Paramont Mining Corp.

PARAMONT MINING CORPORATION Paramont Mining Corporation and United Mine Workers of America. Cases 5-CA-8402 and 5-CA- 8475 December 11, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS MURPHY AND TRUESDALE On July 20, 1978, Administrative Law Judge Jen- nie M. Sarrica issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Paramont Mining Cor- poration, Wise, Virginia, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE JENNIE M. SARaICA. Administrative Law Judge: This is a proceeding under Section 10(b) of the National Labor Re- lations Act, as amended (29 U.S.C. 151, et seq.), hereinafter referred to as the Act. Based on charges filed on February 7 and March 10, 1977,' in Case 5-CA-8402, a complaint was issued on March 31, presenting allegations that Para- mont Mining Corporation, hereinafter referred :o as the Respondent, committed unfair labor practices within the meaning of Section 8(a)( 1) and (3) and Section 2(6) and (7) of the Act. Based on charges filed on March 9, in Case 5- CA-8475, a complaint was issued on April 13 which also presented allegations of violations by Respondent of Sec- tion 8(a)(3) and (I) of the Act. By order dated April 14, the Regional Director of the National Labor Relations Board for Region 5 issued his order consolidating these cases. The IAll dates herein are in 1977, unless otherwise Indicated Respondent filed an answer denying that it committed the violations of the Act alleged. Upon due notice, the consoli- dated case was heard before me at Wise, Virginia, on June 13 and 14. Representatives of all parties entered appear- ances and had an opportunity to participate in the pro- ceeding. Based on the entire record, including my observation of the witnesses, and after due consideration of briefs and argument, I make the following: FINDINGS AND CONCLUSIONS I JURISDICTION It is alleged in the complaint and admitted in the answer that Respondent, a Virginia corporation, is engaged in the mining, processing, and sale of coal at various locations in and around Wise, V:rginia. Since it commenced operations in September 1976, Respondent has sold and shipped in interstate commerce coal valued in excess of $50,000 to points outside the State of Virginia. At all times material herein, Respondent is and has been an "employer" as de- fined in Section 2(2) of the Act, engaged in "commerce" and in operations "affecting commerce" as defined in Sec- tion 2(6) and (7) of the Act, respectively. II THE LABOR ORGANIZATION It is alleged in the complaint and admitted in the answer that, at all times material herein, United Mine Workers of America, hereinafter referred to as the Union, is and has been a labor organization within the meaning of Section 2(5) of the Act. 111 THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues I. Whether Respondent interfered with, restrained, and coerced its employees by the following conduct: (a) Threatening loss of jobs if employees selected the Union as their collective-bargaining representative. (b) Interrogating employees concerning their union ac- tivities. (c) Threatening employees with physical harm and in- jury should they' engage in union activities. (d) Threatening surveillance of union activities. (e) Threatening employees with discharge because of their membership in, assistance to, and activities on behalf of the Union. (f) Engaging in surveillance. (g) Creating the impression that union activities of em- ployees were under surveillance. 2. Whether Respondent discriminatorily discharged Willard Moore, James Charles Hubbard, Winford L. Hub- bard, and William H. Collins because of their activities on behalf of the Union. B. Background Respondent is engaged in the strip mining of coal, in large part a reworking of old areas strip mined 15 years 699 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ago. It mines four or five different grades of steam coal, primarily used by utilities, and four qualities of metallurgi- cal coal used in manufacturing. The latter is by far the more profitable. Respondent's present operation represents the merger ii September 1976 of several strip mining oper- ations 2 in the area of Wise, Virginia. Its office, a tipple or coal loading railroad facility, and the repair shop are locat- ed in Esserville, Virginia, approximately a mile from Wise. Another tipple is located at Ramsey, Virginia, just outside of Norton, Virginia. The new operation consists of 10 sepa- rate strip mining jobsites located within 10 miles of the tipples, and involves approximately 145 production and maintenance employees.' In the consolidation period which followed the merger, the employee complement reached a high of 163 employees on October 1, 1976, and was reduced by March 31, 1977, to 134 employees. How- ever, the turnover was greater than the decline, as 47 em- ployees left Respondent's employ and 18 new employees were hired. The decline in total employment was a part of the consolidation process. In the course of eliminating du- plication as it involved employees, an individual was noti- fied in advance that his job would be affected, and as he found employment elsewhere his departure was recorded as a "quit." At the jobsites where the discharges in question herein occurred employees were working 10-hour days, 5 days a week. During this period, certain new equipment was purchased and existing equipment shifted or sold. As part of the consolidation, and because production of steam coal was far behind demand whereas metallurgical coal was in oversupply and being stockpiled, Respondent was shifting jobs and equipment around to change production emphasis to steam coal to fill its backlog of orders. Addit- tionally, with the merger, Respondent began upgrading the equipment, changing the combinations of types of equip- ment, and scheduling equipment not fully utilized at one location for deployment on a regular schedule at another location (e.g., loaders used about 2 days were reduced from 10 to 5 by having an employee operate his equipment 2 days a week at each of two sites). At the same time, hauler capacity was increased from 35- to 50-ton equipment to avoid allowing the loaders to sit idle waiting for trucks; the 35-ton haulers were used as spares and for reclamation work. It is admitted, as alleged, that the following named per- sons were and are agents of Respondent and supervisors within the meaning of Section 2(11) of the Act: James A. Brown, Jr. (Jim), president; James A. Brown, Sr. (Arthur), general superintendent; James Adkins (Jimmy), foreman; Donald Greear (Cossie), foreman; Everett Greear (Hin- cey), foreman; and Freddie Powers, foreman. The Union began soliciting membership among Respon- dent's employees in January and conducted their first meeting on January 15. On January 21 the Union, by tele- 2 The companies merged were C. & ( ( ompany. Brown & West ( oal Company, Horne Brothers Mining Company. Covac Coal (Company. and Paramont-Elkhorn, Inc. Seventy-five of these employees had worked for Paramont-E lkhorn on its five jobsites and 70 came from the five jobsites of the other merged companies. Eighteen tipple employees tere added with the acquisition of Cumberland Collieries, Inc.. on October I, 1976. gram and by letter, dispatched notification to Respondent of its organizing campaign. C. The Alleged Unfair Labor Practices I. The separate 8(a)(1) allegations Richard Beverly, a dozer operator at jobsite No. I, on the morning of January 20 was assisting his foreman, Don- ald Greear, in pouring powder in the holes preparatory to blasting overburden off the coal, a process known as "load- ing a shot." The foreman had to go around the hill for a few moments and when he returned Beverly was talking with the other dozer operator, Emmett Greear. The fore- man asked Beverly what he was campaigning about. Bever- ly replied, "[N]othirig." Later that morning, at the powder trailer, the foreman told Beverly he had received a phone call and the caller had told him that Beverly was "an insti- gator on this union stuff . . . and pushing it on the job." Beverly denied the accusation. Beverly testified that Fore- man Greear then asked him whether he had signed a union card and Beverly denied that he had. Greear then told Bev- erly that the Union really was not any good and "if Jim Brown hears about it," some people could lose their job. Foreman Greear denied that he made the latter statement but testified, "I could have but I don't believe I did ask Beverly whether he signed a union card." He admitted that he told Beverly he had received the phone call concerning Beverly's involvement in the Union. I credit Beverly against Greear's denial and find that the Respondent engaged in unlawful interrogation when Fore- man Donald Greear asked Beverly whether he had signed a union card, engaged in unlawful interference when Fore- man Greear told Beverly of receiving information that Beverly was a union "instigator", and made an unlawful threat of discharge when Greear stated that if Jim Brown learned of their union activity some people could lose their jobs. I find that Respondent violated Section 8(a)(l) in each