Huberta Coal Co., Inc.

122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Huberta Coal Co., Inc. and Huberta Mining Co., Inc. and United Mine Workers of America, District #6 and Strip Miners Independent Union of Steu- benville, Ohio, AKA the Employees Committee, Party in Interest Huberta Coal Co., Inc. and Huberta Mining Co., Inc. and United Mine Workers of America, Petitioner and Strip Miners Independent Union of Steu- benville, Ohio, Petitioner. Cases 8-CA-4481, 8-RC-6544, and 8-RC-6559 November 7, 1967 DECISION AND ORDER AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On July 20, 1967, Trial Examiner George A. Downing issued his Decision in the above-entitled case, finding that the Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel, Charging Party, and Respondents filed exceptions to the Trial Ex- aminer's Decision with supporting briefs. 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 briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner to the extent consistent herewith: The Trial Examiner found, and we agree, for the reasons set forth in the Trial Examiner's Decision, that Respondents initiated, sponsored, formed, promoted, assisted, and interfered with the adminis- tration of the Employees Committee and thereby dominated it in violation of Section 8(a)(2) and (1) of the Act, and that Respondents initiated, spon- sored the formation of, assisted, and contributed financial and other support to the Strip Miners In- The Trial Examiner correctly found that the Respondents constitute a "single employer" for purposes of this proceeding In so holding, he re- lied upon common ownership, management , and control of the two cor- porations The following items in the record clearly support his finding Common controlling ownership was held in the estate of Albert Schiappa, which owned 1,998 out of 2 , 149 shares outstanding of Huberta Coal Co , Inc , and 576 out of 695 shares outstanding of Huberta Mining Co , Inc Common management and control was vested in "interlocking dependent Union of Steubenville, Ohio, herein called Independent Union, in violation of Section 8(a)(2) and (1) of the Act. However, he found that domination ceased when Respondents steered the Committee to the lawyer for formation of the Inde- pendent Union and that the Respondents did not thereafter dominate the Independent Union. As ap- pears hereinafter, however, we find merit in General Counsel's contention that there was no hiatus between the dominated Employees Commit- tee and its successor, the Independent Union, and that it is necessary to require disestablishment of the Independent to remedy the unfair labor prac- tice. Formation and domination of the Employees Committee took place while the United Mine Wor- kers of America, herein called Mine Workers, was organizing. On November 25, 1966, immediately after having received a demand for bargaining from the Mine Workers, Respondents called an em- ployee committee meeting. At this meeting, Carapellotti drafted the original "cooperation" agreement, which was recopied and signed by all the committeemen present as well as by several su- pervisors. Thereafter, the same draft and other fac- simile copies were circulated among the employees by supervisors and employees, seeking additional signatures which were obtained. The ""coopera- tion" agreement expressly pledged the support of the committeemen and Respondents to the forma- tion of the Independent Union. O. Schiappa imple- mented the "cooperation" agreement by furnishing authorization cards to committeeman Rocchio, for distribution to employees in furthering the forma- tion of the Independent Union. Around December 1, 1966, the cards were distributed by Rocchio with the assistance of committeemen Forgays and Brit- tel. Concurrently with the committeemen's activi- ties, Respondents' supervisors were obtaining addi- tional employee signatures on other authorization cards for the Independent Union as well as on co- pies of another document by which the signatories revoked cards which they had signed for the Mine Workers. After all the signed cards were returned to O. Schiappa, he summoned the Committee to the Respondents' offices, where he and Cortez in- structed the Committee to take the cards to Attor- ney Anetakis for the purpose of forming the Inde- pendent Union. Following this suggestion, the Committee immediately went to see Anetakis with the assistance of Cortez, who personally drove Rocchio and another to the attorney's office. directorates," in which the Respondents shared five common directors, including the chairman of the board, and identical officers Matters con- cerning employment and labor relations were managed and directed by 0 Schiappa, Cortez, and Carapellotti, all of whom were officers and directors of both corporations Moreover, the Respondents had common administrative offices, shared the same clerical staff, and frequently in- terchanged their employees 168 NLRB No. 22 HUBERTA COAL CO. 123 Thereafter, on December 7, 1966, the formal or- ganization of the Independent Union took place at a meeting of employees at the All American Bowling Lanes in Steubenville. At this meeting a new committee was selected, in form, although the record reveals that the same individuals were elected who formerly served on the Employees Committee, except for its new president, Alba- rano.2 Subsequently, O. Schiappa and Cortez ad- dressed a meeting of employees at mine 86 around mid-December at which time O. Schiappa sug- gested the employees get into the Independent Union. Moreover, during the last week in December, O. Schiappa and Cortez came to em- ployee Novak's home and told him he should attend a meeting to be held at the Respondents' offices to "help push along" the Independent Union and "get it going." On January 2, 1967, the Independent Union's president, Albarano, was summoned to O. Schiappa's home where Cortez and Carapellotti were also present. They proceeded to discuss with Albarano the subject of the Mine Workers, inform- ing him that the Respondents could not function if the Mine Workers were successful in the election. Where, as here, very little time has elapsed between the disappearance of the company dominated Employees Committee and the creation and emergence of the Independent Union, the ac- tive participation in the latter organization by the same individuals who were the former commit- teemen in the dominated union taints the new Inde- pendent Union.3 The Independent Union was for- mally organized less than 2 weeks after the last meeting of the Employees Committee and concur- rently with its disappearance. This was too short a span of time to permit a reasonable inference that the former committeemen had transferred their alle- giance from the company dominated Employees Committee to independent action on behalf of the employees. For there was an inadequate, in fact al- most nonexistent, hiatus between the demise of the Employees Committee and the birth of the Inde- pendent Union. We view this as establishing a lack of "cleavage or clear line of fracture" between the two organizations.' Moreover, the record demon- strates that the old ties of the committeemen to the Respondents were not severed. Indeed, they con- tinued to manifest themselves in the establishment of the Independent Union. This is demonstrated by the November 25 meeting at which time the com- mitteemen, at the request of Respondents, pledged their support for the formation of the Independent Union and by their subsequent cooperation with Respondents in aid of the Independent Union. In view of the foregoing, we find that the Inde- pendent Union was the succcessor to and the alter ego of the Employees Committee. In these circum- stances, Board and court precedent requires the finding that the Independent Union inherits the il- legality of the earlier company dominated Em- ployees Committee and the effect of company domination and support continues unless the Respondents, before the creation or formation of the Independent Union, have unequivocally and publicly disavowed and disestablished the Em- ployees Committee and have assured the em- ployees of their freedom from further employer in- terference in the choice of a bargaining representa- tive 5 We find, contrary to