Peabody Coal Co.

742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practices, tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce V THE REMEDY Having found that Respondents have violated Section 8(b)(1) (A) of the Act, it will be recommended that they be ordered to cease and desist therefrom and that they take certain affirmative action designed to effectuate the policies of the Act Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following CONcLusIONs OF LAw 1 West Seattle Dodge, Inc, Seattle, Washington, is an employer within the mean- ing of Section 2 (2) of the Act 2 Auto Trades Council of Seattle, King County and Vicinity, and its constituent members, Drivers' and Demonstrators' Local 882, Garage Employees Local 44, Auto Sheet Metal Workers Local 387, International Association of Sheet Metal Workers, AFL-CIO, Automotive Machinists Local 289, and Auto Painters Local 518 are labor organizations within the meaning of Section 2(5) of the Act 3 By picketing the premises of Dodge for the purposes of coercing and restrain- ing Dodge's employees, Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act 4 The unfair labor practices found herein are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act [Recommendations omitted from publication 7 Peabody Coal Company and Lester Phillips, CIell Price, Clair Schisler, Raymond Joe King, James D. Briney, Randall Wayne Brown, Randall Derry, Ronald R. Olson, Dewey Shaffer, Dwayne W. Danner, Robert Lindsey, John T. Britt, Wilfred S. Bulmer, Richard Stambaugh, and J. Clark Breeden. Cases Nos 13-CA-2715,13--CA-2716,13-CA-2754,13-CA-2755, 13-CA- 2756,13-CA-3757,13-CA-2758,13-CA-2759,13-CA-3760,13-CA- 2761, 13-C4-2762, 13-CA-33763. 13-CA-2764, 13-CA-2775, and 13-CA-2778 December 15, 1959 DECISION AND ORDER On July 8, 1959, Trial Examiner Albert P Wheatley issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with these cases to a three- member panel [Chairman Leedom and Members Bean and Jenkins] The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed The rulings are hereby affirmed The Board has considered the Intermedi- ate Report, the exceptions and briefs, and the entire record in these 125 NLRB No 88 PEABODY COAL COMPANY 743 cases,' and hereby adopts the findings, conclusions, and recommenda- tions 2 of the Trial Examiner, with the following modification. We agree with the Trial Examiner that the record fully supports a finding that the Charging Parties were discriminated against because of their activities in filing and handling grievances. The Trial Ex- aminer also found that although the Respondent was aware of such activities with reference to all the Charging Parties and that it re- sented such action in the majority of cases, there was no evidence that Respondent specifically resented the activities of four of the charging employees.' We perceive no necessity for a finding that Respondent showed resentment to each individual employee who filed grievances, as there is ample evidence that threats made by supervisors were to the effect that all employees who handled or filed grievances would not be employed at the Pleasant View mine. ORDER Upon the basis of the entire record in these cases, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Peabody Coal Company, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging the processing of grievances concerning rates of pay, wages, hours of employment, or other conditions of employ- ment by unlawfully discriminating against employees in regard to their hire or tenure of employment or any term or condition of employment. (b) Threatening employees with economic reprisals because of their activities in processing grievances concerning rates of pay, wages, hours of employment, or other conditions of employment. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to engage in any or all of the activities specified in Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act. I The Respondent's request for oral argument is denied as the record , exceptions, and briefs adequately present the issues and the positions of the parties. 2 As the discrimination against Richard Stambaugh began on March 5, 1958, we shall order that he be made whole from that date rather than from February 13, 1958, as recommended by the Trial Examiner. 3 Randall Derry ; Dwayne Danner ; Robert Lindsey ; J . Clark Breeden. 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Offer to Lester Phillips, Clell Price, Clair Schisler, Raymond Joe King, James D. Briney, Randall Wayne Brown, Randall Derry, Ronald R. Olson, Dewey Shaffer, Dwayne W. Danner, Robert Lind- sey, John T. Britz, Wilfred S. Balmer, Richard Stambaugh, and J. Clark Breeden immediate and full reinstatement in the manner set forth in the section of the Intermediate Report entitled "The Rem- edy," without prejudice to any rights and privileges. (b) Make whole, in the manner set forth in the section of the Inter- mediate Report entitled "The Remedy" as modified herein and in accordance with the customary formula of the National Labor Rela- tions Board, the persons named in the next preceding paragraph for any loss of pay they may have suffered by reason of the discriminations against them. (c) Preserve and, upon request, make available to the National Labor Relations Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, per- sonnel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this Order. (d) Post at its place of business near Pleasant View, Illinois, copies of the notice attached hereto marked "Appendix." 4 Copies of said notice, to be furnished by the National Labor Relations Board's Regional Director for the Thirteenth Region, shall, after being duly signed by Respondent's representative, be posted upon receipt thereof and maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by other material. (e) Notify the Regional Director for the Thirteenth Region in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. 