Beech Branch Coal Company

IFEECH BRANCH COAI COMPANY Beech Branch Coal Company and Donald Pittman. Case 9-CA-15425 March 12, 1982 DECISION AND ORDER BY CHAIRMAN VAN DIl WATI-R AND MIMNIBERRS FANNING AND) HUNTER On September 29, 1981, Administrative Law Judge J. Lee Benice issued the attached Decision in this proceeding. Thereafter, the General Counsel filed limited exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Laxw Judge and to adopt his recommended Order, as modified herein. We find merit in the General Counsel's limited exceptions to the Administrative Law Judge's fail- ure to order that Respondent offer discriminatees Larry Caudill, Harrad Clevins, Robert Davis, Curtis Dean, Sr.. Cecil Lamb, Henry Quesenberry, and Ernest Vickers immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges previously enjoyed. While the record discloses, as the Administrative Law Judge found, that Respondent presently is not engaged in the business involved herein, there is always the possibility that Respondent may decide to resume such operations. Accordingly. we shall order the conditional reinstatement of these employees pre- mised on the resumption of the same or substantial- ly similar business operations. Carpel City Mechani- cal Company, Inc.. et al., 244 NLRB 1031 (1979). Further, in his recommended Order, the Admin- istrative Law Judge inadvertently failed to include any injunctive cease-and-desist language. We have considered this case in light of the standards set forth in Ilickmnott Foods. Inc., 242 NLRB 1357 (1979), and have concluded that a narrow remedial order is appropriate here. Accordingly, we shall modify the recommended Order so as to provide for the narrow injunctive language. i' n the .Ihbc, I f etvIploI n,,i k I c .t;il prr /lrtrl i, I Ad ,[lllll rr.,lll\tr I .au Judge.' itnrldilng, of 8(ati ) ) x dIl l hid }1u rcioni cicin d illllll-;tl of the comin plai llc a lllig.i o. irlc t ruinIg I[lrlliil'% d.ICh large ih i tlilig o ., us do ilot ilCC-,ailril! aIlrll'c \\%itf1 fl dlll -- li ,,ol ) ' A i t' grotlllllS "11'"" uhliclh lthe iBoard might rel, Ir lironlg f . tMl[%ri l-ri 'i oi. d islg xii1lil.d the Act 260 NLRB No. 122 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Beech Branch Coal Company, Lewellyn, Ken- tucky, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order, as so modified: 1. Substitute the following for paragraph 1: "1. Cease and desist from: "(a) Discharging or otherwise discriminating against employees in regard to their hire or tenure of employment or any term or conditions of em- ployment because they engage in concerted activi- ties protected by Section 7 of the National Labor Relations Act. "(b) In the like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act." 2. Insert the following as paragraph 2(a) and re- letter succeeding paragraphs accordingly: "(a) In any event that Respondent should resume the same or substantially similar business operations as engaged in by Beech Branch Coal Company, at Lewellyn, Kentucky, it shall offer Larry Caudill, Harrad Clevins, Robert Davis, Curtis Dean, Sr., Cecil Lamb, Henry Quesenberry, and Ernest Vickers immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions without prejudice to their seniority or other rights and privileges previ- ously enjoyed." 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NoliciE To EMPItOEiIS-.S Pos lit) BY ORDI)IR O rTHIF NATIONAI. LABOR RI- ATIONS BOARI) An Agency of the United States Government WE Wll.l NOt discharge or otherwise dis- criminate against employees because they have engaged in concerted activities which are pro- tected under the National Labor Relations Act. including the right to protest collectively and discuss changes in working conditions. hours of service, and rates of pay. Wl w.ii I NOT in any like or related manner interfere with, restrain, or coerce our employ- ces in the exercise of the rights guaranteed them by Section 7 of the Act. '4)07 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the event that we should resume the same or substantially similar business operations as engaged in by Beech Branch Coal Company at Lewellyn, Kentucky, WE WILL offer Harry Caudill, Harrad Clevins, Robert Davis, Curtis Dean, Sr., Cecil Lamb, Henry Quesenberry, and Ernest Vickers immediate and full rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent po- sitions, without prejudice to their seniority or other rights and privileges previously enjoyed. WE WILL make Harry Quesenberry, Cecil Lamb, Curtis Dean, Sr., Harrad Clevins, Larry Caudill, Robert Davis, and Ernest Vickers whole for any loss of earnings they may have suffered as a result of our discrimination against