Garrison Coal Co., Inc.

794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reflecting that the Union did not cause the Company to engage in unlawful dis- crimination. Notwithstanding its position, I find no violation was committed by the Company. Accordingly, the entire complaint will be dismissed. Upon the foregoing findings of fact, and upon the entire record in the cases, I make the following: CONCLUSIONS OF LAW 1. Respondent Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Union is a labor organization within the meaning of the Act. 3. The allegations of the complaint that Respondent Union has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act have not been supported by substantial evidence. 4. The allegations of the complaint that Respondent Company has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act have not been supported by substantial evidence. RECOMMENDED ORDER It is recommended that the complaint be dismissed in its entirety. Garrison Coal Co., Inc. and Carl Roy Skeens and Donald Wil- liams and Local No. 50, Reform Mine Workers Union, Party to the Contract. Case No. 9-CA-3391. August 27, 1965 DECISION AND ORDER On May 28, 1965, Trial Examiner John F. Funke issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in and was not engaging in certain unfair labor practices as alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision together with a support- ing brief and the Respondent filed an answering brief in support of the Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Zagoria]. 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 Trial Examiner's Decision, the exceptions, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations.' 'We find no merit In the General Counsel's contention that the Trial Examiner's credibility findings should be rejected , as the clear preponderance of all the relevant evidence does not convince us that the credibility findings are erroneous . Standard Drywall Products, Inc, 91 NLRB 544, enfd. 188 F. 2d 362 (CA. 3). 154 NLRB No. 65. GARRISON COAL CO., INC., ET AL. ORDER 795 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the complaint be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed November 25, 1964, by Carl Roy Skeens and an amended charge filed December 11, 1964, by Carl Roy Skeens and Don Williams against Garrison Coal Co, Inc., herein Garrison or the Respondent, the General Counsel issued a complaint alleging Respondent violated Section 8(a)(1) and (3) of the Act. The answer of Respondent denied the commission of any unfair labor practices. This proceeding, with the General Counsel, the Respondent and the Charging Parties represented, was heard by Trial Examiner John F. Funke at Charleston, West Virginia, on March 31, 1965. At the conclusion of the hearing the parties were given leave to file briefs and a brief was received from counsel for the Respondent on May 5. Upon the entire record in this proceeding and from my observation of the wit- nesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondents admits and I find that it is a West Virginia corporation engaged in mining coal and that it sells coal valued in excess of $50,000 annually in places outside the State of West Virginia. Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION Local No. 50, Reform Mine Workers Union, Logan, West Virginia; Local No. 50, Reform Mine Workers Union, Garrison, West Virginia, herein referred to as Reform Mine Workers, and District 17, United Mine Workers of America, herein the UMW or District 17, are labor organizations within the meaning of the Act. III. THE ALLEGED UNFAIR PRACTICES A. Background This case is not free from confusion and in an effort to clarify the testimony a brief summary of the background may be helpful. First I believe the participants should be identified somewhat in the form of a dramatis personae. The principals in this proceeding are: Name Occupation Ellis, Joe_____________ Representative, District 17, UMW. Stidham, Jerry________ International Representative, UMW, assigned to Dis- trict 17. Bullock, Quentin G____ President and owner , Garrison Coal Co., Inc. (Presi- dent and owner, Dorothy Coal Co.) Wiseman, Gordon----- Mine superintendent, Garrison, during 1964. (Em- ployed by Ranger Fuel Corp. since March 1, 1965.) Cummings, Roger W__ Mine foreman, Garrison, until December 31, 1964. (Employed by Hambrick Coal Co. since January 1, 1965 ) Skeens, Cliff ord------- Employee, Garrison. Skeens, Carl Roy______ Employee, Garrison, laid off November 6, 1964. Al- leged 8(a)(3). Williams, Don________ Employee, Garrison, laid off November 6, 1964. Re- hired January 14, 1965. Alleged 8(a)(3). Elkins, Fred__________ Representative, Reform Mine Workers. Representa- tive, Southern Labor Union. Williams, Leroy_______ President, Local 50, Reform Mine Workers, and em- ployee, Garrison. Lynch, Herman_______ Secretary-treasurer, Local 50, Reform Mine Workers, and employee Garrison. 