Genwal Coal Co., Inc.

528 DECISIONS OF NATIONAL•LABOR RELATIONS BOARD Genwal Coal Co., Inc. and United -Mine - Workers of DECISION America. Cases 27-CA-8753 and 27-CA-8814 24 May 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS - On 29 November 1984 Administrative Law Judge Roger B. Holmes issued the attached deci- sion: The Respondent filed" exceptions and a sup- porting brief, and the General Counsel filed an an- swering brief. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions2 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, Genwal Coal Co., Inc., Huntington, Utah, its officers, agents, successors, and assigns, shall take the action set forth in the Order. I 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 2 In adopting the judge's conclusion that the Respondent violated Sec 8(a)(1) and (3) of the Act by refusing to recall from layoff employees Thomas, Oveson, and Shoemaker, we note that, after the refusal to recall, Thomas admitted to Supervisor Greenan that the employees may have been slowing down and employee Tuttle told Superintendent Mitchell that the employees had stopped making an "extra effort" in their work Nonetheless, we find that the performance of the discriminatees was not the true reason for the refusal to recall Rather, as the judge concluded, the union activities of Thomas, Oveson, and Shoemaker motivated the Respondent's actions In this regard, we note the credited testimony that Mitchell admitted that these employees would not be recalled because of their union activities and that they were good employees Furthermore, the Respondent did recall Fillmore, the only employee to admit to sen- ous misconduct, on the express condition that he cease his union activi- ties Thus, we agree with the judge that the Respondent's asserted rea- sons for refusing to recall Thomas, Oveson, and Shoemaker were pretex- tual See Wright Line, 251 NLRB 1083, 1083-84 (1980), enfd 662 F 2d 899 (1st Cir 1981). cert denied 455 U S 989 (1982) In adopting the judge's conclusion that the Respondent violated Sec 8(a)(1) of the Act by threatening that it probably would have to close the mine if the Union came in, we do not rely on the Board's initial decision in National Apartment Leasing, 263 NLRB 15 (1982), enf denied in perti- nent part 726 F 2d 967 (3d Cir 1984), supp decision on remand 272 NLRB 1097 (1984) See for support for the result reached here Country Skillet Poultry Co, 271 NLRB 847, 850 (1984) STATEMENT OF THE CASE ROGER B. HOLMES, Administrative Law Judge. The unfair labor practice charge in Case 27-CA-8753 was filed on April 6, 1984, by Ur_ited - Mine- Workers of America (the Union.or the Charging Party). The Gener- al Counsel of the National Labor Relations Board issued on May 22, 1984, a complaint in -Case 27-CA-8753 against Genwal Coal Co., Inc .(the Employer or the Re- spondent). The unfair labor practice charge in Case 27-CA-8814 was filed on June 1, 1984,. by the Union. The General Counsel of the -Board issued on June 28, 1984, an • order consolidating cases, consolidated complaint and notice of hearing in Cases 27-CA-:--8753 and. 27-CA-8814 against the Employer. In summary, the General' Counsel's consolidated com- plaint contains four allegations which are- alleged to be independently violative of Section 8(a)(1) of. the Act. Those allegations raise factual and legal issues as to whether Mining Foreman Michael Greenan verbally warned an employee, threatened an employee, and inter- rogated an employee in violation of Section 8(a)(1) of the Act, and whether Superintendent Harold Mitchell made two threats to an employee and created the impression of surveillance of employees' union activities in violation of Section 8(a)(1) of the Act. The General Counsel's con- solidated complaint also alleges that since about March 21, 1984, the Respondent has refused to recall to employ- ment Ted R. Thomas, Jerry L. Oveson, and Don Shoe- maker because of their union membership and union ac- tivities and/or because of their protected concerted ac- tivities, and thereby violated Section 8(a)(1) and (3) of the Act In answers filed to the General Counsel's complaints, the Respondent denied the commission of the alleged unfair labor practices The Respondent also raised an af- firmative defense with regard to not rehiring Oveson and Thomas on the grounds that they had engaged in work- related conduct, which was detrimental to the interest of the employer and in violation of the Employer's policies, and which the Respondent alleges would warrant not only their termination, but also would justify a failure to rehire them. - The trial in this proceeding was held on August 7 and 8, 1984, at Price, Utah.' Shortly after the close of the i It appears that the court reporter inadvertently misnumbered certain pages of the transcript In Jerry L Oveson's testimony, Tr 275 follows immediately after Tr 264 Yet, from the context of the questions and an- swers on those pages, the error lies in omitting page numbers, rather than in omitting testimony Another type of error appears at Tr 78 Michael Greenan, who was the witness on the stand at the time, asked me if he could explain his answer to the pending question I permitted him to do so rather than be limited to merely a "yes" or "no" answer However, the transcript begin- ning at Tr 23 on p 78 through L 14 on Tr 79 attributes Greenan's ex- planation to me It should be clear from the context that the answer to the question came from Greenan, and not from me At Tr 226, LL 8 through 23, it appears from the context that the court reporter also is in error in attributing at that point the legal argu- ment regarding the pending objection to the Counsel for the General Continued 275 NLRB No. 77 GENWAL COAL 'CO trial proceedings, the Respondent filed a motion to reopen case. I issued an order to show cause why the Respondent's motion should not be granted. The General Counsel filed an opposition to the Respondent's motion, and then the Respondent filed a reply thereto. On Sep- tember 12, 1984, I issued a ruling on the. Respondent's motion to reopen case, wherein the Respondent's motion was denied. Under Section 102 26 of the Board's Rules and Regulations, those documents have become a part of the record in this proceeding and, therefore, it is not nec- essary to reiterate those matters here. The time for the filing of posttrial briefs was extended to September 26, 1984. Both the General Counsel and, the attorney for the Respondent have, filed posttrial briefs. FINDINGS OF FACT I. JURISDICTION The jurisdiction of the Board to hear and determine the issues in this proceeding is not in question. The Gen- eral ,Counsel's consolidated, complaint alleges, and the Respondent's answer admits, that the Employer has been,- at all times material herein a corporation duly organized under and existing by virtue of the laws of the State of Virginia, and that the Employer maintains its principal office and place of business at Orangeville, Utah. The pleadings further. reveal that the Employer has. been en- gaged at all times material herein in the mining and-the_ sale of coal at its mine near Orangeville, Utah. In the course and conduct of its business operations, the, Re- spondent annually purchases and receives goods and ma- terials valued in excess of $50,000 directly from points and places outside the State of Utah. It is further admit- ted in the pleadings that the Respondent, at all times ma- terial herein, has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION The status of the Charging Party as being a labor or- ganization within the meaning of the Act also is not an issue in this proceeding . The General Counsel 's consoli- dated complaint alleges, and the Respondent 's answer admits, that the Union , -at all times material herein, has been a labor organization within the meaning of Section 2(5) of the Act. A. The Events Prior to September 1983 Prior to his employment with • the Respondent, Ted Ryan Thomas, who is one of the alleged discriminatees and who was a witness in this proceeding , had worked as a • laborer. for 7 weeks at Mid-Continent Coke and Coal, and he had worked for 3 years for the Emery Mining Corporation at its Deer Creek mine Thomas was a section foreman at the Deer Creek mine. He received a Counsel, instead of the attorney for the Respondent At L 8,.the tran- script should read "Mr Sysak," instead of "Mr Reed " There are some other errors in the transcript of the proceedings, but those errors-such as spelling, for example-are easily recognized and of no real consequence to a determination of the issues in this case 529 salary of $3354 a month. His last day of employment at the Deer Creek mine was February 28, 1983,-when he was laid off from work there. When Jerry' L. Oveson, who'is one of the alleged dis- criminatees, and who was a witness in this proceeding, had' worked at a union mine, he had earned about $12.50 an 'hour plus fringe benefits. He was unemployed from February 28, 1983, until he began his employment with the Respondent. He acknowledged at" the trial that he had been unhappy-with the wages the'Respondent paid. The parties stipulated: that' Oveson and Thomas are well qualified and experienced underground miners; that Oveson had 7 years" underground mining experience; that Oveson had fire boss papers while he was employed by the Respondent; that Thomas had 9 years of under- ground mining experience; and that Thomas had both fire boss papers and foreman's papers while he was em- ployed by the Respondent The 'Employer's mining foreman, Michael Greenan, who is admitted-to be a supervisor and agent of the Re- spondent, and who was a witness in this proceeding, had worked as a-master mechanic in charge of all under- ground maintenance in the south side of the mine of Emery Mining at the Deer Creek mine. Oveson worked in one section of that mine, and Thomas was a face boss in another section of that mine. When Thomas had prob lems, he contacted Greenan. Blaine Fillmore, who was employed by the Respond- ent at the time of the trial, and who was a witness in this proceeding, and Gordon Sherman worked for Greenan for about 8 or 9 years at the Deer Creek mine. Chuck Olson, Don Shoemaker, and ' Wayne Douglas also worked at the Deer Creek mine. Before Don Shoemaker, who is one of the alleged dis- criminatees and who was a witness in this proceeding, began working for the Respondent, he had worked for approximately 8 years as an underground miner. He, started as a trainee in June 1975 at the Deer Creek mine of Emery Mining. Shoemaker cut in the face of the mine; ran a scoop; ran a shuttle car for almost a year; riff- folded for a year or 2 years; was a miner and miner/- helper for approximately a year; went on long well expe- rience for approximately a year; fire-bossed, and spell- bossed. Greenan was the maintenance foreman at the Deer Creek mine' while Shoemaker worked there as a shuttle car operator Shoemaker said that Greenan had observed him performing that job. There were two types of shuttle cars used at Deer Creek. One of those types, the joy car, also was used at the Respondent' s mine. Shoemaker ran the joy car at Deer Creek for most of a year. Shoemaker took classes offered by,Emery Mining to become a fire boss, and he passed the test given by the State of Utah to be certified as a fire boss. Shoemaker also passed the State of Utah test to become a foreman, and he was certified for that job. While he worked as a spell boss at Deer Creek, his crew was the first one at Deer Creek to cut six places in the two-entry system during 3 weeks. .In 1979, Shoemaker went to, the Wilberg Mine of Emery Mining where he was a supervisor He was.a sec- 530, DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion• foreman for a year or a year and a half there; con- struction boss for 6 months; and he was the ram wall service foreman for approximately a year. The Employer's superintendent, Harold Mitchell, who is admitted to be a supervisor and agent of the Respond- ent, and who was a witness in this proceeding , became the superintendent of-the Respondent in August 1983. He has held that position since that time. The Respondent is owned by Mitchell, Bud Gent, and Gent's two sons. One of his sons, Charles H. Gent Jr., was a witness in this proceeding. B. The Events in September 1983 In the middle of September 1983, Lowell James Tuttle, who was an employee of the Respondent at the time of the trial, and who was a witness in this proceed- ing, had a preemployment interview with Mitchell in the company office. No one else was present. Tuttle gave his resume to Mitchell who noticed that Tuttle had a certification as an emergency medical tech- nician. Mitchell commented that he was looking for a couple of people with an EMT certification, and he said there was -a good chance Tuttle would be hired. They discussed the mine, and' Mitchell showed Tuttle a map of the old mine. Mitchell also told Tuttle that "it was going to be a small mine, and' it would, be a non-union mine. He' `didn't have anything against them, but just -didn't want to mess with some of that there."2 Around the middle of September 1983, or towards the end of that month, Cynthia Oveson, who is the wife of Jerry Oveson, and who was a witness in this proceeding, had a brief conversation with Mitchell. When she an- swered the telephone, Mitchell asked if Jerry Oveson was at home. Cynthia Oveson explained that he was not there at the moment, but she would take a message. Mitchell left a message that ' he would call Oveson later. Cynthia Oveson then left her house to go to a friend's' 'house. While she was atther friend's house, Jerry Oveson 'telephoned her, and he said that Mitchell had just called him to.come in the next morning for' an'iiiterview. Mitchell stated at the trial that it'was-possible that he had a telephone conversation with Cynthia Oveson in September 1983, wherein he gave her information or re- quested that her husband report to the-office: However, Mitchell said it pertained to'an 8-hour training course on. first ' aid and things to do in a 'coal mine, which' course the , Employer conducted prior to hiring employees. I have' based the "Findings, of Fact" in this. instance on the testimony `of Cynthia Ovestin. ' ,Near the end of Septe' m_ b'er 1983,, Jerry Oveson had a preemployment interview with Mitchell at the Employ- er's office in, Huntington. 