Carbona Mining Corp.

CARBONA MINING CORPORATION 293 Carbona Mining Corporation and United Mine Work- ers of America and Surface Coal Miners Union of America, Party in Interest. Case 6-CA-5282 July 19, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On March 15, 1972, Trial Examiner Gordon J. Myatt issued the attached Decision in this proceed- ing. On April 5, Respondent filed with the Board a document entitled "Statement of Exceptions to Trial Examiner's Intermediate Report." On April 12, General Counsel filed and served on the parties a motion to reject Respondent's exceptions, contend- ing that the purported exceptions did not comply with Section 102.46 of the National Labor Relations Board's Rules and Regulations, Series 8, as amended. Although duly served with General Counsel's mot- ion, Respondent has filed no response thereto. General Counsel also filed "limited cross-excep- tions" to certain recommended Order and notice provisions of the Trial Examiner's Decision, con- tending that certain changes therein are required to conform them to the Trial Examiner's recommended remedy. 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. Section 102.46(b) of the Board's current Rules and Regulations establishes the standards for the proper filing of exceptions. These are that: Each exception (1) shall set forth specifically the questions of procedure, fact, law, or policy to which exceptions are taken; (2) shall identify that part of the trial examiner's decision to which objection is made; (3) shall designate by precise citation of page the portions of the record relied on; and (4) shall state the grounds for the exceptions and shall include the citation of authorities unless set forth in a supporting brief. Any exception to a ruling, findings, conclusion, or recommendation which is not specifically urged shall be deemed to have been waived. Any exception which fails to comply with the forego- ing requirements may be disregarded. Respondent's statement of exceptions constitutes no more than a general assertion that the Trial Examiner's findings of fact, conclusions, and recom- mendations are erroneous. In this statement Respon- dent advanced no grounds to support its assertions of error, either by way of citation of authorities, which could have been but were not supplied in any 198 NLRB No. 52 supporting brief, or by the citation of designated portions of the record. As Respondent has set forth no legal or factual theory on which it relies in asserting that the Trial Examiner erred, and has failed to file any response to General Counsel's motion to strike the statement of exceptions, we shall grant such motion. Accordingly, we shall reject and strike the above document filed by Respondent.' As no exceptions have been filed to the Trial Examiner's substantive Findings of Fact and Conclusions of Law, we hereby adopt his findings and conclusions, pro forma. General Counsel's limited exceptions go wholly to certain remedial provisions of the Trial Examiner's Decision. They properly request certain corrections in the Trial Examiner's recommended Order and notice in order to conform such to his substantive findings and his Conclusions of Law and Remedy. We shall modify the recommended Order and notice in accord with General Counsel's request. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, and Section 102.48 of the National Labor Relations Board Rules and Regula- tions, Series 8, as amended, the Board adopts as its Order the findings and conclusions of the Trial Examiner as contained in his Decision and orders that Respondent, Carbona Mining Corporation, Junior, West Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order, as modified below: 1. Delete the phrase "as successor of Newport Mining Corporation" from paragraph 1(g) of the Trial Examiner's recommended Order. 2. Substitute the attached notice for the Trial Examiner's notice. ' Hunter Metal Industries, Inc, 155 NLRB 430, 431, Patrick F Izzi, d/b/a Pat Izzi Trucking Company, 149 NLRB 1097, 1098, enfd sub nom N L R B v Patrick F Izzi, d/b/a Pat Izzi Co, 343 F 2d 753 (C A 1) APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a trial before a duly designated Trial Examiner, that we violated Federal law by promising and granting employees wage increases and other bene- fits in order to discourage their membership in the United Mine Workers of America, by threatening employees with economic loss and other reprisals if they engage in activity on behalf of the Mine 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Workers, by threatening to close our mine if the employees engaged in activities on behalf of the Mine Workers, by creating an impression that we were keeping our employees' union activities under surveillance, by initiating and assisting in the formation of the Surface Coal Miners of America Union and dominating that organization, and by refusing to bargain with the Mine Workers Union as ,the collective-bargaining representative of our em- ployees, we hereby notify our employees that: WE WILL NOT promise or grant wage increases or other health or pension benefits to our employees in order to discourage their activities on behalf of the United Mine Workers of America. WE WILL NOT create an impression that we are keeping our employees' activities on behalf of the Mine Workers Union under surveillance. WE WILL NOT threaten to close down our mine if our employees are represented by the Mine Workers Union. WE WILL NOT threaten our employees with economic loss or other reprisals if they engage in activities on behalf of the Mine Workers Union. WE WILL NOT threaten our employees with discharge or other reprisals if they engage in concerted conduct on behalf of the Mine Workers Union. WE WILL NOT initiate, sponsor, assist in forming the Surface Coal Miners Union, or any other labor organization, or dominate, or interfere with the formation or administration of any such union, or contribute any support thereto. WE WILL NOT refuse to bargain collectively with the United Mine Workers of America as the collective-bargaining representative of our em- ployees. WE WILL withdraw and withhold all recogni- tion from, and completely disestablish, the Sur- face Coal Miners Union of America, and any successor thereto, as the representative of our employees for the purposes of collective bargain- ing. WE WILL recognize and, upon request, bargain collectively with the United Mine Workers of America as the exclusive representative of our employees and, if an understanding is reached, embody such understanding in a signed agree- ment. In the event no understanding is reached, we will not abandon any employee benefits put into effect on or after August 19, 1970. WE WILL NOT in any other manner interfere with, restrain, or coerce any of our employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act, as amended. All of our employees are free to become or remain, or refrain from becoming or remaining, members of the United Mine Workers of America, or any other labor organization, except to the extent that such right may be affected by an agreement conforming with the provisions of Section 8(a)(3) of the Act. CARBONA MINING CORPORATION (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, Telephone 412-644-2977. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GORDON J. MYATT, Trial Examiner: Upon a charge filed by United Mine Workers of America (hereinafter called Mine Workers), and upon subsequent amended charges, a complaint and notice of hearing was issued by the Regional Director of Region 6 on August 24, 1971, against Carbona Mining Corporation (hereinafter called the Respondent). The complaint alleged, inter alia, that the Respondent violated Section 8(a)(5) of the Act by refusing to bargain with the Mine Workers as the collective- bargaining representative of its employees . According to the complaint the Respondent was the successor to Newport Mining Corporation (hereinafter called Newport) and, as such, under a duty to bargain with the Mine Workers.' It was also alleged in the complaint that the Respondent violated Section 8(a)(5) by failing to recognize and bargain with the Mine Workers as the designated bargaining representative of a majority of its employees. The complaint further alleged that the Respondent violated Section 8(a)(1) of the Act by creating an impression that the employees' union activities were under surveillance, by promising and granting wage increases and other benefits, and by threatening employees with dis- charge and other economic loss if they engaged in activities on behalf of the Mine Workers. Finally, the complaint alleged that the Respondent violated Section 8(a)(2) of the Act by initiating and assisting in the formation of the Surface Coal Miners Union of America (hereinafter called I At the time of the trial counsel for the General Counsel amended the complaint to also allege that the Respondent was the alter ego of Newport CARBONA MINING CORPORATION 295 Surface Miners), and dominating and contributing to the support of that organization. The Respondent's answer, amended at the time of the trial, admitted certain allegations contained in the com- plaint and denied others. The Respondent specifically denied the commission of any unfair labor practices. This case was tried before me in Elkins, West Virginia, on November 11, 12, and 17, 1971.2 All parties were represented by counsel and afforded an opportunity to be heard and to present relevant evidence on all of the issues in question. Briefs were submitted by counsel for the General Counsel and for the Respondent and have been duly considered by me in arriving at my decision in this case. Upon the entire record herein, including my evaluation of the testimony of the witnesses based on my observation of their demeanor and upon consideration of the relevant evidence, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS The Respondent is a Delaware corporation engaged in the nonretail sale of coal produced from its strip mining operation in Junior, West Virginia. During the past 12 months the Respondent shipped coal valued in excess of $50,000 from its strip mine location in West Virginia directly to points outside the State of West Virginia. The answer admits, and I find, that the Respondent is an employer as defined in Section 2(2) of the Act engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED United Mine Workers of America and Surface Coal Miners Union of America are labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Facts John Hubbard, president of the Respondent , is also the president of Newport, the company to which Carbona is the alleged successor. In an unpublished Decision (Case 6-RC-4437) dated November 2, 1967, the Board certified the Mine Workers as the collective-bargaining representa- tive of the employees of Newport.3 Newport contested the 2 The official transcript indicates that the final day of trial was on November 18, 1971, but this is an error Accordingly, the transcript is hereby corrected to reflect the true date In addition, counsel for the General Counsel filed a motion to correct several errors contained in the record The corrections requested are attached to this Decision as "Appendix A [omitted from publication I " Upon examination of my notes and upon my recollection, I find that the corrections are warranted Therefore, the motion is hereby granted and the record is hereby corrected in accordance with the motion It should be noted at this point, however, that the official reporter was ill during most of this trial but continued working in order not to delay the proceeding Thus the errors in the record are readily understandable 3 The unit found appropriate for purposes of collective bargaining was described as follows All employees engaged in the production of coal, repair and certification and refused to bargain with the Mine Workers. A subsequent complaint was issued and on March 20, 1968, the Board found that Newport violated Section 8(a)(5) of the Act by this refusal. The Board ordered Newport to bargain with the Mine Workers, upon request, as part of its standard remedy.4 Newport appealed the Decision and Order to the United States Court of Appeals for the Fourth Circuit. On October 31, 1969, the court, per curiam, sustained the Board and enforced the Order.5 The unrefuted testimony of Zivkovitch, special repre- sentative of the Mine Workers, discloses that the union officials met with Hubbard in Morgantown, West Virginia, in November 1969. They sought to negotiate a collective- bargaining agreement, but Hubbard stated that Newport was having financial difficulties and he was seeking aid. He told the union representatives that Humble Oil Company was looking to invest in coal-producing properties and he was investigating this source of capital. It was agreed that the parties would get together after Newport was able to secure financial assistance. The Union officials contacted Hubbard again in February 1970,6 and he informed them that he was still negotiating for financial aid and assured them that he would get back to them regarding a contract as soon as this was accomplished. B. The Formation and Operation of Carbona Hubbard was the sole owner of Newport and functioned as the president and general manager of the corporation. He was responsible for the entire operation including its labor policy. Hubbard testified that Newport did not own the coal-bearing properties which it mined, but leased them from another corporation called Eastern Mining Corpora- tion. On the basis of evidence supplied by the Respondent, Eastern's ownership was divided into 50 shares; Hubbard owned 9.6 of these shares. In addition to leasing the coal property, Newport also leased a trailer from Eastern; this was housed on the mine site and served as its office. According to Hubbard, the office equipment and furnish- ings were also leased from Eastern. Hubbard testified that Newport was a deep mine operation and extracted coal from below the surface.? Hubbard stated that he found the financial backing he was seeking and the put together a package which resulted in the organization of Carbona. Kurt Seehause, a German national who was a wholesaler of coal in Germany, became the principal backer. Seehause was interested in investing in and developing coal properties in the United States for 4 maintenance, processing and loading of coal, electricians and laborers of Newport Mining Corporation at its mine # 1, mine #2 and,Tipple, all located in Barbour County, West Virginia , excluding office clerical employees, guards, janitors, professional employees, and supervisors as defined in the act. Newport Mining Corporation, 170 NLRB 596. 