Pyro Mining Co.

PYRO MINING COMPANY, INC. Pyro Mining Company, Inc. and Jack Lambert Matthews. Case 9-CA-10855 November 3, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO AND MURPHY On August 12, 1977, Administrative Law Judge Michael O. Miller issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions 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 attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, to modify his remedy so that interest is to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977),1 and to adopt his recom- mended Order, as modified herein.2 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 Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, Pyro Mining Company. Inc., Sturgis, Ken- tucky, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order, as so modified: I. Substitute the following for paragraph 2(a): "Offer to Jack Lambert Matthews immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay he may have suffered as a result of the discrimination practiced against him in the manner set forth in the section of this Decision entitled 'The Remedy.' " 2. Substitute the attached notice for that of the Administrative Law Judge. i See. generally. LIis Plumbing & Heating Co., 138 NLRB 716(1962). 2 We do not adopt the Administrative Law Judge's conclusion that, during the course of this hearing, Respondent offered the discriminatee Matthews full and unconditional reinstatement to his former position and that, therefore, no reinstatement remedy is required. In our judgment, the issue was not full) nor fairly litigated and the record evidence is equivocal as to whether Respondent's offer guarantees that Matthews will receive his full seniority and other accrued benefits. Accordingly. we shall modify the Order to provide our usual reinstatement remedy. In so doing. we are not precluding the Respondent from raising and litigating this issue at the compliance stage of the proceeding. 233 NLRB No. 44 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge employees because of their union membership, activity, or support. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist the United Mine Workers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activity. WE WILL offer immediate and full reinstate- ment to Jack Lambert Matthews to his former position or, if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges previ- ously enjoyed. WE WILL make Jack Lambert Matthews whole for any loss of pay he may have suffered by reason of our discrimination against him with interest. PYRO MINING COMPANY, INC. DECISION STATEMENT OF THE CASE MICHAEL O. MILLER, Administrative Law Judge: This case was heard on April 26, 1977, at Morganfield, Kentucky, upon a charge filed on November 30, 1976, by Jack Lambert Matthews, an individual, herein referred to as Matthews, and a complaint issued on January 18, 1977, by the Regional Director for Region 9. The complaint alleged that Pyro Mining Company, Inc., herein Respon- dent, discharged Matthews because of his membership in. or activities on behalf of, the United Mine Workers of America, herein the Union, in violation of Section 8(a)(3) and (I) of the Act. Respondent denied that it had been so motivated and contended that Matthews was discharged for violation of company rules concerning absenteeism. Upon the entire record in this case, including my observation of the witnesses and their demeanor, and after due consideration of the briefs filed by Respondent and General Counsel, I make the following: 233 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. RESPONDENT'S BUSINESS AND THE UNION'S LABOR ORGANIZATION STATUS-PRELIMINARY CONCLUSIONS OF LAW Respondent is a Kentucky corporation engaged in the operation of an underground coal mine near Sturgis, Kentucky. During the past 12 months, Respondent sold and shipped directly to points outside the State of Kentucky coal valued in excess of $50,000. Respondent admits and I find and conclude that it is an employer as defined in Section 2(2) of the Act, engaged in commerce and in operations affecting commerce as defined in Section 2(6) and 2(7) of the Act. The complaint alleges, Respondent admits and I find and conclude that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Background--The Prior Cases On General Counsel's motion, official notice was taken of two prior unfair labor practice cases involving Respon- dent: Pyro Mining Company, 204 NLRB 607, 608 (1973), involved events occurring in April and May, 1972, at a time when Respondent had different owners and managers then were involved in the subsequent cases. In that case, Respondent was found to have violated Section 8(a)(1) by promulgating, maintaining and threatening to enforce an unlawfully broad no-solicitation rule, interrogating em- ployees, surveilling their union activities, and threatening them with loss of benefits, promotional opportunities, or employment. It was further found that Respondent's asserted reason for discharging three employees, alleged violations of its requirement that they furnish doctor's excuses for absences, was pretextual, that the rules were disparately applied, and that these employees and two others were discriminatorily discharged in violation of Section 8(a)(3). As noted by the Administrative Law Judge (whose Decision was adopted by the Board) in language particularly appropriate to the instant case: It is clear from the testimony . . . that there is no clearly consistent pattern in enforcement of the rule concerning excuses and it seems to have been honored more in the breach than in the observance. It is also clear that there were no clear standards concerning absenteeism prior to May 1 [1972], with [the operating manager] and his supervisors acting as they saw fit in individual cases. The second case, Pyro Mining Company, Inc., 230 NLRB 782 (1977), involved Respondent's present management, the same organizational drive as involved herein, and events much more proximate in time. Therein, the Board found that Respondent threatened employees with loss of jobs and with physical violence, interrogated employees, promised and granted them benefits to discourage union activity and discriminatorily laid off 46 employees, approx- imately one-third of its work force, in violation of Section 8(a)(l) and (3) of the Act. Among those discriminatorily laid off was Jack Lambert Matthews, the Charging Party herein. Indeed, Matthews' continued layoff in the face of overtime assignments to other employees in his classifica- tion figured prominently in the conclusion that Respon- dent's asserted economic defense was pretextual. The Decision in the latter case reflects that the organiza- tional activity involved therein had begun in April 1976.1 The unfair labor practices occurred between April and mid-July, with the discriminatory layoffs taking place between June 5 and August 10. On September 10, the Board conducted a representation election among Respon- dent's employees. The Union lost, no objections were filed, and a certification of results issued on September 20. B. Matthews' Employment History and Discharge There is no question but that Matthews had less than an exemplary attendance record. His absences, since he began working for Respondent in April 1974, were frequent, generally unreported and unexcused. Matthews main- tained no records regarding his attendance during 1974, but testified without contradiction that if he missed any time at work during that year, he neither called in beforehand nor provided a doctor's excuse afterward. During 1975, Matthews was absent from work for a total of 38 days, in 16 separate incidents of absenteeism ranging from I to 12 workdays in length. On only one occasion in 1975 did Matthews have someone call in to report that he would be absent. He never brought in a doctor's excuse. Neither was he asked for such an excuse and he was never reprimanded or disciplined for his absenteeism or for his failure to call in or provide medical support for his absences. In January 1976, Matthews worked only 3 days when he was assigned to the night shift. Because of his objection to this change, he ceased reporting to work. He told no one that he was taking off or quitting until he went to the office a week later to pick up his paycheck. At that time, he told an office employee that because of the night shift assignment he would not be coming to work. In the week before he went to the office, no representative of Respon- dent sought him out or indicated that he was to be disciplined or terminated. He returned to work, at his own request, on April 26. He was absent on May 13, for nonmedical reasons, and, on that occasion, called in to say that he would be absent. He was absent on May 24, 25, and 26 and neither called in nor provided any excuse. He was neither disciplined nor admonished. Matthews was laid off, discriminatorily, between June 5 and early August. When he returned, he wore union insignia on his person, something only a few other employees did, and had a union bumper sticker on his car. He served as one of two union observers at the NLRB election on September 10, and was the only one still employed following the election - the other voluntarily All dates hereinafter are 1976 unless otherwise specified. 234 PYRO MINING COMPANY, INC. quit. Respondent admitted knowledge of Matthews' union activity. On September 13 and 14, Matthews was out sick. On this occasion, he had his mother call in to report that he would be absent. Notwithstanding that he had called in, he was told by foreman Varney Coleman 2 that he had to have a medical excuse. He was not permitted to return to work without one. This was the first time that he had ever been asked for such an excuse. He secured the excuse and was permitted to return to work. Matthews was not absent again until October 18, when the fumes from car painting aggravated his respiratory ailment and caused him to be absent for a week. He told the two employees with whom he had been that he would probably be absent. He was under doctor's care and, when he returned, brought a doctor's excuse. When he reported, Don Hatfield, the second shift mine foreman, told him, "You're supposed to call in. You're fired.... The man tells me you don't have a job." Respondent's only witness was George W. Martin, its president. Martin denied that Matthews was discharged for his union activity. However, Martin claimed that he did not participate in Matthews' discharge, did not know who made the decision to discharge Matthews, and did not evaluate the evidence leading to Matthews' discharge. He testified that Respondent had a policy, republished in a handbook in early June, which had been announced consistently prior to that time, in regard to absenteeism. That policy purported to require employees to report for work regularly, to call in and report the reason if unable to report for work, and provided for discharge for an unexcused absence of 2 days. Martin admited that employee violations of that policy were not always punished by discharge, that usually only chronic violators were dealt with in that manner. First and second offenses were excused, as were employees who presented valid excuses for being absent. An absence wherein the employee failed to call in but produced a valid excuse upon return to work, he said, would be treated as excused. Notwithstand- ing its specific language the rule was administered by the supervisors as they saw fit. Martin testified that absentee- ism was the most common grounds for discharge. How- ever, Matthews testified, without contradiction, that viola- tions of the absenteeism policy were used to discharge employees management wanted to be