Buckhorn Hazard Coal Corp.

BUCKHORN HAZARD COAL CORP. 557 Buckhorn Hazard Coal Corporation and Edward Walker, Jakie Melton, Curtis Colwell, Walter Walker, John Watkins, and Marcillous Stacy. Cases 9-CA-5977-1, 9-CA-5977-2, 9-CA-5977-3, 9-CA-5977-4,9-CA-6032-1, and 9-CA-6032-2 ]December 15, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On August 5, 1971, Trial Examiner Josephine H. Klein issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a sup- porting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt her recommended Order to the extent consistent herewith.' The Trial Examiner found, in part, that Respondent discharged the Charging Parties in violation of Section 8(a)(3) and (1) of the Act by closing its deep mine on November 2, 1970. Respondent contends that it closed its deep mine solely because the coal produced was of poor quality. We find merit in Respondent's position. The deep mine was closed after Respondent's sole customer had complained about the quality of the coal. President Van Horne and his assistant, Wom- bles, decided that the poor quality of the deep-mine coal had caused the customer's complaints and therefore closed the mine on November 2. On November 3, Van Horne inspected the mine and decided that the mine should be reopened on a reduced one-shift basis for the purpose of searching for higher quality veins of coal. We note that neither Van Horne nor Wombles committed any of the other violations of the Act found by the Trial Examiner, and that they had known of the union activity for at least 2 months prior to closing the mine. For these reasons, we find that Respondent did not violate Section 8(a)(3) and (1) of the Act when it closed its deep mine. On the other hand, while Superintendent (or Foreman) Baker did not participate in the decision regarding closing the mine, Van Horne did make him primarily responsible for selecting those of the laid-off employees to be recalled for the reduced operation of 194 NLRB No. 88 the reopened mine. The Trial Examiner found that Baker knew the identity of the employees who had signed union cards. All of the Charging Parties had signed such cards. On November 6, the day following the reopening of the mine and Baker's recall of some of the laid-off employees, Baker told two of the Charging Parties, one of whom had less seniority than any of the other Charging Parties, that they had not been recalled because of their union sympathies. These circumstances, together with the several threats made to employees by Baker in violation of Section 8(a)(1) of the Act, clearly establish that Respondent discriminated against the Charging Parties in viola- tion of Section 8(a)(3) and (1) of the Act by not recalling them on November 5, 1970, and thereafter, in order to discourage union membership. Since Respondent subsequently offered all the Charging Parties, except Colwell, reinstatement to their former jobs as of February 8, 1971, the Trial Examiner's recommended Order appropriately reme- dies the unfair labor practices found, except that backpay shall be computed from the discrimination which occurred on November 5, 1970. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of, the Trial Examiner, as modified herein, and hereby orders that Respondent, Buckhorn Haz- ard Coal Corporation, Hazard, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order, as so modified. Substitute the attached notice for that of the Trial Examiner. i The Respondent has excepted to certain credibility findings made by the Trial Examiner. It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A 3). We have carefully examined the record and find no basis for reversing her findings. Respondent has requested oral argument This request is hereby denied as the record, the exceptions, and the brief adequately present the issues and the positions of the parties. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the chance to give evidence, it has been decided that we, Buckhorn Hazard Coal Corporation, have violated the National Labor Relations Act, and we have been ordered to 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD post this notice, and we intend to carry out the order of the Board and abide by the following: We give these assurances: WE WILL NOT threaten that we will close any part of the mining operations if you choose to have a union represent you. WE WILL NOT threaten you with loss of jobs if you support United Mine Workers of America or any other labor organization. WE WILL NOT fire you or take any other action against you because you have joined or supported, now support, or will join or support any union. WE WILL NOT in any other way interfere with our employees' rights, guaranteed under law, to organize, to form, join, or assist a union, to bargain through the union they may choose, to act together for their mutual aid or protection, or to refuse to do any of these things. WE WILL offer to give Curtis Colwell back his job (or, if that job no longer exists, an equal job) with the same rights and privileges he would have if we had not failed and refused to recall him on November 5, 1970. , WE WILL pay to Edward Walker, Jakie Melton, Curtis Colwell, Walter Walker, John Watkins, and Marcillous Stacy all pay they lost because we failed and refused to recall them on November 5, 1970, with 6-percent interest. All of our employees are free to become or remain, or to refrain from becoming or remaining, members of United Mine Workers of America or any other union. BUCKHORN HAZARD COAL CORPORATION (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Federal Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOSEPHINE H. KLEIN, Trial Examiner: This case was tried in Hazard, Kentucky, on April 6 and 7, 1971, on a consolidated complaint issued on February 8, 1971, pursuant to four charges filed on December 11, 1970, and two on January 20, 1970. The complaint alleged unlawful threats and interrogation in violation of Section 8(a)(1) of the Act' in September and October 1970 and discriminato- ry discharge or layoff of the six Charging Parties on November 2, 1970, in contravention