Collins Mining Co.

COLLINS MINING COMPANY C. E. Collins and O. C. Collins, d/b/a Collins Mining Company and United Mine Workers of America, District No. 6. Cases 9-CA-4126-1, -2, 9-CA-4318-1,-2, and 9-RC-7089 June 30, 1969 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND ZAGORIA On November 29, 1968, Trial Examiner David S. Davidson issued his Decision' in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, 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 also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended dismissal of those allegations. He further found that certain of the Union's objections to the election in Case 9-RC-7089 should be sustained, and recommended that the election be set aside. Thereafter, the Respondent filed a Motion for Disclosure and exceptions to the Trial Examiner's Decision and a supporting brief.' The Charging Party filed a brief in opposition to Respondent's Motion for Disclosure and an answering brief to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner,' only to the extent consistent herewith. .The Trial Examiner issued an errata on December 4, 1968, correcting typographical errors in his Decision. 'The Respondent's request for oral argument is hereby denied , as in our opinion, the record, including the exceptions and briefs, adequately presents the issues and positions of the parties. 'The Respondent has excepted to the Trial Examiner's credibility resolutions, but we are not persuaded that a clear preponderance of all the relevant evidence is contrary to the Trial Examiner's credibility findings Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188 F.2d 362 (C.A 3). 'Subsequent to the issuance of the Trial Examiner's Decision, the Respondent filed a motion for disclosure . We have examined the arguments in support of the motion and find that the motion lacks merit. The record clearly shows the Trial Examiner, in all respects, conformed to Section 102 . 118 of the Board's Rules and Regulations, Series 8, as amended , which is patterned after the Jencks Act , 18 U S.C. 3500. Accordingly, the motion is denied . See N L. R.B. v. Clement Brothers Co., 407 F.2d 1027 (C.A. 5). 221 1. We agree with the Trial Examiner, for the reasons stated in his Decision, that Respondent violated Section 8(a)(1) and (3) of the Act.' 2. For the reasons detailed hereafter, we do not agree with the Trial Examiner's further finding that the Respondent refused to bargain in violation of Section 8(a)(5) of the Act nor with his recommendation that a bargaining order is warranted here. The record discloses that at the beginning of the Union's organizing campaign, the Union sent identical letters with an enclosed authorization card to as many employees whose names and addresses it could obtain from employee contacts. The letters, after informing the employees of the organizing attempt, contained, along with campaign statements, the following: If you are interested, will you please sign and return the enclosed card in the self-addressed stamped envelope provided for this purpose. Signing this card will not obligate you in any way, and no one will see these cards except the undersigned and the organizer in charge of your area. Our only reason for securing the cards are because the law requires proof that at least 30 percent of the employees at a given mine want the Union before they will conduct a secret election. NO REPRESENTATIVE OF THE COMPANY IS PERMITTED TO SEE THESE CARDS AT ANY TIME. [Emphasis supplied.] The enclosed authorization cards were not so limited but contained language designating the Union as bargaining representative. The record establishes that at least 25 cards of the 67 received were mailed back to the Union." Although the Trial Examiner did not have the benefit of our decision in Silver Fleet, Inc., 174 NLRB No. 141, which issued subsequent to his Decision, he concluded that because of the representations used in securing the cards, the mailed cards could not be counted as valid designations of a bargaining representative under the principles set forth in Levi Straus and Co., 172 NLRB No. 57, and McEwen Manufacturing Co., 172 NLRB No. 99. He thereafter concluded, however, that the Union did represent a majority of employees because in addition to signing authorization cards, a substantial majority of Respondent's employees joined in a strike called after a union-sponsored meeting at which it was decided to strike in protest of alleged discriminatory discharges and layoffs. In essence, the Trial Examiner has found that while the initial solicitation and delivery of the authorization cards was for a conditional purpose, namely an election, the substantial employee support 'Absent exceptions thereto, we adopt, pro forma, the Trial Examiner's dismissal of certain alleged 8(a)(l) and (3) violations. `The Trial Examiner found there were 86 employees in the appropriate unit at the time of the demand and that 63 of those in the unit had signed cards Four employees who had signed cards are not within the appropriate unit Accordingly, their cards are not counted 177 NLRB No. 55 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the subsequent strike indicated that a majority of the employees wanted the Union to represent them for bargaining. Accordingly, the Trial Examiner recommended, inter alia, the setting aside of the election and an order requiring the Respondent to bargain with the Union. Although we agree with the Trial Examiner's initial conclusion that the authorization cards received in the mail were solicited for a conditional purpose and are unreliable for the purpose of establishing majority,' we find, contrary to the Trial Examiner, that in the circumstances related, employee support for the strike is insufficient to either validate the previously executed authorization cards or to establish that a majority of employees designated the Union as its bargaining representative. It is significant, and the record shows, that the strike was not called for the purpose of recognition, but was called in protest against the unfair labor practices which preceded it. Respondent's refusal to recognize did not occur until sometime after the strike was called. Moreover, despite Respondent's unfair labor practices which preceded the strike, the Union did not allege an unlawful refusal to bargain in its initial charges filed at the commencement of the strike, and accepted a settlement almost 2 months later which contemplated an election . In these circumstances we do not feel it has been established that a majority of the employees wanted the Union to represent them. Accordingly, we shall dismiss those portions of the complaint alleging a violation of Section 8(a)(5). In these circumstances, we do not deem it appropriate to base a bargaining order on the unfair labor practices found to have occurred, and therefore do not adopt that part of the Trial Examiner's Decision which recommends that Respondent be ordered to bargain with the Union. However, we conclude, in agreement with the Trial Examiner, that the Petitioner's objections to the election in Case 9-RC-7089 have merit. Since the challenges are sufficient to affect the results of the election, we will direct that they be opened and counted,' and should the Petitioner receive a majority of the votes thus tallied, we shall direct the Regional Director to certify it as the bargaining representative of the employees in the appropriate unit. However, if the Petitioner fails to receive a majority of the votes cast, including the challenged ballots, we shall direct that the election be set aside and a second election be conducted. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and orders that the Respondent, C. E. Collins and O. C. Collins, d/b/a Collins Mining Company, Hanging Rock, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Delete paragraph 1(i) of the Trial Examiner's Recommended Order. 2. Delete paragraph 2(e) of the Trial Examiner's Recommended Order and renumber the subsequent paragraphs consecutively. 3. Delete the last two indented paragraphs (including the unit description) from the Appendix attached to the Trial Examiner' s Decision. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges unfair labor practices not specifically found herein. IT IS HEREBY DIRECTED that the Regional Director for Region 9 shall, pursuant to the Board's Rules! and Regulations, within 10 days from the date of this Direction, open and count the ballots of John DeLong, Curtis Leffingwell, James Bradshaw, Otis Martin, Lee Middleton, James Edward Jenkins, and Charles Wall and, thereafter, prepare and cause to be served upon the parties a revised tally of ballots, including therein the count of said challenged ballots; and IT IS HEREBY FURTHER DIRECTED that if the results according to the revised tally indicate that the Petitioner has received a majority of total votes cast, including the above-named challenged ballots, the Regional Director shall certify the Petitioner as the exclusive representative for collective-bargaining purposes of the employees in the appropriate unit. However, if the revised tally of ballots shows that the Petitioner has not received a majority of the total ballots as provided above, then it is ordered that the election held on June 13, 1967, be set aside, and that Case 9-RC-7089 be severed and remanded to the Regional Director for Region 9 for the purpose of conducting a new election among the employees in the unit found appropriate, at such time as the Regional Director deems that the circumstances permit the free choice of a bargaining representative. In the event that a second election is necessary, the following shall apply: [Direction of Second Election' omitted from publication.] 'Silver Fleet, Inc. 174 NLRB No. 141, Levi Strauss & Co, 172 NLRB No. 57, and 175 NLRB No 57; Cumberland Shoe Corporation, 144 NLRB 1268, enfd. 351 F 2d 917 (C. A. 6). In agreeing that the cards here are unreliable, Member Jenkins relies on the fact that the cards were solicited with the representation that it was "only" for purposes of an election and does not rely on the majority viewpoint set forth in Silver Fleet, Inc, supra 'We hereby affirm the Trial Examiner's resolutions of challenged ballots 'In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them . Excelsior Underwear Inc, 156 NLRB 1236; N L.R.B. v Wyman-Gordon Company. 394 U.S 759. Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 9 COLLINS MINING COMPANY 223 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director . The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. TRIAL EXAMINER' S DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Trial Examiner: On December 7, 1966, United Mine Workers of America, District 6, hereinafter referred to as the Union , filed the original charge in Case 9-CA-4126, ' alleging that Respondent had violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, by discriminatorily discharging Robert Johnson and Curtis Leffingwell on December l and 2, 1966, respectively , and by other acts and conduct . On December 19, 1966, the Union filed amended charges, 9-CA-4126-1 and 9-CA-4126-2, alleging in addition that Respondent discriminatorily discharged James Bradshaw on December 8, 1966, and discriminatorily discharged Ray Bowman , John DeLong, and Clyde Matthews on December 14, 1966. On December 19, 1966, the Union filed the petition in Case 9-RC-7089 seeking an election among Respondent's coal mining and distribution employees. On February 6, 1967, the Acting Regional Director for Region 9 approved a settlement agreement disposing of the charges in Cases 9 -CA-4126- 1, -2 without issuance of a complaint, contingent upon compliance with its terms and provisions as set forth in more detail below. After hearings held during April 1967, on May 15, 1967, the Regional Director for Region 9 issued his Decision and Direction of Election in Case 9-RC-7089 pursuant to which an election was held among Respondent's coal mining and distribution employees on June 13, 1967. The tally of ballots showed that 34 ballots were cast for the Union, 40 were against, 7 were challenged, and I was void . Thereafter, on June 19, 1967, the Union filed timely objections to conduct affecting the results of the election. On June 21 , 1967, the Union filed its charge in Case 9-CA-4318- 1 in which it alleged that Respondent on various dates had discharged , refused to rehire, or refused to reinstate 18 named employees for discriminatory reasons, that since December 14, 1966, Respondent had refused to recognize and bargain with the Union, and that Respondent by other acts had violated Section 8(a)(1), (3), and (5) of the Act. ' On July 20, 1967, the Union filed an amended charge in Cases 9-CA-43 18-2 adding three names to the list of those alleged to have been discriminated against by Respondent. On October 31, 1967, the Regional Director for Region 9 issued an order withdrawing approval of the settlement agreement in Case 9-CA-4126- 1, -2 on the ground that Respondent had failed to comply with its terms and had engaged in additional conduct violative of Section 8(a)(1) and (3) of the Act. On the same date the Regional Director issued a consolidated complaint in Cases 9-CA-4126- 1, -2 and 9-CA-4318- 1, -2 alleging a number of independent violations of Section 8(a)(1), both before and after the date of the settlement agreement, 6 discriminatory discharges, refusal to reinstate 15 employees in accordance with the terms of the settlement agreement, other instances of discrimination, and a refusal to bargain with the Union since December 15, 1966. On November 9, 1967 , Respondent filed its answer denying the commission of any unfair labor practices. On January 11, 1968, the Regional Director for Region 9 issued his Supplemental Decision in Case 9 - RC-7089, finding that the Union's objections to the election and the challenged ballots raised substantial and material issues of fact which were also the subject of the allegations in the consolidated complaint. Accordingly, he ordered that Case 9-RC-7089 be consolidated with the unfair labor practice cases for purposes of hearing and decision. A hearing was held before me in Ironton, Ohio, from February 6 through 9, and April 1 through 5, 1968. At the close of the hearing oral argument was waived and the parties were given leave to file briefs which have been received from the General Counsel , the Charging Party, and Respondent. Upon the entire record in this case and from my observation of the witnesses and their demeanor, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent is a partnership engaged in mining, processing, and selling coal at Hanging Rock, Ohio. During the year prior to the issuance of the complaint, a representative period, Respondent sold products valued in excess of $50,000 which it shipped directly to points outside the State of Ohio. I find that Respondent is an employer engaged in commerce within the meaning of the Act and that assertion of jurisdiction herein is warranted. II. THE LABOR ORGANIZATION INVOLVED United Mine Workers of America, District No. 6, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Alleged Presettlement Violations 1. Introduction A number of the violations attributed to Respondent are alleged to have occurred before the execution of the settlement agreement which was approved on February 6, 1967, and set aside by the Regional Director on October 31, 1967 . The merits of the alleged presettlement violations are properly reached only if it is established that the terms of the settlement agreement were breached. As I find below that after executing the settlement agreement Respondent committed a number of violations of the Act, many of which were .in express violation of the terms of the settlement agreement, I have concluded that the Regional Director was justified in setting aside the settlement agreement.3 Since the facts are more easily understood if presented chronologically, I will set forth my findings and conclusions relating to the alleged presettlement violations before those relating to the alleged postsettlement violations, having first satisfied myself, however, that the 'A copy of this charge was served on the Respondent on December 9, 1966. 'A copy of this charge was served on Respondent on June 23, 1967. 'Lock Joint Pipe Company, 141 NLRB 943. See .also J. E Hamilton & Sons, Inc., 120 NLRB 1468, 1480; N.L.R.B v. Bangor Plastics, Inc., 392 F.2d 772 (C A. 6). 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD postsettlement violations occurred , for the reasons set forth later in this Decision. 2. The beginning of the Union's organizing campaign Some time during October or November 1966 the Union made contact with some of Respondent's employees and started a campaign to organize them. On or about November 25, 1966, the Union sent identical letters to a number of Respondent' s employees whose names and addresses it had obtained from some of its employee contacts.' Enclosed with the letters were blank authorization cards which the employees were invited to sign and mail back to the Union. A number of employees signed the cards and returned them to the Union as set forth below in greater detail . Around this time union organizers and employees also directly solicited other employees to sign cards , and a number of additional signatures were obtained in this fashion. During November and December union organizers met on several occasions with groups of Respondent's employees. 3. Alleged independent violations of Section 8(a)(1) before the strike Starting around the time the union letters were mailed and continuing until December 14, Respondent partners Oakley and Coleman Collins questioned a number of employees about the letters and cards they were sent by the Union.' Oakley Collins approached a number of employees individually while at work and asked them' if they had received letters from the Union . Some of the employees indicated that they had not.' Collins asked several employees to bring the letter and enclosed card to him if they did receive it.' Coleman Collins similarly questioned Oscar McCann.' 'The record does not establish the number or identity of all the employees who were sent the letter 'The following findings are based on the testimony of the employees involved in the incidents described. Oakley Collins, who appeared as a witness, did not contradict any of their testimony as to what he said to them during the period before December 14, except in isolated respects as indicated below. Coleman Collins, who also testified, denied that he questioned any employees about the cards, but conceded that he knew that cards and letters were sent to employees and that he was aware of the union activities at the time He testified that employees voluntarily informed him of these activities Two of the employees who testified to Coleman Collins' activities were employees of Respondent at the time of the hearing, and the detailed testimony of another, Robert Johnson, which concerned activity of both Oakley and Coleman Collins, was in the main uncontradicted. Coleman Collins' testimony was for the most part conclusionary in form, and he did not impress me as credible in his explanation of the layoff of John DeLong or in other respects set forth below. Accordingly, I have credited the testimony of the various witnesses for the General Counsel who testified as to the statements made to them by Coleman and Oakley Collins before December 14 'Garland Wmeka, Andrew Sorrell, Bascom Owens, Lee Middleton, Frank Laber, William Howell, Willie Martin, James Aldridge, Oscar McCann, John DeLong, Ray Bowman, Carlton Malone, Carl Shepherd, and Lawrence Otworth. 'Wmeka, Sorrell, Laber, Carlton Malone, Carl Shepherd, and Howell. John DeLong testified that although he had received the letter, signed a card, and returned it, he answered negatively. Bowman answered that he had received the letter. 'Willie Martin, James Aldridge, John DeLong, Carlton Malone, Carl Shepherd, and Lawrence Otworth. At the time he spoke to Shepherd, Collins also stated that he could not operate under the United Mine Workers and that there was not going to be a union there. 'Former employee Clyde Matthews attributed similar questioning to Supervisor Pete Chaffins. Chaffins denied interrogating Matthews. As I have found Matthews' testimony inaccurate in some other respects, i.e., in On one occasion Oakley Collins asked Garland Wineka if he had signed a card and told him he did not like anyone to work for him who lied. Collins told Wineka that he did not want anything more to do with Robert Johnson because Johnson had lied to him." Wineka did not respond. On another occasion Oakley Collins stopped Harlan Harbolt at work and said that he had gotten the ringleader. Harbolt said he did not know who that was, and Collins stated that it was Curtis Leffingwell." Nothing further was said at that time. A few days later Oakley Collins stopped Harbolt again at work and asked him if he had attended the union meeting the previous night. Harbolt replied that he had not. Collins commented that there was a man who had a list of those who were there and that he did not think Harbolt's name was on it. He told Harbolt to go back to work. On another occasion Collins asked Harbolt where he had obtained a card that Harbolt had given to Harold Cade, another employee. Harbolt replied that he obtained it in the shop. Collins asked where, and Harbolt said it was just there on a bench. Collins told Harbolt that he could not operate under union wages and left. During the period before December 14 Oakley Collins stopped Johnny Sparks at work and asked him if he had signed a union card . At first Sparks said that he had not. Collins told him not to lie about it, and Sparks then said he had signed a card. Collins then said that Sparks knew he should not have signed it. Sparks replied that he did not know that and had no reason not to sign the card. On another occasion on December 11 Oakley Collins asked Carlton Malone if Harlan Harbolt was giving out union cards. Malone replied that he had never seen one of them. In fact he had signed a card at this time. On December 12 or 13 Collins called Dayton Minix to the office and asked him if he had signed a card. Minix replied that he had. Collins told him that he was the only operator on the hill who had signed and that was all he had to say to him. On December 12, Oakley Collins asked Clyde Matthews if he had gone to a union meeting. There had been a meeting the previous night at Curtis Leffingwell's house. Collins asked if some other employees had been there, named Sorrell, and asked about Clayton Henderson and one or two others. Matthews replied that Collins would have to ask Henderson and that he did not know. Collins asked Matthews if he had signed a union card, and Matthews answered that he had . Collins asked him why, and Matthews replied that it was because of the security the Union had. Collins told Matthews he would see how much security he had in a few days." On December 12 Oakley Collins asked William Malone if he had attended the union meeting the night before. Malone said that he had. Collins asked him if he signed a card. Malone did not reply, and Collins said he would not work a "damn man" that had anything to do with the Union or was running with it." Around December 12 or 13 Oakley Collins asked Otis Martin if he had received a letter . Martin said that he had not. Collins told Martin that he knew that if he signed the connection with the identity of employees whose signatures he obtained on authorization cards, I have credited Matthews only as to those portions of his testimony which are uncontradicted. "This exchange occurred shortly after the discharge of Johnson under circumstances set forth below. "Leffingwell had been discharged under circumstances set forth below. "Matthews' testimony as to this conversation was not denied and is credited. "Malone's testimony as to his conversation with Collins was undenied COLLINS MINING COMPANY 225 card and the Union got in Collins could not operate. Collins told him that if he got a letter not to say anything. About the same time with Coleman Collins present, Oakley Collins asked Willie Martin, brother of Otis, if he had received a card . Martin said that he had, that he had signed it, and mailed it in. Collins told Martin that he did not think Martin would have treated him that way and said that Martin should have given him the card. On December 13 Coleman Collins stopped James Jenkins at work and asked him if he had signed a card. Jenkins first said that he had not, although in fact he had. Coleman Collins talked to him further about moving to another piece of equipment to take Johnny Sparks' place. Collins told him that he was going to have to do something about Sparks and that Sparks had signed a union card and had attended some union meetings. Jenkins started to return to work, but then turned back and told Collins that he had attended one union meeting, that he was going to another at Southpoint that night, and that Coleman Collins was welcome to come if he wanted. During this period Oakley Collins asked Andy Jack Akers if he had been at a union meeting which was held at Curtis Leffingwell's house. Collins asked Akers who was there. Akers replied that he did not know the men well enough to tell him. Collins asked if he was going to the next meeting and Akers said that he was. On the evening of December 14 as Lawrence Otworth was getting ready to leave Oakley Collins asked him if he was going to the union meeting at the Southpoint hall. Otworth said he did not know. Collins said he was going to have two men there checking the names of everyone who went into the hall. Otworth replied that they would see him because he was going. On one occasion Foreman Pete Chaffins told Clayton Henderson that he did not think that Respondent could operate under union regulations given the mining conditions that existed." There can be little doubt Respondent by its presettlement conduct violated Section 8(a)(1) of the Act. Respondent engaged in widespread interrogation of employees relating to the receipt of union literature, the signing of union cards, and attendance at union meetings. The record discloses not only the absence of any lawful purpose for the interrogation, but that the questioning was on a number of occasions accompanied by other coercive remarks and unlawful instructions and requests to employees to bring to Respondent literature and cards received from the Union . Oakley Collins conveyed to Harlan Harbolt, Lawrence Otworth , and Dayton Minix the impression that union meetings and their union activities were under surveillance.' Both directly and indirectly, Oakley and Coleman Collins conveyed to Garland Wineka, Harlan Harbolt, Clyde Matthews, William Malone, and James Jenkins the threat that employees would be discharged because of their union activities. I find that by this conduct Respondent interfered with, restrained, and coerced employees in the exercise of their rights quaranteed by the Act and that Respondent thereby violated Section 8(a)(1) of the Act." Further conduct during this period alleged to violate Section 8 (a)(1) is considered in the following section as it is factually related to the alleged discrimination there considered. "Chaffins so testified. Henderson testified that Chaffins told him that if the Union came in, Respondent would have to close up. Henderson was not examined in any detail as to the exact words used by Chaffins, and his version is not greatly divergent from Chaffins, whom I have credited 4. Alleged violations of Section 8(a)(3) a. Robert Johnson On November 28, Coleman Collins showed truckdriver Robert Johnson a letter from the Union and asked him if he had received one like it . Collins asked him to bring it in when he did. Johnson replied that he could not say because he did not know what it was . Coleman told Johnson that his brother Oakley wanted to see Johnson in the office. Johnson went to the office. Oakley also asked him if he had seen the letter . Oakley explained that the letter was from the United Mine Workers and stated that Respondent could not run under the Union. He said that if the Union came in, he and Coleman would have to go back to milking cows. Oakley asked Johnson if he would bring the letter to him. Johnson replied , as he had to Coleman, that he had not received the letter at that time. Oakley asked Johnson if he would let him know when he received the letter. Johnson said that he guessed that he could . Oakley said that he did not want any guess. Johnson then said that he would let him know . Oakley told Johnson to stick with him and he would protect Johnson and his family. That evening Johnson, whose mail was delivered to him at a company store operated by Respondent, received the letter from the Union . Johnson next reported for work on December 1 . On that day Coleman Collins asked him if he had brought the letter with him . Johnson replied that he had not. Coleman Collins told him that Respondent would not need him to work that day. Johnson did not leave immediately, but remained to repair a flat tire. While he was so engaged Coleman Collins again approached him. Johnson told Coleman that he did not want to be identified as the one who brought the letter in. Oakley Collins, who was present, asked Johnson what that meant. Johnson explained that he did not want to be known among the employees as the one who turned letters over to Respondent . Oakley stated that it was not the one who turned the letter over to the Company , but the one who turned it over to the Union, who had the bad name. Oakley told Johnson that he did not want anything as "cheap" as him around and that he could come in and get his money." "In addition to this evidence, there was testimony by William Malone that he observed Respondent's Office Manager Arlen Sturgil in a telephone booth next to the parking lot at the union hall at night after a union meeting on December 11. Sturgil denied that he was in the telephone booth on this or any related occasion and was corroborated by his wife as to his whereabouts on the night of December 11. I have concluded that Malone's testimony in this regard cannot be accepted as accurate and accordingly dismiss the paragraph of the complaint based on Sturgil's alleged surveillance. "R. W. Inc, d/b/a K-Mart Foods. 