3, Just Oveson and Mitchell were present. Oveson testified: 2 The 'foregoing account is based on the testimony of Tuttle There is no allegation by the General Counsel that the statements made by Mitch- elltm'this cdnversation constitute unfair labor practices . That observation ts'not meant to` suggest that'inch an' allegation' would , or would not, have ment Instead, it explains why later in this decision no determination will be made as to whether or not the statements constitute unfair labor prac- tices - I went in, introduced myself, he introduced himself, we talked about type of equipment we'd be using in the mining operations. We talked of who the em- -ployees would be I'd be working with. And in this conversation Harold [Mitchell] said that it would be a non-union mine , and then he went on to say that he would fire his own brother for supporting the union. Mitchell denied that he had a preemployment inter- view with Oveson. Mitchell said that Greenan inter- viewed Oveson for employment and hired him in Octo- ber 1983. Mitchell said that he had hired Tuttle, Shoe- maker, and Olson, and that Greenan had hired the rest of the employees. Greenan confirmed that he had hired Oveson sometime in October after he had talked with Oveson, who was coming in the office door while Greenan was going out the office door. Later, when Greenan returned to the company office, he asked Mitchell if Oveson had filed an application. Greenan then looked through the-applications on file and located Oveson's application. Greenan told Mitchell that Oveson was one of the men that he wanted to hire. Greenan said at the trial that he advised Oveson over the telephone one evening that he was hired, and that the wage scale was $8 an hour. I credit Oveson's testimony regarding his preemploy- ment interview with Mitchell in September 1983. While Greenan was the one who talked to Oveson in October 1983 and who hired him in October 1983, that fact does not- rule out the probability of a preemployment inter- view in September 1983 with Mitchell..In this connec- tion, I also note that in October 1983 Greenan discov- ered that Ovesori already had an employment application on file with the employer. - I have considered Mitchell's account that his only brother has worked in a union mine since 1965; that -Mitchell had _ worked in a union mine from February 1965 to May 1971; and that his father had always been a union man and was a retired union man at the time of the trial. I have weighed those facts as making it less likely that Mitchell made the statements which Oveson attributed to him. - - ' - I have also considered the -fact that Oveso'n did not reveal the conversation in question to the NLRB agent who investigated the unfair labor practice charge and who took Oveson's affidavit on April 23, 1984. Oveson gave these explanations at the trial: "I did not think about" it at the time . . . I never brought that up .. . I did not think it important at the time." Oveson said he remembered the conversation with Mitchell when he dis- cussed the February 8, 1984 layoff with union organizer Brad Reed on-February 9, 1984. See section F herein. . In connection with ' the foregoing, I have considered the statement in Standard Forge and Axle Co., 170 NLRB 784-at 786 fn. 8 (1968), "What a prospective witness will tell a prehearing investigator will often depend upon how l searching the questions of the investigator are." See 5 The following is based on, the testimony of Jerry Oveson :The Gen- barred by Sec 10(b) of the Act from consideration as to whether such - eial. Counsel' concedes that, the statements made in this conversation are statements constitute unfair labor practices GENWAL COAL CO. also Electrical Workers IBE.W'Local• 601 (Westinghouse Electric), 180 NLRB 1062 at 1066 (1970). The findings of fact throughout this decision will be based on some credited portions of the testimony of each one of the witnesses who testified in this proceeding. I have not totally discredited the testimony of any. witness in this case. In this instance and later throughout this de- cision, I have considered such fldt;tors as the demeanor of the witnesses on the stand; inherent probabilities; cor- roboration; contradictions and inconsistencies; and the weight of the 'evidence. With these factors in mind, ,I have credited Oveson's account in this instance. C. The Events in October 1983 When the Employer's operations commenced in Octo- ber- 1983, Greenan was the supervisor of the day shift. The working hours of the day shift were from 8 a.m. to 4 p.m. The afternoon shift, or the second shift, had working hours from 4 p.m. to 12 midnight. Tuttle began working for the Employer on October 14, 1983. He started working' on. the afternoon shift. When Tuttle was hired, Mitchell told him that thelCom- pany wanted people who used their initiative, and that they were training potential foremen. Oveson began working for the Employer on October 14, 1983. He worked on the afternoon or second shift at that` time with Tuttle. Subsequently, Don Shoemaker, Ted Thomas, and Blaine Fillmore joined them on the second shift. Thomas began working for the Employer on October 15, 1983. He began on the day shift with Greenan, Gordon Sherman, and Wayne Douglas. Thomas worked on the day shift for approximately 3 weeks, and then he began working on the afternoon shift. - -It was stipulated at the trial that neither-Thomas nor Tuttle was a supervisor within the meaning of Section 2(11) of the Act'at any time material herein. Some wit- nesses viewed Thomas to be a leadman on the second shift _ while other witnesses 'did not. The stipulation by the parties removed any uncertainty at the trial as to whether Thomas was a statutory supervisor. Don Shoemaker began working for the Employer in October 1983. He started on the afternoon shift, but at times he worked on the day shift. He worked the after- noon shift for a couple of weeks in November 1983, a couple of weeks 'in December 1983 before Christmas, and a week in February 1984.' In October 1983, Ernesto Ibanez,'who was an employ- ee of the Respondent at the time of the trial, and who was a witness in this proceeding, began' working for the Respondent on the 'day shift as a miner. Previously, Ibanez had worked, for the Employer but not in •a mining job - V D. The Events in November 1983 - - Blaine Fillmore began working for the Employer on November 7, 1983. He began working on the afternoon shift. ' In November'1983, Thomas, Oveson; Tuttle, and Fill- more discussed among themselves the organization of a union at the Employer's facility. The employees dis- cussed their dissatisfaction and their desire to do. some- 531 thing about it. They discussed going to the Employer and asking for a pay raise. Later, Tuttle-, and, Fillmore told Oveson that they did' ask Mitchell for a pay raise, and that Mitchell had told them that the Company could not afford to-give them a raise at that time. Oveson did not ask for a pay raise. ' - V According to Thomas, Fillmore made comments to the employees with regard to organizing a union in No- vember 1983, and those comments were favorable to the Union. According to Tuttle, Fillmore participated in union 'discussions in November 1983, with employees on the afternoon shift. Tuttle also said that Fillmore made comments which were favorable about ' the Union. Oveson also stated at the trial that Fillmore had partici- pated in discussions with the employees on the afternoon shift about a` union, and that Fillmore's comments were favorable to the Union.` In view of the foregoing summary of testimony, I find that Fillmore was in error in his testimony regarding the absence of union activity among the employees until around the end of December 1983. , . ' . In this. instance, and in other instances throughout this decision, I have been guided by "an administrative law judge is not required to discount all of a witness' testimo- ny because he is not persuaded by some of it. Nothing is more common than to believe some and not all of what a witness says." Krispy Kreme.Donut Corp., 245 NLRB 1053 at fn. 1 (1979). See also PBA Inc., 270 NLRB 998 fn.. 1 (1984). _ On November 9, 1983, around 4 p.m. Thomas had a conversation with Mitchell and, Greenan outside the mine. Present were: Mitchell, Greenan, Thomas, Oveson, and Tuttle. Thomas testified: We were waiting for a place to, be cleaned up by, the ram car that had been shut • down. Mick [Greenan] asked, who ran the ram car, and I told him that" Lowell [Tuttle] usually `ran the ram car.' I usually ran the cutting machine, and Jerry [Oveson] usually ran the boulder, and he said, look, out Harold,, they've got classifications. I [Greenan] wouldn't be 'surprised if they signed union cards, where Harold said, they better not have. That was the end of the conversation. With' regard to the foregoing conversation, Greenan testified, "And I jokingly made the remark to him that, `Look, Harold, they've already got their 'classifications picked out."' Greerian could not remember at'•the trial what Mitchell's reply was, but Greenan said that Mitch- ell'said his'reply jokingly "because we A. laughed about - it." - "'Thomas explained at the trial' with regard to the word "classification": ' it's used in' a' union mine a lot, the'teim classification. It's the job that a person has. If he is -a miner-operator,- he's' a classified' miner-operator..If•lie's a shuttle car operator, he's a classified shuttle car operator. If he's a ram car operator, he's a classified ram caroper- ator." According to Oveson, who had worked - in union mines in Utah for, about 7. years,- the employees in union mines. hold classifications according,to the type of. equip- 532 DECISIONS OF NATIONAL-LABOR RELATIONS BOARD ment they ,operate, and they are paid according to the type of machine they operate. _ During cross-examination by the attorney -for the Re- spondent, Thomas was asked if Greenan was "sort of joking" when Greenan,said ,he would not be surprised if they had signed union cards. Thomas acknowledged, "It could have been." When Thomas was asked if he took Greenan and Mitchell seriously, Thomas answered that he could not remember how he took- it at the time. I have based the findings of fact in this instance on Thomas' account. Oveson related a similar account, but Tuttle did, not recall the conversation. In light of Green- an's testimony about the yoking manner of the statements and that everyone laughed, and in light of Thomas' testi- mony that Greenan could'have been "sort of joking," I find that the conversation occurred in a joking manner. . Around the. first of November 1983, Tuttle asked Greenan whether he could take -some coal and give it to his father: Greenan said for Tuttle to go ahead and do so because the Company needed to find out if people liked the 'coal, and if the coal burned well. Tuttle said that he had -taken four or five small loads of coal in his half-ton truck; and that he' had given the coal to his father and his grandfather.4 Mitchell said that the Company's policy with regard to employees taking coal had been that they could take enough coal for their personal use, which was 4 to 5 tons for - the winter months from October through March. Mitchell said the Company's policy had been,verbally communicated to the employees. He said a standard pickup truck could hold 1-1/2 tons whereas a' heavy- duty'-long wheelbased pickup truck could hold 2 tons. In February'1984, Mitchell changed the Company's policy, and he told the employees that since the privilege had been abused,,it would not be allowed any more.5 Greenan also said that the Company's policy was that employees could take enough coal for their personal use, but they 'could not' take coal for sale. Mitchell had in-, formed: Greenan that 'the employees could take 4 to 5 tons for their' use. Greenan said that' he told all of the employees that coal was available to them-for their use at their house. Greenan has 'taken coal from the Employ- er.'s• yard.6 - - Thomas said at the-trial that he' had taken around 1- 1/2 tons of coal during his employment with the Re- spondent. He gave the coal away to his friends, and. he never received any money for the coal Thomas said it was a common occurrence for him to see other people take coal at the Employer's yard. ' ' During his, employment at the Respondent's; Oveson took approximately 4 tons'of coal or'five''or six loads. Oveson' burned that coal-in his ' own' stove, which was the only 'method; he used' for heating his, house. In his opinion, the 'winter months of 1983-1984 were, fairly severe. However, Oveson had' a half-ton of coal let over from the'winter. Shoemaker acknowledged -at 'the trial, 'that` -he ' had taken about' 4'tons -of coal: while he -worked, fof the Em- * The foregoing is based on the testimony of Tuttle s The foregoing is based on the testimony of Mitchell ' - .6 At the time of the trial, the price of coal at one yard in Price, Utah, was $55 a,ton and $60 a ton if the coal was delivered ployer. He gave. one load to his sister, and he did not ask her for any money for the coal. Shoemaker kept the rest of the coal at his house. He said that he did not sell any coal Shoemaker said that it was an everyday occurrence for employees to take coal at the Employer's yard. Shoe- maker's understanding was that the Company's policy was that-the employees could take coal for the employ- ee's own use for house coal, but not for sale to the public or to other persons. ' - ' The only employee who Thomas heard brag about selling coal for a profit was Blaine Fillmore Towards the end of December 1983, Fillmore told Oveson that he was selling coal, and making a little bit of money on the side. Fillmore did not tell Oveson how much money he made. That occurrence seemed unusual to Oveson be- cause he knew that the employees were not supposed to sell' coal for profit. Oveson acknowledged at the trial that he did not-inform Mitchell of Fillmore's statement to him. - - According to Tuttle, Fillmore took more of the Em- ployer's coal than anyone else did, and in mid-January 1984, Fillmore told Tuttle that Fillmore had sold coal. Fillmore admitted at the trial that he had taken a load of coal and sold it for $30 a ton, but he also said that Thomas and Oveson each had boasted four times about selling truckloads of coal. Fillmore's version is that the whole crew of employees was present on three of those occasions when Thomas bragged about selling coal and on three of those occasions when Oveson bragged about selling coal. Just Fillmore and either Thomas or Oveson were present on the other occasions. Fillmore's version is contradicted by the testimony of Thomas, Oveson, Shoemaker, and Tuttle. Based on the credibility factors I have mentioned previously, I credit the testimony of the employees named above, and I do not, credit Fillmore's version. D. The Events in December 1983 ' In December 1983, the Employer made one shipment of 2000 tons of coal. On Saturday, December 10, 1983, Fillmore had a con- versation with Greenan at work while they were in Fill- more's truck going to the mine. Just the two persons were present. At the trial, Fillmore said he was "pretty much" close friends with Greenan.' Fillmore began the conversation by telling Greenan that Fillmore did not think they needed the Union there, and that Fillmore would not want to see the Union-there if things materialized as Greenan had, said . Greenan-told Fillmore that, if the Union did happen to come in at the employers, they probably would have to close the mine. Greenan also said that the wages soon should be coming up and that "if, we stuck it out with Genwal Company that we would not be sorry for it." ' After his recollection was refreshed by reference to his pretrial affidavit, Fillmore recalled that Greenan also promised him that they soon would be getting insurance as well as a raise. Fillmore stated at the trial that the The following account is based on the testimony of Fillmore GENWAL COAL CO Company did provide insurance about 30 days after April 20, 1984 In the opinion of Fillmore, Greenan was expressing a personal opinion as one friend to another rather than the attitude of Mitchell or the Respondent. Two or three weeks later when the employees were again discussing the Union, Fillmore told Thomas, Oveson, and Tuttle about the conversation Fillmore had with Greenan. Fill- more also told the employees that it was Greenan's re- sponse to Fillmore. On December 15, 1983, Carla Beckstead, who was a witness at the trial, began working for the Employer as a secretary.8 She performed basic secretarial duties at the Company's office in Huntington. Mitchell and Gent also worked in the office. Because Beckstead also maintained the Company's payroll, she was informed whenever em- ployees were laid off from work by the Employer. She made out the paychecks, and she listed on the Compa- ny's records that the employees were laid off. The Com- pany's payday was Friday. Her working hours at the Company were from 9 a in. to 4 p in. When Shoemaker went-on the afternoon shift in mid- December 1983, there was some talk about a union among the employees. Shoemaker said that Fillmore par- ticipated in the