be- tween the array of opposing witnesses on each side, and I 25 See text, supra, including quotations from G.C. Exh 15 and 16. was confirmed in what would in that event have been mv resolution of this issue. through an unusual development near the end of the trial. At a terminal stage, there appeared to be a witness, not called by either side. who could be a key to unlocking the conflict on this important issue. per- haps particularly since he was allegedly a personal friend of Respondents' principal and President James Joyce. and, therefore, presumably one whose testimony, if it should go against Respondents, should not lightly be discredited if otherwise persuasive. This was Tom Howard However. I was informed that he could not attend the trial because he was recuperating from a cardiopulmonary attack. After re- ceiving assurances that he was not disabled from testifying. but could not leave his home in Clay City, Kentucky, about 60 miles from the place of trial, I determined, in the interest of justice. to take his testimony at his home, and to that end directed the General Counsel to issue a subpoena to that effect, which was done. The trial thereupon recessed to the home of Tom Howard for this important purpose. The testimony of Tom Howard did, indeed, prove to be substantially helpful and crucial in resolving the key issue of whether Respondents had, as they here insist, not only determined to make but actually made or set in motion the layoffs in question before the strike of Friday morning. March 7. or whether the layoff slips delivered on Monday. March 10, and thereafter, were prepared or being prepared on or before March 7, before the strike began. The testimony of Tom Howard, a friend of Respondents' principal and President James Joyce, delivered with utterly persuasive certainty, establishes beyond any doubt in my mind, within the record as a whole, that the employees' strike of Friday, March 7. did indeed precede and not fol- low any layoff or decision to lay off, or any processing started before any layoff notifications-contrary to Respon- dents' contentions. Thus, credited testimony of Tom How- ard establishes that on Friday night, March 7 he visited Joyce, his friend whom he characterizes as "the nicest man that I ever talked to." in the latter's trailer, where, shortly before Respondent's timekeeper Johnny Lovely came in- the strike having already started that morning and being then alreadv in progress-Joyce asked Tom Howard, "what was wrong." "what's the boys wanting down there." and "what's the confusion," since some men were raising some questions. Tom Howard indicated there were pay rate dis- crepancies, which Joyce indicated he would rectify. Soon after that, Paymaster Lovely entered the trailer, and Joyce remarked that he was "losing money on the Bee-Tree job" and would "have to shut it down until I [Joyce] change headings [i.e., Foreman Arnett in charge] on that job." At the same time, however, Joyce told Tom Howard, "Tom. you tell Calla [Howard, Tom's son], now, if he gets a layoff slip to pay no attention to it, that he will be right back to work in three weeks or a month, that I am going to have to shut the Bee-Tree job down until I change headings [i.e.. 26 Although Tom Howard was uncertain whether this occurred on Thurs- day night. March 6, or on Friday night. March 7, credited subsequent testi- mony of Tom Howard's son. Calla Howard. establishes that this occurred on Friday night. March 7, the night before Tom Howard (his father) told him on Saturday morning. March 8-of his (i.e. Tom Howard's) visit to. and conversation with. Joyce the night before (ie.. Friday night. March 7), as recounted in the text above. 287 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the foreman] on it." At the time, Calla Howard was work- ing in the Bee-Tree Mine. Thereafter, Lovely began reading names and salaries off to Joyce from timesheets, and Joyce instructed Lovely to "raise Carl [Dyer], Jr. [Tom Howard's son-in-law] there fifty cents an hour more Saturday [March 8]." When Lovely pointed out this would still have Bubby Montgomery at 20 cents-per-hour more and whether Joyce wished to reduce the latter's wage by 20 cents-per-hour to draw him in line with Carl Dyer, Jr., Joyce's response was, "I'll tell you what to do.... You just write Bub [Montgom- ery] a layoff slip. I'm going to have to lay some of them off in the yard over there until I get things going straight," adding, as he looked at Tom Howard, "Tom [Howard], you tell Bub [Montgomery] just like I told you to tell Calla [Howard] to pay no attention to this layoff slip. We will be right back to work in three weeks or a month from now ... until I can get straightened out and get a different setup." Tom Howard did not see Lovely hand any layoff slips to Joyce, nor Joyce sign any layoff slips or other paper while he was there, but Joyce "just told Lovely to write the layoff slips"-it again being noted that the strike then already had been in progress for a full day. During Joyce's discussion with Tom Howard before Lovely came in, Joyce also told Tom Howard that "he [Joyce] thought there was one or two that was trying to get a union on him and he said, 'I just will not operate' or 'I cannot operate under a union.' . .. He's told me that 20 times, I guess, that he just couldn't operate under a union." On the following morning, Satur- day, March 82, Tom Howard was visited by his son Calla, who was among the strikers. On Saturday morning Tom Howard then told Calla Howard what had transpired in Joyce's trailer the night before. And, as testified by Tom Howard, "It was the first time ever that he [Calla Howard] kind of bucked on me in his life and he'd always done what I wanted him to do; and I kind of got a little mad and I preached around a little. And I told him, 'The best thing you will ever do is go back to work, son, go to work and hush and keep quiet. It's the best job you ever had right here at home here.' And I tried to keep it all down and talk to the boys myself; but I couldn't do nothing with them." Recalled as a witness following this testimony, Calla How- ard fully corroborated that portion of it which involved Tom Howard's revelations to him on Saturday morning, March 8, explaining that he (Calla Howard) had not men- tioned this episode during his earlier testimony here be- cause the incident-involving Calla Howard's refusal to comply with his father's wish that he discontinue his par- ticipation in the strike with his fellow-workers-resulted in a nonspeaking rift with his father for the first time in his life, and that he did not wish to involve his seriously ailing father in this litigation and reopen old sores. This testimony :; To the extent of inconsistency between the testimony of Tom Howard and that of Respondents' paymaster, Johnny Lovely, and its President. James Joyce, upon the basis of testimonial demeanor comparisons within the record, I definitely prefer and credit the testimony of Howard. In this con- nection, it is noted that Lovely limited his testimony to what was said in Lovely's presence, thus leaving uncontroverted what was said in the conver- sation between Joyce and Howard preceding Lovely's arrival because Joyce was not recalled to rebut Howard's testimony. Even as to what he did testify to, Lovely-an unprepossessing witness--merely claimed he could not "hear" certain statements covered by Howard's testimony. 2 See fn. 26, supra, and the above text following fn. 27 reference. and explanation of Calla Howard, who broke down in the course of delivering it, was likewise utterly persuasive, as was that of his father Tom Howard, and I fully credit it. Accordingly, upon the basis of the aforedescribed cred- ited testimony of Tom Howard and the record as a whole, including the mutually corroborative and credited testi- mony of the numerous employee witnesses produced by the General Counsel and the exhibits alluded to above, I find that the employees' March 7 strike action did indeed pre- cede Respondents' layoff determination here, as well as their layoff announcement and notifications.9 (2) "Economic" defense Respondent further defends or explains its mass layoff action upon economic grounds. It is also necessary to exam- ine the basis underlying this contention. At the outset, it should be noted, as has been already pointed out, that according to the testimony of Respon- dents' own principal and President, James Joyce, Respon- dents' decision to terminate operations was not made until June 1975, or some months after the strike started; so it was not the termination of operations-which took the form of a sale of its assets for a substantial price not here estab- lished to have involved financial loss-which formed the basis of any "economic" defense to the layoffs. Although for reasons shown above, including Respon- dents' own documentarily-established actions in negotiating and attempting to treat with its employees with every indi- cation of a continuing and not economically distressed op- eration (e.g.. G.C. Exhs. 15, 16, and 17B), until it swiftly v9 I accordingly discredit the testimony, as well as the argumentative impli- cations and inferences and self-serving documents, by Respondents' wit- nesses-notably Joyce, Lovely, Hansen, Bailey, and Patrick-to the con- trary, and to a degree conflicting (cf., e.g., the testimony of Lovely with that of Hansen as to an alleged "list" of layoffs which Hansen states she returned to Lovely, but which he denies seeing after he allegedly gave it to Hansen) and inconsistent (e.g., cf. Joyce's testimony on direct examination that Willis "prepared" a layoff list at a motel on February 21 with Joyce's testimony on cross-examination that Willis did not prepare such a list there and then but that it was allegedly "only gone over and discussed"-testimony I discredit upon demeanor observations as well). Much of this testimony also fails to establish any firm decision prior to the strike to effect a layoff on any definite date-certainly not before the strike. (Even according to Respondents' dis- credited contention that the layoff slips were not predated, but actually pro- cessed and signed on March 7 or 6, it is to be observed that although the employees began their strike in the early morning of March 7, their open organizational activities had been going on since Tuesday, March 4, and that Joyce concededly met with them to discuss their demands in the early morn- ing of March 6. It is further to be noted that, as discussed infra, Respondents' decision to terminate operations was, according to the testimony of President Joyce, not made until June 1975, or some months after the strike started. Joyce's signed statement of March II (G.C. Exh. 5) also (as well as Joyce's shortly preceding signed statement. G.C. Exh. 16) appears to be inconsistent with Respondents' current contention of intent to lay off and not continue operations. Moreover, crediting the admission of Respondent's Bailey Mine Superintendent Melvin Bailey on cross-examination that at no time prior to Friday morning. March 7. after the strike was already in progress, was he informed of any impending layoff or shutdown. it is difficult to believe that the Mine Superintendent himself would have been kept uninformed as to such a decision had it really been made prior to the strike. Furthermore, Respondent's Bee-Tree Mine Foreman James E. Arnmet II, testifying as Re- spondents' witness, swore on cross-examination that on the very morning the strike started he had sent one of his men for explosives to uncover another area to be mined, and that if he had returned with the explosive and they had gone ahead to do what he contemplated doing that day they would have mined 300-400 tons of coal at that location alone. 