instance. I do not find in the circumstances sufficient basis for holding the inquiry of the conversing employees as to what they were campaigning about lawful interroga- tioln. About eight employees attended the first union meeting at a public restaurant on January 15. At that meeting, James Charles Hubbard (referred to generally as Charles), Willard Moore, and Winford Hubbard each signed a union authorization card and received from the union organizer additional cards which they used to solicit the signature of fellow employees. The second union meeting was held at Willard Moore's house. The third meeting, scheduled for January 20, was to have been held at Moore's house. How- ever, when Winford Hubbard arrived home from work, another employee called to tell him that the Company knew of their planned meeting at Moore's home that eve- ning. He reported this information to his uncle, James Charles Hubbard. Moore and the Hubbards decided to change the location of the meeting shceduled for 7:30 to the home of Melissa Hubbard.4 located about one-fourth Meli-sa Hubbard is the nitlher of ( harles Hubbard. the mother-in-law of Moore. and the grandmother of Winford Hubbard 700 PARAMONT MINING CORPORATION of a mile away and about 500 feet back and over a hill or, a gravel lane off the same Cole Bridge Road on which Moore lived. A plan for redirecting employees to the new location and forestalling their arrival at Moore's home was devised and carried out by the three. To do so, theN sta- tioned themselves at various points or lookout posts watch- ing for passing fellow employees. While Moore was parked at a roadside store, where he stood by the front of his Bronco watching for employees. he saw Arthur Brown pass by, riding on the passenger side of a Lincoln automobile. Charles Hubbard was stationed in his truck at the drive- way of Moore's home. While parked there, he saw Arthur Brown, a passenger in a lincoln automobile, pass hb. ! ';e car was dnven slowly. Hubbard did not recognize the driver. Brown was looking at where Hubbard was sittin in the truck. The car proceeded slowly down the road. Hub- bard got out of his truck and stood beside it. In about 3 or 4 minutes, Brown passed by again from the other direction. At this point, Harry Meade 5 arrived at Moore's driveway. In another 2 or 3 minutes Brown returned, and after Brown passed by Hubbard proceeded to his mother's house. Win- ford Hubbard took up the lookout position at Moore's driveway when Charles Hubbard and Harry Meade went to the meeting. After the two left, the Lincoln automobile passed again. Winford picked up two or three more em- ployees and went back to the meeting. The Lincoln auto- mobile followed behind him. At this point in time, Winford could not see who was in the automobile.' Arthur Brown testified that around 3 p.m. on January 20 he "overheard around the shop" that there was going to be a "get-together" or meeting of employees. That evening, Brown and a neighbor, Earl Pilkerton, went for a ride in Pilkerton's Lincoln automobile. According to Brown. they rode around talking, driving by way of Cole Bridge Road and thence to the airport, where they stopped for about 20 minutes and had a drink. They then drove back, again traversing Cole Bridge Road and continuing from there on to the highway. The weather on this particular evening was "pretty bad" and there were 3 to 4 inches of low on roads off the highway. On the way to the airport, Brown saw six or eight cars parked along Cole Bride Road and comment- ed to his friend, wondering whether they belonged to Re- spondent's employees. Arthur Brown decided to record the tag numbers and check on this question. At his request, Pilkerton backed the automobile to the parked cars, stopped and recorded the tag numbers, and turned these over to Brown. Brown denied that he gave any thought to the possibility that this might be a union meeting. The i:e .t day, Brown checked on all the jobsites for the license num- bers Pilkerton had recorded for him, to ascertain the iden- tify of the owners. He did this by identifying the license tag numbers on vehicles parked at the sites and by asking the foremen who owned the vehicle. Using this procedure. Brown identified five or six of the cars that had been Meade is the employee who first approached Charles Hubbard about contacting the Union. previous to the organizing campaign. 6 At the union meeting. the organizer advised employees who had signed cards to announce this fact to their foremen the following morning in order to protect theirjobs. He also informed employees that he would send a letter advising the Respondent of the organizing campaign The tUnion dispalched such a letter to Respondent the following da. parked on Cole Bridge Road the night before as vehicles used by employees.: One of the employees identified by Brown through checking vehicles was Beverly. This is a clear act of blatant surveillance (of employees' union activi- ties bordering on harassment. I can find no support in the record for the claimed innocent motive. Such surveillance constitutes interference, restraint, and coercion within the meaning of Section 8(a)( I) of the Act. The following morning, at 7 a.m.. Beverly told his fore- man, Donald (Greear. that he had signed a union card and was a supporter of the Union. Cireear responded that there was nothing he could do about it. Later that day, Jim Brown arrived at the jobsite and Beverly was called down from his dozer for a conversation. According to Beverly. Brown asked if he had signed a union card. Beverly stated he had done so. Brown asked why he supported the Union. Beverl? replied he "thought it was a good thing." Brown testified that he came to the ;obsite because the foreman had told him by radio that Beverly wished to speak to him. Upon arrival, G(reear informed him that Bev- erly had said he had signed a union card and was support- ing the Union. Brown drove to the location where Beverly was operating the dozer. Beverly descended and entered Brown's truck for the conversation. After Beverly estab- lished with Brown that he had informed the foreman about signing the union card, according to Brown. Beverly charged that the foreman was trying to run him off the job by assigning him to work at the top of the hill where the cold wind hit him directly while Emmett Greear, the other dozer operator at the jobsite, worked in the protection from the wind on the side of the hill. He suggested that the foreman's motive was related to Beverly's union activity. Brown recalled that he informed Beverly this could not be true as both he and Emmett Greear had signed cards." but expressed the wish that Beverly would not support the Union. Brown testified that he asked Beverly how he felt it would benefit him to support the Union, and Beverly men- tioned "senionty. and things like that." Brown also recalled that Beverly then said, "Well. I un- derstand that you threatened some people." and named Bill Collins. Brown thereupon gave Beverly his version of the Collins incident, and told Beverly he was not threaten- ing him and was not going to threaten any of the other employees and if Beverly heard of anyone being threatened either way,. Beverl, was to let him know. Jim Brown later placed this conversation as occurring after the January 24 memorandum had been distributed. Brown admitted that he had several more conversations with Beverly, one relat- ing to the sale of equipment and Beverly's job security, and conceded that it may have been in such later conversation that the foreman summoned him because Beverly wished to speak with him. Beverly verified that during the Union campaign, Jim Brown talked to him about whether or not Brols n testified that he had had some incidents of alcohol problems with emploees on the job and that this was the reason he checked on the auto tag numbers of those gathered on Cole Bridge Road There is no evidence that Brown toowk any steps to ascertain the fitness of the individuals identi- fied in this fashion to operate the equipment that day Brown denied he told Beserls he throegh Beverls and Fmmetl (ireear wserc S11lg ruupporters )of the t nmon on tae job because Ihc werc the two who came forsard and told the foreman the} suipported Ihe It non 701 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union was a good thing for the Company 9 and gave him a "pitch" on why he ought to vote against the Union. Although many of these statements were presented in a manner suggesting that they were a part of the January 21 conversation, the Collins incident had not yet taken place and the representation petition had not yet been filed. The content suggests that they were a part of the later campaign communications, and I so find. Brown's inability to sepa- rate these conversations with Beverly convinces me that Beverly's recollection is more reliable and I credit his ver- sion of the January 21 conversation. Accordingly, I find that Brown engaged in unlawful interrogation violative of Section 8(a)(1) of the Act in asking Beverly whether he had signed a union card and why he supported the Union. Around 9 a.m. on