Belfry Coal Corp.

1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Belfry Coal Corporation and Harold May, Willard Winchester. Cases Nos. 9-CA-2560-1 and 9-CA-2560-3. November 19, 19620 DECISION AND ORDER On August 21, 1962, Trial Examiner James V. Constantine issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and is engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. He also found that the Respondent had not engaged in certain other unfair labor practices and recommended dismissal of the complaint as to them. Thereafter, the Respondent filed excep- tions 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 this case to a three-member panel [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner made 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 brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner,' with the following modifications. We agree with the Trial Examiner that the refusal to work of em- ployees May and Winchester grew out of a labor dispute concerning conditions of their employment, and that such refusal constituted concerted activity protected by Section 7 of the Act. Accordingly, we find that the Respondent's discharge of May and Winchester for engaging in such activity was a violation of Section 8 (a) (1) of the Act.a In view of this finding, we deem it unnecessary to pass upon, and therefore do not adopt the Trial Examiner's finding that their concerted activity was further protected by Section 502 of the Act 3 ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner, with the following modifications and additions : Paragraph 1(b) of the Recommended Order, which begins "Dis- charging employees ...", shall be deleted, and the following sub- stituted therefor: "(b) Discouraging concerted activity by discrimi- i In the absence of exceptions thereto, we adopt pro forma the Trial Examiner's dis- missal of the Section 8(a) (3) aspects of the complaint herein. See N L R B. v. Washington Aluminum Company, Inc, 370 U S. 9 8 Member Fanning would adopt the Trial Examiner 's findings and conclusions in this regard. 139 NLRB No. 86. BELFRY COAL CORPORATION natorily discharging any of its employees or in any other manner discriminating against them in regard to their hire or tenure of em- ployment or any other term or condition of employment." Paragraph 2 of the "NOTICE To ALL EMPLOYEES," which begins "WE WILL NOT discharge employees . . ." shall be deleted, and the fol- lowing substituted therefor : "WE WILL NOT discourage concerted ac- tivity by discriminatorily discharging any of our employees or in any other manner discriminating against them in regard to their hire or tenure of employment or any other term or condition of employment." The following paragraph shall be added to paragraph 2(a) of the Trial Examiner's Recommended Order : "Interest at the rate of 6 percent per annum shall be added to the backpay to be computed in the manner set forth in Isis Plumbing cC Heating Co., 138 NLRB 716." 4 I For the reasons set forth in the dissenting opinion In Isis Plumbing, Member Rodgers would not award interest. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon separate charge filed by Harold May and Willard Winchester on April 9, 1962,1 the General Counsel of the National Labor Relations Board, by the Regional Director for the Ninth Region (Cincinnati, Ohio), issued his consolidated complaint, dated May 25, against Belfry Coal Corporation, herein called Respondent or the Company. In substance the complaint alleges that Respondent has engaged in and is engaging in conduct prohibited by Section 8(a)(1) and ( 3) and affecting com- merce within the meaning of Section 2(6) and (7) of the National Labor Relations Act, herein called the Act. Respondent's answer as amended at the trial, while admitting some facts, denies that it committed any unfair labor practices. Pursuant to due notice, a hearing was held before Trial Examiner James V. Constantine at Williamson , West Virginia, on July 2. All parties were represented at and participated in the hearing and were given an opportunity to offer evidence, to examine and cross -examine witnesses , to present oral argument, and to submit briefs. Respondent and the General Counsel have filed briefs. Upon the entire record in this case, including the stipulations of the parties and the admissions in the answer, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a West Virginia corporation , is engaged at Burnwell, Kentucky, in the operation of a coal mine . From about December 16, 1961, when the Company actively commenced to mine coal , until June 15, 1962, it shipped coal valued in excess of $30,000 from its mine directly to points outside the State of Kentucky. On the basis of this figure , projected for 12 months, an appropirate annual period, the Company's direct shipments of coal to points outside the State of Kentucky may reasonably be expected to exceed $50,000. New London Mills, Incorporated, 91 NLRB 1003, 1004. Under these circumstances , I find that the Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the policies of the Act will be effectuated by exercising jurisdiction in this case. Hugh Major, d/b/a Major Truck Service Co., 129 NLRB 794, 796. II. THE LABOR ORGANIZATION INVOLVED District 17, United Mine Workers of America, herein called the Union , is a labor organization within the meaning of Section 2 (5) of the Act. 