170 NLRB No. 67 (interrogation), Poray. Inc., 160 NLRB 697, 703-704 (requests to turn over union literature); J P. Stevens and Co., Inc., 163 NLRB No. 24, enfd. as modified 388 F.2d 896 (C.A 2) (impression of surveillance); Biederman Furniture Company, 164 NLRB No. 12, enfd. 397 F.2d 282 (C.A. 8), (threats). For reasons set forth below in conjunction with alleged postsettlement violations, I do not find that Respondent violated Sec. 8(aXl) by the statements by Oakley Collins to Harbolt that he could not operate under union wages, by Collins to Otis Martin and Carl Shepherd that he could not operate if the Union got in, and by Foreman Chaffins to Clayton Henderson that he did not think that Respondent could operate under union regulations "Although Coleman Collins denied interrogating any employee about anything relating to the Union, Oakley Collins did not deny Johnson's testimony as to the circumstances of his discharge, except that with respect to the statement that Respondent could not run with a union, he testified that he said basically the same thing to all employees in this regard, that it 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On December 6, Johnson returned to Oakley Collins' office to ask whether he could get his job back, taking with him the letter from the Union which he had received and the authorization card which he had signed and which Union Representative Russell had returned to him . Collins took the letter and told Johnson he would let him know about a job." On December 13, Johnson received a message at the company store that he was wanted at Respondent's office on the next day. Johnson reported and Oakley Collins told him that he was not fired or permanently laid off. Collins asked Johnson if he was responsible for the filing of unfair labor practice charges over his discharge. Johnson replied that he was not. Collins asked him if he had signed anything to that effect, and Johnson said that he had only signed up at the unemployment compensation office. Collins also asked Johnson whether he attended a union meeting the night before and if he knew who was there." Collins told Johnson that it would be better if he stayed home for a while. The uncontradicted evidence leaves no doubt that Johnson's discharge on December 1, 1966, was caused by his union activities. The discharge was preceded by interrogation of Johnson and the promise that if Johnson would stick with him Collins would protect him. When Johnson balked at turning over the letter he received from the Union and stated that he did not want to be identified as the one who brought it in , thus indicating that he was not sticking with Collins, Collins responded by stating that it was the one who turned it over to the Union who had a bad name and summarily discharged Johnson. Although Collins indicated after charges had been filed that Johnson had not been fired or permanently laid off, Collins did not reinstate him at that time and questioned him further as to his role in the filing of the charges. The inference of discrimination to be drawn from the General Counsel' s evidence is strong and more than sustains the General Counsel's burden of proof.'" No evidence has been offered by Respondent to establish any other cause for Johnson's discharge. Accordingly, I conclude that Johnson's discharge violated Section 8(a)(3) and (1) of the Act. I conclude also that Collins' interrogation of Johnson and his promise of security to Johnson if Johnson stuck with him constituted further independent violations of Section 8(a)(1) of the Act. b. Curtis Leffingwell Around the time of Johnson's discharge, on a date not made clear in the record , Oakley Collins called Curtis Leffingwell into his office while Leffingwell was at work. Collins asked him if he had been talking with the union men.21 Leffingwell said that he had not. Collins told him that Leffingwell was going to mess around and knock a hundred men out of work and that Collins would "scrap the damn place" before he would go into the United Mine Workers. Leffingwell told Collins that he had talked to was economically impossible for him to operate with a union. I have credited Johnson's detailed testimony as to the events leading up to and surrounding his discharge "Collins also said that Curtis Leffingwell had told him that Johnson had signed a card and sent it in . Collins asked Johnson how Collins was to know that Leffingwell had not given Johnson another card so that he would have one to give to Collins "It is not clear from the record whether Johnson said that he did or did not attend. "Heck's Inc. 156 NLRB 760, 762-763, enfd. as modified 386 F 2d 317 (C.A. 4) some wage and hour men . Collins told him that he should not have let them come around and talk to him and described the car that the union representatives were driving." Thereafter on a date also not made clear by the record, but clearly before December 13, Oakley Collins called Leffingwell and asked Leffingwell if he had gotten one of the union cards. Leffingwell replied that he had and that he had signed it and sent it back to the Union. Oakley Collins said that he should not have done that. Collins said he would call Leffingwell back in a while and let him know when to come into the office. A while later Coleman Collins came to where Leffingwell was working and called him out from under a truck he was greasing. Oakley Collins came into the garage shortly thereafter and asked Coleman if he had gotten the keys. Leffingwell gave Coleman the keys. Oakley told Leffingwell he was firing him because his work was unsatisfactory. Oakley said that Leffingwell's father and grandfather had worked for Respondent and if he had lasted that long he could have stayed with Respondent a hundred years "if he had not done that." Collins also told him that he would not have thought that Leffingwell would have "done a thing like that" and that it was like he had stabbed him in the back. r' Oakley Collins told Leffingwell that if he bothered him anymore he was going to get the law after him. Leffingwell punched out and left. The uncontradicted evidence establishes that Collins first interrogated Leffingwell, threatened him that his union activities could cost all of Respondent's employees their jobs, and conveyed to him the impression that his union activities were under surveillance. Then, when Leffingwell thereafter in reply to further interrogation revealed that he had nonetheless signed a union card, Respondent discharged him. The asserted ground for the discharge was contradicted by the concurrent comment that Leffingwell could have stayed with him for 100 years if he had not done "that" with obvious reference to Leffingwell's union activities. 24 As in the case of Johnson, although the General Counsel clearly met his burden of proof, no countervailing evidence was offered to show that Leffingwell's work had been unsatisfactory or that Collins' remarks at the time of the discharge referred to anything other than Leffingwell's union activities. Accordingly, I conclude that Leffingwell's discharge violated Section 8(a)(3) and (1) of the Act. I conclude further that Collins in his conversation with Leffingwell unlawfully interrogated Leffingwell concerning his union activities, created an impression of surveillance of Leffingwell's union activities, and threatened that he would close down because of the union activities." "Leffingwell was one of the employees with whom the Union had made early contact, and he had helped in assembling the list of employees' names which the Union used in mailing its letters. He had been visited at his home by union representatives , and some early meetings between union representatives and employees had taken place there. "Leffingwell's testimony as to his conversations with Oakley Collins leading up to and surrounding his discharge was not contradicted "Although Leffingwell's testimony as to the latter comment was elicited by a leading question, it, like Leffingwell's other testimony, was not denied by Oakley Collins, and I have credited Leffingwell's testimony in its entirety "As set forth above , after Leffingwell's discharge , Oakley Collins told Harbolt that he had gotten the ringleader and identified him as Leffingwell "Unlike most other instances in which I have found that Collins related remarks concerning a shutdown to Respondent's inability to operate under the Union, in this instance Collins' threat was not tied to any assertion COLLINS MINING COMPANY 227 c. James Bradshaw On the morning of December 8, James Bradshaw was called to the office from his place of work. Oakley Collins asked him if he had received a letter from the Union in the mail and what he had done with it. Bradshaw replied that he had filled out the card and sent it back to the Union. Collins told Bradshaw that he did not think that Bradshaw would treat him that way because he was like one of the family. Collins asked him why he had signed the card. Bradshaw replied that he thought it would make it a better place to work if the Union represented the employees. Collins told Bradshaw that he had heard about 40 men had signed cards. Bradshaw said that the only one he knew about was himself. Oakley Collins told Bradshaw that he no longer needed his kind of worker around there, and Coleman Collins told Bradshaw to get whatever he had at the garage, leave, refrain from talking about it, and never come back again. Bradshaw left.26 As in the case of Johnson and Leffingwell, the uncontradicted testimony of Bradshaw establishes prima facie that following his interrogation by Oakley Collins and his admission that he had signed a union card, Bradshaw was discharged because of that admission. No evidence was offered by Respondent to support any other explanation for the discharge which I find violated Section 8(a)(3) and (1) of the Act. I find further that the interrogation of Bradshaw violated Section 8(a)(1) of the Act. d. The December 14 layoffs On December 14, Oakley Collins called the drivers of Respondent's heavy hauling equipment into his office. Collins said he was not getting enough coal out of the hill. He asked them if they had attended a union meeting that night and said he had a list of names of those who attended the meeting on December 11, holding up a list in his hand . Collins told them that he was going to cut back employment by at least 20 percent. One of the drivers, Carlton Malone, asked for and received a voluntary layoff at that time. About three that afternoon John DeLong was called to the office. Coleman and Oakley Collins were there. Oakley Collins told DeLong that he was going to have to cut back in production about 50 percent and in view of his age, DeLong ought to step aside and let some younger men have it. He was given a layoff slip, and junior men were retained whose work he could do . DeLong was 66 years old at the time. Oakley Collins told him that if he needed help in getting his social security, Collins would help him . DeLong said he had everything already arranged. DeLong had been injured and partly disabled in 1963. He had returned to work after 6 months' recuperation, however, and had worked steadily until the time of his layoff. He had signed up for social security in July 1966 in order to receive medicare benefits , but he had drawn no retirement benefits before his layoff and according to DeLong was not thinking of retiring at that time." that it would be impossible for him to operate under the Union. "Bradshaw testified to these events without contradiction. "Coleman Collins testified that Respondent had let DeLong work after he was injured but told him "that possibly we would have to let him out if we seen that maybe he couldn' t do his job. And that's what happened." No other evidence was adduced to show that there had been any change in DeLong's work prior to his discharge. Oakley Collins, who informed DeLong of the layoff, testified in the representation proceeding but not That afternoon, about 3:30, Oakley Collins gave bulldozer operator Clyde Matthews a layoff slip. He told Matthews it looked like he was going to have to cut back production as much as 50 percent. Matthews asked if he was the youngest dozer man Collins was cutting. Collins said he did not know.28 On the same day, welder Ray Bowman was called into the office. Both Oakley and Coleman Collins were there. Oakley Collins told him that the coal business was slack and they were going to lay him off as he could draw unemployment compensation. Bowman said that Collins had just hired a man up there the day before. Oakley Collins did not respond.21 DeLong, Matthews, and Bowman had all signed union cards prior to their layoffs. There is no evidence that Respondent had knowledge that DeLong and Bowman had done so. Matthews had revealed that he had signed a card in response to interrogation by Oakley Collins. At that time on December 12 when Matthews stated that he had signed for the security that the Union offered, Collins replied that he would see how much security he had in a few days. While the record does not establish that DeLong and Bowman were selected for discharge because of their union activities, it does support the inference that the decision to lay off employees at this time was motivated by the employees' union activities. Thus the layoffs came after a 2-week period of intensive interrogation, creation of the impression of surveillance, threats, and the discriminatory discharges of three employees. At the time Oakley Collins announced to the hill drivers that there would be a layoff, he asked them about their attendance at a union meeting and conveyed to them the impression that he had a list of those who had attended a meeting a few days before. Although the inference of discriminatory motivation might have been overcome by some explanation of a cause for the layoffs unrelated to the employees' union activities, none was offered." To the contrary, the evidence indicates Respondent's coal production in previous years showed little variation during December and its employment had remained relatively constant for a number of months prior to December 14 despite minor variations in coal production from month to month. The discharges which preceded the layoffs had already reduced the number of employees on Respondent's payroll below its lowest point for the previous 6 months. Nothing in the previous 3 years' record of operations indicated the likelihood or need for a 20-percent cutback in employment or a 50-percent cutback in production, and in explaining the slow restoration of production after the strike which began on December 14 after the layoffs occurred, Oakley and Coleman Collins testified only to losses of business due to the strike and not to any which preceded it. In these circumstances I conclude that the decision to lay off employees on December 14 was caused by the union activities of the employees and that the layoffs therefore before me. 'The evidence is in dispute as to whether Matthews was the least senior. "According to Bowman , a man named Reily was hired the day before as a welder, and Bowman was the oldest welder. Respondent 's payroll records show that a John Reily appeared on Collins' timber operation payroll from December 5 through 15, 1966, that he appeared on the Collins' mining payroll from December 16 through 31, 1966, and that he did not appear thereafter on either payroll. Apart from Bowman's testimony and the stipulation based on the records, there is no other evidence as to the employment of Reily or the circumstances of Bowman's layoff. "The only explanation offered related to the reason for selecting DeLong for layoff 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violated Section 8(a)(3) and (1) of the Act." I find also that Collins in his remarks to the hill drivers interrogated them, created an impression of surveillance, and threatened retaliation for their union activities all in violation of Section 8(a)(I). 5. The beginning of the strike and alleged violations during the strike On December 13, an impromptu union meeting was held at the home of Curtis Leffingwell. A number of employees present expressed sentiments in favor of striking Respondent. They decided that a larger meeting should be called which all employees would have an opportunity to attend before taking any action, and a meeting was scheduled for the following night at the Southpoint Steelworkers hall. On December 14 the meeting was held . A motion was made and seconded to shut Respondent' s business down . After substantial discussion, the employees voted to strike . Reasons advanced in support of the action were that three men had been discharged because of the organizing campaign, three had been laid off, and there were threats of more layoffs. The strike began that night following the meeting. It is clear that the strike was caused by Respondent's conduct which I have found violated the Act and was an unfair labor practice strike. The following morning Coleman Collins asked Oscar McCann why the men had struck . McCann told him that they went out because of the discharges and layoffs and for the Union. Oakley Collins told McCann he was going to get an injunction . He said that he could not operate under a union and would not meet with the union officials. Several other employees were present at the time. At the outset of the strike on December 15, as Oakley Collins testified, a few employees appeared for work. The rest stayed away from work and production was largely stopped. During the strike Oakley Collins made several attempts to induce other employees to return to work at various times during the strike both by direct personal appeal and by letter. On several occasions Oakley Collins held meetings with small groups of employees for this purpose." During the strike Collins telephoned Charles Wall after most union meetings and asked him how many employees attended. On one occasion he asked Wall if Andy Sorrell had been there. Wall's testimony to this effect was uncontradicted , but his further testimony was disputed that in late January, at Oakley Collins' request, he visited Collins' home where Collins gave him $20 and asked him to go down and see what he could do to break up the strike or get the employees back to work , promising to fix 'Arnold ware. Inc, 129 NLRB 228. "According to Bascom Owens, dunng these meetings Collins told the employees that he would raise them considerably if they returned to work but was not allowed to say how much. Owens testified also that Collins told the men that he just could not compete under a Mine Workers contract and that signing it would be like signing his own death warrant. Owens' testimony in this regard was contradicted and for reasons set forth more fully below, I do not credit it It is clear however that on these as well as other occasions Collins said he did not think that he could compete or operate under the Mine Workers contract. According to William Howell, dunng the stoke Oakley Collins offered him a sizable amount of money to return to work, telling him he would pay him $2.75 an hour, an increase of 75 cents an hour above his prestrike pay, and that he would be the only welder working for him. For reasons set forth later in this Decision, I have not credited Howell as to this incident. him up "real good" if he succeeded. Both Oakley Collins and Mrs. Collins, who was present, denied that any money was given to Wall on this occasion . Collins testified that he asked Wall if he would return to work, but made no promises to him. I have credited Collins, as corroborated by his wife, in his denial. There is evidence that a few times during the strike Oakley Collins was seen driving by a Southpoint hall when union meetings were being held there." Collins testified that he often had occasion to drive past the union hall, which was located on a highway leading to a plant to which Respondent sold coal . He recalled seeing some of the employees gathered in front of the hall on two or three occasions, but denied that he went there for purposes of surveillance. I find that Collins' interrogation of Wall about attendance at union meetings further violated Section 8(a)(1) of the Act. However, as the Steelworkers hall was located adjacent to a busy public highway which, according to his uncontradicted testimony, Collins traveled on occasion for legitimate purposes , I conclude that the evidence is insufficient to establish that Collins drove by the hall for the purpose of engaging in surveillance during the strike, and I find no other violations based on Respondent' s conduct during the strike." B. The Union's Request For Recognition On December 14, 1966, the president of the Union mailed a letter to Respondent in which he stated that the Union had been authorized by a majority of Respondent's employees to represent them as their collective-bargaining agent and requested a meeting with Respondent. Two or three days after the strike began, Union Representative Russell attempted to contact Oakley Collins by telephone and left word for Collins to call him, but Collins never returned his call. On December 30, the Union's attorney sent Respondent a further letter, in which he stated that the earlier letter of the union president had not been answered, restated the Union's majority claim, offered to prove the majority by means of a card check, and again requested a meeting. On January 20, 1967, in a letter to Respondent's attorney rejecting a proposal for an agreement to settle the Union' s charges, the union president again stated that the Union was the sole collective-bargaining agent of the employees and requested a meeting for purposes of negotiations. On January 31, after Respondent had signed a settlement agreement which was to be forwarded to the Union, the Union's attorney wrote Respondent's attorney that the only matter which remained was the question of recognizing the Union as the bargaining representative of Respondent's employees. He asked for written acknowledgment of the Union's representative status and in lieu thereof, again suggested a card check to confirm the Union's majority. Insofar as the record shows, Respondent made no response to the Union's requests for recognition. Respondent at no time acquiesced to the Union's request for recognition, and during the strike, Oakley and Coleman Collins took the position that they would not talk with the Union's representatives. "Franklin Carmon and Willie Martin so testified. "I note in this regard that the complaint does not allege that Respondent's efforts to induce employees to return to work during the strike violated the Act. COLLINS MINING COMPANY 229 C. The Settlement Agreement to the settlement agreement , it was used by Respondent with their knowledge and without objection until the June 1967 charges were filed. On January 28, 1967, Respondent signed an informal settlement agreement disposing of the charges in Cases 9-CA-4126-1, -2. The president of the Union signed the agreement on February 3, 1967, and the Acting Regional Director for Region 9 approved it on February 6, 1967. The agreement provided for posting of a notice and compliance by Respondent with all the terms and provisions of the notice. It also provided for backpay in amounts to be computed later for the six employees alleged in the charges to have been discriminatorily discharged. Contingent upon compliance with the terms and provisions of the settlement agreement, the agreement provided that no further action would be taken with respect to the charges. The agreement and the notice obligated Respondent to refrain from (1) discouraging membership in the Union by discharging or laying off any of its employees or otherwise discriminating in regard to their hire or tenure of employment; (2) interrogating employees concerning their membership in, sympathies for, or activities on behalf of the Union; (3) engaging in surveillance of union meetings; (4) creating the impression that it had engaged in surveillance of employee union activities; (5) threatening to close its operations or force employees out of their jobs if they chose to be represented by the Union; (6) instructing its employees to submit to them letters and cards received by the employees from the Union , and (7) otherwise interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act. Respondent also stated in the notice, which it posted pursuant to the settlement agreement, that it had offered Robert Johnson , James Bradshaw, Ray Bowman, John DeLong , and Clyde Matthews immediate and full reinstatement to their former or substantially equivalent positions , that it would make these employees whole for any loss of pay they might have suffered by reason of discrimination against them, that it would offer Curtis Leffingwell immediate and full reinstatement to his former or a substantially equivalent position , and that it would make Curtis Leffingwell whole for any loss of pay which he might have suffered by reason of the discrimination against him from the date of the discrimination to the date of his reinstatement. Respondent further undertook to offer to all employees who participated in the strike on and after December 14, 1966, and who had not previously been reinstated, immediate and full reinstatement to their former or substantially equivalent positions without prejudice to seniority or other rights or privileges, dismissing if necessary any persons hired on or after December 14, 1966, who were not employed by Respondent on