288 MIAMI SPRINGS PROPERTIFS, INC. shifted gears and laid them off (but even so wit cations of early recall), Respondents' current contention that the layoffs were based upon ecc gencies may be regarded with a degree of reser tention will nevertheless be addressed and eval Respondents' principal and President James tified that he has been in the pipeline business with his Kentucky coal-mining operations sir volving acquisition of leases in Breathitt Coi Mine. first coal mined February or March 19' goffin County (Bailey Mine, opened in the spri His office complex was opened on Oakley Creel goffin County) approximately in May 1974. new operations consisting of the Patrick Mine (Knott County), Kentucky, in July or Augus around the same time, the Bee-Tree Mine (als~ Creek Road) near the Carver tipple. Approxim of these operations, according to Joyce, were: Mine Bee-Tree Bailey Miller Patrick (Yard Acreage Ibtal Permitta Mineable 3,000 550 1,500 1,500 4-5 30 50 400 10 or 15 Purchase no coal In addition, other leased properties covered: Earl iest Approx. Leases County Acres Acquired Magoffin Breathitt Knott Owsley Lee Wolfe Morgan Floyd 16,000 10,000 3,000 3,000 1,000 1,000- 1,000 1,000 Oct. -ov. '73 Jun. -Jul. '73 Mid-1974 Lease acquisition was a continuing process, wit pie, around 1,500 acres acquired in Magoffin another 1,500 acres acquired in Breathitt C January to March 1975 alone. There appear t( seemingly intricate intercorporate and other rl indicated, in part, by (according to Joyce's tes fact that although Miami Springs Properties, Ir Joyce was owner and president. was the lessee containing the Carver tipple. James H. Kinley held title to the tipple; and that both of those different employees working there. with Miami paying Kinley for the use of the tipple, at an Kinley sold the tipple to Miami Springs betweet th clear indi- and December 1975. According to Joyce, at one time dur- ly advanced ing the Kentucky mining operations here. James H. Kinley mnomic strin- (the principal of James H. Kinlev Associates) held an inter- ve. that con- est in Miami Springs Properties. Inc.. which was bought out uated. by Joyce. while Kinley was and remains a member of the V. Joyce tes- Board of Directors of Joyce Western C(orporation, of which ssince 1947. Joyce had always been the sole stockholder. Both of those nce 1973 in- corporations remained in existence at the time of trial, at unty (Miller which time, also according to Joyce's testimony. Joyce 74) and Ma- Western also was engaged in pipeline construction not only ing of 1974). in Kentucky and West Virginia. but also in Oklahoma. k Road (Ma- Pennsylvania. New York. Massachusetts. and Canada. Also followed by at the time of trial. according to Joyce. Miami Springs in Hindman Properties was renting out pipeline equipment to Joyce t 1974, and, Western and others, and was engaged in restoration work o on Oakley under $100.000 performance bonds (to the State of Ken- ate acreages tucky as obligee) in Magoffin. Breathitt. and Knott coun- ties, while at the same time engaged in coal mining in Twi- light, West Virginia (approximately 100 airmiles east of Salyersville, Kentucky. the locale of the instant trial) on ble property of"Roy-Tim Company," of which Joyce has been 50 percent owner since January 1976. and where some of the workers are Miami Springs employees on the payroll of Miami Springs. Joyce further testified that although this "Roy-Tim" corporate enterprise has mined coal, shortly be- fore the instant trial, under nonunion conditions. a United Mine Workers unionization drive has started there and the operation was sold and in process of imminent termination. According to Joyce's testimony. Respondents continued to mine coal until August 12. 1.975. and thereafter to sell mined coal until October 19, 1975. During the interval between those dates Respondent continued to derive revenues from rental of its C(arver tipple to A & P Coal Company which was under the part ownership of Magoffin County Sheriff Latest Ben Patrick, who also performed trucking for Miami Leases Springs (one or two of whose sons were employed by Mi- Acquired ami Springs), and who figured prominently in the arrests. rearrests. and incarceration of many of the miners during Dec.'75 the strike here. A & P Coal Company fulfilled the existing Dec. '75 contractual obligation of Miami Springs to continue to de- De c.'75 liver coal to Kentucky Power Company until October 31. 1975, (G.C. Exh. 84). with Kentucky Power Company pay- ing Miami Springs therefor and Miami Springs then turning these monies over to A & P Coal Company -the total ton- nages and sales prices from August 12-September 19. 1975 (the only entries shown in Respondents' books) being 27.016 tons for $486.316. Operations continued at the Miller and Patrick Mines, h, for exam- according to Joyce. during the strike. and it was not until County and June 1975. or some months after the strike started here, that ounty from Respondents decided to "sell" their "holdings" and "termi- o have been nate" their "operations." Furthermore. according to Joyce. elationships, minesite reclamation work by Respondents was in process stimony) the and incompleted even at the time of the instant trial. ic.. of which Further, according to Joyce's testimony, during 1976 (at of the land least). Miami Springs has continued to hold active mining y Associates permits on all of the mines here renewed in 1976 and still entities paid actively in effect as of the date of trial. However. according Springs also to Joyce. Miami Springs has barred itself from further min- iy rate until ing operations by its agreement ceding its acreage to an- n September other corporation or corporations. involhing in excess of 289 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 40,000 acres. Yet further according to Joyce, Miami Springs also has recently rented and currently rents certain equip- ment to an enterprise of one Garland Williams, as well as to an enterprise known as North American Mining Company for underground mining. There appears to be some sort of interlocking economic relationship among Miami Springs, the Garland Williams enterprise, and North American Mining Company. Although Joyce presented an array of financial data showing sales of substantial tonnages' of coal at varying market prices, these figures in no way establish that Re- spondents were operating at a loss or under economic strin- gency, distress, or competitive disadvantages. Indeed, they may be said to be consistent with a favorable growth and profit picture.";32 Except for the March 7 strike, there is no reason to suppose Respondents' operations would then or reasonably foreseeably thereafter have ceased or that the 10 These tonnages, to be sure, varied. But Joyce conceded that less strip- mining is possible, for example, in early spring because of weather conditions and mud. 11 As recently as January 1, 1975, Joyce wrote to Respondents' employees. on the occasion of a brief temporary layoff, that: For the past few months, this Company has been doing construction work preparing for future expansion. This work is now nearly complete and it is necessary that we reduce our work force temporarily. All our efforts now will go toward producing coal. As we move in more equipment we will need qualified people and all past employees will be given first consideration if they wish to return. We have been very pleased with everyone's help and we thank you. Best regard. /s/J. V. Joyce 1. V'. Joyce. This is hardly consistent with Respondents' present protestations of eco- nomic hardship, necessity, and intention to lay off many employees 2 months later. The same may be said concerning Joyce's signed March 11, 1975. proposal to employees explicitly seeking continued operations, including those at the Bee-Tree Mine (G.C. Exh. 5). 32 Respondent Miami Springs Properties, Inc.'s balance, income, and re- tained earnings sheets submitted from a Buffalo, New York, accounting firm as of December 31, 1974, (Resp. Exh. 7) and June 30, 1975. (Resp. Exh. 8). as they expressly state and as Respondent's accountant witness Peters re- peatedly took pains to emphasize, are "unaudited. " The audited reports for the year ending March 31. 1975, (Resp. Exh. 9), show total assets of close to $4,000,000, coal sales over $7.500.000. gross profit of about 51,500,000, net operating profit of over 700.000, and net income of close to SS500,000 or $140 per share of common stock. Additional "related companies" are there (Resp. Exh. 9. notes 2 and 3), shown as Tampa Pipeline Corp. and Kinley Pipeline & Storage Corp., as well as Kentucky Resources. Inc., a "chain of ownership of 24.000 acres known as DeGroat Patents in Knott and Perry Counties, Kentucky," and (id., note 6) "Joyce Western Corporation," "Joyce Pipe Line Company" and "Joyce Corp." Respondent's accountant witness Peters conceded that some $2.000,000 of purchases during the period indi- cated the intention to continue in business; and that between December 31. 1974, and March 31, 1975, there were substantial new minesite leases as well as "mineral rights" acquisitions by Respondents in the counties here in- volved. These activities, indicative of an active and thriving operation, also appear to be at odds with Respondents' contention that the layoffs on the heels of the strike were motivated only economically. (Peters further con- ceded that the increase in royalties paid out in the first quarter of 1975 represents almost a doubling in income from sales of coal; and that, in con- tradiction to Willis' testimony that there was no market for coal, Respon- dents did indeed have substantial coal sales in the first 3 months of 1975.) It also is noted that when Respondents transferred their operations in whole or in part on December 30, 1975. it was for substantial sum, with an extremely substantial profit over acquisition cost (see sealed G.(. Exh. 83). layoffs in question would have occurred. Indeed, there is reason to suppose. from available indications which have already been alluded to. the contrary. Certainly at that time (March 7), Respondents had made no decision to terminate or reduce the scope of their operations--that decision, as also has been indicated, came months later. 'I hus, it cannot be said that Respondents have established credibly that the March 10 layoffs were for economic reasons or, indeed, any reason other than the immediately preceding March 7 strike." Accordingly rejecting Respondents' explanations for the mass layoff of employees here on the heels of their March 7 strike, there remains no reason for that mass layoff other than the employees' lawful economic strike which began on March 7. 