Lloyd Wood Coal Co., Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lloyd Wood Coal Co., Inc. and United Mine Workers of America. Cases 10-CA-12052, 10-CA-12071, 10-CA-12081, 10-CA-12091, and 10-CA-12149 June 16, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On February 8, 1977, Administrative Law Judge Robert E. Mullin issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting 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 brief and has decided to affirm the rulings, findings,l and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 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, as modified below, and hereby orders that the Respon- dent, Lloyd Wood Coal Co., Inc., Tuscaloosa, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order, as so modified: 3 1. Insert the following as paragraph l(g) and reletter former paragraph l(g) as 1(h): "(g) Discouraging membership in United Mine Workers of America, or any other union, by laying off, discharging, or otherwise discriminating against employees because of their union or concerted activities." 2. Substitute the attached notice for that of the Administrative Law Judge. I The Respondent 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 Dry 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. 2 The Respondent's motion to reopen the record is hereby denied inasmuch as it fails to state a sufficient ground for granting such a motion. Our ruling herein does not foreclose the Respondent's raising this matter in the compliance stage of the proceeding. a Although the Administrative Law Judge included this paragraph in the notice, he inadvertently omitted it from his recommended Order. 230 NLRB No. 30 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL, upon request, bargain collectively with United Mine Workers of America, as the exclusive representative of all employees in the appropriate unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an understand- ing is reached, embody such understanding in a signed agreement. The appropriate unit is: All production and maintenance employees, including all truckdrivers, but excluding office clericals, professional employees, guards and supervisors as defined in the Act. WE WILL NOT interrogate any employee con- cerning that individual's union activity in a manner constituting a violation of Section 8(a)(1) of the Act. WE WILL NOT give our employees the impres- sion that we are engaging in surveillance of their union activities. WE WILL NOT threaten our employees with any form of reprisal because of their membership in, sympathy for, support of, or activity on behalf of any labor organization. WE WILL NOT threaten our employees with the closing of our business if a majority become members of, or assist, a labor organization. WE WILL NOT discourage membership in United Mine Workers of America, or any other union, by laying off, discharging, or otherwise discriminating against our employees because of their union or concerted activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist the aforesaid Union, or any other labor organization to bargain collectively with representatives of their own free choice, and engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer the following named employees immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges, and 234 LLOYD WOOD COAL CO., INC. make them whole for any losses suffered because of our discrimination against them: Stanley Tawbush Neil McCay Johnny Alexander Joe Branch Olin Duncan Don L. Edwards William Estes Leonard T. Fowler Charles Harris Willie James Harris Steve Hughes Albert Martin Charles Martin Leslie Martin Will Montgomery Joe Overton Thomas Peeples Robert Richardson Ray Sullivan Alfred Thomas Ed Ware LLOYD WOOD COAL CO., INC. DECISION STATEMENT OF THE CASE ROBERT E. MULLIN, Administrative Law Judge: This case was heard on October 18 and 19, 1976, in Tuscaloosa, Alabama, pursuant to charges duly filed and served,' a complaint issued on August 11, 1976, and a complaint, notice of hearing, and order consolidating cases issued on October 5, 1976. The complaints present questions as to whether the Respondent violated Section 8(a)(l), (3), and (5) of the National Labor Relations Act, as amended. In its answers, duly filed, the Respondent conceded certain facts with respect to its business operations, but it denied all allegations that it had committed any unfair labor practices. At the hearing, all parties were represented by counsel. All were given full opportunity to examine and cross- examine witnesses, and to file briefs. The parties waived oral argument. After the hearing, both the General Counsel and the Respondent submitted briefs.2 Upon the entire record in the case, including the briefs of counsel, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent was incorporated in 1974 as an Alabama corporation and since then, with the exception of a period during the summer of 1976, it has been engaged, almost continuously, in strip mining on various leases in I The charge in Case 10-CA-12052 was filed on June 14, 1976, and an amended charge on July 21. An amended charge in the latter case was filed on July 21. The charge in Case 10-CA-12071 was filed on June 22, in Case 10-CA-12081 on June 25, and in Case 10-CA 12091 on July I. The charge in Case 10-CA-12149 was filed on July 27. An amended charge in the last numbered case was filed on September 20 and a second amended charge was filed on September 28, 1976. 2 In a motion received on November 26, 1976, the General Counsel recited that, subsequent to the close of the hearing, the official reporter was unable to locate G.C. Exh. 4, that this was an exhibit which originally had been received by stipulation of the parties, that a copy of the original exhibit was attached to the motion, and that to replace the missing exhibit the General Counsel prayed that the copy attached to the motion be made a the area around Tuscaloosa, Alabama, in which city it has its office and headquarters. During the calendar year prior to issuance of the complaints, a representative period, the Respondent sold coal valued in excess of $50,000 directly to Alabama Power Company, a public utility which has an annual gross volume of business of at least $250,000 and which latter company annually purchases and receives goods valued in excess of $50,000 directly from suppliers located outside the State of Alabama. On the foregoing facts, it is now found that Lloyd Wood Coal Co., Inc., is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The United Mine Workers, herein Union, or UMW, is a labor organization within the meaning of the Act. HI. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequence of Events Lloyd Wood, president and principal stockholder in the Respondent corporation,3 herein sometimes referred to as the Coal Company, is a man of substantial business interests. In addition to his position with Respondent, he is also president of the Lloyd Wood Construction Company. Both companies share the same office and, occasionally, there is some transfer of employees from one entity to the other. Wood also operates a trailer park on the outskirts of Tuscaloosa. Wood began strip mining operations in January 1975 on what was known as the Samantha tract. In May of that year, mining was discontinued on that land and the equipment was moved to what was known as the Cassidy property. This was a large area of some 7,800 acres (also known in the record as the Seminole mine) where the Respondent continued mining until sometime in the summer of 1976. During the latter period, operations were terminated at that location, under circumstances that are in dispute and an issue in this case. In September 1976,4 mining was resumed, but at a new location known as the Aland property. Wood was in active day-to-day management of the Respondent's operations. There were two shift foremen, Wallace McCay, foreman of the first or day shift, and T. R. McCrosky, 5 foreman of the second shift.6 In addition, President Wood was assisted by Don Murphy, a nephew, who was his senior foreman, or superintendent.s During May, the UMW began an organizational cam- paign among the Respondent's production and mainte- nance workers who, at that time, were not members of any part of the exhibit file. No party having voiced any objection to this motion and it appearing to have merit, it is now granted and the duplicate copy of Exh. 4 attached thereto is made a part of the record herein. 3 The original stockholders were Wood, his wife, and a son-in-law. Wood subsequently acquired the stock held by his son-in-law. 4 All dates hereinafter are for the year 1976 unless otherwise specified. I McCrosky's name is misspelled throughout the transcript as "McClo- sky." 6 Both McCay and McCrosky testified that they had authority to hire and fire and exercise the other indicia of supervision. I Wood described Murphy as a foreman, but McCrosky credibly testified that Murphy was the superintendent from whom he himself took orders. 