Hobbs & Oberg Mining Co.

542 316 NLRB No. 95 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 297 NLRB 575. 2 No. 90-9523 (unpublished). Hobbs & Oberg Mining Company, Inc., Inter- national Chemical Company, and Eastoak Coal Company, Joint Employers and Oklahoma Coal Miners Union. Case 17–CA–16407 February 28, 1995 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS STEPHENS, COHEN, AND TRUESDALE On January 31, 1990, the National Labor Relations Board issued a Decision and Order in this proceeding,1 directing Hobbs & Oberg Mining Company, Inc., International Chemical Company, and Eastoak Coal Company, Respondent joint employers, inter alia, to make whole employees for their losses resulting from the Respondents’ unfair labor practices. The United States Court of Appeals for the Tenth Circuit enforced the Board’s Order in its entirety on August 14, 1991.2 A controversy having arisen over the amount of back- pay due under the terms of the Board’s Order, as en- forced by the court of appeals, the Regional Director for Region 17 issued a compliance specification and notice of hearing on September 21, 1993. Respondent Hobbs & Oberg filed an answer and Respondents International Chemical Company and Eastoak Coal Company filed an answer and an amended answer. A hearing was held on December 14, 1993, before Ad- ministrative Law Judge Elbert D. Gadsden. On July 27, 1994, the administrative law judge issued the attached supplemental decision. Respondents International Chemical Company and Eastoak Coal Company filed exceptions and a supporting brief. 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 at- tached supplemental decision in light of the exceptions and brief and has decided to affirm the judge’s rulings, findings, and conclusions and to adopt the rec- ommended Order. Respondents International Coal Company (ICC) and Eastoak Coal Company (ECC) except to the judge’s finding that they are obligated to make whole Hobbs & Oberg (H&O) employees who were on layoff when ICC and ECC took over H&O’s mining operation at the end of May 1987. Respondents ICC and ECC con- tend that it would be inequitable and punitive to re- quire them to make whole these employees of whom they had no knowledge either when they took over the operation or thereafter. Respondents ICC and ECC fur- ther contend that the judge erred by relying on the joint employer relationship found to exist between ICC, ECC, and H&O to impute H&O’s knowledge of these laid-off employees to ICC and ECC. In this re- gard, ICC and ECC contend that the judge’s reliance on Emsing’s Supermarket, 299 NLRB 569, 571 (1990), is misplaced because that case involved single employ- ers where ‘‘[i]mputing one single employer’s knowl- edge to the other is justified’’ because the two entitites are considered a ‘‘single integrated enterprise.’’ By contrast, because the joint employer theory assumes that two companies are independent legal entities, the Respondents assert that it would be unreasonable to as- sume that one joint employer would be aware of the other’s employment matters, particularly those that arose before the joint employer relationship was cre- ated. Finally, Respondents ICC and ECC contend that their lack of knowledge is analogous to a successor’s lack of knowledge of a predecessor’s unfair labor prac- tices. They contend, in effect, that since the Board does not hold a successor liable to remedy a prede- cessor’s unfair labor practices of which it has no knowledge, the Board should not require ICC and ECC to make whole the H&O employees who were on lay- off when they took over H&O’s mining operation. We disagree. First, ICC and ECC are wrong in suggesting that they are akin to successors of H&O, since it was es- tablished in the underlying proceeding that all three were joint employers and that their status as such con- tinued even after ICC and ECC took over the mining operation. Second, it was established in the underlying proceeding that all three engaged in an unlawful scheme to oust the Union, and all three are named in the underlying order which was enforced by the court of appeals. Thus, the arguments of ICC and ECC are essentially an impermissible untimely attack on the un- fair labor practice order. We also note that in view of findings of the joint participation in the scheme, the underlying order was entirely consistent with the Board’s recent decision in Capitol EMI Music, 311 NLRB 997 (1993). Finally, Respondents ICC and ECC except to the judge’s finding that they are obligated to reinstate and make whole employees Dean and Walker. The Re- spondents contend that because those employees’ jobs were eliminated when the Respondents converted from a dragline to a dozer-scraper operation, Dean and Walker are not entitled to reinstatement. We find this argument without merit. The Respondents overlook the fact that in the underlying proceeding the Board spe- cifically found that Dean and Walker were unlawfully terminated in violation of Section 8(a)(3) and were therefore entitled to reinstatement and backpay. We re- ject the Respondents’ attempt to relitigate this issue at the compliance stage of the proceeding. See, e.g., Baumgardner Co., 298 NLRB 26, 27–28 (1990). 