'All dates herein refer to the year 1962 except as otherwise noted. 672010-63-vol. 139-68 1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD M. THE UNFAIR LABOR PRACTICES A. Interrogation of employees Early in 1962, the Union started to organize Respondent's employees. In March, employee Harold May signed a membership card at the solicitation of employee Willard Winchester and Field Representative Eldon Johnson of the Union. There- after during the month of March, Harold May actively supported the Union and urged employees to join it. Sometime in March, but prior to the 29th, Stirl Harris, Respondent's general mine foreman , whom I find to be a supervisor as defined in Section 2(11) of the Act, accosted May at the ramp. Harris asked him why he had signed a union card and commented that he thought May would be the last to sign it. About the middle of March, Mine Foreman Harris crawled into the mine to speak to Willard Winchester, a loading machine operator. Harris asked Winchester if the latter had signed a union card, insisting he "had to find out." When Win- chester replied that he had, Harris wanted to know why. A few days later, Harris told Winchester that he believed some of the men were letting him down or backing down on him. When May was working on construction in 1961, he heard Troy Deskins, Re- spondent's president, whom I find to be a supervisor as comprehended by Section 2(11) of the Act, say that when the mine opened it would be a nonunion mine. A few months before this, when May was rehired, Deskins conditioned reemploy- ment upon the execution of a contract by May. This document, prepared by Re- spondent and which May signed, among other things, contained an agreement by May not to cause trouble to the Company and not to join any picket line. Stirl Harris, Respondent's mine foreman, testified that he construed this provision as an agreement not to join a union. B. The discharge of Harold May Harold May was first employed by the Company in March 1950, and thereafter was intermittently laid off and rehired. He was rehired for the last time in 1959. From then until December 1961, he performed various types of construction work preparatory to opening of the mine involved in these proceedings. That mine began operating in December 1961, at which time he was assigned to run a "buggy," a vehicle used to transport coal from the face (i.e., the place where it is extracted from a seam), to a ramp located within the mine. At the ramp the coal is loaded into cars which, running on tracks, carry it to the outside for shipment to customers of the Company. Early in the morning of March 29, the mine was inspected by Jacob W. Runyon, a mine inspector of the State of Kentucky, pursuant to directions from his superior. Runyon first found that Respondent was "behind with the timbering" in the No. 2 heading (or place where coal is dug) of the mine. While in the mine, Runyon noticed Supervisor Stirl Harris, employee Harold May, and another employee by some lights. Runyon then approached them and warned them that they were "working ahead of their timbers." Thereupon Harris and Runyon made some measurements together, after which Runyon concluded that the distance 2 from the face to the first timber did not comply with the standard of the "rules" and so in- formed Harris. Runyon then told Harris that he was constrained "to tack a card" and did affix such a card on the last timber nearest the face on the No. 2 heading. After such posting, Runyon told Harris to call him when the requirements on the card had been fulfilled, and authorized Harris to remove the card after making such call. This card, signed and dated by Runyon as "State Mine Inspector," contains the following legend: DANGER No other work may be done in this place until the roof has been made safe and until the mine operator has contacted the State Mine Inspector and received permission to remove this card. Runyon then went to the No. 1 heading, where, in the presence of Harris and other employees, he found that the timbering at that location was also inadequate 2 To be up to the State's standard, timbers should be on 4-foot centers within 8 feet of the face. Sometimes conditions may require more timbers than the standard. BELFRY COAL CORPORATION 1061 and failed to conform to State regulations . Thereupon Runyon posted another "danger card," identical to that affixed in the No. 2 heading, and warned both Harris and employees not to work in Nos. 1 or 2 headings until the timbering had been corrected. Upon inquiry from employees, Runyon stated that they "could be fined" for working in the mine before the danger sign was eliminated. Notwithstanding the displaying of these warnings, which were made in the pres- ence of Harris and the employees, Harris insisted to Runyon that he would never- theless work the two headings. Runyon replied that Harris could not work them until they had been properly timbered and that he was making a mistake to do so. Runyon further testified that conditions then existing at Nos. I and 2 headings failed to satisfy minimum standards and were therefore unsafe, but "nothing ex- tremely dangerous." However, roof falls are the largest cause of mine accidents and fatalities in Kentucky and even the safest roof may collapse without advance indications of impending disaster. Respondent's roof at the Nos. 1 and 2 headings was as safe as any roof, being