Peaker Run Coal Co.

PEAKER RUN COAL COMPANY 93 Beasley Energy, Inc., d/b/a Peaker Run Coal Compa- ny, Ohio Division # 1 and United Mine Workers of America. Case 9-CA-9101 February 10, 1977 DECISION AND ORDER On October 6, 1975, Administrative Law Judge Elbert D. Gadsen issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. 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 and to adopt his recommended Order as modified herein. The Bargaining Order The Administrative Law Judge found, and we agree, that as of December 1, 1974, the Union had valid authorization cards signed by 15 of Respon- dent's 26 employees. The Administrative Law Judge further found, and we agree, that the nature and pervasiveness of the Respondent's unfair labor prac- tices have prevented the holding of a fair election and that a bargaining order is warranted to best protect the employees' rights. Contrary to the Administrative Law Judge, how- ever, and in accordance with our decision in Trading Port, Inc., 219 NLRB 298 (1975), we conclude that Respondent should be required to recognize and bargain upon request with the Union as of December 3, 1974, the date Respondent unlawfully interrogated employee Dallas Short and thereby embarked on its course of unlawful conduct which prevented the determination of the Union's majority status by a fair election. The Board's remedial objective of effectuat- ing employee rights is to restore the situation, to the extent feasible, to the state that would have existed had the employer refrained from its unlawful course of conduct. In cases of this type, a bargaining order is warranted to correct and give redress for an employ- er's misconduct in seeking to undermine a union's majority status. In the absence of employer miscon- duct and in view of the fact that the union had attained majority status, it is reasonable to assume that the union would have become the collective- bargaining representative were it not for the employ- er's unlawful conduct. The date upon which the 1 To the extent that we are unable to ascertain exactly when the union would have become the collective-bargaining representative of the employ- ees concerned, it is the employer's own misconduct which has effected such a result. 2 Member Walther's views are in large part set forth at length in his opinion in Drug Package Company, Inc., 228 NLRB 108 (1977). 3 We are not concerned with this category in this proceeding, nor with 228 NLRB No. 16 union would have achieved such representative status cannot now be ascertained with precision. However, we have concluded that the date which most nearly approximates that date in time and propriety, and which is ascertainable with reasonable certainty, is the date on which the employer embarked on its unlawful antiunion campaign and thereby, through its misconduct, precluded any determination of the employees' desires by a free and fair election.' Unless the employer is ordered to bargain as of this date, the parties cannot be returned to the status that would have obtained but for the employer's unlawful campaign. Accordingly, we shall order Respondent to presently bargain, upon request, concerning any term and condition of employment, or change thereof, as to which it would have been required to bargain had the Union become the bargaining representative on December 3, 1974. Although agreeing that a bargaining order is warranted in this case, Members Fanning and Walther2 would issue a bargaining order which is prospective only since, in their view, we are precluded from issuing a bargaining order which has retroactive application where, as here, the union has not made a bargaining demand. We disagree. See Baker Machine & Gear, Inc., 220 NLRB 194 (1975). In N.-L.RB. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969), the Supreme Court approved the Board's use of bargaining orders to remedy an employer's inde- pendent 8(a)(1), (2), or (3) violations which under- mined a union's majority status and fatally impeded the holding of a fair election. In doing so, the Court depicted two situations in which such orders could appropriately be given. The first involves unfair labor practices which are so "outrageous" and "pervasive" that traditional remedies cannot erase their coercive effect, with the result that a fair election is rendered impossible.3 In this connection the Court noted that the Board itself had a "similar policy of issuing a bargaining order, in the absence of an 8(a)(5) violation or even a bargaining demand, when that was the only available effective remedy for substan- tial unfair labor pratices. "4 The second, or intermedi- ate type situation-and the one involved here and in the vast majority of our cases thus far in which we have given bargaining orders under Gissel-is de- scribed by the Court as follows at 614-615: The only effect of our holding here is to approve the Board's use of the bargaining order in less whether, because of the seventy of the misconduct, a bargaining order may be appropriate notwithstanding the absence of a showing of majority status. 4 Gissel Packing, 395 U.S. at 614. The Court, however, failed to point out that this policy of the Board related only to the issuance of a bargaining order where no 8(aX5) violation was involved, but a majority standing had at one time been attained by the union involved. 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD extraordinary cases marked by less pervasive prac- tices which nonetheless still have the tendency to undermine majority strength and impede the election processes. The Board's authority to issue such an order on a lesser showing of employer misconduct is appropriate, we should reemphasize, where there is also a showing that at one point the union had a majority; in such a case, of course, effectuating ascertainable employee free choice becomes as important a goal as deterring employ- er misbehavior. In fashioning a remedy in the exercise of its discretion, then, the Board can properly take into consideration the extensiveness of an employer's unfair practices in terms of their past effect on election conditions and the likeli- hood of their recurrence in the future. If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight, and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue. [Emphasis supplied.] Nowhere in describing this category does the Court mention the terms "demand," "refusal to bargain," or "8(a)(5)." Indeed, the Court's language above, in particular "[t]he only effect of our holding here," makes plain that it was extending the right to the Board to give bargaining orders in cases where the unfair labor practices were "less pervasive" than in the first or extreme situation but "nonetheless still" had "the tendency to undermine majority strength and impede the election processes." It is clear, therefore, that the essence of what was considered by the Court in Gissel was the scope of the Board's remedial authority in the two types of situations described above. (A third type, where the violations are insufficient to warrant a bargaining order as a remedy, obviously has no relevance here.) 5 395 U.S. at 612. 6 To preclude, as our dissenting colleagues would, the type of remedy we have found necessary simply because the Union did not request recognition is to condition the issuance of an adequate remedy for employer misconduct on a requirement that the Union engage in what is surely, in this context, a futile act. An employer who engages in misconduct in an effort to undernune the union cannot reasonably be expected to grant recognition and bargain when such a demand is presented. I We are perplexed by Member Walther'S argument in Drug Package, supra, that, under Gissel, 8(a)(1) and (5) bargaining orders are not "fungible" but "entirely different remedies designed to accomplish entirely different goals." The distinction that he would have us draw , namely, that "8(ax5) bargaining orders are intended to effectuate ascertainable employee free choice" while 8(a)(1) bargaining orders are meant as a deterrent to employer misconduct, is based upon a misreading of Grssel. Thus, in discussing "category two" cases, the Court stated, "in such a case , of course, effectuating ascertainable employee free choice becomes as important a goal as deterring employer misbehavior." 395 U.S. at 614. This language plainly indicates that bargaining orders serve both purposes referred to by Member Walther and, as noted above in this opinion, the Court drew no distinction It is equally clear that the Court was not primarily concerned with the need to remedy an employer's mere refusal to bargain in either situation, for there is nothing in that act alone which precludes the holding of a fair election nor imposes a bargaining order. Furthermore, the Court stated elsewhere in Gissel that "perhaps the only fair way to effectuate employ- ee rights is to re-establish the conditions as they existed before the employer's unlawful campaign," 5 by means of a bargaining order. Thus, we conclude that the Court in Gissel indicat- ed approval of issuance of bargaining orders which had retroactive application without indicating that a demand for bargaining was a necessary prerequisite for the issuance of any such orders .6 Since the analysis of whether an employer's misconduct is so serious as to preclude the holding of a fair election is not affected by the presence or absence of a bargain- ing demand, we do not find the existence of such a demand to be determinative as to the nature or extent of the remedial bargaining order which should be granted.? The fashioning of an appropriate remedy is a matter for the Board to determine within the limits of its authority. In the exercise of its remedial discretion, the Board, prior to Trading Port, in the Steel-Fabs line of cases, held that an employer's substantial 8(a)(1) violations were fully remedied by the issuance of a prospective bargaining order. In Trading Port, the Board recognized that such an order frequently did not constitute a full and fair remedy for an employer's misconduct. In some instances, a bargain- ing order effective only from the date of the Board's decision left unremedied an employer's unilateral changes in working conditions made after a union had established its majority status. (See, e.g., Elm Hill Meats of Owensboro, Inc., Elm Hill Meats, Inc., Baltz Brothers Packing Company, 213 NLRB 874 (1974).) This led to the unwanted result that an employer, by committing serious unfair labor practices, could between "8(a)(5)" and "8(a)(1)" bargaining orders. Moreover, the distinction he makes is one without a difference . In both situations, employer misconduct precluding reliance on the Board's election processes is a necessary predicate to invoke the bargaining order , since, even with a demand and a majority, the Board with approval of the Supreme Court holds that an employer need not bargain until an election has demonstrated that a union has majority status. Linden Lumber Division, Summer & Co. v. N.LR B, 419 U.S. 301 (1974). In both cases, the bargaining order is deemed warranted because traditional remedies for the 8 (a)(l) conduct are insuffi- cient to reinstate the situation as it would have been had the employer `obeyed the law." In both instances, the Board finds the bargaining order is a necessary remedy (read also as "deterrent"). In both, the result has the same effect of installing a union as the collective-bargaining representative of an employer's employees, thereby imposing upon the parties all the obligations and rights inherent in an initial bargaining relationship. In short, under either bargaining order, "employee free choice" effectively is ascertained-or determined-or protected. Hence, to paraphrase Gertrude Stem , we con- clude that "a bargaining order is a bargaining order is a bargaining order." 