Midwestern Fuels Systems, Inc., And Reclamation Services, Inc.

MIDWESTERN MINING Midwestern Mining & Reclamation, Inc., a Subsidi- ary of Midwestern Fuels Systems, Inc., and Reclamation Services, Inc. and United Mine Workers of America. Case 17-CA-11191 1 November 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 26 October 1983 Administrative Law Judge Gordon J. Myatt issued the attached decision. The Respondent and the General Counsel each filed ex- ceptions, cross-exceptions, supporting briefs, and answering briefs. 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 and to adopt the recommended Order as modified. 2 We agree with the judge's finding that the "de- motion" to leadmen of certain individuals previous- ly designated as supervisors was an attempt to pack the unit to dilute the UMW's majority support. We emphasize that the duties and wages of these indi- viduals were unchanged following the alleged de- motion and they continued to exercise the supervi- sory authority previously vested in them.3 We ' The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings We disavow the judge's statement in sec VIII, par. 9 of his concluding findings that the Company conveyed the clear message to the employees that it "favored the CIU and would not engage in unlawful conduct to undermine employee support of that union " Such a message, had it been conveyed, would not be unlawful The Respondent's message, however, was that it favored and assisted the CIU and would reward employees who supported that Union because it would not be "that much of an ex- pense to [the Company]." This contrasts sharply with the outspoken and unlawful efforts to undermine employee support for the UMW The as- sistance and support of a union Respondent felt it could better control is the basis of our finding that the Company violated Sec. 8(a)(2) and (1) of the Act. The judge stated that in making his credibility findings he took into account that "a number of the employee witnesses were currently work- ing for Respondent and testifying against their own employment inter- ests." We note that other employee witnesses who were on layoff status also testified against their own employment interests 2 We have modified the judge's recommended Order to include the broad remedial order language which he inadvertently omitted i The parties stipulated that Curtis D Couch, Steve Coleman, Miles D. Neil Jr, Robert D Palmer, and Jerry Watts were supervisors prior to 25 June 1982 In addition, Respondent's president Ira Palmer testified that before the 16 August 1982 demotions Jack Wallace, William H. Palmer, and Frank Weisensee had authority to discipline, direct work, assign work, require overtime, transfer employees from job to job, and recom- mend the hiring or firing of employees 221 agree with the judge's finding that Mel Bowie, while not a supervisor, should be excluded from the unit because his functions and interests are more closely aligned with those of management than with those of the unit employees. We also agree with the judge that Robert E. (Bobby) Palmer should not be included in the unit even though he performed unit work . Palmer is the son of supervisor and minority stockholder , Robert D. Palmer, and the nephew and cousin respectively of board member, supervisor, and primary stock- holder, William Palmer, and president and primary stockholder, Ira Palmer . Based on the foregoing, Bobby Palmer qualifies as a close relative of man- agement whose interests are more aligned with the business interests of his family than with the inter- ests of the employees. Accordingly, he should be excluded from the unit . NLRB v. Action Automo- tive, 105 S.Ct. 984 (Feb . 19, 1985). ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondents, Midwestern Mining and Reclamation, Inc., a subsidiary of Midwestern Fuels Systems, Inc., and Reclamation Services, Inc., Bronaugh, Missouri, their officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified. Insert the following as paragraph l (1). "(1) In any other manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act." CHAIRMAN DOTSON, dissenting in part. I agree with the decision of my colleagues except in the following respect. The judge found, and my colleagues agree, that the authorization card of employee William Barnett should be counted towards the Charging Party Union's majority status. I cannot agree. The judge found that Barnett signed an authori- zation card in front of the union hall before attend- ing a union meeting. The judge credited Union Representative Prettyman's testimony that he read the card to Barnett at Barnett's request. Later, but at a time prior to the Union's demartd for recogni- tion, Barnett called Union Organizer Forbes and asked for the return of his card. The judge found that Barnett's asserted revoca- tion of his card was ineffective. The judge, citing Warehouse Groceries Management, 254 NLRB 252 (1981), concluded, "When an employer has en- gaged in coercive conduct designed to undermine 277 NLRB No. 1 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union support during an organizing effort, the Board presumes that employee revocations of pre- viously valid authorization cards are a direct result of the employer's unlawful conduct." I do not agree with Warehouse Groceries Manage- ment and other cases which presume that revoca- tion is a result of an employer's conduct even where, as here, there is no evidence that the em- ployee was indeed coerced into requesting the return of his card. No unfair labor practices were directed against employee Barnett. There is no basis for presuming that coercion rather than a change of mind precipitated his desire to revoke his card. Absent a showing that the employee was coerced into revoking his card, the revocation must be deemed valid. i See, e g, Quality Markets, 160 NLRB 44 (1966), enfd. 387 F 2d 20 (3d Car 1967) Anne G. Purcell, Esq., for the General Counsel. Robert A. Liberman, Esq. (Linde, Thompson, Fairchild, Langworthy, Kohn & Van Dyke, P.C.), of Kansas City, Missouri, for the Respondent. Lowell Forbes, International Organization, of Pleasanton, Kansas, and Eldon Prettyman, International Organizer, of Liberal, Missouri, for the Charging Party. DECISION STATEMENT OF THE CASE GORDON J. MYATT, Administrative Law Judge. On a charge filed by United Mine Workers of America (UMW) against Midwestern Mining & Reclamation, Inc., a subsidiary of Midwestern Fuel Systems, Inc., and Rec- lamation Services, Inc,' (Respondents), the Regional Di- rector for Region 17 issued a complaint and notice of hearing on October 29, 1982.2 The complaint, as amend- ed at the hearing, alleges Respondents constitute a single employer and, acting through their agents and supervi- sors, engaged in conduct which violated Sections 8(a)(1), (2), (3), (5), and 8(d) of the National Labor Relations Act. More specifically, the complaint alleges that after UMW sought to organize Respondent's employees in early June various agents and supervisors of Respondents committed numerous violations of Section 8(a)(1) of the Act by: unlawfully interrogating employees about their union activities, sympathies, and desires and about similar activities and desires of other employees; threatening to shut down the mining operation of Respondents if the employees selected UMW as their collective-bargaining representative; informing employees that Respondents would never "go union" and would keep the UMW out; creating an impression the employees activities on behalf of UMW were under surveillance; threatening employees The caption of the case appears as amended at the hearing a Unless otherwise indicated, all dates herein refer to the year 1982 with reprisals if they talked about UMW or talked with other employees who supported that union; soliciting employees to attend a UMW meeting and report back concerning matters which took place at the meeting; in- forming employees they were laid off because of the UMW organizing campaign; and offering employees pro- motions to dissaude them from supporting UMW as well as to encourage them to dissaude other employees from supporting that union. The complaint also alleges Respondents violated Sec- tion 8(a)(2) of the Act by: granting employees time off from work to attend a meeting with the Congress of In- dependent Unions (CIU) and allowing supervisors to attend the CIU meeting and to sign authorization cards for that union; telling employees that Respondents fa- vored CIU and would close down their operations if UMW became the collective-bargaining representative of the employees. The complaint further alleges Respondents accelerated a layoff of 42 employees on June 18 and terminated 28 of the laid-off employees on August 19 in order to discour- age membership in and support of UMW. It also alleges that Respondents have refused to call employees Edward H. Roberts and Elmer M. Scales to work since July 28 because these employees aided and supported UMW in its organizing effort. In addition, the complaint alleges Respondents purportedly withdrew supervisory status from certain acknowledged supervisors and assigned these individuals unit work in order to discriminatorily deny that work to bargaining unit employees; and fur- ther, that the supervisory employees were assigned unit work to enable Respondents to include persons known to be opposed to UMW in the bargaining unit. All the above conduct is alleged in the complaint to be a viola- tion of Section 8(a)(1) and (3) of the Act. Next, the complaint alleges UMW was designated as the exclusive collective-bargaining representative by a majority of the employees in an appropriate unit and that Respondents voluntarily recognized UMW as such on August 11. That on August 16, however, Respondents withdrew recognition of UMW as the exclusive repre- sentative of its employees in violation of Section 8(a)(5) of the Act. Finally, the complaint alleges the asserted unlawful conduct is of such a serious and substantial character that it precludes the holding of a fair election among the unit employees. For this reason, the complaint asserts the entry of a remedial order requiring Respondents to rec- ognize and bargain with UMW is required. Respondents filed an answer in which they deny con- stituting a single employer within the meaning of the Act. The answer further denies all of the substantive al- legations of the complaint and specifically denies the commission of any unfair labor practices. A hearing was held in this matter in Joplin, Missouri, on various dates beginning on December 7, 1982, and ending on March 4, 1983. All parties were represented by counsel and afforded full opportunity to examine and cross-examine witnesses and to present material and rele- vant evidence on the issues. Briefs have been submitted by counsel and have been considered. MIDWESTERN MINING On the entire record in this case,3 including my obser- vation of the witnesses while testifying, I make the fol- lowing FINDINGS OF FACT 1. JURISDICTION Midwestern Fuel Systems, Inc. (MFS), a Nevada cor- poration, is a stockholding company which engages in coal strip mining and reclamation work at minesites by means of subsidiaries. Midwestern Mining and Reclama- tion, Inc. (MMR), a Kansas corportation, is a wholly owned subsidiary of MFS and Reclamation Services, Inc. (RSI), a Missouri corporation, is a wholly owned subsidiary of MMR. All the stock of MMR and RSI is ]held by MFS. MMR is engaged in a strip mining operation in ]Bron- augh, Missouri, the mining site involved in this case. RSI provides reclamation services to MMR at the same mining site. The record shows that MMR has an agree- ment with Associated Producers Company (Associated), an Oklahoma corporation, to produce and supply coal on behalf of Associated to Independence Power and Light (Independence), a utility owned and operated by the city of Independence, Missouri. The record further shows that the value of the coal supplied annually to Independ- ence by MMR is far in excess of $50,000. On the basis of the above., I find that Respondents sat- isfy the Board's statutory and discretionary jurisdictional standards. Accordingly, I find Respondents are, and have been at all times material to this case, employers within the meaning of Section 2(2) engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The record evidence and the unrefuted testimony es- tablish that United Mine Workers of America (UMW) and Congress of Independent Unions (CIU) are labor or- ganizations within the meaning of Section 2(5) of the Act. III. THE QUESTIONS PRESENTED The questions presented by this case are as follows: A. Do MMR and RSI constitute a single employer for the purposes of the Act? B. Was the normal layoff of June 25 accelerated to June 18 to thwart the organizational campaign of UMW? C. Did Respondents extend voluntary recognition to UMW on August 11 and then withdraw such recogni- tion? 3 The record includes a video deposition of one witness, Robert D Palmer. When this witness was initially scheduled to testify, he was suf- fering from hypertension to such a degree that his physician advised against his appearance at that time On the day Palmer was rescheduled to appear, his son and daughter were involved in separate automobile ac- cidents in which they sustained physical injuries. In view of the impact of the accedents on Palmer's physical disability, it was considered unwise to require him to appear to testify. By arrangement between counsel, Palm- er's testimony was subsequently taken by means of a video deposition after the final hearing date This video cassette has been received and re- viewed and is hereby included as part of the record in this case 223 D. Did Respondents refuse to recall employees Rob- erts and Scales for unlawful reasons? E. Was the August 19 termination of the laid-off em- ployees motivated by unlawful reasons'? F. Did Respondents provide unlawful support and as- sistance to CIU? G. What is the scope and composition of the bargain- ing unit? 1. Are certain employees supervisors within the meaning of the Act? 2. Is employee Bowie a managerial employee? 3. Should various other employees be excluded from the bargaining unit? H. Did the UMW achieve a card majority in an appro- priate bargaining unit? I. Is a bargaining order warranted under the circum- stances of this case? IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Facts Respondent MMR is party to an agreement with Asso- ciated to produce and supply coal to satisfy a contract Associated has to supply coal to a utility owned by the city of Independence, Missouri. Although the life of the agreement between Associated and MMR, as well as that between Associated and Independence, is 14-1/2 years (beginning October 1, 1980), it provides that the per-ton price will be negotiated annually between Associated and the city council of Independence. The agreement further provides that the coal supplied will be of sufficient quan- tity and quality to meet the requirements of Associated's contract with Independence.4 In the event the coal sup- plied fails to meet the British Thermal Unit (BTU) per- ton standard set by Independence, the agreement re- quires the supplier to make up the BTU deficiency in subsequent shipments. If this is not done, Independence penalizes Associated by withholding the dollar value of the BTU deficiency from its payments to Associated who in turn withholds, under the agreement, that amount from its payments to MMR. The unrefuted testimony reveals that Independence takes a yearly inventory of its coal stock on hand during the last week in June. As a result, no shipments are made at that time and it is customary for half of Respondents' work force to take a 2-week vacation beginning the last week in June and on their return, the remaining employ- ees go on vacation. B. The Single Employer Issue As previously noted, MMR is a wholly owned subsidi- ary of MFS, and RSI is a wholly owned subsidiary of MMR. All of the shares of stock in MMR and RSI are owned by MFS. The stipulation by the parties in the record makes it clear that all three companies have common ownership, directors, and officers. The direc- a See G C Exh 34 for a copy of the agreement between MMR and Associated with a copy of Associated's contract with Independence ap- pended. 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tors of MFS consist of Harold Card (chairman), Ron Walker, and Carl E. Wright. The officers of MFS are: Card, president; Walker, vice president; and Wright, sec- retary-treasurer. Card, Ira W. Palmer, and his father, William H. Palmer, are major shareholders in MFS.5 MMR was apparently organized and began operations in 1977. Its directors are Harold Card (chairman), and Ira and William H. Palmer. The officers of MMR are: Ira Palmer, president; Ron Walker, vice president; Mi- chael McCrate, vice president of operations; and Carl E. Wright, secretary-treasurer. The record is unclear whether RSI was organized in 1981 or 1982. It is stipulated, however, that the directors are Harold Card (chairman), Walker, Wright, and Ira and William Palmer. The officers are the same individ- uals who are the officers of MFS; i.e., Card, president; Walker, vice president; and Wright, secretary-treasurer. According to the testimony of Ira Palmer, MMR owns somewhat less than 100 acres of land and leases between 400 and 500 additional acres at the Bronaugh minesite. On May 17, 1982, MMR entered into an agreement with RSI to perform carpentry, electrical, maintenance, and reclamation work which previously had been performed by MMR employees at the minesite. (See G.C. Exh. 2a.) Under the terms of this agreement, MMR is required to pay RSI $9 per hour for a 40-hour week for the services rendered by each RSI employee. However, the record also reveals that MMR constructed a new maintenance building on the site and leased it to RSI at an annual rental of $24,000. (See G.C. Exhs. 29 and 29a). The lease provides that the rental may be discharged by services rendered at $9 per hour per employee for a 40-hour week in lieu of cash payment, thus obviating the need for any cash transfers between MMR and RSI on either the service contract or the lease agreement. The unrefuted testimony indicates that, when the ar- rangement with RSI was implemented at the minesite, there was no formal announcement made to the MMR employees. Rather, employees who were on the MMR payroll performing the work now assigned to RSI simply were shifted to the RSI payroll, retaining their seniority from the date of hire by MMR, as well as their job clas- sifications and rates of pay. They worked under the same supervisors and continued to perform the same work as- signments they previously performed as MMR employ- ees. In addition, it is evident from the record that all of the employees at the minesite, whether on RSI or MMR payrolls, were subject to the directions of supervisors of either company, including the issuance of verbal and written reprimands.6 Since RSI owns no equipment, its 5 The record reveals that MFS has 10 4 million shares of stock out- standing. Cards owns I million shares, Walker owns 13 million, Ira Palmer owns I I million, William Palmer owns I million, and Robert D Palmer owns 50,000 The remaining shares are held publicly 6 See, e g., G C Exh. 17 (safety violation by RSI employee Forbes written up by MMR Mine Superintendent Brooks; G C Exh 22 (warn- ing issued to RSI employees Forbes and Sarley and MMR employee Westhoff by RSI leadmen Watts and MMR Superintendent Brooks), G C. Exh 23 (memo regarding failure of RSI employee Sarley to take proper care of equipment written by MMR Superintendent Brooks), G C Exh 25 (memo recording voluntary termination of RSI employee Beam signed by MMR Superintendent Brooks and MMR leadman Coleman) employees utilize the equipment owned by MMR. Hence, the equipment used at the minesite its operated by employees of both companies and involve the same skills; i.e., bulldozers, scrapers, drag lines, and haul trucks. Nor is there any requirement that RSI make pay- ments to MMR for use of the equipment. The testimony indicates that McCrate, MMR vice president for operations, is the overall managerial super- visor in charge of the work performed by RSI employ- ees. However, unrefuted testimony further indicates that Phil Brooks, the mine superintendent for MMR, actively supervises all work at the minesite whether performed by employees on MMR or RSI payrolls. MMR maintains an office in a trailer at the minesite which is used by Ira Palmer when he is on the site and by other MMR and RSI managerial personnel. Two office clericals (not a part of the bargaining unit) also work in the trailer and prepare the payroll information. The payroll information is submitted to MFS, which has no employees but maintains the records for both compa- nies. The records kept by the clerical personnel are com- mingled in the files regardless of the company for which the employees work.7 Ira Palmer, president of MMR, signs payroll checks issued to both MMR and RSI em- ployees, and on August 19, 1982, signed letters of termi- nation issued to laid-off employees of both MMR and RSI-discussed in detail, infra. (See G.C. Exhs. 15 and 16.) In addition, the testimony of Ira Palmer reveals that he and Card make the decisions about when employees of both companies are to be laid off because of work re- ductions and, further, that he determines which employ- ees will be recalled and where they will work at the minesite, regardless of which company for whom they work. The undisputed evidence also discloses that unem- ployment compensation claims of both MMR and RSI employees list MMR as the employer, further, that these claims and the employer designation have never been contested by MMR. (See G.C. Exhs. 12, 13, and 14.) In the circumstances set forth above, it is more than evident that Respondents' claim that MMR and RSI are separate entities and do not constitute a single employer belies the record evidence. Settled law has established four criteria for determining whether separate entities constitute a single employer for purposes of the Act. These criteria are: (1) interrelation of operations; (2) common management; (3) centralized control of labor re- lations; (4) common ownership. Radio Union v. Broadcast Service, 380 U.S. 255, 256 (1965); Royal Typewriter Co. v. NLRB, 533 F.2d 1030, 1042 (8th Cir. 1976); Marine Welding & Repair Works v. NLRB, 439 F.2d 395, 397- 398 (8th Cir. 1971); Al Bryant, Inc., 260 NLRB 128 (1982); Parklane Hosiery Co., 203 NLRB 597, 612 (1973). Although the determination of single employer status ul- timately depends on the factual circumstances, it is nev- ertheless characterized by the absence of an "arm's length relationship found among unintegrated compa- 9 The records themselves indicate that the employees are viewed as working for MMR. For example, a "Task Training Record" of RSI em- ployee Jones (G.C. Exh. 27) is on the identical form as a similar record for MMR employee Westhoff (G C. Exh 28) and both forms cite MMR as the employer MIDWESTERN MINING rues." Operating Engineers Local 627 v NLRB, 51& F.2d 1040, 1045-46 (D.C. Cir. 1975), affd. on this point sub nom. South Prairie Construction Co. v. Operating Engi- neers Local 627, 425 U.S. 800 (1976); see NLRB v. Don Burgess Construction Corp., 596 F.2d 378, 394 (9th Cir. 1979)., cert. denied 444 U.S. 940 (1979). It is readily apparent that Respondents here meet all the controlling criteria for single employer status. Own- ership of all of the companies (MFS, MMR, and RSI) is held substantially by Card, Walker, and Ira and William Palmer. Operationally, RSI is little more than a shell with no administrative capacity and no discernible cap- ital assets. RSI depends solely on MMR employees to perfoi m its administrative work, and all of the plant and equipment it uses in performing work at the minesite is owned by MMR-for which RSI pays no rental fee whatsoever. Its service agreement with MMR amounts to a virtual "wash" of its obligation to pay a rental fee to MMR for the lease of the new maintenance building. The ostensible overall supervisor of RSI's operation is a vice president of MMR and his office is located in the onsite trailer office of MMR. Ira Palmer as president of MMR signs the payroll checks for employees of both companies and he determines along with Harold Card, chairman of the board of all three companies, when em- ployees of both MMR and RSI are to be laid off because of reduction in work. Likewise, Palmer determines which employees of either company are to be recalled and where they are to be assigned work. It is also apparent that, administratively, the personnel records of employees of both companies are commingled without any need to segregate them on the basis of the company for which the employees work, thus giving rise to the strong inference that both companies are consid- ered to be in fact one employer by its own officials. Fi- nally, it is evident from the record that the labor rela- tions of both MMR and RSI are vested solely in the management officials of MMR. Ira Palmer, McCrate, and Brooks are the top MMR officials controlling the entire operation at the mining site and all of the employees, whether RSI or MMR, are subject to their overall con- trol and supervision. The record also reveals that all the employees working at 'the minesite, regardless of which company, are also subject to the direction and control of low level supervisors, working for either company. Also, the employees are subject to written reprimands from them for job deficiencies and breach of work rules. On the basis of the record evidence it is apparent, therefore, that there is a complete integration of MMR's administrative, managerial, and financial resources with the operation of RSI at every level at the minesite. Fur- ther, the record clearly reveals that the labor relations of both companies are determined solely by the officials of MMR. In these circumstances, I find the relationship be- tween MMR and RSI falls far short of one of "arm's length" dealing. Rather, I find the relationship to be a classic example of separate entities which constitute a single employer for the purposes of the Act. 225 C. The Commencement of the UMW Organizing Effort Lowell Forbes, a UMW organizer, testified that he was visited on June 8 by several of ]Respondents' em- ployees, including his son Dennis, and asked to organize the mine. In response to their request, Forbes began vis- iting employees at their homes or other places off the minesite to solicit signatures on authorization cards for the UMW. According to the testimony of a number of employees witnesses, knowledge of the organizational campaign effort quickly spread to the rinesite, and sev- eral supervisors questioned them about this activity. Laid-off employee Fred Norris testified that on June 12 he was with Supervisor Miles Neal Jr.8 Norris stated that William Palmer came up to them and asked Norris if he had heard anything about the employees "going union." Norris replied that he had not and, according to Norris, Palmer then stated if the UMW got in , he would shut the mine down . Norris also testified that , on June 14, Lester Moore, the second-shift pit boss, asked if he knew which employees signed authorization cards for the UMW . When Norris disclaimed any knowledge about the signing of union cards , Moore stated Respond- ents would shut the mine down if the employees went union. William Palmer recalled having a conversation with Norris but stated that it pertained to a broken throttle rod on the employee's truck. He denied making any threats to shut the mine down. Neal Jr . recalled being with Norris when Palmer came up on that occasion but was unable to recall any mention of the UMW or any threats by Palmer to close the mine. Moore was unable to recall any conversation with Norris about the UMW or stating to the employee that the Respondents would shut down the mine if the employees were represented by UMW Jack Clark, a dragline operator and son-in-law of UMW organizer Forbes, testified that on June 14 he had a conversation about the UMW with Steve Coleman, foreman of the tipple operation.9 According to Clark, Coleman said that Ira Plainer "would just shut the mine down, if the Union came in." Clark also testified that, on June 15, Mine Superintendent Brooks asked if he had been contacted by organizer Prettyman of the UMW. When Clark indicated he had not, Brooks stated, accord- ing to Clark, "You guys ought to get your heads togeth- er because you know what will happen if the Union comes in. Willie [Ira Palmer] will just shut her down." Clark further testified that shortly after the organizing campaign started , Robert Palmer came to him and said Respondents would shut the mine down if the UMW got in. Coleman and Robert Palmer denied talking to Clark about the UMW or stating that Respondents would close the mining operation if the employees were represented by UMW. 6 Neal Jr was the maintenance foreman and his father , Miles Neal Sr., also worked for Respondents. 