Alco Mining Co., Inc.

ALCO MINING CO. Alco Mining Co., Inc. and International Union, United Mine Workers of America, Charging Party. Cases 10-CA-6735 and 10-CA-6804 January 30, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On September 21, 1967, Trial Examiner Stanley N. Ohlbaum issued his Decision in the above-enti- tled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner further found that the Respond- ent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its 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 brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. I 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 and hereby or- ders that the Respondent, Alco Mining Company, Inc., Tuscaloosa, Alabama, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. I We find it unnecessary to pass upon the Trial Examiner's dicta in fn. 6 of the Appendixes concerning the validity of the authorization cards of Quinn's employees. In adopting the Trial Examiner's finding that the Respondent's inter- rogation of its employees was unlawful, we rely on its failure to conform to the criteria set forth in our recent decision in Struksnes Construction Co., Inc„ 165 NLRB 1062. TRIAL EXAMINER'S DECISION PRELIMINARY STATEMENT; ISSUES STANLEY N. OHLBAUM, Trial Examiner: This con- solidated case' was heard before me in Tuscaloosa, 491 Alabama, on May 2 and 3, 1967, with all parties par- ticipating throughout by counsel, who subsequently sub- mitted briefs which, together with the evidence, have been carefully considered. The case involves alleged violations by Respondent Employer of Section 8(a)(1) of the National Labor Rela- tions Act, as amended, 29 U.S.C. Sec. 151, et seq. (Act); viz, (1) interrogation, (2) threats of (a) loss of employee benefits in event of unionization,2 (b) discharge of em- ployees joining the Union, (c) refusal to enter into any agreement with the employees' Union, and (d) shutdown of Respondent's mine in event of unionization, and (3) ex- tension of bonus to employees, unilaterally in bypass of the employees' Union, during pendency before the Board of a union petition for certification as exclusive collective-bargaining representative. Respondent denies violating the Act. Upon the entire record3 and my observation of the wit- nesses, I make the following: FINDINGS AND CONCLUSIONS 1. PARTIES; JURISDICTION Respondent, an Alabama corporation with principal of- fice in Birmingham in that State, has at all material times engaged in mining operations at Brookwood, Alabama, where and whence it mines and sells coal. During the 12- month representative period immediately preceding is- suance-of each of the complaints, Respondent sold and shipped in interstate commerce over $50,000 worth of coal from Alabama directly to customers outside of that State. I find that at all material times Respondent has been and is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and the Union (Charging Party) is a labor organization within the mean- ing of Section 2(5) of the Act; and that assertion of ju- risdiction herein is proper. II. ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent has been operating a strip coal mine at Brookwood (near Tuscaloosa), Alabama, for a number of years. Supervisory personnel include mine superintend- ent, Oscar D. Osborn, his son, C. O. (Buster) Osborn (company president), and pit foreman, Busha. The union organizational activity culminating in events to be described and forming the basis of charges resulting in the complaints here, commenced among Respondent's employees in mid-September.4 On September 26, the I Case 10-CA-6735: Charge filed October 25, 1966, complaint issued December 2, 1966. Case 10-CA-6804; Charge filed December 29, 1966; complaint issued March 23, 1967. Cases consolidated by order of Re- gional Director for Region 10, March 23, 1967, without consolidation of complaints. ' Complaint (Case 10-CA-6804) ¶ 12A, added by amendment at hear- ing. 3 Hearing transcript as corrected by August 4, 1967, order on notice by me. 4 Unspecified years are 1966 throughout, except January 1967. 169 NLRB No. 69 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union filed a petitions at the Board's Regional Office, Re- gion 10 (Atlanta, Georgia), seeking certification as exclu- sive bargaining representative of a conventional produc- tion and maintenance unit of Respondent's mine em- ployees. On October 19 the Acting Regional Director for Region 10 issued his Decision and Direction of Election. Between (as well as before) then and the date set for the election (January 6, 1967), various acts of interference, restraint, and coercion are alleged to have been per- petrated by Respondent in derogation of its employees' rights under Section 7 and in violation of the Act, result- ing in that Regional Director's cancellation of the scheduled election and in the proceeding here for determination.6 B. Alleged Violations ofAct Actions in contravention of Section 8(a)(1) of the Act are alleged to have been taken by Respondent during the last few months of 1966. To the extent feasible, these will be considered chronologically. 1. September? It is alleged that on or about September 15 Respond- ent's pit foreman, Busha, interrogated mine employees concerning their union membership and affairs, and threatened them with discharge if they signed union cards and with shutdown of the mine in the event of unioniza- tion. Evidence on these matters was supplied through testimony of General Counsel witnesses Herring, Battle, and Lee. Herring, a dragline operator formerly in Respondent's employ, swore that while at work at the mine on the night shift in mid-September, Busha came to the minesite around 11 p.m. and asked him "had the Union men been to see me [Herring]." Herring said yes. Busha then stated that "that was his [Busha's] business over there that night, to talk to us [employees], that Mr. [Mine Superintendent] Osborn was not feeling good and he [Mine Superintendent O. D. Osborn] got him [Busha] to come over. And he said that if the Union made the company sign a contract they would have to shut down because they couldn't pay it, and that Mr. Osborn said that if he could find one that signed a card 5 The petition stated that the Employer (Respondent here) failed to respond to the Union's September 22 recognition request. (No showing was made herein, i.e., in the instant case, that the Union represented a majority of unit employees prior to December 9.) 6 The following is a more complete summary chronology of pertinent procedural , background events : September 15 (approx.), umon organiza- tional campaign commences among Respondent's unit employees; Sep- tember 26, union files certification petition with Board (Case 10-RC-6866); September 29, Acting Regional Director for Region 10 is- sues notice of representation case hearing for October 11; October 11, representation case hearing held before Board Hearing Officer H. Carlton Bryan, Jr.; October 19, Acting Regional Director issues Decision and Direction of Election (Case 10-RC-6866), directing election to determine representation desires of unit employees; election to be held January 6, 1967; October 25, Union files unfair labor practice charges against Respondent (Case 10-CA-6735; Sec. 8(a)(1), (3), and (5) of the Act); December 2, Regional Director for Region 10 issues unfair labor prac- tices complaint against Respondent (Case I O-CA-6735), scheduling hear- ing for January 10, 1967; December 14, Respondent answers complaint in Case I0-CA-6735 , December 29, Union files additional unfair labor practice charges against Respondent (Case 10-CA-6804, Sec. 8(a)(1) and (5) of the Act); March 15, 1967, Union files first amended charge (Case that he would fire them." Respondent's former dragline oiler, Battle, likewise swore that Busha approached him, too, on the job at this time and "said that Mr. Osborn was intending to come out and talk with us [mine employees], but he [Mine Superintendent O. D. Osborn] was sick and he [Busha] came out instead .... He [Busha] said that Mr. [Mine Superintendent O. D.] Osborn said if anybody signed a Union card he would appreciate it if they would go somewhere else and hunt a job. He said that organizing the job, it was our privilege to do as we please but if we organized it, they would shut the job down." Still another former dragline operator of Respondent, Lee, testified that while at work in September, in response to Lee's inquiry as to how Busha "felt about the Union," Busha "said that we had the right to organize if we wished, or sign a card, but the company wouldn't operate under the Union, they could close it down." With regard to the foregoing, Respondent's pit foreman and supervisor, Busha, conceded that he did "remember talking to Elbert [Herring]" in September and that "it is possible" that their talk was "about the union," although it "would be hard to say from this length of time back" what it was or who first mentioned the Union. Prodded a bit further (on direct examination), however, Busha con- ceded that his talk with Herring indeed dealt with "what the union was doing," and added: Q. [By Respondent's counsel] Let me ask you this: did you [Busha] ask him [Herring] if any union men had been to see him? A. [By Busha] Yes, I believe I did. Q. What was his reply, if you remember? A. He said that they came to see him that day. Q. What else was said, if anything, if you can re- member? A. That was the first time they had been to see him, was on this particular day. Denying he told Herring in those words that Mine Su- perintendent "Oscar Osborn said that if the union made the company sign a contract that he would have to shut down because he could not pay it," Busha nevertheless conceded telling Herring "That I did not believe that we would continue operations if they made us sign a contract where it would cost the company 40 cents a ton, because, personally, I did not believe they were that much profit in the coal.... Yes, sir, I have made the statement that I be- 10-CA-6804, Sec. 8(a)(1) of the Act); March 23, 1967, Regional Director for Region 10 issues additional unfair labor practices complaint against Respondent (Case 10-CA-6804) and consolidates case for hear- ing with earlier case (Case 10-CA-6735) on May 2; March 31, 1967, Respondent answers complaint in Case I0-CA-6804, April 5, 1967, Re- gional Director for Region 10 rescinds October 19 Decision and Direction of Election because of pendency of unfair labor practices cases (Cases 10-CA-6735 and lO-CA-6804), and dismisses September 26 umon Petition for Certification of Representative. 7 Although the second complaint (i.e., March 23, 1967, Case 10-CA-6804) also speaks of violative action in August - namely, coercive interrogation and threat on August 29 by Mine Superintendent Oscar D. Osborn - since no evidence was adduced on this score at the hearing, these allegations were not established and are being recommended for dismissal. In view of this disposition of the allegations pertaining to Au- gust, it is unnecessary to come to grips with the question of whether they would be barred under Section 10(b) of the Act because of the March 15, 1967, filing date of the Charging Party's first amended charge and the doubt as to whether the alleged August episode was fairly covered by the original December 29 charge (Case 10-CA-6804). A degree of complexi- ty and confusion, possible engendered by the two separately subsisting complaints, may be avoided by consulting Table I in the Appendix at- tached hereto ALCO MINING CO. lieve that the man could not operate if he had to pay 40 cents a ton." Busha denied saying that Osborn had told him that he would fire union card signers or that he would shut the job down if unionized. Busha testified he was unable to recall talking to Battle separately, as Battle (and Herring) testified, but thought he talked to Herring and Battle together. Then: Q. [By Respondent's counsel] .... Did you tell Battle that Mr. Osborn had said he would appreciate it if those who signed cards would go somewhere else to work? A. [By Busha] To the best of my knowledge, no sir. Q. Did you say any words to that effect? A. I do not remember them if I did. With regard to Lee, asked (also on direct examination) whether he had ever asked Lee how he felt about the Union, Busha similarly replied, "If I did, I do not re- member it." Asked if he ever told Lee that "the company would not operate under the union, that they would close it down," after first testifying that he did not say this, asked if he ever told Lee "anything to that effect," Busha's reply (still on direct examination) was, "As far as I know, I did not." I was favorably impressed with the testimonial demeanor of General Counsel witnesses Herring, Battle, and Lee, who, at Respondent's request, testified after being segregated. Herring and Lee withstood cross-ex- amination well, and Battle was not even cross-examined. On the other hand, I was unfavorably impressed with the testimonial quality of Respondent's witness Busha, who himself emphasized his deficient recollective capacity, and who appeared to hedge and equivocate significantly. It is obvious that when a witness, such as Busha, does not unequivocally deny he made statements attributed to him by credible witnesses, but merely testifies that he is un- able to remember or recall them, the testimony of the non- recollecting witness is consistent with the truth of the testimony of the other witnesses who remember what was said; and no real need arises to make a choice between conflicting testimony. Since, as stated, I was well im- pressed with the demeanor of General Counsel witnesses Herring, Battle, and Lee and am persuaded that their testimony is worthy of belief,8 I accordingly credit their testimony and find that, substantially as alleged in the complaints, on or about September 15, 1966, Respond- ent, through its pit foreman and supervisor, Busha, inter- rogated employees concerning their union membership and activities, and threatened employees with discharge 8 Were I confronted with need for choice between any of these General Counsel witnesses, on the one hand, and Respondent's witness, Busha, on the other, upon the basis of observed comparative testimonial demeanor I would exercise the choice in favor of the former. 