of Section 8(a)(3). Respondent's answer denied the substantive allegations of the complaint and stated affirmatively that Respondent's deep mine was closed and the employees were "laid off" on November 2, 1970, because of the poor quality of the coal being mined. The answer also stated that some "employees, not including the Charging Parties, had been recalled on November 5 to probe the mine partings and that the remaining employees had later been offered reinstatement as of February 8, 1971. During the hearing , the complaint was amended to allege an additional violation of Section 8(a)(1). All parties were afforded full opportunity to be heard, to present oral and written evidence, and to examine and cross-examine witnesses. The parties waived oral argument and after the hearing the General Counsel and Respondent filed briefs. Upon the entire record, observation of the witnesses, and consideration of the briefs, the Trial Examiner makes the following: FINDINGS OF FACT 1. PRELIMINARY FINDINGS A. Buckhorn Hazard Coal Corporation, Respondent, a Delaware corporation, is engaged in mining and selling coal at Hazard, Kentucky. During the calendar year 1970, a representative period, Respondent sold coal valued in excess of $50,000 which was shipped from Kentucky directly to points outside Kentucky. Respondent is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. B. The Union, United Mine Workers of America, is, and has been at all times material herein , a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Background and Chronology Respondent commenced its,mining operations in Haz-, ard, Kentucky, sometime around August 1969. It started with strip and auger mining operations . In the spring of 1970 it opened a deep mine and around the end of July started to ship strip and deep-mine coal mixed together to Georgia Power Company, its sole customer. Of Respondent's total complement of approximately 60 production, about 25 to 30 normally worked in the deep 1 National Labor Relations Act, as amended (61 Stat 136, 73 Stat 519, 29 U.S.C Sec 151 et seq ) BUCKHORN HAZARD COAL CORP. 559 mine, on two production shifts of about 1 I or 12 men each, and a third maintenance shift of around 3 to 5 employees.2 In August 1970 the Union commenced an organizational campaign. On or about August 25, claiming to hold authorization cards executed by about 85 percent of the employees, the Union, orally and in writing, requested bargaining. Respondent rejected the demand and the Union filed a representation petition on October 14, 1970. On November 2, 1970, Respondent ceased operation of the deep mine. Two or three men worked that day, and possibly the next day, collaring and timbering the roof at a dangerously weak point. On November 5, Respondent resumed deep-mine operations on a limited basis, with one shift of nine employees, with a tenth added about 2 weeks later. The 6 Charging Parties were among the 12 employees not recalled. A hearing was held on the Union's representation petition on November 12. On December I1 the Regional Director issued a Direction of Election. Case 9-RC-8760. In the election, held on January 6, 1971, the Union was defeated by a vote of 35 to 12. On February 1, 1971, Respondent addressed to each of the deep-mine employees who had not been reinstated, including each of the present Charging Parties, a letter offering reinstatement as of February 8, 1971, without backpay. In the letter, Respondent expressly denied any violation of law. Two of the Charging Parties have returned to work for Respondent; three declined reinstatement; the status of the sixth is discussed below. B. Section 8(a)(1) 1. Threats All six Charging Parties testified that foreman Ernest Baker said that if the Union came into the mine, Respondent would close down the mine and move the equipment back to Virginia or West Virginia. Baker, denying that he had made any such statements, maintained that he had never discussed the Union or its activities with any of the employees. The Charging Parties all impressed the Examiner as forthright, conscientious witnesses attempting to state the facts accurately Without embellishment or exaggerations Their testimony was basically all consistent but without any of the indicia of prior consultation or rehearsal. Such conflicts as their testimony contained were minor and manifestly reflected only faulty memory for small details on the part of unsophisticated workmen. Baker, on the other hand, appeared set on supporting Respondent's position at virtually any cost. On cross- examination, he equivocated and fenced with counsel. Baker's testimony contained numerous internal inconsis- tencies and in several aspects was in conflict with other evidence adduced by Respondent. Its major thesis, namely 2 However, seniority lists of the employees laid off, introduced into evidence by Respondent, show only 22 deep-mine employees as of November 2 3 The only lack of candor on the part of any of the Charging Parties arose in the cross-examination of Watkins, who was obviously reluctant to discuss his, and other employees', apparent dislike of Baker. However, Watkins was otherwise forthright, testifying unequivocally that Baker never threatened him with discharge if he joined the Union and that, so far as a denial of any knowledge of the Union's campaign from its inception in August 1970 until, at most, a few days before the Board-ordered election in January 1971, is inherently incredible. Hazard is a relatively small community engaged princi- pally in coal mining. The mines are naturally a matter of generally interest and concern to the inhibitants. Baker was the only full-time supervisor at Respondent's deep mine and, according to his own testimony, spent 10 to 12 hours per day at the mine. It is totally inconceivable that he could remain unaware of the Union's organizing campaign even after the Union, claiming about 85 percent authorization, demanded recognition and thereafter filed a representation petition. Baker denied ever having discussed the Union campaign with Allen Van Horne, Respondent's vice president, who lives in