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Quentin G. Bullock testified that Dorothy Coal Company, which leased a mining strip to Garrison and Ebony Coal Company (Ebony was not controlled by Bullock), had had a contract with the UMW which had terminated in 1960. On October 2, 1963, Bullock signed a 3-year collective-bargaining agreement with Local 50, Reform Mine Workers Union, on behalf of Dorothy Coal Company, Inc., and Seng Creek Operators Association. The signatories to this contract appear as follows: APPROVED: REFORM MINE WORKERS UNION By Charles S. Taylor ( Signed) President APPROVED: DOROTHY COAL COMPANY, INC. By Quentin G. Bullock (Signed) President APPROVED: EBONY COAL CO., INC. By Louis D. Shafer (Signed) President REFORM MINE WORKERS UNION Local Union No, 50 By Leroy Williams (Signed) President SENG CREEK OPERATORS ASSOCIATION (Operator) By: Quentin G. Bullock (Signed) (Signature) By: Pres. (Title) Although Garrison is not a party to this contract i on its face it was introduced into evidence by the General Counsel (General Counsel's Exhibit No. 2) as the con- tract between the Reform Mine Workers and Garrison. Although there is no explanation on the record for the fact that Garrison was not a signatory to the con- tract, it was treated by the parties as a valid contract between Garrison and the Reform Mine Workers.z Bullock testified that Garrison had become dormant in 1960 but that he had reactivated it in March 1963, and that sometime thereafter a committee of employees identified as Taylor, McCoy, and Phillips, came to him and told him the employees of Garrison had signed cards expressing their desire to be represented by the Reform Mine Workers. Sometime thereafter the contract was executed. It is against this background that Respondent's conduct and the evidence must be measured. B. The issues Because the testimony in this case does not make clear exactly what violations the General Counsel claims and because no brief has been submitted by the Gen- eral Counsel indicating the evidence upon which he relies to support his complaint, the issues will be summarized briefly- (1) Did Gordon Wiseman threaten an employee that the plant would close if the employees selected the UMW as their representative? (2) Did Respondent coerce its employees to form their own labor organization? (3) Did Respondent force employees to keep in effect the contract between Garrison and Reform Mine Workers after Respondent knew said labor organization was defunct? (4) Did it require all new employees to join the Reform Mine Workers? (5) Did Respondent discharge Carl Roy Skeens and Don Williams because of their activities on behalf of the UMW? It will be noted that paragraphs (2), (3), and (4) above suggest aid and assistance on the part of Respondent to the UMW, yet the complaint does not allege any vio- lation of Section 8(a)(2). The attorney for the General Counsel did indicate during the hearing that he would request an 8(a)(2) order as a remedy for the 8(a)(1) violation but did not indicate the theory supporting such a request nor why 8(a)(2) was not alleged. 1 "Appendix A," dated the same day, was signed in the same form by the same parties and was introduced as part of General Counsel's Exhibit No 2. 8 The unit description of inclusions in the contract reads: Included: All inside and outside production and maintenance employees of the Operator at its coal mining operations located at its Garrison , W. Va, coal tipple and coal mine. The record also indicates, for whatever it is worth , that Garrison operated the Seng Creek mine. GARRISON COAL CO., INC., ET AL. 797 C. The evidence 1. The testimony of the UMW representatives Joe Ellis and Jerry Stidham testified that they first attempted to organize the employees of Garrison on July 21, 1964.3 (Another representative of the UMW, Galati, was with them.) They parked across from the Garrison tipple and waited for the emloyees to quit work. Wiseman was present at the site and as it grew dark Ellis asked Wiseman if they could talk to the employees and Wiseman said he would see. Later Wiseman gave permission and they met with the employees on company property . They also met Fred Elkins, representative of the Reform Mine Workers, who told them it had disbanded and that he was out of a job.* On or about October 30 Stidham returned to Garrison and had a brief conversation with Carl Roy Skeens who told him the employees were "disgusted" and "ready." As a result of this conversation with Skeens, Ellis and Stidham returned to Garrison on November 5. They met with Carl Skeens, Clifford Skeens, Herman Lynch, Leonard Ward, Herbie Honaker, Don Williams, and "Frog" Smith on a road above the tipple and passed out authorization cards to them.5 While they were so engaged Roger Cummings drove down the road, passing through the groups At the con- clusion of this meeting another meeting was set up for the next day at 3:30 p.m., when the other employees would be present. The meeting was to be held at a small church but only Carl Skeens, Clifford Skeens, and Don Williams appeared and Carl Skeens and Williams reported that they had been fired. Clifford told them he knew he was fired although he had not reported for work that morning (Clifford was not fired). This was the last effort made by the UMW to organize the employees of Garrison. 