the next day following the January 20 union meeting, Foreman Everett Greear on jobsite No. 4 drove up to Steven R. Presley, a dirt hauler operator.' ° and asked Presley to get into the foreman's truck for a talk. Presley testified that Greear then asked him why he had signed the union card. Presley responded that it was to try to better himself and his benefits, and that he thought it was a good thing. Greear told Presley he aid not appreciate Presley's "cutting his throat" and "[possibly] shutting his job down," and that he (Greear) would "whip" Presley ev- ery day that the job was shut down; that Presley could look forward to an "ass kicking" every day until the job was reopened. Greear told Presley that Jim Brown had the li- cense numbers and names of everyone who was at the union meeting. Greear then shifted his truck into reverse and told Presley to get out; he had finished talking, he said, and unless Presley had something else to say he should "get back to work." Greear denied that he ever talked to Presley about the Union. I do not credit Everett Greear's denials that he asked Presley why he had signed a union card, that he told Pres- ley the Company had taken down the license tag numbers on the automobiles, or that he said anything about kicking anyone or in any other way threatened employees with re- taliation. I find that Greear interrogated Presley, threat- ened physical violence as punishment for engaging in pro- tected activity, and gave the impression that union activities were under Respondent's surveillance, each an independent violation of Section 8(a)(1) of the Act. On January 24, Respondent distributed to employees a letter which reads in part as follows: TO ALL PARAMONT EMPLOYEES: As you know, the severe weather conditions have severely reduced our production and that combined with the poor market for our met coal has required that we take the following steps to reduce our cost of operation: (I) All older equipment and other equipment re- quiring expensive maintenance has been offered for sale and when sold or disposed of will require that the 9 Foreman Greear recalled that, in a conversation after the men had told him they had signed union cards. Beverly was talking about the Union and said it would be better for the Company. Foreman Greear told Beverly he would quit if the Union won the right to represent the employees of Respon- dent. 10 A dirt hauler is used to remove "overburden" or earth from the jobsite and dump it at locations to be filled for surface rehabilitation. operator be laid off. A cut-off notice will be given so the operator will be entitled to unemployment bene- fits. [Emphasis supplied.] Jim Brown testified that he drafted this memorandum as well as a "cut-off notice" for Willard Moore on Sunday, January 23, and that he did not see the Union's January 21 telegram notification of the organizing campaign until some time on Monday, January 24. 2. The discharges Willard Moore Willard Moore began work for a predecessor company in June 1972 as a hauler and after 2-1/2 years became the operator of a 275 Michigan loader on jobsite No. 4. When new men were hire i for the jobsite, Moore helped train them in the operation of the hauler. During his entire em- ployment period, Moore never received a warning or a rep- rimand but did receive several pay raises as well as regular bonuses. Moore attended the first union meeting, solicited employees' signatures on union authorization cards, sched- uled the second and third union meetings at his home, and observed Arthur Brown riding back and forth on Cole Bridge Road, detailed above, while employees were assem- bling for the union meeting on Thursday, January 20. Around 5 p.m. on Monday, January 24, after Moore had completed his shift, cleaned and greased his vehicle, and parked it, and as he was going to his Bronco to depart, he saw Foreman Everett Greear in the foreman's pickup truck. Greear called to Moore saying he had something for Moore, and handed Moore an envelope." Moore said, "I guess I'm fired." Greear replied, "No, it's in the envelope; we traded your loader in on that new shovel." The message in the envelope read: TO WHOM IT MAY CONCERN Effective as of January 24, 1977, Willard Moore will be laid off, due to the fact that we are disposing of the machine which he operates. His employment is being terminated since we have no other work available at this time. Moore testified that during the period of his employment the Company had never laid off any other employee at that jobsite, and during the entire winter, which was very se- vere, jobsite No. 4 was shut down only I day because of the weather. Moore further testified that he saw his loader being used on jobsite No. 6 approximately 3 weeks before the hearing herein. Jim Brown testified that he terminated Moore for two reasons: One, because the machine he was operating was fairly old and maintenance costs on it were high, and two, because Brown considered Moore to be a less than desir- able employee. 2 Brown did not tell Moore he was not a II Greear could not recall that Addington told him they had sold the loader, He testified that Addington gave him the envelope for Moore and told him that it was a cutoff slip. and that they did not need Moore anymore since they "parked" his machine. 12 In support of this second named reason, Jim Brown testified that "on several occasions" during the months of November, December. and Janu- ary, while he was deciding which employees to release, he noticed Moore 702 PARAMONT MINING CORPORATION desirable employee nor did he direct that the foreman do so. Brown claimed that he had several conversations with Foreman Greear about getting rid of the loader operated by Moore but Greear always said he needed it. Finally, Brown told Mining Superintendent Brooks Addington that the loader had to be parked and Moore given a "cut-off slip" as he was "not doing the job he had in the past." With respect to the equipment operated by Moore, Jim Brown testified that the 275 Michigan loader remained parked on jobsite No. 4 for about one month, until the roads cleared. Then it was taken to the shop, repaired, and offered for sale. In about 3 weeks it was moved to jobsite No. 10, where it remained for 6 or 7 weeks as a temporary replacement for a 244 hydraulic shovel which had been recalled on a factory warranty. The 275 Michigan loader was then leased to Tilton Coal Company under a lease- purchase agreement. According to Greear. since Moore's release the Company has promoted one man on jobsite No. 4 to supervisor and hired one man to replace the employees promoted. James Charles Hubbard James Charles Hubbard, who started work for one of the predecessor companies in August 1970, operated a 980 front-end loader and at times operated the dozer on jobsite No. 10. He was a foreman on that site at the time of the merger and continued as a foreman at the same jobsite until January 1977. In December 1976 Lester Hubbard, who had worked at the No. 10 jobsite, called to inform Charles Hubbard that he had another job and that he had been told that Respondent was going to lay off four fore- men. When Jim Brown came on the jobsite, Charles Hub- bard stopped him and asked whether this information was correct. Jim Brown replied that they had talked of laying off some foremen but had made no definite decision. Charles Hubbard offered to go back to loading work. Jim Brown stated that Hubbard could do this but he was not sure that it would "look nice" on the No. 10 jobsite and suggested that Hubbard move to another jobsite selected by Charles Hubbard and Addington."3 Addington assigned Charles Hubbard to jobsite No. 9 as an operator of a front- end loader under the supervision of Freddie L. Powers, where Charles Hubbard was working when he and Harry Meade initiated the union activity herein. The morning after the January 20 union meeting, Charles Hubbard, followed by other employees, ap- proached the truck of Foreman Powers and informed him "an extreme number of times" off his machine and not working. On those occasions he inquired as to the cause and the foreman generally gave him some excuse but occasionally was unable to supply a reason. 