9 I find that the complaint allegation that Mine Superintendent O. D. Osborn on or about September 12, 1966, threatened employees that Respondent would never sign a contract with the Union has not been established by substantial credible evidence. 10 With regard to Respondent's failure to produce Mine Superintendent O. D. Osborn to testify, the latter's son, C. O. (Buster) Osborn, stated that his father had sustained four heart attacks (the first about 6 or 7 years ago), the name or nature of which he was ignorant. He conceded, how- ever, that at present his father was working and on the job at the mine. No competent medical proof has been adduced as to the nature, severity, con- temporaneity; or disabling effect of any alleged heart disease; since 0 D. Osborn concededly is presently at work on the job as mine superintendent at the mine„ no reason is apparent why he could not testify without greater hazard, if any, than arises from his work; and no application was made for 493 if they signed union cards and with mine shutdown in event of unionization.9 2. October It is further alleged that on or about October 14, Mine Superintendent O. D. Osborn interrogated an employee about union matters, and threatened loss of benefits in the event of unionization. General Counsel's witness, Lee, testified that on the evening of October 14, right after being laid off from his job with Respondent as dragline operator by pit foreman, Busha, he visited Mine Superintendent O. D. Osborn at the latter's home and asked him if his "being laid off was in any way connected with union activities." According to Lee, Osborn denied it but told Lee: that the company wouldn't go Union under any cir- cumstances. And that if a majority was reached, which he said he doubted, that if it would be, that fifty one percent of them could walk the picket line outside the company grounds and the forty nine per cent could continue working and the fifty one per cent could starve to death as far as he was con- cerned. Further ... he [Mine Superintendent O. D. Osborn] said he had talked to every man out there but one dragline operator and myself, and all of them had told him that they had not signed cards. But he said that all of them said that [Union Representa- tive] Mr. Sessions had been to see them on several occasions, two or three times. Inasmuch as Mine Superintendent O. D. Osborn did not testify,10 this testimony of Lee, who impressed me as a highly credible witness, stands uncontroverted. Credit- ing Lee's testimony, I find that on October 14, 1966, Respondent through its Mine Superintendent Oscar D. Osborn threatened employees with economic loss and refusal to deal with their Union in the event of unionization. 11 12 3. November It is alleged that in November Respondent's pit foreman, Busha, again interrogated mine employees con- cerning their union membership, activities, and desires. As to this, Respondent's oiler-greaser, Hall, still in its employ, testified that on or about November 14 Busha approached him at work and inquired whether "any of the union officials talked to [you]," to which Hall replied in the negative. a continuance or pursuit of alternative avenues of testimonial eduction. Notwithstanding the foregoing, I draw no adverse inference from the failure of Respondent to produce its Mine Superintendent O. D Osborn to testify, but nevertheless credit the described testimony of General Counsel's witness Lee. 11 Respondent urges that Osborn's statements to Lee could not in any event be considered a threat since Lee was technically no longer in Respondent's employ when uttered Even assuming that Lee's layoff by Busha just before he went to see Osborn was meant to be permanent, Mine Superintendent O. D. Osborn's statements of his intentions in the event of unionization constituted a clear threat to all employees. 12 In view of Lee's testimonial concession that Osborn did not ask him "anything about the union," and the absence of other evidence as to em- ployee interrogation by Mine Superintendent O. D. Osborn in October, I further find that the complaint allegation that on or about October 14, 1966, Respondent through its Mine Superintendent O. D. Osborn inter- rogated an employee about union matters has not been established 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pit Foreman Busha's first answer, on direct examina- tion, to the question whether he ever spoke to Hall about the Union was, "To the best of my knowledge, no, sir." However, to the very next question (still on direct ex- amination), "Did you, on or about November 14th, 1966, ask Willie Lee Hall if any union officials had talked to him," Busha's answer was, "yes, sir, it is possible .... If I said anything to Willie Lee [Hall], it would have been just to ask him if the union had been to see him," and that he (Busha) was unable to "remember any more of it." Crediting Hall's testimony, I find that on or about November 14, 1966, Respondent through its supervisor, pit foreman, Busha, interrogated its employee Willie Lee Hall regarding union activities, substantially as alleged in the complaint. 4. December It is also alleged that on or about December 23, during pendency of the Union's petition to the Board for Certifi- cation as unit exclusive bargaining representative, Respondent unilaterally, without consulting with or noti- fying the Union, but on the contrary bypassing the Union, granted a bonus to the unit employees; and that on or about December 26 (shortly before the scheduled elec- tion) Respondent distributed to its employees a letter threatening them with discharge in the event of unioniza- tion. 5. 1966 cash bonus The basic facts with regard to these matters are not in substantial dispute. Thus, it is conceded that a few days prior to Christmas 1966 - while the Charging Union's petition for certification was pending before the Board, with an election scheduled by the Board for January 6 - Respondent paid out a cash bonus to its unit employees for the first time in its history.13 These bonuses appear to have been sizeable in proportion to salary.14 With regard to the 1966 bonus, the area of conflict cen- ters around whether the bonus had been promised to the employees, as claimed in Respondent's answer, "long be- fore the Union was heard of," so that "Withholding of the bonus after election of the Union would have been illegal. The granting of the bonus was not." As to this area of factual conflict, General Counsel witness Jones , who has been (and still is) in Respondent's employ since November 1965, testified unequivocally that he had in no way ever been told, before actually receiving this bonus, that it would be forthcoming. Evidence given by General Counsel witness Herring, one of Respondent's original day-shift crew, who had worked throughout 1964 and part of 1965, is to the same effect. General Counsel witness Hall (an oiler-greaser since July 1966, who had also worked for Respondent in 1965) testified that in the latter part of 1965, C. O. (Buster) Osborn indicated to him and some others that although he was then unable to give a bonus, he would "give us something" when able. According to Hall, however, Osborn gave no indication of what form any eventual possible bonus would take.'5 13 Respondent had given its employees hams on the preceding Christ- mas (1965). Hams were also dispensed for Christmas 1966. 14 Thus, oiler-greaser Hall, whose weekly pay was $60 , received a $50 cash bonus ; dragline operator Stanley , whose weekly take-home pay averaged $ 175 to $200, received a $100 bonus. Respondent's witnesses on the bonus question were its President C. O. (Buster) Osborn , and its employees Stan- ley and Street. Osborn claims to have told some em- ployees, including Herring , in 1964-65, "that when we began to make money we would give a bonus .... that we could not give them a raise at that time ; and as soon as we made money , we would give them a bonus instead of a raise." (Emphasis supplied.) According to Osborn, the cash bonus was given in December 1966 because Respondent at that time "made a little money, yes, very little, but I have been promising for two Christmases prior to that , that we were going to give them a bonus. It looked like I would just keep promising them and promis- ing them and that is the reason that the bonuses were no larger than they were." Also testifying as Respondent's witness on this subject, dragline operator Stanley stated that he recalled that late 1965 or early 1966 when he asked "Buster" Osborn for "a raise," Osborn turned him down but added , "What we are going to do , we are going to give a bonus .... When we make some money we are going to give the men bonuses. The bonus would depend on how much profit we make ." Respondent's witness Street, a front-end loader operator in its employ for a year, testified that he had never heard either of the Osborns say anything about a bonus before he received it just before Christmas 1966. No evidence was adduced by Respondent to establish (1) that no profit, or "insufficient" profit to "justify" a bonus, was made by it prior to 1966 ; (2) that the profit, if any, made by it in 1966 was different than in previous years; (3) the actual profit figures for 1966, or to substan- tiate the self-serving conclusory statement of "Buster" Osborn regarding the "little ... yes, very little" money made to allegedly justify the 1966 bonus ; (4) justification for the specific timing of the December 1966 cash bonus. Nor was any explanation offered as to why the cash bonus could not have been withheld until after the Janua- ry 6 Board-scheduled union election to be held so shortly thereafter ; nor as to why the Union was not consulted or apprised. Upon evaluation of comparative testimonial demeanor of the witnesses on both sides , I find that Respondent's December 23, 1966, cash bonus to its employees was not, as alleged in its answer, in fulfillment of any promise made to its employees prior to then. 6. Respondent's preelection letter to employees It is conceded that within a few days after its distribu- tion of this unprecedented cash bonus, Respondent also distributed to its employees a letter concerning the union election which had been scheduled by the Board's Re- gional Director for January 6. Apparently, as testified to by General Counsel witness Jones, Pit Foreman Busha hand-delivered these letters to employees with the per- sonal message that "Buster" Osborn wanted the em- ployees to read it over. The contents of the letter, which was signed by Osborn, are not in dispute. After emphasizing the importance of the-union election about to be held on January 6 as being to the employees "probably the most important election you-will ever vote 15 In this connection it is noted that concededly Respondent dispensed hams later in 1965 (as well as 1966), and that Osborn gave no definite indi- cation of specific timing of any cash bonus, even if cash is what he was talking about although he did not say so. ALCO MINING CO. in" and pointing out to them that "It will affect your fu- ture and that of your family," the communication urges all employees to vote "for otherwise you will be leaving your future in the hands of others." It then informs the em- ployees that the Union has only one contract with all mines in the State, which the: Union will not change .... because an operator does not make enough on his coal to pay these items. (They simply say pay or close down.) .... It would not make much sense to think that an operator who does not make 40 cents a ton on his coal would agree to pay the United Mine Workers Union 40 cents a ton [for the Union's Mine Workers' Pension Fund] Alco mining does not make 40 cents a tone [sic] and enough to pay the wages the Union de- mands .. If the United Mine Workers Union forces Alco Mining to close, you will have gained nothing. If the United Mine Workers Union forces Alco Mining to hire new crews, you will have gained nothing .... The United Mine Workers Union does not pay your wages, and the Union cannot force Alco Mining to pay one cent more than it is willing to pay. Some of you know what the Union cost their members in lost wages last summer. The communication also points out that some operators could not afford to pay the Union 40 cents a ton (toward the United Mine Workers pension fund), while others would not sign a contract and went out of business "or hired new crews who were willing to let the mine workers alone." (Emphasis supplied.) The communication con- cludes: "THINK. Think about yourselves - Think about your family. If you do, you will vote 'NO' on January 6th." C. Recapitulation It is plain from Respondent 's preelection written com- munication to its employees that it wanted no dealings with or part of the Union in its mine, whether or not its employees wanted it, and was warning its employees not to vote for it - regardless of whether or not they had al- ready designated it as their collective-bargaining representative - in the upcoming election. This sentiment, plainly expressed in Respondent's December-end letter, was the climactic overt expression of various antecedent acts by Respondent, described above, from the time its employees in September manifested their lawful desire to associate themselves for collective bargaining with Respondent by signing the union cards here in evidence. These actions of Respondent , from the mid-September advent of the Union until Respondent's December-end letter, resulting in the, Regional Director's cancellation of the election which he had officially scheduled for January 6, should not be viewed as discrete phenomena unrelated to each other, like unstrung beads, but in their connected chronological sweep, for accurate assessment of their true import and proper evaluation of their real impact upon the mine employees toward whose minds and votes they were of course beamed. Thus, there is here, commencing with the employees' mid-September manifestation of collective-bargaining 16 Cf. N L.R.B. v. Virginia Electric and Power Company, 314 U.S. 469, 477; Crown Laundry & Dry Cleaners Inc., 160 NLRB 746, 747, fn. 1. 