that date. Respondent agreed , in the event that employment was not available, to place the strikers on a preferential hiring list to be established in accordance with employees' seniority pursuant to which they were to be offered reinstatement to their former or substantially equivalent positions for a period of 1 year from the date of establishment of the list before reinstating or employing any other individual for work. Pursuant to the agreement Respondent established a seniority list by department or job classification as the list to be followed in determining the order in which strikers were to be offered reemployment. Although it does not appear that this list was formally approved by the parties D. Alleged Postsettlement Violations of Section 8(a)(1) 1. Introduction The complaint alleges a number of violations of Section 8(a)(1) of the Act after the execution of the settlement agreement, mostly during the period immediately preceding the election. Most of the allegations relate to statements and other conduct of Oakley Collins. The evidence as to Oakley Collins during this period comes from a number of witnesses, many of whom were still employed by Respondent at the time of the hearing. Some of their testimony was undenied , much of it denied in general conclusionary terms, and some of it was specifically denied . In general, I am persuaded that most of the employee testimony is to be credited . Although I have not discredited Oakley Collins' testimony in its entirety, many of his denials were too general to overcome the detailed specific testimony of employees , and it is clear without regard to their content that the conversations in which the violations are alleged to have occurred did take place. One cannot ignore the fact that Collins was not questioned about most of the conversations, nor was he questioned even generally about some of the coercive statements attributed to him. It is true that Collins was not intensively cross -examined, and indeed a deliberate decision appears to have been made by counsel for the General Counsel and the Charging Party not to cross-examine as to most of his direct testimony. In some respects the absence of searching cross-examination makes the burden on the Trial Examiner greater, as the record affords less basis for evaluating the testimony of Collins and weighing it against that of the employees. That absence should not weigh against Respondent, but neither should the General Counsel's failure to ask all that he might have asked weigh against the failure of Collins' direct testimony in many instances to meet the testimony of the General Counsel's witnesses. In assessing credibility I have also considered the fact that Collins has been repeatedly elected to public office and obviously enjoys a good reputation in his community. One can neither ignore this fact nor overreact to it. The fact is that the conduct of Collins here in question is not his conduct as a public official but as a citizen engaged in his private business. In setting forth the resolution of credibility issues, one is impressed with the fact that one can never fully articulate all of the considerations which contribute to the conclusion. Some impressions register during the hearing while listening to the witnesses and observing the way they speak and testify. While not true of all of the General Counsel's witnesses, most of them seemed to reflect considerable respect for the Collins brothers and awareness of their dependency upon Respondent for their livelihood. That most of them had strong feelings for the Union is also clear, but I am persuaded overall that there was no conspiracy among them to invent a series of similar incidents to undermine their Employer' s position. In that posture the strong similarity between many of the incidents which occurred during this period lends strength to the conclusion that most if not all of them occurred. A number of witnesses testified to statements by Collins varying in specific content but all generally to the effect 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Respondent could not operate with the Union and would be forced to close down if the Union won the election. With exceptions noted below, Collins did not give his version of the specific conversations but testified generally as to what he said to employees in this regard. He testified that he told employees that economically it would be impossible for him to operate under the union contract because wage increases, welfare fund contributions, and many other things would increase his costs. He denied, however, that he ever threatened that Respondent would go out of business if the Union won the election. As I understand Collins' testimony the distinction drawn by him was between telling employees what the economic consequences of the advent of the Union would be and telling them simply that Respondent would close down because they chose to be represented by a union. As I view the testimony of the employees, there is no essential conflict between most of them and Collins in this regard." I have credited the varying versions of the employees, as illuminated by Collins' explanation, leaving for later consideration whether in the context in which the statements were made they constituted threats. A number of employees also testified as to varying statements by Collins to the effect that Collins promised them wage increases if the Union lost the election. Collins again with a few exceptions considered below did not give his version of these conversations but testified that he generally told the employees that he could not talk about or promise money because of the settlement agreement. However, he testified further that before the Union appeared at the mine he had promised employees a raise after an anticipated consolidation of mining operations at a single pit located at Fox Hollow, and that on an occasion or two when employees asked him about money, he mentioned to them the earlier promise he had made that when an electric shovel he had purchased went into operation at Fox Hollow, he would give them a raise. Thus, Collins conceded that while he claimed to employees that he could not talk money, he did on some occasions talk money, albeit tieing the discussion to an earlier promise. Some of the employee witnesses testified that Collins made no promises to them and others stated that he said he could not talk money. However, some of the latter group and others testified that Collins did in fact promise increases, not contingent on the electric shovel becoming operative at Fox Hollow, but contingent upon a union loss in the election. The evidence shows that in fact increases were granted to most employees immediately after the union election and considerably before the electric shovel became operative at Fox Hollow. Considering this circumstance and the fact that a number of witnesses who were employed by Collins at the time of the hearing testified contrary to Collins, many of whom impressed me as basically candid, with some exceptions as indicated below I have credited the employees' version of their conversations in this regard and have rejected Collins' general version of what he told employees with respect to wages during the preelection period. A number of employees also testified as to comments by Collins indicating knowledge of the voting intentions or attendance at union meetings of the employees. In a number of instances, they testified that Collins referred to or exhibited to them lists which he described as showing "Collins' threat to Curtis Leffingwell before the strike, however, does not fall in this category, and I have credited Leffingwell as indicated above. who was for or against the Union or who had attended union meetings. With exceptions considered below, Collins did not deny generally or specifically that he made the statements attributed to him in this regard, but denied only that he had any lists in his car other than the eligibility list for the election and the preferential hiring list. In most instances this limited denial does not meet the employee testimony, and I have generally credited employee testimony in this regard except as noted below. Another major category of employee testimony concerns interrogation by Collins as to their union activities and how they were going to vote in the election. Collins denied generally that he asked employees how they were going to vote during the preelection period. Again considering the status of the witnesses at the time they testified and the favorable impression made by many of them, I have credited their testimony in this regard, except as noted below. 2. Statements attributed to Oakley Collins On the basis of the above considerations, I make the following findings as to statements made by Oakley Collins to the following employees based on their testimony, noting where appropriate other special considerations and those instances in which Collins testified as to his version of specific conversations. a. Andrew Sorrell About 2 or 3 weeks before the election Andrew Sorrell stopped by Respondent's office to pick up his check. Oakley Collins called him into his office. Collins asked Sorrell how he felt about the union election. Sorrell replied he was going to vote for Andy (Sorrell). Collins said he could not run under the Union but that the employees would get a substantial raise after the election. Collins did not state any amount and said that he could not. Collins said he would try to operate the place with the raises for 6 months if he won the election. Collins told Sorrell that he had a list and was going to put Sorrell down "over here." Sorrell did not see the list, but Collins said something about its color. Sorrell said he would not hurt Collins and that Collins could take that anyway he wanted to. There was a paper lying on Collins' desk but Sorrell did not know what it was. Collins asked Sorrell how his "buddy" Homer Jenkins felt about the election. Sorrell replied that he did know, that sometimes Jenkins felt one way and sometimes the other, and that he could not tell Collins how Jenkins felt. b. Carl Shepherd On the day before the election Collins came to Carl Shepherd's house and asked him if he was going to the election." Shepherd said he was. Collins said he had a list of names of persons who were at the union hall. Collins held it up, showed it to him, and said Shepherd's name was on it." Shepherd said that he did not care and that he was there. Collins named some of the speakers who were there including Union Representative Waters and one or two others. "Shepherd was not recalled by Respondent until after the election "Shepherd testified that the list he was shown had names written in pencil Shepherd was shown a copy of the eligibility list prepared for the election and testified that he did not remember seeing it before and did not know if Collins had that list with him at the time of his visit COLLINS MINING COMPANY 231 c. Harold Cade e. Donald Cade In early June Oakley Collins spoke to Harold Cade about the election at the mine. Collins told him that if he won the election he would give Cade a raise and that if he lost he would have to shut the mine down. Cade had another conversation with Collins about a week after the election. Collins asked him if he had been attending union meetings . Cade said that he had. Collins took a list of those who attended meetings out of his pocket, read the names to him, and folded it back up. The list which Collins read appeared to Cade to be accurate. d. Franklin Carmon Sometime after the representation case hearing around the time the date of the election was set, Collins spoke to Franklin Carmon and his brother Arthur on the day after a union meeting. Collins asked if they went to the meeting. They said they did. Collins asked them why. Franklin Carmon said that he wanted to find out what was going on and when the election was going to take place. Collins said that if there was anything going on that Carmon should know, Collins would let him know. About a week before the election in early June, Oakley Collins came to the hill where Franklin Carmon was working and talked to him about the election. Collins asked him which way he was going to vote. Carmon answered that he did not know. Collins had two sheets of paper with him. He said he had the names of those who were going to vote for him on one list and those who were going to vote against on the other . He said that Carmon's name was on the list of those that he figured were against him. Collins asked Carmon if he would vote for him so that he could move his name to the other list. Carmon said he would not do like some of the others and lie to Collins by telling him that he would vote for him and then do otherwise. Collins said he did not want him to lie to him. Collins told him not to mention the conversation to anyone. On various other occasions following union meetings, Collins asked Carmon who was present and how many attended . On occasion when Carmon did not state the correct number, Collins corrected him." On June 10, Collins went to Carmon's house to talk with him . A union meeting was scheduled for the following day. Collins asked Carmon if he was going to the meeting. Carmon said he was. Oakley Collins asked him if he would stay home. Carmon replied that he had to go because his wife was planning to help with a planned family dinner. Collins asked him to talk with her to see if he could not get her to stay home. They talked further about the election and how long Carmon had worked with him. Collins said that if the Union came in it would run him out of the business and that it looked as if Carmon did not care too much about it. Collins told him that if he did not care for himself he should think about some of the older men who could not get a job anywhere else and would be run off the job if he helped vote the Union in.39 "Carmon testified that these incidents occurred both during the strike and before the election. "Collins did not testify as to this conversation with Carmon although he denied making a request to Aldridge not to attend union meetings. I have credited Carmon Oakley Collins talked to Donald Cade about the Union several times after Cade returned to work and before the election. Cade testified that several times after union meetings Collins spoke to him on the job and told him to stay away from union meetings. On one occasion shortly before the election when Cade took his truck to the garage for repairs Oakley Collins told him he ought to decide which side he was on because he had a red list and a blue list and the ones on the red list were going out of there when the thing was over. Collins had a couple of pieces of paper in his pocket which he lifted part way out and shoved back without showing them to Cade. °° On one occasion Collins asked Cade who was at the union meetings. Cade declined to tell him. Collins showed him a list and said he already knew who was there and would tell him how many were there. Later on a Monday following a Sunday union meeting at which food had been served, Oakley Collins stopped Cade on the job and asked if he had been at the Sunday meeting. Cade answered that he had. Collins asked if he took his wife. Cade said yes. Collins asked why he went. Cade said they served them a good dinner there. Collins said he should not have gone and that if he wanted a good dinner Collins would have bought it for him. On several different occasions Collins told Cade that it was impossible for him to operate under the Union and if the Union was voted in he would shut the place down. Collins also told him that if the Union did not win he would give them an overtime premium and a raise, but he would not tell him how much the raise would be. f. Andy Jack Akers On June 10 on his way home from work Andy Jack Akers stopped at Lester Robinson's house with Union Representative Russell and William Malone. After a while Akers left, stopped at Johnny Sparks' home, and then went to his own home. Shortly after he arrived home Oakley Collins arrived there. Collins asked Akers if Robinson was trying to get him to vote for the Union. Collins did not make any threats of retaliation in the event Akers voted for the Union or promises in the event that he voted against it. Collins never talked wages or promotions with him. However, Collins told him at the time that he would make things right for him if he voted for the Company which he took as a promise. g. Clayton Henderson Around June 1 Oakley Collins told Henderson that they would get a raise starting after June 15. Collins said nothing else in connection with the increase and did not condition it on the election. On another occasion Collins said that he could not afford to run the plant under the Union and would shut it down if it went union. On Friday, June 9, Oakley Collins and Pete Chaffins came to Henderson . Collins showed him a sample ballot and told him he wanted him to get in there and vote no on June 13. That was all he said on that occasion. On June 12, the day before the election, Collins spoke to Henderson as he was going to work. Collins told him the Union was slacking off and that there were not as many members attending union meetings."' "Although Collins testified that he did not tell Aldridge to stay away from union meetings, he did not similarly testify as to Cade I have credited Cade. "There had been a meeting the previous day, Sunday, June I l 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD h. Johnny Sparks On June 5, 1967, Oakley Collins stopped Johnny Sparks at work and asked him to get into his car. Sparks did. Collins said he was not supposed to talk about the Union but that if the Union came in it would be impossible for him to operate under the contract and he would have to shut down and sell his equipment before he went bankrupt. Collins said if it did not get in he would give them all a nice raise in their pay." Collins pulled a piece of paper out of his pocket and said he had been around to the men and wanted them to sign that they were not going to vote for the Union . Collins asked if he could put his name on it. Sparks told him yes. Collins signed Sparks' name and put an X in front of it . Sparks did not see what else was on the paper. i. Curtis Leffingwell The day before the election Oakley Collins came to Curtis Leffingwell's house and told him that he wanted him to be sure to vote right . Collins told him that if he ever needed a favor not to be afraid to ask him. Immediately after the election, Collins came to his house and asked him how he voted . Collins mentioned that he was pretty sure that he had Lee Middleton's vote. Both Leffingwell and Middleton cast challenged ballots. Collins said he thought he had it won." j. Carlton Malone Two or three weeks before the election Oakley Collins came to the home of Carlton Malone and asked him if he would vote against the Union. Collins said that it would be impossible for him to run under union conditions and that if Malone voted against the Union he would be sure of a job." Malone had not returned to work for Respondent at that time. Collins told him that just about every man had said he would vote against the Union, but did not say how he knew. k. James Jenkins On June 12 Oakley Collins visited the home of James Jenkins. Collins said he had come to see him about the election and would like Jenkins to help him out in the election. Jenkins said he would. Collins said if the Union came in he could not operate under their ridiculous prices, especially with the 40-percent royalty, and they would all be out of jobs . Collins asked Jenkins if he worked with George Sparks at Clark Wire where Jenkins was working while awaiting recall. Jenkins said that he did . Collins asked him to talk to Sparks and said that Sparks would vote for Collins if Jenkins spoke to him. 1. Lawrence Otworth On June 5 Lawrence Otworth, who had not yet been recalled to work , was called to Respondent's office. "Collins said he was not supposed to discuss money with them , but did not say that he could not. "Collins did not deny this testimony , but conceded that after the election he had asked an individual who had cast a challenged ballot how he had voted on advice of counsel because they wondered about it. "Collins did not testify as to the statement attributed to him by Malone that if Malone voted against the Union , Malone would be sure of a job. Collins told Otworth he would have to lay the law down to him. Otworth replied that Collins could not lay the law down to him because he was not working . Collins said that he had intended to put Otworth back to work, but if Otworth was going to talk like that, Collins did not know that he would. Collins then asked Otworth if he had decided how he was going to vote in the election. Otworth replied that he would vote the way he wanted and no one would know how he voted. Collins said it would be all right with him if Otworth did not vote at all. Otworth asked Collins what would happen if the Union lost the election. Collins told Otworth he would give him a quarter raise but that Otworth should be quiet and not tell the Union about it. Otworth then reminded Collins that when he was called in he thought he was going to be put back to work. Collins told him he would take a chance with him and to report on June 7 for work. in. Frank Laber Around August 1 when Frank Laber was recalled to work, Oakley Collins asked him if he had signed any statements for the Board . Laber replied that he had, and Collins told him not to sign any more. Collins also told him not to go to any more union meetings." n. James Aldridge Testimony of James Aldridge that in early May Oakley Collins asked him not to go to union meetings or fool around with the Union was specifically denied by Collins who gave a different version of their conversation. The fact that this relatively unimportant conversation was singled out for specific denial when so many more significant conversations were either ignored or denied in only general terms by Collins persuades me that Collins should be credited in this denial." o. Willie Martin On the day before the election, Oakley Collins visited Willie Martin at his home and asked him to persuade his son-in-law, Andy Jack Akers, to vote against the Union. Martin said his son-in-law would make his own decision and Martin would not interfere with him . Collins named a number of individuals, including the wives of some of the employees, and asked if they had been at the union meeting on the previous day. Martin replied that he did not pay much attention to who came and went . Collins also asked what Bascom Owens had said about Collins at the meeting. Collins told Martin that he could not operate under the Mine Workers contract." "I have credited Laber over Collins' general denial that he questioned any employees about whether they had given statements to the Board "Aldndge also testified that on an unspecified date he asked Collins if he was going to give a raise and that Collins replied that he was going to give a big one. Aldridge conceded that the Union was not mentioned at the time Lacking more specifics as to the timing and context of this exchange as well as Aldridge's further testimony that Collins had never promised him a raise, which was ambiguous as to the time period referred to, I find this testimony insufficient in any event to establish a promise of an increase related to the election. "I have credited the testimony of Martin as to this conversation insofar as it was not contradicted. Oakley Collins denied other testimony of Martin, who was never recalled after the strike. As I have noted, in his testimony, Collins was asked specifically about the testimony of only a few COLLINS MINING COMPANY p. Oscar McCann One afternoon about a week before the election Oakley Collins called Oscar McCann to the office and asked him which way he was going to vote. McCann said he did not know. Oakley Collins said that if the Union came in he would probably have to go bankrupt and asked if he wanted to see him go bankrupt. McCann said he did not want to see anyone go bankrupt. Collins asked him if he could give him a definite answer before the time of the election on how he was going to vote. McCann said he would try to do so. Collins said he was going to work his friends more than his enemies and that he could not work his enemies. On the Monday before the election Oakley Collins talked to McCann in the parking lot. He asked McCann if he had made up his mind how he was going to vote. McCann said he would have to let him know. Collins again told him that he could not operate under union conditions. Collins asked him who was at the union meeting that Sunday. McCann testified that he did not know the faces of all of them and there was not much he could tell him about that. Collins asked him what kind of food had been served at the meeting . McCann told him, and Collins said jestingly that he could have done that." q. Bascom Owens Bascom Owens testified to two conversations with Collins, one a week before the election and the other just before the election. Collins specifically denied the remarks attributed to him by Owens. Owens testified that another employee, Orville Self, was present at the first of these conversations, but Self was not called as a witness. Owens' testimony on cross-examination left some doubt as to the extent to which his testimony was colored by feelings of partisanship for the Union. Accordingly, I have not credited Owens as to these conversations. of the many witnesses called by the General Counsel and otherwise met the remaining testimony with general denials or left it uncontradicted. I have attached greater weight to the specific contradictions which required Collins to focus on the identity of the witnesses who testified to the contrary than upon his general denials which were unaccompanied by any recital of Collins' version of the specific conversations to which the General Counsel's witnesses testified. "McCann was one of the witnesses to whom Collins addressed himself directly in his testimony. Collins testified that it was not true that he told McCann he would probably go bankrupt if the Union came in, he would work his friends more than his enemies, or that he asked McCann who attended union meetings. He testified that he told McCann on two or three different occasions merely that it would be economically impossible for him to operate with the Union and McCann said he believed that He testified that his conversations with McCann were friendly and he never asked McCann to do anything. While, as I have indicated, this testimony gives me more pause than Collins' general denials, I have concluded that McCann is to be credited . McCann was employed at the time of the hearing and gave every appearance of candor in his testimony When testifying concerning physical examinations for drivers which the General Counsel contended were required for discriminatory reasons, McCann readily conceded that he was told that an examination would be required before the Union ever appeared on the scene. His testimony discloses a conversation in many respects similar to those described by other witnesses, and I am convinced that in two or three conversations with McCann, Collins did not restrict himself to the simple repetition of the statement that it would be economically impossible for him to operate In addition to his testimony on which the above findings are based McCann also testified that at the time of his second conversation with Collins, he saw a list of names with red and blue check marks on it on Collins' car seat As he did not testify that Collins made any reference as to this list, I find it unnecessary to make any findings with respect to this testimony r. Ronald Bruce 233 On June 11, 1967, Collins came to the home of Alfred Turvey, father-in-law of Ronald Bruce, and drove Bruce a short distance away to talk with him. At first they talked about hunting and fishing. Then Collins told Bruce he had come to talk to him about the election. What happened thereafter is in dispute. According to Bruce, Collins asked him if he would vote against the Union, and Bruce did not tell Collins either way. Bruce testified that Collins told him that if the Union got in they would both be out of a job, but according to Collins he stated merely that it would be economically impossible for him to operate with the Union. Bruce testified that during this conversation Collins gave him some money, told him not to tell anyone about it, and asked Bruce if he had any gas in his car. According to Bruce, Collins told him to fill up his tank and go around and see if he could get some of the other employees to vote against the Union. Collins testified that he gave Bruce $9 in cash because Bruce told him he did not have any gas in his car, did not have any food for his children, and was in dire need. Since Bruce had been out of work for a long time, Collins testified that he told Bruce that if he needed money he would loan him a few dollars until he came back to work when it could be deducted from his pay. According to Collins he informed his office manager of the amount of the loan shortly after it was made and it was deducted after Bruce returned to work. Bruce conceded that he had been out of work since December, but he denied that he asked to borrow money at that or any other time, although it was a common practice for employees to borrow money and repay it directly or through a payroll deduction. According to Bruce, during their conversation Collins told him that if he defeated the Union, Bruce would be called back to work in a week or two and would be making $100 a week. Collins testified only that he told Bruce that anyone could make $100 or more providing they worked. It is clear that after Bruce returned to work in December 1967, which was after issuance of the complaint herein, a deduction in the amount of $9 was made for a loan from his December 31, 1967, pay. Bruce testified without contradiction that at the time of the deduction, he asked Collins why it was made, and Collins replied that he had borrowed the money, which Bruce disputed." In support of Collins' version, Arlen Sturgil, Respondent's office manager, testified that Collins told him of the loan at the time it was made and that he made a note to place in Bruce's personal file until it was repaid. The note, bearing a date of June 17, 1967, was received in evidence. There is some basis to discount the December deduction from Bruce's wages, as Bruce promptly protested the deduction and at the time Respondent had been apprised of the allegation in the complaint that Collins had given money to employees to induce them to persuade other employees to vote against the Union. The disparity in the date of the note, which shows a date after the election whereas the conversation by all accounts occurred before the election, also raises some question as to its validity. On the other hand, I am struck by the fact that although the complaint alleged no specific amount of money, both the note and the deduction were in the "Although Respondent's office manager testified that Bruce did not dispute the deduction, Collins did not contradict Bruce's testimony in this regard. 