Benjamin Coal Co. And Empire Coal Co., Inc., And/Or Benjamin Coal, Co., Debtor-In-Possession, And Empire Coal Co., Debtor-In-Possession

572 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Benjamin Coal Company and Empire Coal Company, Inc., and/or Benjamin Coal, Company, Debtor- in-Possession, and Empire Coal Company, Debtor-in-Possession and United Mine Workers of America and Benjamin Employees Against the Union, Party in Interest Benjamin Coal Company and Empire Coal Company, Inc. and United Mine Workers of America, Pe- titioner. Cases 6-CA-17216, 6-CA-17345, 6- CA-17392, and 6-RC-9403 May 31, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On July 31, 1985, Administrative Law Judge Joel A. Harmatz issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed a brief in response, the Charging Party and the General Counsel filed cross-exceptions and supporting briefs, and the Re- spondent filed a brief in response. 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, i and ' The Respondent , the General Counsel , and the Charging Party have excepted to some of the judge's credibility findings The Board's estab- lished policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 ( 1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 In adopting the judge's conclusion that the Respondent did not vio- late Sec 8(a)(1) through its formal election campaign statements, in which it suggested the possibility of plant closure and bankruptcy upon unionization and subsequent economic developments , we find it unneces- sary to rely on the judge's characterization of decisions involving the le- gality of plant closure statements In agreeing with the judge that the Re- spondent did not violate the Act through David Benjamin 's November 4, 1983 letter to employees predicting dire economic consequences if the Union were voted in, we note that the letter relied in part on strong evi- dence that the Union would insist on the terms of the standard agreement of the Bituminous Coal Operators Association (BCOA) and we also note that evidence from the Union's own campaign statements substantiates the Respondent's view in that regard In adopting the judge 's finding that payroll clerk Sara Mahaffey acted as an agent of the Respondent at all relevant times, we do not rely on the fact that she served as a trustee under the Respondent's pension plan See Food & Commercial Workers Local 1439 (Layman 's Market), 268 NLRB 780 (1984) Also, in adopting the judge's conclusion that the Respondent unlawfully interrogated employee James McLaughlin , we note that there is no evidence that McLaughlin was an open union advocate The Charging Party excepts to the judge 's failure to find that Supervi- sor Fleming's threats to employees Thompson and Young in retaliation for filing charges under the Act violated Sec 8 (a)(4) in addition to Sec 8(a)(I) Because our remedy would not be materially affected , we find it unnecessary to pass on whether the Respondent violated Sec 8(a)(4) through Fleming 's threats Cf C E Wilkinson & Sons, 255 NLRB 1367 fn 2 (1981) In adopting the judge 's conclusion that the Respondent violated Sec 8(a)(1) of the Act by reversing its longstanding denial of pension benefits conclusions2 as modified3 and to, adopt the recom- mended Order4 'as modified. s We are adopting the judge's recommendation that we issue a Gissel6 bargaining order. We agree, for the reasons stated by the judge, that the unfair labor practices engaged in by the Respondent after the Union demonstrated a majority in the Novem- ber 17, 1983 election were of such a nature and extent that the possibility of conducting a fair rerun election by the use of traditional remedies is slight, and that employee sentiment, which was expressed through the November 1983 election, "would, on balance, be better protected by a bargaining order."7 The Respondent, however, argues that the expression of majority support for the Union ex- pressed in that election is itself unreliable because it was tainted by appeals to religious bigotry of a kind that the Board, in Sewell Mfg. Co., 138 NLRB 66 (1962), and its progeny, has held so contami- nates the atmosphere that a true picture of employ- ee sentiment concerning union organization cannot be obtained.8 For reasons stated by the judge and for the reasons that follow, we disagree. to the father of employee David Leasure shortly before the second elec- tion, Chairman Stephens and Member Cracraft do not rely on any pre- sumption that benefits granted during an organizing campaign are unlaw- ful Rather, they infer improper motive and interference with employee Sec 7 rights from all the evidence presented and the Respondent's failure to present a persuasive business reason demonstrating that the timing of this action was governed by factors other than the union campaign Montgomery Ward & Co, 288 NLRB 126 fn 6 (1988) 3 The judge inadvertently omitted from his formal Conclusions of Law the Respondent's violation of Sec 8(a)(1) by telling employees it would never agree to a collective-bargaining contract with a labor organization We modify the judge's Conclusions of Law accordingly 4 The General Counsel excepts to the judge's recommended Order to the extent that it does not include a visitatorial clause authorizing the Board, for compliance purposes, to obtain discovery from the Respond- ent under the Federal Rules of Civil Procedure under the supervision of the United States court of appeals enforcing this Order Under the cir- cumstances of this case we, find it unnecessary to include such a clause Accordingly, we deny the General Counsel's request Cherokee Marine Terminal, 287 NLRB 1080 (1988) s Based on our analysis of this case we have determined that the Re- spondent, by the number and extent of its unfair labor practices, has en- gaged in such egregious and widespread misconduct as to demonstrate a general disregard for its employees' fundamental statutory rights Ac- cordingly, we modify the recommended Order to include broad injunc- tive language against the further commission of any unfair labor practices by the Respondent See Hickmott Foods, 272 NLRB 1357 (1979) In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be com- puted at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amend- ment to 26 U S C § 6621), shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 6 NLRB v Gissel Packing Co, 395 U S 575 (1969) 7 Id at 614-615 The election of November 17, 1983, which the Union won by a vote of 268-211, with 18 nondeterminative challenges, was set aside pursuant to a stipulation of the parties The Respondent had filed election objections, and the Union decided its interests would be better served by agreeing to a new rerun election than by litigating the election objections through the Board and possibly the courts 8 We note that this is the sole argument on which the Respondent relies in attacking the judge 's reliance on those election results as demon- Continued 294 NLRB No. 44 BENJAMIN COAL CO. The judge found that for many years before the Union ever appeared to conduct , an organizing campaign at, the Respondent's facility, antisemitic remarks concerning the Respondent's president, who was Jewish, were common; and they were not confined to rank-and-file employees, but were also voiced by foremen and higher-level managers. During the period of the campaign such offensive remarks continued and, according to the credited evidence, such statements were uttered by several members of the Union's inhouse organizing com- mittee (a committee that was open to any employee who wished to join) prior to the November elec- tion.9 The Union did not, however, either in its campaign literature or through the conduct of its five full-time staff organizers working on the cam- paign, either echo or condone these highly offen- sive sentiments . Indeed, according to the credited testimony, in the only incident in which the Union's staff organizers actually heard an antisemi- tic statement (a comment made at a union meeting by employee Smocheck, who was not a member of the inhouse organizing committee), the organizers immediately quieted Smocheck and told the audi- ence that such comments were irrelevant to the campaign. Without question, slurs on the race, reli- gion, or ethnic background of an employer's owners or managers are abhorrent and have no place in 'any organizing campaign . But under all the circumstances here, we see no basis for attrib- uting to the Union the prejudiced statements of some of the employee committee members. i 0 To strating union majority It does not argue that it was improper to rely on the results of the first election simply because the parties had agreed to set the election aside As no party has raised this issue, we do not pass on it Member Cracraft adopts the judge's finding of majority support based on the results of the first election pro forma See her dissenting opinion in Ron E Savoia Construction Co, 289 NLRB 200 (1988) Credited evidence established that four members of the committee- Ken Bee, Thomas McCracken, Tom Bell, and Charles McCombs-had made such statements either definitely or possibly prior to the election Bee's remark was instigated by the antisemitic comment of another em- ployee and there is no evidence anyone else heard it There is no credited evidence concerning where or when McCracken's and Bell's remarks were made or how many employees heard them Although McComb's antisemitic statements occurred prior to the November election and were apparently heard by several other employees, no credited evidence estab- lishes that the statements were made at union meetings or in the hearing of the Union's staff organizers 10 In particular, we find that there is no evidence that the inhouse or- ganizing committee members had either actual or apparent authority from the Union to make antisemitic remarks against the Respondent's president See Pierce Corp, 288 NLRB 97 (1988), NLRB v Herbert Hal- perin Distributing, 826 F 2d 287 (4th Cir 1987) We are aware that this case arises in the Third Circuit, which issued NLRB v L & J Equipment Co, 745 F 2d 224 (3d Cir 1984), on which the Respondent relies with respect to union agency principles as applied to mplant employee orga- nizing committees But even in L & J, the court recognized that not all actions taken by members of such a committee would necessarily be at- tributable to the union in question Id at 233-234 And the court there was not faced with conduct of a type shown to have existed among both employee and management ranks long before the union came on the scene 573 hold that the election was tainted by such preju- dice would be to hold that no election could' ever be held in any plant with a prejudiced work force unless the union attempting the campaign were able to accomplish what management itself had been unable to do before the union came on the scene, namely, eliminate all expressions of racial, ethnic, or religious bias . The rule of Sewell Mfg. Co., supra,, on which the Respondent relies, con- cerns prejudiced campaign propaganda issued by a party to the election, not expressions of employee bias independent of the party 's own actions. Ac- cordingly, we agree with the judge that the elec- tion results were not tainted and that they serve to establish union majority status for purposes of the Gissel bargaining order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and orders that the Respondent, Benjamin Coal Company and Empire Coal Compa- ny, Inc., and/or Benjamin Coal Company, debtor- in-possession, and Empire Coal Company, Inc., debtor-in-possession, La Jose, Pennsylvania, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(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." 2. Substitute the attached notice for that of the administrative law judge. With respect to the question whether antisemitic remarks taint an elec- tion, NLRB v Silverman 's Men's Wear, 656 F 2d 53 (3d Cir 1981), an- other precedent on which the Respondent relies, is also clearly distin- guishable In Silverman 's, the offensive comments were made at a union meeting by the union's secretary-treasurer Contrary to his colleagues, Member Johansen finds it unnecessary to decide whether the Union was accountable under agency principles for the antisemitic remarks of its inhouse organizing committee members Rather, he finds that even assuming the Union was accountable for their remarks, for the reasons cited above in In 9 and the accompanying text, those remarks were not "so inflammatory as to make a fair election im- possible " Coca-Cola Bottling Co, 273 NLRB 444, 445 (1984) APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. 574 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT discourage membership in United Mine Workers of America, or any other labor or- ganization, by furloughing , transferring to less re- munerative work, or by in any other manner dis- criminating against employees with respect to their wages, hours, or tenure of employment. WE WILL NOT threaten to close, go out of busi- ness, or file for bankruptcy if employees designate UMWA as their collective -bargaining representa- tive. WE WILL NOT tell employees that we will never enter a collective -bargaining agreement with a labor organization. WE WILL NOT threaten employees with dis- charge or physical violence to persons and proper- ty in reprisal for their participation and activity on behalf of the UMWA and because they supported investigation of unfair labor practice charges. WE WILL NOT promise that benefits will be im- proved if employees reject the UMWA as their collective-bargaining representative. WE WILL NOT threaten that the pension plan will be eliminated if the UMWA is designated. WE WILL NOT coercively interrogate employees concerning their own and union activities of co- workers. WE WILL NOT resolve grievances or grant bene- fits under conditions discouraging employees from supporting the UMWA. WE WILL NOT, under disparate conditions, re- quire employees to remove UMWA literature from company vehicles. WE WILL NOT interfere with the administration of, and furnish assistance to, BEAU by creating the impression that said labor organization was used by us as an instrumentality for conveying antiunion propaganda and by permitting our agent to serve as an official thereof. WE WILL NOT physically assault employees for having participated in the investigation of unfair labor practice charges. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of your rights guaranteed by the National Labor Relations Act. WE WILL make-whole Wayne Anderson for any loss of earnings he may have suffered by reason of our discrimination against him , with interest. WE WILL, on request, bargain with United Mine Workers of America as the exclusive representative of all employees in the appropriate unit with re- spect to rates of pay , wages, hours, other terms and conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement . The appropriate bargaining unit is: All production and maintenance employees employed by Us at our facilities in Cambria, Center, Clearfield, Jefferson and Indiana Counties, Pennsylvania; excluding office cleri- cal employees, guards, professional employees, and supervisors as defined in the Act. BENJAMIN COAL COMPANY AND EMPIRE COAL COMPANY, INC., AND/OR BENJAMIN COAL COMPANY, DEBTOR-IN-POSSESSION, AND EMPIRE COAL COMPANY, INC., DEBTOR-IN- POSSESSION Matthew Franckiewicz, Esq and Thomas R. Davies, Esq., for the General Counsel. John F. Dugan, Esq. and Vasilis C. Katsafanas, Esq. (Berkman, Russlander, Pohl, Lieber & Engel), of Pitts- burgh, Pennsylvania, for the Respondent. Kurt Kobelt, Esq., of Washington, D.C., for the Charging Party. DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge. This consolidated proceeding originated with the filing of an election petition in Case 6-RC-9403 on 2 September 1983. Thereafter, pursuant to a Decision in Direction of Election issued by the Regional Director for Region 6 on 17 October 1983, an election by secret ballot was con- ducted on 17 November 1983, with the ' tally showing that of approximately 501 eligible voters, 268 valid bal- lots were cast for, and 211 against representation by Peti- tioner, with 18 nondeterminative, challenged ballots. Thereafter, the Employer filed timely objections to con- duct affecting the results , and on 11 January 1984, based solely on a written settlement stipulation executed earlier by the parties on 9 January 1984, the aforesaid Regional Director issued a supplemental decision setting aside the election and directing a rerun i The rerun election was held on 14 March 1984, with the tally showing that of 499 eligible voters, 209 cast bal- lots for, and 261 against Petitioner, with 22 iiondetermin- ative challenges This time, the petitioning Union filed timely objections In entering the stipulation , Petitioner expressly disavowed the exist- ence of merit in the Employer 's objections See G C Exh 2(9) BENJAMIN COAL CO 575 On. 21 March 1984, the pending objections were sup- plemented by the filing of the original unfair labor prac- tice charge in this proceeding. The initial complaint issued on 2 August 1984, and on 3 August 1984, the aforesaid Regional Director, in Case 6-RC-9403, issued an "Order Directing Hearing On Objections and Notice of Hearing," concluding that the allegations set forth in the objections were coextensive with allegations in the unfair labor practice complaint, raising substantial and material issues of fact with respect to the conduct of the elections, warranting resolution on the basis of record testimony developed at a formal hearing Accordingly, the Regional Director ordered consolidation, whereby Cases 6-CA-17216, 6-CA-17345, and 6-CA-17392 were joined with Case 6-RC-9403 for the purposes of hearing, ruling, and decision by an administrative law judge. Thereafter, on 11 October 1984 the acting Regional Director for Region 6 issued a further consolidated com- plaint, which, as later amended, alleged that Respondent independently violated Section 8(a)(1) of the Act by nu- merous acts of coercion impending employees in the ex- ercise of their rights to organize and to support the Union; violated Section 8(a)(1) and (2) of the Act by ren- dering assistance and support to "Benjamin Employees Against the Union" (BEAU), allegedly constituting a rival labor organization, violated Section 8(a)(1) and (3) of the Act by committing various acts of discrimination in order to discourage support of the petitioning Union; and violated Section 8(a)(1) and (4) by discriminating against employees because they cooperated with the Board's investigation of unfair labor practice charges The complaint further alleged that Respondent violated Section 8(a)(5) and (1) by refusing to recognize and bar- gain with the Charging Party-Petitioner as majority rep- resentative of the employees in the appropriate unit. In this later respect, the complaint alleges that the inde- pendent violations of Section 8(a)(1), (2), (3), and (4) were calculated to undermine the Union and to destroy its majority status, being so serious and substantial that the possibility of erasing the effects thereof and conduct- ing a fair election in the future is slight, an allegation which forms the predicate for a remedial bargaining order under authority of NLRB v. Gissel Packing Co., 395 U.S 575 (1969) In its duly filed answer, Respond- ent-Employer denied that any unfair labor practices were committed. Pursuant to the foregoing, a hearing was conducted before me in Dubois, Pennsylvania, on various dates be- tween 5 November 1984 and 16 January 1985 After close of the hearing briefs were filed on behalf of the General Counsel, the Charging Party-Petitioner, and the Respondent-Employer On the entire record in this proceeding,2 including my direct, personal observation of the witnesses while testi- 2 Following close of the hearing, counsel for the General Counsel moved to correct the official transcript in certain particulars Consistent with my recollection and notes, the requested revisions, as well as my own, are deemed representative of what actually transpired and, accord- ingly, it is ordered that the transcript by corrected as outlined in the at- tached Appendix B [omitted from publication) lying and their demeanor,3 and having considered the posthearing briefs, I make the following , FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT-EMPLOYER Benjamin Coal Company and Empire Coal Company (the Respondent-Employer) are Pennsylvania corpora- tions with a place of business located in LaJose, Pennsyl- vania, from which they are engaged in the surface mining, sale, and processing of coal at various locations in North Central Pennsylvania. Since 1 October 1984, Respondent-Employer has been duly designated by the United States Bankruptcy Court for the Western District of Pennsylvania as debtor-in-possession with full author- ity to continue operations and exercise all power neces- sary to the administration of the business of Benjamin Coal Company. Accordingly, Respondent-Employer is treated herein as a successor in bankruptcy. During the annual period ending 29 February 1984, Respondent-Em- ployer in the course of the afore-described operations sold and shipped from its Pennsylvania facility, products, goods, and materials valued in excess of $50,000 directly to points outside the Commonwealth of Pennsylvania The complaint alleges, the answer admits, and it is found that Respondent-Employer is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and it is found that United Mine Workers of America (Petitioner- Charging Party or UMWA) is now, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. The complaint further alleged that BEAU4 also main- tained the status of a statutory labor organization during the period relevant to the issues raised in the proceeding. In this respect, evidence discloses that employee griev- ances were solicited in the name of BEAU and commu- nicated to management by BEAU representatives. More- over, in urging rejection of UMWA, BEAU held itself out as an alternative to that organization, advising repre- sentatives of management and employees as well that upon rejection of UMWA it would seek to represent em- ployees in bargaining concerning wages, hours, and con- ditions of employment. In the circumstances, it is found that BEAU is a labor organization within the meaning of Section 2(5) of the Act. 3 The fact that credibility resolutions hereinafter made might be ac- companied by, objective rationale does not supplant, but is merely intend- ed to reinforce, impressions gained from first-hand observation of the wit- nesses Moreover, testimony that is not referred to herein, whether or not contradicted, is rejected to the extent that it is irreconcilable with ex- pressly credited evidence and findings based thereon 4 In the course of the campaign preceding the second election, BEAU changed its name to "Benjamin Employees All United " 576 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD III. CASES 6-CA-17216, 6-CA-17345, AND 6-CA-17392 A. Preliminary Statement Among the plethora of issues in this case is the ques- tion of whether or not the Employer 's aggressive resist- ance to an initial organization effort waged by UMWA was punctuated by widespread coercion in the form of threats, promises of benefits, interrogation, assistance to an antiunion employee group, the granting of benefits, and unduly broad restrictions on the distribution and dis- play of union literature. According to the General Coun- sel, these unfair labor practices were reinforced by dis- crimination against union supporters violative of Section 8(a)(3) as well as interference with Board processes through reprisals against employees who cooperated with the Board in connection with investigation of the instant unfair labor practices charges. Finally, perhaps the most critical issue derives from the General Coun- sel's claim that proven illegalities were so pervasive as to warrant a remedial bargaining order under aegis of NLRB v. Gissel Packing Co., supra. B. Background Respondent is engaged in the surface mining of coal on holdings in five counties in North Central Pennsylva- nia. The coal industry in the immediate vicinity has been known historically to be predominately nonunion. As might be expected, Respondent's employees, numbering some 500 at times material, had never been represented for purposes of collective bargaining. Indeed, the instant campaign was preceded by three separate unsuccessful attempts by UMWA to organize these operations in 1961, 1963, and 1969 Depressed economic conditions in the coal industry provide the foreground for the 1983 organizational effort. Declines in demand for coal, sharpened beginning in 1982, reducing significantly the price per ton, and coal revenues generally. The adverse effect on the cash posi- tion of coal operators was particularly acute in Respond- ent's case because of litigation with the State Department of Environmental Regulations (DER), concerning delin- quencies in its reclamation obligations under state law 5 In this latter respect, it is noted that prior to the squeeze in the coal market, Respondent financed its reclamation activity from current revenues. Hence, as sales and prof- its declined less money was available to meet environ- mental obligations, which apparently fell to a state of ne- glect For employees, shrinking coal markets translated into layoffs and declining work opportunities. Substantial cut- backs in Respondent's work force took place in 1982 and again in 1983 . Overtime was reduced where possible. However, a new nadir was reached on 5 August 1983. On that date, David Benjamin, Respondent's president, met with small groups of employees to communicate pressing financial conditions challenging the Company and the need for drastic action in order for the Company to survive in a highly competitive, "down" market. Em- 5 Testimony offered on behalf of the Respondent reveals that millions in operating losses were actually sustained in 1982, and as matters turned out, in 1983 as well ployees were told that they, along with management, would make their own contribution to recovery through wage and benefit reductions, in the form of: 1 A 10-percent across-the-board wage cut. 2. Elimination of personal days 3. Elimination of paid sick days. 4. Elimination of 4 paid holidays 6 The cuts were not received hospitably. Disgruntled employees called a meeting, which was held on 14 August 1983. Representatives of the UMWA attended, and apparently were given an opportunity to speak. The organizational drive was launched officially the next day when the UMWA notified Respondent by mailgram that the campaign was in progress' The Union was quick to achieve substantial support. Within 3 weeks, on 2 Sep- tember 1983, it filed the representation petition in Case 6-RC-9403.8 As indicated, the Union was designated by the majority in the ensuing election conducted on 17 No- vember 1983, but on the Company's objections to the election, the parties agreed to a rerun . The second elec- tion was conducted on 14 March 1984, with reversal of the results, this time showing 209 for representation, with 261 against. In the wake of the rerun election, the Union filed timely objections, and the series of unfair labor practice charges which has provided the foreground for the matters in issue in this proceeding. In passing, it is noted that shortly before issuance of the consolidated complaint of 11 October 1984, the Com- pany on 1 October 1984 filed for reorganization in ac- cordance with chapter 11 of the Bankruptcy Code. C. Interference, Restraint, and Coercion 1. The formal campaign There is little basis for disputing the fact that survival, bankruptcy, plant closure, and the loss of jobs were im- portant "bywords" of the campaign waged by Respond- ent against union representation. Numerous witnesses were called by the General Counsel to attest to intimi- dating statements imputed to various of Respondent's su- pervisors. They presented a more or less balanced pic- ture of antiunion conduct during the period preceding each of the respective elections. Statements that the Re- spondent would close or go into bankruptcy, and that David Benjamin would never sign a contract were de- scribed as commonplace throughout, with employees claiming that on more than 100 occasions they were in- formed that operations would cease in one way or an- other, either directly or indirectly, in consequence of the outcome of the campaign. In virtually each instance, the General Counsel alleges an independent 8(a)(1) violation. Considering the written propaganda disseminated by Re- spondent to employees, together with the parol testimo- ny as to what was said elsewhere, the issue is not wheth- 6 See R Exh 17(c) A letter to this same effect was mailed to employ- ees, over David Benjamin's signature on 25 August 1983 See R Exh 17(d) See G C Exh 6(a) 8 See G C Exhs 2(a) and 6(b) BENJAMIN COAL CO 577 er antiunion propaganda raised the spectre of job loss, but whether it was mentioned in a 'context deeming it privileged argumentation protected by Section 8(c), as construed by the Supreme Court in NLRB v. Gissel Packing Co, supra, 395 U.S. at 616-620, and related Board and court decisions. Respondent argues that its campaign pronouncements were an accurate response to UMWA propaganda, which constantly referred to benefits in the UMWA's contract under the them "Benjamin Can Afford The Best." Respondent contends that its campaign was based upon objective fact and truth, in an honest and legitimate effort under Section 8(c) of the Act, to convince em- ployees of the following. 1. The Company was facing a potentially disas- trous economic crisis and was not in any position to absorb increased costs. 2. In light of its economic condition, Respondent could not afford to operate under the terms of the UMWA agreement with the Bituminous Coal Oper- ators Association, herein called the BCOA agree- ment. 3. If the UMWA were designated it would demand that Respondent capitulate to the BCOA standards and/or its costly pension and welfare pro- grams.9 The General Counsel contends that Respondent, during campaigns preceding both elections, delivered a singular, absolute message that unionization would cause the Company to close, a theme set in motion initially by Respondent's owner and chief operating official, David Benjamin. In assessing this claim, it is noted that Re- spondent admittedly instructed supervisory personnel to carry its position to the employees and to emphasize the Company's precarious financial condition and its inability to absorb increased costs, particularly those in the BCOA contract Thus, the hundreds of supervisory ex- pressions litigated on this record as unlawful, in all prob- ability, are traceable to Benjamin's campaign utterances. At the threshold of the overall campaign of intimidation was a letter to employees, over signature of David Ben- jamin, dated 31 August 1983, in which the following point was made: If the UMWA tells you it can get you better wages and benefits, consider where such money would come from. We are struggling to keep our doors open and such demands might result in all our jobs being lost. I do not believe the Union is in our best interest. You have received the highest pay of all local coal companies. You will have to decide whether you want a steady job or want to become a Union 9 The BCOA agreement was renewed in October 1984 in negotiations between UMWA and various employer members of the Bituminous Coal Operators Association Without exception, this contract appears to cover every organized mining operation in Pennsylvania which has a collective- bargaining relationship with UMWA, a fact which enhances probability underlying the perception that UMWA, if designated, would insist on the UMWA's regional agreement member who may end up out of work like the Union members in our nearby counties. I hope that you will agree with me that the best course for you and your families is to avoid the UMW, refuse to sign their cards and otherwise join in their effort 10 The General Counsel argues that the coercive thrust at highest levels was carried forward after the petition was filed in Case 6-RC-9403 on 2 September 1983, when David Benjamin forwarded another letter to employees in which he stated: As you already know Benjamin Coal will resist by all legal means this attempt by the UMW As you should know the timing is terrible. We are in the midst of a financial crunch in the coal market that has required a very careful survival plan We simply cannot let the UMW rock the boat at this time. You can help by voting "No Union" if there is an election. 