8 Steel-Fab, Inc., 212 NLRB 363 (1974). PEAKER RUN COAL COMPANY 95 delay the holding of an election indefinitely (since a fair election could no longer be held) and insure to himself a substantial period of time until the Board issued a remedial bargaining order, during which period he would not have to deal with a union. Since an employer, by such conduct, not only precluded the holding of a fair election, but reaped the additional benefit of insuring itself the freedom to impose unilateral changes unhampered by union "interfer- ence," the Board's prospective bargaining order fell short of reestablishing the conditions as they existed before the employer's unlawful campaign. We thus concluded in Trading Port that the fashioning of a full and fair remedy which most nearly restored the status quo ante required the issuance of a bargaining order which commenced as of the time the employer embarked on a clear course of unlawful conduct or engaged in sufficient unfair labor practices to under- mine the union's majority status.9 Member Walther, however, accuses us of taking a legally impossible position inasmuch as he asserts that we have, by the remedy we propose herein, created a bargaining obligation where none existed. Thus, he argues that, since the Board lacks statutory power to require an employer to bargain subsequent- ly with respect to unilateral action which it took at a time when it was perfectly lawful to do so, by imposing such a remedy we have in effect made an 8(a)(5) finding sub silentio. This is simply not true. We recognize that one of the elements necessary to find an 8(a)(5) violation, i.e., a demand, is absent. We further recognize that the remedy imposed herein, except for the absence of any cease-and-desist provisions, is the same remedy which we would have imposed had Respondent violated that section of the Act. This identity of remedy, however, stems not from an identity of violation, but only from the fact that, as discussed supra, full and fair remedy for Respondent's 8(a)(1) and (3) misconduct herein requires the imposition of a bargaining obligation retroactive at least to the date of the beginning of the misconduct which made a fair election impossible or unlikely, no less than Respondent's refusal to bargain would have required. It does not, as Member Walther argues, demonstrate that we are finding a violation of Section 8(a)(5). Member Walther further asserts that the bargaining order remedy herein represents an unwarranted 9 Therefore we cannot agree with Member Walther's view that traditional 8(axl), (2), (3), and (4) remedies have historically proven effective in rectifying employer misconduct. Nor can we agree that it is unnecessary to impose a retroactive bargaining order remedy in the instant case on the grounds that the only unilateral change which occurred (the December 10 wage increase) is independently violative of Sec. 8(a)(1) and thus fully remedied The bargaining order remedy proposed herein is directed not merely to the December 10 wage increase, but is in addition directed to any other unilateral changes in terms and conditions of employment which extension of Trading Port inasmuch as the Board's order therein was based on an 8(a)(5) violation. It is true that we there found that the Respondent had violated Section 8(a)(5) because all the elements of such a violation were present. A close reading of Trading Port makes it clear, however, that even in the absence of such a violation we would have issued the same bargaining order but as of an earlier date. Thus, the Board was careful to point out that the respon- dent therein had embarked on a clear course of unlawful conduct which reasonably could be deemed to have undermined the union's majority status and to have prevented the holding of the election as of September 1 when the employer committed its initial violation of Section 8(a)(1) of the Act. True, the bargaining order was dated as of September 4, the date of demand for recognition. However, as stated by the Board in Trading Port, since all violations prior to September 4 were otherwise individually remedied by the Board's order, it was unnecessary to date the bargaining order as of September 1 in order to fully remedy the employer's misconduct. Had the viola- tions committed in the period September 1-4 not been otherwise fully remedied, we would have applied the bargaining obligation from the earlier date. Consequently, it is clear that the Board set the date of the bargaining order in Trading Port from September 4 simply to correspond with the 8(a)(5) violation found thereafter. Implicit in Member Walther's argument appears to be the contention that, in the absence of a demand, an employer is never placed on notice that a majority of his employees may have designated a labor organization to represent them, and thus continues to conduct his business unilaterally as he is legally required to do in the absence of majority support for the union. But an employer who engages in an illegal campaign designed to undermine a union surely has reason to believe that the union had, or is likely to obtain, substantial strength, including a majority. Absent such a belief, there is no compelling motiva- tion for such misconduct. To the extent the employer may be unaware or uncertain that the union has attained majority status, that lack of knowledge or certainty results primarily from his own misconduct which has precluded the union from freely establish- ing its representative status via the election route.10 Similarly, to the extent that the employer's unlawful Respondent may have instituted subsequent to the unfair labor practices herein. As to these acts, a retroactive bargaining order remedy is not superfluous. Member Jenkins notes that, if it is necessary to correct breaches of the bargaining obligations or other misconduct , he would date the bargaining obligation from whatever date is necessary to remedy the conduct. 10 Member Walther contends, however , that such a bargaining obligation would not, in any event, have arisen prior to the results of the scheduled January 31 election. He thus argues that to require the Respondent herein to (Continued) DECISIONS OF NATIONAL LABOR RELATIONS BOARD conduct may have the desired adverse effect on employee support for the union, thereby causing the latter to forgo the formality of requesting recognition, or may lead the union to believe that making such a request would constitute a useless act, the employer has no one to blame but himself for not being placed on notice that his employees may have designated a labor organization to represent them. In all cases, the employer must suffer the consequences of his unlaw- ful conduct and cannot be heard to complain that he did not know that the union had achieved majority support because the union did not tell him so. In other words, the employer acted at his peril when he embarked on his course of unfair labor practices and should not be permitted to assert his unlawful actions as a defense to when the remedial bargaining order should attach. A demand made by a union enjoying majority status does not impose upon an employer an obliga- tion to recognize a union.l l The employer may ignore it or reject it without a reason so long as the employer does not engage in unfair labor practices which rise to the level suggested by the Court in Gissel. Then, and only then, as in cases where no demand has been made, is a bargaining obligation imposed on the employer by the Board as a remedy therefor. Again, the conclusion is inescapable: the demand is not a factor entering into the determination of whether a bargaining order should issue. To belabor the point further, the demand becomes operative in the Gissel process only as an element for finding, remedying, and enjoining the recurrence of an 8(a)(5) violation and in the context of fixing the date on which the bargaining obligation in accord with that finding commences, where all other violations are fully remedied. Finally, Member Walther suggests that the remedy we are imposing here is punitive in nature because of its "retroactivity." Yet he is willing to impose such a remedy where the additional element of a demand is present. We fail to see how the presence or absence of a bargaining demand renders the essentially identical remedy punitive.12 As the Board stated in Baker Machine & Gear, Inc., 220 NLRB 194, 195 (1975): No element of retroactivity is present in impos- ing the bargaining obligation as of the time the employer began his subversion of the statute. No new law or rule is being enacted governing conduct or relations previously not subject to the law. Instead, the remedy we impose does no more than reach all the unlawful actions committed, whether early or late in the course of the miscon- duct. The only element of retroactivity is that the misconduct being remedied occurred prior to issuance of the complaint and our consideration of the case; but this is the situation in every civil or criminal case where a wrong is remedied, for the remedy can be applied only after the wrong has been committed. That was the unstated principle behind the majority's decision in Trading Port; to provide for a collective- bargaining remedy from the first instance of miscon- duct which disrupted the election process. That is the full meaning of Trading Port, not the more narrow one that Member Walther, who says he adheres to that decision, and Member Fanning, who concurred therein, would read into it. 13 bargain over any changes in terms and conditions of employment from December forward (some 2 months prior to the scheduled election date) does not return the parties to the status that would have obtained "but for the unfair labor practices," but accords the Union an additional and unwarrant- ed bargaining advantage . Initially, we note that Member Walther's argument is equally applicable in the Gissel 8(aX5) situation (since, absent employer