the conclusion of the Trial Examiner, that the transition did not satisfy these requirements, as the Respondents did nothing be- fore the formation of the Independent Union except direct the former committeemen to an attorney's of- fice, to repudiate the reasonable impression given to the employees that the Independent Union en- joyed the same favor and support as the Employees Committee had possessed. On the contrary, the Respondents' conduct, both before and after the formation of the Independent Union, consisting in part of speeches to groups of employees urging them to join and support the Independent Union rather than the Mine Workers, the circulation of authorization cards for the Independent Union, and the securing of revocations from employees who signed cards for the Mine Workers, reinforced the impression of continued favor and support. As we have found that the Employees Committee was dominated, interfered with, and supported by the Respondents, and as its successor, the Inde- pendent Union, was created without a disavowal by the Respondents of its interference with, domina- tion, and support of, the former organization, it follows that the latter has inherited the disabilities of its predecessor.6 Therefore, we conclude that the 2 In support of this finding, the following testimony on recross -examina- tion of committeeman Rocchio appears in the record Q (By Mr Anetakis) Do you remember at that time whether anther committee was appointed- A Yes Q -or elected'i A. Yes Q Do you remember the names of those individuals9 A Vince Albarano was elected Q Was elected what? A. President at that time Q At the first meeting do you remember picking a new com- mittee at the time? A Yeah Q Do you remember the names of those people9 A Yeah Q Would you please tell us the names9 A The same guys I said before, they elected the same guys to serve See Majestic Metal Specialties, Inc , 92 NLRB 1854, 1859, where it was stated that "the rationale of these cases is that the leaders in a com- pany union are necessarily company representatives, accustomed to sub- mission to the Company , and that 'men accustomed to such submission seldom regain independence overnight "' Farrington Manufacturing Company, 93 NLRB 1416, 1417 5 Majestic Metal Specialties, Inc., supra , N L R B v Southern Bell Telephone and Telegraph Company, 319 U S 50 h Farrington Manufacturing Company, supra , N L R B v Southern Bell & Telegraph Co , supra 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondents dominated , interfered with , and con- tributed support to the Independent Union in viola- tion of Section 8(a)(2) and (l) of the Act. Ac- cordingly , we shall order Respondents to dis- establish the Independent Union as well as its predecessor, the Employees Committee, in ac- cordance with our established policy. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified below and hereby orders that the Respondents, Hu- berta Coal Co., Inc. and Huberta Mining Co., Inc., Steubenville, Ohio, their officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Delete paragraphs 1(e) and 1(f), renumber paragraph 1(g) and 1(f), and insert the following as new paragraph 1(e): "(e) Initiating, sponsoring, or forming any em- ployee committee, independent union, or any other labor organization, or assisting, dominating, or in- terfering with the formation or administration of any such committee, union , or labor organization, or contributing financial or other support thereto." 2. Delete paragraphs 2(a) and 2(b), renumber paragraphs 2(c) and 2(d) as 2(b) and 2(c), and insert the following as new paragraph 2(a): "(a) Withdraw and withhold all recognition from, and completely disestablish the Employees Committee, its successor the Strip Miners Inde- pendent Union of Steubenville, Ohio, and any successor thereto, as the representative of their em- ployees for the purposes of collective bargaining." 3. Delete from new paragraph 2(b) that part which reads "to be furnished" and substitute "on forms provided." 4. Amend the first indented paragraph of the notice attached to the Trial Examiner's Decision by substituting "and its successor Strip Miners Inde- pendent Union of Steubenville, Ohio," for "unlaw- fully sponsored and assisted Strip Miners Inde- pendent Union of Steubenville, Ohio." 5. Delete the seventh and eighth indented para- graphs of the notice and substitute the following: WE WILL NOT initiate, sponsor, or form any employees committee, independent union, or any other labor organization, or assist, dominate , or interfere with the formation or ad- ministration of any such committee , union, or labor organization or contribute financial or other support thereto. 6. Delete the 10th and 11th indented paragraphs of the notice and substitute the following: WE HEREBY withdraw and withhold all recognition from, and completely disestablish the Employees Committee, its successor the Strip Miners Independent Union of Steu- benville, Ohio, and any successor thereto, as the representative of our employees for the purposes of collective bargaining. 7. The address and telephone number for Region 8, appearing at the bottom of the notice attached to the Trial Examiner's Decision, is amended to read: Federal Office Building, Room 1695, 1240 East Ninth Street, Cleveland, Ohio 44199, Telephone 522-3738. IT IS HEREBY ORDERED that the election con- ducted in Cases 8-RC-6544 and 8-RC-6559 on January 10, 1967, among certain employees of Hu- berta Coal Co., Inc., and Huberta Mining Co., Inc., be, and it hereby is, set aside. [Direction of Second Election' omitted from publication.] ' An election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employers with the Regional Director for Region 8 within 7 days after the date of issuance of the Second Election by the Regional Director The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraor- dinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed Excelsior Underwear Inc, 156 NLRB 1236 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE A. DOWNING, Trial Examiner: These con- solidated proceedings were heard at Steubenville, Ohio, on May 9, 10, and 11, 1967, pursuant to due notice. The complaint in Case 8-CA-4481, which was issued on February 21, 1967, under Section 10(b) of the National Labor Relations Act, as amended, on a charge dated January 25, alleged that Respondent engaged in unfair labor practices proscribed by Section 8(a)(1) and (2) of the Act as more fully set forth in section III, A, infra. Consolidated therewith for hearing and decision were certain objections filed by United Mine Workers of America (Mine Workers herein) to conduct affecting the results of the election in Cases 8-RC-6544 and 8-RC-6559. Respondents answered denying the unfair labor prac- tices as alleged. The party in interest (Independent Union herein) also answered denying allegations of the com- plaint concerning alleged assistance and domination by Respondents. Upon the entire record in the case and from my obser- vation of the witnesses I make the following- FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Each of Respondent corporations is engaged in the mining of coal and each sells products valued in excess of $50,000 annually to Ohio Edison Company and Ohio Power Company, each of which in turn is a public utility HUBERTA COAL CO. 125 with gross revenues in excess of $250,000 annually and each of which transmits electrical power valued in excess of $50,000 annually to points outside the State of Ohio. I conclude and find that each Company is engaged in commerce within the meaning of the Act. 11. THE LABOR ORGANIZATIONS INVOLVED Mine Workers, the Employee Committee, and the In- dependent Union are labor organizations within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. Introduction and Issues; Preliminary Questions Respondents are engaged in coal mining operations at a number of locations in Ohio and West Virginia. Neighboring or nearby mines were being organized by Mine Workers to Respondents' knowledge in the fall of 1766, and on November 25 Mine Workers filed a representation petition covering Respondents' employees under Case 8-RC-6544. On December 15 another representation petition was filed under Case 8-RC-6559 by the Independent Union, which was formally