4 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WVE WILL NOT discourage the processing of grievanecs concern- ing rates of pay, wages, hours of employment, or other conditions of employment by threatening employees with economic reprisals because of such activities or by discriminating in any manner in regard to terms or conditions of employment. PEABODY COAL COMPANY 745 WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, by an agreement requiring membership in a labor organization as a condition of employ- ment as authorized in Section 8(a) (3) of the Act, as modified by the Labor Management Reporting and Disclosure Act of 1959. WE WILL offer to Lester Phillips, Clell Price, Clair Schisler, Raymond Joe King, James D. Briney, Randall Derry, Ronald R. Olson, Dewey Shaffer, Dwayne W. Danner, Robert Lindsey, John T. Britz, Wilfred S. Bulmer, Richard Stambaugh, and J. Clark Breeden production jobs at our Pleasant View facilities substantially equivalent to the production jobs they held prior to the closedown of our Astoria and Camp Ellis facilities. WE WILL offer to Randall Wayne Brown warehouse work at our Pleasant View facilities substantially equivalent to the ware- house job he held prior to the closedown of our Astoria and Camp Ellis facilities. WE WILL, make whole the employees named above, except Richard Stambaugh, for any loss of pay they may have suffered since February 13, 1958. We will make whole Richard Stam- baugh for any loss of pay he may have suffered since March 5, 1958. PEABODY COAL COMPANY, Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDATIONS ISSUES This proceeding involves Respondent's (Peabody Coal Company ) mining opera- tions in Fulton and Schuyler Counties , Illinois. From 1951 tc December 13, 1957, Respondent mined coal near Astoria in Fulton County and processed the coal mined at that location through a preparation plant located at Astoria. From April 1957 to January 31, 1958, Respondent extracted coal from a pit located at Camp Ellis, Fulton County, Illinois, which is about 13 miles from Astoria. The coal taken from the Camp Ellis pit was processed through the preparation plant at Astoria. On February 13, 1958, Respondent commenced the regular production of coal near Pleasant View, Schuyler County, Illinois,' which is about 23 miles from Astoria and about 40 miles from Camp Ellis. The coal 1 The first 10 men hired at Pleasant View were given production classifications and pay on or about January 6 , 1958, but the regular extraction and preparation of coal did not begin until February 13, 1958. Prior to that time the employees at Pleasant View were engaged in the erection of facilities and machinery to be used when the Pleasant View op- eration began the regular production and processing of coal. 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD taken from the Pleasant View Pit was, and is, processed through a preparation plant at that location. The primary issue herein is whether the 15 Charging Parties were laid off, at the time of the cessation of production operations in Fulton County, and not, thereafter, given production work at the Pleasant View site because, while employed at Astoria and Camp Ellis, they made complaints and filed grievances on their own behalf and/or on behalf of other employees. BUSINESS INVOLVED The complaint alleges, and Respondent's answer admits, that Respondent is an Illinois corporation engaged in the mining of coal at various mines located in the States of Illinois, Indiana, Ohio, Kentucky, Missouri, and Oklahoma; that Respond- ent maintains its principal office in St. Louis, Missouri; that Respondent annually ships into and through several States of the United States coal valued at in excess of $100,000,000; and that Respondent is, and at all times material herein has been, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. THE UNFAIR LABOR PRACTICES In August 1956, an independent contractor employed by Respondent commenced the initial construction work at the Pleasant View site. This construction work consisted of roadmaking, the erection of a combination office building and garage, and other related construction work. Mining of coal at the Astoria site began to come to an end in 1957 and on December 13, 1957, coal production ceased. However, prior to the cessation of production at Astoria, Respondent moved some of its mining equipment to the Camp Ellis site and extracted coal from there from April 1957 to January 31, 1958, when coal production suddenly, and without prior notice, stopped upon the orders of Respondent's president, Merl C. Kelce, to Mine Superintendent William Imlay, to close down these operations at once.2 At that time 29 miners, including 14 of the Charging Parties, were laid off. Richard Stambaugh had been moved earlier (on January 13, 1958) to Pleasant View where he worked until March 5, 1958, doing construction work.3 Of the 29 laid off 6 were later employed at Pleasant View on production work.4 The others, including each of the Charging Parties, have not been given production work at Pleasant View although some have been given con- struction work there. Starting in August 1957 Respondent commenced to erect at Pleasant View a prep- aration plant and other buildings to be used at that site when Respondent began pro- ducing and processing coal there. This work was going forward while both Astoria and the Camp Ellis facilities were in operation-Astoria on a progressively dimin- ishing scale. Respondent used its own employees for this work (construction work at Pleasant View)-obtaining them from a variety of sources. Some of them had been previously employed at Respondent's mines located in other parts of the country; some of them had previously worked at Astoria and Camp Ellis; and