Buckeye Coal Co.

BUCKEYE COAL CO. Buckeye Coal Company i and United Steelworkers of America, Local Union 14685, AFL-CIO-CLC. Case 6-CA-9075 March 14, 1977 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER On November 9, 1976, Administrative Law Judge Ralph Winkler issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Nemacolin Mines Corporation, successor to Buckeye Coal Company, Nemacolin, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. i On April I, 1976, Nemacolin Mines Corporation took over the operating functions previously performed by Buckeye Coal Company 2 For the reasons given in his dissent in Curtis Industries, Division of Curtis No!! Corporation, 218 NLRB 1447 (1975), Member Fanning would not find the discriminatee to be a "managerial" employee under the Act even if he were a "management trainee." DECISION STATEMENT OF CASE RALPH WINKLER, Administrative Law Judge: Upon a charge filed on March 10, 1976, a complaint issued by the General Counsel on May 21, 1976, and an answer filed by Respondent, a hearing was held in Pittsburgh, Pennsylva- nia, on July 26, 1976. Upon the entire record in the case, including my observation of the demeanor of witnesses and upon consideration of briefs, I make the following: FINDINGS OF FACT 1. BUSINESS OF RESPONDENT 659 Respondent Buckeye Coal Company, a wholly owned but independently operated subsidiary of the Youngstown Sheet and Tube Company, is a Pennsylvania corporation engaged in mining operations at Nemacolin, Pennsylvania. On April 1, 1976, Nemacolin Mines Corporation, which also is a wholly owned subsidiary of Youngstown Sheet and Tube, took over the operating functions of the Nemacolin mines theretofore performed by Buckeye Coal Company. The parties agree, and I find, that Buckeye Coal Company and Nemacolin Mines Corporation are employ- ers within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, Local Union 14685, AFL-CIO-CLC, herein called the Union, is a labor organization within Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Ralph Thompson was employed from 1973 until March 1976 as an accountant in the accounting department at Respondent's mining facility at Nemacolin, Pennsylvania. Thompson was discharged on March 5, 1976, and the principal issues are whether his termination was for union reasons and, if so, whether Thompson was either a statutory supervisor or a managerial employee and there- fore outside the coverage of the Act on either basis. Following an election, on September 12, 1975, the Union was certified to represent the office clerical and technical employees in the accounting department at Respondent's Nemacolin, Pennsylvania, facility. The eligibility list prepared and submitted by Respondent in connection with that election did not include the name of Ralph Thompson and he did not vote in that election. A 3-year collective- bargaining agreement was subsequently negotiated and executed by Respondent and the Steelworkers on February 9, 1976.1 Robert Lunsford, the "mine accountant," was in charge of the Nemacolin accounting department and was Thomp- son's supervisor until December 1, 1975. On that date Lunsford advanced to the position of mine accountant administrator, a promotion offered to him in September, and Kermit Anderson succeeded Lunsford as the mine accountant. In September 1975, George Henning (control- ler of the Nemacolin operation) asked Thompson if he was interested in the mine accountant position, and Thompson said he was not and he declined the promotion. As mine accountant, Anderson became the new supervisor of the six accounting department employees (including Thompson). Henning is the "mine accountant's" immediate superior. On or about March 1, 1976, several accounting depart- ment employees suggested to Thomspon that he join the Union as he was performing substantially the same office functions as they and for which the Union had been i The underground employees at the Nemacolin mine have been represented by United Mine Workers of America'for many years. 228 NLRB No. 90 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certified. Thompson signed a union authorization card the next day, and several of the employees thereupon advised Mine Accountant Anderson that Thompson was joining the Union . Anderson immediately notified Mine Office Administrator Lunsford and Controller Henning what the employees had told him about Thompson . Lunsford inquired whether Anderson had actually seen Thompson's union card and, when Anderson replied he had not, Lunsford instructed Anderson to "verify" Thompson's union membership. On or about March 4, Anderson asked to see Thompson's card. Thompson showed it to him, and Anderson reported this fact to Lunsford. On March 5, Henning instructed Anderson to terminate Thompson at the end of the day and to issue a final salary check to Thompson drawn on a petty cash account. (This was not a regular payday, nor are regular salary checks drawn on such accounts or issued in Nemacolin .) Ander- son testified he did not know at the time why Thompson was being discharged and that Henning did not tell him the reason. Anderson then notified Thompson of his discharge and gave him a termination check , and, when Thompson asked for an explanation, Anderson said, "I don't have a reason." Thompson thereupon telephoned Henning, and Henning told him he was discharged for not performing as an "assistant mine accountant" in a suitable manner. Thompson replied that he was not an "assistant mine accountant." A day or two later, Thompson sought an explanation for his discharge from Mine Superintendent James Conrad. Conrad gave no reason, but said he would get something in writing from his own corporate superior, Chester Stone, the president of Nemacolin Mine Corpora- tion. Thompson then called Stone and was advised by the latter that Stone "backed" the decision to fire Thompson but