organized around December 71 and which succeeded a less formal employee committee which came into being in mid-Sep- tember. Following a stipulation, a consent election was held on January 10, 1967, at which Mine Workers received 29 votes and the Independent Union 59. Mine Workers filed objections with the Regional Director, who issued his re- port on February 14 in which he found that certain objec- tions were without merit and that others concerned sub- stantially the same conduct as that involved in the Mine Workers' unfair labor practice charge on which the com- plaint was issued in Case 8-CA-448 1, supra. The complaint in the latter case alleged that Respond- ent engaged in various specified acts of interference, restraint, and coercion (i.e., threats to shut down, granting of benefits, surveillance of a Mine Workers meeting, cir- culation of petitions to have employees revoke authoriza- tion cards for Mine Workers) and of assistance and domination of the employee committee and the Inde- pendent Union. The issues herein revolve chiefly around Respondents' conduct in connection first with organizing the employee committee and later the Independent Union, as well as other conduct in direct opposition to Mine Workers. For preliminary disposition, however, are questions (1) whether Respondents constituted a single employer, and (2) whether Louis Tranquil and Albert Holderman were supervisors or agents for whose conduct Respondents were liable. (1) Though Respondents attempted at the hearing to support their pleaded denials of complaint allegations that they were a single employer, they do not renew the con- tention in their brief and have, presumably, abandoned it. Indeed their brief consistently refers to "the Company," "the employer," and "management" in the singular. It is also noted that both corporations were named as a single employer in the representation proceedings, that a single unit of their employees was specified, that Respondents stipulated for an election in that single unit, and that a sin- gle election was held. In any event, I find that the evidence fully established the factual allegations of the complaint concerning the common ownership, manage- ment, and control of the two corporations. See Cone Brothers Contracting Co., 135 NLRB 108, 118-120, enfd. 317 F.2d 3 (C.A. 5), cert. denied 375 U.S. 945; Pizza Products Corporation, 153 NLRB 1265. At the time of the events herein the affairs of both corporations concei ping matters of employment and labor relations were managed and directed by Orlando C. Schiappi, first vice president; Frank Cortez, second vice president; and Paul R. Carapellotti, secretary-treasurer, who par- ticipated directly in much of the conduct involved herein. (2) Louis Tranquil and Albert Holderman were frequently referred to by employee witnesses on the record as foremen, mine bosses, or pit bosses, from whom they took orders and directions. Respondents stipulated that other mine foremen, Edwin R. Dittrich and Anthony Leo, were supervisors but contended that Tranquil and Holderman were not because they were without authority to hire, fire, or effectively to recommend, and because they could give only routine directions to the employees. There was also, organizationally the further fact that John Dooley was mine superintendent over Tranquil and Hol- derman, a circumstance which did not apply in the case of Dittrich and Leo. However, Dooley himself was a director in both corporations, and the mines which he su- pervised were scattered over such an area that obviously much of the responsible direction of the work force necessarily remained in the hands of Tranquil and Hol- derman, as the employee witnesses testified. Thus Cortez testified that Dooley's "office" was at the repair shop at mine no . 86 and that a drive of some 50 miles would be in- volved for Dooley to make the circuit of the four mines which he supervised. Schiappa in turn estimated that it would take Dooley a day to make a trip around the mines and that mine no. 200 itself involved "a hundred little pro- perties." The evidence showed further that the employee wit- nesses took orders and accepted direction from Tranquil and Holderman without question, and regarded the latter as supervisors and as representatives of management in the conduct hereinafter referred to. Indeed, the em- ployees could scarely have believed otherwise for, as will later be noted, Tranquil and Holderman were engaged in precisely the same course of conduct as Respondents' ad- mitted supervisors and representatives. Thus the em- ployees had justifiable cause for believing that Tranquil and Holderman were acting for and on behalf of manage- ment when they engaged in the conduct in question. Betts Baking Co. v. N.L.R.B., 380 F.2d 199 (C.A. 10); I.A.M. [Serrick Corp.] v. N.L.R.B., 311 U.S. 72, 80.2 B. The Employee Committee Respondents held three meetings with their employees around mid-September at the All American Bowling Lanes in Steubenville. The events were best described in the testimony of Vincent Albarano (later to become pre- sident of the Independent Union), who was called by the General Counsel. Albarano testified that the meeting was called by Orlando Schiappa and that there were present All events herein occurred in 1966 unless otherwise specified Though the evidence contained references to a third foreman, Chester Tomaszewski, whose status appeared to be identical with Tranquil and Holderman, the former was not charged with the commission of unfair labor practices 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD some 60 employees "on the Ohio side," as well as Schiap- pa, Carapellotti, and Cortez and Supervisors John Dooley, Tranquil, Dittrich, and Leo. Schiappa kept the chair most of the time and talked mostly about a pension plan, though there was also some discussion of wages and further benefits. Schiappa suggested that the employees elect committeemen to represent them concerning a proposed pension plan and that one man be elected from each mine. An election proceeded on that basis in the presence of Respondents' officials and supervisors and with Cortez and Carapellotti assisting. Cortez passed out the pencils and paper for ballots and Carapellotti assisted by making statements to help out the employees in setting up the program. Testimony by Carapellotti and Cortez for Respondents was not in substantial conflict with the foregoing. Carapel- lotti testified that both employees and company officials signed an attendance roster at each meeting, that he him- self may have suggested that the employees take a vote to select their representatives, and that he tallied the ballots (voted secretly by the employees) and entered the results on the tally sheets. Carapellotti testified that subjects of discussion included the pension plan, a bonus, insurance benefits, and a wage increase and that the balloting was to elect those who would represent the employees "in the company affairs." Cortez, however, mentioned only the pension plan and a bonus. Furthermore, notations which Carapellotti made on some of the tally sheets accorded with Albarano's testimony (and the understanding of some of the other committeemen) that the election was of "Pension representatives." I therefore credit Albarano's testimony.3 Carapellotti also identified separate tallies which he made of votes on the question whether the proposed plan would be acceptable for 1 year. The results were tailed as unanimously in the affirmative at one meeting, 23 to I in another, and 18 to 1 on the third. The General Counsel's evidence did not refute Respondents' denial of knowledge that Mine Workers was engaged at the time of the meetings in actively or- ganizing their employees though Carapellotti admitted knowing of earlier attempts to do so. Mine Workers Representative Rudolph Vitter testified that the Union "intensified" its campaign in the summer of 1966, but its activities then consisted of contacting the employees at their homes.' There was no evidence that the committee thereafter formally organized itself by the election of officers or a chairman or made any provision for membership or for dues. There was also no evidence that the committee held any meetings as a committee or with the employees or