Kingwood Mining Co.

KINGWOOD MINING COMPANY 957 Kingwood Mining Company and United Mine Workers of America. Case 6-CA-3782 3. Amend the seventh indented paragraph of the Trial Examiner's Notice to read as follows: July 31,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On June 2, 1967, Trial Examiner Herbert Sil- berman issued his Decision in the above-entitled proceeding, finding that 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 Trial Examiner's Decision. Thereafter, Respondent and the General Counsel each filed exceptions with 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 powers in connection with this case to a three- member panel. 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 briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the modifications and additions in the Order set forth below. I ORDER 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, as amended herein , and orders that Respondent, King- wood Mining Company , Kingwood , West Virginia, its officers , agents, successors , and assigns, shall take the action set forth in the Triai Examiner's Recommended Order , with the additions and modifications indicated below: 1. Amend paragraph 1(f) of the Trial Examiner's Recommended Order to read as follows: "(f) In any other manner interfering with, restraining , or coercing its employees in the exer- cise of the rights guaranteed in Section 7 of the Act." 2. Delete the second sentence of paragraph 2(a) of the Trial Examiner's Recommended Order and substitute the following: "(a) Copies of said notice, on forms provided by the Regional Director for Region 6, shall, after being duly signed by the Respondent's representa- tive , be posted by Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted." 166 N LRB No. 113 WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act. I We find merit in the General Counsel's contention that the unfair labor practices committed by the Respondent are potentially related to other unfair labor practices proscribed by the Act, and that the danger of their commission in the future is to be anticipated from the Respondent's conduct in the past. As the preventive purposes of the Act will be thwarted unless our Order is coextensive with the threat, we hereby grant the General Counsel's request for a broad remedial order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HERBERT SILBERMAN, Trial Examiner: Upon a charge and an amended charge filed, respectively, on November 17 and December 16, 1966, a complaint, dated January 27, 1967, was duly issued alleging that the Respondent has engaged in unfair labor practices proscribed by Sec- tion 8(a)(1) of the Act. The complaint, as amended at the hearing, alleges that during September 1966 Respondent interfered with, restrained, and coerced employees in the exercise of their rights guaranteed in Section 7 of the Act by creating the impression among its employees that the Respondent was keeping their union activities under sur- veillance, by engaging in the surveillance of a union meet- ing which was held on September 21, 1966, and which was attended by Respondent's employees, by coercively interrogating employees with respect to their union mem- bership, activities, and sympathies and those of their fel- low employees, by threatening employees with discharge because of their union membership, activities, or sym- pathies, and by threatening to discontinue its operations if the employees should select the Union as their bargain- ing representative. Respondent in its answer generally de- nies that it has committed the alleged unfair labor prac- tices. A hearing in this proceeding was held in Kingwood, West Virginia, on April 6, 1967.1 Thereafter, the General I At the opening of the hearing Respondent moved for a continuance because Robert Layman, one of two management officials accused in the complaint of having engaged in the alleged unlawful conduct, was in a hospital and unable to attend the proceedings The motion was denied without prejudice to its renewal at a later stage during the hearing At the conclusion of the hearing, counsel for the General Counsel moved to strike the testimony of his witness, Wayne Wilson, and to amend the com- plaint by deleting from subparagraphs 6(a) and (c) thereof the name of Robert Layman. These motions were granted. As a consequence, the only remaining allegation of the complaint which in any manner involves Robert Layman is subparagraph 6(d) which reads On or about September 21, 1966, by James Wilkinson and Robert Layman, at Bruceton Mills, West Virginia, kept meetings of the Union attended by Respondent's employees under surveillance In its brief, "Respondent again moves the Trial Examiner to continue this case until Robert Layman has an opportunity to appear and answer the charges made against him in paragraph 6(d) of the Complaint, even after the Complaint has been amended as aforesaid " However, the testimony relating to subparagraph 6(d) concerns an event in which both James Wil- kinson and Robert Layman participated and Wilkinson testified fully about the