17 Bok, The Regulation of Campaign Tactics in Representation Elec- tions under the National Labor Relations Act, 78 Harv. L. Rev. 38, 106, 495 desires, until Respondent's December-end letter, a pat- tern of interrogation, economic threats, and unilateral grant of unparalleled economic benefits . There is little doubt that these, viewed in total sweep as they should be,'s were coercive and in interference with and restraint of the employees ' rights to associate themselves, free from such intrusive restraints, for collective dealing with Respondent. To begin with, in regard to the repeated interrogations, there was an absence of compliance with the Board's oft- reiterated standards in justification or execution of em- ployer questioning of employees about their union affairs. No reason was given to the employees , has even here been advanced, or is apparent, to justify Respondent's in- trusive inquiries; nor did any reassuring explanations ac- company the interrogations . Professor Bok has lucidly summarized applicable requirements in his statement that "employers must beware of interrogation unless (1) they have a valid purpose for obtaining information concerning the union's strength ; (2) they communicate this purpose to the employees ; and (3) they assure the employees that no reprisals will be taken."" Respondent here satisfied none of these requirements. With regard to the economic threats of job or other loss and mine shutdown in the event of unionization, these were so clearly unlawful as hardly to require citation of authority. It may confidently be assumed that no recent volume of the Board's reported cases does not include proceedings in which comparable threats have been con- demned as violative of the Act. In this connection, it will be recalled that the Supreme _ Court in the recent Darlington case (380 U.S. 263), while pointing out that an employer is privileged to go out of business rather than deal with a union, took occasion to remind that an em- ployer may not lawfully threaten his employees with going out of business as the price they would have to pay in the event they exercise their statutorily guaranteed right to associate for collective bargaining through a union. As Mr. Justice Harlan there stated for the unanimous Court, 380 U.S. at 274, fn. 20: Nothing we have said in this opinion would justify an employer's interfering with employee organizational activities by threatening to close his plant , as distin- guished from announcing a decision to close already reached .... Nor is there evidence here that Respondent had made or was announcing a "definitive decision to close" in the event of unionization (Darlington, supra, 380 U.S. at 274, fn. 20). It is well settled that economic threats, such as of job loss, loss of employment benefits, or plant shut- down, in the event of unionization , are not within the free speech proviso of the Act.'' Indeed , Section 8(c) of the Act explicitly so provides. We have held that remarks made within the con- text of an organizing campaign to the effect that em- ployer would close the plant if the union got in were violations of section 8(4)(1). Florence Printing Co. v. N.L.R.B., 333 F.2d 289, 290-291 (4 Cir. 1964). Threats of discharge or of other discrimination because of union membership have also been held to be violative of section 8(a)(1). N.L.R.B. v. at 107 (1964), cited with approval in N.L.R.B. v Camco, Incorporated, 340 F2d 803,804 (C.A. 5), cert. denied 382 U.S. 926. 18 N.L.R .B. v. Virginia Electric and Power Co., supra at 477, 478; N.L.R.B. v. Eastern Die Co., 340 F 2d 607, 608 (C.A. 1), cert. denied 381 U.S. 951. 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McCormick Concrete Company of S.. C., Inc., 371 F.2d 149, 152 (4 Cir. 1967); N.L.R.B. v. Associated Naval Architects, Inc., 355 F.2d 788, 791 (4 Cir. 1966). [Holly Hill Lumber Company v. N.L.R.B., 380 F.2d 838, 841 (C.A. 4).] 19 Although here, as frequently, the employer attempts to make light of his threats to his employees, it is to be borne in mind that presumably they were uttered in order to be effective; and that, so far as the employees were con- cerned, they emanated from a source with authority to make them good. Cf. N.L.R.B. v. Eastern Die Co., supra. Furthermore, a threat need not be carried out to be coer- cive in its impact. Id., 142 NLRB 601, 602, fn. 2; The Rein Company, 114 NLRB 694; Forest Oil Corporation, 85 NLRB 85, 86. Typically, such threats are sought to be masked in the language of "prediction"; but this does not alter their character as coercive pronouncements in- tended, as here, to restrain employees' freedom in exer- cise of rights to bargain collectively as guaranteed by the Act. Cf. N.L.R.B. v. Harold Miller, et al. d/b/a Miller Charles & Co., 341 F.2d 870, 873 (C.A. 2). While we do not doubt that Wallach proceeded carefully in attempting to limit his communications to his employees to the legally permissible, his words must be judged by their likely import to his em- ployees. As the Trial Examiner suggested, one who engages in "brinksmanship" may easily overstep and tumble into the brink. It is well settled that an em- ployer has violated § 8(a)(1) of the Act if, in commu- nicating to his employees during a union organiza- tional drive preceding an election, he makes promises of benefit or threats of loss or reprisal for their vote. N.L.R.B. v. Realist, Inc., 7 Cir., 328 F.2d 840 (1964), cert. den., 377 U.S. 994 (1964); N.L.R.B. v. Marsh Supermarkets, Inc., 7 Cir., 327 F.2d 109 (1963), cert. den., 377 U.S. 944 (1964); N.L.R.B. v. Imperial-Eastman Corporation, 7 Cir., 322 F.2d 679 (1963). A fortiori, such promises or threats, directed to specific employees and coupled with interrogation, also violate § 8(a)(1). [Wausau Steel Corporation v. N.L.R.B., 377 F.2d 369, 372 (C.A. 7).] Insofar as Respondent's December 23 cash bonus is concerned, it is to be noted that (1) the cash bonus was unprecedented; (2) the evidence fails to establish that the cash bonus was planned, promised, or announced by Respondent prior to the time its employees manifested their desires to associate themselves for collective bar- gaining; (3) the timing of the cash bonus decision, as well as of its announcement, was calculated for maximum coercive effect upon the employees and for maximum in- ducement on them in the totality of accompanying events, to provoke disassociation from the Union; (4) no justifi- cation has been established or advanced, nor is any ap- parent, why this unprecedented bonus was extended, under the circumstances that it was - with not only the Union known to be in the picture but an official election scheduled by the Board' s Regional Director to be held shortly - without so much as notice to the Union; (5) it has not been established that Respondent's 1966 economic circumstances differed from those previously, or so as to warrant the 1966 cash bonus as claimed; (6) no "To the same effect, see The Little Rock Downtowner, Inc., 143 NLRB 887, enfd. as modified 341 F.2d 1020 (C.A. 8). The same may be said of employer statements of the possibility of shutdown in the event of unionization (N.L.R.B. v. Tru-Line Metal Products Company, 324 F.2d reason is apparent why any such bonus could not have been deferred for a brief interval until after the scheduled January 6 election, instead of being paid out so soon be- fore that election. All circumstances considered, I am persuaded that, in the totality of the situation, Respond- ent's decision to pay this December-end 1966 bonus, as well as the timing of that decision and the timing of the an- nouncement to the employees of that decision, were the direct outcome of or effectively catalyzed by the em- ployees' September-December union organizational ac- tivities, and were purposed to interfere with and restrain and coerce the employees in the further pursuit of those activities, and to reverse the employees' actions in having designated the Union as their collective-bargaining representative, so as to cause them to change their minds and abandon their collective actions and representative as unnecessary and futile, if not hazardous to or incon- sistent with their continued employment prospects at the mine. Although it is not a violation of Section 8(a)(1) for an employer to carry out a wage raise (or bonus) plan al- ready decided upon, without advancing its effective date (Motorola, Inc., 163 NLRB 385; Champion Pneumatic Machinery Co., 152 NLRB 300; Dan Howard Mfg. Co., 158 NLRB 805; Divco-Wayne Industries, Inc., 154 NLRB 974; T. L. Lay Packing Company, 152 NLRB 342;'Derby Coal & Oil Co., Inc., 139 NLRB 1485, 1486; True Temper Corporation, 127 NLRB 839, 842-844), "what is unlawful under the Act is the employer's grant- ing or announcing such benefits (although previously determined upon bona fide)for the purpose of causing the employees to accept or reject a representative for collec- tive bargaining." (Hudson Hosiery Company, 72 NLRB 1434, 1437.) Employer motive in cases of this type is to be assessed from the total stream of preceding, concur- rent, and subsequent related circumstances. N.L.R.B. v. Harbison-Fischer Manufacturing Co., 304 F.2d 738, 739-740 (C.A. 5). As stated by Mr. Justice Harlan for the unanimous Court in N.L.R.B. v. Exchange Parts Com- pany, 375 U.S. 405,409: The danger inherent in well-timed increases in benefits is the suggestion of a fist inside the velvet glove. Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged. Additionally to be considered herein, are the factors pointed out in Stark Ceramics v. N.L.R.B., 375 F.2d 202, 207 (C.A. 6): We have pointed out at the outset that the unilateral action of Stark in respect of the 1964 bonus occurred in a context of unfair labor practices following an ac- tively contested election in which Stark plainly manifested its opposition to the Union. Also apropos here is the language of the court in Western Cartridge Co. v. N.L.R.B., 134 F.2d 240, 244 (C.A. 7), cert. denied 320 U.S. 746, wherein the employer' s timing of benefits was characterized as "allurements .... to stem a tide of organization." It is found and concluded that in the totality of the record as made, Respondent's action in giving and timing the cash bonuses which it paid to unit employees on 614, 616 (C.A. 6), cert. denied 377 U.S. 906), "notwithstanding sincere, belief that such result would follow." United Fireworks Mfg. Co. v. N.L.R.B., 252 F.2d 428,430 (C.A. 6). ALCO MINING CO. 497 December 23, 1966, was for the purpose of interfering with, restraining, and coercing employees in pursuit of their endeavor and statutory right to bargain collectively with Respondent; and was in violation of Section 8(a)(1) of the Act.20 We deal finally with Respondent's December-end (i.e., within a few days after the December 23 cash bonus), written communication to employees emphasizing the grave importance to them and their families of the upcom- ing union election in terms of their expectations of con- tinued employment and livelihood. All circumstances considered, the net fair intendment of this communication can only have been to convey the impression to these mine workers - none of whom was shown to be a student of labor law or its intriguing semantics - that if they per- sisted in desiring to be represented for collective bargain- ing by the Union, Respondent would not meet what it as- sumed would be the Union's demands but would instead close down and the union men would lose their jobs; or that it would replace the Union men with "new crews ... willing to let the mine workers alone." This was no less than a thinly veiled threat - indeed, a threat of the most potent sort, since it directly concerned the employees' jobs, livelihood, and families - of employer reprisal in the event the employees exercised the legal right guaranteed to them by Congress, to associate themselves for the pur- pose of collective bargaining through the representative of their choice. The Employer here sought to perpetuate the weak bargaining power of its individual employees by threats not to deal with them collectively, or, worse, that collective-bargaining association would cost them their jobs. In part, Respondent purported to turn this'upon its inferential distaste for United Mine Workers, its bargain- ing opposite. But the law does not require, and an em- ployer has no right to expect, that employees' choice of bargaining representative meet with the employer's ap- probation or even be palatable to the employer. Such a requirement or right expectancy would pervert the Act's core guarantee of freedom of choice of bargaining representative by employees themselves, through placing the "choice" in the employer's hands or subject to his veto power. "The right of employees to be represented by officials of their own choice doubtless must outweigh any principle ofpersona non grata." N.L.R.B. v. Signal Mfg. Co., 351 F.2d 471 (C.A. 1), cert. denied 382 U.S. 985. The answer has already been supplied, in a previous connection, to the contention that Respondent's December 26 letter was privileged as "free speech." It is reiterated that threats are expressly excepted from the free speech proviso of Section 8(c) of the Act. Respondent urges in justification of its December 26 preelection letter to Fits employees, that the statements therein that it was not making 40-cents-per-ton profit on its coal and therefore would be unable to afford to pay that amount into the Union's Miners' pension fund in the event of unionization, were true. The short answer to this is that employees may be restrained and coerced by truth as well as by fiction. Indeed, the voice of threat may carry greater power when it speaks the language of apparent truth. Cf. N.L.R.B. v. Parma Water Lifter Co., 211 F. 2d 258, 262 (C.A. 9), cert. denied 348 U.S. 829; The Atlas Underwear Co. v. N.L.R.B., 116 F.2d 1020, 1022-23 (C. A. 6). Additional answers to Respondent's contention are that such a claim of inability to afford to pay an an- ticipated demand, even if true, does not relieve an em- ployer from the statutory obligation of engaging in collec- tive bargaining, nor constitute a defense or mitigation to violation of that duty; that matters such as alleged profit and ability to afford - involving, as they do, such frequently imprecise, elastic, and debatable formulations as "fair" return upon investment, the scale of "fair" managerial-executive-supervisory salaries and emolu- ments, the proper method of calculation of depreciation and similar writeoff factors, comparability rationalization of pay scales of different categories of employees, extent of "charitable" and like contributions, sinking fund prac- tices, plant expansion and other reserves, nature and ex- tent of capital expenditures, amortization picture, overall and specific plant operational efficiency, sales prices and practices including identity of