Island Creek Coal Co. And Langley And Morgan Corp., Joint Employers

858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Island Creek Coal Company and Langley and Morgan Corporation, Joint Employers and Larry Long. Cases 5-CA-14300-1 and 5-CA- 14300-2 7 May 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 12 June 1985 Administrative Law Judge James T. Youngblood issued the attached decision. The Charging Party and the General Counsel filed exceptions with supporting briefs , ' Respondent Island Creek Coal Company (Island Creek) filed a brief in opposition to the General Counsel's excep- tions, Respondent Langley and Morgan Corpora- tion (Langley and Morgan) filed cross-exceptions with a supporting brief and an answering brief to the General Counsel's and the Charging Party's ex- ceptions, and the General Counsel filed a brief in response to Respondent Langley and Morgan's cross-exceptions. 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 conclusions2 and to adopt the recommended Order.3 1 The General Counsel subsequently filed a motion to amend her sup- porting brief We grant the General Counsel's motion 8 In adopting the judge's conclusion that Respondent Langley and Morgan violated Sec 8(a)(1) of the Act by informing employee Larry Long that Respondent Island Creek would cause Langley and Morgan's employees to be laid off because of Long's safety-related complaints, we find that such complaints constituted protected union activity At the time he filed his safety complaints, Long was a member of the Union Local's mine health and safety committee, with a duty to inspect safety conditions at the sites where his crew worked He filed the complaints while acting in his role as a committee member Furthermore , there is no evidence to suggest that in filing the complaints Long was using his posi- tion in the Union to pursue strictly personal matters See Esco Elevators. Inc, 276 NLRB 1245 (1985) We also note in adopting the above-named finding that we consider ir- relevant the judge's finding that Long "understood" the unlawful state- ment as a threat of retaliation by Island Creek Whether a statement interferes with employees in the exercise of the rights guaranteed them by Sec 7 of the Act is an objective determination in which an employ- ee's subjective "Understanding" is not a relevant consideration Amason, Inc, 269 NLRB 750 fn 2 (1984), and cases cited therein 8 The judge's recommended Order requires Respondent Langley and Morgan Corporation to post copies of the notice at its facility in Harlan, Kentucky, "and any location where its employees are working " The Re- spondent contends in its cross -exceptions that the posting requirement is overly broad insofar as it requires posting at any location where it is working We agree Because the unfair labor practices occurred only at the Island Creek jobsite in Virginia, and absent special circumstances warranting a broader posting, it is appropriate to limit posting to the Re- spondent's place of business in Harlan and to the location of the viola- tions See, e.g, Red Food Store, 252 NLRB 116 fn 1 (1980) However, because it further appears that the Respondent is no longer working at the sites where the unfair labor practices occurred , and that most, if not ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent , Langley and Morgan Corporation, Harlan, Kentucky, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order as modified. Substitute the following for paragraph 2(a). "(a) Mail a copy of the attached notice marked "Appendix" to each of its employees employed at the Island Creek Construction site in the area of Oakwood, Virginia, in December 1981 and post copies thereof at its place of business in Harlan, Kentucky. Copies of the notice, on forms provided by the Regional Director for Region 5 after being signed by the Respondent's authorized representa- tive, shall be mailed immediately upon receipt by the Respondent to all such employees at their last known address, and additional copies shall be posted immediately upon receipt by the Respond- ent and maintained by it for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted . Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material." all, its employees at these sites have been laid off, we find it appropriate to order the Respondent to mail copies of the notice to the last known addresses of its employees who were employed at the construction sites involved in the Respondent's unfair labor practices We shall modify the judge's recommended Order accordingly Thomas H. Lucas Esq., for the General Counsel. Forest H. Roles, Esq., of Charleston, West Virginia, for Respondent Island Creek Coal Company. Richard A. Steyer, Esq., and William H. Howe, Esq., of Washington, D.C., for Respondent Langley and Morgan Corporation. Allen Schacter, Esq., of Mannassas, Virginia, for the Charging Party. DECISION STATEMENT OF THE CASE JAMES T. YOUNGBLOOD, Administrative Law Judge. These cases were tried at Grundy and Richlands, Virgin- ia, on October 23, 24, and 25, and November 14, 15, and 16, 1984. The charges were filed by Larry Long, an indi- vidual, on April 28, 1982 (amended May 3, 1982) and the complaint issued on July 11, 1984, and was amended sev- eral times thereafter. The primary issues are whether Island Creek Coal Company (ICCC) and Langley and Morgan Corporation (L & M) are joint employers (col- lectively Respondents) and, as such , whether Respond- ents threatened employees with layoffs and loss of jobs and ultimately laid off and/or terminated the services of certain employees because of their union activities or 279 NLRB No. 116 ISLAND CREEK COAL CO concerted activities in violation of Section 8(a)(1) and (3) of the Act. On the entire record , including my observations of the witnesses and their demeanor while testifying , and after due consideration of the briefs filed by the General Counsel, ICCC, and L & M , I make the following FINDINGS OF FACT I. JURISDICTION ICCC, at Delaware corporation, with an office and place of business located in Lexington, Kentucky, is en- gaged in the mining, processing, and sale of bituminous coal. L & M, a Kentucky corporation, with an office and place of business in Harlan, Kentucky, is engaged in the construction and repair of coal preparation and related facilities The Respondents admit, and I find, that they are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Local Union No. 6843, United Mine Workers of America (the Union) is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES ICCC, a subsidiary of Occidental Petroleum, is head- quartered in Lexington, Kentucky, and is engaged in the operation of coal mines in several states including mines in the area of Oakwood, Virginia (Virginia-Pocahontas