Rebel Coal Company

258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rebel Coal Company, Inc. and United Mine Work- "(a) Reopen and reestablish its auto repair shop ers of America and Van G. Cope. Cases 9-CA- operation." 15236 and 9-CA-16336 2. Substitute the attached notice for that of the Administrative Law Judge. November 13, 1981 APPENDIX DECISION AND ORDER NOTICE TO EMPLOYEES BY MEMBERS FANNING, JENKINS, AND POSTED BY ORDER OF THE POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD On June 11, 1981, Administrative Law Judge An Agency of the United States Government Richard H. Beddow, Jr., issued the attached Deci- sion in this proceeding. Thereafter, Respondent After a hearing at which all sides had an opportu- filed exceptions and a supporting brief. nity to present evidence and state their positions, Pursuant to the provisions of Section 3(b) of the the National Labor Relations Board found that we National Labor Relations Act, as amended, the Na- have violated the National Labor Relations Act, as tional Labor Relations Board has delegated its au- amended, and has ordered us to post this notice. thority in this proceeding to a three-member panel. WE WILL NOT threaten our employees with The Board has considered the record and the at- loss of employment, or lay off employees, or tached Decision in light of the exceptions and brief otherwise discriminate against them, because and has decided to affirm the rulings, findings, and of their activities in pursuit of union affiliation conclusions of the Administrative Law Judge, to for purposes of collective-bargaining represen- modify his remedy, ' and to adopt his recommended tation. Order,2I as modified herein.3IWE WILL NOT in any other manner interfere ORDER with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- Pursuant to Section 10(c) of the National Labor tion 7 of the National Labor Relations Act. Relations Act, as amended, the National Labor Re- WE WILL reopen and reestablish our auto lations Board adopts as its Order the recommended repair shop operation. Order of the Administrative Law Judge, as modi- WE WILL offer immediate and full reinstate- fled below, and hereby orders that the Respondent, ment to Glen Allen, Mickey Lawson, Gary Rebel Coal Company, Inc., Auxier, Kentucky, its Ferguson, Robert Sturgill, Sam Amos, Eric officers, agents, successors, and assigns, shall take Picklesimer, and Van G. Cope to their former the action set forth in the said recommended the action set forth in the said recommended jobs or, if those jobs no longer exist, to sub- Order, as so modified: stantially equivalent positions, without preju- . Insert the following as paragraph 2(a) and re- dice to their seniority or any other rights or letter the subsequent paragraphs accordingly: privileges previously enjoyed, and WE WILL make them whole, with interest, for any losses See Isis Plumbing d Heating Co., 138 NLRB 716 (1962), for rationale make them whole, with interest, for any losses on interest payments. they may have suffered as a result of the dis- 2 Inasmuch as we have found that Respondent violated the Act by crimination against them. laying off employees through the discriminatory closing of its "auto" repair shop, we will require Respondent to reopen and reestablish the repair shop operation in order to restore the status quo ante existing prior REBEL COAL COMPANY, INC. to its commission of unfair labor practices. As noted by the Administra- tive Law Judge, while the record contains general testimony indicating DECISION that Respondent has experienced some overall financial difficulties, the record is devoid of evidence showing the actual financial condition of the STATEMENT OF THE CASE "auto" repair shop operation at the time of its closing or its anticipated costs based on actual operating practices. We have long held that restora- RICHARD H. BEDDOW, JR., Administrative Law Judge: tion of the status quo ante following an unfair labor practice is prima facie This matter was heard before me in Prestonsburg, Ken- appropriate and that the burden rests with Respondent to demonstrate that it is not appropriate. N. C. Coastal Motor Lines. Inc.. 219 NLRB tucky, on March 12, 1981. The proceeding is based on a 1009 (1975), enfd. 542 F.2d 637 (4th Cir. 1976). Since the record provides charge filed April 24, 1980, by the United Mine Workers no basis to conclude that a normal status quo ante remedy would be of America, and a charge filed individually on January unduly burdensome or endanger Respondent's continued viability, we 19 1981 by Van G. Cope. The General Counsel's com- find that such a remedy is appropriate herein. Accordingly, we have modified the Administrative Law Judge's recommended Order and will plaint alleges that Respondent Rebel Coal Company, Inc. require Respondent to reopen and reestablish its "auto" repair shop oper- (herein called Respondent), Auxier, Kentucky, violated ation. Cf. Capitol Chrysler-Plymourh of Montgomery. 242 NLRB 1274 Section 8(a)(1) and (3) of the National Labor Relations (1979). Act, as amended (herein called the Act) through state- 3 In accordance with his partial dissent in Olympic Medical Corporation, A, 250 NLRB 146 (1980), Member Jenkins would award interest on the ments of supervisors and by its actions of closing an backpay due based on the formula set forth therein. automotive repair shop and laying off certain employees. 