Superior Coal Co.

SUPERIOR COAL CO. 439 Superior Coal Company and International Union of United Mine Workers of America. Case 18- CA-9814 June 15, 1989 DECISION AND ORDER BY MEMBERS JOHANSEN , HIGGINS, AND DEVANEY On November 28, 1988, Administrative Law Judge William A. Pope II issued the attached deci- sion. The Respondent and the General Counsel filed exceptions and supporting briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record' in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions and to adopt the recommended Order as modified. 3 AMENDED CONCLUSIONS OF LAW Substitute the following as Conclusions of Law 6 and 7. 1 The Respondent's motion to reopen the record is denied as the evi- dence the Respondent seeks to admit relating to the mine's subsequent closing would not affect the judge's findings, which we adopt The Re- spondent may, however, present its evidence in the compliance proceed- ings to determine the backpay owed to discriminatees. 2 The Respondent has excepted to some of the judge 's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing the findings. While we agree with the judge that the comments of the Respondent's president, Huyser, at the meeting on September 15 or 16, 1986, constitut- ed a threat, we find it unnecessary to rely on the judge's conclusion that Huyser was implying that he would not negotiate with the Union. We find that by stating if "we could not sell coal at a profit , we would not sell coal," in the context of the rest of his speech , Huyser was threatening to close the mine if the Union won an election, and not merely making a prediction based on his belief as to demonstrate probable consequences beyond his control Contrary to his colleagues, Member Higgins would not find that Huyser's statement that if "we could not sell coal at a profit, we would not sell coal," constituted an unlawful threat to close In the absence of other unlawful statements made by Huyser during his meeting with em- ployees, Member Higgins views this remark as a lawful expression of opinion. 8 The judge inadvertently dismissed allegation 5 (e) of the General Counsel's complaint which stated, "On or about September 15, 1986, Re- spondent, by its Mine Superintendent Lee, threatened that employees would be discharged because of their activities for and on behalf of the Union " Thus, the judge specifically found , and we agree, that Lee did make such a threat and ordered that the Respondent cease and desist from such conduct . We correct this technical error by reinstating the al- legation. The judge also found that Mine Manager Lebo's comment to employee McCarty that employee Bregar's termination would "calm the problems with the union down" violated Sec. 8(axl), but failed to in- clude this violation in his conclusions of law, and failed to provided a remedy for this violation. We shall accordingly amend the judge's con- clusions, Order, and notice to conform to his findings in this regard. "6. The Respondent violated Section 8(a)(1) of the Act during the month of September 1986 by in- terrogating an employee concerning his union ac- tivities, by threatening that employees who actively participated in the union organizing campaign by the Union would be fired, by threatening closure of Respondent Superior No. 2 mine if the employees selected the Union as their representative for col- lective-bargaining purposes, and by stating that em- ployees were fired because they engaged in con- certed, protected activities." "7. Paragraphs 5(c), (f), and (g) of the complaint are repetitive, or have not been proven by a pre- ponderance of the evidence, and are dismissed." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Superior Coal Company, Lovilia, Iowa, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Insert the following as paragraph 1(d) and re- letter the subsequent paragraph. "(d) Stating that employees have been fired be- cause they joined, supported, or assisted a union, or otherwise engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection." 2. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- 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 coercively question you about your union support or activities. 295 NLRB No. 51 440 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT threaten to close Superior No. 2 coal mine or any of our other facilities if you select the United Mine Workers of America, or any other union, to be your representative for collective-bar- gaining purposes. WE WILL NOT threaten you with discharge or other reprisals, or discharge, lay off, or otherwise discriminate against any of you for joining or sup- porting the International Union of United Mine Workers of America, or any other union. WE WILL NOT state that employees have been fired because of their union activity and support. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Dennis Bregar, Norman Nupp, Michael Bingham, Robert Carr, Jim Deeringer, Eugene Fry, Rick Fry, Jon McCarty, Kyle Petty- john, Norman Simmons, and Carlton Vinsick im- mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their se- niority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest. WE WILL notify Dennis Bregar and Norman Nupp that we have removed from our files any ref- erences to their discharges and that the discharges will not be used against them in any way. SUPERIOR COAL COMPANY Everett Rotenberry, Esq., for the General Counsel. James S. Clay, Esq. (Lindner & Matsack), of Milwaukee, Wisconsin, for the Respondent. Eldon Prettyman, of Pittsburg, Kansas, for the Charging Party. DECISION WILLIAM A. POPE II, Administrative Law Judge. In a complaint, dated November 26, 1986 , the Regional Di- rector for Region 18 of the National Labor Relations Board, alleged that since on or September 12, 1986, the Respondent (Superior Coal Company) violated Section 8(a)(1) and (3) of the National Labor Relations Act (the Act) by interrogating employee about union activities, threatening to discharge employees because of their union activities, threatening to shut down operations if the employees became represented by a union , and dis- charging two employees and laying off nine employees