them, plus interest. BEECH BRANCH COAL COMPANY DECISION STATEMENT OF THE CASE J. LEE BENICE, Administrative Law Judge: The charge in this case was filed on June 9, 1980, by Donald Pittman, an individual. On July 22, 1980, the complaint issued alleging that Respondent had discharged Pittman and eight other employees, in violation of Section 8(a)(1) of the National Labor Relations Act, as amended, be- cause they had engaged in protected concerted activity. Respondent, in its answer, denies that it has committed any unfair labor practices. The case presents these issues: Whether the employees were actually discharged by Respondent; and, if so, whether Pittman, although a supervisor, is nevertheless entitled to protection under the Act. A hearing was held before me in Harlan, Kentucky, on March 12, 1981. Briefs have been filed by the General Counsel and Respondent. Upon the entire record in this case, including my ob- servation of the witnesses and their demeanor, I make the following: FINDINGS AND CONCL.USIONS 1. THE BUSINESS OF RESPONDENT Respondent is no longer in business, but at the time of the incident alleged in the complaint it was engaged in the mining and sale of coal from facilities in Kentucky. During a representative 1-year period, it purchased and received goods and materials valued in excess of $50,000 shipped directly to its Kentucky facilities from points outside Kentucky. I find that, at the time of the incident alleged in the complaint, Respondent was an employer engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. 11. THE Al.LEGED UNFAIR LABOR PRACTICES A. The Facts In May 1980, Respondent was operating a coal mine at Evarts, Kentucky, which had not been profitable. Re- spondent's testimony attributes the unprofitability mainly to the inefficiency of the first-shift foreman, Donald Pitt- man, and his crew. Pittman blames the physical problems encountered in the mine. Whatever the cause, Respond- ent decided to improve profitability by exacting longer hours from the employees at no increase in compensa- tion. On Friday, May 9, Respondent announced that, effec- tive Monday, May 12, the working hours on the first shift would be changed. Instead of working from 6 a.m. to 2 p.m., with a paid lunch break, the men, for the same pay, would work from 6:30 a.m., to 3 p.m., with a half- hour unpaid lunch period. As the employees interpreted this, it meant working an extra half-hour without pay. On May 12, just before the men entered the mine, Bill Shuler, the mine superintendent, told them again about the new hours and stated that anyone who did not like could "hit the road"; i.e., could resign. One did quit. Walter David Gross left in response to these remarks, and thus did not enter the mine that day. The remaining employees discussed the new situation while they were on the way into the mine and whenever they gathered together in the mine. At lunch, at 10:30 a.m., they all ate together, discussed the matter, and de- cided to leave the mine at once to discuss the problem with Charles Eldridge, the vice president of the Compa- ny. Pittman had said that if they decided to leave, he would go out with them. He did so and, when they met with Eldrige and Shuler shortly afterward, Pittman became the spokesman for the employees. The discussion began out of doors and the three men soon adjourned to the office. Nothing was resolved. Shuler made it plain that he did not feel that he and Pitt- man should continue to work at the same mine. Eldridge was unable to decide what to do. He said that he would consult with the other family members of his who were involved with him in various coal mining ventures, and would give his answer to Pittman at 3 p.m. It was very clearly understood that Pittman would then relay word to his crew. Eldridge did not call that afternoon, so Pittman called Eldridge at home at at 8 p.m. According to Pittman, El- dridge stated that he would replace the men, including Pittman, with a new crew. According to Eldridge, he merely stated that Pittman was not leaving him much choice, whereupon Pittman, leaping to the conclusion that he and his crew had been fired, said, "Well, if that's the way you feel about it," and slammed the phone down. Pittman then told the crew members that they were being replaced by another crew and should meet him at the unemployment office the next morning. I credit Pittman's testimony. He was more forthcom- ing than Eldridge and was less inconsistent on critical matters, and his story accords well with Eldridge's ad- mitted frustration over what he considered to be an inef- 908 BEECH BRANCH COAl COMPANY ficient crew that was causing him to lose money at the mine. But