that he (Stone) would not tell Thompson why he was fired. Lunsford also testified that, although he was the "personnel and labor relations man," he did not know the reason for the discharge and that Superintendent Conrad told him that orders for the discharge came from higher corporate authority in Pittsburgh. The following month, in connection with a claim filed by Thompson for unemployment benefits , Respondent ad- vised the Commonwealth of Pennsylvania that it had terminated Thompson for "refus[ing] promotion." This was Thompson's first indication of Respondent's purported reason for his discharge. Thompson was never warned or reprimanded during his entire period of employment with Respondent and, according to Henning, he had never been told that he would be terminated should he turn down the mine accountant promotion offered him in September and which he declined . Thompson had received four wage increases during his employment, the last one about 2 months after refusing the mine accountant position. Respondent's Supervisory Contention In support of its contention that Thompson was a supervisor within the meaning of Section 2(11) of the Act and therefore beyond the Act's protection, Respondent asserts that Thompson was hired as a supervisor and was considered as such by his supervisors, that he effectively recommended the direction of the employees to work overtime, that he was not on the eligibility list prepared by Respondent in the aforementioned representation case, and that - although there was no discussion of the matter - the Union made no objection to Thompson's omission from such list. (Lunsford testified that he prepared the list and that he omitted Thompson's name because he believed Thompson to be a supervisor .) Respondent also asserts in support of so-called secondary criteria of supervisory status that Thompson had his own private office and his own listed telephone as representative of the accounting department, that he had insurance and pension benefits not given to nonsupervisors, and that he was paid a straight salary and received a higher wage than other nonsupervi- sors in the accounting department. Respondent further asserts that Thompson was given authority to transmit instructions and the responsibility for the purchase of coal, he had access to confidential information , and he was put in charge of other personnel in the office each time his supervisor left. Until his discharge, Thompson had never been told that he was a supervisor or that he was "assistant mine accountant." The record establishes that Thompson had never hired, fired, suspended, laid off, disciplined, repri- manded, promoted, granted overtime, vacation time or time off, assigned or independently distributed work, interviewed job applicants, or processed employee griev- ance or otherwise handled labor relations matters for management, and he had never been authorized to take any such action. Except for one occasion discussed hereinafter, he had never effectively recommended such action. He never committed Respondent's credit and he also never attended management meetings. On one occasion Thompson did ask Mine Accountant Anderson to grant overtime to two employees to enable them to meet work schedules, and Anderson authorized the overtime. Anderson testified that he occasionally left the office for a period of 1 day and that he would tell Thompson to handle any particular problems and to make sure the office work proceeded on schedule. Although Thompson denied that he was ever left "in charge" of the office, Anderson testified that he never told Thompson that Thompson was the "acting mine accountant" during his occasional absences, and he further testified in this connection that the accounting employees worked on a routine basis and that the work was such as not to require daily assignments. With respect to the claim that Thomp- son was responsible for purchasing coal, the record shows that this responsibility was for "the accounting" of such purchases. The record as a whole does indicate that , by reason of his experience and competency, Thompson was a valuable employee in the accounting department . But while, as Respondent properly asserts , the enumerated powers listed in Section 2(11) are to be read in the disjunctive, the section also "states the requirement of independence of judgment in the conjunctive (i.e., in connection) with what goes before" and the individual thus must consistently display true independent judgment in performing one of the functions in Section 2(11). Poultry Enterprises, Inc. v. N.L.R.B., 216 F.2d 798, 802 (C.A. 5, 1954); N.LRB. v. City Yellow Cab Company, 344 F.2d 575, 580-582 (C.A. 6, 1965). Also see N.LR.B. v. Meadow Creamery, Inc., 215 BUCKEYE COAL CO. 661 F.2d 247, 251 (C.A. 3, 1954); N.L.R.B. v. Southern Bleachery & Print Works, Inc., 257 F.2d 235, 239 (C.A. 4, 1958), cert. denied 359 U.S. 911 (1959); N.L.R.B. v. Security Guard Service, Inc., 384 F.2d 143, 146-151 (C.A. 5, 1967); The Journal-Times Company, 209 NLRB 745, 747- 748 (1974) (where "assistants" to the "pressmen in charge" were not statutory supervisors even though they occasion- ally substituted for their supervisor and received higher wages than other nonsupervisory employees); Complete Auto Transit, Inc., 214 NLRB 425, 426-427 (19"') (where "foremen" were not statutory supervisors despite their titles and even though they were salaried and shared in some supervisory benefits); Cubit Systems Corporation, 194 NLRB 622, 623-624 (1971); Hilton-Burns Hotel Co., Inc., 167 NLRB 221, 222 (1967) (where possible future assign- ment to supervisory work was itself insufficient to satisfy the statutory definition). Further discussion is unnecessary to find, as I do, that Thompson neither exercised nor was empowered to exercise supervisory authority and that he was not a supervisor within Section 2(11) of the Act. Respondent's "Managerial" Contention Respondent contends, as indicated above, that even if Thompson were fired for union reasons and even if he not be found to have been a statutory supervisor, he was nonetheless hired as a "management trainee" and therefore outside the protection of the Act as a "managerial" employee. Respondent relies in this connection on N. L.R.B. v. Bell Aerospace Company, Division of Textron, Inc., 416 U.S. 267 (1974), and Curtis Industries, Division of Curtis Noll Corporation, 218 NLRB 1447 (1975). In holding in Bell Aerospace that employees properly classified as "managerial" are outside the Act, the Supreme Court indicated its approval of the definition of "manageri- al employees" as those who "formulate and effectuate management policies by expressing and making operative the decisions of their employer" (416 U.S. at 288). The Court further stated that "the specific job title of the employees involved is not in itself controlling. Rather, the question whether particular employees are `managerial' must be answered in terms of the employees' actual job responsibilities, authority, and relationship to manage- ment" (416 U.S. at 290). The Board consequently held that "management trainees" involved in Curtis Industries were within the "managerial" exclusion, and it stated in part as follows (218 NLRB 1447): All of the management trainees either advance into management positions or leave the Respondent's employ. Management trainees are recruited and hired because of their special educational backgrounds; accept employment with a designated managerial goal in mind; remain with the Employer only if they successfully complete the program; are paid a substan- tially higher rate of pay than regular employees in equivalent positions; and have dissimilar conditions of employment from those of regular employees. More- over, the management trainees are given the same fringe benefits as supervisors and managerial employ- ees rather than those enjoyed by regular employees. Inasmuch as these management trainees have been shown to have no alternatives other than to be placed in management positions ultimately or to leave the employ of the Employer, we agree with the Administra- tive Law Judge that their interests are aligned with management rather than with regular employees and that, therefore, they are part of management under the decision of the Supreme Court in Bell Aerospace, supra. Our dissenting colleague argues that because "their present job responsibilities [consist ] solely of non- discretionary rank-and-file work," their status as management trainees is not "inconsistent with their participation in a labor organization." In our view, however, the attitudes, outlook, sympathies, and orien- tation of the management trainees are likely to be far more greatly influenced by the management status for which they are training and which they hope to receive in the near future than by the type of work to which they are assigned for admittedly brief periods as part of their training. Thompson had a college degree in accounting and his educational background undoubtedly was a factor in Respondent selecting him for the accounting department. (The record does not disclose the scholastic background of other employees in the department.) And Mine Account- ant Lunsford told Thompson on the first day of Thomp- son's employment in 1973 that "there would be a need for a mine accountant [a managerial position] and these posi- tions could be available to him." As indicated above, Thompson did have a private office and telephone line and did enjoy certain fringe benefits not offered to other nonsupervisory personnel. However, Thompson was never told, nor were any other employees told,2 that he was a management trainee and that his only options upon successful completion of a training program were that he would either be promoted or leave Respondent's employ. When Thompson declined advancement to the mine accountant position in Septem- ber 1975, he was not even then informed that he had been in a training program and that he would be terminated unless he accepted the promotion. Despite Thompson's refusal of a promotion, Respondent gave him a substantial wage increase 2 months later. Lunsford testified that he (Lunsford) was instructed when Thompson joined his department that Thompson was to be his assistant and that he was to train Thompson to become a mine accountant. Lunsford testified he did tell Thompson he expected Thompson to learn all jobs in the department, and Thompson presumably did so and undoubtedly became a most valuable employee. For 2 years, meanwhile, Thompson worked alongside the other accounting department employees and did the variety of functions performed by them, and, to repeat, not a word was said to him that he was being groomed for advance- ment and that he would be terminated should he decline a managerial promotion. 2 Compare Helena Laboratories Corporation, 225 NLRB 257 (1976) 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To find Thompson to be a "managerial" employee would be an unwarranted stretching of that concept in the circumstances of this case, and I accordingly conclude that Thompson was an "employee" within the meaning of Section 2(3) of the Act and that he was not a managerial employee under the Bell Aerospace and Curtis Industries cases. began his employment on April 5, 1976. Anderson's testimony is to the effect that Mallet and other applicants were interviewed by him and Henning and that these interviews did not take place until either the weeks of March 13 or March 20. (It is recalled that Thompson was discharged on March 5.) The Reason for the Discharge Claiming that it discharged Thompson for cause , having nothing to do with Thompson's joining the Union, Respondent's brief asserts "that Thompson was hired to train and supervise and he knew it; that Thompson