Mantac Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mantac Corporation and Tackett & Manning Coal Corporation and United Mineworkers of America. Case 9-CA-10606 August 30, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER On April 26, 1977, Administrative Law Judge John P. von Rohr issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief and Respondent filed an answering 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 briefs and has decided to affirm the rulings, find- ings,' and conclusions 2 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 complaint be, and it hereby is, dismissed in its entirety. I The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Drs' Wall Products, Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. We hereby correct the following inadvertent errors in the Administrative Law Judge's Decision which do not affect the results herein: In the section entitled "Statement of the Case" the Administrative Law Judge states that the complaint herein alleges violations of Sec. 8(a)(l) and (5) of the Act, rather than of Sec. 8(aX)l) and (3); at fn. 6, the Administrative Law Judge states "the record does not reflect some evidence of union animus," but it is clear from a complete reading of the footnote, as well as other portions of his Decision, that he intended to state "the record does reflect some evidence of union animus," 2 We agree with the Administrative Law Judge's conclusion that the "small plant doctrine" set forth in Wiese Plow Welding Co., Inc., 123 NLRB 616 (1959), is inapplicable here. Although Respondent Mantac employed only II employees, the small size of its complement does not justify the inference that it had knowledge of its employees' union activities, absent supporting evidence that such activities were carried on in such a manner or at such times that, in the normal course of events, Respondent must have been aware of them. See, e.g., Friendly Markets, Inc., 224 NLRB 967, 969 (1976), and cases cited therein. The record clearly establishes that prior to the discharges Respondent Mantac's employees engaged in no union activities on its premises. See Picker Corporation, 222 NLRB 296, 298-299 (1976). DECISION STATEMENT OF THE CASE JOHN P. VON ROHR, Administrative Law Judge: Upon a charge filed on September 7, 1976, and amended charges filed on October 22 and 29, 1976, the General Counsel of the National Labor Relations Board for the Regional Director for Region 9 (Cincinnati, Ohio), issued a com- plaint on October 29, 1976, against Mantac Corporation and Tackett & Manning Coal Corporation, alleged to be a single employer and herein called the Respondent or the Company, alleging that it had engaged in certain unfair labor practices violative of Section 8(a)(1) and (5) of the Act. The Respondent filed an answer denying the allega- tion of unlawful conduct alleged in the complaint. Pursuant to notice, a hearing was held before me on January 13, 1977, in Whitesburg, Kentucky. Briefs were received from the General Counsel and the Respondent on March 15, 1977, and they have been carefully considered. Upon the entire record in this case and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent Mantac is a Kentucky corporation engaged in the rental and leasing of coal mining properties to Tackett & Manning and in performing engineering, maintenance, and construction work for Tackett & Man- ning and others from and out of its Jenkins, Kentucky, location. During the calendar year preceding the hearing herein, Mantac performed work and services in excess of $50,000 for Tackett & Manning. Tackett & Manning, a Kentucky corporation located in Jenkins, Kentucky, is engaged in the strip mining of coal from various locations in and around Jenkins, Kentucky. During the same period, Tackett & Manning had an indirect outflow, in interstate commerce, of coal valued in excess of $50,000 which it sold 231 NLRB No. 148 858 MANTAC CORPORATION and shipped directly to Bethlehem Mines Corp., Elkhorn Corporation. Beth-Elkhorn is a Kentucky corporation engaged in the nonretail sale of coal at its Jenkins, Kentucky, facilities and annually has a direct outflow of coal, in interstate commerce, valued in excess of $50,000, which it sells and causes to be shipped from its Jenkins, Kentucky, facilities directly to points located outside the State of Kentucky. At all times material herein, Mantac and Tackett & Manning are corporations owned in their entirety by immediate members of the Tackett & Manning families, with common management, supervision, offices and financial control, interrelationship and integration of operations and work forces, and centralized control of labor relations. I find that Mantac and Tackett & Manning constitute a single employer for jurisdictional purposes, and that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.' II. THE LABOR ORGANIZATION INVOLVED United Mineworkers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The issue in this case is whether the Respondent, on August 31, 1976, terminated the employment of Paul