259 NLRB No. 33 REBEL COAL COMPANY 259 Briefs were filed on or before April 16, 1981, by the sign the national contract and was told that the Union General Counsel and Respondent. Upon a review of the was willing to negotiate a contract that was tailored to entire record in this case and from my observations of the employees of Respondent's operation. Rogers replied the witnesses and their demeanor, I make the following: by stating that ". . . before I'll sign a contract for those people, I'll shut the place down and farm the work out." FINDINGS OF FACT At that point, a representative of the local coal associ- 1. JURISDICTION ation advised Rogers not to say anything further. At some point Rogers also said it would be cheaper to close Respondent's answer admits that it is a West Virginia the shop down. The Union advised Rogers of the em- corporation with an office and place of business at ployee's rights and that it would closely monitor the situ- Auxier, Kentucky, where it is engaged primarily in the ation and the meeting ended.' mining of coal and that during a representative 12-month On March 10, the Union filed a petition to represent period it purchased and received at its Auxier facility Respondent's employees at the auto shop and farm oper- goods and materials valued in excess of $50,000 directly atons. Shortly thereafter, Brad Walls, who ran the auto from points outside the State of Kentucky. At all times shop, was told by Respondent's superintendent, Charles material herein, Respondent is and has been an employer Williams, that Respondent was "going to have to start within the meaning of Section 2(2) of the Act, engaged farming work out, because they were going to be shut- in commerce and in operations affecting commerce ting the shop down on account of the Union." Walls also within the meaning of Section 2(6) and (7) of the Act. testified that during the previous summer Rogers told Walls to fire a new employee who had remarked about poor working conditions and something about the Union. Respondent also admits in its answer that the United Rogers said he did not want to hear any more about the Mine Workers of America (herin called the Union) is Union and that he would close the auto shop before he now and has been at all times material herein a labor or- let it go union. ganization within the meaning of Section 2(5) of the Act. On a Saturday morning, March 29, Respondent closed its auto shop operations. Two or three employees were III. THE ALLEGED UNFAIR LABOR PRACTICES at work when Williams and another of Respondent's offi- Respondent operates a coal mine in the Prestonsburg cials, Terry McGaffee, arrived at the auto shop and Wil- and Paintsville, Kentucky, area. Prior to March 29, 1980, liams placed a sign which said "no work until further it operated an auto repair shop near Paintsville for the notice" on the windshield of the truck on which the em- maintenance and repair of vehicles (primarily nondiesel ployees were installing an engine. One of the employees powered), used in connection with its coal business. It asked whether they were fired or laid off. Williams re- also had another location known as the "farm" near sponded that he really did not know. Later, Williams Paintsville, where it repaired vehicles, primarily diesel told him that he was laid off until further notice and, in powered, and which location served as a reporting area response to a further question, that Respondent would for employees who perform over-the-road truck driving prepare some layoff slips. The employees were not given work. The involved repair employees and drivers at any specific reason as to why they were being laid off; these locations were not represented by the Union. How- however, during the next week, the employees were ever, Respondent's other production and maintenance given layoff slips which stated that they were being laid employees were represented by the Union and covered off for economic reasons. The employees were given by the National Bituminous Coal Wage Agreement of their layoff slips by Williams, who did not otherwise ex- 1978. plain the economic reasons for their layoff. Approximate- Early in 1980, the United Mine Workers of America ly 2 weeks after the layoff of the auto shop employees, was contacted by certain nonunion employees of Re- laid-off employee Eric Picklesimer spoke with Dale spondent. The Union was of the opinion that the auto Mosley, supervisor at the farm, at Respondent's office. shop and farm operations and employees were not cov- Mosley told Picklesimer that the employees "shouldn't ered by the existing contract. Consequently, representa- have done it," and that they "messed things up by what tives of the Union met with employees Sam Amos and we had done." Doug Daniels, who signed cards for the Union and who were given additional authorization cards to be signed by The Farm the remainder of the approximate eight nonunion em- Van Cope was a truck driver and part-time mechanic ployees in the auto shop and four employees at the farm. who worked at the "farm." He along with other employ- The following day 12 signed authorization cards were The following day 12 signed authorization cards were ees had signed authorization cards with the Union in Jan- returned, representing all of Respondent's nonunion em- ees had signed authorizationdent had learned that the Union in Jan- in the auto shop and farm locations. uary 1980. After Respondent had learned that the em- ployees in the auto shop and farm locations. ployees had signed cards for the Union, Supervisor The Auto Shop Mosley asked the employees why they did not discuss the matter with him and Williams to try to work some- On February 21, 1980, the union representatives met thing out. Sometime in April 1980, Cope had a conversa- with Odell Rogers, Respondent's president, and two or three supervisors, and advised him of the authorization ' The Charging Parties' testimony in this respect was not rebutted and cards. Rogers asked if the Union expected Respondent to Rogers was not called as a witness by Respondent. 