Pittsburgh Coal Works

54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pittsburgh Coal Works and United Mine Workers of DECISION America, District 31. Case 6-CA-17155 14 February 1985 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 11 September 1984 Administrative Law Judge Marion C. Ladwig issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief.I The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,2 and conclusions3 and to adopt the recommended Order. ORDER The National' Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Pittsburgh Coal Works, Monongah, West Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the Order. STATEMENT OF THE CASE MARION C. LADWIG, Administrative Law Judge. This case was tried at Fairmont, West Virginia, June 6, 1984. The charge was filed by the Union February 29, 1984,1 and the complaint was issued April 2 and amended at the trial. In June the Union lost a second election at the Com- pany's mine by a tie vote. About the end of 1983, five of the mine employees became outstanding union supporters in a renewed organizational effort Two months later, all five of them were laid off and not recalled. The primary issues are whether the Company, the Respondent, (a) threatened employees with discharge for supporting the Union and (b) discriminatorily laid off the five union or- ganizers, in violation of Section 8(a)(1) and (3) of the Na- tional Labor Relations Act. On the entire record,' including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the General Counsel and the Company, I make the following FINDINGS OF FACT 1. JURISDICTION The Company, a West Virginia corporation, mines coal near Monongah, West Virginia, where 'it annually ships coal valued over $50,000 directly outside the State. The Company admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization, within the meaning of Section 2(5) of the Act. II ALLEGED UNFAIR LABOR PRACTICES The Respondent has requested oral argument, and the General Coun- sel opposes the request This request is denied as the record, exceptions, and brief adequately present the issues and the positions of the parties The Respondent has also requested the Board to reopen the record and the General Counsel has filed an opposition thereto The Respondent as- serts as newly discovered evidence a posthearing civil action filed in West Virginia state court by the five laid-off employees The suit alleges wrongful discharge based on a contract or implied contract theory and alleges retaliatory discharges because the employees reported safety vio- lations to state and Federal agencies The Respondent asserts that filing the state court action impinges on the credibility of the laid-off employ- ees The Respondent's request to reopen the record is denied The civil suit filed by the discrimmatees is not inconsistent with this proceeding and it does not affect the credibility findings because the motion is lack- ing in merit as the statements in the civil complaint by the employees in asserting that they were discharged because they made safety complaints to state and Federal agencies are conclusionary and self-serving for pur- poses of seeking an award in the state court proceeding See, e g , Capital Parcel Delivery Co, 269 NLRB 52 (1984) 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 3 We do not rely on the judge's statement that the layoffs prevented a planned third election as the record does not establish that a third elec- tion was in fact planned A. Circumstances of the Layoffs Until 1980 Perry Williams (now 74 years of age) was part owner and superintendent of a union mine. After the mine was sold he, as president of the Company, leased a previously mined deep coal mine and began a nonunion operation, removing unmined coal The Company operated three shifts to produce 5000 tons of low-sulfur coal each month under contract with a power plant. Any high -sulfur coal that was produced was sold with difficulty through the Company's broker, West Virginia Coals, which advanced money for the Company's operations . If the 5000 tons of low-sulfur coal was produced before the end of the month, the practice was to close the mine, temporarily laying off all the em- ployees (Tr. 231) The mining proved unprofitable while the coal was being mined in previously tunneled areas of the mine. There was much nonproductive "dead time," largely ne- i All dates are from June 1983 until May 1984 unless otherwise indicat- ed 2 The General Counsel's unopposed motion to correct the transcript, dated July 31, 1984, is granted (except "December the 5th" is changed to the correct date "November the 28th") and received in evidence as'G C Exh 4 274 NLRB No. 11 PITTSBURGH COAL WORKS cessitated by frequent belt movements (extending the conveyor belts across the old tunnels to transport the coal to the surface). In February, however, the Company reached a solid block of coal, estimated to be 8 feet high and covering about 4 acres. Mining in this area would permit mining for longer than a month without a belt movement instead of every 8 or 10 days as before and enabled the Compa- ny to save on labor costs by eliminating the third shift (the nonproductive dead-work and maintenance shift). On February 20 the Company eliminated the four-man third shift. But instead of laying off all four of the junior employees, it laid off only two of them, recalled one of the two the next workday to the second shift, and trans- ferred the other two (the least senior employees in the mine) to the first shift, expanding it from 9 to 11 employ- ees. Then on February 24 the Company took actions that the General Counsel alleges were discriminatorily moti- vated. Although the Company had always before re- tained all the production employees (and closed the mine temporarily if the production goal was reached ahead of schedule), this time it laid off six senior production work- ers from the first and second shifts. One of the six was an antiunion employee whom the Company recalled the fol- lowing week despite his drinking problem. The other five were John Anderson, Williams Evans, Ronald Hill- ing, William Franklin "Frank" Kyer, and James Puccio, the alleged discriminatees who were the outspoken union supporters. The Company has not recalled any of them. Thus there was a net layoff of only two employees from the productive shifts. Although six senior employ- ees were laid off February 24 from the first and second shifts, the antiunion senior employee was recalled, one junior third-shift employee was recalled, and two of the third-shift employees (with the least seniority) were re- tained, The result was that all the known antiunion employees were retained and all five of the most active union orga- nizers were eliminated about 3-1/2 months before a third election could be held. The Company contends in its brief that none of the evidence shows that Williams or any of the supervisors opposed the election of the Union, that the General Counsel has failed to prove any intent to discriminate, and that the layoffs were based solely on economic grounds. B Earlier Threats of Mine Closure There had been two earlier organizing campaigns at the mine. The vote in the first election, held April 23, 1982, was 10 to 3 against union representation. After that election was set aside (following the filing of union ob- jections), the vote in the second election on June 3, 1983, was a 10-to-10 tie. In both of the earlier campaigns, the employees openly discussed their views of the Union in the presence of their supervisors. As background evidence, the General Counsel introduced testimony of the Company's antiun- ion response, describing it in his brief as "two years' worth of unlawful statements which the statute of limita- tions protects from prosecution" but which "add depth 55 and meaning to the unfair labor practices alleged to have been committed within the 10(b) period." As miner operator James Puccio credibly testified, Mine Foreman Bernard King Sr told Puccio before the 1982 election that Assistant Superintendent Mike Khalil had informed King "that if the Union won an election that Perry Williams would shut the mine down" (Tr. 156). (Neither King nor Khalil testified.) During this 1982 union campaign, roof bolter Kyer was "dead set" against the Union and talked with Presi- dent Perry Williams about the election once or twice a week before the start of the shift As Kyer credibly