purchasers of products, etc., etc., are, of course, typically matters entering the mainstream of the collective-bargaining process itself, for which individual employees are entitled to rely upon the bargaining expertise of their union, since they are scarce- ly matters which an individual employee is equipped to discuss with sophistication or, even if he were, to raise with impunity or likelihood of success with his employer on an individual employee basis; that the Union or em- ployees might not insist upon a 40-cent-per-ton pension fund payment if persuaded through a fair factual showing by Respondent of inability to pay it; and that, in the ulti- mate analysis, if the employees -as a collective-bargaining entity should elect to test out any apparent resolve by their employer not to meet their demands, they could ex- ercise their lawful right to withhold their services (i.e., strike) in pursuance of their demands, "justified" or not. But, in the contextual congeries here presented, the Em- ployer may not lawfully convey the message to em- ployees that if they exercise their statutorily guaranteed right to bargain with him collectively, they will lose their jobs since he cannot afford and will never agree to pay what he predicts with certainty the Union will un- deviatingly insist on. This as much as threatens the em- ployees' jobs for their mere exercise or continued exer- cise of a right which Congress has guaranteed to them in- sulated from restraint or coercion.21 Table I, attached hereto as an appendix, constitutes a summary recapitulation of relevant details and findings made with respect to the alleged 8(a)(1) violations spread throughout the two complaints here. 2° Respondent's contention on brief that its cash bonus was not unlaw- ful because there is "no evidence that Alco placed any conditions on the granting of the bonus and did not mention defeat of the Union in the elec- tion" is devoid of merit, heaving been laid to rest some years ago by the Supreme Court in N.L f(.B. v. Exchange Parts Company, supra at 408-410 21 Cf Collins Baking Co. V. N.L R.B., 193 F.2d 483, 486 (C.A. 5); NL.R.B. v. Electric City Dyeing Co., 178 F.2d 980, 981 (C.A. 3); N L.R B. v. Hoppes Manufacturing Company, 170 F.2d 962, (C.A. 6), N L.R.B. v, Gate City Cotton Mills, 167 F.2d 647, 649 (C.A. 5); N.L R.B v. Montgomery Ward & Co., 133 F.2d 676, 686 (C.A. 9); N.L.R.B v. Boss Manufacturing Company, 118 F 2d 187, 189 (C A. 7); N.L.R B. v. Highland Park Manufacturing Company, 110 F.2d 632 (C A. 4); Globe Cotton Mills v. N.L.R.B., 103 F 2d 91, 94 (C.A. 5); The Trane Company, 137 NLRB 1506,15 10; The Andrew Jergens Company, 76 NLRB 363, enfd. 175 F.2d 130 (C A. 9), cert denied 338 U.S. 827. See also N.L.R.B v. Parma Water Lifter Co, supra; Joy Silk Mills v. N L.R.B., 185 F.2d 732 (C.A.D.C.), cert denied 341 U.S. 914, Western Cartridge Co. v. N.L R B , supra. In making findings involving Respond- ent's December 26 letter and matters therein alluded to, I "place no reliance .... on .... words of the respondent disassociated from its con- duct" (Harlan, J., in N.L.R.B. v. Exchange Parts Company, supra at 409, fn. 3). 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings and entire record, I state the following: CONCLUSIONS OF LAW 1. Alco Mining Co., Inc., Respondent herein, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Union, United Mine Workers of America, Charging Party herein, is a labor organization within the meaning of Section 2(5) of the Act. 3. Assertion of jurisdiction herein is proper. 4. By the conduct described and found in section II to have been engaged in, Respondent has interfered with, coerced, and restrained employees in the exercise of their rights guaranteed under Section 7 of the Act, and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. Said unfair labor practices and each of them affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. It has not been established by a fair preponderance of the substantial credible evidence that Respondent has engaged in any of the other acts alleged in the complaints as unfair labor practices and not found in section II hereof. 7. Respondent engaged in the unfair labor practices herein found and concluded to have comprised violations of the Act, with the purpose, intent, and effect of prevent- ing and precluding a fair , free, and unfettered choice of collective-bargaining representative by its employees in the unit alleged in the complaint dated March 23, 1967, in Case 10-CA-6804, and hereinbelow found, to be ap- propriate for bargaining purposes; with the purpose, in- tent, an effect of interfering with the carrying out of a fair and free election by the Board's Regional Director on January 6, 1967, as scheduled; and with the purpose and intent of overcoming and destroying the Union's existing bargaining strength and status as exclusive bargaining representative of the employees of said unit. THE REMEDY A. Remedy Sought by General Counsel and Charging Party Having found that Respondent has engaged in unfair labor practices, I shall recommend that it be required to cease and desist therefrom and take certain affirmative action, including the posting of a notice, designed to effec- tuate the policies of the Act. In view of the nature of Respondent's unfair labor prac- tices and their timing in relation to the election officially scheduled to be conducted on January 6, 1967, under Board auspices , necessitating cancellation of that election by the Regional Director, General Counsel and the Charging Party seek, by way of additional remedy, an order directing Respondent to bargain with the Union as exclusive collective-bargaining representative of a majority of Respondent's employees in a unit appropriate for such bargaining purposes. Findings and conclusions here made as to the purpose and intent of Respondent's unfair labor practices and their effect on the Board- scheduled election, necessitate consideration of the ex- tent of the Union's bargaining representation strength in the unit alleged to be appropriate for collective-bargaining purposes.22 B. Appropriate Bargaining Unit, Composition, and Union Representation Strength 1. Appropriate bargaining unit In its September 26 Petition for Certification, the Union sought a collective-bargaining unit consisting of Respondent's production and maintenance workers at its mine, excluding executives, supervisors, foremen, techni- cians, office clerk, guards, and others excluded under the Act. In his October 19 Decision and Direction of Elec- tion, after hearing participated in by Respondent and the Union, the Acting Regional Director for Region 10, determined the appropriate collective-bargaining unit to be Respondent's production and maintenance employees, including truckdrivers, mechanics, and the mine clerk, on Respondent's payroll at its mine, excluding independent contractors and their employees, temporary employees, office clerical employees, professional employees, watchman, guards, mine superintendent, foreman, and all other supervisors as defined in the Act. The second com- plaint herein similarly alleges such a production and maintenance unit, including truckdrivers and with the foregoing exclusions, to be appropriate for collective-bar- gaining purposes. Respondent denies this.23 Since such a unit (with such exclusions) is a conventional and usual type of collective-bargaining unit, is presumptively ap- propriate for such purposes and has not been shown to be inappropriate, has been determined by the Acting Re- gional Director for Region 10 after hearing to be ap- propriate and no newly discovered facts since that deter- mination have been adduced, there is no history of collec- tive bargaining, and the proposed unit is clearly an ap- propriate one, I find that the proposed bargaining unit has at all material times been and is an appropriate unit for purposes of collective bargaining within the meaning of Section 9(b) of the Act, viz: All production and maintenance employees, includ- ing truckdrivers, mechanics, and the mine clerk at or near the Respondent's Brookwood, Alabama strip mining operation, but excluding independent con- tractors, employees of independent contractors, tem- porary employees, office clerical employees, profes- sional employees, the watchman, guards, mine su- perintendent, foreman, and all other supervisors as defined in the Act. 22 That such a bargaining order is appropriate in these circumstances, even in absence of an allegation of violation of Section 8(a)(5) of the Act, gee, e.g., Summit Mining Corporation v. N.L.R.B., 260 F.2d 894 (C.A. 3); N.L.R.B. v. Joe Caldarera, d/bla FalstaffDistributing Co., 209 F.2d 265 (C.A. 8); D. H. Holmes Co. v. N.L.R.B., 179 F.2d 876 (C.A. 5); for remedial order see id., 81 NLRB 753, 756. That in these circumstances diminution or even loss of union majority does not relieve the employer of his obligation to bargain , see Ray Brooks v. N.L.R.B., 348 U.S. 96, 102-103; Franks Bros . Company v. N.L.R.B., 321 U.S. 702; Medo Photo Supply Corporation v. N.L.R.B., 321 U.S. 678. 23 In this connection it is observed that at the representation case (10-RC-66866) hearing held on October I 1 upon the Union's September 26 Petition for Certification, Respondent stipulated (hearing transcript in that case, p. 27) that its production and maintenance employees, other than supervisors, are appropriately includible in a collective-bargaining ,unit. That a production and maintenance unit is presumptively appropriate for collective-bargaining purposes , see Indiana Refrigerator Lines, Inc., 157 NLRB 539, 551; Beaumont Forging Company, 110 NLRB 2200, 2201-02. ALCO MINING CO. 2. Composition of and union representation strength in bargaining unit Inasmuch as General Counsel and the Charging Party seek a bargaining order remedy, it is essential as a threshold question to consider whether the Union in fact represented a majority of employees in the appropriate collective-bargaining unit at a controlling time. Tables II and III, attached hereto as an appendix, con- stitute my findings relative to the composition of, and the Union's representation strength in, the collective-bar- gaining unit here found appropriate. C. Recommended Remedy in View of Foregoing Although violation of Section 8(a)(5) of the Act is not here charged, General Counsel and the Charging Party seek a bargaining order in view of the character and ex- tent of Respondent's violations of Section 8(a)(1), evalu- ated within the matrix of the overall situation, during the union organizational campaign. The totality of Respondent's actions from the inception of union organizational activities by its employees in mid- September shows persuasively that (1) Respondent was, and still is, unalterably opposed to unionization and union organizational activity among its employees, as well as to their choice of union collective-bargaining representative; (2) Respondent has engaged in a continued course of con- duct, the object of which could have been no other than to undermine the Union as its employees' chosen collec- tive-bargaining representative, and to dissipate and destroy its representation strength among its employees; (3) through its actions vis-a-vis its employees, the Union, and the appropriate collective-bargaining unit, Respon- dent has disrupted and foreclosed the holding of the fair, free election scheduled by the Board's Regional Director for this past January 6. Respondent's described actions aimed at its employees' attempts to exercise their lawful rights to bargain collectively were premeditated and deliberate.24 The Board has repeatedly warned that its elections, stamped as their outcome with the Board's offi- cial certificate on behalf of the Federal Government, must be conducted in a fair and free atmosphere, under what have been referred to as the _ "laboratory condi- tions" 25 of its social science laboratory, without disrup- tive huckstering or coercively intrusive tactics by labor or management.26 Where fair, free election is prevented 24 Because of the nature and extent of the unfai r labor practices engaged in by Respondent, indicative of an attitude of nonacceptance of and hostility and continued opposition to basic principles of the Act and the exercise of employee rights guaranteed by the Act, I deem it appropriate to recommend that Respondent be required to cease and desist from in- fringing in any manner upon the rights of employees guaranteed in Section 7 of the Act. 25 General Shoe Corporation, 77 NLRB 124, 127. 2s Cf., e.g., N.L.R.B. v. Exchange Parts Company, supra, Radio Of- ficers' Union [A. H. Bull Steamship Co.] v N L .R.B , 347 U.S. 17, 51; N L.R B. v. Eastern The Co., supra; N.L R.B. v Federbush Company, Inc., 121 F.2d 954, 957 (C.A. 2), Northwest Engineering Company, 148 NLRB 1136; Dal-Tex Optical Company, Inc., 137 NLRB 1782; The Trane Company, 137 NLRB 1506. 24 Aaron Brothers of California, 158 NLRB 1077, 1078. 28 G.C. Exh. 7, p. 8. 