Lovilia Coal Co.

1358 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tom Wignall, Jr. and Billie Williams d/b/a Lovilia Coal Company and International Union, United Mine Workers of America. Cases ` 14-CA- 16446, 14-CA-16671, 14-CA-16801, and 14- RC-9695 . 31 July 1985 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN DOTSON AND MEMBERS _ HUNTER AND DENNIS On 31 December 1984 Administrative Law Judge William F: Jacobs issued the attached - deci sign. ' The Respondent filed -exceptions and a sup- porting brief, and the Union filed an answering brief. V The National Labor Relations Board has delegat- ed its authority in this proceeding to a three-- member panel. - 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,' and conclusions only to the extent consistent with this Decision and Order. - ' In' this consolidated unfair labor practice and representation case proceeding, the judge- found that the Respondent had committed many viola- tions of Section 8(a)(1) including coercive interro- gations, threats to discharge employees, and threats to close the mine. The judge further found that the Respondent had violated Section 8(a)(1) and (3) by discharging employees Troxel and Reed, and by. re- ducing. the position and job responsibilities of em- ployee Thompson. The array of violations found spanned a period of time prior to the filing of the representation petition, continuing through the crit- ical period of the election, and following the elec- tion.2 With respect to' the representation issues, the judge found the Union's objections to the election meritorious because they were coextensive with certain of the unfair labor practices he had found. On the other hand, the judge found the Respond- ent's objections without. merit and he recommend- ed they .be overruled in their entirety. The judge further recommended that the challenges to the ballots of three employees be sustained and that-the challenges to the ballots of, four employees be ' 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 dlear 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 The results of the election held on 28 April 1983 were 14 votes for the Union, 10 against the Union, and 7 challenged ballots The challenged ballots were sufficient in number to affect the outcome of the election overruled and that their ballots be opened and counted. The judge directed that should -the re- vised tally show that the Union had won the elec- tion, a certification of representative should issue and that should the Union lose that a second elec- tion be conducted. We agree with the judge's disposition of the challenged ballots of Thompson, Lee, and McGre- gor to which there are exceptions; the Union's ob- jections; and the unfair labor practices except as noted below. However, we find merit in one of the Respondent's objections which the judge recom- mended be- overruled. As we have found merit in both the Union's and the Respondent's objections, we shall not order the ballots be opened but shall direct a second election. 1.- Contrary to the judge, we find merit in- the Respondent's Objection 5. We find that the threats of physical abuse and property damage which oc- curred here during the critical period created an at- mosphere of fear and reprisal which rendered a fair election impossible. Thus, the record shows the fol- lowing incidents occurring shortly before 'the elec- tion. - Between 1 and 3 weeks before the election, em- ployee Bullock, in the presence of several employ- ees gathered in the Respondent's bathhouse, said that there would be union men on the road to the mine on-the day of the election. When employee Alman countered that if any of them got in his way he would run them over, Bullock retorted that, if Alman did so, Bullock would kill him.3 In a second incident involving Bullock at the Respond- ent's bathhouse, some weeks prior to the election Bullock looked out the bathhouse window toward the shop and mine entrance and said,-in the pres- ence of employee Johnson and other employees, "If this place doesn't go union . . . I'll blow it up myself." On another occasion, Johnson overheard an -unidentified, person say that "if the mine doesn't go union, everybody ought to buy :locked gas caps because there'd be trouble." On the day before .the election, employee Bregar had a conversation with employee Thompson while both were riding into work- together.4 Thompson told Bregar that he had heard a rumor in a bar that there would be "six or seven hundred guys out there the day of the election and if we didn't vote for the Union, they'd blow it up." 3• This version of the incident is based on the testimony of employee Davis whom the judge "tend[ed] to credit " Another employee, Johnson, also testified regarding this incident and in his version Bullock's remarks. were even more threatening - * Bregar's testimony concerning this conversation with Thompson was not considered by the judge in evaluating the merit of the Respondent's Objection 5 275 NLRB No. 186 LOVILIA' COAL CO - 1359 Thompson added that he ran around with these in- dividuals "all the time in the bar" and that "they was a crazy bunch." Thompson also said that if the Union were voted in that he would try to be a "big wheel in it." The following day while on his way to the election, Bregar -met union official. Bishop and asked him about the presence of union mem- bers at the mine. Bishop told Bregar. that there would be a few coal miners down there but that they would not speak to Bregar or do anything and that Bregar should not be alarmed. Bishop did not address himself to the mine blowup aspect of-the rumor. In concluding that the Respondent's Objection-5 was without merit, the judge found all the inci- dents alleging threatening conduct were of insuffi- cient gravity to -warrant overturning the election. More particularly, the judge found Bullock's threats to kill Alman and to blow up the mine to be isolated. He also found that Bullock's threat to blow up the mine was apparently heard only by employee Johnson5 and so he concluded that this threat could have had little influence- on the out- come of the election. The judge also noted the ab- sence of evidence that Bullock was acting on behalf of the Union on either occasion. With re- spect to Johnson's having overheard an unidenti- fied person predict trouble if the Union were not voted in, the judge noted that these remarks could not be attributed to the Union because Johnson could not identify the speaker. The judge also found the remarks to be vague, although he did note that they could be construed- to be a threat. As noted, the judge did not consider the testimony of Bregar concerning the rumor that the mine would be blown up if the Union lost in evaluating the merit of the Respondent's Objection 5. We find that the judge should have done so as Bregar's tes- timony clearly relates to the allegations of physical abuse in the Respondent's Objection 5. Contrary to the judge, we sustain the Respond- ent's Objection 5 based on the threats to kill and to blow up the mine and on the circulating rumor that the mine would be blown up if the Union were not voted in. Because there is no evidence sufficient to establish union involvement in these incidents, the test to be applied in determining whether the mis- conduct is sufficient to set aside the election is serious nature of the threats involved here estab- lished aggravated misconduct sufficient to create an atmosphere of fear and reprisal. In determining the seriousness of a threat, the Board evaluates the nature of the threat and the surrounding circum- stances such as whether it encompassed the entire bargaining unit, whether it was widely disseminat- ed,6 whether the person making the threat was ca- pable of carrying it out, whether it is likely that employees acted -in fear of his capability of carry- ing it out, and whether the threat was rejuvenated at or near the time of the election. Westwood Hori- zons Hotel, supra. Applying this test it is clear that the threats were serious enough to create a general atmosphere of fear and reprisal' that interfered with the election. Clearly, threats to kill and to blow up the mine are on their face of a very serious nature in that they raise the spectre of. physical violence, personal injury, and death. The threats to blow up the mine would clearly affect the entire, bargaining unit. ' While the 'record specifically indicaies only 3 em- ployees.who heard of this threat in this relatively small unit of about 28, the circumstances show that it, surely was widely disseminated. We note that the rumor, of the- mine being blown up if,,the Union were not voted in had spread to a bar where it was overheard by Thompson and repeated to Bregar on '-the day before the election. Thus, the. threat to blow up the mine originally made by Bullock some weeks before the election was rejuvenated at or near the time of the election. While Union Official Bishop may have quelled the rumor circulating about a mass, assembly at,the mine on election day, whether the misconduct was so aggravated' as to - create a general atmosphere- of fear and reprisal rendering a free choice, impossible. Westwood Hori- zons Hotel, 270 NLRB 802 (1984). We find that the 5 While Johnson had testified that other employees were present when Bullock made the remark, he could not identify them, and so the judge concluded there was no evidence' that others besides Johnson had, heard the remark it has not been established that he also did so with respect to the rumor circulating about the mine's being blown up.7 In these circumstances, we find merit to the Respondent's Objection; 5. As ,we have also found merit in certain of the Union's objec- tions, we shall set aside the election and remand the representation case . to the Regional Director for,-the scheduling,of a second election., .2. We agree with the- judge's disposition of,the unfair, labor practice allegations except as noted below. ' ' The judge found- that _ the Respondent, through co=owner Williams, violated. Section 8(a)(1) by co- ercively interrogating employee Thompson, by ad- vising Thompson ' that., there would never be a union contract at''the Respondent's mine, and by 6 Member Hunter presumes the dissemination of threats in'the absence of evidence to the contrary ' In this respect , the instant case is distinguished from NLRB v Mike Yurosek & Sons, 597 F 2d 661 (9th Cir 1979), cert - denied 444 U S 839, relied on by our colleague In Yurosek, a member of the organizing com- mittee and a union officer did effectively quell the circulating rumors' 1360 DECISIONS OF NATIONAL-LABOR RELATIONS BOARD giving Thompson an ultimatum that he renounce his support for the Union in order to keep his posi- tion. The judge further found that the Respondent thereafter violated Section 8(a)(3) by reducing Thompson's position and job responsibilities. Although we agree with the judge's findings about the 8(a)(1) violations, we disagree with his finding that the Respondent also violated Section 8(a)(3). - The record shows that Thompson was employed as a cutting-machine 'man at the Respondent's Illi- nois mine in April 1982. Thompson's duties changed in October 1982 when he was reclassified as a pinner. In November of that year,- Thompson was reassigned to assist the mine manager, Lee.8 He received no wage increase when he assumed these duties. About 5 weeks after the 28 April elec- tion, the Respondent's co-owner Williams called Thompson into his office and told him that "you've been union all the way." Thompson admitted that that was true. Williams then said that he did not know what Thompson's union buddies or organizer -Bishop had done to Thompson but that they had brainwashed him somewhere along the line. Thompson responded that he was old enough to make up his own mind. Williams told Thompson that Thompson did not see a union contract there and that he was never • going to see one. Williams told Thompson that he either had to be all compa- ny or all labor, there would be no riding the fence. In the same conversation, -Williams raised the sub- ject of Thompson's job classification. Williams asked Thompson whether he wanted his pinner job back and Thompson said that it did not make any difference and that he would take it back. Williams said that he would like for Thompson to remain as "boss" because he had worked well with Lee and he gave Thompson a week to decide. After the week had elapsed, Thompson told, Lee that he would go back on-the pinner. Thompson's pay rate did not change when he returned to the pinner job, and he continued in the Respondent's employ until he voluntarily quit in January 1984. At the hearing, on cross-examination by the Respondent's counsel, Thompson agreed that he had wanted to return to the pinner job because the money he was earning as temporary mine manager was not= enough to make up for'the responsibility and possible.loss of As set out in' the judge's decision, Thompson at this time was desig- nated to be the temporary mine manager Notwithstanding this designa- tion, Lee continued