9 The tipple is where the coal is hauled from the mine pits and put through a washing process before shipment 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employee Matt Mindicki testified that Brooks asked if he were "talking union" or knew of any other employees who were doing so. Mindiciki denied engaging in any such activity or knowing of any other employees who were talking in favor of the UMW. According to Min- dicki, Brooks then said that, if any employees did so, there might be trouble. Brooks denied having such a conversation with Mindicki. Jack Westhoff, an employee currently performing rec- lamation work, stated that, on June 15, Brooks asked if he had heard anything about the UMW attempting to or- ganize the employees. When Westhoff admitted he had, Brooks told the employee he should not get involved be- cause it would hurt his chances of moving up in the Company.1° According to Westhoff, Brooks stated Ira Plamer said he would close down the operation if the UMW got in and Brooks indicated he believed Palmer would do just that. When questioned about this conver- sation, Brooks denied making these statements to West- hoff. Scraper operator Mike Sarley testified that, on June 16, UMW organizer Forbes came to the minesite and Robert Palmer brought him over to where Sarley and Dennis Forbes were standing. After the elder Forbes left, according to Sarley, Dennis Forbes commented that the weather was getting warm. Robert Palmer replied, "Yes, and the fire in the oven is getting hot and going to get hotter for somebody today."11 Robert Palmer admit- ted seeing Lowell Forbes on the minesite on June 16, but denied that he took Forbes over to the area where his son was standing. He also denied having any knowledge as to why the elder Forbes was on the minesite on that occasion. He further denied that he made any comments to Saley or Dennis Forbes. Former employee Scott Beam12 testified that he had a conversation with Robert Palmer on June 15. According to Beam, Palmer wanted to know if he had been ap- proached by anyone from the UMW. Beams stated Palmer told him the Respondents would shut the mine down if the employees went union. Palmer denied making this comment to Beam. Terry Rink, a dragline operator for the Respondents, testified that he had a conversation with Mine Superin- tendent Brooks shortly after the Union began its organiz- ing campaign. Rink stated Brooks asked if he knew any- thing about the union activities going on around the min- esite. Rink replied that he did not. According to Rink, Brooks stated he hoped it would not go any further be- cause, if it did, Respondents would shut the mine down. Brooks indicated to Rink that Respondents could not op- erate under the National Agreement of the UMW. When questioned about this testimony, Brooks denied making any such statements to Rink. Rink further testified that, later the same day, he had a conversation with Robert Palmer about the Union. Ac- cording to Rink, Palmer also questioned him about his Westhoff signed a UMW authorization card on June 14 Dennis Forbes recalls Robert Palmer's comments to be as follows- "Things are going to get hotter than hell and that someone would get roasted," 11 Beam voluntarily terminated his employment with Respondents on September 25, 1982 knowledge of any union activity among the employees. When Rink disclaimed any such knowledge, Robert Palmer stated that Respondents could not operate under an agreement with the UMW and would shut the mine down if the Union got in. Robert Palmer denied having any conversation with Rink about the Union. Edward Roberts, an alleged discriminatee in this case, testified that, on June 16 or 17, he had a conversation with Robert Palmer about a former employee who had quit his job and purchased a dump truck to go into busi- ness for himself. According to Roberts, Robert Palmer said all the employees had better watch out how they voted in the "union thing" or they would all be out driv- ing dump trucks. Roberts testified that Palmer stated the Respondents would shut the mine down if the UMW got in and all the employees would be out of work. As in the case of all of the other statements attributed to him, Robert Palmer denied making these statements to Rob- erts. Laid-off employee King testified that after the UMW campaign began, he had a conversation with coworker Gerald Couch. King stated that Couch confided that he was telling other employees that he signed a UMW card in order to learn which of-them were signing cards for the Union. King further testified that the following day he overheard Robert Palmer talking to Supervisor Watts. According to King, Palmer handed Watts a slip of paper and said, "Here are the names of three of your top recla- mation men who signed UMW cards." Employees Fred Couch and Todd Shaw testified that approximately 2 weeks after the union organizing cam- paign began, they were told by Dwayne Couch that Ira Palmer wanted to talk to them in the mine office. Both employees were reluctant to be seen talking to Palmer in the office while the union activity was taking place. They arranged to meet with Palmer during working hours off the leasehold at the home of Dwayne Couch. i 3 According to the testimony of these two employees,114 Palmer wanted to know why the mine employees were considering joining a union and which employees were upset enough to do such a thing. Couch replied the em- ployees were concerned about money. Couch assured Palmer, however, that he was not in favor of the UMW because he knew Respondents could not afford to oper- ate under a union contract. Shaw, who shared Couch's sentiments, was unable to recall whether Palmer asked them for the names of the employees who signed cards for the UMW. His affidavit indicated, however, that Palmer asked him and Couch for the names of the em- ployees who were trying to get the UMW in at the mine. According to Shaw, the meeting with Palmer lasted for 45 minutes, but he was unable to recall any further de- tails of their conversation. Several days later, Palmer spoke to both employees in the shop on the minesite. Each stated that Palmer said there was a possibility of some openings occurring in 13 Fred Couch was a cousin of Dwayne 14 Fred Couch and Shaw were opposed to the UMW and later at- tempted to get the employees to join the Congress of Independent Unions (CIU) This matter is treated in another section of this decision, infra MIDWESTERN MINING 227 management and asked if the employees were interested in these positions. Each denied that Palmer made any mention of the UMW or conditioned his offer on the em- ployees' opposition to the union organizing effort. As noted, Lowell Forbes was on the minesite on June 16. His purpose for going there was to advise the Palm- ers of the Union's intent to organize the employees. When he arrived, Ira Palmer was not on the site and Robert Palmer drove up and spoke with him. According to Forbes, Robert stated he had heard the UMW intend- ed to organize the employees. Forbes testified that Robert then said Respondents would close the mine if the UMW came in. At this point, according to Forbes, William Palmer came up and voiced the same sentiments expressed by Robert. While they were conversing, Ira Palmer came on the scene and spoke with Forbes. Ac- cording to Forbes, Ira stated the Respondents could not operate under the National Agreement of the UMW and would close the mine. Forbes further stated that Ira and Robert said they wished they knew who the "s.o.b.'s" were who signed authorization cards for the UMW.15 Forbes left the minesite and that same day sent a letter to Respondents notifying them of the Union's intention to organize the employees. (See G.C. Exh. 55.) D. The Layoffs on June 18 As previously noted, under the contractual arrange- ments with Associated, the per-ton price of coal deliv- ered by Respondents to Independence was negotiated an- nually. Douglas Klusmeyer, president of Associated, tes- tified that he attended a meeting with the city council of Independence on June 14 and no agreement was reached on the unit price of the coal. Card also attended this meeting as an observer. During the afternoon of June 15, Card called Ira Palmer to inform him that a new price had not been agreed upon for the coal and further, that Independence would not receive any more shipments from Respondents after June 25 because the coal require- ments of the current agreement would then be satisfied, and Independence would be taking inventory of its stock of coal on hand. Shipments were to resume July 6, pro- vided a new contract price could be negotiated between Associated and Independence. The following day, Klusmeyer contacted Card and ad- vised him that Associated was stopping its weekly pay- ments to Respondents. Klusmeyer told Card that inde- pendence was withholding its payments to Associated until the value of the BTU deficiencies under the current agreement had been recouped. t 6 As the hourly paid em- ployees were scheduled to receive their paychecks on June 25 and the salaried employees on June 30, and the paid vacations of the employees were pending, Respond- 15 In the affidavits given the Board agent investigating the charges filed in this case, Forbes did not mention the threats by Robert and Wil- ham Palmer to close the mine down nor did he mention the statement by Ira and Robert regarding wanting to know the identity of the employees who signed authorization cards. He merely described his conversation with the Palmers as "heated." 16 Normally, Associated received weekly payments from Independ- ence for the coal delivered by Respondents From this amount Associat- ed deducted its fees and any deductions required by the government and then remitted the balance (approximately $85,000) to Respondents ents were faced with a severe cash shortage which threatened their ability to meet their payroll obligations. Card testified he informed Ira Palmer of this situation after receiving the call from Klusmeyer and was in turn told of Forbes' announced intent to organize Respond- ent's employees. Card stated he instructed Ira Palmer to tell all management and supervisory employees not to engage in any discussion with the employees about the UMW or the organizing effort. Card telephoned Forbes sometime during that day and complained that Forbes had reneged on an understanding that UMW would not attempt to organize Respondents' employees until Re- spondents had an opportunity to reduce their debt.t' Card acknowledged that he was upset over the overall situation confronting the Respondents and he told Forbes it was "stupid" to start an organizing campaign at that time, since Respondent's current coal contract was due to expire and a new one had not been negotiated. At approximately 4 p.m. on June 16, Ira Palmer met with the employees working the first and second shifts at the minesite. He informed the employees that a new coal contract price had not been negotiated with Independ- ence. He also told the employees that if Respondents could not get a better per-ton price for the coal from In- dependence, there would be a layoff on June 25 when the current agreement expired. On June 17, Card directed Ira Palmer to inventory all coal in the pits to determine whether Respondents could meet their obligation to Independence until June 25 with- out requiring any further digging. After getting the in- ventory of the coal already mined, Palmer met with McCrate and Brooks to select the employees who would be laid off when the contract expired. According to Palmer, the selection was based on seniority, job classifi- cation, and qualification. The following morning, Card went to the minesite and advised Palmer that Respondents would not be able to meet their payroll if they continued operating with full crews and that all expenses had to be cut. He directed Palmer to lay off all employees immediately except those considered essential to keep the mine open. At approxi- mately noon, in the middle of the first shift, all employ- ees selected for layoff were given their layoff notices and directed to stop work immediately. Palmer testified he did this in the middle of the first shift because he had to contact the second- and third-shift employees before they reported to work. It is uncontroverted, however, that the first-shift employees were paid for the entire shift. Dennis Forbes and Mike Sarley testified that, before they left the minesite after being laid off, they had a conversa- tion with Supervisor Watts. According, to their testimo- ny, Forbes indicated he felt the layoff was due to the union organizing activity taking place at the minesite. Watts replied to Forbes' comments by stating that he could not say because it would get him into a lot of trou- ble. Watts, on the other hand, denied making this com- ment to Forbes. 17 The "understanding" apparently arises from a series of correspond- ence between Ira Palmer and the UMW President Sam Church Jr in the fall of 1981 (See R Exhs 3 and 4.) 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Card testified that on June 21 he was able to borrow $135,000 to enable Respondents to meet their payroll ob- ligation. The employees either picked up their paychecks at the mine office or received them in the mail. Respond- ents attached a notice to each paycheck regarding the UMW organizing campaign. The notice was signed by Card and it advised the employees that Respondents in- tended to resist the Union's attempt to organize employ- ees. It also advised the employees that they had no "legal obligation" to sign authorization cards and cau- tioned them' to read the union cards carefully before making any commitments. (See G.C. Exh. 35.) The record indicates a new coal agreement was signed by Associated and Independence on July 6. However, Respondents did not resume coal production until the last week in July because of other problems that surfaced during the time of the negotiations for the new coal agreement. The prior April, Respondents had been cited by the Missouri Land Reclamation Commission as being delinquent with respect to reclamation on the various properties where the Respondents were engaged in strip mining. On receiving these citations, Respondents en- tered into negotiations with the Commission which re- sulted in a consent order being executed on June 30. (See R. Exh. 32.) The consent order precluded Respondents from engaging in any mining of coal for a 2-week period extending from June 28 through July 11, and required Respondents to devote all operational equipment to rec- lamation work on the various areas where the delinquen- cies were cited. A schedule was set up which provided that, on completion of reclamation work on various tracks, certain equipment could be withdrawn from rec- lamation work and devoted to mining production. For example, the order allowed Respondents to operate one mining unit consisting of one dragline and dozer begin- ning July 12, provided certain reclamation work had been completed on various areas previously mined. A second mining unit could be placed into operation on completion of further reclamation work and a third mining unit could become operational after the comple- tion of additional reclamation work. The unrefuted testimony of McCrate (Respondents' of- ficial in charge of the reclamation work) reveals that Re- spondents were unable to comply with the reclamation schedule required by the consent order. As a result, Re- spondents entered into further negotiations with the Commission and an amended consent order was issued on October 25. This amended order extended the recla- mation schedule while allowing the Respondent to put mining units into operation on completion of certain rec- lamation work. (See R. Exh. 35.) E. The Termination of the Laid-Off Employees Forbes testified that he visited the minesite on July 20 and spoke with Ira Palmer. This visit was at Palmer's re- quest. According to Forbes, Palmer identified laid-off employees Edwared Roberts and Elmer Scales as the in- dividuals he felt were responsible for the UMW's orga- nizing effort at the mine. Palmer asserted that Roberts caused damage to a dragline before the layoff and stated he would have fired the employee, if he had been able to prove it. Forbes testified that Palmer indicated he was not antiunion but that Respondents could not afford to operate under a UMW agreement. Palmer stated that, if given 2 years, he could afford to pay UMW wage scales. Forbes replied that the terms of any agreement between Respondents and UMW would be negotiable. Palmer, on the other hand, denied making any statements to Forbes about Roberts and Scales. He did not deny, however, the other comments attributed to him by Forbes On July 24, Forbes met with Card at a restaurant in Fort Scott, Kansas. According to Forbes, Card also placed the blame for the organizing campaign on Rob- erts and Scales. Card repeated that Respondents were not antiunion, but the UMW National Agreement would break them. Again, Forbes repeated that the terms of an agreement would be negotiable. Forbes further testified that Card mentioned he knew Sam Church (then UMW president) and Forbes suggested that Card contact Church. During this conversation, Card informed Forbes that Respondents would start recalling employees but, according to Forbes, only intended to employ 52 of the 64 employees working before the layoff.1' Forbes also stated that he had a subsequent conversation with Card on July 30 about the recall of the laid-off employees. Ac- cording to Forbes, Card stated that those employees not recalled would be placed on a "panel" and recalled to replace any employees who quit or retired. On August 19, however, Respondents sent a letter to 28 of the laid-off employees notifying them that the tem- porary layoff was a permanent termination. The letter was signed by Ira Palmer and cited the restrictions placed on Respondents' mining operation by the Recla- mation Commission. The letter advised the terminated employees that the possibility of rehire would be consid- ered, if Respondents were allowed to reinstate more stripping machinery at a later date. (See G.C. Exh. 16.) Ira Palmer testified that, contrary to the language of the letter, he did not terminate the laid-off employees on August 19. According to Palmer, he wanted to alert the employees to the seriousness of Respondents' problems so they would not sit around waiting to be recalled. He further testified that Respondents continued to use the pool of laid-off employees for rehires when the occasion warranted it. The parties stipulated in the record, how- ever, that the files of the 28 terminated employees were placed in and intermingled with Respondents' files of all other terminated employees. F. The Alleged Voluntary Recognition of UMW Forbes testified that a meeting was set up in Washing- ton, D.C., on August 11 for Ira'Palmer to discuss his sit- uation with top officials of the Union. Accordineg to Forbes and Prettyman,19 they had lunch with Palmer in a nearby restaurant before the meeting. Forbes stated Palmer insisted Respondents needed 18 to 24 months before they could afford to operate under the UMW Na- tional Agreement. He assured Palmer the Union would do everything it could to enable Respondents to operate 18 The record shows that 42 employees were laid off on June 18 19 Forbes was in Washington, D C., to attend the meeting and Pretty- man was there to attend an organizers' training session run by the Union MIDWESTERN MINING profitably. According to Forbes, Palmer repeated that he felt Roberts and Scales started "the whole damn mess." Forbes testified that Palmer asked him what percentage of the employees had signed union authorization cards and he replied that a majority had done so . 20 Prettyman recalled that Palmer asked for time and Forbes indicated the Union would be willing to grant this, if Respondents recognized the Union as the bargaining representative of the employees. He corroborated Forbes' testimony that Palmer stated he felt Roberts and Scales were responsi- ble for the organizing drive by the Union. The meeting was held in Church's office at the UMW headquarters. Church was present only for a brief period of time and apparently turned the matter over to Wilbert Killion, UMW vice president. Dennis Estep , UMW di- rector of organizing, Steve Galati, executive assistant to Killion, and Forbes also participated in the discussions with Palmer. According to Forbes, Palmer explained Re- spondents' financial plight to the union officials and in- sisted Respondents could not afford to currently operate under a union contract and continue to survive. The union official authorized Forbes to take every measure to help Respondents become a profitable operation and he agreed to do so, provided Respondents granted the Union recognition. Forbes further testified that, at the time of the meeting, he was not aware the Missouri Rec- lamation Commission had cited Respondents for viola- tions and required extensive reclamation work before production at the minesite could resume. Forbes stated that Galati drafted a recognition agree- ment and had it typed up for presentation to Palmer. Ac- cording to Forbes, Palmer said he had no problem with the agreement but would have to consult with Respond- ents' board of directors . Galati agreed and asked that Palmer have the recognition agreement typed on Re- spondents' letterhead. Forbes further stated that Palmer promised to have the executed document available for him to pick up on August 16 at the minesite. Galati and Estep were brought in as witnesses to testi- fy in these proceedings . Galati testified that, while the meeting with Palmer was in progress, he sent for the Union's file on Respondents and noticed that it contained previous correspondence from the prior year between Palmer and Church. The letters indicated that Palmer asked that his company be allowed time to improve its financial position before considering a union contract and Church agreed . (See R. Exhs. 3 and 4.) According to Galati, Palmer stated Respondents had serious reclama- tion problems and had to shut down the mine. Galati re- called that Palmer told the union representatives he had no problems reaching an agreement with UMW if he were allowed time to get his business on its feet . Galati stated the union representatives assured Palmer they did not want to put his company out of business and Galati asked Forbes directly if he had any objection to allowing Respondents time to improve their financial position. Galati testified Forbes indicated he had no objections provided Respondents recognized the Union. According to Galati, during the course of the meeting, he overheard 20 According to Forbes, he had 36 signed authorization cards at the time of the meeting in Washington 229 Forbes inform Palmer that the Union had a majority of the employees signed up. Galati further testified that he drafted a recognition agreement which provided for peri- odic monitoring of Respondents' operation by a designat- ed union representative and contained protection for the employees who supported the Union during the organiz- ing campaign. Galati read the draft to the participants and then had the language typed up. Galati testified that Palmer indicated he left his eyeglasses on the aircraft, and Galati loaned him his pair to see if he could read the document. According to Galati, Palmer read the agree- ment and stated he had no problems with it, but he wanted to take it back to his board of directors for their approval. The union representatives agreed to this proce- dure. Estep's testimony corroborated that of Galati and Forbes. He recalled that Palmer passed out documents to support his position that Respondents were financially unable at that time to comply with the terms of the UMW agreement. Estep recalled that either he or Forbes informed Palmer the Union had a card majority and wanted Respondents to recognize it. According to Estep, Palmer indicated that he had no problems with this and, at that time, Galati suggested he draft a letter of recogni- tion which could be signed by Palmer. Estep stated that, after the letter was typed and presented to the partici- pants for their approval, Palmer agreed to the terms but stated that he had to take it back for approval by his board of directors. Estep further testified that Palmer said it would only be a matter of formality, since his father and uncle were on the board. According to the testimony of Estep, Palmer indicated he would return the signed document to the Union after approval by the board of directors. Forbes then asked to be allowed to come to Respondents' office to pick up a copy when it was ready and Palmer agreed. Forbes stated that after the meeting he went to Palm- er's motel room. According to Forbes, Palmer indicated that he had problems with Prettyman arid did not want him to be the designated representative of the Union to monitor Respondents' operation. For this reason, Forbes suggested that Palmer insert his name as the representa- tive of the Union. Prettyman testified that later that same evening he met Palmer in the motel lounge. Prettyman was accompanied by another union representative attending the organizer session. According to Prettyman, he asked Palmer how things went and Palmer stated the Union agreed to give him time to get his operation in a sound condition. Pret- tyman further testified that Palmer indicated he felt the employees were stupid to want a union and repeated his conviction that Roberts and Scales were the instigators of the organizing effort. Prettyman testified that Palmer said he did not want to take these two employees back. George Krehel, the organizer with Piettyman in the motel lounge, testified that Prettyman asked Palmer if he had reached an agreement and Palmer indicated he had, but did not state the terms. According to Krehel, Palmer told the union organizers that he needed more time in order to get his company on its feet. Krehel testified that Palmer mentioned there were two individuals at the 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD company that he did not want back, but Krehel was unable to recall the names of these employees. Palmer's version of the events in Washington, D.C., differed from that of the union representatives. Accord- ing to Palmer, the meeting was arranged by Forbes and he attended because Card was unable to do so. Palmer stated his primary purpose for going was to discuss the "agreement" he had with Church the prior year not to organize the mine for 18 to 24 months. Palmer admitted having lunch with Forbes and Prettyman before the meeting but denied making any reference to Roberts and Scales. He also denied that Forbes told him a majority of the employees had signed authorization cards for the Union. On August 16, Forbes went to Palmer's office at the minesite to pick up the recognition agreement. Forbes stated Palmer gave him an unsigned copy of the agree- ment of MMR's letterhead. It was identical to the Galati draft with the exception that it named Forbes as the de- signed union representative to monitor Respondents' fi- nancial condition on a monthly basis. (See G.C. Exh. 57.) Forbes testified that Palmer told him Respondents' attor- ney was out of town and they were unable to reach him. According to Forbes, he met with Card the following day at a restaurant. Card advised Forbes he was on his way to Kansas City to confer with his attorney before signing the agreement. He told Forbes the letter could be picked up the next day. When Forbes arrived at the min- esite on August 18, he was given a copy of a letter by Palmer's secretary. Unlike the unsigned letter received 2 days before, this one, signed by Ira Palmer, declined to recognize the UMW and offered to enter into discussions with the Union in 24 months, if that was the desire of the employees at that time. (See G.C. Exh. 58.) At the same time, Forbes was handed an unsigned copy of a letter, also on MMR letterhead, from Ira Palmer to Kil- lian specifying Forbes as the designated union represent- ative to monitor Respondent's financial condition on a monthly basis. (See G.C. Exh. 59.) Card admitted that he met with Forbes on August 17. He stated Forbes was pressing for the signed recognition letter so he could send it to the national office before he went on vacation. Card assured Forbes he was on his way to confer with Respondents' attorney about the letter. According to Card, Forbes said the attorney would attempt to change the language, but it would not matter since the Union had 80 percent of the employees signed . Card stated he doubted that and Forbes offered to show him the signed authorization cards. According to Card, he refused the offer. Contrary to the testimony of Forbes, Palmer testified he was not at the minesite office when Forbes came for the recognition letter on August 16. Palmer stated he had his secretary type up a letter with the changes sug- gested by Forbes. She gave the orginal and a copy to Card and left a copy on Palmer's desk. Palmer denied being present when the union representative appeared but stated that the unsigned copy was no longer on his desk when he returned to the office. Palmer also denied instructing his secretary to put the recognition letter on MMR letterhead or directing her to type up the second letter specifying Forbes as the designated union repre- sentative. In fact, Palmer discliamed any knowledge of the second letter specifying Forbes as the representative and testified he had never seen it prior to its introduction into evidence at the hearing. According to Palmer, the letter which was finally sent to UMW headquarters was prepared pursuant to the instructions given Card by Re- spondents' attorney. G. The Refusal to Recall Roberts and Scales 1. Edward Roberts Edward Roberts was a dragline operator working the third shift prior to the layoff. He was one of the employ- ees laid off on June 18. Roberts signed an authorization card for UMW on June 11.21 Roberts stated that, after signing the authorization card, he personally talked to approximately 6 to 10 employees in an attempt to solicit their support for the UMW. Roberts was not recalled when Respondents resumed production at the mining site. Roberts testified that em- ployee Kenneth Davidson was recalled as a dragline op- erator, but had less experience and seniority than he. In fact, according to Roberts, several years previously he was working as a dragline operator for another coal company (Bill's Coal Company) when Davidson worked for that same employer as an oiler. Roberts stated that he and several other operators allowed Davidson to operate their machines periodically to get experience on the dragline. Roberts also testified that he had never re- ceived any complaints about his work as a dragline oper- ator while he was employed by Respondents. He re- called, however, that approximately a month and a half before the layoff, Robert D. Palmer questioned him and employee Terry Couch in the office about damage to a dragline. According to Roberts, Palmer asked, "Which of you sons of bitches pulled a crow's foot into the fair- leads on that dragline last night?" Both employees denied causing any damage to the equipment. Roberts stated that Palmer then concluded that another dragline opera- tor, Richard Tolman, was responsible for the damage. A memorandum in Roberts' personnel file, dated May 24 and signed by Brooks, was introduced into evidence. Ac- cording to this document, Roberts was the one responsi- ble for pulling the crow's foot into the fairleads thereby damaging the dragline. (See G.C. Exh. 93.) Roberts testi- fied he was never told that this memorandum had been put in his personnel file nor had Brooks ever approached him about the damage to the equipment. He further testi- fied that he had not caused any damage to the dragline as the memorandum indicated. Brooks testified that he, McCrate, and Ira Palmer de- termined which of the laid-off employees would be re- called and when they were to report to work. According to Brooks, job classification, seniority, productivity, care