some of them were hired from the local market of Pleasant View and Rushville.5 Prior to the cessation of production operations at Camp Ellis the complement of con- struction workers at Pleasant View reached 119. Subsequently additional men were hired at this location. As noted above, production at Astoria and Camp Ellis-Astoria on a progressively diminishing scale-continued while the Pleasant View facilities were being con- structed. As production decreased at Astoria employees were moved from there to Camp Ellis and to Pleasant View. The more experienced and senior employees went to Camp Ellis where they continued to perform production work at higher rates 2 While the orders to close down were not expected at the time given and did not come through the normal chain of command it is apparent from the record as a whole that Respondent had prior thereto considered closing down these facilities at or about the time of the actual closedown shortly thereafter and that the closedown was not surprising to the persons involved except for the urgency of the orders and the fact that they came directly to the mine superintendent from Respondent's president instead of Respondent's general superintendent (William Hartman). 8 Construction work is not as desirable as production work-primarily because the wage rate is lower. " Glen Gentle, William Fray, Floyd Williams, Howard Williamson, Harrell Burnett, and Joe Bertetto. 6 Rushville is the post office address used by Respondent for its Pleasant View operations. PEABODY COAL COMPANY 747 of pay than they would have earned on construction work at Pleasant View. There is no contention herein that the Charging Parties should have been sent to do the construction work at Pleasant View and no contention that Respondent violated the Act by sending the Charging Parties to Camp Ellis. However, it does appear to be the contention of the General Counsel that the prevailing circumstances-- the simul- taneous opening of a production site (Camp Ellis) and of a construction site (Pleas- ant View)-afforded Respondent an opportunity to move, lawfully, its more senior and more union-minded employees to a site having a limited production expectancy and its less senior and less aggressive employees to a site having a long production expectancy once it got into production and that Respondent capitalized upon his opportunity when Pleasant View production operations began. As noted earlier in this report , Respondent commenced the regular production of coal at Pleasant View on February 13, 1958. At that time it selected its production employees from the group of employees who were then engaged in construction work at that site. At that time Respondent had many more construction employees than were needed for production operations . The excess construction workers were placed upon a panel from which at later times production workers were to be selected as needed. Since the Charging Parties, except for Stambaugh , were not then engaged as construction workers at Pleasant View , they were not considered (by Respondent) eligible for production work. Apparently, Stambaugh was considered but not se- lected. The General Counsel contends that Respondent was not obliged to select its production workers from its construction employees (a fact which , apparently, is not disputed although there is considerable evidence that this was not an unusual procedure ) and that this method of selection was a pretext used as a means of eliminating from Respondent's employ persons who had irritated and aggravated Respondent by their vigorous and constant handling of complaints and grievances. During the operation of the facilities in Fulton County , many grievances or demands regarding rates of pay, wages, hours of employment , or other conditions of employment were presented to Respondent's officials by employees .6 There is no doubt that the Charging Parties during their employment filed grievances or demands upon Respondent in varying numbers and with varying aggressiveness and success. The core of this case is whether they were penalized for this conduct and the answer to this problem depends upon the credibility of witnesses. Witnesses for the General Counsel attributed to supervisors for Respondent many acts and state- ments clearly indicating resentment of this conduct and intent to penalize employees therefor and witnesses for Respondent denied engaging in the conduct or making the statements attributed to them. After observing the witnesses and carefully analyzing the record and the well-prepared briefs submitted by counsel for the General Counsel and counsel for Respondent , the Trial Examiner cannot conclude that neither group should be relied upon and that the case should be dismissed for failure to carry the burden of proof. To the contrary, the Trial Examiner believes that the witnesses for the General Counsel should be credited . They appeared to be truthful witnesses ; the circumstances under which Respondent 's supervisors allegedly engaged in the conduct and made the statements attributed to them (which circumstances in many instances are not denied ) tends to support their testimony rather than the testimony of Respondent 's witnesses 7 and their testimony is not self-conflicting and contradictory . On the other hand, Respondent 's witnesses did not appear to be as direct and forthright , in many instances they appeared to be reluctant, less than candid , evasive, argumentative, and in some instances contra- e The procedure of taking up grievances or demands was established by practice and by the contract between Respondent and the United Mine Workers of America. The employee took up his demand or grievance with the pit boss or the mine superintendent and if no adjustment was made then the pit committee met with the superintendent. The pit committee consisted of three elected employees plus the president of the local union. If no adjustment was made then the claim was referred to the district executive board member of the United Mine Workers who, during the times material herein , was Bernard J. Beasley . In the event that Beasley and the mine superintendent were unable to adjust the matter , it was written up and presented to the joint group board which consisted of Henry Nowers, on behalf of Respondent, and Beasley , on behalf of the employee. If no adjustment was made at this point then the matter was referred to an arbitrator who then rendered his decision . All cases that went as far as the joint group board were printed with the findings in a booklet entitled , "The Bulletin." 