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amount which Bruce testified he was given 6 months earlier. In the light of Sturgil's corroboration of Collins and the lack of likelihood that Collins would have recalled the precise amount which he gave to Bruce had he not recorded it close to the time of their conversation, as well as the improbability that he would have recorded the amount if he did not anticipate repayment, I have concluded that Collins is to be credited as to the circumstances under which Bruce was given the money. Lacking confidence in Bruce's testimony as to the loan, I further credit Collins' version of their conversation. s. William Howell William Howell testified in some detail as to conversations between him and Oakley Collins in which Collins asked him to observe union meetings for him and offered him money to spend in trying to obtain information from employees and to induce them to vote against the Union. According to Howell, Collins gave him $20 on five occasions and $40 on a final occasion at weekly intervals for 6 weeks before the election." The testimony of one witness , Carlton Malone, whom I have otherwise found credible, was offered to corroborate Howell by showing that Howell had sought to induce Malone to vote against the Union by offering him a dollar which he described as Respondent's money. Howell also testified to several other conversations with Collins on which allegations of the complaint were based. Howell's testimony was placed in sharp issue. Collins denied most of it in considerable detail, testifying that on two occasions he made loans to Howell in the amount of $20 each but that he never gave money to Howell in the circumstances Howell described . He also denied that he asked Howell to observe union meetings. Howell's reputation for veracity was attacked by the testimony of two witnesses, and Howell' s admission that he was a heavy drinker was amplified by further evidence of his alcoholic history. Testimony was also introduced to contradict denials of Howell that he had made threatening statements concerning a nonstriker during the strike. Despite the concentrated attack on Howell 's testimony, there is some cause to doubt its success. Although Collins testified that he loaned Howell $20 on two occasions during the 6 weeks before the election , no evidence of repayment by Howell was offered, despite the fact that he was continuously employed during this period by Respondent." It is also clear from the testimony of Arthur Dickens and the lack of disavowal from Collins that Howell furnished information to Respondent concerning attendance at union meetings, although it is not conceded that Respondent requested it. However, there are other offsetting considerations. Despite the fact that Howell claimed to have received $140 above his regular pay during the 6 weeks before the election, he conceded that he requested a $20 loan from Dickens during the same period . Although he denied borrowing money from both Collins brothers during this period, he conceded that he had done so on other occasions. This testimony raises both a question as to why he would have needed additional funds at this time and why he went to Dickens for a loan if he had no outstanding loans from either Collins. Although Howell "Howell also testified that Collins gave him $28 every time he sat out on a Saturday, but this testimony was not further explained. "The lack of this evidence is in marked contrast to the evidence offered with respect to Bruce. testified that he was given money by Collins to drink and talk with other employees and to try to solicit their votes against the Union, there is scant evidence to show that Howell did what was asked beyond observing union meetings and reporting as to who was there . Howell testified that Collins named some employees that he wanted Howell to talk to and that he told Howell certain things to say to them . Yet despite the fact that some of the named employees were called by the General Counsel and the complaint alleged that Howell was an agent of Respondent, none were asked whether Howell had spoken to them about these matters, and indeed only a single witness testified to solicitation by Howell . In view of the attack on Howell's credibility the failure to show greater evidence of his antiunion activity raises doubt. While one may argue that Howell's reputation and drinking habits made him an ideal choice to serve as a paid informer, since his credibility could be readily attacked if it developed that he was a double agent, one may not ignore the fact that his reputation and drinking habits raise serious questions as to his credibility, going as they do, not only to his veracity but also to his reliability as an observer and reporter. Also it may be questioned whether one in his position is not more likely than one with a more stable history to volunteer his services in the hope of currying favor or gaining future reward." In sum, there is sufficient cause to doubt Howell's crediblity that I am not persuaded that he should be credited. It may well be that Howell's testimony in these areas was not wholly without foundation and that Collins made some of the statements that Howell testified were made to him, but there is sufficient doubt so that I do not rely on Howell's testimony where contradicted. I do find, however , upon consideration of his testimony in conjunction with that of Oakley Collins and Dickens, that Howell did volunteer information as to attendance at union meetings to Collins and Dickens. t. Concluding findings The evidence set forth above establishes a number of the violations of Section 8(a)(1) alleged in the complaint. Thus, during the period before the election Oakley Collins questioned a number of employees about their voting intentions, " the union sympathies of other employees,90 whether they were going to vote," attendance at union "In this connection a puzzling fact is that when Respondent gave a general increase on June 16, 1967, Howell was not given the increase, and resigned on the following day because he did not get a raise At that time, at his request, he was given a letter of recommendation by Oakley Collins. However, on June 20, Howell returned to ask to be reemployed and was employed It would seem that if Howell had served as an observer at Respondent's request and had been given money to spend in drinking with other employees, he would not have been denied the pay increase generally given to other employees, thereby giving him a reason to reveal his activities to the Union, particularly if as he testified , he had been offered an increase during the strike to return to work Nonetheless, even if Howell had acted as a volunteer, as Respondent had long tolerated his drinking and had paid him at a higher rate of pay than most of its other employees, it is difficult to understand why he was not given an increase at this time It seems clear that as Collins testified, for one reason or another, he believed it would be good for Respondent if Howell quit and he did nothing to stop him. While the reason may be unclear , it seems less likely that Collins would have seen fit to permit Howell to quit because of dissatisfaction if Howell was in a position to make revelations damaging to Respondent than if he had merely volunteered information to Respondent "Andrew Sorrell, Franklin Carmon, Carlton Malone, Lawrence Otworth, Oscar McCann "Andrew Sorrell "Carl Shepherd, Oscar McCann. COLLINS MINING COMPANY meetings, 66 why they attended union meetings," and the union activities of other employees." In addition , Collins asked Frank Laber whether he had signed statements for the Board and asked Curtis Leffingwell how he had cast his challenged ballot . All of this questioning exceeded the bounds of any proper inquiry, and particularly in the context of the other coercive statements which frequently accompanied the interrogation , violated Section 8 (a)(1) of the Act. By various comments Collins also created the impression that he was maintaining a surveillance over their union activities by keeping lists of those for and against the union" and lists of those who attended union meetings, "" describing who attended or what happened at union meetings," indicating awareness of meetings with union representatives," and stating that he knew the voting intentions of the other employees." This conduct also violated Section 8(a)(1). Collins also told a number of employees both that he could not operate the mine under the Union but would give them raises if the Union was defeated ." In some instances he told employees he could not operate with the Union without mentioning the increases,"' and vice versa." In one instance without being specific, Collins told Andy Jack Akers he would make things right for him if he voted for Respondent. He also told Curtis Leffingwell that if he ever needed a favor, not to be afraid to ask him. He told Carlton Malone before Malone returned to work that he could not operate with the Union but that if Malone voted against the Union he would be sure of a job. Collins told McCann that he would work his friends more than his enemies. Collins' statements that he could not operate under the Union must be considered in the context of the Union's campaign . In its initial letter to the employees, the Union set forth the wages and benefits paid employees under union contract in strip mining operations . Those wages and benefits exceeded by far those granted by Respondent. As the Union sought to organize Respondent's employees by pointing to these as benefits the employees would derive from a union contract , it was not unreasonable for Respondent to reply by pointing out that it would be economically impossible for it to operate and pay these benefits. Although I am persuaded that Collins said more than merely that it would be economically impossible for him to operate, I am also persuaded from the testimony of Collins and the employees that after the settlement Collins' statements to the effect that he would be forced to shut down were not intended to and did not convey the thought that Respondent would shut down in retaliation for the employees' union activities but as a consequence of the impossibility of operating under the terms of the contract which the Union advertised. This far Collins was entitled to go without violating the Act." "Harold Cade, Franklin Carmon, Donald Cade, and Willie Martin. "Franklin Carmon "Andy Jack Akers. "Andrew Sorrell, Franklin Carmon, Donald Cade, and Johnny Sparks. "Carl Shepherd, Harold Cade, and Donald Cade. "Carl Shepherd , Franklin Carmon, Clayton Henderson, and Willie Martin. "Andy Jack Akers. "Carlton Malone. "Andrew Sorrell, Harold Cade , Donald Cade, and Johnny Sparks. "Carl Shepherd (Shepherd conceded that he was never promised anything to vote a,Qeytainsway), Franklin Carmon, Clayton Henderson, James Jenkins, and Qscar McCann. "Clayton Henderson and Lawrence Otworth "Wilmington Heating Services , Inc., 173 NLRB No. 15, Wagner 235 However, Collins did not stop at this point, for at times coupled with this prediction of the consequences of a union victory and at times independently, Collins told the employees that a union loss would bring them a wage increase and an improved overtime allowance. Although there is some evidence, as set forth below, that Respondent had told the employees before the Union campaign started that there would be a wage increase when a new shovel became operative at Fox Hollow, what he said before the election did not merely repeat that promise. Rather Respondent promised an increase if the Union lost the election and made good on its promise immediately after the election and before the condition of the earlier promise was satisfied. I find that the promises of wage increases before the election violated Section 8(a)(1) of the Act." Also unlawful were Collins' less specific offer to Akers to make things right for him if he voted against the Union, his solicitation of Curtis Leffingwell to ask a favor of him if he ever needed it, his implied promise of employment to Carlton Malone, and his combined threat and promise to Oscar McCann that he would work his friends more than his enemies which contained promises of benefit and a threat of reprisal in violation of Section 8(a)(1) of the Act. Finally, I conclude that Collins' statements to Lawrence Otworth at the time of Otworth's reemployment carried with them a threat of reprisal in violation of Section 8(a)(1). While there is some ambiguity in Collins' statement that he would have to lay the law down to Otworth, Collins' questioning of him as to his voting intentions and his comment that he would take a chance with him support the conclusion that by laying the law down to Otworth Collins referred to Otworth's union activities and not to his work. Absent any contrary explanation, I conclude that Collins sought to convey to Otworth that his chances for employment were related to his response both then and in the future. I do not find, however, that Collins' requests to employees to stay away from union meetings or his request to them to vote no (as distinguished from his questioning of them as to their voting intentions) were violative of the Act. In view of my disposition of Howell's and Bruce's testimony, I also conclude that the allegations of the complaint that Howell was an agent of Respondent through whom Respondent violated the Act, as well as the allegations that Respondent bribed both Howell and Bruce should be dismissed." 3. Alleged surveillance A number of witnesses testified that they saw Oakley Collins in the vicinity of the Steelworkers hall at Southpoint, Ohio, on several occasions at times when Respondent's employees were attending union meetings there. Several employees testified simply that they saw Collins drive by the hall without stopping.'° Collins conceded that he drove by the hall on many occasions and two or three times as he passed he saw some of his employees gathered in front of the hall. The entrance to the union hall parking lot is located on a heavily traveled Industrial Products Co., Inc, 170 NLRB No. 157. "Phillips Industries, Inc, 172 NLRB No. 32 "Further allegations that Denver Richards was an agent of Respondent through whom it engaged in additional violations of Sec. 8(a)(l) were dismissed on motion at the hearing. "Frank Carrico, Clyde Matthews, Andy Jack Akers, and Frank Laber. According to Akers, the horn of Collins' car was sounded and Collins 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD highway which the hall faces. The highway runs from Ironton to Southpoint where the plant of one of Respondent's customers is located. Collins had cause to go to Southpoint from time to time in connection with business and other matters." In dispute is whether Collins did more than drive by the hall and on one or more occasions entered the parking lot of the union hall or an adjacent restaurant to stop there. Collins denied that he ever was on the grounds of the union hall, with one exception which occurred after the events herein. Five witnesses testified otherwise. Carl Shepherd and James Jenkins who were employed by Respondent at the time of the hearing, and Lester Robinson, who was not, testified that on Sunday, April 16, during a union meeting, a group of men, including them, left the hall and observed Collins in his car on the parking lot between the hall and an adjacent restaurant. According to them, Collins drove out of the lot onto the highway while they were watching. William Malone, who was employed by Respondent at the time of the hearing, also testified that he saw Collins on the parking lot near the hall on April 16.'= According to Malone, it was at night after the end of the meeting around 9:30 p.m. when he saw Collins. Willie Martin, who was also not employed by Respondent at the time of the hearing, testified that he saw Collins pulling out onto the highway from the parking lot. Martin was confused, however, as to the date of this incident which he first placed during the strike, and then a week before the election. Shepherd and Jenkins both of whom were employed at the time of the hearing impressed me favorably as witnesses. Shepherd in particular was direct and to the point in his answers both on direct and cross-examination and readily conceded that no threats or promises were made to him and that he was never asked to vote against the Union by Respondent. Robinson, although not an employee at the time of the hearing also impressed me as credible. Although there are differences in the details described by them, after careful reflection I am persuaded that Shepherd, Jenkins, and Robinson sought to convey truthfully what they observed on the occasion with discrepancies in their versions flowing either from failure of observation during a short interval of time or failure of recollection. I am not persuaded that these failures are sufficient to warrant the conclusion that their testimony that they saw Collins on parking lot were fancied or invented, and I credit their testimony that Collins drove onto the parking lot near the Southpoint hall on April 16 where he was observed by some of the employees. In the case of Malone, I have rejected his testimony with respect to another incident of alleged nighttime surveillance. Malone's identification of the day as a weekday and his placement of the time of the incident later than the other witnesses and after the end of the meeting leaves in doubt whether he was describing the same incident as the other witnesses. I do not rely on his testimony as to this incident. As for Martin, it is difficult to tell from his brief testimony when the incident which he described occurred and whether it was the same incident as that described by Shepherd, Jenkins, and Robinson. I base no further findings on his testimony in this regard. As for those occasions when Collins was observed merely driving by the Southpoint hall, for the reasons set forth above in connection with similar incidents during the strike, I find the evidence insufficient to establish that Collins sought thereby to engage in surveillance of the employees' union activities. However, absent any evidence to show a purpose unrelated to observation of union activities, I conclude that Collins' presence on the parking lot near the hall was not coincidental and was for the purpose of engaging in surveillance of the meeting in violation of Section 8(a)(1) of the Act. In reaching this conclusion I have considered the abundant additional evidence, much of which is uncontradicted, which establishes Collins' continuing interest both before and after execution of the settlement agreement in the identity of employees attending union meetings. 4. The wage increase On Friday, June 16, 1967, 3 days after the -election, Oakley Collins assembled the employees and told them that he was trying to work out increases for them and that no one on the job would make less than $100 a week if they came out and worked. A number of employees were given increases effective that date." At this time Respondent also started to pay at least some of its employees time and a half for overtime work. Oakley Collins testified that before the union organizing campaign started, when Respondent purchased a Marquette electric shovel and made plans to consolidate its mining operations at Fox Hollow, Collins had told some of the employees that there would be a reasonable wage increase when the shovel got to Fox Hollow. Until the strike Respondent mined at two separate locations. Two weeks after the strike, mining activities at one of the locations, LaGrange, were terminated and Respondent began to move equipment from LaGrange to Fox Hollow to consolidate operations and equipment at that location. Although the Marquette shovel had been purchased a year before, it had not been moved to Fox Hollow at the time the increase was given and did not in fact become operative until late 1967, at the time when Andrew Sorrell and Bascom Owens were transferred from operators' to oilers' duties." A number of employees testified that they had heard rumors before the Union appeared on the scene that there would be increases after Fox Hollow got into production, although none of them testified that they heard this directly from Collins. Two employees testified that they heard that the raise would be given when a shovel was moved from Superior to Fox Hollow." I have credited the testimony of Collins that Respondent had communicated to employees an intent to grant future increases at the time it began to formulate its plans with respect to Fox Hollow. As to the exact nature of the promise, i.e., whether it was contingent on Fox Hollow getting into production, the move of the shovel waved It is not clear whether they were describing the same or separate incidents. "Although several employees testified that they saw Collins pass the hall on a Sunday, Collins testified without contradiction that Respondent's trucks made deliveries to Southpoint on Sundays and that maintenance problems sometimes required that he go to Southpoint on Sundays. "Malone described the time as a weekday evening . However, April l6 was a Sunday "It is not clear whether any employee other than Howell failed to receive an increase . To the extent that the record indicates, the increases ranged from 15 to 35 cents an hour and amounted to increases of 10 percent or more above previously existing hourly rates 'This is clear from the testimony of Collins and Laber, as well as Sorrell and Owens. "This was evidently a different shovel from the Marquette shovel and it arrived at Fox Hollow before the election COLLINS MINING COMPANY 237 from Superior, or the arrival of the Marquette shovel, while the testimony of the employees as to the rumors is to some extent more favorable to Respondent's position than that of Collins, I again credit Collins. Collins certainly was in a better position than his employees to know what he had in mind. Collins not only testified that he had promised the increase to take effect when the Marquette shovel went into operation at Fox Hollow, but he testified further that when he announced the increases after the election, he told the men he was trying to work out a reasonable increase even though the shovel had not gone into operation yet, explaining that they were in the process of moving the machine into the area at that time. I conclude accordingly that Collins had told at least some of the employees before the union campaign that there would be an increase when the Marquette shovel became operative at Fox Hollow." Although the increases were not granted until after the election , the increases were unlawfully promised before the election in the event the Union lost and were granted in fulfillment of the unlawful promise. The grant no less than the promise interfered with employee rights and violated Section 8(a)(l) of the Act.77 As the increase was granted at a time when the results of the election were indeterminate because of the challenged ballots and the possibility that objections would be filed, it must be viewed as an attempt to further undermine the Union in the event of either a certification or a second election." E. The Alleged Postsettlement Violations of Section 8(a)(3) 1. Introduction Following execution of the settlement agreement, a period of confusion appears to have existed. Although the agreement was approved on February 6 and the notice was posted by Respondent on February 13, the employees remained on strike until February 20 and did not respond to Respondent' s representations that the charges had been settled. Respondent made efforts to recall employees, but few employees responded to the recall before February 20. On or about that date pickets were removed, and employees began to return to work as called by Respondent. At that point, although Respondent had initially indicated to some employees that they had lost reemployment rights by rejecting offers of reinstatement, Respondent again offered reemployment to employees as needed in order of seniority, with exceptions discussed below, without regard to whether they had refused reinstatement before February 20. The complaint alleges that following the settlement Respondent engaged in further acts of discrimination by requiring employees to take physical examinations as a "Collins testified twice that he had told the men there would be an increase when the shovel arrived at Fox Hollow and once that he told them there would be an increase when it became operative there. The record does not indicate the interval, if any, between the time it arrived at Fox Hollow and the time it became operative in late 1967. However, the time it became operative would appear more significant in relation to the timing of a wage increase than the time of the arrival of the shovel, and I conclude that it was Collins' stated intent to relate the increase to the operation of the shovel if, indeed, there was any practical difference in the two versions. "N L.R.B. v Exchange Parts Company, 375 U.S. 405; Noma Liles Corp, 170 NLRB No. 142 "Ralph Printing & Lithographing Co., 158 NLRB 1353, enfd. as modified 379 F.2d 687 (C.A. 8). condition of reinstatement, subcontracting work to avoid reinstating employees who were discharged in December 1966, requiring reinstated employees to perform additional duties to avoid reinstating other employees, offering Curtis Leffingwell reinstatement to a position which Respondent knew that Leffingwell was incapable of performing to force him to reject the offer, and refusing to reinstate 15 named employees in accordance with the terms of the settlement agreement because of their union activities and in order to discourage membership in the Union." 