testi- fied, he informed Williams that Puccio and others were trying to get him to sign a union card but that he was not going to (Tr. 93). When Williams "said that he did not understand why the men wanted or needed a union," Kyer "told him that one of the biggest points that they were voting for the union . . was simply because we did not have those nine floating and sick days. That was the sore point with the men." (Tr. 56.) Williams had been informing employees when hiring them that he would follow the Mine Workers contract with BCOA (Bituminous Coal Operators' Association) for wages and benefits, except for nine sick and floating days, paid birthday, clothing allowance, and retirement (Tr 52, 124, 152, 192). After talking with Kyer, Williams granted the employees this additional benefit, giving the employees these 9 "personal days" under the BCOA agreement- but later changed his mind, as discussed later, sparking the third organizational drive that was in progress at the time of the layoffs. By the time of the June 9, 1983 election, employee Kyer had become a strong union supporter and was ac- tively campaigning for the Union. On May 25, 1983, he began keeping notes of management conduct that he considered illegal . Although he answered on cross-exam- ination that he had the notes at the trial, the Company did not ask to see them (Tr 97). (By his demeanor on the stand, Kyer impressed me most favorably as an honest, forthright witness.) On that May 25, as Kyer credibly testified, his helper Joseph Amalett (who was "very vocal in his opposition" to the Union) was present when Second Shift Foreman Robert Darnell Sr. told Kyer that if the mine employees voted for the Union, "Perry would shut it down" (Tr. 60-61) Again on June 6 and twice on June 8, Darnell repeated to Kyer and Amalett that if the mine votes for the Union, "Perry will shut it down." Darnell stated that Perry Williams would either open a new portal at Helen's Run under a new name or open Williams' mine under a new company. (Tr. 62.) Although employee John Anderson could not remember the exact dates, he credibly testified that Darnell repeatedly stated that the mine would not operate as a union mine and that "they'd either put in another portal at Helen's Run or move over and open up a mine at the old Williams' mine" (Tr 128- 129). On June 9, after the election, Foreman Darnell went to the bolt machine and told Kyer and Amalett that it was a tie vote, 10 to 10; that "you're lucky that it tied, or we would all be looking for a job"; that "Perry would 56 have shut the mine down"; and that Mine Foreman Ber- nard King Sr. "was outside and had orders to shut it down now" (Tr. 62). When employee Anderson asked Darnell the results of the election, Darnell said it was a 10-to-10 tie vote, that it probably was a good thing that the Union lost because "the place would not have oper- ated as a union mine," and that Mine Foreman "King was outside with instructions to pull us out and shut the mine down at that time" (Tr. 129). Several days later, as employee Evans credibly testified, King himself told the crew on the first shift that "we had better thank the guys who voted against the union for our jobs" (Tr. 195). On June 13 Foreman Darnell revealed to Kyer that the Company had compiled lists of suspected union sup- porters. As Kyer credibly testified, Darnell said, "I made a list, Bernard made a list, Perry made a list of all the people they thought voted for and against the union. And Perry had those lists." (Tr. 63.) When Darnell men- tioned such a list to employee Anderson, Anderson "told him I didn't care because Mr. Williams already knew I supported the union" (Tr. 132). On August 17 President Perry Williams himself con- firmed the closure threat. As Kyer was leaving the lamp house to go to work, he fell in step with Williams be- tween the main office building and the shop. Kyer credi- bly testified that he told Williams something to the effect that "You know the union will be back next year" and Williams responded, "If they think I won't shut this mine down, they're crazy." (Tr. 64.) The denials and credibil- ity of President Williams and Foreman Darnell are dis- cussed later. Meanwhile employee Puccio, who was the union ob- server at both the elections, was being cautioned about his union activity. Assistant Superintendent Khalil en- tered the mine shortly after the election and told Puccio, "You better not make any mistakes because Perry's just waiting for a chance to fire you" because of all the trou- ble he had caused by "participating in the first NLRB case to overturn the election and have another one." (Tr. 158.) I have considered these closure threats and other state- ments as shedding light "on the true character of matters occurring within the Section 10(b) limitations period." Machinists Lodge 1424 (Bryan Mfg.) v. NLRB, 362 U.S. 411, 416 (1960). C. Alleged Threats of Discharge 1. Renewed organizational campaign After employee Kyer indicated to President Perry Williams his continued interest in the Union (telling Wil- liams August 17, "You know the union will be back next year," as quoted above), union talk at the mine died down for several months. But when Williams began re- stricting the use of the employees' "personal days" (in- forming employee Kyer that he could no longer use them for a scheduled vacation), and withdrew some of the sick and floating holiday benefits, the union organiz- ing resumed. Kyer had worked through the normal vacation period in late June and early July, and had received the vaca- tion pay as provided in the BCOA agreement. On July 11 he scheduled the second week of deer season (No- vember 28 through December 2) for his vacation by list- ing the floating days he wanted off, as he had done the year before. He submitted the list to President Williams' secretary, Martha Boring, who said, "I will see that Perry gets this." (The year before, when Kyer was op- posing the Union, his oral request was granted.) (Tr. 64- 65, 67.) On the first day of his vacation, November 28, Kyer was hunting when Williams' secretary called Kyer's wife and said that "if Frank wants his job, he must come back to work or he'll be fired." Kyer called Williams at home that evening and asked him what was the problem. Wil- liams said, "If you don't want to work, I will get some- one that does." Kyer protested that he was on scheduled vacation, but Williams said he had not approved it. Kyer said he turned it in in July and asked why Williams did not let him know. Williams responded, "Well, I never get to see you because we're on different shifts." Kyer asked why Williams had not written him a note and Wil- liams said, "Well, be that as it may, if you want to work you be there tomorrow." (Tr. 65-66.) In this November 28 conversation, President Williams also said that Kyer could not have his vacation if it ham- pered production. But when Kyer returned and worked the rest of the week, "we did dead work, no production whatsoever." As a result of this new restriction on using these personal days, Kyer missed his 1983 vacation. He was paid for the unused sick and floating days as provid- ed in the BCOA agreement. (Tr. 66.) This incident sparked renewed discussion of the Union, and when Williams on December 31 reduced the number of floating and sick days from nine to three, the new organizational drive was on. Employees Puccio and Evans on the first shift and employees Kyer, Anderson, and Hilling on the second shift were the "outspoken union supporters." (Tr. 67-68, 131, 159.) 