in handling equipment, and any personal information the three management officials possessed about the employ- ees were the criteria for determining which employees 21 Roberts' signature was solicited at his home by Forbes and Pretty- man Roberts testified the union representatives said they were going to attempt to get Respondents to voluntarily recognize the Union and, in the event this did not occur, they would seek an election MIDWESTERN MINING 231 would be recalled. He stated that, before recalling Ken- neth Davidson, he first tried to contact laid-off employee Larry Allen. He learned that Allen had been reemployed by Bill's Coal, and he then attempted to contact laid-off employee Kenneth Cambers, but was unable to do so. Brooks testified he then recalled Davidson. When an- other dragline operator was needed, Brooks succeeded in contacting Cambers and the employee reported back to work.22 Brooks also testified that Cambers had years of experience operating a crane with various construction companies and he considered this qualifying experience for a dragline operator. He admitted, however, that after the layoff, employee James Yates operated a dragline for Respondents even though he had no prior experience on that type of equipment. According to Brooks, Respondent's did not recall Roberts because McCrate checked the dragline experi- ence listed on the employment application Roberts sub- mitted when he was first hired by Respondents on Octo- ber 7, 1981. He determined that Roberts had less actual experience operating a dragline than his application indi- cated. Brooks admitted that he could not recall manage- ment officials checking the employment records of any other employees, other than Scales, before deciding whether to recall them. Brooks further stated that an- other controlling factor in deciding not to recall Roberts was that the employee was careless in handling the equipment. He stated that Ira Palmer had observed Rob- erts damage the fairleads of the dragline he was operat- ing by dragging the crow's foot into them. According to Brooks, this occurred in May and he put a notation in Roberts' personnel file about the incident. Brooks assert- ed that he had talked with Roberts on several occasions prior to the layoff about being "rough" on the dragline. Ira Palmer testified he had observed Roberts damage the fairleads on the dragline he was operating. Palmer stated the damage to the equipment amounted to $6000; however, he admitted he never spoke to the employee about the matter. He also stated that Supervisors Dwayne Couch and Miles Neal Jr., as well as Brooks, reported to him that Roberts was rough on the equip- ment. Palmer further stated that leadman Watts informed him that Roberts had not run a dragline at Bill's Coal before being hired by Respondents, and McCrate in- formed him that the experience listed on Roberts' em- ployment application was not correct. Palmer denied having any knowledge that Roberts engaged in activity in support of UMW. 2. Elmer Scales Scales was first hired by Respondents as a dragline op- erator in May 1981. Prior to working for Respondents, Scales operated a dragline and other mining equipment for several years with other coal mining companies in the area. Scales was on the midnight shift until he re- signed on March 25, 1982. He left Respondents' employ to take a similar position with Pat's Coal Company be- cause it was 24 miles closer to his home and he could work on the day shift. However, his new employer quickly experienced financial difficulties and could not pay the employees. Scales contacted Respondents and was rehired on April 30. When he returned, he operated a dragline on the second shift. Scales testified that, when he was rehired by Respond- ents, he was not required to submit a new employment application nor did he have to take the physical examina- tion required of all new employees. He did sign a letter of reinstatement, however, indicating he resigned for personal reasons on March 25 and that he would operate a dragline on the second shift. (See G.C. Exh. 91.) Scales stated that when he was rehired, he was never told by Brooks or any other management official that he would be on probation for 60 days or that he would start at the bottom of the seniority list for his job classification. He testified that Brooks informed him that the only thing he lost by leaving in March was his paid vacation. Scales further testified that in mid-March, prior to leaving to work for Pat's Coal, he had a conversation with Robert D. Palmer in the pit where he was working. The drag cable had broken on his machine and he was attempting to fix it without any help. Palmer drove up to the pit with James Query, Respondent's night watchman. According to Scales, he commented to Palmer that a union was needed at the mine in order for operators to get any help. He stated that Palmer replied, "Talk like that will get you fired."23 When the UMW campaign started, Scales signed an authorization card on June 10 at his home. He testified he was given the card by Prettyman who told him that when a majority of the employees signed, the union rep- resentatives would present the cards to Ira Palmer to show that the employees wanted to be represented by the Union. Scales also testified that at one of the meet- ings in the Union's hall, Forbes stated that when the cards were shown to Palmer, if he were acting in good faith, he would recognize the Union. If not, the cards would be used to get an election. In addition to signing an authorization card, Scales stated he talked to 8 or 10 employees about supporting the Union and went with the union representatives to contact other employees at their homes. He also attended five or six union meetings held at the Union's hall in Mulberry, Kansas. Scales stated that, on June 12, he was in the pit getting ready to leave and Roberts was there to start his shift on the dragline. According to Scales, Robert 13. Palmer drove up to let an employee known as "Big Foot" Rhodes out at the pit. Scales stated that Palmer cau- tioned Rhodes to stay away from dragline No. 1 (the ma- chine operated by Scales and Roberts) because "he could get into trouble hanging around there."24 Scales was one of the employees laid off on June 18. In early August, he called Brooks to inquire about being recalled. He complained to Brooks about the fact that 22 Respondents' records show that Davidson was recalled on August 19 and Cambers on August 26, (See G.C Exh 6.) Respondents' records 23 In the video tape deposition, Palmer denied making this comment to also disclose that each of these two employees was initially hired as tem- Scales. Query was not called as a witness in these proceedings porary employees because they were on layoff status from another coal 24 A spoils pile is the topsoil, dirt, and rock which is dug out by the company (See G C Exhs 37 and 38) dragline operator in getting to the coal 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other operators less senior and less experienced than he had been recalled. Scales testified that Brooks told him the recalled dragline operators had more time on the ma- chines than Scales. Scales further testified that he called Respondents' office again on August 19, and Melvin Bowie, Respondents' purchasing agent, answered the telephone. Scales questioned Bowie about his chances for recall. He stated Bowie told him to contact the UMW representatives since they seemed to know more about it than did Respondents' officials. On August 22, Scales re- ceived a letter from Respondents terminating his employ- ment with them. Scales testified that while employed by Respondents, he never had any complaints about his work perform- ance. He testified with pride about his ability to operate a dragline machine. Scales further testified that, on sever- al occasions, Brooks selected him to teach new employ- ees how to dig a pit and stack a spoils pile.25 According to the testimony of Scales, a good operator not only digs a pit properly but also lays his "dumps" (spoils pile) in such a straight and neat fashion that he "signs his name to them." Thus, according to Scales, a good operator can come back the following day and distinguish each of his dumps from that of any other operator. Scales also testified that although he had several years' experience operating a crane, he did not believe a crane operator with no prior dragline experience could properly dig a pit because of the differences in the machinery. Scales acknowledged that he was aware that Brooks and Moore were staking flags in the pits in April or May at the end of each shift to measure the production of each dragline operator. According to Scales, prior to the layoff he never received any complaints from management about his job performance. 2 6 The testimony of Respondents' witnesses differed sharply from that of Scales. Brooks stated he informed Scales when he was rehired on April 30 that he would go to the bottom of the seniority list and be on probation for 60 days. He acknowledged, however, that this was not set forth in the reinstatement letter which he and Scales signed at that time. Brooks further testified that he and the pit boss, Lester Moore, staked flags in the pits from April 30 to May 17 in order to ascertain the pro- duction of each dragline operator. According to Brooks, these measurements revealed that Scales' production had decreased sharply from the level he had been producing prior to quitting in March to work for Pat's Coal. Brooks estimated that Scales was only producing half of what he had previously been digging in the pits. Brooks also stated that he noticed Scales seemed depressed when the employee returned in April. He testified he ap- proached Scales about this change in his attitude and asked if he could be of assistance. According to Brooks, Scales rejected his offer of help and said, "Things would work out." 25 A spoils pile is the topsoil, dirt, and rock which is dug out by the fragline operator in getting to the coal. 26 Scales' pride in his ability to operate the dragline was corroborated by the testimony of employee Terry Couch, another dragline operator Couch said Scales could make the machine "move" and that he "laid up his dumps as good or better" than any of the other dragline operators He confirmed that Scales took great pride in his skills and work As a result of the decrease in Scales' productivity and his change in attitude, Brooks stated he drafted a memo- randum on Scales' job performance which he and Ira Palmer signed and placed in the employee's personnel file. This memorandum was dated May 17 and indicated management was contemplating termination of Scales' employment. (See G.C. Exh. 39.)27 Brooks admitted that neither he or Palmer spoke to Scales about the deficien- cies in the employee's job performance, nor did they advise the employee of the memorandum placed in his personnel file. Finally, Brooks testified that, in making a determina- tion not to recall Scales when production resumed, Ira Palmer advised him and McCrate that he received infor- mation that Scales had less dragline experience than indi- cated on the employee's job application. For this reason, Brooks stated he decided to recall employee Larry Allen, whose employment application showed more dragline experience than Scales possessed.28 Ira Palmer testified he received information from a secretary at Bill's Coal that a foreman there reported Scales did not have the dragline experience indicated on his employment application. Palmer stated he considered this information along with the fact that, in May, Brooks complained to him about Scales' attitude and the 50-per- cent drop in the employee's production in the pits. Palmer acknowledged that Brooks had a memorandum typed up to this effect, which he and Brooks signed and placed in Scales' personnel file. Palmer identified this document as the one introduced into evidence as General Counsel's Exhibit 39. Contrary to the testimony of Brooks, Palmer stated that, as a result of the information he received about Scales' dragline experience, he checked all the references contained on the employment applications of all the laid- off employees. He admitted, however, that he never placed any notation in Scales' file indicating that the em- ployment experience set forth by the employee was not correct. Palmer further testified that when Scales was re- hired on April 30, the employee was informed by Brooks that he would be a probationary employee for 60 days and would start at the bottom of the seniority list for his job classification. According to Palmer, when an employee was rehired, it was Respondent's standard policy to impose a 60-day probationary period and start the employee at the bottom of the seniority list for his job classification. He cited two instances where these requirements were im- posed. The first involved employee Bernie Lamb, who Palmer stated quit for 3 months in 1980 and was re- hired.29 The second example cited by Palmer involved 27 A dispute developed at the hearing over the wording contained in the document purporting to be the memorandum placed in Scales' per- sonnel file on May 17. This matter is treated elsewhere in this decision, infra 28 Allen's employment application was introduced into evidence as R Exhs 32 and 33. Similar to the applications of Cambers and Davidson, these documents reveal that Allen was hired initially as a temporary em- ployee because he was on layoff status from another coal company. 29 Lamb, a current employee, was called as a witness by Respondents. Lamb's testimony first corroborated that of Palmer but when it was Continued MIDWESTERN MINING employee Bobby Cliffman who, according to Palmer, was discharged and then rehired in 1979. Palmer denied having any knowledge about Scales' ac- tivities on behalf of the Union. He stated that the basis for the decision not to recall Scales was the incorrect listing of the dragline experience on the employee's job application and the change in attitude and lack of pro- ductivity indicated by the memo of May 17. A dispute developed at the hearing regarding the wording contained on the document submitted into evi- dence as the memorandum placed in the personnel file of Scales on May 17. (See G .C. Exh. 39.) After reciting the history of Scales' employment with the Respondents and the conditions of his rehire , the document concluded with the following: After Mr. Scales returned to work, it was found that he had a bad attitude problem about his work. Management is contemplating termination. Roy Wimpey, the Board agent investigating the charges filed in this case, was called as a witness by the General Counsel. According, to Wimpey counsel for Re- spondents handed him the document for inspection during the course of his investigation and the last sen- tence read, "At the time of layoff, management is con- templating termination." Because he had been advised by Respondents that they had not considered a layoff until June 15, Wimpey stated he considered it unusual to find mention of a layoff in a document dated May 17. Wimpey asked for a copy of the document but his re- quest was denied by Respondents' counsel.30 Wimpey reported his findings to his supervisor, William Johnson. Johnson and Wimpey arranged for a further confer- ence with Respondents' counsel at the Board's Regional Office to discuss the charges. A request was made to review this document, along with others. Counsel for Respondents did not hand over the document on this oc- casion but read it to the Board agents. Both Johnson and Wimpey testified that the concluding sentence read to them was the same as the language Wimpey read' when he first saw the document. Again, a request to copy the document was denied. Although he did not take the stand as a witness, coun- sel for Respondents represented that he was unable to recall the precise wording of the document in question. Ira Palmer and Brooks testified, however, that the docu- ment introduced into evidence was the memorandum they signed and placed in Scales' personnel file on May 17. They denied that its language had been altered in any fashion. pointed out to him on cross-examination that Respondents' records showed his seniority date to be December 4, 1978 (see GC. Exh 5), Lamb became vague and uncertain about when he quit his job and was rehired Nevertheless, he maintained that, whenever it was, he went to the bottom of the seniority list and had to complete a 60-day probation- ary period 30 It was apparently the practice of Respondents' counsel not to pro- vide Board agents with copies of clients' documents and records during investigations of unfair labor practice charges against them 233 H. Additional Acts of Alleged Unlawful Conduct Employee Ronald Christian, a pit loader operator who was not laid off on June 18, testified that he had a con- versation with William Palmer on June 21. Christian stated this conversation occurred on 1 he day a meeting was scheduled to be held at the union hall in Mulberry, Kansas. According to Christian, he was operating a ma- chine in the pits when William Palmer drove up accom- panied by Curtis Dwayne Couch. Christian testified that Palmer asked him to attend the UMW meeting and "tell them that if the UMW got in, Respondents would close the mine." Christian stated that Couch verbally affirmed Palmer's prediction that Respondents would close the mine if the Union became the representative of the em- ployees. The testimony indicates that after the organizing cam- paign started among Respondents' employees, a number of meetings were held between the union organizers and the employees at the Union's hall in Mulberry. It is evi- dent from the testimony that Mulberry is a small commu- nity of approximately 500 people and there are only two main thoroughfares going through the town. The union hall is located approximately a block off the intersection of these main streets. Further, the mother of William and Robert D. Palmer resides in the town, and William Palmer and his family also live there. Consequently, in order to reach the Palmers' homes, one must traverse the main streets, thereby passing the union hall. According to the testimony of several employee witnesses, on a number of occasions when the employees were attending union meetings at the hall, one or the other of the Palm- ers would drive by in a pickup truck. In addition, employee Jack Clark testified that he had a conversation with Robert Palmer about what took place at a union meeting in Mulberry on July 26. Ac- cording to Clark, during the course of the meeting em- ployee Jack Westhoff sat beside Lowell Forbes at a table in front while he and Dennis Forbes sat in the audience with the rest of the employees attending the meeting.31 Clark stated that, several days later, Robert Palmer came up to him and Dennis Forbes and said, "Boy, you guys don't have much suck with your father because you sit out in the audience and Jack [Westhoff) sits right beside him."3z There is testimony in the record regarding continued threats to close the mine if the UMW became the bar- gaining representative of the employees. Clark testified that, in early July, Prettyman was on the leasehold and Robert Palmer pointed out the union representative to him. Clark stated that Palmer said, if the UMW got in, Respondents would shut the mine down. Clark and Dennis Forbes also testified that, on August 6, they were at a homecoming event and were standing by Robert Palmer's automobile. According to their testimony, Palmer stated that if the employees went UMW, they could all look for a job because Respondents could not 31 Clark and Dennis Forbes were the son-in-law and the son, respec- tively, of Union Organizer Lowell Forbes. 32 Palmer denied making this statement to Clark about the union meet- ing. 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD afford the Union and would close the mine. Clark also stated that Palmer said some of the employees were good workers and he had plans for employee Westhoff. However, according to Clark, Palmer went on to state that if the UMW got in, he would make Westhoff so sick, he would puke.33 Employee Mike Sarley34 testified that, on August 11, be and Robert Palmer were riding in Palmer's pickup truck. According to Sarley, Palmer said that if the em- ployee signed an authorization card for the UMW, he should think twice. Sarley further testified Palmer told him that if the UMW got in, the Respondents would take all of the equipment and park it at the shop. Palmer denied making these comments. Laid-off employee Edwin King35 testified that, on August 14, he was at his daughter's home and had a con- versation with William Palmer. King stated that William Palmer said Respondents were not going UMW. Ac- cording to King, Palmer said Respondents would pad- lock the place and auction off the equipment before they would sign a contract with the Union. Palmer admitted having a conversation with King but denied making the statements attributed to him. According to Palmer, King was at his daughter's home which was across the street from Palmer's residence. King asked if Respondents would be willing to sign a contract with the UMW, if the Union won an election. Palmer stated he replied he did not know but if the cost to Respondents was such that they were unable to meet their bills, they might have to "shut her down." Dennis Forbes testified regarding a conversation he had with Robert Palmer on August 19. Forbes was unable to recall how the conversation was initiated, but stated that Robert Palmer told him that Independence Power still did not want to raise the price it was willing to pay Respondents for their coal. According to Forbes, Palmer also made the comment during this conversation that if the employees selected the UMW, Respondents would have to close down the mining operation. Clark also testified that, on August 21, Robert Palmer told him the Respondents were getting only $21.90 a ton for their coal. Clark stated Palmer said that, because of the low price, Respondents would have to shut down the mining operation if the Union got in.36 Former employee Scott Beam37 and employee Westh- off testified that they had a conversation with Robert Palmer the evening of September 2 when they were at- tending a softball tournament. According to Beam, Robert Palmer told him and Westhoff that they "could write it down and take it to the UMW that if the mine went union, Respondents would shut it down." Westhoff recalled that Palmer added that the employees could pass as Palmer denied making any comments to either Clark or Forbes about the Union or what Respondents would do if the employees select- ed the Union as their bargaining representative 34 Sarley was laid off on June 18 and recalled on August 10. ss King was laid off on June 18 and had not been recalled by Re- spondents as Robert Palmer denied making any comments of this nature to Clark or Forbes 31 Beam was laid off on June 18 and recalled by Respondents during the first part of August. He quit his employment with Respondents on September 25 on his statement to anyone they wanted to. Palmer, on the other hand, denied making any such statements to Westhoff or Beam. He admitted, however, that he saw the employees at the softball tournament that evening. Westhoff further testified that, on September 13, Robert E. (Bobby) Palmer came up while he was talking with a group of employees about the Union. Westhoff stated that Bobby Palmer told the employees that if they selected the UMW as a bargaining representative, Re- spondents would take all the equipment from the mining operation and park it in the parking lot next to the shop. Westhoff stated that Bobby Palmer emphasized his state- ments by saying, "That comes from the top." There is also testimony in the record by former em- ployee Beam regarding a conversation he had with Steve Coleman, then designated as leadman of the tipple and coal-washing operation. Beam testified this conversation took place on September 14 in the tipple area. According to Beam, Coleman asked the employee to be certain to attend the UMW meeting scheduled for that evening. Beam stated that, the following day when he reported to work, Coleman wanted to know what occurred at the union meeting. 1. The Alleged Unlawful Assistance to CIU 1. The solicitation for CIU As previously noted, employees Fred Couch and Todd Shaw were opposed to the prospect of the UMW repre- senting the employees. Couch's testimony indicated that he made contact with a CIU representative to investigate the possibility of that union as an alternative to the UMW.38 Couch denied that any of the management offi- cials or supervisors at the mine suggested that he contact the CIU. Couch further testified that after meeting with the CIU representative (Conrad), it was decided that a meeting would be set up between the CIU official and the employees at a motel in the nearby town of Nevada, Missouri, during the evening of September 2. In order to persuade the employees to attend the meeting, Couch and Shaw began soliciting the employees at the minesite to sign CIU authorization cards and engaged in discus- sions with the employees about being represented by that union. Although Couch and Shaw admitted they made the solicitations during working hours, it was not until cross-examination by Respondents' counsel that they as- serted they only spoke to the employees about the CIU during the lunch period or their breaktimes. Contrary to the testimony of Couch and Shaw, several employees stated they were approached by these two re- garding the CIU during working time in their working areas. Employee Clark testified that, on September 2, Couch came over to a group of employees, including Clark, approximately 15 minutes before the lunch break and talked with them about the CIU and the meeting which was scheduled to be held that evening. Clark stated the discussion continued through the lunch period, which normally lasts 30 minutes. According to Clark, 38 Although the testimony of Couch does not reveal when the contact was made, Richard Conrad, current national vice president of CIU, testi- fied he was contacted by Couch in late August MIDWESTERN MINING leadman Neal Jr. came into the area several times during the discussion but said nothing about it to the employees. Employee Beam testified that, on September 1, Couch and Shaw came over to him in the tipple area during working hours. They informed him that the CIU repre- sentative had agreed to come and talk with Ira Palmer. Beam stated that leadman Coleman was 25 or 30 feet away but did nothing to interfere with the employees' conversation . Beam asserted this was unusual because, in the past, Coleman stopped employees from conversing about personal matters while working. Beam further stated that, later the same day, Couch told him, in Cole- man's presence, that the CItI representative had talked with Ira Palmer, who okayed the CIU and was for it.39 Similarly, employee Christian stated Couch came to the pit area where he was working and started a conver- sation with him about the CIU. Christian testified that Couch told him management could live with the CIU but not with the UMW. According to Christian, Couch maintained that there was no $3-per-ton royalty included in the CIU's benefits. Christian further testified that he observed Shaw drive William Palmer's pickup truck into the pit area and engage employees Terry Loudermilk and Jim Harper in a conversation about the CIU. Chris- tian testified that Shaw's discussion with the employees lasted for approximately 15 minutes and that he was in earshot of Shaw for 5 to 10 minutes. Christian further stated that Mine Superintendent Brooks was approxi- mately 50 feet away but made no attempt to interfere with the discussion taking p]'ace among the employees. He also stated that he did not observe Couch or Shaw perform any repair work on the machines in the pit area while they were conversing with the employees about the CIU. Employee Beard testified to a conversation about the CIU he asserts he had with Shaw on August 31 in the pit area during working time. Beard stated he and Shaw talked for approximately 15 minutes and then Shaw left to talk with other employees. Beard further testified that Shaw did not perform any repair work on the machines while he was in the area. Dennis Forbes testified that he observed Couch and Shaw speak with Robert Palmer and Neal Jr., and then go and talk with employees in the area about the CIU during working time. According to Forbes, Couch and Shaw engaged the employees in a discussion for approxi- mately 20 to 30 minutes. Forbes further stated that none of the leadmen or supervisors made any effort to stop Couch and Shaw or interfere with their conversations with the employees. Both Couch and Shaw stated they also spoke with the leadmen at the minesite about supporting the CIU. Couch testified he spoke with Robert Palmer about at- tending the meeting with the CIU representative on the evening of September 2. Couch further stated he told Palmer that if management did not agree to accept the CIU, he would drop the matter. According to Couch, Palmer was upset at first but then decided the CIU ss Contrary to Beam's recollection of the date, the record evidence in- dicates that Conrad spoke with Palmer on September 3 rather than on Septembea I 235 might be of benefit to the Respondents. Couch stated that he also spoke to Neal Jr., who adopted the same at- titude as Robert Palmer. In addition to speaking to Palmer and Neal Jr. about attending the CIU meeting, Couch testified that he spoke to leadman Jack Wallace, Steve Coleman, and Dwayne Couch about the same matter. Shaw testified that he also spoke with Coleman, Dwayne Couch, and Wallace regarding the CIU but could not recall what was said during, these conversa- tions. At one point in his testimony , he was uncertain that he even discussed the CIU with these individuals but, on cross-examination, asserted that he and Fred Couch always initiated the conversations when they dis- cussed the CIU with the group leaders (leadmen). How- ever, Shaw was unable to recall any discussion he had with Robert Palmer about the CIU prior to attending the meeting on the evening of September 2. At the meeting on September 2, a group of Respond- ents' employees, including leadmen Robert Palmer, Dwayne Couch, Miles Neal Jr., Steve Coleman, purchas- ing agent Mel Bowie, and Bobby Palmer met with Conrad at the motel in Nevada at 7 p.m. During this period of time, the Respondents were working three shifts at the minesite and the bulk of those in attendance were from the day shift. There is testimony in the record that three employees from the second shift (Terry Rink, Richard Totman, and Bernie Lamb) were released from work by Pit Boss Lester Moore (in charge of the second shift) in order to attend the meeting. Rink stated he was never reprimanded for attending the meeting nor was his pay docked for the 3 hours that he spent there. Moore, on the other hand, testified that the three employees came to him and asked for permission to take time off for personal business. Moore stated he did not know of the CIU meeting until after he had granted the employ- ees permission to leave. According to Moore , the em- ployees were gone for 3 hours and he placed memoranda in their personnel files indicating their absences were un- excused.40 At the meeting, Conrad talked about what the CIU could offer the employees. He stated that approximately 30 employees attended the meeting and 25 signed author- ization cards for the CIU. Conrad further testified that, during the discussion in response to questions , compari- sons were made, between the CIU and the UMW. He also stated there were some questions about employees who had been supervisors but were demoted subsequent- ly to hourly classifications. Conrad testified he told the employees the CIU wanted to represent only hourly wage employees. After the meeting, Couch and Shaw asked if Conrad would come to the office at the minesite next morning, if they arranged a meeting between Re- spondents' officials and him. Conrad agreed to do so. Neither Fred Couch nor Shaw could recall whether any comments were made at the meeting by the leadmen 40 See G C. Exh. 99 (the memorandum concern tng Totman's unex- cused absence on September 2). Respondents also offered a series of doc- uments from their records purporting to show that none of the three em- ployees were paid for their time off on September 2 (See R Exhs 26, 27a, b, c, 28, 29a, b, c, 30, 31a, b, c). 