unfair labor practices, no bargaining obligation would have attached unless and until the Union was certified as the collective-bargaining representative following a Board-conducted election); yet we do not understand Member Walther to argue that in such situations it is more appropriate to date the bargaining order from the date of any scheduled Board election rather than the date of demand Furthermore, while it is true that in many cases an election will have been scheduled, it is equally true that in many cases the employer's unlawful campaign will result in no steps having been taken in this direction. We see no reason why the same unlawful conduct should be remedied differently merely on the basis of whether an election date has been scheduled or not Accordingly, we conclude that all such remedial bargaining orders should be applied uniformly ii Linden Lumber Division, Summer& Co v N.LR B, supra 12 In support of his contention, Member Walther poses the following situation as an example - employees of an employer commence an organiza- tional drive at a time when the employer is expenencing economic reversals. The employer responds to the dove with 8(axl) violations Before the union makes a demand, the employer, without unlawful motive, institutes an economic layoff. Member Walther contends that by retroactively applying the bargaining order to the date of the initial 8(a)(l) violation the Board requires the employer not only to bargain over the decision and effects of the layoff, but subjects the employer to backpay liability as well. This, according to our colleague, is punitive inasmuch as it goes beyond the status quo to impose additional bargaining and financial obligations. However, to require an employer to bargain as to the decision and effects of an economic layoff goes no further than to restore the status quo since at the time such a unilateral change was undertaken the union would, in all likelihood, have been installed as the collective -bargaining representative had the employer refrained from its unfair labor practices 13 Indeed, we are puzzled by Member Fanning's limiting the bargaining order's application prospectively, since as he stated in his concumng and dissenting opinion in Steel-Fab, supra at 369: It should not require saying that every order of this Board finding a violation of the Act is retroactive and the remedy applies as of the date of the finding of the original unfair labor practice No one knows that an employer has violated Section 8(a)(3) on the date an employee is discharged until the Board and the courts make that decision. No one knows that an employer has engaged in bad-faith bargaining in violation of Section 8(aX5) or has violated that section of the Act even after refusing to bargain with a certified union until the Board and ultimately the courts speak . Every union and every employer acts at its peril by engaging in conduct that may subsequently be the subject of an unfair labor practice charge This has always been the law . . . [Hoowever viewed, this Employer . . is hardly an innocent and unsophisticated participant in unfair labor practices To suggest that it is somehow PEAKER RUN COAL COMPANY 97 In summary, the Board is unanimous in agreeing that Respondent, by its misconduct, has incurred some obligation to bargain. However, we differ from our dissenting colleagues as to the nature of the obligation to be imposed. They would find that, in the absence of a violation of Section 8(a)(5), the obliga- tion extends only as to future events. We conclude that it is within our remedial authority to require an employer to bargain as of the date it embarks on an unlawful course of conduct which fatally impedes the holding of a fair election. While we will not hesitate to find that an employer also violates Section 8(a)(5) of the Act where all the elements of such a violation are present, we do not believe that the issuance of a bargaining order dated from the time the employer embarks on its unlawful course of conduct is preclud- ed by the absence of such a violation. We further find that a bargaining order which requires Respondent to presently bargain, upon request, concerning any term or condition of employment, or change thereof, as to which it would have been required to bargain had the Union become the bargaining representative as of December 3, 1974, is necessary to remedy the violations we have found herein. 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 and hereby orders that the Respondent, Beasley Energy, Inc., d/b/a Peaker Run Coal Company, Ohio Divi- sion # 1, Lawrence and Gallia Counties, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. MEMBER FANNING, concurring in part: I concur in the majority's affirmance of the Administrative Law Judge's Decision and in the finding that a bargaining order is warranted as a remedy for the violations found. N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). I do not concur, however, in the majoritys extend- ed discussion of why "a bargaining order which requires Respondent to presently bargain, upon request, concerning any term or condition of employ- ment, or change thereof, as to which it would have been required to bargain had the Union become the bargaining representative as of December 3, 1974, is necessary to remedy the violations we have found herein." Whether or not Respondent should now be required to bargain over actions and decisions concerning its employees' wages, hours, and working conditions taken at that time of course depends on whether its failure to bargain concerning them was an unfair labor practice. Although there is language in the majority opinion which suggests the Respondent's failure to bargain in 1974, though never requested to, violated Section 8(a)(5) or (1), one searches in vain for an actual finding of such a violation. Were such a finding supported by the record, I am sure my colleagues would join me in so finding. I am equally sure that then my colleagues would join me in ordering, inter alia, that Respondent cease and desist from so refusing to bargain collectively. In such circumstances, a Board order, combining the cease- and-desist provision and the affirmative bargaining provision (prospective in nature) would reach all matters with respect to which Respondent is obligat- ed to bargain upon request, including those matters as to which it had been unlawfully refusing to bargain. The majonty does not include a cease-and- desist provision as to any violation of the bargaining obligation because it has made no finding of such a violation. As no such violation has been found, I am satisfied that the order recommended by the Admin- istrative Law Judge is both necessary and sufficient to remedy the unfair labor practices found and I adopt it as my own,14 noting with some wonderment that, after all this time, that is precisely what my colleagues of the majonty have done. MEMBER WALTHER, concurring in part and dissenting in part: I agree with the findings of my colleagues including their finding that a bargaining order is necessary to remedy Respondent's unfair labor practices. How- ever, in the absence of an 8(a)(5) violation, I do not agree with the majority's retroactive application of the bargaining order to December 3, 1974. In agreement with Member Fanning and in accordance with my separate opinion in Drug Package Company, Inc., 228 NLRB 108 (1977), I would issue a prospective bargaining order as a remedy for Respon- dent's extensive and pervasive unfair labor practices which have clearly foreclosed the possibility of any free and fair Board election. In order to properly analyze the remedial order issued by the majority, it is necessary to summarize briefly the facts upon which it is predicated. On November 27, 1974, Respondent received a telegram from the Union advising that it was "initiating an organizing drive among the employees at your mine. ..." According to the Administrative Law Judge, by December 1 the Union had received authorization cards from a majority of Respondent's employees. unfair to find the Respondent in violation of [the Act] and to insist that 14 See also my separate opinions in Hombre Hombre Enterprises, Inc, a remedy for such a violation apply only as of the date of the d/b/a Panchtto's, 228 NLRB 136 (1977), and Drug Package Company, Board's Order finding an unfair labor practice is sheer nonsense Inc, 228 NLRB 108 (1977) 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is no evidence indicating that the Union or anyone else notified Respondent that a majority of its employees had signed cards, nor any evidence that there was a demand for recognition. Instead, the Union opted to file a representation petition which resulted in the scheduling of an election for January 31, 1975. Respondent's initial reaction to the organizing drive was an unlawful supervisory interrogation and threat directed at employee Short on December 3. One week later, on December 10, Vice President Elder addressed the employees at a meeting during the course of which he also made unlawful threats and consented to an increase in wages. Finally, during a social occasion given by Respondent for the employees in mid-January 1975, threats of more onerous working conditions should the Union win the forthcoming election were made. When the Union filed the instant unfair labor practice charges on the day before the election, the election was postponed indefinitely. It is important to note at this point the theory on which this case was litigated. Both the unfair labor practice charge and the complaint cited Respondent's conduct as a violation of Section 8(a)(1) alone.15 The interrogations and threats could obviously only constitute 8(a)(1) violations, and the unilateral in- crease in wages was found by the Administrative Law Judge to be unlawful because it was granted "as an effort to discourage union activity in violation of Section 8(a)(1) of the Act." At no point during this entire proceeding has Respondent been charged, alleged, or found to have unlawfully refused to bargain with the Union as required by Section 8(a)(5). At no point, that is, until today. For when the rationale of the majority's opinion and the require- ments of their Order are compared with the Decision of the Administrative Law Judge which they purport to adopt, it is evident that they are, sub silentio, making an 8(a)(5) finding. In retroactively applying the bargaining order to December 3, my colleagues claim to be "[restoring] the situation, to the extent feasible, to the state that would have existed had the employer refrained from its unlawful course of conduct." They reason that in the absence of Respondent's unlawful conduct it is "reasonable to assume" that the Union would have become the employees' bargaining representative, and that while admittedly the date when such representation would commence "cannot now be