2. Williams' "getting ready" for the Union It was in the context of this renewed organizational drive that, as roof bolter Kyer credibly testified, Second- Shift Foreman Darnell made statements that not only threatened the discharge of employees because of their union support but also went further. The statements re- vealed that the Company was already planning the Feb- ruary 24 layoff of union supporters before it eliminated the night shift February 20 and that President Williams was using the layoff as a method of "getting ready" for the Union in any new election. Evidently Foreman Dar- nell did not realize, when talking about the Company's plans, that Kyer was making notes each night after work of what Darnell was saying (Tr. 120-121). On February 17, the Friday before the Company dis- continued the third shift, Foreman Darnell told Kyer that the second shift was going to be laid off completely except for a maintenance shift and that his sons James and Robert ("Butch"), both with mechanical skills, 57 would be retained. On February 20 Darnell told Kyer, "Perry thinks that you are for the union and your name is going to be included in the layoff" (Tr. 70-71). On February 22, in the presence of his helper Joseph Amalett, Kyer told Darnell, "You know that the union is coming back." Darnell stated, "Yes. Perry knows the union's coming back and he 's getting ready for it," ex- plaining that "Perry felt the men were working steady and were getting fat" and if they "were to get hungry they'd be more likely to vote against the union." Darnell stated that "the union men" would be laid off. Kyer asked, "How do you know who you 're going to lay off?" and Darnell answered , "Well, Perry still has the list from the last time" (referring to the list prepared after the second election of suspected union supporters). (Tr. 72-73.) Amalett did not testify. About 4:30 or 5 p .m. on February 24, the day of the layoff, Foreman Darnell revealed that his statements about laying off union supporters were actually threats of discharge because the layoffs would be permanent, except possibly Kyer's layoff. Darnell drew Kyer aside and told him "today is going to be the day ." He said that shuttle car operator Mark Varca (an antiunion employee) was getting laid off because "I've turned him in three times for drinking myself and [highlift operator-outside man James] Cowan turned him in once for drinking along the road." He said "the other guys are going to be laid off because they're union men and they're not going to be hired back," and added that "Mark probably wouldn't be hired back." Then Darnell told Kyer, "You may be hired back if you keep your cool and don't blow up and go talk to Perry . . . . as long as you don't run your mouth about your sick days and your vacation and the union . . . . Because I told Perry that although Joe Amalett was a good man , you could bolt four places while he bolted one." (Tr. 74-75.) 3. The Company's defenses; credibility In its defense, the Company called two witnesses, President Williams and Foreman Darnell, who gave vir- tually complete denials of much of the credited testimo- ny. In fact, Williams even denied discussing his testimo- ny with his own attorney. On cross-examination he testi- fied (Tr. 232) Q. Mr. Williams, did you look at anything in preparation for your testimony here today? A. No, ma'am. Q. Did you discuss your testimony with any- body? A. No, ma'am. Q. Not with anybody? A. Nobody. Q. Did you discuss it with your attorney? A. We never went over anything. Williams denied that there was any problem with Kyer's vacation (Tr. 213). He denied that any supervisor told him that Varca had a drinking problem and denied knowing if Varca had that problem , although he admit- ted hearing about it from one of the men (Tr. 222-223). He denied having any input from any supervisor about whom to lay off (Tr. 22) and denied discussing the im- pending layoff at all with his supervisors (Tr. 228). He denied ever speaking to any employee about the BCOA agreement (Tr. 37-38). Before revealing that he had been a part owner and superintendent of a union coal mining company until 1980, working under the BCOA agree- ment and serving as a company representative on the mine committee handling grievances (Tr. 39-41), he denied ever telling employees when hiring them that he followed the BCOA agreement except for clothing al- lowance, paid birthdays, and sick or floating days, claim- ing he had never seen or read the agreement (Tr. 33-34). When asked if he had a blacklist he denied ever seeing "that list," then denied knowing if there is such a list in existence and denied ever asking his supervisors to make a list of those they thought voted for the Union (Tr. 210). He denied making the statement to any supervisor about workers being fat and getting hungry (Tr. 209- 210). Concerning the February 24 layoffs, Foreman Darnell denied that until quitting time that evening when he opened an envelope from President Williams containing the names, he had any idea who were being laid off; "I didn't even know whether my name was in there or not" (Tr. 246). He denied telling any employee that Williams had said something about some of them getting fat and about going hungry for a while (Tr. 243). He denied pre- paring a list of employees thought to have supported the Union, claiming "I have no way of knowing" (Tr. 245), although he later admitted that the men never hid how they felt about the Union (Tr. 262). He denied knowing that Varca was laid off because of a drinking problem, claiming "This layoff was never discussed with me" (Tr. 259). Concerning the 1983 election, Foreman Darnell denied telling any employee that if the mine went union, Presi- dent Williams was going to shut it down, or that a new portal would open on Helen's Run, claiming that he in- stead said that "If this place ever goes union and the man can't make it, he will have to shut it down" (Tr. 243- 244). He denied telling any employee that if the mine went union the operation would move to the Williams mine and reopen, claiming he had heard the Williams mine would never open (Tr. 246-247). He denied remem- bering if he stated it was lucky that the election ended in a tie "or we'd all be out of a job" (Tr. 245), and denied telling any employee that Mine Foreman King had in- structions to shut the mine down if the Union won an election (Tr. 247). He also denied telling any employee they should thank the men who voted against the Union because it saved their jobs (Tr. 247). By their demeanor when testifying, both President Williams and Foreman Darnell appeared willing to give whatever testimony would help the Company's cause. I discredit the denials as fabrications. 58 4. Finding of threats On the credited evidence that Foreman Darnell in- formed roof bolter Kyer February 20, 22, and 24 that he and other employees were being laid off because of their union support and that Darnell further informed him that all the layoffs except possibly Kyer's were permanent, I find that the Company through this admitted supervisor unlawfully threatened to discharge the employees be- cause of their protected concerted activity in violation of Section 8(a)(1) of the Act. D. Alleged Discriminatory Layoffs 1. Staffing of mine before layoffs Before the February layoffs, there were 9 persons in the salaried and supervising staff, 1 office secretary, and 22 mine employees. The salaried staff were President Perry Williams and his son Evan, James Boring, Joseph Boring, Robert Boring, Robert Darnell Sr., Mike Khalil, Bernard King Sr., and Danny Wood . Williams' secretary was Martha Boring (who was not related to the other Borings). Joseph Boring was the assistant superintendent, Khalil was the head electrician, and the foremen of the three shifts were King, Darnell , and James Boring. There were nine employees each on the productive first and second shifts and four employees on the dead- work and maintenance third shift . They are listed below by their clock number (Tr. 192), showing their seniority at the mine in the order they were hired (except James Darnell, whose clock number is not disclosed in the record). The initials "EMT" indicate the emergency medical technician on the shift , "E" indicates that the employee has the essential skill of electrician, and "Rel" indicates that the employee is related in some way to President Williams, Assistant Superintendent Boring, Foreman Darnell, or Foreman King. The names of the laid-off employees are in all capitals, and the names of the five alleged discriminatees are also italicized. FIRST SHIFT SECOND SHIFT THIRD SHIFT LAID OFF 6 Steve Harrison (Rel) EMT 7 James Cowan 8 Kevin Wood 9 JAMES PUCCIO Feb 24 10 WILLIAM EVANS Feb 24 12 David Wright E 13 J R King Jr (Rel) 14 Joseph Amalett 15 Joseph McDonald 16 MARK VARCA Feb 24 17 FRANK KYER Feb 24 18 JOHN ANDERSON EMT Feb 24 19 RONALD HILLING EMT Feb. 24 20 Dale Eagle E 23 THOMAS GREYNOLDS Feb. 20 24 Mike Waggy (Rel) James Darnell (Rel) 26 Robert Darnell (Rel) 27 Robert Menear 28 ALAN BORING (Rel) EMT Feb 20 31 Allen Lee 33 Paul Van Meter 2. Elimination of third shift It is undisputed that the Company's remining operation was unsuccessful until the large solid block of coal was reached in February. The