Charleston, West Virginia, or with Henry Wombles, Respondent's land agent and Van Home's resident assistant. Baker specifically denied having received any instructions concerning the Union matter. But Van Home testified that he did "mention it to Mr. Baker in this respect, that we have certain rights that we can do and can't do and be careful." While resolutely denying any conversations with Van Horne or Wombles concerning the Union campaign or the representation and complaint proceedings, Baker acknowledged that he had twice conferred with Respondent's counsel because, in his words: "I always talk .with my lawyer." However, he was notified of the appointments with counsel by Respondent's secretary and there is no evidence that Respondent's counsel has ever served as Baker's personal lawyer. Baker was so determined to deny having discussed the Union that he professed not to recall whether Union activity had been mentioned in an interview he had had with a Board agent, with Respondent's counsel present. When confronted with the fact that he had told a Board investigator that he had heard rumors of Union' activities from "citizens," he then maintained that he had "only heard one lady tell that and she was telling it to [his] wife." He even maintained that he had also learned of the election at Respondent's establishment from a neighbor, who was foreman of another mine in the area. He claimed to have paid little attention to such "rumors," saying: "You take what your neighbors say with a grain of salt most of the time because these rumors that comes in, there's just a possibility that there isn't anything to them." He did not volunteer any reason for not investigating the "possibility" that there was some factual basis for the rumors. By leading questions, Respondent's counsel elicited testimony by John Watkins, the General Counsel's first witness, that Baker had expressed his own interest in joining the Union.4 Similar testimony was later adduced on cross-examination of Walter Walker.5 Such testimony Watkins knew, Baker did not overhear any conversations among the employees about the Union 4 Cross-examination of Watkins: "Q. (By Mr. Ray) Mr. Watkins, when Mr Baker talked to you about the Union, did he ask you whether the Union would take him as a member? A. Yes, Sir." 5 Cross-examination of Walter Walker: (Continued) 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD belies Baker's denial that he ever spoke of the Umon to any employees. On all the "evidence, the Examiner credits the Charging Parties' testimony and discredits Baker's denials. The Charging Parties' testimony, however, is confused as to when Baker threatened that the mine would be closed if the employees chose to be represented by the Union. Watkins testified that Baker made the threat in September to Watkins, Edward Walker, Walter Walker, Curtis Colwell, and Luther Little .6 The Walker brothers said that Baker made the threat to that group on or about October 29. Apparently these three witnesses were referring to the same incident. Jakie Melton, Marcillous Stacy, and Colwell testified to similar threats in September. It appears likely that Baker made all similar statements at or about the same time. Thus, the Walker brothers were probably in error as to the date of the statement. Accordingly, the Examiner finds that the General Counsel has established only that Baker made such threats in September and will, therefore, recommend dismissal of the separate allegation of such threats made on or about October 29. Jakie Melton also testified that in September Baker said that he had been instructed by Van Home "to fire anybody that signed Umon cards." Despite Baker's denial, the Examiner credits Melton's testimony. Employee Colwell credibly testified that in the latter part of October Baker said that Respondent was probably going to get rid of employee General Patnck because he was "talking this Union talk up." Patnck was then out sick, and Baker said that "when he [Patrick] come back [Baker] was going to put him down on another job and cut his pay" because he was for the Union. These statements also violated Section 8(a)(1). Employees Colwell and Watkins testified that late in October Baker told them that he had advised his two sons, who also worked for Respondent, "if the Union did come in to join it and make good Union men, but ... not to take sides nary way until he found out how it was going to go." According to Watkins, Baker also indicated his interest in securing a nonsupervisory job and joining the Union. The Examiner finds such statements by Baker were not violative of the Act. Uncontradicted evidence establishes that in October Wombles stated that he did not know why the men wanted a union because they already had the best hospitalization plan in the area. In his brief, the General Counsel argues that the statement contravened the Act because it "could lead the employees to reasonably understand that such benefits would be achieved without intervention of the Union, therefore the selection of such representative was not necessary, expensive and futile." No such violation was alleged in the complaint and the General Counsel offered no relevant amendment at the hearing. In any event, the Examiner believes Wombles' statement was a permissible, noncoercive expression of opinion and did not constitute an express or implied threat of withdrawal of the plan if the Union was chosen or a promise of benefits if the Union was defeated.? 