2. The testimony of the employees Herman Lynch testified that he became secretary-treasurer of the Reform Mine Workers when the contract was signed on October 2, 1963. The national president of the Union was Bob Phillips, a lawyer in Logan, West Virginia. In July of 1964 Lynch called Phillips who told him his law practice was so urgent he did not have time to come to Garrison but asked Lynch and the district president to come to Logan where he offered Lynch the presidency of the National, an offer Lynch refused. Whatever the problem Lynch presented, Phillips sent Fred Elkins over to Garrison the same month and Elkins told the employees that the Reform Mine Workers had been dissolved and that he represented the Southern Labor Union. The next day Lynch was informed by another employee, Herbie Honaker, that Bullock had torn up the contract with the Reform Mine Workers and that the employees were on strike. The employees then met and appointed a committee consisting of Leonard Ward, Leroy Williams and Lynch to deal with Bullock. Wise- man was asked to contact Bullock and the next day, July 21, Bullock came to the mine.7 Informed by the committee that he had torn up the contract, that Elkins was now representing the Southern Labor Union and that the Reform Mine Workers had been dissolved, Bullock replied that the Reform Mine Workers still had a contract with Garrison and that the employees should get together and decide what they wanted to do. The committee then went back to the tipple and the employees decided to continue with the Reform Mine Workers. On July 21 a letter signed by Leroy Williams and Lynch was sent to Bullock advising him of the employees' decision. (Respondent's Exhibit No. 1). Lynch stated the Reform Mine Workers held no meetings after November 4. Clifford Skeens testified that he was a member of the group addressed by Ellis and Stidham at the mine on November 5 and that he signed a card for the UMW on that day. He did not report for work the next day because he "lust figured after signing the card I was cut off." The next day he was one of three employees (his brother and Don Williams were the others) who met with the UMW representatives at the church. Ellis told him to report for work and the following day he saw 3 Unless otherwise noted, all dates refer to 1964 * This testimony was accepted subject to connection by testimony which was not hear- say as to Respondent. Elkins did not testify and it was not connected. 6 Only the two, Skeens and Williams, signed the cards. 6 Stidham did not claim that Cummings could tell which employees had signed cards and which had not All of the group had cards in their hands. 7 This was the same day that Ellis and Stidham appeared at the mine and were given permission to speak to the men. Bullock described the scene on that day as looking like a union convention. 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wiseman, asked him if he was cut off or fired and was told he was not. The follow- ing day, a Sunday, he met Wiseman who suggested that he wait for a few days and then report back and he was given a job.8 Carl Roy Skeens testified that he was present at the mine on July 21, listened to Elkins and also to Ellis and Stidham and that about the time the employees voted to stay with the Reform Mine Workers he walked out to Cummings and Wiseman, told them the men were confused and that Wiseman told him, ". . . if we sign up with them fellows there, we won't run here no more." Skeens later indicated that Wiseman meant the UMW by "them fellows." Wiseman denies making any such remark and I credit him. Skeens was a witness who, as the record indicates, was both biased and prejudiced against the company and his testimony suffered from this taint. Wiseman was a credible witness no longer employed by Garrison and free from any suggestion of self-interest. Further, there is no other evidence in the entire record to establish that the officers or supervisors of Garrison favored either union. With respect to his discharge Skeens testified that he was first employed by Garri- son in March 1964, and that he ran a tractor, helped on a machine, ran a loader, and "done everything." After about 30 days he was laid off "legally" in a reduction in force. Skeens was rehired on a date fixed by his counsel as July 9. (Skeens' -testimony, which is so confusing as to be almost worthless, would indicate the date was July 21, the date Bullock came to the mine following the strike and the date that Ellis and Stidham first appeared.) On a date which Skeens was unable to fix but which Stidham fixed as about October 30 Skeens had a talk with Stidham on which he told him that the men were dissatisfied and things were in an "uproar." On November 5 Skeens signed a card for the UMW under the circumstances previ- ously established by Stidham. On the next day he went to the mine and told Wiseman that he could not work, that his wife had had her teeth pulled and that he was going to get his mother to stay with her. Wiseman told her he was cut off 9 because Garrison had lost its lake order. Skeens then went to see Leroy Williams who told him nothing. Skeens then apparently went to the mine office where Wise- man was telling Lynch that he had been bumped by Wilson and that Lynch would have to oump Don Williams. Skeens testified: I was awfully mad, I said, "Well," I said "before you're bumping, Gordon," I said, "you-all can bump me all