Pengrove Coal Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pengrove Coal Co. and Charles Albert. Case 6-CA- 9442 May 11, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On January 24, 1977, Administrative Law Judge Melvin J. Welles issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions 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,' and conclusions of the Administrative Law Judge and to adopt his recommended Order,2 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, Pengrove Coal Co., Irwin Township, Pennsyl- vania, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order, as so modified: 1. Substitute the following for paragraph l(c): "(c) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights under Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. 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 In his recommended Order and proposed notice the Administrative Law Judge uses the narrow cease-and-desist language, "like or related," rather than the broad injunctive language, "in any other manner," the Board traditionally provides in cases involving serious 8(a)(3) violations, such as found here. See N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941); Electrical Fittings Corporation, a subsidiary of I-T-E Imperial Corporation, 216 NLRB 1076 (1975). Accordingly, we shall modify the Order and notice to require Respondent to cease and desist from, in any other manner, infringing upon employee rights. 229 NLRB No. 83 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise discrimi- nate against any employees because of their concerted activities for mutual aid and protection, or their union activities. WE WILL NOT threaten our employees for engaging in protected concerted activities, or union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the Act. WE WILL offer Charles Albert immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss he may have suffered. PENGROVE COAL CO. DECISION STATEMENT OF THE CASE MELVIN J. WELLES, Administrative Law Judge: This case was heard at Mercer, Pennsylvania, on November 24, 1976, based on charges filed July 26, 1976, and a complaint issued September 28, 1976, alleging that Respondent violated Section 8(a)(1) and (3) of the Act. Respondent has filed a brief. Upon the entire record in the case, including my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER AND THE LABOR ORGANIZATION INVOLVED Respondent, a Pennsylvania corporation, is engaged in the mining and nonretail sale of coal in Irwin Township, Pennsylvania. During the 12 months preceding the is- suance of the complaint herein, it shipped goods and materials valued in excess of $50,000 from the Common- wealth of Pennsylvania to points outside the Common- wealth of Pennsylvania. I find, as Respondent admits, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. United Mine Workers of America is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES Facts and Discussion The complaint alleges that Respondent unlawfully threatened employee Charles Albert with discharge if he 562 PENGROVE COAL CO. supported the Union, and then discharged him for protected concerted activity and to discourage his union membership. The pertinent events all occurred during a 3-day period, May 10-12, 1976. Albert, a 9-year employee of Respon- dent, had been talking in April and early May about a raise for the men and about having a 2-week vacation instead of the one the employees were receiving, with Wayne Chutz, Respondent's superintendent, and the son of its president, Leonard Chutz. According to Albert, "Wayne would just laugh and make a joke out of it." The morning of May 10, Albert, employee Robert Emmett, and Wayne Chutz were having a sandwich in the shop, and a truckdriver named Pierce (not employed by Respondent) came in and asked what they were doing. Emmett said (obviously jokingly) that they were having a union meeting, and Albert added that they were "trying to get more money off the boss, but he wouldn't give us any." Pierce said, "Well, you'll have to strike then," and Albert replied, "That could be arranged." Wayne Chutz then said, according to Albert, "you ought to watch what you're saying like that, good men are hard to replace, and can be replaced for saying something like that." That evening, Albert called District 5 of the Mine Workers in Pittsburgh, and was referred to District 2 in Ebensburg. The next morning, Albert told Emmett that he had called the Union, and Emmett advised Albert to talk to President Leonard Chutz and "try to work it out without bringing the Union in." I A little later that day, Albert told Wayne Chutz that he had called the Union, and what Emmett had advised. Chutz, according to Albert, said he would get his father there for a meeting with all the men, and that he (Albert) would probably get fired when his father found out he had called the Union. Albert clarified this on cross-examination, testifying that he had said to Chutz that he would probably be fired for calling the Union, and Chutz replied, "You probably will." A bit later, Wayne Chutz came into the shop, said his father could not be there that evening, but would be there the next evening, and that when he came, Albert would be fired for calling the Union. Again, this is Albert's testimony. The next day, a meeting was held at the shop about 5 p.m., with all the approximately 18 employees attending. This meeting had been announced by Wayne Chutz the previous afternoon and evening; he told the day shift employees to stop work half an hour early, and the night shift to come in half an hour early for the meeting. The meeting convened as scheduled. It began with Leonard Chutz counting the employees. He then an- nounced that "there's going to be no raises on this job." He went on to say that he understood some of the employees had "bitches" and "complaints," and when he received no immediate response, he looked at