Company was indebted to its broker, West Virginia Coals, for about $200,000 in unpaid advances (Tr. 26). When this large area of coal was reached, the Company decided that it would be able to save on labor costs by eliminating the entire third shift. There would be much fewer belt movements and therefore less dead work to be performed on the night shift. No one has questioned the necessity of ending the third shift. There is a question, however, why the Com- pany retained junior employees from this unneeded shift and transferred them to another shift, and then 4 days later laid off senior employees from the other shifts. Relying on President Williams' inaccurate testimony (Tr. 29), the Company contends in its brief that it "laid off the entire third shift," but this is not true. On Febru- ary 20 the Company laid off employees Thomas Greyn- olds and Alan Boring, but it transferred employees Allen Lee and Paul Van Meter to the first shift (Tr. 76, 83, 239). These two transferred employees, Lee and Van Meter, had the lowest seniority in the mine. Alan Boring had the next lowest seniority. He was laid off even though he is the son of Assistant Superintendent Joseph Boring. He had a high accident rate (Tr. 260) and missed over 50 workdays in 1983 (Tr. 122). The other third-shift em- ployee laid off, Greynolds, had the next lowest seniority except for relatives on the second shift and one employ- ee, Robert Menear, on the first shift. (Although Menear 59 had earlier solicited for the Union, he was not one of the outstanding union supporters. The Company's claim in its brief that employee William Evans characterized Menear as an "avid union supporter" is apparently based on the first word of Evans' answer to the question, "You say Bob Menear was an avid union supporter on the second go round when the election came up?" The answer was "Yeah, he talked like he might be for the union." (Tr. 200.)) Thus the Company eliminated the third shift, but it re- tained and transferred the two least senior employees in the mine. Having inaccurately contended in its brief that it "laid off the entire third shift," the Company offers no explanation why it retained its two newest employees in- stead of simply laying off the entire low-seniority crew on the unneeded shift. It is of course true that the Company was not bound by the seniority provisions in the BCOA agreement, re- quiring employers to recognize seniority if the employees are qualified. The Company's contention is not true, however, that "There has never been a seniority system, express or implied" at the mine. President Williams had worked under the BCOA agreement many years, he had orally agreed to follow the wages and certain other ben- efits in the agreement, and the Company followed a practice of posting a bid sheet for employees to bid on jobs (Tr. 53, 101, 137, 152). The seniority list (the clock numbers in the order the employees were hired) is posted both in the office window and in the lamp house where the miners pick up their lights (Tr. 192-193). Em- ployee John Anderson bid on the job of shuttle car oper- ator and about a year later, on a job of miner operator helper, and he was granted each of the jobs on the basis of his seniority. Employees Kevin Wood and Dale Eagle bid on the roof bolter helper job, and the job was award- ed to Wood because he was the senior quality bidder. (I discredit Williams' claim that "Not that I know of' does the Company have any seniority policy (Tr. 27), and that "I don't think we ever did I don't remember of it" when asked if employees are permitted to bid on jobs (Tr. 34).) Because of the Company's practice of temporarily clos- ing down the mine from time to time, retaining all the employees, the question of recognizing seniority in a par- tial layoff had never arisen. The question is not whether the Company had the right to ignore seniority in layoffs, although it recog- nized seniority in job bidding. It was not bound by the BCOA agreement and it clearly had the right to ignore the seniority provisions in that agreement. The question instead is whether it decided to retain its newest employ- ees from the third shift as part of a maneuver to discrimi- nate against union supporters when it laid off senior em- ployees 4 days later. 3. Layoff of senior employees a. Temporary closing of second-shift production Before the February 24 layoff of six senior employees, the Company had operated both the first and second shifts (each with a nine-man crew) to produce the 5000 tons of low-sulfur coal for the power plant. Normally production on the second shift was as much as 20 to 25 percent higher than on the first shift (Tr. 55) because Second-Shift Foreman Darnell "would produce coal at all costs," leaving more of the dead work for the night and morning shifts to perform (Tr. 174). (Although Dar- nell denied telling the second-shift employees to leave the dead work and get the production done first (Tr. 250), he finally admitted that he preferred to have them mine coal than to do dead work (Tr. 252).) As discussed above, on February 17 Foreman Darnell revealed to roof bolter Kyer that the second shift was going to be laid off completely except for a maintenance shift. On February 24 Darnell revealed that the Compa- ny intended to resume second-shift production by in- forming Kyer, "You may be hired back . . . . as long as you don't run your mouth about . . . the union" because Darnell had informed President Williams that Kyer "could bolt four places" while Amalett (the antiunion roof bolter helper who was not being laid off) "bolted one 11 The temporary closing of the second-shift production did occur. At quitting time on February 24 the Company laid off four second-shift employees (antiunion employee Mark Varca and outstanding union supporters Kyer, John Anderson, and Ronald Hilling) and transferred one employee (Joseph McDonald) to the first shift, retaining only outside man James Cowan, antiunion employee Amalett, and James and Robert Darnell (Foreman Dar- nell's sons) on the second shift. The only employees laid off from the first shift were the two outstanding union supporters, miner operator James Puccio (the union ob- server at both elections) and William Evans, his helper. When President Williams gave Puccio his layoff slip at quitting time, as Puccio credibly testified, "I asked Mr. Williams why I was being laid off and persons with less seniority were not. His reply was that they had to cut back and that was the way it was supposed to be." (Tr. 170-171.) The next week the Company recalled two employees, enabling it to resume some production on the second shift. It first recalled an emergency medical technician, who must be present on each shift. It had laid off the only EMT on the second shift, shuttle car operator Hill- ing. But instead of recalling union supporter Hilling to have both an EMT and a shuttle car operator on duty for resuming production, and instead of recalling union supporter Kyer, who was not only its highest producing roof bolter but also a versatile employee on other jobs in the mine (Tr. 81), it recalled two others. One was shuttle car operator Mark Varca, the antiunion employee with the drinking problem. (As discussed above, Darnell told Kyer before the February 24 layoff that Varca was being laid off because "I've turned him in three times for drinking myself' and that "Mark probably wouldn't be hired back.") The other one recalled was the junior em- ployee Alan Boring, the third-shift general inside laborer and roof bolter (Tr. 81) who had been laid off February 20 from the third shift after he had missed over 50 work- days the year before. Production of coal was resumed on the second shift when needed (Tr. 231). 