Teresa Coal Company, Inc.

TERESA COAL COMPANY, INC. 317 Teresa Coal Company, Inc. and Roy Delong. Case Upon the entire record and my observations of the de- 9-CA-15265 meanor of witnesses as they testified, I make the follow- ing: November 18, 1981 FINDINGS OF FACT DECISION AND ORDER I. JURISDICTION BY CHAIRMAN VAN DE WATER AND MEMBERS FCHAIRMANNING AND ZIMMWATERAND Respondent is a Kentucky corporation with offices and places of business in Canada and Sidney, Kentucky, On June 30, 1981, Administrative Law Judge where it has been engaged in the mining of coal. During Claude R. Wolfe issued the attached Decision and the 12 months preceding the issuance of the complaint, a on July 8, 1981, an erratum thereto in this proceed- representative period, Respondent, in the course and ing. Thereafter, Respondent filed exceptions and a conduct of its business operations, purchased and re- supporting brief, and the General Counsel filed a ceived at its Canada, Kentucky, facility goods and mate- suporting brief, and the A Geneiral Counsel filed a rials valued in excess of $50,000 directly from points out- brief in support of the Administrative Law Judge's side the State of Kentucky. Respondent is now, and has side the State of Kentucky. Respondent is now, and has Decision. been at all times material herein, an employer engaged in Pursuant to the provisions of Section 3(b) of the commerce within the meaning of Section 2(2), (6), and National Labor Relations Act, as amended, the Na- (7) of the Act. tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. II. THE ALLEGED UNFAIR LABOR PRACTICES The Board has considered the record and the at- A. Facts Found' tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- The coal seam at Respondent's mine is reached via an ings,' and conclusions of the Administrative Law entrance way approximately 54 inches high at its lowest Judge and to adopt his recommended Order. point and 18 to 20 feet wide extending about a half mile, or slightly less, from the outside entry to the work sta- ORDER tion. Prior to the coming of Section Boss Elmer Coyer in January 1980,2 the men negotiated the entry passage Pursuant to Section 10(c) of the National Labor by either walking in or riding in the bucket of a motor- Relations Act, as amended, the National Labor Re- ized scoop. The bucket measures about 6 by 9 feet, and lations Board adopts as its Order the recommended the entire crew of 12 or 13 men would be carried in the Order of the Administrative Law Judge and scoop at one time. Scoops are commonly used for such a hereby orders that the Respondent, Teresa Coal purpose in area mines, and Ray Chapman, district super- Company, Inc., Sidney, Kentucky, its officers, visor, Kentucky Department of Mines and Minerals, con- agents, successors, and assigns, shall take the actio~n vincingly testified that so long as scoops are in good set forth in the said recommended Order condition they are considered legally safe for usage in transportation of workers underground. Chapman's office has received no complaints, or issued any citations, or Respondent has excepted to certain credibility findings made by the has received no complaints, or issued any citations, or Administrative Law Judge. It is the Board's established policy not to found any violations in Respondent's use of scoops. overrule an administrative law judge's resolutions with respect to credi- There is no evidence that any employee has suffered any bility unless the clear preponderance of all of the relevant evidence con- physical injury while riding the scoop. vinces us that the resolutions are incorrect. Standard Dry Wall Products. On those occasions when employees walk into the Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have mine they are paid for the time thus spent, with overtime carefully examined the record and find no basis for reversing his findings. pay for any portion of that time over and above regular DECISION working hours. Shortly after Elmer Coyer came to the mine in Janu- STATEMENT OF THE CASE ary, he instituted the use of a mantrip to convey workers in and out of the mine. A mantrip is a rectangular con- CLAUDE R. WOLFE, Administrative Law Judge: This veyance measuring about 8 by 20 feet. The one in use at case was ably heard by both parties before me in Hun- Respondent's mine was characterized by some witnesses tington, West Virginia, and Pikeville, Kentucky, on Jan- as a sled, from which I conclude it was on runners, uary 8 and March 25 and 26, 1981, pursuant to charges pulled by the scoop. filed on April 30, 1980, and the complaint issued June 4, The employees rode in the mantrip until about 2 1980. The complaint alleges violations of Section 8(a)(1) weeks prior to April 17, when it became unusable be- of the Act, as amended, consisting of the discharge of cause the access road was so wet and muddy, with holes eight coal miners because they engaged in protected con- in the roadway, that the mantrip could not traverse it certed activity, and a threat to discharge employees if without becoming stuck. The condition of the road was they refused to enter the coal mine involved herein. Respondent denies that it has committed the unfair With minor exceptions, there is substantial agreement among the wit- nesses regarding the relevant facts. labor practices alleged. Both parties filed post-trial briefs. 2 All dates are in 1980. 