matter at the hearing. Furthermore, my findings regarding the incident have been limited to such facts as were admitted by James Wil- kinson in his testimony In these circumstances Respondent has not been prejudiced by the unavailability of Robert Layman Accordingly, I hereby deny Respondent's further motion for a continuance 958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel and the Respondent filed briefs with me which have been carefully considered Upon the entire record in the case and from my obser- vation of the witnesses and their demeanor, I make the following: FINDINGS OF FACTS 1 THE BUSINESS OF THE RESPONDENT Respondent, a West Virginia corporation, is engaged in mining coal at Kingwood, West Virginia. During the 12 months preceding the issuance of the complaint, Re- spondent sold and shipped from its Kingwood, West Vir- ginia, location coal valued in excess of $50,000 directly to points located outside the State of West Virginia. Respondent admits, and I find, that it is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act 11 THE LABOR ORGAINIZATION INVOLVED United Mine Workers of America is a labor organiza- tion within the meaning of Section 2(5) of the Act 111. THE UNFAIR LABOR PRACTICES The conduct complained of herein occurred during September 1966 while the Union was engaged in a cam- paign to organize Respondent's employees. On Sep- tember 11, an International representative of the Union met with employees of Respondent at the home of a shop foreman, William C Shaffer That same evening, James Wilkinson, vice president and general superintendent of Respondent, questioned employee Jackson Shaffer at the latter's work station about the attendance at the meeting and was informed by Jackson Shaffer that five or six men had been present.' The next day Wilkinson had conversation with two other employees about the meeting. Wilkinson spoke with Dean Phillips, an oiler on the dragline, while Phillips was at his machine. Wilkinson asked Phillips whether he had been at the meeting, Phillips pretended that he did not know to what Wilkinson was referring. After Wilkinson mentioned the meeting at Shaffer's home. Phillips denied that he had been there. In the course of this conversation Wilkinson said that the Company would discontinue its Kingwood operations before it would recognize the Unions Joseph Elliott, who was operating the dragline, came down from the machine while Wilkinson was still talking with Phillips. Wilkinson asked Elliott whether he had attended the meeting at Shaffer's home. Elliott replied that he had not been there. During their further conversation Wilkinson said that he would fire anyone who he learns has signed a union card. Elliott responded that could not be done: to which Wilkinson replied that he L Wilkinson testified that several of the men told him about the meeting on the night that it was held i Phillips' specific testimony was that Wilkinson said, "Fry (president of Respondent's parent company) wouldn't join the Union because he would move his equipment to Pennsylvania first to Somerset " 4 The foregoing is based upon the testimony of Phillips and Elliott whom I credit Although Wilkinson did not deny that he discussed the subjects mentioned in the testimony of Phillips and Elliott, his version as to what was said differs in various respects from the testimony of Phillips and Elliott However, Wilkinson appeared to he somewhat uncertain in his recollection of his conversation with these two employees He testified could fire any employee who had signed a union card so long as he did not see the employee execute the instru- ment. Elliott repeated that he did not think Wilkinson could do that and Wilkinson answered that he could find a reason to fire any man on the job.4 Later in the month the Union scheduled a meeting for 6 p m on September 21 in the fire hall at the neighboring town of Bruceton Mills, West Virginia, to which the em- ployees of the Respondent were invited A notice of the meeting was sent to all Respondent's employees whom the union representative believed were in the appropriate bargaining unit. Respondent's officials learned of the meeting. On September 20, the day before the scheduled union meeting, Fred S Shaulis, Respondent's president, Robert Layman, Respondent's general superintendent, and Wilkinson had a discussion about the subject. Shaulis testified that he wanted to ascertain what the attendance at the meeting would be and the extent of the employees' interest in the Union. Therefore, it was decided that a representative of management should observe the meet- ing. The next evening Wilkinson and Layman drove to Bruceton Mills and parked their automobile near the fire hall where they were able to watch the employees enter- ing the building. They were seen by union representatives who came to their car and asked them to leave. However, they refused to leave contending that they had a right to be where they were. That night Wilkinson reported to Shaulis that 10 to 15 employees had attended the meeting and that he did not believe there was any great