division). The mines in this area are referred to as Bea- trice, VPI, VP2, VP3, VP4, VP5, and VP6. ICCC is a member of Bituminous Coal Operators Association (BCOA) and a signatory to the National Bituminous Coal Wage Agreement of 1978 and 1981 with the United Mine Workers (UMW). Prior to a coal mine actually producing coal there is a great deal of construction involved before so-called de- velopmental mining begins . This initial construction is handled by ICCC through a division called Corporate Construction During the early stages of development, mine shafts have to be dug to the level of the coal vein, airshafts must be sunk, elevator lifts are put in place, and the mine is generally engaged in overall construction so that coal can ultimately be produced. When the mine be- comes operational, that is, it begins to produce coal, the operating division of ICCC takes over that aspect of the mine During this changeover period the operations divi- sion is actually involved in coal mining, as well as con- struction and repair contracting of that part of the facili- ty which is completed. Meanwhile the construction of surface facilities continue under the corporate construc- tion division and the corporate construction division con- ' The facts found herein are a compilation of the credited testimony, the exhibits, and stipulations of fact , viewed in light of logical consisten- cy and inherent probability Although these findings may not contain or refer to all the evidence , all has been weighed and considered To the extent that any testimony or other evidence not mentioned in this deci- sion may appear to contradict my findings of fact , I have not disregarded that evidence but have rejected it as incredible , lacking in probative weight, surplusage, or irrelevant Credibility resolutions have been made on the basis of the whole record , including the inherent probilities of the testimony and the demeanor of the witnesses When it may be required I will set forth specific credibility findings 859 tinues until its budget is depleted and at that time divi- sion takes over the entire facility. L & M is a wholly owned subsidiary of Elgon Nation- al Industries and is engaged as an independent contractor in the business of construction work for the coal industry from its offices located in Harlan, Kentucky. L & Ms' customers include several major coal companies as well as hundreds of smaller companies. L & M is a member of the Association of Bituminous Contractors (ABC) through which it became signatory to the National Coal Mine Construction Agreement in 1978 and 1981 with the United Mine Workers. In 1974 ICCC and L & M entered into an agreement whereby L & M would furnish labor and direct supervi- sion to perform and complete certain jobs which ICCC from time to time elects to assign to L & M for road construction, erection of small buildings, excavation work, and miscellaneous construction work at the ICCC's various coal mines and other operations in Ken- tucky, West Virginia, and in Virginia. L & M was to be paid on a cost-plus arrangement. The contract provisions further provided that ICCC may designate the jobs to be performed and the order of performances and L & M shall have full control of the methods employed to com- plete the jobs and will supervise the work force. The contract also provides that ICCC shall not direct the work force, and that the only relationship between them is that of owner and independent contractor, and without limitation the agreement does not constitute a partnership agreement, or agreement for joint venture, or render L & M's employees to be those of ICCC. This contract was automatically extended in subsequent years and is currently in effect. At the time this agreement was entered into between ICCC and L & M, construction of VP5 was underway, and L & M assigned its first labor crew to that coal mine.2 In the fall of 1978, toward the completion of VP5, part of the L & M crew was assigned to work at the new mine known as VP6 which was in its early con- struction stages. During this period, there was only one L & M superintendent for the two crews and he usually stayed at the new mine, VP6, as the principal work at VP5 was paving, which required little supervision. The charging party, Larry Long, first began working for L & M around 1970 and, following a layoff in 1972, was recalled to work for L & M in May 1974 as a result of a grievance he filed because of an alleged violation of his company panel rights for recall. Therefore when Long reentered his employment with L & M at the ICCC jobsite it was as a result of a grievance. Thereafter Long was promoted several times, including a promotion to grade B bulldozer operator, which also came about as a result of a grievance which he filed in late 1978 be- cause of L & M's failure to select him for that position. The arbitrator's award was dated November 24, 1978. Additionally on September 5, 1981, Long was awarded, pursuant to a grievance filed on May 15, 1979, lead pay for certain days he operated the bulldozer . It appears 2 The ICCC mines in the Virginia-Pocahontas Division were con- structed in sequential order 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD also that Long filed several grievances on behalf of other employees and that Long served as a member of the mine health and safety committee and mine grievance committee from 1974 through 1983. The record reveals that Long, as a representative of the Union, was in- volved in the filing and/or processing of a minimum of 150 grievances on behalf of employees represented by the Union against contractors utilized by ICCC at its Virginia minesite operations. Additionally on October 30, 1978, E. M. Long Jr., at the request of Larry Long, requested a "103-G inspec- tion at VP No. 6, Langley and Morgan Corporation on the vehicle that was used to transport explosives on 10/30/78 at 2:30 p.m."3 Also on October 31, 1978, Larry D. Long filed a grievance against L & M because Ed Fletcher, a supervisory engineer for ICCC, was using a truck not equiped to transport explosives and also be- cause Fletcher was exempt from doing classified work. This grievance was settled. On November 6, 1978, Larry D. Long filed a discrimi- nation complaint against L & M with the Mine , Safety and Health Administration (MSHA), alleging that he had been discriminated against by L & M because he previ- ously filed grievances and that he was being harrassed. As a result of this charge, ICCC and L & M were found by a MHSA administrative law judge to have discrimi- nated against Long by making retaliatory assignments to him in November 1978 and Long was awarded cost and expenses in the amount of $543.75. Additionally several penalties were assessed against