259 NLRB No. 47 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such that the scoop also occasionally became stuck in the spondent's office manager, that Walters told Coyer to roadway or could only progress halfway in. In either tell the men they could either ride the scoop, walk in, or case the men had to get out and walk. "go to the house" (a localism for "go home"). Coyer de- After the poor road conditions made it impossible to livered this message. The men offered to remain and use the mantrip, the men either rode the scoop in and work if they could work at repairing the roadway. This out or walked. During this 2-week period, the second- offer was declined, and eight of the employees left,5 after shift men had several discussions among themselves con- telling Coyer they would be back on Monday, April 21. cerning their complaints about the scoop. The primary The five second-shift employees who did not leave were topic of discussion was the possibility of injury to men put to work repairing the road. riding in the scoop if it should rise up sufficiently to push David Thornsbury testified that, as he was leaving, he them out against the ceiling. The evidence establishes encountered Walters who told him that if the men that on frequent occasions the scoop would start to rise walked off the hill they would not have a job. Walters' toward the ceiling, which caused the riders to shout to version was that he told Thornsbury and a couple others the operator who then took appropriate action to lower that if they went home they quit as far as he was con- it. It appears that the scoop's trailing edge could rise at cerned. Both versions convey basically the same message least 24 inches, leaving only about a 30-inch clearance that employees who left would be separated, but I credit for the seated men. I conclude it would be quite possible the version of Thornsbury, a more impressive witness for a sitting man of average height to be pushed against than Walters. Office Manager Sparks agrees with Wal- the ceiling in the event of a 24-inch rise. Coyer3 con- ters that the eight who left were no Ionger employees cedes that he heard the men complain of being fright- after they walked off on April 18 because by leaving after they walked off on April 18 because by leaving ened by the propensity of one of the two scoops availa- the uit ble to rise without notice due to a stuck control lever. It y q also appears that the scoop bucket was sometimes caused All eight returned at the beginning of their shift on to rise by the operator's maneuvering over the various April 21.6 I find they were prepared to go to work and dips and bumps in the road. The men were also con- had their work clothes and equipment with them. They cerned about the possibility the scoop ejector might acci- met with Walters and Sparks because they heard from dently push them off the back edge of the scoop.4 The other employees that they had been fired. Walters told men also complained, and advised Coyer, that they were them he could not let them go to work because they had afraid they would be unable to get out of the mine quick- quit. The men countered that they had not quit and were ly if they got hurt. This concern was exacerbated by the ready to go to work. Walters repeated they had quit and fact that two other employees had been injured in the he could not let them go to work if he wanted to, and mine within 2 weeks of April 17 and had to be carried the men persisted that they were fired. The "quit" versus out by men on foot, a rather difficult and time-consum- "fired" argument went on for a few minutes until Wal- ing project considering the height of the passage. This ters told them to go to the Board if they thought they latter concern helps to explain the employees' later rejec- had a case. They then left. No more than two new em- tion of the opportunity to walk in to work. ployees had been hired prior to the return of the eight At the end of their shift on April 17, about 6:30 p.m., on April 21. all 13 men on the second shift talked to Coyer in a Prior to the second shift "going to the house" on April group, and told him that the roadway needed repairing 18, the first shift walked out on April 18 protesting the and if it was not fixed so they could ride in the mantrip nonpayment of a production bonus. Two first-shift em- they would not ride the scoop on April 18. I conclude ployees quit rather than go back in. Contrary to Re- this ultimatum was immediately precipitated by the fact spondent, the evidence does not convincingly show more that the scoop bucket had risen on the way out that eve- than a vague suspicion that the second shift may have ning. left for the same reason, and the clear preponderance of Coyer promised to speak to Lacy Walters, who was the evidence shows they left for the reasons expressed to then Respondent's president but has since severed this Coyer on April 17 and 18. connection. I credit Coyer that he spoke to Walters that evening and told him they needed to repair the roadway B. Concluding Findings and operate the mantrip because the scoop was crowded. When the employees spoke to Elmer Coyer on April Coyer, who himself had once fallen out of the scoop as 17 and 18 protesting the use of the scoop for transporta- had another employee, had previously made similar re- tion, and, in effect, demanding the road be fixed and the quests to Walters, but the road was not yet repaired on mantrip be put in service before they entered the mine, mantrip be put in service before they entered the mine, April 17. On April 18, the second-shift employees gathered at they were acting concertedly in pressing a grievance of concern to them all. That concerted action was clearly the mine shortly before the 2:30 p.m. starting time. The concern to them all. That concerted action was clearly roadway was not repaired, nor was the mantrip there. protected because the method of transportation in and The men met with Coyer and said that they were not out of the mine is clearly a condition of employment. The men met with Coyer and said that they were not going to ride the scoop because it was dangerous. Coyer Roy Delong, Wade Thacker, David Maynard, David Thornsbury, then went and talked to Walters. I credit Bill Sparks, Re- La Roy n, Steven Morris, Jero DNewsome and William F. Scott. 