because they engaged in protected concerted activieies. The original charge in this case was filed by the Interna- tional Union of United Mine Workers of America (the Union) on September 22, 1986; an amended charge was filed by the Union on October 8, 1986. Trial took place between February 24 and May 5, 1987 , in Des Moines, Iowa, before Administrative Law Judge William A. Pope II. I. BACKGROUND Superior Coal Company, the Respondent in this case, is one of three Coal mining and marketing businesses owned and operated by James Huyser in the area sur- rounding the town of Lovilia, Iowa. Superior Coal Com- pany has been engaged in the business of underground coal mining since approximately 1983. Star Mining Com- pany, another of the James Huyser's coal businesses, op- erates a strip coal mine. His third coal-related business, Iowa Coal Mining Company, processes and markets coal produced by Superior Coal Company and Star Mining Company. Superior Coal Company began underground coal mining in 1983 in an underground mine designated as Su- perior No. 1. That mine was abandoned in Janary 1986, because of low coal production resulting from unfavor- able geological conditions. Mining operations were trans- ferred to a newly opened underground mine in a differ- ent location. Most of the employees who went to work in the new mine, known as Superior No. 2, had previous- ly been employed by Superior Coal Company in its Su- perior No. I mine. Entry to Superior No. 2 is through horizontal shafts dug into the earth at the bottom of a pit excavated into the ground to a depth of 110 feet, where the coal seam is located. The shafts, which branch out into chambers inside the mine, provide for entry of men, equipment, and air, and removal, by means of a conveyor belt, of mined coal. The coal is mined by using cutting machines, drills, explosives, loading machines, and shuttle cars. Pil- lars of coal are left standing to support the roof, which is reinforced with long bolts driven into the roof with bolt- ing machines, and by erection of timbers to further sup- port the roof and prevent cave-ins. Superior No. 2 operates with coal production crews, which mine coal at the face, or head of the shaft in use. The supervisor of the production crew is called the face boss.' Mine construction work, including timbering to support the roof, is performed by workers known as the "dead work crew," a term evidently derived from the fact that they did not produce coal . Mechanics repair and maintain the equipment, and the underground oper- ating crews are supported by surface workers, who oper- ate equipment such as loading machine. John D. Lee Sr. was the mine superintendent in charge of mining operations at Superior No. 1, and, until September 1986, at Superior No. 2. Initially, Superior No. 2 operated with two production crews, each of which consisted of 10 to 12 men, and supervised by a "face boss," who reported to Mine Superintendent Lee. The crews alternated monthly between the first shift, which started at 7 a.m. and ended at 3 p .m., and the 1 Prior to a reorganization on September 28, 1986 , the face boss of the first shift was Terry Thompson. The face boss of the second shift was Billy Joe Maddison The parties stipulated that both Terry Thompson amd Billy Joe Maddison were supervisors within the meaning of the Act at all times relevant to this case. SUPERIOR COAL CO. second shift, which started at 3 p.m. and ended at 11 p.m. There were also two "dead work crews," which did not rotate shifts (one worked the morning shift, the other worked the afternoon shift ), surface support work- ers who worked during both of the production shifts, and maintenance workers who worked from 11 p.m. to 7 a.m. Superior No. 2's employees worked 6 days per week, from Monday through Saturday. Once actual mining operation began at Superior No. 2, production problems developed because of unexpected unfavorable geological conditions primarily "low coal," a condition in which the height of the coal seam was less than 48 inches. This problem slowed production of coal, and caused dirt and rock to be mixed with the coal as it was mined. According to mine owner James Huyser, the miners reached an area of thicker coal seams (approxi- mately 48 inches) in the summer of 1986, and production improved, although it did not quite reach the 22,000 to 26,000 tons per month which Huyser wanted.2 Produc- tion during September, October, and November 1986 showed a steady decline, while production during De- cember 1986 showed a sharp increase. 3 On February 20, 1986, Iowa Coal Mining Company entered into an agreement with Iowa Fuel and Minerals, Inc., under the terms of which Iowa Fuel and Minerals, Inc., assigned to Iowa Coal Mining Company perform- ance of the remaining 4-1/2 years of a 10-year contract which Iowa Fuel and Minerals, Inc., had to supply coal to Iowa State University.4 Assignment of the contract was subject to the approval of Iowa State University. On July 21, 1986, however, Iowa State University gave Iowa Fuel and Minerals, Inc. 30 days' notice that it was cancelling the coal contract, because for 3 years (1983- 1984; 1984-1985; and 1984-1985 ;) Iowa Fuel and Miner- als, Inc. had failed to deliver the quantity of coal re- quired under the contract, even though for 1985-1986, Iowa State University had agreed to drop the annual tonnage from 100,000 tons to 80,000 tons. Correspond- ence in the file makes reference to Iowa State Universi- ty's refusal to approve the assignment of the contract to Iowa Coal Mining Company, although the parties did not offer into evidence a specific letter from Iowa State University to that effect. In the summer of 1986, Respondent, citing the need for increased production to keep its customers, informed its employees that they would be paid for vacation time, but would not be permitted to take the time off. On September 9 or 10, 1986, Respondent hired an indi- vidual named Dan Lebo to be mine manager to Superior No. 2 His responsibilities were to increase productivity and decrease costs, in order to increase profits. Lebo re- 2 Production in July 1986 was approximately 21,287 tons; production in August