235 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union. The Respondent then had approximately 30 employees. On June 7, the Respondent discharged employee Stanley Tawbush. His termination is an issue in this case. On June 9, the Union requested recognition as the majority representative of the Respondent's employees. The parties subsequently entered into a consent election agreement. This was approved by the Regional Director on July 9.8 Lloyd Wood Coal Company, Inc., Case 10-RC-10744. An election was scheduled for July 29, but before that date the Regional Director postponed it indefinitely. During the month of June, all, or almost all, of the Respondent's employees were laid off. According to President Wood, this was because the Respondent was then engaged in the process of selling its mining operation. According to Wood, a sale was never finalized because the purported purchaser failed to exercise an option to buy and, as a result, in August and September, the Coal Company resumed mining operations and reemployed most of those whom it had laid off in June. The General Counsel contends that, in fact, the Respondent never intended to sell out and that the purported sale was no more than an elaborate stratagem whereby the Employer sought to circumvent the unionization of its employees. B. The Alleged Violations of Section 8(a)(1); Findings and Conclusions With Respect Thereto The Union began its campaign in mid-May with a meeting at Shoney's, a local restaurant. In attendance were five or six employees and two union representatives, Robert Webb and Gerald M. McCoy. Among the employ- ees present were Stanley Tawbush and Neil McCay. All of the employees received authorization cards to distribute among their colleagues. On May 30, another meeting was held at the same location. On this occasion, Organizers Webb and McCoy met with a substantial number of the Respondent's employees and explained to them the significance of signing the authorization cards. According to several of the employees, the group was told that the cards authorized the UMW to represent them and if a majority signed the cards the Union would request the Company to recognize it as their bargaining agent. The General Counsel alleges that, shortly after the organizational campaign began, several of the Respon- dent's supervisors engaged in various acts of interference, restraint, and coercion. These allegations are denied in their entirety by the Respondent. The evidence as to these issues is set forth below. Employee William Estes testified that, on a day during the latter part of May, Foreman McCrosky had three different conversations with him about the Union. Accord- ing to Estes, in the first conversation McCrosky asked him "did I really want the Union in" and, after he gave the foreman a noncommittal response, McCrosky suggested that Estes talk with his coworkers and endeavor to get 8 At that time the parties agreed upon the following as an appropriate bargaining unit: All production and maintenance employees employed by the Employer at its Tuscaloosa, Alabama, strip mine, including all truckdrivers, but excluding all office clericals, professional employees, guards, and supervisors as defined in the Act. It is now found that the foregoing unit is appropriate for the purpose of collective bargaining within the meaning of Sec. 9(b) of the Act. them to call on President Wood to see what he would do "to keep the union out." Estes testified that McCrosky concluded this conversation with the comment that "if the Union came in that we would lose our jobs." According to Estes, later that day McCrosky questioned him as to whether he had discussed with the other employees his proposal that they talk with Wood about methods of combating the union campaign. Estes testified that when he indicated that his efforts to carry out McCrosky's proposal had been fruitless because the men did not have the courage to bring their complaints to Wood, McCrosky then told him, "[W]ell, [it's] none of my business, I just hate to see you all lose your jobs." According to Estes, later during the shift and near quitting time, McCrosky showed him a yellow pad that had two lists of the employees which he described to Estes as being a tabulation of the work force on the basis of whether each individual was for or against the Union. Estes testified that McCrosky told him that, from a perusal of this list which he had compiled, he believed that "the Union would not win even if it had an election." When on the stand, McCrosky testified that he could not remember having told Estes about keeping a list of employee preferences as to the Union, but he acknowl- edged having suggested to Estes that the employees establish a committee to discuss any grievances they had with Wood in order to obviate the need for a union. McCrosky conceded that during these discussions he told Estes that he "would hate to see him lose his job" with the advent of a union. Estes was a credible witness and, in view of the concessions which McCrosky made in his testimony, it is my conclusion that Estes' version of these conversa- tions is a substantially accurate account. Employee Don L. Edwards testified that, during the last week in May, McCrosky asked him whether he had heard anything about union activities among the men and that in response to this question he acknowledged to McCrosky that he had heard the employees discussing the subject. According to Edwards, about the first of June McCrosky told him that "he believed ... Mr. Wood would close the mine before he would let it go Union." At the hearing, McCrosky conceded that he told several of the employees that he had heard that some of them had signed union authorization cards, but he did not deny or contradict any of Edward's testimony. Edwards was a credible witness and it is now found that his conversations with McCrosky occurred substantially as he described them. Employee Neil McCay9 testified that, about June 5, and while at the mine, Foreman McCrosky asked him whether the men were signing cards. According to McCay, he answered this question in the affirmative and told the foreman that he was among those who had signed cards. McCay was a credible witness and his testimony was neither denied nor contradicted by McCrosky when the latter was on the stand. Neil McCay also testified that, about mid-June, Superin- tendent Don Murphy told him and employee Leonard 9 McCay's full name was Wallace Neil McCay. He was the son of Foreman Wallace McCay. In order to avoid confusion, he is known herein as Neil McCay, the name by which he was generally referred to in the record. 236 LLOYD WOOD COAL CO., INC. Fowler that "Lloyd Wood was going to shut ... down because the men were stabbing him in the back." Employee Robert Richardson testified that, early in June, Murphy questioned him as to whether he had signed an authorization card and then asked what Richardson thought of employee Stanley Tawbush whom Murphy characterized as "the union leader." Richardson gave a noncommittal answer to the last question and told Murphy that he had not signed a card. Employee Charles Martin testified that a short while later Murphy asked him "did I sign one of those cards ... union cards?" According to Martin, he answered this question in the negative even though he had, in fact, already signed an authorization card. Murphy was not called to testify as to any of these alleged conversations and no explanation was offered for his failure to appear as a witness. McCay, Richardson, and Martin were credible witnesses. Since their testimony was neither denied nor contradicted, it is now found to be a substantially accurate account of the conversations which these employees had with Murphy. Employee Joe Branch testified that, early in June, President Wood questioned him as to whether he knew anything about the Union. Branch was a credible witness and his testimony was never denied or contradicted by Wood when the latter was on the stand. Employee Stanley Tawbush testified that, on or about May 24, Foreman McCrosky questioned him as to whether he had heard anything about what he termed "the union business" and that his superior asked whether Tawbush knew anything about the employees' signing cards. Taw- bush answered in the negative. About a week later McCrosky spoke to Tawbush again. This time, according to the employee, "He told me that instead of going to the Union, we should have filed a grievance with Mr. Wood . . . he also stated that Mr. Wood would shut down and auction off his equipment, and also that if he did shut down [and and I was laid] off, that I would have a hard time getting a job [with] any nonunion [employer] because I participated in union activities." Tawbush's testimony was credible and it was neither denied nor contradicted by McCrosky when the latter was a witness. Wallace McCay, foreman during the period in question, testified that, late in May, President Wood told him that he knew about the employee organizational meeting at Shoney's restaurant and he wanted McCay's estimate on the number who had signed cards. According to McCay, he told Wood that he believed that from 90 to 95 percent of the employees had signed authorizations. McCay testified that Wood then told him to call the men together and warn them that the Company was not making any money and that if they signed cards and went union he would close the mine. According to McCay, he complied with this order and on the following day repeated to the men what Wood had told him. When on the witness stand, other than to deny generally that he had given any instructions to the foreman about the Union, Wood did not specifically deny having had the conversation about which McCay testified. 