Charles Albert, and asked if he had any. Albert said that he did, that he had asked Wayne Chutz for raises for the men several times, also mentioning vacations, and, according to Albert, he repeated to Leonard Chutz his conversations of May 10 and II with Wayne Chutz, including the fact that he had called the Union. At that point, according to Albert, I Emmett, called as Respondent's witness, confirmed the gist of Albert's testimony in these respects. Leonard Chutz came over right next to him, "cussed and swore," said that Albert did not do his job, was lazy, and sat around and slept. He then asked Albert whether he was satisfied. When Albert said that he was not, Chutz pulled out an envelope, said "Here's your paycheck, get the hell out," and asked Albert how much more time he had coming. Albert said he had 29-1/2 hours coming, and he left. Albert also testified that he had talked "union" with a number of the employees on May 10 and 11, specifically naming Raymond Alcorn, Emmett, McLaughlin, Charles Alcorn, and Miller, and that he had discussed raises with the employees. The only other General Counsel witness was Donald Albert, Charles Albert's brother, who was and remains an employee of the Company. He confirmed Charles Albert's testimony regarding the May 12 meeting with respect to Charles Albert having related to Leonard Chutz his earlier conversation with Wayne Chutz. Donald Albert also testified that after Charles Albert was given his check and left the meeting, when the meeting continued, Leonard Chutz mentioned to the remaining employees about the favors he had done for Charles Albert. Wayne Chutz testified that Charles Albert asked him about more money sometime in April, and that he told Albert there would not be any raises in the near future because the price of coal was way down. As to the May 10 conversation with Charles Albert and Pierce (Wayne Chutz' testimony does not have Emmett present, although Wayne Chutz did say Emmett was present at an earlier conversation with Albert about raises), Wayne Chutz has Albert stating, "we're having a meeting"; Chutz respond- ing, "aren't you satisfied"; Albert then saying, "Well, I've had a job before I came here, and I could get another job again"; and Chutz replying, "Well, good men are hard to find, but I've never seen any that couldn't be replaced." Wayne Chutz testified that "as far as I was concerned, it was more or less in a joking manner." The second conversation between Chutz and Albert that morning, as testified to by Chutz, began after Chutz came into the shop and was told by Emmett that Albert was mad and that Chutz "better talk to him." Chutz went over to Albert, who told Chutz that he had called a labor hall, and thought he should have more money and more time off. Nothing more was said at that time, according to Chutz, who left and then returned after about 15 or 20 minutes and asked Albert if he "had any personal bitch with me, or if he thought that I had done him wrong, personally." Albert said he "thought there should have been a dollar raise and that we ought to get some more time off on the job, and that he'd like to have a meeting with my father." Chutz replied that his father was having a gum operation, and he doubted if a meeting could be arranged that night, but that possibly the next night a meeting could take place. Chutz then went to his father's home, and told him "Charlie's stirred up, and he wants a meeting up at the shop." Leonard Chutz said that he could not meet that night, but that Wayne should set up a meeting for the next night. Wayne also told his father that Albert "wanted a 563 DECISIONS OF NATIONAL LABOR RELATIONS BOARD raise, more time off." He testified that he did not mention to his father anything about Albert having talked with, or about, the Union. Wayne Chutz' version of what occurred at the meeting the next day is in agreement with Albert's about how the meeting began, and how Leonard Chutz turned to Albert. Wayne Chutz has Albert then telling his father that he had asked Wayne Chutz for a raise and that Wayne had said no, there would not be any raises or extra time off, that Albert then repeated that he thought there ought to be more money and more time off, and Leonard Chutz then told Albert that he had "babied" him, and given him "good jobs," and "the way the market was with the coal, that in the immediate future there would be no raises, or that the strip mine couldn't run if shutting down two weeks for vacation." He then asked Albert if he was still dissatisfied, Albert said he was, and Leonard Chutz then "gave him his check and he shook hands and then he left." Leonard Chutz testified to the same effect as Wayne Chutz concerning their conversation on May II. His testimony concerning the May 12 meeting also paralleled that of his son. More specifically, Leonard Chutz testified that after he asked if anyone had any complaints several times, and no one responded, he turned to Albert, said, "Charles, you called this meeting, what do you want?" When Albert said he "wanted more money, and thought he ought to have more vacations," Chutz said, "You know the way the coal market is, and you know the rock pile we're in." He went on to tell Albert that he'd had "a few breaks on this job . . . and I didn't think you would be complaining." When Albert said he was still dissatisfied, Chutz "took the checks out of my pocket, handed him his check, shook hands with him, wished him a lot of luck and he left." Asked by his counsel whether it was correct that he called Albert "all sorts of very bad things," Chutz replied, "I don't know what he calls bad names. I was possibly using some profanity. I do quite a bit. I wasn't that close to him, but I was close enough to him that him and I could correspond." Leonard Chutz also denied that Albert had mentioned to him at the meeting his conversations with Wayne Chutz about calling the Union, or anything