was approximately 21,924 tons . Production from January through June 1986 ranged from 9,466 tons to approximately 17,160 tons. a The following are the production amounts for Superior No. 2 from September through December 1986 September- 17,811 tons ; October- 16,033 tons, November-12,550 tons; and December-24,272 tons. 4 The contract originally called for Iowa Fuel and Minerals , Inc., to supply 100,000 tons of coal a year to Iowa State University from July 1 to June 30 each year Before the contract was assigned to Iowa Coal Mining Company, the amount of coal required under the contract had been reduced by agreement with Iowa State University to 80 ,000 tons a year 441 placed John Lee Sr. as the person with overall responsi- bility for mining operations at Superior No. 2. Although Lee retained the title of mine superintendent , his author- ity and responsibilities were limited to overseeing the work underground. It is undisputed that on September 10, 1986 , Respond- ent's employee, Dennis Bregar, contacted the Union by telephone, and that he and a number of other employees of Respondent met with Eldon Prettyman , a union repre- sentative on September 11, 1986 . At that time, and at various other times at the Respondent's mine and else- where a number of Respondent 's employees, including Dennis Bregar and Norman Nupp, signed cards authoriz- ing the Charging Party Union to be their representative for collective-bargaining purposes.5 On September 20, 1986, Dennis Bregar, an employee on the first-shift dead work crew, was discharged by the Respondent for "reported absenteeism prior to and after warnings by your supervisor." On September 22, 1986, the Respondent also discharged Norman Nupp, another employee on the first-shift dead work crew, for absentee- ism. By letter dated September 23, 1986, Respondent no- tified John D. Lee Jr., the son of Mine Superintendent Lee, that his employment had been terminated effective September 13, 1986, for absenteeism from works On September 26, 1986, Respondent posted a notice at Superior No. 2, signed by James Huyser, announcing a reorganization of the work force.' Under the reorganiza- tion plan, the two existing production units would be re- organized into one larger production unit, called a "Super Section," which would operate during one 9- hour shift. The second shift would be a construction and a dead work crew, which would maintain the mine, build ventilation controls, and move equipment ahead as mining progressed . The third shift would perform main- tenance and repair functions on the equipment . Huyser stated that the size of the work force at Superior No. 2 would be reduced under the planned reorganization, and that the records of the employees would be reviewed to determine if they would be retained, and if so, where they would be placed. He stated a list of the crewmem- bers and job classifications would be posted at the mine the following Sunday. The employees who were released were Terry Thompson (previously a face boss), Jon McCarty, Kyle Pettyjohn, Norman Simmons, Jim Deeringer, Robert Carr, Rick Fry, Gene Fry, Carl Vinsick, and Mike Bingham. All of those released (except Terry Thompson, who was a supervisor), had signed union authorization cards; however, not all the miners who signed authoriza- tion cards were released.8 S A total of 19 Respondent's employees signed authorization for repre- sentation cards between September 11 and 18, 1986. 4 Company records show that John Lee Jr. last worked for Respond- ent on or about September 4, 1986. The notice stated that Superior No 2 historically had not operated efficiently or economically because of lack of preventive maintenance ont eh underground equipment, and absenteeism which contributed to a lower than possible rate of production 8 Nine employees (plus one supervisor ) were released on September 28, 1986 Two employees who had signed union authorization cards were Continued 442 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Under the reorganization, John D. Lee Sr. became the supervisor of the "Super Section" (the first shift). How- ever, when Dan Lebo ended his employment with Re- spondent on March 1, 1987, Lee was reinstated to his former position of mine superintendent. After about a month , the super section concept was modified by Respondent through the creation of a small- er second shift production crew, called the "Peanut Crew," composed of members of the dead work crew and three recalled former employees . The function of this crew was to cut, drill, and shoot coal, so that there would be coal ready to be loaded by the super section when it reported to work. Eventually, more former em- ployees were recalled, and the "Peanut Crew" evolved into a second production shift, although not as large as the super section. II. ISSUES The complaint alleges that the Respondent violated Section 8(a)(1) and (3) of the Act, by the following ac- tions: (1) On or about September 12, 1986 , Respondent, by its Mine Superintendent Lee, interrogated an employee about that employee's union activities. (2) On or about September 12, 1986, Respondent, by its Face Boss Thompson, threatened to discharge em- ployees because of their activities for and on behalf of the Union.9 (3) On or about September 12, 1986, Respondent, by its Mine Superintendent Lee, interrogated an employee about that employee's union activities. (4) On or about September 15, 1986, Respondent, by its President Huyser, threatened to shut down operations if employees chose to become represented by the Union. (5) On or about September 15, 1986, Respondent, by its Mine Superintendent Lee, threatened that employees would be discharged because their activities for and on behalf of the Union. (6) On several occasions during the month of Septem- ber 1986, Respondent, by its Face Boss Adcock, threat- ened that employees who sought to become represented by the Union would be discharged, and on one occasion also interrogated an employee about another employee's union activities. (7) In about the middle of September 1986, the Re- spondent, by its Mine Superintendent Lee, threatened to discharge employees because of their activities