interest in the Union on the part of Respondent's employees. The next day Wilkinson asked Elliott whether he had signed a union card. When Elliott did not respond Wilkin- son said, "[y]ou was there. Did you sign one"" Wilkin- son further said that everybody at the meeting had signed a card, to which Elliott replied that he did not know whether or not that had happened. The incidents described above constitute infringements of employees' statutory rights in violation of Section 8(a)(1) of the Act It is undisputed that on September 21 Respondent engaged in unconcealed surveillance of a union meeting attended by its employees. Such conduct was a patent violation of the Act. "Few propositions are more firmly embedded in the law of labor relations than that an employer who spies upon the union activities of his employees engages in a flagrant violation of the rights guaranteed by Section 7 of the Act. Such conduct has been condemned by the Board and the courts since the early days of the Act, for experience has shown that em- ployers resort to labor espionage or surveillance for the purpose of obstructing or destroying employees' self-or- ganizational rights and activities.",, The thrust of the testimony of Respondent's officials is that they were in- nocent of any specific intention to interfere with the em- ployees' union activities but that they had a legitmate business reason for wishing to discover the extent of the employees' interest in the Union. According to Shaulis, that he only vaguely remembered his conversation with Elliott As I be- lieve that the testimony of Wilkinson is less reliable than the testimony of Phillips and Elliott, to the extent that there is conflict between Wilkinson's version of the conversations and Phillips' and Elliott's versions, I credit the latter Wilkinson testified that this remark was "a sort of a joke " "It should be observed that executives who jest run the risk that those sub- ject to their power might take them in earnest See NLRB v Marval Poultry Co , 1nt , 4 Cir , 1961, 292 F 2d 454 " A P Green Fire BrakCmnpanvv NLRB,326F2d910,914(CA 8) h Wallace Press, Inc , 146 NLRB 1236, 1238 KINGWOOD MINING COMPANY the Respondent then was negotiating a contract for the sale of coal and in estimating its production costs it wished to inform itself of any potential changes in its labor picture. This reason does not provide a legally cog- nizable defense to the surveillance charge. As was stated in Welch Scientific Company, Inc. v. N.L.R.B., 340 F.2d 199, 203 (C.A. 2), "[i]n essence the company argues that if its actions were taken in good faith it committed no un- fair labor practice. . . . [I]f the conduct complained of otherwise violated Section 8(a)(1) good faith is no defense. The cases clearly demonstrate that it is the tend- ency of an employer's conduct to interfere with the rights of his employees protected by Section 8(a)(1), rather than his motives, that is controlling." Furthermore, Wilkinson in his conversations with Phillips, Elliott, and Jackson Shaffer concerning the union meetings of Sep- tember I I or 21 purported to reveal to them that he knew that the meetings had been held and in his further conver- sation with Joseph Elliott on September 22 he purported to have information about transactions at the previous night's meeting. These comments created the impression that the employees' union activities were being watched and constitute a further violation of the Act. Regardless of whether the employer may in fact have engaged in sur- veillance, employees' rights are subject to the same inter- ference when the employer creates the impression through his statements that the employees' union activi- ties are being scrutinized. Such conduct tends to curtail employees' lawful participation in union activities by in- dicating that the employer is anxious to find out about the union activity which the employees wish to conceal from him to avoid retaliation. 7 Additional violations of the Act arise from the threats made by Wilkinson that the Company would discontinue its operations before it would recognize the Union and that it would discharge any employees whom it learned had signed union cards. Such direct threats of reprisals for engaging in organizational activities are the clearest form of restraint, coercion, and interference with the rights granted employees by Section 7 of the Act. Furthermore, Wilkinson questioned employees as to whether they had attended union meetings, as to the number of employees at such meetings, and as to whether employees at the meetings had signed union cards. In the light of Respondent's other unlawful activities, particu- larly Wilkinson's threat that he would discharge aay em- ployee who had signed a union card, such questioning of employees constituted coercive interrogation in violation of the Act. Through his questions to Phillips, Elliott, and Jackson Shaffer, Wilkinson indicated that he desired to learn about the union sympathies and activities of the em- ployees. As it did not appear that the Company then had any legitimate reason to