13 Jim Brown gave testimony that he had visited the site where ( harles Hubbard was foreman and had voiced his dissatisfaction with the way the "dirt was being handled." and that on one occasion he was called to that site when a Federal Mine Inspector criticized the manner of strip mine opera- lion that had been carried on there. Jim Brown testified it was at this un- specified time that he decided to remove Charles Hubbard from supersi- sion. Jim Brown admitted. however. that it was Charles Hubbard who approached him on December 28. alluded to the rumor of an Impending reduction in the number of foreman jobs, and requested a transfer to a coal loading job. It was pursuant to this request, he said. that he arranged assign- ment of Charles Hubbard to jobsite No. 9 as a coal loader that they were supporting the Union. That day Charles Hubbard "got out about 60 loads of coal." In the af- ternoon, Foreman Powers informed Hubbard that they were still behind some 30.000 to 40,000 tons which they needed badly, and that Hubbard would probably have to work on Saturday. At quitting time Charles Hubbard asked Powers whether he was to work that Saturday and Powers replied that it would not be necessary as he had obtained employees from another site who had not worked all week. When Charles Hubbard arrived at the jobsite on Mon- day morning he found the loader brakes frozen and was unable to move the equipment. Hubbard informed Powers, who promised to get the mechanic and told Hubbard to service his equipment in the meantime. Hubbard began greasing the machinery but ran out of grease. When the drill operator arnved Hubbard asked him for a can of grease for the greast gun. At this point, Powers drove over to the two employees and asked what they were talking about. The drill operator informed Powers that Charles Hubbard had merely asked him for an end for the grease gun. Powers told the two employees that each was to get back to his equipment and warm it up and to do his own work. When Charles Hubbard reported for work on Tuesday morning, January 25. he was met by Powers who presented him with an "insurance policy" to sign so that they could collect money on a machine Charles Hubbard had "paid for" (apparently having reference to claims relating to mat- ters while he was a foreman on the previous jobsite). Charles Hubbard signed the insurance document and handed it back to Powers who then handed him the an- nouncement that the Company was going to dispose of some of the older equipment (presumably the memoran- dum to employees of January 24). Finally, Powers said he had something Hubbard would like: he handed Hubbard an envelope which contained the notice dated January 24. which was identical to the one given Willard More the day before, except that it named therein Charles Hubbard, Ac- cording to Hubbard, Powers then said he did not "have anything against the Union, but we all may lose our jobs over it." Jim Brown testified that he had received word from Ar- thur Brown and Addington that Charles Hubbard was not doing his job as he should, and for this reason he visited jobsite No. 9 several times on January 15 and found Charles Hubbard not working. On one visit he mentioned this to Foreman Powers. Brown further testified that it was after the grease gun incident, which he fixed as having oc- curred on January 15. that he made the decision to termi- nate Charles Hubbard."4 Powers testified that when Charles Hubbard came to work for him at jobsite No. 9 on January 3, Hubbard's performance was "top rate." By January 7 or 8, Charles 14 Jim Brown could not recall whether he learned that Charles Hubbard had signed a union card before or after he made the discharge decision Brown said he thought he might have learned of Hubbard's declaration to the foreman on behalf of the grlup of men supporting the Union on the same morning the discharge notice was delivered to the johsite. Brown de- nied that ( harles Hubbard's union activ"a had anything to do with the decision to discharge him I accept C harnen Hubbard's date for the grease gun incidenl ils iccurale 703 )EC( ISIONS OF NATIONAL LABOR RELATIONS BOARD Hubbard was complaining about the condition of the equipment Is and Powers told Addington that "it seemed to him a let more could be done than was being done." In response, Addington suggested that Powers speak to Charles Hubbard. However, assertedly because Hubbard was his friend, Powers only hinted that more production was deisrable. Powers recalled that Charles Hubbard acted as the spokesman for the employees on the jobsite on the morning that they reported their interest and support for the Union and Powers refused to listen. Powers denied that he said, "We'll all lose our jobs over this." 16 The written notice contained the only reason given Charles Hubbard for his discharge. Hubbard testified that some time more than 2 weeks later he saw his 980 front- end loader at Esserville being used at the tipple. Powers recalled that after Hubbard was terminated his 980 coal loader was taken to the shop for extensive repairs. Powers could not recall how long the loader remained on the job- site before it was removed, nor did he know what became of it. Brown testified that he did not sell Hubbard's equip- ment until April or May. The machine remained idle at the jobsite for a period of time, fixed by Brown variously as 3 or 4 days to more than 2 weeks, before it was taken to the shop for repair. Thereafter it was used at the Ramsey tipple for about a week, then placed on a lease-purchase agree- ment with Tilton Coal Company, returned by them for larger equipment, used by Respondent at the Esserville tip- ple, returned to the shop for repairs, and then shipped to South America for sale through an export agent in Hous- ton, Texas. Winford Hubbard Winford Hubbard began working for a predecessor company in June 1974 as a dirt hauler. After 2 years he became a drill operator on jobsite No. 3. Around the first of the year the drill broke down and was parked on the jobsite. Winford Hubbard was assigned to operate a WAB- CO hauler. Winford Hubbard attended the union meetings and at the first such meeting signed a union card. Thereaf- ter, he also gave cards to fellow employees before work and at their homes. It was Winford Hubbard who alerted Moore and Charles Hubbard that the Company knew of their planned meeting at Willard Moore's home on Janu- ary 20, and who participated in directing employees to the changed location while Arthur Brown cruised the area 15 On cross-examination Powers admitted that it was Charles Hubbard's responsibility to let the foreman know if something went wrong with his equipment even if it were a small item, that during this period there were several days on which the machines could not be operated for more than 2 hours because of the weather, and that on the morning of the grease gun incident the brakes were frozen and Hubbard's machine could not be oper- ated. :6 I cannot accept this denial as persuasive Powers' vacillation with re- spect to Charles Hubbard's job performance mixed with his frequent expla- nation that Hubbard was a friend whose feelings he did not wish to bruise in contrast to the promptness and firmness with which he sought to disen- gage the brief encounter of two employees in the grease gun incident con- vinces me that he was less than candid. I find that, even though couched in terms of his personal expression that he did not have anything against the Union, the phrase amounted to a threat which is violative of Sec. 8(aX I) of the Act watching the union meeting. Brown denied that he had any knowledge of Winford Hubbard's union activity other than that, like other employees, he supported the Union. On Tuesday. January 25, Winford Hubbard drove his hauler all day except for a short period in the morning required to fix a flat tire. At the end of the day, as Hubbard was servicing his hauler, Foreman Jimmy Adkins ap- proached him and directed him to take the hauler over and park it beside the drill when he finished fueling it. Adkins added that he had a letter in the truck for Hubbard. When Hubbard returned to the truck, Adkins gave him the letter. It contained a notice identical to that given his two uncles, Moore and Charles Hubbard, except that the notice nam- ing him was dated January 25. Up to that time there had been no layoffs at jobsite No. 3. Winford Hubbard had been the operator of the older of two drills used on the job. On the machine that he was using, both the engine and the compressor had been re- placed. The equipment had a "bad chain that kept break- ing" and, in the fall of 1976, Adkins told Hubbard that they were going to replace that old drill with a new one the first of the year." At lunch on Monday, January 24, Ad- kins told Winford Hubbard that the old drill had been sold, and directed Hubbard to remove his personal belong- ings. Winford Hubbard, who had been operating a hauler since the drill broke down, asked Adkins whether he would now be permanent on that hauler. Adkins replied affirma- tively. Hubbard inquired what would happen if the hauling equipment was moved from the job and Adkins responded, "I guess you'll go with it." His assignment to the hauler made Winford Hubbard the third dirt hauler on the job- site.' When Winford Hubbard was assigned to the WABCO hauler early in January, he had more seniority on the jobsite but the other drill operator had more seniority with one of the merged companies. Jim Brown testified that on occasions when he visited jobsite No. 3, he found "the drill" not being operated. Upon inquiry made to the foreman as to the cause, he learned "maybe half of the time there was something wrong with the drill; the other half of the time Winford was just sitting there with the machine." On one occasion, during the first half of December 1976, Jim Brown recalled that he came to find the drill running and Winford Hub- bard sitting "in his cab" asleep. The evidence does not suggest that any action was taken at the time with respect 7 Jim Brown recalled that