discussion, and that Fillmore made com- ments favorable to the Union In the opinion of Shoe- maker, Thomas, and Oveson worked harder in support of the Union than the other employees did. Around mid-December 1983, about 2 p.m. one day, Shoemaker spoke with Ibanez at Ibanez' house.9 Shoe- maker told Ibanez that there had been discussion about a union at the mine with the employees on the afternoon shift. Shoemaker also told Ibanez that he wanted to know how Ibanez felt about a union at the mine. Ibanez said that, he did not think the Union was right at`that time because the Company was dust starting; the Compa- ny did not have any contracts; and the Union would just get the employees laid off. Shoemaker told Ibanez that he felt the same way, and that he was satisfied with' working 8 hours a day • Shoemaker said that when he worked earlier at another mine, he had been taking his work home with him Ibanez said that their conversation lasted about 20 minutes; and they also may have dis- cussed religion. .. Oveson also went to Ibanez' house and asked him about the Union. Ibanez told Oveson that he did not want to have anything to do with the Union. According to Oveson, he and Thomas were the ones who pushed for the Union the hardest on the afternoon shift at,the Employer's mine. . Oveson signed a union authorization card on Decem- ber 27, 1983, at his house in the presence of, and•at -the request of, union organizer Brad.Reed.10 There were no general employee organizational meetings. However, Oveson discussed the Union with a number of employ- ees, including Thomas, Fillmore, Tuttle, Chuck Olson, Gordon Sherman, and Shoemaker; Oveson expressed to Her last name was Stokes until April 28, 1984 The following account is based on the testimony of Ibanez 10 The following is based upon the testimony of Oveson Reed did not testify at the trial in this proceeding, nor were any union authorization cards introduced into evidence • 533 them his support , of the Union. In the opinion of Oveson, all of those employees , except for Olson and Sherman, seemed to support the Union . Olson did, not express an opinion'to Oveson. Sherman told Oveson. that Sherman had been approached by a union organizer and that he was going to tell Greenan . Oveson said that he never threatened Sherman with bodily harm or physical harm at any time. i i Towards the end of December 1983, Thomas signed a union authorization card at his home in the presence of union organizer Reed . It was the first time that , he had been contacted by a union organizer . Reed told Thomas that Reed had met previously with Oveson. Earlier there had been discussion of the Union by Thomas, Oveson , Tuttle, and Fillmore. During the last part of December 1983 or the first part of January 1984, Tuttle signed a union authorization card at his house in the presence of union organizer Reed. Shoemaker acknowledged at, the trial during cross-ex- amination by the attorney for the Respondent that there had been a slowdown in production on the second shift once the Union began to be discussed more and more by the employees . In December 1983, there was some slow- down in production on the second shift . Shoemaker testi- fied that "morale was dropping because of the lack of pay and benefits . Yes, there was some walking around." Tuttle also acknowledged at the trial that the. whole crew on the second shift was not working up to their po- tential. He explained that the employees were not happy with the wages and benefits.- Previously he said that the employees had been doing more work , then he said the employees just did their job. Oveson also acknowledged at the trial that the em- ployees felt that they deserved to be paid more than $8 an hour, and that they, deserved fringe benefits..Some of the employees earlier had asked the Employer for either more money or benefits. ` Oveson acknowledged that' the crew did not work as fast as before, and that the crew slowed down a little bit . He also acknowledged that the employees were unhappy with the wages .the Company paid; the lack of fringe benefits ; and the fact that they had worked hard, but the Company had not fulfilled its promises. The employees discussed this and "decided to slow down. Nevertheless , Tuttle, Thomas, and Oveson stated that the employees on the -second shift always completed the work which had been assigned to'them by Greenan. Thomas said that: the fact that the' Company'. was paying him $8 an hour was one, of his' concerns with' the job. He had been paid a great deal. more : when he had worked for Emery Mining. He, also listed the lack ,, of benefits, insurance, sick. leave, and vacation as 'being his concerns. Thomas felt that he was being taken advantage of by the Employer,, Neyertheless, Thomas-stated at the trial that he, had never said. that: because he was being paid $64 per day, that was all 'the work he was going to do, or words to that effect. Shoemaker, . Oveson, and " Sherman did not testify at the trial in this proceeding 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tuttle said that they had never heard Thomas make such a statement or words to that effect.' 2 . . While-no one in the Employer's.management or super- vision had specifically told the 'employees what the length of their. lunch period was to be, the employees on the afternoon shift -usually took about 30 to 45 minutes for a lunch break. 13 - - Thomas said that it was a company practice for the employees to burn substances in order to keep warm during the winter months. He said the employees burned coal, diesel fuel, garbage, and scrap wood. Thomas said the employees used broken cat pieces, but never new ones. Greeiian said that a new' cat piece cost the Compa- ny around $3. The availability of such cat pieces was a concern because the cat pieces are brought from Fair- view, which is over a mountain range from the Employ- er's mine. Greenan stated at the trial that during the win- tertime the roads are sometimes closed for 3 or 4 days due to heavy snowfalls and snowdrifts. Thomas said that Greenan had told him at times on the day shift to start a fire, and on several occasions Greenan had told Thomas to use diesel fuel. Thomas also observed Greenan throw diesel fuel in the fire barrel to get the fire going . Thomas never saw employees on the afternoon shift pour 5 gallons of diesel fuel on burning coal and, watch the flames shoot up in. the air. Thomas gave the following description of what occurred on the afternoon shift with regard to the use of diesel fuel to keep the coal burning: When the fire would go out or when the fire was burning low, we had a quart oil can that we would fill partially full, a third full, half full, and we'd pour it in on the coals after we threw some more coal on to get it burning. While employees were working on the second shift, Oveson said that they burned coal,, wood, sacks, and diesel fuel in order to keep warm. Oveson said that the wood which was used was scrap wood. Oveson denied that employees poured 5 gallons of diesel fuel onto the burning coals and watched the flames shoot up in the air. Instead, Oveson stated that the employees used a quart can and poured a cup and a half of diesel fuel on the fire. 12 I credit Thomas' testimony in this respect over that of Fillmore, and Fillmore's testimony that Oveson and Tuttle made the same statement Fillmore also testified that he made that statement, which no one disput- ed, and therefore I accept Fillmore's admission that he had made such a statement la In view of the credible testimony by other employees who worked on the afternoon or second shift, I do not credit Fillmore's testimony about the employees taking I to 1-1/2 hours for lunch two or three times a week, that on a number of occasions the employees slept in the office trailer after lunch , and that Greenan had told him the lunch period was 30 minutes In earlier employment with other union mines, Oveson ac- knowledged that the scheduled time had been 30 minutes although the employees took 40 minutes Tuttle's experience had been to take 45 min- utes with prior employers Fillmore's prior experience was 30 minutes I find that their experiences differed in that this does not show a uniform industrywide practice Also inconsistent with the credited testimony of employees who work on the second shift, other than Fillmore, was the recital by Ibanez of a conversation regarding the second shift he said that he had with Shoemaker in January 1984 when a jeep had broken down Shoemaker denied talking with Ibanez about occurrences on the second shift Considering the credibility factors I have stated earlier, I do not credit Ibanez' version in this instance. Shoemaker said that the employees on the afternoon shift in December 1983 burned coal, broken crates, broken -cat pieces, broken wedges, and material that had been in the mud. Diesel fuel was used to start the fire and to' stoke it up. A former antifreeze can, about a quart size, was used to pour the diesel fuel, according to Shoe- maker. Shoemaker also said that it was the company practice to burn substances to keep warm and that he had seen company management participate in that prac- tice. Shoemaker stated that he had never seen anyone on the afternoon shift pour 5 gallons of diesel fuel on the burning coals and watch the flames shoot up in the air Tuttle stated that it was the company policy to burn substances in order to keep warm during the winter months. Tuttle said that the employees burned coal, diesel fuel, damaged wood, and garbage. Tuttle said that he had not observed anyone on the afternoon shift pour 5 gallons of diesel fuel on burning coals. and watch the flames shoot up in the air . According to Tuttle, the after- noon shift employees used a quart-size can to pour "a little diesel" on the coal in order to build a new fire or to pour on the coal which had been added when the fire burned-low.14 While the-scheduled working hours for the Employ- er's afternoon shift were from 4 p.m. to 12 midnight, the employees usually began working at 3:45 p.m. and stopped at 11:30 p.m. when they gathered up their tools and prepared to leave the mine. The exceptions to this usual practice on the second shift occurred on Friday, December 23, 1983, and on one night near the end of January 1984. These will be described in this section and in the next section of this decision. On only one occasion did Thomas quit working before 11:30 p.m. on the second shift. That was on the Friday before Christmas in December 1983. About 4 p m. on that day, which was December 23, 1983, Thomas had a 'conversation with Greenan at the mine. Also present were Oveson, Tuttle, and Fillmore Greenan gave the employees a list of things to be done on the second shift. Thomas observed that it was a short list. He asked Greenan what the employees should do when they fin- ished the items on the list, and could they, go home. Greenan dust shrugged his shoulders and grinned. Thomas said that the employees quit working that - evening around 9 p.m.15 E. The Events in January 1984 In January 1984, Tuttle spoke with Shoemaker 'on one occasion about the Union. Tuttle approached Shoemaker and explained what the employees .had in mind: Accord- ing to -Tuttle, Shoemaker replied that they needed to do something to get their wages up to where they should i4 In view of the testimony summarized 'above, I do not credit the.ac- count of Fillmore to the effect that the employees used a 5-gallon can of diesel fuel to start the fire and burned three or four cat pieces-three times a week - 15 The foregoing is based on the testimony of Thomas The testimony of Oveson. Shoemaker, and Tuttle lend support to Thomas' account In the opinion of Oveson, Greenan was letting them off from work early because of the holiday weekend ' i GENWAL COAL CO be. Tuttle did not recall whether he told Shoemaker that the Union had been contacted.16 In January 1984, Shoemaker and Ibanez had a conver- sation about the Union . They discussed how they felt, about bringing in a union at that time, and they agreed that they were not going to be "union instigators." 17 In mid-January 1984,, Oveson had a conversation with Mike Marshall during the change in work shifts outside the mine portal . Oveson did not recall that anyone else was present. Oveson told Marshall that the employees could get a raise be a raise had been promised to them, but they had not received it. Oveson told him that the employees felt like they were getting low wages, and Marshall agreed. Oveson asked Marshall if he would be interested in signing - a union card, and Marshall replied that he would be interested. Oveson said at the trial that he did not recall whether or not Marshall had, in fact, signed a union card.18 Near the end of January 1984, there was a conversa- tion during the change in work shifts at the mine among Oveson, Thomas, Tuttle , Gordon Sherman, and Chuck Olson. 19 Oveson told Sherman and Olson that the em- ployees felt that they needed a raise, and that the em- ployees should do something about it . Thomas also told them that the employees felt that they needed a raise. Sherman and Olson asked if they had spoken to a union organizer, and the other employees told them that they had done so. Sherman and Olson asked who it was and the employees replied Brad Reed . Sherman and Olson said that they knew who Reed was, but they asked what he was, and then they left. Near the end of January 1984, Oveson and Frllmore_- were working together one evening . They were the only two employees on the Employer 's second shift on that occasion. Tuttle and Thomas had been put on the day shift at that point in time in order for the day shift to. catch up on some work. Oveson and Fillmore experienced problems that evening with the water pressure, and their not having enough water pressure to operate the drill in the mine. Fillmore had to go back to the pressure tank several times to manually turn on the high-pressure tank. At ap- proximately 10:30 p .m., the water pressure 'once again dropped. Oveson told Fillmore that Fillmore would have to go back to the pressure tank once again and turn it on. Fillmore responded with a vulgar remark, and Fill- more said he was leaving . Fillmore left the mine and- turned the generator off. Then Oveson ceased working and left with Fillmore in Fillmore's vehicle. Oveson acknowledged at the trial that he did not inform Mitchell or Greenan that he and Fillmore had left work about 10:30 that evening . The employees do not sign a timesheet, so he received pay for 40 hours of work that week, although Oveson and , Frllmore had not worked the full 40 hours that week .20 18 The foregoing is based on the testimony of Tuttle ' 17 The foregoing is based on the testimony of Shoemaker 18 The foregoing is based on the testimony of Oveson Marshall did not testify at the trial in this proceeding 19 The following is based on the testimony of Oveson 20 The foregoing is based on the testimony of Oveson 535 F. The Events in February 1984 With regard to the financial situation of the-Employer in February, 1984, Mitchell said that he had second mort- gages at the bank on everything he owned;-and that Bud Gent had second mortgages at the bank on practically everything Gent owned. In these circumstances, Mitchell said that the Employer was having a,difficult 'time bor- rowing any more money from the bank. - I - Shoemaker said that he and Ibanez talked about the Union on February 3, 1984, between 3.30 and 4 p.m. at the mine. They discussed both the good and the 'bad points about the Union, and the possibility that' the Union would hurt the Company if.the Company did not have a contract to sell coal. They did not want to be or- ganizers of the Union, but they talked about what they might do when it was presented to them. The first layoff of employees by the Employer oc- curred on February 3, 1984, when Shoemaker and Ibanez were laid off. Both Shoemaker and Ibanez were working on the day shift at'that time, and they were re- ceiving $8 an hour in wages as were all 'of the other em- ployees of the Employer. The Employer' had 10 or 12 employees working for the Company at-that time. • According to Mitchell, - the' reason -for 'the layoff on February 3, 1984, was the financial situation at the Com- pany which meant there was_a "hard time getting `money for the payroll each week." At the trial, Mitchell said that he selected "the two least versatile people."21 - In the opinion of Greenan, -Shoemaker and Ibanez were the least qualified miners at the Company at that' time. Greenan suggested to Mitchell that they be, laid off after Mitchell had told Greenan that the 'Company would have to cut back some, people. In the opinion of Thomas, Shoemaker "is a qualified, experienced underground -miner." Thomas. also was of the opinion that Shoemaker does 'a-good job but he was not the best miner employed by' the -Employer: • Thomas expressed his opinion that "Ernesto'Ibanez was definitely worse," and Thomas also expressed 'the -opinion .that Ibanez was lazy. • - t- Tuttle believed 'that the layoff df Ibanez and Shoemak- er on February 3,' 1984, -was'reasonably based. In his opinion, neither one is as versatile or as experienced as are. most of the other employees of the employer.. How- ever, Tuttle acknowledged-at the trial that he could not judge the qualifications of individual people Fillmore gave his opinion of Shoemaker as follows::"I think that Mr. Shoemaker is a competent man in'what he is showed to-do In 'other words; I thrnk'Mr. Shoemaker has to be shown hat to _do.'