1 accordingly find that the true reason for those layoffs, as well as Respondents' subsequent nonrehire and nonreinstatement of the laid-off employees, was, as al- leged,4 the lawful strike action of Respondents' employees beginning on March 7, 1975. and in order to discourage and end the concerted activities of' those employees protected under the Act. b. Alleged unfaiir labor praticc'es follolttg March mas.v layof' trltercurretl dl'e /Clovrtelst On Friday, March 7, Respondents' parts runner Arlie Holbrook was in Hazard picking up parts. When he called " From the murky picture presented by Respondents, it further emerges that, notwithstanding Respondents' economic defense" in alleged justifica- tion of the layoffs here, on April 14, 1975 a scant month after the strike started and the layoffs occurred Respondents entered into a contract with Kentucky Power Company calling for dehlivery of 30,000 tons of coal per month, greater than an) during the entire previous period of Respondents' operations for $540,000 per month and $3.240.000 for 6 months hardly indicative of any intended diminution of operations (G.'. Exh. 84). This contract also expressly states: "Source of Coal. Joyce Western ('Corporation Mine located at Carver e . Bee-Tree Mine]. Magoffin County. Kentucky" (id). Recalled also will be the impressively credible testimony of Joyce's friend Tom Howard, recoulted above. clearly indicative ol' no ntention by Re- spondents, as of the date of the March layoffs. to discontinue their opera- tions or of economic stringencies fior the layoffs. In addition to the testimony of Joyce on the "economic defense" or expla- nation for the March layoffs, I have also considered carefully the supple- menting testimony of Respondents' witnesses Stoddard and Willis (their for- mer general superintendents) On testimonial demeanor observations within the context of the record as a whole. including Joyce's described words. actions, and documents responsive to the employees' demands, I do not credit Stoddard's testimony that earlier in the week of March 7 he had indicated to Foreman James Arnett that "we was going to have to close that job down until things got better . . . on Saturday [March 8 at noon." but concededly with no intimation to any of' the employees prior to March 10 (i.e.. after the strike was already in progress), and concededly (if he is to be believed) without his alleged orders to Arnett ever being "carried out." Wil- lis, an unimpressive witness whose testimony was replete with speculative ruminations not supported by Respondents' records, left Respondents' em- ploy in March, at which time, according to his testimony. Respondents were still acquiring minesite leases and total completion of their operations "would have gone on for years. not months." In view of the record as a whole and my misgivings as to Willis' testimonial caliber as observed, I do not credit his testimony concerning his alleged preparation of an intended layoff list in February, nor his self-serving remarks on that alleged list. which are at odds with Joyce's aforedescribed words, actions. and signed docu- ments (e.g.. (.C. Exh. 16). Nor do 1 credit his labored attempted explana- tions for the layoff of specific employees Joyce himself on two occasions, in writing (January 1, G.C'. Exh. 86; March 7. (.C Exh. 17B). had expressed satisfaction "with the relationship and past employment of everyone in the Company" ((3.('. Exh 17B). (C-2: pars. 10(a). I(b). and 14: ('-1: pars. (a). 6) and 8. 290 MIAMI SPRINGS PROPERTIES. INC in to Respondents' Purchasing Agent Manual Montgomery for a purchase order number, the latter instructed him not to return because "they was having some kind of labor problems." When he returned on Monday. March 10. and delivered the parts to Montgomery. the latter handed him a layoff slip. He has never been recalled. At no time was there any indication of dissatisfaction with his work or that he would be laid off, nor had the tempo of his work activities diminished. The striking employees began picketing on Monday. March 10. while Respondents continued hauling coal out. During the ensuing days, numerous pickets were arrested by Magoffin County Sheriff Ben Patrick. incarcerated, judi- cially released, rearrested, reincarcerated, and re-released. On March II, Respondents' President Joyce, following a conversation with employee Calla Howard, presented the latter with his (Joyce's) written and signed responses to a list of the employees' demands clearly signifying Joyce's willingness to resume operations (G.C. Exh. 5) with rein- statement of "all Employees" (id.;) however, the strikers refused to return on the same terms without ameliorations. On or about March 14. Respondents' former carpenter. concrete and masonryman Conley Turner visited Superin- tendent John Stoddard in Respondents' main yard in an attempt to break the work interruption impasse, but Stod- dard told him, "Conley, goddamn it. them men over there ain't got no sense. They walked off the job without any cause, and as far as I'm concerned, we are finished with them. There's men waiting to take their place." Turner said to Stoddard, "John, they are only human beings. They are just like you.... At least, go over there and talk to them. They want to talk to somebody and they said nobody would talk to them." Stoddard. however, responded. "Con- ley, you go back over there and tell your goddamn c-ks- cking buddies that I ain't got nothing to say to them." The complaint (C-I: pars. 5[c][i] and 8) alleges that, in violation of Section 8(3) and () of the Act, on March 20, Respondents' General Superintendent Stoddard indicated to employees at the tipple that the men had been laid off because they had engaged in concerted activities protected under the Act. Concerning this. Respondents' former Bee- Tree Mine drill operator Bobby Ray Howard, whom I credit, testified that on March 20 he asked Stoddard at the tipple why he had been laid off, to which Stoddard's re- sponse was, "To get rid of some troublemakers." Stoddard first denied he said this, insisting he did not even know Bobby Ray Howard on March 20, but then appeared to modifying this by stating he was unable to "recall" any conversation with him. In the resulting posture of the rec- ord, involving a seeming clash between the testimony of Bobby Ray Howard and Stoddard, upon the basis of com- parative testimonial demeanor observations I much prefer and credit the testimony of Bobby Ray Howard, who im- pressed me as a straightforward person lacking guile. whereas Stoddard's testimony was studded with unpersua- sively delivered evasions. I accordingly find this allegation of the complaint established. The complaint further alleges (C-I: pars. 5[cll[iii]. as added at trial, and 8) a similar incident on the following day, March 21, also involving Stoddard. As to this, credited testimony of Respondents' former employees Calla Howard (bulldozer operator at the Bee-Tree Mine). Morris Thomp- son (bulldozer operator at the Bailey Mine). and Horace Grant Thompson (loader-shooter at the Bailey Mine) estab- lishes that at the tipple on March 21 they' indicated to Stod- dard that the striking employees wished to return to work. an offer which Stoddard rejected by responding, "There's no damn way" or "No damn way" and adding that the, had been laid off to get rid of them because of their organi- zlational activity. In his testimony, Stoddard described a varying version of the episode in question. According to Stoddard. Calla Howard and a few other employees ap- proached him at the tipple while some deputized sherrits had "guns ... and clubs" displayed. Stoddard says he there- fore drove away from the scene with them. whereupon the employees told him they were now under advice of union counsel and were "not coming back to work," to which he (Stoddard) responded, "As soon as we can, we will call you back to work:" but they replied, "We can't do that. we are out on strike and we want to go back to work. We want our jobs back." (Emphasis supplied.) Stoddard (according to his testimony) thereupon remarked, "Well, they are just not available at this time," after telling them "You fellows are making a great mistake." Adding, "Well, fellows. I'm wast- ing my time and you are wasting yours," Stoddard returned to the tipple. On cross-examination, Stoddard was at first quite evasive on the subject of the men's indication that they desired to return to work, as he had earlier testified. but conceded that he did indeed tell the men "you are mak- ing a mistake" and that the men did indeed press him for a date to return to work, which he declined to provide. Be- cause of Stoddard's material alteration of his testimony on cross-examination, the substantially corroboratory testi- mony of no less than three witnesses the other way, and testimonial demeanor comparisons. I credit the testimony of the three employee witnesses and find this allegation of the complaint established by a clear preponderance of sub- stantial credible evidence. On March 21, United Mine Workers (UMW, Charging Party here) became involved, holding a meeting at Becky Arnett's grocery store with a group of about 25 of Respon- dents' employees who were addressed by a UMW organizer who also distributed UMW literature and membership cards. Later that day, when Respondents' carpenter-mason Conley Turner offered to lend some picketing employees a portable heater in the chill weather, he was hailed by Re- spondents' Foreman Carpenter, who said to him, "I hear you've been handing out some union literature to these men and them over in Breathitt County." Turner denied it. Car- penter nevertheless persisted that he had heard it from some "real truthful" people whom he believed, but declined to identify. despite Turner's continued remonstrances to the contrary. Carpenter thereupon displayed a pistol and said to Turner. "Conley, I want to tell you one goddamn thing. Don't be giving me no sh-t about this Union deal over in Breathitt County [where Turner lived] . . . I mean what I'm talking about." Acknowledging Carpenter's gun. Turner left. When Turner later reported this incident to some of his fellow employees at Respondent's Breathitt County mine (i.e.. the Miller Mine) and suggested that they "stick to- gether." they agreed to stop working there as well, but when their lioreman Ronny Hudson ordered them back to 291 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work, they one by one returned. Without explanation. Re- spondent failed to produce Carpenter to dispute this epi- sode, which thus stands uncontradicted. The complaint (('- 2: pars. 10[il and 14) alleges the foregoing incident involv- ing Turner and Carpenter as a coercive threat in violation of Section 8(a)(3) and (I). Crediting Turner's uncontra- dicted testimony, I agree and find that it was." Also on March 21. Respondents' tipple car dropper Ken- neth Wade Salyer, a minister, was visited by his foreman. Carl Salyer, who told him "the other men was going back to work" and to "report to the job." When Kenneth Wade Salyer arrived at the tipple, however, he observed that he was the only