rid of for other reasons. By a clear preponderance of the evidence, I find, General Counsel has established that Respondent discharged Matthews because of his union activity, in violation of Section 8(a)(3) of the Act. Matthews had engaged in overt union activities, Respondent was aware of those activities, and, as the prior cases establish, Respondent and its supervision (including at least one who supervised Mat- thews) had demonstrated animus in regard to such activities. While it is axiomatic that an employer has a legitimate interest in maintaining discipline and enforcing attendance rules, the record herein establishes a long history of virtual indifference to absenteeism and an 2 In the prior case. 230 NLRB 782. Coleman was found to have threatened an employee with loss of employment and with physical violence if the employee's union activity continued and to have created an essentially arbitrary enforcement of attendance, call-in, and medical excuse rules. In this respect, notwithstanding changes in ownership and management, little has changed at Pyro Mining since the initial unfair labor practices in 1972. The lack of enforcement of its rules as to Matthews prior to the advent of the union activity, when compared with the alacrity with which it punished Matthews following his overt union activities is, I find, persuasive evidence that Respondent was principally motivated by those union activities. Moreover, I note that while Matthews, prior to his union activities, had been in gross violation of Respondent's alleged policies on absenteeism without adverse impact upon his employment, he had attempted to comply with those policies following his return to work after the discriminatory layoff. Thus, in his first absence, he had his mother call in to report his absence. That did not satisfy Respondent and he was sent home for a doctor's excuse. In his second absence, he asked that fellow employees report that he would be absent and brought a doctor's excuse. He was discharged nonetheless, upon the purported grounds that he had not called in. The disparity of Respondent's conduct, and its strained effort to find Matthews in violation of its rules, is apparent. Finally, in agreement with General Counsel, I deem it significant that Respondent adduced the testimony of no witness who was involved in, or knowledgeable in regard to, the reasons for Matthews' discharge. An inference, adverse to Respondent, is warranted in the circumstances present here. As was stated by the Administrative Law Judge in Fred Stark and Jamaica 201 St. Corp., Inc., 213 NLRB 209, 214 (1974): [W]here [as here] the General Counsel presents evidence which, if accepted, establishes a material fact, the failure of a respondent to produce evidence, including testimony, in its possession or control with respect to the existence or nonexistence of the fact, is a relevant consideration in determining whether to find the fact. General Counsel's evidence established Respondent's unlawful motivation. That evidence is supported by the inference warranted from Respondent's failure to adduce witnesses in possession of evidence concerning any con- trary motivation. CONCLUSIONS OF LAW I. By discharging Jack Lambert Matthews because of his union activity, membership or support, Respondent has violated § 8(a)(3) and (1) of the Act. 2. The unfair labor practice described above is an unfair labor practice affecting commerce within the meaning of § 2(6) and (7) of the Act. impression of surveillance of union activity, all in violation of Section 8(ax I). 235 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY It having been found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. In the course of the hearing, without admitting its liability, Respondent unconditionally offered Matthews reinstatement to his former position, without backpay. The record does not reflect whether Matthews accepted that offer. In view of the finding that Respondent discriminato- rily discharged Matthews on October 25, 1976, and unconditionally offered him reinstatement on April 26, 1977, it is recommended that Respondent be required to make Matthews whole for any loss he may have suffered by reason of the discrimination against him. Any backpay found to be due shall be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). "A violation of Section 8(a)(3) goes to the very heart of the Act." It therefore warrants that Respondent be further required to cease and desist from infringing in any other manner upon the rights guaranteed employees by Section 7 of the Act. Pan American Exterminating Co., 206 NLRB 298, fn. 1 (1973); Entwistle Manufacturing Company, 23 NLRB 1058 (1940), enfd. as modified 120 F.2d 532 (C.A. 4, 1941). Upon the basis of the entire record, findings of fact, and conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 3 The Respondent, Pyro Mining Company, Inc., Sturgis, Kentucky, its officers, agents, successors, and assigns, shall: 3 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 bfor all purposes. 1. Cease and desist from: (a) Discharging employees because of their union membership, activity, or support. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self- organization, to form, join, or assist the United Mine Workers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Make Jack Lambert Matthews whole for any loss of pay he may have suffered by reason of the discrimination against him, in the manner set forth in the section of this decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its mine copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms 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. (d) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps the Respon- dent has taken to comply herewith. I In the event that this 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." 236