499 through improper interference of a party, it is just that that party shoulder the consequences of its own actions. Although the Board prefers an election to union cards as a more reliable barometer of employee sentiment 27 obviously this preference is meaningful only upon the as- sumption that the election is fair and free. Where a fair, free (i.e., coercion-free) election has been subverted, the alternative mode of determining employee union senti- ment, i.e., union cards, must be resorted to, since the preferable alternative, i.e., election, has been scotched by a contestant. In that case, "The union's card majority, not discredited at the unfair labor practice hearing, is the only unblemished record fact relating to the union's actual majority." (Wausau Steel Corporation v. N.L.R.B., supra at 374 (C.A. 7). See also Dan Howard Mfg. Co., 158 NLRB 805 at 807, fn. 5. Under these circumstances, it ill behooves the contestant - here the Employer - who has brought about this situation by its own affirmative acts, to complain that the only available fair alternative, namely union cards, is as a generality unreliable or less reliable than the fair election which that party has foreclosed. Respondent here never expressed any doubt, much less a good-faith doubt, as to the validity of the union cards as indices of the Union's representative status. It merely, as expressly stated by its counsel at the representation case hearing,28 refused to recognize the Union as bargaining representative. However, it has been pointed out by the highest authority that, faced with unambiguous union cards validly executed by a majority of employees in an appropriate bargaining unit, the cards being untainted by illegality or impropriety in procurement, an employer may not, in absence of good-faith doubt as to the Union's majority representation status, refuse to accord recogni- tion to the Union, and insist on a Board-conducted elec- tion certification as of right.29 Respondent's preelection letter of December 26 to its employees again indicated its determination not to bargain with the Union, upon the alleged ground that Respondent could not afford the Union- a subject itself for bargaining and not a valid reason for advance rejection of the collec- tive-bargaining principle.30 Respondent's actions, from mid-September on, with regard to its employees, the Union, and the bargaining unit, show every hallmark that, far from doubting the Union's majority, Respondent was persuaded of it and accordingly took measures to despoil that majority and thereby to deny to its unit employees the collective-bargaining right secured to them by the 29 United Mine Workers ofAmerica v Arkansas Oak Flooring Co , 351 U.S 62, 71-72, 74-75. See also N.L.R B. v. Winn-Dixie Stores, Inc., 341 F.2d 750, 755 (C.A. 6), cert. denied 382 U S. 830; Florence Printing Co. v. N.L.R.B., 333 F 2d 389, 291-292 (C.A. 4); N.L.R B. v Philamon Laboratones,-Inc, 298 F.2d 176, 179 (C.A. 2), cert. denied 370 U.S. 919. 30 The statutory obligation to bargain is not conditional upon employer belief that bargaining will have a successful or happy outcome from his point of view; refusal to bargain is not even excused by bona fide belief that bargaining will be futile. N.L.R B. v Sunrise Lumber & Trim Corp., 241 F.2d 620, 624-625 (C A. 2), cert denied 355 U.S. 818; N.L.R.B. v. Jacobs Manufacturing Company, 196 F.2d 680, 683 (C.A. 2). Nor does the fact that the employees' union is or may be persona non grata to the employer excuse the latter's refusal to bargain. N L R.B. v. Signal Manu- facturing Company, 351 F.2d 471 (C.A. 1),,cert: denied 382 U.S. 985; Deeco, Inc, 127 NLRB 666, 667. Choice of employees' bargaining representative is for employees , not employer; the worst choice from em- ployer's point of view maybe the best from employees' 350-212 0-70-33 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act. Cf. Joy Silk Mills v. N.L.R.B., 185 F.2d 732 (C.A.D.C.), cert. denied 341 U.S. 914.31 As shown above , the Union in fact represented a majority of Respondent's employees in the appropriate collective-bargaining unit,32 as evidenced by validly ex- ecuted union cards. The Union's majority representation strength being thus established, under the circumstances, considering Respondent 's unfair labor practices and its direct responsibility for foreclosure of the fair, free elec- tion which the Board 's Regional Director had scheduled to be held last January 6, a bargaining order should be is- sued, requiring Respondent without further ado to meet and bargain with the Union as collective-bargaining representative of its employees in the unit here found appropriate .33 I so recommend here.34 35 Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record, and pur- suant to Section 10(c) of the Act, I hereby make the fol- lowing: RECOMMENDED ORDER Alco Mining Co., Inc ., its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Interrogating any employee in violation of the Act with regard to his or any other employee 's union or other lawful organization membership , concerted activities or affairs, desires, or sympathies. (b) Directly or indirectly threatening any employee with mine shutdown , job loss, discharge , or any other "See also N.L.R.B. v. Mid-West Towel & Linen Service, Inc., 339 F.2d 958 (C.A. 7); Florence Printing Co. v. N.L.R.B., supra; N.L.R.B. v. Overnite Transportation Company, 308 F.2d 279,283 (C.A. 4); N.L.R.B. v. Philamon Laboratories, Inc., supra at 180; N.L.R.B. v. Trim/It of California, Inc., 211 F.2d 206, 209-210 (C.A. 9); The Lone Star Com- pany, 149 NLRB 688; Marriello Fabrics, Inc., 149 NLRB 333; Dazzo Products, Inc., 149 NLRB 182, enfd. 358 F.2d 136 (C.A. 2); Jas. H. Matthews & Co., 149 NLRB 161, enfd. 354 F.2d 432 (C.A. 8), cert de- nied 384 U.S. 1002. 32 l.e., in the very unit including truckdrivers for which Respondent ap- parently contended as appropriate in the representation case hearing on October 11 following its shifting of the four "Youngblood group" truckdrivers from their independent contractor status to its payroll, under the described weekly salary payback provision, on September 26. Were the appropriate unit to be considered to be a unit without truckdrivers, as the Union had petitioned for and continued to seek at the representation case hearing, the Union's majority representation strength would have been and would now be even greater. 33 In the described circumstances, the Board, with court sanction, has traditionally issued a bargaining order, even in absence of a bargaining de- mand or 8(a)(5) violation charge or finding. See, e.g., Wausau Steel Cor- poration v. N.L.R.B., 377 F.2d 369 (C.A. 7); United Steelworkers of America [Northwest Engineering Co.] v. N.L.R.B., 376 F.2d 770 (C.A.D.C.); N.L.R.B. v. Delight Bakery, Inc., 353 F.2d 344 (C.A. 6); Piasecki Aircraft Corporation v. N.L.R.B., 280 F.2d 575, 591-592 (C.A. 3), cert. denied 364 U.S. 933; Summit Mining Corporation v. N.L.R.B., 260 F.2d 894 (C.A. 3); N.L.R.B. v. Caldarera, 209 F.2d 265 (C.A. 8); D. H. Holmes Company v. N.L.R.B., 179 F.2d 876 (C.A. 5), for remedial order, see D. H. Holmes Company, Ltd., 81 NLRB 753, 756; Better Val- U Stores of Mansfield, Inc., 161 NLRB 762. 34 Respondent urges that there is no evidence that the Union attained majority strength in the proposed unit prior to December 9 and that any unfair labor practices occurring prior to that date could not have destroyed any majority attained on that date. This contention has at best -a degree of formalistic validity. To begin with, unfair labor practices prior to the Union's attainment of majority strength on December 9 (assuming that it lacked it prior to then) may well have prevented or delayed the at- tainment of that strength prior to December 9, and certainly in the usual coarse have constituted a continuing sapping factor of that strength. economic loss, detriment , disadvantage , reprisal, or retaliation , in the event of unionization or because of union or other lawful organizational membership, affilia- tion , sympathy , support, assistance , or activity, or for en- gaging or attempting to engage in the right to bargain col- lectively under the Act. (c) Granting , promising , or holding out in expectancy, directly or indirectly , to any employee any bonus or other benefit or thing of value to induce him or other employees to refrain or withdraw from union or other lawful or- ganizational membership , affiliation, sympathy , support, assistance , or activity ; or to refrain from engaging in the right to bargain collectively under the Act; or to deal with Respondent individually instead of bargaining collective- ly. (d) Directly or indirectly interfering with, restraining, or coercing any employee in the exercise of his right to designate and bargain collectively through any labor or- ganization of his choice. (e) Dealing directly or indirectly with any employee concerning terms or conditions of employment in such a manner as to bypass or derogate from the representative status of the employees ' exclusive collective-bargaining representative , or with an object of discouraging em- ployees' union affiliation or activities or right of self-or- ganization. (f) Interfering in any other manner with, or restraining or coercing , any employee in the exercise of his right to self-organization ; to form, join, or assist any labor or- ganization ; to bargain collectively through representa- tives of his own choosing ; to engage in concerted activi- Respondent, who created the situation resulting from its unfair labor prac- tices, is hardly in an appealing position to insist that each specific con- sequence of its unfair labor practices must be precisely paired to a certain- ty with its specific corresponding causative counterpart . Since Respond- ent put into motion those unfair labor practices, it would seem fairer to require Respondent to attempt the intellectually sterile task of "disentangl[ing] the consequences." (L. Hand, J., in N.L.R.B. v. Remington Rand, Inc., 94 F.2d 862 at 872 (C.A. 2), cert. denied 304 U.S. 576). Respondent's contention further overlooks the fact that it also per- petrated no less than two substantial unfair labor practices subsequent to December 9; namely , ( 1) its December 23 unilateral and unprecedented grant of cash bonuses to the unit employees , at a time when the Board's Regional Director had scheduled an election shortly to be held on the Union's Petition for Certification, and (2 ) its December 26 preelection coercive letter to the unit employees . It is appropriate that Respondent's unfair labor practices prior to the Union's attainment of majority status on December 9 also be taken into consideration in assessing the substantiali- ty and effect of Respondent's unfair labor practices subsequent to December 9, since it is common knowledge that that which comes later may take on character from that which has occurred before. Inasmuch as the described unfair labor practices occurred in a time continuum , involv- ing the same basic situation at the same place and the same group , it would offend commonsense to view these events other than as the intercon- nected whole which they in fact comprised. Thus viewed , it is apparent that Respondent's described actions in totality were geared toward ac- complishment of Respondent's avowed purpose of avoidance of any deal- ing with the Union even if it were the duly designated choice of its em- ployees as their collective-bargaining representative. 35 Respondent further contends that reliance on the union cards is precluded for purposes of determining the propriety of a bargaining order, since the Union allegedly made no demand upon it for recognition. As has already been shown (supra, fn. 40), a bargaining demand is not sine qua non to a bargaining order. Moreover, at the Board-conducted hearing on October 11 upon the Union's September 26 Petition for Certification, Respondent explicitly stated that it refused to recognize the Union. (Case lO-RC-6866, hearing transcript (G.C. Exh. 7 herein), p. 8.) There is no evidence that Respondent then or at any other time claimed that the Union did not have majority representation strength.upon the basis of any adduced, disclosed, or potential card showing. ALCO MINING CO. 501 ties for the purposes of collective bargaining or other mu- tual aid or protection ; or to refrain from any and all such activities. 2. Take the following affirmative actions necessary to effectuate the policies of the Act: (a) Upon request, recognize and meet and bargain col- lectively with International Union, United Mine Workers of America, as the exclusive bargaining representative of Respondent's employees in the following appropriate unit, with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment, and embody in a signed agreement any understanding reached: All production and maintenance employees, includ- ing truckdrivers, mechanics , and the mine clerk at or near Respondent's Brookwood, Alabama, strip min- ing operation , but excluding independent contrac- tors, employees of independent contractors , tempo- rary employees, office clerical employees, profes- sional employees , the watchman, guards, mine su- perintendent, foreman, and all other supervisors as defined in the Act. (b) Post at its mine premises in or near Brookwood, Alabama, copies of the attached notice marked "Appen- dix A."36 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.37 IT IS FURTHER RECOMMENDED that the complaints herein be and they are hereby dismissed as to all viola- tions alleged but not herein found. 36 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." 37 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Re- spondent has taken to comply herewith." other economic loss, detriment, disadvantage, reprisal, or retaliation in the event of unionization or because of your union membership , affiliation, sym- pathy, support, assistance, or activity , or for engag- ing or attempting to engage in the right to bargain with us collectively under the Act. WE WILL NOT grant, promise, or hold out in ex- pectancy, directly or indirectly, to any of you any bonus, payment, or other benefit or thing of value to induce you to refrain or withdraw from union mem- bership , affiliation , sympathy, support, assistance, or activity; or to refrain from engaging in the right to bargaifi with us collectively under the Act; or to deal with us individually instead of bargaining collective- ly. WE WILL NOT directly or indirectly interfere with, restrain , or coerce any of you in the exercise of your right to designate and bargain collectively through any labor organization of your choice. WE WILL NOT deal directly or indirectly with any of you concerning terms or conditions of employ- ment in such a manner as to bypass or derogate from the representative status of your exclusive collective-bargaining representative or with an object of discouraging your union affiliation or activities or right of self-organization. WE WILL NOT in any other manner interfere with, restrain, or coerce any of you in the exercise of your right to self-organization; to form, join, or assist any labor organization; to bargain collectively through representatives of your own choosing ; to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection; or to refrain from any and all such activities. WE WILL, upon request , recognize and meet and bargain with International Union, United Mine Workers of America, as your exclusive bargaining representative in the following appropriate unit, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and embody in a signed agreement any understanding reached: All production and maintenance employees, in- cluding truckdrivers, mechanics, and the mine clerk at or near our Brookwood, Alabama, strip mining operation, but excluding independent contractors , employees of independent contrac- tors, temporary employees, office clerical em- ployees, professional employees , the watchman, guards, mine superintendent, foreman, and all other supervisors as defined in the Act. APPENDIX A 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: WE WILL NOT question any of you in violation of the Act as to your union membership, affairs, desires, or sympathies. WE WILL NOT directly or indirectly threaten any of you with mine shutdown, job loss, discharge, or any ALCO MINING 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, 730 Peachtree Street, N. E., Room 701, Atlanta, Georgia, Telephone 526-5760. APPENDIX B Table I: Recapitulation and Findings Concerning Alleged Violations of Section 8(a)(1) 12/2/66 3 / 23/67 1966 Ref. Complt. Compit. Date No. (10-CA- (10-CA- or Witnesses Findings 6735) 6804) pprx. and Chief Par.No. Par.No. Date Allegation Substance G.C. Resp. Ext. Bases Disposition 1 -- 10 8/29 Interrogation of em- - -- -- Not Dismissed for ployees by Supt. found. absence of O.D. Osborn roof 2 -- 11 8/29 Threat by Supt. O.D. -- - -- Not Dismissed for Osborn of mine shut- found. absence of down rather than proof signing contract with Union 3 -- 12 9/12 Threat by Supt. O.D. -- - -- Not Dismissed for Osborn of never sign- found, absence of ing contract with proof Union 4 -- 10 9/15 Interrogation of em- 1.Herring Busha -- Found. Established ployees by Foreman 2.Battle l.GC wit- Busha nesses credited. 