regular tipple worker there, and that it was manned or patrolled by deputy sheriffs and other outsiders and, after continuing there for about an hour, he observed some lingering employees on the road arrested. He there- upon infbormed Foreman Carl Salyer that he did not feel right working there while his fellows were still out on strike. and left. On March 24, after learning that some employees had been arrested twice that day, he joined the picket line. On March 29, he was told by Foreman Carl Salyer, "You know where the tipple is Monday morning. If you are not there, you will be replaced." He declined to return until the strike was settled and the other employees also returned. No indication was given to him then or at any previous time that there would be a layoff or shutdown. He was arrested on March 31 by Sheriff Patrick while he and his wife (with others) were doing no more than standing on the road outside of the mine, without picketing. at a consider- able distance from the tipple, where the sheriff himself pre- viously had indicated they could stand. He and his wife were arrested as soon as they arrived there. After being held in custody for about an hour without charge of any kind, they were released. On April 4, a layoff slip dated March 31 was delivered to Kenneth Wade Salyer by his brother Rob- ert Wayne Salyer, but he refused to accept it, instead going with Joe Salyer to see Foreman Carl Salyer and to ask to be permitted to return to work. Foreman Carl Salyer's re- sponse was, "If you'll promise to drop the Union and vote against the Union, you can go back to work; and if not, .... It's not me, but it's the Company. They wanted me to tell each man they could go back to work under." Kenneth Wade Salyer thereupon indicated he intended to vote for the Union. Again without explanation, Respondent failed to produce its Foreman Carl Salyer in any way to contro- vert this thoroughly credible testimony of Kenneth Wade Salyer, delivered with such impressive solemnity as to ring with truth. The complaints (C-: pars. 5e] and 8: C-2: pars. 10[f][i, ii], and 14) allege that by the aredescribed con- duct of its Foreman Carl Salyer in informing employees on or around March 31, April 4, and in April that they could return to work if they ceased engaging in union activities 13 Respondent's former yard weighman Paul Bailey also testified credibly and with contradiction that when he and 9 or 10 employees in three cars gathered near a local grocery store in Breathiti County during he picketing, not going near the minesie because "the law was sitting up on the hill," Foreman Carpenter approached him, displayed a gun, and told him "[You havel no business in Breathit,. to] go back to Magoffn ('ounty].," but that Bailey replied that Carpenter would have to make him do so since he was as big as Carpenter. Carpenter did not take up the challenge. and ended their support of the Union, Respondents further violated Section 8(a)(3) and (1). Crediting the uncontro- verted described testimony of Kenneth Wade Salyer, as well as that of Respondents' employees Joel Salyer (tipple slate picker. who also was laid off by layoff slip dated March 31) and Marcus Pennington (yard and tipple worker) essentially to the same effect, I find these allega- tions of the complaint likewise established. We return to March 27. on which date it is alleged that (('-1: pars. 51d] and 8) Respondents' Foreman James Arnett (James E. Arnett II) informed laid-off employees that they could return to work if they ceased engaging in union ac- tivities and ended their support of the Union. As to this, Respondents' former Bee-Tree Mine drill operator Bobby Ray Howard testified credibly that on the occasion in ques- tion his foreman, James Arnett, called him out of John Arnett's grocery store and, after quizzing and ascertaining from him that he still intended "to go through with the Union," informed him that he (Howard) "can't make no money under a Union," but that "Ifyou will go around and talk to all of the men and get them to drop this Union and not vote for it. you can go back to work." an offer which Howard refused. Foreman James Arnett did not deny this, but testified merely that he was unable to "remember" the episode. Upon the record as a whole, I prefer and credit Howard's better recall and find the allegation established. On March 28, the Union requested confirmed by mail- gram dated that day (G.C. Exh. Il )-recognition by, and collective bargaining with, Respondents on behalf of Re- spondents' Magoffin County miners and other employees, ofering to submit signed authorization credentials in proof' of its alleged representational status. By letter of March 31 (G.C. Exh. 12) the Union repeated this request. There is no indication that Respondents answered either of these re- quests, although it is stipulated (G.C. Exh. 81, par. "I") that they received the mailgram on March 31 or April 1. Also at the same time on March 28. the Union notified Respondents by mailgram that it was "officially inform[ing] you that those employees participating in and/or honoring a picket line established at your mine are hereby offering to return to work unconditionally" (G.C. Exh. 14). There is no indication that Respondents answered this either." w6Although Respondents deny receipt of this mailgram or message, I credit the testlimony of UMW Washington. D.C. eadquarers research worker Donna Moskal. an impressive and thoroughly credible witness. that she personally dispatched it (it is noted that her name appears thereon) on the day in question. and that she received the official confirmatory copy (G.C. Exh. 14) from the Western Union telegraph company/United States Postal Service a few days later. The official telegraph company/United States Postal Service confirmation (G.C. Exh 14) bears all manner of identi- fying numbers and letters authenticating the message and states that "This mailgram was transmitted electronically by Western Union to a Post Office near you for delivery." This confirmation is in the same form as the confir- mation for the Union's other mailgram (i.e. G.C. Exh. 1 ) to Respondents on the same date. described above. Both confirmation bear the Union's March 31 (Monday) datestamp. Although Respondents deny receipt of the unconditional return-to-work mailgram (G.C. Exh. 14) I1 find their denial unconvincing,. and. crediting the described testimony (corroborated by the official telegraph company/United States Postal Service report ol transmis- sion) that it was dispatched. I find that the presumption of delivery (cf., e.g., ederal Rules of Evidence. Rule 301; I WIGMORE EVIDENCE Sec. 95 (3d ed. 1940); Oregon Seumship Co v. Otis. 100 N Y. 446. 3 N.E. 485 (1885) has not been rebuted credibly. In this regard, it will be recalled that. as found above. another unconditional offer on behalf of the striking employ- 292 MIAMI SPRINGS PROPERTIES. INC. With the strike thus ended on Friday. March 28, Respon- dents' formerly striking tipple slate picket Robert Wayne Salyer presented himself on March 31 at the office to Tipple Foreman Carl Salyer. who had sent for him. Foreman Carl Salyer asked him whether he wanted to go back to work or whether he wanted a layoff slip. Robert Salyer asked Fore- man Carl Salyer "what the rules was." Foreman Carl Sal- yer replied that "the Company said to drop the Union and to not cause any trouble in the future and [you] could go back to work." When Robert Salyer indicated he could not agree to that, Foreman Carl Salyer reached into his pocket and handed him a layoff slip (G.C. Exh. 29 dated March 31 and concededly signed by General Superintendent Stod- dard), together with layoff slips for Kenneth Wade Salyer (his brother' and Joel Salyer (his cousin). Carl Salyer was unexplainedly not called to dispute in any way this testi- mony of Robert Salyer, a straightforward and impressive witness whose testimony I credit. The complaint (C-2: paras. 10[f][iil and 14) alleges the foregoing incident, which I find occurred as described, to have been in further viola- tion of Section 8(aX3) and (I). It is also set forth in the complaint (C-I: pars. 5[b], 6, and 8) that, in yet further violation of Section 8(a)(3) and ( 1), on March 31, Respondents laid off and have since continued to fail to reinstate their employees Robert Wayne Salyer. Burllie Perkins, Joel Salyer, and Kenneth Wade Salyer. The circumstances preceding the layoffs of Kenneth Wade Sal- yer and Robert Wayne Salyer, and establishing those lay- offs to have been improper and unlawful under the Act for the reasons alleged in the complaint and described and found, supra, already have been detailed and need not be reiterated. With regard to Burllie Perkins, Respondents' former Bailey Mine laborer and rock truck operator, he had worked steadily, 50 hours per week, until the strike, which he joined on March 7. At the conclusion of the strike, his wife received his layoff slip on March 31. When he commu- nicated with his supervisor, Foreman Melvin Bailey, the latter told him to go on unemployment insurance or get a job elsewhere. Perkins later ascertained he had been re- placed. According to Bailey, Perkins was laid off because the rock truck he had formerly been driving broke down some time prior to the strike and no repair parts could be obtained. Bailey conceded that Perkins had been working as a laborer at the Bailey Mine for some time prior to the strike. Upon the record as a whole, I do not credit or accept Bailey's uncorroborated explanation for Perkins' layoff. or his failure to deny that Perkins was replaced by the replace- ment identified by Perkins by name, nor his failure to ex- plain why, in any event, Perkins could not have been reas- signed to his former laboring work at least until receipt of the allegedly unavailable truck parts (Perkins was also a laborer at the Bailey Mine). I also take into account Bai- ley's concessions during cross-examination that on the day ees, to return to work, had been conveyed, on March 21. by Calla Howard and corroborated by two other witnesses (Morns Thompson and Horace Grant Thompson) to Respondents' General Supenntendent Stoddard and wa summarnly rejected by the latter. 7 The circumstances of the layoff of Kenneth Wade Salyer already have been described. before the striking employees returned or attempted to re- turn to work at the end of March. Respondents' General Superintendent Stoddard gave him and instructed him (Bailey) to distribute layoff slips to all 21 employees, includ- ing Perkins: that Bailey had no specific reason for laying off any of the 21 employees (including Perkins): and that if he (Bailey) had not received a layoff slip from Stoddard for Perkins. he would "definitely" have permitted Perkins to return to work at the Bailey Mine. Bailey. as Respondents' witness, further swore on cross-examination that when Stoddard gave him these 21 layoff slips at the end of March (i.e., at the end of the strike) for distribution to the striking employees, Stoddard told him it was "to find out who wanted to return to work and who did not want to go hack to work." and that the men could return to work if they wished. It is somewhat incomprehensible why Respondent would distribute layoff slips to employees whom Respon- dents desired to return to work. Joel Salver was also in this group, and the circumstances of his layoff on April 3. by layoff slip dated March (G.C. Exh. 31), already have been detailed, involving his uncontradicted. credited testimony that when he inquired of his Foreman Carl Salyer if he could return to work, the latter informed him he could do so only "if [you] would drop the Union and he no trouble- makerls], in the future." Upon his record, it is plain and I find, reiterating findings already made, that the four em- ployees referred to in the complaint allegations under con- sideration (C-I: pars. 5[b]. 