60 Thus, when temporarily closing down production on the second shift, the Company eliminated all five of the outstanding union supporters from the mine . It retained three of the four junior employees on the unneeded third shift (transferring the two newest employees to the first shift and recalling the next junior employee to the second shift) and recalled the one laid -off antiunion em- ployee despite his drinking problem. b. Neither seniority nor ability followed Miner operator Puccio and miner operator helper Evans were fourth and fifth on the posted seniority list. Both were laid off from the first shift despite their high seniority and their wide expenence in performing other jobs in the mine (Tr. 189, 193-194). The other three laid-off union supporters, Kyer, An- derson, and Hilling, were 11th through 13th on the se- niority list, with higher seniority than eight or nine other employees (depending on when James Darnell was hired). One of these junior employees, Greynolds, was laid off February 20 and was not recalled. Dale Eagle had an essential skill of electrician , and Mike Waggy and Robert Darnell, as well as James Darnell , were relatives. The remaining four were the least senior employees in the mine, Robert Menear and the three employees from the discontinued third shift, Alan Boring, Allen Lee, and Paul Van Meter. All four were retained, despite the higher seniority of Kyer and Anderson, who had wide experience in performing other jobs in the mine (Tr. 81, 125), and Hilling, who was both an EMT and a shuttle car operator, a required job when production was re- sumed on the second shift. It is therefore clear that although the Company fol- lowed the seniority provisions in the BCOA agreement for job bidding, it did not follow seniority February 24 when it laid off the five leading union organizers. The evidence is also clear that even if seniority had been completely ignored, at least three of the five union sup- porters, Kyer, Hilling, and Puccio, would have been re- tained. It is undisputed, as Kyer credibly testified, that Fore- man Darnell told him that he was "the best bolt man" Darnell ever had (Tr. 82). And as found above, Darnell revealed to Kyer on the day of the layoffs that Darnell had advised President Williams that Kyer could operate the roof bolter four times as fast as the more senior (an- tiunion) employee Joseph Amalett, whom the Company was retaining to do the bolting. I find that if the Compa- ny had been primarily concerned with higher produc- tion, it would have retained Kyer because of his greater ability Shuttle car operator Hilling was the only EMT on the second shift, and a shuttle car operator was required for second-shift production. Yet the Company on February 24 laid off both Hilling and the antiunion employee Varca, the more senior shuttle car operator who was not an EMT, and recalled Varca the next week despite this drinking problem. The third employee who was laid off despite his supe- rior ability was first-shift miner operator Puccio. He was not only one of the five outstanding union supporters at the time of the layoffs, but he had been the union observ- er at both the elections. It is undisputed that after the second election, Assistant Superintendent (now Head Electrician) Khalil warned him that he had better not make any mistakes as President Williams was "just wait- ing for a chance to fire you" because of Puccio 's role in having the first election set aside and a second election held, as discussed above. Puccio was one of the most experienced employees on the job. Since his employment in February 1981, soon after the mine opened, he had worked on every job (except certified electrician) at the mine site, including the jobs of roof bolter , outside man, shuttle car operator, beltman, mechanic, and welder (Tr. 152, 189). He was the regular operator of the continuous mining machine on the first shift, and President Williams at one point conceded having no problems with him "insofar as the way he ran a shift, or did his job" (Tr. 217), with one purported exception discussed later. As Puccio credibly testified, he had never received any warnings about his work, or about his attitude or attendance , or concerning any other aspect of his employment (Tr. 154 - 155, 173, 182). Yet, President Williams summarily laid Puccio off without explanation. Williams replaced him with former miner operator McDonald, who had previously worked for Williams in a union mine , for a total of about 14 years. Although McDonald had remarked that he wanted to see the Union come back because he had about 4 years to go for retirement, he was not an active union organizer. (Tr. 58-59.) McDonald had been ill and absent from work. Since his return to the second shift, he had been working as a miner operator helper, although still rated as an operator. (Tr. 58, 221-222.) Foreman Darnell admitted at one point that McDonald "very seldom" ran the miner (Tr. 255). After giving this positive, unequivocal testimony, Darnell appeared eager to change his testimony to sup- port the Company's cause and claimed that McDonald ran the miner about half the time. I discredit this change in testimony and find, in accordance with other evi- dence, that Foreman Darnell's son Robert was the regu- lar miner operator on the second shift and that McDon- ald and Darnell 's son James merely substituted on the miner from time to time (Tr. 24-25, 54, 58, 71, 173). Thus, despite union observer Puccio's ability, wide ex- perience, and satisfactory work on the continuous mining machine, the Company replaced him with a former miner operator who was no longer operating the mining machine regularly because of his health but who was less ardent in his union support. c. The Company's defenses 1. The Company contends in its brief that the layoffs were not permanent and that they were "only temporary layoffs brought about by poor economic conditions." There is much evidence to the contrary. As found, Second-Shift Foreman Darnell told roof bolter Kyer toward the beginning of the shift on the day 61 of the February 24 layoffs that union men were being laid off and, except possibly Kyer, "they're not going to be hired back." By the time of trial, about 3-1/2 months later, none of the union supporters had been recalled de- spite the need for additional employees on the second shift. The layoff of three union supporters (Kyer, Anderson, and Hilling) and one antiunion employee (Varca) from the second shift left the shift without enough workers to produce any coal and without an employee certified as an EMT. If the Company had recalled Hilling (who was both a shuttle car operator and an EMT) and Kyer (who was the highest producing roof bolter and a versatile em- ployee in performing many jobs in the mine), the need for additional employees would have been filled without recalling unsatisfactory or less qualified employees. In- stead, the Company recalled the laid-off shuttle car oper- ator Varca, who had the drinking problem and who was not an EMT, after first recalling as an EMT employee Alan Boring, who had been laid off earlier from the third shift following his excessive absenteeism. Even when Foreman Darnell continued to have a problem with Varca's drinking after his recall (Tr. 259), the Com- pany still retained him on the job instead of recalling Hilling. In an effort to explain why the Company would recall Alan Boring, the Company's brief inaccurately states that "Mr. Williams testified that he chose to call back Mr. Boring based on Mr. Boring's EMT qualification and overall experience with each and every job associated with a deep mine." (Emphasis added.) Williams did not testify that he chose Boring for recall because of Boring's "overall experience with each and every job associated with a deep mine." (Alan Boring was a general inside la- borer on the midnight shift and he had done some roof bolting.) Williams merely testified what Boring did when recalled and assigned to the second shift (Tr. 16). A. Well, if they have to bolt any he does that, or whatever there is to do. Q. Well, maybe I should ask: Is there any job that he doesn't do? A. Well, you'd have to ask his foreman about that because they clean up and have everything ready for the next day. Alan Boring clearly was not the highly qualified, high- producing employee that Kyer was. Again on April 30 the Company demonstrated that it considered the laid-off union supporters to be permanent- ly laid off. Instead of recalling Puccio, who was fully qualified to replace outside man James Cowan when he quit, it hired a new employee Frederick Boring (who was not related to President Williams or any of his su- pervisory staff). 