2.Busha in effect concedes. 5 -- 13 9/15 Threat by Foreman l.Herring Busha -- Found. GC Established Busha of discharge of 2.Battle witnesses employees if they credited. signed Union cards 6 7 -- 9/15 Threat by Foreman 1.Herring Busha -- Found. GC Established Busha of mine shut- 2.Battle witnesses down in event of 3.Lee credited. unionization 8 -- 10/14 Interrogation of em- - -- -- Not Dismissed for ployee by Supt. O.D. found, absence of Osborn proof 0 (Continued) APPENDIX B Table I (Concluded): Recapitulation and Findings Concerning Alleged Violations of Section 8(a)(1) 12/2/66 3/23/67 1966 Complt. Complt. Date Ref. (10-CA- (10-CA- or Witnesses Findings No. 6735) 6804) Apprx. and Chief Par.No. Par.No. Date Allegation Substance G.C. esp. xh. Bases Disposition 8 -- 12A 10/14 Threat by Supt. O.D. Lee - - Found. Established (added Osborn of loss of em- 1.Lee cred- at ployee benefits in ited. hearing) event of unioniztio 2.Uncontro- verted by O.D.Osborn, who did no testif . 9 -- 10 11/14 Interrogation of em- Hall usha - Found. Established ployees by Foreman 1.Hall Busha credited. 2.Busha in effect concedes. 10 -- 15 12/23 Unilateral grant of l.Jones 1.C.O. - Found. CC Established benefits to unit em- 2.Hall Osborn witnesses ployees during pend- (3.Herring 2.Stanle credited in ency before Board of (3.Street) preference Union Petition for to Resp. Certification witnesses. 11 -- 16 12/26 Threat of discharge 1.Jones - GC Pound. Established in event of union- 2.Hall Exh Total cir- ization, in preelec- 5 cumstances. tion letter'issued and distributed to em to ees by Res . APPENDIX C Table II: Composition of and Union Representation Strength in Collective Bargaining Unit on December 9, 1966 Union Card Signer? Finding re Inclusion or Exclusion from Reason(s) for Yes Bargaining Unit Finding; No.a/ Name Job (Date) No Included Excluded Comments 1 Osborn, O.D. Mine Supt. x x Admitted Super- visor in Resp. ans. to 2d com It 2 Duncan, V.E. Foreman x x Stipulated Super- visor at hearing . 3 Busha, B. Pit Foreman x x Admitted Supervi- sor in Resp. ans. to 2d com lt. 4 Gilbert, H.A. C b/ x x 5 Bittinger, E.G. C b/ x x 6 Higginbotham , E. Watchman- Guard x x Watchman and guard. 7 Stanley, B. C b/ x x 8 Browning , T.D C bi x (9/16) x GC Exh. 8-1 9 Dockery, V.E. C b/ x x 10 Dockery, H. C b/ x x 11 Hamner, E.B. C b/ x x 12 Stanley, R. C b/ x (9/18) x GC Exh. 8-2. See note c/ 13 Reid, L. C b/ x (9/17) x GC Exh. 8-3 14 Miller, V. C b/ x x 15 Sellers, J.E. C b/ x 11/17 x GC.Exh. 8-4 APPENDIX C Table II (Continued): Composition of and Union Representation Strength in Collective Bargaining Unit on December 9, 1966 Union Card Signer?_ Finding re Inclusion or Exclusion from Reason(s) for Yes Bargaining Unit Finding; No.a/ Name Job (Date) No Included Excluded Comments 16 Williams, B.J. C b/ x ( 9/19 ) x GC Exh. 8-5 17 Reid, S. C b/ x x 18 Hall, W. C b/ x ( 9/20 ) x GC Exh. 8-6 19 Youngblood, R.CC Truckdriver Supervisor x x Supervisory. See note d/. 20 Youngblood, R.E. Truckdriver x x See note d/. 21 Youngblood, G. C b/ Truckdriver) x x See note d/. 22 Crain, B.R. C b/ (Truckdriver) x (12/9) x GC Exh. 8-7. See note d/. 23 McMurray, L. C b/ x x 24 Clark, L.J. C b/ x x 25 Norwood, J. C b/ x 9/14 x GC Exh. 8-8 26 Loggins , G., Sr. C b/ x ( 9/16 ) x GC Exh. 8-9 27 Boyd, J. C b/ x 9/19 x GC Exh. 8-10 28 Carroll, B. C b/ x x 29 Harvey, F. C b/ x 9/20 x GC Exh. 8-11 30 Street, 0. C b/ x (9/G6) x GC Exh. 8-12. See note e/. 0 APPENDIX C Table II (Continued ): Composition - of and Union Representation Strength in Collective Bargaining Unit on December 9, 1966 Finding re Inclusion Union Card Signer? or Exclusion from Reason(s) for Yes Bargain in Unit Finding; No.a/ Name Job (Date) No Included Excluded Comments 31 Sellers, L. C b/ x x GC Exh. 8-13 . (9/21) 32 Green, R. C b/ x x GC Exh. 8-14 (9/21 ) 33 Jones, F. C b/ x x GC Exh. 8-15. (9/17) See note f/. 34 Green, C -C b/ x x GC Exh. 8-16 9/20 35 Williams, C.S., Jr. C b/ x x GC Exh. 8-17 ( 11/18 ) 36 Mathews, E. C b/ 12 1 x GC Exh. 8-23 37 Williams, T. C b/ 1 1 x GC Exh. 8-18 38 Jones, H. C b/ x x 39 Middlebrooks, R. C b/ x x 40 Franklin, H.A. Truckdriver x x Employee of inde- (11/30) pendent contract- or.See note d/. 41 Guthrie, C. Truckdriver x x Employee of inde- (11/30) pendent contract- or. See note d/. 42 Barton, D.T. Truckdriver x x Employee of inde- (11/30) pendent contract- or. See note d/. 43 Kell, L. Truckdriver x x Employee of inde- (11/30) pendent contract- or. See note d/. 0 ON APPENDIX C Table II (Concluded): Composition of and Union Representation Strength in Collective Bargaining Unit on December 9, 1966 Finding re Inclusion Union Card Signer? or Exclusion from Readon(s) for Yes Bargaining Unit Finding; No.a/ Name Job (Date ) No Included Excluded Comments 44 Osborn, N. General x x See note.&/. Laborer TOTALS i/ 1/ 23 (19 21 (16 35 9 19/35 Union card in in signers in unit. unit) unit) 70 19/35 or 54.3% Union card signers in unit. (For notes , see Appendix E.) APPENDIX D Table III: Composition of and Union Representation Strength in Collective Bargaining Unit on December 16, 1966 Finding re Inclusion union Card Signer? or Exclusion from Reason(s) for No.a/ Name Job Yes Bargain in Unit Finding; (Date) No Included Excluded Comments Same as December 9, 1966 (Table II, supra), except: 1. Exclude Miller, V. (No. 14 on Table II, supra) -- see note h/; and 2. Include: 44 Stone, J. C b/ x x 45 Mordecai, R. C b/ x x TOTALS 45 k/ ; if 23 (19 in 22 (17 in 36 9 19/36 Union card signers in unit. unit) unit) % 19/36 or 52.8% Union card signers in unit. 0 00 (For notes, see Appendix E.) APPENDIX E Notes to Tables II and III ALCO MINING CO. 509 (a) Le., number merely for counting purposes herein. (b) By parties' stipulation concededly "C" employed in bargaining unit here found appropriate , on date at head of Table II (or Table III). (c) Stanley's testimony , as Respondent's witness, in- dicates clearly that he had previously been a member of this Union for 11 years while elsewhere employed, that he signed the Union card here after reading it, and that he understood what he was doing and that his signature on the card would authorize the Union to "negotiate with the company" as well as to have an election . I find no sub- stantial evidentiary basis to support the contention that he was told or believed the card was limited only to authorizing an election. (d) Truckdrivers : There are eight - truckdrivers in question. They fall into two groups , which for reasons that will become apparent are for purposes of con- venience here referred to as the "Youngblood group" and the "Quinn and Peters group." It will be recalled that on September 26 the Union filed its petition with the Board for Certification as the unit em- ployees' exclusive bargaining representative. In the usual course, a hearing was held on that petition , before Board Hearing Officer H. Carlton Bryan, Jr., in Birmingham, Alabama, on October 11 (Case 10-RC-6866). The trans- cript of that hearing, which is in evidence , indicates that all of the parties here participated there, through counsel from the same law firms appearing here. The transcript of that hearing further shows a sharp cleavage of position between the Union and the Employer concerning the status of , truckdrivers at the mine. The Union there took the position that: (1 ) truckdrivers at the mine comprising what I here refer to as the "Youngblood group" (i.e., R. C. Youngblood, R. E. Youngblood, Gary Youngblood, and Bill Ray Crain) should not be included in the unit since they were "employees of an independent contrac- tor" and not covered by the union petition; (2) trucks were being operated at the mine by an independent con- tractor or contractors in addition to the trucks operated by the foregoing "Youngblood group"; (3) the "Young- blood group" truckdrivers should in any event be ex- cluded from the unit because of a colorable purported change in their status, from independent contractor and employees of an independent contractor to alleged em- ployees of the Employer (i.e., of the mine, Respondent here), during the week preceding the representation case hearing -- ostensibly to alter the arithmetic of the representation fraction (i.e., over 50 percent) required by the Union to prevail ; and (4) even if regarded as em- ployees, truckdrivers are inappropriate for inclusion in the unit and are not sought or desired to be represented by the Union. The Employer (Respondent here) there took the position that: (1) the "Youngblood group" of truckdrivers had been placed on the Employer's payroll the week before the hearing (i.e., substantially subsequent to the date the Union filed its Petition for Certification), prior to which they had worked for an independent con- tractor (Youngblood) and were paid on a tonnage-hauled basis; and (2) one Quinn, not employed by Respondent, was also believed to be hauling coal for Respondent at the mine. The record as made at the representation case hear- ing consisted in large part of a mixture of vague and in- conclusive testimony by a witness (Employer's office manager, Drummonds) lacking knowledge of facts, and equivocations and conclusory and argumentative conten- tions. Upon the record as made in the representation case, the Acting Regional Director for Region 10 in his Oc- tober 19 Decision and Direction of Election: (1) defined the appropriate bargaining unit to include "truckdrivers" (not sought or included by the Union in its September 26 petition), "but excluding independent contractors, em- ployees of independent contractors , [and] temporary em- ployees ...."; (2) pointed out that since the record be- fore him did not show whether there are truckdrivers in addition to the four added to the payroll in the "week of October 3" (comprising the "Youngblood group"), no determination was being made with regard to any such possible additional truckdrivers ; but that if it transpired that there are such additional truckdrivers and that they are independent contractors or employees of independent contractors "they will be excluded" (but would be per- mitted to vote challenged ballots pending determination of their status); (3) determined that "With respect to the four [truckdrivers) on the payroll [i.e., the "Youngblood group"], I shall include them in the unit as the Peti- tioner's [i.e., Union's] asserted ground for exclusion [i.e., that they were not regular employees on the date the Union's petition was filed] is invalid."1 Although the Acting Regional Director ' s October 19 Decision and Direction of Election was not appealed, it was "rescinded" and the Union's September 26 Petition for Certification was dismissed by order of the Regional Director on April 5 , 1967, in view of the pendency of the instant unfair labor practices cases seeking a remedial bargaining order. There is no indication that this April 5 order has been appealed. At the instant unfair labor practices cases hearing, the Union and Employer, represented by the same law firms as at the representation case but by different members, took the following positions with regard to the truckdrivers: (1) Position of Union (and General Coun- sel): (a) as to the four truckdrivers in the "Youngblood group," only two - i.e., Gary Youngblood and Bill Ray Crain-should be included in the unit, but that R. C. Youngblood and R. E. Youngblood should be excluded as supervisors ; and (b) as to the four other truckdrivers, comprising what is here called the "Quinn and Peters group" (viz, Franklin, Guthrie, Barton, and Kell), all four should be included in the unit, even though not appearing on the payroll, since their work was substantially the same as that of the "Youngblood roup." (2) Position of Respondent: (a) as to the four truckdrivers in the "Youngblood group," that all four should be included in the unit since they are and are shown as employees on the Employer's payroll; and (b) as to the four other truckdrivers, comprising the "Quinn and Peters group," that they should be excluded from the unit since they are 1 The Acting Regional Director's determination continues. "The Board the payroll only for the purpose of padding it for eligibility purposes. As has historically governed eligibility to vote by the payroll immediately such allegation smacks of an alleged unfair labor practice, it may not be preceding the date of the issuance of a decision and direction of election , considered in a representation proceeding Jay Kay Metal Specialties rather than the date of filing the petition. The Petitioner [Union] also Corporation, 129 NLRB 31, 33." urges that the truckdrivers are not bonafide employees but were added to 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD. not shown on the Employer's payroll because they are employees of an independent contractor or contractors Quinn and Peters. Notwithstanding the foregoing positions previously taken, counsel for Respondent now on brief "concedes" that the four truckdrivers comprising the "Quinn and Peters group" are in the unit, but contends that the union cards which they each concededly signed