that it formulated and presented on behalf of the em- ployees any list of demands. Nor is the record clear that any formal negotiation meetings were held with manage- ment. Though Schiappa claimed at one point that there were so many meetings he was confused, his testimony otherwise indicated there were no formal negotiations as such for as he put it, after the committee was elected, "[W]e started right away some kind of discussion with the men, if you want to call it, among other things." Though, as I have found, the committee was elected only to represent the men concerning the pension plan, Schiappa testified that the committee expressed concern during the discussions about the bonus being discon- tinued and asked that it be converted into a permanent wage increase, the amount of which was finally agreed upon as 23-1/2 cents. Though Schiappa fixed the time of that alleged agreement as late October or early November, his subsequent actions dispute that claim. Thus on November 14 Schiappa sent to all employees a lengthy letter announcing management's intention of changing its bonus plan but made no reference either to the committee or to any conversion of the bonus to a wage increase. His letter read in part as follows: At our last meeting with you, as you know, we paid a production incentive bonus for the year ended July 31, 1966. We also agreed to pay you-thereafter- a production incentive bonus for each three-month period at the end which our books would show a profit. We slightly revised the plan by deciding to com- pute the bonus per each two-month period rather than per each three-months period. This little change enables us to announce that YOU HAVE A BONUS COMING TO YOU RIGHT NOW for August and September which have been two profitable months. Schiappa's letter continued with a recitation of existing benefits and warned the employees against those who for personal interest might make promises ranging from job security to triple time for holidays when worked. Though the evidence again failed to establish actual knowledge by Respondents that their own employees were being organized at that time, the warning against promises of common types of union benefits reflected awareness of the organizational activities which were going on in the area, a fact which Carapellotti and Schiap- pa admitted knowing. However, the change in the bonus plan as announced and the actual payment of that bonus is not claimed by the General Counsel to be violative of the Act. C. The Independent Union On November 23 Mine Workers wrote Respondents informing them that it represented a majority of their em- ployees and requesting a meeting for the purpose of discussing rates of pay, wages, hours, and other condi- tions of employment. Respondents reacted instantaneously by calling a com- mittee meeting at the bowling lanes on November 25. 01- drich Novak testified that Mine Superintendent Hol- derman notified him the committeemen were being called in and that he was to be there, that some seven to nine committeemen attended, and that there were also present Schiappa, Carapellotti, and Cortez, and Supervisors Dooley, Dittrich, Leo, Tranquil, and Holderman. Vin- cent Coletti testified that Carapellotti himself wrote out the original draft of a document which Coletti recopied 3 The committee as identified in oral testimony and by Carapellotti's tallies and subsequent documents were August Desender, Everett Wal- den, Richard Maidens, Herman White, and William Burns for the Coal Company, and Oldrich Novak, Samuel Forgays, Charles Rokos, John Rocchio, and Thomas Brittel for the Mining Company. ' Though Pete Vein testified that Schiappa stated that if the employees joined the Union the Company would have to shut down, that testimony was not corroborated by Albarano, who attended the same meetings as Vein did, and Cortez denied that anything was said about closing down the mines I find that Vein confused the September meetings with later ones at which similar statements were attributed to Schiappa HUBERTA COAL CO. 127 because the Employers stated, "It would be legal that way," and which read as follows: To whom it may concern. It is agreed that we agree to cooperate for one year and ask for no outside representation during this period except for us forming an Independent Union to do our negotiation on future classification of jobs and bargaining so that there will not be any dis- crimination. It is agreed that the bonus of 23-1/2 cents will now go on an hourly wage increase effective Oct. 1966. The suggestion of an independent union was made either by August Desender or Samuel Forgays, following which, Novak testified, "[I]t was put on the paper."5 Novak also testified that there was some discussion at the meeting concerning wages and Carapellotti stated that if the employees did not tell the Company what they wanted, "[T]he United Mine Workers will come in with their contract and we'll just tell them we can't pay it." The "cooperation" statement was signed by the com- mitteemen present as well as by Dittrich, Leo, and Hol- derman. Thereafter the same draft and other facsimile co- pies were circulated among the employees at the mines and many additional signatures were obtained. All of the drafts bore the signature of Dittrich who, according to the undenied testimony of Carl Yeager and Martin Skedel, handed them the document at the mine where they were working. Yeager asked Dittrich what the statement was for, but Dittrich made no direct answer. Skedel testified that Dittrich read the statement first and told him he could sign if if he wanted to but did not have to sign if he did not want to. Vincent Albarano and Pete Vein were solicited at the mine by their foreman, Tranquil. Albarano inquired about the Independent Union mentioned in the statement and Tranquil stated that the committeemen whom the em- ployees elected thought that the Independent Union would be a good thing and they were doing it for the benefit of the employees. Albarano objected that the committee had no right to qualify as an independent union because they had been elected only to represent the em- ployees for a pension plan. Tranquil replied that they were doing it because of concern for the employees and that Albarano might as well sign for if he did not do so he would not have a job anyway. Vein testified that Tranquil asked him to look the state- ment over and to sign it, and when Vein did not sign, Tranquil asked why he did not want to do so. Vein stated that he preferred to wait to see what the other men were going to do. Tranquil responded that the purpose of the statement was to form an independent union and to ac- cept the 23-1/2 cent-and-hour wage increase and that if Mine Workers was voted in the Company would have to cease operations. Respondents moved swiftly to implement their "agree- ment." John Rocchio testified that around November 30 he was called at his home in the evening by Frank Cortez, who requested Rocchio to meet him at Schiappa's home. Rocchio complied, and there Schiappa gave him some 60 to 70 authorization cards for the Independent Union and requested him to pass them out among the employees to have them join the Independent. Though Shiappa denied that testimony, Cortez who testified at some length, failed to deny it. I credit Rocchio's testimony. Rocchio testified further that, pursuant to Schiappa's request and with the assistance of Forgays and Brittel, he distributed the cards among the employees at three of the mines around December 1 and ultimately obtained some 15 to 20 signatures. Though Rocchio passed out the cards after quitting time, he was paid for the time he spent. Thereafter Rocchio took the cards to the Company's of- fice the same night and delivered them to Schiappa in the presence of Cortez and Carapellotti. Neither of the two later denied Rocchio's testimony and Schiappa gave in- credible testimony that the cards mysteriously appeared on his desk one morning. I credit Rocchio's testimony. Concurrently with Rocchio's activities, Respondent's supervisors were obtaining additional employee signa- tures on other authorization cards for the Independent as well as on copies of a further document by which the signatories revoked any cards which they had signed for Mine