for and on behalf of the Union. (8) On or about September 20, 1986 Respondent, by its Mine Manager Lebo, stated that an employee was dis- charged because of the employee's union activities. (9) On or about September 20, 1986 , Respondent dis- charged its employee Dennis Bregar; on or about Sep- tember 22, 1986, Respondent discharged its employee discharged prior to that date allegedly for absenteeism (Dennis Bregar and Norman Nupp). Eight of the 19 employees who had signed union authorization cards were retained by Respondent after September 28, 1986 9 Pursuant to Sec 102 .35(h) of the Board 's Rules, this allegation of the complaint was dismissed upon Respondent 's motion at the conclusion of the General Counsel's case, because there was no evidence offered to support the allegation Norman Nupp; and on or about September 28, 1986, Re- spondent laid off its employees Michael Bingham, Robert Carr, Jim Deeringer, Eugene Fry, Rick Fry, Jon McCarty, Kyle Pettyjohn, Norman Simmons, and Carl Vinsick, because the employees engaged in union activi- ties and concerted protected activities for the purpose of collective bargaining or other mutual aid or protection. A. General Counsel's Theory of the Case The General Counsel argues that employees Bregar and Nupp were discharged by Respondent because of their activities on behalf of the Union. According to the General Counsel, the reason given by Respondent, exces- sive absenteeism, was pretextual, and was designed to conceal its real, unlawful motivation. The General Coun- sel contends that although Respondent's officials denied knowledge of Bregar and Nupp's union activities (the evidence, says the General Counsel, indicates that Bregar was the leading activist at the mine, and Nupp , alone, among all of Respondent's employees, displayed a union bumper sticker on his car), there is evidence that they had such knowledge before Bregar and Nupp were dis- charged. The General Counsel says that the pretextual nature of the discharges is shown by the timing of Re- spondent's alleged concern about absenteeism, which co- incided with the union activities of Bregar and Nupp. According to the General Counsel, particularly dam- aging to the credibility of James Huyser , Respondent's president, who denied knowledge of Bregar's union ac- tivities, is the testimony of Respondent's witness, Jo Bingham, who testified that she told Huyser of Bregar's involvement with the Union on the day Huyser said he decided to discharge Bregar. Finally, the General Coun- sel cites the testimony of employee Jon McCarty, to the effect that Mine Manager Lebo stated that Bregar and Nupp were fired in order to discourage employee inter- est in the Union. Counsel for the General Counsel states that he has met the General Counsel's burden under Wright Line (251 NLRB 1083 (1980)) by producing evidence which re- futes the Respondent's claim that Bregar and Nupp would have been fired for absenteeism notwithstanding their union activities. In this regard, the General Counsel points to Mine Manager Lebo's remark to employee McCarty, and the fact that Respondent did not take action against Bregar and Nupp until they were identi- fied with union organizing. The General Counsel argues that the restructuring of the work force in September 1986 was merely a dis- guised effort to permanently reduce the work force. Ac- cording to the General Counsel the one-shift production unit, the super section, was soon replaced by two pro- duction shifts, the same system used before the reorgani- zation. The second production crew, referred to as the "Peanut Crew," composed of employees from the second-shift dead work crew and was augmented by re- calling laid-off employees. The Respondent, in effect, re- turned to a two-shift coal production schedule, and, in the process, neglected the dead work. The fact that each of the employees (with the excep- tion of Face Boss Thompson, who was a supervisor) laid SUPERIOR COAL CO. 443 off on September 28, 1986, had signed an authorization card for the Union shows unlawful discrimination, con- tends the General Counsel. The General Counsel con- cludes that the discharge of Bregar and Nupp, and the layoff of nine other employees who had signed union au- thorization cards, eliminated the first -shift dead work crew and decimated Terry Thompson's production crew. t ° According to the General Counsel, union senti- ment was strong on both of these crews. All these factors taken together, suggests the General Counsel, refute any argument by Respondent that it would have laid off the nine employees notwithstanding their union activities or the union organizing activities among the employees. According to the General Coun- sel, the Respondent's announced purpose of creating a one-shift production crew was a sham , and the Respond- ent had failed to show any standard for selecting those to be laid off, other than according to their union activities. The General Counsel contends that the other allega- tions of the complaint have been established through the testimony of various witnesses . According to witness Jon McCarty, on September 12, 1986, Mine Superintendent Lee asked him if he had attended the union meeting. On September 11, 1986, Lee told Dennis Brear that the union handbill did not state in it where the employees would work next, a comment which the General Coun- sel concludes was not intended as a joke. The General Counsel notes that at the time Lee made the two re- marks, he had been replaced as mine manager by Dan Lebo, and in that context, Lee's interrogation of McCarty and his remark to Bregar could be perceived as an interference with the employees' Section 7 rights and a violation of Section 8(a)(1). According to the General Counsel, Company Presi- dent Huyser, at a meeting of company employees on September 15, stated that he knew of the union organiz- ing effort, and stated that anything which drove up the Company's costs would make it noncompetitive and cause it to stop selling coal. The General Counsel con- cludes that Huyser's comments were a sophisticated way of telling his employees tha union organizing would drive up costs and force the closure of the mine. Such a threat, says the General Counsel , violates Section 8(a)(1). Allied Products Corp., 220 NLRB 732, 735 (1975). According to the General Counsel, William Adcock, the head of the dead work crew upon which Dennis Bregar and Norman Nupp worked, t t questioned Bregar about whether Black (another employee) had signed a union card, and on another occasion in response to Bre- gar's comment "united we stand," Adcock replied, "united we fall," indicating that the union organizing effort was placing the employees' jobs in jeopardy. 