„ If Fillmore'"had had"a choice on -February 8, or -28, 198.4, Fillmore would have chosen'Shoemaker' as'among the-first, employees -to:haVe been laid off by the Employer. , As of, February 3, 1984 ; .th'e•,second,.shift!-was' cogi- posed of. Thomas, Tuttle,. Oveson;, and Fillmore: A,-'couple' 6f days, ;after Shoemaker' was^ laid' off frorh work on` February ' 3; ,1984,;he had'alcoriversation',in;'the ._ .f . 21 The foregoing is based'on the testimony of Mitchell The layoff of Shoemaker and-Ibanez on February 3, 1984, is'not alleged by'the. General Counsel to be an unfair labor practice - 'r 1 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD morning with Mitchell Shoemaker did not recall at the' trial whether anyone else was present. Shoemaker asked Mitchell how it was going; could the Company hire him back; why. did they get laid off, and about rumors of the Company's having a contract to sell coal. Mitchell told Shoemaker that he did not know anything about any contract to sell coal, and he could not hire anybody at that time because they were having a rough time and a hard time at that moment. Mitchell assured Shoemaker that Mitchell did not know anything about a contract to sell coal. Shoemaker denied at the trial that he had said anything to Mitchell about any misconduct on the after- noon shift, or that he had been verbally abused by the afternoon crew. Based on the credibility factors I have previously mentioned, I have credited Shoemaker's ver- sion over the version given by Mitchell. However, at the trial, Mitchell admitted that Shoemaker had told him that there was "union talk going on " After he was laid off on Friday, February 3, 1984, Ibanez had a conversation with the wife of Don Shoe- maker "at the unemployment office on the following Monday, February 6, 1984 Don Shoemaker was inside the partitioned part of the office where people are inter- viewed He was not standing next to Mrs Shoemaker at that time. Ibanez testified that Mrs Shoemaker told him: "It's not fair that you two are laid off when people' guys on the afternoon shift sometimes when I'm waiting for Don to come, home I see them coming with coal, loads of coal and delivering it to the neighbors." Mrs. Shoemaker did not reveal any specific names to Ibanez 22 A week, a week and a half, or 2 weeks after the cons versation between Ibanez and Mrs. Shoemaker at the un- employment office, but before February 22, 1984, Ibanez spoke with Mitchell one morning in the Company's office. Charles Gent also was present Ibanez told Mitch- ell that he and Shoemaker had performed their job, but the employees on the afternoon shift had not done so. According to Ibanez, he also told Mitchell, "That some- body was -saying that they were selling the' coal. I did . not tell him who " With regard to the response' of Mitch- ell, Ibanez testified: ."Well, he [did] not say much. He just said it's all right. And I think that's all he said." Ibanez further testified that Mitchell had told him, "As soon as we get coal orders, you might go back to work." The foregoing is based on the credited portion • of Ibanez' account, rather than Mitchell's version. Howev- er, Mitchell admitted at the trial that Ibanez had told him that there was "union talk going on," and "that they were talking of organizing a union." One afternoon around 4 p.m. in February 1984, and prior to the layoff on February 8, 1984, Oveson had a conversation with Marshall at the mine portal. Oveson asked Marshall if he was still interested in signing a union card Marshall replied affirmatively. The foregoing is based on the testimony of Oveson. According to Mitchell, it was soon after February 3, 1984, that he became aware of problems "with that group of people over there, either all of them or some of 22 The foregoing is based on the testimony of Ibanez Mrs Shoemaker did not testify dt the trial in this proceeding - them." With regard to these problems, Mitchell testified: "It was my information that I'had' that they was pretty nearly destroying the supplies and the wood, burning of the oil; and just a general slowdown all the way around on their work." Mitchell candidly acknowledged during his direct examination by the attorney for the Respond- ent that at least some of those 'employees were engaged at that'time in union organizational activity. , Mitchell said that he was in Virginia, so-he telephoned Greenan. Mitchell testified: "So, what I told Mick [Greenan] was that when he had a layoff, that these people would be laid off until such time that I could get back and personally see if the things ' I heard were so or there was . . . [anymore] to be learned or whatever."23 In their telephone conversation, Mitchell told Greenan the names of the employees who were to be laid off. At the trial, Mitchell described those employees as being ba- sically the former second shift. Mitchell did not give Greenan over the telephone the reasons for his decision to lay off the employees. Mitchell believed that he waited until his return to Utah from Virginia.24 With regard to the alleged misconduct on the second shift, Mitchell testified: "I can't honestly say exactly where it came-who said what, but it came out and as I was talking to people about what had taken place, that they felt like that Lowell Tuttle•was just-maybe in kind of a -bad group in a bad situation-more of a follower, and the same thing about Blaine Fillmore, that he was more or less a follower." Mitchell also said he had other conversations about the Respondent' s situation with people on the street and with a female in a bar known as The Pub. Mitchell said that he also heard rumors. He testified: "[O]ne rumor is a statement was made to me that we'd laid off a bunch of people up there because we didn't have any coal sales, said we should of turned it over to second shift. They could have sold it." Mitchell said that he was told the foregoing by a stranger. Mitch- ell did not know the names of any of the other people with whom he said he had the foregoing conversations.` Nevertheless, Mitchell also said at the trial that the reason for the second layoff of employees on February 8, 1984, was a-financial one. Mitchell testified: "Well, we hadn't had any sales since we'd been started and -at that time; we were just having a hard time borrowing money. So, I had to cut back to just bare minimum." Mitchell said that he decided to lay off the entire second shift and also one employee from the day shift. The second-shift employees who were laid off on February 8, 1984, were: Thomas, Oveson, Tuttle, and Fillmore. Mike Marshall was the employee who was laid off from the day shift.25 At first, Greenan said the Employer's layoff of em- ployees on February 8, 1984, was due to a shift in the coal seam which went from a height of 6-1/2 to 7 feet of coal down to 4 or 4-1/2 feet of coal. However, Greenan 23 The transcript reads "nowhere" at that point at Tr 489, L 24 In this context , it seems "any more to be learned" is a more accurate tran- scription than "nowhere to be learned " 24 The foregoing is based on the testimony of Mitchell 25 The foregoing is based on the testimony of Mitchell The layoff of employees on February 8, 1984, is not alleged by the General Counsel to be an unfair labor practice ,GENWAL COAL CO.. later. testified that the shift in the coal seam was not dis- covered until about February 27, 1984. Thus, Greenan corrected his earlier testimony in,that regard. In the opinion of Greenan, Mike Marshall was a good employee. Greenan said that he had told other employ- ees at the Company what a good job Marshall was doing. At the trial Mitchell also described Marshall as being a "very good" employee. With the exception of 'Marshall, the day-shift employees of the Employer con- tinued to work between February 8 and 22, 1984.. Thomas spoke with Mitchell about coming back to work after Thomas was laid off on February 8, 1984. According to Thomas, Mitchell told him that the Com- pany had to cut back, and Mitchell could not say when the Company would call Thomas back "if we ever can.,' . On February 9, 1984, Oveson discussed the circum- stances of the February 8, 1984 layoff with union orga- nizer Reed.26 In Oveson's opinion, the employees "felt like we were laid off for union reasons." Oveson testified regarding his opinion, "[W]e had been discussing the union, and we felt like someone had told the company about our involvement, and that's why we were laid off." As a result of his meeting with Reed, Oveson gave the Union his first sworn statement on February 10, 1984. A second statement was given by Oveson on March 13, 1984, to the Union. A third statement was given by Oveson to an NLRB agent on April 23, 1984. Oveson acknowledged at the trial that Reed told him to list everything that was significant; that Reed explained what the basis for the charge would have to be; and that Reed told him that he would have to show that the Company did not want union supporters.27 Oveson further acknowledged that Reed told him in their conversation that Oveson would have to show some kind of hostility toward the Union. At that point in time Oveson believed that his February 8, 1984 layoff was not legitimate. Oveson later changed his mind. Oveson acknowledged at the trial that his April 23, 1984 affidavit which he gave to an NLRB agent included the 'statement, "I feel the 2/8/84 layoff was legitimate." Oveson said at the trial that he still' felt the layoff on February 8, 1984, was legitimate. Around February 10, 1984, Tuttle telephoned the com- pany office one morning and spoke with Mitchell.28 Tuttle asked about some overtime hours he had worked, but for which he had not received pay. Mitchell replied that Tuttle should figure the number of hours and let him know, and the Company would pay Tuttle. Then Tuttle asked if and when the employees would be re- called to work. Mitchell answered that he was under the impression that the 'employees did not want to' come back to work: Tuttle was surprised by Mitchell' s state- ment to him. Tuttle told Mitchell 'that he would get back to him with regard to' the overtime hours he had worked. 26 The following is based on the testimony of Oveson Reed did not testify at the trial in this proceeding 27 The transcript reads at p 353, L 19, in part, "that you'd have to show that the union did not want union supporters " It seems to me this is an error,•and that the first "union" should read "company." 28 The following account is based on the testimony of Tuttle 537 On February 10, 1984, there was a meeting of certain employees' of the Respondent that evening at Thomas' house. Present were: Thomas, Tuttle, Shoemaker, Fill- -more, and Oveson. The purpose of the meeting was'to discuss why they had been laid off and what options the employees had about being laid off. Shoemaker signed a union authorization card at the meeting . After a meeting at Thomas' house, the group of em- ployees went in Shoemaker's truck to the _B & K Stop and Shop in order to meet with union organizer Reed. At the B & K Stop and Shop, the employees saw Greenan, who was going into the store and who looked in their direction, but said nothing to them. Reed arrived after Greenan had departed.29 Afterwards, the group of employees went to Ibanez' house to see if he would consider supporting the Union, and to see whether Ibanez would go with the group of employees to the Old Homestead Cafe. Ibanez did not go with the employees to that cafe. The group of employees and Reed went to the Old Homestead Cafe where they remained for about 20 to 30 minutes. Gordon Sherman's wife worked as a waitress at that cafe. According to Thomas, all of the employees in the group that evening supported the Union. In addition, he said that Marshall, who was not present, also support- ed the Union. According to Thomas, the principal union advocates at the Employer's mine were Thomas and Oveson. Tuttle also testified that Thomas and Oveson pushed for the Union the hardest. As soon as Mitchell learned that there was serious talk about union activities, he contacted the Respondent's law firm. Mitchell said that. he was advised not to discuss union activities with anybody, and that if a union repre- sentative came around, to not discuss anything or do anything, and refer the union representative to the Re- spondent's law firm. Mitchell acknowledged at the teal that he had heard a rumor that a union was being orga- nized at the Respondent's.3o Greenan said he first gained knowledge of union activ- ity at the Employer's after the layoff on February 8, 1984. At first on direct, examination, Greenan could not recall definitely, but he said it seemed to him that he learned about the union activity from Mitchell. On direct examination he could not recall what Mitchell had told him, but on cross-examination Greenan recalled that Mitchell told him that "he had heard a rumor that there was a possibility of some union organization." Greenan said that Mitchell did not tell him who was involved; what shift was involved; or for Greenan to do anything. Subsequently, Greenan said he was advised by Mitchell in February 1984 after Mitchell had spoken with the Re- spondent's law firm "not to discuss union politics or union organization with anybody. If a union organizer tried to give me any paperwork of any kind, I was to refuse it and to refer them to such law firm."3 i 29,The General Counsel does not allege that there was unlawful sur- veillance of the employees at the B & K Stop and Shop 30 The foregoing is based on the testimony of Mitchell 31 The foregoing is based on the testimony of Greenan "538 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD On , February 22, 1984, the Respondent recalled to the procedure for checking the hoses "sometimes 2 and 3 work: Thomas, Oveson, Shoemaker, Ibanez, and Fill- days a week."33 - - more. Marshall was offered recall to work by the Em- Thomas worked with Blackburn for about a year and ployer, but he was working for Long Airdox in Hunting- a half at the Deer Creek mine before Thomas left there ton, and Marshall declined to come back to work for the in February 1983. Thomas also - worked 1 day with Respondent. According to Greenan, the reason for the Blackburn at the Employer's. Thomas was a section fore- recall on February 22, 1984, was because the Company man at the Deer Creek mine while Blackburn worked had a "test order," and in the hope of getting a contract, there•as' a laborer on Thomas' crew. In Thomas' opinion, the Company could not get the coal out with the number Blackburn generally performed his 'work competently. of people who were working at that time. " Based on Thomas' observation of the green hat with red On February 8, -1984, all .of the miners employed by stripes on it, which Blackburn wore when he first came the Respondent were receiving $8 an,hour. As of Febru- to work at the Deer Creek mine, Thomas concluded that ary.22,• 1984, all of the miners employed by the Respond- Blackburn did not have undergrourid'coal mining experi- ent began receiving $12 an hour. At the time of the trial, ence prior to the employment at Deer Creek. According the wage rate for the miners remained at` $12 an hour. to '-Thomas, the green hat signified less than 1 year's Mitchell said that he gave these instructions to Greenan with regard to-how the employees should be mining experience, and the red stripes on the green hat placed when they were recalled to work on February 22, 'signified less than 30 days' mining experience. 