2. Relying on President Williams' inaccurate testimo- ny, the Company contends in its brief that because less cleanup and maintenance was necessary after the solid block of coal was reached, the Company (on February 20) "laid off the entire third shift." To the contrary, as found above, it laid off only two of the four employees (recalling one of the two to the second shift). Having relied on the inaccurate testimony, the Company offers no explanation why it transferred the other two third shift-employees (the newest employees in the mine) to the first shift, increasing the crew from 9 to 11 employ- ees I also note that, without explanation, the first shift remained overstaffed following the February 24 layoffs. After laying off union supporters Puccio and Evans and transferring in McDonald, the Company retained 10 em- ployees on the first shift (Harrison, Wood, Wright, King, McDonald, Eagle, Waggy, Menear, Lee, and Van Meter), one more than the 9 employed before the reduc- tion in the amount of dead work, cleanup, and mainte- nance work. 3. The Company contends that the first and second shifts "were realigned to create the most cost efficient crews." To the contrary, it is clear that when the Com- pany laid off the five union supporters and the one an- tiunion employee February 24, it was closing down pro- duction completely on the second shift, converting it into a maintenance shift (as Foreman Darnell told em- ployee Kyer February 17 that the Company planned to do). It was not until the Company had the union sup- porters off the payroll that the Company restored some productive capacity on the second shift by recalling the antiunion employee with the drinking problem and the laid-off third-shift employee who had the high accident rate and an absentee record of over 50 workdays the year before. Still the shift was understaffed for full pro- duction, having only six employees in the crew (Cowan, Amalett, Varca, James Darnell, Robert Darnell, and Alan Boring), three :ewer than before. 4. The Company contends that the layoff of antiunion employee Varca and the retention of union supporters Kevin Wood, McDonald, and Menear show that the layoff of the five alleged discriminatees ( the outstanding union supporters) was not discriminatory. In making this contention the Company ignores the fact that Varca was recalled after a few days, that Wood was the third most senior employee, and that McDonald and Menear were not leading union organizers at the time. 5. The Company contends that because of President Williams' "past experience with Mr. McDonald" and the higher production on the second shift, Williams decided to move McDonald to the first shift and "By doing this, he was forced to lay off Mr. James Puccio," the first- shift miner operator. This contention clearly has no merit . Because of poor health, McDonald was no longer the regular miner operator on the second shift and he very seldom ran the miner. Moreover, it was the shift foreman, not McDonald, who was responsible for the higher production on the second shift. Foreman Darnell "would produce coal at all costs," leaving more of the dead work for the night and morning shifts to perform. Although not mentioned in the Company's brief, Presi- dent Williams at one point conceded having no problems with Puccio as the first-shift miner operator "insofar as the way he ran a shift, or did his job," testifying, "Not anymore than advancing beyond roof control bolts" (Tr. 216-217). Williams claimed that sometime in the past, "I don't remember the date" (Tr. 217), Foreman King told 62 him that Puccio advanced with the miner beyond the roof bolts once or twice (Tr. 228). But Williams had never mentioned this to Puccio, and nobody suggested that Puccio should be laid off for it. Puccio credibly denied being personally warned about cutting beyond the bolts. He was aware, however, that cutting beyond the bolts had occasionally happened on the second shift when the regular miner operator Robert Darnell, or sometime McDonald or James Darnell, operated the mining machine (Tr. 172- 173). Roof bolter Kyer credi- bly testified that he had seen the two Darnells and McDonald cutting beyond the bolts without being disci- plined, as when cleaning out 3 or 4 feet of "gob" (non- coal matter) to get back into the coal (Tr. 118-120). Al though Kyer worked on the shift following Puccio's shift, he had never seen Puccio take the miner beyond the bolted area (Tr. 102). In any event, Williams did not mention cutting beyond the bolts when he summarily laid Puccio off. I find that this was raised later as an afterthought. Having found above that Puccio had superior ability to operate the continuous mining machine , that he was not only one of the five outstanding union supporters but also the union observer at both the elections, that one of the supervisors had warned him that President Williams was "just waiting for a chance to fire" him for his part in getting the first election set aside , and that the Company replaced him with a former miner operator who was no longer operating the mining machine regularly because of his health but who was less ardent in his union sup- port, I find that the purported reasons for laying Puccio off were pretextual. 6. In developing its economic defense , the Company in its brief argues that it "was necessary to produce even larger quantities of coal" to reduce the cost per ton of coal, and that the statistics regarding production "con- firmed the wisdom of Mr. Williams' decisions" in laying off the employees and realigning the shifts. The Compa- ny argues that "First of all , the first shift is now produc- ing as much, if not more, than the second shift and both shifts have now increased their level of production. A comparison of the total monthly tonnage figures revealed that a good month in 1983 was 5000 tons . For the month of May 1984 alone," the Company "produced approxi- mately 8500 tons." These arguments are at least misleading. The reason "a good month in 1983 was 5000 tons" was that the Company made the practice of temporarily clos- ing the plant after the 5000 tons of low -sulfur coal was produced for the Riversville Power Plant. As President Williams admitted on cross-examination (Tr. 231), Q. Now, in the past, say in 1983, didn't you, after you had mined your five thousand tons to supply the power plant, shut down for a couple of days at the end of the month? A. We did, no place for it to go. When asked "do you mine coal beyond the orders you have for coal in a particular month?" Williams answered, "Not unless it's high sulfur. If it is, we have to get out of it before we can start back to Riversville." (Tr. 230.) (Earlier he had testified that the high -sulfur coal is sold through his broker West Virginia Coals, that it is harder to sell, and that "I've had it to lay up there for two or three weeks at a time , couldn't move it" (Tr. 36-37).) Thus, both before and after the February layoffs, the Company produced 5000 tons of low-sulfur coal for the power plant. It does not mine coal beyond that amount unless it has other orders or unless it strikes high-sulfur coal. When questioned by company counsel on direct exam- ination, President Williams testified that production had increased, but he did not reveal whether the increase was low- or high-sulfur coal (Tr. 211, 218). Q. When you made the change with the layoffs in February of '84 and the restructuring of the work shifts, did you increase your production? A. We did. Q. How much? A. Last month we-month of May we run eighty-five hundred tons. Q. Okay. And what was an average tonnage, say in '83? A. Couldn't have been more than five thousand tons. On cross-examination he implied that the extra produc- tion of 3500 tons of coal in May was high-sulfur coal, and not coal produced under contract, because he testi- fied that "we was just lucky that we got rid of this coal in the month of May. Now, this month [June] I think that five thousand tons is all we're going to be able to get rid of." (Tr. 230-231.) In any event, before the February 24 layoff when each of the first and second shifts was staffed with nine em- ployees and when the Company was mining in previous- ly tunneled areas (with much dead time caused by fre- quent belt movements), the Company always covered the monthly requirement of 5000 tons of low-sulfur coal for the power plant (Tr. 230), mined whatever high- sulfur coal they found to get it out of the way, and sometimes had to shut down the mine at the end of the month for lack of orders. Undoubtedly if the Company had been able to obtain additional orders when it reached the large area of solid coal in February, the pro- duction could have been increased with the two produc- tive crews, each fully staffed with the experienced, senior employees, working