the drill had extensive mechanical problems He said that the engine on the drill had been rebuilt about 6 months before the equipment was delivered to jobsite No. 3 and "should have been good for about 2 ,ears " However, in November the engine broke down and the mechanic who checked it reported that it was without oil Jim Brown stated that the operator is responsible for keeping the oil in the machine at the proper level. This breakdown resulted in a repair bill of $512.000 (There is no indication of action or comment by management to Winford Hubbard with respect to an) neglect.) Within a month the compressor "went out" on the drill. Brown supplied the information that if the compressor were ex- changed it would have cost $16,000. The shop did the repair for less than that amount. Brown slated that the compressor "went out" because the filters were not put in properly. thus allowing dust to enter the intake mani- ford and destroying the compressor Browil did not assert that the operator was responsible for this neglect 0 Hubbard testified that, during the previous June and July 1976. there were three dirt haulers operating on jobsile No. 3. When the oldest of the haulers was sold and removed from the job,. the second drill was brought to the jobsite aind Winford Hubbard was assigned to operate it 704 PARAMONT MINING CORPORATION to this situation. Brown further testified that for these rea- sons Winford Hubbard became a prime candidate for cut- back. Foreman Adkins testified that in November 1976 he told Winford Hubbard that the Company was going to try to sell the drill he was operating because its upkeep cost too much and that it might be replaced with a new one. Early in January, Adkins was told b; management to bring the drill to the top of the mountain as soon as the weather permitted. The drill was parked on the jobsite for about a week and a half before it was moved. When they stopped operating the drill, Adkins assigned Winford Hubbard to operate the WABCO hauler, a piece of equipment that had been used on jobsite No. 3 for about 45 days but without a specific operator assigned to use it. The two regular haulers used on the job are CAT haulers. The WABCO had been brought to the job in late 1976 because they were having to haul the overburden, or dirt, a long distance in performing a lot of reclamation work and needed a third hauler to avoid lapses and delays in production. The day after Win- ford Hubbard's discharge, the WABCO hauler was re- moved from jobsite No. 3. Since that time, a second drill has been brought to the area for an unspecified period to perform test drills on a prospective expanded location. Adkins stated that, to the best of his knowledge, the Elk- horn Company has Winford Hubbard's old drill now. either by purchase or lease. Jim Brown testified that the 550-CP drill on jobsite No. 3, which had been operated by Winford Hubbard, was brought to that jobsite, when the coal became harder to mine because of more sandstone, in order to increase pro- duction because the one drill already there could no longer keep up with requirements. After Winford Hubbard's dis- charge, the 550-CP drill was returned to the shop. It was repaired, but remained in the shop for several months at which time it was delivered to Tilton Coal Corporation on a lease-purchase agreement. The WABCO hauler which Winford Hubbard operated while the drill was parked in need of repair was used for required reclamation work which was done each year prior to March-Apnl when re- vegetation occurs. Jim Brown stated that it was "a spare" machine and that this is the only thing it was used for other than to facilitate the hauling of dirt over long distances. As a spare, it was used by any operator available whose equip- ment was "down." The WABCO hauler was transferred to jobsite No. 9 after Winford Hubbard's discharge and has since been used on three or four different sites. It is pres- ently being used at a construction site where Respondent is building a tipple. Respondent has not assigned an operator to follow the WABCO hauler. Employee Jerry W. Bell testified that in late January, shortly after the Collins incident discussed infra, it became necessary to overhaul the equipment operated by Terry Powers. Powers asked Bell to trade equipment positions with him so that Powers would not have to work at another jobsite, something he was reluctant to do. Bell agreed and was sent to jobsite No. 5. The equipment assigned to him there was "worn out" and Bell refused to operate it. He told the foreman to take him back to his truck: he was quitting. The foreman attempted to reach Brown by radio and, being unsuccessful, insisted that Bell go to the office and talk with Brown first. Bell explained to Brown why he would not operate the assigned equipment and was told to help the mechanic tear down Powers' dozer. Bell was then assigned to move the WABCO, previously operated by Winford Hubbard and parked at jobsite No. 3, to the shop and repair it. Bell then transported the WABCO to jobsite No. 9 behind the bowling alley where he "ran it" for about 1-1./2 weeks. It was then transported to a job behind the college, building a road, and operated there for about 3 weeks, after which it was returned to jobsite No. 3. Bell returned to operate the dozer at his original assignment, as repairs on Powers' equipment were then completed. Evaluation of the Discharge Evidence I do not credit the testimony given by Jim Brown in his attempt to disparage the quality of the work performance of Willard Moore, James Charles Hubbard, and Winford Hubbard. Nor do I credit his assertion that this was a rea- son, in addition to the one set forth in the written notices to each, for his selection of these individuals for elimination from his work force. None of them was told of any unsatis- factory work performance, either at the time of discharge or when such derelictions supposedly occurred. Further, the actions taken in terminating these three employees was a clear departure from the method used following the merger-that of giving advance notice to the individual employee that his job would be affected at some future time by the consolidation of operations and upgrading of equipment and, as each found another job, recording his departure as a "quit." Significantly, no attempt was made by Respondent to alleviate this lack of notice, by tempo- rary or permanent transfer, as was arranged in other cir- cumstances. 19 I accept the January 24 notice concerning the impending cost reduction program as containing an accurate statement of Respondent's policy with respect to the way employees would be dealt with in the event their jobs were affected by the disposal of old equipment. In this memorandum to employees, Jim Brown clearly stated that "when" such older equipment was "sold or disposed of' the affected operator would be given a "cut-off notice" so that he would be entitled to unemployment benefits. 20 In none of the three discharges considered herein had the Respon- dent "sold" or "disposed of" the equipment operated by the individual terminated. Indeed, the equipment of each remained at the site for some time thereafter and was sub- sequently used for work on Respondent's property. Fur- ther, each of the three dischargees worked on projects I he record *clntains several examples of such allevlating aceommoda- lions 'I er'. PoFer, u; , offered temporar? tipple .ork because he expressed apprehenslion about working with others on his regular jobsite. and laier, Powers was allowed to work employee Bell's equipment when Powers' dozer had to he taken to the shop for repair Bell was transferred tojobsilde No. 5. moi.ed equipment to the repair shop. operated W'lnford liubh.rd's WAB('() at tiwo different johbtles. and when the work on Powers' equp- ment uash completed. returned to his former work on jobsite No 3 Another example Is the permanent transfer Jf James Charles Hubhard from foreman at one lobsite to loader operator at another site to) avoid terminatlion this before he hecame insolved in union a3tlSlit I' ]he lestililtion Indlcate, that this wa' the type of .iclion taken In the past If the emplosee receiving .dsance warning had nlot secured emplos- ment elsewhere before he li.tllll U.s t.i eni t 705 DECISIONS OF NATIONAL LABOR RELATIONS BOARD where operations were scheduled on a full-time I-hour-day 5-day-week, with at least one site working Saturday as overtime because of the urgency for production to fill a backlog of coal orders. This overtime work was given to employees from other coal mining sites which were not operating full time, who had not worked at all that week. The equipment operated by the three dischargees nad not broken down or become inoperative at the time of the dis- charges. The sudden parking of functioning equipment that was capable of producing at a time when Respondent was in urgent need of greater coal production and when the equipment could not be moved from the jobsite because of road conditions persuades me that there was a completely unrelated and unrevealed reason for the decision and tim- ing of the discharges of Willard