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who were present.41 Rink testified, however, that Dwayne Couch told the employees that if the CIU did not get in and the UMW did, Respondents would shut down the mine. Fred Couch informed the employees at the meeting that if Ira Palmer did not accept the CIU, they would drop the entire matter. Dennis Forbes testified that, the following day (Sep- tember 3), he spoke with Robert Palmer because Palmer had not appeared at the softball tournament the evening before. According to Forbes, Palmer stated he was at a "Bohemian Onion meeting" and Forbes asked if he meant the CIU meeting. Palmer indicated he did and stated, according to Forbes, "It wasn't worth a damn, but would allow Respondents to continue to operate the mine." 2. The meeting between the CIU representative and Respondents' management Fred Couch and Shaw testified that the following morning they arranged for Harold Card and Ira Palmer to speak with Conrad at the minesite. They left the lea- shold without securing permission and went to a prear- ranged spot where they waited for Conrad. Conrad was delayed and they waited over an hour for him to arrive. When he finally appeared, they took Conrad to the office where he spoke with Card and Ira Palmer about the CIU. According to Couch, after Conrad made his presentation, Card stated they liked the idea "and if the employees wanted a union, this was the way to go." Conrad claimed that he had 18 signed authorization cards at that time according to Couch. Couch further testified that neither Card nor Palmer indicated they would recognize the CIU at the meeting. Shaw, who was also present at the meeting, was unable to recall anything that was said by Card or Ira Palmer. The affi- davit which he gave the Board agent investigating the case, however, indicates that Ira Palmer told Conrad that while he did not like it, he could live with the CIU since it would not be that much of an expense to him. Conrad testified that he spoke with Palmer and Card and told them about the meeting he had with the em- ployees the evening before. Although Conrad professed to have had a card majority, he told the management of- ficials that the issue would be settled under an election conducted by the NLRB. Conrad asserted that he did not request recognition from the Respondents at this time. He stated that following the meeting with Re- spondents' officials, he informed Couch and Shaw that he would file a petition the following week. Immediately after the meeting, Couch and Shaw began to report the results to the employees at the minesite. Couch testified that he told the other employees he felt management would go along with the CIU. Shaw testi- fied that he reported to the employees that Ira Palmer indicated that, although he did not like it, he could live with the CIU. Laid-off employee King testified that, on September 13, he met William Palmer on a country road outside 41 It was stipulated that CIU authorization cards were signed by lead- men Robert D. Palmer, Steve Coleman, Mel Bowie, Curtis D Couch, Miles Neal Jr, and Jack Wallace Mulberry, Kansas. King stated they had a conversation about his being recalled to work. According to King, William Palmer told him Respondents were going to call him back to work pretty soon. He stated that Palmer in- formed him that Fred Couch and Todd Shaw were going to arrange to get another union, which he charac- terized as a "company union," and when everything was straightened out, employees would be called back to work. He cautioned, however, that a bunch of employ- ees were going to be "weeded out" because Respondents would not go UMW. William Palmer admitted having a conversation with King on this date. Palmer testified that King stopped him because he wanted to know when he would be recalled to work. Palmer denied, however, that he mentioned anything about a "company union" or that the Respondents were going to weed out some employ- ees because they supported the UMW. J. The Scope and Composition of the Bargaining Unit 1. The status of alleged supervisory employees The parties stipulated that certain individuals were su- pervisory employees at the minesite until June 25. These individuals were: Robert Palmer, William Palmer, Steve Coleman, Curtis Dwayne Couch, Miles Neal Jr., Jack Wallace, Jerry Watts, and Frank Weisensee.42 Consider- able testimony was adduced to show that, after June 25, the above-named individuals almost exclusively per- formed unit work at the minesite. The unrefuted testimo- ny reveals that, prior to June 25, these supervisors also operated equipment and performed unit work on occa- sion when it was necessary. It is noted, however, that the unit work performed by these supervisors after June 25 occurred during the period of the shutdown of Re- spondents' production operation by the Reclamation Commission. Further, the work performed by these indi- viduals, with the exception of William Palmer and Cole- man '43 was devoted exclusively to reclamation work re- quired by the Commission in order to allow Respondents to resume the production operation. After production started again at the end of July and some of the laid-off employees were recalled, each of the supervisors revert- ed to their former responsibilities while continuing to perform some unit work on a limited basis. On August 16, Ira Palmer sent a letter to each of the supervisory employees, and Mel Bowie as well, changing their employment status from "management" to hourly paid employees. Prior to this, the supervisors and Bowie were salaried. The letter also indicated that the recipient was now a "leadman" in his area of responsibility.44 The 42 There is no dispute over the managerial or supervisory status of Ira Palmer, Card, McCrate, Brooks, Moore, or Tom McLeod (blasting fore- man). 43 During this time, William Palmer was setting up a "fines recovery system" in the tipple area to enable Respondents to recover smaller parti- cles of coal which they were losing in the washing process He was as- sisted by Coleman on this project 44 See G.C. Exh 30 for a copy of the August 16 letter sent to Electri- cian Supervisor Frank Weisensee He was carried on RSI's payroll Simi- lar letters were sent to the other supervisors whether they were on the payroll of MMR or RSI MIDWESTERN MINING change in employment status also resulted in the supervi- sors receiving their wages every 2 weeks , as was the case with all hourly paid employees , rather than on a bi- monthly basis, which was the situation when they were salaried. Copies of Respondents' payroll records were placed into evidence showing the effect, if any, the change in the employment status had on the wages re- ceived by the now leadmen. (See G.C . Exhs. 31 and 32.) The testimony is conflicting regarding the duties, re- sponsibilities, and authority of the supervisors after they were classified as leadmen . Generally, all the leadmen testified that they had no authority to hire, fire, disci- pline, or responsibly direct the work of the employees in their respective areas without specific direction from Brooks or McCrate. The employees , on the other hand, testified that the leadmen continued to exert the same au- thority they possessed when they were supervisors, and that they still considered the leadmen to be supervisors. Regarding this matter, the record discloses the following. Robert D. Palmer: As noted, Robert is the brother of William and the uncle of Ira Palmer. He is also a sub- stantial shareholder in Midwestern Fuels, the parent or- ganization of the Respondents . The unrefuted testimony reveals that Palmer drives a company -owned truck to and from his home and the minesite and also around the various leases being mined by the Respondents.45 Em- ployee Beard testified that Palmer continues to give him work assignments and during the latter part of August, granted him and employee Harper permission to leave work early . He also stated that in November, he was reprimanded by Palmer for stopping work earlier than Palmer felt he should have. Westhoff testified that Palmer has continued to assign him work and to move him from one machine to an- other. Westhoff stated that although Palmer operated equipment when the ,Respondents were closed down to perform reclamation work, since then he drives around in a company pickup checking on the performance of employees. It is undisputed that, in early September, Palmer gave Westhoff and the reclamation crew working at that time permission to take time off to attend the soft- ball tournament when Respondents ' team was scheduled to play. Westhoff also testified that he has observed Palmer cutting wood during work hours on the minesite for personal use in his home. Dennis Forbes testified he continued to receive work assignments from Palmer after the latter was classified as a leadman . He stated that, during the month of August, Watts was off the job due to a personal injury and Palmer took over his duties. He further testified that, during the latter part of August, Palmer granted him per- mission to take time off to attend two funerals. Finally, Forbes testified that Palmer reprimanded him on one oc- casion in August for talking to employee Loudermilk during working hours. Employees Clark, Rink, and Christian testified that Palmer supervises their work ac- tivity on the weekends that he works. 46 According to 45 Prior to August 16, all the supervisors were assigned company vehi- cles for their own personal use as well as for use in getting around the mmesite. 46 Each of the leadmen works every other weekend 237 these employees, Palmer spends his time driving over the mine area making certain that everything is being per- formed as scheduled. William Palmer: As previously indicated, 'William is the father of Ira Palmer, Respondents ' chief operating of- ficial, and is a major shareholder in the Respondents' parent organization . He is also on the board of directors of MMR and RSI . Palmer asserted that sometime after mid-August, the major portion of his job duties consisted of "chasing parts" and required him to be off the jobsite for approximately 50 percent of his working time. The testimony of the employee witnesses indicates that, when William Palmer is on the jobsite, he exercises the same supervisory authority he exercised before the asserted status change. Employee Beard testified that he observed Palmer on the jobsite giving orders to employees Fred Couch and Shaw. Couch testified that Palmer assigned work to him and indicated there was no change in his working relationship with Palmer since the status change. Palmer also drives a company truck for his per- sonal use as well as around the mine area. The testimony of the employees clearly indicates that they consider Palmer not only to be one of the "bosses" but also one of the owners of the operation. Steve Coleman: Prior to the change in status , Coleman was the foreman of the washing operation and the tipple area. After the change, Coleman continued to be the person in direct charge of the same areas . Employee Beam testified that when he was recalled to work in early August, he performed his duties under the direc- tion of Coleman in the tipple area until he quit on Sep- tember 25 . Beam testified that Coleman gave him daily assignments and directed him to 'work overtime when- ever it was deemed necessary. Beam testified that Cole- man did this with all the employees in .the tipple area. When Beam voluntarily terminated his employment with the Respondents, he first notified Coleman who, in turn, had him execute a memorandum stating the termination was voluntary. This was placed in Beam's personnel file and was signed by Coleman and Brooks. (See G.C. Exh. 25.) The testimony indicates that Coleman signs off on the timecards of the employees who work under him. Coleman testified that it is also necessary for either McCrate or Brooks to cosign the timecards , but that he is the individual who certifies that the representations on the timecard are correct. There is additional evidence in the record showing that Coleman also possesses author- ity to write up employees who work in the tipple area when he feels they are not properly performing their duties. These writeups are placed in the personnel files of the employees. The record reflects that, on September 24, Coleman wrote up employee Cullison for reporting to work 20 minutes late. This writeup was cosigned by Brooks. (See G.C. Exh. 18.) Coleman placed two other warning memos in employee Cullison's personnel file on October 14 and November 15. The first related to damage caused to the electricians' truck when Cullison negligently backed up his loader. The second related to Cullison's continuing to report to work late and indicat- ed that the employee had been warned . (See G.C. Exhs. 19 and 20). In addition, the record testimony indicates 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Coleman drives a company truck for his own per- sonal use as well as for the purpose of getting to and from the jobsite. Curtis Dwayne Couch: Couch is the leadman in charge of maintenance of the dragline equipment. Prior to the change in status he was the foreman in charge of the same operation. Couch drives a company truck on the minesite and for his own personal use. Couch works every other weekend alternating with Neal Jr. and Jack Wallace. When these two individuals are not working, Couch also supervises the work of the maintenance shop. Employees Fred Couch and Shaw, who work on drag- line maintenance . Both testified that Dwayne Couch as- signs them work on a daily basis. Fred Couch stated that when there was not enough work to do on the dragline, Dwayne Couch would go to Brooks and inform him, "My men won't be tied up today, need them in the shop?" On these occasions, according to Fred Couch, they would be assigned work in the maintenance shop. Although Couch performs maintenance work himself, the unrefuted testimony indicates that he also performed similar duties when he was classified as a salaried super- visor. Miles Neal Jr. and Jack Wallace: Neal Jr. and Wallace were the supervisor and assistant supervisor , respective- ly, of the maintenance shop prior to the August 16 change in status. They then became the leadmen in the shop. According to Neal Jr., either Brooks or McCrate comes into the shop every morning and informs him what work he and his crew are to perform . Neal testified that, after receiving these instructions, he then assigns the work to the other mechanics in the crew and if changes have to be made, he first consults with Brooks or the pit bosses. Neal Jr. stated that when he was a su- pervisor he had authority to purchase parts up to $500 but after the change, all such decisions on purchases were required to be made by Brooks. Neal Jr. and Wal- lace acknowledge that they put the time on the employ- ees' timecards and Neal Jr. signs off on the cards. How- ever, Neal Jr. asserts that the timecards then have to be cosigned by either Brooks or McCrate. According to Neal Jr., prior to the change in his status in August, he spent approximately 50 percent of his time performing work in the shop. He asserts that, since the change, he spends close to 100 percent of his time working in the shop. Neal Jr. drives a company-owned truck which he uses to go into the field to perform maintenance and to chase parts. He testified that he and Wallace use the truck going to and from work because there is no main- tenance crew on the second shift. Therefore, if equip- ment breaks down after the first shift, either he or Wal- lace will come out to the minesite to make repairs. Wal- lace testified that whenever there is a breakdown in the field, Neal Jr. makes the decision as to which mechanic will respond. In Neal Jr.'s absence, Wallace makes the decisions. According to the testimony of both of these individuals, Brooks or McCrate determines which me- chanics are required to work on the weekends. Employee Christian testified that he is assigned to work in the maintenance shop at least once or twice a week. When this occurs, according to Christian, Neal Jr. makes all his work assignments. Employee Beard testi- fled that when he was in the maintenance shop, he ob- served Neal Jr. and Wallace giving orders to the other mechanics in the shop on a daily basis , including Beard's father. Employee Shaw testified that when there was no work to be performed on dragline maintenance, he was assigned by Dwayne Couch to work under Neal Jr. Ac- cording to Shaw , when this occurred he received all of his work assignments from Neal Jr. Jerry Watts: Watts was the foreman of the reclamation crew prior to the asserted change in status. Watts uses a company truck around the mine areas and drives it to and from work. Watts stated that while he used to make the decision as to what work would be performed by the reclamation crew before August 16, after that date McCrate was responsible for giving the instructions to him and he in turn passed them on to the crew. As with the other leadmen, Watts is required to work every other weekend and alternates with acknowledged Supervisor McLeod. Watts testified that while he signs off on the employees' timecards, it is now necessary for McCrate to cosign. The employee testimony, however, indicates that the employees rarely saw McCrate even though he was the only asserted supervisor over the reclamation crew. Forbes testified he normally saw McCrate about once every 2 months and Sarley stated that he saw McCrate only about once a month. Employees Forbes, Sarley , and Westhoff further testi- fied that after the change in status, Watts continued to give them work assignments on a daily basis . They also stated that he has granted them time off, after checking with Brooks, and reprimanded them on several occasions for infractions of the work rules. Sarley testified that Watts verbally reprimanded him for not reporting to work on September 18 when he was scheduled to do so. The record reflects that a written memorandum to that effect was placed in Sarley's personnel file. This memo- randum was signed by Watts and Brooks. (See G.C. Exh. 24.) In November, Watts warned Forbes, Sarley, and Westhoff about leaving their worksite early. When this occurred a second time, Watts caused a written repri- mand to be placed in the employees' personnel file. It was signed by Watts and Brooks. (See G.C. Exh. 22.) Although Watts asserted that he signed the document only as a witness, the employees testified that Brooks did not discuss the matter with them or investigate the inci- dent himself.47 Frank Weisenee: As with the other leadmen, Weisensee drives a company truck to and from work and around the mine areas. Weisensee testified that he had regular meetings in the morning with either McCrate or Brooks concerning his job assignments. According to Weisensee, after receiving these instructions he would pass them on to the two other electricians and they would decide col- lectively which individuals would perform a particular job. Weisensee testified that "it was done as a democra- cy." Weisensee admitted, however, that he had 14 years' experience as a mine electrician and the electricians working with him only had 1 year's and 6 months' expe- 44 Brooks testified he talked to the three employees about the matter and informed them in advance that he would have to write them up for leaving early MIDWESTERN MINING rience, respectively. During the course of his testimony, Weisensee frequently referred to the other electricians as "my men" or "my guys." Weisensee also stated that, be- cause of the mine safety laws, he had to inspect all the work performed by the other electricians because he was the only electrician with a proper certification. 2. The status of Bowie Mel Bowie is in charge of procuring, stocking, and ex- pediting parts for all the equipment used by Respond- ents. He was a salaried employee until his status was changed by Respondents on August 16. Prior to the con- struction of the new maintenance shop, Bowie worked out of the trailer office at the minesite. Bowie testified that, after the new shop was completed, he moved to an office area in the shop. He asserts, however, that anyone in the shop, including mechanics, can use his office area and desk. Bowie stated that he does not have authority to purchase parts in excess of $300 without getting prior approval from Mine Superintendent Brooks. Unlike the leadmen, Bowie is not provided with a company vehicle and he uses his own automobile when he has to go out into the field. However, Respondents supply him with fuel and perform maintenance on his automobile. Although Bowie began working alone, the record indi- cates that employee Dennis Davidson was assigned to work in the stockroom with Bowie. Respondents' payroll documents indicate that Davidson earns between $250 and $350 per pay period less than Bowie.48 Bowie testi- fied that while Davidson works with him, they perform the same job functions and he does not give assignments to Davidson. In addition to procuring and expediting and warehous- ing parts for Respondents, Bowie also works at Respond- ents' scale house in the afternoons starting at 3:30 p.m. He takes over when the regular scale house attendant completes her shift. Bowie testified he normally works there until 5:30 p.m. but, when trucks are late in the eve- nings, he remains at the scale house until they are all loaded out, sometimes as late as 8:30 p.m. Bowie also hands out the paychecks to the employees on payday. Following the layoff on June 18, Bowie made several calls to employees to notify them to return to work after a recall decision had been made by upper-level manage- ment. 3. The status of other employees asserted to be outside the bargaining unit a. Robert E. (Bobby) Palmer Bobby Palmer is the son of Robert D and the nephew and cousin, respectively, of William and Ira Palmer. He owns no stock in the Respondents' or their parent orga- nization. He has been employed by the strip mining oper- ation in various capacities since its inception in 1977. Palmer started as a laborer, ran a loader for 8 months, and then a bulldozer for a year and a half. He also oper- ated a dragline for a while . In early 1982 Palmer ran a 48 The record disclose that Bowie's gross earnings were constant while those for Davidson fluctuated, thereby accounting for the range of differ- ence in their wages per pay period. 239 prospect drill, when the weather permitted, in exploring lease sites for coal. When weather conditions were bad and the ground was wet, he alternated between working in the maintenance shop and "chasing parts" for Re- spondents' equipment. Young Palmer lives at home with his parents. Several employee witnesses testified that young Palmer enjoyed certain privileges on the job which were not extended to other unit employees. Scales testified that when he was on the midnight to 8 a.m. shift, it was customary for him to observe Bobby Palmer reporting to work as late as 8:45 a.m. (Palmer was scheduled to be at work at 8 a.m. at that time.) Scales acknowledged, how- ever, that he had no way of ascertaining whether Palmer had been out attempting to secure parts on these occa- sions. Employees Clark and Norris testified they had ob- served Bobby Palmer reporting to work late on several occasions and had seen him leave the minesite before the normal scheduled quitting time. The employees' testimo- ny also indicates that Palmer would stop work early on occasions and go into the trailer office to talk with the foreman. Neither Norris nor Clark could state whether Palmer was chasing parts when he reported to work late or left the minesite before quitting time. However, Clark testified that he had overheard Brooks and Robert Palmer complaining about young Palmer coming to work late and not showing up when scheduled to work on Sundays. Norris also testified that he was present when Bobby Palmer refused to operate a certain piece of equipment when directed to do so by his father, Robert. According to Norris, Robert Palmer ordered employee Sarley to operate the same piece of equipment the following day. Employee Christian testified that, on one occasion, Bobby Palmer demanded and was assigned a machine to which Christian was scheduled to operate. Christian stated Palmer thought it was a better piece of equipment. There is testimony in the record that Bobby Palmer also works on his personal pickup truck in the shop during working hours. Two other employees, Don Will- ers and Todd Shaw, also use their personal trucks while traveling around the mine areas maintaining equipment. The testimony indicates, however, that while Respond- ents provided Willers and Shaw with fuel and parts to maintain their vehicles, neither of these employees was permitted to work on his truck during working hours. In addition, Christian testified that he had been directed by Bobby Palmer to work on Palmer's truck in the shop during working hours. When questioned as to why he did so, Christian responded, "Well, everybody pretty much does whatever he [Bobby] wants us to do. No one wants to argue with him, so they do it." Finally, employees Dennis Forbes and Mike Sarley testified that when Watts reprimanded them for leaving early in November, they complained that Bobby Palmer was permitted to leave the jobsite before the scheduled quitting time. According to the testimony of these em- ployees, Watts indicated nothing could be done about Bobby Palmer since he was the son of one of the owners. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondents deny Bobby Palmer enjoys any special privileges at the mine. Ira and Bobby testified that young Palmer used his personal vehicle to secure parts for the equipment at the mine and is supplied fuel and mainte- nance to keep his truck operational. Bobby Palmer testi- fied that on the occasions when he arrived at work late, he was out securing parts before coming to the minesite. Likewise, when he left early he did so for the purpose of going to the nearby towns to pick up parts. Palmer stated that he was not treated any differently at the min- esite from any other unit employees. b. Earl Caywood Caywood is employed by Respondents as a carpenter and general handyman at the minesite. When at work, Caywood reports to Neal Jr., leadman of the mainte- nance shop. The testimony indicates that Caywood also operates in the scales on occasion when needed. The un- refuted testimony indicates that Caywood has an em- ployment arrangement with Respondents which differs from that of the other unit employees. Caywood's wife is in ill health and Respondents permit him to take a leave of absence during the winter months in order to take his wife to a warm climate.49 In December 1982, Caywood was on such a leave of absence and had not returned while the instant hearing was in progress in mid-Febru- ary 1983. Respondents' officials were unable to state when the employee intended to return to work. c. Miles Neal Sr. Neal Sr. is a master mechanic and works in the ma- chine shop under the direction of Neal Jr. and Wallace. Neal Sr. is a recipient of social security benefits and has a special arrangement with Respondents which allow him to earn the maximum amount of money each year that will not place his benefits in jeopardy. The practice has been that after Neal Sr. earns this sum, he leaves work and reports back the following year. Respondents' records indicate that Neal Sr.'s last pay period was on June 18, 1982, when the employees were laid off.50 The testimony indicates that Neal Sr. was the only person in layoff status in August 1982 who did not receive the per- manent termination notice issued by Respondents. The testimony also indicates that Neal Sr. returned to work for Respondents in 1983. d. James Query and Dale Smith Query is classified by Respondent as a night watch- man. Since his hours are from 8 p.m. until 6 a.m., he stradles the second and third shifts at the minesite. The testimony indicates that Query reports directly to Moore, the second-shift pit boss and, when the third shift is working, he contacts Mine Superintendent Brooks or Moore at home when the situation warrants it. Query's duties entail patrolling all the area of the min- esite, periodically checking all the buildings and the parked equipment to make certain they are secure, and if 49 Neal Jr testified that Caywood would take a month and a half or 2 months' vacation and then return to work When Caywood is away, Neal Jr. performs his job duties. so G.C. Exh 31 any intruders are on the property, to eject them. When Query patrols the mining areas, he does so in his own truck and Respondents supply his fuel and provide main- tenance for his vehicle. As Query rides around the vari- ous mining areas at night, the operators are instructed to blink the lights on their machines if they require fuel, oil, parts, or any other type of assistance. Normally, Query is able to satisfy the operators' needs by securing the re- quired item from the shop and bringing it back to the pits. In the event of equipment breakdown or a major problem, Query notifies Moore of the situation when the second shift is on duty or calls Mine Superintendent Brooks or Moore at home, if the third shift is working. In addition to his security duties, Query performs cus- todial duties in the trailer office and the shop. He carries keys to the offices and the scale house and the testimony indicates that this is not only to enable him to clean up these areas but also to provide him with access to the telephones in the event he has to get in touch with higher level management. Dale Smith, hired by Respondents on September 6, performs the same duties as Query. Smith works on Wednesdays, Thursdays, Saturdays, and Sundays.51 Smith testified the custodial work in the office and the shop occupies only approximately an hour and a half of his normal workday. The balance of the time is spent pa- trolling and checking the property and the operations at the various mining areas. Smith stated he carried a .38 caliber pistol in his truck, but asserts that he has done so for years. According to Smith, carrying a weapon was not a requirement imposed by Respondents. Another responsibility of Query (and Smith) is to relay instructions from supervisors to operators in the field and to report to the supervisors when an employee fails to show up for work. The record discloses that, when this latter event occurs, Query makes a written notation which is signed by him and the supervisor to whom he reports the infraction. (See G.C. Exhs. 40, 41, 42, and 43.) K. The UMW Authorization Cards The record discloses that the union organizers re- ceived a total of 38 signed authorization cards to support the UMW petition filed on September 10. Of this number, Forbes testified that he had 36 signed authoriza- tion cards in his possession on August 11, when the UMW officials met with Ira Palmer in Washington, D.C. The record further shows that two cards were solicited and signed on August 23.52 The parties stipulated that if the bargaining unit encompassed the employees of both MMR and RSI, there would be 68 employees in the unit on August 11. Forbes and Prettyman testified that, in soliciting signa- tures on the authorization cards, they informed the solic- ited employees that the Union wanted to represent them at Respondents' mine. Each also testified they told the employees that the Union wanted to get the employees 53 Smith works the 2 days that Query is off and they share the duties on the days they work together 12 See the cards of Terry Loudermilk (G C Exh. 81) and Gary Lou- dermilk (G C. Exh. 64). MIDWESTERN MINING better wages and working conditions , and that they wanted a majority of the employees to sign authorization cards in order to get Ira Palmer to recognize the Union as the bargaining representative of the employees. The testimony of Scales, Rink , Beam, Couch, Westhoff, Bran- non, Clark, and Dennis Forbes indicates the union repre- sentatives told them that it was necessary for 30 percent of the employees to sign in order to get an election and that, by signing, they were authorizing the Union to rep- resent them at the mine, 53 The union representatives and a number of employee witnesses stated that the union organizers told them the Union would attempt to secure voluntary recognition from Respondents if a majority of the employees signed cards and, if Respondents refused, the cards would be turned over to the NLRB for an election. For example, employee Rink testified that Forbes told them 30 percent of the employees needed to sign before he could file a petition for an election . Rink further stated that Forbes told him the Union wanted to be the bargaining agent for the employees and requested that Rink read the card carefully before signing. Brannon testified that he re- ceived his card from Forbes and was told that it was to get a bargaining agent at the Respondents' mine. Beam testified that he also received a card from Forbes and was told the Union wanted to be the employees' bargain- ing representative. Beam was requested to and did read the card before signing and returning it to Forbes. He stated that Prettyman was there at the time and said there was a possibility that there might be an election. Employee Terry Couch testified that when he was solic- ited to sign the UMW authorization card he was told there could be an election or Respondents could recog- nize the Union as the bargaining representative for the employees. Westhoff testified that he received his author- ization card from Prettyman. He also stated that he was told the Union wanted to be the bargaining agent for the employees. According to Westhoff, Prettyman stated the cards would be given to the U.S . Government and that, by signing the card, the employee was authorizing the Union to be his representative . Westhoff further testified that Prettyman said that if enough cards were signed, there was a possibility there could be recognition with- out an election . Employee Clark stated he received his card from his father-in-law, Forbes. Clark testified that Forbes said the union representatives would try to work things out with Respondents and, if they were unable to, then they would seek an election . Clark stated Forbes cautioned him to read the card and he did so before sign- ing. Dennis Forbes testified that he was also given a card by his father, Lowell Forbes. Dennis Forbes stated that his father told him there were three ways which the ss All of the authorization cards submitted contained the same lan- guage which read in part as follows AUTHORIZATION FOR REPRESENTATION I, the undersigned employee of _ authorize the UNITED MINE WORKERS OF AMERICA to represent me as the exclusive collective-bargaining agent in all matters pertaining to wages , hours, terms and conditions of employment This authorization cancels any similar authority previously given to any other person of organiza- tion 241 Union could gain representation status at the mine. He stated they could have an election , Respondents could voluntarily recognize the Union , or the Union could go to court. Dennis Forbes , further testified that he was told he was authorizing the UMW to be his bargaining repre- sentative when he signed the card. Finally, employee Scales testified that when -his signature was solicited, he was told that if a majority of the employees signed cards, they would be presented to Ira Palmer to indicate the employees wanted to be represented by the UMW. Scales further testified that at a union meeting Forbes told the employees attending that if Ira Palmer were in good faith, he would recognize the Union when the cards were presented. If not, the cards would be used to secure an election. Respondents presented testimony of seven card signers who asserted they were told, when their signatures were solicited, that the only purpose of the authorization cards was to secure an election . James Harper, a current em- ployee, testified he was given an authorization card by Prettyman and they had a discussion for 15 or 20 min- utes. Harper stated that Prettyman and Sarley had come to his home. According to Harper, Prettyman told him the only purpose was to get enough votes to get the Union in. Harper further testified that Prettyman repre- sented that the Union had enough votes but also wanted him to sign. Harper stated he signed the card without reading it, although he testified on cross-examination that he did not normally make it a practice to sign anything without first reading it . Harper was unable to recall any mention of the benefits the Union would be seeking or that Prettyman stated the Union wanted to represent the employees at the mine. Sarley, on the other hand , testi- fied that he heard Prettyman read the card to Harper before the employees signed it. Sarley also stated that Prettyman informed Harper that the card was to author- ize the Union to represent the employee at the mine and that a majority of the employees needed to sign the au- thorization cards to enable the Union to do this. Dennis Davidson, a current employee, stated he re- ceived the authorization card he signed from Forbes in a pool hall. According to Davidson, Forbes told him the card was to get an election . Davidson stated that Forbes said, if the Union won, it was in but, if it lost, then it was out. Davidson testified that Forbes filled out the card and he then told the union representative to wait until he finished the pool game. When he finished , he signed the card on the edge of the pool table. Current employee William D . Barnett testified that he received an authorization card from Prettyman before at- tending a union meeting. According to Barnett , Pretty- man stated that the only purpose of the card was to have an election at the mine . Barnett stated Prettyman filled out the card and he signed it. On cross-examination, Bar- nett admitted that he had attended two or three union meetings before he signed the card for Prettyman. He further acknowledged that union representatives at the meetings he attended said the UMW wanted to represent the employees at the mine. He also testified on cross-ex- amination that the union representatives said if they re- ceived enough authorization cards they could ask Ira 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Palmer for voluntary recognition . Barnett recalled that he did not have his eyeglasses with him and Prettyman filled out the card . Barnett denied telling Prettyman that the employees had received an insert with their pay- checks in June from Harold Card cautioning them to "read the fine print" on the UMW cards before signing. Prettyman, on the other hand, testified he read the card to Barnett before the employee signed. According to Prettyman, Barnett insisted that the card be read because Card had given the employees the letter in June caution- ing them to read the union cards before signing. Barnett testified that, on August 4, he called Forbes to ask for the return of his signed authorization card. Bar- nett testified that he understood Forbes to indicate he would return the card but he did not have it in his pos- session at that time. He further testified that he called Forbes a second time but was unable to get his card.54 Forbes testified that he had received a call in September from Barnett regarding his authorization card . Accord- ing to Forbes, Barnett indicated he had mixed emotions about signing the card and that he would contact Forbes later. Forbes stated he never received a followup call from Barnett. Kenneth Davidson, currently working for another em- ployer at the time of the hearing, testified that he re- ceived an authorization card from Prettyman. He stated that Prettyman showed him a list of the benefits that the UMW wanted to get for the employees and indicated that he wanted the employee to sign the card in order to bring the matter up for a vote. On cross-examination, Davidson acknowledged that he read the authorization card before signing and that Prettyman stated the Union needed a majority of the employees' signatures on au- thorization cards. He further stated on cross-examination that Prettyman informed him the Union wanted to repre- sent the employees at the mine. Dale Scism, currently working for Respondents, testi- fied that he was given an authorization card at his home by union organizer Forbes. Scism testified that Forbes stated the Union needed signatures from 30 percent of the employees in order to have a secret-ballot election, and that he did not read the card before signing. On cross-examination Scism admitted that Forbes said the UMW wanted to represent the Respondents' employees and recalled that Forbes might have said something about the benefits the Union wanted to get for the em- ployees. Scism further acknowledged that, after signing the authorization card, he met with Respondents' attor- ney because he "wanted his name off of the authoriza- tion card." Scism stated he signed the card merely to get rid of the union representatives. Employees Clark and Sarley testified that they accom- panied Forbes to Scism's home when the employee signed the card Sarley had arranged the meeting. Clark testified that Forbes read the card to Scism and Clark told the employee that the Union had to get the signa- 54 Barnett admitted on cross-examination that he had taken it upon himself to check with Bill's Coal Company to determine if Scales had trained employee Kenneth Davidson on the dragline while working there. Barnett further admitted that he had called other employees who he knew had signed authorization cards for the UMW and suggested that they contact Respondents' attorney concerning the pending case ture of at least 30 percent of the employees in order to have a vote. Sarley recalled that Forbes also asked Scism if he would sign the authorization card for the Union to be the employees' bargaining representative at the mine. According to Sarley, Scism was reluctant to sign but did so out of his friendship with Clark and Sarley. Sarley corroborated Clark's testimony that Forbes read the card to Scism before the employee signed. David Scharenberg testified that he was also given an authorization card to sign by Forbes . Scharenberg stated Forbes came to his home and said that the Union needed signed cards from 30 percent of the employees in order to hold a secret-ballot election. Scharenberg testified that he did not read the card before signing. He stated that employee Elmer Scales was present with Forbes at the time of the visit. On cross-examination , Scharenberg ad- mitted that Forbes said the Union would try to get in- creased benefits for the employees. He testified he did not read the card because Forbes explained about the benefits the Union would seek and told him that the Union wanted to represent him. Gary Loudermilk, a current employee, testified that he received the authorization card he signed from Pretty- man. Loudermilk stated that he was at his brother's (Terry) home at the time. According to Gary Louder- milk, Prettyman discussed the benefits the Union wanted to get for the employees and stated the reason for solicit- ing Loudermilk's signature on the card was to get an idea of the number of employees who wanted the Union to represent them. In response to leading questions from Respondents' attorney, Loudermilk further testified that Prettyman stated the only reason for signing the card was to have a vote to see if the employees wanted the Union to represent them. Loudermilk testified on cross- examination, however, that he read the card before sign- ing and knew that he was authorizing the Union to rep- resent the employees. Dennis Forbes testified that he accompanied Pretty- man to the Loudermilks' home. According to Dennis Forbes, Prettyman explained all the union benefits and represented to the employees that the Union was going to seek a bargaining order. Forbes stated that Prettyman read the authorization card to the Loudermilks and as- serts there was no mentioned of an election. Contrary to the testimony of his brother, Terry Loudermilk stated that Prettyman informed them taht the card was to au- thorize the Union to become the bargaining agent of the employees. CONCLUDING FINDINGS 1. UNLAWFUL THREATS AND PROMISES Having found that MMR and its wholly owned subsid- iary, RSI, constitute a single employer for purposes of the Act, the threshold issue to be treated here is whether Respondents' agents and supervisors, on learning of the union organizing campaign, made unlawful threats to close the mine and promises of benefits to employees if they did not become involved in UMW activities. The record is replete with testimony by employee witnesses regarding conversations they had with Respondents' su- MIDWESTERN MINING pervisors concerning the UMW campaign and what the employees could expect if the Union became their bar- gaining representative. Laid-off employee Norris testified William Palmer and Pit Boss Moore each told him that Respondents would shut the mine down if the Union represented the employees. Current employee Clark stated that Mine Superintendent Brooks stated, "Willy [Ira Palmer] will just shut her down," and that Supervi- sors Coleman and Robert Palmer each made similar statements on separate occasions. Laid-off employee Mindicki testified Brooks questioned him about his and other employees "talking union" and said there would be "trouble," if they did so. Employee Westhoff testified Brooks warned him not to get involved in the union ac- tivity because it would hurt his chances of moving up in the company, and further, that Respondents would shut the mine down, if the Union got in. Employees Forbes and Sarley testified that on the day union organizer Forbes came to the mine in June, Robert Palmer com- mented to the effect that things were going to get "hot" for someone that day. Employee Beam testified Robert Palmer stated that, if the employees went union, Re- spondents would shut down the mine. Likewise, current employee Rink stated Brooks questioned him about union activities at the mine and stated Respondents would shut the operation down, and further, that Robert Palmer made similar statements to him that same day. Former employee Roberts testified Robert Palmer told him the employees would be out of work and driving dump trucks if the Union got in. Finally, union organizer Forbes testified that when he went to the mine on June 16 to advise Ira Palmer that the Union was organizing the employees, Ira, William, and Robert Palmer stated that they wished they knew who the "S.O.B.'s" were who signed authorization cards for the UMW and Ira stated he would close the mine. In each instance, the management officials and supervi- sors to whom these comments were attributed denied making these statements. However, I do not credit any of their denials. My failure to do so is based not only on my observation of the witnesses while they were testify- ing, but also on the fact that a number of the employee witnesses were currently working for Respondents and testifying against their own employment interests. Al- though Card stated he instructed Ira Palmer to inform the supervisors not to discuss the Union with the em- ployees, I do not find this self-serving statement to be persuasive. Moreover, even if he did issue such instruc- tions, it is apparent from the credited testimony that they were ignored. Additionally, 1 find the threats to shut the mine down if the UMW represented the employees to be consistent with the pattern of unlawful conduct engaged in by Respondents' officials and supervisors in attempting to stifle and thwart the UMW organizing campaign. Evi- dence of this is found in the unrefuted testimony of em- ployees Fred Couch and Todd Shaw, whose interests were hostile to representation by UMW and who sought out the CIU as an alternative union. It is apparent from the testimony of each of these employees, examined under Federal Rule of Evidence 611(c), that they met with Ira Palmer secretly away from the minesite during working hours and were interrogated about the identity 243 of the employees supporting the UMW. Also, after re- ceiving assurances of their opposition to UMW, Palmer subsequently made an implicit promise of benefit to the two employees by asking if they wished to be considered for positions that might possibly open in management. This conduct demonstrates that Respondents' officials were prepared to reward those employees found to oppose the UMW organizing effort and, by implication, to punish those who supported the UMW. It also evinces a decided disposition by Respondents' management, ranging from top-level officials to onsite supervisors, to engage in unlawful conduct in order to stifle the UMW organizing campaign and to undermine support for that Union. In view of the above, I find that Respondents' man- agement officials and supervisors did in fact threaten em- ployees with loss of employment if they became repre- sented by UMW and made promises to employees that their position at the mine would improve if they did not engage in activities on behalf of UMW. It is axiomatic that such conduct interfered with, restrained, and co- erced the employees in the exercise of the right, guaran- teed by Section 7 of the Act, to engage in union activi- ties or to refrain therefrom. I find, therefore, that Re- spondents' agents and supervisors violated Section 8(a)(1) of the Act by this unlawful activity. II. THE JUNE 18 LAYOFF It is evident from the record that on June 16, Re- spondents' officials were preparing the employees for a layoff on June 25 because of the status of the coal-con- tract negotiations between Associated and the City of Indpendence. However, on June 18, Respndents abruptly laid off 42 employees and the layoff commenced in the middle of the first shift. The General Counsel does not question the proposed layoff scheduled for June 25, but contends Respondents unlawfully accelerated this layoff to June 18 in order to stifle the union activity among the employees. In my judgment, the record evidence does not preponderate in favor of the argument advanced by the General Counsel. It is true that the early layoff followed on the heels of UMW's formal announcement of its intention to organize the employees. It is also true that Respondents' supervi- sors engaged in substantial unlawful conduct during the union organizing activity prior to the layoff. However, the Respondents' business justification for the accelera- tion of the layoff compellingly overcomes the prima facie showing that the early layoffs were motivated by unlawful reasons. The record graphically demonstrates that Respondents were face to face with an immediate cessation of all cash flow on June 18, when Independ- ence decided to withhold all payments to Associated for coal delivered by Respondents until the dollar value of the BTU deficiencies was recovered. Furthermore, Re- spondents were unable to ship coal to Independence until July 6, at the earliest, because the utility was in the proc- ess of inventorying its coal stock on hand. The resultant withholding of all payments to Respondents by Associat- ed forced Card to hurriedly seek a source from which to borrow funds in order to meet Respondents' current pay- 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD roll and vacation obligations. Thus, it is more than evi- dent that the 'decision to abruptly lay off all employees, except those essential to keeping the mine open, on June 18 was motivated by a legitimate business judgment to immediately curtail future payroll obligations and oper- ational expenses during the cash flow crisis. In these circumstances, I find that the contemplated layoff of June 25 would,have been accelerated to June 18 even in the absence of the UMW organizing activity. See Wright Line, 251 NLRB 1083 (1980), affd. 662 F.2d 899 (1st Cir. 1981).55 Accordingly, the allegations of the complaint alleging the layoff on June 18 to be a violation of the Act must be dismissed. III. THE TERMINATION OF THE LAID-OFF EMPLOYEES The General Counsel contends that Respondents ter- minated the 28 laid-off employees on August 19 in order to dissipate UMW support in the bargaining unit and to discourage other unit employees from supporting that union. Respondents contend that the employees were not terminated, but that the letters were sent to advise them of the small likelihood they would be rehired in the near future at the mine. Contrary to the language on the face of the letters, Ira Palmer asserted that he did not consid- er the employees terminated but, rather, in a preferential pool to be hired when conditions improved. I do not find Respondents' argument to be plausible or Palmer's testimony in this regard to be credible. The record shows that the 28 employees were in fact consid- ered terminated and their employment records were co- mingled in the Respondents' files along with those of other terminated employees. In addition, Palmer's pro- fessed concern that the employees would pass up other employment opportunities while awaiting to be recalled rings hollow and lacks persuasiveness . It is evident from his own records that Respondents hired employees on layoff status from other coal mining companies in the area on a temporary basis-as was the case with employ- ees Larry Allen, Kenneth Davidson, and Kenneth Cam- bers-and there is no reason to believe the layoffs here would have prevented Respondents' employees from being hired elsewhere under the same conditions. Fur- thermore, it is noted here that the termination notices co- incided with Respondents' refusal to recognize the UMW and also with the demotion of the supervisors to leadman status, which Respondents asserted made them unit employees. The timing of these events and the lack of a logical ex- planation for terminating the laid-off employees, coupled with Respondents' unlawful activity in opposing the UMW organizing effort, cause me to conclude that the termination notices were part of Respondents' continuing effort to discourage support for the UMW among the employees and to dissipate the Union's strength in the bargaining unit . For these reasons, I find the record fully supports the position of the General Counsel that the employees were terminated unlawfully. Accordingly I find that, by terminating the laid-off employees on August 19, Respondents committed violations of Section ss The Board's Wright Line doctrine was upheld by the Supreme Court in NLRB v Transportation Management Corp, 462 U S. 393 (1983). 8(a)(1) and (3) of the Act. Wisconsin Beef Industries, 249 NLRB 256 (1980). Cf. Poly Ultra Plastics, 231 NLRB 787 (1977). IV. THE REFUSAL TO RECALL ROBERTS AND SCALES The complaint alleges Respondents refused to recall Roberts and Scales when production resumed at the mine because the two employees were involved in activi- ties on behalf of UMW. Respondents, on the other hand, assert that the employees were not recalled for a variety of reasons which -caused management to consider them to be unsatisfactory employees. Regarding Roberts, Respondents assert that McCrate checked the employee's job application and discovered he had less dragline experience than indicated on the ap- plication. Palmer and Brooks also testified that Roberts caused costly damage to his machine and was "rough" on the equipment. On its face, Respondents' explanation appears plausible. But when scrutinized in the context of all the circumstances surrounding Respondents' percep- tion of Roberts' involvement with the UMW and the handling of the issue of the damage to the equipment, it soon becomes apparent that the explanation offered was contrived in order to conceal the true motive for refus- ing to recall Roberts. First, I find Respondents' officials believed, rightly or wrongly, that Roberts and Scales were the prime instiga- tors of the UMW's organizing activity among the em- ployees. For example, when Forbes spoke with Ira Palmer in the trailer office on July 20, Palmer expressed the belief that Roberts and Scales were responsible for the organizing activity. He also stated he would have fired Roberts, if he could have proven the employee damaged the equipment. Likewise, on July 24 when Forbes met with Card in Fort Scott, Card placed the blame for the UMW activity at the mine on Roberts and Scales. Finally, when Ira Palmer went to Washington, D.C., to confer with the union officials, he expressed the same belief to Forbes and also to Prettyman and another union organizer in separate conversations. Although Palmer and Card denied making these comments, I do not credit them. My observation of these witnesses causes me to conclude that the management officials were searching for an explanation for the emergence of the union activity and they focused on Roberts and Scales as the prime instigators. My conclusions in this regard are buttressed by comments made by Robert Palmer on June 12 when he brought employee Rhodes over to the pit where the dragline, operated by Roberts and Scales on different shifts was located. Scales credibly testified that Robert Palmer told Rhodes to stay away from that dragline because he could get into "trouble" hanging around there. In sum, the credited testimony in the record establishes that Respondents' officials and supervisors considered Roberts and Scales to be the cause of their problems with the UMW. Respondents' argument that neither of these employees was involved in any extraordinary way in the organizing activity misses the point. What is im- portant in these circumstances is Respondents' perception MIDWESTERN MINING of their involvement rather than their actual activity on behalf of the Union. Next, Respondents' reaction to the damage Roberts purportedly caused to the fairleads on a dragline casts grave doubts about the validity of Respondents' version of this incident. For example, Ira Palmer testified he ob- served Roberts damage the fairleads of the dragline. Ac- cording to Palmer, Roberts' negligence caused approxi- mately $6000 worth of damage to the equipment. At no time, however, did Palmer speak to the employee about the costly damage nor did he discipline him in any fash- ion. If Palmer is to be believed, he merely shrugged the incident off. Nonetheless, Brooks testified that he placed a handwritten memo in Roberts' file to show that the employee had damaged the equipment. But Brooks also acknowledged he never spoke to the employee about the incident. In my judgment, it is highly unlikely that Re- spondents' officials and supervisors would have tolerated any such costly negligence on the part of an employee without taking immediate steps to discharge or discipline the employee. This reaction., or lack thereof, on the part of Respondents' officials belies the importance they now claim to attach to the incident as well as the asserted claim that Roberts was responsible for the damage. In light of the above, I find that the General Counsel has established a prima facie case that the refusal to recall Roberts was unlawfully motivated. I further find that the justification offered by Respondents fails to dem- onstrate that Roberts would