without the excessive dead time caused by the frequent belt movements. Moreover, it is obvious that on February 24 President Williams reduced the productive capacity of the mine rather than increased it. He temporarily stopped produc- tion on the second shift by laying off and transferring five of the nine employees, leaving only one outside man and three employees to work in the mine. He laid off from the two shifts five senior employees (the leading union supporters), including the highly qualified miner 63 operator Puccio from the first shift and the highly pro- ductive roof bolter Kyer from the second shift. He re- placed Puccio with miner operator helper McDonald from the second shift, although McDonald had been unable because of ill health to work regularly in his former position of miner operator. He failed to recall Kyer and union supporter Hilling when they were needed to resume production on the second shift. He re- called instead general inside laborer Alan Boring, a less qualified employee whom he had laid off February 20 from the third shift following an absentee record of over 50 workdays the year before, and also the antiunion shut- tle car operator Varca, whom he had laid off because of a drinking problem . After all the realigning was finished, Williams had increased the crew on the first shift from 9 to 10 employees, had decreased the crew on the second shift from 9 to 6 employees (presumably leaving it under- staffed for full production), had replaced 3 of the 5 laid- off senior union supporters with the least senior employ- ees from the discontinued third shift, had retained the next junior employee Menear on the overstaffed first shift, and had retained on the second-shift employees Amalett and Varca, who were either less productive or less satisfactory than Kyer and Hilling. In arguing that Williams ' decisions were wise because "First of all, the first shift is now producing as much, if not more, than the second shift," the Company ignores not only the fact that the number of employees was in- creased to 10 on the first shift and reduced to 6 on the second shift, but also Williams' admission that although the two shifts are running, the second shift does not run all the time, "They do repair work and stuff like that" (Tr. 231). I am not persuaded by these misleading arguments that the layoff of the union supporters and the realigning of the productive shifts were "due to business and econom- ic changes" as the Company contends in its brief. To the contrary, I find that the February 24 layoff of the union supporters was not designed to get more coal per man as Williams claimed. 7. At the trial, President Williams claimed that he was able to conclude who was to be laid off and who was not because "I just knew the men, which ones I needed and which ones I didn't," that "all we could go by is production," and "I pick the ones that produce the most coal" to keep on the job (Tr. 22, 217-218). He did not reveal how he obtained this information about the individual employees. He is not in the mine much to observe the men working (Tr. 227). "If every- thing's okay" he goes home at noon, and he is not at the mine "too often" at the 3 p.m. starting time for the second shift (Tr. 225). He claimed he could tell who was productive by reading the production reports in the morning, but they showed production for the whole shift, not how well individual employees were working. He claimed, however, that "when they run any produc- tion in any amount, why, everybody's got to be working. One man can't lay down." (Tr. 228-229.) He also made the discredited claims that he had no input from any su- pervisor about whom to lay off and that he did not dis- cuss the impending layoff at all with his supervisors. As justification for transferring miner operator McDonald from the second to the first shift and laying off miner operator Puccio and miner operator helper Evans, President Williams appeared to imply (in agree- ment with his counsel) that employee McDonald was re- sponsible for the higher production on the second shift. He testified, in answer to questions by the company counsel on direct examination (Tr. 213), Q. . . . Can you tell us whether or not McDon- ald's shift was more productive than Puccio's shift? A. It . . . was. And they turned in the shuttle cars they loaded and they're rated at five tons and a half per car. Q. Okay. Was the second shift with Mr. McDon- ald as an operator substantially better than Mr. Puc- cio's shift? A. Oh, yes. [Emphasis added.] Despite the wording of the questions, McDonald was not a miner operator responsible for production on the second shift. In the first place, Foreman Darnell was re- sponsible for the higher production, because he extended the production time by leaving more of the dead work for the night and morning shifts to perform (Tr. 174). In the second place, McDonald would not have been re- sponsible for the higher production anyway because he was working as a miner operator helper and very seldom ran the continuous mining machine. Williams offered no explanation for not picking Kyer, Anderson, and Hilling-all of whom worked on the higher producing second shift-as "ones that produce the most coal" to keep on the job. He knew that roof bolter Kyer was a top producer because, as Foreman Darnell informed Kyer just before his February 24 layoff, Darnell had told Williams that Kyer "could bolt four places" to one over roof bolter helper Amalett, the antiunion employee whom Williams retained when laying off Kyer. After weighing all the evidence and considering the absence of any plausible explanation for not picking the five union supporters as "ones that produce the most coal" to justify their retention on the job, I reject the Company's contention that they were laid off "to de- crease the cost per ton of coal." I discredit President Williams' claim that he just knew he did not need these men because "all we could go by is production." (As found above, he appeared willing to give whatever testi- mony would help the Company's cause.) The Company's brief does not assert any other reasons for the Company's laying off the union supporters. It contends that after the Company "allowed the floating and sick days, it was found that the men took advantage of the benefit it had awarded." The brief gives as exam- ples Anderson's admission that he had exceeded the number of sick and personal days allowed (Anderson tes- tifying (Tr. 134-135) that he had the flu and was off 1 day more than the 9 days allowed), that Hilling "had used up all nine of his sick and floating days" (as he was 64 entitled to do), and that Kyer attempted "to use a combi- nation of his vacation and floating days to go hunting without approval by Mr. Williams" (and was paid for the unused personal days, as discussed above). The brief cites these examples to justify the Company's reduction of the number of floating and sick days from nine to three, not to justify laying off the union supporters. 8. Finally the Company contends that "It was nearly eight and one-half months after the second union election and the date of the allegedly discriminatory layoffs," that "the NLRB has consistently held that the timing .. . re- mains one of the singularly most important elements of circumstantial proof in an unfair labor charge," and that this 8-1/2-month time lapse "is clearly too long to sup- port" the alleged violations. The Company further argues in its brief, "We shudder to consider the vocaliza- tion that would emanate from the claimants had these economic layoffs followed closely on the heels of an election defeat or shortly preceding the eligibility period for a new one." In making these arguments, the Company completely ignores the fact that the renewed union organizational effort began nearly 2 months earlier, the fact that the layoffs occurred about 3-1/2-months before a new elec- tion could be held, and the credited testimony that on February 22, 2 days before the layoffs, roof bolter Kyer told Foreman Darnell, "You know that the union is coming back," and Darnell responded that President Wi- liams "knows the union's coming back and he's getting ready for it." d. Concluding findings In two earlier union organizing campaigns at this pre- viously mined deep coal mine, the Company repeatedly threatened to close the mine if the employees voted for the Union. After the second