Moore, James Charles Hubbard, and Winford Hubbard. The union activity of each and the timing of the discharge in relation thereto points up the concealed but real motivating factor behind the decision and action taken by Jim Brown. Thus, Moore had held one union meeting at his home and a second such meeting was scheduled to take place there on Thursday night of the same week. That the Re- spondent learned of this fact, as reported to Winford Hub- bard, is substantiated by Arthur Brown's active surveil- lance of employees in the process of shifting the meeting location. It stretches credulity to suggest that his presence and activity of this "off the highway" location at this hour on a midweek night when the weather, according to him, was nasty, was purely coincidental, and that his active sur- veillance and following of employees' cars was for an inno- cent motive. Moore's driveway was the target "lookout" and "relay post" for the shifting of the meeting and was passed several times by Arthur Brown. On Friday, Arthur Brown took the trouble on the job to identify other em- ployees participating in that Thursday evening meeting by checking the automobile license plates on vehicles parked at the various jobsites. Additionally, Friday morning, em- ployees had verified that they had attended a union meet- ing by announcing to their respective foremen their sup- port of the Union in an ongoing organizing campaign. Moore was the first to be discharged-Monday evening. Moreover, by the time the termination notice was given to Moore, Jim Brown admittedly had seen the Union's tele- graphic notice of the organizing campaign. 2i In any event, the conflict between the January 24 notice to all employees and the action taken by Brown in the notice given to Moore would lead me, because of Jim Brown's generally uncreditable testimony, to discredit his assertion that he drafted Moore's notice on Sunday. Although his notice was dated January 24 also, James Charles Hubbard was not given the discharge slip until the morning of January 25. There can be no question that Re- spondent knew that he also was in the forefront of the 21 Respondent's assertion that the Union's telegram did not come to Jim Brown's attention until midday Monday and that Jim Brown drafted the cutoff notices dated January 24 on Sunday, January 23, the same lime he drafted the January 24 notice to all employees. even if credited, would have no significance in determining Respondents knowledge of Moore's union activity in view of Arthur Brown's active surveillance on 1 hursda? evening and the events that followed. union activity for, in addition to serving as a "lookout" and being observed in this activity by Arthur Brown on Thurs- day night, he admittedly acted as spokesman for the jobsite employees on Fnday morning when he announced to the foreman, with the group of employees standing several paces behind him, that they all supported the Union. I am not persuaded by his foreman's conclusionary and seem- ingly reluctant statemeint that James Charles Hubbard's work quality underwent a rapid and critical deterioration, from outstanding on January 3 to undesirable by January 24, particularly in light of the unrefuted testimony of sig- nificant production on his part on the preceding Friday, the admitted fact that it was his duty to report to the fore- man even minor problems in the operation of his equip- ment, the evidence that repairs reported by him were re- quired and made after his discharge, and the failure of the foreman or any higher supervisor to advance to Hubbard any criticism of his work performance. The lag in the tim- ing of his discharge after he acted as employee spokesman favoring unionization can logically be attributed to a possi- ble reluctance and delay on the part of Foreman Powell to communicate this detail to Jim Brown. Winford Hubbard's discharge was even more delayed, bearing the date of January 25 and delivered at the end of that day. He was less obvious and visible in the January 20 surveillance, as he did not assume the position of "look- out" at a "relay post" until the union meeting was about to begin and the lateness of the hour made it impossible for him to identify the occupants of the Lincoln automobile which followed as he returned to the union meeting from Moore's driveway after intercepting the last two employees arriving for the meeting. This suggests that at this hour Brown could not readily identify him because of nightfall. He, along with his uncles, also attended all union meetings and obtained signatures of fellow employees on union au- thorization cards. In view of the type of interference, re- straint, and coercion engaged in by Respondent and found above, and Jim Brown's admission that some employees were reporting to him on union activity of other employees, I infer, and find, that Respondent learned of Winford Hubbard's other union activity as well as his part in the Thursday night shift of the Union meeting site. Although Respondent gave testimony that Winford Hubbard did not properly maintain his equipment, it did not specifically as- sert that he was selected for discharge for this reason. Nor did it take any action when alleged incidents of idling and sleeping on the job initially occurred or tell him this was a consideration in the determination to terminate his em- ployment. The totality of the aforesaid circumstances makes it abundantly clear, and I find, that Respondent discharged each of these three employees in retaliation for their lead- ership in union activity and advanced pretextual reasons of inefficiency and disposal oi equipment together with a lack of other work to conceal the real reason. Accordingly, I find that Respondent violated Section 8(a)(3) and (1) of the Act when it gave cutoff slips to Willard Moore, James Charles Hubbard, and Winford Hubbard, thereby discrim- inating with respect to their tenure of employment because of their support and activities on behalf of the organiza- tional efforts of the Union. 706 PARAMONT MINING CORPORATION William Collins William Collins began working for one of the merged companies in March 1974 as a dozer operator on site No. 3. His assigned equipment was a LeBearer, which is a back- hoe hydraulic steam shovel, used in strip mining to take the overburden or dirt off the coal and load it into the trucks of haulers. Coiling signed a union authorization card on January 17 for Winford Hubbard. The first union meeting Collins attended was on January 25 at the Norton Rescue Building at Norton, Virginia. At this meeting, the Union organizer asked those present to talk to anyone on the job who had not signed a card and try to get him to sign. The next morning Collins asked fellow employee Edgar Wayne Mullins whether Terry Powers had signed a union card yet. Mullins indicated he did not know. Collins stated, "If he didn't, after all us sticking our necks out the way we had, and didn't go with us and stay with us, we ought to run him off." While leaving his equipment to warn up, Collins drove his truck to the parking lot located at a flat area on the opposite side of the mountain. Terry Powers, the only employee on the site who had not signed a union card, and two other employees were seated in employee Bell's truck with the passenger side window partially low- ered. According to Collins, he reached into the window, patted Powers on the head, and said. "Good morning Ter- ry, how you doing?" Powers replied, "Alright." Collins asked, "Have you signed that union card?" Powers replied, "No, I haven't. I'm not signing it; I'm not going to have anything to do with it." Collins testified that Collins turned and said to Mullins, who was standing behind and to one side looking over Collins' shoulder, "Now ain't that chick- en-shit," and walked on over to Foreman Adkins who drove Collins back to his dozer to work. Terry Powers, who was 22 years old at the time of the incident, was employed by Respondent in June 1976. He testified that on January 26, as he was sitting in Bell's truck with another employee waiting for starting time, Collins walked over and asked Bell if they had obtained a signed card from Powers. Bell replied that Powers did not want to sign. Collins asked Powers if he was that scared of Brown. Powers said no, he just did not want to become involved with the Union. Collins asked, "You know if we go Union and you don't sign this card, we'll blackball you and you'll lose your job." Powers replied that was "okay." Collins then called him a vulgar name, 22 and Powers just rolled up his window as Collins walked away. Powers also recalled that Collins did reach into the truck and shake Powers' head "playful like." Powers related to Foreman Adkins what had happened. Powers then told Adkins that he would not be able to work 22 Consistent with Powers. Bell recalled that C'ollins said. "That's a chick- en-shit motherfucker for you," as he turned and walked to the front of the truck where he spoke momentarily with Mullins, then left Mullins, on the other hand, recalled that Collins made the reference he quoted. Mullins further testified that employees on