not have been recalled, even in the absence of his suspected involvement with the union activity. Wright Line, supra. Therefore, I find that Respondents refused to recall Roberts, and did in fact recall other dragline operators with less experience and seniority, because the employee was considered to be a prime instigator of the UMW organizing activity prior to the layoff. See Wean United, Inc., 255 NLRB 970 ( 1981). Turning to the allegations regarding Respondents' re- fusal to recall Scales, I find the record evidence in sup- port of unlawful motivation to be even more compelling. The record reflects that Scales was a competent and skillful dragline operator who took great pride in his work. Employee Terry Couch testified that Scales made the machine "move" and that he laid his "dumps" as well if not better than most operators. Indeed, when Scales quit his job with Respondents to work elsewhere, because of better hours and closer proximity to his home, he had no difficulty in getting rehired by Respondents when the new employer was unable to meet his payroll. When Scales was rehired he signed a reinstatement letter (G.C. Exh. 91) which simply set forth the fact that he had voluntarily quit and that he was being rehired as a dragline operator on the second shift. No conditions con- cerning his reinstatement were set forth in the letter. I credit Scales' testimony that, at the time he was reinstat- ed, Brooks informed him the only thing he lost by quit- ting was his paid vacation. Thus, I do not credit Brooks' testimony that Scales was told that he would go to the bottom of the seniority list and that he had to fulfill a 60- day probationary period. Respondents assert that, after Scales returned, he de- veloped a bad attitude regarding his work and his pro- duction decreased by 50 percent. Although Brooks asked 245 Scales on one occasion if something were bothering him and was told by the employee that "Things will work out," it is unrefuted in the record that neither Brooks nor Palmer ever discussed the "bad attitude" or the decrease in productivity with Scales. The only document purport- ing to memorialize this change in the job performance of Scales is the document asserted to have been placed in the employee's personnel file by Ira Palmer and Brooks on May 17. (G.C. Exh. 39.) Curiously, this document sets forth the terms and conditions of his reinstatement, even though they were not contained in the actual letter of reinstatement signed by Scales. It is the controversy over this document which gives rise to considerable sus- picion regarding whether it was constructed for purposes of meeting the charges filed in this case or whether it was a valid document memorializing Respondents' eval- uation of Scales' performance on the date contained on the document. The Board agent investigating the charges was given the document by Respondent's attorney to inspect. In an unusual procedure, the Board agent was called as a wit- ness in this case and testified that when he examined the document it stated : "At the time of layoff, management is contemplating termination." Because the document contained the date May 17 and Respondents were not contemplating any layoff at that time, the Board agent's suspicions were aroused. The supervisor of the Board agent testified the document was read to him by Re- spondents' counsel in the Regional office and it con- tained the same wording as the Board agent read during his prior inspection of the document. Respondent's coun- sel was unable to recall what was contained on the docu- ment, and Brooks and Ira Palmer testified that the docu- ment placed into evidence was the complete memoran- dum. In these circumstances, I find no reason to disbelieve the testimony of the Board agents regarding what they saw and heard concerning the document purporting to be the Brooks-Palmer memorandum dated May 17 re- garding Scales' asserted bad attitude toward his job. Indeed, considering the lengths refusing to recall Rob- erts, including making a check of his employment appli- cation after the employee had been on the job with Re- spondent for a considerable period of time, I find the tes- timony of the Board agents to be more accurate and trustworthy. I further find that the document in evidence as General Counsel's Exhibit 39 is of after-the-fact origin manufactured to support Respondents' claim that Scales was an undesirable employee. My conclusions in this regard are further reinforced by the apparent contradic- tions in the testimony of Ira Palmer and Brooks. Palmer testified that he checked the employment applications ,of all of the laid-off employees after learning of the discrep- ancies in the job application of Scales. Contrary to Palmer, Brooks admitted that Scales ' and Roberts' appli- cations were the only ones checked. It is highly improb- able that the three management officials , who were de- ciding which of the employees would be recalled, would not confide in one another regarding the checking of the employment applications. I find, therefore, that the testi- 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD moray of Respondents' witnesses on this point is unreli- able and not worthy of belief. On the basis of the above, I find the General Counsel has established a prima facie case that Scales was not re- called by Respondents because he was perceived to be one of the employees who instigated the UMW organiz- ing campaign. I further find that Respondents' evidence to rebut the prima facie case is made of whole cloth and is entirely unconvincing. Wright Line, supra. According- ly, I find Respondents refused to recall dragline operator Scales from layoff when the mine resumed production for discriminatory reasons and this conduct violates Sec- tion 8(a)(1) and (3) of the Act. Wean United, Inc., supra. V. THE BARGAINING UNIT ISSUES 1. The unit appropriate for collective bargaining Having found that MMR and RSI constitute a single employer in the circumstances here, it follows that the bargaining unit encompasses the employees of both Re- spondents. The parties stipulated that the office clerical employees were excluded from any unit found appropri- ate. Accordingly, I find the following to be an appropri- ate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees of Midwestern Mining and Reclama- tion, Inc., a subsidiary of Midwestern Fuels Sys- tems, Inc., and Reclamation Services, Inc. em- ployed by the employees at their mine site in or near Bronaugh, Missouri; but excluding all office clerical employees, managerial employees, confiden- tial employees, professional employees, guards and supervisors, as defined in the Act. 2. The status of the leadmen It is established by the stipulation in the record that the now leadmen, including Bowie, were statutory super- visors until at least June 25. It appears that Respondents contend that, after that date, these individuals performed unit work at the minesite along with those employees who were not laid off. For this reason, Respondents seem to argue that these persons were no longer supervi- sors. If, indeed, this is Respondents' claim, I find it to be without merit. The record clearly indicates that, after the layoffs on June 18, Respondents' production operation was shut down by order of the State Reclamation Commission and Respondents were required to devote all their efforts to performing delinquent reclamation work. Further, that production work could be resumed only on a limited basis when certain reclamation work had been completed pursuant to the schedule established by the Commission. The mere fact that all the admitted supervisors, includ- ing the mine superintendent, operated equipment along with those employees who were not laid off in order to satisfy the reclamation scheduled in no way alters their supervisory status. This was a temporary situation which can be analogized to supervisors performing unit work during a strike or a lockout. The mere performance of unit work during such an emergency situation does not divest the supervisors of their statutory authority. Thus, Respondents' supervisors remained statutory supervisors until at least August 16, when Respondents purportedly "demoted" them to the positions of leadmen. The critical question becomes, therefore, whether the change in their title and their pay status-from salaried to hourly paid- effectively converted them to rank-and-file employees. In my judgment, the change in status was illusory and did not strip the leadmen of their supervisory authority. William H. Palmer: The contention that William Palmer is a unit employee is patently frivolous on its face and is rejected. Palmer owns more than one million shares of Respondents' parent organization and is cor- rectly recognized by the employees to be one of the owners over the mining operation. The mere fact that Palmer performed work at the minesite on occasions in no way changed his ownership status or his supervisory authority. His continued assertion of his supervisory au- thority over the unit employees is quite evident in the record. Indeed, the mere fact that Respondents now at- tempt to place William Palmer in the bargaining unit serves only to demonstrate the extent of Respondents' effort to further dissipate employee support for UMW. In addition, examination of Respondents' payroll records graphically demonstrates that Palmer suffered very little change in his wages even though he was converted from salary to hourly paid. Accordingly, I find the asserted "demotion" of Wil- liam Palmer to the position of an hourly paid leadman did not affect his managerial or supervisory status. For these reasons I find that William Palmer is excluded from the bargaining unit. Robert D. Palmer: Although Robert D. Palmer's own- ership interests in Respondents is relatively small com- pared to that of Card and William and Ira Palmer, his holdings are nevertheless substantail. ' Robert Palmer owns 50,000 shares in Respondents' parent organization. In addition, Palmer drives a company-owned truck on the minesite and for his own personal use. The undis- puted testimony shows that Palmer continues to give work assignments to employees and to grant them per- mission to leave work early. This is reflected in the fact that, on September 2, Palmer gave permission to the rec- lamation crew working on that date to take time off to attend a softball tournament where Respondents were to be represented by a team. It is also undisputed in the record that Palmer possesses and has exercised authority to reprimand employees working under his direction. It is evident from the credited testimony of employees that Palmer performed little or no unit work after production resumed, but spent most of his time riding around the various mining locations to make certain that the work was being performed as scheduled. It is also undisputed in the record that Palmer has authority to select employ- ees to work overtime. Although Respondents assert that McCrate and Brooks pass on orders and assignments to Palmer and the other leadmen, I find this assertion to be of doubtful validity. It is evident from the nature of the mining operation that it is widely scattered over many miles and neither Brooks nor McCrate can cover all the areas to ascertain that their orders are being carried out, nor can they be available to make on-the-spot decisions MIDWESTERN MINING or changes. In addition, a review of Respondents' payroll records shows that Robert ID. Palmer suffered no loss in income after being converted from a salaried to an hourly paid position. In light of the above, I find that Robert D. Palmer re- mained a statutory supervisor in Respondents ' operation after the alleged demotion to a unit position. It follows, therefore, that Robert D. Palmer is excluded from the bargaining unit. Steve Coleman: Foreman of the tipple and washing op- eration prior to August 16, Coleman performs the same duties and exercises the same authority over the employ- ees working in his unit as he did when he was an admit- ted supervisor . He continues to assign work to employ- ees in his area and determines when and who will work overtime. When Beam quit on September 25, he first no- tified Coleman, who then required the employee to sign a statement that the termination was voluntary. This was placed in Respondents' records after Brooks cosigned the document. The record evidence discloses that, since be- coming a leadman, Coleman has written up employees for unsatisfactory job performance and that, after these writeups are cosigned by Brooks, they are placed in the file of the offending employee. Coleman also signs off on the timecards of the employees working in his unit and they are routinely cosigned by either Brooks or McCarte. In addition, Coleman is provided with a com- pany vehicle which he drives to and from work as well as around the minesite. Even though he now is hourly paid, Respondents' records show Coleman's wages have remained substantially the same as they were when he was salaried. However, there is no evidence in the record that he now works any different hours from those he was working when he was an admitted salaried super- visor. Curtis Dwayne Couch: In charge of dragline mainte- nance, Couch also drives a. company vehicle, both on and off the minesite. He also assigns work to employees in his unit on a daily basis. Although Couch states he re- ceives the work assignments daily from Brooks or McCrate, it is evident from the testimony of employees Fred Couch and Shaw that he exercises his independent judgment in making the assignments to individual em- ployees and, further, that when their jobs are completed he reassigns them to other duties or, in the words of Fred Cuch, informs Brooks that "his men" are available to work elsewhere. Couch also signs off on the timecards of the employees working in his unit to certify that they have worked the hours indicated. These cards are like- wise routinely cosigned by Brooks or McCrate. The credited testimony further reveals that, while Couch per- forms dragline maintenance work himself, he also did this when he was an acknowledged supervisor. Like Coleman, the wages of Couch are virtually the same as they were when he was a salaried supervisor, and there is no evidence that he now works more hours then he did before August 16. Miles Neal Jr. and Jack Wallace: The supervisor and the assistant supervisor of the maintenance shop before August 16, both of these individuals continue to perform the same duties and exercise the same authority over the maintenance shop employees that they exercised when 247 they were admitted supervisors. Although Neal Jr. states he received daily instructions from either Brooks or McCrate, the credited testimony of the employees dis- closes that he or Wallace makes the daily assignments to the employees and when the work is completed reassigns them to other jobs. These individuals sign off on the em- ployee timecards, which are then cosigned by Brooks or McCrate. Neal Jr. is assigned a company vehicle in which he and Wallace drive to and from work or around the minesite. When equipment breaks down in the field, Neal Jr. or Wallace determine which employee will be assigned to make the repairs. As in the case of the other leadmen, the wages of these two individuals have not changed in any substantial manner from the level they were receiving when they were salaried. Jerry Watts: Similar to ther other leadmen, Watts is provided with a company truck for use on and off the minesite. He continues to exercise the same authority over the reclamation crew that he exercised when he was an admitted supervisor. Although Watts states McCrate now gives him instructions each morning and he relays them to the crew, the credited testimony of the employees indicates that McCrate is rarely on the site where they work. Thus, Watts uses his independent judgment and discretion in not only making the daily as- signments but also in any reassignments of work to the employees. He also signs off on the employees' timecards to verify the hours they work and McCrate or Brooks routinely cosign these cards. The record further shows that Watts reprimands employees for infraction of Re- spondents' work rules, including leaving early, and writes up violations of these rules which are then placed in the employee's personnel file after being cosigned by Brooks. The record also discloses that Brooks cosigns these writeups without conducting any independent in- vestigation of the incidents involved. Even though he is now hourly paid, Watts' wages are also virtually the same as they were when he was an admitted salaried su- pervisor. Frank Weisensee: Like the other leadmen, Weisensee is provided a company truck which he uses both on and off the minesite. Although Weisensee testified he receives regular daily instructions from McCrate or Brooks re- garding the work to be performed, it is clear from this employee's testimony that he continues to regard himself as the supervisor of electricians. Weisensee stated that after receiving instructions from McCrate or Brooks he would pass them on to the other electricians and they would collectively decide which individuals would per- form a given job. It is clear from Weisensee's demeanor on the stand that he was aware of the facetiousness of his statement that the job assignments were performed "as a democracy." The testimony indicates Weisensee has 14 years' experience while the two electricians working in his unit only possess 1 year and 6 months' experience, re- spectively. Further, Weisensee referred to the electri- cians working in his unit as "my men" or "my guys," thus clearly indicating that he considered himself to be their supervisors. Although Respondents now call the above individuals leadmen rather than supervisors, the mere change in title 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is not controlling in determining whether their functions satisfy the statutory definition of a supervisor. On the basis of the facts found above, I find that each of these formerly designated supervisors continued to possess and exercise the same functions and responsibilities they pre- viously had prior to being designated leadmen. The record amply demonstrates they responsibly direct the work of the employees assigned to their units, also, that they exercise independent judgment in assigning work to the employees, grant employees time off, reprimand em- ployees for poor work performance or for violating job rules, and effectively make oral and written recommen- dations about employee's work deficiencies which are ac- cepted by higher-level management without independent investigation. Nor is it important here that the leadmen cannot hire or fire employees working in their units. It is clear this authority was always vested in higher-level management even when the leadmen were admitted su- pervisors. Therefore, it is apparent that the now leadmen continue to possess and exercise sufficient indicia of the statutory defintion of supervisor to warrant the finding that they are still, in fact, supervisors. Liquid Transport- ers, 250 NLRB 1421, 1425 (1980); Han-Dee Pak, Inc., 249 NLRB 725, 728 (1980). 3. The status of Bowie As in the case of the other leadmen, Bowie's duties have remained substantially the same since becoming a leadman. Prior to the construction of the new mainte- nance shop on the minesite, Bowie worked out of Re- spondents' trailer office. Since the completion of the shop, Bowie operates from office space, containing a desk and files, in a separate section of the maintenance shop. He continues to maintain Respondents' warehouse inventory and parts department. Bowie's operation has always been autonomous and he reports directly to Brooks. He has authority to make purchases up to $300 on his own initiative and is required to secure Brooks' approval for anything above that sum. Unlike the other leadmen, Bowie has never been provided with a compa- ny vehicle-not even when he was salaried-but Re- spondents maintain and service his personal vehicle, which he uses to secure parts and to go into the field when the occasion warrants it. Although another em- ployee, Dennis Davison, now works with him, Bowie testified he does not assign or direct Davidson's work. However, the record shows that Bowie's wages exceed that of Davidson by $250 to $350 per pay period. In ad- dition, the Respondents' payroll records demonstrate that Bowie's wages are substantially the same as the salary he was earning prior to being classified as a leadman. It is evident from the undisputed testimony and records that Bowie's duties and responsibilities did not alter in any significant respect after his asserted status change. His work is separate and apart from that of unit employees and his job functions continue to be aligned with those of management rather than with the unit em- ployees. He can make independent decisions regarding purchases of parts up to $300 and he reports directly to the mine superintendent. For these reasons, I find that Bowie lacks a sufficient community of interest with the unit employees to be included in the bargaining unit. 4. Other exclusions from the bargaining unit Robert E. (Bobby) Palmer: As noted, Bobby Palmer is the son of Robert D. and the nephew and cousin, respec- tively, of William and Ira Palmer. While he personally owns no stock in Respondents, his father is a substantial shareholder and his uncle and cousin are major share- holders in Respondents. In addition, Bobby Palmer lives at home with his father. Although Respondents assert no particular favoritism or special privileges are accorded to Bobby Palmer, I do not credit them in this regard. Rather, I credit the testi- mony of the employee witnesses that Bobby Palmer is permitted by Respondents to come to work late and to leave early as he desires. In addition, I find that Bobby Palmer is permitted to refuse to operate equipment when he considers it not to be up to his standards, and that he is also allowed to maintain and service his personal vehi- cle during working hours, or to require other employees to perform these duties on his vehicle. It is also apparent from the credited testimony of employees Forbes and Sarley that the other leadmen consider Bobby Palmer to be a privileged employee because he is the son of one of the owners, and they do not reprimand him for infrac- tions of Respondents' work rules. Finally, it is clear from the statement Bobby Palmer made to the employees, about Respondents closing the mine if the UMW became their representative and that they would consider this as the word "coming from the top," that he is privy to the decisions and discussions of Respondents' top-level man- agement. Based on the above, I find that Robert E. (Bobby) Palmer does not share the same community of interests with the other bargaining unit employees, even though he performs unit work. The special privileges accorded him and his familial relationship with Respondents' owners and management align his interests with those of management rather than with the unit employees. Modern Mfg. Co., 261 NLRB 534, 552 (1982). Earl Caywood: A carpenter and handyman at the mine- site, it is contended by the General Counsel that Caywood's interests are different from those of the other employees in the bargaining unit. Because of his wife's health condition, Caywood is the only employee permit- ted to take an extended leave of absence during the winter months in order to take his wife to a warmer cli- mate. The record shows, however, that Caywood is per- mitted to do this annually and, on his return, he contin- ues to perform his work at the minesite. Caywood works under the supervision of Neal Jr., who is in charge of the maintenance shop. Although the General Counsel argues that Caywood's employment arrangement is so unique that it removes him from the bargaining unit, I do not agree. It is evi- dent that while Caywood is permitted to take an ex- tended leave of absence because of his wife's illness, he is expected to, and does, in fact, return to Respondents' employment. He works under the same conditions as the other unit employees and his work is assigned and super- vised by Respondents' "leadmen", i.e., Neal Jr. and Wal- lace. Thus, with the exception of the extended annual leaves of absence, Caywood is employed by Respondents MIDWESTERN MINING 249 on a regular basis and under the same conditions and su- pervision as the other unit employees . It is also evident that, on his return from his leaves of absence, Caywood has every reasonable expectancy of continuing his em- ployment with Respondents. Accordingly, I find that Caywood's community of interest is the same as the other members in the unit and that he is to be included in the bargaining unit. Mid-Jefferson County Hospital, 259 NLRB 831 (1981). Cf. Price-Pic-Pac Supermarkets, 256 NLRB 742 (1981). Miles Neal Sr.: Neal Sr. works in the maintenance shop under the supervision of his son, Neal Jr., and Wallace. It is uncontroverted that Neal Sr. is a social security an- nuitant and limits his working time and earnings each year so that he will not exceed the maximum amount al- lowable without jeopardizing his social security annuity. The record discloses that Neal Sr. has been working under this arrangement for several years with the Re- spondents. During the times that he is employed, Neal Sr. works under the same conditions and supervision as the other employees in the maintenance shop. Although the General Counsel argues that Neal Sr. should not be included in the bargaining unit because of his special employment arrangements , I find this argu- merit to be without merit. The Board has long since rec- ognized that social security annuitants , who otherwise share the same community of interest with the unit em- ployees, are not to be excluded from bargaining units solely for the reason that they limit their working time and earnings so as not to jeopardize their annuities. Holi- day Inn of Oak Ridge, Tennessee, 176 NLRB 939, 941 (1969); Richardson Bros. Co., 228 NLRB 314, 318 (1977). James Query and Dale Smith: The primary responsibil- ity of Query (and Smith on the 4 nights that he works) is to patrol the minesite at night making certain that all buildings and equipment are secure. They use their own vehicles and are supplied fuel and maintenance by Re- spondents. They not only make certain that the property is secure, but possess authority to eject intruders. While they are patroling, they respond to the needs of the equipment operators, who require fuel, oil, parts, or other types of assistance. They are the only employees onsite carrying keys to the buildings. When major prob- lems arise, such as equipment failure, they notify the pitt boss during the second shift, or call Mine Superintendent Brooks at home. Each of these employees relays instruc- tions left by supervisors to the operators in the field and report infractions of work rules committed by the opera- tors to the relevant supervisor. When this is done, the record discloses that a written notation is placed in the operator's personnel file and it is signed by the watch- man and the supervisor. While Respondents do not re- quire either of these employees to carry firearms, the tes- timony of Smith indicates that he does so while patroling the area and Respondents do not object to this. Although Query and Smith perform custodial duties in the trailer office and the maintenance shop, the unrefuted testimony indicates that this occupies only a small portion of their working time. It is evident from the above that the watchmen's pri- mary function is to protect Respondents' building and equipment from all intruders. They carry keys to these buildings which the other employees working at the min- esite do not possess and, while not required , can carry firearms when performing their patrohng duties. They report to management any infraction of job rules com- mitted by employees working during their shift. Hence, I find the watchmen here are empowered to enforce Re- spondents' rules against the employees and others in order to protect Respondents' property within the mean- ing of Section 9(b)(3) of the Act. For this reason, the watchmen are excluded from the unit found appropriate here. Kentucky Prince Coal Corp., 253 NLRB 559, 562 (1980). VI. ADDITIONAL 8(A)(1) VIOLATIONS The record is filled with testimony by employee wit- nesses which demonstrates that Respondents ' supervisors engaged in a continuous campaign of threats and unlaw- ful conduct in order to stifle employee support for the UMW and thwart the organizing campaign . Although each of the supervisors cited by the employees denied making any of the statements or engaging in the conduct attributed to them, I do not credit these denials. Based on the pattern of the unlawful threats of shutdown and promises of benefit already found herein, I find the un- lawful conduct described by the employees to be consist- ent with the demonstrated penchant of the supervisors to make certain that the employees understood their jobs were in jeopardy if they were represented by UMW. In light of the above, I find that, on June 18, William Palmer and Dwayne Couch told employee Christian that, when he attended the UMW meeting that evening, he should tell the employees Respondents would close the mine if the Union became the bargaining representa- tive. I further find that when UMW organizer Prettyman visited the minesite in early July, Robert Palmer told em- ployee Clark that Respondents would shut down the mine if the Union got in. Similarly on August 6, Robert Palmer told employees Clark and Forbes that they could all look for jobs, since Respondents could not afford the UMW and would close the mine. I find that during this conversation Robert Palmer also stated that while he had plans for employee Westhoff, if the UMW got in, he would make Westhoff so sick he would puke. Robert Palmer also expressed similar unlawful comments to em- ployee Sarley on August 11 when he stated that, if the Union got in, Respondents would take all of the equip- ment and park it. Robert Palmer repeated these same un- lawful statements to employees Forbes and Clark on August 19 and 21, respectively. On these occasions Palmer complained about the price Respondents were getting for the coal and he repeated that Respondents would shut down the mine if the UMW got in. Again, similar threats were expressed by Robert Palmer to em- ployees Beam and Westhoff on September 2 at the soft- ball tournament. I further find that Robert Palmer was not the