A. Sanders, John G. Standifer, Albert M. Carter, Darrell Thompson, Hatler Holbrook, and Billy R. Anderson in violation of Section 8(a)(l) and (3) of the Act. A. Background As set forth in section I, above, Respondent Mantac and Respondent Tackett & Manning have been found to constitute a single employer as defined in Section 2(2) of the Act. However, as relevant background to this proceed- ing, it is relevant to note the following additional facts concerning the relationship of these companies, viz, (1) At the times material hereto, Mantac was principally engaged in performing excavation work for companies or individu- als other than Tackett & Manning, whereas Tackett & Manning has been and is principally engaged in strip coal mining activities; (2) Mantac regularly borrows or leases equipment, such as bulldozers and trucks, from Tackett & Manning, and Mantac's employees are regularly employed to perform maintenance work on this equipment; and (3) Paul Funk, a superintendent employed by Tackett & Manning, is also regularly engaged in the supervision of Mantac's employees. In addition, Funk acts as an agent of Mantac in the procurement of excavation work for Mantac from other individuals and other employers. Finally, it is noted that, at all times material hereto, the employees of Tackett & Manning have been represented by the Charging Union whereas, up until the events at issue hereto, Mantac's employees were nonunion. I The above findings are taken from the Decision and Direction of Election by the Regional Director in Maniac Corporation and Tackerr & armnning Coal Corporation and United Mine Workers of America, Case 9 B. The Organizational Activity; Company Knowledge The entire union activity involved in this case took place in the early afternoon of Sunday, August 29, at which time six Mantac employees met with two union representatives at a union hall in Jenkins, Kentucky. The six employees, all of whom signed union authorization cards at this time, were comprised of Paul A. Sanders, John (Jack) Standifer, Albert M. Carter, Darrell Thompson, Hatler Holbrook, and Billy R. Anderson. Each of these employees are named as discriminatees in the complaint. Robert L. Carter, the father of Albert M. Carter, was one of the two union representatives who attended the above union meeting. He holds the position of financial secretary of Local Union No. 5741, United Mineworkers of America, and also is a member of the Union's mine health and safety committee. He has long been an employee of the Beth-Elkhorn Coal Corporation, also of Jenkins, Ken- tucky. There is a sharp and critical conflict in the testimony of Robert Carter and Don Manning, the latter the owner and top operating official of Mantac and Tackett & Manning, concerning an alleged conversation wherein Carter asserts to have apprised Manning of the union meeting held on August 29. Robert Carter testified that on August 30, 1976, when it was after dark (near 5 or 6 p.m., he said) he was at home and received a telephone call from Manning. According to Carter, Manning simply told him that he was going to put up a Quonset hut "over on Millstone" for the purpose of being close to his mines and that he intended to bring a contractor in to do the job. Continuing, Carter said he then told Manning "does he belong to the union ... you know he's got to belong to the union if he does contract work," adding that he also told Manning "that he should contact the district and see that he belonged to the union to start with." Without elaborat- ing further concerning this aspect of the conversation, Carter testified that he then told Manning, "Well, I guess you know that we've signed up a majority of your Mantac employees." According to Carter, Manning responded, "No, I haven't heard of it ... well good." Manning then ended the conversation by stating "Well, I'll have to talk to Squire Feltner about the building." Concerning the foregoing, it is undisputed that Manning had traveled to Louisville, Kentucky, on August 30 and that he did not return home (by helicopter) until about 8:30 that evening. Manning emphatically denied having called Carter on August 30, 1976, and testified that he "never called Robert Carter on the telephone in the last four years." He further testified that the first he learned of any union activity by the Mantac employees was on September I when Bill Lindey, a union representative, called to ask when he would pay the employees who had been laid off on August 31. Upon the entire record, I am impelled not to credit the testimony of Robert Carter concerning the conversation he allegedly held with Manning on August 30. I do so for several reasons. The first relates to the two prehearing RC-11697. The Board denied Respondent's request for review of this decision on January 14, 1977. There being no evidence to the contrary in this proceeding. I deem the aforesaid decision to be controlling here. 859 DECISIONS OF NATIONAL LABOR RELATIONS BOARD affidavits submitted by Carter. The initial statement was taken by the attorney for the