composed of sandstone. Nevertheless, when May saw the danger sign he informed Supervisor Harris that he refused to work "under a danger sign." Harris then called May and Winchester to the No. 1 heading where Inspector Runyon had just tacked up another danger sign for inadequate timbering. When Harris ordered them to proceed to the ramp and to return to work, Winchester reminded Harris that he, Harris, would lose his State working papers as mine fore- man for asking the men "to go over that danger sign." Yet Harris persisted in his order and added, "I don't care. I have got one mistake to make and I might as well make it now." Both May and Winchester requested Harris to assign them to work at another heading which was safely timbered until the dangerous No. 2 head- ing was rendered safe and the danger sign was taken down. But Harris rejected this offer on the ground there was nothing else to do. Harris then sent word to Troy T. Deskins, Respondent's president, whom I find to be a supervisor as contemplated by Section 2(11) of the Act, to come to the mine and met him outside at the mouth of the mine. Deskins then asked a group of assembled employees, "Boys, what is wrong?" or "What's the matter boys?" When Winchester explained that the State mine inspector had "dangered off No. 2" and, therefore, he refused to "go across" the sign, Deskins commanded Harris, "Fire him." Then Deskins turned to May and asked him, "Harold, what about you " May replied, "I won't go past the sign, either." Deskins then ordered Harris, "Discharge him." Thereupon Harris wrote out two separate discharge slips and handed one to May and another to Winchester. Deskins then asked each of the remaining employees if he would return to work. Upon receiving an affirmative reply, Deskins ordered each one to return to work and each one did go back to work. The top of Respondent's mine is composed of sandstone. Such material is con- sidered "a good top, if there are any good tops," according to Inspector Runyon. Inspector Chapman, a witness for Respondent, concurred in this evaluation, but claimed it was composed of massive sandstone, a somewhat stronger formation. Nevertheless, timbering is necessary to lessen the danger, ever present, that a top, even a massive sandstone top, will cave in. Such timbers serve dual purposes: (1) they hold the roof up if it starts to come down, thus enabling miners to escape before a complete cave-in, and (2) they give audiovisual warning of imminent collapse by cracking or breaking before the top comes down, thus alerting persons within to escape and admonishing those on the outside not to enter. On March 29, Runyon observed little hill seams, which, however, did not appear to be of a type which would call for more timbering than is normally required. Placing danger signs in a mine is required by law when, in the judgment of an inspector, a regulation has not been met. Nevertheless, such signs do not disclose on their face the nature of the variation from State standards-it may be severe or it may be minor. Inadequate timbering of the type encountered here is not serious- in fact, it was corrected within a half hour after Runyon's disappearance from the scene. C. The discharge of Willard Winchester Winchester was hired by Respondent sometime in 1959. When the mine was opened in December 1961, he was employed as a loading machine operator. Late in February 1962, during the Union's organizing campaign, he joined the Union. Thereafter, both alone and also accompanied by Union Representative Johnson, he actively urged employees to join the Union and succeeded in inducing some to become members, including Roy Thacker, to whose sister President Deskins is married. Both before and after the mine opened, he heard President Deskins say that he could not sign a union contract because he was unable to pay union wages and that "if he had to he would just have to shut the mine down." In the fall of 1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1961, Deskins told a group of employees assembled in his office, one of whom was Winchester, that "it would be a nonunion mine" and that if they did not want to work he wished they would quit then. When Winchester became a loading machine operator he had to be rehired as such. As a condition of such rehire he was required to sign a "contract" in which he promised, among other things, that he "would not join a picket line against" Respondent. On March 29, Winchester was at work in the mine in the morning when Mine Inspector Runyon came in. Runyon made measurements with Foreman Harris and then declared that No. 2 heading was not properly timbered. Then Runyon said he was going to "shut down" this heading and posted a "danger" sign. Despite this, Harris told Winchester, "I am going to work it anyhow," and instructed him to continue with the loading. Although Winchester asked to work in heading No. 3 and also admonished Harris that the latter would lose his "mine papers" by ignoring the danger sign, Harris insisted that Winchester "work this place [No. 2] or that is all I have for you." Winchester refused to work as long as the sign remained in the mine. Harris then ordered the employees to go to the ramp and from there to the mouth of the mine where they were addressed by President Deskins. Deskins then asked the "boys" what the trouble was. "They" replied, "The mine inspector has got us stopped