only su- pervisor seeking to impress on the employees that UMW representation would result in the loss of their jobs. Thus, I find William Palmer told laid-off employee King, on August 14, that Respondents would "padlock the place and auction off the equipment before they would 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sign a contract with the UMW." William Palmer denied making this statement to King but admitted telling the employee that if the cost of UMW representation was such that Respondents could not meet their bills, they "might have to shut her down." Although I credit King's version of these comments, in either event the bottom line result was the same, i.e., the mine would close if UMW represented the employees.56 In addition, on September 13 William Palmer repeated his comments to King that Respondent would "never go UMW." It was at this time that Palmer told King that employees Fred Couch and Shaw were seeking to get a "company union" and, when things straightened out, King could expect to be recalled, after Respondents "weeded out a bunch of the employees " Nor did Respondents' supervisors merely resort to threatening employees with loss of their jobs if they were represented by UMW. The credited testimony shows that Robert Palmer made statements to employees Clark and Forbes indicating that Respondents were en- gaging in surveillance of the employees while they were attending meetings at the union hall in Mulberry, Kansas. Palmer told the employees they did not have "much suck" with their father because Westhoff sat at the head table with Union Organizer Forbes, and Clark and young Forbes sat in the audience with the other employees. Clearly, this indicated to the employees that their activi- ties on behalf of UMW were being kept under scrutinity and surveillance by Respondents. Further evidence of creating an impression of surveil- lance is found in the credited testimony of laid-off em- ployee King. He observed Robert Palmer hand Supervi- sor Watts a slip of paper and state, "Here are the names of your top reclamation men who signed UMW cards." Likewise, Tipple Supervisor Coleman asked employee Beam on September 14 to be certain to attend the UMW meeting scheduled that evening. The following day Coleman sought to get Beam to inform him about what occurred at the union meeting. It is patently evident that, by engaging in the above conduct, Respondents' supervisors were interfering with, restraining, and coercing the employees in the exercise of their right to engage in activities in support of the UMW. It is equally evident that the supervisors were en- gaging in this persistent unlawful conduct in order to dis- courage employee activity on behalf of UMW. That such baltant unlawful conduct violates the strictures of the Act is without question and warrants no citation. VII. THE CARD MAJORITY ISSUE Pursuant to the stipulation of the parties , at least 68 employees properly belong in the bargaining unit. As noted in another section of this decision, supra, the lead- men are supervisors and Bowie lacks sufficient communi- ty of interest, if nothing else, to be included in the bar- gaining unit. As also noted in my prior findings, Robert E. (Bobby) Palmer is excluded for familial reasons and James Query and Dale Smith are excluded because they 5s Bobby Palmer expressed this same threat to a group of employees on September 13 and emphasized the source of his information was Re- spondents' management when he stated, "That comes from the top " are guards within the meaning of Section 9(b)(3) of the statute. Since it has been found that Earl Caywood and Miles Neal Sr. properly belong in the bargaining unit, I find that the unit consisted of 70 employees during the times material to the issues presented by this case. Thus, the question becomes whether the UMW obtained valid- ly executed authorization cards from a majority of the employees in the bargaining unit found appropriate. There is no question but that the UMW cards are un- equivocal single-purpose cards authorizing the Union to represent the card signer for purposes of collective bar- gaining. Forbes and Prettyman credibly testified that they informed the employees they solicited, individually as well as the groups of employees attending the several meetings at the union hall, that the Union wanted to become their bargaining agent at the mine in order to ne- gotiate better wages and improved working conditions for them. It is evident from the testimony of the union organizers and the employee witnesses that, while Forbes and Prettyman told the employees 30 percent needed to sign cards in order to have an election, they also stated that, if a majority of the employees signed, they would first attempt to get Ira Palmer to recognize the Union as the bargaining representative. If he did not, they would seek a Board-conducted election. Both Forbes and Pret- tyman also credibly testified that they insisted that each card signer read the card before signing it and they made it a practice of questioning the card signer to determine wether or not he understood what he was signing.57 Respondents assert, however, that the solicited em- ployees were told the only purpose of the cards was to secure an election. In this regard, they presented the tes- timony of seven card signers to support this claim and argued that the testimony of five card signers called as witnesses in the General Counsel's case also demonstrate that their signatures were solicited on the representation that the only purpose of the cards was to get an election. The law in this area is well established by the Supreme Court's affirmance of the Board's Cumberland Shoe doc- trine58 in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). In Gissel, supra at 607, the Court stated: [W]e think it sufficient to point out that employees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the lan- guage above his signature. The Court also affirmed the Board's admonition found in Levi Strauss, supra, that "the totality of circumstances surrounding the card solicitation" must be considered in 51 The assertion in Respondents' brief that the union organizers told solicited employees that the Union wanted to represent the employees rather than stating that the Union wanted to represent the individual em- ployee being solicited is nothing more than a semantical play on words It is clear that if the union organizers asserted they wanted to represent the employees collectively, such representation would also include any individual employee being solicited I therefore reject this aspect of Re- spondents' argument 56 Cumberland Shoe Corp, 144 NLRB 1268 (1963), enfd 351 F 2d 917 (6th Car. 1965) Reaffirmed in Levi Strauss & Co, 172 NLRB 732 (1968), enfd. 441 F 2d 1027 (D C Cir 1969) MIDWESTERN MINING order to determine whether they add up to an assurance to the card signer that the card will be used for no pur- pose other than to help get an election. Id. at 608, fn. 27. In applying this standard set by the Board and af- firmed by the Supreme Court, I reach the following con- clusions regarding the cards which Respondents contend were solicited on the basis of the representation that they were solely for the purposes of securing an election. Kenneth Davidson: The record discloses that Davidson was the employee recalled by Respondents in August when the decision was made not to recall Roberts or Scales, He subsequently quit the Respondents' employ on September 25 and at the time of the hearing was work- ing for another coal company. Davidson's signature on the authorization card was solicited at his home by Pret- tyman. (See G.C. Exh. 72.) According to the direct testi- mony of Davidson, Prettyman showed him a list of bene-' fits which the Union wanted to negotiate for the employ- ees and told him that it was necessary for him to sign the card in order to bring the matter up for a vote. On cross- examination, however, Davidson inidcated that he read the card before signing it and he also acknowledged that Prettyman said the Union needed a majority of the em- ployees to sign the authorization cards. He further ac- knowledged on questioning by counsel for the General Counsel that the union organizer told him the Union wanted to represent the employees at the mine. On the basis of the foregoing, it is clear that nothing Prettyman said to Davidson could be construed as indi- cating that the only purpose for which the card would be used was to get an election. The employee read the card and the union representative told him that the Union wanted to be the bargaining agent of the employ- ees at the mine. I find nothing in the circumstances sur- rounding the solicitation of Davidson's card which indi- cates that the union organizer directed the card signer to disregard and forget the language contained on the card itself Accordingly, I find Davidson's card to be a valid authorization for the Union to represent him in collective bargaining. James Harper: A current employee of Respondents, Harper signed an authorization card on June 16. (G.C. Exh. 65.) He testified he received the card from Pretty- man who talked with him for approximately 15 to 20 minutes. The only thing that Harper recalls from this conversation was that Prettyman told him "the only pur- pose of the cards was to get enough votes in order to get the Union in " According to Harper, Prettyman asserted that the Union already had enough "votes" but, never- theless, he wanted the employee to sign a card. Harper stated he signed the card without reading it. On cross-examination, Harper was unable to recall any of the details of his conversation with Prettyman and was unable to recall whether Prettyman told him that the Union wanted to represent the employees at the mine. He stated, however, that he did not normally sign any document without first reading it. He also denied that the card was read to him by Prettyman. Contrary to the testimony of Harper, employee Sarley stated that he was present when Prettyman solicited Harper. Sarlley testified that Prettyman read the card to Harper and told the employee that it was to authorize the UMW to rep- 251 resent the employees at the mine. He further stated that Prettyman informed the employee that signatures were needed from a majority of the employees in order for the Union to become their bargaining representative. Bearing in mind the Supreme Court's observation in Gissel that "employees are more likely than not, many months after a card drive and in response to questions by company counsel, to give testimony damaging to the union, particularly where company officials have previ- ously threatened reprisals for union activity in violation of Section 8(a)(1),"59 I find Harper's account of the cir- cumstances under which his signature was solicited to be untrustworthy and unreliable. It was evident that the only thing this employee was prepared to testify to was that his card was solicited solely for the purpose of an election. He was unable or unwilling to recall any other portions of the conversation with Prettyman although he acknowledged they talked for 15 or 20 minutes. It is ap- parent to me that Harper's inability to recall any other representations made to him by Prettyman at the time of the solicitation was more inspired by a desire to conceal rather than to give a true account of the statements made by the union organizer when the card was solicited. I therefore discredit Harper's testimony and find in these circumstances that the card solicitor did not make any representations to Harper which could be viewed as a cancellation of or a direction to disregard the language of the card itself. For this reason, I find that the card of Harper is a valid designation of the Union to be his col- lective-bargaining representative. Dennis Davidson: Also a current employee of Respond- ents, Davidson signed an authorization card on June 15. (G.C. Exh. 50.) He stated he received the card from Forbes while he was playing pool in a local pool hall. According to Davidson, Forbes stated the card was to get an election and that "if the Union won, it was in. If it lost, then the Union was out." Davidson testified that Forbes filled out the card and that he signed it when he finished his game. Contrary to the testimony of David- son, Forbes testified that he read the card to the employ- ee and informed him that the Union wanted to become the bargaining representative of the employees at the mine. Observing Davidson while testifying and having cred- ited the union organizers' testimony about the manner in which they solicited signatures on the authorization cards, I do not find Davidson's account of the circum- stances to be reliable. Rather, I find that Forbes read the card to the employee while he was playing pool and that there were no representations made to the employee by Forbes, even if he mentioned the possibility of an elec- tion, which could be construed as a direction to the em- ployee to disregard the clear language previously read to him concerning the meaning of the authorization card. Therefore, I find that the authorization card was a valid designation executed by Davidson for the Union to be his bargaining representative and it counts toward the Union's majority status. 11 NLRB Y. Gissel Packing Co, supra at 608 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD William D. Barnett: Barnett acknowledged he signed an- authorization card in front of the union hall before at- tending a union meeting (G.C. Exh. 70.) He stated he had attended two or three meetings prior to this occa- sion and was given the card by Prettyman . According to Barnett, Prettyman stated the only purpose of the card was to have an election and filled out the card for the employee who then signed it. Barnett reluctantly admit- ted, on cross-examination, that the at the prior union meetings he attended, the union organizers informed the employees that if they received enough cards they could ask Ira Palmer to recognize the Union without an elec- tion. He was unable to recall whether Prettyman read the card to him, but states that, since he did not have his glasses, Prettyman filled the card out before he signed it. Contrary to Barnett, Prettyman stated that he read the card to Barnett because the employee insisted on this since he had received the letter from Card cautioning the employees to read the cards carefully before signing. Barnett also testified that on August 4 he telephoned union organizer Forbes and asked for the return of his card. According to Barnett, Forbes indicated he would but failed to return the card to the employee. Forbes ad- mitted that he had received a call from Barnett, but places the date as sometime in early September. Forbes testified that Barnett said he had "mixed emotions" about signing the card and would contact Forbes later. Forbes stated he never received any further communication from Barnett. I do not view Barnett's testimony regarding the cir- cumstances in which his signature was solicited to be trustworthy or believable . It was evident from his de- meanor that this witness was biased against the UMW and was carefully tailoring his testimony in order to assist Respondents. Barnett admitted that he took it upon himself to check on Scales' work experience at Bill's Coal and that he also called other card signers and sug- gested they get in touch with Respondents' attorney re- garding this case. Further , his reluctant admission on cross-examination that he had attended union meetings prior to the signing of the authorization card in which the union organizers informed the employees they would seek recognition if a majority of the employees signed, cards belie his assertion that on this occasion Prettyman told him the only purpose of the card was to have an election. Based on Barnett's undisguised bias and willing- ness to tailor his testimony, I find that there were no rep- resentations made to Barnett at the time he signed the authorization card which would have been construed as an instruction for the employee to disregard the language on the face of the card. I find , therefore, that Barnett's card was a validly executed authorization for the Union to represent him. The question remains, however, whether Barnett suc- cessfully revoked his card so it could not count toward the Union's majority status. I find that his asserted revo- cation was ineffective for this purpose . When an employ- er has engaged in coercive conduct designed to under- mine union support during an organizing effort, the Board presumes that employee revocations of previously valid authorization cards are a direct result of the em- ployer's unlawful conduct. See Warehouse Groceries Man- agement, 254 NLRB 252 (1981 ). Here, it is established that Respondents engaged in widespread and pervasive unlawful acts in an effort to destroy the employee sup- port for the UMW, commencing virtually at the incep- tion of the organizing effort in June and , further, that the unlawful conduct continued through the entire summer and up to the time of the filing of the representation peti- tion. Thus, it is evident that this pattern of coercive con- duct was well under way when Barnett sought to revoke his card and I find it renders his asserted revocation at- tempt ineffective . Warehouse Groceries Management, supra; Quality Markets, 160 NLRB 44, 45-46 (1966), enfd. 387 F.2d 20 (3d Cir. 1967). Accordingly, Barnett's card is to be counted toward the Union's majority status. Dale Scism: Scism signed an authorization card on June 13. (G.C. Exh. 53.) Scism testified that Forbes came to his home and told him that the Union needed signa- tures from 30 percent of the employees in order to have a secret-ballot election . According to Scism, he did not read the card and Forbes filled it out before he signed it. On cross-examination, however, Scism admitted that Forbes spoke about the benefits the Union wanted to ne- gotiate for the employees and he stated that Dennis Forbes told him the UMW wanted to represent the em- ployees at the mine. Scism testified that he merely signed the card in order to get rid of the union representatives and that he has attempted to avoid them ever since. He acknowledged that he met with Respondents' attorney subsequently because he "wanted to get his name off the authorization card." Employees Sarley and Clark testified that Sarley had set up the meeting with Scism for Forbes and they ac- companied Forbes to Scism's home. Sarley testified that Forbes asked Scism to sign the card to enable the Union to become the bargaining agent of the employees at the mine. Sarley also testified that Forbes read the card to Scism. Clark testified that he told Scism during this meeting that signatures of at least 30 percent of the em- ployees were needed in order to get an election . Accord- ing to Clark and Sarley, Scism indicated he was signing the card because of his friendship for them. I credit the testimony of Clark and Sarley and find that at no time during the solicitation of Scism's signa- ture on the authorization card were representations made to the employee that the only purpose for which the card would be used was to secure an election. Rather, I find that during the course of the discussion the employ- ee was told that the Union wanted to be the bargaining representative and that an election was one of the means by which this could occur. There was nothing in the representations made to Scism which would warrant the conclusion that the employee was informed to disregard the language read to him from the face of the card by the union organizer. Therefore, the card of Scism is a validly executed card and is to be counted toward the Union's majority status. David Scharenberg: One of the employees laid off on June 18, Scharenberg was unemployed at the time of the hearing in the instant case. Scharenberg stated he re- ceived a card from Forbes on June 15 and signed it. (G.C. Exh. 46.) He stated that Forbes came to his home MIDWESTERN MINING and told him about the benefits the Union wanted to get for the employees at the mine. He also testified that Forbes said the Union wanted signatures from 30 percent of the employees in order to hold a secret-ballot election. Scharenberg admitted, however, that Forbes told him during the solicitation of his signature that the Union wanted to represent the employees at the mine and he acknowledged that, when he signed the card, he was doing so in order to get the Union to represent him. On the basis of the above, I find that Scharenberg was not told that the only purpose of the authorization card was to get a secret-ballot election. Although Scharen- berg testified he did not read the card before signing, I credit Forbes' testimony that he followed his practice of reading the card to the employees whom he solicited. In these circumstances, I find that Scharenberg was in- formed that the card was to authorize the UMW to be his bargaining representative and that no representations to the contrary were made to him at the time his signa- ture was solicited. For this reason, Scharenberg's card is to be counted in determining the Union's majority status. Gary Loudermilk: A current employee, Loudermilk signed a card on August 23. (G.C. Exh. 64.) Loudermilk testified he was given the card while at the home of his brother, Terry Loudermilk. According to his testimony, Prettyman discussed the benefits the Union intended to seek for the employees and stated that the purpose of signing the card was to get an idea of the number of em- ployees who wanted the Union to represent them. In re- sponse to leading questions from Respondents' counsel, Loudermilk finally stated that Prettyman said the only reason for signing the card Was to have a vote to see if the employees wanted the Union to represent them. He acknowledged he read the card before signing and stated that when he read the card he knew he was authorizing the Union to represent him. Contrary to the testimony of Gary, Terry Loudermilk stated that when he was given the card by Prettyman, he and his brother were told that the card was to authorize the Union to be the bargaining agent of the employees. Terry confirmed that he and his brother each read the cards before signing. Based on the above, I find that the card of Gary Loudermilk is to be counted toward the Union's majori- ty status. It is evident from his own testimony, as well as that of his brother, that Prettyman made no representa- tions which would lead the employees to disregard the language contained on the face of the card. There was nothing surrounding the circumstances of the solicitation of the cards from the Loudermilks which would indicate that the solicitor was advising them to ignore the lan- guage on the card or to inform them that the only pur- pose of the card was to secure an election. Respondents assert that the testimony of witnesses Rink, Brannan, Beam, Terry Couch, and Westhoff dem- onstrate that when their signatures were solicited they were told the only purpose of the card was to secure an election. Review of his testimony belies Respondents' as- sertion. Rink testified that he was informed that a number of cards were needed to be turned over to the NLRB. He also testified that the solicitor stated the Union wanted to be the bargaining agent for the employ- ees at the mine and he read the card before signing. 253 Brannan testified he read the card before signing it and stated that Union Organizer Forbes said the card was to get a bargaining agent to represent the employees at the mine. Beam testified that Forbes told him the card was to authorize the Union to be his bargaining agent. Beam stated he read the card and then signed it. Couch testi- fied that when his signature was solicited, he was told there could be an election or Respondents could recog- nize the Union. Westhoff testified that when his signature was solicited he was told by Prettyman that the card would authorize the Union to be the employees' bargain- ing agent. In these circumstances, I find Respondents' contention that the solicitation of these five employees was based on the representation that the sole purpose of the signing of the authorization card was to have an election is unsup- ported in the record. It is evident, from the credited tes- timony of these employees, that nothing was said which would indicate they were to disregard the language con- tained on the face of the authorization card they signed. Nor was any representation made to them that the sole purpose of the card was to allow the Union to file a peti- tion for an election. Having found that the cards objected to by Respond- ents are valid designations of the Union as the bargaining representative of the card signers, I further find that the Union had in its possession 36 valid authorization cards when Ira Palmer and the union officials met in Washing- ton, D.C., on August 11. Because the cards of the two Loudermilks were signed on August 23, it is obvious that the Union had 38 valid authorization cards when the rep- resentation petition was filed on September 10. Having further found that the bargaining unit here consists of 70 employees, it is apparent that at least by August 11, the Union had achieved a card majority among the Respond- ents' employees. VIII. THE ISSUE OF UNLAWFUL ASSISTANCE TO CIU The complaint alleges that Respondents rendered un- lawful assistance and support to the C[U. In her brief, the General Counsel argues, in essence, that Respondents rendered this unlawful support in an attempt to supplant the threat of employee representation by UMW with representation by a union Respondents could "live with" and control. I find the record fully substantiates the Gen- eral Counsel's position and that Respondents did in fact render unlawful assistance to the CIU during that union's organization effort. First, it is evident from the undisputed testimony that employees Fred Couch and Todd Shaw sought out the CIU officials and initiated an organizing campaign on behalf of that union among the employees at the mine- site.60 It is also evident that Couch and Shaw discussed the possibility of representation of the employees by CIU with various leadmen as well as other employees. I credit the testimony of the employee witnesses that BO Although the General Counsel argues that Ira Palmer suggested that Couch and Shaw seek out a more favorable union when he unlaw- fully interrogated the employees in June (away from the mmesite), I find no evidence in the record-other than pure speculation-to support this contention 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Couch and Shaw were permitted by the leadmen to freely come into their work areas during working time and engage in extended discussions about the CIU to so- licit support for that union, and to urge the employees to attend the CIU meeting during the evening of September 2. Indeed, my conclusions in this regard are buttressed by the very testimony of Couch and Shaw. When exam- ined by counsel for the General Counsel as Rule 611(c) witnesses, both of these individuals acknowledged they solicited employees for the CIU during working hours. I note that it was not until they were questioned skillfully by Respondents' counsel that these witnesses changed their statements to indicate the solicitations took place during their lunch period and breaktimes. Thus, I find the supervisors were aware of Couch and Shaw's mission and, contrary to the unlawful course of conduct directed at suspected UMW adherents, they permitted the two employees to freely solicit on behalf of CIU during working time without any interference. Any doubts in this regard are fully dispelled by the fact that six of the leadmen (Dwayne Couch, Bowie, Neal Jr., Wallace, Coleman, and Robert D. Palmer) signed authorization cards for the CIU and at least five attended the meeting on September 2. Next, it is apparent that Respondents' supervisors were not only aware of the CIU meeting on September 2, but were also willing to grant employees working the second shift time off to attend. Pit Boss Moore allowed employ- ees Rink, Totman, and Lamb to leave early to attend the meeting. Although Moore testified he was not aware of the CIU meeting and that he allowed the employees to leave for personal reasons, I do not credit his explana- tion. Based on the credited testimony and the obvious participation of the leadmen in the organizing effort on behalf of CIU, I find it highly improbable that Moore was the only supervisor lacking knowledge of the meet- ing or that the employees were requesting time off to attend it. The complaint alleges that Rink, Totman, and Lamb were paid for the 3 hours they spent at the CIU meeting. Respondents' records show, however, that Moore put notations in their personnel files showing their absences were unexcused and the payroll records of Respondents are inconclusive as to whether these employees were in fact paid for the time they spent at the meeting. In view of the finding that Moore granted the employees permis- sion to leave work to attend the meeting, I do not deem it necessary to attempt to fathom whether these three employees were paid for the time so spent. It is sufficient that the pit boss granted the employees time off to attend the meeting, thereby indicating to the employees that Respondents did not oppose employee support of CIU. In addition to signing authorization cards for the CIU, it is unrefuted in the record that at least five of the lead- men attended the CIU meeting along 'with the employ- ees. These individuals were Robert D. Palmer, Bowie, Dwayne Couch, Neal Jr., and Jack Wallace. Considering their unlawful involvement in the effort to get the em- ployees to support the CIU, I credit the testimony of em- ployee Rink that Dwayne Couch told the employees at the meeting that if the CIU were unsuccessful and the UMW became their bargaining representative, Respond- ents would shut the mine down. Finally, there is further evidence of Respondents' un- lawful assistance to and support of the CIU. Thus, when Fred Couch and Shaw arranged the meeting the follow- ing morning between the CIU representative (Conrad) and Card and Ira Palmer, the two employees were per- mitted to leave the minesite during working hours with- out first securing permission. In addition, they waited an hour for Conrad to appear in order to bring him on the site and they were not reprimanded or in any way disci- plined for their absence. These two employees were also permitted to attend the meeting between the CIU repre- sentative and Respondents' management