543 HOBBS & OBERG MINING CO. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondents, Hobbs & Oberg Mining Company, Inc., International Chemical Company, and Eastoak Coal Company, joint employers, Tulsa, Okla- homa, their officers, agents, successors, and assigns, shall take the action set forth in the Order. Francis A. Molenda, Esq., for the General Counsel. Thomas F. Birmingham, Esq. (Birmingham, Morley, Weatherford & Priore), of Tulsa, Oklahoma, for the Re- spondent. Stephen Andrew, Esq. (McCormick, Andrew & Clark), of Tulsa, Oklahoma, for the Charging Party. SUPPLEMENTAL DECISION STATEMENT OF THE CASE ELBERT D. GADSDEN, Administrative Law Judge. This proceeding is initiated pursuant to a Decision and Order of the National Labor Relations Board in Case 16–CA–13286 on January 31, 1990, directing Respondents Hobbs & Oberg Mining Company, Inc., International Chemical Company, and Eastoak Coal Company to take the action set forth in the Board’s Order described as pertinent here as follows: On request, bargain with Oklahoma Coal Miners Union (the Union) as the exclusive representative of the employees in the appropriate bargaining unit concerning terms and con- ditions of employment and, if an understanding is reached, embody the understanding in a signed agreement. The unit consists of: All production and maintenance employees employed at the company’s mine in the United States, excluding all salaried supervisors, office clerical employees, guards and supervisors as defined in the Act. Offer all bargaining unit employees terminated on May 31, 1987, immediate and full reinstatement to their former jobs, or, if those jobs no longer exist, to substantially equivalent positions. Do this without prejudice to their seniority or any other rights or privileges previously enjoyed. Discharge, if necessary, any employees hired in the interim. Make the bargaining unit employees whole for any loss of earnings and other benefits suffered as a result of the dis- crimination against them, and as a result of the repudiation of the collective-bargaining agreement, in the manner set forth in the Board’s decision modifying the remedy. The Board’s Order having been enforced by the U.S. Court of Appeals for the 10th Circuit on August 14, 1991, on or about September 21, 1993, the Board issued the com- pliance specification and notice of hearing here, with Exhib- its 1, 2, and 3 attached thereto. Respondents International Chemical Company and Eastoak Coal Company filed an answer to the compliance specifica- tion on October 28, 1993, and an amended answer on the same date, stating that they do not dispute the allegations set forth in paragraphs 1 through 7 of the compliance specifica- tion, and conceding that the only issue presented for deter- mination is the amount of backpay and medical expenses, if any. Respondents also concede that the backpay period, if any, is between June 1, 1987, and February 1988. However, Respondents dispute that there are two major categories of individuals entitled to backpay, as alleged in paragraph 2 of the compliance specification. Without admitting any backpay liability to employees set forth in paragraph 3, Respondents contend that the method of computing the backpay is correct, except that it denies the computation of backpay for Robert Williams is correct, since Williams quit his employment October 29, 1987. Respondents dispute that the second major group of em- ployees and the first and second subgroups of the major group in paragraph 5 are entitled to backpay, because Re- spondents have not been given any information on interim earnings for them. Respondents contend that the individuals set forth in paragraph 7 of the compliance specification should not be included in the second subgroup of the major two groups because Respondent had no knowledge that Hobbs & Oberg had any employees on layoff until the com- mencement of the instant proceeding; and they had no way of confirming that the allegations on interim earnings set forth in paragraph 7 are true. Therefore, Respondents deny that they are true. Consequently, Respondents also dispute the allegations in paragraph 8 of the compliance specifica- tion. Respondents deny that Carl Jones incurred medical ex- penses of $554.83 plus $416.13 alleged medical expenses, and $138.07 for 1 month insurance; and they contend Jones was not entitled to medical expenses under the collective- bargaining agreement. Consequently, they argue that the computation set