6. and 8) (as well as also Paul Bailey, if March 31 was the correct date of his layoff, he having also actively picketed during the strike: see fn. 21. supra) were laid off for no reason other than for having engaged in lawful concerted activities protected under the Act, for their union sympathies and adherence, and to co- erce them and other employees away from those views and activities. It is accordingly found that this allegation of the complaint is likewise established. Still another employee, Conley Turner. is alleged (C-2: pars. 10[c] and 14) to have been laid off on March 31. with- out reinstatement since then, for having engaged in lawful, protected strike activity, and to discourage union activities. Some of Turner's activities during the strike, including his abrasive encounters with various supervisors of Respon- dents (General Superintendent Stoddard and Foreman Car- penter) already have been described. It is clear that Turner was actively sympathetic to the striking employees a sym- pathy strongly resented by Respondents, who have offered no credible explanation for the precipitate layoff of Conley on March 31 together with the other laid-off employees al- ready considered, all strikers, picketers, or union members or sympathizers. Turner would accordingly fall into the same category as other employees already considered, ex- cept for two additional reasons advanced as justifications for his discharge: that he was a supervisor and laid off or discharged on unsuitability grounds. I reject both of these explanations. As to the first-supervisory status the facts are these. Turner was hired as a building maintenance car- penter. concrete and masonry workman: he was initially the only employee of that category. but subsequently others were sporadically detailed to that kind of work. Credited testimony of Turner (corroborated in part by credited testi- 293 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mony of Monroe Bach ["Back"p] establishes that he was hourly paid, and issued no orders or instructions, gave no leave or time off, and at no time hired or fired nor had the power to nor, in fact, ever effectively so recommended; and that he had none of the attributes of supervisory status enu- merated in Section 2( I 1) of the Act. Although in his pretrial affidavit Turner had indicated that at a time there were four or five men assigned "under" him and he "told them what to do" and "n my estimation, the men considered me boss," Turner's explication in his trial testimony (see fn. 41, infra ) of basic facts of his actual working relationship toward such other individuals as were sporadically detailed to assist or work with him shows that his status toward them did not rise to that of a true supervisor having or exercising substantive authority over them. Rather his sta- tus was that of a senior or more highly skilled craftsman toward less knowledgeable or unskilled members of a small workcrew, where the more knowledgeable member serves as a pacemaker or crew "straw boss," or where he shows the others what to do when they are unsure (as his fellow- worker Bach testified), or even makes crude divisions of work to be shared by all, including himself. While the ques- tion is not free from doubt, on balance it appears to me that Turner's actual role as credibly testified to at the trial did not rise to the level of supervisorship, and the basic facts here shown do not clearly establish by substantial credible evidence, as required, that Turner was a supervisor within the meaning of the Act. According to testimony of Respon- dents' President Joyce and their bookkeeper Ruth Patrick. as well as Respondents payroll sheet itself (G.C. Exh. 75), Turner was classified and carried on Respondents' books and in its employ as a "Carplenterj." Upon the record as a whole, I find Turner not to have been a supervisor as de- fined by Section 2(11) of the Act. Cf. N.L.R.B. v. Southern Bleachery & Print Works, Inc., 257 F.2d 235, 239 (4th Cir. 1958), cert. denied, 259 U.S. 911 (1959); N. L. R. B. v. Griggs Equipment, Inc., 307 F.2d 275, 279 280 (5th Cir. 1962); Poultry Enterprises, Inc. v. N.L. R. B., 216 F.2d 798. 801 802 (5th Cir. 1954); Stokely Foods, Inc. v. N.L.R.B., 193 F.2d 736, 739 (5th Cir. 1952); Schott Metal Products Company. 129 NLRB 1233, 1234-35 (1961); Proctor-Silex Corp.. 131 NLRB 57, 58 (1961); Gulf Bottlers, Inc., 127 NLRB 850, 859, 860 (1960). enfd. 298 F.2d 297, 302-5 (D.C.Cir. 1961), cert. denied, 369 U.S. 843 (1962); Lampcraft Industries, Inc., and Leslie China, Inc., 127 NLRB 92, 93-95 (1960): Stein, Hall & Co., Inc., 126 NLRB 1078, 1079 (1960). We turn, then, to Respondents' other defense to their March 31 layoff of Turner-unsuitability. As to this, what emerges and what I find, out of a welter of confusing testi- mony, are the following facts. As late as February, there had been no indication of dissatisfaction with Turner's work. At that time, based on an indication to him from timekeeper Lovely that he (Turner) was about to be laid off, and because Turner had another steady job offer, Turner asked Joyce about it. Joyce assured Turner there would be enough work for him "for a year or two." a statement I do not regard the rambling, openly hostile, and largely incredible tes- timony of Respondents' witness Andy Vanderpool, in some respects to the contrary, as being essentially worthy of credit after observing him as a wit- nes. which Superintendent Willis reiterated that day or the next, causing Turner to turn down the other job offer. Because of the nature of his work and Respondents' absence of equip- ment, in addition to his hourly pay, Turner received $50 per week for the rental of his (Turner's) equipment. When Turner arrived on the jobsite on March 7. he was told by timekeeper Lovely not to remain because "everybody's going on strike," but to leave his truck there and not to unload the lumber on it which Turner had picked up for the job, on the way. Turner complied with these instructions. When Turner returned on Monday. March 10. Lovely again told him to "Just turn around and go on back. Noth- ing is settled, yet." Turner's remonstrances that at least he be allowed to unload the lumber from his personal truck fell on deaf ears. When Turner approached General Super- intendent Stoddard on March 14 and attempted to act as intermediary for the strikers since the Company was refus- ing to even talk to them. Stoddard's explosive reaction to Turner will be recalled: "Conley, goddamn it, them men over there ain't got no sense. They walked off the job with- out any cause, and as far as I'm concerned, we are finished with them. There's men waiting to take their place. ... You go back over there and tell your goddamn c k s-cking bud- dies that I ain't got nothing to say to them." Likewise re- called will be Foreman Carpenter's reaction to Turner's of- fering of a portable heater on March 21 to picketers standing in the chill. There Carpenter accused Turner of handing out union literature, refused to accept Turner's de- nials, and threatened Turner with a gun and warned him not to "giv[el me no sh t about this Union deal over in Breathitt County" (where Turner lived), following which Turner urged Respondents' Breathitt County miners to join the strike. In this context, on April 2, while he was fishing. Turner was sought out and hailed over to his vehicle by Foreman Carpenter (the former pistol-wielder), who handed him a layoff slip and told him. "You would be working right now if you hadn't have fooled around with them fellows that's wanting a Union in.... You fooled around with the wrong people." Since the layoff slip was not accompanied by a paycheck, Turner visited Stoddard the next day for his pay. Stoddard referred him to Joyce. who was not available. For the next few days this roundelay was repeated, with Turner driving 50-60 miles each day from and to his home. Unsuccessful in his at- tempts to see Joyce. Turner asked Stoddard to check the company records to determine the amount of money due Turner. Stoddard refused to do so and told Turner to "get the hell out of here" and "While you can still walk on two legs. you had better get the hell out of Magoffin County just as quick as you can." Over the course of the next few weeks Turner kept returning to see Joyce. to no avail. Finally. around the end of April or early May. Turner and his wife succeeded in confronting Joyce in the trailer where the lat- ter lived. Turner asked if he could go back to work. Joyce's answer was that Stoddard had informed him that "Conle) Turner has joined in with these fellows. I was surprised. I couldn't believe that you would turn like that against me." When Turner explained he could not turn against the men. Joyce asked him to "get[ting your crew of men under your own company and form your own company and build that [new] tipple for me. ... We'll take care of all of the finance 294 MIAMI SPRINGS PROPERTIES. INC. . . bookkeeping, tax deductions and everything. The way this Union thing is right now, I'm afraid to make a move." When Turner declined, Joyce remarked, "Conley. you know that you fellows won't be able to get a job around here; anywhere after this you will be known as troublemak- ers. You will be blackballed in everything."" Turner asked for the money due him. Joyce said he could have it the next day. During the next day, Turner was given a check for less than he claimed was due. Meanwhile, during the strike. Turner had left his tools and equipment on the job. and they had been used-with some items missing-by other employees during that period. Since Turner's paraphernalia were scattered all over Respondents' premises, making re- trieval a major task, a lump sum price of around $1,200 was agreed upon for Turner's equipment. Entering at this point, Stoddard insisted the price was too high. After further dis- cussion it was reduced, and Turner was given three separate checks, aggregating somewhat over $1,000, for the total due him. On his job with Respondents, Turner had regularly been using a heavy concrete vibrator and a heavy generator, both company-owned. Although the vibrator was kept on Respondents' premises, at Superintendent Willis' direction. the generator (so heavy that it required two or three men to move it) was kept in the back of Turner's truck to help operations and to avoid the necessity of constantly man- handling it on and off the truck. During the foregoing ter- minal discussion among Turner, Joyce, and Stoddard, Turner indicated he had last seen the vibrator