2. The requirement of physical examinations Four employees, all truckdrivers,80 testified that at various times following the strike, they were asked to visit a doctor supplied by Respondent to take physical examinations in order to become eligible to return to work. None had taken physical examinations previously. When Otis Martin was asked to take the physical he was told that it was required by the Interstate Commerce Commission, and Oscar McCann was told that a physical examination would be required even before the union activity began, but he did not take it until after the strike. I find, as Coleman Collins testified, that Respondent had been told by an ICC examiner in September 1966 that Respondent had to have all its drivers examined before January 1, 1967.81 For reasons unrelated to the union activities of the men the matter was not pursued before the strike began, but there can be little doubt that the institution of the requirement of physical examinations at the time of reinstatement of the drivers was attributable to ICC requirements and not to any desire to discriminate against the drivers in their reinstatement. Accordingly, I find no merit in the allegation of the complaint that Respondent discriminatorily required the physical examinations in violation of the Act. 3. The subcontracting A brief description of Respondent's operations is required to place the facts relating to this issue in context. Respondent operates a strip mine. In order to reach the coal, overburden, which lies above a seam of coal and consists of dirt and rock or shale , must first be removed. The coal is then removed. A small portion of the coal mined by Respondent is sold as raw coal. Raw coal is delivered directly to the customer from the mine without further processing . The remainder is separated from slate or other impurities and taken to the Respondent's tipple where it is washed and screened, and then delivered to customers. Respondent owns two types of heavy hauling equipment known as cat wagons and Dart haulers which are utilized to haul coal from the pit to the tipple. It also owns a number of tractors and trailers which haul coal over the road to customers. Respondent conceded that after the strike it used some independent contractors to haul coal for it, but denied that the use of the outside haulers was discriminatorily motivated. Both Oakley and Coleman Collins testified "At the hearing a motion to dismiss the allegations of the complaint as to 2 of the 15 named employees, Franklin Carmon and Ted Sergeant, was granted in the absence of any evidence to support the allegations as to them. "Otis Martin, Carl Shepherd, Oscar McCann, and James Aldridge. "I have credited Coleman Collins in this regard . His testimony is corroborated by the testimony of Oscar McCann and an ICC report dated September 27, 1966, which was received in evidence. 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that at the time Respondent started to utilize independent contractors after the strike, all of Respondent' s equipment in operating condition was manned, and the contract haulers were used to supplement Respondent' s hauling capacity rather than to replace any portion of it. Following the strike, it appears that Respondent did not utilize any independent or contract haulers to haul coal for it until sometime in July 1967.83 The contract haulers carry loads smaller than those carried by Respondent's trucks, and for the most part have been utilized to haul raw coal directly from the pit to two of Respondent's customers who purchase raw coal. During the strike one of the customers, a large industrial plant located at Southpoint, started to purchase coal from a number of different sources as Respondent could not fill its needs. It has continued to buy from multiple sources since the strike. The effect of the increase in its sources has been that each day many more trucks made coal deliveries to that plant than before the strike. Congestion has increased at the unloading area and the number of round trips a single truck can make in one day between Respondent's pit and the plant has been reduced.- At the time the subcontractors began to haul coal, Respondent's monthly production had been restored nearly to prestrike levels and in the months which followed it equaled or exceeded them. Although the record establishes that some of Respondent's drivers were not recalled at any time after the strike, the evidence is uncontradicted that at the time Respondent started to utilize contract haulers, all of its operable hauling equipment was manned," and no evidence was offered to show that Respondent had the capacity to employ more drivers rather than utilize independent haulers." While there is uncontradicted evidence that the earnings of William Malone, a cat wagon driver, declined during the period after his recall when independent haulers were used, Respondent offered testimony, which was also uncontradicted, that its cat wagons were old and in poor operating condition so that they were frequently down for repairs. Although as set forth below there is some evidence to indicate that Respondent was not anxious to employ Malone, on the state of the record before me I cannot conclude that the use of the independent haulers rather than the poor condition of the cat wagons was responsible for the decrease in Malone's work opportunities. Accordingly, I conclude the evidence is insufficient to support the conclusion that the independent haulers were used to evade Respondent' s obligations to reinstate and "Although the testimony of Coleman Collins at one point indicates that contract haulers were used immediately after the strike, Oakley Collins testified that after the strike the first contract hauler appeared on the job in July. His testimony is essentially corroborated by William Malone who testified that the contract haulers first appeared after he returned to work in May, James Aldridge who testified that they first appeared in July, and Dayton Minix who testified that they first appeared in August "These findings were based on the uncontradicted testimony of Coleman and Oakley Collins. Their testimony indicates that a similar problem exists in connection with deliveries to other customers as well "Oakley and Coleman Collins so testified. "Coleman Collins testified that at the time of the hearing Respondent had 9 or 10 tractor-trailers in operation, and utilized 8 contract haulers all of whom did not haul for Respondent every day. Collins had 10 trucks of its own in use before the strike . There is no explanation in the record for the decrease in the number of drivers needed by Respondent to man its equipment after the strike, but it would appear that the burden was on the General Counsel to establish that Respondent could have utilized additional drivers to overcome the explanations offered by Respondent. employ its drivers who supported the Union rather than, as Oakley Collins testified, to supplement Respondent's capacity to deliver coal and increase its production. 4. The offer of reinstatement to Curtis Leffingwell The complaint alleges that Respondent required some employees to perform additional duties to avoid reinstatement of other employees who were discharged in December 1966. The complaint also alleges that Respondent offered Curtis Leffingwell reinstatement under the terms of the settlement agreement to a job which he was incapable of performing in order to force him to reject the offer. As both allegations relate to Curtis Leffingwell they will be considered together. Curtis Leffingwell had worked for Respondent for about 12 years before his discharge. At the time of his discharge he worked from 6 p.m. to 7 a.m. each night. He greased Respondent's trucks, changed their oil and filters, and did other mechanical work around Respondent's garage. Leffingwell was considered a mechanic's helper.86 At some point after Leffingwell's discharge Oakley Collins visited his home. Collins told him that he was sorry he had fired him and would admit that he made a mistake.87 However, he did not offer Leffingwell reinstatement at that time. Around May 1, Leffingwell was called to Respondent's office. Coleman Collins told him he wanted Leffingwell to return to work as a mechanic on the hill equipment. Leffingwell said he did not think he could do the work. Collins expressed a contrary opinion and said that if he called Leffingwell's brother, Sam, back they could do the work together, but that he could not call Sam because Garland Wineka had not yet been recalled. Collins said that he could not do what he wanted to because of the NLRB's supervision of the implementation of the settlement agreement. Leffingwell told Collins to give him a week or two to make a decision, and Collins agreed to give him time.B" Leffingwell was in business for himself cutting pulpwood at the time and had some equipment that he wanted to get rid of. He told Collins that he would need 2 weeks to wind up his business. Leffingwell in fact made arrangements with another man to learn to operate Leffingwell's equipment and take it over, but Leffingwell became dissatisfied with the way he treated the equipment, and Leffingwell went back to cutting wood. Immediately after their May 1 conversation, Collins sent Leffingwell a letter dated May 2, 1967, confirming their conversation. The letter stated "It is mutually understood your employment is dependent upon your ability to perform the duties of a mechanic." An immediate reply was requested. Leffingwell did not answer the letter and did not return to the office to discuss the matter further. However, sometime after receiving the letter he met Coleman Collins by chance and told him that he could not return. He was not offered a job thereafter. Leffingwell testified that he had done some mechanical work in his prior employment but could not do all that was required of a mechanic. As he saw it under the terms offered him, he would be required to do all kinds of mechanical work if he accepted the job. "All witnesses, including Coleman Collins, and mechanics Gordon Salyers and Frank Russell, who testified for Respondent, so described Leffingwell "Leffingwell so testified without contradiction "Leffingwell testified to this conversation without contradiction. COLLINS MINING COMPANY 239 Three drivers testified without contradiction that after the strike the truckdrivers were required to grease their trucks and change their oil and oil filters . " These duties had been performed by Leffingwell before the strike, and no explanation was offered for the transfer of these duties to the drivers after the strike. Although the evidence indicates that Leffingwell's rejection of Respondent's offer of reinstatement may have rested at least in part on his difficulties in disposing of his log cutting equipment, it is clear that Leffingwell was not offered reinstatement to his former or a substantially equivalent position as required by the settlement agreement. As will be seen below, Respondent later sought to justify passing over Garland Wineka to recall Lee Middleton on the ground that Middleton was a mechanic while Wineka was only a helper . Respondent offered evidence at the hearing to establish that mechanics, unlike helpers, were expected to perform a full range of mechanical work. Yet Leffingwell, who had not worked as a mechanic before the strike, was explicitly told in Coleman Collins' letter of May 2, confirming their conversation, that his employment was dependent upon his ability to perform the duties of a mechanic. Whatever additional reasons Leffingwell may have had for rejecting the offer, it is clear that Leffingwell, as he told Collins, did not consider himself qualified to do a mechanic's work, and it is impossible to say that his response would have been the same if he had been offered reinstatement to his former job. I conclude therefore, at the very least, Respondent failed to comply with the terms of the settlement agreement by offering Leffingwell reinstatement to his former or a substantially equivalent position , and that his rejection of the offer of a different job did not extinguish his reinstatement rights. As noted the complaint alleges that in offering Leffingwell a mechanic's job, Respondent's purpose was to force him to reject reinstatement and that Respondent reassigned some of his former duties to other employees to avoid reinstating him. There is evidence to support these allegations. As set forth above, Leffingwell was an early supporter of the Union and allowed his home to be used for organizational meetings. Oakley Collins let Leffingwell know that union organizers had been seen at his house, and after Leffingwell was discharged, Collins told another employee that he had gotten the ringleader. One may not ignore the settlement agreement as an indication that Respondent changed its ways after its execution, and indeed Leffingwell himself testified that Oakley Collins communicated an apology to him at some point after his discharge. However, measured against Respondent's other postsettlement conduct found herein to have violated the Act, one is drawn to the conclusion that Respondent's desires to frustrate the Union's efforts to become the representative of its employees overcame any good intentions it may have had and colored its treatment of Leffingwell. If the offer to Leffingwell was made in good faith and out of a desire to offer him improved employment because his old job was not then available, it is impossible to understand why Leffingwell was treated thereafter as having quit his job when he sought to vote in the representation election. That Respondent at all times took the position that Leffingwell was obligated to accept the offer , in contrast to its treatment to Wineka, who if anything appeared more qualified than Leffingwell to do a mechanic' s work, supports the contention that "James Aldridge , Oscar McCann, and Donald Cade. Respondent's offer was not made in good faith. That Respondent's offer was intended to avoid rather than fulfill its obligation to Leffingwell also appears from the transfer of some of his former duties to the drivers. While these were not Leffingwell's sole duties, one cannot overlook the fact that Respondent's witnesses testified that during this period it was suffering considerable mechanical difficulty with some of its older equipment, and indeed when it recalled Frank Laber in August, Laber was assigned to work part time as a mechanic's helper despite the fact that he had previously driven a fuel truck full time. Thus, it is difficult to conclude that Respondent could not have utilized Leffingwell's services in his former capacity. To be sure the inference as to Respondent's motivation in offering Leffingwell the mechanic's job and transferring some of his former duties to other employees is not so strong that it could not have been overcome by plausible explanations for these actions. But both were unexplained. I conclude accordingly on the record before me that Respondent offered Leffingwell reinstatement to a job he could not perform either to force him to reject reinstatement or to put him in a position from which it could justify a later discharge if Leffingwell accepted and that Respondent assigned duties formerly performed by him to other employees to avoid offering him reinstatement to his former job thereby violating Section 8(a)(3) and (1) of the Act. 5. Alleged refusals to reinstate strikers in accordance with the settlement agreement a. Andrew Sorrell Sorrell had been employed since 1953 and worked as a diesel dragline operator before the strike. Sorrell was third in order of seniority among the dragline operators on the preferential hiring list . Immediately after the posting of the settlement agreement Oakley Collins attempted to find Sorrell to recall him to work. Sorrell was absent from his Ironton address during part of this period and Collins did not find him. He recalled a less senior operator. Within a week, around February 20, Sorrell telephoned Collins and asked him if he wanted to talk with him. Collins told Sorrell that he wanted him to come back to work at the end of that week. Collins told him that he had been looking for him for about a week to ask him to return to work, had been unable to reach him, and had to call someone else in ahead of him. Within a week thereafter Sorrell returned to work.99 Even if Sorrell's recall occurred several days after he spoke to Collins, as Sorrell testified, I find that Respondent's recall of Sorrell complied with the terms of the settlement agreement under these circumstances. To the extent, if any, that Sorrell's recall was deferred due to earlier recall of a junior employee, the deferral was due to circumstances not within Respondent's control." "Sorrell and Collins were in basic agreement as to the content of their conversation, and disagreed only as to whether Sorrell was asked to come to work immediately or 6 days later Sorrell 's version of the conversation corroborates Collins' testimony that Collins had been looking for Sorrell and had sent word with other employees that he wanted to speak with Sorrell. "Evidence was also offered that in January 1968 Sorrell and another dragline operator, Bascom Owens, were transferred to jobs as oilers, apparently in conjunction with the replacement of a diesel draghne, which they had formerly operated , by an electric stripping shovel . Although the General Counsel adduced some evidence which seemed to be for the purpose of showing that Sorrell and Owens should have been given jobs 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD b. Charles Wall Charles Wall operated a loading shovel before the strike. The evidence is in some conflict as to an alleged offer of reinstatement to Wall. All witnesses are agreed that a call to which several persons listened on extention telephones was made from Respondent ' s offices to Wall sometime between February 16 and 19 . According to Respondent' s witnesses, Wall was told there was a settlement agreement and was asked to return to work. They testified, although with minor variation as to the words used, that Wall indicated that he might come down and talk it over with them . According to Wall , he could not hear clearly during the telephone conversation and did not hear any offer of employment. He testified that he said that he would come down and talk to them to find out what the call was about. Wall never went to Respondent's office. However, thereafter, on February 19, Wall tried to reach Oakley Collins at his home by telephone and on February 21 and 23, he tried to call him at Respondent's office. He was not successful in reaching either Collins on any of these occasions." As set forth above, there was a period of confusion with respect to the recall of strikers following the execution of the settlement agreement. The Union maintained its picket line until February 20, and prior to that date, employees generally refused to return to work apparently entertaining doubt that a settlement agreement had been entered and that the strike was ended. As Coleman Collins testified, Respondent did not regard these refusals as quits but started again at the head of the list to recall employees after the pickets were withdrawn . In these circumstances, whatever the exchange between Wall and Oakley Collins during the telephone call, I am persuaded that Wall's failure to return to work after the call was not to be construed by Respondent as a rejection of a timely offer of reinstatement and that Wall did not thereby lose his reinstatement rights under the settlement agreement. Thus by removing Wall from further consideration for reinstatement, Respondent violated the terms of the settlement agreement. At the same time, however, it is not clear that after the strike ended there was an opening to which Wall should have been recalled . The agreement required only that Respondent recall strikers in accordance with the order of listing on the preferential hiring list for a period of 1 year from the date of the establishment of the list. Prior to the strike Dayton Minix and Charles Wall operated loading shovels at Respondent's two pits. There are also three other loading shovel operators listed on the preferential hiring list, one of whom, Donald Shepherd, was senior to Wall and two of whom, Robert Joseph and David Miller, were junior . The evidence is not at all clear as to how many shovel operators were required and utilized by Respondent after the strike . Respondent consolidated its mining operations at the Fox Hollow area shortly after the strike. Although Respondent continued to utilize two loading shovels located about I mile apart from each other, Dayton Minix, a shovel operator who was senior to Charles Wall, operated both shovels alternately and there is no evidence that any shovel operators , other than operating the electric stripping shovel, the complaint does not allege discrimination against them in this respect. In any event, even if this issue was properly before me, the evidence does not establish that Sorrell and Owens were qualified to operate the electric stripping shovel. "That the calls were made was corroborated by Wall's telephone bill on which they were listed as toll calls There is no indication whether he left word that he had called or asked to be called back Minix, were employed following the strike ." In these circumstances I conclude that the General Counsel has failed to establish that there was a job opening for Charles Wall to which he should have been recalled following the end of the strike pursuant to the settlement agreement. c. James Richards Richards was a bulldozer operator before the strike. Although the General Counsel contended that Richards was not properly reinstated in accordance with the seniority date shown for him on the preferential hiring list, the General Counsel also sought to establish that the date shown for Richards on the preferential list was improper and that Richards should have been third rather than fifth in order of seniority . While it is arguable that Richards should have been given an earlier seniority date on the basis of his testimony that he was laid off because of lack of work for a period of 8 months during the early portion of his employment, I conclude that the order of listing on the preferential hiring list must be considered binding for purposes of determining whether Respondent complied with the settlement agreement . The settlement agreement provided that Respondent was to reinstate employees in accordance with the preferential hiring list. That list showed Richards as fifth in order of seniority and no attempt was made, insofar as the record shows , to have the list corrected prior to the hearing in this case. There is also no evidence to support the General Counsel's contention that Richards was not recalled in accordance with his position on the list . Henderson and Sprouse, both of whom were recalled, appeared above Richards on the preferential hiring list. Richards was not recalled until 2 or 3 weeks before the hearing in this case at which time he refused reinstatement. There is no evidence that any employee who operated a bulldozer and was junior to Richards was recalled prior to the offer of reinstatement made to Richards. Accordingly, I conclude that Respondent did not violate the obligation that it undertook under the settlement agreement with respect to the recall of Richards. d. Clayton Henderson Clayton Henderson was a bulldozer operator who appeared third on the seniority list of bulldozer operators. Henderson testified that he was recalled on June 5 and that at the time of his recall there were only two other bulldozer operators working , both of whom were senior to him. He was returned to work on the night shift although he had been working days before the strike . There is no evidence, however, that Henderson was recalled out of turn. The major question raised as to Henderson was whether replacements who worked as bulldozer operators during the strike were permitted to continue operating bulldozers after the strike, at a time when Respondent should have "Attempts were made to establish that Clifford Giles was employed during the strike and retained for a time after the strike ended to operate a loading shovel The evidence establishes that Clifford Giles first appeared on Respondent's payroll on January 16, 1967, and last appeared on its payroll on March 24 , 1967. Coleman Collins testified that Giles was hired during the stoke and operated a small loading shovel . However, the evidence does not establish in what capacity Giles was employed after the strike. In any event for reasons set forth in greater detail below in connection with the reinstatement of Otis Martin , I conclude that any failure to displace Giles immediately would not establish the existence of an opening to which Wall should have been recalled COLLINS MINING COMPANY 241 recalled Henderson . The evidence in this respect shows that Pete Mullins and Ed Shope had both operated bulldozers during the strike." According to Coleman Collins, however, when Respondent began to reinstate strikers, both Shope and Mullins stopped operating bulldozers and returned to their former employment. Respondent's payroll records raise some question as to the accuracy of Collins' testimony, but apart from those records, there is no affirmative evidence to show that in fact Shope and Mullins performed bulldozer operator's work after February 20, 1967." There is some evidence also that on occasion Foreman Pete Chaffins and grader operator C.J. Malone operated bulldozers, but there is no evidence to indicate that the operation of bulldozers by either of them was more than occasional. I conclude that the evidence does not establish the failure to reinstate Henderson in accordance with the terms of the settlement agreement. e. Otis Martin Otis Martin had been an over-the-road truckdriver for Respondent before the strike started. A few days before the end of the strike Martin refused an offer of reinstatement because the pickets had not been removed. Sometime in March or April Martin was called in by Coleman Collins who told him that he would need a physical examination before he could return to work." Martin was examined. Collins told him that he would notify Martin when to come back to work. On April 20 Foreman Chaffins, who was Martin's stepfather, stopped at Martin's house and told him that Coleman Collins wanted Martin to report for work the next day. Martin replied that he was working at Clark Wire and would have to give notice there before he could return to work for Respondent. Chaffins reported to Collins the next day that Martin said he could not return then because he wanted to give notice at Clark