ICCC and L & M in the amounts of $7000 and $4000, respectively. The ultimate decision of the Federal Mine Safety and Health and Review Commission sustaining the administrative law judge's decision was affirmed by the United States Court of Appeals for the Fourth Circuit on September 14, 1981. The record reflects that construction at VP6 moved more slowly than originally planned but by 1981 it was clear that all new construction was nearing the end and that very soon the operations division would take over the mine for the production of coal. Although there were discussions about a new mine, VP7, it was never started. Thus, there was no new construction for the L & M employees. And because of decreasing assignments from ICCC, L & M found that it was overstaffed and that a layoff would be necessary. The first layoff of six L & M employees at the VP6 project occurred in February 1981. It appears that by late 1981 the L & M crew had completed most of its major projects at VP6 and mostly odd cleanup jobs remained to be performed. On December 16, 1981, several L & M employees, in- cluding Long, were assigned to an area to perform load- ing and hauling work. The area to which they were as- signed at VP6 was directly adjacent to an area in which an explosive charge was being prepared by ICCC em- ployees. Long noticed that the explosives were left unat- tended and therefore a hazard to other employees on the job, and he and the other L & M employees ceased per- forming work in that area. Long left the jobsite to locate L & M Superintendent Edro Sargent to inform him of s E M Long Jr is the father of Larry Long the danger. Afterwards Long and Sargent met with ICCC VP6 Superintendent Perry Yost and later returned to the blast site and inspected the area. According to Long, he also telephoned his father, E.M. Long Jr. and requested that a 103(g) inspection be conducted by repre- sentatives of MSHA.4 According to E.M. Long Jr., he contacted representatives of MSHA on that same date by telephone and mailed a written request for the inspec- tion. According to L & M employee Roger Meade, later on that day Edro Sargent told them that Friday would be their last day of work, that L & M was going to lay off six employees because of lack of work. On Thursday, December 17, 1981 , Sargent did not re- assign employees Long, Meade, and Church to work in the area where they had been working the day before, and when Long asked why, Sargent replied that "Bill Barre and Island Creek is not going to go through an- other 103(g) on explosives with you Larry" and "that ain't all . . . there's going to be a layoff tomorrow." When Long asked why the layoff was going to take place, Sargent said, "Our orders from Island Creek are to lay off five men tomorrow." The men were laid off as scheduled on Friday, December 18, 1981. According to Charging Party Long, sometime in Janu- ary 1982, he had a conversation with Edro Sargent, at the VP6 jobsite, in which Sargent informed Long that Bill Barre, the ICCC chief project engineer and Earl Boggs, ICCC vice president of construction, did not like it because Long had won his 105(c) discrimination suit back in November and that, "it just don't look good." Sargent said that the ICCC officials were displeased by- cause Long had prevailed in his 105(c) case and that there was plenty of work for the L & M crew. Accord- ing to Long, Sargent asked him if he would be willing to take a leave of absence and work for the United Mine Workers on a full-time basis until such time as the L & M crew made the changeover to the supervision of Island Creek Supervisor Alvie Ritchie.5 According to Long, Sargent suggested that Long might prefer work- ing for the union on a permanent basis anyway, and of- fered, in any case, that when Ritchie was put in place, Long could come back. Sargent informed Long that Barre and Boggs had also talked about laying Long off and keeping L & M employees Dawson, Keen, Van Dyke, and Harmon, but that they wre unable to do so because of Long's greater seniority. In response to Sar- gent's proposal, according to Long, he told Sargent that he would consider taking a leave of absence and working for the Union and that he would get back to him with an answer. Following the filing of the 103(g) request for an in- spection on December 16, 1981, a hearing was held before MSHA on January 26, 1982. Long attended this hearing and, when he returned to the jobsite, Sargent asked him what he had decided about the leave of ab- ' E M Long Jr., from 1977 through 1982, worked for the UMW as International safety inspector for the construction workers ° It appears that rumors were floating around the ICCC jobsite indicat- ing that ICCC was going to employ the L & M crew in its operations division under the supervision of Alvie Ritchie ISLAND CREEK COAL CO. sence. Long informed Sargent that he had thought about it but had not made a decision. On February 23, 1982, L & M laid off employees Bill Harmon, Larry Long, Edward Long Jr., Charles Van Dyke, Andy Keen, and Glenn Dawson, allegedly for lack of work because of the reduction of work by ICCC.6 It is the General Counsel's position in this matter that ICCC and L & M are joint employers of the employees who worked on the L & M crew. It is further the con- tention of the General Counsel that ICCC withheld giving work to L & M pursuant to their contract or caused a reduction in that work, in retaliation for the union activities or concerted activities of Larry Long. Therefore ICCC and L & M discriminated against the L & M crew in violation of Section 8(a)(3) of the Act. It is further the contention of the General Counsel that there was work for the L & M crew to do at the VP6 mine and, absent the discrimination, the L & M crew would not have been laid off but would have continued work- ing on ICCC projects. ICCC contends on the other hand that it is not a joint employer of the L & M crew; that it did not in any way discriminate against the L & M crew but, on the con- trary, argues that the work for the L & M crew at VP6 was almost completed and, even if the termination of the L & M crew was illegally motivated, they would have been terminated in any event because of lack of work, and therefore under Wright Line, 251 NLRB 1083 (1980), this would not have been a violation of the Act. L & M agrees with ICCC that they are not joint em- ployers of the L & M crew. L & M also argues that it had done nothing more than lay off the employees be- cause of the reduction of work assigned to it by ICCC, and that it in no way discriminated against its employees and therefore did not engage in any unfair labor prac- tices. The Relationship Between ICCC and L & M As indicated earlier, ICCC is in the business of operat- ing