at the tipple, but that he had the generator. According to Turner, the generator subsequently was picked up by Respondents' Oakdale tipple Superintendent Bradley Nease (who always had told Turner that he was vice president of Joyce West- ern) and a workcrew. Notwithstanding the foregoing, in July 1975, a warrant or indictment was sworn out against Turner by Stoddard for stealing a Company' vibrator and generator (G.C. Exh. 54). It is to be noted that this matter was never brought to trial, but was "Dismissed-Lack of Prosecution," on February 12, 1976, by the Attorney for the Commonwealth of Kentucky (G.C. Exh. 54). It is to be noted that much, if not most, of the foregoing transpired subsequent to Turner's layoff on March 31. Cred- ited testimony of Turner shows-consistently with that of other employees that at the time the strike started, opera- tions were ongoing as before, with ample work on hand and no indication of diminution in operations or of a layoff: and that operations (including that of Turner) continued, through substitutes for Turner. Upon the record as a whole, I am wholly unpersuaded that Turner was laid off or separated from his employment with Respondents for unsuitability as now claimed, but, on the contrary, I am persuaded and accordingly find that Re- spondents' true motivating reason for the layoff of Conley Turner was his close association and alliance with Respon- dents' striking employees, marking him in Respondents' 'Although Joyce denies this conversation, on comparative testimonial demeanor observations within the referential framework of the record as a whole, I credit Turner's testimony to this effect. view for layoff with the others, on or about March 31. as is substantially alleged in the complaint. The complaint alleges (C-2: paras. IOe]l[i] and 14) that on April 2-the same day as the Union filed its petition for election (G.C. Exh. 9) Respondents' Foreman Melvin Bailey threatened an employee that Respondents would close down their operations if the Union succeeded in its organizing campaign. Respondents' former Bailey Mine bulldozer operator Morris Thompson, a credible witness. testified that on April 2 he was informed b Melvin Bailey. the foreman in charge of that mine, that the strip-mined area would have to be reclaimed (i.e., graded or leveled off) if the Union came in because, if the Union came in, the Company "would be ready to pull out."" Testifying with regard to the foregoing, Foreman Bailey merely denied re- membering mentioning the Union the remarks he conced- edly made concerning the need for reclamation. Crediting the superior recall of Morris Thompson, I find the allega- tion established. The complaint (C-I: paras. 5/llii] and 8 alleges that on April 10. Respondents' General Superintendent Stoddard told a laid-off employee that if he had not engaged in activi- ties protected under the Act he would not have been laid off. In this regard. Respondents' former yard truck me- chanic Bubby Montgomery testified credibly that on the above-cited date, during a discussion with Stoddard about an automobile accident, Stoddard told him, in all serious- ness, "If you hadn't been out on the road with that bunch of [striking] c--ks ckers, you would have been working to- day." Conceding only that he had a discussion with Bubby Montgomery about the automobile accident, Stoddard de- nies making the quoted remark inputed to him b Bubb) Montgomery. I already have had occasion to comment on Stoddard's less than satisfactory quality as a witness. Not having such reservations about Bubby MontgomerD after observing him as he testified, I credit his version and find the allegation established. It is also alleged (C-2, paruls. IOh/i] and 14) that on the same day (April 10) Respondents' Foreman Pat Montgom- ery threatened an employee that Respondents would termi- nate their operations if the Union succeeded in its organiz- ing campaign. In this regard, Respondents' former Bailey Mine employee Horace Grant Thompson testified that he was told by Foreman Pat Montgomery. during a conversa- tion with him on April 10, that "If you guys keep trying to " While employee Horace Grant Thompson gives a somewhat different version of this conversation, which he indicated he did not hear n full. I prefer and credit Morris Thompson's clearer. fuller. and more assured testi- mon) in this regard. As to Morris Thompson's testimony (as well as that of some other witnesses). although there is some discrepancy between date in his testimony and that in his pretrial statement and some incidents testified to by some witnesses are unmentioned in whole or in part in their pretrial statements), I nevertheless credit him (and other witnesses, where applicable) because it is well known that for a varietr of reasons individuals do not invariably provide full details to an Interviewer. For one thing. the inter- viewer does not always ask a full spectrum of questions. and some nterew- ees go no further than to answer the questions that are asked; fr another. data furnished on an interview may be mistaken, and are in any eent sub- ject to correction. Furthermore, it is well known that human memory some- times, if not usually, comes in fits and starts Finall., testimon} furnished at a trial, under cross-examination and scrutinN of the trier of act. it credited. is ordinarily more persuasive and ma) he the ultimate litmus available. 295 DECISIONS OF NATIONAL LABOR RELATIONS BOARD make Jim Joyce sign a Union contract, that I feel that he will move out of Magoffin County and if he does go ahead and move out, that will be a big loss to Magoffin County. It would be one big job less." Although the remark is undis- puted by Pat Montgomery as cast it does not appear to be more than a predictive personal opinion during the stream of a random conversation, not rising to the level of threat, coercion, restraint, or interference. I accordingly find this allegation of the complaint not sustained. The complaint (C-2: paras. IO[g][ii] and 14) similarly sets forth that on April 16, Respondents' Foreman Millard Jor- don (Jordan) threatened an employee at the Bailey Mine that Respondents would terminate their operations if the Union were successful in its organizing campaign. Regard- ing this, Respondents' former employee Morris Thompson testified credibly that on the date alleged, Foreman Millard Jordon stated to him that "if the Union come in, he [Re- spondents' principal and President Joyce] would pull out." Concerning this, Foreman Millard Jordon merely professed an inability to "recall" whether such a conversation oc- curred according to "my remembrance." Crediting witness Morris Thompson's superior recall, I find the episode oc- curred as described and the complaint allegation estab- lished. The further allegation is made (C-2: paras. 10[h][ii] and [iii] and 14) that also on May 15, Respondents' Foreman Pat Montgomery threatened an employee with loss of em- ployment if the Union succeeded in its organizational cam- paign, and conditioned his return to work upon the ouster or failure of the Union. Respondents' former laborer Joe R. Minix, a forthright witness, testified credibly that on that date, after he had been turned down by Foreman Pat Montgomery for job resumption after the strike was over, upon the alleged ground that Respondents were not hiring yet, on or about May 15 he was informed at or near Re- spondents' yard by Foreman Pat Montgomery that "I don't want to tell you how to vote. But the [union] election is coming up and if the Union does come in all of us is going to be out of a job. If it don't, I will see that you go back to work after this election." Although Foreman Pat Mont- gomery testified as Respondents' witness, in no way did he dispute this testimony of Joe Minix, which I credit and accordingly find these complaint allegations established. On May 20, the Union dispatched still another mailgram to Respondents (G.C. Exh. 13; G.C. Exh. 81 [stipulation]. para. I), this time requesting recognition and bargaining on behalf of an expanded unit of Respondents' employees, in- cluding not only those engaged in Respondents' operations in Magoffin County, but also those in Breathitt and Knott counties. It is conceded (G.C. Exh. 81, para. 1) that this communication was received by Respondent on or about the next day (May 21). There is no evidence that it ever was answered. The complaint (C-2: paras. 10[d][ij and [iil and 14) fur- ther alleges that in the latter part of May, Respondents' President Joyce threatened an employee that Respondents would close their operations if the Union was successful in its organizational campaign, but promised that Respon- dents would give their employees benefits if the Union did not succeed. As to this, Respondents' former tipple truck weigher' Roy Von Minix testified credibly that around May 10 he. together with his wife and mother-in-law, had visited Joyce in his trailer to get his job back, but that Joyce indicated this was not possible in view of the fact that a Union election would be coming up, and that if the Union won he would "pull out" his business, but, if it lost, Roy Von Minix should return and Joyce would put him to work. Later in May. Roy Von Minix returned and was informed by Joyce that the Union election had been postponed and that he could not yet rehire him, but that if the Union lost he would put Von Minix back to work, although if the Union won Joyce would "pull out." Joyce provides a differ- ent version of these episodes. According to Joyce, on the earlier May visit of the Von Minixes, the latter's mother-in- law asked him why he could not be put back to work. Joyce responded that there was no work then, that he was shut- ting down for economic reasons, but would consider rehir- ing Von Minix if feasible or if there were openings later. When Von Minix asked Joyce whether he (Von Minix) had to belong to the Union, Joyce replied that an election was scheduled. Joyce added, in his not uncharacteristic way of testifying, "That was about the extent of it" (emphasis sup- plied). Joyce denies that later in May he told Von Minix that if the Union came in he would "pull out." Upon the basis of comparative testimonial observations within the frame of reference of the record as a whole, I resolve this testimonial conflict by crediting the testimony of Roy Von Minix, and accordingly find these complaint allegations sustained. It is additionally alleged (C-2. paras. IOlhll]iv] and 14) that on May 29-about two weeks after Respondents stipu- lated for certification upon consent election (G.C. Eh. 10)-Respondents' Foreman Pat Montgomery again threat- ened an employee that Respondents would terminate their operations if the Union succeeded in its organizational campaign. In this regard. Respondents' former Bee-Tree Mine driller Bobby Ray Howard, a credible witness, testi- fied that he was told by Foreman Montgomery (to whom he had offered a Union card), "I told you fellows that if the Union come in, Jim Joyce is going to move out. " 42 Again, although testifying as Respondents' witness, Montgomery did not dispute making this statement, which I find was made, substantially as set forth in the complaint allegation under consideration. On May 30, a letter on Respondents' letterhead, dated that day, was delivered to its employees, stating (G.C. Exh. 87). 