Wire. Collins sent Martin a letter dated April 22 which stated "This letter is to confirm your notification on 4/2067, by Pete Chaffins, to return to work on 4/21/67." This letter was received by Martin on April 24. In the meantime , on the evening of April 23 Oakley Collins telephoned Martin at Clark Wire where Martin was working on the 11 p.m. to 7 a.m. shift. Collins asked Martin to report for work the following morning. Martin replied that he would be too tired to work the next morning and that he wanted to give notice to Clark Wire. On April 26, Martin's wife wrote a letter for him which he signed and mailed to Oakley Collins. The letter stated "You asked me to return to my old job as truckdriver on full-time. I want to do so and I want to give proper notice to Clark Wire Co. So I want you to let me know in "The settlement agreement provided that replacements hired during the strike who were not in the employ of Collins Mining Company on December 14, 1966, were to be dismissed if necessary so that strikers could be reinstated. Shope and Mullins appear to have been on Respondent's timber operation payroll before the strike and were transferred to the mining company payroll during the strike where they remained until the latter part of March. "For reasons set forth below in connection with Otis Martin, I would in any event conclude that the General Counsel failed to establish that an opening existed to which Henderson should have been recalled even if they were not promptly removed from the bulldozers. "Before this, shortly after the strike ended, Collins told Martin there were no jobs because he had not returned to work when he was called. However, it is clear that Respondent did not treat Martin or others similarly situated as having forfeited their reinstatement rights. writing the exact date and time to return to Collins Mining Co. to work, I will give proper notice to Clarks. Please let me know as soon as possible." Martin received no reply to this letter.97 Earl Jenkins who was junior to Martin returned to work as a truckdriver on February 17 and worked thereafter." Several new drivers were hired during the strike. Payroll records indicate that at least two of them, Lowell Blanton and Truman Rice, continued to work until March 13, 1967." There are three questions which must be answered with respect to Respondent's failure to reinstate Martin. The first and easiest is whether Martin should have been recalled immediately after the strike to work in place of Earl Jenkins, a junior driver. Pay records refute Jenkins' testimony that he returned to work 2 weeks before the end of the strike, but they also establish that he returned on February 17 during the period of confusion which followed execution of the settlement agreement and the end of the strike on February 20. Although the strikers' rights to reinstatement were not extinguished by refusing to return until the strike ended, the settlement agreement provided only for displacement of employees hired during the strike. It did not provide for displacement of former employees who worked during the strike or of strikers who had already been reinstated. As Jenkins was reinstated before the end of the strike, under the terms of the agreement his displacement was not required to make room for strikers who appeared above him on the preferential hiring list. Accordingly, I conclude that Respondent was not required to reinstate Martin on February 20 in place of Jenkins who returned a few days before. More difficult is the question posed by Respondent's failure to displace drivers hired during the strike immediately upon its conclusion to make room for returning strikers. Although the evidence shows that two drivers hired during the strike remained on Respondent's payroll for 3 weeks after the strike ended, it is not clear whether they were replaced by other drivers when they left, and no explanation was offered for the failure to displace them earlier. However, if they were replaced, it appears that they must have been replaced by drivers having greater seniority than Martin who, rather than Martin, were entitled to earlier reemployment. If not replaced, it would appear that there was at most 3 weeks work available for Martin and one other driver, as there is no allegation that Respondent curtailed its production and employment at that time to avoid reinstating strikers. Although the record strongly suggests that Respondent was less than prompt in displacing employees hired during "These findings are based on the composite of the testimony of Martin, Chaffins, and Coleman Collins. Although Martin displayed considerable confusion as to the sequence of events, the letters, registered mail receipts, and the testimony of Martin and Chaffins in the representation hearing on April 24, contemporaneous with the events, make the sequence clear. Where Martin's testimony is in conflict with that of Chaffins, I have credited Chaffins whose recollection appeared to be better than Martin's. With respect to the telephone conversation between Martin and Oakley Collins on the night of April 23, only Martin testified and I have credited Martin's testimony in that regard except to the extent that the letter which was written on April 26, contradicts his testimony that Collins stated that work would probably not be full time. "Although Jenkins testified that he returned to work about 2 weeks before the end of the strike , the date of his return was stipulated from Respondent's payroll records. "Harold Cade testified that there were five new employees driving tractor-trailers when he returned to work. According to Cade they worked for a while and then left. 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the strike, I find it difficult to conclude on the facts before me, including the confusion which followed the settlement agreement and the consolidation of Respondent 's mining operations at the Fox Hollow area, that the retention of the drivers for 3 weeks after the strike is sufficient to establish that there were full-time driving jobs available for the striking drivers from which the new hires should have been displaced immediately after the strike in order to comply with the settlement agreement. The final question is whether Martin was given a sufficient offer of reinstatement in April so that his failure to return at that time may be deemed to have terminated his reinstatement rights. Martin was offered reinstatement to his former job on April 20 and 23. In both instances he was asked to report on the following day. In both instances it appears that he declined the offer because of his desire to give proper notice to Clark Wire where he had obtained employment after going on strike and in the second instance because he would be too tired to work for Respondent immediately after coming off of the night shift at Clark Wire. In his conversation with Oakley Collins on April 23, Martin testified that Collins stated that he would have to get someone to return in Martin's place, and James Aldridge was recalled, reporting for work 2 days later. There can be no doubt that Martin was offered his former job but on terms which required that he promptly sever his employment at Clark Wire and return immediately to Respondent . Insofar as the record shows, Martin did not indicate what he considered proper notice to Clark Wire to be, and when he asked for opportunity to give such notice, Respondent did not indicate any period of time that he might be allowed before reporting to work. Both Coleman Collins' letter confirming the offer conveyed through Chaffins' and Oakley Collins' telephone message indicated rather that an immediate return was required. When Martin sought to pursue the matter further in his written response, Respondent did not reply. The reporting dates given Martin first by Coleman and then by Oakley Collins were not reasonable under the circumstances. Martin had the right to take interim employment and could not have been expected to await recall at some indefinite future time without finding other work . That he resisted severing that employment without notice was not unreasonable. When Respondent requested Martin to return and discovered his reason for refusing to report on the dates requested, the burden was on Respondent to adjust its offer to give Martin a reasonable time within which to conclude his interim employment and return.' In these circumstances I conclude that Respondent' s offer to Martin was not a valid unconditional offer of reinstatement,' and Respondent did not comply with the terms of the settlement agreement in passing over Martin to reinstate Aldridge and failing thereafter to reinstate Martin as other openings arose. 'Although Coleman Collins testified that he sent the letter to give Martin time to come in, the letter did not indicate that Martin had time but if anything conveyed that Martin had already failed to report in the time allowed him, making any action on his part to give notice to Clark Wire both futile and destructive of his own interests without assurance that a job awaited him after working out his notice. 'Phis is not to say that Martin was entitled to establish the amount of time which he required to give notice Had Respondent set a reasonable date in response to Martin's objections and had Martin then taken the position that he wanted a longer period, a different question would be presented . Here Martin twice was offered reinstatement on terms which gave him no opportunity to give notice to his interim employer, and was given no alternative after stating his objection. f. James Aldridge, Oscar McCann and Willie Martin James Aldridge, Oscar McCann, and Willie Martin were, like Otis Martin, employed as over-the-road truckdrivers before the strike. Aldridge and McCann, in that order, were immediately below Otis Martin in order of seniority on the preferential hiring list. Although Willie Martin appeared to believe that he should have been recalled ahead of Aldridge, he was next to last among the drivers on the preferential hiring list, and that position appears to have been warranted by a break in his service in 1966.' Aldridge was recalled on April 25, as set forth above, when Otis Martin failed to report on April 24. McCann was recalled on May 22. The only driver junior to Aldridge and McCann at work when they were recalled was Earl Jenkins. For reasons set forth above, I have found that Respondent was not required to displace Jenkins, who returned before the end of the strike, to make room for other drivers. Likewise, I have found the record insufficient to establish that there were permanent jobs available for the drivers immediately after the conclusion of the strike. In the case of Willie Martin who was never recalled, there is no evidence that there was any job opening which his seniority entitled him to fill at any time prior to the hearing herein. Accordingly, I conclude that the General Counsel failed to establish that Respondent refused to reinstate James Aldridge, Oscar McCann, or Willie Martin in compliance with the terms of the settlement agreement. g. William Malone As set forth Respondent utilizes two kinds of hauling equipment to haul coal from the pit to the tipple. One is known as a DW-20 hauler or a cat wagon. The other is known as a KW Dart hauler. After the strike Respondent had three Darts and five cat wagons. The Darts were relatively new and in good operating condition. The cat wagons had been purchased between 1959 and 1961 and were in poor condition, having an expected life from 4 to 6 years. Of the five cat wagons, Respondent found it difficult to keep more than one in operating condition at any time after the strike. The cat wagons hold a 40-ton load in contrast to Darts which hold a 60-to 70-ton load. The cat wagons are slower than the Darts and can make approximately five round trips between the pit and the tipple in an 8-hour day. The Darts can make six or more round trips during that length of time. There is evidence that cat wagon drivers require some instruction in the operation of Darts before they can drive them, but the amount of instruction is in dispute. Before the strike William Malone drove a cat wagon. Malone joined the strike. Malone was recalled to work after the strike on May 1, 1967. At the time of his recall, Oakley Collins told him that he had been in the Union with both feet and that he wanted to have a long talk with him.' Among the combined group of cat wagon and Dart drivers, Malone was second in seniority as shown on the 'Harrah's Club, 158 NLRB 758, 759, 762, J. H Rutter-Rex Manufacturing Company, 158 NLRB 1414, 1533-34, enfd. as modified 399 F 2d 356 (C.A. 5). 'Although Martin contended that he was justified in quitting his job because of working conditions , there is no evidence that Martin was treated differently from any other employee when Respondent dated his seniority from the date of his most recent hire 'Malone testified to this conversation without contradiction COLLINS MINING COMPANY preferential hiring list and he was senior among the cat wagon drivers. Harold Cade, Johnny Sparks, and Donald Cade were all recalled to work before Malone.' All three were listed as Dart drivers on the preferential hiring list, and Sparks and Donald Cade were junior to Malone. The General Counsel contends that Malone should have been offered reinstatement to drive a Dart ahead of Sparks and Donald Cade, and that after his recall Malone's work opportunities were limited. Malone had driven Darts on occasion before the strike when the regular Dart drivers were absent.' Donald Cade testified that at the time the strike started there were only two Darts on the job and he was driving a cat wagon, but he had regularly driven a Dart before that. It appears that all of the Dart drivers started out as cat wagon drivers, and were transferred to Darts as Respondent acquired them. Harold Cade, who was the first to drive a Dart, was given instruction by a factory representative in operating the Darts. Thereafter, he instructed the other employees when they were assigned to Darts.' Although William Malone denied that he had ever refused to drive a Dart, Coleman Collins testified that Malone in the past had refused to drive a Dart under any circumstances. He testified that Malone had driven a Dart with one or two of the other drivers and had made several trips on his own, but when he sought to induce Malone to drive a Dart on a regular basis as a relief driver, Malone refused. The circumstances lend more support to Collins' version than Malone's, for it appears that Donald Cade, who was considerably junior to Malone was trained and assigned to Darts before the strike when Respondent only had two Darts. Although there is no evidence that Respondent followed a strict seniority policy, it appears likely that Malone, a more experienced driver, who had driven Darts on a few occasions, would have been given the opportunity to drive the newer Darts on a regular basis ahead of a younger driver. I credit Collins that Malone had indicated before the strike that he did not want to be assigned to drive the Darts. I conclude that the driving of Darts was substantially equivalent to driving cat wagons. Both types of equipment served the same purpose, with the newer Darts being used to replace older cat wagons. The Dart drivers were selected from among the cat wagon drivers, and the amount of training, if any, required to qualify Malone, who had previously driven Darts on several occasions, was at most minimal. However, the finding that Dart driving was substantially equivalent to cat wagon driving does not determine the order in which the drivers were to be recalled and assigned . The settlement agreement provided for establishment of a preferential hiring list without setting forth the standards to be used in compiling the list. Although the Union does not appear to have participated in formulating the list, there is no evidence of objection to it until this proceeding. The list sets forth all truckdrivers, including over-the-road, dump truck, fuel truck, cat wagon, and Dart drivers in a single listing in order of relative seniority, but indicating subclassifications within Sparks was recalled on February 27, and Donald Cade, on April 5. Harold Cade was recalled before Sparks. 'Malone, Sparks, and Donald Cade so testified without contradiction. 'Sparks and Donald Cade testified that their instruction consisted of riding with Harold Cade on one or two round trips between the pit and the tipple Carlton Malone, a cat wagon operator, testified that at the time he was trained to drive a cat wagon, he was given 2 days ' instruction on a Dart and felt that he would want another week's training before starting to drive one on his own . Coleman Collins testified that it would take a week or two before he would consider a man trained to drive a Dart on his own. 243 the group. It is not contended generally that the subclassifications were to be ignored in recalling drivers.' While it may be that Respondent might have ignored the distinction between Dart and cat wagon drivers in determining the order in which to recall them, I find it difficult to conclude that Respondent was compelled to do so, unless the evidence establishes that Respondent was discriminatorily motivated in refusing to recall Malone ahead of Sparks and Donald Cade to drive a Dart. There is some evidence to suggest such a motivation. In addition to Oakley Collins' comment to Malone at the time of his recall that Malone had been in the Union with both feet, Malone also testified, without contradiction, that on July 24 Collins asked him and Johnny Sparks if they had said anything to two of the independent haulers on the job. When Malone replied that he had not, Collins said he " wished to hell" that Malone would get a job and leave. Sparks testified, without contradiction, that when he was recalled, Oakley Collins told him that he was supposed to recall Malone ahead of Sparks, but Malone was not qualified to drive Darts and Collins wanted Sparks to say that Malone was not qualified because he knew that the Board would get on him for not calling Malone back.'° While Collins' comments to Sparks indicate concern that Collins' determination might be challenged and a desire for Sparks' support if it was challenged, it must be recalled that Sparks had also revealed to Collins his support of the Union before the strike, and indeed insofar as the record shows, most if not all of the reinstated strikers had been militant in their support of the Union. While some suspicion is raised by Collins' comments to Malone and the fact that Malone could easily have qualified to drive a Dart, in the absence of evidence that those who were recalled in advance of Malone were deemed by Respondent to stand in a materially different position than Malone vis-a-vis the Union, I find the evidence insufficient to support the conclusion that Respondent considered the subclassifications of Dart drivers and cat wagon drivers separately for purposes of discriminating against Malone or evading its obligation to comply with the settlement agreement. The second question relates to Malone's employment after his recall. Before the strike Malone had worked approximately 130 hours during each bimonthly pay period. After his return to work the hours worked by Malone over each 15-day pay period gradually declined. In the last pay period in September Malone worked 104-1/2 hours. Thereafter, he did not work in excess of 100 hours again in a 2-week period. He worked as little as 37-1/2 hours in the first half of November, and averaged slightly over 80 hours for the 3 pay periods which followed. Malone quit shortly thereafter. The complaint does not allege that Malone was discriminatorily discharged, but evidence was adduced to establish that after the strike Respondent changed its practice with respect to permitting drivers to assist in the repair of their 'Thus there is no contention that Aldridge and McCann who were over-the-road drivers should have been recalled to drive Darts ahead of Sparks and Donald Cade who were junior to them or that Carl Shepherd, the dump truck driver, should have been recalled ahead of Aldndge who wasjunior to him. "Donald Cade also testified that when he was recalled Oakley Collins told him that he was being recalled ahead of Malone because Malone was not qualified to drive a Dart and Cade was. Malone testified that in April at the time of the representation hearing he asked Oakley Collins why he had not been recalled , and Collins replied that Malone was not qualified to drive Darts. 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vehicles. Malone testified that before the strike when his vehicle broke down he worked in the shop to help repair it but did not do so after the strike. James Jenkins testified similarly that before the strike cat wagon drivers were permitted to work 6 or 7 days a week whether or not their equipment was down, but that since his recall they had been given 2 or 3 days of work a week and were sent home when their cat wagons were down , unless the repair could be completed quickly or another cat wagon was available to drive. He testified that he had worked in the shop helping with repairs only 1 day since his recall. According to Jenkins over-the-road drivers and Dart drivers were allowed to remain at work and help with repairs more frequently than cat wagon drivers . According to Coleman Collins it was company policy not to send drivers home if their equipment could be fixed in a reasonable time and to assign them to other vehicles or jobs when the breakdown was prolonged. Malone testified that in some instances his shorter hours were due to breakdowns." Jenkins also testified that there was frequent downtime on the cat wagons and that they generally broke down after every 2 or 3 days of operation. Apart from whether Malone might have worked more in helping to repair cat wagons , there is no evidence that Malone was sent home when there was equipment available for him to drive or other work he could have performed. The evidence indicates that the cat wagons were in poor condition and that breakdowns were frequent. The evidence does not indicate that William Malone was treated differently with respect to the amount of work he was given than Carlton Malone or James Jenkins who were also cat wagon drivers, nor does it suggest any reason why these drivers as a group should have been singled out for disparate treatment which outweighs the explanation offered that their equipment was in singularly poor condition . In these circumstances, I conclude that the evidence fails to establish a failure to reinstate Malone in compliance with the settlement agreement. h. Lawrence Otworth Lawrence Otworth is listed on the preferential hiring list as the junior of two grader operators. Otworth was operating a grader at the time the strike started and joined the strike. According to him, he was the only grader operator except during the winter when Cliff Malone ran a grader to help keep the snow off the roads. Otworth returned to work on June 7, 1967, after being called to Respondent's office on June 5, and speaking to Oakley Collins as set forth above. According to Otworth, Cliff Malone and a man named Giles operated the grader before he was reinstated. C.J. Malone appears on the preferential hiring list as a grader operator with greater seniority than Otworth. Although there is some evidence that Malone served as foreman at the LaGrange pit for a number of months before the strike, he had been a grader operator before that, and the LaGrange pit was shut down approximately 2 weeks after the end of the strike. The Giles referred to by Otworth appears to be the same Giles who was hired during the strike and in whose place it is contended that Wall should have been reinstated. Particularly in the absence of any "Malone testified that he lost no time due to illness during this period but was off work voluntarily for 3 or 4 days at the most after his recall. challenge to the preferential hiring list until the hearing in this case, I conclude that Otworth was not entitled to operate the grader in place of Malone . For reasons set forth in connection with Charles Wall and Otis Martin, I conclude that even if Giles operated a grader until March 24 when he left Respondent's employ, the General Counsel has not established that Giles' earlier displacement would have resulted in an opening to which Otworth should have been recalled. i. Frank Laber Laber drove a fuel truck before the strike hauling fuel to Respondent's heavy equipment. He also changed the oil of that equipment. He was the only employee so employed at that time. Several days before the pickets were removed, Coleman Collins telephoned Laber and asked him if he would return to drive a tractor-trailer over the road. Laber told him that he would not because he only drove the fuel truck. Laber testified that he did not return because he knew nothing about the strike being over." During the first part of March, Laber visited Collins with Otworth. At that time Collins told Laber his name was taken off the roster and he would not be able to return. Later the same day Collins telephoned Laber to tell him that he was mistaken. During the first part of August, Oakley Collins called Laber and asked him to come in. He went to Respondent's office, and Oakley Collins asked him to return to work driving the fuel truck, doing mechanical work, and driving over the road. Laber returned and thereafter performed these duties and also occasionally worked on barges at Respondent's river tipple. Since Laber's return to work, Laber has spent 4 to 5 hours three times a week driving the fuel truck and the rest of his time at other duties . No one else has driven the fuel truck since his recall. Before the strike when Respondent mined coal at two separate pits, Laber hauled fuel full time to the heavy equipment operating at the two pits. Shortly after the strike Respondent confined its mining to the Fox Hollow pit. The consolidation of operations resulted in a reduction of the amount of heavy equipment in use requiring fuel, although the diesel dragline, which was later replaced by an electric dragline, was still operating when Laber returned to work. After his recall Laber no longer changed the oil or filters on heavy equipment as he had before the strike. During the strike several people shared the driving of the fuel truck, including Coleman Collins , Jim Ison, Earl Ison, and Marvin Collins. After the strike until Laber's recall, Jim Ison mostly drove it. It is clear that even after Laber's recall the driving of the fuel truck was no longer a full -time job . Immediately after the strike, Respondent's production and sales were substantially reduced below their prestrike levels and only gradually returned to their prestrike levels, reaching them around the time of Laber's recall . Thus, it would appear that before Laber's recall, the services of the fuel truck were even less needed than after . In these circumstances, it would appear that there was no full-time fuel truck job available to which Laber should have been recalled and that some combination of fuel truck duties with other duties was inevitably required. "Coleman Collins testified essentially the same as Laber as to this conversation. COLLINS MINING COMPANY It is true that a portion of Laber's former duties were never restored to him . However, the General Counsel did not establish the extent to which those duties occupied Laber before the strike, and in view of the amount of time spent by Laber driving the fuel truck even after the strike, it appears that Laber's other prestrike duties occupied only a minor portion of his time . In view of the consolidation of operations and the decreased level of operations before Laber's recall, it is doubtful that the addition of these duties to the driving of the fuel truck would have amounted to a full-time job before Laber was recalled. Accordingly, I conclude that Respondent was not obligated under the terms of the settlement agreement to recall Laber before August. j. Garland Wineka and Samuel Leffingwell Garland Wineka and Samuel Leffingwell are both listed on Respondent's preferential hiring list under the heading of truck mechanics . Wineka is fourth on the list and Leffingwell is last . The dates which appear next to Leffingwell's name and the name of Martin Collins who is seventh on the list above Leffingwell indicate that Leffingwell was in fact senior to Collins, but this discrepancy is unexplained." Before the strike Leffingwell worked as a mechanic and performed all kinds of mechanical work on Respondent's equipment. Although Wineka also claimed that he was a mechanic, this claim was disputed . I find that Wineka was employed as a mechanic's helper, relying on the testimony of Middleton, who worked nights with Wineka, as well as Respondent's witnesses . Wineka worked on brakes and power steering, but otherwise worked as a helper to Middleton on other kinds of mechanical work. Others on the preferential hiring list were Frank Russell, Gordon Salyers, Curtis Leffingwell, Willard Russell, Lee Middleton, and Martin Collins. Frank Russell, Salyers, and Middleton were mechanics. Curtis Leffingwell' s duties were described above in connection with the offer of reinstatement to him . Although the evidence is scant and not entirely uniform as to Willard Russell and Martin Collins, I conclude from the testimony of Frank Russell that both worked as helpers . In addition to these employees, although listed on the preferential hiring list as a welder, Carl Barton worked at least part of the time in the shop after the strike . The record establishes that Barton worked during the strike, but is silent as to Martin Collins and Willard Russell in this regard. Although Wineka and Leffingwell were entitled to be recalled ahead of those performing the same jobs who were junior to them , the agreement did not provide that they were to displace any former employees who were working at the time of the settlement agreement. Since one must assume that Respondent complied with the agreement in the absence of proof to the contrary, the burden was on the General Counsel to show that Willard Russell and Martin Collins were not working at the time of the settlement but were recalled out of turn . Absent that evidence, I conclude that the General Counsel has failed to show that Wineka should have been recalled in place of Willard Russell or Martin Collins . Similarly as the evidence establishes that Middleton, who was junior to Wineka, was a mechanic, I conclude that the agreement was not breached when Middleton was recalled before "In several other instances, dates next to names indicate that names are out of order on the list but none of the others appear to be material. 