Workers. The latter document, which bore on each copy the signature of one or more of the supervisors, also recited the mid-September election of the employee representatives and continued as follows: That soon afterwards, an agreement was reached between this committee and [the Company] as to wages, bonuses, and pensions, all of which became effective October 1, 1966, with the wages being retroactive to April 1, 1966. That we have been unable to reduce this agreement to writing, and that we were in the process of reduc- ing this agreement to writing when the Company received notification from the N.L.R.B. for an elec- tion on the United Mine Workers of America, which we do not want. Below the signatures appeared a jurat of a Notary Public (either Carl Oprisch or Ethel Mahan) reciting that the signatories acknowledged the signing as their free and voluntary act and deed. Herman White, Jr., testified that Foreman Anthony Leo presented to him both the card and the revocation statement on the job while he was working and that he signed both and returned them to Leo. Carl Yeager testified that he was called from the mine to Foreman Dittrich's house across the road; there were some 12 employees present; Dittrich passed out the authorization cards and the revocation statement and told the employees they were supposed to sign the forms; and all of the employees did so. Yeager signed both docu- ments and turned them back to Dittrich. Martin Skedel signed the forms at the shop at the same mine after Dit- trich explained to some 15 employees that signing the small (authorization) card would be a step toward starting an independent union, and that the larger document (the revocation statement) would "abolish their signatures" or whatever they signed with Mine Workers. Testimony by Dittrich and by employee witnesses called by Respondents and the Independent Union sub- stantially confirmed the foregoing. August Desender, Everett Walden, and Lloyd Boyer testified that they signed the documents at the shop in Dittrich's presence. ' There was testimony by Desender , Lloyd Boyer, and Everett Walden but it was not until the November 25 meeting that Desender brought the that the "idea" of an independent union was discussed as early as August subject up with representatives of management. or September by Desender and Boyer and later by Desender and Walden, 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Desender testified that he was called to the shop to sign something and that Dittrich told him to read the card and to sign or not, as he pleased. Dittrich admitted that he directed the night watchman to "spread the word around" that a committee of the Independent Union had left some papers with him and had asked him if he could get the em- ployees together. Claiming ignorance at first as to how or by whom the papers were placed in his home, Dittrich finally designated Desender as the person at whose behest he summoned the employees. Desender's testimony, however, not only did not corroborate that claim but was inconsistent with it. To the extent, there- fore, that material conflicts exist concerning the events at Dittrich's home and the shop, I credit the testimony of Yeager, Skedel, and Desender. Oldrich Novak, Pete Vein, August Santin, and Frank Bartyzel testified that the revocation statement was presented to them by Foreman Holderman in the presence of Carl Oprisch. Novak inquired of Oprisch who the Independent Union people were, but Oprisch replied only that Novak should sign on a space which had been left for him. Novak protested that his name should not be on it because he was elected only to work on a retirement plan, not on a committee for an independent union. Oprisch insisted that Novak should sign the state- ment on the line which had been left for him and he did so. Bartyzel's testimony was corroborative of Novak. Vein testified that he had gone to the shop to receive his pay and that Holderman gave him the paper and told him to read it and to sign if he wanted to. Vein asked what the Independent Union was and Holderman told him "the five names above" (who according to Vein's understand- ing had been elected to serve as a pension committee at the September meetings). Vein refused to sign because of prior union membership. On the following day, however, Holderman and Oprisch brought the statement back and Vein signed it. Santin testified that the statement was presented to him by Holderman and Oprisch and that Holderman told him to sign it if he agreed that the five men who were listed would represent Santin in the Independent Union. Santin signed. On the following day Tranquil inquired whether Santin had signed the paper and Santin replied that he had and asked what was to be done about it, Tranquil ex- plained that there would be an independent union and that once the Labor Board recognized it, it would be better than the Mine Workers. Santin suggested there might be a problem, but Tranquil stated there would not be one; only a few employees were going with Mine Workers; the Company could not afford to pay the royalty to Mine Workers; and "[T]he job was going to be shut down and you are going to be out of a job." On the day following delivery to Schiappa of the signed cards which Rocchio had obtained, Rocchio went with some eight or nine committeemen to the company offices and met with Schiappa and Cortez. Rocchio testified that Schiappa and Cortez told the Committee to take the cards to Attorney George Anetakis at Weirton, whom they characterized as "a reasonable lawyer." Herman White, Jr., testified similarly that it was either Cortez or Schiap- 6 White also testified that sometime before the meeting in Anetakis' of- fice, he attended a meeting at Beechbottom, West Virginia, at which were present employees from mine 58-B and the loading dock at Wellsburg and that there were also present Schiappa, Cortez, Carapellotti, Dittnch, Dooley, and Leo. Schiappa talked about the mining operation and stated that he could not work "under the conditions of the United Mine pa who suggested that the committee go to see Anetakis about forming an independent union.6 Cortez himself drove Rocchio and another employee to Weirdon and let them out of his car in front of the building which housed Anetakis' office. Desender and Walden, called by the Independent Union, admitted that the committee went to Anetakis' of- fice following a meeting at the company offices at which Schiappa was present and possibly Cortez. Walden testified that he believed it was Forgays who suggested they go to see Anetakis. Cortez and Schiappa, as Re- spondents' witnesses, denied that they recommended Anetakis to the committee or advised the committee to go to Anetakis' office to organize an independent union. I credit the contrary testimony of Rocchio and White. The actual organization of the Independent Union took place at a meeting of employees held at the bowling lanes on December 7, with some 70 to 80 employees in at- tendance. Anetakis and his associate, Leonard Tost, were present but none of the company officials.7 A new com- mittee was elected, replacing the old one, Albarano was elected president, and a dollar was collected from each employee. Walden and Desender testified that thereafter the Inde- pendent Union was incorporated, that meetings were held by the committee every week in Anetakis' office, and that the representation petition was prepared by Anetakis and signed by the Independent's officers for mailing to the Board. They denied that the Independent received any financial assistance from the Company, denied that any- one from the Company suggested or directed the forming of a company union or the Independent," that any one from the Company attempted to run the Independent or to tell the committee how to run it, and testified that all decisions for that union are made by the representatives who were elected or appointed at the meeting on December 7. D. Respondents' Subsequent Conduct Augusto Santin testified that Schiappa spoke at a meet- ing of employees at mines nos. 85, 86, and 87 during the first week in December, informing the employees that if they would stay with him and agree with his plan, he would try to make "a better stand" for wages but that if the employees went with Mine Workers, he could not af- ford to pay the royalty and the job would be shut down. Cortez spoke further with Santin after the meeting, asking whether Vitter (the Mine Workers' representative) had been after Santin to sign a card and stating that Vitter had gone to mine no. 43 every day and that "[I]f this is going to keep up, they were going to close the job down." San- tin's testimony was not denied. Oldrich Novak testified that Schiappa and Cortez spoke at a meeting of employees at mine 86 around mid- December and that Schiappa suggested the employees get into the Independent Union, stating that he would go along with them in working out a scale on a contract. Novak testified further that on a Sunday afternoon in the last week of December, Schiappa and Cortez came to his Workers." 