about a union. He confirmed that Albert told him, in response to his (Chutz') question, that he had 29-1/2 hours coming. There were eight other witnesses called by Respondent, most of them testifying only about the May 12 meeting. All eight agreed with the two Chutz that there was no mention of "union" by Albert during the meeting.2 Most testified that Albert only mentioned "money," and said nothing about vacations, when Leonard Chutz turned to him; a few did "not recall" whether Albert mentioned vacations, and one, Vernon Black, specifically testified that Albert did ask about vacations.3 Although most of the witnesses testified that Chutz told Albert that he had "babied him," or "treated him well," Black testified that this kind of remark I There were six who specifically testified that there was no mention of "union" by Albert; the other two merely did not, in their testimony about what occurred, include any such reference. I Leonard Chutz' answer, according to Black, was that the Company "just didn't have enough money right now at the present time to give any more money and as far as vacations go, we got what we got and possibly we might get another week maybe before the end of the year, but he . . . wouldn't guarantee it." by Chutz was to the men who remained after Albert left the meeting. By and large, I found both Charles and Donald Albert to be credible witnesses. With particular reference to Charles Albert, in almost every instance of a conflict between his testimony and that of one or more of Respondent's witnesses, his version of a particular statement or occur- rence was confirmed by one or more of Respondent's witnesses. For example, Albert testified that employee Emmett was with him and Chutz when nonemployee Pierce came by and asked what they were doing, and Emmett said they were having a union meeting. Chutz testified that Albert and Pierce were there, not Emmett, and that Albert said, "We're having a union meeting," in response to Chutz' "How are things going?" Emmett confirmed Albert's testimony. Although this difference is in no way critical to resolving this case, it does indicate that Albert's recollection was better than Chutz'. With respect to the slight variance between the testimony of Albert and that of Chutz as to what Chutz said, Emmett's testimony again, although not precise, was somewhat more confirma- tory of Albert's version.4 With respect to the events at the May 12 meeting, the testimony of most of the employee witnesses called by Respondent that "vacations" was not mentioned by Albert to Leonard Chutz was obviously wrong. Both Wayne and Leonard Chutz, indeed, confirmed the testimony of Charles and Donald Albert that the subject of vacations was mentioned, as did witness Black. With respect to remarks made by Leonard Chutz to the general effect that he had babied, and taken care of Albert, the testimony of Donald Albert that such remarks were made after Charles Albert was fired and left the shop is confirmed by Respondent witness Black. Of the eight Respondent witnesses, only Black, and to some extent Emmett, 5 seemed to have an accurate recollection of the occurrences. It seemed to me that the other six witnesses were more interested in giving answers that they thought would favor Respondent's position than in testifying to their true recollections of what occurred. None of them heard "vacation" mentioned, although the Alberts and Chutz' agreed that it was; none heard Leonard Chutz ask Albert how much more time he had coming, and Albert reply that he had 29 1/2 hours; although Chutz agreed with Albert that this exchange took place; and none heard any "cussing" by Chutz, although Albert's testimony in this respect was to all intents and purposes corroborated by Chutz himself. As none of the other witnesses, including Black and Emmett, heard any mention of "union" by Charles Albert to Leonard Chutz during their interchange, I make no finding in this respect, although it is entirely possible that "union" was mentioned when Chutz was standing close to Albert, and that the other employees, most of whom did not hear a number of things that were obviously said, either 4 Emmett testified, "I think Wayne made a statement that he could be replaced, Charlie could be replaced, or something like that, a good man was hard to find, or something to that effect." s Who conceded that he was "standing back there in the corner goofing off' during part of the meeting. 564 PENGROVE COAL CO. did not hear or paid no attention to the word. The most critical aspect of this case, however, does not involve any conflicts in the testimony. Rather, it concerns whether Respondent discharged Albert for union or protected concerted activity. Despite the testimony of the employee witnesses that they believed Albert was speaking solely for himself at the meeting, it is clear to me that both Wayne and Leonard Chutz did not regard Albert's requests, whether before the May 12 meeting or at it, as being made only on his own behalf. In the first place, it is extremely unlikely that Leonard Chutz would call a meeting of his entire employee complement, and have the day shift stop work half an hour early and the night shift report in half an hour early for the meeting, and in effect get up out of a sick bed to speak to all the employees, merely to deny Albert's personal request for a raise and for more vacation time. Wayne Chutz admittedly told his father of these requests the day before, and Leonard Chutz, had he believed the requests were those of a single employee, could have told his son to tell Albert "no." Furthermore, Wayne Chutz knew that Albert had called the Union, and I cannot believe that he would have refrained from adding those few words - "Albert called the Union" - to what he was telling his father the night before the meeting. His suggestion that his father was too ill from his gum operation for their meeting at his