1984• "I told him that I wanted a second shift split but Thomas worked about 2-1/2 years with Shoemaker. In wanted him personally to go to,the second shift and su-. the opinion of Thomas, Shoemaker was more competent pervise it." Mitchell further testified: "I don't think I as an underground miner than Blackburn. According to really went into specifics with him. I think I just told Thomas, Blackburn is a neighbor of Greenan.34 him that things hid been going on on the second shift ' Oveson knew Blackburn when they worked at the that he had to put a-stop to,and for him to-go to second Deer Creek mine, but Oveson said they never worked shift and make sure it did stop and however he placed together there. In the opinion of Oveson, Shoemaker was his men up,there was up to him. I couldn't even tell you more qualified as an' underground miner'than Blackburn now who' he put, on day and "who he put on second . 1132 was, ' but Oveson acknowledged at the trial that he was When Thomas was recalled to work for the Employer not in much of " a position to evaluate how qualified on February 22, 1984, 'he worked on the day shift with Blackburn was.3 s Oveson, Olson, Sherman, 'Ibanez, and, Wayne Douglas. On February 23, 1984, the Respondent laid off from The afternoon shift at that time'- w6 'composed , 'of work: Thomas, " Ovveson, Shoemaker, Tuttle, and Fill- Greerian,' Michael'Greenan" Jr., Rick Blackburn, Tuttle," more. 36 That was the last day of employment with the Fillmore, and Shoemaker. Employer for Thomas and Oveson. The other three em- Michael Greenan'Jr. and Rick Blackburn began work- ployees subsequently were recalled to work for the Re- ing as newly hired employees for the Employer on Feb. ' spondent. - 1 ' • '' ' ruary 22, 1984. Michael Greenan Jr. is 19 years old. Both ' Mitchell -is the one' who- told Greenan to' lay off the persons have been, employed continuously by the Em- employees named' above. With regard to the decision to ployer at the time of the • trial -in, this proceeding on lay, off those employees on February -28, 1984, Mitchell August -7 and 8, .1984., The parties stipulated that Michael testified: "-I was in' Virginia at `the' time and' the whole Greenan- Jr., who is Michael Greenan's son, was hired by • bottom just turned up and the coal got real low.' It went the Employer for,personal reasons, and those reasons from like 6'fo6t to 4 foot. And the financial situation that were not discriminatory. The parties also stipulated that' miner. ; we were in, the ' production that we were facing, ' we Michael Greenan Jr. is not an experienced t Greenan said that an employee of theCompany-named two -we shifts- h to d one e shi cutftback. So; I had to cut back' from Wayne Douglas highly recommended Rick Blackburn; two shift." for employment with the Company. Thomas ,also told. Greenan informed the day-shift employees of 'the Greenan that Blackburn - was a, good, employee. and a layoff about 4:20 p.m. on February 28, 1984. The cotiver- good utility man., In, the opinion of Greenan,,Blackburn . sation" took place in the Company's office. Present" were: was better suited to the Company's ' employment , needs Greenan; Thomas, Oveson, Olson, and `Sherman. Thomas' than, was Shoemaker. 'Greenan said_ that Blackburn's-pri- testified: '"Mick [Greenan], told"'nie and' Jerry [Oveson] that' we' understood' rthat' • the company was having a in job, was a, shuttle cat operator. In the opinion of, , , Greenan, Blackburn' is "by-far more competent; to per- rough go of it, that he had ;called -us back to work a. form the shuttle car operator's job than 'is Shoemaker. In Week too early, add - that ihey 'was 'having' a financial: Greeian's opinion, , Shoemaker had to be _ 'shown each ' problem at the time. We asked him when we could `con it could be 'from 2 step'of each job and' the instruction 'process-had'to lbe re- sider -tieing'called'back and' he said, peated the next -day ' if Shoemaker' was to' perfor' the days to ' 2, :week's." Chuck Olson ,and Gordon Sherman same' job."Greenan testified,' "He could tnot take ft upoii were riot laid off by the Employer., himself to learn' something new."'Greenan' gave as, an ex- ample the freezing of water in the hose from the' pump 93 The foregoing is based on-the testimony of Greenan - to the roof-bolter. Greenan had to explain to Shoemaker 34 The foregoing is based on the testimony of Thomas 3s The foregoing is based on the testimony of Oveson. 36 It is not alleged by the General Counsel that the layoff of these em- 32 The foregoing is based on the testimony of Mitchell ' . - , ployees on February 28, 1984, was an unfair labor practice GENWAL COAL CO Greenan informed the second-shift employees of the layoff about midnight on February 28, 1984, in the com- pany office. Present were: Greenan, Shoemaker, Tuttle, and Fillmore. Tuttle testified: . Mick just took some envelopes out of his pocket and said, we're going to have to lay you guys off again. I just kind of laughed, - and said,, you're joking. He said, no, I feel bad about-it,-but he says, we're going to have to lay` you off. And I said, well, why are we being laid off this time? He said, well, we've hit this rock roll and we need to see where we stand with it, and where we're going to go from here. And I said, well, you know, I just asked you to tell us the reason . I felt like we weren't given a reason for being laid off before, and I just asked him to be honest with us if there was another reason. He said, no, as far as he,knew, that was the reason . I asked him if and when we would be called back. He said we would be called-back in 2 or 3,weeks,at the most. So we just-left from there. Based on the testimony of Mitchell, Greenan, Thomas, Tuttle, Oveson, and Shoemaker, I find that the Respond- ent never'reprimanded , any of those employees for taking, coal; for taking , long lunch hours; . for, quitting work early; for burning stakes; or for burning diesel fuel. G. The Events in March 1984 During March : 1984, Oveson made three attempts in person and two attempts by telephone to: contact Mitch- ell.37 Oveson did, so because he wanted his job back- with the • Employer.; Near the; end of March 1984, Oveson went to the company office, and he asked the secretary if Mitchell was in. She - replied that Mitchell was not in, and ,that he did,not know, when he would be in. -Oveson asked her to tell Mitchell that Oveson had been there, and the secretary wrote down Oveson' s,name and telephone number. ,, - A couple of days later, Oveson telephoned the compa- ny office, and the secretary informed Oveson-that Mitch- ell was not in the office, and she did not- know, when he would be in. Oveson asked her to inform -Mitchell of his telephone call. In mid-March 1984, Oveson made a second visit to, the company office to see Mitchell. His wife ,was with ,him on 'that-occasion. r Oveson asked .the secretary- whether Mitchell , or Greenan was' in, ' and she said no., Mrs.,, Oveson filled, out two,job applications for herself while theywere at the company. office.!Oveson asked the sec- reItary 'to, tell'Mitchell that he -had been in , the office to, see him. . .Two or 3 , days later, Oveson onceagain telephoned the company office, and he asked if Mitchell was,in.'The secretary replied that Mitchell ' snot in, and she did, not know when Mitchell would be in the office. Near the end of March 1984, Oveson and Thomas'to= gether went to the company office, and they asked the secretary if -Mitchell. was in. She again replied -that ^. U 37 The following is based on the testimony of Oveson 539 Mitchell was not in , and she did not know when Mitch- ell would be in the office. Oveson and Thomas then left. Also near the end of March 1984, Oveson and Thomas visited Fillmore's house around noon one day . Oveson and Thomas asked Fillmore what was going on, why was the Company hiring employees - and not hiring back Oveson and Thomas. Fillmore 's only response was that -he did not know. -Carla Beckstead , who formerly was the Company's office secretary, and 'who was a witness at the trial in this proceeding, recalled that Oveson `came in the office the first of March by himself; around the middle of March by himself; and around the last of March with Ted Thomas. On each occasion, Oveson inquired wheth- er Greenan or Mitchell was in , and upon being told that they were not there, Oveson requested that Beckstead take a message that he had been there . Thomas made a similar request during his visit with Oveson to the office. In addition, Beckstead • said that Oveson had telephoned the Employer's office several times during the month of March, and that Oveson had left similar messages with her. Beckstead communicated all of those messages to Mitchell and to Greenan. According to Mitchell, he was in Virginia on his birth- day which is February 25, and also he was in Virginia at the,-time of the February 28, 1984 Payoff. Mitchell testi- fied,, "It was sometime up in the first part of. March when I came back. I cannot give you an exact date. It was probably after the first week of March." At another point Mitchell said with regard to his return to Utah from Virginia, "It was in the first part of March." In her testimony, Beckstead , like Mitchell, also was not precise as to the date of a conversation one afternoon in the Company's office at which Beckstead, Mitchell, Gent, and Greenan were present. At one point she indi- cated-that the conversation took place "the last of Febru- ary, first of March." At another point, she indicated, "It had to have been around the first of March." At still an- other point she indicated that conversation "was, around the -end of February or the first of March." Beckstead also testified that the conversation would have occurred right :after payday. Since March 2, 1984, would have been the 'payday referred to after the February 28, 1984 layoff, I find that the, conversation was after the date and before `the middle of March when Fillmore came in the office and talked with Mitchell and Greenan Beckstead [said "that she was not -aware of the Compa- ny's'reason for the employees being laid off on February 28; 1984. -As, a result, Beckstead asked-Mitchell in their conversation in• the company office in March 1984 if Oveson; Tuttle, Thomas, Fillmoie, and Shoemaker were to be hired back by the Company. With regard to Mitch- ell's reply, Beckstead testified, "[H]e said no, that there had been a problem [that] 'had occurred at the mine, that these ` guys had tried to organize -a union, and they were not, to 'be hired. back." Beckstead further testified, "He then said that these 'men that I had asked about were good workers and that this' was strictly between us, not to take it out of the office." Beckstead further testified that Gent then stated, ""Yeah, this was between us. Let's 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not discuss this-with anyone." Beckstead also testified that Greenan said, "Don't take this out of the office." During cross-examination by the attorney for the Re- spondent, Beckstead acknowledged that she- had not asked Mitchell, Greenan, or anybody on February 3, 8, or 28, 1984, whether the employees who had been laid off on those 'dates were going' to be recalled to work. She did inquire as to what she should put on their "blue slips." On each layoff occasion,'she was told to put "laid off." What prompted'- Beckstead's, inquiry_- to Mitchell during 'that conversation in March -1984 were the inquir- ies which had been 'made to Beckstead' by Tuttle's wife, Oveson's' "wife, and by Oveson: The' wives had come in on Friday, March 2,'19841-'to pick'up' the paychecks from Beckstead. She acknowledged at the ' trial that her con- versation with Mitchell- took place before • Fillmore came in the office around the middle of March 1984. . - The findings 'of fact regarding this conversation in the Employer's office _are based on the credited"testim" on"y of Beckstead: -I have considered the fact that Beckstead sub sequently was laid'-off'from work'on March-4, 1984, by the'Employer.'(See'sec: H herein`) Duffing-her direct ex- amination by- the General Counsel, Beckstead -candidly acknowledged at the trial that she disliked the Respond- ent for laying her off from work. However, she said that, even 'though she `felt =that way, she would not fell a lie under oath-in' order- to^ get even with 'the 'Employer,' and she asserted that 'she 'had told 'the truth . During her cross-examination °by the ` attorney ' for the Respondent, ,she acknowledged, that- she did not 'like"being ' laid off be- cause she needed "a job; and'she did not=like the Conipa- ny'very much for laying her-off from••work:"•She''ex- ' plained at the 'trial`- the • circumstances` which -"resulted in "her giving an'affidavit'to the'Board : (See1sec;'H -herein.) Based on- the foregoing and also' based 'on°'thecredibility factors 'I''have previously mentioned, •I' have credited Beckstead's testimony: I 'have not credited 'the testimony of others inconsistent with- her account.' That"includes that testimony of Mitchell , Greenan, "arid Charles H. Gent''Jr•:;who owns 10 percent of ,the shares of-stock of the Respondent, and who is a son of Bud'Gent;'whd-also is one , of the owners of Respondent. Around March - 14, -1984, -'at - 5 p.in. ' Shoemaker "had a conversation with Mitchell ' in the Company's ioffioe.38 Wanda 'Gent also was present:' The conversation -lasted 'approximately ' 10 'minutes . "" Shoemaker, told-Mitchell -that F he had, been' job hunting, and he 'had foiindout• froid'an- 'other. coal -company - that- the Respondent • liad = signed a contract -for the sale :of'coal at the first of the' year: Shoe- maker told Mitchell that the other coal, company was very : surprised ' that' there -would be any , laid - off. by the Employer because of the contract that the -Employer had signed . '=According' to' Shoemaker, : Mitchell replied-, that he did not- know: about ' it, and -he wanted -to know :where Shoemaker had heard that . Shoemaker told Mitchell''that he-had - heard . it at,.the Safeco ,Coal,Company . Shoemaker then asked Mitchell what was -pending : on this-,,being called backs to work . Mitchell said that Shoemaker would have to talk to Greenan and . to clear with 38 The following is based on the testimony 'of Shoemaker Greenan first because Mitchell-had turned everything over to Greenan. Shoemaker also testified: - ' - And so I told Harold [Mitchell] at that time that I was not one of the Union instigators while I was working for the company, that I'had steered clear of the union while-working for the company, and he said at the time; "I'm glad that you did tell me this, because up until- now we didn't know where you stood regarding the union." And' so 'a'gain, he referred' me-he said, -"You go to Mick [Greenan] and talk to him, refer it through him." Shoemaker acknowledged at the trial - that he did not reveal to Mitchell in that conversation that Shoemaker had signed ' a union authorization card on February 10, 1984.