7 Though Albarano testified that Schiappa, Carapellotti, and Cortez were also present, the testimony of other witnesses is to the contrary Rocchio, for example, testified that "[tlt was just ourselves," and that though Schiappa walked in he was chased out. 8 I credit the testimony of Rocchio and White to the contrary HUBERTA COAL CO. 129 home and informed him there was going to be a meeting on Monday at the Company's offices and that Novak should go to it and help to push along the Independent Union to get it going. On Monday morning Cortez and Dooley came by and asked why Novak was not at the meeting, and Novak informed them he had no authority to represent the men. Novak also testified to a number of conversations with Tranquil during which Tranquil stated repeatedly that ifthe employees did not "go Independent Union," Mrs. Schiappa might transfer the Company to someone else and the employees would all be out of work. No denial was made of Novak's testimony. Pete Vein testified that at the time Schiappa made the bonus payment to him Schiappa stated that two compa- nies in the immediate area had joined the Union, that he did not know their reason for doing so and that if his own employees joined the Union, the mine would be shut down. Schiappa's testimony contained no denial of that testimony. Albarano testified that on January 2, 1967, he received a call from Cortez informing him that Schiappa wished to talk with him. Albarano went to Schiappa's home where there were also present Cortez and Carapellotti. They proceeded to discuss with him the subject of Mine Work- ers, informing him they would not be able to function if Mine Workers got in because they could not pay the royalties. They did not ask him to do anything specifi- cally, but told him they could not function under Mine Workers. Schiappa admitted the conversation, testifying that what he said to Albarano (and to other employees occa- sionally) was that if Mine Workers organized the em- ployees, he did not see how the Company could afford an- ticipated costs increases and "[T]herefore, we may be forced out of business and when you are out of business, the mines close down." A Mine Workers meeting was held at the Fort Steuben Hotel on the mezzanine floor on Sunday afternoon, January 8. The evidence is undisputed that Schiappa and Carapellotti were seen briefly in the lobby shortly before the meeting began, and that Schiappa spoke to Augusto Santin , remarking that the meeting was upstairs and that he had nothing to do with it . Despite comments by the Trial Examiner that a finding would be warranted that the General Counsel's evidence did not establish surveil- lance , Respondents' counsel proceeded (without moving to dismiss) to offer testimony by Carapellotti and Schiap- pa concerning their presence at the hotel which served to shore up the weaknesses of the General Counsel's case both on the point of knowledge of the meeting and on intent. 9 Thus Schiappa admitted knowing before he went to the hotel that a union meeting was to be held and testified that he went there because, "It's a public place." Though any one of a number of simple explanations might reasonably have accounted for their presence despite knowledge of the union meeting , Schiappa and Carapellotti went on to offer further explanations which were wholly unconvinc- ing. Carapellotti testified that he went there to watch a professional football game on television and that he spent some 1 , 2, or 3 hours doing so in a room which the bell- boys had on the third or fourth floor. Carapellotti ad- mitted, however, that he had two television sets at home and that he left the hotel before the end of the game to watch the remainder of it at home. Schiappa in turn was able to draw a discreet veil over his own acts and to avoid any searching cross-examination by intimating broadly that he was engaged (whether with or without collobora- tion of the bellhops was not disclosed) in activities of a most private type, corroboration of which could scarcely be expected. In view of Schiappa ' s prior knowledge of the union meeting, of the timing of the visit to coincide with the meeting, and the implausibility of the explanations which Schiappa and Carapellotti gave for going to the hotel at that time , I conclude and find that their purpose was to observe the employees who were coming to, attend the meeting. Alternatively I find further that in any event their presence , without credible explanation , coupled with Schiappa's volunteered remark to Santin , was in- tended to create the impression of surveillance. National Shirt Shops of Delaware, Inc., 123 NLRB 1213, 1218; see N.L.R.B. v. Vermont American Furniture Corp., 182 F.2d 842 (C.A. 2); R. & J. Underwear Co. Inc., 101 NLRB 299. There remain the following matters on which the evidence is not in dispute: Albarano was paid by the Company for the day on which he attended the Board hearing on December 21. Respondents issued to their employees shortly before Christmas gift certificates in the sum of $5 in the name of each child of school -age. Novak testified that Charles Rokos suggested in a meeting that the Company hold a Christmas party for employees with school age children and that because there was not enough time to arrange for such a party, Schiappa issued gift certificates as stated above. Respondents sought to link its action to a July meeting in which President Huberta Schiappa announced her intention of making birthday gifts to school age chil- dren. There was no evidence, however, that Respondents carried out that promise and none that the employees were informed that the Christmas certificates were being issued in substitution for birthday presents. Around December 1 Respondents granted a general wage increase of 23-1/2 cents retroactive to October, pur- suant to the statement in the "cooperation " agreement (section C, supra) on which signatures were obtained after the Mine Workers' demand. E. General Credibility Questions Though I have resolved in the preceding sections most of the direct credibility conflicts on material and signifi- cant points, there remain other conflicts created by general denials which Respondents ' officials made of much of the conduct with which they were charged. Thus in answering questions which were frequently phrased in the language of the complaint allegations Schiappa, Cor- tez, and Carapellotti denied engaging in the conduct and denied being present at any time when such conduct oc- curred . Those denials included such allegations as threats to close the mines, the promising of wage increases and other benefits, the circulation of petitions and cards on behalf of the Independent Union, and the contribution of financial or other assistance to the Independent. Other witnesses called by Respondents testified similarly that " Respondents' evidence is, of course , properly to be considered in determining whether the preponderance of the evidence on the record as a whole warrants a finding of surveillance See Sec . 