Sharples Coal Company

SHARPLES COAL CORPORATION Sharples Coal Corporation and Charles R. Kimbler. Case 9-CA-17900 September 30, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND HUNTER On July 20, 1982, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief and Re- spondent filed an answering brief to the General Counsel's exceptions. 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 briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge: This proceeding was heard by me in Charleston, West Vir- ginia, on April 28, 1982, upon an original unfair labor practice charge filed on January 22, 1982, and a com- plaint issued on March 3, 1982, alleging that Respondent independently violated Section 8(a)(1) of the Act by threatening reprisals and violated Section 8(a)(l) and (3) thereof by laying off Charles R. Kimbler, the Charging Party herein, because he engaged in statutorily protected activity. In its duly filed answer, Respondent denied that any unfair labor practices were committed. Following close of the hearing, briefs were filed on behalf of the General Counsel and Respondent. Upon the entire record in this proceeding, including my direct personal observation of the witnesses while testifying and their demeanor, and consideration of post- hearing briefs, it is hereby found as follows: FINDINGS OF FACT I. JURISDICTION Respondent is a West Virginia corporation engaged in the mining and processing of coal from its facility in 264 NLRB No. 110 Sharples, West Virginia. During the 12 months preced- ing issuance of the complaint, a representative period, Respondent in the course of said operation sold and shipped from said facility material valued in excess of $50,000, directly to nonretail enterprises located within the State of West Virginia, each of which, in turn, meets the annual direct outflow standard of the National Labor Relations Board for asserting jurisdiction over nonretail enterprises. The complaint alleges, the answer admits, and it is found that Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The complaint alleges, the answer admits, and it is found that the United Mine Workers of America, herein called the Union, is now, and has been at all times mate- rial herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue The issue of primary concern in this case is whether the layoff of Charles R. Kimbler was in reprisal for his having assisted employees in the processing of griev- ances, as the General Counsel urges, or was based solely upon a desire to cut costs, as Respondent contends. B. Concluding Findings Kimbler was laid off on January 8, 1982. At the time he was a diesel mechanic assigned to the truck garage at the mine. The 1982 layoff was not the first for Kimbler. Previously, he had been laid off in 1976 and again in 1977. Following this latter layoff, Kimbler was not re- called until August 10, 1981. This most recent employment stint was in consequence of the Company's decision to broaden a recently estab- lished third shift to handle maintenance backlogs caused first by an economic strike of prolonged duration which ended in June 1981. During the strike, the Company con- tinued operations utilizing supervisors and nonunit per- sonnel. Due to a shortage of qualified personnel, equip- ment used during the strike received little maintenance and repair. Accordingly, when the strike ended, the Company's maintenance force was confronted with an unusually heavy workload, entailing demands which could not be satisfied immediately since the strike ended shortly before a 2-week vacation shutdown. This prob- lem was aggravated when during the vacation period a representative of the Mine Safety and Health Adminis- tration conducted an investigation and cited the Compa- ny with in excess of 70 violations, many of which related to equipment in disrepair. Respondent elected to establish a maintenance crew on a third shift to allow steady maintenance activity during an 8-hour period while the mine was not in operation. Initially, when the third shift became operational on July 13, 1981, it was manned by a newly hired foreman and transfers from existing shifts. Soon after its commence- 818 SHARPLES COAL CORPORATION ment, however, determination was made that the mainte- nance backlog required additional mechanics. According- ly, Kimbler was recalled from the Union's out-of-work panel on August 10, 1981, and later, after compliance with contractual procedures, another mechanic, Herbert Lester, was hired from the street. With the addition of Kimbler and Lester, mechanics transferred from other shifts were realigned to the second shift and until Janu- ary 8, 1982, the third shift consisted of Kermit Harmon, foreman, Willie Patton, a greaser, Kimbler, and Lester. During his recent employment, dating back to Septem- ber 1, 1981, Kimbler served as a union representative in the capacity of grievance man and safety committeeman. Apparently, these positions had gone unfilled for some time prior to Kimbler's recall. In this capacity Kimbler serviced the garage and construction employees. As a grievance committeeman it was Kimbler's responsibility to ensure employer adherence to the collective-bargain- ing agreement and to assist employees in the processing of grievances. As a safety man, Kimbler participated in quarterly inspections of equipment and work area, veri- fying conformity with the rules and regulations bearing upon safety. It was his task to record and report any in- fractions. It appears that, following his recall and in De- cember 1981, he participated in a quarterly safety inspec- tion with another employee, Donnie Stone, and with David Gore, general superintendent of the mine, who chauffeured Stone and Kimbler. Apparently, in the late fall or early winter of 1981, a dispute concerning overtime emerged between construc- tion employees and those assigned to the garage. These separate classifications were considered as being in dis- tinct overtime groupings, and garage personnel protested the Company's assignment to construction employees of coal hauling duties during overtime hours. Grievances were filed by garage employees who considered such hauling to be their work. Kimbler was not a grievant, but assisted in processing the grievances. On January 6, 1982, union and employer representa- tives waged a third-step grievance meeting for considera- tion