ascertained with precision," the date of the initial unfair labor practice "most nearly approximates that date in time and propriety." Accordingly, the majori- ty concludes that only by finding a bargaining obligation as of December 3, 1974, can the parties "be returned to the status that would have obtained but for the employer's unlawful campaign." I disagree. First, had Respondent refrained from unlawful conduct, it is "reasonable to assume" that there would have been no unfair labor practice charges filed and the parties would have followed through with the election scheduled for January 31. If the Union won the election (which my colleagues appar- ently assume is a foregone conclusion), then a bargaining obligation would indeed have attached; but this would have occurred in February 1975 at the earliest-not 2 months earlier, in December. Even more troublesome, however, is the premise upon which the majority's remedy is constructed. That premise is that a bargaining obligation must be created as of December 3 before the parties are "returned to the status that would have obtained" but for the unfair labor practices. The problem with this position is that nobody-including the Union and the General Counsel-has ever asserted that such a bargaining obligation ever existed, even in the face of the unfair labor practices. Thus, in the guise of restoring the status quo, the majority is going beyond what in fact was the situation and is creating a heretofore nonexistent and legally impossible16 bar- gaining obligation. An examination of Respondent's conduct will illustrate what I mean. The December 3 interrogation and threats involving employee Short are obviously not appropriate subjects for bargaining and thus not properly remedied by a bargaining order. Such violations are fully remedied through our normal 8(a)(1) cease-and-desist provisions. The same, of course, is true of Vice President Elder's threats made during the course of the December 10 meeting and mid-January social event. I do not understand my colleagues to be arguing that Respondent should now bargain over such interrogations and threats. This being the case, the retroactive bargaining order of necessity must be directed at the December 10 wage increase because this is the only other unlawful conduct found. 15 The unfair labor practice charge stated- Since on or about December 1, 1974, and at all times thereafter, the above-named employer, by its officers, agents, and representatives, has by interrogation, threats, promises of benefits and surveillance and other acts and conduct , interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act After enunciating Respondent's conduct, the complaint alleged. By the acts and conduct alleged above, Respondent has engaged in, and is engaging in, unfair labor practices in violation of Section 8(a)(l) of the Act, affecting commerce as defined in Section 2(6) and (7) of the Act 16 As noted, no 8(a)(5) violation was alleged in the complaint, and in the absence of a demand for recognition it is clear that the record would not support such a violation even if alleged. PEAKER RUN COAL COMPANY The wage increase was indeed found unlawful, but it was unlawful because, in the words of the Adminis- trative Law Judge, it was "an effort to discourage union activity"-not because Respondent was failing to honor a bargaining obligation which it owed to the Union.17 By now requiring Respondent to bargain over the wage increase, the majority is ex post facto creating an 8(a)(5) bargaining obligation and apply- ing an 8(a)(5) remedy to an 8(a)(1) violation. While the Board's remedial authority may be broad, I doubt that it extends this far. The situation would be entirely different, of course, were the prerequisites to an 8(a)(5) violation present here. The Board has long held, with Supreme Court approval,18 that Section 8(a)(5) is violated whenever a union has attained majority status and the employer nevertheless, upon demand, refuses to bargain while at the same time committing serious unfair labor practices which thereafter prevent the holding of a free and fair election. Thus, had the prerequisites to an 8(a)(5) violation been present here-which they are not in view of the Union's failure to request recognition-then the Board's decision in Trading Port, Inc., 219 NLRB 298 (1975), would have dictated both an 8(a)(5) violation and a bargaining order as of December 3, 1975. In that situation a retroactive bargaining order would be both logical and appropri- ate because there would have been an underlying 8(a)(5) violation to support it-the bargaining order would, in effect, be requiring Respondent to fulfill a statutory bargaining obligation which it had thus far refused to fulfill. 19 While I may disagree with my colleagues' conclu- sion regarding the timing of a bargaining order, I do not dispute their conclusion regarding the necessity for one. I quite agree that, given the scope and nature of the unlawful conduct found, the possibility of a free and fair election is slight; and, given the fact that at one time the Union enjoyed majority support, the policies of the Act will be,best effectuated through the issuance of a prospective bargaining order rather than through the direction of a new election.20 Thus I agree with the majority that "a bargaining order is a 17 Indeed, the Union had never even claimed a right to bargain over this or any other subject Thus, the violation found is fully remedied by our normal 8 (a)(I) remedies 18 N LR B v Gissel Packing Co, Inc, et a!, 395 U.S. 575 (1969); NLRB v Benne Katz, etc, d/b/a Williamsburg Steel Products Co, 369 U.S 736, 748, fn 16 (1962), N L R B v P Lorillard Company, 314 U S 512 (1942). 19 In arguing that a request for recognition would have been futile given Respondent's subsequent conduct, the majority obviously fails to under- stand the purpose behind such a request in cases such as these The demand for recognition is not required on the theory that a union must exhaust all avenues of redress before turning to the Board , but rather because such a request is an indispensable element of an 8(a)(5) refusal to bargain, and without an 8(aX5) finding the retroactive application ofa bargaining order is improper 20 For a more detailed analysis of why I think prospective bargaining orders are an appropriate remedy for senous 8(a)(I) violations, see my separate opinion in Drug Package Company, Inc, supra 99 bargaining order is a bargaining order" insofar as the prerequisites for issuance and the legal obligations imposed thereby are concerned. I do not agree, however, that such an Order-in the guise of remedy- ing 8(a)(1) violations-can be applied retroactively so as to create a bargaining obligation as of a date when one could not possibly have existed. For the foregoing reasons, I would adopt the Administrative Law Judge's Decision and recom- mended Order in its entirety. DECISION STATEMENT OF THE CASE ELBERT D. GADSDEN, Administrative Law Judge: Upon a charge filed on January 30, 1975, by the United Mine Workers of America (UMW), herein called the Union, an original and an amended complaint were issued on March 27, and May 15, 1975, respectively, against Beasley Energy, Inc., d/b/a Peaker Run Coal Company, herein called Respondent. The complaint alleged that Respondent en- gaged in specific coercive and threatening conduct in violation of Section 8(a)(l) of the National Labor Relations Act, as amended, herein called the Act; and that such conduct was-so serious and substantial in character and effect as to warrant the entry of a remedial order requiring Respondent to recognize and bargain with the Union. Respondent filed an answer and an amended answer on May 12 and July 9, 1975, respectively, denying the allegations heretofore described in the complaint. The hearing in the above matter was held before me in Gallipolis, Ohio, on August 5, 1975. Briefs have been received from counsel for the General Counsel and counsel for Respondent, respectively, and have been carefully considered. Upon the entire record in this case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent is now and has been at all times material herein, a corporation organized under and existing by virtue of the laws of the State of Ohio, maintaining places of business operation in Lawrence and Gallia Counties, Ohio, the only locations involved herein, where it is engaged in the mining and sale of coal from its mining operation. During the 12 months preceding the issuance of the complaint herein, a representative period, Respondent had a direct outflow into interstate commerce of coal valued in excess of $50,000 which it sold and caused to be shipped directly from points located within the State of Ohio to points located outside the State of Ohio. The complaint alleges, the answer admits, and I find Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that United Mine Workers of America (UMW), herein called' 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union, is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Peaker Run Coal Company is a wholly owned subsidiary of Beasley Industries, Inc., which is composed of Beasley Energy, Inc., and Beasley Investments and Service Ware- house, Inc. Peaker Run Coal Company is a separate corporation which was owned by a major shareholder of Beasley Industries, privately held until December 1970. At that time, Peaker Run Coal Company and Beasley Invest- ments, which is a real estate investment company, was acquired through a stock exchange and Beasley Industries acquired and has since that time operated Peaker Run Coal Company. Some of Beasley's other subsidiaries, not herein involved, have had contracts with other unions since 1967. However, Peaker Run Coal Company has never had a union or a union contract . The officers of Beasley Indus- tries and its subsidiaries are: John H. Fisher, president; Charles Elder, vice president; and Edward Bacome, attor- ney and corporate secretary. Peaker Run Coal Company, located in Gallia County, Ohio, has been engaged in the mining and sale of coal since the latter part of 1973, or the early part of 1974, when Vice President Elder commenced hiring the employees, some of whom now constitute the unit employees in dispute. Since its initial operation, Respondent had not granted the substantial majority of its employees a pay raise until the occurrence of the current dispute. In a letter and telegram dated November 27, 1974, Respondent for the first time learned about its employees' interest in the United Mine Workers of America. At all times material herein, the individuals listed below have occupied the positions following their respective names and have been, and are, supervisors as defined in Section 2(11) of the Act and are agents of Respondent, acting on its behalf, within the meaning of Section 2(13) of the Act: Charles Elder-vice president; Ralph