'O McCay also testified that, dunng one of his conversations with Wood, and when the latter questioned him as to how many of the men had signed cards, he disclosed no names to Wood other than those of his son, Neil McCay, and his stepson, Stanley Tawbush. This was incredible. In view of McCay, on the other hand, was not a completely credible witness. Shortly after this purported conversation and on June 7, he quit his job as foreman with the Respondent's management under circumstances that would indicate considerable pique on his part as to his relations with President Wood. Thus, at some point during his shift on June 7, McCay, without any notice to any of his superiors, walked off the job and did not return to the mine. From their testimony it appears that neither Wood nor McCay saw each other thereafter until they met again in the courtroom on the first day of the hearing in the present proceeding. From this sequence of events, it may reason- ably be inferred that some degree of antipathy must have colored McCay's testimony. Nevertheless, that portion which has been outlined above was not denied or contradicted and it appeared completely credible when McCay was on the stand. Accordingly, it is now found that the onetime foreman had the conversation with Wood which he described at the hearing and that, at Wood's direction, he cautioned the employees on his shift that if they went union the Respondent would close the mine.'0 On the foregoing facts, it is found that the Respondent engaged in interference, restraint, and coercion of its employees in violation of Section 8(a)(I) of the Act by the following actions and conduct of its supervisory staff: (1) Foreman McCrosky's interrogation of employees William Estes and Don L. Edwards, late in May, about their union interests, McCrosky's comment to Estes that "if the Union came in . . . we would lose our jobs," and McCrosky's proposal to Estes that he urge his fellow employees to meet with President Wood to keep the Union out of the mine. (2) McCrosky's disclosure to Estes, in the latter part of May, that he was keeping a tabulation of the employees as to whether they were for or against the Union, thereby giving the impression that the management was engaging in surveillance of the employees' union and concerted activities. (3) McCrosky's comment to employee Don L. Edwards, about the first of June, that "he believed ... Mr. Wood would close the mine before he would let it go Union." (4) McCrosky's interrogation of employee Stanley Tawbush, on or about May 24, and of employee Neil McCay, on or about June 5, as to whether either of them knew anything about the employees' signing cards. (5) McCrosky's remarks to Tawbush late in May when he admonished the latter that the employees should have gone to Wood rather than the Union, as well as his further comments that it was likely that Wood would shut down the mine and auction off his equipment in which event Tawbush would have difficulty getting another job with a nonunion employer. (6) Superintendent Don Murphy's interrogation of employees Robert Richardson and Charles Martin as to whether they had signed authorization cards and his statement to employees Neil McCay and Leonard Fowler that "Lloyd Wood was going to shut . . . down because the men were stabbing him in the back." (7) Foreman McCay's admonition, late in May, to the employees on his shift that the mine was not making any the inherently coercive character of the remarks which Wood made it seems beyond the realm of the plausible that McCay would volunteer to his superior the names of two family members who had signed authorization cards. At least in this last respect, McCay's testimony is not credited. 237 DECISIONS OF NATIONAL LABOR RELATIONS BOARD money and that, if they signed union authorization cards, the mine would be closed. (8) President Wood's interroga- tion of employee Joe Branch, early in June, as to whether he knew anything about the Union. C. The Discharge of Stanley Tawbush, Findings and Conclusions With Respect Thereto Tawbush started work for the Respondent in the fall of 1975. On June 8, 1976, he was notified that he had been discharged. He was a young man who, as noted earlier, was the stepson of Foreman Wallace McCay. While in the Respondent's employ he worked under the supervision of Foreman McCrosky. He testified that, during the course of his employment, McCrosky told him that he "was doing a good job" and that "as long as I kept it up, me and him would get along just fine." He further testified that at no time did he receive any warnings or reprimands. Tawbush's testimony in this regard was credible and it was in no way denied or contradicted by McCrosky when the latter was on the stand. Tawbush was one of the first employees to become active in the organizational campaign. He attended the initial meeting with Union Organizers Webb and McCoy, signed a union card, and thereafter passed out authorizations which he solicited his colleagues to sign. Two weeks before his discharge, Foreman McCrosky questioned Tawbush as to whether he had any knowledge that the employees were signing union cards. Tawbush answered in the negative. About a week later, and in another conversation with Tawbush, McCrosky again brought up the subject of the employees' organizational activities. As found earlier, at this time McCrosky told Tawbush that, instead of going to the Union, the employ- ees should have taken their grievances to Wood; that Wood could shut down and auction off his equipment; and that, if this occurred and a layoff resulted, Tawbush would have difficulty in getting work at any nonunion job because he "had participated in union activities." As found above, Tawbush's stepfather, Foreman Wal- lace McCay, abruptly terminated his employment with the Respondent on June 7. The next day, Superintendent Murphy told Tawbush that, since his father had quit, the Company had prepared a final check for him on the assumption that he would want to quit also. Tawbush protested that whatever differences his father had had with the Respondent were not a matter of his concern and that he himself liked his job and did not want to be terminated. Murphy brushed aside his protests and told Tawbush to pick up his check and leave." The employee thereupon complied. President Wood testified that, after Wallace McCay quit as foreman, he, personally, ordered that Tawbush be fired. According to Wood, he had hired Tawbush, initially, only to accommodate McCay, that Tawbush was a totally unsatisfactory employee and that, with the departure of his stepfather, Wood felt no further obligation to keep the stepson on the company payroll. He denied that Tawbush's union activity had any relation to the cause for the employee's termination. Wood testified that he had heard objections to Taw- bush's work from other employees and specifically attrib- uted such objections to Joe Branch, Joe Overton, and Neil Royster. However, none of the last named gave any testimony to corroborate Wood's comments. Employee Robert B. Matthews testified that Tawbush was an oiler on the night shift when he was working on the day shift and that on two or three occasions he found Tawbush asleep when he reported for work. On the other hand, he conceded that he had never reported such observations on his part to any of the supervisors. Employee Norbert Shiyou, a dragline operator on the second shift, testified that Tawbush was his oiler for about 6 months and that he did poor work. On the other hand, as with Matthews, Shiyou did not testify that he ever voiced any complaints about Tawbush to Foreman McCrosky or to anyone else in supervision. No immediate supervisor, such as Foreman McCrosky or Superintendent Murphy, gave any testimony as to Taw- bush's work. As found earlier, there was clear evidence that both of the foregoing were well aware that Tawbush was active in the union campaign. McCrosky had questioned the employee about his union activities and, shortly after the organizational campaign started, on another occasion, late in May, he cautioned Tawbush that, in the event of a shutdown, Tawbush would have "a hard time getting [employment] in any nonunion job" because he "had participated in union activities." As found earlier, a few days later, during the course of his unlawful interrogation of employee Robert Richardson about protected concerted activities, Superintendent Murphy characterized Tawbush as "the union leader" and solicited Richardson's views as to Tawbush's activities in that capacity. It is manifest that the Respondent was well aware of Tawbush's union sympathies. This individual may not have been without fault. Few employees are. On the other hand, the lack of any supporting testimony by any of his supervisors, at least one of whom (McCrosky) testified at some length as to other matters, does not lend plausibility to Wood's claim that Tawbush was "just not satisfactory whatsoever."1 2 In view of the numerous threats to shut down the mine if the Union achieved a majority among the employees and the extensive pattern of unlawful interroga- tion by the Respondent's supervision, as found above, the vague generalizations by President Wood