245 Wineka or Leffingwell who was junior to Middleton. A somewhat different question arises from the employment of Barton as a mechanic or helper after the strike. It is not at all clear whether Barton had worked as a mechanic or helper before the strike ."' His classification on the preferential hiring list as a welder did not indicate that he would be considered as a mechanic in matters of reinstatement. The settlement agreement left unresolved whether employees who worked during the strike and were assigned new duties would be allowed to continue at those duties. Again, however, I conclude that doubt must be resolved in favor of Respondent , as the burden was on the General Counsel to prove the alleged noncompliance with the settlement agreement. k. Concluding findings I have found above that Respondent breached the settlement agreement through a number of violations of Section 8(a)(1) and in some instances by failing to reinstate employees in accordance with the settlement agreement or by improperly excluding them from further consideration for reinstatement . These breaches were not minor and justified setting aside the settlement agreement. As a consequence one must not only consider the narrow question of whether Respondent reinstated employees in accord with the terms of the settlement agreement but also whether Respondent fulfilled its larger obligation to reinstate the strikers who were unfair labor practice strikers. In considering this question, the terms of the settlement agreement and the preferential hiring list are no longer relevant. For example, the 1-year limitation on recall rights and the order determined by the preferential hiring list are no longer controlling. Having found that in some respects Respondent failed to comply with its reinstatement obligation under the settlement agreement and improperly regarded some strikers as having rejected adequate offers of reinstatement, it is clear that Respondent did not fulfill its statutory obligation. There are other questions also raised on the record as to fulfillment of the statutory obligation. For example, in several instances it appears that disclaimers of desire to return to work were solicited by Oakley Collins from employees at a time when there were no offers of reinstatement to their former positions or inadequate offers before them." In my view, these questions need not be decided at this time, but are properly deferred for the compliance stages of this proceeding, as the findings already made warrant a remedial order requiring Respondent to reinstate unfair labor practice strikers to the extent that they have not already been reinstated with backpay for any period during which they were improperly denied employment." F. The Alleged Violation of Section 8(a)(5) 1. The appropriate unit and the Union's majority The complaint alleges and Respondent admits that the "Barton in fact had not been working when the strike started or for some time before. However, the appearance of his name on the preferential seniority list was not challenged. "See Leeding Sales Co.. 155 NLRB 755. 'The Board regularly orders reinstatement of unfair labor practice strikers upon application even where the strike is in progress at the time of the hearing and no refusal to reinstate has been shown . See Louisville Chair Company, Inc, 161 NLRB 358, 378-379, enfd. 385 F.2d 922 (C.A. 6). Here at the time of the heanng not all the strikers had been offered reinstatement, and a similar remedy is warranted. 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD following employees of Respondent constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees employed by the Respondent at its operations in Hanging Rock, Ohio, including truck drivers, but excluding the weighmaster and all other office clerical employees, all saw mill employees, and all guards, professional employees and supervisors as defined in the Act. As indicated above , at the outset of the Union's organizing campaign the Union mailed identical letters to all the employees whose names and addresses it had gathered . Enclosed with the letters were blank authorization cards which the employees were solicited to sign and return by mail to the Union . Of the 67 cards received in evidence, 25 were mailed to the Union in response to this solicitation. The letter sent to the employees informed them that the United Mine Workers was conducting an organizing campaign at their mine and expressed the hope that they would ultimately receive the high wages and other benefits enjoyed by members of the mine workers all over the country. It referred to an attached copy of wage rates presently being paid miners under contract with the Union and listed a number of the fringe benefits provided under the Union's contract. The letter continued: If you are interested, will you please sign and return the enclosed card in the self-addressed stamped envelope provided for this purpose . Signing this card will not obligate you in any way, and no one will see these cards except the undersigned and the organizer in charge of your area. Our only reason for securing the cards are [sic] because the law requires proof that at least 30 percent of the employees at a given mine want the Union before they will conduct a secret election. NO REPRESENTATIVE OF THE COMPANY IS PERMITTED TO SEE THESE CARDS AT ANY TIME. After a paragraph advising employees of their rights to engage in union activities without reprisal, the letter concluded with the following paragraph : "Rest assured that your confidence will be strictly respected and neither your employer or anyone else will learn of your interest in this manner from us. It is for this reason that I mailed this letter in a plain envelope so that no one will even know that you received it unless you tell them so." The blank authorization card enclosed with the letter was titled "Application Card" and contained the following statement to be subscribed to by the signer: "I hereby express my desire to engage in concerted activity for the purpose of self-organization and collective bargaining and make District No. 6, United Mine Workers of America, and its representatives my collective bargaining agent in all matters pertaining to pay rates, wages, hours of employment and other conditions of employment." Several employees who mailed back cards testified that they expected that there would be an election but most of them also indicated that they wanted the Union to represent them . There is no evidence that any employees who signed cards as a result of oral solicitation by union representatives or other employees were misled into believing that the cards were signed for any purpose other than that appearing on the face of the cards or were induced to sign cards on the basis of any material misrepresentation. The refusal to bargain charge was not filed until June 21, 1967, more than 6 months after December 14 when the Union' s first demand for recognition was made. I find it unnecessary to decide whether or not the charge may be said to relate back to the original charge against Respondent, for the Union repeated its demand for recognition on December 30 and thereafter . I find that Respondent was faced with a continuing demand for recognition at the start of the 10(b) period on December 23, 6 months before the charge was filed." Accordingly, the question to be answered is whether the Union was to be considered the majority representative of Respondent's employees on that date. On December 14 when the strike began there were 85 persons on Respondent's payroll, including some excluded from the appropriate unit. Insofar as the record shows only two or three additional employees were hired during the next 2-week period who were replacements for striking employees. As the strike was caused by Respondent's unfair labor practices, the replacements are not properly considered as part of the unit and the strikers continued as employees. Accordingly, I find that on December 23, the composition of the unit was the same as at the start of the strike . Thus, the Union' s majority is to be determined on the basis of the payroll at the start of the strike. Included on the critical payroll were Dewey Owens, Hobart Mullens, Fred Steele, and Robert Russell. Although evidence was taken before me only as to Owens, in the representation proceeding evidence was taken on which the Regional Director concluded that Owens and Mullens were guards within the meaning of the Act, that Steele was an office clerical , and that Russell was a supervisor within the meaning of the Act . No evidence was offered to indicate that these persons occupied any other capacity at the time the strike began. Accordingly, I conclude that they should be excluded from the appropriate unit. In the representation proceeding and in the hearing before me there was also evidence which indicated that up until the strike when Respondent operated at two pits, C.J. Malone acted as a supervisor at one of the pits. However, insofar as the record indicates this assignment ended on December 14 and Malone reverted to the status he previously held as an employee. While not entirely free from doubt I conclude that Malone, whose name appears on the payroll, was in the bargaining unit after the start of the strike. In addition to those names which appear on the December 14 payroll, as I have found above that James Bradshaw, Curtis Leffingwell, and Robert Johnson were discriminatorily discharged between December 1 and 14, they should be included among the employees in the appropriate unit." From these employees the Union had 61 cards of which 25 had been received as a result of the mail solicitation." The Union had six additional cards signed by other persons. Two of those, Cletus and James Friend were found in the representation proceeding to be employees of Respondent's logging operation and therefore outside the appropriate unit. No evidence was offered before me as to "Hero Corporation, 149 NLRB 1283, enfd 363 F.2d 702 (C.A.D C.), cert. denied 385 U S. 973. "John Kinkel & Son. 157 NLRB 744, 758. For the same reasons I conclude that John DeLong , Clyde Matthews, and Ray Bowman who were laid off on December 14, but whose names appear on the December 14 payroll, are included in the unit. "The Union obtained two additional cards after January 1, 1967. COLLINS MINING COMPANY the status of James Friend, and the testimony of Cletus Friend is consistent with the facts on which the Regional Director based his findings. I conclude that neither Cletus nor James Friend was in the bargaining unit despite a temporary assignment of Cletus Friend to the coal mining operation at the time the strike began. Accordingly their cards will not be counted. Bernall Aldridge, whose card was received in evidence, was employed until May 31, 1966, when he received a disabling injury. He attempted to return to work in September 1966 but after a brief trial found that he could not do the work and he did not work thereafter. Although Aldridge testified that he was told to come back when he felt able by the tipple foreman, it does not appear that he ever sought to do so thereafter. I conclude that Aldridge did not have a reasonable expectancy of reemployment in December 1966, that he should be excluded from the unit, and that his card should not be counted. A card was also received signed by Ernest Robinson. Although Robinson signed his card on December 13 and testified at the hearing, he was not questioned about his employment at the time the strike started. However, he was listed on Respondent's preferential hiring list as an apprentice welder and in the representation proceeding he testified that he worked until the strike began. It was stipulated that he was eligible to vote as a laid-off employee in that proceeding. Accordingly, I find that Ernest Robinson should be included in the unit and his card counted. A card was also received signed by Harold Boggs. No evidence was introduced before me as to Boggs' status, but in the representation proceeding the parties litigated whether he had refused reinstatement after the strike and lost his recall rights . Boggs, whose name appears on the preferential hiring list as a preparation plant employee, testified in the representation proceeding that he worked until the strike, which he joined. Accordingly, I conclude that his name should have been included on the payroll for December 14 and that his card should be counted. The final card to be considered is that of Ronald Howell, brother of William, who left Respondent's employment in May 1966 to go into the Armed Services and was in the service at the time of the strike. Under established Board policy his card is excluded and he is not counted as an employee in the unit." With these additional cards it appears that there were 86 employees in the unit on December 30 of whom 63 had signed authorization cards. Of their cards 25 were received by the Union in response to the mailed solicitation. Whether or not these cards establish a majority for the Union at the time of its demand depends upon the effect to be given the Union's letter set forth above, as the Union did not have a majority unless the mailed cards are counted. In its recent decisions in Levi Straus and Co., 172 NLRB No. 57, and McEwen Manufacturing Company, 172 NLRB No. 99, the Board reviewed at length the policies and principles which control determinations as to the validity of union authorization cards as evidence of designation of a bargaining representative. After stating that the central inquiry in determining the effect to be given authorization cards is whether the employees by their act of signing clearly manifested their intent to designate the Union as their bargaining agent, the Board stated: '•Aero Corporation , supra at 1291 Cf Photobell Company. Inc, 158 NLRB 738. 247 [T]he fact that employees are told in the course of solicitation that an election is contemplated, or that a purpose of the card is to make an election possible, provides in our view insufficient basis in itself for vitiating unambiguously worded authorization cards on the theory of misrepresentation. A different situation is presented, of course, where union organizers solicit cards on the explicit or indirectly expressed representation that they will use such cards only for an election and subsequently seek to use them for a different purpose; i.e., to establish the Union's majority independently. In such a situation, the Board invalidates the cards for a majority computation, because the nature of the representation is such as to induce a conditional delivery for a restricted purpose, and there is apparent fraud when that restriction is exceeded. In a footnote following this quotation, the Board stressed that its findings of misrepresentation will not be confined to situations where employees are told in haec verba that the sole or only purpose of the cards is to obtain an election, but that the Board will look to substance rather than form and determine whether or not the totality of circumstances surrounding the card solicitation is such as to constitute an assurance to the card signer that his card will be used for no purpose other than to obtain an election. Here the Union's letter stated that "Our only reason for securing the cards are [sic] because the law requires proof that at least 30 percent of the employees at a given mine want the Union before they will conduct a secret election." Added force was given to this statement of limited purpose by the statement which preceded it that "signing this card will not obligate you in any way, and no one will see these cards except the undersigned and the organizer in charge of your area." These statements would appear expressly to represent that the cards would be used only for an election. It is true that the quoted portion of the letter does state that the proof required for an election is that the employees "want the Union" and not simply that they want an election. But this statement, of itself, would not appear to meet the conditional delivery theory on the basis of which the Board invalidates cards delivered for a restricted purpose. Were this the only evidence of employees' intent, I would conclude that under the principles of Levi Straus, these cards should not be counted toward the Union's majority. However the evidence shows that in addition to signing cards, a substantial majority of Respondent's employees joined in a strike called by the employees at a union meeting. Nineteen of the employees who mailed their cards to the Union appeared as witnesses at the hearing before me and all 19 joined in the strike. Although it is true that the strike was not for recognition, but was called in protest against the discharges and layoffs which preceded it, I find it highly unrealistic to restrict narrowly the inference of support for the Union to the protest which caused the strike. Instead there is every reason to infer that by striking against what they viewed as acts of retaliation against the employees because of their organizational efforts, the striking employees intended to demonstrate their support for the ultimate goal of those efforts, recognition and bargaining. Accordingly, however limited the purpose for which the Union sought the cards, I conclude that by their conduct after signing them and returning them to the Union, the striking employees indicated that they wanted the Union to represent them and not merely an election and that they did not intend to 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD restrict the authorizations which they signed to the limited purposes for which they had been requested . Accordingly, I conclude that the Union represented a majority of the employees on the critical date.2' 2. The refusal to bargain There can be no doubt that by Respondent's failure to answer the Union's requests for recognition Respondent refused to bargain with the Union." The question to be decided is whether Respondent was obligated to do otherwise. Despite Respondent's unfair labor practices which preceded the strike, the Union did not charge Respondent with an unlawful refusal to bargain in its initial charges, and the Union accepted a settlement which did not provide for bargaining and contemplated an election. Had the election transpired without further unfair labor practices, it would have resolved the matter. But as I have found, Respondent committed additional unfair labor practices which were in direct violation of its settlement agreement. A number of these violations occurred in the period immediately preceding the election, and as I find below made a fair election impossible. Specifically they were designed to induce employees to abandon their union activity and support, thus destroying the majority support that the Union enjoyed. I find that the General Counsel has established that Respondent's refusal to recognize and bargain with the Union was not motivated by any good-faith doubt that the Union represented a majority of its employees but by Respondent's rejection of the collective-bargaining principle and a desire to gain time in which to dissipate the Union's majority, which Respondent had good reason to believe existed when the employees struck. Accordingly, I conclude that Respondent's refusal to bargain since December 23, 1966, violated Section 8(a)(5) and (1) of the Act. _' In any event, apart from the violation of Section 8(a)(5), imposition of a bargaining order in this case would follow directly as a matter of remedy for Respondent's other substantial violations. As Respondent sought thereby to prevent the Union from gaining additional strength and to dissipate the strength it had already achieved and Respondent prevented a fair election, a bargaining order is required to remedy these violations as well as Respondent's refusal to bargain.:' Indeed, in the light of Respondent's breach of the settlement agreement intended to remedy its December 1966 unfair labor practices, the case for a bargaining order here is even more compelling than in the ordinary situation in which the Board enters a bargaining order after setting aside an election." "Cf. Beaver Bros Baking Co., Inc., d/b/a American Beauty Baking Co, 171 NLRB No. 98; T. C. Worthy Wholesale, Inc., 159 NLRB 1700, Preston Feed Corporation, 134 NLRB 629, enfd. 309 F.2d 346 (C.A. 4), and cases cited therein. "Permacold Industries, Inc. 147 NLRB 885. Respondent also communicated to employees that it had no intention of bargaining with the Union. "Noma Lites Corp, 170 NLRB No. 142; Heck's Inc., 172 NLRB No. 255. "Noma Lites Corp., 170 NLRB No. 142; R. W. Inc., d/b/a K-Mart Foods, 170 NLRB No. 67. "As the Union's charges of violation of Sec. 8(aXI) and (3) were filed contemporaneously with the December 1966 violations, Sec. 10(b) places no impediment in the way of basing the bargaining order as remedy for these violations on the Union's demonstrated majority as of the start of the strike. It is true that one cannot be certain that Respondent succeeded in destroying the Union's majority , for there were sufficient challenged ballots to affect the results of the election. But rather than await completion of litigation over the challenged ballots and a count to determine whether Respondent succeeded in its efforts to interfere with the election, which inevitably would result in further delay, as the Union was entitled to recognition even if it lost the election, I conclude that effectuation of the policies of the Act will best be served by recommending entry of a bargaining order herein based on Respondent's refusal to bargain and its other violations." In reaching this conclusion I have considered the evidence offered by Respondent as to misconduct by employees during the strike . One witness testified that the incidents he described occurred a few days after the strike began." Other witnesses either did not specify the timing of what they described=" or placed it later in the striker' Bearing in mind that the strike was heavily supported at its outset and that Respondent did not respond to the Union's initial request for recognition but indicated in comments to employees at the outset of the strike that it would not deal with the Union, I conclude that whatever misconduct occurred, while not to be condoned , gave no reasonable cause to believe that the Union's support by the employees was coerced and did not excuse Respondent from its obligation to bargain with the Union." Moreover, as the Union's majority at the outset of the strike could not have been attributable to subsequent employee conduct, the appropriateness of the bargaining order as a remedy for Respondent's other unfair labor practices would not be affected by strike misconduct. IV. THE REPRESENTATION CASE A. The Objections to the Election The objections to the election in essence allege as grounds for setting aside the election the same conduct as is alleged in the complaint to have violated Section 8(a)(1) of the Act following execution of the settlement agreement. I have found above that during the preelection period and particularly during the 3-week period immediately preceding the election, Respondent engaged in substantial violations of Section 8(a)(1) and (3) of the Act as set forth in section III, D, and E, above. It is clear that Respondent's conduct which violated Section 8(a)(1) and (3) during this period also interfered with the conduct of a fair election." In these circumstances, I conclude that the objections to the election have merit and should be sustained. "Tonkin Corp. of California, 165 NLRB No. 61. "Billy Bradshaw testified that starting 2 or 3 days after the beginning of the strike he was followed , while driving a company truck, by striking employees and union representatives who obstructed him by driving slowly in front of him and attempting to crowd him off the road. He testified that on one occasion a bottle was thrown at his truck. "Millard Russell, Arthur Dickens, Gerald Lee Lipker. Russell and Dickens could not identify the persons responsible for what they described. Lipker testified that he was visited on a Sunday evening by strikers who asked him not to work and told him that if he did , others might get mad. The next night after he worked a window in his house and his car windshield were broken by unidentified persons. "Dewey Owens, Oakley Collins, Earl Jenkins, and Earl Ison. "United Mineral & Chemical Corporation, 155 NLRB 1390, enfd. in part 391 F.2d 829 (C.A. 2). Call, Burnup and Sims, Inc., 169 NLRB 1661, 1682, enfd. 393 F.2d 412 (C.A. 1); C A Froedge Delivery and Trucking Service, Inc., 172 NLRB No. 8. "Playskool Manufacturing Company, 140 NLRB 1417. COLLINS MINING COMPANY 249 B. The Challenged Ballots Ordinarily in a case such as this where the challenged ballots are sufficient to affect the results of an election, before setting the election aside on the basis of objections, the challenged ballots would be considered. If it were determined that a number of challenged ballots should be counted