to manage the mine with Thompson as his assistant Thompson 's designation as mine manager appears to have been done as a matter of expediency since Thompson then held a temporary mine man- ager certificate from the State of Illinois while Lee's temporary certifi- cate had expired when he failed , to complete the State's mine manager test The judge found, and we agree, that Thompson's status while per- forming duties as a temporary mine manager remained that of an employ- ee his mine examiner and temporary mine manager papers if something went wrong in the mine. As noted, we agree that the Respondent, through Williams, violated Section 8(a)(1), by inter alia, giving Thompson an ultimatum that he re- nounce his support for the Union in order to keep his position. We disagree, however, that the Re- spondent thereafter violated Section 8(a)(3) by re- ducing Thompson's job responsibilities. In this regard, we find that the General Counsel estab- lished a prima facie case that Thompson was reas- signed because of his union sympathies. Thus, the record reveals Williams' animosity toward the Union, and his. knowledge of and disapproval of Thompson's support for the Union. Moreover, Thompson's removal from his position as Lee's as- sistant came shortly after Williams had exhorted him to be either "all company" or "all labor." We find that these factors raised an inference that Thompson's union sympathies were a motivating factor in the Respondent's decision to reassign Thompson and reduce his responsibilities. Howev- er, we also find that the Respondent met its Wright Line9 burden by demonstrating that the Respond- ent would have reassigned Thompson even in the absence of Thompson's protected conduct. Thus, we note that- Thompson admitted at .the hearing that he wanted to return to his former position be- cause he felt that he was earning insufficient money to justify the extra responsibilities incurred as as- sistant to Lee and the risk of losing his mine exam- iner and 'temporary mine manager papers if some- thing went wrong in the mine. We note that Thompson's wages did- not increase when he as- sumed the extra responsibilities attached to his po- sition as Lee's assistant and he maintained his exist- ing wage rate when he returned to his pinner posi- tion in June 1983. In these circumstances, we find that Thompson's "reassignment" did not violate Section 8(a)(3). We agree with the judge's finding that the Re- spondent violated Section 8(a)(3) by discharging employees Troxel and Reed because of their sus- pected union activities.10 We disagree, however, with the judge's further finding that the Respond- ent, through Williams, violated Section 8(a)(1) by informing Troxel and Reed • that they were- being discharged because they had ruined Williams. The record shows that when Troxel and Reed reported for work on 21 January 1983, Williams advised them that they were being let go because 9 Wright Line. 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981) - 11 In so doing, we do not rely on the judge's finding that Thompson's reassignment is evidence that the Respondent discharged Reed and Troxel for discriminatory reasons LOVILIA COAL CO " . 1361 their work was unsatisfactory . In the ensuing con- versation, Reed asked Williams what the problem was because Reed knew that his work was not un- satisfactory . Williams replied that that was all that he was at liberty to say . Troxel told Williams that Williams had ruined him because he had gone into debt and now was fired . Williams responded that "you've ruined me, too." Williams added that "one of these days I'll tell you what went on, but I can't at this time." The two employees then left. Con- trary to the judge , we do not find that the Re- spondent violated Section 8(a)(1) when Williams advised Troxel and Reed that they were being dis- charged because they had ruined him. First, we note that Williams advised Troxel and Reed that they were being discharged for unsatisfactory work, not for ruining Williams. The subject of ruination was raised by. Troxel, not Williams and, as distinguished from Misericordia Hospital, 246 NLRB 351 (1979), and Paul's Distributing Co., 264 NLRB 1378 ( 1982), on which the judge relied, Wil- liams did , not equate involvement in union or pro- tected concerted activities with disloyalty . Finally, Williams' remarks contained no threat nor promise of benefit. In these circumstances, there is no basis on which to find Williams ' remarks to be violative of Section 8(a)(1) and we shall reverse this finding of the judge. Accordingly, we shall modify the judge's recommended Order to conform with our findings herein. ORDER The National Labor Relations Board orders that the Respondent, Tom Wignall, Jr. and Billie Wil- liams d/b/a Lovilia Coal Company, Junction, Illi- nois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees with discharge and mine closure. (b) Informing employees that they were dis- charged because they participated in union activi- ties. (c) Informing employees that the employer had recommended to a second employer that it not hire another of his own employees until after, a sched- uled NLRB election was over. (d) Threatening employees that employees who voted in favor of the Union would never work in the mines in the. area. (e) Interrogating employees concerning their union activities. (f) Telling employees that they must renounce their support for the Union in order to retain their position. (g) Telling employees that the employer will not bargain in good faith with the Union. (h) Telling employees that if they do not with- draw charges filed with the National Labor Rela- tions Board against a second employer, they will suffer unspecified but undesirable consequences. (i) Discharging employees because they engage in union or protected concerted activities. (j) In any other manner interfering with, restrain- ing, coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Make Larry Troxel and Joseph Reed whole for any losses they may have suffered as a result of their unlawful termination in the manner set forth in the section of the judge's decision entitled "The Remedy." (b) Remove from its files any reference to the unlawful discharges of Larry Troxel and Joseph Reed, and notify the employees in writing that this has been done and that the discharges will not be used against them in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copy- iiig, all payroll records , social security payment records, timecards , personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this -Order. (d) Post at its facility in Junction, Illinois, copies of the attached notice marked "Appendix."' 1 Copies of the notice, on forms provided by the Re- gional Director for Region 14, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material: (e) Notify the Regional Director in writing within 20 days from the date of this Order what. steps the Respondent has taken to comply. [Direction of Second Election omitted from pub- lication.] 11 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 " 1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MEMBER DENNIS , concurring in part and dissent- ing in part: I agree with my colleagues' adoptions of the judge's decision. I dissent from their reversals. My colleagues' reverse the judge and find that third party conduct was so aggravated as ^to create ageneral atmosphere of fear and reprisal. Consid- ering the context of the campaign and statements- a mining' operation ; no statement attributable to the Union,' one categorically denied by the Union, one in response to another employee's inflammatory remark;: all eligible employees voted without inci- dent-I am convinced the judge correctly found the statements do not rise to the level of objection- able conduct warranting setting aside the election. An incident the judge did not mention, which my' colleagues emphasize, demonstrates the evanescent nature of the statements the -majority finds objec- tionable. An employee reported to another employ- ee-that he heard a rumor in a bar-that there would be "six or seven hundred guys out there the day of the election and if we didn't vote for the Union, they'd blow [the mine] up." The Union immediate- ly denied the rumor of a mass assembly; there was no mass assembly on election day, and all eligible employees voted without incident. I decline to set aside the employees' choice on the basis of the rumor and third party conduct present here. See NLRB v. Mike Yurosek & Sons, 597 F.2d 661 (9th Cir. 1979), cert. denied 444 U.S. 839 (1979). I also dissent from the finding that the Respond- ent rebutted the General Counsel's prima facie case that employee Thompson was reassigned because of his union activity.-The evidence my colleagues cite (for example, Thompson's ' testimony that the money he was earning. was not commensurate with extra responsibilities) is not relevant to rebutting the prima facie case, 'which includes the Respond- ent's knowledge and stern disapproval of Thomp-, son's union support and statement that he had to be- ll all company" or "all labor" to remain as "boss" and he had- a week to decide. Finally, the majority adopts the judge's finding that Williams, the Respondent's co-owner, unlaw- fully discharged employees Troxel and Reed, but inexplicably • reverses the 'judge's 8(a)(1), 'finding based on Williams' statement when he discharged them that they _ had ruined him. My colleagues point to Williams' explanation, that he discharged them for unsatisfactory work. As: the majority agrees, the Respondent:. J Unlawfully discharged Troxel and Reed, it therefore eludes me how the majority can find the false reference to the employ- ees' unsatisfactory work dispels the inference the judge makes from the substance and timing of-Wil- liams' statement that they had ruined him. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States-Government The National ' Labor Relations Board has found that we violated the National Labor Relations' Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these,rights. To organize To form, join, or assist any -union To bargain collectively through representa- - Lives of'their own choice To act together for other mutual aid or pro- tection - To choose not to' engage in any of these protected concerted activities. WE WILL NOT threaten you with discharge or with mine closure because of your activities on behalf of International Union, United Mine Work- ers of America, or any other labor organization. WE WILL NOT tell you that you were-discharged because you participated in union activities. WE WILL NOT tell you that we have recom- mended to other employers that they should not hire you until after the National Labor Relations Board election is over.- - WE WILL NOT threaten that those of you who vote in favor of the Union will never work in mines in the area. WE WILL NOT tell you that you must renounce your support for the Union in order to retain your positions. _ WE WILL NOT interrogate you concerning your union activities. - WE WILL NOT tell you that we will not bargain in good faith with the Union. WE WILL NOT tell you that if you do not with- draw charges filed with the National Labor Rela- tions Board against other employers you will suffer, unspecified but undesirable consequences. WE WILL NOT discharge or otherwise discrimi- nate against any of you for, supporting International Union, United Mine Workers_ of America, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or, coerce you in the exercise of the rights, guaranteed you by Section 7 of the Act. WE HAVE rehired Larry Troxel and Joseph Reed - whom the National Labor Relations Board has found we fired unlawfully and will make them whole for any losses, with interest, which they may have suffered by reason of our discrimination •LOVILIA COAL CO - 1363 against them, and WE WILL notify each of them we have removed from our files any reference to his discharge and that the discharge will.not be used against him in any way. TOM WIGNALL, JR. AND BILLIE WIL- LIAMS D/B/A LOVILIA COAL COMPA- NY - DECISION STATEMENT'OF THE CASE WILLIAM F JACOBS, Administrative Law Judge. A hearing was held in this consolidated proceeding at Har- risburg, Illinois. on January 24-27, 1984. On March 7, 1983,1 International Union, United Mine Workers of America (the Union) filed a petition in Case 14-RC-9695 and the National Labor Relations Board,2 pursuant to a Stipulation for Certification upon Consent Election dated April 4, conducted an election on April 28 among employees of the Lovilia Coal Company (var- iously the Company, Employer, or Respondent) em- ployed at its No. 5 mine. The results of the election were 14 votes for the Union, 10 against the Union; 7 were challenged and sufficient in number to affect the results of the election. Following the election, timely objections were filed by both the Union and the Employer. Meanwhile, on January 26, the Union filed charges against Respondent in Case 14-CA-16446 On February 17 the Regional Director approved a settlement in this case Following the election, on May 5, the Union