did not supervise well; that he refused to work overtime without compensation ; that Thompson refused the promotion for trainee to Chief Mine Accountant [inadvertent nomencla- ture for mine accountant ]; and that Thompson was emotionally incapable of even taking auditors out to lunch." Taking up these items seriatim: Thompson was not a supervisor, he did not know he was, and Respondent knew he did not want to be a supervisor ; the claim that he "did not supervise well" is based on an unwarranted assumption that he was a supervisor and on Lunsford's conclusionary statement that is unsupported unless it refers to the later item about not taking auditors out to lunch (this occurred on one occasion in 1974 and did not deter Respondent from offering the mine accountant job to Thompson in 1975); the overtime matter involved a single incident early in February 1976 when Thompson, who was salaried, purportedly did not want to work overtime unless he received overtime compensation. (Henning testified that Thompson worked overtime before and after this incident and that he (Henning) had already determined on the basis of Thompson's refusal of a promotion in September that he did not want to continue Thompson's employment "for a long period of time.") Finally, we reach the matter of refusing the promotion, which was the reason Respondent gave the State for terminating Thompson. Henning and Anderson testified to a discussion they had concerning Thompson on or about February 12, 1976, and Henning testified that he decided on that occasion that Respondent would fire Thompson because Thompson was "an assistant mine accountant who really wasn't interested in moving up the line." Henning testified that he thereupon contacted a personnel agency on February 19 with respect to obtaining a replacement for Thompson. Henning further testified that , for reasons of workload in the accounting office, he did not terminate Thompson immediately, and that he wanted to maintain Thompson's services until a replacement was found. According to Henning, his own corporate superiors or peers also counseled him not to terminate Thompson "until we could have a replacement." Anderson also testified that the decision to discharge Thompson was made on Febru- ary 12 and that it was decided not to implement the decision until "we found a suitable replacement." Henning further testified that he received resumes of applicants for Thompson's job, that "we" interviewed someone on February 25, that he received a resume from a Mr. Mallet in the latter part of February, that Respondent offered the job to Mallet in mid-March, and that Mallet Concluding Findings This case involves a highly competent employee who is precipitously discharged upon Respondent's "verification" of his union affiliation. Although Respondent purportedly made a decision to release Thompson long before Thomp- son joined the Union and it purportedly also decided not to effectuate the decision until a "suitable replacement" be found, Respondent discharged Thompson before offering a job to his replacement or, according to Anderson's testimony, before even interviewing any applicants for the job. Only one inference is tenable in my opinion upon consideration of all the facts and circumstances relating to Thompson's termination. I conclude that Respondent discharged Thompson for joining the Union and for no other reason. CONCLUSIONS OF LAW 1. Nemacolin Mines Corporation is a successor to Buckeye Coal Company and both are employers within Section 2(6) and (7) of the Act. 2. United Steelworkers of America, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. Ralph Thompson was an "employee" within the meaning of Section 2(3) of the Act and was not either a supervisor within the meaning of Section 2(11) of the Act or a managerial employee excluded under the Act. 4. By discharging Thompson on March 5, 1976, Respondent has violated Section 8(a)(1) and (3) of the Act. This conduct affects commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action , including reinstating and making Thompson whole, in order to effectuate the policies of the Act. All backpay computations shall be in accordance with F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). In accordance with discussion of the matter at the hearing, the order will be issued against Nemacolm Mines Corporation as successor to Buckeye Coal Company. Upon the foregoing findings and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: BUCKEYE COAL CO. 663 ORDERS The Respondent, Nemacolin Mines Corporation, succes- sor to Buckeye Coal Company, Nemacolin, Pennsylvania, its officers, agents, successor, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against employees for joining United Steelworkers of America, AFL-CIO-CLC, or any other union. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Ralph Thompson 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, and make him whole as set forth in "The Remedy" section, above, for any loss of earnings suffered as a result of the discrimination against him. (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 and the right of reinstatement under the terms of this recommend- ed'Order. (c) Post at its accounting office in Nemacolin, Pennsylva- nia, the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Respondent, 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 accounting department employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 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 herem 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. 4 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL reinstate Ralph Thompson and make him whole for earnings lost since his discharge. WE WILL NOT discharge or otherwise discriminate against employees for joining United Steelworkers of America, AFL-CIO-CLC. NEMACOLIN MINES CORPORATION, SUCCESSOR TO BUCKEYE COAL COMPANY