with a tag." Then Deskins assured the group of employees with the words, "Boys, if you get in trouble with the State over violation of the law the company will stand behind you or back you up." When Deskins asked Winchester if he would go back to work, he replied that "they had dangered the place off and I wasn't going by the danger sign." Immediately thereafter Deskins instructed Harris in two words: "Fire him." Deskins also ordered the other employees to go back to work and they did. Two employees who so returned, viz, Williamson and Thacker, "started timbering" and completed it within a half hour. In doing so, Williamson and Thacker set up two kinds of timbers: (1) those "old" timbers which had been knocked down during the previous evening by inexperienced night-shift employees, and (2) also "new timbers to timber the thing up." Concluding Findings 1. As to interrogation of employees It is not disputed that Supervisor Harris asked several employees if they had signed union cards after he knew that Union Representative Johnson had talked to them. Even when considered alone, this interrogation amounts to interference, restraint, and coercion because the inquiries propounded to the employees have not been shown to be necessary for the purpose of ascertaining for any legitimate purpose the extent of the Union's representation (Orkin Exterminating Company of South Florida, Inc, 136 NLRB 399), "and explained to the employees on that basis." S. H. Kress & Co., 137 NLRB 1244.3 But, in addition, Harris (1) told some em- ployees it was "not right" to join the Union after signing the individual contracts mentioned above, (2) complained to employee May that he thought May would be the last to sign a union application, and (3) told employee Winchester that some of the men were letting him down or backing down on him. Accordingly, I find Section 8(a)(1) of the Act to have been violated. Hence I conclude that there is no merit in Respondent's contention that the interrogation here involved was permis- sible under Section 8(c) of the Act. Blue Flash Express, Inc., 109 NLRB 591, does not weaken this result. It is contended further by the General Counsel that Respondent, in violation of Section 8(a)(1) of the Act, (1) threatened its employees with discontinuing its operation and consequent loss of employment if it had to deal with the Union, and (2) forced employees to sign a contract not to engage in picketing. But the com- plaint expressly limits the illegal Section 8(a)(1) conduct (other than the dis- 3 N L R.B v. Peerless Products, Inc, 264 F. 2d 769, 772 (C.A. 7), upon which Respond- ent relies, resembles the instant case quite strongly on this aspect of the issue. To the extent that it is inconsistent with the Board's decision in that and other cases, I am constrained not to follow it. ". . . It remains the Trial Examiner's duty to apply estab- lished Board precedent which the Board or the Supreme Court has not reversed . . [He may not] speculate as to what course the Board should follow where a circuit court has expressed disagreement with its views." Insurance Agent's Union, AFL-CIO (The Prudential Insurance Company of America), 119 NLRB 768, 773 And NLRB. v Indiana Metal Products Corporation, 202 F. 2d 613, 619-620 (C.A. 7), advanced by Respondent on its behalf, shows that the Seventh Circuit may find interrogation unlawful. BELFRY COAL CORPORATION 1063 charges discussed below) to interrogation only. Hence I do not reach the question of whether these particular activities also constitute interference, restraint, and coercion. 2. As to the discharge of Harold May I find that Supervisor Harris, who interrogated May and other employees and learned of their membership in the Union, discussed this fact with President Deskins.4 And I further find that Respondent made it plain to employees that it would not sign a collective-bargaining contract with the Union solely for economic reasons. But I am constrained to find that May was not discharged for his union mem- bership or for his activity on behalf of the Union. This flows from the following facts: (a) President Deskins did not have a union animus. In fact, Deskins had recognized unions in the past and told Union Representative Johnson he had no objections to unions. (b) Respondent not only interposed no obstacles to the Union's organizing ef- forts, but actually rounded up employees so that the Union's representative could appeal to them. (c) Respondent did not want to sign a union contract solely because he could not afford to pay the Union's wage scale and so informed Union Representative Johnson and the employees. (d) I do not find that the reason given for the discharge is a pretext. If May had returned to work as directed he would not have been fired. Other union mem- bers who returned to work pursuant to the command of Deskins were not disciplined. The precipitate discharge of May resulted from a tendency of Deskins to be quick tempered if not intemperate. On the other hand, I find that May was discharged for his refusal in good faith to work because of abnormally dangerous conditions at his place of employment, and that in so refusing May was engaged with other employees in a protected con- certed activity. Accordingly, I find that May was not on strike and that his dis- charge was prohibited by Section 8(a)(1) of the Act. Knight Morley Corpora- tion, 116 NLRB 140, 