underground coal mines. L & M is engaged in con- struction work for the coal industry and its customers range from Alabama to Pennsylvania and as far west as Illinois and they work for many companies, including ICCC L & M works as an independent contractor, as a subcontractor, and, in some instances, as a general con- tractor. The coal mine construction work performed by L & M comes under the jurisdiction of the Federal Mine Safety and Health Act, and it is a member of the Asso- ciation of Bituminous Contractors and through that asso- ciation has a labor agreement with the United Mine Workers of America. L & M is not a signature to the National Bituminous Coal Wage Agreement as is ICCC. There is not common ownership or common manage- ment between L & M and ICCC. In March 1974 L & M entered into a contract with ICCC and, by successive re- negotiations, that agreement was still in effect at the time of the hearing in this matter. Pursuant to that agreement, On Decembcr 18, 1981, L & M had laid off employees J E Lane, Robert Harris, Roger Meade, Dewey Puckett, and Donald Church, os- tensibly because of the reduction of work by ICCC 861 L & M was to furnish labor and direct supervision to perform and complete those jobs which ICCC from time to time elects to assign to L & M. These include road construction, erection of small buildings, excavation work, and miscellaneous construction work at the Com- pany's various coal mines and other operations in Ken- tucky, West Virginia, and Virginia, which are to be com- pleted in accordance with the requirements and provi- sions of several documents which were incorporated into the agreement. ICCC was to pay L & M applicable union wages plus 95 percent of the wages as overhead and profit. Either party had the right to terminate the agreement at any time after giving the other party 30 days' written notice of its intention to terminate. ICCC was responsible for providing equipment and materials under this contract and L & M supplied supervision and labor. In addition to this contract, L & M contracted with ICCC for other construction work at its various mines in the States enumerated above. This was the only supervi- sion and labor agreement between the parties. L & M was a successor to several other contractors who had performed pursuant to similar contracts but lost out to the lower bid of L & M. L & M was not guaranteed any particular amount of work pursuant to this agreement, as is readily seen by the terms of the agreement which pro- vide that ICCC "elects to assign" to L & M. The par- ticular work which was assigned by ICCC to L & M was passed on to L & M by word of mouth from Island Creek ICCC project engineers through the L & M su- perintendent. L & M had no control over the picketing or choosing of the work to be assigned; however, it did have control over the employees who performed the work and the manner in which it was performed. L & M was responsible for the hiring and firing of all employees who performed pursuant to this contract and it was re- sponsible for the maintenance of the United Mine Work- ers' agreement with its employees. Thus, it was responsi- ble for all pay raises, vacations, and any other fringe ben- efit applying to the employees pursuant to L & M's con- tract with United Mine Workers, as well as administering the grievance procedure of the union contract. ICCC had no responsibility whatsoever to administering the labor agreement between L & M and the Union. Notwithstanding the provisions of the contract which specifically provide for total separation between the con- tracting parties, the General Counsel argues that in prac- tice ICCC shared the control of the employees and di- rected the work force as did L & M and therefore they are in fact joint employers of this construction crew. In support of this proposition the General Counsel of- fered the following testimony. Larry Long testified that a few days after November 1, 1978,' he was driving a Dart truck at VP6, which Ed Fletcher, an engineer for ICCC, had assigned him. Fletcher told him to haul refuse from B shaft at the bottom up on the hill. Long said that Ed Fletcher was his boss because their regular superintendent was at VP5. I Tr 194 indicates that this date was October 1, 1978, however, in reading the text of the transcript it is obvious that that date should have been November 1, 1978 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He stated that their regular superintendent, N.C. Meade, was off work and that a substitute superintendent, Ray- mond Harris, was performing his functions at VP5. Long noticed that the brakes were bad and he told Ed Fletch- er, who told him to park the truck and he would replace it. Long said that he never received another truck the rest of the day and that he just stood around until quit- ting time when Fletcher came by and told him to report to VP5. In General Counsel's Exhibit 13(a), which is a decision by the Federal Mine Safety and Health Review Commis- sion, findings were made by Judge William Fauver con- cerning the same incident as described above by Long. Page 6 of that decision, paragraph 31 reads as follows: After applicant finished working on the explosive truck that morning, Ray Harris assigned him to cleaning rope clamps and painting the hoist house floor. Paragraph 32 reads: On Thursday, November 9, applicant worked on an asphalt assignment . On Friday, November 10, appli- cant piloted a cline truck to VP6 and on Monday, November 13, applicant was assigned to VP6 to op- erate a Dart truck. Paragraph 34 reads: On November 13 applicant reported to VP6 to op- erate the Dart truck. The cab on the Dart truck was positioned on the left hand side and had room for one person. It had windows on three sides-in the front, on the left and to the right ; however, it had no mirrors, the horn did not work and the brakes were soft. Paragraph 35: As applicant prepared to dump a lead over an em- barkment, which was about 25 feet above another level, he saw Bill Turley and Ed Fletcher below. He told Bill Turley: "Bill, this truck's unsafe. Its got soft brakes on it. It don't have any mirrors on it. It don 't have a horn on it. You couldn't warn nobody if you was going down there and somebody walked out in front of you.,, Applicant was then told by Bill Turley to park the truck. This occurred near the start of the morning shift. Paragraph 36: At about 8 a.m. applicant parked the truck and waited for another assignment . Ed Fletcher and Bill Turley drove past him several times that day while he was standing next to the truck but not until about 20 minutes to 3 near the end of his shift did Ed Fletcher tell him to report back to VP5 the next day. There was no Langley and Morgan supervisor at VP6 that