5 417 F 2d 625 (C A 4) 6 All subsequent dates herein refer to 1970, unless otherwise specified. r There is testimony by employees who worked for Newport, and subsequently for Carbona, to the effect that Newport also engaged in some strip mining on the surface Because of several inconsistencies in Hubbard's testimony which will be pointed out infra and because his answers were evasive on many occasions, I credit the testimony of these employees Thus, I find that, while Newport was primarily a deep mine operation , it did, on occasion, engage in surface mining 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reserves. The business arrangements between Hubbard and Seehause resulted in the formation of the Respondent sometime in May. Under the terms of this transaction, the Respondent purchased from Eastern the coal properties which were previously mined by Newport. In addition, the Respondent purchased the trailer and all of the office equipment formerly used by Newport.8 Hubbard became the president of the Respondent and Seehause the vice president. McCall, a sales representative for Newport who had an ownership interest in Eastern, became the sales representative and an offical of the Respondent. Owner- ship of the Respondent was divided into 100,000 shares and Eastern owned 49,000 of those shares; the balance was owned by the Seehause interests. The office staff of Newport became the office staff of the Respondent and Hubbard became the general manager in charge of all of the day-to-day operations, including the labor policies of the Respondent. It is not absolutely clear in this record when the Respondent began its mining operations, but the evidence does indicate that Newport terminated its deep-mining operation on June 12. There is testimony by employees who worked for Newport that during the early part of June they were withdrawing mine equipment from below the surface and storing it. Hubbard's records indicated that the last day that employees were paid on Newport checks was June 12. In contrast to the deep-mining operation of Newport, the Respondent engaged in surface or strip mining. The same vein of coal was mined in the same area; in fact, the surface operation was just a few feet from the entrance to the deep mine worked by Newport. The sole difference in the operation was that under Newport the coal was extracted from below the surface and under the Respon- dent it was extracted from the top of the surface .9 There was no hiatus between the cessation of operations by Newport and the commencement of strip mining by the Respondent. All of the employees, including the superviso- ry employees of Newport, were transferred to the Respon- dent's payroll over a period of time beginning in the middle of May.lo C. The Events After Carbons Commenced Operations After the union officials learned of the existence of the Respondent they requested a meeting with Hubbard. Zivkovitch testified that he went to the Respondent's office and told Hubbard that he wanted to discuss the matter of 8 Hubbard claimed that Newport did not sell any property whatsoever to the Respondent. However, a bill of sale evidencing the sale of electrical equipment to the Respondent was on Newport's letterhead . Hubbard claimed this to be the bookkeeper's mistake and that the sale originated with Eastern. In his affidavit, however, he stated that Newport sold the equipment to the Respondent . In addition to the trailer and equipment, the Respondent retained the telephone number previously listed for Newport. 9 Hubbard testified that the Respondent had no intention of engaging in deep mining and Newport would resume that type of operation when it acquired a new location . But in his affidavit Hubbard stated that the Respondent expected to engage in deep mining in "about two or three years." 10 The records supplied by the Respondent indicate that on May 17, Newport employed 17 rank-and-file employees (I of whom was on layoff status) and 3 supervisors. On May 18, three rank-and-file employees were the contract with him. Hubbard agreed to meet with the union officials later, as he was unable to talk at the time. On August 16, the Mine Workers representatives met with the employees in Junior, West Virginia. The situation was explained to the employees and they elected a negotiating committee to meet with the Respondent along with the union officials. On August 25, the union officials and the employee committee met with Hubbard at the Respondent's trailer office. The Respondent's attorney was also present. Zivkovitch testified that the union demanded that the Respondent continue negotiations with it and took the position that the Respondent was the successor to Newport. Zivkovitch further testified that the Respondent denied it was Newport's successor and insisted upon a card check to determine if the Mine Workers represented a majority of the employees. Both Zivkovitch and Nikses, another union official, testified that when the Respondent asked for a card check the Union took the position that it would look into the matter of successorship. They further stated that, if the Union was not on sound legal ground, they would get back to the Respondent regarding a third party to conduct a card check. Hubbard denied that the union officials ever contended that the Respondent was the successor to Newport. He stated that the Union took the position that it represented a majority of the employees and wanted him to negotiate a contract. Hubbard claimed that he asked for a card check in order to establish their majority and the union officials refused. The following day the union officials sent the Respondent a letter setting forth their version of the issues discussed at the meeting.11 It indicated that the Union took the position the Respondent was the successor or assignee of Newport. It further indicated that the Respondent took the position the Mine Workers would have to prove their majority status. The letter concluded by stating that the Mine Workers would investigate the substance of its claim of successorship and would agree to a third-party card check if the Respondent's position were correct. On August 30, the union officials held another meeting with the Respondent's employees and informed them of the situation. The employees were asked to reaffirm their support for the Mine Workers by signing authorization cards again. The union officials continued to sign up the Respondent's employees throughout September and Octo- ber.12 On August 19, Hubbard called a meeting of all of the Respondent's employees and informed them that they would receive a 50-cent-an-hour across-the-board wage transferred from Newport's payroll to that of the Respondent without loss of work. On June 1, all of the supervisory personnel and office staff were transferred to the payroll of the Respondent . On June 9 and 10, two other rank-and-file employees were transferred. By June 15, the remaining rank- and-file employees of Newport were transferred to the payroll of the Respondent without loss of work. On that date the Respondent employed 28 individuals, 5 of whom were supervisors. Of the 23 rank-and-file employees, 17 had been employed by Newport in the deep-mine operation and 6 were new hires. 11 Although the Respondent acknowledges the receipt of this letter, it contends that it does not agree with the statements contained therein. 