filed charges in Case 14-CA-16671 against Respondent. On May 26 the Regional Director set aside the settlement reached earlier in Case 14-CA-16446 and issued an order consolidating cases, complaint and notice-of hearing in the cited cases-and the following day issued a report on the challenged ballots and objections and consolidated the representation case with the two unfair labor cases for hearing. On June 23 the Union filed charges in Case 14-CA- 16801 and on July 29 that case was consolidated with the two earlier unfair labor practice cases and the representa- tion case with an amended complaint2 being issued at the same time Respondent filed timely answers to all com- plaints and amendments thereto, denying the commission of any unfair labor practices On December 21 the Board issued a Decision and Order Directing Hearing in Case 14-RC-9695 in which it adopted the Regional Director's findings and recom- mendations with modifications The issues in that. case are as follows Case 14-RC-9695 The Challenges- The eligibility of Floyd Mosby, Terry Thompson, John D. Lee, Sr., Gene L. McGregor, Will L. McGregor, Randall Tanner, and Johnnie R. Wilson. ' All dates are in 1983 unless otherwise indicated z Hereafter the Board The amended consolidated complaint was further amended on Sep- tember 15 and at the hearing The Employer's Objections: The Regional' Director, in his report of May 27, recommended: that all of the Em- ployer's objections be overruled: The Board, however, in its December 21 decision declined to accept,' in toto, the Regional Director's recommendations but rather directed that three of the Employer's objections be heard by the administrative law-judge in these proceedings. These three objections were numbered IV, V, and VII. IV. The Union, through its representatives, orga- nizers, and agents,-coerced employees in their selec- tion of a bargaining agent through mass assemblage immediately at the entrance to the Employer's mine and by other acts, created an atmosphere of fear which destroyed the laboratory conditions required during this election. V. The Union, through its representatives, orga- nizers, and agents,- repeatedly threatened physical abuse directed at certain employees if they did not support and vote for the Union, which illegal ac- tions interfered with the conduct of the election. VII. The Union, through its representatives, or- ganizers, and agents , immediately before the, elec- tion was conducted, caused the employees and the local community to believe that up to 400 to 500 members of the Union would appear at the plant and mine gates immediately before the election was to be conducted and remain in the area until such time as.the votes were counted, such action consti- tuting blatant interference with the employees' free choice of a bargaining representative or their right to decline same. The Union's Objections: The Regional Director, in his report of May 27, recommended that the Union's Objec- tions numbered 1 and 4 be heard by the administrative law judge in the instant proceedings . The Board, in its December 21 decision, accepted the Regional Director's recommendation. These objections allege that the Em- ployer made threats of plant closure and loss of employ- ment if the employees chose the Union as their collec- tive-bargaining representative. These alleged threats, which occurred between the filing of the petition and the election, are coextensive with unfair labor practices 6E through 61 and will therefore be considered below in the section of this decision dealing with the alleged unfair labor -practices. . • Cases 14-CA-16446, 14-CA-16671, and 14-CA- 16801 - The Substantive'Allegations Contained in these Consoli- dated Complaints:' . 6A. At various times since on or about July 26, 1982, and continuing for several months thereafter, the'exact dates being unknown to the Regional Di- rector„ Co-owner Williams threatened employees with discharge and mine closure in order to 'dis- courage their membership-in and activities on behalf of a union. 4 Numbered as per the consolidated complaint as amended 1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6B On or- about January 21, 1983, Co-Owner Williams informed employees that they were dis- charged because their union and protected concert- ed activities made them disloyal to Respondent.. 6C. On or about January 21, 1983, Co-Owner Wignall, by telephone, 'informed an employee that he was discharged because of his union activities. 6D. Sometime between February 10 and Febru- ary 17, 1983, the exact date being unknown to the Regional Director, Co-owner Williams informed an employee that he would close Respondent's mine and would not hire employees for a future mine if employees sought union representation 6E. On or about April 7, 1983, Co-Owner Wil- liams threatened employees with mine closure if employees voted a union in. - 6F. On or about April 11, 1983, Co-Owner Wil- liams advised an employee that he recommended another employer not hire an employee while the employee engaged in union activities.5 6G. On or about April 14,-1983, Underground Maintenance. Supervisor Gene McGregor threat- ened an employee with mine closure if the Union was voted in. 6H. On-or about April 14,-1983,6 the exact date being . unknown, to the Regional Director,- Co-' Owner Williams threatened an employee with, loss of his job if-he voted for the Union - 61. On or about April 26, 1983, Respondent's agent, Harry McGabe threatened an employee at the employee's home with mine closure if the em- ployees voted a union in. . - '6J. On- or about- June 4, 1983 Co-Owner Wil-' liams: ' (r) interrogated an employee about the employ- ee's union sympathies. - (ii) told an employee that in order for the' em- ployee to retain the, employee's job position and _re- sponsibilities, the' employee- must .renounce the em- ployee's support for the umori ` - -1 (iii) told an employee that Respondent would not batgam in good faith with the union 6K.7 On or about `August 17, 1983, Co-Owner ,Williams told an employee that if the employee did not drop'charges filed with the National Labor Re- lations Board, the employee would not be able to, obtain employment. ' 6L 8 -On or about August- 20, ' 1983, ' Co-Owner - Williams, in a telephone conversation, threatened an " organization ' within the meaning of Section 2(5) of the employee ' with `unspecified reprisal if 'the employee 'Act.-? did not drop 'cha'rges' filed with the National Labor Relations Board. Respondent moved to amend its answer to paragraph 6F of the com- 7A. On or about January _21,- 1983, Respondent discharged employees Larry Troxel and Joseph Reed.... 7B. ' On or about June 11, 1983, Respondent re- duced the position and responsibilities of its employ- ee Terry Thompson. 7C. Respondent engaged in 'the conduct de- . scribed in subparagraphs 7A and 7B above, because Troxel, Reed, and Thompson joined, supported, or assisted the Union, and engaged in concerted activi- ties for the purpose of, collective bargaining or other mutual aid or protection and in order to dis- courage employees from engaging in such activities or other concerted activities for the purpose of col- lective bargaining or other mutual aid or protection. The above-described challenges and the cited objec- tions and allegations together with Respondent's denials of the allegations frame the issues: Representatives, of all parties were present .and participated in the hearing and filed timely briefs. • Based on the entire record, including my observation of the demeanor of the witnesses and after giving due consideration to the briefs, I make the following FINDINGS OF FACT - 1. JURISDICTION . Respondent is a partnership jointly owned by Tom Wignall Jr. and -Billie Williams, co-partners doing busi- ness as and trading under the name of Lovilia Coal Com- pany. At all times material herein Respondent has main- tained its principal office and place of business at Junc- tion; Illinois, where it. is and has been engaged in the op- eration of a coal mine. During the year ending April 30, 1982, which -period is representative of, its operations, Respondent, in the course and conduct of its operations, sold and shipped from its Junction,'Illinois place of busi- ness goods and materials valued -in excess of $50,000 di- rectly to customers at points located outside the State of Illinois. Respondent admits and I find that Respondent is an employer within the meaning of Section 2(2) of the Act, engaged' in commerce and in operations affecting commerce within the meaning of Section 2(6) -and (7) of the Act. - . It. THE LABOR ORGANIZATION INVOLVED Respondent admits and I find that the Union is a labor i . r t III. THE FACTS A. The Challenges plaint to add to its general denial the additional defehse'of res judicata:; arguing that the issue was decided in Case 9-CA-19883 I find,-however,'t" Floyd. Mosby Mosby was first. employed by Respond- the issues'in each case to be quite different and reject this defense ent in_ or -about. May 1982; On August, 5 of that year s The date appears-as amended at the hearing while working as a roof; bolter in Respondent's mine, ' Motion to dismiss pars 6K and 6L for lack of specificity is-denied Mosby was injured in an explosion Unable to work due The incidents giving rise to the allegations in pars 6K and 6L of the complaint were fully explored at the hearing and Respondent offered ad- ditional time to prepare its position with' regard thereto 8 Ibid ' - 1 to his injuries, Mosby thereafter began receiving work- men's compensation. As of April 28, 1983, the date of the election, Mosby had not yet returned to work but LOVILIA COAL CO ' 1365 was still receiving workmen's compensation as a result of the August 5 accident. When he cast his ballot `it was challenged by the Board agent because his' name did not appear on the' eligibility list Mosby ' testified at the hearing that though not yet back to work he still considered himself an employee of Respondent, had never been advised that he had been either laid off or terminated but on the contrary had been told by Billie Williams, co-owner of Respondent, in November 1982 that he, should hurry up and get well so that he could get back to work. He testified further that at the time of the hearing there were roof bolters still employed in the mine and he fully intended to return to work in the near future , as soon as he obtained a release from his doctor. - Mosby admitted that, as of the time of the -hearing, he had never been told by his doctors when, if, or under what circumstances he would be able-to return to work in the mine. By that time it had been about 18 months since he had actually worked in the mine. • - Respondent's position is that Mosby, at-the time of the election, had no reasonable expectation of returning, to work since he had been out of work and out of contact with his employer for several months prior to the elec- tion and about 18 months as of the date of the hearing The Union argues that Board cases reflect. that employ- ees who have not worked during relevant payroll peri- ods because of illness are nevertheless still eligible to vote and that an employer is required, under such cir- cumstances, to make an affirmative showing that the em- ployee in question had either resigned or been dis- charged.9 - In my opinion, despite Mosby's testimony that he fully intended to return to work for Respondent, the facts and the probabilities do not support his -testimony. Thus, from the date of the accident until the date of the elec- tion, 8-1/2 months later, Mosby never once visited the mine to inquire whether his job was still, open or, to advise Respondent that he desired to return when phys- ically able to do so. He did not telephone nor seek to make contact for these purposes. Even when Mosby chanced to meet Williams out on the road in November and Williams told him to hurry up and get well so he could get back to work, there is no indication in the record to indicate that Mosby took'the opportunity to assure Williams that he was interested in returning to work for Respondent. - When Mosby sought to cast his ballot during the elec- tion in April, it was the first visit lie' had made 'to Re- spondent's premises in 8-1/2 months except to pick up his workmen's compensation checks. Thereafter, from April 28, 1983, until the date of hearing, January 25; 1984, Mosby still made no inquiries about his job, nor did he in any other manner indicate an interest- in return- ing to work for Respondent. I conclude that since Mosby manifested absolutely no interest 'in returning to work for Respondent between August 5, 1982,' and Janu- ary 25, 1984, a period of 17 months, he apparently had no intention of doing so, whether' or not he was phys- ically capable of doing so. He therefore had no reasona- ble expectation of returning to work for Respondent and was consequently ineligible to cast a ballot in'the repre- sentation election.'I so find. •• Terry Thompson. Thompson was first employed by Re- spondent at its Illinois mine ' in April 1982. Initially he operated a cutting