10(c) and (e) of the Act 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they were not present at any time when Respondents' of- ficials engaged in any such conduct.10 Such denials were singularly unimpressive in the light of the cumulative testimony of the General Counsel's wit- nesses concerning specific incidents and specific state- ments, the failure by Respondents to deny significant and substantial portions of the General Counsel's case, and the failure of Respondents' officers to corroborate one another, particularly as to Rocchio's testimony concern- ing the authorization cards for the Independent Union. As concerned threats to close the mines or to cease operations, Respondents sought to refine such statements to a prediction that Respondents would be unable to operate economically under anticipated costs increases if Mine Workers should come in and would be forced out of business for that reason." Those refinements were plainly not such as to be cognizable by a number of the General Counsel's witnesses and, even more signifi- cantly, they were not cognizable by Respondents' super- visors who were not called to deny their own repetition of unrefined threats that the mines would be closed and the employees would be out of a job. Indeed, Cortez himself made no denials of Santin's testimony that he himself threatened that the job would be closed down if Vitter kept going to mine no. 43. It was also plain from all the evidence that Respond- ents' supervisors, Leo, Dittrick, Tranquil, and Hol- derman, were engaged in the same course of unlawful conduct as Respondents' officers, for all were engaged in circulating and in procuring signatures on documents on behalf of the Independent and in renunciation of Mine Workers. In sum, for the foregoing reasons I do not credit the denials of Schiappa, Carapellotti, and Cortez. The testimony by employee witnesses called by Respondent and the Independent that certain types of conduct did not occur in their presence was also too general to be of weight in refuting the testimony of the General Counsel's witnesses as to specific incidents and specific statements. F. Concluding Findings I conclude and find that on September 13, 14, and 15 Respondents initiated, sponsored, formed, and promoted the employee committee and that until on or about December 1, Respondents assisted, dominated, and in- terfered with the formation and administration of said committee. It was plain from the evidence that the com- mittee came into being as Respondents' creature and owed its entire existence to Respondents. There was no evidence that it functioned independently as an organiza- tion representative of the employees even for the limited purpose for which it was formed, and as some of the com- mitteemen later objected, they were without authority to represent the men otherwise. It was also the committee members whom Respond- ents hastily summoned on receipt of Mine Workers' de- mand for recognition and from whom they took a signed agreement to abstain from outside organization for a year. Committee members Rocchio, Forgays, and Brittel were also used by Respondents in procuring employee signa- tures to authorization cards for the Independent Union supplied by Respondents, and finally the committee's feet were placed in the path to Anetakis' office. For practical purposes the committee's existence, dominated throughout by Respondents, ended at that point, and we turn our attention to the Independent. I conclude and find that beginning on November 25 Respondents initiated and sponsored the forming of the Independent Union; they furnished authorization cards to employees for use in forming the Independent; they circulated through Supervisors Leo, Dittrich, Tranquil, and Holderman and through employees Rocchio, For- gays, and Brittel petitions and authorization cards on be- half of the Independent; they dealt with the Independent on matters relating to wages, hours of employment, and other conditions of employment; and they assisted and contributed financial and other support to said Independ- ent. The contribution of financial support was plainly evident in the payment of Rocchio for the time spent in obtaining employee signatures, the payment to Albarano for time spent as the Independent's representative at the Board hearing, and the furnishing of the authorization cards for the Independent. The domination which Respondents had previously ex- erted over the committee, however, ceased when the committee members reached Anetakis' office. There was no evidence that Anetakis was Respondents' lawyer or was paid by them for any part of his fees or expenses, and the General Counsel disclaimed any contention to the contrary. Neither did the evidence establish that any of Respondents' officials were present at the employee meeting on December 7 at which the Independent Union was formally organized and at which the employees elected their new representatives, nor that Respondents thenceforth dictated or directed the actions of the Inde- pendent or of its officers. To the contrary the record showed that it was Anetakis with whom the new representatives met and who advised them in their course of action. Thus so far as the record shows, no connection was shown between Anetakis and the Company, save for directing the committee to him, and there was no evidence that Anetakis' representation of the Independ- ent thereafter was other than bona fide. I conclude and find further that by the following con- duct Respondents interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act: 1. By threatening that they would shut down the mines or cease operations if the employees selected Mine Work- ers as their bargaining representative. 2. By circulating petitions and authorization cards on behalf of the Independent Union and by circulating peti- tions to cause employees to revoke authorization cards signed for Mine Workers. Betts Baking Co. v. N.L.R.B., 380 F.2d 199, 200 (C.A. 10). 3. By engaging in, or by creating the impression of en- gaging in, surveillance of the Mine Workers meeting. 10 Lloyd Boyer, for example, denied that anyone from the Company told him the Company would close down if he signed for Mine Workers or did not sign an Independent Union card, and Desender denied that the Company offered him any benefits to form an independent union and de- nied having heard any company official make the statement the mines would be closed if the employees joined Mine Workers 11 Respondents ' version may itself have constituted an unfair labor practice, since in the context of the other unlawful conduct as herein found, Schiappa's statements, fairly understood , were not mere predic- tions of possible economic consequences of unionization, but were threats of economic loss to employees if Mine Workers were selected as bargain- ing representative Crystal Tire Co., 165 NLRB 563, Wausau Steel Corporation, l60 NLRB 635 enfd 377 F 2d 369,371 (C A 7); cf United Fireworks Mfg Co, Inc v N L R B., 252 F 2d 428,430 (C.A 6). HUBERTA COAL CO. 131 National Shirt Shops of Delaware Inc., 123 NLRB 1213. 4. By granting a wage increase and by the issuance of Christmas gift certificates after receipt of Mine Workers' demand for recognition and while its petition for an elec- tion was pending N.L.R.B. v . Exchange Parts Company, 375 U .S. 405, 409-410. The evidence did not establish that Respondents reached prior to November 25 any agreement with the committee concerning conversion of the bonus. Both Schiappa's announcement on November 14 and the "cooperation" agreement of November 25 be- lied claims of a prior agreement. But even were the con- trary assumed , such agreement would plainly have been invalid on the score first that the committee's authority to represent the employees was confined to the pension plan and second , that in any case the committee throughout its existence was unlawfully assisted and dominated by Respondents. I concluded and find further that by all of the aforesaid unlawful conduct , which occurred before the election was held on January 10, 1967, Respondents interfered with the exercise of a free and untrammeled choice in the elec- tion and deprived the employees of their right to express a free choice . Leas & McVitty, Incorporated, 155 NLRB 389, 390-391, and cases there cited. 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. By interfering with, restraining, and coercing their employees in the exercise of rights guaranteed in Section 7 of the Act, Respondents engaged in unfair labor prac- tices proscribed by Section 8(a)(1). 