2. Interrogation There is no evidence in the record that Wombles coercively interrogated any employees about the Union or employee activities in behalf of the Union. Accordingly, the Examiner will recommend dismissal of the allegation in the complaint that Wombles interrogated an employee con- cerning his Union activity.8 3. Request to withdraw charges Walter Walker testified that on or about March 1, 1971, he was approached by Baker, who said: "Well, all of them suits that got filed was just a misunderstanding, you just ought to drop it." Walker replied that he would not drop his charge. On cross-examination, Walker denied having told Baker that the allegations he had made were not true and that he wanted to drop the charge. He denied having sought Baker's help in having the charge withdrawn. At the conclusion of Walker's testimony, the Examiner, over Respondent's objection, allowed an amendment to the complaint adding an allegation that Respondent violated Section 8(a)(1) in asking an employee to withdraw unfair labor practice charges pending before the Board. Baker later quoted Walker as having said he had been "high-pressured into filing these charges and . . . that everything that they had said was lies . . . and he would like to get the Company to write a letter withdrawing for him." Wombles thereafter testified that Walker had "voluntarily" told Wombles "that the thing was all a mistake . . . that he had told Mr. Baker he wanted him to help" have the charge withdrawn. Neither Baker nor Wombles testified concerning Baker's response to Walker's request for assistance. Significantly, Wombles did not quote Walker as having admitted that his allegations against Baker were untrue. The Examiner discredits Baker's testimony concerning such an admission by Walker. The Examiner credits Walker's testimony that Baker raised the subject and first expressed the opinion that the charges were "all a mistake" and should be withdrawn. Although the evidence does not specifically so establish, it appears that Walker agreed and expressed his willingness to have the charges dropped.9 However, Baker's statement, as quoted by Walker, does not appear to have contained any threat, expressed or implied, that the employment status of Walker or any other employee would be affected by the pursuit or withdrawal of the charges. In additional "Q (By Mr. Ray) Did Mr Baker on this occasion say that he would like to join the Union also? A yeah, he did." 6 Like the Charging Parties, Little was let go on November 2 and not recalled in November He does not now work for Respondent. He was neither a charging party nor a witness in this case T The situation is different from that presented in Arland Printing Co, 181 NLRB No 68, cited by the General Counsel. In Arland the Board found that the Respondent had invited direct dealings by employees with management and impliedly promised improvement or future benefits as a result of such direct dealing. 8 Nor is there any evidentiary support for the statement in the General Counsel's brief that "Baker interrogated employees as to why they supported the Union " No such interrogation was alleged in the complaint. 9 On questioning by counsel for the Charging Parties, employee John Watkins, the General Counsel's firsf witness, testified that he had sought to withdraw his charge. The Examiner, sua sponte, excluded that evidence and counsel thereupon abandoned his attempt to establish the reason for Watkins' request. BUCKHORN HAZARD COAL CORP. 561 testimony, Walker suggested that shortly after the conver- sation concerning the withdrawal of the charge, Baker assigned him additional duties. Walker thereupon quit, saying: I haven't no choice but to quit, I can't do two jobs." There is perhaps reason to suspect that Baker's imposing additional duties on Walker was related to the employee's refusal to seek withdrawal of the charge. However, such a conclusion would be speculation rather than warranted inference. This is particularly so because of the absence of any allegation or contention that Walker's quitting his job amounted to a constructive discharge. Accordingly, the Examiner will recommend that the amended complaint be dismissed insofar as it alleges an unlawful request that an employee withdraw charges pending before the Board. The Examiner, however, also rejects Respondent's argument that "The action of Watkins and Walter Walker in seeking to withdraw their charges . . . certainly raises an inference that the statements allegedly made by Baker have no real basis in fact." Any such requests were apparently made, if at all, after the complaint had been issued, following investigation by the Regional Director. The Board's Regulations (Sec. 102.9) provide that a charge may be withdrawn only with the consent of the Regional Director, the Trial Examiner, or the Board, depending upon the stage of the proceeding. This provision manifestly reflects the Board's recognition that Charging Parties, being private parties, may seek to drop charges for reasons unrelated to, and even inconsistent with, the policies of the Act. They may, for example, simply want to avoid the inconvenience and anxiety involved in testifying; or they may hope to establish or reestablish friendly relationships with the respondents for their personal benefit; or they may act out of fear, realistic or not, of reprisals.10 It cannot be said, as Respondent argues, that "The only reasonable explanation of their desire to withdraw the charges would be that they wish to rectify their error in making the charges naming Baker in the first place." C. Section 8(a)(3) When the employees of Respondent's deep mine reported to work on Monday, November 2, 1970, they were informed that the mine was closed down because of rock partings which resulted in poor quality coal. Each employee was given a "cutoff" slip, reading: Due to conditions beyond our control (Namely, Rock partings which prevents our being able to mine merchantable coal) we regret very much to inform you that your services will not be needed as of the day and date written above. So far as the record discloses, such cutoff notices were given to the employees on both production shifts and on the 10 It was these considerations which underlay the Examiner 's exclusion of testimony offered by the Charging Parties' counsel concerning Watkins' request that this charge be withdrawn 11 Another man was added on November 18. 12 Baker's son apparently continued work during the shutdown, as an "acting foreman." 