machine, then a- pinner . In November of that year he was told to assist John D . Lee Sr. who was-the mine manager at-the time. In mid -December, Thompson- was made a temporary - mine manager and was given the duty of signing the record books required to be kept by the Federal Government . The new title and assignment were necessitated by the fact that Mine Manager Lee had not passed the mine manager's test and was no longer authorized to sign the books while Thompson already had an Iowa permit and on the basis of reciprocity was entitled to a temporary mine - manag- er's permit from Illinois. Though Thompson signed the books, Lee continued to do . all the recording. At the time of the election Thompson was still, the temporary mine manager on his shift and the only person eligible to sign the record books on that shift . This was the same shift on which Lee worked as mine examiner. Despite his title, -which under Illinois statutes nominally placed him in charge of his shift, Thompson credibly tes- tified that he was not authorized to hire, fire , transfer, promote, demote, nor recommend such action . Similarly, Thompson was not authorized to grant time off. or deter- mine pay increases or decreases, adjust grievances, grant time off, authorize overtime10 or commit Respondent's credit. At the time of Thompson's designation as temporary mine manager and Lee's removal from that position, Thompson received no wage increase but continued to be paid at the same rate as the rank -and-file members of the crew, i.e., $11 50 per hour. On the other hand face boss Johnnie Wilson and Mine Manager Russel Tanner received $1 50 more 'per hour than Thompson and rank- and-file employees while Lee was paid a salary of $700 per week. i i While Respondent provided Lee with a company vehicle , to drive for personal use as well as to haul parts' for Respondent this was done not as a perqui- site of his office but more as a convenience because his own automobile was kept at home in Iowa for his fami- ly's use.12 . As to actual duties, Thompson testified that .although from mid-December through the date of the election, he was the nominal temporary mine - manager, Lee actually managed - the mine on his shift. Thompson regarded Lee as'supervising him rather than the other way around. However, as assistant to Lee, Thompson not only- signed the necessary Federal and state required documents but also made out the production reports which included in- formation ' concerning downtime on equipment, where coal was cut that 'day and how , many car loads ,of coal 10 According to Thompson 's credited testimony, ' Lee decided who should work overtime and who should work or be sent home 11 Lee received no decrease in his salary at this time ' 12 Contrary to the testimony of other witnesses, Lee credibly denied B Citing Sylvania Electric Products, 119 NLRB 824 (1957), overruled that Respondent supplied 'him with' gasoline for' his personal use and 122 NLRB 201 (1958), Wright Mfg Co, 106 NLRB 1234 (1953) maintained that he used company gas to haul parts 1366 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD had been, produced;, and timesheets which indicated .where the miners on his shift had been assigned to cut coal, and how many hours each had worked. - Aside from his recordkeeping duties,,Thompson testi- fied that his responsibilities included making sure that the men were cutting coal and -.telling them where in the mine to cut the coal. He added,, however, that Lee would designate an area to cut and he would merely relay Lee's orders to the men. Thus, it would appear from Thompson's credited testimony that he was a mere conduit for Lee's orders rather than a supervisor, Art- craft .Display, 262 NLRB 1233 (1982); Humes- Electric, 263 NLRB 1238 (1982); Maidsville Coal Co., 257.NLRB 1106 (1981),-and the face boss13 or leadman on his shift who saw to it that these orders were carried out. If Lee was not around, however, Thompson would 'decide, based on his own expertise as a miner, where the 'crew should mine coal. ' - Employee Danny Newcom testified' at length - about the duties performed by Thompson and Lee and support- ed Thompson's already credited testimony that Lee was in ' charge ' and that he merely relayed Lee's orders. Newcom regarded Lee' as his boss and the individual with supervisory authority in the mine rather 'than Thompson. Another employee, Marvin Jackson, testified that 'Thompson did what 'Lee told him to do and that neither he nor the other employees consider Thompson to be their supervisor. From the above-described facts, as reflected by 'the testimony of the various witnesses and 6y, the record evi- dence in general, I conclude that, as of the date of the election, Thompson's duties were not supervisory in nature. 14 He was, I find,, contrary to the position taken by' the Respondent, an employee" within the meaning 'a Thompson, at one point, testified that he spent 8 hours of his shift walking around making sure the men were working in their-proper places and in a safe manner At another point he testified that , at the time of the election, 25-30 percent of his work was the same as that performed by the rest of .the crew while the remainder was "supervisory work" I do not, however, find Thompson' s use of the conclusionary term "superviso- ry work" controlling Rather, I find that Thompson was merely stating that 70-75 percent of his shift was spent relaying L'ee's orders-rather than participating in actual physical labor Nor do I find 'the use of the title "face boss" controlling since it is the duties performed that determines supervisory status rather than title Columbia Engineers International, 249 NLRB 1023 (1980), Saladmaster Corp, 216 NLRB 769 (1975) Thus, I find - it of little or no consequence whether or not the title "face boss" was still in use at the time of the election as Thompson testified or had been dispensed with at an earlier time as Lee and ' Williams testified - i4 Respondent argues that The Coal Mining Act of the State of-Illinois states, "'Mine Manager' is the person charged with the general direction of the underground work," and that on this basis the mine manager should be considered a supervisor I shall, however, rely on Sec 2(11) of the National ' Labor Relations Act for the definition of supervisor with ,the traditional application of relevant case law. .. is Respondent argues that Thompson , at the'time of, the'election, held the position of mine manager and that it had notified its employees that "If the Superintendent is absent from the mine site, the Mine ' Manager will act as his assistant for their respective shift " The record reveals, as noted above, that .Thompson^was only nominally the mine manager and his appointment was only temporary in nature Thus, he retained his community of interest with the rank-and-file employees and is entitled to vote Sharondale Corp, 262 NLRB 1238 (1982), Thermotd Co, 123 NLRB 57'(1959); WCAR, Inc, 203 NLRB 1235 (1973), NLRB Y Harmon Indus- tries, 565 F 2d 1047 (8th Cir 1977) - of the Act and consequently eligible to vote. U.S. Gypsum Co., 118 NLRB 20 (1957). John, D. Lee Sr. -Lee was first employed by Respond- ent's in 1958 when it was located in Iowa. Prior to coming to work at Mine No. 5_ in Junction, Illinois, Lee had been mine superintendent-under Williams at Lovilia Mine No. 4 in Iowa where he was Thompson's superior. When Lee was brought over to Mine No. 5 in Junction, Illinois,, he was generally looked upon by the rank-and- file as the superintendent, although in reality he had the title of temporary mine manager . He kept this title until November 1982 at which time he,was required to take an examination to qualify him as permanent mine manag- er. Lee, however, failed to complete the mine manager examination at this time, and for that reason was re- moved as mine manager with, as noted above, Thompson temporarily taking his place, in that position. While Lee held down the position of mine manager until November 1982 his'duties included continually checking for safety in the mine, marking the places where the continuous miner had to go, running the sights to keep the entries straight, and helping on the roadways. Lee testified that as mine manager he was, under Illinois law, fully respon- sible for the shift but nevertheless spent approximately 75 percent- of his time doing manual labor such as running the scoop, moving power-cables, hanging curtains, laying up belts, helping operate the continuous miner, driving the shuttle car, running the pinner machine, and doing all of the work done by the rank-and-file. Despite Lee's participation 'in manual labor along with rank-and-file employees, he was still looked upon as the "overseer" who told the other men where to cut coal. Before he temporarily relinquished his title of mine manager, Lee was salaried, and-for his personal conven- ience had the use of a company truck. When Thompson was 'given the -title of mine manager in November 1982 and Lee took the title of mine examiner, Lee continued to receive the same salary as before and likewise contin- ued to have the use of the company vehicle. At the time of the election Lee still held the title of mine 'examiner . His duties included making preshift safety checks on 'the amount of methane present in the mine and on the physical condition of all active working areas, ' escape ways, approaches to abandoned works, travel ways, and belt lines. Entries were made by him, in accordance with the findings, in the preshift inspection report book, for the mine manager of the oncoming shift. All this took between 50 to 60 minutes. However, in ad- dition to these mine examiner duties, Lee was still re- quired to do whatever it took to run coal. Rather than operate a, particular piece of machinery, Lee would rove through-the mine to make certain that the pumps were operating properly, that the roof and the ribs of the mine were • in good condition; and to see that the miners were working under safe conditions. He also did actual manual labor along with other employees such as hanging cur- tains, pumping water, moving the electrical cables and transformer, running the scoop machine, shoveling mud and filling car ruts with dry rock and coal. Thus, the 16 Lee left Respondent's employ June 27, 1983 LOVILIA COAL CO 1367 kind and amount of manual labor done by Lee as mine manager before November '1982 through the date of the election in April 1983 did not change materially. According to the credited testimony-of Billie Williams, Respondent's operation was a small one with only five men working on each shift, at most. Thus, although'state law required every mine to have a mine examiner and a mine manager on each shift, there were very few duties for each of these titled individuals to perform and little time spent in performing their assigned duties Therefore, much of their time was spent in performing the day-to- day work of a rank-and-file miner Moreover, Williams testified, since all of the miners were experienced , having worked in mines for' from 3 to 20 years , there was little need for supervision Lee also testified to this fact. Insofar as indicia of supervision are concerned, Lee testified that, as of the time of the election , he did not have authority to hire or - fire employees, to grant wage increases, to interview employees, to promote, demote, or transfer employees from one job or shift to another, or to change assignments . He did not attend, management meetings , did not have authority to make purchases on company credit nor adjust employee grievances. Though, as noted earlier, he had the privilege of driving a company truck, this was-done as a convenience to him since his family was still' in' Iowa and they needed his only car for family use Contrary to Lee's testimony, , employee . Danny Newcom testified that he ,looked upon - Lee as his boss and that it was Lee who reassigned him to different work when his shuttle was not operating . Thompson tes- tified that Lee would decide when equipment should' be repaired or shut down and consequently when the rank- and-file employees should be sent home. Indeed , Thomp- son testified credibly about occasions when Lee sent em ployees home when equipment broke down or'-when there was a nonproduction day at the mine 17 On idle days Lee and Thompson would sta y while the other em- ployees would be sent home. If an unsafe condition. re- quired employees ,to work overtime to correct the situa- tion Lee would determine the necessity for overtime and who should remain. Williams testified - that, due to the poor conditions, of the mine at the time of the election ,, it was necessary to make more decisions , underground about how to proceed with the mining of coal. He added that he did, not per- sonally go underground tp give these orders , but met with his mine managers in, the bathhouse , to, discuss the options as to where to, .mine ^ coal,- after . which those • in charge underground would have to use, their own judg- ment.