6 This account of the events of April 21 is a fair summary of the com- Coyer is no longer associated with Respondent. plementary credible portions of the testimony of Roy Delong, William 'The scoop is a very slow moving vehicle, and its speed was not dis- Scott, David Thornsbury, Larry Smith, Jerome Newsome, and Bill cussed as a factor by the employees. Sparks. Testimony to the contrary is expressly discredited. TERESA COAL COMPANY, INC. 319 The evidence with respect to the hazards of riding the bury, Larry Smith, Steven Morris, Jerome Newsome, scoop and the possible consequences of any delay occa- and William Scott on April 1810 because they engaged in sioned by the necessity of carrying out an injured em- protected concerted activity. This finding is based on ployee on foot establishes that the employees' action in and fully consistent with the teachings of the Supreme protesting these conditions and requesting road repair Court in N.L.R.B. v. Washington Aluminum Co., 370 and the return to use of the mantrip as conditions prece- U.S. 9 (1962). Respondent's reliance on G. H. Reed and dent to their entering the mine was not indefensible. 7 G. A. Reed, d/b/a Wind River Logging Company v. The repair of the road which would permit the use of N.L.R.B., 430 F.2d 331 (lOth Cir. 1970); and N.L.R.B. the mantrip was certainly not an unreasonable request, as v. Fruin-Colnon Construction Co. and Utah Construction shown by Respondent's immediate start of that repair on and Mining Co., a Joint Venture, 330 F.2d 885 (8th Cir. April 18. 1964), both denying enforcement of Board orders, is mis- The employees have a statutory right to withhold their placed because both are inapposite on their facts; the services in support of their grievance, and Respondent issue in Fruin-Colnon is the applicability of Section 502 could not lawfully discharge them because they contin- of the Act to a strike in violation of a collective-bargain- ued adamant in that refusal to work absent a remedy for ing agreement; and nothing is more firmly established their complaint,' nor could Respondent lawfully con- than the proposition that administrative law judges must front them with the choice of abandoning their statutory follow Board precedents until the Board or the Supreme right or being terminated as employees. These alterna- Court overrules them." tives were placed before the employees on April 18 by I further find that Respondent violated Section 8(a)(1) Coyer, pursuant to Walters' instructions, and plainly con- of the Act by refusing the discharged employees rein- veyed that discharge was imminent if they did not aban- statement when they attempted to return to work on don their protected concerted withholding of services. I April 21. I view this as a continuation of the initial un- find this amounts to a threat of discharge violative of lawful discharge and an effort to further perfect it. Wal- Section 8(a)(1) of the Act, and although not specifically ters' statement that he could not let them go to work if alleged in the complaint it is fairly encompassed by com- he wanted to constitutes an admission that he did not plaint allegations, was fully litigated, and is intimately re- want to. The rccord requires a conclusion that the only lated to the subject matter of the complaint and the un- discernible reason that he would not want to take them derlying charge.' Similarly, the statement of Lacy Wal- back was their concerted activity, all of which buttresses ters to David Thornsbury that the men would have no my original conclusion of unlawful discharge on April job if they left was a threat of discharge for engaging in 18. protected concerted activity, and violated Section 8(a)(1) of the Act. Ill. THE REMEDY Although Respondent would have it that the eight em- Although Respondent would have it that the eight em- In addition to the usual cease-and-desist order and the ployees voluntarily quit on April 18 when they "went to the house," I cannot agree. Respondent's view that the posting of appropriate notices, my recommended Order men were given reasonable alternatives, particularly that will require Respondent to offer unconditional reinstate of walking in on paid time, and therefore voluntarily quit ment to the eight employees discharged on April 18 to when they left, is understandable, but is in error. There their former jobs, or substantially equivalent employment is no requirement in the statute or precedent that I have if those jobs no longer exist, and make them whole for found requiring employees to abjure a colorable griev- all wages lost by them as a result of their unlawful dis- ance merely because the employer presents an alternative charge, such backpay and interest thereon to be comput- arguably reasonable but not acceptable to them. ed in the manner prescribed in F. W. Woolworth Compa- The men did not quit on April 18, but were in fact ter- ny, 90 NLRB 289 (1950), and Florida Seel Corporaion, minated on that date. That they had no intention of quit- (1977). ting is evidenced by their advice to Elmer Coyer that CONCLUSIONS OF LAW they would return on April 21 and by their return on that day ready to work. Moreover, the aforementioned 1. Respondent is an employer engaged in commerce threats of Coyer and Walters, together with the state- within the meaning of Section 2(2), (6), and (7) of the ments of Sparks and Walters that the men ceased to be Act. employees when they