of six pending grievances emanating from the area serviced by Kimbler. Five were derived from the over- time dispute Deliberations during this session were heated, and the overtime problem was not at that time resolved. Indeed, according to the credited, uncontra- dicted, and mutually corroborative testimony of Kimbler and David Vidovitch, a union representative, who also participated in the grievance session, Gore complained, . . . we never had any damn problems with the over- time or these grievances until Mr. Kimbler was recalled to this mine . . . facility."' i This was not the first expression of animus addressed to Kimbler in connection with his efforts as a union representative His credited uncon- tradicted testimony establishes that, in mid-December 1981. Gore re- marked to Kimbler. "I have been here for two years, I have handled all grievances myself... I've never had any problems with grievances or trouble and . now seems like every two or three days you're coming up with more grievances" Although the foregoing statemnent as well as that of January 0 set forth in the above text reveal Gore's disapproval and animus toxsard Kimhbler's grievance activity, they do not constitute coercive statements beyond the protective realm of Sec. 8(c) of the Act Accordingly, the complaint is dismissed insofar as it includes 8(aXI) alle- gations based thereon In crediting the Kimbler-Vidovitch account of the January 6 remarks of Gore, I find that Gore did not squarely refute said Two days later, on January 8, 1982, Kimbler and an- other mechanic, Lester, were laid off.2 This layoff was accompanied by elimination of the third shift. The greas- er, Patton, the remaining rank-and-file employee on the third shift, had 30 years' seniority with the Company and was transferred back to the second shift. Despite Gore's reference to company dissatisfaction with Foreman Har- mon's performance, the latter was apparently told that he was to be continued in his employment until the end of his next pay period; i.e., January 15. However, on that very date, only I week after the layoff, Respondent found it necessary to reestablish the third shift. Patton, the greaser, and Chapin, a mechanic on the second shift, were both reassigned to a third shift under Harmon. Later, the third shift was permanently abandoned when Harmon on February 15, 1982, resigned. It does not appear that Respondent at any time after the layoff of Kimler and Lester hired any additional mechanics. 3 The legitimacy of the January 8 layoff is to be re- solved with reference to the guidelines laid down in Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980). It was therein held that after the General Counsel has made prima facie showing sufficient to sup- port an inference that protected conduct was a motivat- ing factor in an employer's disciplinary act, "the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of protected conduct." 4 On this record there can be little doubt that the initial burden of the General Counsel has been met. Kimbler engaged in protected activity in his capacity as a union representative by furnishing assistance to employees in the processing of grievances. Gore a responsible official of Respondent, expressed hostility with respect thereto. Indeed, the layoff occurred only 2 days after a hot griev- ance session in which Kimbler was again singled out by Gore as the provocateur of unprecedented labor-manage- ment disputes. Accordingly, the elements of protected activity, knowledge, animus, and timing are present and, at least initially, give rise to a reasonably founded infer- ence of proscribed discrimination.5 Accordingly, the onus shifted to the Respondent to come forth with some explanation disassociated from Kimbler's conduct which was protected by the Act. As I understand the economic defense, Respondent claims that the two third-shift mechanic positions were eliminated solely as a cost-cutting measure. This claim rests for the most part upon the parole testimony of Plant Superintendent Gore and Respondent's president, Alan Workman. Segments thereof, particularly matters found in the account of Workman, were not believed testimony, and in any event his recollection of precisely what was said was confessedly unclear. 2 There is no dispute that Respondent imposed the layoff under condi- tions satisfying all requirements of the collective-bargaining agreement. I Although the General Counsel points to the fact that mechanics did work overtime after the layoff under scrutiny here, that fact has not been refined to a point relieviug it of neutral status. Thus, the quantity and regularity of overtime is not established. Accordingly, there is no basis for concluding that retention of a full-time employee would have been economically more feasible. 4 251 NLRB at 1089 s Associated WMilk Producers. Inc. 259 NLRB 1033 (1982). 819 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and are vulnerable to such characterizations as shifting, confused, contradictory, and improbable. 6 Nonetheless, salient aspects of the defnese were believed as adequate to dispel a reasonable inference of discrimination when considered against other objective, highly probable, and believable facts. Despite Workman's incredible posture, I found Gore to be a basically honest witness, and further- more, on the entire record, his is viewed as a far more plausible explanation of what occurred than that argued by the General Counsel. Thus, Gore's testimony as to the circumstances contributing to the initial establishment of the third shift was truthful. From that, it follows that the hiring of Kimbler and Lester was prompted by de- mands upon the mechanics which were inordinate, non- recurrent, and possibly subject to elimination within a few months through utilization of the third-shift concept. Also believed was Gore's further testimony that the backlog that had furnished the impetus for the third shift e Among the factors furnishing fuel to those who would argue against the bona fides of the defense is Respondent's testimony centering upon discussions by management as to possible elimination of the third-shift mechanics at a November 15, 1981, budget meeting. At that time, accord- ing to the testimony of Gore, no definite decision was made and the third shift was to be given further opportunity to prove its efficacy. At the same