7 For example, the fact that the expression "dying on the vine" was in common use tends to support the General Counsel's witnesses that Supervisor Barding told them when they reported to Camp Ellis that they were going to "die on the vine" rather than Barding's denial that he ever heard the expression "dying on the vine." 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dictory of themselves and one another. Furthermore, the persons accused of improper conduct in many instances, appeared to be of a temperament likely to engage in the conduct and to make the statements attributed to them under the circumstances revealed by this record. As indicated above, many acts and statements indicative of resentment and intent to penalize are attributed to Respondent herein. However, all such acts and statements (although considered by the Trial Examiner) are not described herein so as not to burden unnecessarily this report. Nevertheless, the Trial Examiner is describing a sufficient number of such matters to reflect to the reader the cir- cumstances involved. In September 1954 Dewey Shaffer demanded compensation for September 4 and .5 and that he be classified as a groundman on the third shift. The joint group board (see footnote 6) awarded him the classification and compensation sought. When Shaffer informed Mine Superintendent Imlay of this grievance, Imlay tried to persuade Shaffer to drop his claims and told him "we're going to be moving to Schuyler County one of these days, and all you damn men causing us this trouble, taking up these grievances won't be going." 8 Sometime during 1955 James Briney demanded 8 days' compensation that he thought he was entitled to and at that time Mine Superintendent Imlay cautioned him against filing grievances and getting his name in the bulletin (see footnote 6) indicating that Respondent anticipated moving to Schuyler County "one of these days" and that employees engaging in such activities would not get a job there.9 Sometime in August 1957, Randall Brown talked to Mine Superintendent Imlay .about the possibility of getting a job at Pleasant View. Imlay then told Brown, "I'll do the best I can, I'll see what I can do." Shortly thereafter Brown had a conversation with Jack Barding, pit foreman at Camp Ellis, and told him that he thought he was going to get a job at Pleasant View since Imlay had told him that he would do the best he could for him. Barding then told Brown, "They won't-I don't believe St. Louis office would let him." Brown then inquired, "Why not Jack?" Barding then said, "Well, because of grievances and trouble they had with you when you were in the union." 10 On or about August 1, 1957, Lester Phillips was moved from Astoria to Camp Ellis. When he reported for work at Camp Ellis he was greeted by Pit Foreman Barding with "Welcome to the Vines; it looks like you're hung on the vine too." A few days later Barding told Phillips that he would not have a job at Pleasant View when it began production operations because persons who had been aggressive in processing grievances would not obtain production work there (at Pleasant View)." 11 In September 1957, Raymond Joe King went to Freeburg, Illinois, and had a conversation with Bill Price, superintendent of the River King Mine, regarding a job at that mine. The River King Mine was a mine owned by the Respondent Company. During this conversation King asked Price, "Bill, what happened to my job?" To which, Price replied, "Raymond, I can't put you to work." When King 8 The above findings of fact are based upon the testimony of Shaffer. On February 10, 1959, as a witness called by the General Counsel, Inlay testified he did not recall this conversation with Shaffer. On February 20, 1959, as a witness for Respondent, Imlay denied making the statements attributed to him by Shaffer. Imlay did not give his version of this conversation. e Based upon the testimony of Briney. Imlay testified he did not recall the conversa- tion with Briney and did not recall making a statement similar to the one under consideration. 10 Based upon the testimony of Brown, a charter member of the local involved herein (Local 9353) and its first president and one of the first, if not the first, employees to process a grievance at the mine (Astoria). In the light of the fact that Brown was not active in the Union or the handling of grievances after 1949 or 1950 considerable suspicion is cast upon his testimony noted above. Nevertheless, in the light of the entire record and the appearance of the witnesses as they testified, the Trial Examiner credits Brown's testimony noted above rather than Barding's denial that he made the statements attributed to him. 11 Phillips, throughout the approximately 10 years of his employment at Astoria and Camp Ellis, was one of the most active employees in filing and handling of complaints and grievances (either on his own behalf or on behalf of others as president of the local or as a member of the local's pit committee) and there is considerable credible evidence in this record that Respondent resented his activity. Viewed against this background