father's house on May 11 to be protracted scarcely serves as a convincing reason for not telling his father a rather significant fact that required only seconds to relate. Leonard Chutz came to the meeting armed with Albert's check, obviously prepared to discharge him and to give him that check. Whether he had the checks of the other employees with him (the meeting was Wednesday; payday was Thursday), as he testified, is doubtful to me, although I make no contrary finding. Indeed, Chutz testified that he brought all the checks to the meeting because "I thought if there was some dissatisfaction, that the guys would want paid," itself confirming that he did not believe Albert was the only "dissatisfied" employee. I am convinced that Leonard Chutz believed that Albert was agitating on behalf of the employees in general, not just himself, for a raise and for longer vacations, that Chutz also knew that Albert had called the Union, 6 and that he was prepared to make an object lesson of Albert to the other employees, and did so. Even absent any "union" considerations, the complaints about wages and vacations, voiced at a meeting of all employees called by management, and following discus- sions with other employees on these subjects, as well as with Wayne Chutz, are obviously protected concerted activities. See K-Mart Enterprises, Inc., 202 NLRB 358, 365, fn. 29 (1973), "Whether or not Kalisz and Snyder were chosen by employees to represent them in the presentation of grievances is unimportant, because they spoke at the meeting on their behalf as well as on their own. In any event, discharging them for expressing their solicited grievances is a violation of the Act." Cloverdale Plywood Company, a Divison of Farley and Loetseher Manufacturing Company, 156 NLRB 819, 827 (1966). See also N. LR.B. v. Phoenix Mutual Life Insurance Company, 167 F.2d 983, 988 (C.A. 7, 1948); N.L.R.B. v. Halsey W. Taylor Company, 342 F.2d 406, 408 (C.A. 6, 1965). Therefore, Leonard Chutz' own testimony, in answer to his counsel's question "Why did you give him his check?" that it was "strictly because Chuck was not satisfied with the wages and the vacations, is what he told me he was dissatisfied about," not only virtually establishes the violation herein, but negates any suggestion that might otherwise be inherent in Chutz' testimony that Albert's employment record over the 9 years he worked for the Company had anything to do with the discharge. For all the foregoing reasons, I find that Respondent discharged Charles Albert on May 12 because of his protected concerted activities and because his call to the Union threatened Respondent with possible unionization of its employees, a threat it wished to nip in the bud, and that Respondent thereby violated Section 8(a)(X) and (3) of the Act. I also conclude that Respondent violated Section 8(a)(1) by Superintendent Wayne Chutz' agreement with Albert that his father would probably discharge Albert when he found out he had called the Union. Although the context of the statement, with the initial suggestion to that effect coming from Albert rather than Chutz, might in some circumstances militate against finding a violation, the discharge of Albert 2 days later demonstrates that the colloquy was not mere bantering or joking agreement by Chutz with Albert's remark. CONCLUSION OF LAW By discharging Charles Albert because of his protected concerted activities and his union activities, and by threatening him with reprisals if he engaged in such activities, Respondent has engaged in unfair labor practic- es affecting commerce within the meaning of Section 8(a)(1) and (3), and Section 2(6) and (7) of the Act. THE REMEDY I shall recommend that Respondent cease and desist from its unfair labor practices, that it offer reinstatement to Charles Albert, with backpay, computed as provided in F. W. Woolworth Company, 90 NLRB 289, (1950) and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and take certain affirmative action in order to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusion of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 6 Wayne Chutz' knowledge would in any event he imputable to Leonard Chutz, and I am convinced, as stated above, that he told his father of Albert's has ing called the Union. 565 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER 7 The Respondent, Pengrove Coal Co., Irwin Township, Pennsylvania, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discharging or in any other manner discriminating against employees because they have engaged in concerted activities or union activities. (b) Threatening its employees if they sought to engage in protected concerted activities or union activities. (c) In any like or related manner interfering with, restraining, or coercing their employees in the exercise of their rights protected by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Charles Albert immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered in the manner set forth in the section hereof entitled "The Remedy." I 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. (b) Preserve and, make available to the Board or its agents, upon request, 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 Order. (c) Post at its place of business in Irwin Township, Pennsylvania, and any other locations where notices to its employees are customarily posted, copies of the attached notice marked "Appendix."s Copies of said notice, on forms provided by the Regional Director for Region 6, shall be signed by an authorized representative of the Company and posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places at all locations where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director, in writing, within 20 days from the date of this Order, what steps the Respon- dent has taken to comply herewith. 8 In the event that 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." 566