day. As best I can determine, these two accounts cover the same incident . From the account, as reported in the deci- sion of the Mine Safety Commission , Long was assigned to VP6 by Ray Harris, the L & M supervisor, to drive the Dart truck . He drove that truck until he claimed it was unsafe at which time the ICCC. supervision at the mine told him to park it. They did not in any manner attempt to assign him to any other functions that day but at the close of the day informed him to return to VP5. This is quite different from the version testified to by Long at the hearing in this matter. Long testified that in the late summer of 1981, when Andy Keen was acting temporary supervisor , Landen Altizer, an official of ICCC, wanted two men from the L & M crew to come to the Beatrice mine to do some footer work on the aerial tram. He said that Andy Keen, the L & M supervisor , was going to send two men around there to do the work . Bill Barre, the ICCC su- perintendent, refused to allow L & M to perform this work. Long then as union president went to see Bill Barre and wanted to know why they could not do the footer work at Beatrice . Barre told him that L & M did not need the work and, in any event , he was tired of driving from West Virginia over here twice a week. Long stated that they did need the work, that "you've already laid off five or six of our people," and "it looks like its going to come into another one , if you don't do something." According to Long Barre responded, "That's another thing we're tired of. We're tired just because you're the union President, everything that comes up, you start trouble over it." Bill Barre, the project superintendent of ICCC, refused to assign a par- ticular project to L & M , and I see nothing in this as ex- ercising control over the labor relations of L & M. This is simply a situation where ICCC did not elect to assign a certain job task to L & M. Its motivation has nothing to do with the joint employer issue. Long testified that in the first week of December 1981, while they were working at VP6, Edro Sargent told him that they were going to lay off two men at the end of the week. When Long asked why, Sargent informed him that they had orders from ICCC to lay off two men be- cause of cold weather and that they did not have enough work for everybody in the crew. According to Long, he went to see Bill Barre and ex- plained to him that it was not fair to let other people work and to lay off the L & M crew after they had been promised they could work Long stated , "I don't know. He was different that day I got ready to leave and he said, 'I tell you what,' he said, `Don't worry about it. I'll take care of it."' Long said that he left and that the layoff did not take place at that time. Andy Keen testified that he worked for L & M at the ICCC mine sites from 1974 until he was laid off in Feb- ruary 1982 . He testified that he normally reported to Edro Sargent, but that he did receive instructions from Bill Turley and Ed Fletcher, ICCC officials and supervi- sors. He testified that Bill Turley told "me to do stuff. I've had Ed Fletcher to tell me to do stuff ." He further testified that Ed Fletcher would give him instructions because he was "just there and give them." On cross-ex- ISLAND CREEK COAL CO. amination Keen was asked to state the approximate time and nature of any directions that were given to him by Ed Fletcher. Keen testified that at times when he was running equipment, Fletcher would ask him to do some- thing else. By way of explanation, Keen stated that in 1974 Fletcher was there on the jobsite and he was always telling them how to grade and where to grade. And, on occasion, when he had been running the in- loader, Fletcher would tell him to run the backloader or the other way around. He testified that at one time they were putting down asphalt, and Fletcher told them where to put the asphalt. Thus, according to Keen, Ed Fletcher did at times tell the employees what type of equipment to operate and where to do a particular job. Keen also testified that he remembers one time in the last 2 years that Bill Turley was with the L & M fore- man and he told him to take a truck and go haul freight. Keen testified that when he did hydroseeding, he would be sent to the central shop by Sargent, and the Island Creek engineers at the particular mine would tell him where to do the hydroseeding. He further testified that if they finished the hydroseeding assignment at one mine- site, they would be taken to another jobsite by the Island Creek engineer. It is quite clear from the testimony of Keen that any assignments or directions that he may have received from the ICCC supervisory personnel were more in the nature of what work to do, or where and when to do a particular assignment, and not how the work was done. In my view, ICCC was determining what work it wanted done by the L & M crew on a particular day and, to me, this was the type of function ICCC retained for itself in that it would elect to assign the particular functions to L & M. Roger Meade testified that his supervisor was Edro Sargent of L & M and that he got his work instructions from Sargent. He testified at times he would get work instructions from Island Creek Officials Bill Turley and Ed Fletcher. He did not elaborate on the type of instruc- tions that he received from these individuals. Robert Harris testified that he worked as a member of the L & M crew at VP5 and VP6 as a carpenter. His supervisor was Edro Sargent, and he reported to and worked for Sargent . He said that Sargent had a trailer office on the job and that Ed Fletcher did not work out of this same trailer. He testified that from time to time his tools were broken and that they were replaced by Edro Sargent and that he did not know whether they were actually paid for by ICCC or not. He testified that from time to time people would inspect his work and that a few times he saw Ed Fletcher check his work. Donald Church testified that he worked for L & M from 1974 until he was laid off on December 18, 1981. He testified that his superintendent was Edro Sargent and that he got his instructions from Sargent. He testified that sometimes Bill Turley and Ed Fletcher would tell him to change the work. He stated that he did hydro- seeding work at the mines, and when he did this he was told what to do by Stan Thornsberg, an ICCC official. He said that when he was doing grading work and fin- ishing asphalt, Ed Fletcher was around much of the time . He said that Ed Fletcher shot grades and told the 863 equipment operators how to cut and elevate and would tell them where to start putting the asphalt down. Glen Dawson testified that he worked for L & M from 1974 until 1982 when he was laid off on February 