13 He testified: Q. (By Mr. Gravitt) Mr. Moms, you heard the employees talking about the Union there, say, in October before they were laid off, and August? . A No, I didn't hear them. smaller maintenance shift. However, two or three employ- ees were kept at work that day and probably the next day shoring up a weak area in the roof of the mine. On Thursday, November 5, production was resumed with one shift of nine men." At the hearing, Baker, Wombles, and Van Home, Respondent's representatives, all denied having any knowledge of the identity of Union supporters or card signers. The record, however, establishes such knowledge on Respondent's part. Employee Curtis Colwell testified that sometime in October, on the way home from the mine, Baker said that Dan Morris was keeping him fully advised of the Union activities and "that he [Baker] knowed every man that signed union cards." In support of Baker's denial of such knowledge, Respondent refers to the testimony of Dan Moms that he never discussed the Union with Baker. In its brief, Respondent says that Dan Morris and his brother, Coolidge, "are disinterested witnesses, since they have nothing involved in this proceeding." However, on the stand, they both disclosed their antiunion sympathies. Significantly, they were two of at most three 12 employees who were not laid off on November 2, and they lost only 1 day's work. Dan Morris initially testified that he "didn't hear" any employees talk about the Union but then said he was asked "a couple of times" to sign a Union card. He said there was "very little" Union talk among the employees 13 but later testified that he knew of the election because "You could hear it all over the country." However, Baker maintained that he heard of the election only from a foreman at another mine, unrelated to Respondent. Several of the Charging Parties testified that they discussed the Union at the mine virtually every day, usually at lunch time. Baker testified that during the Union campaign he frequently observed small groups of employees abruptly discontinue conversations upon his appearance. His attempt, on cross-examination, to explain the employees' conduct as reflecting guilt when caught "loafing" was unconvincing. Jakie Melton's testimony shows that it was not until after Baker quoted Van Home as threatening to fire Union card signers that the employees became secretive about the Union. On November 6, Edward and Walter Walker, Charging Parties, returned to the mine to inquire about the possibility of recall. Walter Walker quoted Baker as then expressing "his opinion the reason [the Walker brothers] wasn't hired back, [they] was union sympathizers." Walter Walker, it may be noted, later served as the Union's observer in the election. The evidence of Baker's knowledge of the employees' Union activities finds support in the small size of the Q. You never heard them talk about the Union? A. I knowed they was trying to get in, right... . Q. You knew these fellows that filed these charges here, didn't you?. A. Yes, sir.. Q. You knew they were for the Union, didn't you? A. I figured they was, yeah . . Q But there was a lot of talk there amongst the men about trying to get a Union, wasn't there9 A. Not amongst the men I knew of, very little. Now and then you might hear somebody speak about it, that would be all. 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD establishment and the fact that Baker, according to his own testimony, was present for 10 to 12 hours every day. Additionally, Hazard is a small, closely knit community engaged almost exclusively in mining. Under the circum- stances, it would be virtually impossible for the details of any union organizing campaign to remain secret to any extent. The Examiner credits the Charging Parties' testimony and discredits Baker's denials.14 The credited evidence establishes superintendent Baker's knowledge of the Charging Parties' Union sympathies before the layoff on November 2. As previously mentioned, the Union, claiming authoriza- tion by about 85 percent of Respondent's employees, made oral and written requests for bargaining early in September and filed a representation petition on October 14. On Monday, November 2, the deep mine was abruptly closed without any advance notice. It was then reopened with a single shift, composed of employees selected from all the three shifts previously employed. Among the 12 employees not recalled on November 5 were the 6 Charging Parties, all Union supporters. At the representation hearing held a week later, Respondent maintained that the unrecalled employees were ineligible to vote because they had no reasonable expectation of recall. And at the election, held on January 12, Respondent challenged the present Charging Parties on the ground that they were no longer employees. In its brief in the present case Respondent contends that threats to close the mine could not have coerced the employees because "The employees at the deep mine' knew that Buckhorn could not remove its mine machinery to any other location until Kentucky River (the land company) gave permission to abandon the . . . property . . . [and] the employees knew that Buckhorn would not abandon its investment in the mine until the merchantable coal had been removed...." Yet the shutdown on November 2 was not then announced as either temporary or partial. If Respondent intended to mine all the coal, presumably it intended also to resume full,production, as it eventually did. The abruptness and timing of the mine shutdown and only partial resumption of operations, with selective recall of employees, establish a prima facie case of discriminatory action violative of Section 8(a)(3). N.L.R.B. v. Montgomery Ward & Co., 242 F.2d 497, 502 (C.A. 2), cert. denied, 355 U.S. 829; N.L.R.B. v. Pembeck Oil Corp., 404 F.2d 105, 110 (C.A. 2), remanded, 395 U.S. 828; N.L.R.B. v. Mid State Sportswear, Inc., 412 F.2d 537, 539 (C.A. 5). "The Company had the burden to come forward with an adequate explanation for discharging [the employees] once a prima facie case of possible discrimination had been established by the General Counsel." N.L.R.B. v. Standard Container Co., 428 F.2d 793,794 (C.A. 5). To rebut the prima facie showing of discrimination, Respondent maintains that the mine was closed on November 2 because the rock