about Tawbush's purported deficiencies, unsupported by convincing corrob- oration, are unpersuasive. The burden of proving discrimination rests always on the General Counsel. In this instance, it is my conclusion that the General Counsel established that Tawbush had a satisfactory work record, that he was prominently identi- fied with the incipient union movement by both Foreman McCrosky and Superintendent Murphy, and that McCro- sky warned him that in the event of a layoff Tawbush would have difficulty finding employment elsewhere because of this identification. Tawbush may not have been an outstanding employee. Nevertheless, he had been at 1 June 8 was not a payday, but Tawbush's check was ready for him. 238 L2 The quotation is from Wood's testimony. LLOYD WOOD COAL CO., INC. work for some time without any reprimands or other difficulties with the management. In view of the foregoing, it is now found that his sudden and precipitate discharge, once he became prominent as "the union leader," was motivated in substantial measure for discriminatory rea- sons. Consequently, his termination was unlawful and by this action the Respondent violated Section 8(a)(3) and (I). D. The Termination and Reinstatement of Neil McCay; Findings and Conclusions With Respect Thereto On June 8 and as he was about to report for work on the second shift, employee Neil McCay received notice from the manager of the trailer park 13 where he lived, that Lloyd Wood had left the message that he was not to report for work. Notwithstanding this notice, McCay went to the mine where Foreman McCrosky confirmed that McCay had been terminated, along with Tawbush, his stepbrother. McCrosky further told him that he did not know the reason this action had been taken, but that, in any event, there was nothing that McCay could do about it.'4 McCay thereupon contacted Webb, the union organizer, and on June 9, the latter telephoned Wood to protest the termination of McCay and Tawbush and of employee Charles Averette, the latter having been laid off at approximately the same time.' 5 Webb told Wood that a majority of the miners had signed authorization cards, that the Union was filing unfair labor practice charges on behalf of the three employees, and that he was then asking that these three individuals be reemployed. According to Webb, Wood told him that he would reemploy McCay immediately and that he would take back Averette when work became available, but that he would not rehire Tawbush. Webb testified that Wood then told him that "he would shut his mine down before he would let anybody tell him how to run it," and that, although the Respondent would rehire McCay, "if [the Union] pursued the [unfair labor practice] charges with the Board, he didn't want McCay back either." Wood denied that on this occasion he told Webb that he would close the mine before the Respondent went union, but he did not deny telling Webb that he would close the mine before he let anybody tell him how to run it. According to Wood, he told the union representative that he would not rehire Tawbush and that he had no work for Averette, but that a job for McCay had just materialized and that the latter could return immediately. Wood further testified that he assured Webb that he had no objections to a union, that he himself had worked as a plumber for many years and that he still held a withdrawal card in the Plumbers Union. According to Wood, the next week James Mills, an oiler on the day shift, was sick so that McCay was reemployed to take his place, but that, at the same time, when Averette was offered a job as driver of a dump truck,' 6 Averette declined the offer. 13 Known as Wood Village, another one of Mr. Wood's enterprises. "4 President Wood testified that McCay was laid off on June 4. However. Resp. Exh. 10 lists employees McCay and Tawbush as having been laid off on June 7. It is now found that both were terminated on the latter date and notified of this action the following day. In fact, McCay was reemployed on June 9, a Wednesday, and the day after Webb's conversation with Wood. Consequently, Wood's explanation that McCay replaced another employee who, according to Wood's own testimo- ny, did not get sick until the following week was not plausible. It is now found that Webb was the more credible witness as to the substance of the exchange with Wood and that during their conversation the latter told Webb that the offer to reemploy McCay was conditioned on the Union's not filing unfair labor practice charges with the Board. The last, of course, was an attempt to limit the right of the Respondent's employees to have access to the Board's processes. Such action constituted unlawful interference, restraint, and coercion and was a violation of Section 8(a)(1 ) of the Act. McCay had signed an authorization card at the same time as had Tawbush, his stepbrother, and had solicited his coworkers to sign cards and to support the UMW organizational campaign. The Respondent was aware of these activities for, as found earlier, on or about June 5 Foreman McCrosky questioned McCay as to whether the employees were signing cards and, when he answered this question in the affirmative, McCay also acknowledged that he himself had signed an authorization. Wood denied that McCay had been terminated and testified that McCay had only been laid off. He further denied that McCay's union activities played any part in the decision as to this employee. On the basis of the findings set forth above, however, it is my conclusion that, on June 8, McCay was told by Foreman McCrosky that he had been terminated and that nothing could be done about it. It is also found that, in view of the Respondent's antipathy to the Union and its knowledge of McCay's organizational activity and his relationship to Tawbush, who was known to the management as the "union leader," the Respondent discriminatorily terminated McCay and that, after Union Representative Webb protested, McCay was reinstated - but only if the Union complied with Wood's unlawful condition that the filing of unfair labor practice charges be withheld. It is now found that, by this course of conduct as to McCay, the Respondent violated Section 8(aX3) and (1). E. The Closing of the Cassidy Mine; Contentions of the Parties; Findings and Conclusions With Respect Thereto At the end of June, the Respondent ceased all work on the Cassidy tract. On various dates during that month all of the production and maintenance workers for the Company were laid off. In September the Respondent resumed operations at a new mining site known as the Aland property and most of the employees who had been laid off in June were recalled. The Respondent asserts that in the spring of 1976 it was in the process of selling its assets to another company because of enormous losses which it had incurred, that a contract of sale was entered into in May, that the layoffs in 5i Averette was not called as a witness. According to Resp. Exh. 10, he was laid off on June 3. is These were 50-ton dump trucks, which he had placed in service only a short while before. 239 DECISIONS OF NATIONAL LABOR RELATIONS BOARD June were the result of a planned phasing out of its operations, and that it went back to mining in September only because the projected sale in July did not materialize. The General Counsel contends that the Respondent produced no convincing evidence that it ever planned to sell out, and that the purported sale and the closing of the Cassidy mine were part of an elaborate stratagem designed by the Respondent to evade its responsibility under the Act to meet and bargain with the Union. In May 1975, the Respondent began mining operations at the Cassidy property, a large tract encompassing 7,800 acres for which the Employer was required to make a minimum lease or royalty payment of $100,000 a year. It continued to work this land until late June 1976 when the Respondent shut down the mine. From the outset of its work on this site, many problems were encountered. The property was very hilly and much of it consisted of hard rock. In addition, the overburden varied from 40 to 60 feet, substantially greater than the average encountered in the Respondent's experience. These conditions made mining operations difficult and expensive. During the year it was engaged in mining the Cassidy tract, the Respondent had other difficulties which contributed to its financial prob- lems. The type of coal mined there was generally known as "steam" coal and the Respondent's only purchaser for its output was the Alabama Power Company. In the spring of 1975, the selling price of this coal dropped from $30 per ton to $21 per ton. In the fall of 1975 the Power Company reduced its purchases from a high of 20,000 tons a month to a low of 5,000 tons a month. In addition, hauling expenses increased. Although operations on the Cassidy tract were, apparent- ly, profitable at first, from July 1975 onward the Respon- dent lost money. These losses mounted and by May 31, 1976, the Respondent had sustained losses in each of the preceding 10 months. ?7 Wood testified that, because of all the foregoing considerations, as well as his own ill health, in October 1975 he made the decision to sell the corporation and/or its assets. The following month he secured Killian Associates, a brokerage firm