- Introduced into evidence -as Respondent's Exhibit 4 was a copy of the affidavit-which Shoemaker had given on June 5 , 1984, to an NLRB agent. He acknowledged during cross-examination by the attorney for 'the Re- spondent that the affidavit was-iruthful-to the best of his knowledge,' but that this affidavit did- not 'contain every- thing because "I just did not think of it-at-the time." The part of the conversation quoted above 'from Shoemaker's trial, testimony is not ' included in his affidavit . Shoemaker _ said , he- gave the • affidavit at the -Old Homestead 'Restau- rant in - Huntington ' in approximately -30 -minutes. 'The NLRB agent told Shoemaker that he was behind in his schedule, and that he' was in 'a 'hurry to get -back to Colo- rado.- See the earlier comments made with 'regard to mat- ters which are not contained in a pretrial 'affidavit. About 9 p.m. that- same `day; Shoemaker spoke with Greenan at' Greenan's'house: Greenati's wife `and Baugh- ter' were - 'in- 'the - 'living '- room ' 'while 'Shoemaker 'and Greenan were in the kitchen: "In' Shoemaker's opinion, his' conversation' with' Greenan' could' have been' over- heard by-Mrs.- Greenan and: the daughier Shoemaker said the' conversation lasted approximately 15 minutes. Shoemaker told 'Greenan that he had been job hunting; that he. had found out from another coal company that 'the ' Employer ' had signed a contract to' sell coal at the " firsf of'the year; that the lack of,a contract had been the reason why they had been laid off; and he asked could they, come- back now. Greenan'replied- that he did not know about, the contract to sell-coal, and thai,he did not have anything for Shoemaker. Shoemaker said he had been to'see Mitchell, and Greenan replied that he knew `about •it:'Slioemakei" told Greenan=ttiat'Sh'oemaker had not been one ' of the "union" `instigators"' while he was Working ' for 'the Company. ' According to - Shoemaker, Greenan 'replied;-""Well, -I' understood' thaf"you were." Greenan then asked Shoemaker if hie'had 'signed• a union card. Shoemaker answered -that he had. According to Shoemaker Greenan said; "I heard'`you' did, but that is not 'wh`y, you; were laid 'off." According to Shoemaker, Gr'eenan`'then' told' him, "Now, 'you realize 'tliat if this question is e'ver' brought up' by anybody, that I'm going to deny this conversation about the union " Shoemaker `testified that Greenan lso` told him, "h done you guys a '`fa'vor -by liiring you," and then, "you -guys stabbed me in GENWAL COAL CO. the back." Greenan named Thomas, Oveson, Tuttle, and Shoemaker as the ones who had done this. Greenan also told Shoemaker that he had seen them in Shoemaker's ' truck. at the B & K Stop and, Shop. Shoe- maker told Greenan about the meeting at Thomas' house and they got in Shoemaker's truck'to avoid having to drive two or three 'vehicles to Huntington.. Greenan then asked Shoemaker about coal being taken by the afternoon shift employees. Shoemaker replied'that he had helped Oveson haul a load of coal, and that was the, only one he had witnessed on the afternoon shift. Greenan said that Shoemaker had not been on the after- noon shift the entire time Greenan then told Shoemaker that there was a contract that they were working on and that it would be a good deal for the Company.Greenan told Shoemaker to contact him'on Tuesday. When Shoemaker came back to see Greenan on Tues- day, Greenan told Shoemaker, -"I have nothing for you." Shoemaker asked why they were laid off and told that they, would be recalled in a week or 2 weeks, and the Company had hired other people, in their place. Accord- ing to Shoemaker, - Greenan told him, "He .said, things were different then." Shoemaker asked- if there had' been anything about his job performance; was he dissatisfied with him; what was the reason because Shoemaker, .felt he had a' right to know. According to . Shoemaker, Greenan's reply was, "He said it was not any. of these things, that he did -not have anything for,me at that time." - Around the middle. of March 1984, 'Beckstead over- heard, a conversation between _ Mitchell : and 'Greenan. The conversation took ,place during,an afternoon in the company office.. No one else was, present., Beckstead said that Mitchell and Greenan were discussing whether or not they, should.have Fillmore •comein, the office and talk.with them. They said the' felt. they needed Fillmore at ' the mine' mainly for .electrical , .work.,, Mitchell then asked Beckstead for Fillmore's telephone umber,, and he made a telephone call. About '30 to,45 minutes later,'Fill- more appeared at the office Beckstead testified; Okay. Harold-. [Mitchell] and Mick [Greenan] 'went on to - tell •, Blaine [Fillmore] - that they 'were' Icon- cerned on hiring him back, but only'under ' one'cir- cumstance could he be hired ' back, and that :was that he would come to work as an employee` for Genwal'and that there would ` be no more'pi•oblems as to orgamzing 'a union.' '^ ` ' - _ + . iii Blaine ,[Fillmore ; then said' -.that yes, he, would come - back , and _do, ithe best he could - for.,Genwal,- that ,there . would ., more-problems with ; his trying to organize a- union, that' he: would not; even bring, up the` union ,word. YQ. What happened next? A.' , Then . Blaine ' [Fillmore] began r to ; cry, and ;asked Mick [Greenan] and Harold [Mitchell] ,if. they could continue - their conversation outside, which they then went outside 'And 5 to 10 minutes later, I got a phone call for Harold [Mitchell]. Sc, I -went out and',got Harold '[Mitchell] . 'He came in and .an- 541 swered his phone call. Maybe about 5 minutes later 'Mick-Greenan came in the office. Beckstead said that after Greenan came back in the office he told her that she was to put Fillmore back on the payroll. The foregoing is based on the credited', testimony of Beckstead for the reasons which have been indicated ear- lier. I have not credited , the testimony . of Mitchell, Greenan, and Fillmore who gave accounts which are in- consistent with Beckstead's testimony. However, as to 'what occurred after they stepped outside the office, and outside of Beckstead's hearing, I have relied on Fill- more's account of .what was said just between Fillmore and Greenan outside the office. That version follows. According to Fillmore, Greenan asked him whether Fillmore had anything against Greenan. Fillmore said no. Greenan then, asked Fillmore whether he had anything against the Company. Fillmore again replied no. Greenan said. he knew. about a lot of the things that were going on, at the mine. Fillmore responded. that Greenan prob- ably did. Greenan asked if Fillmore could give him- Fill- more's support in going back to work and doing his job as best as he could. Fillmore replied that he could do so. .Gieenan said if Fillmore could, then Greenan would rehire him.. Fillmore, also told Greenan about the long lunch periods and about the employees leaving early, but Fillmore 'did not say anything about employees taking coal from the Company. Fillmore said he volunteered in- formation about, union activities to Greenan. Fillmore testified,. "I told, Mick [Greenan] then at the time how far .the union had progressed, And who I knew of that had signed,cards.", Fillmore specifically mentioned the names of Thomas ,and Oveson with regard to their union activi- ties. He testified,that he told Greenan "that I thought they,were the' two, ahead of the union -and they ap- proached me. What I mean is, I thought they were the two that was pushing the union the most."3s At.,the trial, Fillmore explained his reason for telling Greenan about Thomas' and Oveson's union activity. He testified,, "The company had-done a favor tome, put me back to work and asked for my support. At that point, I made up,.my mind ,to give the company my support and anything that would help them." • Fillmore, also said that he told Greenan that Fillmore _• felt Thomas and Oveson were primarily responsible-for the , second . shift's long -lunch periods and for leaving work; early. -Fillmore also informed Greenan that the em- ployees had. seen an investigator-about the case; Greenan made. no comment. n Fillmore:, was- recalled, to work ' by , • the Employer around March.20, 1984, and Fillmore has worked con- :..tinuously for the -Employer since then. He was working as a mine electrician on the -afternoon shift at. the time of rial: , 'the, EiAboiit a week -later Greenan spoke again with Fill- r 'more.4° Fillmore told' Greenan that he' had sold: a ton 39 In ' his testimony, Greenan admitted that Fillmore told him that Thomas and Oveson were pushing the Union 40 The following is based on the testimony'of Greenan 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and a half of coal to one of his -relatives. Greenan told Fillmore that he would inform Mitchell of that fact, and Greenan would let Mitchell handle it from there. Fill- more offered to pay for the, coal that he had sold. Greenan reiterated that he would turn the matter over to Mitchell. Subsequently, Greenan did inform Mitchell of what Fillmore had told him. After Fillmore was recalled' to work, Fillmore ' and Mitchell had a 6onversation.4 i Mitchell said ' he asked Fillmore if Tuttle had taken, any-coal.` Fillmore replied that to his knowledge Tuttle had not taken any coal either for sale or for any other reason. Fillmore was of the opinion that Tuttle was a follower, rather than a leader, and just went along with other people to a cer- tain extent. - On March 22, 1984, Tuttle had a conversation with Mitchell about 4:20 p.m.42'Part of the conversation took place while they were standing beside Tuttle's truck and part of the conversation - took place inside the truck. They spoke for about 20 minutes. Sherman and a truck- driver were, standing about 20 feet away. The truckdriv- er was helping Sherman who was experiencing trouble with the truck. - Tuttle told Mitchell that he had heard that the Compa- ny had hired some more people and Tuttle was wonder- ing if he would be called back to work. Mitchell asked if he wanted to come back to work. Tuttle replied that had never been the question, and that he needed and wanted a job. Mitchell told Tuttle that the way the employees had been acting that he did not think they wanted to come back to-work. Tuttle asked what -he meant. Mitch- ell told him "what you guys have been trying to do." Tuttle asked what that was., Mitchell' replied that Tuttle knew, and "there's that an d what's been going on'up to the mine."' Tuttle asked what it was, and Mitchell said the employees had been.taking it easy and taking long lunches. Tuttle asked who had told Mitchell that, but Mitchell did not reply. Tuttle further testified: I said, you're probably right about work. At first, everybody was real excited about 'the mine: We wanted it to go and be a good mine, so everybody was, you know, making an extra effort. We was all putting in a little extra effort all the time trying'to get things going, but we felt like we was being taken advantage of, because we had been promised a raise and benefits for at least 3 or 4 months, and we'd never seen- any of it, so .we just 'decided you know, we'll just do our job. We won't Out in any -extra effort. We won't go- the extra mile like we had. - Tuttle also told Mitchell with regard to the lunch peri- ods that the employees, just, had.. eatem their,-lunch and talked for a minute and gone back to work. He acknowl- edged that the employees had not watched the clock: Tuttle then asked Mitchell who had been telling him all of those things, but Mitchell would not reply. Tuttle said that the employees did not want to cause any trouble, 41 The following is based on the testimony of Mitchell. 42 The following account is based on the credited testimony of Tuttle instead of Mitchell's account. but they wanted, to have. Mitchell treat them fairly and to let them know where they stood. Tuttle, informed Mitchell that Thomas, Oveson, and Tuttle had, ap- .proached Olson and Sherman about getting organized so that. the employees could approach the Company and find out where they stood. Tuttle said the next week they were laid off from work, so what were they sup- posed to think. Mitchell replied that what the employees were trying to do was all over, the county. Mitchell asked whether Tuttle wanted to ' know where Mitchell 'had heard about it. Tuttle asked' where so Mitchell re- plied that, he had heard it at the Old Homestead Restau- rant. Tuttle reiterated that they were not trying:to cause `any trouble, but they, just wanted to know where they stood with Company. Mitchell replied that Tuttle did not need the union behind him, and that Tuttle was a good worker who got his work done. Mitchell also told Tuttle that Greenan was going to be in charge .of things and that Greenan was going to decide who would be called back to work. Mitchell said that he had hired Tuttle and Shoemaker, and the he would' like to see them recalled to work, but they had to clear, it through Greenan. Mitchell suggested that Tuttle call Gieenan later and see if he would let him comeback to work. -Tuttle was recalled to work by' the Employer on March 23, 1984. Tuttle was still employed by- the Re- spondent at the tithe of the trial. On March 22, 1984, Thomas telephoned Greenan at his house.43 Thomas told Greenan that, he had heard that Greenan had hired some people at the mine. Greenan confirmed that, and then Thomas asked why he could not be hired.. Greenan replied that he had a tele- phone. call from back ' East as to who to keep on layoff and `the reasons for doing so. Thomas asked what the reasons were, and, Greenan replied that Thomas would have_to talk to Mitchell if Thomas wanted to know any- thing. , - The next day about 10:30 a.m. 