- Since Thompson , credibly -testified that despite his .title at the time of the election it , was Lee who.told'him what to. do rather than the other, way around , I- conclude that Lee, who was =salaried18 and. earning; a great, deal more than Thompson , 19 , was ;in ;charge ,of the : shift 20 17 Where Lee's testimony differs from that 'of Thompson',' I 'credit Thompson 18 Electrical Workers IBEW Local 901, 220 NLRB 1236 (1975) 19 Illint Steel Fabricators, 197 NLRB 303 (1972) 20 Madison Brass Works, 161' NLRB 1206-(1966)-- Indeed, someone had to be since Williams spent-most of his time above grbund.21 I conclude, therefore, from-the totality of the above-described evidence' that Lee, at the time of the "election, notwithstanding his temporary switch of titles with Thompson and the amount of manual labor he performed,22 was a supervisor under the Act and ineligible 'to cast a ballot in the- representa- tion election .23 Gene L. McGregor Gene L. McGregor was employed as a "mechanic by Respondent at the time of the election. Unlike the other mechanics, however, McGregor was salaried. He received $52;000 per year, a sum consider- ably more than the, wages received by other mechanics ($11.50 per hour). McGregor had the use of, a company vehicle and gas. His hours were irregular24 depending on the need for his services. Other mechanics were re- quired to work fixed shifts. 'McGregor's denials notwithstanding, ' the evidence clearly indicates that he interviewed prospective employ- ees, hired them, approved their hire and/or effectively recommended their hire. He told at least one employee that+if he, McGregor, had `any problems with that em- ployee's showing iip'for work, that employee- would be fired. McGregor also -had' the authority to transfer em- ployees-from one shift to another and, in fact, did so on at least one occasion. Similarly,. he assigned work to em- ployees, decided which of them would work overtime or on idle days.'He was looked upon by the other mechan- ics 'as their supervisor. I find McGregor to be a supervi- sor25 -within the meaning of the Act and not eligible to .vote in the election. Will L. McGregor. The record contains little evidence warranting the- conclusion that Will.L. McGregor was, during the relevant period, anything other-than arank- and-file unit employee, eligible to vote. in the, election. Although he worked in the outside shop where he welded and repaired motors rather than in the mine where most of"the other employees worked, sometimes worked irregular hours rather; than rotate shifts,: and was salaried, he possessed -none 'of. the''indicia_' of-authority usually associated with supervisorship and did 'not super- vise anyone. I find Will McGregor,eligible io vote. , - Randall Tanner. Randall. Tanner described-himself as.a general mine worker on -the third shift at the time of -the election and testified that between 75-and190'percent of mainte- his- time was spent, doing :manual ,labor such. as.' nance work on mine machinery,, rock dusting, moving power - transformers and, conveyor - belts, and pumping. Tanner' held both" the' title of 'mine 'manager 'and mine ex- aminer. 'As mine; examiner iC was Randall's job to exam- ine, the, mine sometime during the 3-hour; period just 'prior to the following shift, and record' his .findings' in books as required by'-Illinois -Jaw'for- the use of'the on- coming mine managei. The- examination would take =11 -Hubert6 Coal Co', 168'NLRB 122 (1968), affd '408 F2d 793' (6th Cir.1]969).' 22 Little Rock Crate & Basket Co, 227•NLRB 1406(1977) 23 Maidsville Coal-Co , supra ' 24' McG'egor testified to having regular houis but also reported for work whenever equipment broke down and his particular expertise was needed 25 Gurabo Lace Mills, 249 NLRB 658(1980) 1368 DECISIONS OF NATIONAL LABOR-. RELATIONS BOARD about 1-1/2 hours and would include inspection of con- veyor-belts, escape ways, travel ways, and working areas to be used by employees on the following shift As mine manager, Tanner was , under Illinois law, responsible for his shift. This responsibility, however, was safety related rather than production related. To fulfill this responsibil- ity, Tanner made gas, roof,. and ventilation checks, and at the start of his shift inspected the entries made by the mine examiner on the previous shift and signed the books himself. If Tanner found an unsafe condition in the mine, he had authority under the law, as mine manager, to- have the employees vacate the mine, to correct the unsafe condition, and to require other employees to help him to do so. - - , Randall, at the time of the election, had no authority to hire, fire, interview perspective employees, discipline, promote, demote, raise wages, lower wages, change em- ployee's work assignments, change employee's shifts,- re- ceive grievances, or pledge company credit According to both managerial and rank-and-file witnesses, supervi- sion to the mine was generally unnecessary. The work was routine in nature and all of the employees were ex- perienced and knew, what their duties were. Consequent- ly, Tanner testified,',he gave no orders However, when particular problems arose the other employees would bring these to_ the attention of Tanner and if special projects were to be initiated at the beginning of the shift, it was Tanner who told the others where and how to un- dertake them. Such- routine decisions as to when and where to move a pump were made by Tanner To this extent other employees considered hini to be a boss. If an employee wished to leave early, he would advise Tanner of his going. Tanner ' received $1.50 per _ hour more than the other employees. Considering all the above factors, I conclude that Tanner, at the time of the 'election, was not endowed with the indicia 'of supervisorship and that the few orders he gave were of a routine nature-insufficient to warrant the conclusion that he was, at the time, a supervisor under the Act. Indeed, even while giving such orders, Tanner worked side by side with the other men to carry them out. I find therefore that the 75 to 90 per of the time he spent doing manual labor along side the other rank-and-file employees gave him a greater community of interest with them than with management and that as a rank-and-file employee in the unit he was eligible to vote in the election. U.S. Gypsum Co., supra; Maidsville Coal Co., supra. Johnnie R. Wilson. Prior to October 1982 Wilson was a face boss 'for Respondent. As face boss he coordinated the work of employees operating the coal drill, roof bolter, cutting machine, and loading machine. In October 1982 Respondent put into' operation a new continuous miner machine. This new machine did the work of the coal drill , cutting machine and loading machine so that the work was greatly simplified by requiring only the operation of the continuous miner and roof bolter Thus, fewer employees were needed at each face being mined and the need for direction from the face boss was consid- erably reduced Although Williams testified that- after October 1982 the position of face boss was eliminated record evidence clearly indicates the contrary. As of the time of the election Wilson was doing the same type of work performed by rank-and-file employ- ees. Thus, he ran the scoop, hauled supplies, and did anything necessary to keep the mine running. Ninety percent of the time he was engaged in manual labor, e.g., shoveling on belts, rock dusting, setting timbers, operat- ing the continuous miner , moving power units, hanging curtains, moving conveyor' belts, building block' stops aiid brattices, running shuttle, cars, running pinner ma- chines, setting pumps, digging sumps, laying water lines, and putting on and taking off conveyor belts. Wilson was, at the time, also the mine examiner but the duties connected with that job usually took only 30 or 40 min- utes. . . - As to indicia of supervision, according to Billie Wil- liams' credited testimony, Wilson had no authority to interview prospective employees, hire, fire,26 grant pay increases, cut'wages, promote, demote, adjust grievances, commit the Company's credit or. make purchases on behalf of the- Company on credit There is no evidence in the record to indicate that Wilson ever actually did any of these things. Although prior to the introduction of the continuous miner, Wilson ran the unit and gave orders consistent, with his job of face boss, such as where to cut coal, whether to work on a machine or shovel on the belt, or where and what to cut, after October and par- ticularly at the time of the election, he no longer ,did nearly as much giving orders as before Also, previously he had, as face boss, on occasion asked members.of his unit to stay after regular work hours to perform addi- tional tasks, and when this was not necessary advised them that it was .time to quit. He had, also, when an em- ployee was, absent, assigned a different employee to his machine Whether he continued to make such decisions as late as the time of the election is not clear from the record but appears doubtful. Although Wilson received $1.50 per hour more than other rank-and-file employees and used separate shower facilities and perhaps got free gasoline, his lack of au- thority to perform the duties usually attributed to super- visors'and the routine nature of the orders he gave when considered in light of the fact that 90 percent of his worktime, he was engaged in performing manual labor, shoulder-to-shoulder with the rank-and-file, convinces me that Wilson, at the time of the election, had a com- munity of interest with the rank-and-file employees in the unit and was entitled to vote in the election In Summary I have found that Terry Thompson, Will McGregor, Randall Tanner, and Johnnie Wilson are eli- gible to vote and that their ballots must be counted and that Floyd Mosby, John D' Lee, Sr., and Gene L. McGregor are not eligible to vote and that' the, chal- lenges to their ballots must be sustained. B. The Employer's Objections The Employer's Objection 4'asserts that the Union co- erced employees through mass assemblage at the en- 26 One witness testified that he had been told by Williams that Wilson could fire an employee if he wanted to do so In light of Williams' cred- ited testimony as to Wilson's lack of such authority. I do not credit this witness LOVILIA COAL CO 1369 trance to the mine. Contrary to this assertion, record tes- timony indicates that on the morning of the election there were approximately 15 coal miners on the road near an old abandoned garage situated about a quarter of a mile from the mine entrance and that they remained- there for about 2 hours. Evidence in the form of a joint exhibit, photographs of the area near the mine where the ,election was held, shows various pickets and union sup- porters numbering about seven present along with be- tween two and seven parked vehicles. This is no indica- tion or evidence of mass assemblage sufficient to create an atmosphere of fear or to destroy laboratory conditions as -alleged .27 Indeed, there were 31 employees listed as eligible to vote and 31 ballots cast indicating clearly that there was no interference with the election process I recommend, therefore, that Employer's Objection 4 be dismissed 28 The Employer's Objection 5 alleges, that the Union, through its representatives, organizers,- and agents threat- ened employees with physical abuse if they did not sup- port the Union. In support of this objection testimony concerning four incidents was adduced. One incident occurred between 1 and 3 weeks prior to the election. On this occasion, according to employee Dennis Johnson, several employees were gathered in the bathhouse when employee Rudy.Bullock stated that if the Company did not go union there would be trouble, that there would be guys standing along the roadside late at night. Employee Bobby Alman replied that if there were people standing in his way, he would run straight through them Bullock countered that if he did, he, Bul- lock; would kill Alman, and that "that's not a threat; that's a promise " Johnson testified that he was worried by the conversation and that the other employees who were present appeared also to be worried and scared. Ron Davis, another employee, still employed -by the Company at the time of the hearing, testified that he was present during the incident. According to Davis, several employees were gathered in the bathhouse drinking beer and shooting dice. Bullock remarked that there would be union men on the road to the mine on the day of the election. Alman, who was present, but not engaged in the game with the others commented that if any of them got in his way, he would run them over. Bullock replied that if Alman as much as touched a union man with his car, he would kill him Alman left, angrily slamming the door behind him. Contrary to' Johnson's testimony, Davis did not take Bullock's threat seriously In my opinion, regardless of whose version of the ar- gument is accepted, and I tend to credit Davis' testimony over that of Johnson, Bullock's unfortunate remarks were isolated, the discussion fleeting in nature, unaccom- panied by actual violence and