in Phoenix, Arizona, to act as sales agent for this purpose. In January the Respondent entered into an agreement with Killian whereby for 6 months the latter would have the exclusive right to act as agent in negotiating the sale of the Respondent Corporation. In March, Killian produced, as a prospective purchaser, Carbon Energy, Inc., a New Mexico corporation. Wood testified that, in May, the Respondent and Carbon Energy, Inc., entered into a contract whereby the latter was given an option to purchase 85 percent of the outstanding stock in Lloyd Wood Coal and given until July 7, 1976, to exercise that option. According to Wood, because of his continuing losses and because Carbon Energy had no objections, he decided in the latter part of May to begin a complete shutdown of operations on the Cassidy tract. According to Wood, this I? For the 2-month period ending May 31, 1976, the business records offered in evidence at the hearing and the credible testimony of Paul D. Morrison, its accountant, indicate that the Respondent incurred a net loss in excess of $200,000. "I Wood's testimony that McCay was laid offon June 3 was contradicted by Resp. Exh. 10. Earlier herein, on the basis of that exhibit and the was done pursuant to a plan whereby the employees' work was phased out over a period of I month. Wood testified that this began with the layoff on June 3 of employees Neil McCay 18 and Charles Averette, the night drillers, and that their layoff was followed shortly thereafter by the layoff of dozer and loader operators on the second shift as the work required to move the loose overburden declined. According to Wood, subsequent to the layoff of the night shift employees, the Respondent thereafter laid off the day shift in successive stages so that operations ceased on or about June 30, when all the ready minable coal had been removed from the Cassidy pit. Wood testified that, sometime in June or July, he was very hazy about the precise time, Carbon Energy decided that it would not exercise its option to purchase and the option was allowed to expire. Late in July, the Respon- dent's 6-month brokerage arrangement with Killian termi- nated with no sale having been consummated. According to Wood, in July 1976 the Respondent acquired a lease on the Aland tract, an 800-acre property located near Peterson, Alabama, in East Tuscaloosa County. Wood testified that drilling and exploration work performed in July and August disclosed that the land contained metallurgical coal, a more profitable type than the steam coal on the Cassidy tract, and that the average overburden on the Aland property was much less than that on the former site. In August the Respondent began transferring its equipment from the Cassidy property to the Aland tract and thereafter it began the recall of most of the employees laid off in June. Wood testified that these men were put back to work in late August and throughout September as work became available and that, in most cases, the employees were returned to the same machines, shifts, and work schedules as they had had previously. Although Wood testified that he made the decision to begin a gradual shutdown of all mining operations during the month of June and, after Carbon Energy signed the option to buy the Respondent, the General Counsel introduced much evidence that would tend to negate any such plan on the Respondent's part. Foreman Wallace McCay testified, and his testimony in this regard was corroborated by Wood, that in May the Respondent hired six new employees to work as truckdrivers in the mine. Wood himself testified that these employees were put to work on new loaders and 50-ton dump trucks which he acquired during that period. Moreover, when Tawbush was discharged on June 7, unlawfully, as found earlier, the Respondent hired Dan Lunceford to take his place.' 9 There was also credible, undenied, and uncontradicted testimony that prior to the early part of June, when Tawbush and Neil McCay were discharged, as found above, the employees were averaging approximately 6 to 8 hours a week in overtime.20 If the Respondent was seriously considering going out of business, it would seem most unlikely that the Employer would have made the very substantial investment in the spring of 1976 which was testimony of Neil McCay, it was found that the latter was discharged on June 7 and notified of his termination the next day. 19 According to the credible undenied testimony of Neil McCay. 20 This finding is based on the credited testimony of Foreman Wallace McCay and employee Neil McCay. 240 LLOYD WOOD COAL CO., INC. required to procure new equipment such as loaders and 50- ton dump trucks. Nor would it have hired new employees and have its entire work force on overtime during that period if it was planning a shutdown. The Respondent contends that it was only a coincidence that the decision to close the Cassidy mine occurred immediately after the employees began their union activi- ties. Although it is evident that the Respondent incurred substantial losses when engaged in operations at the Cassidy tract, Wood's testimony about the purported sale to Carbon Energy and the collapse of negotiations with that company was not convincing. Thus, although the Respondent offered a substantial amount of documenta- tion to establish its relationship with Killian, the sales representative, as well as copies of the initial proposals and counterproposals made to Carbon Energy, there was no documentation at all supplied to support Wood's testimony as to the date that Carbon Energy decided to let the option to purchase lapse. Wood testified only that he was advised "somewhere around the first of July" 21 that Carbon Energy was not going to consummate the purchase, but the Respondent offered no correspondence or any kind of testamentary evidence to corroborate this self-serving statement by Wood. Since the testimony of the latter as to his purported dealings with Carbon Energy was, in many respects, vague and lacking in particulars, I find that Wood's testimony as to this phase of the negotiations was largely implausible. Wood testified that around the middle of April he decided to close the Cassidy mine. According to Wood, "there wasn't no way financially to keep it open" and "There [was] no way we could keep operating on that tract of land [the Cassidy site]." Nevertheless, according to Wood, the Respondent retained all its coal land leases. Nor was there any evidence that the Company attempted to sell any of its expensive equipment, some of which, such as the new loaders and 50-ton dump trucks, it had acquired only a short while before. According to Wood, the Respondent had so much money invested in equipment "we had to do something with it, we couldn't leave all of that stuff parked." Wood testified that he secured a lease on the Aland property in July. However, no lease or other documenta- tion was offered to support his oral asseveration. The General Counsel, on the other hand, offered evidence which tended to prove that Wood was well acquainted with the Aland property long before he shut down the Cassidy mine. Thus, employee Charles Martin testified that, as early as April and May, the Respondent sent him to that property to conduct prospecting surveys. When the hearing was held in October, Martin was working for the Respon- dent at the same place on the Aland lease that he had performed the prospecting work the preceding spring. From the time that the Respondent began operations in January 1975, it had, from time to time, moved its strip mining operations from one tract to another. Wood had begun mining at the Samantha property. Later he moved to the Cassidy tract and then to the Prime property. In May 1975 he returned to the Cassidy mine. In each of these moves there was no loss of work and no one was laid off. The shift from the Cassidy mine in June 1973 to the Aland tract in September differed from all such previous moves in that, for the first time, all the employees were laid off before the transfer was made. Notwithstanding Wood's testimony that the Respondent began a planned phaseout of its operations at the Cassidy tract early in June and shortly after negotiating the sale of the business to Carbon Energy, the Respondent offered no testimony that would establish that any of the supervisory staff, much less the employees, had knowledge of such a plan. Two who would certainly be presumed to have such information as a matter of course were Foreman McCro- sky and Superintendent Murphy. Wood testified that he was sure that he consulted with both of them regarding the shutdown of the mine. McCrosky, however, did not corroborate this testimony. According to McCrosky, Wood never told him he was going out of business. Nor was Murphy ever called to the stand to corroborate any of Wood's testimony. It is inconceivable that the Respondent could have initiated a planned phasing out of its opera- tions, as Wood testified, without any of the supervisors being privy to such plans. Employee Joe Branch was laid off on June 29. He testified that at the time of his layoff Wood told him that the Respondent was prospecting, that it would be reopen- ing in another location, and that when this occurred Branch would be recalled. On September II Branch was reemployed at the Aland tract. Branch was a