Wheeling-Pittsburgh Steel Corp.

WHEELING-PITTSBURGH STEEL CORP. Wheeling-Pittsburgh Steel Corporation and John E. Mendez. Case 9-CA-6158 February 29, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On November 12, 1971, Trial Examiner Eugene F. Frey issued the attached Decision in this proceeding. Thereafter, the General Counsel filed limited excep- tions and a supporting' brief, and the Respondent filed limited cross-exceptions and' a supporting brief and a brief in answer to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority 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 briefs and has decided to affir' the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that Wheeling- Pittsburgh Steel Corporation, Omar, West Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE F. FREY, Trial Examiner: This case was tried before me on August 12 and 13, 1971, at Logan, West Vir- ginia, with all parties 'represented by counsel, after pretrial procedures conducted in compliance with the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. (herein called the Act). The issues in the case are whether Respondent, Wheeling- Pittsburgh Steel Corporation, coerced its employees, mem- bers of Locals 5921 and 5922 of District 17, United Mine Workers of America (herein called collectively the Union and severally Local 5921, Local 5922, District 17, and UMWA) by threats to cause, and actually causing, Carolina Coal Com- pany (herein called Carolina), which was mining coal on leased property of Respondent, to refuse to recognize senior- ity listings under an agreement between Carolina and the Union because the Charging Party, John E. Mendez, was first listed on said listings, and would cause trouble in the Union for Carolina as in the past, in violation of Section 8(a)(1) of the Act, and by refusing to recall Mendez from layoff to employment with Respondent because of his membership in 195 NLRB No. 124 661 and activities in said Union, and other concerted activities, in violation of Section 8(a)(3) of the Act.' At the close of the trial all parties waived oral argument, but were given an opportunity to file written briefs with the Trial Examiner on or before September 30, 1971. Such briefs were filed by General Counsel and Respondent on October 12, 1971, after an extension' of time for filing was granted by the Chief Trial Examiner. Decision on a motion of Respond- ent at the close of the" trial to dismiss the complaint on the merits was reserved; that motion is now disposed of by the findings of fact and conclusions of law in this Decision, which was signed and released by me November 8, 1971, for distri- bution to the parties in the usual course. Upon consideration of the entire record in the case, includ- ing my observation of witnesses on the stand and analysis of written briefs, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYER AND STATUS OF THE UNION Respondent is a Delaware corporation engaged in the manufacture and sale, at wholesale, of steel and steel products, in course of whichit engages in coal mining opera- tions near Logan and' Stirrat, West Virginia, said facilities comprising its Omar Division, with offices at Omar, West Virginia. These facilities are operated by Respondent through the management consultation of Island Creek Coal Com- pany, a West Virginia corporation with its principal offices in Cleveland, Ohio (herein called Island Creek).In the 12 months before issuance of the complaint herein, Respondent has had a direct outflow of coal valued in excess of $50,000. Respondent admits and I find that it is and has been an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act.' At all times material herein, UMWA, District 17, and its Locals 5921 and 5922 have each been a labor organization within the meaning of Section 2(5) of the Act. ' The issues arise on a complaint, issued May 28, 1971, by the Board's Regional Director for Region 9, as amended at the trial, after Board investi- gation of charges filed by Mendez on March 17 and April 21, 1971, and answer of Respondent which admits jurisdiction but denies the commission of any unfair labor practices, and claims that all conduct alleged in the complaint is no more than a possible breach of its contract with UMWA and should be adjudicated under the grievance-arbitration procedure thereof 3 Respondent argued at- the teal that the no 15 mine where Mendez worked is not in interstate commerce because the proof shows that all coal mined there goes through a preparation plant at that location and thence by common carrier to Follansbee, West Virginia, where Respondent processes it into coke for use in making steel. Respondent produces no proof that the coke is used only in West Virginia for that purpose, but the record shows that Respondent makes steel at mills in Wheeling, West Virginia, and Pitts- burgh, Pennsylvania, hence it is a fair inference that the West Virginia, coke is used in those operations, which would make the West Virginia mines involved here part of Respondent's overall manufacturing operations Aside from these facts, Respondent admitted in a fact sheet submitted to the Board during pretrial investigation, and also in its answer, that it is engaged in commerce within the meaning of the Act Hence, the claim at 'the trial is without merit Even if Respondent had fully proved that the West Virginia products were made and used only in that State, the Board has long held that it would assert jurisdiction over an employer on the totality outs operations, not on the basis of a particular operation. The T 'H Rogers Lumber Company, Inc., 117 NLRB 1732, 1735. 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II THE ALLEGED UNFAIR LABOR PRACTICES The Alleged Discrimination Against Mendez 1. Mendez' union and other activities Mendez has been employed by Respondent and its prede- cessor companies (West Virginia Coal and Coke Company and Omar Mining Company), since 1942, with senority dat- ing from March or July 1946. His last regular employment, was as at Respondent's preparation plant at its no. 5 mine at Stirrat; West Virginia. He was laid off in an economic reduc- tion in force of three workers at that plant on September 25, 1970. Since his first employment with a predecessor of Respond- ent in 1942, Mendez has been a member of UMWA, particu- larly of Local 5921 since March 1946., In that period he has held most of the elective offices in Local 5921; for 18 years before his layoff he was chairman of the Local 5921 grievance committee, and from 1958 to date of trial has been its record- ing secretary. While on the grievance committee he has con- tinually represented Local 5921 and its members at the sec- ond step of the grievance procedure set up under an overall contract of 1968 between Respondent and UMWA (herein called wage agreement), dealing directly with foremen of grieved employees and mine superintendents. From 1948 to 1953 Mendez was also a member of the Local 5921 safety committee, which had the duty of inspecting mines and other facilities, and making recommendations to management for correction of unsafe conditions; if such recommendations were not-followed, Local 5921 at times processed grievances thereon directly with Respondent. In course of these activi- ties prior to layoff, thus Mendez dealt regularly, with Gale B. Stepp, general manager of Respondent for its Omar proper- ties (consisting of mines 15, 18, and 19, a preparation plant at no. 15 mine, and the AC shop at no. 15 mine), also General" Superintendent Clifton Herndon, who supervises all these operations from the general offices at Omar, and at times with the superintendent of a specific mine or operation; he has often discussed grievances with all three of these ' officials present usually in meetings at the second or higher steps of the contract grievance procedure.' Mendez has also been prominent since 1969 in a movement of several miners' and workers' organizations lobbying for legislation in West Virginia which would provide better com- pensation for miners afflicted with the Black Lung disease contracted from breathing coal dust and other impurities in the West Virginia mines. This law was changed on July 1, 1970, to enlarge the West Virginia workers' compensation law in this respect, with the effect of requiring coal mine operators and their insurance carriers to compensate miners contracting this disease in course of their employment. In early 1971 Mendez also lobbied actively before the West Virginia legislature for the abolition of strip mining in that State. In 1969 he lobbied actively for Local 5921 in Washing- ton, D.C., for passage of the Federal Mine Coal Health & Safety Act of 1969, and in May 1970 was the sole employee plaintiff in suits filed by three congressmen to enforce said ' The five steps of discussion under the wage agreement grievance proce- dure are 1. Between the aggrieved party and immediate mine management. 