the time you owe me." I said, "The time-and-a-half." Skeens then accused Wiseman of cheating him of 2 hours on the previous Saturday and Wiseman told him the cutoff might be for only a few days and Skeens (using one word he did not want to repeat in the hearing) told Wiseman he did not want his job back and left. Skeens testified that about 2 weeks later a new employee, Bill Haggen, was hired to operate the tractor which he had been operating when laid off. Don Williams testified that he was first employed as a machine worker by Garri- son in September 1964. After working 10 shifts he was laid off together with 4 other employees, Herman Lynch, Homer Wilson, Everett Kelly, and Theodore Johnson. In the middle of October he returned to work as a driller. Between that date and the date of his next layoff, November 6, he did not join the Reform Mine Workers and was not asked to join. He did sign a card for the UMW on November 5 at the meeting held by Ellis and Stidham at the mine. On November 6 he was laid off and Homer Wilson was hired in his place. Wilson claimed the right to "bump" Lynch off his job and Lynch, in turn, bumped Williams. Williams admitted that he was the junior employee and that Lynch had seniority over him. Williams was reemployed January 14. 3. Respondent's witnesses Quentin G. Bullock, a credible witness, testified that he was not informed in July that the Reform Workers had either disbanded or dissolved. He made his trip to the Garrison mine after having been informed by Lynch by telephone that the men were on strike. When he arrived at the mine he was informed by Elkins that the Southern Labor Union had "purchased the Reform Mine Workers." Bullock's reply was that he had a contract with the Reform Mine Workers and that he would continue to honor it. He then talked with the committee, Lynch, Williams, and 8Wiseman's reason for suggesting delay was grounded on possible difficulties Skeens might have with the employees who had remained loyal to the Reform Mine Workers, not on company objections. 9 Mine terminology for laid off. GARRISON COAL CO., INC., ET AL. 799 Ward, told them he had not torn up the bargaining contract and that Elkins was on the property and that representatives of the UMW were at the bottom of the hill and for the employees to make up their minds what they wanted to do and advise him in writing. He subsequently received Respondent's Exhibit No. 1. After that, according to his testimony, he complied with the terms of the contract and was still complying with them at the time of the hearing. There is no evidence, apart from the signing of three UMW cards on November 4, of dissidence in the mem- bership of the Reform Mine Workers, although there is evidence (Lynch's testimony, supra) that it held no meetings after November 4. There is no evidence that Bullock knew of this until the hearing. With respect to the cutoff on November 6, Bullock testified that Garrison would cease shipping lake orders between the 1st and 15th of November and that in October he told Wiseman not to replace any employees who might quit. Skeens and Williams were selected for cutoff on November 6 by Wiseman, not by Bullock. Roger Cummings testified that he saw the group of employees including Skeens and Williams talking with Ellis on the Company's property on November 5. He reported this meeting to Wiseman. Later (Cummings' testimony is not clear but it was apparently November 5 or 6) he had a telephone conversation with Wiseman in which Wiseman told him that the men were having a meeting with the UMW workers and that he understood some had signed with the UMW and, upon being refreshed by his pretrial affidavit, admitted that Wiseman said he had been informed by Len Ward that Carl Skeens had signed and that Skeens had "got them" to come to the meeting with Ellis. Cummings testified that Carl Skeens was laid off after discussion between Wise- man and himself because he was the junior tractor operator and Garrison was operating only three tractors. His version of the conversation between Wiseman and Skeens at the time Skeens was notified of this cutoff does not differ substantially from that of Skeens and Wiseman. Gordon Wiseman testified that in November he received instructions to cut expenses and that during that month Don Williams was bumped by Lynch who had been bumped by Homer Wilson. Wiseman stated that he attempted to rehire Williams prior to January 14, sent Harry Staglers to his house but Williams was not at home and he then hired Azel Thompson. He stated that he did not learn that Williams had signed a card until a day or two after he had been bumped. Wiseman testified that Carl Skeens came to the office on November 6, told him he could not work and that he then told Skeens he would be off for a few days until orders picked up. Twenty minutes later Skeens told him, in front of other men, that he had been laid off because he had signed a UMW card and that if he needed a man "don't come after me because I don't want to work there any more." Wise- man's reason for selecting Skeens for discharge was that one of the four tractors was not working and Skeens was the junior tractor operator. Conclusions Having credited Wiseman's denial that he threatened Skeens