23, 1982. He was a lead carpenter and that he worked for Sargent from about 1979 until the layoff. Dawson testified that in late 1980 when it was getting cold, he was sent to VP5 to do some remodeling on a metal building. He testified that Sargent told them to go to VP5 and report to Superintendent Vern Reynolds, and he would advise what he wanted done. He said that thereafter he saw Sargent at the Monday morning safety meetings and once or twice a week when he would come to the jobsites. He said that all the other times he was given work instructions by Vern Reynolds, the ICCC superintendent; that the work he was doing was in Reynold's office and that he was around every day. He was remodeling the office by putting up paneling and a new ceiling. This work lasted until September 1981. He said that Sargent told him to report to VP2, to ICCC of- ficial Boyd Church, to remodel and panel the timekeep- er's office, and to install a new ceiling in the superintend- ent's office. He said that Church told him what he wanted done and after these instructions were given no one ever talked to him about the work or checked his work. He testified that he was a skilled carpenter and had quite a bit of knowledge about the work and that the type of work he does can essentially be done without su- pervision, and there was no need for anyone to be around day after day watching him. In addition to the testimony of the foregoing wit- nesses, the General Counsel relies on the fact that the contractual arrangement between ICCC and L & M for the assignment of a labor crew was "pretty broad" and "covers everything that can be done around there other than actually working in mines" and that the reason for having such a labor crew was to have people available for those types of problems that would arise which are "not readily biddable, which is a major portion of the work to be performed around the mine." Obviously, it was a convenience to ICCC to have this type of an ar- rangement or it would not have done so. It would have allowed this work to be done on bids. The fact that a crew is readily available does not make the contracting employer the employer of the employees who will actu- ally perform the work. The record does reflect that the L & M labor crew was utilized by ICCC on a wide variety of equipment and job functions throughout its minesites within the Virginia division and that such assignments were not lim- ited to new construction at VP5 and VP6. The contract did not prohibit L & M from working throughout the ICCC division which covered other mines and other job- sites in Virginia, West Virginia, and Kentucky. The L & M crew was assigned a wide range of work assignments within the Virginia division including the operation of heavy equipment for the excavation of new minesites, de-gas wells, access roads to aerial trams, carpentry, welding, and other construction techniques involved in building metal and wood office buildings, concrete and block foundation work necessary to construction of foun- 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dations and buildings, and footers for aerial tramways and other mine-related facilities, plumbing work, paint- ing, operation of heavy equipment and specialized recla- mation equipment utilized in "hydroseeding" reclaimed surface area, and any other work incidental to the con- struction and maintenance of mine safety facilities. A chief project engineer was assigned by ICCC to make as- signments to and oversee the work of the L & M crew. In this regard Turley, Ball, and their successor, William Barre, were successive Island Creek chief project engi- neers at the VP5 and VP6 facilities between 1974 and February 1982, maintained offices at the Island Creek jobsite, and were in daily contact with members of the L & M crew. The record reflects that these project engineers pro- vided the L & M job superintendent, the last of which was Sargent, with a list of jobs to be performed by the L & M crew and that such list was periodically updated and retyped by ICCC personnel and provided to the L & M superintendent for his use in assigning work to mem- bers of the L & M crew. The record reflects that the ICCC chief engineer routinely worked directly with the L & M contract laborers, giving them directions in what work to perform, assigning them to particular pieces of equipment, restricting their access to particular pieces of LCCC equipment, and inspecting and requiring work to be either redone or changed in some fashion. ICCC Chief Engineer Edward Fletcher worked directly for the Island Creek chief project engineers. The record reflects that William Barre, one of the ICCC chief project engineers, maintained an office at Island Creek corporate headquarters in Logan, West Vir- ginia, and made trips to the Virginia jobsites at least 2 days per week. Barre reviewed work assignments and the performance of the L & M crew with Edro Sargent on a "daily basis" by either visiting directly or having telephone conversations with Sargent at least twice a day. In this regard Barre testified that Sargent had "a standing order to call if any kind of a question came up about work" and that he did so. Ed Fletcher reported directly to Barre and acted with full authority on his behalf, and when Barre was not present at the VP jobsite he exercised the authority to assign and inspect the work of the L & M contract crew on a daily basis. He ordered work be done over if he de- termined it was necessary. In some instances in the ab- sence of either Barre or Sargent, Fletcher ordered work to be redone without first contacting any other party. In addition the record reflects that in certain instances Ed Fletcher, the engineer for ICCC on the jobsite, would tell the L & M labor crew who happened to be working alongside him at that time and operating paving equip- ment or bulldozing equipment where to put the pave- ment and where to make the grade cuts with the bull- dozer. This type of instruction to the L & M crew was not supervisory instruction in the normal sense. It was merely an engineer , who was using a transit and leveling a road cut, passing on information to the operator of the bulldozer where to make his cut and how deep to make his cut. He was not in any way supervising the work of the operator of the bulldozer. This is normal in any road building and paving operation. Likewise there is testimony that employees who oper- ated hydroseeding equipment at the various mines were advised by the ICCC officials at these mines as to where to perform the work. There is no evidence that the em- ployees were supervised in the sense of how they were to do their work; it was merely that the supervision at the various mines would tell them what areas were to