and the fact that Barding did not appear to be a direct and candid witness and in the light of analysis of the record herein, the Trial Examiner credits Phillips' testimony noted above rather than Barding's denials that he made the statements attributed to him. PEABODY COAL COMPANY 749 asked for a reason, Price stated, "Well when a man takes another employee from another mine, I have to clear that through St. Louis and with the superintendent that's over the construction where you're working and a report came back on you that you were raising all kinds of hell up there, I can't use you." 12 Upon returning from Freeburg, King told Paul Emil Simmler, assistant mine superintendent at Astoria, about his conversation with Price and inquired whether he (Simmler) had blackballed him. When Simmler stated he had not, King inquired whether he knew who did . Simmler stated he guessed it was Don Johnson, general super- visor over strip mines, as a retaliation against King for his part in processing a grievance (in 1953 ) asking for the removal of a tipple foreman. King then con- tacted Don Johnson and asked him whether he had stopped the transfer (from Astoria to River King) and Johnson said he did not know anything about the matter. A few days later King met Astoria Mine Superintendent Imlay on a street in Havana, Illinois, and explained the situation to him adding that he (King) had been informed that he (Imlay) had blackballed him (King) and asked Imlay why. Imlay responded, "King, everything you've done the last six years is on Merl Kelce's [president of Respondent] desk and they've been waiting to get even with you." 13 In November 1957, Ronald Olson went to the mine office to talk to Mine Superin- tendent Imlay about an employee by the name of Steve Hackett. Prior to this Olson, as president of the local, had agreed to allow Hacket to come over from Pleasant View to work at the Astoria site to unload some heavy equipment off rail- road cars. Hackett was subsequently assigned other jobs at Astoria. Olson stated to Imlay, "Bill, you asked to have Hackett brought over to work on this machine and he has been sent over to help me at the job and some of the men are very dissatisfied about it, being we have men laid off that are competent to do the work." Imlay questioned Olson as to who was dissatisfied and upon being told "several of the fellows," stated "You guys can raise all the hell you want now, and take up the grievances against the company but this mine will not be here very long, then you can all set home and smoke your pipes." 14 About January 10, 1958, Lester Phillips had a conversation with Mine Superin- tendent Imlay in front of the office at Pleasant View. Prior to this time Phillips had heard that he was not going to get a job when Camp Ellis shut down and so he went to talk to Imlay about it. Phillips said to Imlay, "Bill, I came over to see if I've got a job over here." When Imlay told him he did not have, Phillips said, "Well, I "King was one of the most active employees in filing and handling of complaints and grievances ( either on his own behalf or on behalf of others as an officer of the local or as a member of the local's pit committee). 13 Based upon the testimony of King . Price is deceased and did not testify herein. Simmler's version of this conversation is that he (Simmler) asked King how he made out and that King answered he did not know yet and asked whether Price had made inquiries concerning him (King) and that he ( Simmler) answered "No," and that ended the conversation about this matter . Simmler denied making the statements attributed to him by King. Don Johnson did not testify herein. Imlay, as a witness called by the General Counsel, testified he recalled conversations with King about his efforts to get a job at the River King Mine but that was all he remembered about it-he did not remember the substance of the conversations except that it had to do with King's efforts. As a witness for Respondent , Imlay denied making the statements attributed to him by King and testified that King remarked that he (King ) was interested in a job at the River King Mine and asked him (Imlay ) for a job ( apparently at Pleasant View) and he (Imlay ) told King the opening of the Pleasant View site was a long time off and that is all that was said about this matter. Barney Kahn , a Havana businessman who was present during the conversation between Imlay and King, corroborated Imlay 's version of this conversation and denied that Imlay made the statements attributed to him by King. The credibility issues now under consideration are, perhaps , the most bothersome and difficult involved in this proceeding . Nevertheless, in the light of the entire record, in- cluding King's efforts to get a job at the River King Mine and his concern and activity about not getting such a job , the Trial Examiner believes and finds King's version of these events more probable than the other versions and credits his version thereof. 14 Based upon the testimony of Olson. Imlay, when called as a witness for the General Counsel ( the General Counsel's first witness ), testified he did not recall having a con- versation in November 1957 with Olson "regarding some grievances that he [Olson] was presenting in behalf of certain employees ." As a witness for Respondent , Imlay categori- cally denied ever making the statements attributed to him by Olson . Imlay did not give his version of this incident. 