left on April 18, warrant a conclu- 2. By threatening its employees with discharge because sion that Respondent implemented its threats of termina- they engaged in protected concerted activity, Respond- tion because the eight employees continued to withhold ent violated Section 8(a)(1) of the Act. their services. I find and conclude that Respondent vio- 3. By discharging and refusing to reinstate Roy lated Section 8(a)(1) of the Act by discharging Roy Delong, Wade Thacker, David Maynard, David Thorns- Delong, Wade Thacker, David Maynard, David Thorns- bury, Larry Smith, Steven Morris, Jerome Newsome, ' This does not mean the conditions complained of were objectively 'o The complaint alleged April 21 as the date of discharge I granted a unsafe, which I need not determine inasmuch as this case does not raise a motion to conform the pleadings to the proof insofar as minor variations question cognizable under Sec. 502 of the Act, but is, rather, concerned in names and dates are concerned, and the complaint allegation of dis- solely with the concerted presentation of a grievance and the exercise of charge "On or about April 21, 1980," is sufficient in itself. Omico Plastics. the right to cease work in support thereof. Inc., 184 NLRB 767, 770 (1970). 'Ontario Knife Company, 247 NLRB 1288 (1980). " loa Beef Packers, Inc., 144 NLRB 615 (1963). 'Ackerman Manufacturing Company, 241 NLRB 621 (1979). 12 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and William Scott because they engaged in protected dix.""4 Copies of said notice, on forms provided by the concerted activity, Respondent violated Section 8(a)(1) Regional Director for Region 9, after being duly signed of the Act. by Respondent's authorized representative, shall be 4. The aforesaid unfair labor practices are unfair labor posted by Respondent immediately upon receipt thereof, practices affecting commerce within the meaning of Sec- and be maintained by it for 60 consecutive days thereaf- tion 2(6) and (7) of the Act. ter, in conspicuous places, including all places where no- Pursuant to Section 10(c) of the Act, I hereby issue tices to employees are customarily posted. Reasonable the following recommended: steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other ORDER13 material. The Respondent, Teresa Coal Company, Inc., Sidney, (d) Notify the Regional Director for Region 9, in writ- Kentucky, its agents, officers, successors, and assigns, ing, within 20 days from the date of this Order, what shall: steps the Respondent has taken to comply herewith. 1. Cease and desist from: (a) Threatening to discharge employees because they 4 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by engage in protected concerted activities. Order of the National Labor Relations Board" shall read "Posted Pursu- (b) Discharging or refusing to reinstate employees, or ant to a Judgment of the United States Court of Appeals Enforcing an otherwise discriminating in any manner with respect to Order of the National Labor Relations Board." their tenure of employment or any term or condition of their employment, because they engage in protected con- APPENDIX certed activities. (c) In any like or related manner interfering with, re- NOTICE To EMPLOYEES straining, or coercing its employees in the exercise of the POSTED BY ORDER OF THE rights guaranteed them by Section 7 of the Act. NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action designed to ef- An Agency of the United States Government fectuate the policies of the Act: (a) Offer immediate and full reinstatement to their WE WILL NOT threaten our employees with dis- former positions or, if such positions no longer exist, to charge because they engage in concerted activity substantially equivalent positions to Roy Delong, Wade protected by the National Labor Relations Act. Thacker, David Maynard, David Thornsbury, Larry WE WILL NOT discharge or refuse to reinstate Smith, Steven Morris, Jerome Newsome, and William any of our employees, or in any other manner dis- Scott, and make them whole for any loss of earnings criminate against them in regard to their tenure of they may have suffered as a result of the discrimination employment or other term or condition of their em- against them, in the manner set forth in the section enti- ployment because they engage in concerted activity tled "The Remedy." protected by the Act. (b) Preserve and, upon request, make available to the WE WILL NOT in any like or related manner in- Board or its agents, for examination and copying, all terfere with, restrain, or coerce employees of the payroll records, social security payment records, time- rights guaranteed them by Section 7 of the Act. cards, personnel records and reports, and all other re- WE WILL offer Roy Delong, Wade Thacker, cords necessary to analyze the amount of backpay due David Maynard, David Thronsbury, Larry Smith, under the terms of this recommended Order. Steven Morris, Jerome Newsome, and William (c) Post at Respondent's place of business in Sidney, Scott immediate and full reinstatement to their Kentucky, copics of the attached notice marked "Appen- former jobs or, if those jobs no longer exist, to sub- stantially equivalent employment, without prejudice to their rights and privileges previously enjoyed, I In the event no exceptions are filed as provided by Section 102.46 of and make them whole for any loss of pay they may the Rules and Regulations of the National Labor Relations Board, the have suffered by reason of our unlawful discrimina- findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and tion against them, with interest computed thereon. become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. TERESA COAL COMPANY, INC.