content of the mine product was so high as to render the coal unmerchantable. In explanation of the almost immediate resumption of a single-shift operation, Respondent asserts that, after inspecting the shutdown mine, Van Home decided to move ahead in the hope of working through the bad area into better material. Respondent's basic factual contention is that it desired to produce relatively less deep-mine coal, which was "dirty" (i.e. contaminated by rock and other noncombustible materials), to mix with its strip and auger mined coal, which was "clean." According to Respondent, the deep-mine coal could be rendered merchantable only by being "diluted" with its "clean" strip and auger coal.15 According to Van Home, the usual ratio of strip (including auger) to deep- mine coal is 5 to 1. Although no representative of Respondent expressly so testified, its position presumably is that the "dirty" quality of its deep-mine coal required an increase in the proportion of strip coal, and, since Respondent has only one tipple, a desirable ratio could be achieved only by reducing the amount of coal being removed from the deep mine. Respondent's evidence, however, does not support this view. Respondent called John Harsany, a mechanical mining engineer, who had examined the mine on February 16, 1971, for the purpose of testifying in this proceeding. Through him, Respondent introduced into evidence a map of the mine, with a chart or graph purporting to show the progressive deterioration in the quality of the coal in the months preceding November. In connection with the graph, there appears the following note: "RISE IN REJECT-MONTH OF OCTOBER 1970 and SAME TIME A 33.3 PERCENT DROP IN STRIP PROD- UCTION RESULTED IN BEING FORCED TO WORK ONE SHIFT ON NOVEMBER 5, 1970." In his extensive testimony, Harsany was not asked about this note and he did not undertake to clarify or explain his reference to "a 33.3 percent drop in strip production." Harsany's testimony is generally unreliable. He equivo- cated or contradicted himself as to whether he had examined Respondent's production and sales records. He said that he could with reasonable accuracy determine the particular area of the mine being worked at different times on the basis of information he had concerning the number of manhours worked and the type of equipment being used. However, after considerable equivocation, he conceded that he did not know either the quantity or the quality of the strip-mine coal available to Respondent for mixing with the "dirty" deep-mine coal. Such information would appear indispensable to his statement that "by reducing the volume of reject by cutting off one shift [Respondent was] able to dilute this coal . . . by diluting it they reduced the ash content and were able to sell the coal" and his "expert" opinion that this consideration constituted "good and sufficient reasons" for the shutdown and partial resumption of deep-mine operations in November. Respondent provided no enlightenment. The two-shift strip-mining operation was not reduced when the deep mining was. Van Home testified that before the shutdown, as the employees became familiar with the equipment, 14 Perhaps most incredible in Baker's testimony was his statement that 15 At one point, however, Van Horne testified that deep-mine coal is he did not know whether- his own son, who worked at the mine, had signed generally considered better than strip coal because of its higher BTU a Union card content. BUCKHORN HAZARD COAL CORP. 563 deep-mine production steadily increased and additional strip-mining equipment was then obtained to "bring our strip tonnage to . . . almost a five-to-one ratio and this exists as of now." On such facts, a temporary reduction in deep-mine operations would have appeared economically dictated. But the shutdown was attributed to the quality, rather than the quantity, of the deep-mine coal, and the shutdown was not announced as temporary, Van Horne testifying at the representation hearing in November that the laid-off employees had no reasonable expectation of recall. Van Home testified that actual operation of the deep mine began around June 1970 and as it proceeded the quality of the coal "got progressively worse." The sales price of the coal is based on its BTU content, and tests are made of each trainload shipped. Although Van Home testified that his decision to close the mine was based on examination of reports of these tests, the only figures submitted showed monthly averages of the BTU and ash content of coal shipped in October through December. Such figures could not show a quality deterioration leading to the shutdown. Further, since the coal shipped was a mixture of strip and deep-mine, a deterioration, if shown, could have resulted from an increased proportion of deep- mine coal without any decline in its quality. Harsany's chart did purport to show a progressive deterioration in the quality of the deep -mine product. According to his theoretical reconstruction of the progress of the mining operations, production stopped on November 2 at a specified location between two points at which he made seam sections . These sections showed 47.7 percent reject just before the shutdown (No. 4) and 55.5 percent at the postshutdown point (No. 11). However, these two points appear to be around 200 feet apart and other portions of his chart show that the reject content may vary as much as 10 percent within about 20 feet (49 percent at section No. 7 and 59 percent at No. 8) or 15 percent within 60 feet (44 percent at No. 9 and 59 percent at No. 8). Dan and Coolidge Morris both testified that before the shutdown they had measured the rock seams and that one near the floor of the mine measured 13 to 14 or 15 inches and one toward the roof was 4 to 6 inches. When asked, Coolidge Morris was unable to provide any reason why he, a rank-and-file employee, had measured the rock. In any event, contrary to Respondent's position and Harsany's testimony, Coolidge Morris testified that the amount of rock was about the same before and after the shutdown. Opposed to Respondent's unimpressive