11 In a followup letter, attacking the UMW's pension plan, dated 21 September 1983, David Benjamin stated: [T]he most important consideration is cost. The Benjamin situation with our banks turns on costs and we can not increase costs and expect to sur- vive. The UMW has many, many retired miners but a shrinking number of active miners. Companies in the UMW plan pay far more a dollar of benefits than companies who are not in the UMW plan. The written communications were supplemented when, about a month before the election of 17 Novem- ber 1983, David Benjamin met separately with groups of employees at the various worksites. In those talks, he outlined the Company's financial predicament, explaining the economic circumstances within Central Pennsylva- nia, which distinguish that area from other coal produc- ing sectors. In this regard, employees were told that be- cause of thin layers of coal, it is extremely costly to ex- tract coal in their area, and consequently the UMWA had no foot-hold in Central Pennsylvania, but prevailed in other areas of Pennsylvania where mines were suscep- tible to more efficient operation. He reminded of the pressures on the Company because of recent losses, stressing the plan that had evolved to restructure and to pull the firm out of the "red," with the cooperation of the banks and pursuant to the consent decree entered with the DER. He reiterated that the reduction in bene- fits in August 1983 was absolutely necessary, while making it "crystal clear" that the Company was in no position to increase costs and that the restructuring would probably pull the Company through, but, without it, bankruptcy was imminent. Benjamin stated that costs had to be brought down and additional expense could not be afforded. As the election grew closer, by letter of 4 November 1983, David Benjamin challenged references in UMWA 10 See G C Exh 3(a) " See G C Exh 3(c) 578 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD propaganda casting doubt on the Company's declarations of poverty. To convince as to the Company's plight, he attached a letter from Respondent's bonding company, describing it as the "best proof that we are telling the truth." This latter document expressed the insurer's view, in the following terms: .. we are all aware of the pending . . Union election which if won by the Union will further se- verely compound Benjamin Coal's financial prob- lems, thus most likely leading to a ceasing of oper- ations. 12 In a second letter dated 4 November 1983, David Ben- jamin addressed the employees "and family" as follows: [L]et's think the unthinkable. What would be the predictable, probable consequences if company em- ployees voted in favor of the UMW in 1983? In our view, there will never be a right time for the UMW at Benjamin. But a vote for the UMW at this time would be the greatest "WRONG TIME" choice possible. A vote for the UMW might very well be "THREE STRIKES AND YOU'RE OUT" in 1984. The letter then went on to describe three circumstances in which the Union could strike, including the possibility that Benjamin could provoke a strike by resisting UMW demands which it deemed inefficient or uneconomic. It concluded with the following. But THREE STRIKES and we might be out-from president to dozer operator to janitor. We're all in the same boat. Please vote "NO UNION" on No- vember 17th." 13 In his letter of 10 November 1983, David Benjamin approaches the point of suggesting an inability even to "deal" with the UMW, in which he stated: [I]f we had to deal with the UMW, how could we ever guide this company through the perils of the down coal market, our vicious competition, our tre- mendous bank loans, and also meet the requirements of our survival plan?14 David Benjamin opened the second campaign with a letter dated 10 January 1985, stating- "There is no room in our recovery plan for the United Mine Workers."15 By letter dated 17 February 1984, David Benjamin re- iterated: "Benjamin Coal Company is in bad financial shape and cannot afford the UMW pay and benefits." 16 12 See G C Exh 3(1) 12 See G C Exh 3(1) It is noted that during the second campaign, on 13 February 1984, similar points were made in connection in a letter to employees over signature of Superintendent Don Hutton See G C Exh 3(s) 14 See G C Exh 3(l) 15 See G C Exh 3(Q) 16 G C Exh 3(t) Consistent with David Benjamin's theme, another letter dated 23 February 1984, this time over signature of superintendent of operations, Donald Hutton, stated as follows. If the company were faced with added costs such as those found in the UMW contract, it might well be pushed to the wall. Under the present circumstances bringing the UMW into this company at this time could be the straw that broke the camel's back.17 Respondent also distributed a handbill publishing a statement by a former UMWA member, now employed by Respondent, as follows- I was lucky. I was in a mine that went UMW. It only lasted nine months and then closed down. I got out before the roof fell in!' 8 Finally, David Benjamin, on 12 March, delivered pre- pared campaign speeches to all the employees. His re- marks opened with recitation of the history of the finan- cial crisis that existed at the outset of the organization drive and which continued thereafter. The possibility of a close down remained central as should be evident from the following excerpts from the speech: If I had avoided the layoffs, the cuts, the shifting around, and the other components of the survival plan, we would not be meeting here today These doors would have been closed! Benjamin Coal Company would have been out of business! But we are still here and you are still working. Many others are not. Even with our efforts and our survival plan, we have suffered a loss of $2.51 per ton in 1983 or staggering total net loss for the year of $4,537,579 00. You must ask yourselves as I did in the late nights in early 1983 when I couldn't sleep which is more important-some temporary unhappiness and inconvenience on your part or the permanent loss of your jobs? That was the choice I faced and I chose to save your jobs. It was a bitter pill we had to swallow! Last fall, I was saddened by the message that arose in the union drive that I was a liar and I was hiding the truth! Now, I feel anger because the UMW still calls me a liar and calls these independent professionals liars and stooges. It is clear to me the UMW doesn't care a dam about Benjamin Coal-it doesn't care if we finally die on the vine and have to close our doors. Why have they rejected all this evidence that we are in serious trouble? They can continue to tell you that "Benjamin can afford the best" but the simple truth is "We are nearly broke!" I can only say to you: look around. Look to Johnstown where the union told its men not to be- 17 See G C Exh 3(v) "See G C Exh 3(dd) BENJAMIN COAL CO lieve that the steel companies,were losing money- loo0to' Clearfield where the union told its men not to believe A & P was losing money. Yes, these men didn't believe their companies were suffering serious losses and now its too late-their jobs are lost for- ever! I ask you how the UMW is going to exact higher wages and benefits from this company when we have no profits to pay for those increases! We are not even paying the banks what our original agree- ments require We are behind on our loan agree- ments. They will have to be paid) One cannot help wondering whether this interna- tional union is not more concerned with giving comfort to our competitors than protecting your jobs here at Benjamin Coal Company, whether this international union is not more interested in the big picture of creating a need for coal to be furnished by other union mines as a result of a shutdown here at Benjamin Coal Company rather than strengthen- ing your future here by strengthening Benjamin Coal Company. We don't need the UMW we don't need dissen- sion, slurs, threats , and intimidations. We don't need division of men against men-families against fami- lies. I'll tell you this-if the dissension continues our productivity will suffer to the point that we will surely fail in the end That evening, David Benjamin appeared on local tele- vision and radio stations and was interviewed in connec- tion with the impending election. He stated at the time that Benjamin would bargain with the Union and when asked if he would stay in business, Benjamin replied that it was "questionable" but that he had every intention of staying in business if he could.19 The formal campaign waged over the signature of David Benjamin , in addition to "job loss," also included a lowkeyed and hard -hitting effort calculated to dispar- age the UMW and its benefit programs, attacks which nevertheless constituted perfectly legitimate antiunion propaganda. Another issue, however, is presented by Benjamin's repeated references to closure, loss of jobs and other adverse economic effects of unionization. His remarks, emanating as they did from the highest of sources within management, provide a background against which the legitimacy of threats of adverse conse- quences might be assessed so as to avoid needless repeti- tion of the controlling principles. In NLRB v. Gissel Packing Co., 395 U.S. at 617-620, standards were articulated for testing legitimacy of em- 19 Respondent, in its posihearmg brief, states that David Benjamin "continuously" stated that he would bargain with the Union Compare the content of Benjamin's letter of 10 November 1983 In any event, apart from these broadcasts which may or may not have reached all within the voting grup, there is no believable evidence that this position was communicated by Benjamin The latter's uncorroborated testimony that he made this point at all "group meetings" was not believed Also rejected as unsubstantiated is the assertion in Respondent 's brief that the Company on several occasions communicated its "avowed intention not to shut down " See R Br 7 579 ployer pronouncements of this nature. In this connection, the Court stated at 618-620 as follows: Thus, an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not con- tain a "threat of reprisal or force or promise of ben- efit " He may even make a prediction as to the pre- cise effect he believes unionization will have on his company. In such a case, however the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstra- bly probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization . . . If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable pre- diction based on available facts but a threat of retal- iation based on misrepresentation and coercion, and as such without the protection of the First Amend- ment. We therefore agree with the court below that "[c]onveyance of the employer's belief, even though sincere, that unionization will or may result in the closing of the plant is not a statement of fact unless, which is most improbable, the eventuality of closing is capable of proof " [An] employer is free only to tell "what he reason- ably believes will be the likely economic conse- quences of unionization that are outside his con- trol," and not "threats of economic reprisal to be taken solely on his own volition. As should be evident from the above, the Supreme Court, though mindful of the devastating impact that job-loss predictions might have on the election process, nevertheless, did not outlaw all such references. It is clear, however, that self-serving argumentation , lacking in probable economic foundation, would be held unlaw- ful as outside of the category of speech protected by Section 8(a).20 Consistent therewith speculative refer- ences to the Employer's "precarious financial condition" and a Union's "potentially unreasonable demands" would no longer be recognized as a means for inveighing upon rights guaranteed employees under Section 7 of the Act. See, e g., 395 U.S. at 619. As stated by the Ninth Circuit Court of Appeals , employers are not free to "in an excess of imagination and under the guise of a prediction, fabricate hobgoblin consequences outside his control which have no basis in objective fact." NLRB v. Lenkurt Electric Co, 438 F 2d 1102, 1106 (1971). 20 Limitations imposed on an employer's right to discourage support of a union on the basis of its precarious economic condition was specifically considered by the Supreme Court in Gissel Thus, the Court affirmed a finding below that a speech violated Sec 8(a)(1) despite the employer's explanation to employees that the adverse economic consequences of unionization would spring from its economic plight See 395 U S at 587- 589 580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Under challenge at present, however, is the fact that Gissel has been construed as establishing a strict proof re- quirement. Pursuant thereto it has been stated that those employers who would combat unionization by raising the possibility of job dislocation or plant closure carry a "severe" burden even where the statements "in context seem to indicate a good faith concern about high labor costs and an inability to compete." See NLRB v. Zim's IGA Foodliner, 495 F 2d 1138, 1137 (7th Cir. 1974). As stated by the Supreme Court itself "[c]onveyance of the employer's belief, even though sincere, that unionization will or may result in the closing of the plant is not a statement of fact unless, which is most improbable, the eventuality of closing is capable proof " 395 U.S. at 618- 619. Nevertheless, recent decisions of the Board subscribe to what appear to be a more flexible approach in defin- ing what proof is necessary to substantiate "objective fact." Consistent with the views of at least three different circuit courts, the Board has recognized that the margin- al employer should have wide latitude in fashioning and communicating rational argumentation, which points to the fact that the additional economic burden of union or- ganization may lead to plant closing, loss of work, or jobs. As shall be seen, this relaxation of the rules govern- ing employer freedom of speech has been facilitated by evolving views as to the nature of proof required to con- firm probability underlying such propaganda. Thus, this more recent line of precedent extends greater latitude to employer argumentation where "common knowledge" and "experience" combine to substantiate that remarks are based upon demonstrable, probable events, while dis- pensing with the need for detailed, scientific proof that the prediction is in reality a statement of fact. In other words, narrow, restrictive conceptions as to the meaning of "objective fact" and "demonstrably probable conse- quences" have yielded to that which is logically replicat- ed in every day experience, an evidentiary approach, that has broadened employer latitude dramatically to stress economic adversity in combatting union organiza- tion. Thus, in Clintonville Shoe Co., 272 NLRB 609 (1984), a Board majority (Chairman Dotson and Member Hunter, with Member Zimmerman dissenting) held that state- ments concerning the possible loss of jobs and closure did not interfere with freedom of choice in an election. Basically, two letters from the employer were involved. The first appealed to employees to vote against the union and included a warning: "Don't let this Local cost you .. your job security." The second distributed to em- ployees a week later, stated: Vote The Union Out! . ..-We will predict that if we would agree to the new contract proposals that the union has promised you, the factory would be forced to close in a matter of days. The majority reasoned that the references to loss of "job security" and "plant closure" were based on "objective facts so as to convey an employer's belief of the probable consequences of unionization." In lieu of detailed eco- nomic data, the Board majority reasoned that "based on the economic situation in the shoe industry, the [second] letter accurately predicts the probability of plant closure if the Employer accepted those contract proposals the Union was advocating. "21 From all appearances this result was reached without benefit of proof of litigation of concrete economic fact as to precisely what, or how little, if anything, the employer could afford. Instead, the majority appears to have given controlling weight to the depressed state, of the shoe industry in accepting the probable accuracy in the employer's overall prediction as to what would occur if the union were to successfully, press its demands In another case, a Regional Director sustained an elec- tion objection on grounds that certain employer state- ments contained "veiled threats that business would de- cline and jobs would be lost." The Board. (Chairman Dotson and Members Hunter and Dennis) disagreed. Thus, in Tri-Cast, Inc., 274 NLRB 377 (1985), it was concluded that the points set forth below made in a letter to employees constituted permissible campaign' comment: 1. We are still a young company fighting for new business. If we have to bid higher or customers feel threatened because of delivery cancellations (union strikes) we lose business-and jobs. ^ 3 We will lose the flexibility we need to ship castings and beat the competition We cannot stay healthy with union restrictions. We are much too small. Although the Regional Director had found that "the Employer failed to show an objective basis for the pre- dictions," the Board again appeared to view such proof as dispensable, relying on the inherent logic of the em- ployer's statements. Thus, the Board upheld the employ- er's right to refer to the possibility of job loss; on the fol- lowing grounds- The Employer's first comment is • couched in terms of what might happen "if' certain events occur. We construe this comment as nothing more than the Employer's permissible mention of possible effects of unionization. Higher bids or customer's feelings of dissatisfaction because of problems caused by Union strikers "can" lead to lost business and lost jobs. There is no dispute that the Employer 2' As observed by the General Counsel, the Board, in a number of cases, has held that employers may not threaten job loss and closure on the basis of speculation as to what the Union would demand if designated by a majority See, e g , Paul Distributing Co, 264 NLRB 1378, 1383 (1982), and cases cited therein, Swan Co, 271 NLRB 862 (1984), Crown Cork & Seal Co, 255 NLRB 14 (1981) As a corollary, it is also a truism that union demands are subject to rejection and hence do not themselves put employers out of business Nonetheless, there is, and for many years, has been a conflict in this area Thus, even on the heels of Gissel, a number of cases have allowed employers to argue that they would close because unable to afford union demands See Daniel International Corp, 264 NLRB 569 (1982), and cases cited therein, Unijhte Inc, 233 NLRB 1108, 1111-1112 (1977), Birdsall Construction Co, 198 NLRB 163 (1972), Federal Paper Board Co, 206 NLRB 681-683 (1973) In any event, to the extent inconsistent with cases relied on by proponents of the complaint, Clintonville Shoe is obviously to be afforded primacy BENJAMIN COAL CO is a young company and that higher wages demand- ed'by a Union could mean ultimately higher bids which 'might, in turn, affect the amount of business garnered by the Employer. Making these reasonable possibilities known to employees does not constitute objectionable conduct.22 The dispensibility of collateral proof as to "objectivi- ty" appears to have been central to the result reached in EMR Photoelectric, 273 NLRB 256 (1984). There the Board (Chairman Dotson and Members Hunter and Dennis), on reconsideration, declined to find a violation of 8(a)(1) based on a statement by an "executive vice president" that a "sister" company had "moved to Puerto Rico" after a strike which resulted in the compa- ny's loss of government contracts The executive vice president also added that he "hoped" such a loss of gov- ernment contracts would not cause "this" plant to move. The statement was made against a background disprov- ing its truth. For, as reported in the original decision in that case, the executive vice president denied "that he said anything to employees about Puerto Rico in any context . . . or about a company moving after a strike." See EMR Photoelectric, 251 NLRB 1597, 1606 (1980). In fact, the executive vice president testified that a "sister company" did locate in Puerto Rico, but "solely for tax purposes." 251 NLRB at 1606, fn. 25 Nonetheless, the statement was viewed as legitimate, with the Board rea- soning as follows (273 NLRB at 257): We are often called on to determine whether statements warning employees of the adverse conse- quences of unionization are lawful predictions or unlawful threats. The statements made here were by and large neither. They were factual statements showing that there were possible harmful results from unionization to be weighed against the possible benefits to employees. The Respondent informed the employees that the Union had taken employees out on strike at other companies and that certain ad- verse consequences had ensued; that strikers re- ceived no pay or benefits during a strike and could be permanently replaced; and that should the Union win the election and make unreasonable bargaining demands it would either have to drop those de- mands or strike. The Respondent did not tell em- ployees if they selected the Union it would close the plant or take other reprisals. Instead, the Re- spondent specifically reassured employees it would bargain in good faith with the Union if it won the election and would take no reprisals in that event. We therefore find that in its overall preelection campaign the Respondent properly avoided threat- ening reprisals . See J. J. Cassone Bakery, 247 NLRB 220, 221-222 (1980). Consistent with the Board's position that "demonstra- ble probability" need not be substantiated on the basis of extrinsic proof is another case in which the Board shifted the burden of proof from the employer to the General zz See also Michael's Markets, 274 NLRB 826 (1985), and Hanover Ma- chine, 270 NLRB 841 (1984) 581 Counsel, requiring the latter to show inaccuracy in the employer's argumentation. Thus Storall Mfg. Co., 275 NLRB 220 (1985), the Board (Chairman Dotson and Members Hunter and Dennis) evaluated a statement that customers were stockpiling in the expectation of union- ization and that orders had been falling since advent of the union. There was no finding, and probably no show- ing by the employer that this was an accurate or truthful representation of what had transpired. The Board, in viewing the statement as lawful, relied on the fact that the "accuracy [of the employer's statement] as a descrip- tion of an existing business condition brought on by union activity is not challenged by the General Coun- sel," a rationale which appears to suggest that employer statements of adverse economic consequences are to be deemed presumptively truthful. Much of this trend is on line with the relaxed attitude toward the "objective fact" standard highlighted in the decision of the Seventh Circuit Court of Appeals in NLRB v. Village IX, 723 F.2d 1360 (1983). There the court validated a speech, stating "if the Union exists at Shenanigans, Shenanigans will fail." In that case, the sole objective support for the close-down prediction was the employer's "pointing to the competitive nature of the restaurant business and the fact that only one restaurant in Decatur was unionized and it was doing badly " In finding the entire tenor of the speech to be legitimate, the court stressed that experience alone may suffice to establish the probability underlying the statement, by ob- serving: We do not read Gissel to require the employer to develop detailed advance substantiation . . . at least for predictions founded on common sense and gen- eral experience. . . . [Thus, a] small company in the restaurant business should not have to hire a high powered consultant to make an econometric fore- cast of the probable consequences of unionization on the restaurant business in Decatur. [723 F.2d at 1368.] This approach to the evidentiary issue was in conso- nance with an earlier holding by the Ninth Circuit in NLRB v. Lenkurt Electric Co., 438 F.2d 1102 (1971), that a department manager acted within the purview of Sec- tion 8(c) when he told employees that they would be dis- advantaged in employment terms if unionized. In that case, the only "objective" justification for the commen- tary was the supervisor's "own experience and observa- tions of the results of prior organization" or his "own ex- perience as a union member and his observations of union shop printing operations in the area." 438 F.2d at 1107-1108 The Eighth Circuit in Patsy Bee, Inc. V. NLRB, 654 F.2d 575 (1981), endorsed this approach upholding as le- gitimate an employer's statement that one or two of the company's major customers would cancel their contracts if the Union were designated. This view, by a divided court, deferred to the employer's "belief" garnered from its experience and understanding of the policy of its cus- tomers." The dissent challenged the apparent disregard of the objectivity standard by observing: 582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD . . . an employer's sincere belief is not enough. "Conveyance of the employer's belief, even though sincere, that unionization will or may result in the closing of the plant is not a statement of fact, unless, which is most improbable, the eventuality of closing is capable of proof " [NLRB v. Gissel Packing Co., 395 U S 575, 618-619.] In accordance with these decisions and the projected effect of their respective holdings,23 I reject the General Counsel's contention that references in the formal state- ments of David Benjamin and Superintendent Hutton ex- ceeded permissible bounds of Section 8(c) and constitut- ed unlawful coercion. The references to untoward conse- quences of unionization were articulated in a context of what the Employer could not afford, why not, and why the Union was likely to make such demands. The under- lying claims of poverty had not been sprung suddenly on a surprised voting group. Even prior to the advent of the Union, the endangered status of Respondent's operation was a communicated fact, which should have been em- bedded firmly in the minds of all employees. The down- slide in demand for coal and the resulting decline in rev- enues, the Company's deteriorating position with credi- tors, and the accumulated indebtedness-all burdened ad- ditionally by outlays necessary to satisfy reclamation re- sponsibilities under state law-were matters of common knowledge and stood as verifiable fact prior to advent of the UMWA. Through the wage cuts in August 1983, as well as earlier layoffs, the employees clearly were on notice that drastic solutions were imperative if the Com- pany were to survive.24 Moreover, Respondent had every reason to believe that the Union would insist on a contract which, under present conditions, would impose substantial new cash demands on the Company. Thus, coal profitability is heavily dependent on relative labor costs. The decline in market demand for coal has had a depressing effect on union and nonunion operators alike, and layoffs in the coal fields of Pennsylvania and West Virginia had been commonplace over the past 3 years. Coal produced in those fields compete within the same markets as served by Respondent. In the circumstances, there can be little quarrel with the assumption that major concessions by UMWA from its BCOA agreement to a large stripping operation in the Appalachian fields would threaten the economic integrity of that agreement and, very likely, would be grudgingly made. The validity of this assump- tion is heightened by the fact that during the timeframe relevant to this proceeding substantial segments of the UMW membership were either in layoff or permanently terminated in consequence of the economics in this de- pressed industry. In practice, the Respondent's fears were born out by the additional fact that UMWA has no contract with any operator in the coal fields of Pennsyl- 22 The administrative law judge is duty-bound to identify, interpret, and apply existing Board policy whatever his personal views as to the state of the law otherwise See, e g, Iowa Beef Packers, 144 NLRB 615- 616 (1963) 24 During the campaign, David Benjamin offered employees the op- portunity to verify the Company's economic situation by offering access to internal financial papers See G C Exhs 3(a) and (t) vania which differs in substantive content from the BCOA. Thus, the facts were there and employees would recognize that the assumption underlying David Benja- min's pronouncements that Respondent would be unable to compete as an operator subject to the BCOA were "founded upon common sense and experience." See NLRB v. Village IX, 723 F.2d 1360 (7th Cir. 1983). 2. The informal campaign In addition to the formal campaign utterances by David Benjamin and Superintendent Hutton, during the period preceding each of the respective elections unlaw- ful conduct of an ad hoc nature is imputed to no less than 19 alleged agents of Respondent, including the former. In this connection, Respondent admits that front- line supervision had been urged, from the outset, to carry forth to employees the Company's antiunion mes- sage. Thus, early in the campaign, on 9 September 1983, and again after the first election was set aside, the Re- spondent conducted meetings of its foremen. The Com- pany's labor attorneys in the course thereof explained generally the "DD's and DDN'TS" of waging an antiun- ion campaign."25 At the first meeting, David Benjamin addressed the foremen concerning the economic condi- tions affecting the Company. His notes included the fol- lowing references: We don't want the UMW at any time. But to have them poking around now is really a major threat to our existence The belt tightening was essential. We have a sur- vival plan in effect which can't be disturbed or we go under with the banks. The timing stinks. We ab- solutely need a "No Union" vote 26 Beyond this, supervision was not given a fixed agenda, they were instructed to communicate with employees emphasizing the Company's precarious financial condi- tion and its inability to absorb increased costs, without benefit of specific terminology to be used or that which was to be avoided. In the words of Harry Benjamin, at these meetings: We instructed them to tell . . people . . . under their supervision just what the survival plan was We asked them to explain it to them. As I said earli- er, we explained the do's and don'ts to them And we wanted them to get the word to each and every person. The supervisors responded as directed. However, nu- merous employees testified that in carrying the Compa- ny's position to them, statements were made that Benja- min would shut down automatically on designation of the Union and/or that Benjamin would never sign the union contract. Indeed, more than 50 employees, many of whom remain in Respondent's active employ, impli- cated 14 management representatives in expressions of abstract threats. The validity of these expressions must 25 See R Exh 6 26 See R Exh 20 BENJAMIN COAL CO stand on their footing and are not to be considered valid because-of, their relationship to the legitimate utterances in the formal campaign exemplified by written propagan- da and David Benjamin's speeches at captive meetings.27 Under existing precedent, the former did not privilege lower level managers to make direct threats of close- down or statements that Respondent would never sign a contract, unaccompanied by objective argumentation.28 The illegal threats imputed to supervisors are considered below, together with other alleged 8(a)(1) allegations To the extent possible, the allegations are segregated by election campaign, due to the distinct impact illegalities within each timeframe might have on the issues present- ed in Case 6-RC-9403. 