forth by the Board on the above matters in paragraph 13 are incorrect because they are based on erro- neous assumptions. Respondents further affirmatively allege that the Union never demanded bargaining with Eastoak Coal Company; that the Union was obligated under the collective-bargaining agreement to file a grievance prior to litigation; that the Union did not notify Respondents that any of the employees were on layoff and that such employees are thereby, not enti- tled to backpay or medical expenses. Moreover, they are es- topped from asserting such claim because under the terms of the collective-bargaining agreement, the Respondents had the right to determine the means and methods of operating the mine and they were free to subcontract work; that pursuant to such contractual authority, Eastoak changed from a drag- line to a dozer-scraper operation, requiring employees classi- fied as welder, electrician, mechanic, dragline operator, and other classifications; that the Union consented to the reduc- tion in wage rate by not filing a grievance over the oper- ational changes made by Eastoak; and that if liability exists, it is against Eastoak and not International Chemical Com- pany, because there is no evidence that the latter two are joint employers. However, it is particularly noted that all of Respondents’ contentions in the latter paragraph ignore counsel for the General Counsel’s argument, and the legal reality that the Board, upheld by the court of appeals, found that Respond- ents are joint employers, and as such, repudiated the collec- tive-bargaining agreement under which they now claim rights to make changes in operation of the mine. However, the joint employers issue has been well litigated and cannot and was not relitigated in this proceeding. 544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Consequently, a controversy having arisen over the amount of backpay and reimbursement for medical expenses due em- ployees under the terms of the Board’s Order of September 21, 1993, as enforced by the Court of Appeals for the 10th Circuit, the Regional Director for Region 17 issued this com- pliance specification, alleging that the backpay and reim- bursement for medical expenses due under the terms of the Board’s Order of September 21, 1993, is as follows: Hobbs & Oberg Mining Company, Inc., International Chemical Company, and Eastoak Coal Company, Joint Em- ployers (the Respondents) their officers, agents, successors, and assigns shall jointly and severely make the required pay- ments to the individual employees under the Board’s Deci- sion and Order, as enforced, by paying the following amounts, plus interest at the appropriate rate, subject to the accrual of additional interest until payment is effectuated: Employee Total Due Mike Armstrong $3482.27 Kenneth Dailey 1510.95 Bobby Houtz 1614.00 Albert Jones 2068.08 Carl Jones 7881.28 Frank Linzy 1718.44 Wesley Qualls 1158.51 Philip Thomas 2171.33 Robert Williams 2207.27 Donnie Keele 1705.19 Kenneth Owens 3541.82 John Radaich 4569.26 Earl Franklin 2088.00 James Hilburn 3517.94 Johnny Paul Howe 6972.26 Mike Stockton 6284.51 Lynn Heller 9976.01 Stanley O’Dell 8292.00 Clifton Walker 10,440.00 Homer Johnson 3520.75 Terry Dean 8667.83 Lester Lee 2187.89 Art Ballard 3370.64 Herb Tullos 677.86 Gene Lemley 3266.53 Kelly Grooms 1814.26 Charles Smith 1163.89 Robert Windler 856.14 Alvin Linzy 1891.46 Mark Radaich 1258.21 Gregg J. Blake 570.89 Steve P. Howe 1643.49 The compliance hearing in the above matter was held be- fore me on December 14, 1993, in Tulsa, Oklahoma. Inter- national Chemical Company appeared at the hearing through the representation of Stephen Andrew, Esquire. Although Hobbs & Oberg Mining Company, Inc. filed an answer here, it did not appear and was not represented at the hearing. Briefs have been received from counsel for the General Counsel and counsel for the Respondents, International Chemical Company and Eastoak Coal Company, respec- tively, which have been carefully considered. Since Respond- ent Hobbs & Oberg did not appear at the hearing and did not submit a posthearing brief in this matter, I find that Hobbs & Oberg offered no defense to the specifications as alleged. On the entire record in this case, including my observation of the witnesses and my consideration of the briefs, I make the following FINDINGS OF FACT I. DISPUTING OR QUESTIONING SPECIFICATION There is no dispute that the relevant backpay period in- volved commenced on June 1, 1987, and ended February 29, 1988, a period of 9 months when the joint employer relation- ship among the Respondents ended. The backpay involved resulted from the Respondents’ repudiation of the collective- bargaining agreement and shutdown of the mine on May 31, 1987, affecting the employment of 32 discriminatee-employ- ees in 3 groups. The first group consists