10 According to the General Counsel Respondent had reason to be- lieve that Terry Thompson was sympathetic to the Union because he had been a charging party in a Board proceeding involving a coal mine in Illinois some years before. I I Respondent denied that Adcock was a supervisor or agent, as al- leged in the complaint. The General Counsel asserts, however, that he had the requisite authority to constitute him a supervisor within the meaning of Sec 2(11) of the Act, and as a supervisor his remarks violated Sec. 8(a)(1) of the Act. B. Respondent 's Theory of the Case Respondent argues that it had little knowledge of union activities involving Superior No. 2 and its employ- ees, and did not act on what knowledge it had . Respond- ent denies that it engaged in unlawful interrogation or threats of discharge, or that it threatened plant closure. Respondent argues that it discharged employees for non- discriminatory reasons, and engaged in a work force re- structure and layoff of legitimate business reasons in a nondiscriminatory manner. Respondent contends that there is no evidence that management was aware that employees at Superior No. 2 delayed for 1 hour before going to work on September 10, 1986. Respondent agrees that its chief electrician, Hutch Bingham, advised the employees they might be fired it they refused to go to work, but contends there is no evidence in the record that Bingham relayed this in- formation to anyone in the management of Superior No. 2. Further, there is no evidence that Respondent investi- gated what had occurred or attempted to impose any type of disciplinary action on the employees involved. Respondent denied that any management employees attended the union meeting in Bussey, Iowa, on Septem- ber 11 , 1986, or that any management employees were present when employees signed union authorization cards in Bussey on September 11 and 12, 1986 . According to Respondent, only Dennis Bregar was present in the mine when union authorization cards were signed by Jeff Beary, Harold Bennett, Rick Fry, and Mike Bingham. According to Respondent , Robert Black handed Dennis Bregar an envelope containing a signed card in the pres- ence of William Adcock, but that Bregar refused to tell Adcock whether Black had signed a card. Bregar did offer a card to Adcock, who refused it. Bregar did hand a card to Jim Chenet in front of Adcock, and one to Mark McKay in front of William Maddison (a face boss). Neither Chenet nor McKay , nor a number of other em- ployees agreed to sign union authorization cards. Respondent argues that the Union did not disclose who had signed authorization cards to James Huyser, Dan Lebo, or John D. Lee Sr. Huyser acknowledged that he learned of the meeting between union representa- tives and mine employees in Bussey, but he did not know or inquire about the identities of the employees involved. Mark Wilson, Superior's office manager and safety di- rector, testified that Jow Wing, an employee, told him that 80 percent of the employees had signed union au- thorization cards, but that he did not ask Wing who the employees were or otherwise attempt to discover that in- formation. Mine Manager Dan Lebo testified that Wilson told him that 80 percent of the employees had allegedly signed union authorization cards, but that he did not see any of the cards, and wondered why the company had not been notified of the organizing effort, which he be- lieved was a necessary part of union organizing . In a dis- cussion with Face Bosses Terry Thompson and William Maddison, Lebo learned that the Union was planning to hold a rally with chicken and beer . Mine Superintendent Lee also learned of a union meeting, but he was not told who attended the meeting, nor did he ask. 444 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent argues that the evidence simply is inad- equate to show that Mine Superintendent Lee, Mine Manager Lebo, or President Huyser had any knowledge of the nature and extent of the union organizing effort, or who was involved in the distribution of union authori- zation cards, or who had signed them. Respondent does not deny that union handbills were distributed at the mine, but it does deny that it knew who was responsible for taping a handbill to the bath- house door or distributing the handbills to employees. Mine Superintendent Lee saw the handbill posted on the door, and he knew that Mine Manager Lebo took it off the door, but he did not know what Lebo did with it. He denied talking to Lebo or Huyser about the handbill, and he did not recall talking to the face bosses about it. Office Manager/Safety Director Wilson was aware of the Union's organizing effort at the mine in September and the posting of the handbill , but he did not talk to Huyser about it. Lebo testified that after he tore down the handbill, he told Huyser by telephone what he had found, then drove to the main office to give the handbill to Huyser. t 2 Lebo said he had a brief discussion about the matter with Huyser, but that Huyser did not seem to be overly upset. Huyser said he did not try to discover who was involved in the union organizing at the mine, or who had brought the handbill onto company proper- ty. Thus, concludes Respondent , there is no evidence that Respondent had any knowledge regarding who was en- gaged in handbilling or made any effort to find out. Ac- cording to Respondent, the handbill incident does not demonstrate a discriminatory motive for any conduct on the part of Respondent. Respondent argues that the small plant doctrine, Per- manent Label Corp., 248 NLRB 118 (1980), cannot ap- propriately be applied in