with a shutdown of the mine if the employees selected the UMW as their bargaining representative and as this is the only such allegation in the record, it will be recommended that paragraph 5 of the complaint be dismissed. With respect to paragraph 6 of the complaint several times during the hearing I asked the General Counsel the purpose of certain evidence presumably offered in support of the paragraph and his theory of the violation of the Act set forth therem. The General Counsel's reply was that he was, in effect, seeking an 8(a) (2) remedy under an 8(a)(1) allegation and would set forth his theory in his brief. Since the General Counsel submitted no brief it must be assumed that he, like me, could not find a theory to sustain the allegations nor a violation. There is no evidence that Garrison forced its employees to form their own labor organization. The uncontradicted testimony is that Bullock, confronted with proof that one hundred percent of Garrison's employees had joined the Reform Mine Workers in October 1962, recognized it and signed a 3-year contract with it, thus conforming to his obligation under the Act. As to paragraph 6(b) there is no evidence to show that Bullock knew that the Reform Mine Workers had ceased to exist.1° To the contrary, after telling his employees to make their own decision between the two unions, he was advised in writing on July 21 that they wished to remain with the Reform Mine Workers. 101t is true that Elkins told Bullock on July 21 that the Reform Mine Workers had been sold to the Southern Labor Union but it was after this that he received the letter from the employees stating they wished to remain with the Reform Mine Workers and not with either the United Mine Workers or the Southern Labor Union. 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is no evidence that any employee was required to join the Reform Mine Workers (Garrison) as alleged in paragraph 6(c). Again to the contrary, the only "new" employee who testified, Don Williams, testified that no one asked him to join the Reform Mine Workers between September and November. The evidence to support paragraph 6 is not minimal, it is nonexistent. Paragraph 8 alleges that Carl Skeens and Don Williams were discharged because of their activities on behalf of and sympathy for UMW. Neither, as a matter of fact, was discharged. Williams, as he admitted, was bumped from his job on November 6 in accord with the seniority provisions of the bargaining agreement. He was rehired January 14 and would have been rehired before that date if he had been at home when he was sent for by Wiseman. Skeens was told by Wiseman when he was laid off that it would be for a few days or a week and indignantly told Wiseman that he did not want to work for Garrison again. Under this circumstance I cannot find that Respondent was under any obligation to offer him reemployment unless his union activity was the cause of his discharge. The General Counsel presumably relies, and again I must make an assumption of his theory, on the fact that Skeens and Williams signed cards with UMW on November 5 and were laid off on the following day to establish an inference of discriminatory motive. The timing does create suspicion, of course, but I do not think that post hoc ergo propter hoc rationale is sufficient in itself to substitute for proof. I find no other factor to support a finding of discrimination. Respondent, through Bullock, had indicated an indifference toward union designation by the employees on July 21, and there was no evidence of any change in Respondent's attitude after that date. Respondent, if it knew of the signing of cards by the two Skeens and Williams on the previous day, would also have known that they were the only three to sign and the majority of the employees had rejected the UMW. Thus there was no threat of representation by the UMW and no action was. called for to thwart such a move. This does not, of course, preclude the possibility that Respondent took such action precipitately and without deliberation of its. necessity. But this requires overlooking the testimony, which I credit, that both lay- offs were occasioned by factors which were not discriminatory and both were intended to be of temporary duration. In the absence of other unfair labor practices and of any display of hostility toward the UMW (the UMW representatives were given permission to talk to the employees on company property) the timing of the. layoffs does not establish that the motive was discriminatory. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the, Act. 2. Local 50, Reform Mine Workers Union, Logan, West Virginia; Local 50, Reform Mine Workers Union, Garrison, West Virginia, District 17, United Mine Workers, are labor organizations within the meaning of the Act. 3. Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. RECOMMENDED ORDER It is recommended that the complaint be dismissed in its entirety. T. J. Fleming Company and District Lodge 71, International Association of Machinists, AFL-CIO. Case No. 17-CA-556, August 30,1965 DECISION AND ORDER On June 8,1965, Trial Examiner W. Edwin Youngblood issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended , and recommending 154 NLRB No. 70.