therefore insufficient to warrant the setting aside ,of the election. Moreover, there is no evidence that Bullock was acting on behalf of the Union when he made the remarks attributed to him, ob- viously in the heat of argument I shall therefore recom- 27 Sewanee Coal Operators' Assn , 146 NLRB 1145 (1964) 28 Firestone Steel Products Co, 241 NLRB 382 (1979) mend that, to the extent it is founded upon this incident, Employer's Objection 5 be overruled .21 According to Johnson, some weeks prior to the elec- tion Bullock was looking out the bathhouse window toward the shop and mine entrance and commented, "If this place doesn't go union . I'll blow it up myself." Johnson testified that he was concerned about Bullock's remark. Although he recalled that there were other em- ployees present when Bullock made the remark, he could not identify any of them. There is no evidence in the record that Bullock's statement was heard by anyone other than Johnson. Since Bullock's remark was isolated and apparently heard by no one other than Johnson, it had little, if any; influence on the election Since there is no evidence that Bullock's remark was made at the behest of the Union, I shall recommend that, to the extent it is relied upon by the Company to support its Objection 5; it is overruled.30 . - The third incident that is-relied upon by the Company to support its Objection 5 concerns an incident concern- ing which, once again, Dennis Johnson offered testimo- ny. According to Johnson, while he was taking a shower he overheard "an unidentified employee say, "If the mine doesn't go union, everybody ought to buy locked gas caps because there'd be-trouble." Granting that Johnson truthfully testified to what he heard, his inability to at- tribute it to any particular individual makes it impossible to connect it to the Union.3 i Indeed, although the state- ment might be taken as a threat, it might equally be taken as the expressed fear, real or imagined , of an an- tiunion employee who worried aloud about what might occur if the Union failed tc win 'the forthcoming elec- tion. The vagueness of the statement and the anonymity of the speaker require that .I reject it as supportive of the objection. Finally, the Company relies on an incident which oc- curred shortly after 7 a.m. on the day before the elec- tion. According to employee Billie Stroud, on that occa- sion he was riding in the front seat of the mantrip enter- ing the mine when he heard employee Lee Troxel, who was seated behind him, say that he, was going to be the union observer and that he would be able to tell by the look in a man's eyes how he voted. He added, "You catch them down the road a mile or so if not sooner." Johnson testified that he was frightened by Troxel's statement and later discussed it with two other employ- ees who were, according to him, also upset by it. Troxel was called on rebuttal and explained that on the occasion in question he was sitting with employee Bennett in the mantrip behind Stroud. While discussing the forthcoming election Bennett commented that no one would know how he voted. -Troxel, in 'an attempt to kid Bennett, re- torted that he would know how he voted. Bennett asked him how he would know and Troxel replied that he could tell by the looknn his eyes., Then another employ- ee who was also present commented that Bennett had said''that if the mine went' union he would not join and 29 Abbott Laboratories v NLRB, 540 F 2d 662 (4th Cir 1976), Owens- Corning Fibreglas Corp, 179 NLRB 219 (1969) 30 Owens-Corning Fibreglas Corp. supra 31 Owens-Corning Fibreglas Corp, supra 1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would not pay dues. Troxel replied that if the mine went union, then Bennett or anyone else who did not join could just get on down the road, meaning apparently that they could seek employment elsewhere. Of the two versions I tend to credit Troxel' s for stat- ing that one can tell how another votes by looking into his eyes strikes me as more likely occurring in the con- text of good-natured badinage than in the context of a.se- rious threat intended to frighten and to interfere with an employee's freedom of choice to cast his ballot in ac- cordance with his personal preference In short, consid- ering all of these incidents either separately or together, I cannot -find that they are of sufficient gravity to war- rant setting aside the election.32 I therefore recommend that Employer's Objection 5 be overruled.- The Employer's Objection 7 alleges that immediately before the election the Union threatened that there would be 400 to 500 union members present at the plant and mine gates before and during the election. In support of this objection, employee Ronald Bregar testified that the day before the election he had a conversation with Terry Thompson during which Thompson.-told him there would be between 600 to 700 union men out at the mine, before and during the election and that he had. heard, this in a bar. The following day while Bregar was on his way to the election he met Vollie Bishop, the union official in charge of organizing the Company. Bregar advised Bishop that he was going to be the Com- pany's observer during the election., He 'asked Bishop about the presence of union members-at the mine. Bishop told Bregar that there would be a few mine workers there but that they would not speak to Bregar or do any- thing so that Bregar should not be alarmed. As they sep- arated, Bishop wished Bregar a good day. Bishop testi-. feed that prior to the election he had received calls from employees of the Company who wanted to know about rumors of mass assemblage at the mine. Bishop stated that he spoke to about 90.percent of the employees and told them that a few coal. miners had volunteered to go down on the road by the mine in support -of the Union. He tried to allay their-concerns'about the-rumor.- .In my estimation the Union, through Bishop, did what it could ` to scotch the rumor concerning mass 'picketing and, indeed, apparently succeeded in doing so since there was no mass picketing and, of approximately '31' eligible voters, 31 cast ballots without incident. I see no merit to Employer's Objection 7 and recommend it be overruled. , C. The Union's Objections the Union's Objections 1. and '4 ,are coextensive with -, certain of the unfair labor practice^ Iand.will be. dealt:, with as such in the section-immediately below. D. The Unfair Labor Practices ' Background-Pre-10(b). Period-, In April 1982 Larry Troxel applied,for employment with Respondent and was interviewed' at that -time by Williams. During the interview Williams advised Troxel 32 Allied Plywood Corp, 122 NLRB 959 (1959), Owens-Corning, supra, Firestone, supra • - that he 'thought he would be, pretty good but that he would fire him if he ever caught him fooling around or talking with the Union and added that if the mine went union, he would shut it down. On another occasion, about the same time , Williams told another job applicant that, although Illinois was a union state, Respondent's mine would be run nonunion and if the mine was voted union he would shut it down and pull out the equipment the next day. - • - . - In May 1982 employee Joe Reed was hired'. At,the time Williams told him that he planned to run the mine nonunion , that he could not run the mine under a union . contract and if it went union he would have to shut it down. When.he hired Mosby, about the same time, Wil- liams told him that, there would be no talk about the Union, that he had lots of job applications and that a man could be replaced easily. ' In ,June Williams told a group of his employees that union organizers would probably be, around to try to get them ,to sign union cards. but that, if the mine went union, he would shut it down. The following month he questioned Troxel whether or not he had been visited by union organizers. When Troxel admitted that he had, Williams stated that the employees ought to go ahead and sign the cards, then vote 'the Union down so that they would hot have to mess with it for a-year. In a discussion between Williams and Mosby which also took place in July 1982, Williams told Mosby that he' had heard that Mosby had been trying to enlist the support of another employee for the Union and that if he ever heard Mosby say anything about the Union, he would' fire him. Mosby explained that everybody was discussing the Union and employees- who had not been around a union asked questions of those who had been in a union., Williams told Mosby that that did not matter, that he had better not hear Mosby say anything about the Union. even if someone merely asked him a question about it. Subsequently, in another conversation between these two, Williams told Mosby to find' another place to do his drinking because mostly union-people drank at the bar where Mosby had been'hanging out. Paragraph 6A: Through the summer' of 1982, according to the credited testimony of Troxel and Mosby, Williams stated that he would fire employees who voted for the Union or would shut down the mine if it went union. Reed also testified that time after , time throughout the fall of 1982 he heard Williams threaten to close- the mine if it went union because lie could not 'run the' mine under a union 'contract.I find-these threats clearly 'violative of the Act 33 They . were, however, 'as ,far as the record in- dicates," preorganizatibnal - violations and not subject to objection. Paragraphs 6B and 6C: On January 21 when Reed and Troxel reported; for work- on the evening shift Williams advised them that he was going to have to let them go because their' work was unsatisfactory' He told them` to get' their clothes and" leave. When Reed denied that his work was unsatisfactory acid 'Troxel asked why' they 33 Burger King, 258 NLRB 1293, 1299 (1981), Dimensions in Metal, Inc, 258 NLRB 563, 565 (1981), Cato Oil & Grease Co, 258 NLRB 1149, 1151 (1981) ' LOVILIA- COAL- CO were being terminated , Williams replied , "Your work is unsatisfactory . That's all I can say at this time without- incriminating myself." • After. the two employees got their clothes, both re- turned to the bathhouse to again talk with Williams. in the ensuing conversation , Reed told Williams that he knew that his work was not unsatisfactory and wanted to know what the problem was. Williams answered that what he had said was all that he was at liberty to say. Reed argued that Williams was not much of a man if he would not tell him what the problem was . Williams re- plied that he would prove how-much of a man he -was, if he had to prove it in court . Troxel complained that Wil- liams had ruined him inasmuch as he had gone into debt and now had been fired . Williams retorted that, on the contrary, they had ruined him. When Troxel asked for an explanation, however, Williams replied that that was all he was at liberty to say at that time. .He added that he would tell them about it "one of these days." The two employees then left When Troxel arrived at home he telephoned Williams' partner, Tom Wignall, and told him that he and Reed had been fired. Wignall, surprised, told Troxel that he would look into the matter and call him back . Shortly thereafter, Wignall did, in fact, call Troxel again , and asked him if he had signed a union card . Troxel admitted that he had but when Wignall asked him whether or not Reed had also signed a union card Troxel replied that he did not know. Wignall then stated that he had been told at the mine that the two had been fired for participating in union activities . Troxel replied that that was against the law and he would file charges. Wignall asked Troxel not to do anything until he could get back to him the following day. Wignall did not call Troxel the following day as- he had promised but he did call back the following Monday, January 24, and told him that he and Reed should report to work the following day, that everything had-been straightened out. The-following day, however, Wignall caught Troxel before he reported to work and told him that Williams had said that he would not take Reed and Troxel back under any circumstances. He ad- vised Troxel not to report to work. Troxel agreed but told Wignall that.he had better contact Reed because he intended to work that evening. Reed, however , was not contacted, - reported to the mine, and - worked that evening. - On Wednesday, January 25, Reed and Troxel went to, the mine and asked • Wignall what was going on since Reed had worked the evening before while Troxel had not. Wignall said that he was glad that Williams had not been at the mine the previous night because he had said,' that he did not want either Reed or Troxel back under - any circumstances. This' day the Union filed 8(a)(1) and (3) charges on behalf of Troxel and Reed.34 On the morning of January 26,' when Troxel went to the mine to get- his check Wignall advised him that he and Reed should report foi work that evening since ev- erything had been taken care of. Troxel left and arrived home about noon at which time he received a call from 34 Case 14-CA-16446 1371 Williams - who