145-147, enfd. 251 F. 2d 753 (C.A. 6). For the reasons given by the Board in Knight Morley Corp., supra, N L.R.B. v. American Manu- facturing Company of Texas, 203 F. 2d 212 (C.A. 5), and N.L.R.B. v. Kohler Company, 220 F. 2d 3 (C.A. 7) are distinguishable. The conclusion that May was engaged in protected concerted activity is based upon the following factors, which I find supported by the credible evidence: (a) May was engaged in a concerted activity with other employees, or at least with employee Winchester. And President Deskins was aware of this combined action (1) when he met the assembled employees at the mouth of the mine and inquired of them as a group-his opening remarks were addressed to them as "boys"-what the trouble was, and (2) received a reply from "them" that the place had been "dangered off." This finding is not lessened because Deskins im- mediately thereafter called upon each employee to return to work, for Deskins could not convert group action into individual conduct by speaking to individual employees. (b) This concerted activity was protected because the employees in good faith quit their labor because of abnormally dangerous conditions for work at the place of employment, as Section 502 of the Act gave them that privilege. In this con- nection, ' find that the employees could accept Inspector Runyon's appraisal of the inadequately timbered mine and were not required to continue working in the mine before the danger sign had been removed. Deskins' commands to them to return to work, even when accompanied by assurances that he would save them harmless if such return were illegal, patently were an attempt to override the judg- ment of a State official and could be lawfully ignored by the employees. Nor is it a defense (1) that another State inspector (Chapman) described the roof as massive sandstone, which he considered the safest kind of roof, (2) that employees needed no more than a half hour to complete the necessary timbering, (3) or that some employees testified that they considered the roof safe. As to (1), it may be observed that employees did not have the benefit of Inspector Chap- 4 Although Thacker, the brother-in-law of Deskins. had been induced to join the Union by employee Winchester, and Thacker knew from Winchester that all but two or three employees had also signed , there is no evidence that he passed on this information to Deakins. Hence I do not find that Respondent obtained knowledge of union activity from Thacker. 1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD man's estimate at the time of the orders given by Deskins.5 As to (2) it is suffi- cient to point out that the danger signs could have been taken down after the timber- ing had been accomplished, thus withdrawing from employees the right to justify their refusal to return to work. But there is no evidence that the signs had been removed upon the asserted completion of the work. And as to (3), the fact that employees testified that they considered the roof safe is unimportant; it is undisputed these employees did not return to work following the sign posting until Deskins directed them to do so.6 Finally, I find that the walkout grew out of a labor dispute concerning conditions of employment. N.L.R.B. v. Washington Aluminum Company, Inc., 370 U.S. 9, 15; 82 S. Ct. 1099, 1103. Accordingly, I find that May's discharge contravenes Section 8(a)(1) of the Act. The General Counsel also submits that May's discharge is additionally un- lawful under Sections 7 and 8(a)(1) of the Act because he was fired for refusing to work after being "told not to . . . by a State mine inspector." But I do not reach this latter issue because it has not been pleaded in the complaint? 3. As to the discharge of Willard Winchester I find that Winchester was discharged for engaging in concerted protected ac- tivity, that he quit labor in good faith because of abnormally dangerous conditions for work at his place of employment, and that such discharge is prohibited by Sec- tion 8(a)(1) of the Act. I further find that Winchester was not fired for joining and assisting the Union in its organizational activities . Concluding findings and reasons given respecting the discharge of Harold May are equally applicable here, and are hereby incorporated mutadis mutandis. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Those activities of the Respondent found to be illegal set forth in section III, above, occurring in connection with the operations of Respondent as set forth in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that Respondent engaged in certain unfair labor practices in violation of Section 8(a)(1) of the Act, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The Recommended Order will require Respondent to offer full and immediate reinstatement of Harold May and Willard Winchester to their former or substantially equivalent positions , and to make them whole for any loss of earnings suffered. Such loss shall be compensated for by payment of sums of money equal to those which May and Winchester normally would have earned from the date of the discrimination against them to the date of Respondent's offer of reinstatement or actual reinstatement , as the case may be, less net earn- ings during the intervening period. The backpay provided herein shall be com- puted in accordance with the formula described in F. W. Woolworth Company, 90 NLRB 