12 Twenty-six of the Respondent's employees signed authorizations for the Mine Workers between August 30 and October 22. These cards were authenticated and placed in evidence . Employee Foy signed an authoriza- tion card on November 13, and it too was placed in evidence. CARBONA MINING CORPORATION increase. He also told the employees that the Respondent was going to inaugurate an insurance program which would give them medical and health benefits and would establish a pension plan. Hubbard stated that the Respon- dent's program was better than the one the Mine Workers had for its members. There is uncontroverted testimony that Hubbard also informed the employees that he was aware they were meeting with the union officials. He told the employees that he had "his people" at the meetings and they had reported back to him. Willard Smith, a supervi- sor, was also present at the meeting. Smith told the employees that the benefits offered by the Respondent were better than anything that the Mine Workers had in their contract. He also told the employees that under the Respondent's plan they would work continuously and would get lots of overtime, but under the Mine Workers they would be on strike constantly.13 There is unrefuted testimony by employees of several instances in which supervisors of the Respondent engaged them in conversations regarding the Mine Workers. Employee Foy testified that, on August 12 or 13, he was told by Supervisor Phillips, in the presence of several other employees, that they should stay away from the union hall and "keep their noses clean," if they wanted to continue to work for the Respondent. Employee Stalnaker testified that he was riding to work with Supervisor Smith in August and was told that "if he kept fooling around with the union he would be branded a trouble maker and would have a hard time getting ajob." On October 22, the Respondent's employees went on strike. The employees were striking over the discharge of two of their coworkers. When Hubbard arrived at the mining site that morning he became quite angry. He told the employees that if they dpd not returned to work immediately they would be fired. Several moments later he told the employees he would not fire them, but if they did not return to work he would consider them as having quit their jobs. None of the employees went to work. Employee Bennett testified that several of the employees agreed to move some of the mining machinery in order to protect it while the operation was shut down during the strike. While he was engaged in doing this, he was told by Supervisor Wildman that, if the Mine Workers got in, the Respondent would shut down its operation. Hubbard contacted the union officials the day the strike started and arranged to meet with them the following day. The parties met and the Mine Workers again demanded recognition and negotiations as the collective-bargaining representative of the employees. The union officials continued to claim that the Respondent was the successor to Newport and had an obligation to bargain with it. The Respondent continued to refuse this request and denied that it was Newport's successor. According to Zivkovitch, he then agreed to submit to a third-party card check, and the Respondent at that point denied such an arrangement had been suggested and insisted on a Board-conducted election. 13 The wage increase was put into effect immediately and was reflected in the next paycheck of the employees The insurance program and other benefits became effective approximately a month later Hubbard admitted that the minutes of the meeting of the Respondent's board of directors on July 25 indicated that the benefits would equal those offered by the Mine 297 The Respondent sought a state court injunction against the picketing, and on October 28, a state court judge issued an order limiting the number of pickets. The order was against individuals employed by the Respondent and not against the Mine Workers. On November 10, the officials from the Union and the Respondent met in the chambers of the judge. The Mine Workers repeated its claim of majority representation and, according to Zivkovitch, offered to submit to a card check. The Union's offer was again stated in a letter from its attorney to the Respon- dent's attorney the following day. Hubbard, on the other hand, testified that at no time during his meetings with the union officials did they claim that the Respondent was Newport's successor nor did they ever offer to submit to a card check. I do not credit his testimony in this regard, as I find that there are serious conflicts between Hubbard's testimony on the one hand and the sworn statements he gave the Board agents on the other. For example, Hubbard denied that the Mine Workers ever agreed to submit to a card check. But in an affidavit which he gave the Board agent on November 18, he stated that on November 10 Zivkovitch and his attorneys indicated they wanted an immediate card count and that he wanted an immediate election which they would not consider.i4 Apparently after the strike and while the Respondent was seeking a State court injunction, a group of employees met with Hubbard and the Respondent's attorney in the trailer office. The Respondent's attorney told the employ- ees that the entire problem could be resolved faster if the employees brought another union into the picture. The attorney informed the employees that the new union could petition for an election and with two unions seeking to represent the employees, an election would be held very quickly. The Respondent's attorney agreed to put the employees in touch with the Surface Miners and to get authorization cards for them. A number of the employees subsequently met and elected employee Silvester as temporary president of the Surface Miners. There is considerable employee testimony in the record recarding Hubbard's efforts to get them to sign authoriza- tion cards for the Surface Miners. Employee Foy testified that on November 13 he and several other employees were asked by Hubbard to sign cards for the Surface Miners. These employees were at the Respondent's office picking up their final paycheck. They refused to do so and Hubbard suggested that they think it over and come back to see him. Foy testified that he returned to the trailer later that evening and was asked by Hubbard if he wanted to work. According to Foy, Hubbard stated that if a majority of the employees signed for the Surface Miners they could go back to work immediately. Hubbard gave Foy an authorization card for the Surface Miners which he signed. Employee Cross testified that on November 14, he received a call from Hubbard asking him to come to the Respondent's office. When Cross arrived he was given a Surface Miners card by Hubbard and told that 32 Workers 14 Hubbard sought to explain this discrepancy away by stating that the affidavit was typed up in his attorney's office and he merely signed it The implication was that the contents were perhaps inaccurate I find this explanation highly implausible 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees had signed for the union. Hubbard asked the employee to sign so that all the employees could get back to work. Hubbard told Cross that the employees who signed for the Surface Miners were working and that if he signed he could go back to work also. Employee Shreve testified that he went into the Respon- dent's office regarding a shortage on his paycheck. While there he was asked by Hubbard if he would like to go back to work. When Shreve indicated that he would be willing to return , to work if the labor dispute were straightened out, Hubbard gave him a Surface Miners card and said if the employees join that union they could elect their own officers and organize out of Carbona.15 Shreve refused to sign the card for the Surface Miners, but had to return to the Respondent's office later in connection with his paycheck. Hubbard asked if he had thought about signing the card for the Surface Miners, and the employee again refused to do so. Hubbard then told Shreve there would be no work for him and he would not be called back. Stalnaker testified that in November he went to the Respondent's office to get his last paycheck for work performed before the strike. He was accompanied by employees Hymes and Foy. Stalnaker corroborated Foy's testimony that Hubbard asked them to sign cards for the Surface Miners. According to Stalnaker, Hubbard stated that if they did the dispute would be straightened out and that they could all return to work. When the employees refused, he asked them to think about it. The following day Stalnaker had to return to the Respondent's office to get some insurance forms filled out. He was asked again by Hubbard to sign a