Browhard- superintendent; Ralph Crow-day shift foreman; and by amendment to the complaint, which was not denied by Respondent, Bill Stevens-foreman. All production and maintenance employees employed by the Employer at its Ohio mines, excluding all office clerical employees, professional employees, guards, and supervisors 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, as amended.' This proceeding was adjourned sine die pending receipt of a letter from counsel for the General Counsel informing the Administrative Law Judge whether or not he formally rested the presentation of his case . In a letter dated August 13, 1975, counsel for the General Counsel formally advised me, as well as counsel for Respondent, that he rested his case. Accordingly, counsel for the General Counsel's letter is hereby identified, marked, and admitted in evidence as counsel for the General Counsel's Exhibit 24, and the proceeding herein is closed. B. Union Activity of the Employees and Respondent's Knowledge Thereof A composite of the undisputed and credible testimony of Mary Ann Uzelack, an official representative of the Union (UMW), along with employee witnesses Dallas Short, Thomas B. Stephens, Jack Campbell, and John Roush, essentially established that approximately 15 of Respon- dent's employees were present at a meeting held in the Holiday Inn, Gallipolis, Ohio, on December 1, 1974. At that meeting, Union Representative Uzelac explained the benefits and the advantages offered by the Union and distributed union authorization cards to the employees. Fifteen of the employees in attendance thereupon signed and submitted union authorization cards to the Union. All of the above-identified witnesses, including employee witness Ransom C . Wireman, testified that they signed union authorization cards and did not thereafter revoke or attempt to revoke such authorizations. Respondent, through the testimony of its vice president, Charles Elder, admitted that it first learned about the Union's interest in organizing its employees in a letter and telegram from the UMW dated November 27, 1974. C. Respondent's Alleged Threatening and Coercive Conduct Employee Dallas Short testified that sometime during the week following the employees' meeting on or about December 1, 1974, he held a conversation with his supervisor, Ralph Crow, which was as follows: A. Mr. Crow wanted to know what I knew about the union. He wanted to know who was behind it. He wanted to know what I knew about it. And I told him I didn't know much about the union. I told him that I didn't want to say anything. And he said, "You'd better. You're not going to have a job if you don't." He said, "The man wants to know. He wants to know tonight." He said, "He's going to shut the place down if the union comes in." He said he was no bullshitter, that he would do it. Short said he felt uneasy about the above questions and statements by Supervisor Crow, and he stated that "the man" to whom Crow was referring was Chuck Elder, vice president of Respondent. Ralph Crow, a day shift mine foreman for Respondent, testified that he was the supervisor of Dallas Short, who worked for him for approximately 90 to 120 days, but that he could not recall telling Short that he had to find out who was involved in the Union, that the man "wanted to know, and if he didn't find out he (Elder) was going to shut the plant down. Crow also testified that he could not recall having any conversation with Short in which he talked about the union. I The facts set forth above are undisputed and are not in conflict in the record PEAKER RUN COAL COMPANY Crow's employment with Respondent is presently terminat- ed.2 About 2 weeks after the above-described conversation with Supervisor Crow, Short testified that Vice President Elder called and held a meeting with the unit employees at the Holiday Inn, during which all except two of Respon- dent's employees were in attendance along with supervisory personnel ; Edward Bacome, attorney and corporate secre- tary for Respondent; Foreman Stevens ; Bill Orr; and Vice President Elder, who presided over the meeting. Short further testified that Vice President Elder told the employ- ees that he was rather disappointed that they had gone to the Union without first coming to the Company to discuss their concern ; that they (Respondent) had been looking for this type of action by the employees for some time; that management had previously discussed two offers with respect to wages and working conditions to present to them, but that he could not afford to go with the Union because if he could not make a reasonable profit he would shut the place down. Employee Thomas Stephens' testimonial version of what transpired at the company-called meeting of employees held on December 10, 1974, essentially corroborates the testimony of employee Short. In essence, he testified that Vice President Elder stated that he could not operate the Company under union conditions but would have to shut it down. He further testified that about 3 weeks before the election scheduled for January 31, 1975 , Foreman Bill Stevens told him that if the employees went union (UMW) he (Stevens was directed to close the plant 's gate after that shift. Stephens said to his knowledge the plant's gate has never been closed or locked. Employee Jack Campbell's testimonial version of the Company's December 10 meeting with its employees essentially corroborated the versions of employees Short and Stephens. He stated that after Vice President Elder advised them about the proposed wage increase he further advised them that Respondent could not operate the Compa- ny under union conditions and would have to quit operating if the employees went union. The testimony of employee John Roush also essentially corroborates the testimony of employees Short, Stephens, and Campbell, to the effect that Vice President Elder said he could not operate the Company under the Union, and if the employees went union he would have to shut down. He (Roush) was never questioned about the Union by either Supervisor Crow or Supervisor Stevens. Employee Ramzey L. Boggs testified that about a week after the company meeting with the employees on Decem- ber 10, 1974, he heard Vice President Elder state, in the presence of himself (Boggs) and Foreman Crow, "that if the union got in he didn 't know how he could possibly make it." Boggs said he believed the latter statement was made before the election scheduled for January 31, 1975, was called off. However, Foreman Crow denies that Vice President Elder made such a statement in his presence. 2 1 credit the testimonial version of employee Dallas Short over that of Supervisor Ralph Crow, not only because he was straightforward, sure, and appeared nonselective in answering questions, but also because Crow almost consistently did not categorically deny the interrogation and threatening 101 Employee James W. Halley attended the company meeting with the employees on December 10, 1974, and heard Vice President Elder tell the employees "f they went union he would close the job down." He further testified that subsequently, but before Christmas, a Mr. Brouhard of management took him over to the barn where he was asked to talk on the telephone to Vice President Elder, who asked him how did the union situation look; that he (Halley) told him (Elder) that it looked like it was 100-percent union. Vice President Elder said if it went union he would have to close the job down. Halley said Vice President Elder then asked him did he think it would do any good if he (Elder) could go down and talk to the men (employees), and he (Halley) said no, because the employees were mad at him. Employee Ransom C. Wireman testified that he attended the meeting on December 10, 1974, during which the employees were informed that they were going to be granted a raise. However, he stated that he did not remember Elder telling them that if the Union came in he was going to have to shut down. He also said he had never heard any foreman make such statement to him. Employee Gene Thomas Clay testified that he attended the Company's meeting with the employees on December 10, 1974, and recalled a fellow employee stating that after the pay raise was agreed upon the amount of the raise would be better than what the Union could obtain and Elder said, "Lets disregard that right now." He does not remember Elder or any member of management stating that if the Union got in the Company would have to shut down. He did not sign an authorization card. However, on cross- examination Gene Clay admitted that he was not present at the December 10 meeting when Elder opened the meeting, but rather, came in later and sat on the other side of the room opposite Elder while employees between himself and Elder carried on private conversations concurrently with the remarks of Elder; that he (Clay) also was engaged in some private conversations with fellow employees while Elder was speaking; and that he could not hear everything Elder said, although he heard most of his remarks. Clay and other employees received a letter from Respon- dent dated February 19, 1975, wherein Respondent assured them that nobody would lose their job. Bacome testified that he did not hear Elder make a statement about the Union or tell the employees during the meeting of December 10, 1974, that he was disappointed that they had gone to the Union, or that the Company would have to shut down. Vice President Elder denied making any reference whatsoever to the Union or the employees' organizational drive. However, with respect to his remarks to the employees at the December 10 meeting, Vice President Elder continued to testify as follows: Q. Had you stated the position that you could not survive under the union? A. Outright answer, no. I would say that I answered in such a way that if we could survive, we would go ahead and do it, but if not, pure economics would shut you down. statements attributed to him . Instead, Crow, practically without exception, repeatedly stated that he could not recall any aspect of the conversation I received a distinct impression from his demeanor in testifying that he was not testifying truthfully. 