11I credit Roy Von Minix's testimony, over Respondents' denials, that he was hired and continued as a weigher, rather than a "atchman" or "guard." and that, although he was not actually busy at every moment "weighing" and did other things, as required. at no time he was told that he was to be or act as, or that he was regarded as, a watchman or guard. Even assuming that Von Minix from Respondents' viewpoint at one point fulfilled their alleged concept of a "guard,'" in any event that status would have been purely temporary, and it seems clear that he does not in fact fit the conven- tional concept of a guard. 4* It will be noted that the statement thus attributed to Foreman Mont- gomery is cast in substantially different form than Montgomery's earlier statement of April 10 to Horace Grant Thompson (C-2 paras 10/hl/i) and 14), which I have found not to have been in violation of the Act. for reasons indicated supra 296 MIAMI SPRINGS PROPERTIES, IN(C. RE: N.L.R.B. ELECTION The complaints (C-I/. para.. and 8 (-2. paras. //11 and 14) also allege that Respondents have, in further violation Dear /mpl/vee's name/, of Section 8(a)(1) and (3) o the Act. refused to recall or As ou know an election had been scheduled for rehire their laid-off employees because of their union mem- Friday May 30. 1975. hb the NL.RB pursuant to an bership and sympathies and because of their protected con- agreement between this company and the Mine Work- certed activities. In answer to this, Respondents allege that ers Union. However. on Mav 21. 1975. contrary to recall has been impossible because of adverse economic their prior intentions the Union blocked and effectivelk conditions leading eventually to the alleged permanent dis- canceled the election. The Mine Workers hase no1s continuance of their "Kentucky" (C-.I: third defense in an- asked the NLRB to designate them as your bargaining swer) operations. These allegations and contentions already representative without an election. What this means is have been dealt with at length, .supra and were rejected. the Union does not want to give you a chance to de- The indicated repetitive allegations thus already have been cide for yourselves whether or not you want this Union established and found. to represent you. Finally, in this regard. the complaints (('-/.- paras. 7 and I believe in the election process, which is the very 8, (C-2 paras. 11 and 14 also allege that the strike of Re- essence of democracy. The Union obviously does not spondents' employees was caused and prolonged by Re- share my beliefs. spondents' unfair labor practices. While I do not find that We do not believe the Union will be successful in the strike of Respondents' employees was caused b Re- their attempt to take out of your hands the right to spondents' unfair labor practices, there is no doubt in my vote, mind that it was prolonged by Respondents' untair labor practices. The proof submitted does not demonstrate that Sincerely', the strike was other than economic in its inception. How- ever. as has been shown and found. it was immediately followed by mass layoffs and other serious unfair labor /s' Jim Joyce practices. It is not open to reasonable doubt that the strike thereby was prolonged and converted. from the date of Jim Joyce, Pres. those layoffs, March 10. to an unfair labor practices strike. by reason of Respondents' substantial, continuing. and pro- At the hearing, Joyce swore that he had never seen this and longed unfair labor practices as shown. and I so find. knows nothing about it. I do not credit his testimony in view of the subsequent testimony of Respondents' book- keeper, Ruth Patrick (who is now employed as bookkeeper 3. Union representation picture by Respondents' alleged successor, Mountaineer Land Company, and who conceded that she is actively associated The appropriateness of the expanded (i.e.. tricount\) bar- with the defense of these proceedings), that the letter was gaining unit alleged in the complaint (C-2. para. 5) is undis- mailed to all employees after she first read it to Joyce over puted. and I find that the Union unavailingly requested the telephone (it was not composed by her) and he autho- Respondents to recognize and bargain collectively with it as rized her to sign it for him and send it out. Respondents' unit representative. as alleged in the com- On June 9, Respondents issued another letter (Resp. Eh. plaint C- ? paras. 7 ind 8) and as shown above. 13?; emphasis supplied) to their employees announcing the The General Counsel concedes in its brief that at no time intention to "start today, June 10. beginning the process of herein did the Union attain majority representational status totally, completely and permanently closing the operation. in the agreed bargaining unit." The General Counsel never- This decision is irrevocable." The complaint alleges (C-2. paras. 8(h). 9, and 14) that since March, Respondents have unilaterally and without been shown and found. Respondents' actions and documents (e.g.. G.C Exh. notice to the Union curtailed the substantial portion of the 16) pnor to as well as for a lime after the mass la)off precipitated by the strike indicate a clear intention to continue operations. and since it has not bargaining unit's operations to discourage their union ac- been demonstrated that the substantial quantities (30,000 tons monthls) of' tivities. In view of my finding hereafter made ("IIIA3." in- coal mined, processed, transported, and sold by Respondents through the fra) that it has not been established herein that the Union at instrumentality of Sheriff Patnck's A & P Coal Company after the strike. any material time represented a majority of Respondents' under Respondents' contract with Kentucky Power Company G.( Eh 84t alone, could not as well have been mined, processed. transported, and sold unit employees. I am constrained to find that this allega- by Respondents directly in addition to, or as part of. Respondents* normal tion. as pleaded, had not been established, since- inasmuch operations as carried on pnor to the strike and its resulting mass layoffs as it has not been demonstrated that the Union represented 4 This appears to be true upon the evidence adduced, both at the earliest the bargaining unit employees-Respondents were under materal dates, for the original (GC. Exh. 9) Magoffin County unit and for the intervening period to, and including formation of. the subsequently ((; no legal obligation to deal or bargain with the Union." Exh /0) enlarged unit, including also Breathitt and Knont counties As to the latter, for example, on May 20-21 (the latest material dates). the Union held no more than 59-62 cards in a bargaining unit of 134 employees (ie, actual 41 In this connection. it is noted that at the outset of the trial, the General working complement of 87 plus 23 allegedly discriminatorily discharged em- Counsel withdrew paragraph 8(a) of C-2 ployees plus 24 laid-offemployees with reasonable expectation of recall). See I do not believe I would be justified in treating that part of the allegation stipulation, G C Erh 81. and 62 union cards n eidence Since the Union's referring to the Union in para. 9 of C-2 as surplusage, since it forms an lack of majoril) at any material time holds true even excluding rom the unit integral portion of the allegation. If the allegation had stated that Respon- and the card count any of the employees "challenged" b the Empl)yer and dents curtailed their operations to discourage their employees' nion and including even those sought to be included bh the General Counsel, no deter- concerted protected activities. I would have found it established since, as has mination of any of those "challenges" is necessary Ior this purpose 297 DECISIONS OF NATIONAL LABOR RELATIONS BOARI) theless urges that a conditional bargaining order" be issued, upon the theory that except for Respondents' violations of the Act and had Respondents had continued in business it is likely that the Union would have attained majority sta- tus.4 I have had previous occasion to deal with and, under controlling Board policy, reject this argument. Cf., e.g.. Henry 1. Siegel Co., Inc., 172 NLRB 825, 840-842 (1968: union held 50 percent of unit employees' cards). enfd. 417 F.2d 1206 (6th Cir. 1969), cert. denied 398 U.S. 959 (1970). I am unfamiliar with any change, nor has any been cited to me here, in that Board policy, which still appears to be that no bargaining order may be issued where a union has not attained majority status at one material time or another. (Its subsequent loss of that status could, particularly if tied to Employer unfair labor practices, as in cases referred to by General Counsel [cf., e.g., Brooks v. N.L.R.B.. 348 U.S. 96 (1954): N.L.R.B. v. Mexia Textile Mills, Inc.. 339 U.S. 563 (1950)1, be immaterial. Concededly, since the Union at no time attained majority representational status, under what I assume to be continuing Board policy, a bargaining order must be withheld. Any change in that policy must come from or by acquiescence of the Board. '7 B. Resolution and Rationale: Recapiulaltion Respondents, with an established record of clear opposi- tion to Congressionally mandated collective-bargaining pol- icy (Board decision and order of December 31, 1974. in Case 9 CA 8642-1), have seemingly settled into obdurate resistance to that national policy, as demonstrated by their actions herein, through their mass layoff action of employ- ees immediately following their economic demands, cli- maxed by their eventual announcement of their alleged in- tention to shut down all or part of their operations, as their preferred alternative to dealing with their employees collec- tively-allegedly since, in the words of their principal (Joyce) at this trial, it is "very difficult" to talk to more than one person at a time. Others do not seem to experience such a difficulty. Arguments of those who do, more than 40 years after enactment of the Act and declaration of the national public policy underlying that statute, should be addressed to Congress, not in defense of' a proceeding to administer and execute the Congressionally declared national will. It stands established through the overwhelming weight of credited testimony of a horde of witnesses that Respondents have again in these proceedings continued their unwilling- ness to accede to their employees' attempts to deal with Respondents collectively, instead electing to attempt to bring them to heel through a wide variety of unfair labor practices, including the ultimate economic weapon of mass layoffs in reprisal for their asserting collective requests for better jobs. The spectrum of Respondents' unlawful prac- tices has been shown in detail, with specific findings made 4 I.e., conditional upon Respondents' resumption of operations which the General Counsel concedes were lawfully terminated through sale of their business. ' No election was held because of the filing of the "blocking" charge in Case 9-CA-9368 herein on May 21. 