card for the Surface Miners. Hubbard demed soliciting signatures for the Surface Miners, although he admitted that he had authorization cards in his desk. He stated, however, that he also had cards for the Mine Workers. Hubbard also acknowledged that he had a charter for the Surface Miners Union in his desk. He explained that he kept the cards and the charter in the event that employees came to him and asked to see them. Silvester, president of the Surface Miners, testified that the Surface Miners was only organized for the purposes of getting an election. The Union had no treasury, it had no offices, nor did it have any expenses or anything else normally associated with a viable labor organization. He stated that the Surface Miners received 34 signed authon- zation cards which were verified by a local judge. After completion of the card check, the Respondent recognized the Surface Miners as the collective-bargaining representa- tive of the employees. A contract was never negotiated, although the Respondent agreed to do so once the Surface Miners elected a negotiating committee. According to Silvester, a committee had never been elected and the Surface Miners had never engaged in bargaining with the Respondent. Concluding Findings The issues presented by this case are inextricably interwoven in that each of the several violations alleged bears strongly upon the other. For the sake of convenience, however, the violations will be dealt with seriatim. 1. The 8(a)(1) violations It is contended that the Respondent announced and granted the across-the-board wage increase and initiated a health and pension plan in order to discourage member- ship in the Mine Workers and to induce employees to abandon their efforts on behalf of that union. In my judgment, the record fully supports this conclusion. That the Respondent's officials were antiunion cannot be gainsaid on the basis of the record evidence in this case. The resistance of the predecessor employer, Newport, to the concept of bargaining collectively with the majority representative of its employees , as manifested by the history of the unfair labor practice case involving that corporation, was fully reflected in the policies and actions of the Respondent. Nor was this surprising as the entire managerial and supervisory staff of Newport assumed identical positions and duties with the Respondent. The record clearly shows that , after the Mine Workers officials asserted their claim as the bargaining representative and subsequently met with the employees on August 16, the Respondent immediately embarked upon a course of conduct designed to frustrate these efforts. Several days after the union officials met with the employees, Hubbard announced that the Respondent was going to grant an across-the-board wage increase immediately and would institute a health and pension program the following month. Although Hubbard sought to convey the impres- sion at the trial that the wage increase and other benefits had been decided upon earlier by the board of directors of the Respondent without regard to the advent of the Mine Workers, the evidence belies this contention . Hubbard announced at the meeting that he was aware the employees were meeting with the union officials and that he had people there reporting to him . In addition , the minutes of the board of directors reveal that the decision to grant the wage increase and the other benefits was motivated, at least in part, by a desire to equal the benefits which would have been offered under a contract with the Mine Workers. My finding in this regard is further reinforced by the fact that Supervisor Smith told the employees that the benefits were better than those offered by the Mine Workers; thereby disclosing a preoccupation on the part of the Respondent's officials and supervisors with the prospect of the employees being represented by that union. Considering all of the above factors , including the timing of the announcement of the benefits and wage increase, I find and conclude that the promise , and the granting of, these benefits was solely for the purpose of discouraging membership in the Mine Workers and was in violation of Section 8(a)(1) of the Act. Bauman Chevrolet, Inc., 190 NLRB No. 85. I further find that Hubbard's statement to the employees that he was aware that they were meeting with the union officials and that he had individuals reporting back to him created a clear impression that the employees' union activities were being kept under surveil- 15 Presumably this was in contrast to the Mine Workers where the district officers were elected on a different basis. CARBONA MINING CORPORATION lance. Creation of such an impression is clearly coercive and intimidating and was obviously intended to restrain the employees in their activities on behalf of the Mine Workers. Accordingly, I also find that by this statement the Respondent committed a further violation of Section 8(a)(1) of the Act. International Typographical Union, 183 NLRB No. 60. In addition, I find the statements of Supervisor Smith to be a further violation of Section 8(a)(1) of the Act. Smith told the employees that the benefits and the wage increase offered by the Respondent were superior to those of the Mine Workers. He stated that the employees would get plenty of overtime under the Respondent's plan, but if they were represented by the Mine Workers they would be out on strike. When Smith's comments are considered in the light of the obvious union ammus and in the context of all of the other unlawful conduct, it is clear that he was engaging in more than a prediction of consequences which were beyond the Respondent's control. Indeed, the logical inference to be drawn from his comments at this meeting is that, if the employees were represented by the Mine Workers, the Respondent would engage in reprisals which would cause the employees to suffer serious economic loss. N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618; Playtime Kiddie Wear, Inc., 184 NLRB No. 41. I find, therefore, that Smith's statements to the employees during the meeting on August 19 were coercive and violated Section 8(a)(1) of the Act. There are several other instances in which the supervi- sors of the Respondent made statements to employees which violated Section 8(a)(1) of the Act. Supervisor Phillips told employee Foy in the presence of other employees that if they wanted to keep their jobs with the Respondent they should stay away from the union hall and "keep their noses clean." Similarly, employee Stalnaker was told by Supervisor Smith that if he "kept fooling around with the union he would get branded as a trouble maker and would have a hard time finding a job." The threat implicit in these statements to the employees was clear. If they continued to engage in the activities on behalf of the Mine Workers, their means of earning a livelihood was injeopardy. Lengthy explication is unnecessary to find that such statements were, by their very nature, coercive and interfered with the right of the employees tojoin and assist the Mine Workers. Liberty Coach Company, Inc., 172 NLRB No. 154. Accordingly, I find that the statements by Phillips and Smith constituted additional violations of Section 8(a)(1) of the Act. When Hubbard told the employees on October 22 that if they did not return to work they would be fired, he committed another violation of Section 8(a)(1). He subsequently qualified this threat by telling the employees that he would consider them as having quit their jobs. But the qualification was equally as unlawful as the original threat. It is well settled that Section 7 of the Act protects an employee's right to engage in concerted activities for