this case to establish an infer- ence of knowledge by management of union activity on the part of the alleged discriminatees . The underground portion of the Respondent's mining operation is not con- ducive to contact among employees or management, argues Respondent . An inference of knowledge or em- ployees' union activities is inappropriate, says Respond- ent, unless it can be shown that union activities were car- ried out in such a manner that under normal circum- stances the employer must have noticed them. Whale Mfg. Corp., 108 NLRB 1641 (1954). Respondent agrees there were four meetings of em- ployees called by Respondent between August 14 and September 28, 1986. The spokesmen for the Respondent variously included James Huyser, Randy Luwe, and Dan Lebo. According to Respondent, the first meeting, held on August 14, 1986, concerned the quality of coal being produced. Huyser announced production goals and threatened to fire anyone caught "shooting the top" or "cutting the bottom," practices which resulted in mixing dirt or rock with the coal . Huyser testified that he also said that any employee who had more than one excused 12 Lebo implicitly denied the testimony of Dennis Bregar, who said that he told Lebo that he had taped the handbill to the shower door Lebo testified that he did not have a meeting with the face bosses to de- termine who was responsible, and that as far as he was concerned it did not matter who did it. absence during a month would not participate in the bonus (a system for financially rewarding employees based on production for the month), and that he would make a success of the mine or without the employees. Huyser said there was no way of knowing at that time whether an employee's absence was excused or unex- cused, so he directed Mark Wilson to establish a system of review. At the second meeting, on September 5, 1986, held in response to a request from employee Jon McCarty and other complained about how the bonus was computed. McCarty also asked when the employees would receive benefits, such as retirement and dental plans, and em- ployees Harold Bennett and Rick Fry complained about the state of disrepair of the pinner/bolter machine and shuttle cars. At the third meeting, held on September 15, 1986, Huyser introduced Mine Manager Lebo. Huyser said anything that drove up costs would have an adverse effect on the Company, and that if the employees chose to be represented by a third party, that would have an adverse impact on communications between the employ- ees and management . Huyser acknowledged that he told the assembled employees that he was aware of the union organizing effort, and that it tied his hands as to what he could say. He admitted that he went on to say that the only thing the Union could do for the employees for cer- tain was to charge dues, assessments, and levy fines; the Union could not guarantee employment , only the Com- pany could do that. Huyser said that he told the employ- ees that if there was a union, they could not deal directly with him anymore. At the fourth meeting, held on September 26, 1986, Lebo announced there would be a reorganization of the work force at Superior No. 2, and that three individuals had been terminated for absenteeism, and a fourth, Eugene Fry, would have been terminated had Lebo known he had been warned about absenteeism earlier by his supervisor. Respondent denies that William Adcock was a super- visor within the meaning of the Act. Adcock lacked the indicia of a supervisor and was not an agent of the Re- spondent. Relying on Rossmore House, 269 NLRB 1176 ( 1984), and Westinghouse Electric Corp., 277 NLRB 136 ( 1985), Respondent argues that an incidental inquiry by a super- visor about an employee's union activity is not unlawful interrogation, where, as here, there is but a single inci- dent of interrogation of a well-known union supporter which does not tend to restrain, coerce, or interfere with rights guaranteed under the Act. Respondent contends that the isolated incidents of alleged interrogation in this record did not rise to the level of unlawful interrogation. Further, argues Respondent, the isolated remarks by John D. Lee Sr. and William Adcock were ambiguous and subject to multiple interpretations , and given their plain meaning, cannot be characterized as threats of dis- charge. Citing NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), and W & F Building Maintenance Co., 268 NLRB 849 (1984), Respondent contends that an employ- SUPERIOR COAL CO. 445 er has a right to express its opinion about a union, "absent threats or promises ." Respondent argues that an employer does not go too far when "it talks about union dues, fines, assessments and the vagaries of the collective bargaining process." "Even in the context of a union or- ganizing effort," says the Respondent , "it is not unlawful for an employer to make a valid assessment about busi- ness costs and its affect on competition and the survival of its business as long as those predictions have an objec- tive factual basis." James Huyser, says the Respondent, did not go beyond the bounds of the Act and threaten to close down operations if the employees chose to become represented by the Union. Respondent denies that it discharged Bregar or Nupp because of their union activities. Instead , both were ter- minated for excessive absenteeism . The General Counsel, says the Respondent, must first make a prima facie show- ing that the employees were discharged because of the employer's antiunion animus . Only then does the burden shift to the employer to demonstrate that the employee would have been discharged regardless of his union ac- tivities. It is the Respondent's position that even if there was an illegitimate motive for the termination of Bregar and Nupp, the evidence shows that nevertheless their ex- cessive absenteeism would have resulted in their termina- tion in any instance. The employer's burden here is only to neutralize the prima facie case by asserting legitimate reasons for the discharge . The burden of showing that the reasons were pretextual still remains with the Board. NLRB v. Webb Ford, Inc., 689 F.2d 733 (7th