102 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD Vice President Elder categorically denied that he told employees he was disappointed in them because they did not come to management before going to the Union. He also denied that he discussed the Union's organizational efforts with the employees or told them if the Union got in he would shut down the plant . He said he was sure he did not make such a statement because the Company's attor- ney, Bacome, was sitting right beside him and had previously advised him not to do so. However, when Vice President Elder was asked by counsel for Respondent did he at any time during the course of the meeting tell the employees that if the Union got in the Company would not operate under union conditions, he responded as follows: "1 don't-if I di4 I don't think it was with the-said in that manner. " He further testified as follows: Q. Do you recall ever telling any employee on a one-to-one basis that if the union got in you 'd have to shut down because the union got in? A. I would say it may have come out different but it could have meant the same thing. Q. Well, how do you think it came out? I mean to the best of your memory what do you think you said? A. You work and last only as long as the business stays intact and you make some profit. Whenever the time gets rough, then you have to bend with the wind. A lot of times you bend so far and you close your shop. I think that everybody understands that .3 D. Respondent Offers Employees Pay Raise in the Midst of Organizing Campaign With respect to Respondent's pay raise proposal to the employees, Dallas Short testified as follows: A. He offered us a dollar on the hour raise, plus 25C on the ton royalty. Just a flat rate of $1.25 raise. Q. Was there a discussion of how the royalty was to be handled? A. Yes, sir, there was. To the best of my under- standing the 250 on the ton was supposed to go in the bank, and it was up to us to decide whether we wanted it either once a year, twice a year, and they would take the 25¢ a ton, whatever the total was, if we wanted to split it up once a year or twice a year, and that period each year that they would split this up among the employees of Peaker Run Coal, and they were going to set up some program where the employee had to be there so long before he got a share of this. 3 I credit largely that aspect of Vice President Elder's testimony which describes what he actually said to the employees and not necessarily his presently expressed philosophy, logic, or explanation of his statements which he did not articulate to the employees at that time (December 10). As to whether Vice President Elder told the employees on December 10, or thereafter, that he "could not afford to go with the Union because rfhe could not make a reasonable profit he would shut the place down," or that he could not operate the company under union conditions and would have to shut it down if the employees went union, I credit the testimonial account of former employee Dallas Short, employees 71omas Stephens, Jack Campbell, and James Halley over that of Ranson Wireman , Gene Clay, Edward Bacome, Esq., and Vice President Elder for the following reasons: I was persuaded not only by the straightforward and unequivocal manner in which the aforestated witnesses testified that they were telling the truth , but also because their At the conclusion of his presentation of the wage offers, Vice President Elder and other supervisory personnel stepped outside to allow the employees an opportunity to discuss Respondent's pay raise proposal. After some discussion, the employees decided to accept the flat rate of $1.50 per hour plus 3 paid holidays. The employees informed Vice President Elder of their decision, and he advised them that they could have holidays off, but without pay because employees with 1-year tenure with Respondent were already receiving 2 weeks paid vacation. With respect to the employees'response to Respondent's proposed wage offer, Short continued to testify as follows: Q. Did Mr. Elder comment on the decision of the men to take the raise? A. Yes, sir. I believe he said it was better for the men to take the raise and to work than not to work at all. He said if the union came in he could not make enough profit and that he would close the place down. When Respondent was asked why its final general pay raise proposal happened to have been presented on December 10, its attorney and corporate secretary, Edward Bacome, testified that Respondent had decided to grant its employees a pay raise in the early or middle part of October 1974, but that it was deemed wise to wait until the UMW's national contract was negotiated and reviewed by it, since the old contract would expire November 12, 1974. Corre- spondingly, Vice President Elder testified that although the Company had considered granting its employees a pay increase, it decided to await the UMW contract so it could see what mineworkers were being paid elsewhere, since the coal industry is a competitive business. Bacome further stated that Respondent received a copy of the new contract during the first week in December 1974. After viewing the contract, company officials then discussed its provisions and decided to have a meeting with the employees and present to them the proposals presented in the December 10 meeting. After viewing the new national union (UMW) contract, Bacome said, the decision as to when Respondent would grant the raise, as proposed, was made about a day or two before the December 10 meeting with the employees, which was also a day or two after he was able to obtain and review a copy of the UMW national contract. He continued to testify as follows: A. We proposed to the employees an amount per hour as an increase supplemented by the incentive plan individual testimonial versions with respect to what they heard and understood Elder to say were essentially consistent, one with the others. I further observed that, while their testimony may not be found favorable to the interest of Respondent, three of the said witnesses are still employed by Respondent and the other is now in the military service. On the contrary, I do not credit the testimony of Vice President Elder in this regard because it is particularly noted that he did not categorically deny making the subject statements, and he appeared to have been either unsure or untruthful in his testimony as is partially reflected on the record, cited above. I do not credit the corroborating accounts of Wireman, Clay, and Bacome, because Wireman and Clay admitted, and the evidence shows, that they did not hear all of Vice President Elder's remarks, and Bacome, who did not appear to be candid in his testimony, could not recall, did not think, and he would only say "no," that Vice President Elder did not make the subject statements. PEAKER RUN COAL COMPANY 103 that I described earlier based on our tonnage produc- tion. We could refer to that as Plan 1. Our alternate one, the second one was just a straight increase with no incentive. We discussed that with the employees, and after a certain point in time decided to enable them to choose the one that they thought was most acceptable to them that they should discuss it among themselves. The testimonial account of Respondent's vice president, Charles Elder, is essentially consistent with the testimonial versions of the prior witnesses with respect to the Respon- dent's proposed pay raise. E. Respondent Hosted a Food-and-Drinks Social for Employees 5 Days Before Scheduled Union Election Employee Dallas Short further testified that on Saturday, January 25, 1975, prior to the scheduled union election for January 31 , 1975, President Elder sponsored and hosted a party with food and drinks for employees. The employees were then told that thereafter there would be other such parties periodically. With respect to the social gathering or party sponsored and held by Respondent on January 25, 1975, Vice President Elder was examined. After testifying that the January 25 meeting was a social function for the employees, Respondent Vice President Elder reluctantly admitted on cross-examination that he circulated amongst the employees and held discussions with them in reference to the Union and that the union election scheduled for January 31 was on his mind and of concern to him, and he thereupon gave the following testimonial account: Q. You're saying that the union wasn't mentioned at all? A. To my best recollection, no, the union was not mentioned because that was not the specific reason we were there ... . Q. So it was more of a social occasion , was it not? A. Yes, sir. Q. It was more to eat and drink and be merry than the December 10 meeting. Is that not right? A. Correct. Q. And that was the only such meeting where it was eat, drink and be merry, where the people were to enjoy themselves. Is that correct? A. Correct. Q. And at that time did you not tell the employees at that meeting at Oscar's, or some of the employees at least, that they were going to have to tighten up their belts if the union got in? A. I remember speaking tightening up your belts through the economic rules with any business . Profits is not a dirty word. If you're going to make a profit you're going to stay in business. And I may have said that if we done this, and things got tight , hard, that we couldn't survive. Q. If you done what, in other words? Would you repeat the last statement, sir? A. I forget what I said. I said that if the Company didn't make any profit we would definitely have to close our operation and move out . I mean profit is not a dirty word. That was not considered to me as a threat. It was pure economics. Q. But you had expressed the opinion on other occasions that you couldn't operate with a profit if the union came in. Isn't that right? A. I think you're trying to put words in my mouth. Q. I'm simply trying to get the truth out in this case, Mr. Elder. A. I am, too. Q. Well, I'd like to get an answer to my question. A. They could have interpreted it that way, yes. If I came right out and said it as such, I just don't remember. Q. You don't remember? A. No. It could have meant the same thing. Q. Do you recall telling your employees they would not be able to stand around? A. Yes, sir. Q. Do you recall - A. Yes, sir. Q. Do you recall why you told them at that time that they wouldn't be able to stand around? A. Well, my policy has never been to see a man stand around. That doesn't do the Company any good. Definitely I'm a company man. That isn 't the way we make our money, by standing around . It's not their practice to do that, also. Q. Didn't you tell the employees at the Oscar meeting that if they voted in the union you would work as long as you could under it, but you would have to tighten your belts, which would mean work harder and not having men stand around? A. I'd say yes, sir. Q. You did say that? A. Yes, sir. Q. Okay. And did you thereafter solicit the employ- ees' support in the upcoming election? A. What do you call soliciting? Q. Talk to them and ask to support the Company in the election? A. I think I talked to every employee that I had there. I don't think that I solicited them. Q. Well, did you request their support in the upcoming election? A. I would have to possibly truthfully say I did. Q. Well, you believe you did? A. I would say so. [Emphasis supplied throughout.] F. Analysis and Conclusions 1. Unlawful interrogation It is well established by the credible evidence of record that on or about December 3, 1974, Respondent , through its Supervisor Ralph Crow, did ask employee Dallas Short