289-. Respondent's conduct in discharging the above -named employees , while con- travening the Act, does not go "to the very heart of the Act." Cf. N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532, 536 (C.A. 4). Hence the broadest type of 8I place no reliance upon General Counsel's Exhibit No 4, which is a letter from the Kentucky Commissioner of Mines to employee Winchester warning him that he is work- Ing in a "death trap" This letter is dated March 6, 1962, and, although admissible, relates to a condition too remote from March 29 to he charged with probative value. G There is evidence that a danger sign may be affixed in a mine for minor as well as severe infractions of State law. But this cannot constitute a defense, for employees may not substitute their judgment for that of the State inspector Moreoi er, as long as the sign does not identify the cause prompting its appearance, employees need not speculate as to what is such cause Since the sign involved herein did not mention the reason for Its posting, employees were warranted in treating it as warning them of abnormally dangerous working conditions, especially since all parties agreed that mine work itself is inherently hazardous even when all State laws have been obeyed 7 A similar argument has been offered concerning the discharge of Winchester. For the same reason I do not reach the issue. BELFRY COAL CORPORATION 1065 order is not warranted. An order of less scope will effectuate the statutory scheme. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. Respondent is an employer within the meaning of Section 2(2) and it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By coercively interrogating its employees regarding their union membership and sympathies Respondent has engaged in unfair labor practices as defined in Section 8 (a) (1) of the Act. 4. By discharging May and Winchester for engaging in protected concerted ac- tivity Respondent has interfered with, restrained, and coerced employees, and thereby engaged in unfair labor practices proscribed by Section 8(a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent has not committed any other unfair labor practices within the meaning of the Act as alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that the Respondent, Belfry Coal Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their union membership and sympathies. (b) Discharging employees for engaging in protected concerted activities by refusing in good faith to work because of abnormally dangerous conditions at their place of employment. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Harold May and Willard Winchester immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them in the manner set forth in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, personnel records and reports, and all other records necessary and useful to de- termine the amount of backpay due under the terms of this Recommended Order. (c) Post at its mine at Burnwell, Kentucky, copies of the attached notice marked "Appendix." 8 Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Nir_th Region, in writing, within 20 days from the date of receipt of this Intermediate Report and Recommended Order, what steps Respondent has taken to comply herewith.9 8 If this Recommended Order is adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." e In the event this Recommended Order is adopted by the Board this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." 1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is further recommended that the complaint be dismissed in all other respects. It is finally recommended that unless Respondent shall within 20 days from the receipt of this Intermediate Report notify said Regional Director, in writing, that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify you that: WE WILL NOT interrogate employees concerning their union membership and sympathies in a manner constituting interference, restraint, or coercion in viola- tion of Section 8 (a)( I) of the Act. WE WILL NOT discharge employees for engaging in protected concerted ac- tivities by refusing in good faith to work because of abnormally dangerous conditions at their place of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed in Section 7 of the Act. WE WILL offer to Harold May and Willard Winchester immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered by reason of their discriminatory discharge. All our employees are free to remain, and to refrain from becoming or remaining, members of District 17, United Mine Workers of America, or any other labor organization. BELFRY COAL CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Transit Building, 4th and Vine Streets, Cincinnati 2, Ohio, Telephone Number, Dunbar 1-1420, if they have any questions concerning this notice or compliance with its provisions. Plastics Industrial Products, Inc. and Samuel E. Angoff. Case No. 1-CA-3677. November 19, 1962 DECISION AND ORDER On August 17, 1962, Trial Examiner Louis Libbin issued his Inter- mediate Report I 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 attached Intermedi- ate Report. He also found that the Respondent had not engaged 1 The hearing in this case was conducted by Trial Examiner Max Goldman, who died on July 3, 1912. Trial Examiner Louis Libbin prepared the attached Intermediate Report on the basis of the record, 139 NLRB No. 90.