of 11 individuals who were reinstated by Respondents but paid a lower wage rate than the repudiated collective-bargaining agreement specified. Consequently, under the Board’s formula, they are entitled to the difference between what should have been re- ceived under the agreement, and what they were in fact paid. The specification alleges that three of the same individuals were reinstated after some delay and are thereby entitled to additional backpay along with those discriminatees in the second group, as described in attached Exhibit 1. The second group of 13 employees were terminated by the Respondents on May 31, 1987, but were never reinstated or offered reinstatement. For this group of individuals, the cred- ited testimony (Compliance Officer Fetsch) established that these employees should receive what they would have earned at the mines between June 1, 1987, and February 29, 1988, and applying the Board’s quarter formula applicable to in- terim earnings, if any. The three employees in the first group whose reinstatement was delayed should receive backpay for the period of delay, in addition to what they receive from the difference between the collective-bargaining wage rate re- quired and what they were actually paid, as described in at- tached Exhibit 2. The General Counsel contends that the third group of discriminatees consist of individuals who were on layoff sta- tus at the time Respondent repudiated the agreement and shut down the mine on May 31, 1987. There were 11 individuals in the group who were never offered reinstatement or in fact reinstated, and are entitled to backpay under a Board’s for- mula, which takes into account their previously laid-off sta- tus. That is, since they would not have worked unless the weekly work force grew to a number (11) that would allow for their recall, they would be entitled to backpay on the probability that they would have been recalled to work dur- ing those particular weeks, as described in 1d, paragraphs 7– 8 and attached Exhibit 2. According to testimony of Compliance Officer Fetsch, em- ployee James Hilburn was terminated May 31, 1987, and he sought retirement after September 1987, and his backpay was limited accordingly. James Mashburn was on medical leave throughout the backpay period and therefore was not entitled to backpay. Fetsch said Carl Jones incurred medical expenses during the backpay period and it was determined he was en- titled to reimbursement for those expenses, in addition to backpay. 545 HOBBS & OBERG MINING CO. Compliance Officer Fetsch testified he was not aware that Hobbs & Oberg strip mining operation was done by the dragline method of operation, which Eastoak Coal Co. did not utilize. In June 1987, Eastoak Coal commenced operating five scrapers, three dozers, and two frontend loaders, work- ing their crews four 10-hour days, and the crew would be off for 4 days while another crew worked, for perpetual oper- ation of the mine. However, these changes were implemented after Respondents repudiated the contract. There was very limited overtime. Thus, all 11 employees including Arm- strong would have worked under the unchanged mining methods. The number of employees working between June 1987 and February 1988 varied between 9 and 27, with ap- proximately 17 to 18 working most frequently. Finally, Compliance Officer Fetsch testified that during the backpay period (June 1, 1987—February 29, 1988) Respond- ents employed between 9 and 27 employees in any given week. Thus, Fetsch stated it was properly assumed that em- ployees desired reimbursement and it was Respondents’ obli- gation to offer them reinstatement. Consequently, Officer Fetsch determined backpay according to the Board’s standard procedure for calculating backpay. The only evidence Respondents presented in response to the compliance specification was the testimony of Inter- national Chemical Company’s vice president, Larry Yeagley, who testified he instructed Mine Officials Ron Sisney and Larry Blevins to make sure that applications from discriminatees for employment would be properly completed. Yeagley identified certain applications from discriminatees for employment. The application of Mike Armstrong con- tained a notation ‘‘did not want to come back’’; a notation on the application of Carl Jones ‘‘did not come back . . . took another job’’; and a notation on Stanley O’Dell’s appli- cation indicated hired 6/19/87, contract mechanic, $16, all of which notations Yeagley testified he recognized as the hand- writing of Ron Sisney. However, neither Sisney nor Larry Blevins testified in this proceeding and the hearsay testimony of Yeagley about notations on the applications was not sub- stantiated. The notation on Armstrong’s application was spe- cifically and credibly denied by him. Only Mike Armstrong was called by Respondents and tes- tified