who was organizing the Union and what was the progress of that effort and that when Short said he did not know or did not want to talk about it Crow told him he had better talk or he would not have a job because management wanted to know and it would shut down the mine operation. Based upon this evidence, I hereupon conclude 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and find that such questions and statements by Crow constituted an interference with, a restraint upon, and coercion against the employees' rights protected by Section 7 of the Act, and therefore resulted in a violation of Section 8(a)(l) of the Act. Counsel for Respondent contends that such questioning by Crow was not unlawful interrogation because there is no showing of a history of employer hostility and discrimination; that Crow was not high in the managerial hierarchy; that the place where the interroga- tion took place was informal and not unusual ; and that the nature of the information sought did not appear to be for the purpose of taking action against individual employees. However, when it is observed that while every element or example enumerated in Bonnie Bourne, an individual d/b/a Bourne Co. v. N.L.R.B., 332 F.2d 47 (C.A. 2,1964), may not be present in the instant case, it is nevertheless noted that some, as well as other coercive factors, are present. More specifically, it is well established that Crow's interrogation took place only 6 or 7 days after Respondent was formally notified by the Union of its organizational efforts, and only 2 days after the employees held their first organizational meeting on December 1; that Crow was the day shift mine foreman and that it was not established that there was any immediate supervisory authority between himself and top managerial personnel in this small mining operation; that, as such day shift foreman, Crow had knowledge of the employees' union activity and proceeded to interrogate, not subtly, but in a direct and severe manner, employee Short about the employees' union activity; that when Short told him he did not want to talk about it Crow told him he had better talk about it and threatened him with the loss of his job if he did not, as well as the shutdown of the plant if the employees elected the Union as their representative. Crow's interrogation accompanied by such statements heretofore described can hardly be character- ized as anything other than coercive and restraining conduct which tended or in fact interfered with the exercise of employees' rights protected by Section 7 of the Act. Moreover, the purpose for the individual identity of the organizing employees sought by Crow can hardly be attributed to any purpose other than acts of reprisal by Respondent, in view of the diligent, threatening, and probing interrogation by Crow. The fact that Short's apprehension might have been relaxed after Crow told him he respected him for not talking does not wipe out Short's initial apprehension of managerial reprisals so as to undo the unlawful conduct by Crow. Since Crow's interrogation was not unaccompanied by coercive and threatening language and was not made with prior assurances against acts of reprisal, it was clothed with obvious coercive, restraining, interfering, and unexcus- able attributes or unlawfulness. The question as to whether Vice President Elder on or after December 10 threatened the employees with shut- down of mining operations if the Union (UMW) became the collective-bargaining representative of the employees may be answered by what the credible testimony of the witnesses, including Vice President Elder, established was said by Elder and what was understood by the employees during the December 10 meeting and the January 25, 1975, social function. A careful review of the credible testimony of the employees shows what Vice President Elder said without explanations. In essence, that evidence shows that Elder told the employees he was disappointed that they went to the Union without first coming to the Company to discuss their concerns ; that he had a wage increase to propose but he could not afford to go with the Union because if he could not make a reasonable profit, he would shut down the place, or he could not operate the Company under union conditions but would have to shut it down; and/or if the employees went union he would have to shut down the operation. The crucial question presented for decision here is whether the aforedescribed statements by Vice President Elder constituted a threat to the employees to shut down the mining operation in response to the Union becoming the collective-bargaining agent of the employees ; or wheth- er such statements were made as an economic or business prediction of what would happen as a consequence of union operation and influence . An examination of the literal language of these statements alone might lead one to conclude that they expressed an economic or business prediction as distinguished from a threat in retaliation for unionization of the operation. ' However, when Vice President Elder's statements are examined in the light of the total evidence regarding the union activity of the employees and company knowledge and action (Supervisors Crow and Stevens) in response thereto, along with the conspicuous absence of evidence that Elder or any other supervisory personnel gave employ- ees any assurance against company acts of reprisal or urged the employees to vote on facts, Respondent has not shown that the Company was experiencing a decline in profits or business difficulty. On the contrary, Respondent actually granted its employees a general raise higher than it had initally proposed in the December 10 meeting, which practically refutes any business or financial difficulty. Respondent's (Elder's) remarks about shutting down the mining operation were not qualified upon a condition that if the Union's demands and operation were so large that inadequate profits would result it would have to shut down the Company. Instead, Elder categorically stated that he could not operate the Company under union conditions, as if operating a unionized company ipso facto meant inade- quate profits. While Vice President Elder might have had a grave, real, and genuine concern about the profitable operation of the Company as counsel for Respondent contends, he nev- ertheless neglected to articulate to the employees or on the record such fact, or facts to support such proposition. Moreover, here, unlike the employer in N.L.R.B. v. Empire Furniture Corporation, 107 F.2d 92 (C.A. 6, 1939), cited by counsel for Respondent, Respondent did not qualifiedly say, presuming the Union came in, "When it comes to where we can't do anything, we will lock the gate and leave out of here." Nor did Respondent show that the Company was losing money and could not afford union wages as did the employer in N.L.R.B. v. Crosby Chemicals, Inc., 274 F.2d 72 (C.A. 5, 1960), so as to constitute the expression of an opinion of the business or economic consequences of unionization, which is protected as free speech under Section 8(c) of the Act. Consequently, I conclude and find PEAKER RUN COAL COMPANY that such threatening statements by Respondent, when considered along with all of the evidence of record, were made to discourage the organizational efforts of the employees and, as such, had an interfering, restraining, and coercive effect upon their organizing activity in violation of Section 8(a)(1) of the Act. 2. Respondent grants pay raise While the evidence does not present a dispute as to whether a general wage increase was granted by Respon- dent during the employees' organizational drive, it does, nevertheless, raise the question as to whether such raise was granted in violation of the Act. Conceding, as counsel for Respondent contends , whether or not such a raise is lawful depends on the reason for which it is given . The reason for which an employer grants a pay raise in the midst of a union's organizing campaign can best be determined not only by the reason advanced by the employer, but also upon the entire set of circumstances surrounding the decision to grant it. A careful review of the evidence of record in this regard reveals that Respondent had not granted its employees a general wage increase since it commenced its mining operation in early 1974. Although Vice President Elder and Secretary Bacome testified that Respondent decided in early or mid-October 1974 to grant the employees a wage increase, the first time any of the employees learned about a management decision to grant a raise was during the Company's meeting with the employ- ees on December 10, only 9 days after the employees' organizational meeting on December 1, and 12 or 13 days after Respondent was notified by the Union of its organiza- tional mission. Respondent testified that its reason for granting the pay raise on December 10 was based upon its recent education of what wage rates the national union embodied in its contract executed (December 1, 1974), which enabled Respondent to arrive at a wage rate which would be competitive with other companies in the coal mining industry. In support of its position, Respondent cites several cases including Guyan Machinery Company, 155 NLRB 47 (1965). However, an examination of the latter case reveals that employer policy there , unlike here, was to grant a general wage increase after employees in various mines in the area received a raise . Respondent does not show what wages area mine employees received or that area employees were given a wage increase in or about Decem- ber 1974. Nor has Respondent produced any evidence which shows that it is, or has been, company policy to grant employees a raise in order to maintain wages commensu- rate with other companies in the industry , as the employers did in Deutsch Company, Metal Components Division, 178 NLRB 95 (1969), and Werthan Bag Corporation, 167 NLRB 3 (1967), cited by Respondent. Likewise, the facts in the Charmin Paper Products Company, 186 NLRB 89 (1970), and Standard Auto Body, Inc., 171 NLRB 91 (1968), cases cited by Respondent, are distinguishable from the facts in the instant proceeding. Although Respondent, through the testimony of its vice president and corporate secretary testified that Respon- dent's decision to grant the employees a raise was not associated with, or intended to discourage, the union 105 interest of its employees, I do not credit their testimony in this regard for the following reasons: (1) Respondent had never held a meeting with its employees about wages and working conditions before December 10, during the em- ployees' organizing campaign. (2) No employee had heard that Respondent was even contemplating the grant of a general pay raise prior to the company meeting with the employees on December 10, nor prior to the union activity of the employees of which the Respondent was aware. (3) Since