the Paramont job use such language to one another "jokingly," but Collins did not appear to be joking. Mullins stated he has worked with Collins for about 3 years and has heard Collins "mouth off" to "other guys on the job." very often "He's that kind of guy . it's nothing unusual for him to talk like that. He got teed-off quite a bit." Bell also recalled that Collins "carries on like that." with Collins or anybody else that signed a card, because he did not sign, and that he would be better off on another job, or he would quit.23 Adkins said he did not want Pow- ers to quit and suggested they talk to Jim Brown. Adkins drove Powers the 5 miles to the Esserville office to see Brown, where Powers reported the incident. Brown told Powers not to worry but to go back to the job and he would take care of the matter. Brown prepared a statement concerning the incident which Powers signed. Foreman Adkins testified that when he went to Powers' work location at the latter's request on the morning of Jan- uary 26, Powers looked pale. After Powers spoke with Brown he did not want to return to work on the dozer at jobsite No. 3, so Arthur Brown indicated there was work at the tipple and that is where Powers went. Jim Brown testi- fied that when Collins came to the office he was white, very shaky, and very nervous. Powers told Brown that he was so sick he had vomited before coming to the office; that Col- lins was really rough on him: that he was afraid of Collins, afraid for his safety: and that he would quit before he would work under those conditions.2 4 Brown told Powers he did not have to quit; if Brown could not get this matter straightened out, he would transfer Powers to another job- site. Brown further testified that, in response to his inquiry, Adkins informed him that Collins was "just sort of a rough individual." Brown took Powers' statement and put it in his file, then told Powers he would be on the jobsite some time before noon to talk to Collins and get the matter settled. Brown went to the jobsite to speak with Collins. Accord- ing to Brown, when Collins entered his truck, Brown said, "Bill, we got some complaints and I would like to have your side about this union thing that happened this morn- ing." Brown testified, "I wanted to talk to him about his organizing efforts; the way he was going about it." Collins replied, "There was nothing to it." Brown told Collins that this was not the story he had received and that he thought Collins was carrying his efforts a little too far; that he did not tolerate one employee threatening or cursing or using abusive language to another employee, especially to the extent of making that other employee sick and disturbed enough to want to quit rather than work on the same job. Collins responded, "Really, there was nothing to it," he had only asked if Terry Powers had signed his union card yet. Brown told Collins that his information from the fore- man, supported by two or three employees,25 was that it ' According to Bell. before Collins arrived that morning Bell asked Pow- ers whether he had signed a union card, and Powers replied in the negative. slating. "I'm scared to . . I got a family to worry about and I don't want to lose my job" After Collins left. Powers said. "If that's the way things are going to go. I'll just quit." Bell told Powers. 'Collins carnes on like ihat he don't mean nothing hb what he says . . I wouldn't pay Bill no mind" Bell suggested that Powers Just get on the dozer and go to work 24 Powers testified he was not ill. but had had the nu the presiouls week- end and that he was offered temporary assignment elsewhere but declined and returned to his work on jobsitc No. 3. Bell recalled that on the previous da) Powers had been ill on the job with an upset stomach and vomiting and had left earl'. Bell assumed that Powers was sick again when about 9 :30 that morning he saw Powers leasing the jobsite with Adkins Bell further observed that Powers had been upset throughout the entire union campaign from the time he was first approached because he "was scared of losing his job" - According to Brown. Adkins who was present. told Brown he had verified the events with the two enmplosees in the truck with Powers when Continued 707 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did not happen that way, and for this reason Collins was fired. Collins then accused Brown of discharging him be- cause Collins was supporting the Union. Brown denied the accusation, pointing to Bell who, he stated, campaigned "off work, after hours, or before hours and not threatening the guy that is ready to go to work." 26 Collins then said, "Well you know, . . . there are different ways of taking care of this type of thing." According to Brown, he replied: Well, I didn't get in this business and didn't get where I am today by being susceptible to threats-there isn't anything you can say to me to make me change my mind--I know how a union takes care of things, I know how they sugar your equipment, abuse your equipment, blow it up on weekends and how they let out contracts on people like Yablonski and his family and have them wiped out. I'm not going to give in to that kind of threat, that's just the more reason, that's the kind of character that you are who is not even fit to be associated with the rest of the type of employees that I keep. You are not going to be allowed on this job anymore. Get your lunch bucket and get off the hill, and I don't ever want to see you on it again, and if I hear of Terry Powers getting any threatening phone calls or any repercussions to him or to any other employee on my payroll, I'm going to assume it was you and I am personally going to come after you and I play rough; I'll do whatever is necessary to get even with you and it will be your best benefit to be Terry Powers' bodyguard for the next 60 days. I don't care who it is, I'm going to hold you responsible. Collins' version of this encounter is less detailed in some respects. He related that after 11 a.m. that day Foreman Adkins approached and told him that Jim Brown was on the site and wanted to talk with him. When Collins de- scended from his equipment, Adkins handed him his lunchbox and told him to take it with him. Collins entered Brown's truck and Jim Brown said, "I want you to tell me what you know about this union deal." Collins replied, "Well the cards were passed around and I signed one." Brown said, "I want to ask you something else; what are you doing threatening my employees?" Collins denied he was threatening anyone and Brown responded, "I know you have. I got two or three witnesses that stated they heard you threaten this man .... " Brown continued, "I can't understand what the men are trying to do to me. I've always been good to them." Collins agreed that Brown had indeed always been good to him, then added, "But I would like to see it go Union." Brown stated, "Yes, and I know about you, you're a strong union man." Then, pointing to Bell who was running the other dozer, Brown continued," the incident occurred. Adkins, supported by the testimony of the employees present. testified that he talked to the two men who had been in the truck. but not until after Collins had been discharged. Adkins did not testify whether he told Brown otherwise 26 With reference to Bell, Brown testified that other employees had told him Bell had been trying to get them to sign union cards. Bell was later fired and Brown testified that during the time the Union was holding meetings and employees were telling Brown of Bell's activity. Bell "was huddying up with me, saying he would go to the Union meetings and find out everything and come back and let me know'" he's one too." When Brown stated, "I know how this union organizing works. When it comes in, it brings in a bunch of men; get the men to quit, and tear the equipment up," Collins responded, "There is nobody going to mess with the junk you got up on this hill," whereupon Brown embarked on a soliloquy in which Collins recalled Brown saying: I want you off this hill, off this job, I don't want to see you back on none of my property and I had better not see you on none of those picket lines, or if there are any threatening conversations, or words of conversa- tions get out to anyone else, any of my employees, threatening phone calls to any of my employees, I'm not going to try and find out who done it, I'm going to come directly after you, and I play rough. Brown then ordered Collins off the hill.27 From my observation, Terry Powers is young and slight in appearance, with an anxious demeanor. Collins is about the same size, but more mature and self-assured. Collins testified in a straightforward manner, readily admitting that in his past he has been "thrown in jail a couple of times for fighting." Other than his tendency to "mouth off," there is no evidence that he ever caused any trouble as an employee of Respondent. Clearly, the activity of attempting to persuade Powers to sign a union card was concerted activity. His discharge was admittedly for conduct in the course of such activity which met with Respondent's disapproval: that of