mutual aid or protection and to assist labor organizations. By striking in protest of the discharge of two of their coworkers, the employees were engaged in this type of protected activity. Therefore, Hubbard's threat to dis- charge the employees, or to consider them as having quit 299 their jobs, was an abridgement of a right guaranteed by statute and violated Section 8(a)(1) of the Act. Canada Dry Corporation, 154 NLRB 1763. Cf. Southern Greyhound Lines, 169 NLRB 627. There is one further violation of Section 8(a)(1) which cannot be ignored here, although it may appear that the finding is cumulative. In my judgment, these numerous instances of unlawful conduct cannot be considered in isolation. Rather they manifest an overall comprehensive effort on the part of the Respondent's management to frustrate and interfere with the right of the employees to be represented by the Mine Workers. Therefore, I find that on October 23 Supervisor Wildman's statement to employee Bennett that the Respondent would "shut down rather than go union" was an additional threat which restrained and coerced the employees in their attempt to be represented by the Mine Workers. Accordingly, this statement must also be condemned as a violation of Section 8(a)(1) of the Act. 2. The 8(a)(2) violation It is apparent, both from the testimony of the General Counsel's witnesses and from the admissions by the Respondent and its counsel, that the idea of the employees organizing into the Surface Miners originated with the Respondent. Silvester testified that he and other employees were in the Respondent's offices when the suggestion that they join the Surface Miners was made by Hubbard. In addition, the Respondent's attorney contacted the Surface Miners and secured authorization cards for the employees to sign. There are repeated instances where Hubbard sought to induce the striking employees to sign cards for that Union. Although Hubbard attempted to portray his efforts on behalf of the Surface Miners as simply one of assisting the employees to get a Board-conducted election, the evidence does not support his statement. On November 19, when the Surface Miners asked for recognition Hubbard referred them to his attorney, who made arrangements for a card check by a local judge. When it was ascertained that the Surface Miners had signatures from 34 of the Respondent's employees, the Respondent recognized this Union- as the bargaining representative of the employees. At no time, however, was a petition filed with the Board requesting an election. Furthermore, the unrefuted testimony of Silvester indicates that following recognition he met with the Respondent's attorney and there was an agreement to negotiate a contract. The only reason a contract has not been negotiated, according to Silvester, is that the Surface Miners have never elected a negotiating committee to deal with the Respondent. Thus, it is apparent that the Surface Miners only served to create an illusion that the Respondent's employees were repre- sented by a labor organization in order to frustrate the efforts of the Mine Workers. It is evident that the Respondent never intended to seek a Board election. Had this been the intent, it would have filed a petition; even though the legitimacy of the Surface Miners may have been contested by an unfair labor practice charge by the Mine Workers. Therefore, I am not persuaded on the basis of the evidence in this record that the Respondent ever intended to proceed to a Board-conducted election, or that 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this was the motivation behind its efforts on behalf of the Surface Miners. The record fully substantiates the claim of the counsel for General Counsel that the Respondent formed, assisted, and dominated the Surface Miners. The cards were supplied by the Respondent, signatures of employees were solicited by the Respondent's president-at least one employee was told he would not be recalled to work when he refused to sign the card-and a copy of the Surface Miners charter was secured by the Respondent and kept available. The Respondent's conduct in connection with the formation of this union clearly indicates that the Respondent assisted in forming, dominated, interfered with, and contributed to the support of the Surface Miners Union in violation of Section 8(a)(2) and (1) of the Act. Huberta Coal Co., Inc., and Huberta Mining Co., Inc., 168 NLRB 122, enfd. 408 F.2d 793 (C.A. 6); Playtime Kiddie Wear, Inc., supra. 3. The 8(a)(5) violation Counsel for the General Counsel advanced three separate theories which he argued support a finding of a refusal to bargain on the part of the Respondent. The foremost theory is that Carbona is the successor employer to Newport and under an affirmative duty, by way of Board order and court enforcement thereof, to bargain with the Mine Workers. As a corollary argument it is urged that the Respondent is the alter ego of Newport and subject to the same bargaining obligations. The final theory advanced is that the Mine Workers represented a majority of the Respondent's employees at the time it asked for recognition and sought to engage in collective bargaining. In view of the extensive unfair labor practices committed by the Respondent, it is urged, under the Gissel theory, that a fair election cannot be held and therefore a bargaining order should issue.16 Respondent, on the other hand, contends that it is not the successor to Newport. The Respondent argues that it is not only a different corporation, but that its method of operation and the function of the employees have materially and substantially changed so that there is no continuity in the employing enterprise. In this connection, the Respondent relies heavily on the court decision in Alamo White Truck Service. 17 In addition, the Respondent argues that the Mine Workers never represented a majority of its employees at the time of the demand for recognition and never qualified as the exclusive bargaining representa- tive. Dealing with the foremost contention of the General Counsel, I am persuaded on the basis of the facts contained in this record that the Respondent is in fact the successor to Newport. As stated by the same court that decided Alamo White, "the acquiring employer is the successor to the obligations of his predecessor if there is continuity in the business operation. `The crucial question in determining if the certification is binding on the successor employer is whether the employing industry remains essentially the same after the transfer of owner- ship.' " 18 Applying these standards to the instant case, it is evident that the Respondent continued the business operation formerly associated with Newport. All of the managerial and supervisory personnel of Newport became the mana- gerial and supervisory personnel of the Respondent. Hubbard was the president and general manager of Newport and functioned in identical positions with the Respondent. He governed and controlled the day-to-day operations of the Respondent, as he did with Newport. This included setting all of the labor policies as well as making all of the business judgments of the Respondent. When the Respondent corporation was phased into production and Newport correspondingly phased out of production, the Newport employees became employees of the Respondent without a break in their employment.19 The Respondent makes much of the fact that it is no longer engaged in a deep-mine operation but is extracting coal from the surface as a strip-mining operation. Accord- ing to the Respondent, this change in the method of extracting coal is sufficient to constitute a change in the employing enterprise. I find this contention to be