even under Eldridge's version of the telephone conversation, Eldridge, knowing that Pittman, reacting in the apparent belief that they had all been fired, would pass the word to his men, was content to leave Pittman apparently believing that they had been fired, and was content to send no different word to Pittman or to any of the others. He merely watched the mine entrance each morning for the rest of the week to see if anyone came to work. Each day, as no one turned up, and as it became increasingly probable that the men had been led to believe that they had all been fired, he did nothing to alter this belief. On Monday, May 19, the beginnings of a replacement crew took over the shift.' Significantly, Eldridge did not contest the unemployment compensation claims of any of the men, except for Pittman. Gross, who had walked off the job on May 12, eventually returned, and was given a job at another of Eldridge's mines. B. Concluding Findings Respondent contends that Pittman, by terminating the telephone conversation with Eldridge and refusing to discuss the situation further, had voluntarily quit his em- ployment and from that point forward was no longer a supervisor of the Company'. Thus, any actions that he may have taken to seek out employees and notify them that they were laid off or fired were done entirely as an individual, and not as agent of the Company. However, I have found that Eldridge knowingly passed the word to the men, through Pittman, that they had been fired; and even under Eldridge's own account, his act was not different, in any significant way, from a face-to-face firing or from the use of a fully tenture supervisor to an- nounce formal discharges. In his own version of the facts, he was content to let Pittman be the instrumentali- ty by which the employees were told that they had been fired, and was content to do nothing thereafter to alter the impression that they received. I conclude that the employees were fired, and that the obvious reason for the firing was their having engaged in the protected concerted activity of jointly protesting a change in the their work hours and in their effective hourly rate of compensation. Such action by the seven nonsupervisory employees2 was clearly protected con- certed activity, and their discharges clearly violated Section 8(a)(l) by interfering with their exercise of these Section 7 rights. On the other hand, I conclude that the discharge of Supervisor Donald Pittman did not violate the Act. The Board has found that an employer violates Section 8(a)(l) when it discharges a supervisor for refus- ing to commit unfair labor practices3 or for protecting 'At this point. replacements were put to work as quickly as they could be hired I Employer Walter David Gross is not included in this list because he voluntarily resigned before the violation of Sec 8(a)(l) occurred Con- trary to the assertion of Ihe General Counsel. I conclude thal the doc- trine of lleluiu (Cushion Co., Inc. 221 NLRH 999 (1975). does not pro- tect an employee, acting alone, who soluntarils terminates his emplos- ment rather than accept a change in working hours ' See. e g . uami (roca Cola Bottling Company dhu i al' ce4s' ((oca Bottling Company, 140 Nt RB 1359 (1963). enforcement denied on oether employees from such practices;' for testifying before the Board or otherwise participating in a Board proceeding; ' or where the discharge of the supervisor was used as a device for reaching and punishing employees who would be protected by law from more direct methods.6 The Board has even, on occasion, ordered reinstatement of supervisors who were fired as examples to the employees in order to discourage them from exercising their Section 7 rights.' However, the Board has found that the Act does not protect an supervisor discharged merely for siding with the employees in their grievance against the company, whether the dispute is over union activity' or is purely, economic.9 I find that the evidence does not support the General Counsel's contention that Pittman's discharge was used to make a point to any remaining employees and thereby to eliminate dissension. I find that it was far more likely that it was Pittman's siding with the employees against management over the new work hours imposed by man- agement which led to his discharge. Ill. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that Respondent be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Because Respondent is not presently actively engaged in business, it will not be required to post a notice of the action taken here. However, some of its former employees may now be working for an affiliated Eldridge enterprise, or may seek employment there in the future; or Respondent Company might resume oper- ations. Therefore, I shall recommend that Respondent be required to provide signed copies of a notice, and the names and addresses of former employees, so that notices can be mailed to all those who where employed by Re- spondent at the time of the discharges. As I have found that Respondent unlawfully dis- charged seven nonsupervisory employees, but has since gone out of business and is therefore unable to offer them reinstatement, I shall recommend that Respondent be ordered to make the employees whole for any loss of earnings they may have suffered as a result of their dis- charges, by payment to them of the amount they normal- ly would have earned from the date of their discharge until the date Respondent went out of business, less net earnings, to which shall be added interest, to be comput- grounds 341 F.2d 524 (5th Cir 1965), Russell Stover Candies. Inc.. 223 NLRB 592 (1976), enfd 551 F 2d 204 (8th Cir 1977) ' See. e.g., Buddies Super .1arkets, 223 NLRB 950 (19761, enforcement denied 550 F.2d 39 (5th Cir 1977): V4DA of Oklahoma, Inc.. 216 NLRB 750 (1975); Donelson Packing Co.. Inc.. and Riegel Provision Company. 220 NLtRB 1043 (1975) ' See, e.g, Oil City Bras, I Works. 147 NLRB 627 (1964), enfd. 357 F2d 466 (5th Cir 1966); Better W.onkey Grip Company, 115 NLRB 1170 (1956), enfd 243 F 2d R36 (5th Cir 195 7 ), cert denied 355 U S 864 Poneer Drilling Co Inc.. 162 NLRB 918 (1967). enfd in pertinent part 391 F 2d 961 (10th Cir 1968) ? See. eg., Sheraton Puerto, Rico Corp d/b/a Puerto Rico Sheraton toteml 248 NLRB 8607 (1980) 'Sibhlio' Golden (;rill. Inc, 227 NLRB 1688 (1977) 9 Long Beach Youth C'tnter Inc, a/ 'ka Long Beach }outh Home J(or- noerli' Irailback~, Inc . 23) NLRH 648 (1977) 909 I)( II()ONS ()F1 NA\ I IO()NAI I ,xlB)R RIll A I IONS B()ARI) ed in the manncr prescribed ii 1 I :t W 'oolworthi C'oenpu- nyv. )40 NLRB1 289 (1950), anld I lortida Stee Corporalion, 231 NL RB 651 (1977). CONI tJIISIONS 01 I1.x 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2). (6), and (7) of the Act. 2. By discharging the scven nonsupervisory employeecs namcd in the Order, ijro, for engaging in protected con- certed activity, Respondent has engaged in unfair labor practices affecting conimerce within the meaiing of Sections 8(a)( 1) and 2(6) and (7) of the Act. 3. By discharging a supervisory employee, Donald Pittman, Respondent did not engage in unfair labor prac- tices within the meaning of Section 8(a)(l) of the Act. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER "' The Respondent, Beech Branch Coal Company, Lewellyn, Kentucky, its agents, successors, and assigns. shall: 1. Cease and desist from discharging or otherwise dis- criminating against employees in regard to their hire or "' rl Ihe evcn Inio cxctptr in arc filedl ;i pro sided h5 Sh c 102 4tt f tile Rules land Regulatiron 1' oIhc. Naiirval I hbor Relatiols Itoalrd. Ihe findings. conclusionrl iland reconllircridc ()rrder herein slall.l as pronided ill Sec t102 4 of the Rules lnld Rcgutlaiion,. hbe ildoptid by thl ihclrd andi bcoir le Its ilildrigs, coiiclusii llo' aild ()ltlti d i. I .ll al l robjc lt l, tihletIi shill hbe dctrnied Li'. it IId f11 ill u 1pI se's, tenure of employment or any term or condition of em- ployment because they engage in concerted activities protected by Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Make the following employees whole for any loss of earnings they may have suffered as a result of their discharges, in the manner set forth in the section of this Decision entitled "The Remedy": Henry Quesenberry, Cecil Lamb, Curtis Dean, Sr., Harrad Clevins, Larry Caudill, Robert Davis, and Ernest Vickers. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords relevant and necessary to a determination of com- pliance with paragraph (a), above. (c) Furnish to the Regional Director for Region 9 the names and most recent addresses in its possession of all employees employed by Respondent on May 12, 1980, and those employed currently, if any, and sign a suffi- cient number of copies of the attached notice marked "Appendix"" for mailing by the Regional Director to each employee. (d) Notify the Regional Director for Region 9, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply with the is Order. " In the e\xcnl tlat that tis Order is enforced by a Judgment of a United Starlcs Court if Appeals, the \ ords in the notice reading "Posted by ()ier ,t tiel Natitonal l abor Relallions t oaird hilall read "'osted P'ursu tint tO .i JtlUdgtlieul if Ilc Untited Slales Court of Appeals Enforcing an ()rder 1of tie N , on i Iabor Rc Iltiotn Il Fa ard" ') ()