credible witness and Wood never denied or contradicted his testimony. Late in May, when the Respondent learned of the employees' organizational activity, the supervisory staff and Wood engaged in unlawful interrogation of the work force. During that same period, President Wood directed Foreman McCay to call the men together and warn them that the Company was losing money and that if they signed authorization cards and went union he would close the mine. About the same time, Foreman McCrosky told employee Estes that "if the Union came in ... we would lose our jobs ... " and early in June, McCrosky told employee Edwards that "Mr. Wood would close the mine before he would let it go union." During this same period, McCrosky was telling the employees that they should have formed a committee and gone to President Wood with their complaints, rather than going to the Union, and he told employee Tawbush that it was likely that Wood would shut the mine and auction off the equipment. In about mid- June, Superintendent Murphy told employees Neil McCay and Leonard Fowler that "Lloyd Wood was going to shut ... down because the men were stabbing him in the back." As found earlier, on or about June 8 the Respon- dent discriminatorily terminated Stanley Tawbush and Neil McCay. On June 9, when Union Organizer Webb telephoned Wood to protest these discharges, and to inform the Respondent that the Union had a majority of the employees signed up, Wood told Webb that "he would shut his mine down before he would let anybody tell him how to run it," and that, although he would rehire McCay, 21 The quotation is from Wood's testimony. 241 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "if [the Union] pursued the [unfair labor practice] charges with the Board, he didn't want McCay back either." It is now found that the Respondent's contention that closure of the Cassidy mine was dictated by an imminent sale of the Respondent's assets to Carbon Energy was unsupported by persuasive evidence. Although the Re- spondent had convincing economic data for shutting down work at the Cassidy site, termination of operations there would not, by itself, necessitate the layoff of all the production and maintenance personnel. On prior occa- sions, when operations were terminated at one mine, resumption of work at another site promptly followed, and without the layoff of any employees. In the light of the facts set out above, it is now found that, as the General Counsel contends, with the advent of the Union Wood adopted the technique involved in the case of runaway shop. Thus, subsequent to the Union's request for recogni- tion, the Respondent's president laid off all the employees and then, after the lapse of several months, resumed work at a new location where Wood had had a lease for some time and where the prospecting had been started the preceding spring. It is apparent, in view of the manifold violations of the Act by the Respondent's management from the outset of the organizational campaign, that the layoffs during the month of June were motivated in large measure by a desire on the part of the Respondent to fulfill the threat, voiced by the supervisors, that "Mr. Wood would close the mine before he would let it go union." For these reasons, I conclude that the justification offered by President Wood for the layoff of the production and maintenance employees on the dates set forth in Table I, infra, was a pretext and that, in fact, these layoffs resulted from the Respondent's desire to rid itself of the Union. By this course of conduct, the Respondent violated Section 8(a)(3) and (1) of the Act. Table I Dates of Layoff22 June 12 June 15 June 18 June 22 June 25 June 28 June 29 Charles Martin2 3 Charles Harris Ed Ware William Estes Leonard Fowler Johnny Alexander Robert Richardson Ray Sullivan Joe Branch 22 The dates of layoff are taken from Resp. Exh. 10 which was received in evidence. The General Counsel did not offer any evidence that was in conflict with the dates listed thereon. 23 Not included on this list is the name of employee Charles Sprinkle whom the General Counsel alleged was laid off discriminatorily on June 8. Wood, on the other hand, testified that Sprinkle was fired on June 10. Another witness for the Respondent, employee Norbert Shiyou, testified that he rode to work with Sprinkle on the day of his discharge and that at that time Sprinkle was intoxicated. According to Shiyou, later that day, after he had seen Sprinkle being admonished by Foreman McCrosky, Sprinkle told him that he was leaving immediately because McCrosky had Olin Duncan Don L. Edwards Steve Hughes Neil McCay Will Montgomery Joe Overton Thomas Peebles Willie James Harris Albert Martin Leslie Martin Alfred Thomas June 30 F. The Alleged Violation of Section 8(a)(5); Findings and Conclusions With Respect Thereto On June 9, Union Representative Webb had a telephone conversation with President Wood wherein he apprised the latter of the Union's claim to represent a majority of his employees. Later that day the UMW sent a mailgram to Wood requesting recognition as the exclusive bargaining agent for all of the Respondent's employees, excluding office clericals, professional employees, guards, and super- visors. On June 11, the Union filed a petition for representation and the parties subsequently entered into an agreement for consent election. Lloyd Wood Coal Co., Inc., Case 10-RC-10744. As found earlier herein (fn. 8), the unit described in the Union's initial demand for recognition constitutes an appropriate unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. There is some disagreement on the complete list of those who should be included in that unit. The critical date for determining whether the Union had authorization cards from a majority of employees in the unit is June 9. The Respondent supplied a list of the employees that were on the payroll during that period and the job classification of each. This appears in the record as General Counsel's Exhibit 1I. The names and classifications on this exhibit, in relevant part, are as set forth below: Name Alexander, Johnny Beard, Benny Branch, Joe Duncan, Olin Edwards, Don Estes, William Fowler, Leonard T. Gaddy, Joe Gladden, Anthony Gibson, Willie Harris, Charles Classification Truck Driver Operator Operator Truck Driver Operator Operator Operator Mechanic Oiler Laborer Operator terminated him. Shiyou was not a reliable witness, as will be seen later. However, his testimony in this connection was never denied, for Sprinkle did not appear as a witness and the General Counsel offered no explanation for not calling him. On the basis of the foregoing findings, it will be recommended that the allegation in the complaint as to Sprinkle be dismissed. Another allegation related to Fred N. Moore, who was alleged to have been discriminatorily laid off on June 8. No such name appears on any of the employment rosters which were introduced at the hearing. According- ly, it will be recommended that the allegation as to Fred N. Moore be dismissed. 242 LLOYD WOOD COAL CO., INC. Harris, Willie James Hedgemen, Willie Hughes, Steve Lunceford, Dan Martin, Albert Martin, Charles Martin, Leslie Matthews, Robert McCay, Neil Mills, Jim Mills, Johnny Montgomery, Will Overtone, Joe Peeples, Tom Richardson, Robert Royster, Benny Shiyou, Norbert Sullivan, Ray Thomas, Alfred 24 Ware, Ed Wilder, Frank Operator Blaster Operator Truck Driver Laborer Blaster Laborer Mechanic Driller Driller Oiler Operator Operator Operator Operator Operator Operator Truckdriver Operator Operator Laborer The above list contains 32 names. The General Counsel contends that the name of Charles Sprinkle should be included since he was an employee at least until June 10 when he was discharged. This is correct and Sprinkle's name should be added to the list. Another name that should be included is that of Stanley Tawbush who, as found earlier, was discriminatorily terminated on June 7. But for the Respondent's discrimination, it is reasonable to presume that Tawbush would have been working on June 9. Consequently, he must be considered a unit member for the purposes of this case. The General Counsel further contends that Gaddy, Beard, Gibson, James Mills, John Mills, and Matthews should be excluded from the unit. Only Matthews, of those last named, testified at the hearing. On the basis of his testimony, as well as that of other witnesses, it is clear that Gaddy is a supervisor of the mechanics, that most of his duties are at the Respondent's shop, rather than at the mine, and that he works primarily for the Wood Construc- tion Company. As a supervisor, of course, he should be excluded from the unit. Wallace McCay credibly testified that Benny Beard was a backhoe operator for the Construction Company who occasionally did work at the mine, but that most of the time he was engaged in work for the former corporation. Beard did not testify and there was no testimony which contradicted that of McCay with reference to Beard's work. On the basis of the foregoing, Beard should be excluded from the unit. McCay further testified that Willie Gibson worked at the mine from time to time, that he also worked at Wood's home, that on weekends he worked at the shop and at other times at the Wood Village Trailer Park, another one of the Wood enterprises. As