be seeded and the work was then left to the employees to perform in a competent and professional manner . Telling an employee where to perform, or what work to per- form, at a given time or a given location is certainly not the type of supervision that would make the employer an employer of the employee performing the work. This is merely routine directions of where to do a job rather than how to do the job and the manner in which to per- form the work. These factors in my view do not in any sense make the ICCC officials supervisors of the L & M personnel assigned to perform work at the ICCC jobsites in Virginia, West Virginia, and Kentucky. There is absolutely no evidence in this record to indi- cate that the normal functions of an employer, the hiring and firing, the processing of grievances , the negotiations of contracts, the administration of contracts, the granting of vacations or leave of absences, were in any way ever performed by ICCC. This record clearly reflects that these normal functions exclusively were performed by L & M. In all the circumstances of this case, it is my con- clusion that the General Counsel has failed to present facts sufficient to establish that ICCC and L & M were joint employers of the L & M labor crew, and therefore the evidence is insufficient to establish that ICCC has violated the Act in any regard. I shall recommend that the complaint as to ICCC be dismissed in its entirety.8 The 8(a)(1) Allegations of the Complaint Paragraph 9(a) of the complaint alleges that Respond- ents acting through Job Superintendent Edro Sargent in mid-December 1981 threatened Larry Long with layoffs and loss of jobs because Long had filed a complaint under the Federal Mine Safety and Health Act which re- sulted in monetary penalties against Respondent L & M and Respondent ICCC. Larry Long testified that in mid- December 1981 Sargent engaged him in a conversation in which Sargent informed Long that he had prevailed in his 105(c) discrimination suit against L & M and ICCC in November of that year. Long asked Sargent what impact the final determination in that matter would have on the L & M crew and Sargent replied, "It's just like some- body threw cold water on our jobs." Later that day, ac- cording to Long, Sargent told him that it was a shame that all the matters relating to the 105(c) discrimination suit occurred before he was assigned as L & M superin- tendent to this jobsite, and that "its going to cost every- one of us our jobs." Although Edro Sargent testified, he was not specifical- ly asked about this conversation with Larry Long. He was asked a general question whether the layoffs were in 8 See Union Carbide Building Co, 269 NLRB 144 (1984); Plumbers Local 447 (Malbaf Landscape), 172 NLRB 128 (1968), and U.S. Pipe Co., 247 NLRB 139 at 140 (1980) ISLAND CREEK COAL CO 865 any way motivated by anyone filing safety complaints or anything like that, and whether or not Bill Barre or Bill Boggs, superintendents or supervisors for ICCC, ever said anything to him indicating that they were mad be- cause someone had filed a safety grievance. Edro Sar- gent replied not to his knowledge. There is no doubt that this statement by Sargent to Long was understood by Long as being a statement that ICCC would retaliate against the L & M crew because of the mine safety discrimination case and not that L & M would retaliate against the employees. Therefore Sar- gent conveyed the threat that ICCC would cause the layoffs which, in fact, is what happened. As this statement constituted an interference by L & M with its employees in the exercise of their rights guar- anteed by Section 7 of the Act, I find that this statement was a violation is Section 8(a)(1) by L & M.9 Paragraph 9(b) of the complaint alleges that about De- cember 17, 1981, at the VP6 mine Edro Sargent told em- ployees that employees had been laid off because Larry Long had caused the Union to request a safety inspection of the mine under Section 103(g) of the Federal Mine Safety and Health Act. Larry Long testified that after the incident with the dynamite and blasting caps on December 16, 1982, when he went back to work the next day, Sargent did not reas- sign him, Meade, and Harris to that work area again. He said he was working in the new plant foreman's office when he asked Sargent, "Why did you take us off the hill?" and "Why ain't we working up there where we was working at yesterday?" Sargent said, "Bill Barre and Island Creek is not going to go through another 103(g) on explosives with you Larry." And Sargent said there was going to be a layoff tomorrow and that L & M had their orders from ICCC to lay off five men. As Sargent did not specifically deny this conversation or the statements attributed to him, I accept the testimo- ny of Long that this conversation did in fact occur. Again Sargent is merely relaying to Long the fact that ICCC is fed up with his actions in filing safety com- plaints, grievances, etc. To the extent that this was inter- ference on the part of L & M with Long's right to engage in concerted and protected activities, I find that this constituted a violation of Section 8(a)(1) of the Act. Paragraph 9(c) of the complaint alleges that about Jan- uary 1, 1982, Sargent threatened employees with layoffs and loss of jobs and solicited Larry Long to take a leave of absence to avoid such layoffs and loss of jobs because a complaint by Long had resulted in monetary penalties against Respondent L & M and Respondent ICCC. Larry Long testified that in January 1982 he had a conversation with Sargent in the office trailer at VP6 in which Sargent told him that "Bill Barre and Earl Boggs don't like it because you won your case back in Novem- ber." He said that Sargent said, "Larry, it just don't look 9 Based on my observations of Larry Long while testifying and his de- meanor I find that Long had a tendency to exaggerate in his testimony and that much of his testimony did not appear to me to be straightfor- ward and much of it did not have a ring of truth Therefore his testimony is credited only in those areas where his statements were not specifically denied and in those areas where his statements were corroborated by other witnesses good." He said that Sargent further asked him if he would take a leave of absence and work for the Union until they made a changeover, meaning until Alvie Richie was put in charge of the L & M crew. He asked that Long take a leave of absence until the changeover was made and work for the Union until that time. When Richie was put in place, then he could come back to work. As Sargent did deny that Barre and Boggs told him they were mad because of Long's complaints, I shall rec- ommend that this allegation be dismissed. Paragraph 9(d) of the complaint