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion with Mosley in the presence of other employees made that the auto shop at Prestonsburg be closed; how- who worked at the farm. The employees were concerned ever, the owners apparently chose not to do so and in- about what might happen to their jobs in view of the stead, during December 1979, moved the facilities sever- recent auto shop layoff and their pending representation al miles to Paintsville. Although it was confronted with a election. Cope acted as the spokesman for the group and $750,000 delinquent tax lien by the Internal Revenue began the conversation by asking Mosley what would Service, a number of lawsuits by creditors, and some happen to the employees at the farm. Mosley replied by equipment repossession, Respondent was able to obtain saying that he had been told that the employees would some refinancing and restructuring of its financial affairs. all get their "DCM papers as soon as your name's been During the first 8 months of 1980, Rebel and its subsid- voted yes." It was understood that "DCM" stood for iaries laid off employees as follows: 16 in January, 6 in "Don't Come Back Monday." Cope persisted by asking February, 10 in March, 35 in May, 12 in June, and 133 in Mosley if the employees were going to be fired, and August. Mosley responded that they would not be fired but In early February 1980, Jim Hoskins, the company ac- would be shut down. Cope continued the conversation countant, was requested to analyze the cost of continuing by asking Mosley if that was what happened at the auto to operate the Paintsville auto shop as opposed to con- shop. Mosley replied that he was not going to say that tracting the work out to independent businesses. A writ- the Union did not have anything to do with it, but that a ten report purportedly was submitted in late February.2 woman had been threatening a lawsuit against Respond- It concluded that a cost savings of approximately $58,000 ent concerning trespassing or something. On a subse- a year could be obtained by closing the auto shop and quent occasion, Cope discussed the Union with Mosley contracting the repair work to outside sources. Accord- at which time he told Mosley he was in favor of the ing to Hoskins, this savings would be further increased Union so that the employees could get the money and by savings on insurance, and overhead in addition to util- benefits that they deserved. benefits that they deserved. ities, telephone, and rent. The study assumed weekly An election was conducted on July 31, 1980. Three farm employees, James Penningted on July 31,, David G riffith, and union wages for 480 hours (eight workers at 40 regular farm employees, James Pennington, David Griffith, and hours $10.50 an hour and 20 overtime hours $15.75 an hours, $10.50 an hour, and 20 overtime hours $15.75 an Cope, voted ballots which were known to be for the s s Union because of challenges to the other ballots. hour, plus union benefit cost) compared to 400 hours a Cope worked from Friday, Au9ust 22, until approxi- week for outside sources at $18.50 an hour. No analysis mately 4 a.m. Saturday morning, driving a piece of was made of actual auto shop cost nor was any recogni- equipment from one of Respondent's mines to another. tion made of the fact that the employees were not paid Around 11 a.m. Saturday he went to the office to get his union wages and in fact were paid on straight salary for paycheck. Mosley gave Cope his paycheck with an at- a 6-day workweek which regularly exceeded 60 hours a tached layoff slip that stated that he would be terminated week with no additional compensation for hours worked and placed on temporary layoff until further notice due beyond 40 hours a week or 8 hours a day. to a reduction in the work force. Cope reacted angrily and made a statement about being worked all day and night before being laid off. In response, Mosley stated Upon a review of the briefs and the entire record, I that Cope did not have to worry about the matter be- am satisfied that the evidence presented by the General cause he would never work there again. One other em- Counsel has established by a preponderance of the evi- ployee, Griffith, also was laid off on Auqust 23. Howev- dence that Respondent has engaged in unfair labor prac- er, Griffith was recalled about 2 or 3 weeks later. After tices in violating Section 8(a)(1) and (3) of the Act. his recall, Griffith performed work which Cope had per- Respondent, through its president, expressed intentions formed. Employee Pennington, who performed the same to avoid collective-bargaining obligations to its repair type of work, was not laid off on August 23 even though shop employees by the threatened closing of the auto he had less seniority with Respondent than Cope. Cope shop facilities. Respondent knew of the union interest of was never recalled. the involved employees and Respondent's supervisors knew of and expressed the Company's union animus re- garding the repair shop employees. There is no real dis- Respondent's financial vice president, Roy Debo, pre- pute