without merit. It is clear that the miners who worked in the deep mine had skills which were readibly transferable to surface mining. Indeed, there is no evidence that any special training was necessary to enable them to change to the different method of mining. Zivkovitch testified that the skills used in deep mining and in strip mining were essentially the same. Thus a driller below the surface would drill in the surface in a strip-mining operation. Similarly, a "face man" who helped to prepare the face of the mine wall for blasting below the surface would work on the "high wall" used in a surface-mining operation. Likewise, pumpers were used to pump water out of the deep mine and these individuals were used to pump water on the surface. The Respondent claims that the job classifications are different in the two kinds of operations. But more important, in my judgment, is that the skills are identical and the functions of the employees did not change when they began the surface-mining operation. It is also apparent that the Respondent recognized that the employ- ee skills were basically similar and transferable as evidenced by the fact it hired the full complement of Newport employees. The mere fact that the Respondent was engaged in a surface-mining operation, as contrasted to the deep-mining operation of Newport, does not warrant the conclusion that the employing enterprise was substantially changed. Both employers were engaged in the business in extracting coal from the earth and marketing it for a profit. The same employees and supervisors were used and the same skills and functions were involved. The Respondent's reliance on Alamo White is misplaced. In that case there was a change from a large national organization to a small business with direct owner participation. Not only were the number of 16 N L R B v Gissel Packing Co, Inc, supra status in addition to 3 supervisors By June 15, the date of the complete 11 N L R B v Alamo White Truck Service, 273 F 2d 238 (C A 5) phase out of Newport's operation, all 16 of the employees and the 18 N L.R B v Zayre Corp, 424 F 2d 1159, 1162 (C A 5). supervisors were working for the Respondent The employee on layoff 19 On May 17, the day before the first group of Newport employees status went to work for the Respondent at a later date. began working for Carbona, Newport had 16 employees and I on layoff CARBONA MINING CORPORATION 301 employees reduced, but a substantial portion of the prior operation was eliminated. Moreover, the court found that the employee-employer relationship had changed material- ly with the new enterprise. There the court stated: 20 We regard the employee-employer relationship as a most important element in determining whether there is sufficient continuity between two employing enterpris- es to justify enforcing an NLRB Order against a company that was not a party to the original proceed- ing that generated the certification. It is more than evident in this case that the employee- employer relationship did not change in any respect. Hubbard was the president and general manager of the predecessor corporation and occupied that very same position and exerted the same authority with the Respon- dent. He had absolute responsibility for the day-to-day operation of the Respondent and determined its labor policies as he had with Newport. In addition, the supervisors remained the same with the sole exception that two additional supervisors were subsequently added to the staff. Further, the employees were the same and there was no hiatus in their employment between the two employing enterprises. In addition, the same vein of coal was being mined; the only difference being that under the Respon- dent the mining was performed on the surface while under Newport the mining was performed below the surface.21 It is clear from the above facts that there was no material or substantial change in the "employing industry"; either by way of the employee-employer relationship or in terms of the type of business being performed. N.L.R.B. v. Zayre Corp., supra; N.L R.B. v. McFarland, 306 F.2d 219, 220 (C.A. 10). See also Ideal Laundry Corporation, 172 NLRB 1'38. The Respondent states in its brief, and rightly so, that there is no evidence that Carbona was organized in order to avoid fulfilling Newport's obligation to bargain with the Mine Workers. There is no indication in this record that the Respondent was formed for other than legitimate business purposes. Indeed, if the contrary were so, then much of the above explication would have been unneces- sary, and I would have found that the Respondent violated Section 8(a)(5) as the alter ego of Newport. But such is not the case here. As the successor-employer to Newport, however, the Respondent has also inherited that corpora- tion's obligation to bargain with the collective-bargaining representative of the employees. Accordingly, I find that the Respondent has violated Section 8(a)(5) of the Act by failing to fulfill this obligation. Counsel for the General Counsel also advanced a theory based on the Gissel case in order to justify a bargaining order here. Although I have found and concluded that the Respondent is the successor to Newport and thereby is under a duty to bargain in good faith with the Mine Workers, I feel that it is necessary to address this theory. 20 Alamo White Truck Service, supra, 242 21 It should be noted at this point that although Hubbard claimed that the Respondent was only going to engage in surface mining, there is evidence in his affidavit that the Respondent would at some future time engage in deep mining Moreover, there is evidence that while Newport was primarily engaged in a deep-mining operation, it did perform surface mining to a limited extent 22 The cards were unequivocal designations of the Mine Workers as the Hubbard repeatedly stated that the Mine Workers did not represent a majority of his employees when they requested recognition. The officials of the Mine Workers, while not abandoning their claim that the Respondent was New- port's successor, sought to get the employees to sign authorization cards. Twenty-seven cards were properly authenticated and introduced into evidence. Of this number, 26 were executed by the employees between August 30 and October 22.22 Therefore, when the Mine Workers asked for recognition at the meeting on October 23, it was evident that they in fact did represent a majority of the employees in an appropriate unit.23 The Respon- dent's records indicate that during the months of October and November it employed 55 individuals; 5 of whom were supervisory employees. Consequently, the Mine Workers had been designated the collective-bargaining agent by a majority of the employees when it made its demands for recognition. It should also be noted that the Union repeated its claim of majority status during a meeting with the Respondent at the local courthouse on November 10 and offered to submit to a third-party card check. The Respondent rejected this offer and insisted upon an election. Since the Respondent's unfair labor practices were so extensive and pervasive and designed to completely undermine the majority status of the Mine Workers, I find that a fair election in these circumstances would have been an impossibility. Therefore, a bargaining order under the Gissel theory would be the only just and appropriate remedy were it not for the fact that I have previously found that the Respondent is the successor to Newport and its bargaining obligations. CONCLUSIONS OF LAW 1. Respondent, Carbona Mining Corporation, is an employer as defined in Section 2(2) of the Act engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Mine Workers of America and Surface