Charging Party on September 29, 1976. No mention of the purported August 30 conversation is made in this statement. The second statement was taken by a representative of the General Counsel on October 14, 1976. This statement does relate the alleged conversation of August 30. While I do not agree with Respondent that the absence of any reference to the August 30 conversation in the initial affidavit is in itselfa basis to find this testimony to have been fabricated, I do think it highly significant to note that the initial affidavit concludes with the following statement: "Also, we have discussed the organizing drive at our union meetings and the company is well aware of our intentions to make the shop UMWA." This statement, it appears to me, is clearly indicative of the fact that the attorney who took the initial affidavit must have been aware of the importance of establishing company knowledge and that she conveyed this fact to Carter at the time the statement was taken. This being the case, I indeed must regard as suspect Carter's statement concerning the August 30 conversation in his second affidavit, as well as his testimony on the point. A second reason for questioning Carter's testimony concerning the alleged conversation, and perhaps more importantly, is the plausibility of this testimony. Thus, it will be recalled that, according to Carter, Manning called him for the purpose of informing him that he intended to bring in a contractor to erect a Quonset hut. The question arises, what motive would Manning have for telephoning Carter and simply apprising him of this fact? It is true that the question of a union or nonunion contractor being engaged to perform this work was then discussed, but this subject, according to Carter, was brought up by Carter, not Manning. Since Carter was an official of the local union, the conversation would appear more plausible if it had been established that Manning called Carter to raise the question about the job being performed by a union or nonunion contractor. This, however, was not the case. Moreover, there is no showing that in the past Manning had consulted with Carter over any similar matter. It is true, according to Carter's testimony, that up through 1975 he and other union officials handled grievances for Tackett & Manning and that on several of these occasions the subject was raised with Manning concerning Mantac's employees being brought into the Union. But Manning's alleged call to Carter on August 30, which by strange coincidence came on the day following the union meeting, is entirely unrelated to the foregoing. In short, if there were any plausible reason for Manning's alleged call to Carter on August 30, the record does not show it. If indeed there were any such plausible reason, it was the General Counsel's burden of proof to establish it.2 Finally, and with reference to the same subject, Manning repeatedly and emphatically denied making the call in question. Although, as later noted, there is one aspect of Manning's testimony that is questionable, there was 2 In urging an additional reason for discrediting Carter, Respondent points to Carter's testimony that he was advised by one of his interviewers: "They told - they advised us as to the information needed to fix a case." While this testimony on its face would appear damaging to the General Counsel's case, I do not believe that Carter intended this statement literally but that it was simply his manner of speech. Indeed, at another point in his nothing in Manning's demeanor to indicate that he was not telling the truth when denying the telephone call in question. C. The Terminations The six employees named at the outset of this Decision were terminated by Foreman Paul Funk at or about the end of the day on Tuesday, August 31, 1976. At this time, and without any prior notice, they were handed a slip which stated as follows: We are sorry to inform you that your services with the Company are no longer needed and your employment is terminated as of this date. A seventh employee, Roger Vanover, was also to have been terminated with the others. However, and while the record does not reveal the details, this employee took it upon himself to quit prior to receiving a termination slip which had been prepared for him also.3 Only four of the six alleged discriminatees were called by the General Counsel to testify in this proceeding. Darrell Thompson was employed by Mantac as a general laborer for approximately 2-1/2 years. Qualified also to operate a drill, Thompson was performing excavation work with a drill at the State Stone Quarry job at Whitesburg, Kentucky, at the time of his termination. Billy Ray Anderson, a drill operator, was employed by Respondent since May 1976. He was also working at the State Stone job (also referred to by him as the Pine Mountain job) at the time of his termination. Hailer Holbrook was employed by Respondent for approximately 4 years. Apparently em- ployed to perform vehicle maintenance work, he described his job as fueling and greasing the trucks of