regarding the factuality of the statements made by sented the Company's recent financial background which Respondent's officials, and, when such statements are in 1979 was described as "unbelievable" due to a lack of read in the context of the prounion interest and activities records and a lack of fundamental financial organization. of the auto shop employees, the conclusion properly may At that time, when Debo first joined the Company, be reached that the statements constituted threats of job Rebel was composed of 10 to 12 operating companies loss designed to influence the votes and union activities and a financial analysis revealed that: ". .. they were all of the employees. Accordingly, I conclude that Respond- losing money very, very rapidly." ent has violated Section 8(a)(1) as alleged. In the fall of 1979, Debo closed the Company's West Respondent's principal defense is directed at the Virginia auto shop as well as a deep mine operation and 8(a)(3) allegation. This defense is based on a claim that one of its strip mine operations. Also, 15 percent of the the closing of the auto shop and resulting layoff of em- Company's vehicles were eliminated over a 6-month ployees was due to economic necessity, uninfluenced by period and the Company was put on a cash operating basis. During October 1979, an oral recommendation was 2 The report, Resp. Exh. 2, is undated. REBEL COAL COMPANY 261 any union animus. Although Respondent has supplied Respondent asserts that Cope's layoff was for econom- general testimony indicating that the Company (includ- ic reasons and that it was consistent with a large number ing its component operations) had financial difficulties in of other layoffs during the same general time period; 1979, there is no specific showing of the actual financial however, Cope was treated differently than the other condition of the Company or of the auto shop operation. employees who shared a similar background, and the Respondent did present a theoretical analysis of oper- main distinguishing factor was his outspokenness on ation at union wage levels; however, no attempt was behalf of the Union.4 Respondent, through remarks made made to show actual or computed cost based on the to Cope by his supervisor and as otherwise indicated facilities' actual operating practices. The use of union above, is shown to have held negative feeling regarding scale for the theoretical calculation was not called for in union representation for its nonunion operations. Accord- light of the Union's expression of willingness to negotiate ingly, I conclude that the predominant reasons for a contract separate from the National Bituminous Coal Cope's layoff (and lack of recall) were his union sympa- Wage Agreement. Moreover, the study was not complet- thies and activities and I conclude that Respondent vio- ed until after the union petition had been filed and after lated Section 8(a)(3) as alleged. Respondent clearly was aware of the employees' union interest. I conclude that Respondent's cost analysis actu- CONCLUSIONS OF LAW ally is indicative of a predisposition regarding unioniza- i. Respondent is an employer engaged in commerce tion of the auto shop; that the analysis was made becauseand (7) of the Act of the union campaign; and that the resulting conclusions 2. The Union is a labor organization within the mean- drawn by the Respondent are not reliable or believable indications that would support Respondent's assertions ing of Section 2(5) of the Act. that the auto shop operations were closed due to eco- ~ 3. By threatening to close the auto repair shop before it would sign a union contract and by telling employees The record otherwise shows that Respondent felt eco- at the farm location that they would, in effect, be fired if The record otherwise shows that Respondent felt eco- nomically justified in moving the repair shop and keep- they voted for the Unon i the scheduled election, Re- ing it in operation as long as it could continue to pay its spondent interfered with, restrained, and coerced em- employees a flat salary for a regular 60-hour plus work- ployees in the exercise of their Section 7 rights and en- week. And, despite Respondent's recognition of the gaged in unfair labor practices in violation of Section Union for its mining production and maintenance work- 8(a)(1) of the Act ers, the record otherwise shows that it held an antiunion 4. By laying off employees Glen Allen, Mickey attitude regarding its repair shop operations during the Lawson, Gary Ferguson, Robert Sturgill, Sam Amos, general period of time prior to the closing of the auto Eric Picklesimer, and Van G. Cope because of their ac- shop.3 The record persuasively shows that Respondent tivities in support of the Union, Respondent discriminat- would have kept the auto shop in operation as long as it ed in violation of Section 8(a)(3) and (1) of the Act. could have continued nonunion operations and that the THE REMEDY reason for closing was to avoid collective bargaining with the Union which might result in anticipated higher Having concluded that Respondent has engaged in cost of operation. Under these circumstances, I conclude certain unfair labor practices, I shall recommend that it that there existed specific union animus which was the be ordered to cease and desist therefrom and that it take motivating factor for the closing of the auto repair shop certain affirmative action as set forth below to effectuate and the resulting layoff of the involved employees; that the purposes and policies