'Thomas spoke with Greenan- at the company office. Charles dent also was present Thomas asked Greenan what was going on, and he told Greenan that he had heard that Tuttle was -going to, be- called back to. work. Greenan confirmed that. Thomas then,. asked why he could not be called back to Nork and he asked what was the problem. Greenan re- plied that there was a problem- after Christmas. Greenan said that the,-employees were, slowing down,and that he had to think about it for awhile: Thomas acknowledged that maybe the employees were. slowing down. Accord- ing' to Thomas, Greenan replied,, c [Y]ou were but it's probably my fault because _ you didn't have a. foreman with ' you and I didn't give you enough work to-do..' Thomas then, asked' what else • and, why were they-laid off. Greenan told him that Greenan had received, a tele- phone call from back East' and that., he had been told who to, lay off and what the reasons were. Thomas asked if it was anything to,do with the -Union, but Greenan did not say anything. Thomas asked if he had not always done his job for Greenan and whether he had not always 4S The following account is based on the credited -testimony of Thomas instead of Greenan's account GENWAL COAL CO. done a good job. Thomas asked if he had ever let Greenan down in any way. Greenan replied that if the' things he was hearing about Thomas were true, then Thomas did let him down. Thomas asked Greenan who was saying, these things and what are these'. things. Greenan did not answer him directly, but Greenan said that if Thomas wanted to know-any more then Thomas would have to talk to Mitchell: Thomas told Greenan • that he would talk to Mitchell and then Thomas left. By referring to the Company's time book, Mitchell, said that the Employer had 'six persons working for the Company during the week of March 12 through 16, 1984. Those persons were- Wayne Douglas, Chuck , Olson, Gordon Sherman, Ernesto Ibanez, Michael Greenan Jr., and Rick Blackburn. They had not been laid off on February 28, 1984, and they had continued to work for the Employer. During the week of March 19 through 23, 1984, and more particularly on Wednesday- March March 21, 1984, the Employer began hiring new employ- ees for the first time after the February 28, 1984, layoff., In addition to the :employees who had been hired or recalled previously, as of March 26, 1984, the Employer., had on its payroll the following named employees, who had been hired beginning March 21, 1984: Phillip Joley, ; Gordon Manchester, Dale Black, Bill McKugin, Lenny. Setrick, Roy Fillmore, and Blair Fillmore. Roy and,Blair Fillmore are brothers of Blaine Fillmore and -'they worked as part-time electricians for 'the Employer when - they were laid off from work at Trail Mountain. Greenan hired Dean Wilstead to 'work for' `the 'Re- spondent.44 Wilstead was working for the Company at' the time of the trial: In the opinion` of Greenan, he'is "a' relatively good hand." Greenan explained that Wilstead' would do his job and is "a little bit'self-motivated' where' he will look ahead and look for -something to do if "his' job is completed." Greenan said that he hired' Wilstead' as 'a favor to Chuck Olson, who'is-cutting machine'oper ator, loading machine operator, driller and' roof-bolter. Wilstead is the brother-in-law of Olson. Olson ='ap' proached Greenan• about hiring' Wilstead who -had -been unemployed for some time after-he -had -been terminated for insubordination at the Wilberg.Mine. H. Subsequent Events- .. „ Around April 6, 1984, in the morning, Shoemakerhad a conversation with Bud Gent in the Employer's' office:' The conversation lasted for 5 to 10 minutes. Shoernake; asked Bud Gent if they 'could come back to' work arid;'if the Company had ' a. contract' 'to sell coal;. flow it was' going. ' Bud Gent replied- that things;-were'- rough' and' were going pretty rough'-for 'them.' Bud Gerii`skid' that the Company"could not take' anybody ' on at th'ei''timeS Bud 'Gent said that' he was tliei'one-who had' given the' orders to lay off the employees 'at the"time of the layoff; and"that he 'did 'riot 'know how' the"rehire and 'calling back with the other' people had gone.`- Gent told Shoe= maker that he was' not in 'charge - of it and 'that • Mitchell' and Greenan had done whatever`hidibeen done 'to "r`ecall the employees .45 44 The following is based on the testimony of Greenan -• - - 45 The foregoing is based on the testimony of'Shoemaker' •i i 543 Thomas talked on the telephone with a reporter named: Guy Bolton of, the' Utah' Enterprise `newspaper. Thomas'said that Boltonr'asked 'hini if'he was a union'or- gaiiizer, and Thomas told him no. Thomas acknowl- edged at the trial that he had been trying to organize the employees at the Erhployei's mine, but Thomas was not a union organizer. Thomas said that the newspaper re- porter Bolton misquoted him when ' Bolton 'wrote in- his article, "Thomas denied that he was " trying to organize the union."46 Bolton did not testify 'at the trial. Oveson acknowledged that he had spoken with a re- porter from the Utah Enterprise 'newspaper, but he did not. tell the., reporter, that the Union had approached - Thomas and Oveson about- filing an unfair labor practice charge.47 Instead, Oveson had contacted Brad Reed of the Union after their first layoff and told Reed that the employees felt they had been laid off because'of their in- volvement with the-Union, 'and Oveson wondered what action could be taken. 'Beckstead's last day'of employment 'with the Respond- ent was on May 4, 1984: During the afternoon she` had a conveisatiori in the office with" Bud-Gent. Beckstead tes- tified that Gent "told me that he had some bad' news, that he was going to have to let me go, that Wanda was going to come back, that they had 'somme; legal matter's that, they' felt- Wanda should .take", care of, - and that Genwal was satisfied with, my work. During-,cross-ex- amination 'by the attorney for, the, Respondent„Beckstead said.that she-had heard rumors that Wanda Gent, who,is the daughter-in-law_of.Bud Gent, did not, in.fact, replace Beckstead. -Instead, she was told that 'Fonnie. Ware was working for the Company; and, that Beckstead• had been- fired instead of laid off from work.18 An June_ 1984,- Beckstead had': a', conversationo with Oveson who asked- her -if she: had heard- "that,there was going to be a& case."-' Beckstead ', had not heard- about.- it. Oveson also asked `her- how she felt about being laid, off." Beckstead told him that she "was a little stunned." She told'Oveson"that 'she did not` know really why-she had been laid off49 Oveson also asked Beckstead how she--felt 'about the matter. She told` him, that she did not think it•w'as fair thatthey .had` not been. hired back, and she told him,_ "they-.,were not told why they were not hired back;-" Subsequently. Oveson contacted, Beckstead and asked if she ^would• be ;willing-to give information. She itold him yes.; Thereafter,, she, did, enot, discuss the .,matter, any, fur- ther with O,veson. or, any , other .former employee of the Respondent. In July 1984, she was contacted once. again, and she voluntarily gave an affidavit to an NLRB agent in'July.:Beckstead° was not."employed:of the-time=of the oral but-'she Was'seeking employment'at-that tirne.50 .t - 98'The^foregoing basedon, the testimony of Thomas- t 41 The following is based•on thejtestimoriy of Oveson As'iioted-previ- ously Boltondid-not testify at'the-trial mahis proceeding '' - ' - 48 The foregoing is based on the-testimony of Beckstead 49 Beckstead acknowledged at the trial during cross-examination by the attorney for the Respondent that the Company had told her that they were laying her off,so they could bring Wanda Gent into the office - so,The-foregomg•isbased on the testimony ofBeckstead 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On July 2, 1984, Mitchell visited Shoemaker at his house in Orangeville, and he asked if Shoemaker wanted to come to work the next-morning. Mitchell said that in- spectors were coming in, and he needed some help to get the -place cleaned up for the inspectors. Shoemaker ac- cepted the offer. s i Shoemaker was recalled to work by the Employer on July 3, 1984. He worked on a conveyor belt in the mine. The belt is about 600, to 800 feet long. Shoemaker.shov- eled up loose coal which had spilled from the belt; greased the conveyor; _adjusted the rollers, and per- formed general maintenance on the conveyor belt. Prior to the trial Shoemaker was assigned the job of roof-bolt- ing. A rock fell on his foot and injured him. Mitchell said at the trial that Shoemaker would return to work for the Employer as soon as his injury was all right.53 Oveson acknowledged at the trial during cross-exami- nation by the attorney. for the. Respondent that' he was surprised when the Respondent recalled 'Shoemaker to work in July 1984. Oveson testified regarding his sur- prise, "Because he was not as qualified as some of the men " In the opinion of Oveson, Ibanez was less quali- fied than Shoemaker.54 - Chuck Olson became a foreman for the Employer about 2 weeks before the trial in this-case. At the time of the trial,' Bill Wallen worked as an office adminstrator at the Company's office, and Fonnie Clifton worked as a secretary in the Employer's office. Wanda Gent, who is Robert Gent's wife and who is Bud Gent's daughter-in-law, was-working at the Respondent's office at the time of the trial. Mitchell said, "She helps out all the time. Always has up to this point. Still does." At the time of the trial, the Employer had about 16- or 18 employees. s s 1. Conclusions Based on the credited testimony set forth in the find- ings of fact, I conclude from those findings that the Gen- eral Counsel has presented evidence. which establishes that the three alleged discriminatees- and certain other employees of the Employer have been engaged in union organizational activities among, a relatively small work force. Those activities included several discussions among the employees of the Employer with regard to organizing a union' at the Employer's facilities; meetings with a union organizer of the Charging Party; signing union authorization cards; and the 'meetings on the evening of February 10, 1984. Those witnesses who ex- pressed an opinion at the trial named Thomas and Oveson as being the ones who worked the hardest for organizing a union at the Employer's mine. In this con- nection, it should be noted that Fillmore told Greenan in mid-March 1984 that Thomas and Oveson were pushing the Union the most,'among the employees. While I con- clude that Thomas and Oveson were the most active em- ployees of the Employer in pursuing union organization of the Employer's work force, I also conclude that Shoe- 51 The foregoing is based on the'tesumony of Shoemaker s' The foregoing is based on the testimony of Mitchell 54 The foregoing is based on the testimony of Oveson 55 The foregoing paragraphs are based on the testimony of Mitchell maker participated in union organizational activities to the-extent of signing a union authorization card; meeting with other employees of the-Employer to discuss union organization of February 19, .1984; and taking part in other discussions about the Union with employees of the Employer. Thus, all three of the alleged discriminatees had taken part in union organizational activities at the times material herein. I further conclude that the General Counsel has pre- sented evidence that the Respondent had knowledge of the union organizational activities of its employees prior to the date of March 21, 1984, on which the employer is alleged to have commenced to have discriminatorily re- fused to recall Thomas, Oveson, and Shoemaker. As noted in the preceding paragraph, Tuttle told Greenan in mid-March 1984 about Thomas and Oveson being the most active pushers of the Union. Beckstead's testimony regarding the conversation in the company office in early March 1984 also reveals the Respondent's knowl- edge of the prounion activities of Thomas, Oveson, Shoemaker, Tuttle, and Fillmore. Shoemaker's testimony regarding his conversation with Greenan about March 14, 1984, shows that he revealed to Greenan that Shoe- maker had signed a'union card, although-he was not one of the"instigators" of the Union. The Respondent admit- tedly acquired knowledge of serious union organizational activity among its employees in February 1984 which prompted the'Respondent to seek legal advice in such circumstances. I also conclude that the General Counsel had intro- duced evidence which shows the Respondent's animus and a discriminatory motivation towards the employees' union organizational activities at the" Employer's mine. The testimony of Shoemaker concerning his conversa- tion with Greenan about March -14, 1984, revealed that Greenan stated, "You guys stabbed me in the back." That reference was to Thomas, Oveson, Shoemaker, and Tuttle, and I conclude that it referred to their union or- ganizational activities based on the context in which the statement was made. Beckstead's testimony shows, that Mitchell said that Thomas, Oveson, Shoemaker, Tuttle, and Fillmore would not be recalled to work because they had tried to organize a union at the Employer's mine, although Mitchell said that they were good work- ers. In this connection, I note that Fillmore later was re- called to work by the Respondent on the express condi- tion that there would be no more problems with his trying to organize a union. Fillmore agreed to that con- dition, and the Respondent did recall him to work. Shoe- maker was recalled-to work much later on July 3, 1984, even though the Employer had hired several new em- ployees beginning 'on March 21,= 1984. Later I will dis- cuss the General Counsel's' independent 8(a)(1) allega- tions, but - a t-this point,' it - should be mentioned that Greenan told Fillmore that, if the Union did come in at the Employer's mine, the Employer probably would have to close the mine. Some of the other evidence pre- sented by the General Counsel fell outside the limitation of Section 10(b) of the Act, but still I have considered that evidence insofar as 'it throws light on, and enables GENWAL COAL CO. an evaluation of, conduct which occurred within - Section 10(b). Tri-City,Election Co., 264 NLRB 1407, 1408 ( 1982).. In view of the foregoing summary, I conclude that the General Counsel has established a prima facie case as to the 8(a)(1) and (3) allegations pertaining to the Respond-, ent's refusal -to recall to employment Thomas, Oveson, and Shoemaker since about March 21 , 1984. I further conclude that the Respondent has not rebutted the Gen- eral Counsel's prima facie case; and that the General Counsel has shown that the reasons advanced by the Re- spondent for refusing to recall Thomas , Oveson, and Shoemaker about March 21,.1984, are preteitual reasons to hide a discriminatory motive. Wright Line, 251 NLRB 1083 (1980). See also Frank Black Mechanical Services; 271 NLRB 1302 fn. 2 (1984); and Beverly Enterprises, Inc., 272 NLRB 83 fn. 2 (1984). In concluding that the reasons advanced by the Respondent are pretextual rea- sons, and not the . true reasons, for refusing to recall Thomas, Oveson, and Shoemaker about March 21, 1984, I have considered the persuasive evidence summarized above that those employees were not recalled because of the employees' union activities. In this connection, Mitchell made an admission to Beckstead , as described above and as described more fully , in section G of the findings of fact, that the Respondent would not recall them because of their union activities . Such an admission by Mitchell is persuasive ,that the other reasons asserted by the Respondent . for the refusal to recall are pretexts. This is particularly so when Mitchell also admitted to Beckstead in the same conversation that they were good workers. As noted above, Beckstead's testimony does not stand alone, and there is other evidence summarized above which shows a discriminatory motivation. As shown by the 'findings of fact, Thomas, Oveson, and Shoemaker are experienced underground miners with years of experience . While Shoemaker was not the best miner employed by the Respondent during the time - of layoffs in February 1984, the Respondent hired sever- al additional new employees - beginning on' March 21, 1984. It was not shown that Shoemaker was so less able and'versatile than all of those newly hired employees as to' overcome the admission by Mitchell that Shoemaker was among those employees who would not be recalled because of the employees' union activities. Of course, the Employer subsequently did recall Shoemaker to work on July 3, 1984, but I conclude that fact 'does not negate any of the evidence noted above with regard to the Re- spondent's failure to recall him between March 21 and July 3, 1984. With the exception of December 23, 1983 , when em- ployees on the second shift 'had Greenan's tacit approval to leave early; and on one evening in January 1984 when Fillmore and Oveson -left •early, ^ the credited testimony shows that the employees were observing the usual working hours for_ the second shift. With regard to burn. ing substances to keep warm in the winter months, the credited testimony shows , that the employees were fol- lowing the Company's practice and not abusing that practice by burning new cat pieces or other new wood, but instead burning scrap wood, and were not abusing that practice by pouring large amounts of diesel, fuel on the fire With regard-to the lunch periods, the company 545 management and supervision had not told the employees to limit themselves to a 30-minute lunch period There- fore, their taking of 30 to 45 minutes for lunch did not violate a company rule since no specific rule of a 30- minute lunch period previously -had been established. The credited testimony also shows that the three alleged discriminatees were not taking the Company's coal and selling it. Fillmore, who was not an alleged discrimina- tee, is the one who did so, and he informed the Employ- er that he had sold coal. With regard to the slowdown and the pace of the employees' work on the second shift, Tuttle explained the reasons for the employees' dissatis- faction ' to Mitchell on March 22, 1984. According to Tuttle, the employees had been making an "extra effort" at the mine, but when they did not receive a promised raise and benefits, "[W]e'll just -do our job. We' don't put in any extra effort. We won''t go the extra mile-like we had."