election, in which there was a tie vote, the Company prepared lists of employees sus- pected of supporting the Union. The third organizational campaign began around the end of 1983. In February, when a large solid block of coal was reached, enabling the Company to discontinue the third shift, Second-Shift Foreman Darnell revealed to roof bolter Kyer that President Williams was "getting ready" for the Union in the campaign. Not realizing that Kyer was making notes each night after work of what Darnell was saying about the company plans, Darnell re- vealed that Williams was going further than eliminating the unneeded third shift (an action that is not alleged to be unlawful). Williams was also planning to lay off union supporters permanently, using his list of suspected union supporters. Darnell also revealed how Williams planned to carry out the layoffs, by temporarily reducing the higher producing second shift to a maintenance shift with a skeleton crew. In carrying out these plans, President Williams first eliminated the third (midnight) shift February 20. But in- stead of laying off the four low-seniority employees, it transferred the two newest employees to the first shift, increasing the crew from 9 to 11 employees. On Febru- ary 24 Williams reduced the number of employees on the second shift from nine to four, temporarily ending its productive capacity. He did this by transferring one em- ployee to the first shift and by laying off four senior em- ployees One of the four was an antiunion employee whom Williams recalled the following week despite the employee's continuing drinking problem. Earlier Wil- liams recalled one of the two laid-off third-shift employ- ees despite that employee's low seniority and high absen- teeism (over 50 workdays in the last year). These two re- called employees enabled the Company to resume some production on the second shift (with six employees in- stead of a full crew of nine employees). The other three employees laid off from the second shift, and the two laid off that day from the first shift, were the five outstanding union supporters in the mine. Williams did not recall any of them. On April 30, when one of the second-shift employees quit, Williams hired a new employee instead of recalling the fully qualified union supporter who had been the union observer at both the elections. When laying off the five union supporters, President Williams followed neither seniority (as he did for job bidding) nor ability and qualifications. Previously the Company had always retained all the employees and closed the mine temporarily if the production goal was reached ahead of schedule. One result of the layoffs, transfers, and recalls was that all the known antiunion employees were retained and all five of the most active union organizers were eliminated about 3-1/2 months before a third election could be held (preventing an election as planned). Another result was that senior employees were permanently laid off and em- ployees who had lower seniority or were less qualified or less satisfactory were retained. The third result was an imbalance in the staffing of the mine. Before the laycffs and realignment of the shifts, two productive crews of nine employees each on the first and second shifts had succeeded in always covering the monthly requirement of 5000 tons of low-sulfur coal for the power plant cus- tomer. After the changes were made, the first shift was overstaffed with 10 instead of 9 employees (including the 2 newest employees from the third shift), and the second shift was understaffed with only 6 instead of 9 employees (including the employees with the drinking and absentee- ism problems). This imbalance in the staffing, and the re- placement of more qualified and experienced senior em- ployees with less qualified or less satisfactory employees, undoubtedly reduced the efficiency of the two crews in increasing production after the solid block of coal was reached. I find that the evidence is overwhelming that Presi- dent Williams was discriminatorily motivated when he laid off the five outstanding union supporters February 24. His conduct in retaining three of the four junior em- ployees from the unneeded third shift and realigning the first and second shifts was clearly a maneuver to effectu- ate the plans previously reported by Foreman Darnell to roof bolter Kyer that Williams was "getting ready" for the Union in the election campaign by permanently laying off union supporters. 65 Having overruled the Company's economic and other defenses, I find that in the absence of a discriminatory motivation Williams would not have laid off any employ- ees from the first and second shfits (except possibly the antiunion employee with the drinking problem), and that if any of the productive employees had been laid off for economic reasons, none of the five senior union support- ers would have been included in the layoff. I therefore find that by laying off the five union sup- porters, the Company violated Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. By discriminatorily laying off John Anderson, Wil- liam Evans, Ronald Hilling, Frank Kyer, and James Puccio February 24, 1984, because of their support of the Union, the Company engaged in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. 2. By threatening to discharge employees because of their protected concerted activity, the Company violated Section 8(a)(1). REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent, having discriminatorily laid off five employees, must offer them reinstatement and make them whole for any loss of earnings and other benefits, com- puted on a quarterly basis from date of layoff to date of proper offer of reinstatement, less any net interim earn- ings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in Florida Steel Corp., 231 NLRB 651 (1977). Because of the Respondent's egre- gious misconduct, demonstrating a general disregard for the employees' fundamental rights, I find it necessary to issue a broad order, requiring the Respondent to cease and desist from infringing in any other manner on rights guaranteed employees by Section 7 of the Act. Hickmott Foods, 242 NLRB 1357 (1979). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 ORDER The Respondent, Pittsburgh Coal Works, Monongah, West Virginia, its officers, agents, successors, and as- signs, shall 1. Cease and desist from 2 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. (a) Laying off or otherwise discriminating against any employee for supporting United Mine Workers of Amer- ica, District 31, or any other union. (b) Threatening to discharge any employee for sup- porting a union. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 1 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer John Anderson, William Evans, Ronald Hill- ing, Frank Kyer, and James Puccio 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 any other rights or privi- leges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the unlawful layoffs and notify the employees in writing that this has been done and that the layoffs will not be used against them in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its facility near Monongah, West Virginia, copies of the attached notice marked "Appendix."3 Copies of the notice, on forms provided by the Regional Director for Region 6, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dis- missed insofar as it alleges violations of the Act not spe- cifically found. 3 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board." 66 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the NationalLabor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT lay off or otherwise discriminate against any of you for supporting United Mine Workers of America, District 31, or any other union. WE WILL NOT threaten to discharge any employee for supporting a union. WE WILL NOT in any other manner interfere with, re- strain, or coerce you in the exercise of the rights guaran- teed you by Section 7 of the Act. WE WILL offer John Anderson, William Evans, Ronald Hilling, Frank Kyer, and James Puccio immedi- ate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earn- ings, plus interest. WE WILL notify each of them that we have removed from our files any reference to his layoff and that the layoff will not be used against him in any way. PITTSBURGH COAL WORKS 67 THIS PAGE LEFT BLANK INTENTIONALLY.