Cir. 1982). The General Counsel had failed to meet its burden in this respect in this case, concludes the Respondent. Respondent further contends that the General Counsel has failed to establish a prima facie case of discrimination concerning the September 28, 1986 layoff. The General Counsel has provided no evidence that Respondent's staffing of the mine after September 28, 1986, was for either a discriminatory motive or carried out in a dis- criminatory manner. Respondent asserts that it was justi- fied in taking the action it did because of geological, pro- duction, and economic problems. It cannot be faulted, Respondent says, because the attempted remedy did not work. But, argues Respondent, even assuming that the General Counsel has established a prima facie case, the Respondent only had the burden of going forward with evidence of a legitimate business reason to rebut the prima facie case. Behring International v. NLRB, 675 F.2d 83 (3d Cir. 1982). Respondent claims that in this case it restructured the work force for legitimate business reasons; namely, that it did not have enough employees to properly staff two production shifts, it needed to im- prove the financial status of the Superior No. 2 oper- ation, it needed to create a separate maintenance crew for machine repair when the machinery was not in oper- ation, and, it needed to reduce its work force because of the loss of the Iowa State University coal contract. Finally, Respondent asserts that the selection of em- ployees to be laid off was not discriminatory , in violation of Section 8(a)(1) and (3) of the Act. Respondent did not know which employees had signed union authorization cards, and not all employees who had signed the cards were laid off. Further, says Respondent , President James Huyser, who approved the creation of the super shift, did not participate in the selection of employees to staff it. Further, asserts the Respondent, after selection of those it considered the best employees , the remaining employees were notified that their jobs were terminated, as it was not the Respondent's intention to call employ- ees back if the super shift concept worked. But, when Respondent found that the super shift concept did not work, it recalled three employees and created a second production crew called the "Peanut Crew." Gradually, the second production shift was enlarged, and more former employees were recalled , but not in a discrimina- tory fashion, the Respondent insists. Even if it is found that the discharge of Bregar or Nupp was discriminatory, these individuals would have been laid off on September 28, 1986, anyway, and back- pay should be adjusted to reflect that. If it is found that the layoff of September 28, 1986, was in violation of Sec- tion 8(a)(3) of the Act, backpay should be modified to reflect the dates on which the nine employees laid off were rehired, and that the work week has been changed from 6 to 5 days a week. III. FINDINGS AND CONCLUSIONS A. Discharge of Dennis Bregar The complaint alleges that the Respondent discharged employee, Dennis Bregar because of engaged in union activities and concerted protected activities for the pur- pose of collective bargaining or other mutual aid or pro- tection. The Respondent concedes that it discharged Dennis Bregar on September 20, 1986 , but asserts that it discharged him for nondiscriminatory reasons, specifical- ly, excessive absenteeism. To establish a violation of Section 8(a)(3) and (1), the General Counsel has the burden of proving that the dis- charge was illegally motivated . Hambre Hombre Enter- prises v. NLRB, 581 F.2d 204 (9th Cir. 1978). The Gener- al Counsel can meet its burden by either direct or cir- cumstantial evidence . NLRB v. Fort Vancouver Plywood Co., 604 F.2d 596 (9th Cir. 1979); American Mfg. Assn. v. NLRB, 594 F.2d 30 (4th Cir. 1979). In 8(a)(3) cases in which the employer's motive is an issue, the Board has adopted a two-part test under which the employer will prevail if the discharge would have occurred even in the absence of protected conduct. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). Under Wright Line, supra, first, the General Counsel must make a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision. If the General Counsel meets this burden, Respondent can avoid a finding it violated the Act by demonstrating as an affirmative defense by a pre- ponderance of the evidence that its decision would have been the same in the absence of the protected conduct. I find that the General Counsel has made a prima facie showing that Bregar's protected conduct was a motivat- ing factor in Respondent's decision to discharge him. 446 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The evidence clearly establishes that Dennis Bregar was one of the leaders, if not the leader, of a union orga- nizing campaign among Respondent's employees at its Superior No. 2 coal mine in September 1986. On Sep- tember 10, 1986, Bregar placed a telephone call to Eldon Prettyman, an International representative of the Interna- tional Union of United Mine Workers of America, whose office is in Pittsburg, Kansas, and informed Prettyman that there were safety problems at the Superior No. 2 coal mine, near Lovilia, Iowa, and the men were consid- ering a wildcat strike. Prettyman arranged to meet Bregar in Bussey, Iowa, the next morning. At an early morning meeting with Bregar and several other Superior employees on September 11, 1986, Prettyman gave Bregar campaign material , leaflets, and authorization cards to pass out to Superior No. 2 employees. t 3 Bregar solicited fellow-employees to attend a meeting that evening with Prettyman at a bar in Bussey, known as the Long Branch. At the meeting, a number of miners em- ployed by Superior Coal Company signed union authori- zation cards. Bregar and other Superior employees met with Prettyman, and a union organizer named Junior Bishop, early in the morning of September 14, 1986, on Main Street, in Bussey, Iowa. Prettyman returned to Bussey on September 17 and 23, 1986, to pick up signed authorization cards from Bregar. On the morning of September 11, 1986, Bregar passed out union handbills at