Tackett & Manning, and also delivering parts and performing "whatever Mr. Paul Funk said." Albert Carter, with the exception of 6 months when he was off work, was employed by Respondent since 1974. Carter testified that he picked up and delivered parts for Tackett & Manning, that he steamed Tackett & Manning's equipment, helped the mechanics, and performed odd jobs. Paul Sanders and Jack Standifer did not testify. However, in response to my questions, Manning testified that Sanders was employed by Respondent for 3 of 4 months as a laborer working around the shop or going out on jobsites and that Standifer worked in the supply house as a trainee since February 1976. Turning to Respondent's defense, Manning testified that at the time of the terminations Respondent had completed all of its construction (excavation) jobs and that the employees were terminated for lack of work. In this connections it is preliminarily noted that Mantac was formed in the year 1970, at which time it purchased the land and buildings and a concrete plant of Jenkins Construction Company at Payne Gap, Kentucky. During its early years, it was exclusively devoted to improving this property and employed approximately four or five employ- testimony Carter stated: "They told us as to the information and all the evidence we needed to have. And they told us to try and remember anything that had transpired between us and Tackett & Manning," 3 Billy Ray Anderson, one of the six alleged discriminatees, was not at work on August 31. He was given his termination notice by Funk who came to his house early on the following morning. 860 MANTAC CORPORATION ees. It was not until latter 1974 or early 1975 that the outside excavation jobs began and additional employees were hired to perform this work. In December 1975, Mantac had 8 employees and, in May 1976, it employed 12 employees. With the terminations of August 31, 1976, at issue here, Mantac's work force was cut back to four employees. According to Manning, these four employees were all that were needed for Mantac to maintain its properties. During the several month period prior to the August 31 terminations, Mantac was engaged in two jobs, with a third job in prospect. One was the so-called Don Childer's job, which involved the relocation of a petroleum facility from one site to another due to the condemnation by the State Highway Authority of the original property. Mantac was engaged to perform the excavation work. According to Childers, 85 percent of this work was performed in April and May 1976, with some carryover in June or July. He also testified that after August 31, 1976, there was only some loose dirt to be moved and that this involved a total of 45 hours for completion. The record reflects that Don Anderson and his brother, Billy Anderson, at some undisclosed point and for some undisclosed time, per- formed work on the job. The second job, mentioned earlier, was the State Stone job which involved excavation work at a rock quarry. According to the unrefuted testimony of Manning and Michael Testerman, the latter the superintendent of State Stone, this job was taken away from Mantac and was given to the Hawkins Construction Company about a week prior to the termination of Mantac's employees. Although the Mantac employees continued to work on this job during the last week, it appears that all of Mantac's equipment except a front-end loader was pulled out by this time. Testerman testified that the loader was utilized to get dirt out of a pit. Vanover, who quit on the day he would have been discharged by Mantac, was hired by Testerman to perform this work. Vanover was not called to testify concerning the reasons for his quitting Mantac or the circumstances of his being hired by State Stone. The third job, which had not yet started, involved an agreement by Mantac with one Verlin Baker, a self- employed business man, to undertake the excavation work for a shopping center which Baker planned to build in Jenkins, Kentucky. However, Baker testified that this job was held up because of a problem he was having with the power company putting electricity into the site. In fact, according to Manning, it was the cancellation or deferment of this job that prompted the August 30 layoff.4 His specific testimony in this connection, however, is open to question. Thus, Manning testified that it was during the week just prior to the layoff that he learned that Baker had told Funk about the power problem and that the shopping I Indicating that his problem with the power company ultimately would be solved. Baker testified that he anticipated the shopping center job would start in about March 1977. ; The men had just received their weekly pay on Friday. August 27. Manning testified that he decided to keep the men until Tuesday. August 31. because this would be the end of the month. 