evidence of a quality depreciation occasioning the abrupt shutdown is substantial evidence negating such a contention . There is substantial evidence contrary to Respondent's unimpres- sive evidence of an increase in the rock . Colwell worked as a driller and shooter, i.e., the person who drills holes and inserts dynamite therein. He testified that the larger the amount of rock, the more explosive necessary. On October 26 or 27, the week before the shutdown , Colwell, being instructed by Baker, was drilling six holes at a location when "Mr. Wombles came up to the face of the coal and said, `it looks like the rock is going down, just drop it back down to five.' " At the time of the layoff Colwell expressed his surprise because there was then less rock than there had been previously . Baker made no reply. The Examiner credits Colwell. John Watkins testified that some 2 or 4 weeks before the shutdown the lower rock seam had "got considerably larger," but to the best of [his ] recollection it didn't go too far and did not get worse . Edward Walker testified that about 2 weeks before the shutdown "the rock was running pretty thick . . . maybe 10 or 12 inches . . . but when they laid us off, the rock had run down, it had got narrower .. . about 7 or 8 inches." Respondent asserts that the persons recalled on Novem- ber 5 were selected on the basis of seniority and qualifications. Respondent maintains that, in general, the most senior employee qualified for a particular job was recalled. Presumably to establish this position, Respondent introduced separate lists of the employees who were recalled and those who were not, with their hiring , dates. However, it is impossible from these data to determine whether Respondent did follow its asserted principle since in many instances there is no information as to the employees' classification or qualifications . Charging Party Stacy testified that he was originally hired as a repairman and eventually did "practically everything to be done in the mine." Although he had originally been hired on July 24, 1970, he was not recalled on November 5, whereas Pascal Brewer, who had commenced working for Respondent on September 28, 1970, was recalled as an "all around worker." John Watkins, hired on May 15, was qualified as a brattice man, shuttle and ramp car operator, and general worker. At the time of the shutdown he was working as a brattice man. He was not recalled. The evidence does not show who was recalled as a brattice man, but Wombles confirmed that brattice work must be performed in any mining operation. Van Home testified that he instructed Baker and Wombles to secure a seniority list and "to be especially careful in operating people, in order to select one that maybe could do two jobs." Wombles and Baker received the seniority together. Wombles, however , testified that he did not have any discussion with Baker about choosing specific employees because they could do more than one job. Although Baker and Wombles both testified that Baker was primarily responsible for choosing the employees to be recalled, the evidence as a whole indicates that he was probably given a list of those considered eligible . Several of the Charging Parties testified that Baker had so stated at the time. Additionally, Baker testified that it was impossible on such short notice to secure a full crew to work on November 5. He was then asked whether he had tried to get Colwell, who lived nearby. Baker's reply was: "Curtis Colwell was not on the seniority list." Colwell , however, had more seniority than two of the employees who were recalled and Colwell credibly testified that he had been hired as a handyman "but [he ] worked on everything in the mine except the joying machine." At the election, Respondent's counsel referred to Colwell as a "Union hustler" and apparently objected to Colwell's alleged electioneering. While it does appear that the majority of the employees recalled on November 5 had relatively high seniority, the 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD detailed evidence does not establish Respondent's conclu- sory contention that recalls were determined on the basis of seniority and qualifications alone. The fact that 6 of the 12 employees not recalled were Union supporters appears something more than coincidence when viewed together with Respondent's contention at the representation hearing on November 12 that the laid off employees were ineligible to vote in an election. Cf. Heinrich Motors, Inc., 153 NLRB 1575, 1581. On all the evidence, the Examiner finds, as alleged in the complaint, that the Charging Parties were discriminatorily laid off or discharged in violation of Section 8(a)(3) and (1) of the Act.16 Colwell said he doubted whether Baker wanted Colwell back but Wombles assured him that anybody who wanted to return would be allowed to. Wombles maintained that he instructed Colwell to keep in touch with the Company but Colwell never did call. On all the evidence, the Examiner finds that the obligation was on Respondent to call Colwell after he reported on February 8 in accordance with the original recall letter. Thus, it is found that, as alleged in the complaint, Respondent has failed and refused to offer Colwell reinstatement. CONCLUSIONS OF LAW D. Reinstatement The complaint alleges that Respondent "has failed and refused to reinstate' the Charging Parties. On February 1, Van Home wrote to each of the employees who had not hitherto been recalled. The letters offered reinstatement as of February 8 without backpay, and concluded as follows: By making this offer and reinstating you, we do not admit that we have violated any law or that we illegally laid you off or that we owe you any back pay, all of which we expressly deny. Stacy,17 Edward Walker, and Melton all declined the offer of reinstatement because they had secured other employ- ment. Walter Walker, who served as observer for the Union at the election in January, did return to work for Respondent on February 8. As previously set forth, on March 1 or 2, Baker told Walker that he "ought to drop" his charge against