3. Independent 8(a)(1) allegations preceding the first election a. David Peace29 Employee Thomas Mahaffey, who was on payroll status at the time of the hearing, testified that approxi- mately 4 weeks prior to the first election, Dave Peace quoted David Benjamin as having stated at a foremen's meeting that. "if the Union comes in on 17 November . .. he would'shut down The next day, he would shut down the next day, the 18th."30 Based on Mahaffey's credited account I find that this direct threat was unqualified by any form of argumenta- tion and violated Section 8(a)(1) of the Act. b. Bill Ricketts David Lewis, an incumbent employee at the time he testified, related, without contradiction that Ricketts and admitted supervisor, just prior to the first election, in- quired if anybody had mentioned the Union to Lewis. Prior thereto, Lewis had failed to manifest support of the Union in any fashion Cf. Rossmore House, 269 NLRB 1176 (1984) In the circumstances, the questioning of 27 Respondent contends that, even if unprotected by Sec 8(c), the alle- gations based on threats must be dismissed an noncoercive because many employees openly manifested their support by displaying stickers on their vehicles, their hats, their lunch pails, or by wearing UMWA buttons, pins, and hats, and by their willing participation in free and open discus- sions with management representatives, with whom many employees ru- minated on friendly terms There is no merit in this view Apart from its tendency to create false impressions of universality, these generalized ob- servations would not dispel the fears and sensitivities held by all employ- ees in all circumstances Evaluation of coercive conduct turns on "whether the conduct in question had a reasonable tendency in the totali- ty of the circumstances to intimidate " See Corrie Corp v NLRB, 375 F 2d 149, 153 (4th Cir 1967), NLRB v Brookwood Furniture, 701 F 2d 452, 459 (5th Cir 1983) Respondent's observation in this regard are beside the point and do not survive that test 38 See EMR Photoelectric, supra at 257, in which a majority, over Chairman Dotson's dissent, refused to view an abstract threat as privi- leged by the "general tenor of the Respondent's message to employees " Rather the majority, viewed the statement in isolation and as violative of Sec 8(a)(1) All named are admitted supervisors and agents unless other- wise indicated 29 All named are admitted supervisors and agents unless otherwise in- dicated 30 Mahaffey named another employee, Dennis Byers, as present on the occasion in question Byers, though called as a witness , was not examined as to the incident Peace could not remember making this statement, and his testimony was limited to a denial that David Benjamin had ever made such a statement I believe Mahaffey 583 Lewis was calculated to elicit information concerning his own and the union activity of others, and, since support- ed by no legitimate purpose, constituted coercive interro- gation proscribed by Section 8(a)(1) of the Act 31 Russell Harpster, also an incumbent employee at the time he testified, related that about 3 or 4 weeks before the first election, on several occasions, Ricketts stated that he did not believe that the Union was a good idea As time went by and the election grew nearer, Ricketts repeatedly stated that Benjamin would not sign a con- tract, "that he didn't need that kind of stuff, he would just close the doors." Ricketts admitted that he partici- pated in many conversations, back and forth, concerning the Union. Although he initially admitted to having told Harpster that "Mr Benjamin would not sign a Union contract, that he would just close his doors down," on further examination by Respondent's counsel, Ricketts denied that these were his exact words, correcting his testimony to reveal that Harpster was simply told that "if the Union was voted in, and it would cost the compa- ny" yes he would close the doors This minor aberration was not viewed as critical. For Harpster did not impress me as a reliable witness and absent corroboration from credible sources, his testimony has been rejected The testimony of Ricketts that the Company would close if forced to sustain more costs would appear to fall within the area of privileged argumentation carved out by the Board in Clintonville Shoe, supra, and Tn-Cast, supra, and the 8(a)(1) allegation in this respect shall be dismissed Ricketts admitted to testimony by employee Willis Martina that Benjamin could not afford to sign the BCOA contract and if the Company went Union it would have to shut down The incident was described by Maruna as occurring a few weeks prior to the first election. Here again, the statement by Ricketts was viewed as legitimately qualified. It has been observed herein that Respondent's perspective that the Union would insist on the BCOA was sufficiently proximate to economic truth to permit articulation of that view in campaign propaganda Since the Company's inability to afford that contract was a further argument based on re- ality, hence was an equally tenable premise, here again, Clintonville and Tri-Cast are deemed controlling. See also LeBoe Tire & Rubber Co., 208 NLRB 84 (1974), and BF Goodrich Footwear Co, 201 NLRB 353 (1973) The 8(a)(1) allegation shall be dismissed Also discredited is testimony of Dale Yarger that Ricketts stated that "he thought they would have to shut down if the union was voted in." Yarger's recollection that the statement was made after the first election was inconsistent with his prehearing affidavit, and apart from the shotgun statement he attributes to Rickettts, he ap- parently could not recall the circumstances surrounding the conversation, including the length of the discussion or who first mentioned the Union Ricketts testified to having told Yarger that anything that would cause the Company to have more expense would cause them to shut down because you could only work in the red for 31 Respondent failed to carry its burden of proving that this incident occurred prior to the 10(b) cutoff date See Saint Mary's Infant Home, 258 NLRB 1024 fn 3 (1981) 584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD so long. Consistent with the testimony of other employ- ees, Martina and Terry Howe,32 I find that Ricketts' statement explained the shutdown would result from ad- ditional expenses which the Company could not afford and hence on authority of Clintonville Shoe, supra, it was protected by Section 8(c) of the, Act. c. Chad Hannah ' Incumbent employee Scott Williamson testified that Hannah, while his foreman, commencing about a month before the first election, staled that "a Union would not be to our advantage for . . . David would close the doors and he was sure that he would not sign a con- tract "33 Hannah admitted talking to Williamson, but claims that he simply gave his "personal opinion" that the Company could not afford the BCOA contract, in "no way, shape, or form and, if the UMW was voted in the company would shut down." I did not be- lieve Williamson On the credible evidence the predic- tion of closedown was based on the Company's capacity to absorb union demands likely to be made in event of a victory in the election, and were within the ambit of dis- course protected by Section 8(c) and the recent decisions in Clintonville Shoe and Tri-Cast, supra. d. Ernie Smeal According to Tim Mazenko, Foreman Smeal repeated- ly told him prior to the first election "that if we went Union, David Benjamin would liquidate the company he could not afford the Union, the Union would stick the green book down David Benjamin's throat and they would not let him sign no other contract." When Ma- zenko argued back that the Union would give Benjamin an independent contract, Smeal assertedly declared that they would not, that they would be on strike all the time, and that Dave would shut down. Mazenko conced- ed that Smeal always indicated that closedown would result from union demands, and that when Smeal said that Benjamin would not sign "a" contract, Smeal always stated that the United Mine Workers would not let' Benjamin sign anything other than the "green book"34 Smeal could recall conversations with Mazenko, 32 As shall be seen, infra, Howe testified that prior to the second elec- tion he too was told that the shutdown would be caused by the Compa- ny's inability to afford the UMWA royalties 33 In addition , according to Williamson , Hannah indicated that "he was sure how the men were going to vote and that they were going to vote against the Union " The General Counsel contends that this consti- tuted coercive interrogation On the contrary, this immediate comment by Hannah appears to amount to no more than a wishful thought as to what he would like to see develop at the polls It does not appear that the remark was made in a context suggesting an inquiry on his part, rhe- torical or otherwise The 8(a)(1) allegation in this respect is dismissed as having no tendency to impede employees in the exercise of their Sec 7 rights In so holding, it is noted that the testimony of Gordon Frano that he overheard Hannah reporting on the preferences of his employees to higher management does not alter my conclusion , or confirm the allega- tion that Hannah participated in proscribed interrogation It is just as pos- sible to speculate that Hannah was reporting his impressions, rather than any facts discerned though accepted forms of interrogation Indeed, the information could have been acquired through a legitimate polling of em- ployees See, e g, Struksnes Construction Co, 165 NLRB 1062 (1967) 34 The "green book" is a pseudonym for the BCOA agreement but nothing like that described by Mazenko He admitted to discussing the Company's financial position and its in- ability to withstand increased cost. He denied al y com- prehension of the term "green book," but admitted to ex- pressing that the Company "was in bad shape and we just couldn't afford much of anything else." In any event, assuming that Mazenko's account were true, it seems clear enough, that Smeal's views were consistently prefaced by reference to objective considers demonstra- bly probable in nature. As indicated, under established precedent, Respondent was privileged to express such ar- gumentation. The 8(a)(l) allegation in this respect shall be dismissed Tim Mazenko testified that on another occasion, when he threatened to challenge a statement he attributed to David Benjamin by filing unfair labor practice charges, Smeal responded, "If anybody files charges on me, they better never work for me again." Smeal denied making such a statement Mazenko named Rich Diehl and Bill Pusey as present on the occasion in question. Neither tes- tified concerning the incident and concern as to the overall reliability of Mazenko was sufficient to warrant rejection of his uncorroborated testimony. The. denial of Smeal is credited According to Gary Lender, an incumbent employee at the time he testified, Smeal, shortly prior to the first election, lectured that Leander better think about his wife and children when he goes to vote because of the possibility he would be voting their livelihood away, be- cause Benjamin could not afford the Union, the royalty on coal and all of that Here again, the statement imput- ed to the supervisor constituted privileged argumentation within the meaning of Section 8(c) as construed by Clin- tonville Shoe, supra, and Tri-Casts, supra. The 8(a)(1) alle- gation in this respect shall be dismissed. e. James Fleming Fleming was by far the most notorious of the foremen named as having offended the Act. He was named as having committed an exhaustive assortment of 8(a)(1) violations, and was involved easily in more confronta- tions than any other foreman or representative of man- agement In an incident which took place prior to the first election, employee Robert Bell testified that as he approached Fleming and another employee who were discussing the Union, Fleming looked at Bell and said, "What do you think about it?" To this Bell replied "no comment." Bell had not previously manifested openly whether or not he supported the Union. Considering other testimony of record, and my doubt that Bell cre- ated this incident out of his imagination, I credit him and find that Fleming's questioning of Bell was without le- gitimate purpose, and was conducted under coercive cir- cumstances violative of Section 8(a)(1) of the Act. Dan Sunderland, a lab technician, who at the time of the hearing had been employed by the Respondent for some 14 years, testified that on or about 24 October 1983, in the space of 2 days, Fleming made two coercive statements in separate conversations. In the first, in the presence of employees Dan Brink and Danny Schaffer, Fleming allegedly reported that he had just come from a BENJAMIN COAL CO supervisor's meeting, and that David Benjamin had said: "if the Union was voted in, he would shut down." Ac- cording to Sunderland, 2 days later in the presence of Dan Brink, Fleming stated if the Union were to get in, Sunderland would have caused him to lose his house. Furthermore, when Fleming observed that there was a 50/50 chance that the Union wuld get in and Sunderland agreed, Fleming inquired whether Sunderland was "will- ing to take that chance?" Fleming admitted to the first conversation with Sunderland, but claimed that he simply remarked that Benjamin said, "if he had to sign a BCOA, and had to get the pension and stuff, that they could not afford it, he would have to shut down." Flem- ing denied making the statement concerning the loss of the house. I credit Sunderland Fleming did not impress me as prone toward niceties in his dialogue, but was a "bottom line" type who made his points "short and sweet" with neither qualification nor apology. It was considered likely to the point of certainty that his predic- tions were presented in simplified fashion and without elaboration. The testimony of Sunderland is credited, and based thereon I find that the unqualified statements con- cerning Benjamin's intention to close the plant upon des- ignation of the Union, as well as the reference to loss of his home, violated Section 8(a)(1) of the Act. Dennis Young testified to an incident involving Flem- ing on the day of the second election, in which Fleming allegedly asked him how he would make house payments if the Union won In the same conversation Fleming asked Charlie ^ Mulhollen, where he would find a job at his age. Mulhollen corroborated the testimony of Young, which is credited, and based thereon it is concluded that Fleming associated designation of the Union with loss of jobs, thereby violating Section 8(a)(1) of the Act. The comment to Mulhollen, according to Robert Sin- clair, was also addressed to him abut a few weeks prior to the first election, when Fleming allegedly asked where Sinclair "was going to be working in two or three weeks," I believed him and find that this was clearly co- ercive, implicit reference to the consequence of a UMWA victory. Respondent thereby violated Section 8(a)(1). Many witnesses testified to alleged threats frequently repeated by Fleming prior to both elections The issues related thereto are discussed below in connection with the second election f David Benjamin Both Tim and Joe Mazenko testified to coercive re- marks made by David Benjamin either in the midst of, or as a digression from, his campaign speeches prior to the first election. Tim Mazenko testified that after Benjamin stated that he could not afford another penny and if the Union was voted in he would shut down if it came to a strike vote, Tim Mazenko confronted him, stating: Dave's that's bull . . . they've been saying that since the 1800's . . . there's companies smaller than you and bigger then you that have signed. Benjamin told Mazenko to "shut up," then explained, "I can't afford no more money over my costs now, if the 585 Union gets in here, it comes to a strike vote . . . I'll have to shut my doors, I'll liquidate the Company." Then according to Mazenko, David Benjamin turned to him stating: "What do you want, the Union or your job." Benjamin denied making any statement relative to a strike vote or having to shut the doors, or to having asked Mazenko whether he wanted a union or his job. The testimony of previously discredited witness Ma- zenko was uncorroborated. The denials were believed. It is noted, however, that even were I to believe Mazenko the reference to possible job loss was expressed as a re- sponse to a strike vote, against a background of proven losses, and the inability of the Employer to afford sustan- tial cost increases. Hence even on the General Counsel's, evidence the 8(a)(1) allegation would be dismissed. See, e.g., Tri-Cast, supra Joe Mazenko testified that at a speech given by David Benjamin on 10 October 1983, the latter in discussing the financial condition of the Company, and again describing the survival plan, stated, "if ... he had to accept or ne- gotiate a UMWA contract and pay royalties involved with that contract, then . . . that would be it." When Mazenko inquired as to what David Benjamin meant by "that would be it," Benjamin denied that the Company would go "belly up, or that he would sell, but that it might means bankruptcy " Benjamin then reminded that the men had homes and vehicles to pay for. The testimo- ny of Joe Mazenko was not denied. Here again, the pos- sibility of bankruptcy was raised in the context of ad- verse economic circumstances and the inability of Re- spondent to afford anticipated demands by UMWA, in- cluding royalties to finance the latter's pension and wel- fare programs. In these circumstances, under current Board precedent, the statements of David Benjamin are viewed as privileged argumentation protected by Section 8(c) of the Act. See Clintonville Shoe, supra, and Tri-Cast, supra. g. Harry Benjamin Charles McCombs, an incumbent employee at the time he testified, and an avowed union protagonist, related that 3 or 4 weeks prior to the first election, Harry Benja- min, David Benjamin's son, and second in command, asked if McCombs planned to attend an "antiunion meet- ing " McCombs indicated that he might go, whereupon Harry Benjamin allegedly stated "personally I would not go within 50 miles of there because if the UMW support- ers attend, there is going to be violence " Harry Benja- min denied having had any such discussion with McCombs. The General Counsel contends that inasmuch Benjamin had no basis for suggesting the possibility of violence, his statements constituted an unlawful threat violative of Section 8(a)(1) of the Act. There is no merit in the General Counsel's view. The remark was not an attempt to discourage this known union activist from pursuing the right to organize, but under any fair inter- pretation was merely an expression by Benjamin of his opinion as to what was likely to occur in the event of a confrontation between the competing factions in this emotionally charged campaign. Moreover, the statement, quite simply, had no tendency to suggest that any vio- 586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lence would result from any condition sponsored, abet- ted, supported, or otherwise condoned by the Respond- ent. The 8(a)(1) allegation in this instance shall be dis- missed. James McLaughlin testified that Harry Benjamin ques- tioned him as to how the Union was doing and inquired whether he was unhappy about anything or had any complaints. He insisted that this occurred a few weeks after the first election even though his prehearing affida- vit averred that this occurred 2 weeks before the first election Later, McLaughlin was recalled, conceding that his affidavit was correct. Nonetheless, he was believed. Interrogation of him concerning union activity independ- ently violated Section 8(a)(1) of the Act h. Ronald Schultz John Kunsman testified that in October 1983 a month before the first election, he was alone with Schultz, when the latter stated, "if the election went for the Union, Dave would shut doors," Schultz could not recall the incident, but denied that he would have made the above statement to Kunsman. He admitted to daily con- versations with Kunsman, including some in which UMWA was topical. As shall be seen, the testimony of Kunsman accords with a pattern of conduct on the part of Schultz described by other employees, who were con- sidered credible. In this instance, Kunsman was believed and I find that Respondent violated Section 8(a)(1) by this direct, unqualified threat of a shutdown. Thomas McCracken testified that while seated at a bar in the LaJose Hotel, a local establishment frequented by Respondent's personnel, Schultz inquired as to what the men wanted of Benjamin, whereupon McCracken indi- cated that all he wanted was representation by the UMWA. Schultz replied, without further elaboration, that if the Union got in, "Mr Benjamin would close the Company down, close the doors." In contrast, Schultz admits only to saying that "the Company would shut down if Mr. Benjamin had to . operate under a Union contract." He admitted that he referred to no particular contract, but explained that the UMWA contract was the issue at the time and everybody knew what contract was involved. I believe McCracken, and find the 8(a)(1) vio- lation based on his testimony. i. Bert McGarvey Tom Pennington testified that at the end of October 1983, in the presence of Harry Smith, McGarvey told him "If the Union was voted in, Benjamin Coal Compa- ny would never negotiate." McGarvey could not recall having made that statement to Pennington. He claims, however, that when Pennington would proclaim how the Union could benefit the men, he would respond by pointing out the financial condition of the Company, ar- guing that the Company could afford no increase Pen- nington was not regarded as an entirely trustworthy wit- ness and I am unwilling to predicate an unfair labor practice solely on his uncorroborated testimony. The 8(a)(1) allegation involved shall be dismissed. Gary Hess related that prior to the first election, McGarvey argued that employees had nothing to gain by going to the Union because they would be. paying dues and they now have everything that the Union might obtain without having to pay dues. According to Hess, McGarvey went on to state that Dave Benjamin could not afford to pay the royalties on his coal and would close his doors before signing a contract. McGar- vey could not recall making such remarks Based on my understanding of Hess' testimony, including his admission on cross-examination that McGarvey elaborated that the inability to afford increases was due to "the declining price of coal," I find that the remarks attributed to McGarvey were simply argumentation based on common sense and the strong likelihood as to what would occur if Respondent was forced to enter an agree- ment requiring a payment of royalties. Thus, the allega- tion is dismissed as the testimony, at best, simply recants protected argumentation See Clintonville Shoe, supra. j Robert Hockinson Neal Armogast, an employee on payroll status at the time he testified, related that Foreman Hockinson in late October 1983 informed that the Company needed Armo- gast's vote in the election in order to "save our jobs." Hockinson could recall no such conversation, while indi- cating his contacts with Armogast were only seldom. Amogast was a believable witness and it is deemed un- likely that his encounter with Hockinson was imagined or concocted Based on his credited testimony, I find that Hockinson, in effect, equated a vote for the Union with a loss of jobs, and that Respondent thereby violated Section 8(a)(1) of the Act k Darrel Jefferies Irvin Feaster testified that 4 weeks before the first election, he was told by Jefferies that Dave could not afford the contract with the Union and that he would have to shut down According to Jefferies, he simply in- formed Feaster that the Company could not afford any more expenses. I believe Feaster. Based on his testimony, it does not appear that Jefferies identified the contract specifically that Dave Benjamin could not afford. None- theless, as indicated, Respondent could expect rightfully that UMWA would not depart from crucial, expensive terms of its contractual charges against coal extracted in this section of the country. Accordingly, the 8( a)(1) alle- gation in this respect is dismissed as founded on com- mentary within protective guarantees of Section 8(c) of the Act. See Clintonville Shoe, supra. On the day of the first election, according to employee Ernest Potutschnig, Jefferies stated, before Potutschnig voted, that "Benjamin would never go union . he would shut the door before he would ever sign a union contract " Jefferies denied making that statement Ac- cording to the latter's version, he was instructed, that day, to cut his men down to a straight 40-hour work- week Apparently, Potutschnig who had been working a great deal of overtime, protested, and among Jefferies' responses was a remark that if they had to cut down to 40 hours to meet costs, how in the world could the Company afford the Union I regarded Potutschnig as the more credible witness. It is concluded that Respond- BENJAMIN COAL CO ent violated Section 8(a)(1) on Jefferies' declaration as to the futility organization and the threat that the plant would close before allowed to go Union. 1. Thomas Lemmon Wayne Anderson, an employee on payroll status at the time he.testified, related that about 2 weeks prior to the first election, he was told by Lemmon that there was no way "in hell" the Union would get in and that Benjamin would go out of business first Lemmon could not re- member making any comment to that affect, asserting that the only point he ever made was that Respondent could not afford the expense of the Union. The testimo- ny of Anderson is credited, and it is found, based there- on, that Respondent violated Section 8(a)(1) of the Act. m. John Martyak In early November 1983, about 2 weeks prior to the first election, a meeting was held with employees not on payroll status due to sickness or other disability. The meeting was addressed by John Martyak, Respondent's personnel manager, and other management spokesmen, including Superintendent John Rainey and Controller Barry Young 35 Martyak defined the meeting's purpose as "to bring . . . employees up-to-date with what had transpired throughout the Company during that year so that they would know just where the Company stood fi- nancially and within the industry " According to Mar- tyak, this was the only group of employees that David Benjamin had not addressed during that timeframe. Nonetheless, Martyak denied that the meeting related to the organization campaign. Thomas Pennington testified that Martyak, Rainey, and Young all said "that Benjamin would never sign a contract, they would shut down, they couldn't afford the union." Pennington denied that specific reference was made to the BCOA contract and could not "recall" whether the "green book" was mentioned Charles Dillon's account of what transpired was as fol- lows: Q. Do you recall anything being said about the Union? A. The only thing that I recall that they said is that Dave would close down if we voted for the Union he wouldn't sign a contract Q. Do you recall who said that? A. Jack Rainey said it and then Barry young said it too. Q. And what about Mr. Martyak9 A Well he said that Dave would never sign a contract Another witness for the General Counsel, Jack St. Clair, a disabled employee, also attended the meeting, but denied that the Union was mentioned by name. He also denied that anything was said about what would happen if the Union got in. as Neither Rainey nor Young was named in the complaint, nor amend- ments thereto Neither testified 587 Dillon and Pennington were not regarded as impres- sive witnesses In the circumstances, it is considered en- tirely unlikely that the abstract references to closure and refusal to sign a contract, as they described them, were in fact made. Accordingly, their testimony in this respect is rejected and the 8(a)(1) allegation based thereon is dis- missed. 4 Allegations pertaining to events occurring during the critical preelection period prior to the rerun election Events occurring during this timeframe are critical to the question of whether employer misconduct interfered with freedom of choice of employees so as to invalidate the results of the rerun election conducted on 14 March 1984.36 a. James Fleming As has become evident, numerous witnesses were called by the General Counsel to substantiate that Re- spondent's foremen were engaged in widescale independ- ent 8(a)(1) violations in the course of both campaigns. As heretofore indicated, among this group, the most notori- ous of the alleged offenders was James Fleming With re- spect to Fleming, employees Thomas Bell, Ronald McGarvey, Ed Thompson, John Young, George McEI- heny, John Olson, ' Irwin Holes, Douglas Feaster, and Daniel Brink testified that on a regular basis prior to both elections, Fleming variously threatened that, in the event the Union was designated, Dave Benjamin would liquidate, close down, go bankrupt, or lease the oper- ation, and that he would not sign a contract with the Union. According to Thomas Bell, Fleming regularly argued that David Benjamin was stubborn, and he would not sign a contract and he would close the doors, file for bankruptcy, or liquidate rather than deal with the Union Ronald McGarvey corroborated that Fleming frequently questioned employees as to how they would make their house payments if the Union got in pointing out that they would lose their house, and their car, while observ- ing that it is hard to get a job.37 Robert Pennington tes- tified that during both campaigns, Foreman Fleming told employees that no contract would be signed, and em- ployees would have to go on strike and that he some- times asked employees where they would get jobs if the operation were shut down. Ed Thompson confirmed that Fleming repeatedly asked employees where employees would get a job if the Union came in,38 that employees 31 Under the established rule in the Singer Co, 161 NLRB 956 (1966), the critical period for assessing preelection misconduct affecting the va- lidity of a second election begins running from the date of the first elec- tion Hence, the aforedescribed conduct, which occurred prior to 17 No- vember 1983, is not determinative of the validity of the 14 March 1984 rerun election in Case 6-RC-9403 37 McGarvey did confirm that on some occasions, Fleming argued that Benjamin could not afford a contract or a union 31 Robert Sinclair and Larry Young confirmed that they too were asked by Fleming as to how they would get a job if Benjamin would close the doors 588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD would have to strike and Benjamin would shut down the operation. 39 John Young testified that he was regularly told during both campaigns by Fleming that David Ben- jamin would not sign a contract and that if the Union got'in the Company would close up. George McElheny also testified that on a regular basis during both cam- paigns, Fleming stated they would probably shut down if the Union got in, without attributing the shutdown to union demands for the BCOA contract, its pension plan, or royalties. John Olson also testified that twice weekly during both campaigns Fleming told Olson that with the Union, the Company would just shut down and go bank- rupt .40 Employee Irwin Holes also testified to repeated threats by Fleming during both campaigns that the Com- pany would "definitely" shut down or declare bankrupt- cy if the Union won because 'there was no way they could afford the Union, and that it would not sign a union contract . Doug Feaster testified that on various occasions during both campaigns, he was told by Flem- ing, that if ,the Union got in, that David Benjamin would shut down before he would sign a contract .41 - In addition, according to Ed Thompson , Fleming stated, prior to both elections , that should the UMW strike for its industrywide agreement in 1984, the Union would bring its unemployed members from other mines to replace the Benjamin employees .42 Daniel Brink testi- fied that during both campaigns, on a daily basis, he was told by Fleming that David Benjamin would shut down if the Union got in Fleming advised that Benjamin could not afford union wages , at the same time stating that David Benjamin was old and did not need the aggrava- tion of running the Company any more, and the employ- ees would be the "one's" with no work . According to Brink, Fleming stated that- Benjamin would not sign a contract, as he had operated on a nonunion basis for 35 years and was not going to change at that juncture. In addition to Fleming's repeated threats prior to both elections , his conduct limited to the period between elec- tions was also highlighted by witnesses for the General Counsel Thus , Thomas Bell testified to an occasion be- tween elections, when Fleming shouted to him that his daughter had worked for a coal company that filed for bankruptcy, indicating "Mr. Benjamin will do the same thing," going on to state "that way the union won't have it." Employees Ron McGarvey, Charles Mulhollen, Ed Thompson, Larry Young, Robert Pennington all testified to incidents between elections when ' Fleming raised the question as to how they would obtain other jobs in the event the Union were designated . 43 According to Daniel 39 Thompson testified that sometimes Fleming injected that the close- down would result from the Company's inability to afford the Union and higher costs However, Thompson also stated that most of the time Flem- ing attributed the possibility of shutdown to David Benjamin 's stubborn- ness and unwillingness to deal with the Union 40 Olson testified that occasionally Fleming would assert that the Com- pany could not afford to pay the royalties 41 Feaster testified that on some occasions Fleming indicated that Ben- jamin could not afford the UMW contract 42 According to Robert Sinclair , in mid-October 1983, prior to the first election, Fleming stated that a competing mine would put Benjamin em- ployees out on strike and the employees of their competitor would take their jobs 43 Similar remarks were attributed to Fleming prior to the first elec- tion Ron McGarvey and Don Young , with corroboration from Moyer, Sunderland, in December 1983, after the Union's,victory in the first elections, Fleming told Sunderland that "Dave Benjamin would not sign a contract, that the men would have to go out on strike." Dan Brink also contrib- uted that Fleming stated that the Union would "have to strike to get a contract, and when we went out on strike, that's when he'd shut the company down , and [employ- ees] would be without anything." In other incidents , John Ruffner testified that shortly after the first election, Fleming, in the presence of Robert Miles and a number of other employes stated to Ruffner "I see you still got money " to which Ruffner re- sponded that he would be doing better after the election is certified Fleming responded "no you won't," "you'll be on welfare," adding "you won't have a job, you'll be on welfare."44 Fleming supervised some 38 employees during the union campaign . He testified to having been indoctrinat- ed by company attorneys prior to both elections con- cerning what supervisors could and could not do in cam- paigning against the Union 45 He acknowledged that at a meeting prior to the second election , he was instructed to convey to the employees that the Company was "hurting." Nonetheless , Fleming testified that no one ever told him that he could say that the Company would shut down, and admits that he was off on his own in making comments that the Company would shut down if forced to sign the BCOA He claims that on a daily basis he did talk to the employees, "mostly about the BCOA contract," informing them that the pension plan would cost more money, the royalty would cost more money, and, because of the financial shape that the Company was in, it could not afford additional spending He could not otherwise recall making statements that if the Union came in the Company would liquidate, close down, go bankrupt, lease out, or that Benjamin would not sign a contract . He acknowledged, however, that he may have made statements to the effect that if Benjamin shuts down, how would the employees make payments on debts incurred on behalf of their families . He testified that in all of his discussions he stated that there was only one contract,46 and that Dave Benjamin would never be Mulhollen , and Irwin Holes testified that during the critical period prior to the first election , Fleming inquired as to how they would pay their bills, maintain their mortgages , and/or take care their families in the event the Union got in Daniel Sunderland and Robert Sinclair testified to similar statements made by Fleming prior to the first election 44 Though Ruffner identified 10 to 15 other employees as present, in- cluding all the mechanics and Robert Miles, his testimony stood as uncor- roborated 45 The "Do's and Don't's" of campaigning are in evidence as R. Exh 6 They are a generalized attempt to prevent that which trained experts have difficulty defining with any semblance of consistency To tell super- visors that they are not to threaten employees, while condoning refer- ences to the possibility of closure is not likely to result in a sterile cam- paign Obviously, R Exh 6 was ineffectual to prevent such references by Fleming and other supervisors who admitted to statements concerning possible closedown ' 46 Fleming testified that Company's attorneys had instructed him that there was only one UMWA contract and that was the BCOA agreement His employees on the other hand argued that there were other agree- ments, and when they did so he rebuffed them with his conviction that the BCOA was the only contract BENJAMIN COAL CO able to afford that agreement, namely the BCOA con- tract. He admits to telling employees that he could not afford the BCOA, it would force him out of business, and that Benjamin would not sign and could not afford to sign the BCOA contract. He denies that he ever said that Benjamin would "never sign any contract," but that he could not afford to sign the BCOA contract and that it would force him out of business 47 He could not recall saying anything to employees about having to go on strike. As is true of other segments of this case, several fac- tors combine to make it difficult to present an incisive and refined analysis concerning the independent 8(a)(1) conduct attributed to Fleming. The sheer volume of con- frontations, joined with the lapse of time, have made it difficult for the trier of fact to develop a sense of confi- dence in the capacity of witnesses to recall precise words used in their precise order. Nonetheless, credible evi- dence establishes persuasively that Fleming routinely taunted employees throughout both campaigns with the likelihood of job loss, seldom supporting his antiunion diatribe with reference to the BCOA contract or Benja- min's inability to afford union proposals. An emotional man, with limited interest in self-control, Fleming be- lieved strongly that ultimate victory for the Union would spell absolute doom for Benjamin Coal.48 It was entirely unlikely that a man of his proclivities would make his point only after cautious selection of words and ideas. On balance, persuasive evidence imputes a pattern of conduct to Fleming, consisting of frequent emotional references to his own view that Benjamin would close down, fail, lease, or file for bankruptcy in the event of unionization. I also believe that in order to highlight the futility of organization, he often stated that Benjamin would not sign a contract In the circumstances, on the totality of the credible testimony, it was my impression that his inflammatory remarks are not lightly to be ex- cused because often made as part of an ongoing debate with employees, who freely exchanged their views. They were coercive and unlawful, and evidenced a repetitive pattern of coercive conduct proscribed by Section 8(a)(1).49 I so find. According to the General Counsel, Fleming, in addi- tion to the above, engaged in other conduct violative of Section 8(a)(1). Thus, Ed Thompson, testified that 2 days 41 Along this line, Fleming admitted that he probably had asked Mul- hollen, in the presence of Craig Moyer, where Mulhollen would find a job if Benjamin could not afford the BCOA contract and had to shut down He also admitted to asking Young how he would make his house payments and where he would get a job at his age 48 Fleming testified that in discussing the UMWA with the employees his own feelings were as followed "I felt my job was on the line and their job was on the line, and I have done to the best of my ability to do what I could do " 49 The violations found are limited to threats of job loss, shutdown, bankruptcy, etc , and statements that Benjamin would never sign a union contract References, however, to the inevitably of strikes must be con- sidered from the standpoint of the history of adversity confronting Re- spondent economically together with the probability that the UMW could settle for an agreement which Respondent could absorb financially Just as Fleming was privileged to refer to the likelihood that Respondent would close if forced to accept the BCOA, he was privileged to proclaim that such demands would produce a strike No violation is predicated on his conduct in this regard 589 prior to the second election, Fleming approached him stating: I can't tell you Mr Benjamin said this but I can bet, I'll bet you my paycheck, that if the union is voted down this time we'll get our days off back that they took from us, we'll get our 10% . . . . Fleming denied making any statement that the cuts of August 1983 would be restored. I believe Thompson. Since the comment was lacking in justification in prior practice, and on its face constituted a promise of benefit on rejection of the Union, Respondent thereby violated Section 8(a)(1) of the Act. Fleming's inability to control his hostilities toward UMWA was evident in conduct which transcended verbal threats and warnings as to the futility of organiza- tion. First, the complaint alleges an 8(a)(1) violation based on the method by which he removed a prounion sign from company premises. It appears that during the hunting season in 1983, apparently just after the first election, a prounion sign appeared on a jobsite, attached to a telephone pole high above the ground. Fleming used his shogun in an attempt to blast it away. After firing 25 shells, Fleming repaired to his son's car where he ob- tained more ammo, again loaded, firing three or four more rounds before running out of shells. Apparently, then, Fleming gave up without having completely de- molished the sign As concerns the issue of legality, the General Counsel does not dispute that Respondent had the right to remove the posting. As stated by the Gener- al Counsel, "here, the violation consists not in the re- moval of the sign, but in its destruction." Authority does not support the General Counsel's position. In this case, the posting of Respondent's property was neither lawful nor protected and in the circumstances, the self-help ex- ercise by Fleming neither directly nor indirectly tended to impede employees in the exercise of any rights guar- anteed by Section 7 of the Act. Cases such as Pullman Trail Mobile, 249 NLRB 430 (1980), and Servico Protective Covers, 199 NLRB 977 (1980), involved destructive acts addressed to protected activity, i.e., a grievance in the former and picket signs used in conjunction with a lawful strike in the latter. Nonetheless, the inability of Fleming to constrain him- self was evident in that incident and several others. Thus, Ed Thompson testified that after the first election, but before the rerun, Fleming asked Thompson where he would look for a job when the Union came in. As the conversation continued, Fleming said that if the Union comes in and Fleming loses his job, Thompson would not have a house because he would burn it down. Ac- cording to Thompson, Fleming also threaten to shoot his wife and the tires off of his car. Fleming admitted threat- ening to burn down Thompson's house, but denied any threats addressed to Thompson's wife or car. I believe Thompson and these threats of violence, all addressed to Thompson's prounion leanings constituted coercive con- duct violative of Section 8(a)(1). I so find.50 so As shall be seen infra, Respondent also violated Sec 8(a)(1) of the Act following the second election through Fleming's additional threat to Thompson and his physical assault of employee John Young 590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD b Bill Ricketts Ricketts was highly active in the effort to impress em- ployees with the hazards of unionization. In this connection, Willis Maruna testified that after the Union's victory in the first election, Ricketts stated that everyone would be losing his job, as the Company would have to close its doors because it could not afford the BCOA contract. Ricketts acknowledged having made the statement. Based on the Board's recent decision in Clintonville Shoe, supra, and related cases, this state- ment is deemed a protected exercise of the Employer's right to present antiunion argumentation as contemplated by Section 8(c) of the Act. The 8(a)(1) allegation in this regard shall be dismissed. In a similar vein, Terry Howe testified that in March 1984, dust prior to the second election, Ricketts, in the presence of five or six other employees said that they would soon be voting, that the men knew how they should vote, because Benjamin would not sign a con- tract, he could not afford the union royalties, and he would shut the doors because he could not afford it Here, again, Clintonville Shoe is deemed controlling, and the allegations that Respondent violated Section 8(a)(1) in this respect shall be dismissed. Although Ricketts testified that in mentioning the pos- sibility of closedown, he always qualified his statements specifically to reflect that the Company was unable to afford additional expenses, the BCOA, or the Union's royalty payments, employees Harpster, Kunsman, and Ruffner all testified to unqualified statements by Ricketts in this respect. First, Harpster testified that prior to the first, and again between elections, Ricketts repeatedly stated that "Dave wouldn't sign a union contract . he would shut the door if the union got in . . . he wouldn't even bargain with them." According to Harpster, Rick- etts reasoned "Dave was in his 60's "he didn't need that kind of stuff, he would just close the doors." Harpster also recalled that when employees asked what would happen if the Union demanded to allow conditions to remain as they were, Ricketts would respond, "Dave wasn't going to pay the union royalties and stuff on the coal . he just wouldn't sign a union contract, that he was the boss and that's the way he wanted it."5 i Harp- ster was not regarded as a particularly trustworthy wit- ness. As other witnesses for the General Counsel ac- knowledged, Ricketts followed a pattern of qualifying his remarks, and though it is possible that he may have departed therefrom on occasion, I am unwilling to find that he did so on the basis of testimony of Harpster. Kunsman and Ruffner also implicate Ricketts in an un- qualified threat that David Benjamin would close and refuse to sign a contract 3 weeks before the second elec- tion. Their testimony was not entirely consistent. Thus, Kunsman related that he was working while Ruffner and Ricketts were engaged in a discussion concerning the Union in which Ricketts said "no way would Benjamin sign a contract . he would close the doors " Accord- ing to the account of Kunsman, he was not a participant in the conversation but was simply "eavesdropping." Ac- cording to Ruffner; however, the conversation" was be- tween Kunsman and Ricketts, with Kunsman stating that everything will be taken care of on 14 March, to which Ricketts responded, "No way would Benjamin sign a contract . . . he would close the doors " Although Ruffner testified that Ricketts did not refer to any specif- ic contract, Kunsman testified that he "didn't hear" whether such a reference was made Considering the ma- terially discrepant nature of the testimony offered in sup- port of this allegation, the testimony of Kunsman and Ruffner is rejected. Accordingly, the 8(a)(1) allegation in this respect shall be dismissed. Beyond the foregoing, it is also alleged that Respond- ent violated Section 8(a)(1) through Ricketts' request that Timothy Mazenko remove union literature from a company truck Ricketts admits to having asked Ma- zenko to remove the literature and that the latter imme- diately complied. In contrast, a number of witnesses tes- tified that they were permitted without restriction to maintain literature in company vehicles Consistent there- with, Respondent apparently had no policy against em- ployee retention of literature unrelated to their work in their vehicles. The General Counsel correctly observes that Respondent was not free to single out union litera- ture and instruct an employee as to its removal. Under existing Board policy, it is unlawful to impose disparate restrictions on prounion literature See Stanley Furniture Co, 244 NLRB 589 fn 1, 592 (1979) Indeed, the Board has gone so far as to hold that "under Section 7 employ- ees generally have a protected right not only to possess, but also to display, union materials at their place of work, absent evidence that Respondent restricted em- ployee possession of other personal items or that posses- sion of union materials interfered with production or dis- cipline." See Dillingham Marine, 239 NLRB 904 (1978), enfd. 610 F 2d 319 (5th Cir 1980). Accordingly, Re- spondent violated Section 8(a)(1) of the Act by Ricketts' instruction that Mazenko remove the union literature. c. Bert McGarvey With corroboration from Terry Lender, Richard Byers testified that on the morning of the day immediately fol- lowing the first election, McGarvey opened a conversa- tion, station: "Where the hell is a 50 year old man sup- posed to find a job?" Byers responded with a query as to where 117 men would find jobs, a number representative of the group already laid off McGarvey responded that "there'd be no one working here by March or April."52 McGarvey offered a quite different account of the con- versation. He denied that anything said related to the Union but simply consisted of discussion with Byers as to the number of men that had been laid off. McGarvey claims that he simply made the comment that "if they keep laying off there will be nobody working there by April or May." Overall, the account Byers and Lender were viewed as the more impressive Although on their 52 Lender testified that McGarvey added that "Dave Benjamin was a 5' Harpster was the only witness who related that Ricketts said that man of his word and he believed him" in forecasting that no one would Benjamin would riot pay the royalties All others indicated that Ricketts be working by the following spring Byers failed to confirm that this oc- said that Benjamin could not afford the royalty curred and to this extent Lender's testimony has been disregarded BENJAMIN COAL CO version, the Union was not mentioned, the Union's victo- ry the day before appeared to furnish a sufficiently plau- sible explanation for McGarvey's off-handed reference to job loss to warrant the inference that it violated Section 8(a)(1). I so find Byers also credibly testified that prior to both elec- tions, on three or four occasions, McGarvey told him that Benjamin would never sign a contract with the Union. McGarvey denied making the statements. In this instance, I am willing to give McGarvey the benefit of the doubt Although McGarvey was not the most per- suasive witness, Byer's uncorroborated testimony in this respect seemed too pat, and is unacceptable as a reliable recantation of what occurred. I did not believe him. Ac- cordingly, the 8(a)(1) allegation in this respect shall be dismissed. Gary Hess testified that on about a half dozen occa- sions before the first election and about 10 times prior to the second, McGarvey, after union meetings, would come in on Monday mornings and say "Well, did any of you fellows go to the union meeting?" Hess admitted to attending but, on further inquiry by McGarvey, declined to disclose what had transpired. McGarvey was not ex- amined as to these incidents. Based on the credited testi- mony of Hess, I find that the interrogation was not shown to have been accompanied by legitimate purpose, and occurring as they did, in the context of a vigorous antiunion campaign, the incidents are deemed coercive and violative of Section 8(a)(1) of the Act. d Darrell Jefferies Employees John Lescallect and Charles Hutton testi- fied to incidents in which Jefferies told them that Benja- min would never sign a contract. According to Lescal- lect, in December or January 1984, Jefferies asked why the men had selected the UMWA, rather than some other union, but then told Lescallect that in any event, "Dave would not sign a contract " Jefferies could recall only one conversation with Lescallect during the time- frame in question. According to him, in discussing the Company's inability to buy rags because it could not meet C 0 D. requirements of a vender, Jefferies told Lescallect "if we can't afford rags, how can we afford the Union." I believed Lescallect, and based on his testi- mony it is concluded that Respondent violated Section 8(a)(1) through the declaration that union representation would prove futile The probability of Lescallect's testi- mony is hardly undercut by Jefferies' admission that he occasionally said that David Benjamin could not afford any kind of union contract, though not necessarily to Lescallect, that he had been told at foremen meetings that if the Company was forced to take on more ex- penses it could not afford to operate, and that it was his perception that if the Union came in it would automati- cally mean more expenses. Whatever his reservations, I find that they went unexpressed to Lescallect. Charles Hutton testified that between the elections, Jefferies told him that with respect to the Union "Dave just couldn't afford it and if it got any where near he would shut the place down " After another incident oc- curring a few days before the second election, he claims that he was approached at work by Jefferies who stated, 591 "I want to talk union." According to Hutton, Jefferies said, "Dave will never sign a contract if it comes to union and if union got in he would shut the place down." Jefferies denied making any such statements to Hutton. On cross-examination, Hutton acknowledged that Jefferies also stated that the time was not right for the Union and that Dave Benjamin could not afford it. On consideration of Hutton's testimony, it was my im- pression that there was more to the conversation than he related and that the risk was great that he was passing on his interpretation of what was said, rather than the com- plete argumentation made to him In these circumstances, it is only fair to assure that the statements made were ac- companied by expressions as to the inability of David Benjamin to afford the Union's demands and, hence, it is concluded that these remarks were protected by Section 8(c) and not violative Section 8(a)(1). See Clintonville Shoe, supra Joe Mazenko testified that on 3 March 1984, he was approached by Jefferies while working, who informed him as follows: "Joe, I think that after this thing goes UMWA that Dave will start laying off people" Ma- zenko allegedly asked what he meant, but Jefferies de- clined to elaborate. In addition, Jefferies in the same con- versation assertively expressed the feeling that people were voting for the Union to get even with Benjamin, with Jefferies adding "when this thing is over I intend to get even with some people too " Jefferies testified that he did not "remember" saying anything like that to Ma- zenko As against Jefferies, I believed Mazenko Based on his credited testimony, I find that Respondent violat- ed Section 8(a)(1) by threats of layoff and reprisals in connection with union activity e Thomas Lemmon According to Gordon Frano, the day after the Union's victory in the first election, he asked Lemmon what Lemmon thought now Lemmon responded "this is the beginning of the end for Benjamin Coal Company," ac- knowledging that something had to be done, "But, Good God, not the United Mine Workers " Later, in February 1984, according to Frano, Lemmon allegedly remarked, "We'll end up just like the A & P stores Dave will shut down and reopen under another name and all will be out of work " Although Lemmon was not examined as to these specific statements, strong reservations were held as to the credibility of Frano. The latter provided three separate preheating affidavits to the General Coun- sel, each of which omitted these highly salient conversa- tions. There being no explanation for these omissions, they are difficult to discount as innocent oversight. In the circumstances, although Frano was an incumbent employee at the time he testified, his uncorroborated tes- timony is regarded as too unreliable to furnish a predi- cate for unfair labor practice findings. The 8(a)(1) allega- tions in this respect shall be dismissed. Wayne Anderson testified that I or 2 weeks before the second election, Lemmon, in the midst of a general con- versation, stated that the Company would shut down if it went Union Lemmon testified that the only thing he might have said was that the Company could not afford 592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the extra expense of having a Union. On balance, I was inclined to give him the benefit of doubt and based on his testimony and the Board's position in Clintonville Shoe, supra, this was a proper expression, particularly in the light of the ' Company's financial position and de- mands likely to be made by UMWA in view of econom- ics in the coal industry f. William Cameron According to the testimony of Edwin Daugherty, shortly before the second election, Cameron inquired as to what Daugherty thought about the Union. To that point in time, Daugherty had made no public display of his union sentiment . Daugherty was an incumbent em- ployee, whose testimony, was not viewed as a by-prod- uct of imagination. The interrogation being unaccompa- nied by any legitimate purpose, waged in the course of a vehement antiunion campaign, was coercive and viola- tive of Section 8(a)(1) of the Act. g. Delwyn Fry On the face of the pleadings, an issue was raised as to the supervisory status of Fry. Contrary to the Respond- ent, I find merit in the General Counsel's position that he was a supervisor at all times material, and that unlawful conduct committed by Fry was binding on Respondent. Thus, undisputed testimony establishes that his title was shop foreman, and that nine employees reported to him. Like other supervisory personnel he wore a white hat and was allowed use of a company truck. He inter- viewed job applicants, granted time off, evaluated and reviewed evaluations with employees, assigned work to mechanics, transferred mechanics between jobs, and as- signed overtime. This evidence being uncontroverted, it is concluded thereon that Fry possessed statutory indicia of supervisory status, and was held out by Respondent to the employees as a representative of management as Paul Smochek testified that, prior to the first election, Fry in a conversation with another employee in his pres- ence, referred to Smochek as a man "willing to vote his job away " Thereafter, on the morning after the first election, Smochek was sweeping the floors while Fry was standing around talking to others about the Union's victory. According to Smochek, Fry stated "just like your job Paul, it could be done now." Fry provided no forceful denial that these remarks were made, but simply indicated that he could not remember doing so. Indeed, any challenge to Smochek must be considered in light of Fry's admission that he could have told a Board investi- gator that he might have made the statements in ques- tion. I credit Smochek. Accordingly, Fry's remarks vio- lated Section 8(a)(1) of the Act as linking a prounion vote with job loss. h. Floyd Fishel William Clark, an employee on payroll status at the time he testified, related that his foremen, Floyd Fishel, on at least a half dozen occasions during the second cam- paign stated, "If the union comes in Dave Benjamin 53 Fry testified but offered no comment as to his supervisory status would shut down and we would all be out of a job." Fishel died prior to the hearing and, although uncontra- dicted, I am reluctant to credit Clark Fishel has not been implicated in any broad pattern of conduct which would envelope this accusation. Clark's testimony is of- fered in "shot gun fashion" with only the most general description of the surrounding circumstances, and with- out comment as to what else might have been said in these several confrontations. Though his testimony sug- gests that many other employees would have heard these remarks, if made, his testimony was allowed to stand un- corroborated. In the total circumstances, particularly the fact that these statements may or may not have been le- gitimate depending on their entire content and the exact words used by Fishel, I am reluctant to consider the lim- ited evidence offered by the General Counsel as a credi- ble foundation for finding the 8(a)(1) violation in this in- stance. i. Harry Benjamin Greg Bell testified that on 16 January 1984, while he was on layoff, he met with Harry Benjamin to protest the fact that employees junior in service to him were still working. In the course of their conversation, Harry Ben- jamin allegedly stated, "If this had been a couple of years ago, there would have been no problem But right now, we have been operating in the red and if the union comes in we'll have to close the doors." Harry Benjamin admitted to a conversation with Greg Bell concerning his layoff and further acknowledged that, while there was discussion about the Company's financial condition and as to the reasons behind his layoff, there was no dis- cussion about the Union. Bell's testimony did not ring true, and the 8(a)(1) allegation based on this testimony shall be dismissed. j Chad Hannah Two employees, John King and William Johns, testi- fied that during the period preceding both elections, statements were made by Hannah to the effect that Ben- jamin would never sign a contract and that he would close the doors. Both relate that no reference was made either to the BCOA contract or the "green book." Hannah admitted to advising employees simply that the Company could not afford the BCOA contract, and that Benjamin would have to shut down if he sustained more expenses. I would note in this connection that a witness for the General Counsel, employee Kerry Lewis, con- firmed that several weeks before the second election, he had a conversation with Hannah that if the Union got in, the Company would just go bankrupt, they could not afford it, and would shut down. Under the Board's recent decision in Clintonville Shoe, supra, the require- ment that the General Counsel present specific proof as to the precise words used to support an 8(a)(1) threat has achieved heightened significance. The exculpatory words "could not afford" appear to be determinative, and I was not persuaded that this point was not made by Hannah in the conversation with Johns and King. Accordingly, as to the critical issue, the testimony of the latter is regard- BENJAMIN COAL CO ed as unreliable, and the 8(a)(1) allegations based thereon are dismissed. k. Donald Hutton During the period prior to both elections, Hutton, as Respondent's superintendent, reported directly to the Benjamins Coercive conduct was attributed to him by a number of witnesses for the General Counsel prior to both elections. Thus, Charles McCombs and Thomas Pennington testified to statements that Benjamin would never sign a contract and, if unionized, would liquidate and go out of business. In addition, Hutton allegedly told Tom Mahaffey after the UMWA's victory int he first election, that he did not care what the results of the elec- tion had been, David Benjamin would not sign a con- tract. In accordance with his position, Hutton entered a $100 wager with Mahaffey that the Company would never sign a contract with the Union. In like vein, Wil- liam Buck testified to another incident after the first elec- tion wherein Hutton offered to bet $1000 that Respond- ent would never sign a contract. Edward Barrett Jr., an incumbent employee at the time he testified, related that Hutton stated during a period prior to the second election that even if the union were to win the election, "Dave Benjamin would shut the doors, and we would all be out of work." According to Barrett in another conversation, Hutton made the same point, this time indicating that "Benjamin would just file bankruptcy and that would just end it all." As was true of other witnesses for the General Counsel, Barrett attributed the remark to Hutton that "Dave Ben- jamin would not sign a contract " Thomas McCracken testified that during the period between elections, in a bar in the LaJose Hotel, on 14 February 1984, Hutton made the point that conditions were "rough" at Benjamin, and that he was looking for a job. To this, McCracken inquired whether Benjamin was planning to get rid of Hutton, whereupon Hutton replied in the negative, going on to state, "if the company goes union on the 14th . . . Dave would close the doors" Later, on 5 March 1984, Hutton again commented on his job search, ultimately stating that if the second election resulted in a union victory, "he'd have to leave and look for another job because Dave would close the doors "54 Hutton admittedly talked to a lot of people about the Union, but avers that he simply told the men that the Company "could not afford any contract, no matter what it was, if it increased costs to the Company." On the total record, taking full account of my assess- ment of Hutton and the surrounding circumstances, I, re- garded the mutually corroborative testimony exacted from witnesses for the General Counsel as more reliable than the assertions by Hutton that, in each and every in- stance, he referred to Benjamin's inability to afford a contract or increased expense in uttering the devastating effects of unionization. I do not believe that he was so thorough in his dialogue, but instead I am convinced that he informed employees, repeatedly, and in unqualified 54 Hutton admitted to telling McCracken in the LaJose hotel that if the operation went union "that that's goin' to be the straw that broke the camel's back " 593 terms, prior to both elections that Respondent would close if the Union were designated, and that the com- ments outlined above violated Section 8(a)(1) of the Act In a further allegation, Respondent, through Hutton, is charged with having made an illicit promise of benefit Thus, employee Ronald Wright testified that dating back to the period preceding the first organizational campaign he had been trying for reassignment for an oiler position to that of a loader operator. He testified that on or about 8 March at the LaJose hotel he asked Hutton if he was aware of any vacancy in the loader classification and if he could be transferred to such a position Wright, with corroboration from employee Thomas McCracken, went on to testify that Hutton responded that he could do nothing at the time, but if the employees voted "NO" he would be able to maintain his position as'superintendent, and "that way he will be able to do something." Hutton acknowledged that every time he saw Wright the latter would ask about the transfer, but claims that his answer was always, "I'll see what I can do." I believed Wright, and based on his testimony I find that Respondent violat- ed Section 8(a)(1) of the Act on Hutton's implicit sugges- tion that if employees rejected the UMWA, Wright's prospects for reclassification would be improved. 1. David Peace Employee Ronald Wright testified that he also had conversations with Dave Peace concerning his request for a job transfer. Thus, he claims that prior to the first election, Peace continually put off his solicitations, but, about a week before that election, when the issue was again raised, Peace said that the Company would make no move until after the election, that they would wait to see if the Union were voted in, and that if it were, David Benjamin would shut it down and "there would not be no company to work for anyway." Wright also testified to a further incident just prior to the second election, when he asked about the transfer, whereupon Peace, in the presence of Larry Johnson, a coworker, said that they would just have to wait and see how the. second election turned out because "he'd shut the doors if it went union."55 Peace did not deny that he had discussed the campaign "quite a bit" with Wright. He denied ever having made the statement "close the doors,",but claims that he told Wright, just like all other employees, that "if he [David Benjamin] couldn't afford it, he would close the doors." Peace denied ever saying that closure would be occasioned just by designation of the UMWA. Peace's account impressed as an argumentative response to forth- right testimony, which was detailed and wholly believ- able. I credit Wright, and based on Peace's threat, con- clude that Respondent further violated Section 8(a)(1) of the Act. Employee Lawrence Johnson testified that Peace, prior to the second election, in the presence of other em- ployees, stated that David Benjamin would not sign a contract and that if the Union came in, Benjamin would ss No one by the name-of Larry Johnson testified A Lawrence John- son, as shall be seen , who was supervised by Peace, did testify to certain statements made by the latter, but did not mention any incident resem- bling that described by Wright 594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD shut the doors. On cross-examination, Johnson conceded that, on the occasions in question, Peace said more than the few words he attested to, however, he could not recall the additional comments, and for that matter, he had no recollection of the exact words used by Peace. In the circumstances, for reasons heretofore expressed as to the importance of the precise language used to proper application of Section 8(c), the instant 8(a)(1) allegation shall be dismissed as not supported by reliable proof. Employee John Schaffer testified to a conversation with Peace prior to the second election, whereupon Peace, after a meeting conducted by Dave Benjamin stated to a group of employees, "Dave would not sign a contract " Peace could not recall making such statement. The testimony of Schaffer is not considered a reliable predicate for an unfair labor practice finding. He testified that the conversation with Peace was witnessed by sev- eral other unidentified' employees. While acknowledging that the discussion continued for a period of 5 minutes, he remembered nothing else about it In these circum- stances, I do not regard his testimony as a competent ex- pression of precisely what occurred. The 8(a)(1) allega- tion based thereon is dismissed. Kenneth Bee testified to an incident prior to the second election in which Peace allegedly remarked that if the Union goes in "Dave is shutting the doors, and that 'Mr. Benjamin would never sign a union contract.' Bee described a second conversation shortly before the second election involving six to eight employees, in which Peace stated that if the Union goes in, David Ben- jamin would shut the doors' and there is no way he would ever sign a union contract. Bee's prehearing affi- davit included 'no reference to any such statements."56 With respect to the first incident, Peace denied that it was made, relating that he was asked by another employ- ee Ron Bennett, as to what would happen if the Union was voted in. Peace claims that he responded that if Ben- jamin could not negotiate with them, and work some- thing out, he would just close the doors As for the second incident, Peace could not recall having made such a statement, but denied ever telling the men that they would lose'their jobs under such conditions. In this instance, there being no clear corroboration of Bee, I am inclined to give Respondent the benefit of the doubt. Ac- cordingly, in light of the General Counsel's failure to substantiate the allegations in this regard by credible proof, the 8(a)(1) allegations based thereon shall be dis- missed A former employee, David Leasure, testified that shortly after the first election he requested Peace's "per- sonal opinion" as to what would happen if the Union won. According to Leasure, Peace responded by indicat- ing that "he thought that if Mr . Benjamin wouldn't get a re-vote that he . . . couldn't afford the union, and that he would have to close the doors." Peace's sworn re- sponse was as follows "we talked so many times . . . I don't remember anything like that." Even were I to credit Leasure, the clear import of the statements imput- ed to Peace was that the Company could not afford 56 Ron Bent , an employee, identified by Bee as witnessing the incident, was not called by either party union demands. Accordingly, it was legitimate argumen- tation protected Section 8(c) as contemplated by Clinton- ville Shoe Co., supra. The allegation in this respect shall be dismissed Albert Bell testified that in December 1983, Peace stated that "they eventually wouldn't be able to afford the union, if it went in, and that the Company would close if it went union." Two other employees, Tom Hutton and Jim Robaugh, were named as present, but neither was examined in that regard. Although Peace could not recall making the comment, here again, the statement would appear to be privileged argumentation protected by Section 8(c). The independent 8(a)(1) alle- gation in this respect shall be dismissed. in. Ronald Shultz As heretofore indicated, during the period preceding the first election, employees Kunsman and McCracken were subjected to illicit threats of shutdown by Schultz. Other witnesses implicate him in similar misconduct during the period preceding the second election Thus, John Potter testified that shortly before the rerun elec- tion, at the LaJose Hotel, Schultz, together with Don Hutton, made statements "that the company would never sign a contract and they would just close up." Schultz was not questioned as to this specific incident, but indi- cated generally that he could not recall making any statement that Respondent would shut the doors. Potter, whose testimony conforms with that of other 'credible witnesses showing that Schultz and Hutton engaged in a pattern of unlawful intimidation, is credited Based on his testimony, I find that Respondent violated Section 8(a)(1) of the Act Edward Barrett testified that in late February or early March 1984, at the LaJose Hotel, Schultz stated that Dave Benjamin would not sign a contract regardless if the Union won or what happened and, he would just file for bankruptcy and that would be it I credit Barrett and, based on his testimony, it is concluded that Respondent violated Section 8(a)(1) of the Act Robert Sheeder, an incumbent employee at the time he testified, related that on a dozen occasions prior to both elections, Schultz, his foreman, stated that Benjamin "would shut the place down . he wouldn't accept the Union " According to Sheeder these statements were made both at work and after work at the LaJose Hotel. Schultz also allegedly stated that he had worked for Re- spondent for 22 years and he knew tht Benjamin would never accept the Union. Schultz testified that he could not remember what he said in what conversation inas- much as he talked to his men "two dozen times apiece." Nonetheless, he claims to have told Sheeder "that if Mr. Benjamin had to operate under contract, and was in the financial shape he's in . . . why he couldn't stand any extra cost . . . he'd have to go out of business." Here again, I did not believe that the Schultz' remarks were so finely honed, and the testimony of Sheeder was believed. I find that, Respondent thereby threatened employees with closedown in the event they designated the Union under conditions violating Section 8(a)(1) of the Act. BENJAMIN COAL CO n. Ernie Smeal Employee Charles Dillon testified that he had a single conversation with Ernie Smeal concerning the Union It allegely took place within a week of the second election. Dillon claims that Smeal stated, "Dave would never sign a contract with the UMWA." However, he had no inde- pendent recollection of anything else said by Smeal. Indeed, when refreshed on cross-examination, he admit- ted that the remark was not made to him, but that it was overheard in a conversation between Smeal and another employee, Kitko, which was in progress when he arrived on the scene.57 Considering my reservations as to the ca- pacity of Dillon for recall, and the strong possibility that he may not have overheard exculpatory statements by Smeal on the occasion in question, I consider his testimo- ny as an unworthy foundation for an unfair labor prac- tice finding, and hence shall dismiss the 8(a)(1) allegation based thereon. o Sara Mahaffey The complaint alleges that Respondent violated Sec- tion 8(a)(1) through promises of benefit by Sara Mahaf- fey during the period prior to the second election. Pre- liminarily, Respondent denies that Mahaffey was an agent or representative, whose conduct was binding on it. With respect to the threshold issue of agency, it is noted that Mahaffey is a long-term employee of Re- spondent having been hired some 22 years prior to events in issue here Her position is that of a payroll clerk, a task involving responsibility for maintenance of Respondent's payroll and benefit programs. In this ca- pacity, she had access to all of Respondent's payroll records and personnel files It does not appear, however, that she supervised employees. Although Respondent argues that her functions with respect to the pension plan are purely administrative and that she had no au- thority to make decisions regarding the terms thereof, it is clear from her own testimony that she is in a position alone, to make interpretations under the plan which could result in denial or confirmation of an applicant's eligibility. Mahaffey also testified that she would correct and resolve, on her own, complaints about payroll dis- crepancies During the period between 1967 and September 1983, Mahaffey served as trustee under Respondent's pension plan. A pension booklet distributed to employees identi- fies her as a trustee. Although during the critical period after the Union's election petition was filed, David Ben- jamin removed her from this position-an act not other- wise explained on this record-the employees were not formally notified of this status change and indeed Sara Mahaffey only learned of it herself a year after her al- leged removal, some 2 weeks prior to the opening of the instant hearing in October 1984 Of the critical import to the issue of agency is the fact that prior to the second election, at the direction of the Benjamins, in January and February 1984, Sara Mahaffey alone conducted 10 to 12 employee meetings at various 51 Krtko was not called as a witness by either party 595 sites. The meetings were unprecedented, and, according to Mahaffey, she assumed that they were needed because "the men needed to know about the benefits so that they could honestly vote correctly." Attendance was compul- sory, with employees instructed to attend An attendance roll was taken at each, and a catchup meeting was held for those who missed that scheduled for them At the meetings, Mahaffey discussed, and answered questions concerning the Company's overall benefit program The unfair labor practices, which the complaint at- tributes to Sara Mahaffey, are limited to statements she made concerning the impact of unionization on the Com- pany within the realm of her duties as the Employer's representative for the purpose of administering the pen- sion fund. Under Board law, agency status is not depend- ent on the existence of precise delegation of specific authoirity, but it is sufficient that apparent authority be conferred under conditions enabling employees to con- clude reasonably that Respondent was in fact speaking through the alleged agent. See, e g., Enterprise Aggregates Corp., 271 NLRB 978 fn 18 (1984). There can be no question, on the face of this record, that Sara Mahaffey was held out by Respondent as its expert in the field of benefit administration, and employees rightfully could rely on her statements and actions, while serving in that capacity, as binding on the Company. Accordingly, at all times material, she is deemed to have acted as an agent of Respondent within the meaning of Section 2(13) of the Act. According to John Ruffner, Sara Mahaffey at one of the benefit meetings in response to questions concerning Respondent's pension plan, indicated that changes were possible, that upgrading the plans was intended, but that it could not be done because they were "locked into ev- erything" in view of the union campaign Mahaffey went on to state that if the Union lost, they had planned to upgrade the pension, adding that if the Union won, the pension plan would be dissolved Another employee, Terry Miller, attended one such meeting and confirmed that in the course of explaining that plan, Sara Mahaffey said that it was to be revised after the election, but that if the Union won, employees would be covered by the very unstable UMWA pension plan. She indicated that modifications would relate to (1) the number of hours one had to work in a year to get pension credits,58 and (2) lowering the age requirement establishing eligibility for annual pension credits.59 Richard Diehl testified that at the meeting he attended, Sara Mahaffey stated that if the Union did not get in they were going to revise the pension plan and a new booklet describing the plan would be distributed. 58 Although the pension handbook included a minimum hour work re- quirement necessary to achieve full pension year credit, according to Ma- haffey this requirement was disregarded in practice and credits were ac- corded historically irrespective of the actual hours that were worked during a particular year ss Under written eligibility requirements, pension credits could only be accumulated after the worker reached the age of 25 Thus, those hired at 18 would accumulate no benefits for 7 years According to Miller, Sara Mahaffey indicated that a change was contemplated whereby the credits would be accumulated from the first day of employment, irrespective of age 596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In addition to the foregoing, Joseph and Timothy Ma- zenko attributed similar statements to Sara Mahaffey out- side of the aforedescribed meetings. According to their testimony, on a day following their meeting, they went to her office and requested to see a copy of the master pension plan in order to compare it with the manual dis- tributed to employees. At the time, according to their mutually corroborative testimony, Sara Mahaffey stated that after all this union business is over Dave would probably update and improve the pension plan. Joe Ma- zenko added that Sara Mahaffey told him that if the Union got in, Dave Benjamin would probably terminate the Company's plan.60 Sara Mahaffey denied that she ever stated that the pension would be upgraded. She testified that she simply told employees that the pension booklet would be re- vised after the union issues were resolved to reflect the exact manner in which the pension had been adminis- tered historically. She indicated that many of the require- ments set forth in the booklet had not been followed Mahaffey's explanation in this respect was uncorroborat- ed, and basically she did not impress me as a truthful witness. Based on the credited testimony of the Mazenkos, Ruffner, Miller, and Diehl, I find that Sara Mahaffey during the critical preelection period preceding the second election told employees that if the Union were defeated, their eligibility for pension benefits would be liberalized but that if the Union won, that plan would be terminated. As stated by the Third Circuit Court of Ap- peals in NLRB v. K & K Gourmet Meats, 640 F 2d 460, 466 (1981): [E]mployer discussions of potential benefits during a union organizing campaign creates an inference that the benefits do not come without strings attached That inference becomes more perceptible where . . . the proposed benefits are different not only in degree but in kind from those presently enjoyed by the employees. Respondent thereby violated Section 8(a)(1) of the Act. Sara Mahaffey was also a key figure in a reversal of position with respect to a disappointed pension applicant. Thus, John Leasure, while working on the job for Re- spondent, had a stroke on 29 March 1981. This occurred shortly before his 62d birthday on 15 May 1981. In con- sequence, he was deemed permanently disabled; he never again worked for Respondent. Thereafter, during 1981, John Leasure's wife and his son, David, on several occasions, inquired of Respondent concerning his pension.6 i He was declared ineligible. 80 Sara Mahaffey while denying that she made statements to the effect that the plan would be upgraded, admits that she told Mazenko that if the Company went Union, Benjamin would probably terminate the plan She explained that this was based on her understanding that he could not have two plans at the same time See, however, Winn-Dixie Stores, 224 NLRB 1418 (1976), Kroger Co, 164 NLRB 362 (1967), enfd 401 F 2d 682 (6th Cir 1968) S' David Leasure continued to be employed by Respondent during the organizational campaign According to David, Leasure, conflicting explanations were assigned for his ineligibility. Thus, according to his mother, Sara Mahaffey had indicated that John Leasure was not entitled to a pension because he was on social security disability, while Sara Mahaffey had informed David Leasure that he was disqualified because the dis- ability was incurred and his employment lasped prior to his 62d birthday. Having met with no success, in 1981, David Leasure and his mother dropped their effort to secure benefits under Respondent's plan. However, according to David Leasure, prior to the second election, he had a discussion with Sterry Mahaf- fey concerning BEAU. When the former asked why Leasure was pushing the UMWA so hard, Leasure raised the denial of his father's pension. When Mahaffey at- tempted to explain that it was because his father had qualified for a social security disability, Leasure disputed this. Thereafter, Sara Mahaffey, the mother of Sterry, and herself a founder of BEAU, at the conclusion of one of the benefit meetings in 1984, informed Leasure that his father's pension had been approved. Indeed, beginning with the 1 August 1984, pension benefits were paid to John Leasure, retroactive to 1981. There is no evidence of any change in status of John Leasure, affecting his eli- gibility for the plan between 1981 and 1984. The sole explanation for this reversal was offered through Sara Mahaffey. According to her testimony, John Leasure at the time of his stroke was 61 and hence missed the minimum age limit of 62 for retirement by 2 months. He also had less than 10 years' service with Re- spondent. Under the pension plan, without 10 years of service, no benefits are available unless employment is terminated after reaching the age of 62. According to Mahaffey, she was troubled by John Leasure's ineligibil- ity "from the day that it happened." She claims that after a contact from the plan's actuary in early 1984 concern- ing another employee, she inquired whether sick benefits ministered to John Leasure prior to his 62d birthday could be counted for retirement purposes. Later, she learned that the sick benefits did count and that John Leasure was in fact eligible for retirement Sara Mahaffey claims that she did not discuss the ques- tion of John Leasure's eligibility with any other repre- sentative of management. Respondent in its brief argues that "it would be abhorrent to charge the company with misconduct in this instance for what was truly an act of compassion." However, the issue does not turn on whether the grant of benefit involved an act of munifi- cence, or its social acceptability, but whether it was granted for the purpose of interfering with employee choice during an impending election. Under established Board policy, the burden is on Respondent to disassoci- ate this benefit from any desire on its part to influence employee choice during the organization campaign. See, e.g., Dravo Lime Co., 243 NLRB 213, 214 (1978); NLRB v. Exchange Parts Co., 375 U.S. 405 (1964). As indicated, Sara Mahaffey was not a credible witness, and her expla- nation that her inquiry concerning the eligibility of John Leasure, some 3 years after its denial, was rekindled im- pulsively and without relationship to the union campaign BENJAMIN COAL CO is rejected as untrue It is concluded that renewed inter- est by Respondent in the pension eligibility of John Lea- sure was in support of an effort to neutralize appearances of inequity raised during the campaign with respect to the Company's pension plan and hence was designed to further the Company's effort to defeat the Union at the polls. Respondent thereby violated Section 8(a)(1) of the Act. 5. Acts of interference occurring after the second election a James Fleming As shall be seen Fleming's bombastic antics continued into the period following the second election. On 26 March 1984 an article appeared in a local newspaper out- lining events mentioned in union objections to the second election. Alleged threats by Fleming were reported. That morning Fleming appeared at the place of work, ranting and raving as to who had written him up in connection with those charges. Ed Thompson volunteered that he had fingered Fleming because of the threat Fleming had made against his wife. With this, Fleming unleashed a barrage of vindictive remarks claiming that he could sue Thompson for his house, knock his head off, have him eliminated, if not by himself, he would hire someone who could, and that he would take care of the problem, naming Thompson as the problem. Fleming apparently carried his anguish to other employees, telling Ron McGarvey that he had threatened Ed Thompson, while some 10 days later, again raising the issue, stating. "Ed had to go or I go." Dan Brink testified that, during the same basic general timeframe, he witnesses a statement by Fleming to the effect that "Thompson better hope that the union got in, because if it didn't he would get him." According to Craig Moyer, Fleming, in the pres- ence of Dennis Young and Robert Pennington, admitted that he told Thompson he would burn his house down, reiterating that he would in fact do so if Fleming were to lose his job The General Counsel's witnesses in the above respect were credible and, based on their mutually corroborative testimony, it is found - that Fleming's threats intended to impede employees in their right to participate in and support the remedial proceses of the Board and hence violated Section 8(a)(1) of the Act. Fleming's outrage concerning the filing of charges against him was not limited to Thompson. Several em- ployees confirmed a similar incident involving employee John Young. According to the latter, shortly after the election, on or about 16 March 1984, Fleming entered the work area, angrily pitching his hat across the floor, while remonstrating about the Union. He approached Young, grabbing 'him by his shirt throwing him up against the wall, inquiring if Young had filled charges against him. When Young indicated that it was none of Fleming's business, the latter laughed and backed off. According to Young, the incident was repeated by Flem- ing 2 weeks later around 29 March. Young's testimony as to the first incident was corroborated by Robert Pen- nington, Dennis Young, and Daniel Brink. Fleming ad- mitted to grabbing Young and inquiring whether Young had made allegations against him, but claims that he was 597 only joking. Although, on the heels of John Young's re- sponse, Fleming assumed a lightened air, having seen the error of his way, I am convinced, nonetheless, as in the case of the Thompson incident, that the situation was fo- mented initially by Fleming's anger. He thereby con- veyed an impulsive proclivity toward reprisal against those who would support or file unfair labor practice charges, under conditions likely to arouse curiosity among employees as to how far Fleming would go to vindicate his wrath. Employees who would invoke the aid of or support the processes of the Board, may do so without interference from.temper tantrums or any other coercive form of reactive behavior by management rep- resentatives. Through Fleming's response, Respondent violated Section 8(a)(1) of the Act. In his brief, the General Counsel refers-to an incident involving employee Larry Young. He appears to suggest that in October prior to the first election Fleming stated that he hoped Benjamin will lose this case because, if the Company won, a lot of employees would find out who was running the show. This evidence was not adduced through the examination-in-chief by counsel for the Gen- eral Counsel, but emerged on cross-examination of Young. Moreover, it is clear on the face of the record, that the incident occurred after the second election on 18 October 1984. The complaint, and amendments thereto, include no reference to threatening remarks made by Fleming during this timeframe. Absent such an allega- tion, Respondent was free to cross-examine Young from his affidavit without fear that- unalleged facts developed thereby would prove incriminating The issue was not appropriately litigated and shall not be the basis for any unfair labor practice finding herein b. Donald Hutton ` John Potter testified that after voting in the second election on 14 March 1984, he went to a local bar, where he met Hutton and Ron Schultz. After he indicated that he had voted, Hutton said, "Well . . they have been out lookin' for a job because after the votin there'd be no work . at Benjamin Coal." Hutton's denial is discred- ited. I believed Potter, whose testimony conforms with a pattern of conduct described by several other employees, and find that this implied threat that designation of the union would eliminate job opportunities violated Section 8(a)(1) of the Act. c. Ernie Smeal Russell Harpster testified that after the second elec- tion, Smeal, in the presence of Tom Niebaur and Chuck Harnich, said that "Dave wouldn't sign no union con- tract and that during the vote that he had already had papers filled out with other company's to take care of his orders in case the union came in." Smeal denied making any such statement, and I was inclined to give him the benefit of the doubt, over the uncorroborated testimony of the heretofore discredited witness for the General Counsel. The 8(a)(1) allegation in this respect shall be dismissed. 598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD d. Chad Hannah According' to the testimony of Wayne Anderson, about 4 weeks before the opening of the instant hearing, he inquired of Hannah whether he had received a sub- poena. Eventually, Hannah showed Anderson an enve- lope, speculating that he was subpoenaed in connection with an allegation against him based on his remark that Dave Benjamin would shut down and go out of business. Hannah assertively told Anderson "he would shake the hand of the man that said it for being honest and not lying about it." Hannah disputed this version, claiming that he and Anderson simply had been discussing the fact that another employee, Bo Johns, had approached Hannah, explaining to Hannah that he had exonerated Hannah in his statement to a Labor Board investigator. I believed Anderson. Nonethelesss, the incident was nei- ther the subject of an allegation in the complaint, nor its various amendments, and was not briefed by the General Counsel Accordingly, no unfair labor practice finding is made with respect thereto. e. Floyd Fishel Roger Farmery testified that when he asked Floyd Fishel in June 1984 what the Union's election loss meant for the future, Fishel responded that "Mr. Benjamin will never go union, he would close the doors and shut down first " As indicated, Fishel died prior to the hearing. The entire incident described by' Farmery struck as a bit im- plausible and simply did not ring true. Other credible tes- timony that Fishel engaged in coercive conduct is lack- ing. Accordingly, -corroboration being absent, Farmery's testimony is rejected, and the 8(a)(1) allegation in this re- spect is dismissed. 6. The alleged discrimination a Wayne Anderson Anderson is named as having been victimized by a number of incidents of union-related discrimination He was among the early supporters of the Union who signed an authorization card at the-outset, and solicited similar designations from among his coworkers His name and photograph appeared on union literature as a member of the employee organizing committee. He demonstrated his sentiment openly through the wearing of UMWA hats, T-shirts, and bumper stickers. Tom Lemmon, Anderson's foreman, acknowledged that he was mindful of Ander- son's status as a member of the employee organizing committee. Also significant is the suggestion in testimony of both Foremen Cameron and Lemmon that at the job- site to which Anderson was assigned, union activity was waged only sparingly. (i) The first act of alleged discrimination derived from the breakdown of Anderson's rock truck on 1 December 1983. In consequence of this incident Anderson was sent home and told that the Company would call him when needed. According to Anderson, after being sent home, he argued back to Foreman Lemmon that other work should be available Lemmon responded that his being sent home had nothing to do with the Union. When An- derson said "bull shit," Lemmon simply grinned and drove away. The next day, Anderson telephoned Lemmon inquiring whether there would be any work. Lemmon said no. An- derson filed for unemployment. In consequence of this incident Anderson was out of work virtually the entire month of December. He retruned on 5 January. Anderson testified that on prior occasions when he ex- perienced breakdowns, he was retained to assist in re- pairing the vehicle or given other assignments and that only on rare occasions, when there was nothing to do, was he sent home. Several employees confirmed that this was their experience as well. Under any construction of this testimony, the treatment accorded Anderson appears to have been unprecedented, for there is no evidence whatever that any other employees had ever been laid off indefinitely or for a substantial period of time by virtue of an equipment breakdown.62 Credible evidence also suggests' an initial intent, later abandoned, to depart from customary practice whereby the operator of a down piece of equipment," rather than face layoff, was assigned to assist the mechanic in the repair operation. Thus, mechanic John Lescallect testi- fied that he was assigned to repair Anderson's rock truck, but no operator was available to assist him. When he asked Foreman Cameron where the operator was, as he needed assistance, Cameron himself offered to help Lescallect. Lescallect testified credibly that in his experi- ence no foreman had ever offered to assist with the repair of a vehicle. However, before the'job could be done, Lescallect was reassigned to another task. Eventu- ally Anderson was recalled for a day to help repair his truck. Respondent, in its posthearing brief, concedes that work was available for Anderson during this timeframe. Thus, it is stated therein that "it is certain that if Ander- son had called in to the front office and asked for work, he would have been promptly assigned."63 In contrast, Anderson' testified that he called the Company a couple of times during the month of December to see if there was any work, but was told there was nothing.64 62 See for example the testimony of Dale Yarger, Ken Bee, and Dennis Byers Although Anderson testified that John Delp, a dozer operator, ex- perienced a breakdown the previous evening, but the next day continued to work without interruption on another piece of equipment, Delp ap- peared as a witness but was not examined in this respect I draw no con- clusions from the testimony of Anderson in this respect Nor did I find Anderson's testimony that employee Darrel Hope recently was kept busy during a 2-month period when his loader was down to relate to a compa- rable situation 63 Respondent's posthearing brief p 45 Anderson testified that after his layoff he returned to the site and found that the number of operating rock trucks on his shift had increased Anderson was obviously in no po- sition to testify on a first-hand basis that this condition was either perma- nent or temporary The drivers then working were not identified and there is no evidence whatever that Anderson, under accepted company policies, had a preference over them Thus, little stock is placed in his testimony in this regard 64 Cameron testified that when Anderson was recalled to asist in the repair job, Anderson implied that he preferred layoff as "he'd just as soon be on unemployment in tht kind of weather " Anderson denied that this was so I credit him Cameron was an unimpressive witness BENJAMIN COAL CO Respondent's testimony is not clear whether Anderson was put on the availabilty list, a roster of available men, who though not on payroll status, might be used as re- placements for those who call in sick or are off or on va- cation. Cameron could not recall whether he had taken this step On the other hand, Harry Benjamin, exhibited some uncertainty but did testify that to his recollection Anderson was put on that list. Placement on the avail- ability list would have provided employment opportuni- ties without necessity for constant phone inquiries. More- over, although Respondent appears to fault Anderson for not making a diligent effort to secure work, when An- derson reported to repair the truck, Cameron conceded that he told Anderson he had no work for him, and that Cameron would call "when I needed him." Moreover, Lemmon, who was Anderson's supervisor, until replaced by Cameron the day after Anderson's truck broke down, tacitly agreed with Anderson's testimony that, in sending Anderson home, he too told Anderson that he would be called concerning his next day of work. In fact, when work was made available to Anderson, it was pursuant to a phone call made by the Company. In this instance, the General Counsel has established that in the face of Respondent's avowed opposition to unionization, a key protagonist of the Union, during the period when a question concerning representation was still pending, was laid off for a period of unprecedented length. Under any view of Respondent's customary prac- tice of seeking work for those whose equipment was in a state of disrepair through no fault of there own, Re- spondent's explanation for its action in this regard was conflicted and unpersuasive In the circumstances, con- vincing proof suffices to establish that the General• Coun- sel has met its initial proof responsibility that protected conduct was "a" motivating factor behind the Employ- er's action. See Wright Line, 251 NLRB 1083 (1980). Ac- cordingly, the onus properly shifted to the Employer to show that the same treatment would have been accorded the alleged discriminatee even if he had not engaged in protected activity. In this instance, Respondent has failed to produce a cohesive, believable explanation for its fail- ure to follow its practice of minimizing loss of work by employees due to equipment breakdowns. Instead, con- vincing evidence warrants the inference that this practice was breached and Anderson's employment interests vio- lated in retaliation for his involvement in the organiza- tinal effort, Respondent thereby violated Section 8(a)(3) and (1) of the Act.65 (ii) The General Counsel contends that Respondent was guilty of a further act of discrimination when An- derson was transferred from a stripping job (#36) in late January 1984 to a backfill job (#95). In consequence, Anderson was reduced from the 48-hour week customar- ily enjoyed in production 'to the 40-hour week, then at- tendant in backfill operations. Anderson credibly testi- fied, without contradiction, that of the eight rock truck drivers working on two shifts in the mining operation from which he was removed, he was the only one extri- 65 The allegation that Respondent in this connection violated Sec 8(a)(4) of the Act is lacking in record support and is dismissed 599 cated to the reclamation project. Of this group, only one was more senior than Anderson. The transfer of Anderson appears to have been punc- tuated by a gratuitous slur at the hands of Respondent's owner and president at the outset of the second cam- paign Thus, by letter dated 10 January 1984, Dave Ben- jamin informed employees, inter alia, that agreement had been achieved for the conduct of a rerun election. That which was sent to Anderson bore the salutation "Dear Jerk."66 This reference is explainable solely in terms of hostility to Anderson emerging from his Section 7 activi- ty.67 The only justification for the reassignment of Ander- son was offered through the following colloquy between Respondent's counsel and Tom Lemmon: MR. KATSAFANAS: Do you remember a situation where Mr Anderson's truck and Mr. Anderson were moved over there at the end of January 1984? MR LEMMON• That's correct. Q. Please, explain to us how that happened? A. His truck down It had been down from the steering I believe they had ran out of fuel in the pit, and they pushed the truck to get it out of the pit, or something, and they busted the steering column. And, that truck, on that particular day, we moved it, if I remember correctly, on a Saturday Mr Anderson didn't even move it, I had another employee move the truck. The only reason that I moved that truck was because it was the one that was settin' there, in the parking lot. The other two were right over the hill workin' Q So, that truck had been down and was in the parking lot? A. Yeah, it had been down for a day or some- thing like that. Q. And, then it was moved over to the 95 job? A. That's correct. Q. Did you need a truck at 95 job, or what? A. That's right. We had a backfill job to finish there Q And, that's the only reason you took that truck? A. That's correct. See, we had worked that back- fill job with two trucks until the rear end went out of his truck. We shut that backfill job down and took one truck off the backfill, over to 36 job, to replace the one that the rear end was out. Q. So, at this point, the end of January, you took his truck back over? A. That's right. Respondent does not dispute that Anderson was one of the more senior drivers on job 36 at the time of the transfer According to Respondent, Anderson was reas- signed at random solely because his truck was "down," and the need for a vehicle on reclamation emerged at the time of its repair. No reason is offered why his truck, when again activated, was not assigned to production on 66 See G C Exh 16 67 Later Dave Benjamin formally apologized to Anderson 600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD job 36, nor is there indication as to how Respondent's convenience was served by failing to recognize seniority in the transfer to backfill . Beyond that, Harry Benjamin himself afforded testimony which plainly suggests that the assignment of Anderson for the reasons given by Lemmon was in conflict with established company prac- tice Thus, Harry Benjamin testified that in the event of a breakdown on a production job, "the natural course of action, which is standard, usually, is to go get a reclama- tion machine and fill in for the production machine that is down, until the production machine is repaired . . . and then we usually return it [the reclamation machine] to the reclamation." If I understand Lemmon's testimony correctly, when Anderson's truck was down, his vehicle on the production job was replaced by a truck from backfill However, after Anderson's truck was placed back in operation, it was returned to the backfill job, rather than the production job on which it had most re- cently functioned . Absent explanation as to the reason behind an exception to the usual practice in this instance, the conclusion is inescapable that this was an extension of the harassment against Anderson , triggered by his ac- tivity on behalf of the Union . Respondent further violat- ed Section 8(a)(3) by reassigning him to a less renumera- tive position in backfill in order to discourage union ac- tivity.68 (iii) The final act of alleged discrimination against An- derson involved a 15-day disciplinary suspension effected several months after the second election. It was memori- alized by a letter dated 29 May 1984, over signature of Harry K. Benjamin and John Martyak, informing Ander- son as follows- This letter confirms that on May 17, 1984, during the second shift at #138 Job, you were operating WABCO #2 when the right rear hoist jack separat- ed from its frame plate and dropped to the ground. Your continuing operation of this equipment caused additional damage to three components of the hoist jack. You finished the shift using WABCO 85 #1 and neglected to report the incident on your opera- tors [sic] report or to the base. Our investigation has revealed that your misjudg- ment, carelessness and inaction to shut down your equipment constitutes abuse of equipment as noted on page 27 of the employee handbook. Another instance of your misjudgment and care- lessness, which brought you a verbal warning, oc- curred on January 24, 1984, at #36 Job during the second shift. You failed to properly perform your equipment pre-start or inspection (Safety Handbook, section 2G., Task Training, item 5A) and ran out of fuel while operating WABCO #6. This, in turn, re- sulted in the need for a dozer to push you to the top of the hill and in doing so, caused steering box damage and repairs After considerable deliberation, you are hereby notified of the following disciplinary action: 66 The allegation that Respondent thereby violated Sec 8(a)(4) of the Act is lacking in record support and shall be dismissed Employee Wayne F. Anderson, #1387, is placed on a fifteen (15) day [work day] suspension. This suspension will start May 18, 1984 and continue thru June 6, 1984 . The employee will return to his regular scheduled work on June 7, 1984. Future improvement of your work performance will be expected.69 The first incident referred to in Respondent's letter of 29 May occurred on 24 January 1984. At the time, An- derson was assigned to 36 job, working the second shift. That night he ran out of fuel As indicated, he had to be pushed by a dozer and in the process the steering column on his truck broke . He testified that it is the re- sponsibility of the first-shift driver to do all the fueling, greasing, oil checking , etc., while the second-shift opera- tor simply checks engine oil, radiators , and tires .70 An- derson explained that a vehicle will normally work two shifts on a single tank of gas. Anderson also testified that the fuel gauges on the truck were broken . Anderson tes- tified without contradiction that, rather than receive any warning or discipline in consequence of the incident, he was overt in his criticism of management for failure to make a repair job that he had complained of for months which contributed to the truck' s fuel inefficiency . Ander- son's testimony including his assertion in this respect, that the second-shift driver had no responsibility to check fuel struck as highly argumentative and illogical I did not believe him In any event, the incident that triggered the suspension of Anderson occurred several months later on 17 May 1984. According to Anderson, while working the second shift on 138 job, as he returned his rock truck from the dump to the pit, he detected the smell of something burning. As he started to check , a loader operator in the pit informed that the hydraulic line on the rear of his truck was wrapped around the drive shaft. This proved not to be the case. On visual inspection , it appeared that oil was running to the ground . One of the hydraulic cyl- inders on the jack lift had broken from a bracket on the left side of the frame and dropped between the tires. The truck at the time was located in the middle of the pit where production was in progress There were no me- chanics nor foremen in the vicinity. Anderson claims that he elected to move the truck before it ran out of oil and did further damage . He moved the truck approxi- mately 300-400 feet in order to prevent the job from being brought to a complete halt. He continued to work the shift utilizing a spare truck. Management was quick to respond . The next day, An- derson was called to Personnel Manager Martyak's office, who requested a statement concerning the inci- dent. Anderson obliged Before Anderson departed, Lemmon gave Martyak a statement over the telephone. 69 See G C Exh 17 10 1 do not construe either G C Exhs 20(a) and (b) as primary evi- dence that employees were told otherwise It was stipulated at the hear- ing that these are the only documents involving company rules that would bear on the allegations of discrimination involving Anderson However, G C Exh 20(a) does not appear to be in a format suggesting that it had ever been distributed to employees G C Exh 20(b) does not impugn the testimony of Anderson BENJAMIN COAL CO Also, Harry Benjamin at some point entered Marytak's office, read the two statements , and informed Anderson that he would be on a 3-day suspension , pending investi- gation of the matter . Anderson received no notice of the final discipline to be imposed until receipt of the 29 May letter. Anderson admits that Tom Lemmon was sharply criti- cal of his actions following this incident . First, Lemmon angrily importuned Anderson that he should have detect- ed that the jack had come out of the cylinder at the dumpsite, before he returned to the pit. Lemmon also argued that Anderson should not have moved the truck after his admitted discovery of the damage. Weighing against the claim of discrimination is Ander- son's admission the he neglected to include a reference to the incident on his operator's report He explained that there was no urgency in doing so because there was a spare truck on the job, and therefore no driver on the first shift would be delayed . Later, however, Anderson was forced to admit that he should have called the shop and reported that the truck was down in order that a mechanic might be assigned to perform the repair work at the outset of the next shift . Despite this concession, however, Anderson argued that it made no difference in the Company , because Lemmon on a visual inspection of the site at 6 a.m. the next morning would have discov- ered the breakdown. 71 Although in other respects, Lemmon was not regarded as a believable witness, he impressed me as sincere in his conviction that Anderson was gulity of negligence in moving the truck from the dump and that in doing so he caused excessive damage to the truck. His own view was described on the record as follows: No, it's not unusual at all for a hoist jack to break off, especially on a Wabco . But, it's very unusual for an employee to move that truck . He drove the truck from the dump where the jack broke clear back down to the pit, to the loading area [1500] And, he said he didn't know the jack was broken, but the jack was wedged in between the back wheels and the frame of the truck And, it damaged the jack beyond repair. It damaged the sidewall, the tire, on the truck, tore all the hydraulic piping out from under the bed of the truck . And, then, even if you didn't know it then , when they called it to his attention, in the pit, he still moved the truck, ap- proximately, another three hundered feet, and then parked it right up against the highwall. Didn't leave a note in the truck, didn't explain nothing in the report. We had a spare truck on the job at the time, and he just went up and crawled in the other truck and finished his shift . I found the truck settin' in the pit the next morning 71 I regarded this testimony as an argumentative attempt to mitigate Anderson's failure to report the matter A report of the incident would have been far preferable , as an aid to diagnosis as well as a means of fa- cilitating prompt assignment of a mechanic , to a foreman's visual inspec- tion in darkness at 6 am it is entirely possible that the failure to report by Anderson was indicative of his own sensitivity concerning the judg- ment he exercised in regard to this breakdown 601 Lemmon also testified, believably , that he had seen jacks break off on the type of truck Anderson was operating at least a half a dozen times , but never before had he seen a jack wedged between the tires . A groove some 8 inches deep was left in the ground by the jack dragging over the area that the truck traversed , from dump to pit, and then to the point where Anderson ultimately parked the truck.72 The groove was in hard packed material ac- cording to Lemmon , making it difficult for the drag to go unnoticed by the driver . He added that when he ar- rived the next morning, it was his view that Anderson's truck could have been left in the pit without interfering with production . According to Lemmon, based on his in- terpretation of the incident, he recommended that An- derson be disciplined , a recommendation that had noth- ing to do with union activity 73 The General Counsel sought to discredit Lemmon ar- guing that his testimony was internally inconsistent, an assertion unsupported by the record . Lemmon's position consistently was that Anderson should have discovered the broken jack from its original breaking point at the dump and that each step taken thereafter aggravated the original act of negligence . The General Counsel also argues that testimony of a number of employees disputed Lemmon's testimony that rock trucks with broken jacks never moved but "were always parked at the spot where the break occurred " Contrary to the insinuation here, I understood Lemmon to have meant that he had never seen a truck moved with that degree of damage, i e, the jack was broken off and wedged between the tires, a po- sition far narrower than that imputed to him by the Gen- eral Counsel. As for the employee testimony adduced in support of the allegation that trucks with broken hoists were moved, either the incidents occurred outside the presence of a supervisor or representative of manage- ment, and without knowledge of any management repre- sentative, or were clearly different . Thus, Anderson him- self described an incident when employee Ken Gilbert stopped his truck when he realized that the jack had broken Gilbert's vehicle was moved only after a me- chanic made adjustments to it and it was "pulled" off to the side on direction of Foreman Lemmon . Tim Ma- zenko testified that Bob Washic operated a truck with a broken jack but, unlike Anderson, on advice of Mazenko and other coworkers , he declined to move his truck from the pit area to a nearby parking lot." John Schaffer, a mechanic, testified to an incident in which, having arrived at the scene afterwards, he could tell that a truck with a broken jack had been moved from a pit about 200 yards where it could be worked on. Schaffer did not testify that any representative of man- agement was aware of the incident, or that moving the 72 Lemmon added that the spot selected by Anderson to park the vehi- cle was tight against a highwall , making it difficult and hazardous for the maintenance crew to work on the vehicle which required repairs on the side immediately adjacent to the highwall at risk of possible rock fall 73 Maintenance Superintendent Robert Hockinson testified that an ini- tial estimate of the damage to the vehicle was in excess of $4000 74 There is no evidence that any damage to the Washic vehicle was aggravated by his failure to detect the break earlier , nor was any supervi- sor shown to have been aware that the vehicle had been operated after Washic should have learned of the break 602 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD vehicle aggravated the damage to it. As the driver was unidentified, one could only speculate whether discipline was effected, or Respondent condoned any negligence evident in the incident. Schaffer testified that he did not observe the truck being moved and had no idea whether it was driven, pushed, or towed. Schaffer also testified that in the past that he had moved equipment out of a pit, but only "with a foreman's permission." By the same token, Kenneth Bee testified that some 2- 1/2 years earlier, he discovered a break in his lift jack as he drove from the dump to the partking lot He failed to disclose that removal of his damaged truck was wit- nessed by any representative of management or that his action in doing so caused further damage to the jack or the vehicle Russell Harpster followed suit, recalling that some 4 years ago a hoist broke on a rock truck while it was coming from the dump onto a ramp, Thereafter, the truck was moved some 50 feet but only after the dented hoist was freed from behind the wheel and the fuel tanks were moved Here again there is no indication that the short distance that the truck was moved created addi- tional damage or that the incident was witnessed by any representative of management. With the collapse of the attempt to show disparate treatment, the General Counsel's credibility attack con- tinued with an assault on references in Harry Benjamin's testimony as to his belief that Anderson was guilty of de- liberate destruction of company property. Contrary to the General Counsel, Harry Benjamin was certainly enti- tled to his suspicions, and his posture in this respect is deemed typically human, not necessarily indicative of bad faith or untoward motive.75 Upon final analysis, despite misgivings concerning the General Counsel's evidence, and the fact that the inci- dent occurred 2 months after the second election, the case-in-chief remains sufficient to support a prima facie case of discrimination. Nonetheless, although not free from doubt, it is concluded that Respondent has met its burden of disassociating the suspension of Anderson from union considerations. The evidence available to management is deemed adequate to support a fairly held conclusion that Anderson was guilty of negligent oper- ation of a company vehicle under conditions which pro- duced serious damage which he allowed to go unreport- ed. This departure from job responsibilities was not mini- mized by any form of condonation on the part of Re- spondent pursuant to either established policies or prac- tices which were of an unambiguous nature. In the cir- cumstances, I find the defense to be credible and that Anderson would have received the suspensions in May 1984 even had he engaged in no activity protected by 75 I am also not pursuaded that pretext is necessarily suggested by Re- spondent's failure to follow procedures defined in G C Exh 18, a letter written to employees on 29 October 1980 That document purports to re- quire that a warning letter be issued prior to the imposition of more seri- ous discipline in connection with negligent operation of company vehicle Although this document apparently was obtained by the General Counsel in response to subpoena, its status at times relevant to the action taken against Anderson was not clarified by stipulation or testimony Even, if in force, however, where the employer is privately owned and unorga- nized, the failure to adhere strictly to published employment guidelines is not such a rarity as to warrant automatically a finding of chicanery the Act. Accordingly, the 8(a)(3) and (4) allegations in this respect shall be dismissed. b. The discrimination against Timothy Mazenko Tim Mazenko was a leading protagonist of the Union. He was a member of the in-house organizing committee, solicited coworkers to sign authorization cards, wore prounion badges, and brandished stickers on his person signifying his support of the Union On 4 January 1984, Mazenko, who historically had worked in production operations, was transferred to a less renumerative position in reclamation.76 According to Respondent, this transfer was provoked by an incident on 31 December 1983. On the latter date, Mazenko was working on a crew, which included Rich- ard Diehl, Tom Spangle, and William Pusey. Their scheduled quitting time was 2:30 p.m. All four left work that day at 1.30 p.m. Harry Benjamin and Foreman Roger White happened to observe them leaving. On the following Monday, Ernie Smeal, the foreman on the job, reported to the men that Harry Benjamin had seen them leave, and they had better change their time- cards and reports to reflect that they only worked 7 hours.,The men, in turn, explained that they had an ar- rangement between themselves to come in an hour early that day in order that they might leave an hour early and put in a full shift. Nonetheless, all parties admit that Smeal, previously, had not been informed of this ar- rangement." According to Harry Benjamin he verified the early de- parture by visiting the jobsite only to find that the equip- ment had been parked, with no operators in sight. On ex- amination of the equipment, no repairs were found, other than that of Tim Mazenko, which was marked 8 hours. Benjamin pulled the report, and then called Foreman Smeal, who knew something of the early departure and who reported that the men should have been working. Later, Smeal reported back to Benjamin that, though un- authorized, the men had reported that they had started early. Benjamin told Smeal to discuss their breach of work rules with the men, and also indicated that he would probably "break the crew up " He later did so by transferring Mazenko to the backfill job. Harry Benjamin testified that at the time of the transfer he was aware that all members of the crew were actively prounion. Mazenko was replaced on the production job by Dwayne Smeal, who, according to uncontradicted evi- dence, had not openly manifested antiunion sentiment. Although the circumstances surrounding the splitting of the crew as the remedy for the offense involved is not above suspicion, the employee, including Mazenko did attempt to set, their own hours of work, and hence en- gaged in an offense not shown ever to have been left to 's As was true of Anderson, on his assignment to the backfill oper- ation, Mazenko's weekly hours were reduced from a regular 48-hour week to 40 He also lost work and earnings due to assignment to an older dozer which had startup difficulties in cold weather 79 Another employee on the stripping end of that job, Ken Yarger, was not informed of the arrangement He reported at the regular starting time and therefore lost an hour's work that day, when forced, by the de- parture of the others, to leave early BENJAMIN COAL CO stand without some form of management response. This misconduct was serious and to conclude that the disci- pline selected by Respondent was pretexual would be speculative,78 resting on a naked substitution of business judgment. In the circumstances, although not free from doubt, it is concluded, that based on the more compel- ling inferences, Mazenko would have been transferred even had he not engaged in activity protected by the Act Accordingly the 8(a)(3) and (4) allegations in this respect shall be dismissed. c. Thomas Pennington It is alleged that in December 1983, Thomas Penning- ton sustained a reduction in hours and was denied the use of a company truck in violation of Section 8(a)(1) and (3) of the Act It appears that Pennington had been a foreman between March 1973 and January 1983. Some 9 months after his demotion, while having the status of a dozer operator/water treater, he became active in the or- ganizational campaign, wearing prounion badges and hats. On 14 August 1983, Pennington was observed sign- ing a card by Superintendent Don Hutton. The instant allegation derived from Respondent's de- leting from Pennington's work responsibilities, the task of sampling and treating water at a site formerly mined by Respondent in Clearfield, Pennsylvania. Performance of these duties involved a 70-mile round trip thrice weekly between Clearfield and Pennington's normal backfill as- signment, and entailed a work cycle of some 4 hours daily. Apparently, Pennington was privileged with the use of a company vehicle pursuant to Respondent's practice whereby operating foremen were provided company trucks Upon removal as a foreman, Pennington contin- ued to enjoy use of the vehicle to facilitate the water testing rountine at Clearfield. On the first of December, Pennington, was directed to return the truck and informed that his duties would be limited to operating a dozer On removal of the task, a part of his assigned duties for some 5 years, Pennington was never offered explanation. It does not appear that he had ever been criticized directly about the manager or time expended in the performance of that job. In addition to the foregoing, discrimination is claimed by the General Counsel on the basis of testimony by Pennington that, within the same timeframe, on or about 1 December, his Foreman Bert McGravey informed him that his hours would be cut to 40 hours weekly. He claims that this condition continued for a period of 3 to 4 weeks The reasoning behind this reduction also was not explained to Pennington. Objective analysis of the record discloses that Pen- nington was not singled out for discrimination in this re- spect.79 It is a fact that during the payroll 12/4/83 78 The conduct by the crew , on the admitted facts, was sufficient to support discipline Splitting of the crew seemed a mild rebuke Respond- ent having selected this method , could only implement it by choosing be- tween union protagonists Thus, the selection of Mazenko does not strike as especially significant 19 R Exh 10(a) 603 through 12/17/83 Pennington was restricted to an 8-hour day, 5-day week Thereafter, he worked overtime several days per week. However, the loss of hours for the 2- week work period is no way related to elimination of Pennington's Clearfield work duties. Prior to elimination of the latter, Pennington was not shown to have worked more weekly hours than others engaged exclusively in backfill operations. Accordingly, it is fair to assume that, during this earlier period, the water treatment tasks con- sumed hours carved out of Pennington's time dedicated to backfill and hence did not enhance his overtime op- portunities. The true explanation for the loss of work lies in believable evidence offered by Respondent which at- tributes the reduction to considerations which impacted equally on all engaged in backfill operations, and had nothing to do with water treatment or the Union. In this connection, Superintendent Hutton testified credibly that in December 1983 he received an instruction to reduce all reclamation operations to 40 hours weekly. This oc- curred for a temporary period and affected all employees in backfill operations. The testimony of Hutton in this re- spect is not contradicted, and is supported by documen- tation to the effect that other operators assigned to iden- tical work on the same job as Pennington worked a straight 40-hour week during the first full 2 weeks in De- cember.80 Note also the testimony of Tim Mazenko and Wayne Anderson that they worked only 40 hours weekly when transferred to backfill. No timecards were offered to the effect that any employee situated similarly to Pennington earned overtime during the payroll in question. Accordingly, convincing credible evidence es- tablished that the reduction to a 40-hour week affected all reclamation work in the entire operation, an act not isolated or related to protected activity.81 Accordingly, the claim that Pennington was thereby discriminated against is lacking in merit and unsubstantiated. The 8(a)(3) allegation in this respect shall be dismissed. With respect to the elimination of Pennington's water treatment assignment, Respondent contends that this was an economic decision, having nothing to do with Pen- nington's union sentiment Credited, uncontradicted testi- mony by Harry Benjamin is to the effect that Pennington inherited this job when he was a foreman at Clearfield After that mining operation ceased, Pennington contin- ued to maintain ecological duties in connection with a pond at that site by driving back and forth. However, a Department of Environmental Resources inspection report filed in late November 1983 disclosed that treat- ment operations at the Clearfield pond had not been per- formed adequately under the existing arrangement' with 80 See R Exh 10(b) 81 In crediting the defense, the General Counsel's attack on Hutton's alleged lack of certainty in describing the reason for Pennington's reduc- tion in hours is considered nonmeritorious This followed a colloquy be- tween Hutton and me In the course thereof, my own misinterpretation of the timecards, as they related to Respondent's defense, provoked exami- nation of Hutton on a faulty premise With this in mind, it is noted that the segment of Hutton's testimony in question does not shake my confi- dence in the validity of Respondent's position Surely, it would have been foolhardy were Respondent to contrive a defense on the basis of an al- leged companywide directive, which, if actually a sham, would be read- ily discernible 604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Pennington. 82 In consequence of the report, it was deter- mined that daily inspections on a 7-day weekly basis would be required if compliance were to be achieved. According to Respondent's evidence, it was decided that the frequency of the required testing would be most effi- ciently discharged by retention of someone in,the Clear- field area. Consistent with this thinking, a gentleman, in- digenous to Clearfield, Richard Hipps, was retained and effective 1 February 1984, the work formally was con- tracted out to him.83 On balance, I was inclined to believe that the contract- ing out and termination of Pennington's responsibility in connection with the Clearfield pond was based entirely on solid economic considerations consisting of the need for 7 weekly inspections and the lack of feasibility in having, daily treatment conducted by an employee whose regular duties were 35 miles away.84 Accordingly, it is concluded that this innovation would have been effected even if Pennington had engaged in no activity protected by the Act. As company interests would no longer be served by Pennington's access to a company vehicle, the denial of this privilege is viewed as incidental to the le- gitimate contracting out of the water treatment assign- ment,85 and hence perfectly lawful. Accordingly, the 8(a)(1) and (3) allegation based on the elimination of the water treatment assignment, reduction in hours, and denial of the company vehicle as to Pennington shall be dismissed. d. Discrimination against Maruna, Westover, and Fontanella The complaint alleged that Respondent violated Sec- tion 8(a)(3), (4), and (1) by the temporary layoff in March and April 1984, of Walter Fontanella, Willis Maruna, and Randy Westover. All three were members of the same crew, assigned to the day shift Each had openly displayed his union support. On the second shift crew of Smith, Gillin, and Parks, only Parks had overtly demonstrated his support of the Union 62 See R Exhs 9(a) and 9(b). 83 See R Exh 9(b) 84 My sustaining the defense is based essentially on the strength of its inherent logic I did not believe all the testimony afforded by Harry Ben- jamin in support He was given to overstatement in several areas in con- nection with this issue I particularly did not believe that he was unaware of Pennington's union sentiment, that he considered that Pennington did not perform his job adequately, and that Pennington was informed of the DER citation Nonetheless„ ,it was my decided impression that these ob- servations sprung from overreaction to a fear of losing and an over- whelming desire to win, and did not detract from the fundamental accu- racy of the defense 85 The General Counsel argues that the disparate nature of the action taken against Pennington is evident by retention of Jack Baum in the dual capacity of operating a bulldozer and treating water on two other jobs Baum, who signed an authorization card, did not wear badges, buttons, or hats signifying his support for the Union According to Baum, his water treatment responsibility is performed daily, for some 2 to 3 hours He used his own vehicle Pennington's case was clearly distinguishable There is no showing that Baum was compelled to travel substantial dis- tances between the ponds and his fixed jobsite, nor does it appear that DER required water treatment on a 7-day-per-week basis on his site Quite simply there was no showing that the circumstances underlying Baum's water treatment activity and that of Pennington were economi- cally comparable There is no question that during the period between 11 March and 2 May, work was lost by both shifts in conse- quence of a defective loader, which repeatedly was down and in need of repairs. The General Counsel claims that the fact that the second shift crew received more work than Westover and Fontanella is somehow indicative of discrimination against the entire daylight crew. In examining this assertion, it is necessary to point out that a member of that shift, Maruna, who was among the most ardent of the union supporters, worked more hours during the timeframe in question than any others on either the first or second shift.86 Furthermore, with the exception of 1 and 2 May, dates outside the period covered under the specific allegation of discrimination, Smith, Gillin, and Parks lost as much time as Fontanella and Westover, and far more than Maruna. In explanation of what transpired on those specific dates, Foreman White credibly explained from the timecards that the dozer went down during the second shift on 30 April, Maruna worked a full shift on 1 May plus an hour of overtime that day in connection with its repair. The second shift worked on 1 May, as the loader had been repaired and was operable at the outset of that shift. However, as White explained, the dozer apparently broke down again that evening. Thus the first shift on 2 May, was canceled, but Maruna again worked a full shift, plus 1-1/2 hours overtime, on repair of the dozer, while Fontanella and Westover did not work. However, because the truck was again fixed prior to the start of the second shift, the latter crew lost no hours that day. White credibly testified that until repair of the dozer, there was no backup machine, and no work was avail- able White's testimony was viewed as an accurate re- construction of what Respondent's timecards reflect, and what in all probability occurred. Based thereon, the record contains persuasive support for the view that the loss of work on the part of Fontanella and Westover was due purely to the unfortunate timing of breakdowns on 1 and 2 May, that the failure of the second shift crew to lose time was due solely to the availability of the dozer at the outset of their shift, and that in all other respects, union and nonunion employees on that particular oper- ation were treated on parity.87 The 8(a)(3), (4), and (1) allegations in this respect shall be dismissed See General Counsel Exhibits 5(a) through (f). e The alleged discrimination against Farmery, Bauch, and Maruna The complaint initially alleged that Respondent discri- minatorily denied Maruna, Bouch, and Farmery work during the weekend of 19 and 20 November 1983. How- ever, at the hearing, after examining timecards showing 88 In light of clear evidence that Maruna worked longer hours than anyone on either shift, it is incomprehensible that the General Counsel continues to insist that he was victimized by unlawful discrimination 87 Even were I in a position to accept and to apply faithfully the Gen- eral Counsel's general testimony to the effect that employees do not usu- ally lose work in consequence of breakdowns, I am not convinced that the treatment accorded Fontanella and Westover was inconsistent with the great wealth of evidence to the effect that often an entire shift or part thereof was lost because a machine in disrepair could not be replaced and no work was available BENJAMIN COAL CO that the weekend designated in the complaint could not have been affected by discrimination, the General Coun- sel amended the complaint to read as follows- Respondent denied work during a weekend in late November or December, 1983 to its employees, Willis Maruna, Dennis Bouch and Daniel Farmery. To date, the weekend, which is the focus of the al- leged discrimination, has not been identified. The allega- tion is based entirely on testimony by Maruna that a radio communication between Harry Benjamin and Wil- liam Ricketts was overheard by Maruna while listening on his scanner. The latter claims that he heard Benjamin ask Ricketts "if he would have his day shift . work extra this weekend to get a block of coal." Ricketts said he would have them work. According to Maruna, his shift did not work during the ensuing weekend, but he appeared at the jobsite only to note another crew work- ing. Although Maruna testified that he believed this to have occurred on 17 November, the day before the rerun election, he too apparently was convinced based on payroll records that this could not have been the cor- rect date. Although Maruna could not identiy the week- end, he testified that whatever weekend it was, his crew did not work. Even were I to accept that Maruna has provided an accurate replication of what he heard, serious question would exist as to the substantiality of this evidence. Any number of events unrelated to union activity could have caused a change in plans. Indeed, as matters stand, one wonders why Respondent would have scheduled the overtime shift in the first instance, if almost immediately thereafter, it was to be scotched as a reprisal for union activity. In any event, I did not consider Martina's testi- mony to be reliable and the 8(a)(3) and (1) allegation in this respect shall be dismissed.88 f. The alleged discrimination against Joe Mazenko Here again, the General Counsel argues that discrimi- nation was manifested by loss of work on the part of a union protagonist due to an equipment failure. In this regard, Joe Mazenko admits that several weeks after the second election on Saturday, 30 March 1984, in the course of routine maintenance, a problem was detected on the dozer he was operating warranting further re- pairs. Mazenko was instructed to park the dozer. He lost no time, however, finishing out the day by helping a me- chanic on a rock truck. At quitting time, Mazenko admits that his foreman, Darrel Jefferies, told him "Joe, I'll get in contact with you to let you know where you are going to work and when." Mazenko also admits that the following day Saturday, 31 March, he was not home at all the entire day. Finally, Mazenko admits that on Sunday, 1 April, he ran into Jefferies, who informed him 88 Contrary to the General Counsel, a prima facie case of discrimina- tion has not been made out, and hence Respondent cannot be faulted for failing to present affirmative evidence refuting the assertions made by Maruna Indeed, the vague and nebulous allegations concerning the time period involved would necessarily make it difficult for the Respondent to confront Maruna's assertions firmly and with a semblance of accuracy 605 "Joe, I tried to call you on Saturday to go to work Sat- urday evening . running another dozer." Mazenko was not called back to work until Tuesday, 3 April. Jefferies testified that Mazenko was placed on the available list and that he tried to call him on Saturday for assignment to another repair job, but got no answer. Jefferies denied that Mazenko was given time off because of his union activity 89 I believed Jefferies. Here again, the General Counsel points heavily to a wealth of testimony offered by employee witnesses to the effect that they usually lost no time due to break- down. I have deep mistrust as to the relevance, accura- cy, and substantive value of much of this testimony The fact of the matter is that even prior to union activity, entire shifts were lost due to equipment failures Most employees acknowledged that they often, during this same timeframe lost portions of shifts for that reason. Nonetheless, despite my misgivings conerning this testi- mony, its relevance to the situation is compromised by the strong persuasive evidence that Mazenko lost work because of his unavailability on Saturday, 31 March, evi- dence which contributes firmly to the conclusion that what transpired thereafter would have occurred even if Mazenko had not engaged in any activity protected by the Act. Accordingly, the 8(a)(3), (4), and (1) allegation in this respect shall be dismissed. 7. Unlawful assistance to the BEAU; resolution of grievances In mid-January 1984, BEAU was established as a vehi- cle to fend off employee support of UMWA. Sterry and Sara Mahaffey were among its founders and at least, ini- tially, its key functionaries. The allegation that Respondent rendered "support and assistance" to BEAU in violation of Section 8(a)(2) of the Act is specifically addressed to the following. (1) Respondent permitted Sara Mahaffey to serve as an officer of BEAU. (2) David Benjamin, Harry Benjamin, and Martyak participated in "regular meetings" with BEAU. (3) Respondent arranged for speakers to address BEAU meetings. (4) Respondent resolved grievances presented by BEAU Strong suspicion exists whether BEAU was truly an independent employee vehicle for opposition to UMWA. Most striking in this regard is a statement in a speech de- livered by David Benjamin in March 1984, strongly, sug- gesting that BEAU did his "bidding" as a conduit, used by the Company to carry forth its own strategy in con- vincing employees as to the economic reasons for reject- ing unionization. Thus, in a speech given employees at various sessions on or about 12 March 1984, Benjamin stated- 89 The General Counsel attempts to discredit the defense by reason of Respondent's failure to "offer any evidence to corroboprate Jefferies claim that efforts were made to contact Mazenko " In this respect, the circumstances were such that Jefferies' account could hardly receive more convincing corroboration than that which was provided by the tes- timony of Joe Mazenko himself 606 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD When the second election was ordered, I made up my mind I would remain silent but tht I would make available the Company's certified public ac- countant, our banker, our bond broker, a former head of D.E.R. to tell you the situation I was unable to make you understand that this company is in the most serious financial condition since . . . founded . . in 1947. It is a strange coincidence that as matters turned out prior to the speeches given by Benjamin on 12 March, the following speakers had been scheduled to address BEAU meetings on the dates specifted:90 2 February Respondent's C.P A : Jones 12 February Respondent's Banker: Keating 19 Ferbuary Respondent's Bonding Agent Hondru 26 February D.E.R Representative Ercole9 i Despite the clarity with which employees on 12 March were apprised that this approach originated with and was conceived by David Benjamin, the sworn testimony afforded by Benjamin and Sterry Mahaffey was to the effect that this agenda was conceived by BEAU, but dis- cussed with David Benjamin only to obtain his permis- sion to use this slate of guest speakers.92 In any event, even if this were so, the 12 March statement by David Benjamin not only implied to employees that Respondent endorsed BEAU, but that BEAU was being used as an instrumentality through which the Company sought to deliver its own antiunion message. Thus, the 12 March speech depicted BEAU as a labor organization not only favored and endorsed by the Respondent, but one which could be expected to do Respondent's own bidding.93 At the very least, the foregoing not only reaffirms my grave reservations concerning the truthfulness of David Benja- min and Sterry Mahaffey, but presents a circumstantial chain sufficiently substantial to support an inference that Respondent did arrange for speakers to address BEAU meetings, an act violative of Section 8(a)(2) and (1) of the Act See World Wide Press, 242 NLRB 346, 358, 362 (1979) On the other hand, contrary to the General Counsel, the evidence fails to establish that BEAU participated in regular "meetings" with David Benjamin, Harry Benja- min, and Martyak There is no question that Sterry Ma- haffey both before and after the establishment of BEAU, 90SeeGC Exh 10,p 4 91 It is not without significance that this chronology is in the precise sequence outlined in David Benjamin's speech 92 Mahaffey was a thoroughly unbelievable witness In this connection, after denying that he had received the names and addresses of the speak- ers from Respondent's counsel, Belin, Mahaffey was confronted with his sworn preheating affidavit He then admitted that Belin did in fact give him the names and addresses of the speakers 93 Although BEAU was not officially on the ballot in the representa- tion proceeding before the Board, it was a labor organization, which held itself out as an alternative to UMWA in connection with the representa- tion of employees with respect to negotiation of terms and conditions of work while fostering the idea that a "No" vote in the election was a vote for BEAU participated in impromptu conversations with manage- ment representatives concerning employment issues However, apart from the personalities involved, nothing unusual is found in these exchanges, which, in all likeli- hood, were mirrored, in general content and frequency, by similar confrontations between other members of the voting group, having no association with BEAU. The same could not be said of an early meeting between BEAU representatives, in which David Benjamin will- ingly participated, and in which BEAU was discussed as a possible alternative to UMWA, with David Benjamin listening as Sterry Mahaffey aired his ideas as to possible revisions in employment terms in that eventuality. How- ever, the probative, primary evidence merely discloses that this type of meeting occurred but once, that no rec- ognition was conferred or bargaining took place, and that no other representative of management participated in any similar confrontation. No merit is found in the al- legation that Respondent violated Section 8(a)(2) by virtue of this isolated incident. Sara Mahaffey's participation in BEAU is, however, viewed as unlawful. She was its first secretary-treasurer, while her son, Sterry, served as its chairman. In this ca- pacity, she took minutes of meetings, received contribu- tions from employees, and paid expenses, writing checks on her personal account, for which she was reimbursed Although Sara Mahaffey claims that she stepped down from her office and severed ties with BEAU in late Janu- ary 1984,94 evidence is to the contrary. Sara Mahaffey was still writing checks on behalf of BEAU as of 4 Feb- ruary 1984. During the period of her involvement with BEAU, Sara Mahaffey was acting as Respondent's agent, being the sole management representative charged with respon- sibility for the conduct of meetings dufing the election campaign to educate or reeducate employees as to the scope and nature of Respondent's benefit programs. As an agent, held out to be a management representative in the area of employee relations, her participation as an of- ficer of BEAU, under conditions known and condoned by Respondent, constituted unlawful support and assist- ance violative of Section 8(a)(2) of the Act. I so find. Beyond the foregoing, however, there is little to sup- port the allegations of assistance other than suspicion. Too much of the General Counsel's claim must stand on the strength of negative implication from unbelievable testimony by hostile witnesses, secondary evidence, and strained interpretation of events or matters which must necessarily be swept aside as de minimis.95 In this category is the evidence that James Steiner, an artist from Altoona, Pennsylvania, prepared visual charts for use at antiunion meetings conducted by both Re- spondent and BEAU. From the evidence, it simply ap- pears that Steiner was introduced to Sterry Mahaffey by 94 When she resigned, Sara Mahaffey was succeeded by her daughter, Sally Long Sara Mahaffey testified that she resigned after being warned that there could be a conflict of interest because of her status as a trustee under the pension plan Sterry Mahaffey testified that he asked his mother to resign for reasons of health in view of the stress of that posi- tion 95 See, e g, Coamo Mills, 150 NLRB 79 (1964) BENJAMIN COAL CO Sara Mahaffey and Harry Benjamin, in what appears to have been a chance encounter in Respondent's office. There is no evidence that dealings between Steiner and BEAU were not otherwise totally independent of Re- spondent. Also inconsequential was the fact that Sterry Mahaffey requested and was given names and addresses of employees as well as a copy of Respondent's DER consent decree. In this same category was the authoriza- tion given Respondent's bank to release information to Mahaffey concerning Respondent's credit status.96 There is no evidence that the information made available to Mahaffey would not have been provided on request of any other employee, irrespective of their point of view on the issue of union representation. Although certainly more controversial, Foreman Hockinson's providing Mahaffey with copies of a leaflet calculated to inform employees of findings by a Federal judge as to illegality with respect to segments of the UMWA pension fund,97 was isolated and evidenced action by a low-level supervisor more closely identified with the commonality of interest in defeating UMWA, than hard evidence of support or assistance to a labor or- ganization. Finally, among the assertions by the General Counsel which are deemed discountable are BEAU's seeking clearance from David Benjamin before publication of fi- nancial statements, which might have included sensitive material, and David Benjamin's verbal objections to the content of segments of propaganda disseminated by BEAU. The evidence in this respect fails to suggest em- ployer action strengthening or enhancing the status of BEAU and constitutes nothing more than arm's-length communication to be expected between any segment of employees and their employer. Also lacking in merit is the claim by the General Counsel that Respondent maintained an attitude of toler- ance toward BEAU activity, while suppressing that of UMWA. The examples cited in support of this claim are isolated and too minor to support an unfair labor practice finding. The first derives from James Fleming's Novem- ber 1983 destruction of a prounion sign, contrasted with Wayne Anderson's testimony that 3 weeks prior to the second election, Lemmon had a BEAU sticker in the windshield of a company truck. In this latter regard, Lemmon credibly testified, without contradiction, that the BEAU sticker was not posted on his windhshield, that it had been placed on the dash, and remained there only until removed permanently when he left the job. Apart from this incident, despite the number of supervi- sors involved in this hard hitting campaign, 7 months in duration, there was no other incident in which a foreman publicly promoted BEAU. Similarly nonmeritorious is the claim that Respondent permitted BEAU to campaign 96SeeGC Exh 11 91 The document is in evidence as G C Exh 3(ff) Mahaffey originally testified that Hockinson gave him copies of this document and "told" him to distribute them to employees, which he did When called as a witness for the Respondent, Mahaffey appeared to soften his earlier testimony, relating that Hockmson merely invited the distribution, by stating "why don't you take some of these and hand them out " At that juncture, Ma- haffey appeared intent on dispelling any notion that Hockinson's offer was a "directive " 607 on company time, while denying like privileges to UMWA. Although there was some testimony that indi- vidual foremen in certain isolated situations directed em- ployees who were discussing the UMWA to return to work, the campaign atmosphere was one of free and open debate, waged by UMWA partisans in the presence of, and with condonation by, foremen during periods when the participants were fully paid.98 The General Counsel contends also that Respondent fostered the impression that BEAU had ready access to Respondent's officials and hence was an effective means through which employees might present their problems. Other than what has been heretofore stated there is little direct, primary evidence that this was the case It is true that Sterry Mahaffey had informed employees and boast- ed of his contacts among the Benjamins and other high ranking mangers. However, none of these statements were made in the presence of any official of, or shown to have been specifically condoned by any representative of Respondent. They were hearsay by Mahaffey, an indi- vidual not shown to be possessed of agency status Un- disputed is the fact that Respondent's representatives, in- cluding Martyak, admitted to discussing job problems and employee complaints with Mahaffey While it is clear that Mahaffey discussed employment issues with management, it does not appear that these discussions were conducted outside the framework of traditional dis- course between management and employees, or that the same privileges were not extended to other rank-and-file employees, including avowed supporters of the UMWA. Nor do these exchanges rise to a level of significance in consequence of the fact that Mahaffey received explana- tions in problem areas from management, which he re- layed back to the aggrieved employee. Here again, absent evidence that management ever declined to ex- plain its resistance to an employee complaint raised by a supporter of the UMWA, the cooperation with Mahaffey would fall within the realm of normal and traditional personnel relations, and would not constitute evidence of unlawful assistance or interference with a labor organiza- tion. Beyond the foregoing, allegations that Respondent vio- lated Section 8(a)(1) by resolving grievances are also of- fered in support of the General Counsel's arguments that Respondent assisted BEAU unlawfully under Section 8(a)(2). The General Counsel contends that in each in- stance the employee discussed the grievance with Sterry Mahaffey, only to learn thereafter that management had responded favorably to his claim. The first involved employee James McLaughlin As indicated previously, McLaughlin had attempted for for several years to obtain reassignment from his driller posi- 98I was unimpressed by testimony by a single employee that activity on behalf of the UMWA was "squelched" while that of BEAU was per- mitted This "shot gun" testimony by Russell Harpster was to the effect that while BEAU supporters were only told "once or twice to back off," if the men started talking UMWA "the foreman would send them to work and tell them they were not allowed to campaign on the job " Not only was this testimony uncorroborated, but appeared at odds with the atmosphere described by numerous witnesses from both sides of the aisle Harpster's testimony is rejected in this respect 608 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion.99 His conversations, in this regard, with Harry Benjamin and foremen proved inconsequential. Later, however, McLaughlin, about 3 or 4 weeks before the second election, had a conversation with Sterry Mahaf- fey who indicated that through BEAU he would be taking care of complaints, and inquired whether McLaughlin had any. McLaughlin told Mahaffey that he wanted a different job. About 5 days later, he was called to Martyak's office. The latter assertedly told McLaugh- lin that it had been brought to his attention that McLaughlin wanted reclassification from the drill to dozer, and that management was trying to straighten out any complaints that the men had. Martyak reported that he had informed Bill Ricketts, McLaughlin's foreman, that a vacancy on a dozer had come up. The following Monday, McLaughlin reported for work on that dozer. According to Martyak, the reclassification occurred much earlier, in January 1984, and was pursuant to a re- quest by Harry Benjamin. Martyak testified that Benja- min asked him to meet with McLaughlin, inter alia, be- cause McLaughlin had been approaching him time and again in the interest of transferring from the drill. Ac- cording to notes, Martyak allegedly made at that meet- ing, it took place on 13 January 1984, a time interval too early to have been inspired by anyone acting as a repre- sentative of BEAU. i oo The General Counsel challenges the authenticity of these notes, in effect contending that they were manufactured. On the contrary, although Sterry Mahaffey was probably involved in discussions concerning the reclassification,' ° i I believe that determi- nation was made to resolve McLaughlin's complaint prior to the establishment of BEAU. Based on a composite of the credible evidence it is concluded that McLaughlin was reclassified prior to the advent of BEAU, and that any role played by Sterry Mahaffey in that process was limited to that of a con- cerned coworker. This does not, however, provide an answer to the allegation that Respondent violated Sec- tion 8(a)(1) in this respect. The adjustment of McLaugh- lin's grievance entailed the grant of a benefit during the critical preelection period between elections, and shortly after the Regional Director acted on 11 January 1984, to set aside the first election. i o z The evidence as to the reason for this action was that offered through Harry Benjamin, an unimpressive witness. His explanation was insufficient to rebut the presumption of illegality. He tes- tified in this regard as follows: "McLaughlin credibily testified that when initially assigned to the drill some 3 years earlier, he was told that his assignment thereto would be "temporary " too See R Exh 13 101 Contrary to the assertion in Respondent's posthearing brief, Harry Benjamin did not deny that he had a conversation with Sterry Mahaffey concerning the matter Mahaffey himself did testify that shortly after the first of the year prior to the formation of BEAU he had a conversation with Martyak concerning McLaughlin's request for transfer Martyak could not recall the incident Martyak confirms the testimony of Harry Benjamin that he was told to look into the matter. Pursuant thereto he met with McLaughlin, and in a subsequent conversation that day with Hutton and Benjamin , learned of a vacancy in the dozer position and was instructed by the latter that McLaughlin start the following Monday 102 See G C Exh 2(g) Well, for nearly a two and a half year period, Jim had been discussing with me, if there would be any, opportunity for him to be moved off a drill and onto a bulldozer. And, at the time, it was impossible because we were producing the amount of tonage, that we needed every drill we had. And, we only had a limited amount of drillers. So, for a long time there was no way he could get off. And, then after about a year and a half, almost two years of asking, he started to develop a sinus problem. And, as our production decreased, we began to get excess drillers, and the ones that were complaining of the problem, were the first ones we took off the drills Jim came to me and had been asking to be taken off drill. The opportunity was right and we did him a favor of taking him off He had been doing a good job, and since we had excess drillers, I felt that he deserved it. Apart from my mistrust of Harry Benjamin, there are other suggestions that arouse doubt that the reassignment of McLaughlin was merely a rountine personnel action, triggered through an evolving process, through which, after several years, a suitable vacancy suddenly emerged. While I would agree that Respondent was not obligated to avoid routine recurrent personnel action during this relatively lengthy organizational campaign, Respondent's own testimony as to the events of 13 January belie that this was the case The actions of Martyak, Harry Benja- min, and Hutton possessed a "hurry-up" flare, whereby, through the burst of energy described by Martyak, an af- firmative effort was made to locate a vacancy and, once confirmed, to put McLaughlin in it immediately Consist- ent with McLaughlin's credited testimony as to the sudden interest of management in straightening out "any complaints the men had," it is concluded that this resolu- tion of a longstanding grievance was discretionary, pro- voked by Respondent's desire to open the new election campaign by eliminating a longstanding injustice, and an act calculated to contribute to reversal of the results of the first election. It is concluded that the grant of bene- fits was designed to interfere with employee choice at the election, and hence violated Section 8(a)(1) of the Act. Less persuasive is the General Counsel's claim founded upon the case of William Rounds. Rounds had been laid off in July 1983. In this connection, Sterry Mahaffey tes- tified that an unidentified employee had mentioned that Rounds should be working because he was laid off out of seniority. He admits that he mentioned that matter to Martyak, but took no followup steps.los ios In this regard, Russell Harpster testified that an employee named Chuck Harnich asked Mahaffey how come Rounds had been laid off when he had 7 years service Sterry indicated that he would check into it According to Harpster, Mahaffey raised the matter at a BEAU meet- ing observing that Bill Rounds had been unjusty laid off and stating that he had checked the matter out with Dave Benjamin Mahaffey allegedly said that Benjamin told him there was a freeze and Rounds could not be recalled until after the vote, but that he would be recalled after the vote I have not regarded Russell Harpster as a credible witness His uncorro- borated testimony as to what he heard at a BEAU meeting is rejected BENJAMIN COAL CO Martyak testified that Rounds was within a group re- called from layoff in July 1984, some 4 months after the rerun election. It does not appear that he was granted any preference. It was the sense of Martyak's testimony that the recall at that time was based on a request from operations that additional manpower was needed and that he consulted with no one in scheduling Rounds within the group slated for recall. In this instance, the uncontradicted testimony of Martyak was believed "I In the circumstances, the evidence does not establish that the recall of Rounds derived from intercession by Sterry Mahaffey or that it was in any way related to an effort to assist BEAU in violation of Section 8(a)(2). Further- more, it is clear that the recall of Rounds was totally dis- associated from any attempt to influence the outcome of the earlier election, and the evidence is also sufficient to refute any notion that this rountine action was designed to influence any future question concerning representa- tion Hence no grant of benefit violative of Section 8(a)(1) of the Act was involved. On balance, while it is clear that Respondent and BEAU shared at least one common objective namely, defeat of UMWA, the evidence of unlawful assistance is limited to the condoned participation of Sara Mahaffey in that organization, and the impression conveyed by David Benjamin that it was his own decision to utilize BEAU as the conduit for presentation of speakers to ar- ticulate Respondent's campaign views, a declaration not only evidencing substantial assistance to BEAU in waging its own antiunion campaign, but also conveying a strong message that BEAU held the imprimatur of man- agement as a labor organization in which employee par- ticipation was welcomed. To this extent, it is found that Respondent violated Section 8(a)(2) and (1) of the Act. IV. CASE 6-RC-9403 The objections filed by the Petitioner-Charging Party with respect to employer conduct interfering with free choice in the rerun election conducted on 14 March 1984 are coextensive with certain alleged unfair labor prac- tices set forth in the consolidated complaint 105 By virtue of unfair labor practice findings heretofore made, and occurring within the critical period preceding the rerun election, certain objections based on threats, coer- cive interrogation, statements that unionization would be futile, promises and grants of benefit, assistance and sup- port to a rival labor organization, and the discriminatory layoff and transfer of Wayne Anderson have been sub- stantiated. Accordingly, the aforesaid objections are sus- tained and based thereon it shall be recommended that the election conducted on 14 March 1984 be set aside. THE REMEDY A. The Gissel Allegation 1. Preliminary statement The consolidated complaint in this proceeding alleges that the unfair labor practices alleged therein entailed a 104 See R Exh 15 105 See G C Exh 2(i) 609 course of conduct precluding the holding of a fair elec- tion among the employees in the unit. Accordingly, it is claimed tht entry of a remedial order requiring Respond- ent to recognize and bargain with the Union as exclusive majority representative of employees in the appropriate unit is warranted under authority of NLRB v. Gissel Packing Co., 395 U.S 575 (1969) Such relief was author- ized by the Supreme Court under conditions where "the extensiveness of an employer's unfair labor practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future . . . [indi- cates] . . . that the possibility of erasing the effects of past practices and of insuring a fair election [or a fair rerun] by the use of traditional remedies, though present, is slight "106 2. The appropriate unit The complaint alleges, the answer admits, and it is found that the following employees of the Respondent- Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees em- ployed by Respondent at its facilities in Cambria, Center, Clearfield, Jefferson and Indiana Counties, Pennsylvania; excluding office clerical employees and guards, professional employees and supervisors as defined in the Act 3 The request for recognition By mailgram dated 2 September 1983, UMWA noti- fied the Employer that "the majority of your employees in an appropriate bargaining unit at . . . Benjamin Coal Company operations have designated the United Mine Workers of America as exclusive representative of all such employees with the purpose of collective bargaining in respect to rates of pay, wages, hours, and other terms and conditions of employment " while further stating: The Union requests negotiations with you with re- spect to rate of pay, wages, hours, and other terms and conditions of employment. 