2. Between the Mine Committee and mine management (including mine superintendent and higher managers) 3 Between UMWA District representatives and higher company managers. 4. Presentation by both union and management agents before a Joint Board of two mine operators ' agents and two union agents 5 Argument before an umpire chosen by the affected mine operators and UMWA statute by compelling -mine operators to compensate em- ployees of mines shut down by Federal mine inspectors for violations of that statute. In course of these activities Mendez also worked openly in 1969 with dissidents within UMWA in seeking the election of one Joseph Yablonski as president of UMWA, as against the incumbent president, and also in seeking further amendments to the West,Virgihia workmen's compensation law which went beyond changes sought by UMWA. The lobbying activities of Mendez and his political activities in UMWA received national publicity in a maga- zine of national distribution, certain Washington, D.C., newspapers, and on television. I find from these facts that in the years prior to his layoff and during'the events following it, Mendez was a known and aggressive militant, working both within UMWA ranks and in well-publicized reform movements to better the working conditions of miners through state and Federal legislation, and also to limit local mining operations in this connection, and that Respondent was well aware' of his- part in these activities. It is also a fair inference that Respondent may have developed some resentment toward him for these activities, insofar as they sought to make coal mine operators improve their safety measures at cost to them, and to curtail strip mining operations., In the year or so prior to the, events following his layoff, Mendez displayed his militancy aggressively in at least two negotiations with Respondent, as a Local 5921 official. At a second step grievance meeting in January or February 1970, attended by General Superintendent Herndon and represent- atives of District 17, Local 5921 was seeking backpay for miners on night shift at no. 15 mine who had struck because of lack of adequate telephone communications for safety pur- poses between men in the mine and the outside. The grievance had been filed after Respondent had installed proper com- munications during a short strike, and the miners had re- turned to work. In the long backpay discussion, the talk turned at some point to the communications system then in use and its adequacy, although that was not the basis. of the grievance: Mendez talked extensively during the discussion, and on this subject charged that Respondent was more con- cerned with production.of coal than the safety of the miners. Herndon stood up and angrily told Mendez he "did not want you ever to say that again," that he was as much concerned with the miners and their health and safety as Mendez was, and requested Mendez to confine his remarks to the issue before them. The grievance was settled at'the second step, and as part of the settlement Respondent agreed further to im- prove the communications system somewhat.4 After Mendez' September 1970 layoff (the legality of which is not challenged by General Counsel or, the Union), Local 5921 filed a grievance for'him'under the contract, 'claiming he should have been retained as the oldest'qualified employee at the preparation plant. At a second step, meeting on October 8, 1970, attended by Plant Superintendent George Dotson and Herndon, Mendez argued at one point that Respondent had never complied with an unspecified "agreement" made with Local 5921 at the time of Mendez', separation in 1964. Dotson claimed that Mendez had never been,discharged, but Mendez strenuously argued that he was. This got Dotson mad, and he said "you cannot' call the old man (meaning Mendez', foreman Nathan Taylor) a liar," at the same time motioning toward Mendez with an ash tray., Mendez denied that he was calling Taylor a liar. There was no further discus- sion on this. In course of the discussion, Dotson at one point ' The 'events of this meeting are found from 'a composite of credible testimony of Mendez, Herndon, and Clarence McCoy, Jr, president of Local 5921. WHEELING-PITTSBURGH STEEL CORP. asked the grievance committee if they felt Mendez was "being deliberately maneuvered into the cutoff." One committeeman replied that he thought he was deliberately included in order to get rid of Mendez. Dotson commented "Well, it is legal if we can get by with it.", At a third step discussion of his grievance several weeks later, with Rastie Runyon, a District 17 representative, and Stepp and Herndon present, a Local 5921 mine committee- man or another union agent brought up the subject of fore- men working. Stepp informed both Runyon and the commit- teemen that he did not want his supervisors working, as they had plenty of work to do as supervisors. Mendez then volun- teered in an offensive manner "you don't have to worry about Cliff Herndon working," that Herndon had been a "slate picker" with Mendez, and he "would not work even then," that he was a "sorry worker," "no good" and "lazy." Hern- don, who had been up to that point only a silent observer in the meeting because he had handled the grievance at the second step for Respondent, jumped up angrily, pointed his finger at Mendez and walked toward him, saying they had talked about this before, and "Don't you ever say that again before the men." Stepp and Runyon then intervened to calm both men down. The grievance was not settled at this meeting but proceeded to the fourth step before the Joint Board which ruled,against Mendez' claim. Neither he nor Local 5921 took his case to the fifth step before an umpire, but Mendez re- mained continually disgrunted at the Board decision.' Mendez' conduct at the grievance sessions found above was not unique, for uncontradicted testimony of Runyon shows that, when Mendez was at times called on to explain at third step grievance meetings what he had done at earlier steps on behalf of Local $921 or the individual grievant, he often made long-winded and aggressive presentations, appearing to "take over" the presentation to an extent that caused the employer representatives on occasion to ask Runyon to handle the argument as the proper spokesman, and to "call Mendez down." While it is clear from these facts that Mendez had a notice- able and irritating tendency to dominate discussions with Respondent and at times injected personal and irrelevant personal charges against particular company officials which caused them naturally to resent his remarks and reject them angrily,' it must also be noted that this occurred in a com- paratively few instances out of about 40 or more grievances handled by Mendez and the Local 5921 grievance committee in the 2 years before his layoff and the events of 1971 found hereafter, and in no case did his conduct cause a disruption of the grievance process, although about 25 of the 40` cases involved work stoppages.' Runyon also testified credibly that angry words and flareup of tempers was not uncommon in grievance meetings. Hence, I must conclude that, as Mendez' 5 The facts as to this meeting are found from uncontradicted testimony of Mendez. I The facts on the Mendez grievance are found from credible and mutu- ally corroborative testimony of Mendez, Runyon, Herndon, and Stepp. Testimony of any of these witnesses at variance therewith is not credited Mendez' remarks about his 1964 separation clearly had nothing to do with the circumstances of his 1970 layoff, so his reference to the conduct of his foreman in 1964 did nothing to solve the 1970 issue, but only served to irritate company officials present. His personal disparagement of Herndon was clearly out of line, because there is no clear proof that work by foremen had anything to do with the legality of his layoff. In addition, he must have known that Herndon had come up "from the ranks" over the years from work as a rank-and-file miner to his present supervisory position, and was just as aware as Mendez of the need for mine safety. s Herndon admitted that while Respondent was dealing with Mendez on Local 5921 grievances most of the grievances came from Local 5922, with whose agents Herndon had no apparent friction. 663 conduct occurred in course of performance of his duties as a union official in processing grievances, his irritating and in- temperate remarks still came within the broad scope of union and concerted activity protected by the Act.' However, it is also a fair inference that the officials of Respondent present at these discussions, particularly those who were the target of Mendez' intemperate remarks, probably developed a resent- ment of him, both as an individual and union official. All of these facts, including George Dotson's comment in the Octo- ber 1970, grievance meeting on Mendez' layoff, when consid- ered in light of his known militancy in outside activities for the betterment of miners' health and working conditions present a prima facie case indicating Respondent might well have been waiting for a chance to get rid of him `because of these activities but under the guise of a seeming economic or business motive." This requires a careful analysis of the facts and circumstances of: 2. Mendez' failure to secure recall after layoff Upon Mendez' layoff on September 25, 1970, with two other preparation plant employees, John Hilbert and Lacey Proffitt, the three were automatically marked as laid-off or inactive employees on the seniority "panel" or roster for the preparation plant and no. 15 mine, with preference for recall as and when jobs for which they were qualified opened up at either facility." 1 According to company practice then in effect, they could also "panel up" for employment in other mines of Respondent within the overall jurisdiction of District 17 (which covered the jurisdiction of both Local,5921 and Local 5922) by signing a request to Respondent at the main office of Respondent at Omar, or at the mine at which they desired ' Crown Central Petroleum Corporation, 177 NLRB No. 29; Huttig Sash & Door Company, Inc., 154 NLRB 1567, Bettcher Mfg. Corp., 76 NLRB 526. 1° Respondent argues that Mendez' legislative lobbying efforts and politi- cal activity within UMWA were not concerted activity of the type protected by the Act, and should not be considered in determining employer motive in this case, because the legislative efforts were individual, not concerted, actions, and his activity within UMWA does not fall within the rights protected by Section 7 I find no merit in this argument. The record shows that Mendez lobbied with other union miners in various organizations, and in part acted for Local 5921 in these efforts, hence his conduct was part of concerted activity In Bethlehem Shipbuilding Corp v. N.L.R.B., 114 F 2d 930, 937 (cited by Respondent) the United States Circuit Court of Appeals for the First Circuit held that the right of employees under Section 7 of the Act to engage in concerted activities is not limited to direct collective bargaining with the employer, but includes other activities for "mutual aid or protection," including appearance of employee representatives before legislative committees Following this principle, the Board has recently held that the protection of Section 7 is not confined to activities immediately related to the employment relationship or working conditions, but extends to indirectly related activity, such as complaints about the way employee credit unions are managed (G & W Electric Specialty Company, 154 NLRB 1136) and presentation of grievances about working conditions to the atten- tion of public authorities (Montgomery Ward & Co., Inc., 156 NLRB 7) I conclude that Mendez' concerted activity with other UMWA members for a change of administration within that Union is also a protected activity, for its objective, in part, was undoubtedly to secure a union management which he felt might better represent union members in securing better working conditions in the mines. 11 According to witnesses of both sides, each facility has a continuing seniority roster "panel" which is maintained up to date jointly by company management and the recording secretary of the local union having jurisdic- tion over that facility. When workers are laid off or become inactive for reasons beyond their control, that status is marked opposite their names on the basic roster, but Respondent also makes up a separate "panel" of those laid off, which is kept both at Omar and the particular facility, with copies sent to the proper local union Among the workers, a mine is not considered as having a "panel" until workers are laid off, and both Respondent and the Union operate from this narrower list for purposes of selections for recall. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment. While a laid-off or inactive employee was on any such "panel," Respondent is required by the wage agree- ment to recall him to any job later posted on the basis of his seniority and qualifications; seniority is determined by his position on the basic roster noted above, but Respondent has the sole right to determine if any inactive worker is qualified for the posted job. After their layoff, none of the three above men attempted to get on panels for other locations by applications at Omar or elsewhere. Hilbert and Mendez unsuccessfully processed grievances about their layoffs.12 Mendez also testified that he did not panel up companywide at Omar after layoff because he had ,a pending grievance under which he sought assign- ment to a "filter job" on which he had had prior experience, and expected to win it. However, there is no proof as to how or when that grievance was concluded. Sometime in September or October 1970, officials of Local 5922 and Local 5921 became dissatisfied with the procedure for companywide paneling up and had a discussion about it on October 8, 1970, at Omar with Stepp and other company officials. While the Locals argued that paneling both at Omar and every mine where work was desired was confusing, and Respondent agreed, they could not agree on how to clarify it, so Stepp took the initiative by announcing that in future laid-off or inactive employees must panel up at the work location where jobs are open and they desire employment, by contacting the superintendent at that work location and sign- ing a request for consideration. The effect of such application was to make the applicant eligible for any job vacancy at that location on the basis of seniority and qualification, subject only to the prior right of laid-off or inactive workers origi- nally at that location to such jobs if qualified. The wage agreement provided for the paneling procedure, but did not specify how or where it was to be done, so that Stepp's announcement did not specifically violate the wage agree- ment; neither Local Union filed a grievance about the new procedure, but apparently acquiesced in it and Stepp's re- quest that the officials and mine committees of both Locals advise their members about it. However, for reasons not clear in the record, the new procedure was not made clear to all union members, so some followed the old procedure by trying to panel up companywide at Omar, but without success, as company officials repeatedly told them to panel up at the locations where they desired reemployment. Mendez testified that: On January' 20, 1971, he learned from another employee that a truckdriver job had been posted at the AC shop at Omar, which is a separate electrical shop designed to service the mines and other facilities. Its employees were represented by Local 5922. Although he had heard Stepp's announcement on October 8, 1970, Mendez went to the main office at Omar, and told Office Manager Fonzo W. Dotson he wanted to panel up for outside jobs at all other facilities. Dotson replied that he would have to see the superintendent of each mine or plant and sign a panel slip at each, showing him a copy of the slip which he said was available at each operation. Mendez questioned this, arguing that under company practice workers, were allowed to panel up at Omar, for vacancies anywhere, and that as recording 12 Hilbert's grievance claimed he was laid off because Respondent was trying by that pretext to get rid of Mendez UMWA Representative Runyon persuaded him to drop that claim, but press one against five mechanics who were doing his work at the preparation plant. He lost his case at the second step, after admitting he could not cut or weld pipe, which the five mechanics were apparently doing The course of Mendez' grievance through the fourth step has been found above.Although he testified that he has since been dissatisfied with the final decision, there is no proof that at its conclusion he tried to panel up at other mines until January 1971, as noted hereafter secretary of Local 5921 he did not know of any change in the policy. Dotson insisted he had to panel up at the location where a-job was open, so Mendez drove to the AC shop, where a worker (Frank Evans) told him he had to bid on it at the shop office. In the office he could not find the chief electrician, so asked another worker'(Richard Evans) for a panel slip, so that he could get on the panel. He was told by that worker that the AC shop had no panel. Mendez then asked if the truck job was posted at no. 19 mine, and the worker said it was not. Mendez then went to no. 19 mine and asked another worker (Charles Evans), about bidding on a job. Charles Evans expressed his private opinion about com- pany treatment of Mendez, with which the latter agreed. While they were talking the mine superintendent, one Pars- ley, came in to talk to Evans about a problem, and then went out to handle it. After he left Mendez' learned from Evans that Parsley had been the man talking to Evans. At the re- quest of Mendez, Evans then showed him the location where jobs were usually posted, but when they examined it they found no truck job posted. As Parsley had left the no. 19 mine office, Mendez returned to Omar, told Dotson that the superintendent at no. 19 mine was not available, so he had returned to panel up at Omar for the truck job. Dotson again told him to go to the location, find out who was in charge, and panel up there. Mendez said he would, but asked Dotson to acknowledge that Mendez had applied at Omar. Dotson said he would, but he saw nothing wrong in his paneling up for the job at the AC shop. Mendez then returned to the AC shop and signed his name on the posted notice announcing the truck job vacancy. The next day John Sizemore, then employed by Island Creek, but still on the no. 15 mine panel due to his 1968 layoff from Omar, applied for, the job by signing his name under Mendez. The usual period for posting a notice of job vacancy was 5 days, but Mendez waited about 9 days, and, when he did not receive any notice from Respondent indicating whether he got the job,", he called the AC shop and was told by Superintendent John Starr that the job had not been filled, as the notice had been taken down. Mendez charged that he did this because Mendez bid on it. Starr denied it. Mendez argued that the job must have been authorized when it was posted. Starr admitted it had been posted, but said Island Creek had told him to take it down. Mendez later heard it had been taken down Friday, January 22, 1971. On February 3, Mendez learned from another worker that the truck job had been reposted, but he did not return to the AC shop to sign up again, relying on his signature on the original notice.' However, on February 5, he requested one Carl Grubb, another man on the no. 15 panel, to check whether the job was in fact reposted, and find out from man- agement where he should panel up for it. The next day Grubb told him by telephone that he himself had not signed up for the job, as Starr told him the notice had been taken down, and that Grubb must panel up at the Omar office. Since his layoff, Mendez has received only one notice from Respondent of a job opening for a trackman (a job inside the mine) at no. 15 mine, but he did not apply for it, as he was not qualified. General Counsel relies on two other incidents following the AC shop job incident, to show Respondent's animus and desire to rid itself of Mendez. " When a job opens up and is posted, Respondent is required to notify all inactive workers on the panel of that mine so that they can signify their desire for it, in order of seniority Inactive workers who are not on the panel, either through layoff at that mine or by reason of paneling up there from another location, are not so notified WHEELING-PITTSBURGH STEEL CORP. (a) John Hilbert, who was laid of with Mendez and had less seniority than Mendez, testified without contradiction that.- In April 1971, he talked to Stepp at Omar about getting a job as mechanic since his former job was not vacant. He volunteered to Stepp that: "John Mendez won't kick me" (meaning bumping him by seniority). Stepp replied "I can't be sure of that." Hilbert insisted Mendez would not "kick me off," and would bet on it. Stepp commented that Mendez had never been laid off before, but Hilbert claimed he had been while working for Omar, but had not "kicked me off." Stepp said he would talk to Hilbert's supervisor, George Dotson, about it. A few days later Hilbert talked to Dotson, who told him that he had talked to Stepp, and if Stepp told him to hire Hilbert, he would like him on the tipple, as Hilbert was a good worker. Hilbert never got the job." I cannot find substantial evidence of a discriminatory desire to get rid of Mendez in the Hilbert incident because: (1) Hilbert, not Stepp, brought up Mendez' name by trying to assure Stepp that Mendez would not use his seniority to bump Hilbert if he got the job, which indicates that from the outset only Hilbert was concerned about Mendez' possible action; Stepp did not suggest it to him. Stepp's reply indicates no more than that he was not sure what Mendez would do about asserting his seniority rights, because he had had no experience with Mendez in any prior cutoff. This denotes only lack of knowledge, not any fear, or certainty, about Mendez' probable action. (2) The later statement of Hilbert's super- visor that he would like to employ Hilbert on the tipple if Stepp gave approval, and failure of Hilbert to get that job, raises no more than a suspicion that he did not get it because of fear of Respondent that Mendez might bump him: There is no clear proof that Dotson in fact had an opening on the tipple. Neither Hilbert nor Local 5921 approached Stepp to find out if he had created a job there, and Stepp's failure to mention it in testimony can be attributed as easily to the fact that he had no recommendation or approval from Island Creek to enlarge the tipple workforce, as to an inference that he had the opening but did not want to give Mendez a chance to get it. Hence, it is no more than speculation to say that Hilbert did not get it, if it actually existed, because of com- pany animus toward Mendez. (b) I find the facts as to the second incident from, mutually corroborative testimony of Runyon, Tipton, Belcher, and Stepp showing that: Early in 1971, UMWA District 17 agent Runyon learned from members of Local 5922 that a strip mining operation was being conducted on property of Re- spondent. He contacted Stepp who admitted Carolina was running a strip mining operation on land leased from Re- spondent, and Respondent planned to process the coal from it at its no.15 mine tipple. Runyon asked Stepp to arrange a meeting with Carolina officials to work out a contract for recognition of Local 5921 as bargaining agent of the strip mining workers. Sometime before February 22, 1971, Run- yon and a mine committeeman from Local 5921, Blanken- ship, had a conference with Flint McCamus, an official of Carolina, in Respondent's Omar office, at which McCamus agreed to sign a recognition contract, which Runyon was to prepare and bring back on February 22 to McCamus for signature by the proper Carolina officers. In this discussion Blankenship asked if Carolina would recognize the inactive panel of no. 15 mine, and Runyon asked if Carolina would recognize panels for all of Respondent's operations, since he wanted to protect all panels of Local 5921 and Local 5922 members. McCamus said he would consider and hire men from the no. 15 panel if he needed workers in addition to his present work force, and he mentioned a need for truckdrivers " I find this incident from uncontradicted testimony of Hilbert. 665 and bulldozer operators. The formal recognition contract was signed on February 22, at which time McCamus again agreed to recognize and hire qualified workers from the no. 15 panel. Runyon then received advice from District 17 to put the Carolina workers under the jurisdiction of Local 5922, so he had mine committeemen Tipton and Belcher of that Local prepare the panel recognition agreement, and told them to take it to McCamus. On or about March 5, 1971, both offi- cials went to the strip operation at no. 19 mine to see McCa- mus. As they drove up a hill toward the operation, they met Stepp coming down. They asked him if McCamus was on the job, and Stepp said he was not. They told Stepp they wanted to see him to get the panel agreement signed. Stepp replied that he already talked to McCamus and advised him not to sign it, as he had no "business to make the agreement in the first place." Belcher commented that it would not hurt Carolina to sign it, as the men on the no. 15 panel had to be qualified before they could claim a job on the strip mining operation. Tipton suggested it should be signed because "it might cause trouble."15 Stepp replied that he did not care how much trouble it caused, "I don't care if you strike from now on." He then commented that the no. 15 panel had both "good" and "bad" men, adding that one Finch from no. 15 was already working as a mechanic at no. 19 mine. He also noted that Mendez was on the panel and was an "expert" or "first-class" truckdriver. Belcher testified that Stepp further added "We sure don't want him over here because he runs that local over at 15, and [you] get him over here and he will be running your local." Tipton does not support Belcher on this statement, and Stepp denied categorically that he said it. However, I credit Belcher's testimony about this remark be- cause I am sure that Stepp was well aware of Mendez' tend- ency to "run" union affairs in Local 5921, at least in the grievance meetings as found above, so that I consider it more likely than not that Stepp threw out the remark as a warning to the Local 5922 officials that if Mendez, who was at the top of the no. 15 panel, was chosen for a fob at no. 19, he would probably try to dominate the activities of Local 5922 for its members there, just as he did at no.15. Stepp testified that his reason for advising McCamus not to recognize the no. 15 panel was his knowledge, gained from Runyon of District 17, of an umpire's decision issued Decem- ber 16, 1970, in the final step of wage agreement grievance procedure, which had ruled illegal a written agreement be- tween Local 5921 (signed by Mendez for Local 5921) and Superior Island Creek Coal Company, whereby Superior agreed to recognize an existing panel of no. 15 mine, which had previously been operated by Omar under lease from a trust company, after Omar surrendered its lease. The recogni- tion agreement settled a jurisdiction dispute and' strike in which Local 5921 had claimed its members working in another mine of Omar could "bump" workers of the Superior operation, because Local 5921 claimed both mines were in one panel for seniority purposes. The umpire held the recog- nition agreement illegal because Superior had no connection with Omar and ran a separate operation in all respects at the no. 15 mine after Omar gave it up, and had a right to create and operate from its own seniority panel. As Respondent (formerly Omar) was a party to this decision, Stepp indicates he felt and told McCamus that this decision applied to the attempt of Local 5922 to persuade Carolina to recognize panels of workers from both Local 5922 and Local 5921, as he knew that Carolina was a separate company from Re- spondent and had^ a separate wage agreement with UMWA and its own seniority panel. While it can be argued, as Gen- " At this time and for several years past, neither mines nos 18 or 19 or the AC shop had any panels of idle or inactive members 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eral Counsel points out, that the umpire's decision can be distinguished from the Carolina situation and does not con- trol, in that Carolina is leasing a mine property from Re- spondent, rather than an outside source, so that Respondent might have some sort of obligation to its own employees at the leased site to make sure they continued to secure work there under its lessee, it is not necessary to decide this ques- tion, or whether Stepp was legally tight or wrong in relying on the umpire's decision, because the salient fact is that he did not -mention or in words rely on this decision, when telling the Local 5922 committeemen of his advice to McCamus. If he had done so, and also reminded them he had learned of the decision from their own UMWA District agent, his re- marks to them would have an arguable legal and factual basis which would have deprived them of coercive implications. However, his failure to mention the decision leaves his re- marks about Mendez and the possible consequences to Local 5922 of his transfer to no. 19 mine, as the only explanation apparent to them for his recommendation to McCamus against recognition of the no. 15 panel. Hence, all his remarks in the short discussion were well calculated to indicate to the Local 5922 officials that Respondent acted to forestall the recognition because it did not want Mendez, a irritant within Local 5921 and'in his dealings with Respondent, available to cause similar trouble to Local 5922 and Respondent at no. 19 mine. As this irritation arose from his protected concerted activity, as found above, Stepp's remarks about Mendez were coercive in that they indicated Respondent was trying to prevent its lessee from according rights to union members on the no. 15 panel because of the concerted and union activities of one of the men on it, which tended to coerce, restrain, and interfere with members of Local 5922 and UMWA in exercise of their protected rights to have the Union and its officials respresent them and to engage in other concerted activity for mutual aid or protection, in violation of Section 8(a)(1) of the Act. While Stepp testifies that he relied on the umpire's decision in making his recommendation to Carolina, a wholly subjec- tive action, there is no testimony from him or McCamus or other Carolina official as to their exact conversation, to indi- cate to what extent the decision was mentioned, or whether Carolina independently relied on it or other nonunion consid- erations in failing to sign the recognition,contract . Hence, I find that Carolina acted on' Stepp's recommendation, but Stepp's own silence prevents me from finding that the reason was the umpire's decision, hence I am led to believe that Stepp's remarks to the committeemen contain the true mo- tive. I therefore find that Respondent caused Carolina to refuse to honor its oral arrangement with Local 5922 to recognize the no. 15 mine panel, because of Mendez' top position on' it and his concerted and union activities found above, and such conduct tended to discourage protected ac- tivities by Mendez and other employees and to interfere with their rights protected by Section 7 of the Act, in violation of Section 8(a)(1) of the Act. The main, facets of Respondent's defense are: (1) Mendez' activities both within .and outside the UMWA were not con- certed activities which are protected by the Act; (2) Respond- ent has not! discriminated against him in any way before or after his September 1970 layoff which was legitimate; and (3) his failure to secure recall in January and February 1971 was due only to Puctuations in Respondent's economic needs, and his lack of qualifications for such jobs as opened up after his layoff. The first point has been settled against Respondent by my finding that all his activities found herein fall within the scope of protected activities as defined by the Act and construed in court and Board decisions. , On the second point I note that after Mendez lost his layoff grievance before the Joint Board, he made the'same conten- tions about it in the charges he filed in this case, alleging that both the layoff and later failure of recall violated the Act. The Regional Director apparently found no merit in the charge about the layoff, which was not included in the complaint. In light of these facts, the reliance of General Counsel on two arguments between Mendez and company officials in the prosecution of his layoff grievance (neither of which are men- tioned in his charges), in order to show company animus tending toward retaliation, indicates how far General Coun- sel is forced to reach into past history as contrasted with more vital current events, to support the claim of discrimination. This tends to weaken rather than support that claim. Consist- ent with this circumstance, Mendez' propensity for reviving in recent discussions withRespondent remote events involv- ing his past treatment in the mines is a strong indication that he has long harbored a strong resentment, if not actual ha- tred, of Respondent, which surfaced in the incidents found above in such manner as to irritate company officials and make it difficult for them to engage in amiable dealings and discussion of grievances with Local 5921 and UMWA offi- cials. This raises the inference that Respondent' s animus to- ward Mendez may have been due, not to his aggressive union activities, but his abrasive and at times disruptive attitude and conduct in performance of his union duties. As Mendez' past conduct indicates he has long been a thorn in Respondent's side which it has had to endure in dealings with UMWA-and its locals over the years, the fact that he was separated from employment with Respondent as late as 5971 makes it very questionable whether the events ' of 1969 and 1970 found above were so unusual as to goad Respondent at that,late date into active retaliation for his concerted activities.' In addition, the bona fides of Mendez' single attempt to secure the truck job is rendered suspect by several circum- stances: (a) Although his original layoff was vigorously con- tested for him by Local 5921 within the contract griev- ance machinery, Mendez admits he did not resort to that normal procedure on his failure of recall because he felt the Joint Board would not "do me justice," relying on his experience in the layoff grievance.'This seems more indicative of the attitude of a disgruntled worker who felt that his own union, as well as Respondent, were working against him in some way," than of a worker who felt he had a legitimate' grievance on his failure to get the truck job." (b) I have found that for nearly a year prior to his application for the truck job, Respondent had in effect a new requirement that laid-off or inactive workers must panel up at the location where they sought recall to jobs if and when available and for which qualified, by signing a written request to the plant official in charge. Neither Local 5921, Local 5922, or UMWA contested that procedure through the grievance procedure or other- wise, and most employees followed it. Although Mendez is Neither UMWA District 17 or 5921 filed charges or entered an, appear- ance in this case " The failure of Mendez to exhaust his remedies within the grievance procedure of the contract cannot bar this proceeding before the Board Sec 10(a) of the Act specifically provides that the power of the Board to,prevent unfair labor practices shall not be affected by any other means of adjustment that has been established by agreement, law, or otherwise, and on that authority the Board has consistently held that failure of a worker to exhaust a grievance procedure available to him under a contract is no defense to an unfair labor practice proceeding Aerodex, Inc., 149 NLRB 193, 199; Su- periorRoofing Company, 158 NLRB 657, 661; International Association of Bridge, etc., Workers (Bethlehem Steel Corporation), 183 NLRB No. 35. WHEELING-PITTSBURGH STEEL CORP. 667 as an active union official was well aware of this require- ment, his only excuse for not promptly paneling up after layoff at the AC shop or any other location than no. 15 mine (where he was automatically on the inactive panel) was that he was awaiting the outcome of a grievance he had filed on a filter job. This seems a weak excuse be- cause there was nothing in company practice or the wage agreement to prevent his paneling up for other types of work elsewhere, even while employed at no. 15 mine or awaiting the outcome of the grievance on the filter job. Common sense and a natural desire to keep all his work options open would have dictated such a move, just as Sizemore did when laid off at no. 15 mine in 1966, and as Hilbert later applied for the same truck job while employed by Island Creek, and Grubb did the same after being out of work only 2 days with another employer. Aside from this laxity in seeking consideration for other jobs promptly, it also appears from Grubb's testimony that his visit of February6 to the AC shop was more for the purpose of securing evidence for Mendez as to what Respondent was doing about it, than to apply for the job himself: he admits Mendez told him to bid on it "to see what they would tell me," but when Starr told-him the job had been taken down after 5 days' posting, he did not follow the latter's suggestion that he panel up at Omar because he interpreted those remarks to mean he could not panel up even there for it "because I was not on the AC panel," although he says in the next breath that Starr told him to panel up at Omar solely because he was not on that panel. Aside from this inconsistency in his tes- timony, his story that Starr gave him only the option of paneling at Omar is plainly, incredible, in light of the abundant proof that the present practice required panel- ing at the AC shop. Hence, I credit this testimony on this interview, and Mendez' testimony of his report thereon, only to the extent that it proves he went to the job to get information for Mendez about the job, and learned the posting had been taken down, after 5 days. He never mentioned Mendez or his status in the talks with Starr, hence it is clear that his visit was not an attempt by or for Mendez to sign up again after the first withdrawal of the posting. (c) Testimony of Stepp, corroborated in part by that of Tipton and Belcher, also raises grave question whether Mendez' single act of signing the truck job no- tice was sufficient to make him eligible for that job, in absence of a prior request for placement on the AC shop panel. Stepp's testimony indicates both ' actions were necessary to make Mendez eligible for consideration. Tipton and Belcher testified that a cuttoff panel does not exist at any mine unless and until a man is cutoff there, but no such panel exists at other mines (where there are no cutoffs), unless and until the cutoff worker asks to be paneled at such other locations. This, in effect, indicates a man cutoff at one mine can be added to the' seniority roster for another by asking to be considered for work there, even if it has no inactive workers at the time; of course, the applicant would go at the bottom of that seniority list, for purposes of consideration for any open- ing there. (d) There is no substantial proof that Mendez was qualified and would have been chosen for the truck job, even if he had complied with all paneling requirements and it had remained posted and Respondent had filled it. Mendez admitted that he had in,the past owned and driven a truck, and years ago had driven a truck at some plant on extra shift, and that he could get a state license to drive a truck, which would qualify him to drive a truck at the AC shop. I must infer from this that, at the time he applied for the AC truck job, he had not driven a truck for many years,- and had no present state license to drive one." In addition, while he testified he was qualified for about 90 percent of the jobs at the prepara- tion plant where he was laid off, he does not say one of those was that of truckdriver. He also admits he was not qualified as a full mechanic, only a mechanic's helper, nor was he qualified to work inside a mine, as he did not have the required state certificate to work underground. He also admits significantly that his last regular job before layoff was that of slate picker at the slate tables in the preparation plant, which is a low-paid job in the mines, according to Runyon; its lack of desirability is also inferable from Mendez' mention of Herndon as a one-time slate picker which caused that official to get angry.,I conclude from these admissions that Mendez' qualifications for mine work were far more limited than he claims, and that his qualifications did not include that of a truckdriver. The claim of discrimination is also weakened by Respond- ent's treatment of `Mendez after the AC truck job incident. Testimony of Mendez and Stepp shows that: Respondent sent him notice of a trackman's job and possibly a truck job at the no. 15 mine, but he never bid on either. When Stepp checked on his qualifications after failure to seek the trackman's job, he found Mendez could not handle it, as he lacked the neces- sary miner's underground certificate." There have also been recalls of men from the no. 15 panel for work as general laborers inside the mine, but Mendez was not qualified for these for the same reason, hence Respondent did not send him notice thereof. Recently, four mechanic's jobs were posted at the- preparation plant, where Mendez had worked, but he was not qualified for them, having registered himself with Respondent in the past as qualified only as a mechanic's helper.20 Aside from the AC truck job, it thus appears that Respondent properly notified and considered Mendez for other jobs at no. 15 mine, where he was on the panel, al- though he was not in fact qualified for any of them and probably would not have been chosen if he applied for them. Stepp testified credibly that, aside from the truck job, no other jobs have been posted at nos. 15, 18, and 19 mines for which he was qualified. Respondent's treatment of him thus conforms to the required practice of considering inactive workers who are properly on panels for jobs on the basis of qualifications as well as seniority. Respondent's action in posting and withdrawing the truck job twice within a period of about 2 weeks appears to be a rather indecisive set of management actions which, in light of Dotson's remarks to the Local 5921 mine committee in Octo- ber 1970, and Stepp's warnings to the Local 5922 committee- men in February 1971 about Mendez, would support an infer- ence that these quick actions, particularly the first withdrawal, may have been triggered by the realization that Mendez' qualifications and his position at the top of the job notice and also on the no. 15 panel might insure his choice for the job, which could only be avoided by sudden cancella- tion of the vacancy. Stepp's response is as follows: He 38 General Counsel does not adduce any proof which would indicate whether or not west Virginia requires a driver's license for truckdriving in a mine operation which is separate and distinct from the ordinary license for driving a motor vehicle. " A mine worker can secure a state certificate for work underground as miner, trackman, or general laborer, only after 6 months' experience in any of such jobs under the supervision of a certified miner 2° All mechanics at the preparation plant must be qualified cutters and welders, but there is no proof that Mendez ever had such experience in the past. 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD categorically denies that Mendez' failure to get the truck job was due in any way, to his union or other concerted activities. He admits that: The job was posted on January 19 or 20, 1971, on his orders. He took it down a day or two later after talking to officials of Island Creek, because itwas an addition to his work force in form and size which they had recom- mended under their consultant contract, and they advised against filling the job, hence he deferred to their advise.21 He had a later talk with them about it, and decided to post it again early in February, but then concluded on his own that he sould not fill it, as it was not economical. Thereafter, the truck involved in the job was used by a shop electrician, who handles truckdriving as well as his regular work. Although Stepp's story is not supported by any official of Island Creek, nor by company records showing fluctuations in volume of coal mined or processed, his story is not shaken on cross- examination nor by other proof adduced by General Counsel, hence I cannot conclude,that his actions and explanation of them were so unusual as to require me to reject the explana- tion as incredible. Stepp also testified that, when he posted the job, the AC shop had five inactive workers on its panel, whose seniority dated variously from June 1966 back to March 20, 1944. These men had been cut off from the no. 5 mine of Omar and went on its inactive panel, when it and the AC shop were shutdown before the sale of Omar properties to Respondent. After that event, Respondent also took over the AC shop and, at the urging of UMWA and Local 5922, agreed to recognize its inactive panel. One of the five, Luther Nelson, apparently signed up on the panel for no. 19 mine for the job he now holds there, but he is still on the old AC panel for any openings there. When the AC truck job was posted, Nelson signed up for it. Hence both-he and the other four on the old AC panel, if qualified, had 'precedence for any AC shop job over Mendez, despite his, long seniority in the Omar- Respondent operations. Belcher supports this explanation, in part, by his testimony that the Local 5922 mine committee, of which he was a member, had asked Respondent to recog- nize the entire AC panel at the time of the purchase from Omar, and Respondent finally agreed to recognize it as to most workers on it. He disagrees with Stepp only as to the five men in question, arguing the Local 5922 wanted them re- tained at the AC shop, but their status was never resolved. Mendez throws some light on their situation by his rebuttal testimony that: When the AC shop was not included in the original purchase from Omar, the AC shop employees, in- cluding-the five in question, were given the choice of remain- ing on Respondent's payroll or moving with Omar to its Boone County operations, and most of them took the latter choice. At, that time, Respondent was not under obligation to recognize, any on the old no. 5 mine or AC shop panels, hence these men had no status on any panels of Respondent's facili- ties after the purchase. When the AC shop was finally bought by Respondent, Local 5921 argued (through Mendez) that since its no. 15 mine then had an active panel, none of the men on the AC panel could be taken on at no. 15 on the basis of their past seniority, but would have to date their seniority from the time, Respondent might hire them at that shop. '1 Island Creek executed a management-consultant contract with Re- spondent effective about November 1, 1970, under terms of which Stepp and other officials of Respondent consult with Island Creek engineers, techni- cians, and personnel officials about engineering and technical problems, as well as personnel and labor problems. In this work, Island Creek prepares schedules of size and composition of work force and changes thereof from time to time, which Respondent generally follows Any change in size or composition of work force at any location is usually made only after consul- tation with, Island Creek, whose advice is usually accepted, although the final determination is made by Respondent 's officials. However, Mendez does not say that the argument of Local 5921 prevailed, or that agreement was ever reached on this point or the status of the five in question, so I accept the version of Stepp that Respondent finally recognized them as entitled to recall rights on the carryover AC panel, as re- quested by Local 5922. Thus, the priority status of Nelson and the other four on the old AC shop panel would have precluded choice of Mendez for the truck job, unless they had all waived their rights to it. It follows that since Stepp knew these facts when posting the job, he had little reason to believe that Mendez would get it if, he applied for it, hence the claimed incentive for withdrawing it after Mendez applied for it is missing. General Counsel offers no credible or persuasive proofs to counter this circumstance. After considering all pertinent facts and circumstances, in light of the arguments pro and con, I am constrained to conclude that the issue is a close one, but that the proofs adduced by Respondent in support of its alleged economic action regarding the AC truck job, in light of the weaknesses inherent in Mendez' attempts to get work and his rather limited qualifications, are adequate to rebut the slim prima facie case of discrimination pieced together by General Coun- sel's proof, hence on the entire record I conclude that General Counsel has not sustained his ultimate burden of proof that Respondent canceled and failed to fill the AC or other truck job to prevent Mendez from filling it on the basis of seniority and qualifications, because of his union and