4" See, e.g., Insurance Agents' International Union (Prudential Insurance Company), 119 NL.RB 768., 773 (1957); Iowa Beef Packers, 144 NLRB 615. 616-617 (1963). upon the allegations of the complaint, as required. It vwould seem that this, as in Judge Singer's earlier case. "is one of those 'rare' cases where there is direct evidence 'of a pur- pose to violate the statule.' "4 Upon the foregoing findings and the entire record. I state the following: CON( lrSIONS () LAW A. Jurisdiction is properly asserted in this proceeding. B. By its actions, as set forth and found in "111" lsurral. constituting unfair labor practices within the meaning of the Act. Respondents have discriminated and have contin- ued to discriminate with regard to the hire and tenure of the employment and the terms and conditions of emplo ment of Respondents' employees to discourage membership in a labor organization, in violation of Section 8(a)(3i of the Na- tional Labor Relations Act, as amended. C. By said actions, referred to in Conclusions of Law "B." supra. Respondents also have interfered with, re- strained, and coerced employees in the exercise of rights guaranteed in Section 7. thereby violating Section 8Xa)( I ) of the Act. D. The aforesaid unfair labor practices and each of them have affected, affect, and unless permanently restrained and enjoined, will continue to affect commerce within the mean- ing of Section 2(6) and (7) of the Act. E. It has not been established by substantial credible evi- dence that, as alleged in paragraph "6" of the complaint in Case 9-CA -9368, since on or about March 21, 1975. or at any other time, a majority of Respondents' employees in the appropriate collective-bargaining unit set forth in para- graph "5" of the complaint, designated or selected United Mine Workers of America as their exclusive collective-bar- gaining representative, nor that the Union has at any time been such a representative. F. It has not been established by substantial credible evi- dence that Respondents have violated Section 8(a)(3) or (1) of the Act, as alleged in paragraphs 8(b) and 9 of the com- plaint in Case 9-CA 9368. G. It has not been established by substantial credible evidence that Respondents have violated Section 8(a)(3) or (1) of the Act, as alleged in paragraph 10(h)(i) of the com- plaint in Case 9 CA 9368. H. In view of Conclusion of Law "E.," pra,. entry of a remedial order, as sought in paragraph 13 of the complaint in Case 9-CA 9368, requiring Respondents to recognize and bargain with the Union in the aforesaid appropriate unit, would be unwarranted in fact and law. I. Respondents' first and second defenses in Cases 9- CA 9276 I through 9 CA 9276-5 and their first defense in Case 9 CA 9368 should be stricken out.4 J. The General Counsel's motions, upon which decision was reserved at the trial, to strike out Respondents' third defense in ('ase 9-CA 9276 1 throug 9 CA4 9276 5 and * G C Eh. 2. JD p. 7. quoting Hartsel MiMl (o . N.lR.B.. Ill F.2d 291. 293 (4th (ir 19401 14 Respondents' first and second defenwses in Cases 9 (A 9276 I hrugh 9 CA 9276 5 were stricken out at the trial without opposition on General Counsel's motion at the end of his case Respondents' first detense In (s 9 (CA 9368 is the same as their first delense In ( 'es Q (A 9276 1 through 9 (A 9276 5 and. in view of findings and conclusions herein, is without merit. 298 MIAMI SPRINGS PROPER II-S. INC( their third defense in Case 9 C,4 -. 36., should he granted. without prejudice to Respondents' reassertion thereof, if so advised, in any supplemental compliance proceeding or proceedings herein.' RltMEvDY In view of the findings and conclusions herein. Respon- dents should be required to cease and desist from continu- ing their described violations of the Act. and to take certain affirmative actions necessary to effectuate the policies of the Act. Having been found to have unlawfully laid off employ- ees in violation of the Act for exercising rights guaranteed to them under the Act, and to have refused to reinstate or rehire said employees, Respondents should be required to offer such employees reinstatement, as further explained e- low, and to recompense them by paying them backpay and interest at the "adjusted prime interest rate," as calculated by the Internal Revenue Service on tax delinquencies (cur- rently 7 percent, and as modified from time to time by the Secretary of the Treasury until compliance with the Order herein, computed as explicated in F. W. 14oolworth Com- pany, 90 NLRB 289 (1950), Isis Plumbing & Heating Co., 138 NLRB 716 (1962). and Florida Steel Corporporation,. 231 NLRB 651, 96 LRRM 1070 (1977). With regard to such employees, if any, who elected to remain on strike although they would have been reinstated by Respondents, backpay should commence from the date of their unconditional offer to Respondents to return to work', on March 21, 1975. as found in "IIIA2h," supra. With regard to Respondents' claim that it has totally or partially discontinued its busi- ness operations, the alleged date or dates, circumstances. and extent thereof are clouded with such uncertainty and doubt upon the record presented'2 that, as I indicated at the 10 See Remedy, infra "Cf Roosevelt Roofing and Sheet Metal Works Inc. 204 NLRB 671 (1973), enfd. 493 F.2d 1398 (2d Cir. 1974); Mid-1West Paper Products Co, 223 NLRB 1367 (1976). It would certainly seem, upon the record presented. that applications by the laid-off employees to return to work would have been - as. indeed, they were established to be. through the testimony of Calla How- ard and his corroborators. as well as others, as shown above- futile, since it is clear from the record that their return to work was conditioned repeatedly by Respondents on their nonalliance with the Union or nonexercise of rights (other than the stnke) under the Act-an unlawful condition. Cf .Astro Elec- tronics, Inc., 188 NLRB 572. 573 (1971). enforced, 463 F2d 176 (9th Cir. 1972). No picket-line or other misconduct sufficient to warrant nonreinstatement or backpay forfeiture has been established credibly herein. 52 There is a massive wealth of material in the record indicating. for exam- ple, that even as of the date of trinal herein, some operational activity by Respondents was continuing: that there were new employees hired and other transfers; that Respondents' stripmining bonded reclamation obligations. re- quiring manpower. were as yet unfulfilled; that Respondents continued to derive income from allied operations (e.g., A and P Coal Company of Sheriff Patrick) into which they had funneled contractual rights and expectations, that Respondents or their principals continue to hold mine lease and other local properties and interests which are actually or potentially income-pro- ducing. saleable, or manpower-requinng; that the stripmines here in ques- tion are located in a Kentucky area that borders on another State (West Virginia) in which Respondents may have similar enterprises or interests: and that Respondents or their principals, in one corporate guise or another, are even expanding their operations in the areas in question. The carefully worded and seemingly hedgingly equivocative nature of Respondents' affir- mative defenses (i.e.. "third defense") in each of their Answers raising these matters also does not escape attention. These and related matters are for searching inquiry in supplemental compliance or other proceedings or places. Cf. Northridge Knitting Mills. Inc. 225 NLRB 1054 (1976) trial, the entire matter since it essentiallx involves the amount o' backpay which may he due is fr investigation and determination in a supplemental compliance proceed- ing. In view of' the Gieneral ('ounsel's concession. howeseri. that there did come a time sahen Respondent "sold''" their "business." it may be inappropriate to require Respondenlts to reinstate the employees herein at the specific locations here. but in this connection it may he appropriate to ob- serve that the Order herein (las in the prexious oard pro- ceeding) reaches and is applicable to Respondents' succes- sors and assigns. As in Darlington Manua/c tturing (ompalnti etc.. 139 NLRB 241, 255 (1962). and for the reasons there explicated hb the Board, to restore " 'the situation, ai s nearrlx as possible. to that which would hax. obtaitned but tor the illegal discrimination'" (PhIIlp. dg- ('orp x N. LR.B.. 313 U.S. 177. 194 [19411) Respondents should also be ordered to provide backp;l until the unlatfuill, laid-otff employees are able to obtain substanti;ill eqlis- alent employ ment with the pro' so. as in Dathn[vihn sr, a at 255 fin. 44). thail if the employees are placed ot a preter- ential hiring list at other nearby locations ofl Respondents, hackpal, should be tolled as of the time they receti'e notiti- cation that they have been placed on such list. I he Order should. moreover, contain appropriate provision requirmg Respondents and their prixies to offer employment to the discriminatees in an other nearb locations they may hae. and to establish hiring preference lists in the event operai- tions are resumed: and. as in ,Vortlhridge Knittling .til/. /n. 225 NI.RB 11(54, 1054-55 (1976), jurisdiction should bhe ex- pressly reserxed to modift or supplement the Order hereill Respondents should also, as is usual in cases of this tpc. he required to preserve and open their hooks and recordls to the Board's agents for backpa 3 computation and comnpli- ance purposes. In viev. of the serious (as well as recidivistic) nature of the violations here, inolving among other things discriminatory mass layoffs in reprisals for no moire than exercising basic rights under the Act" Respondents should further be ordered to cease and desist from in any' wa violating employees' rights under the Act. Finally, posting of the usual informational Notice to Employees also should be required in any remaining local facility or location of Respondents or their prixies: and, in view of' Respondents' claim that they have discontinued their local "operations." a copy of the Order and of the Notice to Eniployees should be mailed to each of the discriminatees to insure that the' receive notification of the provisions thereof C('f. ortlritdgc Knitting 1ills. ew.. 225 NLRB 1054 (1976). [Recommended Order omitted from publication.] It is not charged or complained that an) alleged sale or disontinuance ,it Respondents' "properties," "business." or "operations." or alteration ot' its or their form. a "going concern" ( Tele W'orkers Un min Daringl-on, 280 I S 263. 272. I'n 14 [19651). constituted a violation of the Act An) such possible sale, discontinuance. or alteration does not erase Respondenl' prior (or sub- sequent) unfair labor practices, and of course. Darlington, which Respoin- dents conceded n closing argument on the record i inapplicable here. and does not hold otherwise. "The mere fact that an emplo)er ma? cease to do business certainly does not end the public interest insolved n seeing Ihat a hackpay award under the Act is satisfied" .. LR B K iloren. lrustee it Bankruptcl. 122 F.2d 609. 612 18th ('r. 1941. cert deried 114 S 096 (1941). (f. e g., :N'.RB v. Entwirtle .t C,. 120) f 2d 532. S3 ( ' 4 1941); 4 J Arajeski Jg (C>, 18) NI.RB 1071 t197111 299