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD just can't believe it is because of my work; hasn't that been satisfactory?" Imlay responded that his work had been satisfactory but "ever since you took up this case against the Company in 1952, made them put you on seventy-four hundred,15 that decision has been laying on the desk in St. Louis to get rid of you. I couldn't put you to work if I wanted to." 16 On January 26, 1958, Pit Foreman Jack Barding interrogated Lester Phillips about his filing of the charges involved in this matter and asked Phillips whether he thought he had a meritorious case. When Phillips explained why he thought he had, Barding replied that the reason he was not going to get a production job at Pleasant View was because of his activity in handling grievances, especially the 1952 grievance involving the groundman's job around the seventy-four hundred stripper (mentioned earlier in this report)-that Superintendent Imlay had "never got over it and neither has the company." 17 During the early part of January 1958 Raymond Joe King was shifted from Astoria _to Camp Ellis. When he arrived at Camp Ellis he was told by Pit Foreman Jack Barding "I guess you 'know you're up here, going to die on the vine like the rest of us undesirables." When King responded that he was going to make efforts to keep his job with the Company, Barding told him that Superintendent Imlay resented his (King's) activity in connection with grievances and that it looked like those active in handling grievances, especially King, were "all done." 18 Thereafter (on February 1, 1958) King called upon William Hartman, general superintendent over the mines involved herein, regarding the possibility of getting a job at Pleasant View. Hartman told King that Mine Superintendent Imlay was doing the hiring for Pleasant View and he should see Imlay without further delay. On February 3, 1958, King asked Imlay for a job at Pleasant View. There is a conflict of testimony concerning Im- lay's reply. According to King, Imlay indicated that King had been sent to Camp Ellis because he (Imlay) did not want him (King) at Pleasant View but, neverthe- less, he (Imlay) would take the matter under consideration. Imlay denied making these statements and testified he told King his prospects for getting a job at Pleasant View were very slim because "we have enough men down there on our construction crew now" and the production workers would be obtained from the construction crew. As indicated elsewhere in this report the Trial Examiner has in several instances credited the testimony of the employees rather than that of Imlay. How- ever, in this instance the Trial Examiner on the basis of the entire record and the reasonable inferences therefrom believes and finds Imlay's version of this conversa- tion more probable than that of King. King's version is out of tenor with the re- liable evidence in this record whereas Imlay's version is consistent therewith. The Trial Examiner credits Imlay's version. On February 14, 1958, James Miller, an employee of the Respondent working at Pleasant View, approached Mine Superintendent Imlay and asked him why he had not been I of the 39 men put on production the previous day. He told Imlay he had been the 13th man on the job and could not understand it. Imlay then told Miller, "Well, we've got some thirty-year men to look after." To which Miller replied, "Well I've been with you for ten years and you've got men with six months working." Imlay then said, "Well, anybody that's ever filed any grievances against me will never go to work over here." Miller then told Imlay, "Why, Mr. Imlay, I don't know 15 In June 1952 Phillips filed a grievance to be classified as a groundman around the seventy-four hundred stripper. The matter went to arbitration and Phillips was awarded the groundman's job and $500 in backpay. (See footnote 6.) ie Based upon the testimony of Phillips. Imlay denied that any such conversation took place and denied making the statements attributed to him by Phillips. The entire record herein and the other matters which the Trial Examiner credits ]ends 'a ring of truth to Phillips' testimony now under consideration and the Trial Examiner hereby credits it. Based upon the testimony of Phillips. Barding admitted he and Phillips had a conversation about the time in question concerning Phillips' filing of charges but denied that he made the statements noted above regarding the reasons why Phillips was not going to get a production job at Pleasant View. According to Barding he criticized Phillips for being absent from work without permission and they had no conversation about Phillips getting a production job at Pleasant View. Barding's testimony covering this matter does not stand up under analysis. To the contrary, it tends to support the impression which the Trial Examiner obtained from visual observation that Barding was not a reliable witness. 13 Based upon the testimony of King. Barding denied making the statements attributed to him .by King. PEABODY COAL COMPANY 751 that I've ever caused you any trouble ." 19 Imlay then turned and walked into the office.20 There is no evidence that the six men laid off when Camp Ellis closed down and later employed at Pleasant View on production work (see footnote 4) were active in handling grievances although the record does reflect that Glen Gentle served on the pit committee (see footnote 6) from July 1, 1948, to June 30, 1949 , and from July 1 , 1951 , to June 30, 1952, and was vice president of the local union involved herein from June 24, 1953, to June 30, 1954. As already noted in this report , Pleasant View production workers were selected from the group of employees who were then engaged in construction work at that site and through this method of selection Respondent eliminated from its employ persons active in filing and processing grievances , since they were not then employed as construction workers at Pleasant View. Furthermore, the evidence reveals and the Trial Examiner finds that this elimination was not a mere incidental result, but was in accordance with a deliberate design by Respondent to rid itself of persons active in filing and processing grievances. In the light of the foregoing it