2. By initiating , sponsoring , and forming the employee committee and by assisting , dominating, and interfering with the formation and administration of said committee, Respondents engaged in unfair labor practices proscribed by Section 8(a)(2) and (1) of the Act. 3. By initiating and sponsoring the forming of the In- dependent Union and by contributing financial and other support to it, Respondents assisted said Independent Union and interfered with its formation and administra- tion, thereby engaging in unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act. 4. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 5. By engaging in the aforesaid unlawful conduct, Respondents interfered with the free choice of the em- ployees in the election. THE REMEDY Having found that Respondents engaged in certain un- fair labor practices I shall recommend that they cease and desist therefrom and that they take certain affirmative ac- tion as ordered below , which I find to be necessary to remedy and remove the effects of the unfair labor prac- tices and to effectuate the policies of the Act. It will be further recommended that the election held on January 10, 1967 , be set aside and that Cases 8-RC-6544 and 8-RC-6559 be remanded to the Re- gional Director for Region 8 for the purpose of conduct- ing a new election at such time as he deems that circum- stances permit the free choice of a bargaining representa- tive . Leas & McVitty, supra. Upon the foregoing findings of fact and conclusions of law and the entire record , and pursuant to Section 10(c) of the Act , I hereby issue the following: RECOMMENDED ORDER Huberta Coal Co., Inc., and Hulierta Mining Co., Inc., their officers , agents, successors , and assigns , shall: 1. Cease and desist from: (a) Threatening employees that they will shut down their mines or cease operations if the employees should select Mine Workers as their bargaining representative. (b) Circulating petitions and authorization cards among the employees on behalf of the Independent Union and circulating petitions to cause employees to revoke authorization cards signed for Mine Workers or to renounce representation by said Union. (c) Engaging in, or creating the impression of being en- gaged in , surveillance of meetings held by Mine Workers. (d) Granting wage increases , issuing Christmas gift certificates , or granting or promising benefits of any kind in order to cause employees to abandon or repudiate their union activities , sympathies , and/or membership. (e) Initiating , sponsoring , or forming any employee committee or assisting , dominating , or interfering with the formation or administration of any such committee, or contributing financial or other support to it. (f) Initiating or sponsoring the forming of the Independ- ent Union , interfering with the formation or administra- tion of said Union , or assisting it by contributing financial or other support. (g) In any other manner interfering with, restraining, or coercing their employees in the exercise of their right to self-organization, to form , join , or assist said United Mine Workers of America, District 6, or any other labor organization , to bargain collectively through representa- tives of their own choosing or engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be af- fected by an agreement requiring membership in a labor organization as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action: (a) Withdraw and withhold all recognition from, and completely disestablish , the employee committee, or any successor thereto , as the representative of their em- ployees for the purposes of collective bargaining. (b) Withdraw and withhold any further recognition from Strip Miners Independent Union of Steubenville, Ohio , as the representative of their employees for the pur- poses of collective bargaining unless and until said union shall have been duly certified by the National Labor Relations Board as the exclusive representative of such employees. (c) Post at their offices and at each of their mines in Ohio and West Virginia, copies of the attached notice marked "Appendix." 12 Copies of said notice, to be furnished by the Regional Director for Region 8, after 12 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 United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " 336-845 0 - 70 - 10 132 DECISIONS OF NATIONAL being duly signed by Respondents' representative, shall be posted by them immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to their employees are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 8, in writ- ing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.13 IT IS FURTHER RECOMMENDED that the election held on January 10, 1967, among Respondents' employees be set aside and that Cases 8-RC-6544 and 8-RC-6559 be re- manded to the Regional Director for Region 8 for the pur- pose of conducting a new election at such time as he deems appropriate. 13 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 8, in writing, within 10 days from the date of this Order, what steps Respondents have 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 order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: On charges filed by United Mine Workers of America, District #6, the Board issued a complaint and held a trial on May 9, 10, and 11, 1967, at which all parties presented their evidence. The Board has found that we unlawfully assisted and dominated the employee committee, unlaw- fully sponsored and assisted Strip Miners Independent Union of Steubenville, Ohio, and unlawfully interfered with, restrained, and coerced our employees in the exer- cise of rights guaranteed by the Act. We are posting this notice as required by the Board to inform you that we promise not to engage in further un- lawful conduct and specifically that we promise to do the following: WE WILL NOT threaten to close down our mines or to cease operations if you should select United Mine Workers, District #6, as your bargaining representa- tive. WE WILL NOT circulate petitions or authorization cards on behalf of Strip Miners Independent Union of Steubenville, Ohio, or circulate petitions to cause you to revoke authorization cards signed for said United Mine Workers of America. WE WILL NOT engage in or create the impression LABOR RELATIONS BOARD that we are engaging in surveillance of the meetings or other organizational activities of United Mine Workers of America. WE WILL NOT grant wage increases, issue Christ- mas gift certificates, or grant or promise benefits of any other kind in order to cause you to abandon or repudiate your union activities, sympathies, and/or membership. WE WILL NOT initiate, sponsor, or form any em- ployee committee or assist, dominate, or interfere with the formation or administration of any such committee or contribute financial or other support to it. WE WILL NOT initiate or sponsor the forming of Strip Miners Independent Union of Steubenville, Ohio, interfere with its formation or administration, or assist it by contributing financial or other support WE WILL respect your rights to self-organization, to form, join, or assist United Mine Workers of America, or any other labor organization, to bargain collectively in respect to terms and conditions of em- ployment through said Union or any representative of your own choosing and WE WILL NOT interfere with, restrain, or coerce you in the exercise of those rights. WE HEREBY withdraw and withhold all recognition from and completely disestablish the employee com- mittee, or any successor thereto, as the representa- tive of our employees for the purposes of collective bargaining. WE WILL withdraw and withhold any further recognition from Strip Miners Independent Union of Steubenville, Ohio, as the representative of our em- ployees for the purposes of collective bargaining un- less and until said Union shall have been certified by the National Labor Relations Board as the exclusive representative of our employees. You and all our employees are free to become mem- bers, or to refrain from becoming members, of any labor organization except to the extent that your right may be affected by an agreement requiring membership in a labor organization as authorized in Section 8(a)(3) of the Act. HUBERTA COAL Co , INC. (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, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio 44115, Telephone 621-4465.