of the Act. Respondent has not shown good cause for the closing of Under circumstances involving the unlawful shutdown the auto repair shop; and that the employees would not of a specific operation and termination of the personnel have been discharged, despite possible overall company therein, it may be considered to be desirable that a re- financial problems, except for their prounion activities. spondent be required to restore the status quo ante. The Accordingly, I further conclude that Respondent violat- remedy can be an order requiring the reopening of a fa- ed Section 8(a)(3) as alleged. cility as well as making employees whole for any loss of With respect to the discharge of employee Cope, I earnings or other benefits. See Capitol Chrysler-Plymouth conclude that Cope was known by his supervisor, of Montgomery, 242 NLRB 1274 (1979). Here it is consid- Mosley, to be a union advocate at least since April 1980 ered necessary to require that Respondent offer immedi- and that Cope acted as spokesman for the "farm" em- ate and full reinstatement to Glen Allen, Mickey ployees at such time. Cope was laid off without warning Lawson, Gary Ferguson, Robert Sturgill, Sam Amos, after a period of heavy work, only 3 weeks after his July Eric Picklesimer, and Van G. Cope to their former jobs 1980 vote in favor of union representation. A less senior or, if those jobs no longer exist, to substantially equiva- employee was not laid off and another employee was lent positions of employment, and make them whole for laid off but recalled 3 weeks later to perform work Cope any losses they may have suffered as a result of the dis- had performed. Although both of these other employees crimination against them in accordance with the method also had voted for the Union, they had not been active spokesmen. ' On cross-examination of Cope, questions were asked regarding cer- tain accidents; however, there is no evidence to indicate that any cause 3 This attitude also was apparent early in 1979 at a point in time prior existed for termination because of these occurrences or that they in fact to the Respondent's financial vice president's recommendation that the played any part in the termination. No complaints were made about his shop be closed. work and he was given a pay increase a few weeks before his discharge. 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD set forth in F. W. Woolworth Company, 90 NLRB 289 G. Cope immediate and full reinstatement to their former (1950), with interest as prescribed in Florida Steel Corpo- jobs or, if those jobs no longer exist, to substantially ration, 231 NLRB 651 (1977). equivalent positions of employment, without prejudice to Based upon the entire record, findings of fact, conclu- their seniority or other rights and privileges previously sions of law, and pursuant to Section 10(c) of the Act, I enjoyed, and to make them whole for any loss of earn- hereby issue the following recommended Order: ings they may have suffered as a result of the discrimina- tion against them in the manner set forth in the section ORDER5 of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the The Respondent, Rebel Coal Company, Inc., Auxier, Board or its agents, for examination and copying, all Kentucky, its officers, agents, successors, and assigns, payroll records, social security payment records, time- shall: cards, personnel records and reports, and other records 1. Cease and desist from: necessary to analyze the amount of backpay due under (a) Threatening employees with loss of future employ- the terms of this Order. ment if they pursue union affiliation for purposes of col- (c) Post at its Auxier, Kentucky, and "farm" facilities, lective-bargaining representation. copies of the attached notice marked "Appendix."6 (b) Laying off employees or otherwise discriminating Copies of said notice, on forms provided by the Regional against them because of their actions in pursuing union Director for Region 9, after being duly signed by an au- affiliation for purposes of collective- bargaining represen- thorized representative of Respondent, shall be posted by tation. Respondent immediately upon receipt thereof, and be (c) In any other manner interfering with, restraining, maintained by it for 60 consecutive days thereafter, in or coercing employees in the exercise of rights guaran- conspicuous places, including all places where notices to teed them by Section 7 of the Act. employees are customarily posted. Reasonable steps shall 2. Take the following affirmative action necessary to be taken by Respondent to insure that said notices are effectuate the policies of the Act: not altered, defaced, or covered by any other material. (a) Offer Glen Allen, Mickey Lawson, Gary Ferguson, (d) Notify the Regional Director for Region 9, in writ- Robert Sturgill, Sam Amos, Eric Picklesimer, and Van ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. ' 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 find- , In the event that this Order is enforced by a Judgment of a United ings, conclusions, and recommended Order herein shall, as provided in States Court of Appeals, the words in the notice reading "Posted by Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Order of the National Labor Relations Board" shall read "Posted Pursu- become its findings, conclusions, and Order, and all objections thereto ant to a Judgment of the United States Court of Appeals Enforcing an shall be deemed waived for all purposes. Order of the National Labor Relations Board."