the Respondent has learned that its wage increase was alleged to be unlawful, it told, for the first time in this proceeding, that it had planned to grant its employees a raise earlier than December 10, in fact as early as mid- October 1974. (4) I deem such latent and one-sided explanation by Respondent as being self-serving, especially when the prior coercive interrogation of its employees on December 3, 1974, Respondent's threat to shut down the mining operation on December 10, 1974, its first sponsored social function for the employees on January 25, 1975, just preceding the scheduled union election on January 21, 1975, and its threat infra of its employees with more onerous working conditions on January 25, 1975, are all considered in totality. I am persuaded and thereupon conclude and find that Respondent's wage increase was not granted as a matter of simple economic considerations, but, rather, as an effort to discourage union activity in violation of Section 8(a)(1) of the Act. This position is further stated by the Court in N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618-619 (1969), cited by counsel for the General Counsel as follows: If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion, and as such without the protection of the First Amendment. We therefore agree with the Court below that "[c]onveyance of the employer's belief, even though sincere, that unioniza- tion will or may result in the closing of the plant is not a statement of fact unless, which is most improbable, the eventuality of closing is capable of proof." The complaint alleges and Respondent , through the testimony of Vice President Elder, admitted that on January 25, 1975, it told employees if the Union became their representative the employees would have to tighten their belts (work harder) and refrain from standing around, and it requested the support of the employees against the Union in the election scheduled for January 31, 1975. Based upon the foregoing undisputed evidence, I conclude and find that such statements to the employees by Respondent, in the light of its other established unlawful conduct, constituted a threat that the employees would have to work harder and lose or be denied the privilege of standing around in the future, if the Union became their representa- tive. Such a threat is, in its very nature, restraining and coercive conduct in violation of Section 8(a)(1) of the Act. 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Bargaining order Finally, the question is presented as to whether the established unfair labor practices committed by Respon- dent during the organizing campaign of its employees were of such consequential magnitude as to interfere with the election processes by dissipating the Union's majority status and precluding the holding of a fair election. In answering this question, it is first noted that it is clearly established by the evidence of record (Excelsior list submit- ted by Respondent in Case 9-RC-10910) that practically all (18) of the 26 employees in the stipulated appropriate unit for collective bargaining signed a single-purpose authoriza- tion card designating the Union (UMW) as their collective- bargaining agent. Respondent has not presented any evidence showing that it had independent knowledge that the Union lacked majority status either before or subse- quent to the commission of unfair labor practices. While acknowledging that it had knowledge of its employees' union interests and activities on and before December 1, 1974, Respondent nevertheless engaged in coercive interrogation of its employees on or about Decem- ber 3, 1974; threatened its employees on December 10 with shutdown of its operations if the Union became the bargaining agent of the employees; granted its employees a 35-percent wage increase on December 10; and sponsored and hosted its first food-and-drinks social function on December 25, dust 6 days preceding a scheduled union election, during which it threatened to impose more onerous and constricted working conditions or rules on employees if they selected the Union as their collective- bargaining agent. In view of the foregoing credible evidence, I conclude and find that Respondent's aforedescribed unlawful con- duct constituted the commission of independent, substan- tial, and pervasive unfair labor practices disruptive of election conditions or processes, which prevent a free election and cause the dissipation of the Union's majority warranting the issuance of a collective-bargaining order. N.LR.B. v. Gissel Packing Co., 395 U.S. 575 (1969), and Steel-Fab, Inc., 212 NLRB 363 (1974). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. They are unfair labor practices within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices warranting a remedial order , I shall recom- mend that it cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act. It having been found that Respondent interfered with, restrained, and coerced employee Dallas Short and other employees in the exercise of their Section 7 protected rights, in violation of Section 8(a)(1) of the Act, by coercively interrogating employee Dallas Short; threatening all of its employees with the shutdown of its mining operation should they select the Union (United Mine Workers of America) as their collective-bargaining agent; threatening its employees with more onerous working conditions; granting its employees a substantial wage increase in the midst of its organizing campaign; and, sponsoring and hosting a food-and-drinks social for its employees during which it threatened to impose more onerous working conditions or restricted rules, for the purpose of discourag- ing their interest in and/or support for the Union; and that such unlawful conduct by Respondent prevents the carry- ing out of a free election and the likelihood of dissipating the Union's majority status, the recommended Order will provide that Respondent cease and desist from engaging in such unlawful conduct and bargain with the employees' designated collective-bargaining representative, the United Mine Workers of America. Because of the character of the unfair labor practices herein found, the recommended Order will provide that Respondent cease and desist from in any other manner interfering with, restraining, and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941). CONCLUSIONS OF LAW 1. Beasley Energy, Inc., d/b/a Peaker Run Coal Com- pany, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Mine Workers of America is, and has been at all times material herein, a labor organization within the meaning of the Act. 3. By coercively interrogating Dallas Short about his and other employees' union interests or affiliation, Respon- dent violated Section 8(a)(1) of the Act. 4. By threatening employee Dallas Short and other employees with the shutdown of its mining operation, Respondent violated Section 8(a)(1) of the Act. 5. By granting its employees a substantial wage increase in the midst of the employees' organizing campaign, Respondent violated Section 8(a)(1) of the Act. 6. By sponsoring and hosting a food-and-drinks social function for its employees during the midst of their organizational campaign and 6 days preceding the sched- uled union election, during which it threatened some employees with more onerous working conditions or restrictive rules if the employees selected the Union or the UMW as their collective-bargaining agent, Respondent violated Section 8(a)(1) of the Act. 7. These unfair labor practices were so independent, substantial, and pervasive that they are disruptive of the election processes, precluding a fair election and warrant- ing an order to bargain. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. PEAKER RUN COAL COMPANY 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: ORDER4 The Respondent, Beasley Energy, Inc., d/b/a Peaker Run Coal Company, Gallipolis, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees about their past and current union interests or affiliation. (b) Threatening its employees with the shutdown of its mining operation if the employees select the United Mine Workers of America as their collective-bargaining agent. (c) Rewarding its employees with social functions and threatening some employees with more onerous working conditions or restrictive working rules. (d) Granting its employees a wage increase for the purpose of discouraging their union activity. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Recognize and, upon request, bargain collectively with United Mine Workers of America as the exclusive representative of the employees found herein to constitute an appropriate unit, and, if an understanding is reached, embody such agreement in a written signed contract. (b) Post at Respondent's plant at Gallipolis, Ohio, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's repre- sentatives, shall be posted by it immediately upon receipt thereof, and be maintained by Respondent for 60 consecu- tive 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 Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not found herein. 4 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. 5 In the event the Board's Order is enforced by a Judgment of the 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 107 Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively interrogate employees about their and other employees' union membership, activi- ties, and desires. WE WILL NOT threaten employees with the shutdown of mining operations should they select the Union or any other labor organization as their collective-bargain- ing representative. WE WILL NOT grant a wage increase to employees for the purpose of discouraging their union activities or undermining and dissipating the Union's majority. WE WILL NOT threaten employees with more onerous working conditions or more restrictive working rules if they select the Union or any labor organization as their collective-bargaining representative. WE WILL recognize and, upon request, bargain collectively with United Mine Workers of America as the exclusive representative of the employees found herein to constitute an appropriate unit, and, if an understanding is reached, embody such agreement in a written signed contract. The bargaining unit is: All production and maintenance employees employed by the Employer at its Ohio mines excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act, as amended. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise and enjoyment of rights guaranteed them by Section 7 of the National Labor Relations Act, except to the extent that such rights may be affected by such lawful agreements in accord with Section 8(a)(3) of the Act. All our employees are free to become, remain, or refuse to become or remain, members of United Mine Workers or any other labor organization. BEASLEY ENERGY, INC., D/B/A PEAKER RUN COAL COMPANY