alleges that about February 11, 1982, in the L & M trailer at VP6, Sargent threatened that employees would be laid off because of a complaint the employees filed under the Federal Mine and Safety Health Act which resulted in monetary penal- ties against Respondent L & M and Respondent ICCC. Larry Long testified that he had another conversation with Sargent in February 1982, prior to the layoff, in the L & M office trailer at VP6. He said that Andy Keen and Charles Van Dyke were also present. Someone asked Sargent how long he expected the L & M crew to be working and Sargent stated, "I don't expect us to last much longer than February 26 because Earl Boggs at Island Creek is mad because Larry won his case back in November." Charles Van Dyke was not called to testify, and Andy Keen, who did testify and who was present at this meeting, stated that he did not hear anything that would indicate that Larry Long had anything to do with the cause of the layoff. In view of the credited testimony of Sargent and Andy Keen, I find that the General Counsel has failed to establish that Respondent L & M violated the Act as alleged in paragraph 9(d) of the com- plaint and shall recommend that this allegation be dis- missed in its entirety. The 8(a)(3) Allegations Paragraph 10 of the complaint alleges that prior to December 18, 1981, Respondent ICCC reduced the amount of construction work to be assigned to Respond- ent L & M pursuant to their agreement and that thereaf- ter L & M laid off certain employees about December 18, 1981. About February 23, 1981, it laid off certain other employees as a result of the reduction of work by the action of Respondent ICCC. The complaint further alleged that the Respondents engaged in this conduct be- cause Long and other employees supported or assisted the Union and engaged in concerted activities to discour- age employees from engaging in such activities in viola- tion of Section 8(a)(1) and (3) of the Act. This record clearly reflects that ICCC withdrew cer- tain construction work or withheld certain construction work from L & M and diminished the amount of work that it had previously given to L & M pursuant to its agreement . The record reflects that the work at both the VP5 and VP6 was nearing an end insofar as the outside construction work was concerned and that the remaining work would be taken over by the ICCC division with its own labor crew. The record reflects that there was in fact some work left for the L & M crew to do and that there was talk both by ICCC personnel and L & M per- 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sonnel relating to the continuation of the L & M crew to do additional work for ICCC in its Virginia division as either a construction crew employed by L & M or a construction crew employed by ICCC. Thus, it is my conclusion that there was at least some work that could have been performed by the L & M crew around the mines if ICCC was willing to give that work to L & M. The record clearly reflects that ICCC chose not to continue assigning any further work to L & M at VP5 and VP6 pursuant to their agreement . And there is no evidence in this record that it did so after February 1982. In any event the diminution of this work caused L & M to lay off its employees in December 1981 and February 1982. There is no record evidence that L & M in any way discriminated against its employees because of their concerted activities, protected activities, union activities, or otherwise. It merely engaged in this layoff because its work had been diminished by ICCC the contractor and owner of the mine. Although I have found that certain statements of Sargent did constitute violations of Section 8(axl), that evidence is insufficient to establish that the layoff by L & M was discriminatory. ICCC's motives, in causing it to withhold work from L & M, cannot impute a discriminatory motive in the layoff to L & M. As I have concluded that ICCC is not a joint employ- er with L & M, I also conclude that it has not violated the Act in any regard. As I have concluded that L & M was not illegally mo- tivated in its layoff of the employees in December 1981 and February 1982, and that this layoff was not for dis- criminatory reasons, I also conclude that L & M did not violate Section 8(a)(3) of the Act in this regard. I shall therefore recommend that the allegations of the com- plaint relating to 8(a)(3) violations by L & M be dis- missed in their entirety. CONCLUSIONS OF LAW 1. By informing its employees that Island Creek Coal Company will cause them to be laid off because of their concerted and protected activities in support of the Union, Respondent L & M has engaged in unfair labor practices affecting commerce within the meaning of Sec- tion 8(axl) and Section 2(6) and (7) of the Act. 2. The General Counsel has failed to prove that Re- spondent Island Creek Coal Company and Langley and Morgan are joint employers. 3. The General Counsel has failed to prove that Island Creek Coal Company and Langley and Morgan have en- gaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. The General Counsel has failed to prove that Re- spondent Island Creek Coal Company has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. On these findings of fact and conclusions of law, and on the entire record, I issue the following recommend- edxo ORDER The Respondent, Langley and Morgan Corporation, Harlan, Kentucky, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Informing its employees that Island Creek Coal Company will cause the layoff of the Langley and Morgan Corporation employees because of their union activities, concerted and protected activities, and the filing of grievances and safety complaints. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its facilities in Harlan , Kentucky, and any other location where its employees are working, copies of the attached notice marked "Appendix."" i Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) 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 RECOMMENDED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found herein. Board and all objections to them shall be deemed waived for all pur- poses 11 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT inform our employees that Island Creek Coal Company will cause their layoff because of their union activities, concerted activities, protected activities, or the filing of grievances or safety complaints. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of your rights guaranteed by Section 7 of the Act. LANGLEY AND MORGAN CORPORATION 10 If no exceptions are filed as provided by Sec. 102 46 of the Board's Rules and Regulations, the fmdmgs, conclusions, and recommended Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the