where the topic of discussion was representation of the employees by CIU. Although it is evident that Respondents' management was not anxious to have the employees represented by any union, the unrefuted testimony regarding the meet- ing graphically demonstrates that Card and Ira Palmer indicated they could accept representation of Respond- ents' employees by CIU. Thus, I credit Couch's testimo- ny that Card stated, "If the employees wanted a union, this was the way to go," and also that Ira Palmer stated, "While he didn't like it, he could live with the CIU since it would not be that much of an expense to him." It was these expressions of approval by Respondents' top-level management that Couch and Shaw relayed to the other employees after the meeting. Contrary to Re- spondents' argument that the two employees were merely placing their own interpretation on the results of the meeting to indicate to the other employees that Re- spondents supported the idea of representation by CIU, I find that no other interpretation of the comments of Card and Palmer was warranted. Moreover, I note these comments were made by Card and Palmer in the pres- ence of the two employees who were supporters of the CIU and who they knew would be certain to report back to the other employees. Indeed, further evidence that management took a hospitable view toward the CIU is found in the statement of Robert Palmer when he in- formed Dennis Forbes on September 3 that he had been to a "Bohemian Onion meeting." When questioned by Forbes as to whether the CIU was worth anything, Palmer replied that "It wasn't worth a damn, but would allow Respondents to continue to operate the mine." Similarly, when Williams Palmer met with laid-off em- ployee King on September 13, he informed King that Couch and Shaw were arranging to get a "company union" and when everything was straightened out em- ployees would be called back to work. It is evident from the above that the comments of Re- spondents' top-level management, which were relayed to the other employees by Couch and Shaw, constituted an unmistakable signal to the employees, that Respondents were not opposed to having the CIU represent the em- ployees. When considered in the light of the persistent pattern of unlawful conduct engaged in by Respondents' supervisors and management officials in opposing the UMW organizing effort, it becomes evident that the comments of Respondents' officials exceeded any permis- MIDWESTERN MINING sable bounds of commentary allowed by Section 8(c) of the Act. The clear message conveyed to the employees was that Respondents favored the CIU and would not engage in unlawful conduct to undermine employee sup- port of that union. In sum, I find the record fully supports the allegations of the complaint that Respondents' supervisors and man- agement officials rendered unlawful assistant and support to CIU. The noninterference of the supervisors with the employees' solicitation of support for CIU during work- ing hours, the attendance of the C1U meeting by five su- pervisors, the signing of authorization cards for CIU by the supervisors, the granting of time off from work for employees to attend the CIU meeting, and the comments of Respondents' top management and owners that Re- spondents could operate with the CIU as the bargaining representative of the employees clearly demonstrate the extent of the unlawful support and assistance rendered to the CIU by Respondents. Machinists Lodge 35 v. NLRB, 311 U.S. 72 (1940); Elias Mallouk Realty Corp., 265 NLRB 1225 (1982); World Wide Press, 242 NLRB 346 (1979). I find, therefore, that by this conduct Respond- ents have violated Section 8(a)(2) of the Act. IX. THE ISSUE OF VOLUNTARY RECOGNITION The General Counsel contends that, on August 11, Re- spondents extended voluntary recognition to UMW when Ira Palmer met with the union officials in Wash- ington, D.C. It was at this meeting that Palmer was given the draft of the recognition agreement which was to be subsequently finalized on Respondents' letterhead after approval by Respondents' board of directors. Re- spondents argue, however, that' at best, Palmer merely extended recognition conditioned on approval by Re- spondents' other officials and, when this approval was not given, the recognition failed. Respondents further argue that there is no evidence of any form of bargaining between the parties after the conditional recognition was extended by Palmer or that Respondents took any af- firmative steps "consistent with the alleged recognition." That a secret-ballot election is the preferred method of ascertaining employee preference regarding union repre- sentation is without question. NLRB v. Gissel Packing Co., supra at 602. However, it is also firmly established that voluntary recognition of a majority union is an ele- ment of national labor policy. See Broadmoor Lumber Co., 227 NLRB 1123, 1134-1135 (1977); NLRB v. Broad Street Hospital, 452 F.2d 302, 305 (3d Cir. 1971). The question of whether voluntary recognition has been con- ferred is a factual one to be ascertained from the circum- stances in each case. See Dollar Rent-A-Car, 236 NLRB 206 (1978). But once such recognition is conferred, it cannot be withdrawn or reneged upon by an employer before a reasonable period of time for bargaining has elapsed without violating the bargaining obligations im- posed by Section 8(a)(5) of the Act. Jerr-Dan Corp., 237 NLR]B 302 (1978). See also Capitol Temptrol Corp., 243 NLRB 575 (1979); NLRB v. San Clemente Publishing Corp., 408 F.2d 367, 368 (9th Cir. 1969). Hence, the criti- cal question here is whether the evidentiary facts regard- ing the meeting of August 11 warrant a finding that Re- spondents voluntarily accorded recognition to UMW. 255 Although the testimony regarding the meeting is in conflict, certain basic facts are unrefuted. First, Ira Palmer sought to impress on the union officials at the meeting that Respondents' dire financial condition would not permit it to sign the UMW Master Agreement. For this reason, Palmer urged the Union to grant Respond- ents 18 to 24 months before considering executing a col- lective-bargaining agreement. Second, the union officials assured Palmer that the UMW would do nothing to interfere with Respondents' ability to make its operations profitable and that they would grant him sufficient time to accomplish this and, further, that Union Organizer Forbes concurred in this assurance, provided Respond- ents recognized the Union as the collective-bargaining representative. Third, that Union Official Galati drafted an agreement in which Respondents agreed to recognize UMW as the collective-bargaining representative of the employees and which provided for monthly monitoring of Respondents' records by a UMW representative to es- tablish the status of Respondents' financial condition. Fourth, that Palmer asked for and was granted permis- sion by the union officials to take the document back for approval by his board of directors before signing it. The conflict in the testimony relates to (1) whether Palmer was told the Union had a card majority; (2) whether once given the draft of the recognition agree- ment, Palmer stated it looked all right to him, but that he would have to take it back to Respondents' board for ap- proval; and (3) whether Palmer assured the union offi- cials that approval would be a mere formality. Because of my assessment of Palmer's veracity concerning other matters to which he testified, I find the testimony of the union officials to be a more accurate account of the events that occurred during the meeting on August 11. Viewing the factual account of the meeting to be as de- scribed by the union officials, the basic question becomes whether these facts constitute a conferral of recognition by Respondents of the Union as the collective-bargaining representative. In my judgment, the question is a close one. It is ap- parent that Palmer did not question or ask for proof of the Union's claim of majority status. Based on prior find- ings herein, however, it is also clear that at the time of the meeting the Union did in fact possess a card majori- ty. But the record evidence does not establish, in my judgment, that Palmer's statements to the union repre- sentatives at this meeting constituted a commitment to accord recognition to the Union. Rather, I find that while Palmer stated the language of the draft of the rec- ognition letter appeared all right to him, he also explicit- ly told the union representatives he would have to take the document back for approval by Respondents' board of directors. That his further comments may have im- plied such approval would be pro forma in no way viti- ates the condition imposed upon the agreement to recog- nize the Union. It is true that the parties were not seek- ing to negotiate the substantive terms of a collective-bar- gaining agreement at this time. They were merely nego- tiating regarding recognition of the Union and providing the Union with a means of monitoring; Respondents' fi- nancial status to determine when substantive negotiations 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would become possible. Nevertheless, I find the state- ments made by Palmer during this meeting were explicit- ly conditional and recognition was never accorded to the Union at this time. It follows, therefore, that when Re- spondents ultimately refused to recognize the Union in their letter of August 16, they were not withdrawing or reneging on a previous commitment to do so. Accord- ingly, I conclude the record evidence does not prepon- derate in favor of a finding that Respondents recognized the UMW on August 11 and unlawfully withdrew such recognition on August 16. In light of the above, these al- legations of the complaint shall be dismissed. X. THE ISSUE OF A GISSEL BARGAINING ORDER In spite of my finding that Respondents did not recog- nize and then unlawfully withdrew recognition from UMW, I nevertheless find that a bargaining order is the, only appropriate remedy for the unlawful conduct en- gaged in by Respondents. The record establishes that Re- spondents embarked on a course of retaliatory unfair labor practices virtually from the inception of the orga- nizing activity among the employees. The UMW began soliciting authorization cards the first week in June and, by the second week, all of Respondents' supervisors, in- cluding major shareholders and the president, sought to eradicate employee support of UMW by (1) threatening to close the mine if UMW represented the employees; (2) promising employees benefits if they did not support UMW; (3) Interrogating employees about their union ac- tivities and sentiments and that of other employees; (4) creating an impression that employees were being watched when attending UMW meetings; (5) threatening employees with reprisals if they supported the UMW, and (6) requesting that employees attend union meetings and report back on the activity of supervisors. Respondents' unlawful opposition to the UMW orga- nizing activity continued throughout the summer months and lasted into the fall. After a lawful layoff on June 18 for economic reasons, Respondents refused to recall and subsequently discharged two employees (Roberts and Scales) thought to be responsible for the UMW organiz- ing effort. In addition, on August 19, Respondents un- lawfully terminated all laid-off employees, who had not been recalled by that date. At approximately the same time, Respondents sought to further undermine the UMW majority status among the employees by allegedly demoting its salaried supervisors (including two who had major or substantial ownership interests in Respondents) to positions of hourly paid leadmen in order to attempt to include them in the bargaining unit. Finally, Respond- ents, through its supervisors, rendered unlawful assist- ance to CIU-which was considered a "company union"-in order to thwart the UMW organizing effort among the employees. These serious and pervasive unfair labor practices were designed to achieve a single purpose, i.e., dissipate employee support of the UMW by graphically demon- strating to the employees that Respondents would not tolerate their being represented by that union. That Re- spondents' massive and unlawful efforts to stifle and thwart the UMW organizing effort involved serious vio- lations of the statute cannot be gainsaid. The numerous threats of shutdown of the mining operation and the un- lawful discharges of employees clearly demonstrate a propensity to engage in unlawful conduct which "goes to the very heart of the Act," and has been recognized as such. See NLRB v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941). Since it has been found that UMW achieved majority status by at least August 11 and in light of the serious nature' and extensiveness of Respond- ents' unlawful conduct, it is evident that the unlawful ac- tivity had the effect of undermining the UMW's majority strength and eroding the sentiments expressed by the em- ployees on the authorization cards for representation by that union. In addition, it is equally evident that the conduct en- gaged in by Respondents also tends to preclude the hold- ing of a fair election among the employees in the bar- gaining unit. The pervasive nature of the unfair labor practices graphically demonstrated to the employees the lengths Respondents were prepared to go in order to stifle their right to select the UMW as their bargaining representative. Further, the numerous threats of mine closure and the instances of wholesale unlawful dis- charges have created an atmosphere in which it is rea- sonable to infer that the employees have a strong fear of loss of employment that is not likely to be dispelled by the traditional remedy of authorizing an election. For these reasons, I find the possibility of successfully eradi- cating the lingering effects of Respondents' unlawful conduct and ensuring a fair election by use of the tradi- tional remedies is slight, if not nonexistent . Therefore, I find that the employees' sentiments expressed on their authorization cards for the UMW are, on balance, better protected by issuance of a bargaining order than by im- position of the traditional cease-and-desist remedies. R. L. White Co., 262 NLRB 575 (1982); Warehouse Groceries Management, 254 NLRB 252 (1981). CONCLUSIONS OF LAW 1. The Respondents, Midwestern Mining & Reclama- tion, Inc., a subsidiary of Midwestern Fuels Systems, Inc., and Reclamation Services, Inc., constitute a single employer within the meaning of Section 2(2) of the Act engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Mine Workers of America (UMW) and Con- gress of Independent Unions (CIU) are labor organiza- tions within the meaning of Section 2(5) of the Act. 3. Respondents, through their supervisors, committed violations of Section 8(a)(1) of the Act by the following conduct: (a) Informing employees that Respondents would close the mine, if UMW represented them. (b) Promising employees better positions with Re- spondents, if they did not support UMW. (c) Threatening employees with reprials, including loss of employment, if they supported UMW. (d) Creating an impression that employees' attendance at UMW meetings were kept under surveillance by Re- spondents. (e) Urging employees to attend the UMW meetings and to report back regarding what took place there. MIDWESTERN MINING (f) Interrogating employees about their activities on behalf' of and sentiments for UMW, and about similar ac- tivities and sentiments of other employees. (g) Informing employees that UMW supporters would be "weeded out." 4. Respondents unlawfully assisted and supported the CIU in violation of Section 8(a)(2) of the Act by: (a) Supervisors executing authorization cards for and attending the CIU meeting. (b) Supervisors informing employees that Respondents would close the mine, if the employees were represented by UMW rather than by CIU. (c) Supervisors granting employees time off from work to attend the CIU meeting. (d) Informing employees that CIU was favored by Re- spondents to become their collective-bargaining repre- sentative. 5. By refusing to recall and subsequently discharging employees Edward Roberts and Elmer Scales because of suspected activity on behalf of UMW, Respondents vio- lated Section 8(a)(1) and (3) of the Act. 6. By discharging the laid-off employees not recalled on August 19, 1982, in order to discourage support for UMW and to undermine the majority status of that union, Respondents violated Section 8(a)(1) and (3) of the Act. 7. By refusing to recognize and, on request, bargain with UMW as the exclusive collective-bargaining repre- sentative of a majority of the employees in a unit appro- priate for collective bargaining with respect to wages, hours, and other terms and conditions of employment Respondents have violated Section 8(a)(5) of the Act. The appropriate bargaining unit is: All employees of Midwestern Mining and Reclama- tion, Inc., a subsidiary of Midwestern Fuels Sys- tems, Inc., and Reclamation Services , Inc., em- ployed by the employers at their mine site in or near Bronaugh, Missouri; but excluding all office clerical employees, managerial employees, confiden- tial employees, professional employees, guards, and supervisors as defined in the Act. THE REMEDY Having found that Respondents engaged in extensive and pervasive unfair labor practices, they shall be or- dered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. In light of the egregious and serious nature of the violations found here, a broad order is required to remedy the effects of Respondents' unlawful conduct. Cf. Hickmott Foods, 242 NLRB 1357 (1979). Having found that UMW achieved majority status when Organizer Forbes requested recognition on August 11 and that the serious nature of the violations commit- ted by Respondents tended to undermine the Union's ma- jority support and, further, that the possibility of erasing the lingering effects of this unlawful conduct and ensur- ing a fair election is slight, Respondents shall be required to recognize and bargain with UMW, effective August 11, 1982, as the exclusive collective-bargaining represent- 257 ative of the employees in the unit found appropriate. See Drug Package Co., 228 NLRB 109 (1977). Because Respondents unlawfully refused to recall and subsequently discharged employees Edward Roberts and Elmer Scales, they shall be required to offer full and im- mediate reinstatement to these two employees to their former positions without loss of seniority or other rights and benefits, discharging if necessary any employees hired or recalled in their job classifications after the date that these two employees would have been recalled. If these positions no longer exist , Respondents shall be re- quired to offer these two employees substantially equiva- lent positions on the same terms and, further, that Re- spondents make whole these two employees for any losses they may have suffered by reason of the discrimi- nation against them . Backpay shall be calculated in ac- cordance with the formula set forth in F W. Woolworth Co., 90 NLRB 289 (1950), with interest thereon as pro- vided for in Florida Steel Corp., 231 NLRB 651 (1977).61 In addition, Respondents shall remove from their files any references to the warning given Edward Roberts on May 24, 1982, holding him responsible for the damage to the fairleads on the dragline, as well as the termination notice sent to him on August 19, 1982. Further, Re- spondents shall notify him in writing that this has been done and that evidence of these unlawful actions will not be used as a basis for future discipline against him. Like- wise, Respondents shall be required to remove from its files any reference to the memorandum of May 17, 1982, issued to Elmer Scales regarding job attitude, as well as the termination notice sent to him on August 19, 1982. Further, Respondents shall notify him in writing that this has been done and that evidence of these unlawful ac- tions will not be used as a basis for future discipline against him. Regarding the laid-off employees unlawfully terminat- ed on August 19, there is no evidence in the record which establishes when they would have been recalled, if at all, or whether other employees were hired to fill their positions. For this reason, it shall be left to the compliance stage of this proceeding to determine if and when these employees would have been recalled by Re- spondents. It shall be ordered, however, that Respond- ents, in consultation with UMW, establish a preferential rehiring list following a nondiscriminatory system, such as seniority and job classification, which includes all the names of the employees unlawfully terminated on, August 19, 1982,62 and not thereafter recalled. If the compliance proceedings establish that any of these em- ployees would have been recalled, Respondents shall re- instate them to their former or substantially equivalent positions and make them whole for any loss of earnings, in the manner set forth herein, that they may have suf- fered from the date they would have been recalled until the date they are in fact rehired. If, on the other hand, the compliance investigation establishes that any or all of these employees would not have been recalled, Respond- 61 See generally Isis Plumbing Co, 138 NLRB 716 (1962). 62 This provision does not apply to Roberts or Scales since Respond- ents have been directed to offer these two employees their immediate re- instatement 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ents shall be ordered to offer them reinstatement to their former or substantially equivalent positions , when such positions become available , before effecting any new hires. Finally, Respondents shall be ordered to remove any references to the August 19, 1982 discharges of the laid- off employees from its files and records and notify each of these employees in writing that this has been done. Further, Respondents shall notify each of these employ- ees that evidence of the unlawful discharges of August 19, 1982, will not be used as a basis for future discipline against them. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed63 ORDER The Respondents, Midwestern Mining and Reclama- tion, Inc., a subsidiary of Midwestern Fuels Systems, Inc., and Reclamation Services, Inc., Bronaugh, Missou- ri, their officers , agents, successors, and assigns, shall 1. Cease and desist from (a) Informing employees that the mining operation will be shut down, if United Mine Workers of America (UMW)'becomes their bargaining representative. (b) Promising employees better positions in Respond- ents' organization, if they do not support the UMW. (c) Threatening employees with reprisals , including loss of employment, if they support the UMW. (d) Creating an impression that employees ' attendance at UMW meetings are being kept under surveillance. (e) Urging employees to attend UMW meetings in order to report back information to Respondents' super- visors. (f) Interrogating employees about their activities on behalf of and sentiments for the UMW and about similar activities and sentiments of other employees. (g) Informing employees that UMW supporters will be "weeded out." (h) Discharging employees and placing after-the-fact memoranda in their personnel files, purporting to sub- stantiate the basis for the discharges, because the employ- ees engaged in activities on behalf of UMW. (i) Refusing to recall and discharging laid-off employ- ees in order to undermine employee support for UMW. V) Rendering unlawful support and assistance to CIU, or any other union, in order to stifle or thwart the UMW organizing activity among the employees. (k) Refusing to recognize and bargain collectively with UMW, effective August 11, 1982, as the exclusive collec- tive-bargaining representative of the employees in the unit found appropriate herein. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act. (a) Offer immediate and full reinstatement to Edward Roberts and Elmer Scales to their former or substantially 63 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses equivalent positions and make them whole, in the manner set forth in the section entitled "The Remedy," for any loss of earnings they may have suffered by reason of the unlawful discrimination against them. (b) Rescind, in writing, the August 19, 1982 letters dis- charging all laid-off employees not recalled and establish a preferential rehire list which includes these employees in the manner set forth above in the remedy section. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Remove from its file any references to the dis- charge letters sent to all laid-off employees not recalled on August 19, 1982, as well as the warning memorandum given to Edward Roberts on May 24, 1982, and to Elmer Scales on May 17, 1982. Further, notify the above em- ployees in writing that this has been done and that evi- dence of these unlawful actions will not be used as a basis for future discipline against them. (e) Recognize and, on request, bargain with United Mine Workers of America as the exclusive collective- bargaining representative of the employees in the appro- priate bargaining unit with respect to wages, hours, and other terms and conditions of employment, and, if an agreement is reached, embody such an agreement in a written signed contract. The appropriate bargaining unit is: All employees of Midwestern Mining and Reclama- tion, Inc., a subsidiary of Midwestern Fuels Sys- tems, Inc., and Reclamation Services , Inc., em- ployed by the employers at their mine site in or near Bronaugh, Missouri; but excluding all office clerical employees, managerial employees, confiden- tial employees, professional employees, guards, and supervisors as defined in the Act. (f) Post at its Bronaugh, Missouri facility copies of the attached notice marked "Appendix."84 Copies of the notice, on forms provided by the Regional Director for Region 17, after being signed by the Respondents' au- thorized representative, shall be posted by the Respond- ents immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ents to ensure that the notices are not altered , defaced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that all allegations of the complaint not found to be violations herein are dis- missed. 64 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " MIDWESTERN MINING 259 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 or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT inform our employees that we will shut down our mining operation if the United Mine Workers of America becomes their bargaining representative. WE WILL NOT promise our employees better positions with our organization if they do not support the United Mine Workers of America. WE WILL NOT create an impression that employees' at- tendance at meetings held by the United Mine Workers' of America are being kept under surveillance. WE WILL NOT urge employees to attend United Mine Workers of America meetings and report back to us con- cerning what took place there. WE WILL NOT interrogate employees about their ac- tivities on behalf of and their sentiments regarding United Mine Workers of America, or any other union, or about such activities and sentiments of other employees. WE WILL NOT inform employees that supporters of United Mine Workers of America will be discharged or "weeded out." WE WILL NOT unlawfully assist or support the Con- gress of Independent Unions, or any other labor organi- zation, in order to have that labor organization represent our employees rather than the United Mine Workers of America. WE WILL NOT refuse to recall and then discharge em- ployees and place after-the-fact memoranda in their per- sonnel files purporting to substantiate such discharges be- cause these employees engaged in activities on behalf of Unied Mine Workers of America. WE WILL NOT discharge laid-off employees in order to undermine the support of our employees for United Mine Workers of America. WE WILL NOT refuse to recognize and bargain collec- tively with United Mine Workers of America as the ex- elusive collective-bargaining representative of our em- ployees in a unit found appropriate for such purposes. WE WILL NOT in any other manner interfere with, re- strain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Re- lations Act. WE WILL offer full and immediate reinstatement to Edward Roberts and Elmer Scales, and WE WILL make them whole, with interest, for any losses they may have suffered as a result of the discrimination against them. WE WILL rescind , in writing, the discharge letters sent to all laid-off employees not recalled on August 19, 1982, and if it is established that any or all of these employees would have been recalled, WE WILL immediately rein- state them to their former or substantially equivalent po- sitions and make them whole for any losses they may have suffered as a result of our discrimination against them. WE WILL, in consultation with UMW, establish a pref- erential rehire list for those laid-off employees who would not have been recalled, and WE WILL recall them to their former or substantially equivalent positions, as such positions become available, before hiring new em- ployees. WE WILL remove from our files any references to the discharge letters sent to the laid-off employees not re- called on August 19, 1982, and WE WILL remove from our files any references to the memoranda given Edward Roberts on May 24, 1982, and to Elmer Scales on May 18, 1982, and WE WILL notify all of the above employ- ees, in writing, that this has been done and that evidence of these unlawful actions will not be used as a basis for future discipline against them. WE WILL recognize and, on request, bargain with United Mine Workers of America as the exclusive col- lective-bargaining representative'of a majority of our em- ployees in the unit found appropriate for collective bar- gaining with respect to wages, hours , and other terms and conditions of employment and, if an agreement is reached, embody such agreement in a written , signed contract. The appropriate bargaining unit is: All employees of Midwestern Mining and Reclama- tion, Inc., a subsidiary of Midwestern Fuels Sys- tems, Inc., and Reclamation Services, Inc., em- ployed at our mine site in Bronaugh, Missouri; but excluding all office clerical employees, managerial employees, confidential employees, professional em- ployees, guards, and supervisors as defined in the Act. MIDWESTERN MINING & RECLAMATION, INC., A SUBSIDIARY OF MIDWESTERN FUELS SYSTEMS, INC., AND RECLAMATION SERVICES, INC.