told him that there had been a big mistake, that he had.been fed some wrong information . He said that he wanted Troxel to return to work and hoped that there would be no hard feelings . He promised that one day he would tell Troxel what it had all been about. He told Troxel that he had a job with Williams for as long as Williams lived. Both Reed and Troxel returned to work that evening. Williams told Reed , after he returned to work , that his termination had just been the result of something he had heard, that he should not have terminated Reed and Troxel, and would tell Reed about it at some later time. Subsequently, both Reed and Troxel were reimbursed for their lost wages I find that the allegations contained in paragraphs 6B and 6C are well founded and that when Williams in- formed Troxel and Reed on January 21 that they were discharged because they had ruined him and when Wig- nall confirmed that the discharges were because of their participation in union activities , these statements were clearly violative of Section 8(a)(1) of the Act.35 Respondent's affirmative defense that allegations 6B and 6C were the subject of Case. 14-CA-16446, which was settled and settlement agreement was fully complied with, will be discussed below Paragraph 6D. Employee Noble Nixon credibly testi- fied that about- 2 or 3. weeks after Troxel and Reed re- turned to work Williams once again spoke to the men in the bathhouse and told them that, if the mine went union,- he could not afford to run it and would have to move his operation across , the river He added that he could not see how anybody could sign a union card and vote'himself but of a job. He noted that $11.50 per hour was not much but it was better than nothing. I find Wil- liams' open threat to take the above action if the mine went union clearly violative of the Act.36 On' February 17 the' Acting Regional Director for Region 14 approved a settlement agreement in Case 14- CA-16446 in which Respondent agreed to cease making threats of mine closure in order to discourage union and protected concerted activities. Paragraph 6E: On March 7, 1983, the petition in Case 14-RC-9695 was filed by the Union and on April 4 a Stipulation for Certification Upon Consent Election was approved in that case, by' the Regional Director On April 7 Williams again told a group of employees gath- ered in ' the bathhouse that he could not operate the mine under a union contract and that , if the Union were voted in,- he would close the mine 37 A's noted earlier such a threat is a violation of'Section 8(a)(1) of the Act.38 Inas- much as the incident occurred following the filing of the petition, it is also supportive of,the Union's Objection 1. 35 Paul Distributing Co',%264 NLRB 1378 (1982), Misericordia Hospital Medical Center, 246 NLRB 351, 357 (1979). JA:MCO International, Inc; 227 NLRB i807,-1809 (1977) as Monterey Drilling Co, 255•NLRB 494, 496 (1981), Penn Color,' Inc, 261 NLRB 395, 396, 405 (1982) 37 According to the credited testimony of Terry Thompson who has been found , supra, to be a rank-and-file employee at the time and not a supervisor under the Act 38 Burger King, supra, Dimensions in .Metal, Inc, supra 1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Paragraph 6F In February 1983 while still- employed at Respondent's mine, Marvin Jackson applied for a job with Webster County Coal Co., also known as MAPCO. In April the latter Company's personnel manager con- tacted Williams to check up on Jackson . During the con- versation which ensued , the forthcoming election was discussed . Subsequently, Williams advised employee Danny Newcom that he had asked MAPCO not to hire Jackson until after the election . When MAPCO failed to employ Jackson he filed a charge against it, which charge,39 however, is not dispositive of the issue herein discussed. - To indicate to an employee that his right to obtain em- ployment elsewhere can be curtailed or delayed simply because the Board has scheduled a representation elec- tion at that employee's place of employment not only un- dermines Board processes but interferes with that em- ployee's freedom to seek to use Board's processes by lim- iting his employment prospects during the period those processes are being undertaken . Thus, an employer co- erces an employee under Section 8(a)(1) of the Act when he indicates to an employee that he, the employer, can prevent employees from being hired - elsewhere during the period immediately preceding an election , because it clearly lessens the desirability of seeking union represen- tation through the Board's electoral process:40 I find that Respondent thus violated Section 8(a)(1) of the Act in this respect. Paragraph 6G. On or about April 14 Head Mechanic Gene Lynn McGregor, whom I have found to be a su. pervisor under the Act, told Thompson that if the Union was voted in, Billie Williams would close the mine down because he could not run it under a union contract. This statement, no different from those made by Williams ear- lier, is also violative of the Act. (See cases cited:) Paragraph 6H On April 14 Williams engaged employ- ee Danny Newcom in conversation while at the mine. He commented to Newcom that he assumed that he would be voting in favor of the Union since Newcom had a bet riding on it He then stated that if the mine went union he would make sure that those employees who voted in favor of the Union would never work in the mines in the area This threat was clearly in violation of the Act. 41, . Paragraph 61. Joe Reed testified that on April 26 Gary McCabe42 visited him at his home. McCabe, a .foreman s9 Respondent's motion to strike or dismiss the a1lej^tun on grounds of vagueness is denied The-General -Counsel's theory was adequately clarified at the hearing and Respondent was given sufficient opportunity to defend. its position , 40 Whether, the employee whose employment prospects are interfered with by his employer is or is not engaged in union activities is immaterial Board processes must be protected Although Respondent triay well except to this finding on grounds that the theory was never espoused by the General Counsel, since Respondent 's defense - to the allegation is that the Newcom/Williams' conversation never occurred , Respondent is not prejudiced I find that Williams did . in fact, make the statement attributed to him and his reasons for doing so are irrelevant 41 Alpha Cellulose Corp. 265 NLRB 177 (1982), Young Hinkle Corp, 244 NLRB 264, 267 (1979) ' 42 Sometimes appearing elsewhere as Harry McCabe for Jader Fuel, told Reed that Williams had asked him to see Reed about the union . situation. He said that Jader Fuel, which operated a strip mine next to Respondent's mine and purchased , washed,-and transported Respond- ent's - coal, had an agreement with Williams whereby, if Respondent went union , Jader would pull out and push in the hole. The General Counsel , citing a number of cases,43 argues that the test of whether someone is an agent is whether , under all the circumstances , an em- ployee would reasonably believe that thei alleged' agent was reflecting 'company policy' and speaking and acting for respondent's management.44 The General Counsel argues further that since McCabe was foreman for a company with a known business relationship with Re- spondent and stated that he had been sent by Wiliams this was sufficient to make Reed reasonably believe McCabe was, in fact, the agent of Respondent. Since' McCabe advised Reed that if Respondent went union, its mine would be closed and this, according to cases cited earlier'45 is violative of the Act, then since McCabe is, according to the General Counsel's theory, Respondent's agent, Respondent has violated Section 8(a)(1). In its brief,, Respondent argued against finding a viola- tion here but cited no cases, Board or otherwise, on agency Rather, it argued -that Reed's testimony was 'hearsay in nature, drawn from him. through leading ques- tions and therefore not, credible It also argued that McCabe was not present and therefore not subject to cross-examination. In.my estimation Reed was a credible witness who de- scribed the incident as it occurred . Respondent was free to subpoena McCabe and to examine him if it so chose but did not do so. The cases cited by the General Coun- sel being in point, I find that McCabe was the agent of Respondent and when he threatened plant closure if the mine went union , Respondent became liable for- his threat and thus violated the Act.46, As noted above, on April 28 the representation elec- tion- was held On May .3 the Company filed its objec- tions and on; May 5 the Union filed objections and charges in Case 14-CA-16671. On May 26 the Regional Director issued his order revoking approval , vacating and setting aside the settlement agreement of February 17 on -grounds that Respondent had failed to comply with all the terms and conditions of the settlement agree- ment by continuing to, make threats of mine closure. In- asmuch as I have found that Respondent did, indeed, violate the Act. in these respects subsequent to the ap- proval of-the settlement agreement, I conclude that the Regional Director's decision to revoke the earlier settle- ment was justified _ '43',Jules V Lane, DDS. PC, 262 NLRB 118, 122 (1982), Community Cash Stores, 238 NLRB 265 (1978) 44 Star Kest Samoa. Inc, 237 NLRB 238 (1978) 45 Burger King, supra, Dimensions in Metal, Inc, supra 46 Henry I Siegel Co, 172 NLRB 825 (1968) The common law defini- tion of agency is not applicable Rather, the broad definition of agency as stated in Sec 2(13) of the Act applies (13) In determining whether any person is acting as an "agent" of another person so as to make such other person responsible for his acts; the question of whether the specific acts performed were actu- ally authorized or subsequently ratified shall not be controlling LOVILIA COAL CO As noted earlier, on -May 26 also, the Regional Direc- tor issued his order consolidating cases, complaint and notice of hearing in Cases 14-CA-16446 and 14-CA- 16671. The allegations contained in- the consolidated complaint included allegations 6A through 61 discussed supra- as well as additional allegations discussed, infra. In- cluded also in the consolidated complaint was a refer- ence to • the, February, 17 settlement agreement and the May 26.revocation thereof. The following day, May 27, the Regional-Director issued the Report on Challenged Ballots and Objections and Recommendations, and order directing hearing and order consolidating cases and notice of hearing. On June 3 Respondent filed its answer to the consolidated complaint in which it denied the commission of any unfair labor practices but admitted that it had entered into the February 17 settlement agree- ment 47 It is therefore estopped from denying the exist- ence of the settlement agreement as it appears to have at- tempted to do in its brief. - Paragraph 6J. On June 4- Williams called employee Terry "Thompson into his office and engaged him in con- versation.48 He told Thompson that' he had been union all the way Thompson admitted that was true. Williams said that he did not know what, Thompson's union bud- dies or organizer Junior Bishop had done- to him but they had brainwashed him somewhere along the line. Thompson denied being brainwashed and stated that -he was old enough to make up his own mind. Williams then stated that Thompson would either have to be all compa- ny or all labor, that there would be no riding the fence. He added that he thought Thompson worked well with John D. Lee Sr. and wanted him to remain as a boss .49 He then told Thompson that he was going to give him a week to decide whether he wanted to continue as boss, i.e., Lee's assistant or return to his old job as pmner To help Thompson make up his mind to go all company rather than all labor, Williams attempted to impress upon him the futility of maintaining his loyalty to the Union by telling him that Thompson did not see a union con- tract there-then, and was not- going to see one either, a clear violation under Board law.5o Thus, Williams, after unlawfully. interrogating Thomp- son as to his union sympathtes,51 in effect, gave Thomp- son an ultimatum rather than an option. If he wanted to keep his job as assistant to Lee, whether it be called face boss or not, he would have to be all company If he was going to be all union, he would have to-go back; to the -pinner Inasmuch as I have found Thompson's job nonsu- pervisory, Williams' ultimatum was 'clearly violative of 47 Respondent's affirmative defense that the, settlement should be con: sidered void because it was discouraged by regional representatives from seeking and therefore did not have'legal counsel is,not supported by record evidence and is without merit - - 48 Thompson's version of this conversation is credited whereas that of Williams is not 49 Although the job of face boss.. or assistant to Lee, had lost some of its importance due to the introduction of the. continuous, miner and the resulting decrease in the number of employees in each crew, clearly there still remained