time, Respondent's witnesses related that the cutback decision was made at a similar meeting on December 16. However, there is no con- vincing testimony as to what occurred in the interim to trigger the al- leged crystalization of position. According to November financial records which were considered at the December 15 meeting, the maintenance de- partment performance as against budget had improved over the prior month. See Resp. Exhs. 5(f) and (g). Furthermore, the toll customarily taken by winter weather on equipment might well have signaled the pos- sibility of a greater maintenance need during the next few months. Work- man's argumentative denial that this was so hardly enshrouded the de- fense with an aura of candor. Moreover, that retention of the third shift was contemplated might be arguable to a degree from testimony of Workman that he prepared his first budget as president of the Company in October and November 1981, to cover the fiscal period of 1982. Al- though he claims that that budget did not include continued utilization of a third shift, Respondent's financial records indicate that, notwithstanding this claim, 1982 operations were conducted well within budget during the months of January, February, and March 1982. See Resp. Exhs. 5(i), (j), and (k). Workman conceded that this positive differential would have supported continued employment of two additional mechanics in Febru- ary and March, and possibly at least one additional mechanic in the month of January 1982. Also noteworthy is my rejection of a sworn statement by Workman that "a decision was made in December to try to get this unit back in budget along with some other units." Examination of the 1981 budget as against performance shows, as was conceded, that it woefully understated projected costs and hardly furnished a realistic guide compatible with operational demands. Note that severe budget overruns did not deter the addition of two mechanics in August 1981. See Reap. Exh. 5(c). By November 1981, I am convinced that, contrary to Workman, Respondent's managers were fully aware that there was no possibility of taking any steps which would likely bring this department within budgetary constraints. Overreaching is also suggested by efforts by Respondent's counsel to elicit testimony that dissatisfaction with Fore- man Harmon contributed to the layoffs of January 8. It will be recalled that Harmon was retained until January 15, and then, with Harmon at the helm, the third shift was reinstated at that time. The shift was abandoned only after Harmon resigned on February 15. The foregoing, including the incredible testimony of Workman and the suspicions generated in other quarters, lends to a simplistic conclusion that the balance of the defense is untruthful. Ordinarily, I would adopt such a view, but my feel for all the evidence convinces that such a result would fail to do justice herein. in the first instance had been reduced almost completely as of November and December 1981, leaving third-shift mechanics performing general work of a nature that could have been absorbed by the existing mechanics on the first and second shifts. In short, although Respond- ent's testimony adventures into areas which invite suspi- cion and, as such, would normally conflict with a genu- ine economically oriented decision to effect the layoff, convincing proof establishes that the 1981 budget for the maintenance department did not account for the hiring of additional mechanics on the third shift, and that, as the reason for this overbudget step no longer existed, the Company was in a position to spare itself of needless ex- pense by effecting the layoff.7 The existence of an unlawful motivation is always sug- gested and assigned legality never free from doubt when the defense is speckled with unbelievable testimony. On balance, however, I find critical elements of Respond- ent's defense more persuasive herein than an inference that Respondent's hostility to Kimbler's protected activi- ty 8 ran so deep as to justify not only his layoff, but that of Lester as well, an innocent bystander who apparently engaged in no protected activity whatever. On the total- ity, I am inclined to the view that Respondent would have effected the layoffs of Kimbler and Lester even if Kimbler had not engaged in a single protected act. Thus, it is concluded that Respondent did not violate Section 8(a)(3) and (1) of the Act by laying off Charles R. Kimbler on January 8, 1982, and it shall be recommend- ed that the complaint herein be dismissed in its entirety. CONCLUSIONS OF LAW I. Respondent Sharples Coal Corporation is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent Sharpies Coal Corporation did not inde- pendently violate Section 8(a)(1) of the Act by making coercive statements concerning an employee's grievance activity, and did not violate Section 8(a)(3) and (1) of the Act by its termination of Charles R. Kimbler on January 8, 1982. 7 Credible evidence establishes that additional cost pressures appeared in the late fall of 1981 when excessive moisture was found present in Re- spondent's product. In consequence, a major overhaul was required of Respondent's coal processing facility. I It is noted that Gore's concern with Kimbler was expressed in a con- text revealing that only six written grievances were filed prior to his layoff, with five of the six being initiated by enmployees other than Kimbler. Thus, Kimbler's role was limited to the processing of the bulk of these grievances filed by others. Furthermore, prior to the filing of unfair labor practice charges herein, the grievances pertaining to over- time were resolved on January 15, 1982, when the Company accepted the Union's recommendation, which had been inspired or endorsed by Kimbler, that construction and trucking departments be integrated into a single unit to eliminate interdepartmental competition for overtime. See Resp. Exh. 1. 820 SHARPLES COAL CORPORATION Upon the foregoing findings of fact, conclusions of law, and upon the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: g 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- ings, conclusions, and recommended Order herein shall, as provided in ORDER9 It is hereby ordered the complaint herein be, and it hereby is, dismissed in its entirety. Sec 102.48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 821