- Nevertheless, as pointed out in the findings of fact, the employees on the second shift completed the work which was assigned to them. Mitchell said that he knew soon' after February 3, 1984, of the alleged problems on the second-shift, yet the same employees were recalled to work after Mitchell said that-he had learned about the alleged misconduct. No reprimands were ever given to any employee with- regard to the alleged misconduct. The only change was to put Greenan on the second shift to supervise that shift and to reassign the former second-shift employees to the day shift. The evidence does not show that there were problems after that reassignment. As noted above, the credited testimony shows that the three alleged discri- minatees had not engaged in the earlier alleged miscon- duct. For all of the reasons summarized above, I con- clude that the Respondent has advanced pretextual rea- sons for refusing to recall Thomas, Oveson, and Shoe- maker beginning about March 21, 1984. I turn now to the General Counsel's four complaint al- legations of conduct alleged to be independently viola- tive of Section 8(a)(1) of the Act. In paragraph V,a of the consolidated complaint, the General Counsel alleges: "On or about November 9, 1983, Resopndent, acting by and through Mick Greenan, interfered with an employ- ee's right to engage in union activities by warning an em- ployee to `watch out' because other employees had prob- ably signed union cards." I conclude that the evidence set, forth in section D herein shows, that the statements were made in a joking manner and the persons who were present at that time laughed. In these circumstances, -I conclude that the statements were not coercive. There- fore, I recommend to the Board that the allegations in paragraph V,a, of the General Counsel's consolidated complaint be dismissed. - . - In paragraph V,b, of the consolidated complaint, the -General Counsel alleges: "On December 10, 1983, Re- spondent, acting by and through Mick Greenan, threat- ened an employee that if the Respondent's, employees se- lected union -representation, Respondent would close its operations." Based on the findings of fact set forth in section E herein, I conclude that Greenan told Fillmore that, if the, Union did come in at the Employer's mine, the Employer probably would have to close the mine. 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The'' statement was made in the context of promising Fill- more increased wages . and insurance benefits if the em- ployees remained with the Employer . In National Apart- ment Leasing Co., 263 NLRB 15 (1982), the Board found that the supervisor named Lentz told an employee "[I]f Respondent's employees selected; union representation, it would fold and he was afraid they all would -lose their ,lobs." The Board held : "We.have consistently found re- marks, like those of Lentz to violate the Act because they may reasonably , be said -to have a tendency to interfere with the , free exercise of employee rights under the Act. Neither the speaker's, intent nor the successful effect. of such remarks on an employee is material .- El Rancho Market, 235. NLRB 468 , 471 (1,978). Accordingly, we find that, by telling Grochowski that Respondent would fold and that everyone would lose .their jobs if the orga- nizing - effort succeeded, Respondent violated Section 8(a)(1) of the Act.", - In paragraph V, c, of the consolidated complaint, the . General Cou nsel, alleges : "On or about March„ 14, 1984, Respondent, acting by and through Mick Greenan inter- rogated anemployee by asking him if he had signed a union card.", As set forth in the findings 'of fact in section G. herein, , I conclude that Greenan asked Shoemaker if he had signed a , union card, and in the same conversation Greenan told Shoemaker .with =regard to_ union organiza- tion. al activities, You guys stabbed , me in the back." In its decision'in , Rossrriore House, 269 NLRB '1176'1( 1984), the. Board field'at 1177 that the basic ,test for evaluation of whether interrogations violated the Act is ``whether under all of the circumstances the interrogation reason- ably tends to restrain, coerce, or interfere` :with - rights guaranteed by the, Act.'' The Board also 'pointed -'out at 1178 fn. 20; "Some factors which may, ;be, considered in analyzing alleged interrogations , are:. (1) the background; (2) the nature of the information sought (3) the identity of the questioner; and (4) the place and method of inter- rogation:, See Bourne 'v.' NLRB," 332'F.2d '47 -(2d Cir. 1964). ,T1 ese and -other relevant -factors are not to be me- chanically applied in , each case. Rather„ they represent some areas of inquiries that may be considered in apply- ing the Blue Flash test of whether under all the circum- stances the interrogation reasonably tends to restrain, coerce, or interfere with- rights' guaranteed by the Act." I conclude that the interrogation of Shoemaker as to whether he had signed a union card was coercive in the circumstances, ..although the Respondent knew at the time that Shoemaker `was` among the-'employees who were 'engaged 'in union activities . The reason is that in the same conversation Greenan said that the employees 'had stabbed him in 'the back; and I- conclude from 'the context 'of the 'conversatioii- "thatTGreenan' had reference tothe. employees-who.had engaged-in union- organization :activities. .'See= International,Filling Co., -271 "NLRB 1591 at fn. 2 (1984), where a threat was made in, the same'con- -versatiori in - which: the- -interrogation in,-that case - had taken place . In the > instant case; :I also find- that interroga- tion to- be coercive in-the - context of Shoemaker.-being a laid-off employee who. was seeking in this conversation to have the Employer recall him to work. In paragraph V,d, of the consolidated complaint, the General Counsel alleges: About March 22, 1984, Re- spondent, acting by and through Harold Mitchell, in -a conversation with an employee, threatened an employee .with refusing to rehire him because of his union activi- ties, threatened economic repercussions to employees be- cause they engaged in union activities and created the impression of surveillance of employees' union activities. As set forth in the findings of fact in section G herein, I conclude that the evidence does not support the General Counsel's allegation in this respect. There was no overt threat made, and the reference made by Mitchell was to the Old Homestead Restaurant, which is a public place.'I cannot ignore the fact that the, employees chose to meet in two public places on the evening of February 10, 1984, after leaving Thomas' house. Therefore,'I conclude that Mitchell's reference to the' Old Homestead Restau- rant as a source of his knowledge does not meet the test of "creating the impression that he had sources of infor- mation about their union activity." American 'National Stores, 195 NLRB 127 (1972).-Accordingly, 3 recommend to the Board that the allegations in paragraph V,d, be dismissed . - - ' - - - ' CONCLUSIONS-OF LAW - 1. The Respondent is an employer engaged' in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Charging Party is a labor organization within the' meaning of Section 2(5) of the Act. 3. The Respondent has engaged in unfair labor prac- tices'within the meaning of Section 8(a)(1) and (3) of the Act by: refusing, to recall to work Ted R. Thomas, Jerry L. Oveson,,and Don Shoemaker since about Maich 21, .1984, because' of, their union activities or other protected concerted activities.- .4. The Respondent ;has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act by: (1) threatening an employee that, if the Union did come in',at,;the.,Employer's -mine, the Employer probably would have to close the mine, in the context of promis- ing increased .wages and insurance- benefits if the employ- ees remained with the Employer;. and (2),questioning an employee about--whether he had signed a union card in the context of telling the employee with regard to, em- ployees' union organizational activities that the employ- ees had stabbed him in the back, and in the context of a laid-off employee seeking to have the Employer recall him to em ployment. ' 5. The Respondent has not engaged in the unfair labor .practices alleged in paragraphs V,a, and V,d, of the Gen- eral- Counsel's consolidated complaint in this proceeding. 6.. The., unfair labor, practices, described above affect ,commerce within the ;meaning ,of Section .12(6) ;and (7) of the Act. THE REMEDY' Since I have found that the Respondent has engaged • in, unfair labor' practices within : the, meaning of, Section 8(a)(1) -and (3) of the Act, 'I shall recommend to , the Board that the Respondent be ordered to cease and desist from engaging in such unfair . labor practices; - I shall recommend to the Board that the Respondent be GENWAL COAL CO. ordered to take certain affirmative action in order. to ef- fectuate the policies of the Act. ' Because Shoemaker was recalled to work by the Em- ployer on July 3, 1984, I shall not recommend that the- Respondent be required to offer...reinstatement to him. . Backpay is to be computed in. accordance with the Board's decision in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest on such'backpay to be computed in accordance with the Board's decision in. Isis Plumbing Co.; 138 NLRB 716 (1962); Florida Steel Corp., .231 NLRB 651 (1977), and Olympic. Medical Corp.,, 250 -NLRB 146 (1980). - - In accordance with the Board's decision, in -Sterling Sugars, 261 NLRB 472 (1982), I shall recommend to the Board that an expunction remedy be included in the re- medial order. . Pursuant to the Board's decision in Hickmott Foods, 242 NLRB 1357 (1979), 1 shall recommend to the Board that a narrowly worded cease-and-desist order, as distin- guished from a broadly worded one, be imposed in this case. . On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed56 ORDER The Respondent, Genwal Coal, Inc., Huntington, Utah, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recall to work employees because of their union activities or other protected concerted activi- ties. (b) Threatening an employee that, if the Union did come in at the Employer' s mine, the Employer probably would have to close the mine, in the context of promis- ing increased wages and insurance" benefits if the employ- ees remained with the Employer. _- (c) Questioning an employee about whether he had signed a union card in the context of telling the employ- ee with regard to employees' union organizational activi- ties that the employees had stabbed him in the back, and in the context of a laid-off employee seeking to have the Employer recall him to employment. (d) In any like or related manner interfering with; re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which will ef- fectuate the policies of the Act. ' (a) Make whole Ted R. Thomas, Jerry L. Oveson, and Don Shoemaker for their monetary losses, including ap- propriate interest ' on' such money, which has resulted from Respondent's refusal to'recall them to employment commencing about March 21, 1984; in accordance with the provisions described in "The Remedy" section of this decision. 56 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 ' 547 (b) Offer immediate and full reinstatement to Ted R. Thomas and Jerry L. Oveson to their former positions of employment, with the Respondent, without the loss of their seniority or other,benefits, but if their former posi- tions of employment no . longer exist, then offer them substantially equivalent-positions of employment with the Respondent, without the loss of their seniority or other benefits. . (c) Preserve and, on request , make available to the Board or its agents for'exa'mination 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 backp'ay due under the terms of this Order. (d) Remove from the Employer's files any references to, the refusal to recall to work Ted R.. Thomas, Jerry L. veson, and Don 'Shoemaker commencing about March 21, 1984, and notify each one of them , in writing, that this has been done, and that evidence of the Employer's refusal to recall them on or about March 21 , 1984, will not be used as a basis for future personnel actions against them. (e) Post at its facility at Huntington, Utah, copies of the attached notice marked "Appendix."67 Copies of the notice, on forms provided by the Regional Director for Region 27, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 69 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to recall to work employees be- cause of their union activities on behalf of the United Mine Workers, of America, or any other labor organiza- tion, or. because the employees have engaged in other protected concerted activites. .WE WILL NOT threaten an employee that, if the Union did come in at our Company's mine, our Company prob- ably would have to close the mine, in -the context of promising increased wages and insurance benefits if the employees remained with our Company. 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ' WE WILL NOT question an employee about whether he had signed a union card in the context of telling the employee with regard to employees' union organizational activities that the employees had stabbed us in the back, and in the context of a laid-off employee- seeking to have our Company recall him to employment. WE WILL 'NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by the National Labor Relations Act. WE WILL offer 'immediate and full reinstatement to Ted R. Thomas and Jerry L. Oveson to their former po- sitions of employment with our Company, without the loss of their seniority or other benefits, but if their former positions of employment no longer exist, then WE ployment with our, Company, without the loss of their seniority or other benefits. WE WILL make whole Ted ' R. Thomas, Jerry L. Oveson, and Don Shoemaker for their monetary losses, including appropriate interest on such money, which has resulted from our refusal to recall them to employment commencing about March 21, 1984. WE WILL expunge from the company files any refer- ence to the refusal to recall Ted R. Thomas, Jerry L. Oveson, and Don Shoemaker commencing about March 21, 1984, and WE WILL notify them, in writing, that this has been done, and that evidence of the refusal to recall them commencing about March 21, 1984, will not be used as a basis for future personnel action. WILL offer them substantially equivalent positions of em - GENWAL COAL Co., INC.