appears , and the Trial Examiner finds, that the selection of production workers at Pleasant View was on a discriminatory basis and that persons active in filing and processing grievances were laid off at the time of the closedown of Camp Ellis and not thereafter recalled (at Pleasant View) for production work because of such activities. As noted above, Lester Phillips and Raymond Joe King were told why they were not given production work at Pleasant View and the information imparted to them establishes clearly that they were discriminated against because of their handling of grievances. The record herein reflects that Richard Stambaugh was active in handling griev- ances and that Respondent was aware of such activities . Also, his testimony, which the Trial Examiner credits, establishes that Respondent resented such activities. As noted earlier in this report Stambaugh was working at Pleasant View as a construc- tion worker when Respondent commenced the regular production of coal there but was passed over for production work. In his testimony before the Trial Examiner, Mine Superintendent Imlay evaded the question of why Stambaugh was not given production work. However, on or about March 12, 1958 , Stambaugh and Tipple Foreman Claude Reed engaged in a conversation about the men put on production work at Pleasant View and during the course of this conversation Stambaugh asked why he did not get such work. Reed responded that he had not gotten production work because he had caused too much trouble-made too many demands on the Company.21 Whether other Charging Parties were discriminated against depends upon the inference to be drawn from their activity in filing and handling grievances and Respondent's acts and statements indicative of resentment and intent to penalize for such activity, some of which are noted above. It is believed that nothing further need be written with respect to this latter matter. The fact that Dewey Shaffer, James Briney, and Ronald Olson were active in handling grievances and that Respondent was aware of and resented such activity has been previously noted and nothing further need be written with respect to these matters. Upon the entire record herein, including the information noted above , the Trial Examiner infers and finds that Shaffer, Briney, and Olson were discriminated against because of their handling of grievances. During most of his employment with Respondent , Randall Brown was Respond- ent's warehouseman . However, on January 4, 1958, he was sent to Camp Ellis where he worked as assistant pit foreman (a nonsupervisory job) until he was laid ]9 In fact , during 1955 or 1956 Miller had filed a grievance which was decided in his favor by the joint group board ( see footnote 6). 20Based upon the testimony of Miller . Imlay denied telling Miller "that anyone who has ever signed any grievance against me will never go to work at Pleasant View" and testified that Miller "never caused us any trouble" and that he (Imlay ) did not recall any conversation similar to that noted above. 21Based upon the testimony of Stambaugh . Reed denied that any such conversation took place and denied making the istatements attributed to him. Sam Cassel , another employee of Respondent, who according to Stambaugh was present at this conversation, testified concerning this matter but his testimony is to uncertain to be of any real value in determining credibility . As noted above, and in the light of the entire record, the Trial Examiner credits Stambaugh. 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD off with the closing down of that pit on January 31, 1958. There is no issue herein as to whether Brown should have been given production work at Pleasant View. The issue with respect to Brown is whether he was laid off and not thereafter recalled for warehouse work for discriminatory reasons. At Pleasant View the warehouse and scalehouse, which were two separate build- ings at Astoria, were combined in one building and only one man (Kenneth Derry) was used for both jobs. At Astoria, Brown ran the warehouse and Deny ran the scalehouse. Respondent contends that Derry 22 was selected instead of Brown because he (Deny) was better qualified for the job at Pleasant View. The General Counsel disputes this contention and claims that Brown was laid off and not recalled because of his activity in processing a. grievance in 1949. Although Respondent's contention as to who was better qualified is suspect, a determination of this issue need not be made herein for, as noted above, Respondent was well aware of Brown's activities in connection with grievances and resented such. Considering these facts together with the evidence of discriminatory motive (outlined above) an inference or finding is warranted and is hereby made, that Brown was discriminated against because of his activity in processing a grievance in 1949. The record herein reflects that Clell Price, Clair Schisler, and John Britz were active in handling grievances and that Respondent was aware of such activities. Furthermore, the testimony of Price, Schisler, and Britz, which the Trial Examiner credits, establishes that Respondent resented such activities. Upon the entire record herein, including the information noted in this report, the Trial Examiner infers and finds that Price, Schisler, and Britz were discriminated against because of their handling of grievances. The record herein reflects that Randall Derry, Dwayne Danner, Robert Lindsey, and J. Clark Breeden were active in handling grievances and that Respondent was aware of such activities. However, there is no particular evidence that Respondent resented their activities in this regard. Accordingly, a question arises as to whether the evidence previously outlined to the effect that Respondent endeavored to rid itself of persons active in handling grievances is sufficient to warrant an inference or finding that these employees were discriminated against for this reason. The Trial Examiner believes such an inference or finding warranted and hereby makes such. In April 1957, Wilfred Bulmer was laid off. Bulmer conferred with Ronald Olson, then vice president of the local union involved herein, and was told (by Olson) that he (Bulmer) had been laid off out of seniority and that he had a meritorious grievance that should be 'presented to Mine Superintendent Imlay. Thereafter both Olson and Bulmer (separately) conferred with Imlay about this matter. Imlay indicated his resentment about this claim but, nevertheless, recalled Bulmer, after Bulmer indicated an intention to file a grievance claiming that his layoff was not proper and a claim for $1,800 for the time lost.23 In view of the foregoing and the evidence to the effect that Respondent endeavored to rid itself of persons active in handling grievances, the Trial Examiner infers and finds that Bulmer was discriminated against because of his activity in the handling of the aforementioned grievance. Respondent contends that even if discriminations occurred they did not violate the Act since the United Mine Workers of America represented the employees at the various mine sites and consequently there was no encouragement or discourage- ment within the meaning of Section 8(a)(3) of the Act. This contention is hereby rejected. See The Radio Officers' Union of the Commercial Telegraphers Union, AFL v. N.L.R.B., 347 U.S. 17. In summary, the Trial Examiner concludes and finds that: (1) Respondent dis- criminated in regard to the terms and conditions of employment of Lester Phillips, Clell Price, Clair Schisler, Raymond Joe King, James D. Briney, Randall Wayne Brown, Randall Deny, Ronald R. Olson, Dewey Shaffer, Dwayne W. Danner, Robert Lindsey, John T. Britz, Wilfred S. Bulmer, Richard Stambaugh, and J. Clark Breeden in violation of Section 8(a)(3) and (1) of the Act; (2) Respondent interfered with, restrained, and coerced its employees in violations of Section 8(a)(1) of the Act by the aforementioned discriminations, and by threats of reprisal or force; and (3) these unfair labor practices occurring in connection with m Derry had less seniority than Brown. Generally in the conduct of its business Respondent recognized the seniority principle. 23 Based upon the testimony of Olson and Bulmer. Imlay testified that he did not recall talking to Bulmer about this matter and denied making a particular statement which Olson testified he did make when he (Olson) talked to him about this matter. Imlay did not give his version of the conversation between himself and Olson. INTERNATIONAL HOD CARRIERS', LOCAL NO. 1149 153 the operations of Respondent's business, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of the Act, the Trial Examiner recommends that Respondent , to effectuate the policies of the Act, cease and desist therefrom and take the affirmative action hereinafter specified. As noted above, the Charging Parties, except for Brown, were not recalled (after being laid off) for production work at Pleasant View because of their aggressive handling of grievances and Brown was not recalled for warehouse work for similar reasons. To remedy the discriminatory action taken and restore the situation to that which would have existed but for the unfair labor practices, the Trial Examiner recommends that Respondent offer to the Charging Parties employment at the Pleasant View site substantially equivalent to that which they would have had but for Respondent's unfair labor practices and that Respondent make whole these individuals for any loss of pay they may have suffered by reason of the discrimina- tions against them . However, the Trial Examiner does not accept the General Counsel's recommendation that they be made whole from the dates of their layoffs. To the contrary, the Trial Examiner recommends that backpay be computed from February 13, 1958-the date Respondent commenced the regular production of coal at Pleasant View. While the Trial Examiner believes and finds that Respondent capitalized upon the layoffs to rid itself of aggressive handlers of grievances he is not convinced that the layoffs themselves were motivated by this consideration. The Trial Examiner believes the evidence adduced insufficient to establish that the layoffs were without economic justification. While it is true, as Respondent notes in its brief, that the complaint does not allege discriminatory refusals to hire the Charging Parties at Pleasant View, it is also true, as noted in Respondent's brief, that the primary matter involved herein (and litigated ) concerns the manner in which Respondent selected its production employees at Pleasant View and its failure to select the Charging Parties. Any contention that the Trial Examiner is precluded from considering the manner of selection and failure to select and to fashion an appropriate remedy, because these matters were not pleaded, is hereby rejected. See Carolina Mirror Corporation, 123 NLRB 1712. [Recommendations omitted from publication.] International Hod Carriers', Building and Common Laborers Union of America, Local No. 1149 and James R. Lang and Lloyd L. Lang, d/b/a Lang Brothers International Union of Operating Engineers, Local 132-A, B & C and James R. Lang and Lloyd L. Lang, d/b/a Lang Brothers. Cases Nos. 6-CD-106 and 6-CD-107. December 15, 1959 DECISION AND DETERMINATION OF DISPUTE This proceeding arises under Section 10(k) of the Act, which provides that "Whenever it is charged that any person has. engaged in an unfair labor practice within the meaning of paragraph 4(D) of Section 8 (b), the Board is empowered and directed to hear and deter- mine the dispute out of which such unfair labor practices shall have arisen.. .." 125 NLRB No. 95.