he was eventually reinstated by Respondents July 25, 1987. When asked by Respondents’ counsel whether he in- formed Respondents during an interview that he ‘‘did not want to come back to work in the mine,’’ Armstrong denied he was interviewed by Respondents or that he made such a statement to Respondents. He said he would not have told Respondents he did not want to come back to work because he needed a job and the health insurance, since his wife had just given birth to a baby. Respondents did not present any credible evidence to re- fute the compliance formula or the computation set forth in the compliance specification as explained by Compliance Of- ficer Fetsch. Analysis and Conclusions Respondents’ defense to the compliance specification does not primarily challenge the mathematical computations nor the accuracy of the premises on which they were made by the compliance officer. Instead, Respondents’ arguments rely on the language of the collective-bargaining agreement which provided, that the employer has the right to determine the means, methods, and procedures to be used in operating the mine; that Respondents, as employers, exercised that right by changing the mine operations from dragline to a dozer, scraper, front-end loader operation, which eliminated the need for some classifications of workers; and that the com- pliance specification includes some of the workers who were no longer needed as a result of the change from dragline to dozer-scraper operation. Respondents further contend that the Union did not file any grievances over the elimination of the above-described job classifications, or the new job classifications, and Re- spondents did not have an opportunity to engage in arbitra- tion about these changes. While Respondents’ contentions about contract provisions may be correct, it is particularly noted, as pointed by counsel for the General Counsel, that Respondents raised some of these defenses and arguments during the hearing in the origi- nal proceeding, and the administrative law judge’s decision, affirmed by the Board, and the Board’s Order upheld and en- forced by the court of appeals, specifically found that the Re- spondents were joint employers, and were jointly and se- verely liable for any backpay arising from their unlawful re- pudiation of the contract and discrimination against the em- ployees. Consequently, the Respondents were ordered to cease and desist from making unilateral changes in working conditions, by subcontracting bargaining unit work, and thereby repudiating the collective-bargaining agreement and refusing to recognize and bargain with the Union. Moreover, the Board held that Respondents repudiated the collective- bargaining agreement when they stopped using the classified workers who were eliminated by the change in the operation of the mine. Hobbs & Oberg Mining Co., 297 NLRB 575, 592 (1990). However, since Respondents’ arguments are based on issues they previously raised or should have raised and liti- gated in the unfair labor practice proceeding, which were ruled on and affirmed by the Board, they cannot now reliti- gate these issues in an effort to exonerate themselves from established liability in this compliance proceeding. Workroom for Designers, 289 NLRB 1434, 1439 (1988); EDP Medical Computed Systems, 293 NLRB 857 (1989). Although Respondents claimed they had no knowledge of the fact that some employees of Hobbs & Oberg were on layoff, such lack of knowledge on their part does not exempt them from their joint employer status, and their attendant joint and several liability to the laid-off employees. Under such circumstances ‘‘knowledge’’ of the laid-off employees is imputed to the Respondents as joint employers. Emsing’s Supermarket, 299 NLRB 569, 571 (1990). At the trial here Respondents tried to show that some clas- sified and other laid-off employees were notified by Re- spondents through posted notices of job availabilities that Respondents were accepting applications for employment; and that many employees included in the compliance speci- fication did not apply for work on or after June 1, 1987. Re- spondents also tried to show that it interviewed and made telephone calls to some discriminatees to inquire of their in- terest in coming to work. Respondents did not present any former employees or witnesses who testified they were called, or were interviewed and offered a job by Respond- ents. 546 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended 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. It is especially noted that Respondents did not present any evidence that it made written or verbal job offers to any of the discriminatees listed in the backpay specification. Board law is clear that an employer Respondent who has unlawfully discriminated against employees must unconditionally offer the