there was no other testimony as to Gibson's duties, it appears that at best he was no more than a part-time employee of the Coal Company and that he should be excluded from the unit. 24 On the original list this name appears as "Ed Thomas." At the hearing, however, President Wood testified that this was a typographical error and that the name should read as it appears above. James Mills, John Mills, and Robert Matthews worked in the shop. Only Matthews testified as to his duties there. According to Matthews, as a mechanic and while at the shop, he and the Mills worked under the supervision of Joe Gaddy. In this capacity he repaired equipment for both the Construction Company and the Coal Company. From time to time the mechanics had to repair equipment at the mine but, other than those occasions, most of their work was performed at the shop. According to Wood, at the end of June all the employees of the mine were laid off. However, neither of the Millses nor Matthews was laid off. All of them continued working throughout the summer. Based on the testimony of Matthews and that of employee Norbert Shiyou, as well as the fact that no one in the shop was laid off when the mine closed down, it appears that the work of the mechanics is more closely allied with the Construction Company and that the mechanics may, in fact, be employees of that corporation, rather than the Respondent. In any event, from the facts set out above, it appears that they have a greater community of interest with the employees of the Construction Company than with those of the Respondent. Consequently, it is now found that James Mills, John Mills, and Robert Matthews should be excluded from the unit. With the addition of Sprinkle and Tawbush and the elimination of Gaddy, Beard, Gibson, James Mills, John Mills, and Matthews, there were 28 employees in the appropriate unit on June 9, 1976, when the UMW made its demand for recognition. The Authorization Cards The General Counsel introduced authorization cards which had been signed by 21 of the employees who were in the unit, on the date the Union requested recognition. Those were Joe Branch, Don Edwards, William Estes, Leonard T. Fowler, Charles Harris, Willie J. Harris, Steve Hughes, Albert Martin, Charles Martin, Leslie Martin, Neil McCay, Will Montgomery, Joe Overton, Thomas Peeples, Robert Richardson, Norbert Shiyou, Charles Sprinkle, Ray Sullivan, Stanley Tawbush, Alfred Thomas, and Ed Ware. There was no evidence that the union agents misrepresented the purpose of the cards to any of the employees. Many of the above named testified as to the circumstances surrounding the execution of the cards. Several of them testified, as did employee Branch, that at the union meeting on May 30, where most of the cards were signed, Organizer Webb read the language of the authorization to them and told those present that the cards had to be signed if they wanted the Union to represent them. With the Union in possession of 21 signed authoriza- tions on June 9 when it made its initial demand for recognition, the UMW clearly had a majority in the unit of 28 employees. There remain, however, the issues raised by the Respon- dent's testimony on the part of some of the card signers who claimed they were coerced into signing a card, or that a card which was received had never, in fact, been signed 243 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the purported signatory. These issues will now be considered. Willie James Harris denied that he signed a card which bore his signature. This was General Counsel's Exhibit 2(v). Employee Charles Martin credibly testified, however, that Harris signed the card on June 2, in the presence of both Martin and of his brother Albert Martin, another employee. Although Harris denied that it was his signature which appeared on the card, a specimen of his handwriting, which the General Counsel secured from Harris during that witness' cross-examination, makes it manifest that Harris did, indeed, sign the authorization card in ques- tion.25 Moreover, from the testimony of Charles Martin it is evident that the purpose of the card was not misrepre- sented to Harris and that he signed the instrument on June 2 of his own free will. The Respondent called several employees who testified that Foreman Wallace McCay told them, in substance, that Wood had sold the mine to a company that would require that the employees join a union, or be out of a job. Thus, according to Will Montgomery, late in May McCay made the foregoing statement to him. Although Montgomery averred that this caused him some concern, he conceded that he never sought any confirmation as to whether the alleged statement by McCay was true. lie further testified that McCay never offered him an authorization card to sign, and that he did not sign a card until he attended the union meeting on May 30. Montgomery acknowledged that at that meeting he heard Webb explain the meaning and significance of the authorization card, that thereafter he himself signed one at the meeting and that he had a coworker witness his signing. In response to a question as to whether, either at the meeting or later, anyone was forced to sign a card, Montgomery testified, "No, nobody forced us to sign it."2 6 Joe Overton was another employee who testified that McCay told him that Wood had sold the mine, that the new owner had a union shop, and that to keep his job Overton would have to join the Union. Overton also testified that he asked Foreman McCrosky if there was any truth to the rumor that the mine had been sold and McCrosky told him that he had heard nothing to that effect. Notwithstanding Overton's testimony as to McCay, there was no evidence that this employee was pressured to sign an authorization card. Overton testified that Stanley Tawbush, a coworker, gave him a card, that he read it and took the authorization home, where he signed it with only his wife present and that his wife thereafter signed the card as a witness to his having executed the authorization. Overton never asked that the Union return his card to him. Employee Steve Hughes testified that, about 2 months before he signed a card (on June 3), McCay told him that the Respondent was selling the mine to an out-of-state company that was union. Hughes testified that he never 25 This is in evidence as G.C. Exh. 13. 25 It was the position of the Respondent that all employees of the mine were laid off by the end of June. Montgomery, however, testified that at the time the Cassidy mine closed he was working for the Wood Construction Company. The Respondent contends that Montgomery was in the unit and submitted evidence that he was laid off on June 29. Nevertheless, Montgomery's own testimony tends to prove that at the time in question he may have been an employee of the Construction Company told anyone about this purported conversation with McCay until he related it to Respondent's attorney, presumptively on the morning that he testified. Hughes' testimony on this subject was completely incredible. Similarly, employee Norbert Shiyou testified that sometime after he had attended his first union meeting McCay told him the Union would be an asset, and that "it was . . . a good thing we signed the cards." 27 Notwithstanding Shiyou's testimony to this effect, he acknowledged that the night before he so testified at the hearing he told counsel for the General Counsel that none of his foremen or supervisors had ever spoken to him about the Union. As to the authorization which Shiyou acknowledged having signed, he further conceded that he had read it before affixing his signature and that he never asked that the Union return his card. Foreman McCay testified that he never attended a union meeting until several weeks after he had quit working for the Respondent on June 7. He also denied that he ever told any of the employees at any time that it would be necessary for them to join the Union to retain their jobs. His denials in this connection were credible. Neither Hughes nor Shiyou was a credible witness with reference to the alleged incidents as to McCay about which they testified. Whereas Montgomery and Overton also testified that McCay had spoken to them and had told them that McCay had spoken to them and had told them that Wood had sold the mine to a company that would require the employees to join a union, both of them gave testimony as to the circumstances in which they signed their authorization cards that established, as Montgomery testified, "nobody forced us to sign...." It is my conclusion that the cards of Montgom- ery, Overton, Hughes, and Shiyou were valid and that they should be counted. On the other hand, if the Board should conclude otherwise, the Union would still have had a total of 17 valid cards, a clear majority in a unit of 28 employees.2 8 Concluding Findings As found above, on June 9, 1976, when the Union requested recognition, it had valid authorization cards signed by 21 of the Respondent's 28 employees in the appropriate bargaining unit. The Union's lawful demand for recognition, made on that date, was declined. At that point the Respondent had engaged in a substantial number of violations of Section 8(a)(1) of the Act, and had discriminatorily discharged two employees. Later that month, as found earlier herein, the Respondent further