should not be counted since allegedly improperly procured through the urging or insistence of their employer or supervisor. Since it is apparent that this attempted "concession," contrary to positions firmly taken by Respondent heretofore with the Board, is patently a belated attempt to alter the arithmetic of the situation by increasing the denominator (i.e., total number of employees in the unit) while not af- fecting the numerator (i.e., total number of valid Union card signers) of the critical fraction determinative of the issue of the Union's representation strength,2 I reject it at the threshold. Plainly, a party cannot alter or remold facts so as to establish or disestablish a majority by such jug- gling with the Board in the form of a purported 11th hour unilateral "concession." On the subject of the four "Youngblood group" truckdrivers, Respondent's president, C. O. (Buster) Osborn, testified at the instant hearing that from July 11 to September 26 they had hauled for Respondent at the mine (washer to railhead, about a mile, or to river, about 8 miles , i.e., to marketing transport) at a fixed price per ton under a contract; and that on September 26, i.e., the very day the Union filed its Petition for Certification with the Board, they were placed on Respondent's payroll as employees and have remained there since, with regular social security and tax withholding and other deductions as in the case of other employees; that the method of pay- ment since September 26 has been by direct weekly pay- ment (same as other employees) by Respondent on an hourly basis (amounting to approximately $60 to 75 per week); that in addition to this weekly pay, at the end of the month Respondent pays to R. C. or R. E. Young- blood 3 a lump sum (which has ranged from around $2,000 to $7,000) based upon the total tonnage hauled by this group during the preceding month, minus the weekly sums paid to the group members (including R. C. Young- blood) on the hourly basis; that R. C. Youngblood owns all trucks used by this group and pays for the insurance and usually also for repairs on those trucks, as well as for gas and oil, out of the month-end lump sum based upon tonnage hauled; that these trucks are not used for any purpose other than work at Respondent's mine; and that R. C. Youngblood hires and fires the drivers in this group, and any "problem with the trucks or anything" or "about a driver" (including even firing) is discussed by manage- ment with R. C. Youngblood, who has "authority" over the other three men in his group and assigns and shifts these men around. On the subject of the four "Quinn and Peters group" truckdrivers, Osborn testified at the instant hearing that beginning around August 1 they had commenced hauling coal for Respondent from pit to washer (up to about 3 miles, involving going off the mine property, but, like the "Youngblood group," ordinarily within the mine premises); that they work from 2 to 11 hours per day, de- pending upon the amount of trucking available for them; that the trucks used by them are owned by "Quinn and Peters," with whom Respondent had a contract to haul coal at a fixed price per ton, paid to Quinn and Peters upon the basis of railroad invoice weights; that Quinn and Peters were paid by Respondent by the ton, and Quinn and Peters in turn paid their drivers by the load; that these drivers took orders from Quinn in the usual routine, and Quinn received these from Mine Superintendent Osborn, Foreman Duncan, or Pit Foreman Busha; that Quinn and Peters also engaged in trucking other than for Respondent (although Osborn appears to have stated the contrary in a pretrial affidavit to the Board); that Quinn and Peters paid for insurance, gas and oil, repairs, and maintenance on these trucks, and Respondent at no time did; that none of these drivers has at any time been on Respondent's payroll, that Respondent has never paid any of these drivers nor made any social security pay- ments for them, and that they are not covered by Respond- ent's workmen's compensation or unemployment insur- ance; and that since there came a time when Respond- ent was unwilling to pay Quinn and Peters more money, Respondent terminated its arrangement with Quinn and Peters on February 1, 1967, at which time Respondent purchased its own trucks which it has since been operat- ing with its own employees (not Franklin, Guthrie, Bar- ton, or Kell). Further according to Osborn's testimony, Respondent had fully or partly financed one or more trucks owned by Peters, R. C. Youngblood, and possbily also by Quinn; in December (later, during examination by Respondent's counsel, changed to October) Respondent sold two trucks to R. C. Youngblood and two to Peters, each of whom at the time already owned other trucks; the trucks of both groups are ordinarily parked in a designated area on the minesite; and there is no interchange of drivers of either group to trucks of the other group. There was no testimony by any driver of the "Young- blood group." "Quinn and Peters group" truckdrivers Barton, Guthrie, and Kell testified credibly that they were hired by, drove for, and paid only by Quinn (Guthrie; also Franklin) or Peters' (Barton and Kell); and that they received wage payments from the foregoing em- ployers (Guthrie from Quinn, Kell from Peters) by check (or, in Guthrie's case, sometimes in cash) of those em- ployers, not from Respondent. Upon the entire record thus presented with respect to these eight truckdrivers, I find and conclude: (1) With regard to the "Youngblood group": Truckdrivers R. E. Youngblood, Gary Youngblood, and Billy Ray Crain should be and are included in the bargain- ing unit here found appropriate. R. C. Youngblood should be and is excluded, since the testimony of Respondent's President C. O. Osborn clearly establishes his powers and functions (notably those to hire, discharge, assign, 8 The evidence shows that all four drivers comprising the "Quinn and Peters group" signed what would be valid union cards entitled to be counted in the proposed unit, provided they were members of that unit. Obviously, mere signature of a union card does not establish the signer to be an employee or member of the unit . It is also observed, in passing, that of the "Youngblood group" of four truckdrivers added by Respondent to its payroll , only Crain was a union card signer. 8 There was considerable confusion and uncertainty at the hearing as to who is R. C. and who is R. E. Youngblood. In the interest of clarity, for purposes of this decision hereafter the Youngblood who received these month-end payments and who acted as boss and general factotum of the "Youngblood group" of truckdrivers will be assumed to be and will be referred to as R. C. Youngblood. 4 Peters is also referred to in the record as "Peterson." ALCO MINING CO. and responsibly direct his subordinates; i.e., the other three truckdrivers) to be supervisory within the meaning of Section 2(11) of the Act. Cf. Indiana Refrigerator Lines, Inc., 157 NLRB 539, 549-550. In thus resolving the unit status of the four truckdrivers comprising the "Youngblood group," I have, among other things, given effect to' the parties' stipulations concerning the ap- propriateness of, including Gary Youngblood and Crain in the unit, the essential indistinguishability of the work and status of R. E. Youngblood from that of Gary Young- blood and Crain; and, of course, credited testimony of Respondent's President C. O. Osborn as recounted above. I am also mindful of the record before, and the Oc- tober 19 decision of, the Acting Regional Director in the representation case, as well as the Regional Director's subsequent rescission of the decision therein. With regard to Respondent's insistence that the Trial Examiner is "bound" -at any rate, it would seem, for purposes cur- rently to be favorable to Respondent's present posi- tion-by the Acting Regional Director's October 19 deci- sion, it may be observed that counsel's open concession upon the record at the instant hearing that they were here volte-face reversing positions elected by their own law partners at the representation case hearing, thereby removing the underpinning for the Regional Director's determination, would appear to render untenable the cur- rent contention that the Trial Examiner nevertheless here continues to be rigidly bound thereby to the extent that it appears to lend support to Respondent's present position. Furthermore, it is noted that in the representation case the supervisory status of R. C. Youngblood was not litigated; that although the facts with regard to R. C. Youngblood were obviously within Respondent's knowledge at the representation case hearing, for reasons best known to Respondent it failed to present them to the Board or to produce at that hearing a knowledgeable wit- ness or to display candor regarding those facts; that the Acting Regional Director's decision expressly excepts all supervisors from the unit, as indeed they must be; that 5 The union cards of these four drivers ("Quinn and Peters group" - Franklin, Guthrie, Barton, and Kell) on their face indicate that the Union itself entertained uncertainty as to their true employment status, since the Union added modifying language to the cards - i e., "employee of Alco Mining Co Inc., through Peters Coal Co." Union Representative Ses- sions conceded that the Union considered these four to be "in a somewhat different category" than the other employees, with their status as em- ployees questionable since apparently not directly employed by Respond- ent. (Although a similar qualifying phrase is to be found on the card of "Youngblood group" truckdnver Crain, it is of no significance, not only in view of the findings with regard to his status as an employee of Re- spondent but also because of the parties' stipulation including him as a member of the bargaining unit) 6 However, were I otherwise to reach this question, I would not be prepared to find and conclude upon the basis of the record as made that it has been established by substantial credible evidence, as required, that these ' four union cards should be voided on the suggested basis. The evidence (testimony of Barton, Guthrie, and Kell) shows merely that the four "Quinn and Peters group" truckdnvers were furnished transportation by Quinn - the employer of two (i.e , Franklin and Guthrie) of the four, and not the employer or supervisor of the other two (i e., Barton and Kell), nor an employee, supervisor or agent of Respondent with regard to any of the four,, but only an independent contractor with Respondent - in meeting with Union Representative Sessions to decide whether to sign union cards, which they understood and wanted to sign The mere fact that Quinn had remarked in effect that he, as an independent contractor, could recoup from Respondent any higher wages he (Quinn) might have to pay them as union members, would not in and of itself upon the record presented appear to constitute sufficient reason for voiding the union 511 that decision was formally rescinded, with no review sought of that action; that the issue of the supervisory status of R. C. Youngblood was tendered and fully litigated here, as detailed above; and that every apparent consideration of fairness, equity, and administrative legal propriety is served by arriving at a result based on the true facts as adduced "on a fully litigated record," rather than on wooden reliance upon rigid procedural technicali- ties of dubious applicability. Cf. The Maxwell Company, 164 NLRB 713. (2) With regard to the "Quinn and Peters group"; As urged by Respondent at the instant hearing, all four truckdrivers comprising this group should be and are ex- cluded from the bargaining unit here found appropriate. Undisputed credited testimony establishes that these four truckdrivers have at no time been employees of Respond- ent, but on the contrary at all material times employees of an independent contractor or contractors. It is noted in this connection that the Acting Regional Director ex- pressly refrained from making any determination respect- ing the unit status of any truckdrivers other than those in the "Youngblood group," while also explicitly excluding from the unit employees of independent contractors.5 The specific evidentiary facts here adduced appear to portray a situation lacking the tightly integrated full control by common carrier trucker respondents and other features present in Deaton Truck Lines, Inc., 143 NLRB 1372, enfd. 337F .2d 697 (C.A. 5), cert. denied 381 U.S. 903; The Maxwell Company, 164 NLRB 713; and Indiana Refrigerator Lines, Inc., 157 NLRB 539, which impelled inclusion of all drivers, including owner-drivers, multiple- owner-drivers, and drivers of other owners, within the units there found to be appropriate. In view of this disposition excluding the four truckdrivers of the "Quinn and Peters group" from the bargaining unit, I do not reach the question, now sought to be injected by Respondent (via its "concession" that they may be considered to be in the unit), that their union designation cards should be voided as the product of supervisory procurement.6 cards of Quinn's employees as well as those of Peters ' employees as matter of law It is to be noted that were the "Quinn and Peters group" tuckdnvers to be considered within the unit upon the foregoing or any other basis (cf., e.g, Sec. 2(3), Greyvan Lines, Inc v Harrison, 156 F.2d 412 (C A. 7); affil. sub nom United States v. Silk, 331 U S 704 , 713, Bon Hennings Logging Company v. N.L R B., 308 F.2d 548 (C A 9); Deaton Truck Lines, Inc, 143 NLRB 1372, enfd 337 F.2d 697 (C A. 5)), the Union's representation strength as here found would not be diminished but enhanced as of the critical dates above considered The question of the ef- fect, as a possible unfair labor practice or otherwise, of Respondent's ac- tion on September 26 (the date the Union filed its Certification Petition with the Board) purportedly integrating four of its independent contractor oruckdrivers (Youngblood group) into its regular staff by showing them on its payroll under the described arrangement (including a recogpment fea- ture by Respondent of their weekly "pay" by deducting it from their monthly tonnage payment), is not here considered since neither tendered by the pleadings nor litigated. The same holds true for Respondent's February 1, 1967, replacement of the "Quinn and Peters group" truckdrivers (all