discriminatees reinstatement to their former position or, if such position does not exist, to substantially equivalent ones. Chase National Bank, 65 NLRB 827, 829 (1946). Thus, Respondents failed to present any evidence that they made any offers of employment to the discriminatees here in- volved. Certainly posting a notice of job availability or call- ing discriminatees on the telephone and asking them if they are interested in work is not unconditionally offering discriminatees employment. Although Respondents called one discriminatee (Mike Armstrong) in an effort to have him testify with respect to a notation on his application for employment, that he said ‘‘I do not want to come back to work,’’ Armstrong unequivo- cally and emphatically denied that he ever told any member of the Respondents he did not want to return to work. Con- sequently, the Respondents did not present any evidence challenging the calculations on interim earnings or reim- bursement for medical expenses. Having failed to controvert these calculations or the premises on which they are based with credited evidence, there is no issue presented with re- spect to them for resolution. Hansel Bros. Enterprises, 313 NLRB 599 (1933). Respondent International Chemical’s vice president, Yeagley, testified that there was a mine plan to extract the coal by a dozer, frontend loader, and scraper operation. He said they had three dozers, four scrapers, two frontend load- ers, totaling nine pieces of equipment, one oiler, a support crew, foreman, and superintendent as salaried individuals. They also had a parts runner, secretary, and assistant clerical support. The mine plan remained in operation from June 1987 to February 1988. Respondent Eastoak Coal Company’s answer to the speci- fication maintains that it had the right to determine the means of not operating the mine just as Hobbs & Oberg op- erated it. Notwithstanding, Respondents did not negotiate or speak with the Union about their change in operation, Respondent Eastoak cannot now raise and litigate or relitigate this issue when it did so, or should have done so in 1988 when the Board found Respondents were joint employers and had re- pudiated the contract. Respondents also argue that they were found joint employ- ers and as such, nevertheless had the right to determine the means of mine operation and subcontract work. Respondents admit they did not make this argument at the original trial because they said the remedy issue was left for compliance. However, an issue of joint employer status is not an issue for compliance but for the unfair labor practice proceeding where Respondents did litigate that issue. The General Counsel points out that the Board’s Order, as specifically enforced by the court, provides Respondents must cease and desist from subcontracting bargaining unit work and refusing to recognize and bargain with the Union, or making unilateral changes in wages, hours, terms, and conditions of employment of unit employees. The Board then concluded that Respondents repudiated their agreement when they stopped using certain classified positions of unit work- ers, or using the dragline operation. The testimonial evidence does not present any significant credibility issues for determination, and the extent to which any may have been raised, I credit the accounts of Compli- ance Officer Fetsch and discriminatee Armstrong over that of Respondent’s vice president, Yeagley, because I was per- suaded by their demeanor and accuracy that their accounts were more creditable than Yeagley’s. I therefore conclude and find on the foregoing credited tes- timony and the documentary evidence of the figures and computations in the compliance specification, that the parties do not disagree that such figures and computations are not accurate, or that they were not established in accordance with appropriate and correct Board formulas, as they were estab- lished to be. I therefore find that the backpay specification is accurate in all respects and issue the following rec- ommended1 ORDER The Respondents, Hobbs & Oberg Mining Company, Inc., International Chemical Company, and Eastoak Coal Com- pany, joint employers, Tulsa, Oklahoma, their officers, agents, successors, and assigns, shall make the discriminatees listed in Exhibits 1, 2, and 3, incorporated in and appended hereto, whole for wages and medical reimbursements, in ac- cordance with the Board’s Order and the court’s judgment in this proceeding, by paying to them the amounts set forth op- posite their respective names, plus interest accrued on all of these amounts computed in accordance with the formula set forth in the Board’s Decision and Order. The Respondents shall make the appropriate deductions from the amounts of any tax withholding required by state and Federal laws. 547 HOBBS & OBERG MINING CO. ATTACHMENTS EXHIBIT 