107 4. The Union's majority By amendment to the complaint the General Counsel alleged that between 14 August 1983 and 31 December 1983, UMWA obtained majority support from employees 101 395 U S at 614 107 See G C Exh 6(b) Respondent contends that issuance of a bar- gaining order is not supported because no request for bargaining was made at a time after UMWA's designation by a majority Even if the fac- tual premise underlying said claim were accurate, an issue that need not be reached herein, under established Board policy such a demand is dis- pensable where all that is sought is a bargaining order "to remedy extensive unfair labor practices " See, e g, Naum Bros, 240 NLRB 311 (1979) Contrary to Respondent the decision of the Third Circuit in Hed- strom Co v NLRB, 558 F 2d 1137 (1977), is not inconsistent with Board policy in this respect As shall be seen, although the complaint alleges an 8(a)(5) violation, resolution of subordinate issues with respect thereto will not otherwise affect the remedy, or the result, and hence the 8 (a)(5) alle- gation is not passed on here 610 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD in the appropriate unit. In connection therewith, it ap- pears through documentary evidence and stipulation that the appropriate unit during that timeframe consisted of 501 employees In support of its claim of majority, the General Counsel presented authorization cards signed by 298 employees which on their face purport to be valid designation of UMWA. Respondent challenges the validity of the cards on several grounds. With a single exception, however, these contentions would not appear to raise a material issue as to the Union's majority. Having examined the record, reservations expressed by me to the parties during trial, as to necessity for litigating majority on the basis of cards, have been confirmed. It will be recalled that in the first election, conducted on 17 November 1983, the Union was designated by a majority in a secret-ballot election conducted by the Board. In the circumstances of this case, that majority provides stronger prima facie evi- dence, albeit informal, of the extent of union support than might be gleaned from "notoriously unreliable" au- thorization cards. The fact that the election was set aside was a technicality which, in the light of UMWA's non- admission, did not alter the fundamental truism that the Union was designated by a majority in that secret-ballot election. Any taint to the majority that had emerged in consequence of said election was subject to litigation in this proceeding, and the challenge thereto which was in fact registered by the Respondent, would, if substantiat- ed, have the same disabling impact upon the authoriza- tion cards 108 In other words, if Respondent's contention should prove sufficient to negate the results of the elec- tion, the cards would necessarily fall by the same stroke. At the same time, the General Counsel is in no way prejudiced by refusal to canvass the cards or a finding that the Union did not actually represent a majority until 17 November 1983 Thus, the 8(a)(5) allegation is ren- dered superfluous if a remedial bargaining order is deemed appropriate here, although dependent on the same rationale. Furthermore, to find that the UMWA re- presentated a majoirty at any earlier date would fail to affect any other allegation in the complaint or any remedy to be deemed appropriate here. Accordingly, findings with respect to each of the respective cards, in order to ascertain whether or when the Union achieved majority support, constitutes nothing more than a time- consuming sterile exercise The only viable challenge to the majority evident from the results of the first election is the claim by Respond- ent that UMWA engaged in blatant' appeals to anti-Semi- tism to further its organizational interest,109 a contention 108 The reverse, however, would not be true Thus an attack on au- thorization cards on grounds that they were not properly authenticated, or failed to reflect majority support fails to diminish the evidence of ma- jority reflected on the face of the tally furnished after the election 109 Respondent appears to contend brodaly that the results of the second election, in which the Respondent received a majority, should be sustained if the claim of improper racial appeals is substantiated The effect of this contention is that the Employer's unlawful interference with that election should be overlooked and employees denied an opportunity to an expression of choice because of an alleged pattern of inspired bigot- ry Contrary to Respondent, this issue has limited application to the ques- tion of whether the UMWA ever represented an uncoerced majority of employees in the appropriate unit The question concerning representa- which raises a fundamental question whether the Union in fact ever represented an uncoerced majority. Harry Benjamin and David Benjamin are of the Jewish faith. Undeniably, anti-Semitic comments were made by employees who campaigned actively for the UMWA and were members of the employee organizing committee. It is also clear, however, that the singling out of the Benjamins' religious beliefs for derisive comment was not isolated to this campaign or to employee protag- onists of the Union. Most of the witnesses, who afforded testimony in support of this contention, conceded that prior to the union campaign derogatory references to the religion of David Benjamin were commonplace if not rampant."° Indeed, the source of anti-Semitic remarks pertaining to the Benjamins' was not limited to the rank- and-file employees, but foremen and higher managers were implicated as having participated in these profane references.111 Contrary to the Respondent, I have difficulty in relat- ing these remarks to any conduct condoned or inspired on the part of UMWA. Several witnesses testified with- out contradiction tht despite a history of anti-Semitism by rank-and-file and foremen alike, it was its heaviest im- mediately after the wage cuts were announced, when frustration and ill-will toward the Benjamins peaked. As indicated the cuts were announced prior to UMWA's ar- rival on the scene, suggesting that the revitalization of anti-Semitism was an irrational, spontaneous employee outburst with which UMWA could not have been associ- ated. At the very least, Respondent has not shown that this initial flurry of activity was spawned, nurtured, con- doned, or even took place for that matter, while UMWA had an organizational interest in employees of Benjamin Coal Moreover, credible evidence fails to establish any at- tempt on the part of nonemployee organizers or the UMWA itself to exploit or further any form of ethnic di- visiveness Not a single epithet has been imputed to any UMWA official or professional representative or any publication generated or approved by the organiza- tion. 1 12 Nor does it appear that the Union sponsored speakers from the community, tending to be respected by the employees, who made anti-Semitic remarks in an effort to encourage employees to support the Union. 113 tion, however, is not affected thereby, and the Board's holding in San- gamo Weston, Inc, 273 NLRB 256 (1984) (Sangamo II), does not require otherwise In that case, the Board simply held that union misconduct might be considered in determining whether loss of majority was causally connected to an employer's unfair labor practices The question whether the union's misconduct would prevent the holding of a rerun election was not before the Board in that case, as the petition in the representa- tion case had been dismissed by the Regional Director on issuance of the unfair labor complaint See Sangamo Weston, Inc, 251 NLRB 1597, 1599 (1980) (Sangamo I) ' 10 See testimony of Russell Harpster, Mary Queen, Daniel Carlson, and Donald Mooney 111 See testimony of Randy Westover, Daniel Mooney, Joe Mazenko, Bill Buck, and David Leasure Indeed, Bill Buck testified, credibly and without contradiction, that he heard anti-Semitic remarks from the fol- lowing foremen James Fleming, Ronald Schultz, Bill Ricketts, Darrel Jefferies, and Superintendent Don Hutton 112 Cf NLRB v, Silvermen's Wear, 656 F 2d 53 (3d Cir 1981), in which an allegation that the Union's secretary-treasurer at a campaign meeting, 6 days prior to the election, referred to the Union as a "stingy Jew " 113 Cf NLRB v, Triplex Mfg, 701 F 2d 703 (7th Cir 1983) BENJAMIN COAL CO The strength of Respondent's case rests on remarks by employee participants on the in-house organizing com- mittee However, the credible evidence does not estab- lish that any slurs against the Union were made by mem- bers of the employee organizational committee in the course of union meetings or under conditions known or condoned by UMWA. Indeed, the only evidence of de- rogatory religious references having been made by them in the presence of UMWA officials was afforded through Sterry Mahaffey, Frank Errigo, and Randy Westover. I have already expressed my reservations concerning the credibility of Sterry Mahaffey His assertions concerning conduct of McCracken and McCombs at UMWA meet- ings possibly held as early as August 1983 was lacking in corroboration from believable sources. Here again, it was my impression tht Mahaffey's testimony was a function of his willingness to provide whatever was necessary to further Respondent's interest in the proceeding. My as- sessment of Errigo was no different The obviously exag- gerated scenario depicted in his testimony failed even to approximate any other reports of what transpired, and the grudging resentment he portrayed toward the UMWA might well have sprung from his past business dealings with Harry Benjamin, a relationship Errigo sought to hide.' 14 I credit neither of them. Randy West- over's testimony was inconclusive, for, at best, he related that in November 1983 he provided a statement to the Respondent expressing the fact that he "thought" he heard McCombs call Benjamin "a dew son of bitch" at a UMWA meeting. However, the balance of his testimony plainly reveals his lack of certainty as to who made the statement. Westover could not recall the circumstances and had no recollection whether or not a UMWA offi- cial reacted to it In my opinion this is a far too flimsy and isolated a mantle to support the claim that UMWA condoned an ethnic slur To counter Respondent's position in this regard, the General Counsel produced McCracken, Mazenko, Cathy Buck, and William Buck, all of whom testified that during numerous meetings that they attended, a sponta- neous remark by Ray Smocheck an employee who was not a member of the organizing committee, contained the only reference to the Judaic faith ever made at a union meeting According to their testimony, Smocheck was quickly quieted by UMWA organizers Larry Pasquale or Rich Chirstman, who informed those in attendance that remarks of that kind were irrelevant. On balance, it is nothing less than regrettable that workplace anti-Semitism has been rampant for many years in the Benjamin operation Convincing evidence establishes that rank-and-file employees, foremen, and high-ranking management officials, including the third in command of production operations, Superintendent Don Hutton, were guilty of ethnic slurs against the Benja- 14 Erngo denied that Harry Benjamin was a customer of his Indeed he merely characterized his association with the Benjamins as "I just know of them " Harry Benjamin, on the contrary, acknowledged that he had purchased items from Errigo on three separate occasions, a contra- diction that I find difficult to reconcile with the fact that Errigo was an antique dealer in the small community of Mahaffey, Pennsylvania, who most certainly would have a recollection of a repeat customer whose most recent purchase was during the Christmas season of 1983 611 mins. Yet, the insulting and profane references contribut- ed by prounion employees to this unfortunate history were not shown to have varied from the manner in which hostility, anger, and frustration were directed toward their employer over the years. The entire phe- nomenon might well be categorized as empassioned ob- scenity, rather than a calculated effort to exacerbate racial or religious feelings However disgraceful these re- marks, there is no basis for finding that the Union was responsible for them. The credible testimony implicating Charles McCombs, Thomas McCracken, Kenneth Bee, and Tim Mazenko in such conduct does not describe these occurrences as having taken place at official union functions, or within the presence of union representa- tives. Whatever responsibilities under law that a labor or- ganization might have for those participating on an in- house organizing committee, no authority is called to my attention which renders a union vicariously liable for any and all conduct of such individuals, whether or not con- doned, ratified, or authorized Beyond that, not a single comment with racial or ethnic overtones was imputed to any union representative, nor does it appear that the Union's propaganda included even the remotest refer- ence to ethnic considerations or the spiritual beliefs of the Benlamins Respondent's claim that the majority en- joyed by UMWA on 17 November 1983 was tainted by UMWA's effort to "exacerbate racial feelings" on the basis of "inflammatory appeals" is totally lacking in evi- dentiary support and is deemed nonmeritorious. I i s B. The Appropriateness of a Bargaining Order The General Counsel seeks a Gissel II remedial bar- gaining order pursuant to an allegation that that Re- spondent has committed unfair labor practices "so sub- stantial in character that the possibility of erasing the ef- fects of these unfair labor practices and conducting a fair rerun election by the use of traditonal remedies is slight and . . . sentiments regarding representation, having been expressed through authorization cards would, on balance, be protected better by issuance of a bargaining order, than by traditional remedies alone." There is no debating that it is often difficult to identify the circumstances where a remedial bargaining order will appropriately apply. The issue is to be resolved on a case-by-case basis, without benefit of mechanical equa- tion. Compounding the uncertainty is the fact that the focal point of the Gissel doctrine is a hypothetical event, thus requiring at least a degree of enlightened specula- tion and judgment not always explainable in concrete terms. This being the case, it is to be expected that rea- sonable minds will differ as to the quantum of illegality necessary to injure beyond repair the Board's election process. Yet there can be no mistaking the importance of the Gissel remedy to the integrity of that process The Board volumes are legion with cases in which freedom i i s In this connection it is noted that the Second Circuit Court of Ap- peals in NLRB v Utell International, 750 F 2d 177, 179 (1984), affirmed the Board's action in overruling objections based on references to race by employee members of an in-house committee stating in part, "it must be remembered that these statements were not made, and certainly not ex- pressly ratified, by any Union official " 612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of choice would have been reduced to a naked platitude if left to the mercy of those whose only interest is total subversion of the procedures created in Section 9 of the Act With all its shortcomings, the Gissel doctrine has heightened the confidence of working men and women in the right guaranteed them to form, join, and support a labor organization. It is important therefore to approach the issue in principled fashion mindful of the fact that to withhold the remedy sanctioned therein in a fitting case is dust as destructive of employee choice as to apply it where unwarranted. At present, prevailing views do not appear to lend the most receptive climate for consideration of relief under Gissel. Recent appellate court decisions have continued to stress concern as to the propriety of a bargaining order, reiterating a strong "preference . that the union representative be chosen in a free election." See, e.g., NLRB v. K. J Coty Messenger Service, 762 F.2d 92 (2d Cir. 1985), NLRB v. K & K Gourmet Meats, 640 F.2d 460 (3d Cir. 1981). See NLRB v. Village IX, 723 F.2d 1360, 1370 (7th,Cir. 1983), NLRB v. J. M. Machinery Corp., 410 F 2d 587, 591, (5th Cir. 1969). The evidence strongly suggests that the Board now shares the point of view that the election process is to be abandoned, in favor of a bargaining order, only sparing- ly. First, as shall be seen, research discloses that since 1 January 1983, the Board has approved remedial bargain- ing orders in but nine cases where the issue was contest- ed before the Board.' 16 In addition, the Board has re- called cases previously decided and pending in the cir- cuits for reconsideration of Gissel remedies. Further in- dicative of the Board's sensitivity to this form of relief is its refusal to issue summary judgment on Gissel com- plaints even though uncontested due to the employer's failure to file an answer, an oversight whereby such alle- gations are deemed true under the Board's Rules and Regulations, Section 102.20 See Power Jet Cleaning, 270 NLRB 975 (1984); Handy Dan's Convenience Store, 275 NLRB 394 (1985). Perhaps the most ominous sign concerning the future of the Gissel remedy appeared in the Board's recent deci- sion Sangamo II, supra, in which it was suggested that the undermining of a majority in consequence of an em- ployer's unfair labor practices must be demonstrated by "more than speculation," a view implicit in reasoning by 116 Bargaining orders were approved in Photo Drive Up, 267 NLRB 329 (1984) (Members Jenkins, Zimmerman, and Hunter) in the face of massive violations including the discharge of the main union activitst and threats of plant closure, in Tall Pines Inn, 268 NLRB 1392 (1984) (Chair- man Dotson and Members Zimmerman and Hunter), in which massive unfair labor practices, included unlawful discharge of 25 percent of those signing union authorization cards, in Soil Engineering Co, 269 NLRB 55 (1984) (Chairman Dotson and Members Zimmerman and Hunter), in which one-third of the appropriate unit was terminated unlawfully, in Swan Coal Co, 271 NLRB 862 (1984) (Chariman Dotson and Members Hunter and Dennis), in which one-third of the bargaining unit was vic- timized by discriminatory termination, and in both Bernal Electric, 271 NLRB 1557 (1983) (Chairman Dotson and Members Zimmerman and Hunter), and Balsam Village Management Co, 273 NLRB 420 (1984) (Members Zimmerman and Dennis, with Chairman Dotson dissenting), in which the violations consisted of no less than discharge of the entire bar- gaining unit Such relief was approved recently in Moe Warehouse & Ac- cessory, 275 NLRB 1132 (1985), but on a pro forma basis, as the employer failed to except to the administrative law judge's recommendation the Board that in Sangamo said loss might have been at- tributable to other causes, such as. [T]hreats [in the union's propaganda] could have backfired on the Union and caused employees to want to have nothing further to do with it . . . . [Employees] may have been influenced by the Re- spondent's legitimate arguments concerning the pos- sible adverse effects of voting the Union in as bar- gaining representative. [273 NLRB at 258.] From the foregoing, the Board went on the conclude as follows (ibid): With all these factors operating on employee choice, it would be little more than speculation to conclude that Respondent's unfair labor practices were the factor that decisively tipped the scales. No matter how severe and pervasive the unfair labor practices, this dictum is sui generic and broad enough to be interposed in any circumstance as a means for deny- ing relief under Gissel At the very, least, it signals selec- tive approval of bargaining orders in only extreme cases. While the trend is apparent, the Board's minimum re- quirements have not crystalized to unmistakable levels, for, a degree of flexibility appears to have been pre- served in three recent cases, which were not expressly overruled in Sangamo II, supra. Each sanctioned a reme- dial bargaining order in the face of multiple "hallmark" violations In Horizon Air Services, 272 NLRB 243 (1984), enfd 761 F 2d 22 (2d Cir. 1985), the owner of the busi- ness himself committed violations in circumstances where 6 of 12 employees were targets for 8(a)(1) con- duct, which included threats of job loss, and the dis- criminatory discharge of an employee, who with a co- worker, had been the initial union contact and the most active protagonist Members Zimmerman, Hunter, and Dennis approved issuance of a remedial bargaining order on these presents. A like result was reached in J. Coty Messenger Service, 272 NLRB 268 (1984), on threats of closure and discharge, promises of benefit, and the un- lawful discharge of a union supporter. (Members Zim- merman and Hunter; with Chairman Dotson dissent- ing.)' 17 See also J. & G. Wall Baking Co, 272 NLRB 1008 (1984), in accord On authority of these latter decisions, it is concluded here that Respondent's employees will be unable to exer- cise a choice in a future election unencumbered by the lingering coercive effects of the instant unfair labor prac- tice. Thus, the facts show that both elections were pre- ceded by a widespread pattern of misconduct. Most sig- nificant, however, was the fact that immediately after the parties agreed to. set aside the first election, management reacted with alacrity to neutralize issues, readily identifi- able as having given impetus to the UMWA organiza- tional effort. Thus, Personnel Manager Martyak, Harry Benjamin, and Superintendent Hutton collaborated only 11 Enforcement of the bargaining order was denied in NLRB v J Cory Messenger Service, 762 F 2d 92 (2d Cir 1985), but solely on the basis of the Board's failure to consider "subsequent" events which might have mitigated the effects of the unfair labor practices BENJAMIN COAL CO 4 days later to resolve the longstanding grievance of em- ployee McLaughlin by transferring him to a more desira- ble job Later, the strongest rallying point for UMWA was undermined when Foreman Fleming promised that, with defeat of the Union, the wage and benefit cuts that had caused employees to initiate union activity in the first instance would be restored. On the hotly debated issue of retirement benefits, Sara Mahaffey stole the UMWA's thunder by promising that certain controver- sial qualification standards in Respondent's pension plan would be eliminated. The sincerity behind her offer was soon reinforced by Respondent's unlawful change of po- sition with respect to its denial of a pension to John Lea- sure some 3 years earlier. Also, corresponding with the announcement of the rerun election was the discrimina- tion against Wayne Anderson, a leading proponent of the UMWA and member of the in-house organizing commit- tee. Thus, on the heels of Anderson's restoration to active employment following an unlawful furlough, he was greeted by David Benjamin with the "Dear Jerk" letter, an act of hostility explainable only in terms of An- derson's union activity. This animus, shortly, thereafter, was reaffirmed by a further act of discrimination, in the form of Anderson's transfer to a less remunerative posi- tion. These "hallmark" violations, committed after the union demonstrated its majority through the election of 17 November 1984, were augmented throughout by addi- tional misconduct, which there is every reason to believe reached each and every sector of the voting group Prior to the second election, as was true of the first, front-line supervision was encourgaged to carry forth the Compa- ny's antiunion message. They responded with a massive and continuing assault on statutory rights, consisting of threats of job loss and expressions that the Respondent would never sign an agreement with the UMWA On a daily basis employees were prepared with threats, reiter- ated during the second campaign by seven supervisors as well as the third in command of the overall operation, Superintendent Donald Hutton Virtually every type of peril within imagination was linked to UMWA, including retaliatory discharge, plant closure, layoff, personal vio- lence, and destruction of property. Beyond that loss of homes, automobiles, and other personal effects were identified dramatically by management as among the perils of voting "Yes." Consistent with teachings of such circuit court decisions NLRB v. Jamaica Towing, 632 F.2d 208, 212-123 (2d Cir 1980); NLRB v. Town & Country Supermarkets, 666 F.2d 1294, 1305 (10th Cir. 1981), violations of this type are acknowledged as "hall- mark," and hence a rightful predicate for a bargaining order The principle that numerous "hallmark" violations furnish a presumptively appropriate background for a Gissel remedy appears in consonance with present Board policy as reflected in Horizon Air Services, supra, J. & G. Wall Baking Co., supra, as well, as J. Coty Messenger Serv- ice, supra, in which the Board majority stated: It has long been established that threat of loss of employment . . . and the threat of plant closure . . . are likely to have a lasting and inhibiting effect on a significant portion of the workforce, detroying 613 election conditions, and are therefore "hallmark vio- lations, supporting the issuance of a bargaining order absent significant mitigating circumstances. [272 NLRB at 269 (emphasis added).] Those cases also subscribe to the point of view that direct involvement by owners and high-level managers in a pattern of coercive conduct will reinforce the serious- ness of the threat to a fair election in the future, render- ing the possibility of uncoerced choice unlikely. Under this view the participation of chief functionaries tends to reinforce indelibly in the minds of employees the serious- ness of the employer's action at the expense of traditional Board remedies. Against this background, including David Benjamin's machinations with BEAU, grants of benefits by Harry Benjamin and Personnel Manager Martyak, and numer- ous coercive comments, perhaps communicated on a daily basis by Plant Superintendent Hutton, the Employ- er's unfair labor practices are sufficiently extensive to preclude the effectiveness of conventional Board reme- dies in achieving a climate in which employees in the future could register their sentiment on the issue of rep- resentation in genuine fashion Accordingly, it is con- cluded that the majority demonstrated in the election conducted by the Board on 17 November 1983 consti- tutes a more reliable indicia of employee desires than would be true of any conducted in the future. Accord- ingly, it shall be recommended that Respondent, on re- quest, recognize and bargain with the Union as the ex- clusive representative of employees in the appropriate bargaining unit. i i s C. General Remedial Provisions Having found that the Respondent has engaged in cer- tain unfair labor practices, it shall be recommended that it be ordered to cease and desist therefrom and take cer- tain affirmative action necessary to effectuate the pur- poses and policies of the Act. It having been found that Respondent violated Section 8(a)(3) of the Act by first furloughing, and thereafter transferring employee Wayne Anderson to a less remu- nerative position, during the period December 1983 through February 1984, it shall be recommended that Respondent be ordered to make him whole for earnings lost by reason of the discrimination against him, with backpay to be computed on a quarterly basis pursuant to F. W. Woolworth Co., 90 NLRB 289 (1950), with interest 118 There is no merit in Respondent's claim that changes in circum- stances since the UMWA was designated by a majority impel the with- holding of a bargaining order First the identity of the voting group, though reduced in size (500 to 362), otherwise remains the same with no new hires in the interim Second, the evidence that supervisory perpetra- tors of unfair labor practices have been "demoted" or "departed" was not litigated with any degree of thoroughness, is cryptic and underdevel- oped, while lacking in any showing that Respondent was the catalyst behind such action or that employees were apprised that any personnel changes were effected in the interest of neutralizing the effects of unlaw- ful conduct Finally the fact that Respondent, while the initial complaint was pending filed a reorganization petition for bankruptcy under chapter 11 of the Bankruptcy Code furnishes no ground for frustrating the statu- tory remedial scheme beyond the qualification articulated in NLRB v Bildisco & Bildisco, 465 U S 513 (1984) 614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD as prescribed in Florida Steel Corp., 231 NLRB 651 (1977).119 CONCLUSIONS OF LAW 1 The Respondent is an Employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2 The UMWA and BEAU are labor organizations within the meaning of Section 2(5) of the Act 3. Respondent independently violated Section 8(a)(1) of the Act by threatening employees that the plant would close, be sold, or go into bankruptcy in the event of unionization; by telling employees that reprisals, in- cluding discharge and violence to person and property, would be effected against UMWA supporters and/or those who afforded evidence against the Employer in the investigation of unfair labor practices charges, by coer- cively interrogating employees concerning their own and the union activities of others; by requiring employees to remove union literature from company vehicles under disparate conditions; by promising benefits to employees conditioned on their rejection of UMWA; by granting benefits to employees to discourage support of UMWA; and by physically assaulting an employee because he sup- ported an investigation of unfair labor practice charges. 4 Respondent violated Section 8(a)(2) and (1) of the act by condoning the participation of a management rep- resentative agent, Sara Mahaffey, in BEAU, and by making statements to the employees implying tht BEAU was an instrumentality used by management to communi- cate its antiunion views. 5. Respondent violated Section 8(a)(3) and (1) of the Act in December 1983 by denying employment to Wayne Anderson, and by transferring him in January 1984 to a less remunerative backfill job, all in reprisal for his union activity. 6. All production and maintenance employees em- ployed by Respondent at its facilities in Cambria, Center, Clearfield, Jefferson, and Indiana Counties, Pennsylvania, excluding office clerical employees, guards, professional employees and supervisors as defined in the Act, consti- tute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act 7. The UMWA since 17 November 1983 is and has been at all times material, the designated representative of a majority of employees in the unit described above and is the exclusive bargaining representative of the aforesaid employees within the meaning of Section 9(a) of the Act On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed1zo 119 See generally Isis Plumbing Co, 138 NLRB 716 (1962) 120 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 ORDER The Respondent, Benjamin Coal Company and Empire Coal Company, Inc., and/or Benjamin Coal Company, debtor-in-posession, and Empire Coal Company, Inc., debtor-in-possession, LaJose, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discourageing membership in a labor organization by furloughing, transferring to less remunerative work, or in any other-manner discriminating against employees with respect to their wages, hours, or tenure of employ- ment. (b) Threatening to close, go out of business, or file for bankruptcy if employees designate UMWA as their col- lective-bargaining representative. (c) Informing employees that their designation of UMWA would prove futile because Respondent would never enter a collective-bargaining agreement with a labor organization (d) Threatening employees with discharge, physical vi- olence to their persons and property, and other unspeci- fied reprisals because of their activity on behalf of the UMWA or their participation in investigation of unfair labor practice charges. (e) Promising that benefits would be improved if em- ployees rejected the UMWA as their collective- bargain- ing representative. (f) Threatening that the pension plan would be elimi- nated if the UMWA were designated (g) Coercively interrogating employees concerning their own and union activities of coworkers. (h) Resolving grievances or granting benefits under conditions discouraging employees from supporting UMWA (i) Under disparate conditions, requiring employees to remove UMWA literature from company vehicles. (1) Interfering with the administration of, and furnish- ing assistance to, BEAU, a rival labor organization, by creating the impression that said labor organization was used by management as an instrumentality for conveying antiunion propaganda and by permitting an agent of management to serve as an official thereof. (k) Physically assaulting employees for having partici- pated in an investigation of unfair labor practice charges. 2 Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make whole Wayne Anderson for any loss of earn- ings he may have suffered by reason of the unlawful dis- crimination against him in the manner set forth in the remedy section of this decision. (b) 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. (c) On request, bargain with United Mine Workers of America as the exclusive representative of all employees of the appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employ- ment, and, if an understanding is reached, embody such BENJAMIN COAL CO understanding in a signed agreement. The appropriate bargaining unit is. All production and maintenance employees em- ployed by Respondent at its facilities in Cambria, Center, Clearfield, Jefferson and Indiana Counties, Pennsylvania; excluding office clerical employees, guards, professional employees and supervisors as defined in the Act (d) Post at its facility in the aforesaid counties copies of the attached notice marked "Appendix 111 21 Copies of 121 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 " 615 the notice, on forms provided by the Regional Director for Region 6, 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. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that the election con- ducted on 14 March 1984 in Case 6-RC-9403 be set aside and that the petition be dismissed.