union card signatories) by its own alleged additional truckdrivers supposedly for economy reasons not here established. Cf., e g , Bon Hennings Logging Co. v. N L R B., 308 F.2d 548 (C.A. 9) ' Before leaving the subject of the truckdrivers, it may , finally, be ap- propriate to recognize, without giving effect to the circumstance , that if the bargaining unit as petitioned for by the Union, namely one not includ- ing any truckdrivers , had been or were now to be deemed appropriate herein - or perhaps more appropriate than a unit including truckdnvers, in view of the described September 26 and subsequent actions of Respond- (Footnotes continued on following page) 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) As Respondent's witness, Street testified that he signed the union card in evidence, and that Union Representative Sessions (who presented the card to him) told him "That to sign this card would allow us to have an election .... The signing of this card would only permit us to vote on the union, whether we wanted it or not. And to become a member of the union would come after we voted the union in." Conceding that he read the card, Street now claims "not .... thoroughly," while testifying that "I was under the impression, at the time, that it said membership card." On cross-examination, however, he appeared to alter his testimony by claiming he was unaware that the card was a "membership card." Nevertheless, also on cross-examination, he also swore that "I distinctly remember hearing him [Sessions] say, `This is a membership card allowing you to vote on the union."' Street also conceded he was unable to recall the whole conversation with Sessions, and insistently swore that he had never discussed this case with anyone, not even with C. O. Osborn or Respondent's counsel. I was adversely impressed with Street's testimonial demeanor as observed. In view of this strong impression, and his contradictory, evasive, and seemingly inaccurate testimony, his confessed alleged ability to recall only a portion of the conversation at the time he signed the card, and his admission regarding having read the card - the language of which is clear and unambiguous and which does not so much as mention election or restriction of use for the purpose of election - I am unable to credit so much of Street's testimony as suggests that he was told or led to believe, or was under the impression, that by sig- ning this card he was only authorizing an election to be held. Cf. IUE [S.N.C. Mfg. Co.] v. N.L.R.B., concurring op. of Burger, J., 352 F.2d 361 at 363-364 (C.A.D.C.), cert. denied 382 U.S. 902; N.L.R.B. v. Cumberland Shoe Corporation, 351 F.2d 917 (C.A. 6); N.L.R.B. v. Winn- Dixie Stores, Inc., 341, F.2d 750 (C.A. 6), cert. denied 382 U.S. 830; N.L.R.B. v. Mid-West Towel & Linen Ser- vice, Inc., 339 F.2d 958, 963 (C.A. 7); N.L.R.B. V. Stow Manufacturing Co., 217 F.2d 900, 902 (C.A. 2), cert. de- nied 348 U.S. 964; Joy Silk Mills v. N.L.R.B., 185 F.2d 732, 743 (C.A.D.C.), cert. denied 341 U.S. 914; N.L.R.B. v. Sunshine Mining Co., 110 F.2d 780 (C.A. 9), cert. denied 312 U.S. 678; American Cable Systems, Inc., 161 NLRB 332; Dubois Fence & Garden Co., Inc., 156 NLRB 1003; Gorbea, Perez & Morrell, S. en C., 133 NLRB 362, 370, enfd. as modified 300 F.2d 886, 887 (C.A. 1). I accordingly find and conclude that Street's union card, which has at no time been canceled or requested to be canceled or withdrawn, was and is valid for the purposes, specified therein, and that it should be counted in determining union representation strength. (f) The testimony of Floyd Jones, called as Respondent's witness, indicates that he was formerly a member of the Union when elsewhere employed and that he apparently was desirous of or willing to resume his membership, par- ticularly to retrieve his pension eligibility. According to Jones' testimony, when he signed the card Union Representative Sessions mentioned that "I believe we are (Footnotes' continued from preceding page) ent in attempting to dilute the union representation strength by shifting the "Youngblood group" truckdrivers onto its payroll pursuant to the described weekly pay refund arrangement - an unsavory "numbers game" or game of musical chairs, apparently within the Employer's ready control by shifting ubiquitous truckdrivers on and off its payroll, could have been avoided, and an avenue of escape from basic policies and purposes of the Act could have been closed for the future as well as here. Cf E. H. going to have an election pretty soon." I am fully per- suaded and find that under the circumstances shown, Jones fully and clearly apprehended that he was signing the card in order to resume and reinstate himself into union membership, and that he fully intended and desired to do so, of his free and uncoerced will; that Sessions' statement to him did not signify, and was not intended by Sessions or understood by Jones to signify, that the card was limited to the purpose of authorizing an election. It is noted in this connection that when Jones signed the card (November 17), the Union had already petitioned (Sep- tember 26) for certification and had every reason to be- lieve an election would be held "pretty soon," as Sessions said (Acting Regional Director's Decision and Direction of Election dated October 19). Jones' union card ac- cordingly should be and is counted in determining union representation strength herein. (g) Testimony of Respondent's President C. O. Osborn shows that his 20-year-old brother Nicky Osborn (son of Mine Superintendent O. D. Osborn) has been employed at the mine since its inception, as a general all-around worker, although he also attends school while school is in session; that during summers (when school is not in ses- sion), he works at the mine full time (40-60 hours per week), while during school sessions he works at the mine nights and Saturdays (15-25 hours per week), this ar- rangement being of several years' standing. Respondent accordingly contends that Nicky Osborn should be in- cluded in the bargaining unit. General Counsel and the Charging Party contend he should be excluded because he is the Mine Superintendent's son and at one time pos- sessed supervisory authority. I credit the uncontroverted testimony of C. O. Osborn regarding Nicky Osborn's em- ployment arrangement with and activities at the mine, as described above. It is true that ordinarily (cf. Marriello Fabrics, Inc., 149 NLRB 333, 345; Bridgeton Transit, P.A. Mueller and Sons, Inc., 105 NLRB 552, 553), although perhaps not inevitably (cf. Cherrin Corporation v. N.L.R.B., 349 F.2d 1001 (C.A. 6); cert. denied 382 U.S. 981), a sole corporate stockholding principal's or partner's child falls within the exception of "any in- dividual employed by his parent" in Section 2(3) of the Act's definition of "employee." However, the record here is barren of evidence as to the share ownership of Respondent. Supposition, speculation, or assumption that Mine Superintendent O. D. Osborn, the father of Nicky Osborn (as well as of Nicky Osborn's brother, C. O. Osborn, president of Respondent), is the sole (or even a) stockholder of Respondent cannot warrant'a finding to that effect. Nor is there evidentiary warrant for a finding that Nicky Osborn enjoys special status because of the family (i.e., not necessarily parent-child) relationship (cf. Uyeda v. Brooks, 365 F.2d 326 (C.A. 6); N.L.R.B. v. Sexton, 203 F.2d 940 (C.A. 6); Kern County Broad- casters, Inc., d/b/a Kero Radio-TV, '116 NLRB 194; International Metal Products Company, 107 NLRB 65, 67; with which cf. Dan Howard Mfg. Co., 158 NLRB 805, fn. 4, and 816; and Sullivan Surplus Sales, Inc., 152 NLRB 132, 155) or has supervisory functions. Upon the Koester Bakery Co., Inc, 136 NLRB 1006 (driver-salesmen), with which, cf., N.L R.B. v. Tallahassee Coca-Cola Bottling Co., 381 F.2d 863 (C.A 5) (driver-salesmen). In such event, if the appropriate bargaining unit had been or were now to be defined as a conventional production and main- tenance unit without truckdnvers, the Union would command an even clearer majority (i e., 18/32 or 56 .3 percent on December 9, and 18/33 or 54.5 percent on December 16) ALCO MINING CO. record here made he should therefore (as a regular full- time employee during summers and a regular part-time employee at other times) be and is included in the bar- gaining unit. The Horn & Hardart Company, 147 NLRB 654, 658. (h) Miller appears on Respondent's payroll for the week ending December 9, but not December 16. The testimony of Respondent's president, C. O. Osborn, in- dicates that Miller is a common laborer who was laid off on and has not been recalled since December 9, although he may be called back if needed. The transcript of the representation case (10-RC-6866) hearing held on Oc- tober 11 before Board Hearing Officer H. Carlton Bryan, Jr., indicates that the Union there contended that Miller was an as sistant to a carpenter named Simmons, who completed a specific task he was hired to do at the mine; and that counsel of the Employer (here Respondent) there contended that these two individuals were em- ployees according to a "record" in his possession which was not produced in evidence. Under these circum- stances, in his October 19 Decision and Direction of Election the Acting Regional Director stated that he was refraining from determination of Miller's status, but that "If they [i.e., Miller and Simmons; the latter is not here claimed as an employee] were employed only for a specific job they will be excluded as temporary em- ployees." Under the circumstances, particularly since Respondent has been on clear notice since the Acting Re- gional Director's October 19 decision of the necessity for proof as to the true nature of Miller's former employment, and Respondent has failed to adduce satisfactory factual evidence thereof, it is found and concluded that it has not been established by substantial credible evidence, as required, that Miller was an employee of Respondent who should be counted in the bargaining unit at any time after December 9, 1966; and that, although Miller should be and is counted as a member of said unit for the week ending December 9, he should not be and is not counted therein for or after the week ending December 16, 1966. (i) Based on Respondent's payroll for week ending December 9 (G.C. Exh. 3-B), except for truckdrivers Franklin, Guthrie, Barton, and Kell (i.e., "Quinn and Peters group") shown in column 1 of Table II, Appendix C, as Nos. 40, 41, 42, and 43. (j) Although the name of David Roland does not appear on Respondent's payrolls in evidence , and Respondent did not in the representation case (10-RC-6866) hearing on October 11 before Board Hearing Officer Bryan claim Roland as an employee , Respondent now contends that Roland should also be included in the bargaining unit as a shovel operator on ,temporary", layoff. On the subject of Roland, Respondent's president, C. O. Osborn, testified that he worked for, Respondent full time as a cpal-loading shovel operator from early 1965 to late 1966. After first testifying that Roland was "temporarily laid off" on December 2', Osborn later testified that Ro- land has not worked for Respondent since "about Oc- 513 tober 1966." Osborn's testimony shows that the reason Roland was laid off was Respondent's discontinuance in its operations of the shovel method of coal-loading and its replacement with a front-end loader . Notwithstanding Osborn's presently professed "intention ... of someday recalling him to work if he wants the job ," Osborn con- ceded that Roland was laid off because Respondent "didn't have any further use for [the shovel Roland was operating] because of its peculiar size or something," and that Roland is unqualified to operate a dragline or, so far as is known, other equipment at Respondent's mine. Con- cededly, Roland , who has found other employment, has not (with the possible exception of an alleged short spell in December) been recalled to work by Respondent as of the date of the hearing herein in May 1967. The picture presented with regard to Roland's future prospects of em- ployment with Respondent is too vague and indefinite to warrant including him in the collective-bargaining unit of employees at the mine. Respondent did not succeed in persuading me that it has any real intention of reemploy- ing him or of even offering him reemployment. I find and conclude that Roland should not be and is not considered as a member of the collective-bargaining unit, since his employment with Respondent ceased a reasonably sub- stantial time ago with discontinuance by Respondent of the only equipment he ever operated for it or has been shown or is known to be qualified to operate ; Respondent has no real intention of keeping his job alive, recreating it, or recalling him to its employment ; there is little if any likelihood of his return to Respondent's employment; he has found other employment; and he no longer has any community of bargaininginterest with the other unit em- ployees, and it would be unrealistic to consider him as part of this bargaining unit. He is accordingly not counted therein. Cf. Sullivan Surplus Sales, Inc., 152 NLRB 132, 157; Booth Broadcasting Company, 134 NLRB 817, 823; Ballas Egg Products, Inc., 121 NLRB 107, 109; Norris-Thermador Corporation, 118 NLRB 1341, 1343. (k) Based on Respondent's payroll for week ending December 16 (G.C. Exh. 3-A), with same four excep- tions described in note (i) supra. (1) Respondent's counsel urges that coercion of union card signers is established or evidenced here by the fact that coal mine strikes occurred throughout Alabama dur- ing April and May preceding the mid-September signing of the earliest card here. This contention - clearly an af- terthought, since Respondent at no time even suggested this as its reason for not dealing with the Union - is re- jected, no connection whatsoever to the cards here being established or warranted in any way upon the evidence presented. There is no substantial credible evidence as to any illegality , coercion, misrepresentation, or impropriety of any nature in the procurement, delivery, or use of any of the cards here counted as establishing the union majority. In this connection, it is noted that union litera- ture distributed to employees indicating a Board-con- ducted secret election would be held, is subsequent to the filing of the election petition by the Union.