1 Yr./Qtr. Reg. Hrs. OT Hrs. Amt. Earned Amt. Paid Difference (Amt. Owed) AMOUNTS OWED TO FORMER HOBBS & OBERG EMPLOYEES WHO WORKED AT EASTOAK MIKE ARMSTRONG—$10.75/Hr. 1987/2d - 0 - - 0 - - 0 - - 0 - - 0 - 1987/3d 333.5 - 0 - $3,585.13 $3,001.50 $583.63 1987/4th 419.5 17.5 4,791.82 3,966.75 825.07 1988/1st 265 31 3,348.63 2,772.00 576.63 Amount Owed $1,985.33 KENNETH DAILEY—$10.25/Hr. 1987/2d 48.5 - 0 - $497.13 $436.50 $60.63 1987/3d 439.5 .5 4,512.57 3,962.25 550.32 1987/4th 52 10 4,786.75 4,203.00 583.75 1988/4th 250 2 2,593.25 2,277.00 316.25 Amount Owed $1510.95 BOBBY HOUTZ—$10.25/Hr. 1987/2d 40 19.5 $709.81 $758.25 - 0 - 1987/3d 456 19.5 4,973.81 4,358.25 $615.56 1987/4th 452 31.5 5,117.31 4,493.25 624.06 1988/1st 271 19 3,069.88 2,695.50 374.38 Amount Owed $1,614.00 ALBERT JONES—$10.75/Hr. 1987/2d 80 1.5 $884.19 $740.25 $143.94 1987/3d 435.5 - 0 - 4,681.63 3,919.50 762.13 1987/4th 399.5 - 0 - 4,294.63 3,595.50 699.13 1988/1st 264.5 - 0 - 2,843.38 2,380.50 462.88 Amount Owed $2,068.08 CARL JONES—$10.75/Hr. 1987/2d - 0 - - 0 - - 0 - - 0 - - 0 - 1987/3d - 0 - - 0 - - 0 - - 0 - - 0 - 1987/4th 197.5 - 0 - $2,123.13 $1,777.50 $345.63 1988/1st 246.5 - 0 - 2,649.88 2,218.50 431.38 Amount Owed $777.01 FRANK LINZY—$10.25/Hr. 1987/2d 52 - 0 - $533.00 $468.00 $65.00 1987/3d 470.5 33.5 5,337.69 4,686.75 650.94 1987/4th 472.5 30.5 5,312.06 4,664.25 647.81 1988/1st 266.5 11.5 2,908.44 2,553.75 354.69 Amount Owed 1,718.44 WESLEY QUALLS—$10.75/Hr. 1987/2d 80 3.5 $916.44 $767.25 $149.19 1987/3d 425.5 .5 4,582.19 3,836.25 745.94 1987/4th 150.5 - 0 - 1,617.88 1,354.50 263.38 1988/1st - 0 - - 0 - - 0 - - 0 - - 0 - Amount Owed $1,158.51 548 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ATTACHMENTS—Continued EXHIBIT 1 Yr./Qtr. Reg. Hrs. OT Hrs. Amt. Earned Amt. Paid Difference (Amt. Owed) PHILIP THOMAS—$10.75/Hr. 1987/2d 47.5 - 0 - $510.63 $427.50 $83.13 1987/3d 444.5 10 4,939.63 4,135.50 804.13 1987/4th 420.5 - 0 - 4,520.38 3,784.50 735.88 1988/1st 260 23.5 3,173.94 2,625.75 548.19 Amount Owed $2,171.33 ROBERT WILLIAMS—$10.75/Hr. 1987/2d 80 3.5 $916.44 $767.25 $149.19 1987/3d 445.5 - 0 - 4,789.13 4,014.00 775.13 1987/4th 437.5 9 4,848.26 4,059.00 789.26 1988/1st 245 9.5 2,786.94 2,293.25 493.69 Amount Owed $2,207.27 DONNIE KEELE—$10.75/Hr. 1987/2d 40 13.5 $647.69 $481.50 $166.19 1987/3d 345 20 4,031.25 3,285.00 746.25 1987/4th 360 - 0 - 3,870.00 3,240.00 630.00 1988/1st 93 - 0 - 999.75 837.00 162.75 Amount Owed $1,705.19 KENNETH OWENS—$10.75/Hr. 1987/2d - 0 - - 0 - - 0 - - 0 - - 0 - 1987/3d 396 5 $4,337.63 $3,631.50 $706.13 1987/4th 496 - 0 - 5,332.00 4,464.00 868.00 1988/1st 269 - 0 - 2,891.75 2,421.00 470.75 Amount Owed $2,044.88 EXHIBIT 2 Yr./Qtr. Hours Gross Backpay Interim Earnings Net Backpay AMOUNTS OWED TO EMPLOYEES WHO WERE TERMINATED OR DELAYED IN RECALL MIKE ARMSTRONG 1987/2d $10.75 55.25 $593.94 - 0 - $593.94 1987/3d 10.75 84 903.00 - 0 - 903.00 1987/4th 10.75 - 0 - - 0 - - 0 - - 0 - 1988/1st 10.75 - 0 - - 0 - - 0 - - 0 - Amount Owed $1,496.94 KENNETH OWENS 1987/2d $10.75 55.25 $593.94 - 0 - $593.94 1987/3d 10.75 84 903.00 - 0 - 903.00 1987/4th 10.75 - 0 - - 0 - - 0 - - 0 - 1988/1st 10.75 - 0 - - 0 - - 0 - - 0 - Amount Owed $1,496.94 549 HOBBS & OBERG MINING CO. EXHIBIT 2 Yr./Qtr. Hours Gross Backpay Interim Earnings Net Backpay CARL JONES 1987/2d $10.75 55.25 $593.94 - 0 - $593.94 1987/3d 10.75 372 3,999.00 - 0 - 3,999.00 1987/4th 10.75 182 1,956.50 - 0 - 1,956.50 1988/1st 10.75 - 0 - - 0 - - 0 - - 0 - Amount Owed $6,549.44 JOHN RADAICH 1987/2d $10.75 55.25 $593.94 - 0 - $593.94 1987/3d 10.75 372 3,999.00 $900.00 3,099.00 1987/4th 10.75 333.25 3,582.44 2,999.25 583.19 1988/1st 10.75 167.5 1,800.63 1,507.50 293.13 Amount Owed $4,569.26 EARL FRANKLIN 1987/2d $10.75 55.25 $593.94 $469.63 $124.31 1987/3d 10.75 372 3,999.00 3,162.00 837.00 1987/4th 10.75 333.25 3,582.44 2,832.63 749.81 1988/1st 10.75 167.5 1,800.63 1,423.75 376.88 Amount Owed $2,088.00 JAMES HILBURN 1987/2d $10.75 55.25 $593.94 - 0 - $593.94 1987/3d 10.75 272 2,924.00 - 0 - 2,924.00 1987/4th 10.75 - 0 - - 0 - - 0 - - 0 - 1988/1st 10.75 - 0 - - 0 - - 0 - - 0 - Amount Owed $3,517.94 JOHNNY PAUL HOWE 1987/2d $10.75 55.25 $593.94 - 0 - $593.94 1987/3d 10.75 372 3,999.00 $500 3,499.00 1987/4th 10.75 333.25 3,582.44 1,666.25 1,916.19 1988/1st 10.75 167.5 1,800.63 837.50 963.13 Amount Owed $6,972.26 MIKE STOCKTON 1987/2d $10.75 55.25 $593.94 - 0 - $593.94 1987/3d 10.75 372 3,999.00 $1,427.00 2,572.00 1987/4th 10.75 333.25 3,582.44 1,427.00 2,155.44 1988/1st 10.75 167.5 1,800.63 837.50 963.13 Amount Owed $6,284.51 LYNN HELLER 1987/2d $10.75 55.25 $593.94 - 0 - $593.94 1987/3d 10.75 372 3,999.00 - 0 - 3,999.00 1987/4th 10.75 333.25 3,582.44 - 0 - 3,582.44 1988/1st 10.75 167.5 1,800.63 - 0 - 1,800.63 Amount Owed $9,976.01 STANLEY O’DELL 1987/2d $11.25 55.25 $621.56 - 0 - $621.56 1987/3d 11.25 372 4,185.00 $690.00 