6Although the complaint does not charge Respondent with any independent violations of Sec. 8aXl I) of the Act. the record does not reflect some evidence of union animus. Thus. Darrell Thompson, who testified in a center job would have to be deferred. He said that, although he otherwise would have retained the alleged discriminatees to perform this work, it was the deferment of this job that prompted the terminations. Baker, however, testified that it was sometime in July that he apprised Funk of the foregoing circumstances, which would have been 3 or more weeks prior to the termination. Funk did not testify about whatever conversation he had with Manning on the subject. While Manning's testimony therefor appears questionable, this does not alter the undisputed fact that the work to be performed by Mantac at the shopping center was canceled or deferred prior to the terminations at issue herein.5 Before turning to my conclusions, it is noteworthy that only two of the alleged discriminatees, Anderson and Thompson, were engaged in excavation work (i.e., outside construction for Mantac), the remaining four employees having been engaged in the servicing of equipment, the delivery of parts, or other miscellaneous work not at a construction site. Although there is fragmentary testimony that on an isolated occasion one or two employees of Tackett & Manning were seen to have performed some of the latter work, this evidence was entirely undeveloped. Indeed, as indicated, two of the alleged discriminatees who may have shed some light on this matter were not called to testify; nor were Respondent's witnesses cross-examined or called adversely to testify concerning this subject. For all the record may imply, the services of the unskilled help may have related to the construction work performed by Mantac. Moreover, it is undisputed that no new employees were hired by Mantac to replace the employees who were terminated nor is there any evidence that Tackett & Manning hired new employees during the same point of time. Upon the entire record in this case, and notwithstanding the presence of certain classical elements generally indica- tive of discrimination, particularly the timing of the terminations here,6 I am impelled to find and conclude that the General Counsel, upon whom the burden of proof must rest, has not established by a preponderance of the evidence that Respondent terminated the six employees named in the complaint in violation of Section 8(a)(1) and (3). Particularly missing is the absence of any credible evidence to establish the vital element of company knowledge. Nor, under the circumstances of this case, do I find that an inference of company knowledge is warrant- ed.7 Furthermore, the fact cannot be disregarded that Respondent offered unrefuted testimony to establish that its outside jobs were completed and that no new employees were hired to replace the alleged discriminatees. In concluding, I deem it appropriate to point out that the General Counsel's theory of this case, or at least one theory, was not carefully thought out and cannot be representation heanng held on November 5, 1976, testified in the instant hearing that, about 2 weeks after the initial hearing, Foreman Funk told him that if he did not quit fooling around with "this bunch" he would get into trouble and would not get a job anywhere. Also. Manning testified in the instant hearing that the Union "didn't have any grounds to organize Mantac." 7 The so-called small plant doctrine, enunciated by the Board in Wiese Plow Welding Co., Inc.. 123 NLRB 616 (1959). is not. in my view, applicable here. 861 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sustained. Thus, in his brief the General Counsel states: "Moreover, the unrebutted evidence discloses that the employer involved selected for discharge only those employees actively seeking union representation. Such conduct is obviously violative of Section 8(a)(1) and (3) of the Act." This theory clearly is not in keeping with the evidence, for Robert Carter testified that, whereas the six alleged discriminatees signed union cards at the August 29 union meeting, two additional employees signed cards on the following day. Thus, for all the record shows, two of the eight employees who signed cards were retained in Respondent's employ. Moreover, Carter did not testify that he apprised Manning of the names of the employees who signed cards during his alleged conversation with Manning on August 30. Rather, according to his testimony, he only imparted the general information that a majority of the employees had signed. Clearly, the General Counsel's theory as aforesaid is without merit. [ In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. In sum, and while the case is not free from doubt, for all the reasons stated above it is recommended that the complaint be dismissed. CONCLUSIONS OF LAW I. Mantac Corporation and Tackett & Manning Coal Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Mine Workers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent did not violate Section 8(a)(1) and (3) of the Act as alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER 8 The complaint is dismissed in its entirety. 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. 862