Respondent and Walker replied that he "aint dropping it." A few days thereafter, Baker issued instruc- tions that Walker was to set line timbers. Walker thereupon quit, saying: "I haven't no choice but to quit, I can't do two jobs." While it may be that Walter Walker was construc- tively discharged on March 5, the complaint contains no such allegation. The Examiner believes the evidence is insufficient to establish that Walker's reinstatement on February 8 was less than complete. On February 8, John Watkins went to the mine. Wombles said that the reinstatement offers, written by Van Home, had come as a surprise and thus Wombles was not able immediately to activate a night shift, where Watkins was to work. Watkins therefore did not resume work for Respondent until the following week, on February 15. Colwell testified that he had gone to the mine on February 8 with Watkins. Wombles said that Colwell, who had been on the day shift at the time of the shutdown, was to be put on the night shift and Wombles would get in touch with him. Wombles never did so. Colwell further testified: "After I found out the boss' [Baker's ] son had my job, I knowed I wasn't going back." Wombles testified that 16 Since the evidence suggests that the entire elimination of the second production shift and the smaller, maintenance (third) shift may have been discnmmatorily motivated, other discharges may have been violative of the Act. Novelty Products Co, 170 NLRB No 68, O'Keefe Electric Co, 158 NLRB 434, 438, enfd. 391 F.2d 589 (C.A 9). However, as the complaint covers only the six named Charging Parties, the findings herein are limited to them. 1. By threatening employees with closure of Respon- dent's deep mine in Hazard, Kentucky, with consequent loss of employment if the employees chose to be represented by the Union, and with loss of employment to employees who signed Union authorization cards, Respon- dent interfered with, restrained, and coerced employees in the exercise of their rights under Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8(a)(1). 2. By closing its deep mine on November 2, 1970, and then reopening on only a one-shift basis on November 5, 1970, thus discharging or laying off Edward Walker, Jakie Melton, Curtis Colwell, Walter Walker, John Watkins, and Marcillous Stacy, in order to discourage Union activities, Respondent has discriminated in regard to hire and tenure of employment in violation of Section 8(a)(1) and (3) of the Act. 3. By failing and refusing to offer Curtis Colwell reinstatement to his former employment, Respondent has discriminated in regard to hire and tenure of employment, in violation of Section 8(a)(1) and (3) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. It has not been established that Respondent engaged in unfair labor practices other than those specified above. THE REMEDY The recommended Order will contain the conventional provisions in cases involving findings of interference, restraint, coercion, and discriminatory discharge in viola- tion of Section 8(a)(1) and (3) of the Act. These will require Respondent to cease and desist from the unfair labor practices found, to offer reinstatement to Curtis Colwell, and to compensate all six discriminatees for any loss of earnings caused them by the discrimination found, back pay to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. As the unfair practices committed by Respondent are of a character striking at the root of employee rights safeguard- ed by the Act, the Examiner will recommend issuance of a 17 On cross-examination, Stacy testified that sometime in December he received a telephone call from Baker. Stacy denied having said that he did not want to return to work for Respondent. According to Stacy, Baker merely inquired whether Stacy was then working elsewhere. The Examiner finds that Stacy was not offered reinstatement before the letter of February l BUCKHORN HAZARD COAL CORP. 565 broad cease-and-desist order. Brad's Machine Products, Inc., 191 NLRB No. 15. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, the Trial Examiner hereby issues the following recommended: 18 ORDER Respondent, Bucldlgrn Hazard Coal Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with mine closure or loss of jobs if they chose to be represented by a union; (b) Threatening employees with loss of jobs if they sign union authorization cards; (c) Discouraging membership and activities in any labor organization by discriminating in regard to hire and tenure of employment of Respondent's employees; (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action, which is deemed necessary to, effectuate the policies of the Act. (a) Offer Curtis Colwell immediate and full reinstatement to his former job, or, if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority and other rights and privileges; (b) Make Edward Walker, Jakie Melton, Curtis Colwell, 1s In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herem shall , as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 19 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Walter Walker, John Watkins, and Marcillous Stacy whole for any loss of pay they may have suffered as a result of their discharge, in the manner set forth in "the Remedy" section herein; (c) 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 necessary to analyze the amount of backpay due under the terms of this Order; (d) Post at its office and mining locations in Hazard, Kentucky, copies of the attached notice marked "Appendix." 19 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by 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 Respondent to insure that said notices are not altered, defaced or covered by any other material. (e) 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.20 It is further ordered that the amended complaint be, and it hereby is, dismissed insofar as it alleges unfair labor practices other than those found herein. Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 20 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read. "Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith."