Marathon Coal Bit Co., Inc.

SUMMERSVILLE INDUSTRIAL EQUIPMENT CO. Summersville Industrial Equipment Company, Divi- sion of Marathon Coal Bit Co., Inc. and United Mine Workers of America. Case 9-CA-6472 June 20, 1972 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On February 28, 1972, Trial Examiner Thomas D. Johnston issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting 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 his recommended Order.' 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 and hereby orders that Summersville Industrial Equipment Company, Division of Marathon Coal Bit Co., Inc., Zela, West Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. i In adopting the Trial Examiner's findings that Respondent by refusing since May 4 and 10, 1971, to recognize and bargain collectively with the Union as the exclusive representative of the employees in an appropriate unit has engaged in unfair labor practices within the meaning of Sec. 8(a)(5) and (I), we note that, contrary to Respondent's contention, the record evidence does not establish that on the May 4 demand date, employees Curry, Dietz, Hypes, White, and Gray had already been terminated. Moreover, Respondent has failed to present witnesses or offer evidence which would rebut record testimony and evidence that the aforementioned employees were eligible to be included in the agreed-upon appropriate unit. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS D. JOHNSTON, Trial Examiner: This case was heard at Summersville, West Virginia, on December 16, 1971,1 pursuant to a charge filed by the United Mine Workers of America (herein referred to as the Union) on September 14 and a complaint issued on November 2. The complaint alleges that Summersville Industrial Equipment i All the dates referred to are in 1971 , unless otherwise stated 2 The Charging Party did not submit a brief 3 Zela is a small community located in the immediate vicinity of 731 Company, Division of Marathon Coal Bit Co., Inc. (herein referred to as Respondent) violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, by failing and refusing to meet or bargain with the Union as the bargaining representative of its employees. Respondent in its answer filed on November 11, and amended prior to the hearing, denied violating the Act. Respondent further answered as an affirmative defense that on or about May 10 the Union demanded recognition claiming majority status based upon authorization cards, whereupon Respon- dent responded by expressing its good-faith doubt and its desires for a Board conducted election. The issue is whether Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to meet or bargain with the Union as the bargaining representative of its employees. Preliminary to deciding this issue, it must be determined whether Respondent agreed to recognize and bargain with the Union provided it proved its majority status in an appropriate unit, whether the Union then proved its majority status, and whether Respondent thereafter refused to abide by its agreement. At the hearing, the parties were afforded full opportunity to introduce relevant evidence, to examine and cross- examine witnesses, to argue orally on the record, and to submit briefs. Upon the entire record in this case and from my observation of the witnesses, and after due consideration of the briefs filed by General Counsel and Respondent,2 I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE EMPLOYER Summersville Industrial Equipment Company, Division of Marathon Coal Bit Co., Inc., a West Virginia corpora- tion, has a place of business located in Zela,3 West Virginia, where it is engaged in the business of electrical and mechanical repairing and rebuilding work on industri- al equipment. During the 12-month period preceding the issuance of the complaint, Respondent purchased goods valued in excess of $50,000 which were shipped directly to it in West Virginia from points located outside the State of West Virginia and/or from suppliers located in West Virginia who in turn had purchased these goods outside the State of West Virginia. Respondent also performed services valued in excess of $50,000 for nonretail employers in West Virginia, including Union Carbide Corporation, Amherst Coal Company, and Peerless Eagle Coal Co., each of which annually sells and ships goods and materials valued in excess of $50,000 from their respective places of business in West Virginia directly to points located outside the State of West Virginia. Respondent admits, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Summersville, West Virginia , and the plant located there is the only one involved in this proceeding. 197 NLRB No. 113 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. LABOR ORGANIZATION Respondent admits, and I find, that the Umted Mine Workers of America is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background The Union conducted an organizing campaign among Respondent's employees and between February 2 and March 25 the following 10 employees signed cards whereby they accepted membership in the Union and authorized it to act as their collective-bargaining represent- ative with respect to pay, rates, wages, hours of employ- ment, and other conditions of employment: Chad McClung, William Tolley, Terry Amick, Lawrence Gray, Dale Hypes, Hubert Alexander, Hilbert Curry, Gerald Deitz, Ronald White, and Charles Lanham. These cards were identified through the undenied testimony of the Union's representative, Charles Malcomb, who was pres- ent and witnessed the cards being signed. Based upon the evidence, I find these 10 employees signed the authoriza- tion cards selecting the Union as their bargaining repre- sentative. On March 22, the Union by letter notified Respondent that a majority of its employees had designated the Union as their collective-bargaining representative, offered to prove its majority status by submitting the authorization cards to a mutually selected impartial person, and requested negotiations. The unit described in the letter was as follows: All employees engaged in repair and mainte- nance of equipment including truckdrivers. Excluding all office clerical employees, guards, professional employees, and supervisors as defined in the Act. On April 5, Respondent through its attorney, William R. Laird III, responded by letter, requesting the Union to prove its majority status and requesting its advice concern- ing the mutual selection of an impartial person to establish such status. The letter further stated that- after the Union had established itself as the exclusive bargaining represent- ative, Respondent would confer with it with respect to rates, pay, wages, hours, and other conditions of employ- ment. Union Representative Zivkovich testified that around April 7, Respondent's attorney, Laird, called him and they discussed the mechanics of setting up a card check and they agreed to use Judge Elmer D. Strickler4 to conduct the card check. Zivkovich advised Laird he would get in touch with Charles Malcomb, who was the Union's representative in the area, to make the necessary arrange- ments with Judge Strickler. That same day, Zivkovich confirmed his conversation with Laird by letter whereby Representative Malcomb would make the arrangements with Judge Strickler to conduct a card check for the purposes of determining whether the Union represented a majority of Respondent's employees. Representative Malcomb testified that sometime in April he contacted Attorney Laird and informed him he had 4 Judge Strickler is the judge of the Twenty-Eighth Judicial Circuit for the State of West Virginia. been instructed by Representative Zivkovich to set up a meeting to determine whether the Union represented a majority of Respondent's employees on the basis of a card check. Laird told him to set the date with Judge Strickler and to let him know so he could make his own arrangements. Malcomb stated that following his conversa- tion with Laird, he contacted Judge Strickler and arranged for the meeting to be held on April 29, and advised Laird's office, which later confirmed the date. B. The Recognition Agreement On April 29, the parties met with Judge Strickler at the Summersville courthouse. Present for the Union were Representatives Malcomb, Harold Tracy, and William Hamrick. Respondent was represented by Henry Stephens, O. E. Stephens, Okie Moffatt, and Attorney Laird. Although the exact titles of these other individuals were not established, Malcomb identified Henry Stephens as president, O. E. Stephens as secretary, and Okie Moffatt as shop manager. Representative Malcomb testified that he opened the meeting by informing them they were there in regard to Attorney Laird's letter to check the cards to determine whether the Union represented a majority of the employees. Shop Manager Moffatt asked why didn't they have an election. Malcomb replied as far as they were concerned the letter they had received from Laird did not permit them to have an election because they had agreed if the Union could prove it represented a majority of the employees, Respondent would bargain with them on wages, hours, and other conditions of employment. Judge Strickler asked for an explanation, whereupon Malcomb explained they had obtained signed membership applica- tion cards and had written a demand letter to Respondent which could either agree that the Union represented them on a card check or, if they denied it, the Union would have to file a petition for election. Malcomb stated, however, that Attorney Laird had agreed to go through the card check instead of an election. Shop Manager Moffatt commented he still thought they should have an election. Representative Malcomb responded by reading Attorney Laird's reply letter and pointing out they had been requested to prove their majority, that it was what they were there for, and that there shouldn't be an election because of Laird's commitment that if they proved they represented a majority Respondent would bargain with them. Laird acknowledged he had written the letter. Representative Malcomb stated that the unit was then discussed and he named the employees he thought should be included. Those named consisted of the 10 employees discussed supra, who had signed authorization cards for the Union. Respondent's only objection to those named was to the inclusion of Dale Hypes and Gerald Deitz who had been laid off and Chad McClung who had been terminat- ed.5 The Union agreed to exclude Chad McClung but took the position that, since both Dale Hypes and Gerald Deitz had only been laid off and should be recalled, they should be included even though Respondent indicated it did not know whether Deitz would be recalled. According to S The parties stipulated at the hearing that Chad McClung was terminated on March 27. SUMMERSVILLE INDUSTRIAL EQUIPMENT CO. Representative Malcomb, Shop Manager Moffatt contend- ed the unit should also include Grover Curry, W. M. Shea, and R. W. White. Malcomb stated that although he thought Grover Curry and W. M. Shea were supervisors and he had never heard of R. W. White, he agreed to add their names to the other names including both. Gerald Deitz and Dale Hypes making a total of 12 names, which they discussed and agreed would be used in determining whether the Union represented a majority of Respondent's employees. Representative Malcomb stated they discussed how the card check was to be conducted and Attorney Laird wanted each individual to come in and verify his signature on the card. Malcomb initially objected, but, when Laird persisted, he agreed to the procedure whereby he would furnish the cards to Judge Strickler and go to the plant that evening and get the employees who were working to go to the Judge Strickler's chambers and verify their signatures on the cards. Shop Manager Moffatt informed him what time the employees got off work. Attorney Laird stated that no one from management would be present when the cards were checked. Representative Malcomb testified on May 4, he received from Judge Strickler in his chambers at the courthouse the results of the card check. The results were reported in a letter dated May 4 from Judge Strickler addressed to Attorney Laird with a copy to Malcomb.6 The letter from Judge Strickler recited his selection as a neutral party, accepted by both the Respondent and the Union, to check employee applications for membership in the Union; that he had carefully checked the names and dates on all the cards submitted; that in his opinion all the signatures on the cards were legitimate and were so acknowledged by the respective individuals in person; and certified that eight of the cards completed by the employees 7 of Respondent were valid and so acknowl- edged by the individuals in person. Attached was a page entitled "Checking Procedure" signed by Judge Strickler which stated as follows: Certification of request for membership in the United Mine Workers of America by employees of Summersville Industrial Equipment Company. 1. The data on all cards were checked, and all application cards were signed and dated. 2. Application cards for U.M.W.A. membership were checked and acknowledged by individual signer in person. 3. The names of 8 applications for U.M.W.A. membership were certified as valid. One of the employees, Gerald Deitz, testified that Judge Strickler asked him if he worked for the Respondent, if he had signed an application card for the Union, and if he could verify his signature. Deitz stated he answered all the questions affirmatively and verified his signature. Based upon this undenied evidence, I find that the parties agreed to the unit sought by the Union; the names 6 Respondent stipulated at the hearing that it had received Judge Strickler's letter 7 Judge Strickler did not identify the eight employees by name. 8 There was no agreement, as urged in Respondent's brief, whereby Judge Strickler would also poll the employees about whether the Union represented them. 8 Respondent's contention in its brief that there was employee 733 of the 12 employees to be included; the procedure to be followed in determining the Union's majority whereby Judge Strickler would check the authorization cards and have the employees verify their signatures, which is the procedure Judge Strickler followed; 8 and that Respondent would recognize and bargain with the Union if it proved it represented a majority of the employees. C. The Appropriate Bargaining Unit The complaint alleged that the appropriate bargaining unit was as follows: All employees of Respondent at its Summersville, West Virginia, plant engaged in the repair or maintenance of equipment including truckdrivers, but excluding all office clerical employees, guards, professional employees, and supervisors as defined in the Act. This is the same unit referred to in the exchange of correspondence between the Union and Respondent discussed supra, as well as that unit which the parties agreed to in the April 29 meeting. According to the evidence, Respondent did not have any other plants located in the Zela, West Virginia, area and no probative evidence was adduced to show its employees worked in any other plants outside the Zela area which were owned or operated by Respondent .9 The employees at the Zela plant who testified performed or had performed such jobs as helpers, welders, mechanics, and truckdrivers. Although Respondent in its amended answer denied the appropriateness of the unit, it offered no evidence to show it was not an appropriate unit or that it was not the unit agreed upon by the Respondent and the Union at the April 29 meeting. Agreements between parties on the appropriateness of the unit have long been accepted by the Board, which gives them broad latitude in reaching such agreements that will not be disturbed absent a showing that the exclusion or inclusion of certain employees contravenes the Act or established Board policy. Harvey Russell, 145 NLRB 1486. Here the unit sought is essentially a production and maintenance unit including truckdrivers. The Board has held production and maintenance units are presumptively appropriate and, in the absence of evidence to show otherwise, the Board will find such a unit appropriate, excluding those employees customarily excluded. Appliance Supply Company, 127 NLRB 319. Both parties agreed to include the truckdnvers. Therefore, based on the undisputed evidence, I find that the bargaining unit agreed upon by the parties, which is the same unit as alleged in the complaint, is an appropriate bargaining unit. D. The Union's Majority The parties stipulated at the hearing that the following named employees, who had been hired prior to the Union's March 22 letter to Respondent, were employed through interchange between Respondent and the Charleston and Williams River operations of the Respondent is not supported by the evidence. The testimony of Charles Lanham relied upon by Respondent only shows that, while working for Respondent as a truckdriver, he made deliveries to the Charleston area and on one occasion removed and repaired a generator for the West Virginia Water Company. 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD May 10, which period included the date of the authoriza- tion card check by Judge Strickler: Hubert Alexander, Terry Amick, Charles Lanham, William Tolley, Grover Curry, W. M. Shea, and R. W. White. However, Respon- dent objected to the authorization cards 1° of Lawrence Gray, Dale Hypes, Hilbert Curry, Gerald Deitz, and Ronald White on the basis that they were not employed during the critical dates as alleged in the complaint. Lawrence Gray, who was hired on July 11, 1970, testified that he worked until the latter part of May, although he wasn't certain about the date. No evidence was submitted to establish he was terminated sooner. Both Dale Hypes and Gerald Deitz have already been discussed in connection with the April 29 meeting. Further, Deitz testified he was laid off on April 23 for lack of suitable work available. However, his layoff notification stated that when work became available which suited his abilities he would be given the opportunity to be reemployed. Deitz testified he was never told he was either fired or permanently terminated. He had not been reemployed at the time the hearing was held on December 16. Ronald White, who was hired on March 1, testified he was hospitalized on two occasions around Easter and couldn't work. Although, about the latter part of April, he advised Lester Curry he didn't know whether he would be back to work, it was not until later in the summer that he definitely told Respondent he wasn't coming back to work. White denied he had ever been notified he had been terminated and no probative evidence was adduced at the hearing to establish when he was terminated. Hilbert Curry was first hired on February 1, and apparently rehired on July 30, however, the evidence does not establish when his first period of employment was terminated. All of the 12 employees, including those employees Respondent objected to at the hearing, were specifically discussed by name at the April 29 meeting and Respondent agreed to include them in the unit. The undenied evidence, including the agreement of Respondent and the Union as to the unit inclusions, is sufficient to show that the 12 employees at the time of the card check were either employed or eligible voters. Despite Respondent's objections at the hearing as to the employment status of these employees, it offered no evidence to support its position or to refute the agreement between the Respondent and the Union to specifically include these employees in the unit. Counsel for General Counsel contends that, although the Union agreed to include Lester Curry, W. M. Shea, and R.W. White in the unit, they are supervisors within the meaning of the Act. While the evidence showed Curry and 10 Respondent also objected to the authorization of Chad McClung and his card was rejected by agreement of the parties on April 29 as previously discussed. 11 Sec. 2(11) of the Act defines a supervisor "as any individual having authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharged, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment " 12 Although Respondent contends in its brief that another union made Shea assigned employees work, gave them their paychecks, and asked employees to work overtime, the evidence did not establish whether such assignments were for work other than that of a routine nature or if the employees were selected for overtime work on an individual basis. Further, Shop Manager Okie Moffatt who was over both Curry and Shea also assigned employees work, gave them their paychecks, and asked them to work overtime. Both Curry and Shea spent the majority of their time working with the employees and were considered by the employees to be working foremen. Curry also had an office and checked some employees' timecards. Although there was testimony that R. W. White was observed on occasions performing machine work at the plant, no testimony was presented concerning his alleged supervisory status. Therefore, I find that the evidence was not sufficient to establish that either Lester Curry, W. M. Shea, or R. W. White had the necessary authority as defined in Section 2(11) of the Act 11 to find them to be supervisors within the meaning of the Act. Stipulations between the parties disclosed that, other than the 12 employees they had agreed to include in the bargaining unit, there were no other employees employed by Respondent who would have been included in the bargaining unit. I find, based upon the evidence including the agreement of the parties and the decision by Judge Strickler who was mutually selected to act for both Respondent and the Union, that there were 12 employees in the appropriate bargaining unit, 8 of whom selected the Union as their bargaining representative,12 thereby establishing the Un- ion's majority status.13 Counsel for the General Counsel further presented, as additional evidence of the Union's majority status, testimo- ny by Representative Malcomb concerning a 2-day strike beginning March 29 which occurred at Respondent's plant. Inasmuch as the evidence doesn't establish the nature of the strike, who called it, and only identified six employees, Gerald Deitz, Hilbert Curry, Terry Amick, Hubert Alexan- der, Charles Lanham, and William Tolley, who were picketing the plant, I reject such evidence for the purpose offered. E. The Union's Attempts To Contact Respondent Representative Malcomb testified that on May 10 he attempted to contact Attorney Laird by telephoning his office. The person answering, who he assumed was Laird's secretary, informed him Laird was not in but was either in court or at a meeting. Malcomb asked her to have Laird get in touch with him concerning the Respondent and said Judge Strickler was supposed to have mailed Laird a copy some effort to organize Respondent's employees around this period, it offered no evidence to support its contention. The fact that a petition was filed 4 months later, of which I am requested to take official notice, would not prove this allegation 13 Even assuming both Dale Hypes and Gerald Deitz, who Respondent initially sought to exclude but agreed to include in the bargaining unit, were excluded and, further, assuming both Hypes and Deitz were among the 8 employees found by Judge Strickler to have signed authorization cards, this would reduce the bargaining unit to a total of 10 employees and the Union would still represent a majority SUMMERSVILLE INDUSTRIAL EQUIPMENT CO. 735 of the card count which he had conducted. The secretary asked him to wait while she checked, after which she advised him Laird had received it. Malcomb left word for Laird to get in touch with him by telephone or letter so they could get together, stating that they had proved they represented the employees and they had to get together to have a paper signed in front of the judge on the count recognition.14 The secretary advised Malcomb she would tell Laird. After Laird did not return the call, Malcomb on May 11 talked to the secretary again who advised him Laud was not in his office. On May 17, Malcomb again attempted to contact Laird, at which time the secretary said he was not available and was busy. Malcomb inquired whether she had told Laird that he wanted him to contact him. She replied she had relayed the message to him. Malcomb asked her to remind Laird again and she stated she would. On May 25, Malcomb attempted to contact Laird whose secretary told him Laird was not in. When Malcomb inquired if she had relayed his message to him, she replied she had. On May.20, Malcomb also called Marathon Coal Bit Co., Inc., in Montgomery and spoke to either Oren Stephens or Henry Stephens, who had represented Respon- dent at the April 29 meeting. Malcomb testified that he told Stephens he had done everything he could to get in touch with Attorney Laird and requested Stephens to have Laird get in touch with him by letter or telephone. Stephens replied that he would see what he could do. Malcomb testified on three or four occasions in June and July he attempted to contact Attorney Laird by placing person-to-person telephone calls to his office, however, the secretary who answered the phone would ask the operator who was calling and after Malcomb had identified himself she would say she was sorry, Mr. Laird was not available. When the operator asked her when she expected him back, she would reply she had no idea. Attorney Laird never returned Malcomb's calls or contacted him. Neither did any other representative of Respondent. I credit Representative Malcomb's undemed testimony which is also corroborated by his telephone records that he made numerous attempts to contact Attorney Laird who did not return his calls. F. Analysis and Conclusions Counsel for the General Counsel contends Respondent violated Section 8(a)(5) and (1) of the Act by refusing to meet or bargain with the Union after Respondent had agreed to recognize and bargain with the Union provided it proved it represented the employees which it did. Respon- dent's counsel, in denying the Act was violated, asserts as defenses that the unit was inappropriate; the Union did not represent a majority of Respondent's employees; there was no agreement to determine the Union's majority status solely by a card check; no bargaining demand was made by the Union; and Respondent was entitled to a Board- conducted election. Section 8(a)(5) of the Act prohibits an 14 The evidence does not establish that the signing of the alleged document was a necessary requirement agreed upon by the parties. 15 See Linden Lumber Division, Summer & Co, 190 NLRB No 116; Redmond Plastics, Inc, 187 NLRB No. 60 16 Attorney Laird had represented Respondent throughout the initial employer from refusing "to bargain collectively with the representatives of his employees" designated by a majority of them in an appropriate unit. Having already found that Respondent agreed to recognize and bargain with the Union provided it proved its majority status in an agreed-upon bargaining unit on the basis of a card check conducted by a mutually selected individual, Judge' Strickler, and the Union. having thereaf- ter- proven its majority status in accordance with that agreement, the issue is whether Respondent was thereby legally obligated to recognize and bargain with the Union or if it could lawfully refuse by insisting on a Board- conducted election. - The precise issue was decided by the Board in Snow & Sons, 134 NLRB 709, enfd. 308 F.2d 687 (C.A. 9), which is still followed,15 wherein it held that an employer violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union and insisting on an election after it had agreed to recognize the Union on the basis of a card check which established that the union represented a majority of the employees. Respondent's contention that under the Supreme Court's decision in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, it is entitled to an election is misplaced since in the instant case as in Snow & Sons the parties agreed to resolve the issue of the Union's majority through a card check. Any doubts of the Union's majority having been resolved through its own agreement voluntari- ly entered into, Respondent can not now be heard to complain merely because the results were unfavorable. The remaining issue raised by the defense concerns the Union's alleged failure to demand bargaining. The undis- puted evidence establishes that the Union made numerous efforts over a period of several months to contact Respondent's attorney,16 who either failed or refused to return the calls despite the fact he had knowledge of or was aware of the calls, the nature of the calls, and the fact the Union had established its majority status. Respondent could not evade its then legal obligation to recognize and bargain with the Union by refusing to return the calls. Cf. United Electric Company, 194 NLRB No. 105. Therefore, based on the evidence and my previous findings, I find that the Respondent, since on and after May 4 and 10, 1971, respectively, by refusing to recognize and bargain with the Union after it had established its majority status in an appropriate bargaining unit in accordance with the agreement of the parties, violated Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, found to constitute an unfair labor practice, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the proceedings and Respondent had never informed the Union to deal directly with Respondent or any other representative In fact, as related by Representative Malcomb when he talked with Mr Stevens on May 20, Stevens stated he would see what he could do about having Laird contact Malcomb 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. CONCLUSIONS OF LAW 1. Summersville Industrial Equipment Company, Divi- sion of Marathon Coal Bit Co., Inc., is engaged in commerce within the meaning of 2(6) and (7) of the Act. 2. United Mine Workers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees engaged in repair or maintenance of equipment, including truckdnvers, employed at Respon- dent's Zela, West Virginia, plant, excluding office clerical employees, guards, professional employees, and supervi- sors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times since and including May 4, 1971, the Union has been, and is now, the exclusive representatives of all employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing since on or about May 4 and May 10, 1971, respectively, to recognize and bargain collectively with the Union as the exclusive representative of the employees in the aforesaid appropriate unit, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent violated Section 8(a)(5) and (1) of the Act, and in order to effectuate the policies of the Act, it is necessary that Respondent be ordered to cease and desist from engaging in the unfair labor practices found and of a like or similar nature and to remedy them. To remedy Respondent's unlawful refusal to recognize and bargain with the Union, I will recommend that Respondent recognize the Union as the exclusive repre- sentative of the employees in the aforementioned bargain- ing unit and that, upon request, Respondent be required to bargain collectively with the Union as the exclusive representative of the employees in the aforementioned unit and, if any understanding is reached, embody such understanding in a signed agreement. In addition, the posting of an appropriate notice is also recommended. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 17 ORDER Respondent, Summersville Industrial Equipment Com- pany, Division of Marathon Coal Bit Co., Inc., its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Refusing to recognize and bargain with the United Mine Workers of America as the exclusive representative of Respondent's employees in the unit described below concerning rates of pay, wages, hours of employment, and other conditions of employment: All employees engaged in repair or maintenance of equipment, including truckdrivers, employed at Re- spondent's Zela, West Virginia, plant excluding office clerical employees, guards, professional employees, and supervisors as defined in the Act. (b) In any like or related 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 necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the above- named Union as the exclusive representative of its employees in the above-described unit, concerning rates of pay, wages, hours of employment, and other conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its Zela, West Virginia, plant a copy of the attached notice marked "Appendix." 18 Copies of said notice, on forms to be provided by the Regional Director for Region 9, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Decision, what steps the Respondent has taken to comply herewith.19 17 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, 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 18 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 read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board" 19 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." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to recognize and bargain collectively with the United Mine Workers of America, as the exclusive representative of our employees in the unit described below, concerning rates of pay, wages, hours of employment, and other conditions of employ- ment: All employees engaged in repair or maintenance of equipment, including truckdnvers, at our Zela, West Virginia, plant, excluding office clerical SUMMERSVILLE INDUSTRIAL EQUIPMENT CO. employees, guards, professional employees, and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the Act. WE WILL bargain collectively, upon request, with the United Mine Workers of America, as the exclusive representative of our employees in the bargaining unit described above with respect to rates of pay, wages, hours of employment, and other conditions of employ- ment and, if an understanding is reached, embody such understanding in a signed agreement. SUMMERSVILLE INDUSTRIAL EQUIPMENT CoMPANY, DIVISION OF MARATHON COAL BIT CO., INC. (Employer) Dated By 737 (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 concern- ing 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 44199, Telephone 513-684-3686.