3,495.00 550 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD EXHIBIT 2 Yr./Qtr. Hours Gross Backpay Interim Earnings Net Backpay 1987/4th 11.25 333.25 3,749.06 690.00 3,059.06 1988/1st 11.25 167.50 1,884.38 768.00 1,116.38 Amount Owed $8,292.00 CLIFTON WALKER 1987/2d $11.25 55.25 $621.56 - 0 - $621.56 1987/3d 11.25 372 4,185.00 - 0 - 4,185.00 1987/4th 11.25 333.25 3,749.06 - 0 - 3,749.06 1988/1st 11.25 167.5 1,884.38 - 0 - 1,884.38 Amount Owed $10,440.00 HOMER JOHNSON 1987/2d $10.75 55.25 $593.94 $382.33 $211.61 1987/3d 10.75 372 3,999.00 2,574.24 1,424.76 1987/4th 10.75 333.25 3,582.44 2,306.09 1,276.35 1988/1st 10.75 167.5 1,800.63 1,192.60 608.03 Amount Owed $3,520.75 TERRY DEAN 1987/2d $10.75 55.25 $593.94 - 0 - $593.94 1987/3d 10.75 372 3,999.00 - 0 - 3,999.00 1987/4th 10.75 333.25 3,582.44 - 0 - 3,582.44 1988/1st 10.75 167.5 1,800.63 $1,308.18 492.45 Amount Owed $8,667.83 LESTER LEE 1987/2d $10.75 27.5 $295.63 $137.50 $158.13 1987/3d 10.75 145.5 1,564.13 727.50 836.63 1987/4th 10.75 78 838.50 390.00 448.50 1988/1st 10.75 129.5 1,392.13 647.50 744.63 Amount Owed $2,187.89 ART BALLARD 1987/2d $10.25 27.5 $281.88 - 0 - $281.88 1987/3d 10.25 145.5 1,491.38 - 0 - 1,491.38 1987/4th 10.25 78 799.50 - 0 - 799.50 1988/1st 10.25 129.5 1,327.38 $529.50 797.88 Amount Owed $3,370.64 HERB TULLOS 1987/2d $10.75 27.5 $295.63 $220.00 $75.63 1987/3d 10.75 145.5 1,564.13 1,248.25 315.88 1987/4th 10.75 78 838.50 730.86 107.64 1988/1st 10.75 129.5 1,392.13 1,213.42 178.71 Amount Owed $677.86 GENE LEMLEY 1987/2d $9.75 27.5 $268.13 $52.16 $215.97 1987/3d 9.75 145.5 1,418.63 254.73 1,163.90 1987/4th 9.75 78 760.50 136.47 624.03 1988/1st 9.75 129.5 1,262.63 - 0 - 1,262.63 Amount Owed $3,266.53 551 HOBBS & OBERG MINING CO. EXHIBIT 2 Yr./Qtr. Hours Gross Backpay Interim Earnings Net Backpay KELLY GROOMS 1987/2d $9.75 27.5 $268.13 $165.00 $103.13 1987/3d 9.75 145.5 1,418.63 - 0 - 1,418.63 1987/4th 9.75 78 760.50 468.00 292.50 1988/1st 9.75 129.5 1,262.63 1,359.75 - 0 - Amount Owed $1,814.26 CHARLIE SMITH 1987/2d $10.75 27.5 $295.63 $178.75 $116.88 1987/3d 10.75 145.5 1,564.13 945.75 618.38 1987/4th 10.75 78 838.50 507.00 331.50 1988/1st 10.75 129.5 1,392.13 1,295.00 97.13 Amount Owed $1,163.89 ROBERT WINDLE 1987/2d $11.25 27.5 $309.38 $247.50 $61.88 1987/3d 11.25 145.5 1,636.88 1,309.50 327.38 1987/4th 11.25 78 877.50 702.00 175.50 1988/1st 11.25 129.5 1,456.88 1,165.50 291.38 Amount Owed $856.14 ALVIN LINZY 1987/2d $11.25 27.5 $309.38 $160.60 $148.78 1987/3d 11.25 145.5 1,636.88 849.72 787.16 1987/4th 11.25 78 877.50 455.52 421.98 1988/1st 11.25 129.5 1,456.88 923.34 533.54 Amount Owed $1,891.46 MARK RADAICH 1987/2d $9.75 27.5 $268.13 $186.18 $81.95 1987/3d 9.75 145.5 1,418.63 985.04 433.59 1987/4th 9.75 78 760.50 528.06 232.44 1988/1st 9.75 129.5 1,262.63 752.40 510.23 Amount Owed $1,258.21 GREGG J. BLAKE 1987/2d $10.75 27.5 $295.63 $275.00 $20.63 1987/3d 10.75 145.5 1,564.13 1,455.00 109.13 1987/4th 10.75 78 838.50 624.00 214.50 1988/1st 10.75 129.5 1392.13 1,165.50 226.63 Amount Owed $570.89 STEVE P. HOWE 1987/2d $9.75 27.5 $268.13 - 0 - $268.13 1987/3d 9.75 145.5 1,418.63 $1,062.00 356.63 1987/4th 9.75 78 760.50 647.40 113.10 1988/1st 9.75 129.5 1,262.63 357.00 905.63 Amount Owed $1,643.49 552 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD EXHIBIT 3 Employee Backpay Due to Reduced Wages Backpay Due to Termination or Delay in Recall Medical Reimbursement Total Mike Armstrong $1,985.33 $1,496.94 - 0 - $3,482.27 Kenneth Dailey 1,510.95 - 0 - - 0 - 1,510.95 Bobby Houtz 1,614.00 - 0 - - 0 - 1,614.00 Albert Jones 2,068.08 - 0 - - 0 - 2,068.08 Carl Jones 777.01 6,549.44 $554.83 7,881.28 Frank Linzy 1,718.44 - 0 - - 0 - 1,718.44 Wesley Qualls 1,158.51 - 0 - - 0 - 1,158.51 Philip Thomas 2,171.33 - 0 - - 0 - 2,171.33 Robert Williams 2,207.27 - 0 - - 0 - 2,207.27 Donnie Keele 1,705.19 - 0 - - 0 - 1,705.19 Kenneth Owens 2,044.88 1,496.94 - 0 - 3,541.82 John Radaich - 0 - 4,569.26 - 0 - 4,569.26 Earl Franklin - 0 - 2,088.00 - 0 - 2,088.00 James Hilburn - 0 - 3,517.94 - 0 - 3,517.94 Johnny Paul Howe - 0 - 6,972.26 - 0 - 6,972.26 Mike Stockton - 0 - 6,284.51 - 0 - 6,284.51 Lynn Heller - 0 - 9,976.01 - 0 - 9,976.01 Stanley O’Dell - 0 - 8,292.00 - 0 - 8,292.00 Clifton Walker - 0 - 10,440.00 - 0 - 10,440.00 Homer Johnson - 0 - 3,520.75 - 0 - 3,520.75 Terry Dean - 0 - 8,667.83 - 0 - 8,667.83 Lester Lee - 0 - 2,187.89 - 0 - 2,187.89 Art Ballard - 0 - 3,370.64 - 0 - 3,370.64 Herb Tullos - 0 - 677.86 - 0 - 677.86 Gene Lemley - 0 - 3,266.53 - 0 - 3,266.53 Kelly Grooms - 0 - 1,814.26 - 0 - 1,814.26 Charles Smith - 0 - 1,163.89 - 0 - 1,163.89 Robert Windler - 0 - 856.14 - 0 - 856.14 Alvin Linzy - 0 - 1,891.46 - 0 - 1,891.46 Mark Radaich - 0 - 1,258.21 - 0 - 1,258.21 Gregg J. Blake - 0 - 570.89 - 0 - 570.89 Steve P. Howe - 0 - 1,643.49 - 0 - 1,643.49 Totals $18,960.99 $103,885.65 $554.83 $123,401.47