sufficient to affect the results of the election, the usual procedure would be to remand the case for opening and counting of the ballots. If the Union won the election, it would be certified. If not, the election would be set aside and a new election directed . Here, however, the presence of the meritorious refusal-to-bargain charge and the need for a bargaining order requires a different result. In accord with the Board's Decision in Tonkin Corp. of California, 165 NLRB No. 61, 1 conclude that the election should be set aside and the representation petition dismissed without further consideration of the challenged ballots. However, in order to avoid any possible necessity for remand of this proceeding I shall also set forth by findings as to the challenged ballots. In the representation election , the ballots of John DeLong, Curtis Leffingwell, James Bradshaw, Otis Martin, Lee Middleton, James Edward Jenkins, and Charles Wall were challenged. Respondent contended at the representation hearing that John DeLong had retired in December 1966 and therefore was not eligible to vote in the election. The Regional Director found on the evidence before him that Respondent had retired DeLong because of his age and his disability and that he therefore was not eligible to vote." No review was sought .of the Regional Director's Decision, but DeLong nonetheless appeared at the polls to vote with a written statement seeking reconsideration of his status. He was permitted to vote under challenge. At the time of the hearing in the representation case the settlement agreement was in effect providing for the reinstatement of DeLong following his December layoff. While Respondent contended that it had retired DeLong in December, the settlement agreement necessarily overrode that claim and gave DeLong status as an employee eligible for recall at the time of the representation case hearing and election . Respondent contends, however, that the challenge to DeLong's vote must be sustained because the Regional Director had ruled that DeLong was ineligible to vote. While it is true that in some circumstances the Board precludes the parties from relitigating by way of challenges issues previously disposed of in the representation hearing," its practice is not invariable." Here the surrounding circumstances support consideration of the challenge on its merits. The challenged ballots do not present the sole postelection issue. DeLong is the only employee whose eligibility was affected by the determination affecting him. The settlement agreement has been set aside, and, in conjunction with the unfair labor practices, further proceedings, including consideration of DeLong's status, were in any event required. Failure to consider his challenge on its merits would result in conflicting results in the representation and unfair labor practice proceedings. "The Regional Director' s Decision does not indicate the extent , if any, to which he considered the settlement agreement , which had not yet been set aside, in determining DeLong 's eligibility. "See Cruis Along Boats, Inc., 128 NLRB 1019. The Board's rule 102.67(f) provides only that failure to request review shall preclude the Whether called a layoff or retirement, it is clear that DeLong' s December separation was involuntary. Although the claim was made before me that DeLong was laid off because he could no longer do his work , that claim was unsupported by any other evidence, and I have concluded that the reduction in force of DeLong along with others was motivated by Respondent's opposition to the Union. Whatever decision DeLong made after his layoff to seek Social Security retirement benefits does not alter the circumstances of his separation and does not deprive him of the right to be offered reinstatement to remedy his wrongful discharge. Accordingly, whether DeLong's status is to be determined under the terms of the settlement agreement in effect at the time of the election or on its merits independent of the settlement agreement, I conclude that he was eligible to vote. Curtis Leffingwell's status was not litigated in the representation hearing, except to the extent that his name appeared on the preferential hiring list and he appears to have been included among those whose eligibility to vote was conceded . He was challenged by the Respondent, however, on the ground that he had refused an offer of reinstatement after the hearing. I have considered that contention above and have found that the offer of a mechanic's job to Leffingwell did not extinguish his reinstatement rights, I conclude that Leffingwell was eligible to vote. Bradshaw, Martin, Middleton, and Jenkins appeared on the preferential hiring list. At the representation hearing Respondent agreed that all employees on the list who had not yet been recalled, except for 11, were laid-off employees with a reasonable expectancy of recall and were eligible to vote . Respondent contended that 9 of the 11, including the 4 challenged employees, were permanently employed by another employer and had refused offers of reinstatement, making them ineligible to vote. The Regional Director found that evidence as to these employees was in conflict and did not permit .a reasonably certain conclusion as to their status . Accordingly, he provided that they be permitted to vote subject to challenge. James Bradshaw started to work for Respondent around September 1, 1966." At first Bradshaw worked for Collins on some houses, did mechanical work in the garage, and at the time of his discharge on December 8, 1966, was driving a truck hauling lime. After his discharge Bradshaw obtained employment at Clark Wire Company. In early April, Oakley Collins visited his home and asked Bradshaw to return to work , telling him that it would only be for 1 to 3 days a week." Bradshaw replied that he could not accept a job on that basis when he had a full-time job at Clark Wire but stated that he would accept a full-time job." At that time Bradshaw signed a statement dictated by Collins to the effect that he was a permanent employee of Clark Wire and would not return to Collins Mining if called to work. parties from relitigating, in any subsequent unfair labor practice proceeding, any issue raised in the representation proceeding. 'See Lake Huron Broadcasting Corporation , 130 NLRB 908. "Bradshaw had worked for Respondent for about 5 years at an earlier time but had quit. "Bradshaw had received a written request to return to work during the strike which he ignored. "Bradshaw so testified without contradiction in the proceeding before me. Oakley Collins testified in the representation case that he offered him all the work they could give him and pointedly evaded stating whether he indicated that it would be part time. 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bradshaw testified that when he was employed in September by Respondent, he was hired to perform temporary work. While employed, he worked a full workweek." Insofar as the record shows he was not told what the expected duration of his employment would be. No evidence was offered by Respondent to establish the expected duration of Bradshaw's employment. As indicated above, it was Respondent's position at the time of the representation proceeding that Bradshaw was a permanent employee of Clark Wire and had refused an offer of reinstatement. As the evidence before me establishes that Bradshaw was not offered full-time employment, and as interim employment taken after his discharge does not establish intent not to return to work for Respondent," I find that Bradshaw had not refused an offer of reinstatement. The statement signed by Bradshaw for Collins must be construed in the light of the offer of work which had been made to him, and "It is axiomatic that a discriminatee need not make a choice of employment prior to receiving an unconditional offer of reinstatement."" Accordingly, the statement signed by Bradshaw did not extinguish his reemployment rights. There remains to be considered whether Bradshaw was ineligible because he was hired in September for temporary work. The voting eligibility of employees disputed on this ground "depends upon their status on the date of eligibility and the nature of their prospects for future employment. Specifically the Board has held that so-called temporary employees `who are employed on the eligibility date, and whose tenure remains uncertain, are eligible to vote."'" On the record before me I can only conclude that at the time of Bradshaw's discharge, his tenure based on nondiscriminatory considerations remained uncertain. As of the eligibility date, by virtue of the settlement agreement which had not yet been set aside, Respondent had agreed to reinstate Bradshaw without distinguishing him from other discharged employees and unfair labor practice strikers. Therefore, as of that date, it would appear that unless Bradshaw had severed his employment by refusing reinstatement, Respondent had agreed to treat him in the same fashion as the other employees on the preferential hiring list who had not been recalled. Even if the settlement agreement is disregarded because it was later set aside, I would conclude that as Respondent discriminatorily discharged Bradshaw and failed to establish any certain limit to his tenure, he is entitled to reinstatement independent of the settlement agreement. In these circumstances, I conclude that Bradshaw was an eligible voter. I have found that Otis Martin was offered reinstatement to his former job but was not given a reasonable time within which to sever his interim employment and report for work. I have concluded therefore that Martin's reemployment rights were not lost. Accordingly, his position was no different than that of others on the preferential hiring list. I conclude that he was eligible to vote. Lee Middleton first started to work for Respondent in February 1960. For the first 6 weeks of his employment he planted trees. After one other brief assignment he started to work as a mechanic in the garage where he "Bradshaw so testified Coleman Collins briefly described Bradshaw as a part-time worker without further elucidation In these circumstances I have credited Bradshaw. "S A M Manufacturing Company, 165 NLRB No 59 "Leeding Sales Co, Inc, 155 NLRB 755, 757. "Lloyd A Fry Roofing Company. 121 NLRB 1433, 1437 remained until the strike. Middleton did not work during the strike. After the strike, in April 1967, Coleman Collins telephoned Middleton and asked him if he would come back to take the job he had before planting trees. Middleton told Collins he had a promise of a job at Clark Wire. Collins told him he would pay him $2.25 an hour if he returned. Middleton asked if he would give him anything steady like his regular job. Collins replied that he could make no promises. Middleton conceded that he had planted trees every Spring for the past 2 or 3 years, taking from 6 to 8 weeks out from his work as a mechanic to which he returned after the tree planting was over. Middleton understood the offer in 1967 as for employment just for the duration of the tree planting. Middleton did not accept the job, but went to work at Clark Wire. He returned to work for Respondent on August 7. At that time Oakley Collins offered him his former job at the shop as a mechanic. He has worked since as a mechanic without further mention of tree planting. At the time of his recall there was at least one mechanic, Sam Leffingwell, junior to Middleton on the preferential hiring list. Despite Respondent's contention at the representation hearing, it did not treat Middleton's rejection of the offer of the tree planting job as extinguishing his reemployment rights, and the evidence confirms that it was not an adequate offer of reinstatement. Accordingly, I conclude that Middleton's position was the same as that of the others on the preferential hiring list who voted without challenge and that he was eligible to vote in the election. At the time the strike started James Jenkins was a cat wagon driver. Jenkins did not work for Respondent during the strike. On April 20, 1967, he started to work at Clark Wire where he remained until August 12, 1967, when Oakley Collins asked him to return to his old job. Jenkins returned to work for Respondent. The fact that Jenkins took interim employment while awaiting recall to his job with Respondent did not extinguish his recall rights, as Respondent appears to have recognized in recalling him. No other basis is advanced sustaining the challenge to his ballot. Accordingly, I conclude that he was eligible to vote. At the representation hearing, Respondent contended that Charles Wall had been permanently terminated after he had refused an offer of reinstatement." The Regional Director found the evidence as to Wall in conflict and provided that he be permitted to vote subject to challenge. I have found above that the offer of reinstatement rejected by Wall came before the end of the strike at a time when Respondent conceded that it was not generally treating rejection of reinstatement offers as terminating employment rights. I have concluded that Wall's reinstatement rights were therefore not extinguished. Although I have also found that the General Counsel failed to prove that an opening had occurred to which Wall should have been recalled, his position at the time of the election was no different than that of the other employees on the preferential hiring list who voted in the election. I conclude that he was eligible to vote. While I recommend that the representation election be set aside and the proceeding dismissed for the reasons set forth above, if at any stage in this proceeding it should become necessary to consider the challenged ballots, I would recommend that all the challenges be overruled and the ballots counted. "The Regional Director's Decision places the date of the disputed offer in April The transcript indicates that it was in February , consistent with the evidence in the hearing before me COLLINS MINING COMPANY 251 V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above , have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY As Respondent violated the terms of a settlement agreement and engaged in substantial violations of the Act, I shall also recommend that Respondent be ordered to cease and desist from violating the Act in any other manner. In accord with recent decisions of the Board" I shall recommend that Respondent be required to sign and post a notice which informs its employees in simple and readily understandable language of their rights, how they were violated, and by what process they have been upheld. As it appears that there are strikers who have not yet been reinstated, I shall also recommend that copies of the notice be sent to them. Upon the basis of the above findings of fact and the entire record in this case, I make the following: Having found that Respondent violated Section 8(a)(1), (3), and (5) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As I have found that Respondent discriminatorily discharged Robert Johnson, Curtis Leffingwell, James Bradshaw , Ray Bowman, John DeLong, and Clyde Matthews, I shall recommend that Respondent be ordered to offer them immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and to make them whole for any loss of earnings they may have suffered by payment to them of sums of money equal to the amount each normally would have earned as wages from the dates of their respective discharges to the dates of offers of reinstatement, less net earnings, in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716, excluding from the backpay period any time that they joined the strike. To the extent that these employees joined the strike their reinstatement and backpay rights shall be determined in accord with the availability of jobs for them relative to other strikers as set forth in the following paragraph. As I have found that the employees engaged in an unfair labor practice strike from December 14, 1966, to February 20, 1967, and that all the strikers were not reinstated to their former or substantially equivalent jobs, I shall recommend that Respondent be ordered to offer reinstatement upon application to all strikers not previously reinstated to their former or substantially equivalent positions," without prejudice to their seniority or other rights or privileges, dismissing, if necessary, any persons hired or transferred in Respondent's employ on or after the beginning of the strike . In the event that there are not sufficient jobs for all the striking employees, the available positions shall be distributed among the striking employees who apply for reinstatement in accordance with such system of seniority or other nondiscriminatory practice heretofore applied by Respondent in a reduction in force in Respondent' s business. Those for whom no employment is available shall be placed on a preferential hiring list in accordance with such system and thereafter shall be offered reinstatement as employment becomes available before other employees are hired for such work. I shall also recommend that Respondent make whole the employees entitled to reinstatement for any loss of wages they may have suffered by reason of Respondent's refusal or failure to reinstate them on the basis set forth above from the dates of Respondent's refusals or failures to the dates of offers of reinstatement. Backpay is to be computed in accordance with the formula set forth in the paragraph above. CONCLUSIONS OF LAW 1. Respondent, Coleman Collins and Oakley Collins, a partnership, d/b/a Collins Mining Company, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. United Mine Workers of America, District No. 6, is a labor organization within the meaning of the Act. 3. All production and maintenance employees employed by Respondent at its operations at Hanging Rock, Ohio, including truckdrivers but excluding the weighmaster and all other office clerical employees, all saw mill employees and all guards, professional employees and supervisors as defined in the Act constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times since December 27, 1966, United Mine Workers of America, District No. 6 has been and now is the exclusive representative of the employees in the unit described above for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By interrogating employees about their union activities, their attendance at union meetings , their voting intentions, whether they signed statements for the Union, and how they voted in the election; soliciting employees to turn over to Respondent letters and authorization cards received from the Union; creating the impression that Respondent had engaged in surveillance of union activities; engaging in surveillance of union meetings; threatening to discharge employees because of their union activities; promising employees employment and wage increases if they voted against the Union; granting increases to employees as a reward for voting against the Union, discharging Robert Johnson, Curtis Leffingwell, James Bradshaw, Ray Bowman, John DeLong, and Clyde Matthews because of their union activities and those of other employees; refusing to reinstate or treating as ineligible for reinstatement Curtis Leffingwell, Charles Wall, and Otis Martin; and refusing to bargain upon request with United Mine Workers of America, District No. 6 in the appropriate unit set forth in paragraph 3, above, Respondent has engaged in and is engaging in "Although the reinstatement obligation ordinarily extends to those strikers who apply for reinstatement, by Respondent undertaking to reinstate the strikers as part of the settlement agreement, any obligation on the part of the strikers to apply for reinstatement was obviated at least until the settlement agreement was set aside. Determination of the obligation of the strikers thereafter and whether or not any of them had removed themselves from further consideration for reinstatement is left for the compliance stages of this proceeding. "Harry F Berggren & Sons, Inc., 165 NLRB No. 52; J.P Stevens and Co. Inc., 167 NLRB No. 37 and No. 38. 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unfair labor practices affecting commerce within the meaning of Sections 8(a)(l), (3), and (5) and 1(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby recommend that Respondent Coleman Collins and Oakley Collins, a partnership, d/b/a Collins Mining Company, its partners, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their union activities, attendance at union meetings, voting intentions, how they voted in representation elections, or the signing of statements for a union. (b) Soliciting employees to turn over to it letters, authorization cards, or other materials received from a union. (c) Creating an impression of surveillance of union activities. (d) Engaging in surveillance of union meetings. (e) Threatening to discharge employees or other reprisals because of their union activities. (f) Promising employment , wage increases, or other offers of benefit in return for opposing a union. (g) Granting wage increases or other benefits for voting against a union. (h) Discouraging membership in United Mine Workers of America, District No. 6, or any other labor organization, by discriminating in regard to the hire and tenure of employees or any term or condition of their employment. (i) Refusing to bargain collectively in good faith concerning rates of pay, hours of employment, and other conditions of employment with United Mine Workers of America, District No. 6, as the exclusive representative of the employees in the appropriate unit described in paragraph 3 of the section of the Decision entitled "Conclusions of Law." (j) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist United Mine Workers of America, District No. 6, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Robert Johnson, Curtis Leffingwell, James Bradshaw , Ray Bowman, John DeLong, and Clyde Matthews immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges previously enjoyed and make them whole for any loss they may have suffered by reason of the discrimination against them in the manner set forth in the section of the above Decision entitled "The Remedy." (b) Upon application, offer immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges , to all those employees of Respondent who went on strike on December 14 , 1966, or thereafter, dismissing if necessary any persons hired on or after such date, or if employment is not available , place such employees on a preferential hiring list , in the manner set forth in the section of this Decision entitled "The Remedy," and make them whole for any loss of pay they may have suffered by reason of Respondent's refusal or failure to reinstate them as set forth in "The Remedy" herein. (c) Notify the employees entitled to reinstatement if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records relevant and necessary to a determination of compliance with paragraphs (a) and (b) above. (e) Upon request, bargain collectively with United Mine Workers of America, District No. 6 as the exclusive representative of all employees in the appropriate unit and embody in a signed agreement any understanding reached. (I) Send to each of the striking employees who has not previously been reinstated and post at its Hanging Rock, Ohio, place of business, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by the Respondent's representative, shall be posted by it 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (h) Notify the Regional Director for Region 9, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith." I FURTHER RECOMMEND that the objections to the election conducted in Case 9-RC-7089 be sustained, the election set aside, and the petition therein dismissed. "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 Appeals Enforcing an Order " shall be substituted for the words "a Decision and Order." "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 Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner 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 employees that: COLLINS MINING COMPANY 253 After a trial at which all sides had the chance to give evidence, it has been found that we violated the National Labor Relations Act, and we have been ordered to post this notice to inform our employees of their rights. The Act gives all employees these rights: To organize themselves To form, join, or help unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things We have also been ordered to assure our employees that: WE WILL NOT do anything that interferes with these rights. You are free to join United Mine Workers of America, District No. 6, or any other union, and by majority choice, to select any union to represent you in bargaining with us. WE WILL NOT fire you or punish you or treat you differently in any way because you join a union or favor a union. WE WILL NOT ask you anything about a union or union activities. WE WILL NOT ask you to give us letters, authorization cards, or anything else that a union gives or sends to you. WE WILL NOT spy on your union meetings or activities and WE WILL NOT say or do anything to make you believe that we are spying on your union meetings or activities. WE WILL NOT threaten to fire you or punish you or treat you differently in any way if you join or work for a union, or vote for a union, or talk to other employees about a union. WE WILL NOT give or promise anyone jobs or raises or other benefits for opposing or voting against a union. It has been found that when we fired or laid off certain employees, we did this because these employees or other employees were for the Union . It has been found that this violated the Act. WE WILL give these employees back their jobs and seniority, and WE WILL make up any pay they lost because they were fired with 6 percent interest. The names of these employees are: Robert Johnson Ray Bowman Curtis Leffingwell John DeLong James Bradshaw Clyde Matthews It has been found that our employees who struck on December 14, 1966, had a right after the strike to go back to the available jobs because they struck on account of our unfair labor practices. It has been found that we violated the Act when we did not give all the strikers proper consideration for getting their jobs back. WE WILL offer all of our employees who went on strike on December 14, 1966, or after that date, a chance to go back to their old jobs and seniority , letting go, if necessary, any persons hired on or after that date. If there are not enough jobs to put all the strikers back to work, we will follow a fair system in filling the available jobs, and we will put those for whom there are no jobs available on a preferential hiring list. As their former jobs become available, we will put the employees on that list back to work before hiring any new employees. We will also make up, with 6 percent interest, any pay strikers lost because we did not put them back to work properly. It has also been found that we violated the Act when we refused to bargain with United Mine Workers of America, District No. 6. WE WILL bargain, at its request, with United Mine Workers of America, District No. 6, as the representative of all our employees in the appropriate bargaining unit about rates of pay, hours of work, and other working conditions. If an agreement is reached, we will sign a contract . The appropriate bargaining unit is: All production and maintenance employees at our operations at Hanging Rock, Ohio, including truckdrivers but excluding the weighmaster and all other office clerical employees, all saw mill employees and all guards, professional employees and supervisors as defined in the Act. Dated By C.E. COLLINS AND O.C. COLLINS D/B/A COLLINS MINING COMPANY (Employer) (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, Federal Office Building, Room 2407, 530 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686.