Coal Miners Union of America are labor organizations within the meaning of Section 2(5) of the Act. 3. By promising and granting employees wage increases and by instituting health and pension benefits in order to discourage membership in the Mine Workers Union, the Respondent violated Section 8(a)(1) of the Act. 4. By threatening to shut down its mine operation if employees selected the Mine Workers as their bargaining representative, the Respondent violated Section 8(a)(1) of the Act. 5. By threatening employees with economic losses if they continued to engage in activities on behalf of the Mine Workers Union, the Respondent violated Section 8(a)(1) of the Act. 6. By creating an impression that the employees' union collective-bargaining representative of the signers One of the cards, signed by Foy, was executed on November 13 and is not included in this discussion for purposes of determining majority 21 It is alleged and I find the appropriate bargaining unit to be All production and maintenance employees employed at the Respon- dent's Junior, West Virginia, mine, excluding office clerical employees, guards, professional employees, and supervisors as defined in the Act 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities were being kept under surveillance, the Respon- dent committed a further violation of Section 8(a)(1) of the Act. 7. By threatening to discharge or to consider employees as having quit their jobs because they were engaged in protected concerted activity guaranteed by Section 7 of the Act, the Respondent further violated Section 8(a)(1) of the Act. 8. By initiating, assisting, sponsoring, dominating, and interfering with the Surface Coal Miners Union of America, the Respondent violated Section 8(a)(2) of the Act. 9. All production and maintenance employees em- ployed at the Respondent's Junior, West Virginia, mine; excluding office clerical employees, guards, professional employees, and supervisors as defined in the Act, consti- tute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 10. By refusing, as successor-employer to Newport Mining Corporation, to bargain with the United Mine Workers of America as the exclusive collective-bargaining representative of its employees and by refusing to bargain with that Union as the designated representative of a majority of its employees, the Respondent violated Section 8(a)(5) of the Act. 11. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend the issuance of an order that it cease and desist therefrom and that it take certain affirmative action necessary to effectuate the policies of the Act. In view of the manner in which the Respondent's unfair labor practices were committed and in view of the extensive and pervasive nature of the unlawful conduct, and further in order to prevent the commission of other unfair labor practices, I shall order the Respondent to cease and desist from infringing in any manner upon the rights guaranteed the employees in Section 7 of the Act. Barnwell Garment Company, Inc., 163 NLRB 51, 54; N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 523, 536 (C.A. 4). Having found that the Respondent initiated, assisted, and interfered with the formation of and dominated and supported the Surface Coal Mine Workers Union of America, I shall recommend that it withdraw and withhold all recognition from, and completely disestablish that Union, and any successor thereto, as the representative of its employees for the purposes of collective bargaining. Huberta Coal Co., Inc., and Huberta Mining Co., Inc., supra. Having further found that the Respondent, as the successor-employer to Newport Mining Corporation, refused to bargain collectively in good faith with the United Mine Workers of America as the exclusive bargaining representative of its employees, I shall recom- mend that it bargain with that Union, upon request, and if an understanding is reached embody said understanding in a signed agreement. Nothing herein, however, shall be construed as requiring the Respondent to abandon any employee benefits or wage increases put into effect on or after August 19, 1970. Accordingly, upon the foregoing findings of fact, and conclusions of law, and upon the entire record in this case, pursuant to Section 10(c) of the Act, I make the following recommended: ORDER 24 Respondent, Carbona Mining Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Promising and granting employees wage increases and health and pension benefits in order to discourage membership in the United Mine Workers of America, or any other labor organization. (b) Threatening to close its mining operation in Junior, West Virginia, if the employees are represented by the United Mine Workers of America. (c) Threatening employees with economic losses and other reprisals if they continue to engage in activities on behalf of the United Mine Workers of America. (d) Creating an impression that the employees' activities on behalf of the United Mine Workers of America were being kept under surveillance. (e) Threatening to discharge employees or to consider them as having quit their employment because they engage in protected concerted activities guaranteed by Section 7 of the Act. (f) Recognizing the Surface Coal Miners Union of America as the representative of its employees for the purposes of collective bargaining. (g) Refusing, as successor of Newport Mining Corpora- tion, to recognize and bargain collectively with the United Mine Workers of America as the exclusive representative of all the production and maintenance employees em- ployed at its mine located in Junior, West Virginia. (h) In any other manner interfering with, restraining, or coercing its employees in the exercise in the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Withdraw and withhold all recognition from, and completely disestablish, the Surface Coal Miners Union of America, and any successor thereto, as the representative of its employees for the purpose of collective bargaining. (b) Upon request, bargain collectively in good faith with the United Mine Workers of America as the exclusive bargaining representative of its production and mainte- nance employees and if an understanding is reached embody such understanding in a signed agreement. (c) Post at its Junior, West Virginia, place of business copies of the attached notice marked "Appendix B:125 Copies of said notice, on forms provided by the Regional 24 In the event no exceptions are filed to this recommended Order as Sec 10248 of the Rules and Regulations, be adopted by the Board and provided by Sec 102 46 of the Rules and Regulations of the National Labor become its findings, conclusions, and Order, and all objections thereto shall Relations Board, the findings, conclusions, and recommendations, and be deemed waived for all purposes recommended Order herein shall, as provided in Sec 10(c) of the Act and in 25 In the event the Board's order is enforced by a Judgment of a United CARBONA MINING CORPORATION 303 Director for Region 6, after being duly signed by the Respondent's authorized representative shall be posted immediately upon receipt thereof and 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 to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 6, in writing, within 20 days of the receipt of this decision, what steps the Respondent has taken to comply herewith.26 IT IS FURTHER ORDERED that the allegations in the complaint setting forth violations not specifically found herein be dismissed. States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 26 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 6, in writing, within 20 days of the date of this Order , what steps the Respondent has taken to comply herewith.