violated Section 8(a)(3) of the Act by closing the Cassidy mine, at least in part, to avoid recognizing and bargaining with the Union. It is now found that by this course of conduct the Respondent also violated Section 8(a)(5) of the Act, and that its unlawful refusal to bargain began on June 9, 1976, when it first declined the Union's request for :7 The quotation is from Shiyou's testimony. The comment which Shiyou attributed to McCay, if true, establishes that his conversation with McCay occurred after he signed the union authonzation. :2 Robert Matthews was also called as a witness by the Respondent and testified that McCay told him that his job would be easier if Matthews was in the Union. However, as found earlier, Matthews was not in the bargaining unit. Even if credible, his testimony would not be relevant here. 244 LLOYD WOOD COAL CO., INC. recognition. N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969); Trading Port, Inc., 219 NLRB 298, 300-301 (1975); Hasty Print, Inc. d/b/a Walber Color Graphics, 227 NLRB 455, fn. 1 (1976). CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Union is a labor organization, all within the meaning of the Act. 2. All production and maintenance employees of Respondent, including all truckdrivers, but excluding all office clericals, professional employees, guards and super- visors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 3. At all times material herein the Union has been the exclusive collective-bargaining representative of the Re- spondent's employees in the aforesaid unit within the meaning of Section 9(a) of the Act. 4. By refusing, since June 9, 1976, to bargain collective- ly in good faith with the Union as the exclusive representa- tive of its employees in the aforesaid unit, and by laying off all members of the above-described unit without reference to the Union, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(aX5) of the Act. 5. By discriminatorily terminating Stanley Tawbush and Neil McCay on June 7, 1976, and by discriminatorily laying off all of its employees in the appropriate unit later that month,29 the Respondent violated Section 8(aX3) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 8. The General Counsel has not proved by a prepon- derance of the evidence that the Respondent interfered with, restrained, or coerced its employees in the exercise of the rights guaranteed by the Act, except by the specific acts and conduct found herein to have been violative. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that the Respondent be ordered to cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent discriminatorily discharged Stanley Tawbush and Neil McCay on June 7, 1976. Whereas McCay was called back to work on June 10, Tawbush was never reemployed. It will now be recom- 2s The names of those employees and the dates of the layoffs involved herein are set forth in Table I, supra. 30 In August and September 1976, the Respondent reemployed most, if not all, of those whom it had laid off in June. No evidence was taken as to whether these reinstatements were to substantially equivalent employment. mended that the Respondent be ordered to offer Tawbush immediate reemployment to his former, or substantially equivalent, employment and that both he and McCay be made whole for any loss of pay suffered as a result of the Respondent's discrimination. It has also been found that during the month of June 1976 the Respondent discriminatorily laid off 20 employ- ees. Whereas the Respondent may have been economically justified in laying off some of its employees during that month and thereafter and some of the discriminatorily laid- off employees might have been affected by such a nondiscriminatory reduction of personnel, the record furnishes no basis for determining when such a layoff might have occurred or the order in which any of the employees might have been laid off. Under these circum- stances, it will be recommended that the Respondent be ordered to offer to the employees who were unlawfully laid off in June 1976, and who have not been recalled, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and, in the event that there is insufficient work for all such employees, to dismiss, if necessary, all persons who were newly hired after the discriminatory layoffs in June. If there is not then sufficient work for the remaining employees and those to be offered reinstatement, all available positions shall be distributed among them without discrimination against any employee because of union activities, in accordance with a system of seniority or other nondiscriminatory basis. The Respondent shall place those employees, if any, for whom no employment is available after such distribution, on a preferential list, with priority in accordance with a system of seniority or other nondiscriminatory basis, and thereaf- ter shall offer them reinstatement as such employment becomes available and before other persons are hired for such work.3 It will also be recommended that the Respondent be ordered to make whole the above-named employees for any losses they may have suffered because of the Respon- dent's discrimination, by payment to each of them of a sum of money equal to the amount that he normally would have earned as wages from the date of his layoff in June 1976 to the date of the offer to reinstatement or placement on a preferential list, as the case may be, less his net earnings during such period, the backpay to be computed in accordance with the formula approved in F W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon computed in the manner and amount prescribed in Isis Plumbing & Heating Co., 138 NLRB 716, 717-721 (1962). It will also be recommended that the said Respondent be required to preserve and make available to the Board or its agents, on request, payroll and other records to facilitate the computation of backpay due. Since "a discriminatory discharge of an employee . . . goes to the very heart of the Act" (N.LRB. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941)), it will be recommended that the Respondent be ordered to cease That, of course, is a matter that can be disposed of at the compliance stage of this proceeding. In the event that it is evident at that time that the offers of reemployment were sufficient, backpay will be tolled as to the last- described employees as of the date when each returned to work, or each declined the Respondent's offer. 245 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and desist from infringing in any manner upon the rights guaranteed in Section 7. Upon the foregoing findings, conclusions, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER31 The Respondent, Lloyd Wood Coal Co., Inc., Tuscaloo- sa, Alabama, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing and refusing to bargain with United Mine Workers of America, or any other labor organization, representing its employees in the following appropriate unit: All production and maintenance employees, including all truckdrivers, but excluding office clericals, profes- sional employees, guards and supervisors as defined in the Act. (b) Failing or refusing, upon request, to bargain in good faith with any labor organization representing its employ- ees in the aforesaid appropriate unit, respecting rates of pay, wages, hours, or other terms or conditions of employment. (c) Interrogating any employee concerning that individu- al's union activity, or that of other employees, in a manner constituting a violation of Section 8(a)(1) of the Act. (d) Threatening its employees with loss of jobs or closing its mining operations if a majority become members of, or assist, a labor organization. (e) Giving its employees the impression that it is engaging in surveillance of their union activities. (f) Threatening employees with any form of reprisal because of their membership in, sympathy for, support of, or activity on behalf of, any labor organization. (g) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the National 3a 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. 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. Labor Relations Act, as amended, or to refrain from any or all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Stanley Tawbush, Neil McCay, Charles Martin, Charles Harris, Ed Ware, William Estes, Leonard Fowler, Johnny Alexander, Robert Richardson, Ray Sullivan, Joe Branch, Olin Duncan, Don L. Edwards, Steve Hughes, Will Montgomery, Joe Overton, Thomas Peeples, Willie James Harris, Albert Martin, Leslie Martin, and Alfred Thomas, immediate and full reinstatement 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, and make them whole in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Upon request, bargain collectively with United Mine Workers of America as the exclusive representative of employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. (d) Post at its office in Tuscaloosa, Alabama, copies of the attached notice marked "Appendix."3 2 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by an authorized representative, shall be posted by it for a period of 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges any unfair labor practices other than as herein specifically found. 32 In the event the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 246