some prestige connected,with the job and potentially more money 50 Polk Bros Concrete Products, 256 NLRB 783, 784 (1981), Mark J Leach Electrical Contractors, 251 NLRB 1100, 1110 (1980) 51 Hudson Oxygen Theraphy Sales. Co,i264 NLRB 61,.69 (1982), Ace Mfg Co, 235 NLRB 1023 (1978) , 1373 the Act for it is a coercive act within the meaning of Section 8(a)(1) either to remove an employee from a pre- ferred` 'position because of his loyalty to his union or to offer a preferred position, to him in return for his aban- doning his loyalty to a labor organization.52 Forced into making his decision, 'Thompson, a week later, advised Williams that he had decided to go back on the pinner- On June 23, the Union filed the charge in Case 14- CA-16801 based on the events of June 4. On July 29 the Regional, Director issued a'second order consolidating cases, amended complaint and notice of hearing in which paragraphs 6J and 7B were added alleging the violations which occurred on June 4 On August 10 Respondent filed • its answer to the July 29 consolidated amended complaint again denying the commission of any unfair labor practices and' again admitting the existence of the February 17 settlement agreement. Paragraphs 6K and 6L. As noted earlier, employee Marvin Jackson had applied for' work at MAPCO in February 1983. When he failed to obtain employment with that company, he filed an unfair labor practice, charge against it on July 14 -On August 17 Williams called Jackson into his office and engaged him in conver- sation. He told him that he liked him and hated to see him get messed up He said he had heard that Jackson had filed charges against MAPCO and that if he were Jackson he would withdraw them. A few days later he called Jackson and stated that he probably should not have said anything the other day but was nevertheless advising him to drop the charges. Case law holds that it is interference within the meaning of Section 8(a)(1) to tell an employee that undesirable consequences will flow from his filing of.unfair labor practice charges .53 I find, therefore,' that Respondent violated the Act in this re- spect. ' ' - 'On' September 15 -the consolidated complaint was amended to -reflect the ' violations which occurred on' August 17 and 20. Respondent filed its answer on Sep- tember 20 denying allegations 6K and 61_;-contained in the amendment to the consolidated complaint.' - Paragraphs 7A and -7C:' A review of the evidence pre- ceding the termination of Reed-and Troxel on January 21 and surrounding their rehiring on January 26 con- vinces me that they were terminated because of their support or suspected support of the Union. Indeed, Re- spondent admits their termination on January 21 but denies that their discharges were union related Evidence of discriminatory, motivation includes: 1. Respondent's union"animus as reflected by Williams' insistence that the mine remain. nonunion; his repeated threats to discharge employees if they became engaged in union activity, his threats to close the - mine or to move across the river if it went union, his prohibition against employees talking 'with- union organizers, with each other about the union,- or even hanging out in bars where union employees drank, his interrogation of em- ployees concerning their union -,activity, his demotion of Thompson because he' chose • to -be all labor rather than 52 L M Berry & Co, 254 NLRB 42, 47 (1981)- 53 St Regis Paper Co. 247 NLRB 745, 748 (1980), Maspeth Trucking Service, 237 NLRB 1531, 1534 (1978) -, " , 1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all company; and his statement that there was no union contract at the mine and that there would not be one in the future. 2. Williams' knowledge of the existence of union activ- ity as reflected by his telling employees that they would be , visited by union organizers and Troxel's 'admission that he had been visited at his home by a union organiz- er. 3 The circumstances surrounding the discharge, i.e., the timing of the discharge, in the middle of the union campaign; the reason given for the discharge-unsatisfac- tory work performance; the lack of any warning before the actual discharge; -the lack of any previous indication of dissatisfaction with Reed's and Troxel's work per- formance; the failure of Williams to explain to Reed and Troxel, even when asked at the time of their discharge, precisely what was wrong with their work; the failure of Respondent during the hearing to offer any explanation about what precisely was wrong with the dischargees' work performance, the abruptness of the discharge which took place at the beginning of their shift rather than the end of it and Williams' order that they should get their clothes and leave; the inexplicably evasive state- ments accompanying the discharge, i.e.,-That' s all I can say at this time without incriminating myself"; "What I have said is all I am at liberty to say"; "I will prove how' much of a man I am, if I have to prove it in court"; "You have ruined me"; "I will tell you about it one of these ' days.' ; Wignall's question/explanation to Troxel after advising him that he would look into the reasons he and Reed had been fired: did he and Reed sign union cards (quite obviously that is what^he had been told by Williams when he inquired of him concerning the rea- sons for their discharges); and Wignall's own explanation that he had been told at the mine that they had been fired for participating in union activities. - For these reasons I conclude that Reed and Troxel were terminated because of their union activity or sus- pected union activity rather than for some unexplained deficiency in their work performance. The discharges were, therefore, in violation of Section 8(a)(1) and (3) of the Act.54 , sa Crucible. Inc, 228'NLRB 723, 729 (1977), Superior Micro Film Sys- tems, 201 NLRB 555. 562 (1973) Respondent argues in its-brief that the General Counsel failed to place the original settlement agreement in the record and, having failed to do so, has offered no proof that such a settle- ment agreement ever existed Consequently, Respondent argues, the Gen- eral Counsel cannot allege a breach of the settlement agreement nor a revocation thereof However, Respondent, in its answer (G C Exh 1(v)), admitted the existence of the settlement agreement and is estopped from later arguing that it never existed Secondly, Respondent argues that it complied with the requirements of the settlement agreement by rehiring Reed and Troxel, paying them their backpay, and posting the required notice for 60 days However, as noted in the Regional Director's order revoking approval, vacating and setting aside settlement agreement, as supported by the record in the instant pro- ceedings, Respondent, subsequent-to the approval of the settlement agree- ment, continued to interfere with the rights of employees by threatening mine closure Under these circumstances the Regional Director's decision to revoke was proper To the extent that Respondent has already com- plied'with any order issuing in the instant proceeding, that is a matter to be considered in the compliance stage Paragraphs 7B and 7C: The allegation contained in paragraph 7B- of the complaint is that Respondent re- duced the position and responsibilities of employee Terry Thompson because of his support for the Union. The facts supporting this allegation have been fully laid out in section 6J above. I find, as alleged, that Williams unlaw- fully required Thompson to choose between his position as assistant to Lee (face boss) and -loyalty to the-Union and thus forced him out of his job in order, to, discourage his continued loyalty to the labor organization -which he had been supporting in violation of Section 8(a)(1) and (3) of the Act.5 5 - Summary ' A. Challenges Having found that Terry Thompson, Will McGregor, Randall Tanner, and Johnnie Wilson are eligible to vote, inasmuch as their votes are sufficient in number to affect the results of the election, I have recommended that their ballots be counted. B. The Employer's Objections Having found that the Employer's objections are with- out merit, I have recommended that they be overruled in their entirety. C. The Union 's Objections Having found that the Union 's objections are coexten- sive with certain of the unfair labor practices -alleged 56 and having found that these objections and alleged unfair labor practices are meritorious,, I shall make recommen- dations, infra, in accordance with these findings D. The Unfair Labor Practices Having found that allegations 6A through 6L and 7A through 7C are meritorious, I shall make recommenda- tions, infra;'in accordance therewith. CONCLUSIONS OF LAW 1. Respondent Tom Wignall Jr. and Billie Williams d/b/a, Lovilia Coal Company is an employer engaged in commerce within the meaning of Section 2(2)„ (6), and (7) of the Act. 2. The Union is a labor, organization within the mean- ing of Section 2(5) of the Act. 3. By threatening employees with discharge and mine closure in order to discourage membership in and activi- ties on behalf of the Union; by informing employees that they had ruined their employer by supporting the Union (and were thereby disloyal to him) and were discharged because they participated in union activities; by inform- ing-an employee that he recommended to a second em- ployer that it not hire another of his own employees until after a scheduled NLRB election was over; by threatening an employee that employees who voted in ss Teleprompter of Tuscaloosa, 233 NLRB 481, 487 (1977), Miners' Wel- fare Pension & Vacation Funds, 256 NLRB 1145, 1159 (1981) 56 Pars 6E through 61 LOVILIA COAL CO 1375 favor of the Union would never work in mines in the area; by interrogating an employee concerning his union sympathies; by telling an employee that in order to retain his job position, the employee must renounce his support for the Union; by telling an employee that Respondent would not bargain in good faith with the Union; and by telling an employee that if he did not withdraw charges filed with the National Labor Relations Board against a second-employer, that employee would suffer unspecified but undesirable consequences, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discharging employees Larry Troxel and Joseph Reed and by reducing the position and responsibilities of Terry Thompson because they engaged in or were sus- pected of engaging in protected concerted activities, Re- spondent engaged in unfair labor 'practices within the meaning of Section 8(a)(1) and (3) of the Act. 5..The unfair labor practices enumerated above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent's objections to the election in Case 14-RC-9695 are without merit and must be overruled. ` 7. The Union's Objections 1 and 4 which are coexten- sive with the unfair labor practices 6E through 61 found above are meritorious and must be sustained. 8. The challenges to the ballots of Terry Thompson, Will McGregor, Randall Tanner, and Johnnie Wilson are invalid and must be overruled. 9. The challenges to the ballots of Floyd Mosby, John D. Lee Sr., and Gene McGregor are valid and must be sustained. THE REMEDY, Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take appropriate and affirmative action designed to effectuate the policies of the Act. In particular, as I have found that employees Larry Troxel and Joseph Reed were discharged and that the position and responsibilities of Terry Thompson were reduced because they engaged in or were suspected of engaging in protected concerted activities, I shall recom- mend that Respondent be required to make Troxel and Reed whole for any losses suffered by them due to their discriminatory discharge57 and that the position denied to Thompson be reoffered to him with any backpay due him58 with interest computed in the manner prescribed in F W. Woolworth Co., 90 NLRB 289 (1950), and Flori- da Steel Corp., 231 NLRB 651 (1977).59 I shall also rec- ommend that Respondent be required to post an appro- priate notice. Having found the challenges to the ballots of Floyd Mosby, John D Lee Sr., and Gene L. McGre- gor valid, it is recommended to the Board that the chal- lenges be sustained and that their ballots not be counted. Having found the challenges -to the ballots of Terry Thompson, Will McGregor, Randall Tanner, and John- nie Wilson invalid, it is recommended that the challenges be overruled and that their ballots be counted. It is fur- ther recommended that should the counting of the valid challenged ballots result in a majority of valid ballots cast being cast against representation, since I have found merit to the Union's Objections 1 and 4, it is recom- mended that the election in Case 14-RC-9695 be set aside and a new election directed. [Recommended Order omitted from publication.] 57 Respondent has already reinstated both Troxel and Reed with back- pay although there still may be certain sums due 58 The record indicates that the individual who was awarded the posi- tion instead of Thompson was granted a'-wage increase 59 See generally Isis Plumbing Co, 138 NLRB 716 (1962)