ferret out such information, the natural tendency of his interrogations was_"to instill in the minds of employees fear of discrimination on the basis of the information the employer has obtained."" Among the various contentions made by Respondent in its defense is that Wilkinson discussed the Union with employees "because they came to him with questions about the Union." However, the testimony adduced at the hearing does not show that any of the incidents sum- marized above were initiated by the employees through questions to Wilkinson about the Union. Another argu- United Mme, at & Chemical Corporation , 155 NLRB 1390, 1406 N L.R B . v. West Coast Casket Company, Inc., 205 F 2d 902, 904 (C.A 9) 959 ment advanced by Respondent is that there is not direct evidence that any employees were discouraged in pursu- ing their union activities by Respondent 's alleged offen- sive conduct . However, "[t]he test is not whether the language or acts were coercive in actual fact, but whether the conduct in question had a reasonable tendency in the totality of the circumstances to intimidate ."9 I have con- sidered carefully the other arguments advanced by Respondent in its brief and I find no merit to them. Ac- cordingly, I find that Respondent has violated Section 8(a)(1) of the Act by reason of the conduct summarized above. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations, described in section I, above have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in un- fair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. By its conduct described above Respondent has in- terfered with, restrained, and coerced employees in the excercise of the rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law and the entire record in the case, and pursuant to Sec- tion 10(c) of the Act, I hereby recommend that Respond- ent, Kingwood Mining Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Spying upon or otherwise engaging in the surveil- lance of the union activities of its employees. (b) Conveying the impression of surveillance of the union activities of its employees by statements to em- ployees or by other conduct or by requesting employees to report upon the union activities of other employees. (c) Expressly or impliedly threatening its employees with loss of employment or discontinuance of its opera- tions because of their choice of a collective-bargaining representative. 9 Carrie Corporation v. N L.R B., 375 F.2d 149 (C.A. 4). 960 DECISIONS OF NATIONAL (d) Threatening its employees with discharge or other reprisals if they should join, assist, or support the United Mine Workers of America, or any other labor organiza- tion. (e) Coercively interrogating its employees regarding their, or other employee's, union membership (f) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act (a) Post at its mine in Kingwood, West Virginia, co- pies of the attached notice marked 'Appendix "10 Copies of such notice, to be furnished by the Regional Director for Region 6, after being duly signed by an authorized representative of the Respondent, shall he posted by Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to its 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. (b) Notify said Regional Director, in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith ' 10 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the U nited States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " 11 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in wnting, within 10 days from the date of this Order, what steps Re- spondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board, and in LABOR RELATIONS BOARD order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify our em- ployees that: WE WILL NOT spy upon or otherwise engage in the surveillance of the union activities of our employees. WE WILL NOT by statements to our employees or by other conduct give the impression that we have engaged in the surveillance of the union activities of our employees. WE WILL NOT request employees to engage in sur- veillance of the union activities of other employees or request employees to report to us upon the union activities of other employees. WE WILL NOT threaten to close our place of busi- ness in Kingwood , West Virginia, or to go out of business, or to reduce our working force because of our employees ' choice of a collective -bargaining representative. WE WILL NOT discharge or threaten to discharge or otherwise penalize any of our employees because of membership in, activity on behalf of, or support of United Mine Workers of America, or any other labor organization. WE WILL NOT question our employees about their union membership or about the union membership of other employees. WE WILL NOT in any'like or related manner inter- fere with , restrain , or coerce our employees in the ex- ercise of the rights guaranteed in Section 7 of the Act. KINGWOOD MINING COMPANY (Employer) Dated By (Representative) (Title) 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 If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, Telephone 644- 2977.