other concerted activity. I therefore grant Respondent's motion to dismiss the complaint in that respect." III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section II, above, occurring in connection with its operations set forth in sec- tion I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. IV THE REMEDY I have found that Respondent engaged in two unfair labor practices arising from remarks of Stepp, a top supervisor, in a single conversation. There is no proof of general or specific union animus in Respondent's long contractual relations with UMWA, District 17, Local 5921, or Local 5922. While Stepp's short remarks to two workers might thus be consid- ered an isolated instance which normally would not justify a remedial order '21 the circumstances that his remarks dealt only with Mendez, a longtime, active, and well-known union official, were made to two Local 5922 committeemen when they were taking steps to have Carolina finalize an arrange- ment for recognition and consideration of all Local 5921 and Local 5922 members on any of Respondent's seniority panels for employment with Carolina, and it actually prevented Carolina from carrying through its oral commitment, out- lines Respondent's conduct as far from trivial or isolated but rather as a serious coercive action well calculated to have widespread effect on members of both Local Unions as well as other UMWA members employed in Respondent's mining operations, all of whom undoubtedly learned of it in union " I have carefully considered other collateral arguments of General Counsel attacking the credibility of Stepp and other company proofs, as well as Resp'ondent's motive, but find them without merit for reasons and consid- erations stated above 23 Omm Spectra, Inc., 176 NLRB No 24; Central Electronics, Inc, 179 NLRB No 145. WHEELING-PITTSBURGH STEEL CORP. 669 meetings. Hence, I will recommend an order that Respondent cease and desist from such conduct and any other conduct affecting employees' rights guaranteed by Section 7 of the Act, and that it take affirmative action designed to effectuate the policies of the Act.24 CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and UMWA, District 17, and Locals 5921 and 5922 are labor organizations within the meaning of Section 2(5) of the Act. 2. By threatening to cause, and actually causing, Carolina to refrain from executing an agreement with Local 5922 pro- viding for recognition and consideration of its, employees on panels or seniority lists of any of the various West Virginia operations of Respondent, for employment by Carolina, be- cause John E. Mendez is first listed on any of said panels or because of the union and concerted activities of John E. Mendez, thereby interfering with, restraining, and coercing employees in their right of free choice of a bargaining agent and to engage in concerted activity for mutual aid or protec- tion, as guaranteed by Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) and 8(a)(1) of the Act. 3. Respondent has not committed any unfair labor practice in its withdrawal of notice of a truckdriver job at its AC shop after Mendez' bid for that job, as alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:25 ORDER Wheeling-Pittsburgh Steel Corporation, of Omar, West Virginia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from threatening its employees that it will cause, or from actually causing, Carolina Coal Company or any other concern mining coal on property of Respondent through lease or otherwise, to refrain from executing any agreement with Local 5922 to recognize and consider for employment employees on panels or seniority lists of any of Respondent's mines or other facilities in West Virginia be- cause John E. Mendez is first listed on any of said panels or lists or is engaged in activities on behalf of United Mine Workers of America, or its Local 5921, or in any other con- certed activities of employees for their mutual aid or protec- tion, and from in any other manner interfering with, restrain- ing, or coercing its employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Post at its office and place of business in Omar, West Virginia, and at all its mines and other facilities in West Virginia which are administered by or through its office at Omar, West Virginia, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by 24 M. A. I. Equipment Corp., 183 NLRB No. 17, Garland Corp., 162 NLRB No. 145. 23 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and recommended Order herein shall, as provided in Sec. 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 " 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 Order of the National Labor Relations Board" shall be changed to read the Regional Director for Region 9, shall, after being duly signed by its authorized representative, be posted by Re- spondent immediately upon receipt thereof, and be main- tained 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 Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify Carolina Coal Company,, in writing, and send copies of such notification to Local 5922 of United Mine Workers of America, that Respondent has'no objection to the execution by Carolina Coal Company of an agreement with said Local 5922 providing for recognition and consideration of employees on panels or seniority lists of any of Respond- ent's mines or operations in West Virginia, for employment by Carolina Coal Company in any operations conducted by it on properties of Respondents in West Virginia. (c) Notify said Regional Director for Region 9, in writing, within 20 days after receipt of this Decision, what steps it has taken to comply herewith.i7 It is further recommended that the complaint herein be dismissed insofar as it alleges that Respondent violated the Act by failure to recall John E. Mendez from layoff to fill a truckdriver job at its AC plant or jobs at any other location. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which the Company, the charging party John E. Mendez, and the General Counsel of the National Labor Relations Board participated and offered evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and we intend to carry out the order of the Board and abide by the follow- ing: WE WILL NOT tell our employees that we will cause, nor will we actually cause, Carolina Coal Company, or any other concern conducting mining operations on our properties in West Virginia, to refrain from executing an agreement with Local 5922, United Mine Workers of America, or any other labor organization of our em- ployees, providing for recognition and consideration of our employees who are on panels or seniority lists of any of our operations in West Virginia, for employment by Carolina Coal Company or any other concern conduct- ing mining operations on our properties in West Vir- ginia, because John E. Mendez may be first listed on any of said seniority panels, or because he has engaged in activities on behalf of United Mine Workers of America, or its Local 5921, or in any other concerted activities for the mutual aid or protection of our employees. WE WILL NOT in any other manner interfere with, re- strain, or coerce our employees in the exercise fo the right to self-organization, to form labor organizations, to join or assist the Union named above or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in other con- "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." 1' 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." 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certed activities for the purposes of collective bargaining or other mutual aid or protection. WE WILL notify Carolina Coal Company, in writing, and send copies of such notification to Local 5922 of United Mine Workers of America , that we have no ob- jection to the execution by Carolina Coal Company of an agreement with said Local 5922 providing for recogni- tion and consideration of our employees who are on panels or seniority lists of any of our mines or operations in West Virginia, for employment by Carolina Coal Company in-any operations conducted by it on our prop- erties in West Virginia. Dated By (Representative) (Title) This is an official notice and must not be defaced by any- one. 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 Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684- 3686. WHEELING-PITTSBURGH STEEL CORPORATION (Employer)