using rough langauge and intimidating a fellow employee. There is no indication that Respondent ever previously censured any employee for using rough or vulgar language, although it was not unusual among Respondent's employees, particu- larly Collins. Even if Powers manifested some symptoms of illness due to Collins' remarks rather than from the flu, employees do not lose the protection of the Act merely because some timid soul among them has a strong distaste and reaction to their union activities. Collins did not threaten bodily harm or a breach of the peace; at most he may have expressed a desire to influence union action against Powers if the Union gained representative status. His union activity remained protected, and his discharge, therefore, was a violation of Section 8(a)(3) and (1) of the Act. On the other hand, Jim Brown did threaten Collins with bodily harm should he engage in certain further pro- tected activity, and this constituted an unlawful threat which constituted an independent violation of Section 8(a)( ). Upon the basis of the foregoing findings of fact, and the entire record in the case, I make the following: CON( I.:SIONS OF LAW I. Respondent, Paramont Mining Corporation, is, and has been at all times material herein, an employer within the meaning of Section 2(2) of the Act, and is engaged in :' That evening. Collins and another of Respondent's employees went to the union agent. at which time Collins gave the Union a statement covering these events. I'he next day, (Collins talked with the city attorney at Wise, who is the prosecuting attorney for Wise County. seeking a peace bond against Jim Brown Collins was referred to the Federal District (Court 708 PARAMONT MINING CORPORATION commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, United Mine Workers of America, is, and has been at all times material hereto, a labor organization within the nmeaning of Section 2(5) of the Act. 3. Respondent has interfered with, restrained, and coerced its employees in the exercise of rights protected by Section 7 of the Act, and thereby has engaged in, and is engaging in, unfair labor practices proscribed in Section 8(a)(1) of the Act by: (a) threatening employees with dis- charge because of their membership in, assistance to, and activity on behalf of the Union; (b) threatening loss of jobs if employees selected the Union as their collective- bargaining representative; (c) interrogating employees by asking whether they signed union cards and what they ex- pected to get from the Union, and by asking for informa- tion concerning their union activities; (d) threatening em- ployees with physical harm and injury for engaging in, or should they engage in, union activities; (e) creating the im- pression that union activities of the employees were under surveillance; and (f) engaging in surveillance. 4. Respondent discriminated with respect to hire, ten- ure, and terms and conditions of employment, and has en- gaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act by dis- charging, and thereafter failing and refusing to reinstate, Willard Moore, James Charles Hubbard, Winford L. Hub- bard, and William H. Collins, because they engaged in union activities. 5. The aforesaid unlawful conduct constitutes unfair la- bor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEI[)Y Having found that Paramont Mining Corporation has engaged in, and is engaging in, certain unfair labor prac- tices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action deemed necessary to effectuate the policies of the Act. Having found that Respondent unlawfully discharged Wil- lard Moore, James Charles Hubbard, Winford L. Hub- bard, and William H. Collins in violation of Section 8(a)( 1 ) and (3) of the Act. I shall recommend that Respondent be required to offer each immediate and full reinstatement to his former position or, if such position no longer exists, to a substantially equivalent position, without prejudice to any seniority or other rights and privileges previously en- joyed, and make each whole for any loss of pay suffered as a result of the discrimination against these employees, by payment to each a sum of money equal to that which he- normally would have earned. absent the unlawful dis- charge, with backpay and interest computed under the es- tablished standard of the Board, in accordance with the formula set forth in F. W. Woolworth Compamn, 90 NILRB 289 (1950), with interest thereon to be computed in the manner prescribed in Florida Steel Corporation. 231 N LRB 651 (1977).28 28 See. generally. Isis Plumbing & Ilt'ing ('e. 138 NI RB 71l ( 1962) Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act. I hereby issue the following recom- mended: ORDER 29 The Respondent, Paramont Mining Corporation, of Wise. Virginia, its officers, agents. successors, and assigns, shall: I. Cease and desist from: (a) Interrogating its employees concerning their union sympathies or activities, threatening employees with dis- charge for engaging in union activities and with loss of jobs if employees selected union representation. (b) Threatening employees with physical harm and in- jury for engaging in or should they engage in, union activi- ty. (c) Threatening surveillance, giving the impression that employees' union activities are under surveillance, and en- gaging in surveillance of employees' union meetings. (d) Discharging employees for engaging in union activi- ty. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaran- teed them by Section 7 of the National I abor Relations Act. 2. 'ake the following affirmative actions which are deemed necessary to effectuate the policies of the Act: (a) Offer Willard Moore. James Charles Hubbard, Win- ford L. Hubbard. and William H. Collins immediate and full reinstatement to their former jobs, or if those jobs no longer esixt, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges. (b) Make the four mentioned individuals whole for an 5 loss of earnings suffered as a result of the discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze and compute the amounts of backpay due under the terms of this Order. (d) Post at its plant at Esserville. Virginia, and at each of its locations in and around Wise. Virginia, copies of the attached notice marked "Appendix." 3 Copies of said no- tice on forms provided by the Regional Director for Re- gion 5, after being duly signed by Respondent's representa- tive, shall be posted by Respondent immediately upon receipt thereof. and be maintained by it for 60 consecutive :* In the csent no exceptllons Ire flled as prorded hb Sec 102 40r of the Rules and Reeulatons of the Na.lnal abhor Recl.ttlrs Bdard. the findin?. iconcluslonl. ard retCtmmended ()rder herein sh:all as prosided In Sei 112 48 of Ihe Rules and Rcdulatron,n. he adopied h. the Boaiid ind hcollce its finding.s ..-nCjtlUins. and Order. and .all ohles.l-ns thereit, shall hec deemend a. alclI fr all purpos.e, In the cenil thait his ()rder i eniforced h. a ludmewnt of the I riated Sltte, ( mirl orf Appea.s. Ihe ,ord., n !he nolice reading 'T'P,lscd hs Order ,of he Natin.al I abhr Rcl.tinsl Board" h al read "'toted Pursuant to..a Judgtieil of the t nited Sitles ('lurt of .ppac i tI nforontg an ()rder of the Nationil I habor Rel.ti,-s B-rd " 709 DECISIONS OF NATIONAL LABOR RELATIONS BOARD days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 5, in writ- ing, within 20 days from the date of this Order, what steps have been taken by the Respondent to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had an opportunity to present evidence, the National Labor Relaitons Board has found that we violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT interrogate our employees concerning their union interest and activities. WE WILL NOT threaten employees with loss of jobs if the Union is selected as their representative or threat- en discharge for engaging in union activities. WE WILL NOT threaten employees with physical harm for engaging in, or if they should engage in, union activities. WE WILL NOT threaten surveillance of their union ac- tivities, give the impression that their union activities are under surveillance, or engage in surveillance of union meetings and other union activities of our em- ployees. WE WILL NOT discourage membership in or activities on behalf of United Mine Workers of America or any other labor organization by discharging employees, or in any other manner discriminate against employees with regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights to form, join, assist, or be represented by any labor organization, to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all of such activities. WE WILL offer to Willard Moore, James Charles Hubbard, Winford L. Hubbard, and William H. Col- lins, immediate employment at the same or substan- tially equivalent position at which each would have been employed had he not been discriminated against, without prejudice to his seniority or other rights and privileges, and WE WILL make them whole for any loss of pay suffered as a result of the discrimination, with interest thereon. PARAMONT MINING CORPORATION 710