the mine to the first shift, and taped a union handbill to the showerhouse door at Supe- rior No. 2 mine. At various times, he handed out cam- paign materials, such as union stickers for the miners' hats and bumper stickers for their cars, to miners em- ployed at Superior No. 2 mine. Both on the premises of Superior No. 2 mine, and elsewhere, he handed out union authorization cards to Superior No. 2 employees, and collected signed cards from miners who were will- ing to sign the cards. According to Bregar's testimony, his union organizing activities did not go unnoticed by the management of Su- perior Coal Company. On September 11, 1986, while working underground in Superior No. 2 mine, Bregar heard Mine Manager Dan Lebo ask Jack Adcock, the su- pervisor of the dead work crew upon which Bregar worked,14 who had taped the union handbill to the showerhouse door. Bregar testified that he told Lebo that he had taped the handbill to the door and had handed out handbills to the miners. t s 's Prettyman advised against a wildcat strike and, in fact , no wildcat strike occurred. 14 Respondent contends that Jack Adcock was not a supervisor within the meaning of the Act. Adcock was in charge of the first-shift dead work crew There is no evidence that he had the authority to hire or fire, however, there is evidence that on two occasions he sent miners home for sleeping on the job or arriving at work in an intoxicated condition. I find that Adcock did not have the authority to use significant independ- ent judgment in the interest of management in performing any of the su- pervisory functions listed in Sec 2(11) of Act Therefore, he cannot be considered a supervisor within the meaning of the Act Hydro Conduit Corp., 254 NLRB 433 (1981), NLRB Y. Security Guard Service, 384 F.2d 143, 147-148 (5th Cir. 1967). is Bregar also testified that he passed out union campaign materials and authorization cards to miners in the presence of Jack Adcock, and received a signed authorization card in an envelope from Robert Black, a Four days later, according to Bregar, mine owner James Huyser addressed a meeting he had called at the mine with the first-and second-shift employees, and told the assembled miners they had let him down by calling in outside people . Bregar said he told Huyser that the miners had tried to talk to him (Huyser). Huyser replied that his hands were tied, and he would do nothing. Huyser also said that he was not going to talk to Bregar anymore, because Bregar had called in the outsiders. Bregar stated that during the morning of September 20, 1986, he was summoned from the mine , where he was working, to Mine Manager Dan Lebo's office. There, Lebo informed him that he was being terminated, and handed him a letter and check in an envelope. The undated letter, bearing the signature of James E . Huyser, stated that Bregar was dismissed "[d]ue to reported ab- senteeism prior to and after warnings by your supervi- sor." Bregar testified that he had not received any writ- ten or verbal warnings about excessive or missing too much work, and, although he had missed work in the past, he had not been questioned by supervisors about it. According to Bregar , he had missed work on September 19, 1986, because he had driven his truck into a ditch on the way work, and it took him until 4 p.m. that day to get the truck out of the ditch and repair it. It is undisputed that Bregar placed a telephone call that morning to Mark Wilson , the safety director and purchasing agent at the mine, and reported that his truck had gone into a ditch because of a malfunction. Other testimony establishes that Mark Wilson frequently re- ceived telephone calls from miners who were reporting that they would be absent from work for the day. Jon McCarty, a shuttle car driver on the first produc- tion shift, supervised by Face Boss Terry Thompson, tes- tified that the day after Bregar was fired (Bregar was discharged on Saturday, September 20, 1986), he spoke to Mine Manager Dan Lebo about his own situation. Lebo told McCarty that he was not going to be termi- nated. In the course of the conversation, Lebo said it was his understanding with Jim (Huyser), that they felt that by getting rid of Bregar that would calm the prob- lems with the Union around the coal company. t a According to Bregar's testimony, on September 9, 1986, he was in attendance when the first and second shifts met with James Huyser, the mine owner , outside the showerhouse at Superior No. 2 mine. Bregar testified that he complained to Huyser that the roof bolter ma- chine was not working properly, and in response Huyser said he would look into it . Bregar also asked about a promised pay raise to $11 per hour, to which Huyser re- sponded there would be no raises. Bregar stated that on the morning of September 10, 1986, the first shift delayed going underground for about an hour the start of their shift , while they discussed the miner also in Adcock's presence, although, according to Bregar, he re- fused to confirm to Adcock what the envelope contained. 16 Nevertheless, despite Lebo's assurances, Jon McCarty was one of the employees discharged or laid off on September 28, 1986. He returned to work at Superior No. 2 mine on January 7, 1987. SUPERIOR COAL CO. 447 possibility of a wildcat strike. 17 McCarty tried to get Mark Wilson to call Huyser to arrange a meeting, but Wilson refused . Bregar testified that he said that maybe the only way they could get satisfication was through the Union, and he said he would call Eldon Prettyman that night. He stated that the men went below at 8 a.m. (an hour late). The only supervisor present was Harrison Bingham, the chief electrician.18 The evidence presented by counsel for the General Counsel in his case in chief is sufficient to meet his burden under Wright Line or establishing a prima facie case that Dennis Bregar's protected conduct was a moti- vating factor in the Respondent's decision to terminate his employment. It is clear from the testimony offered by counsel for the General Counsel, that James Huyser, the owner of Superior Coal Company, was opposed to unionization of the miners employed at the Superior No. 2 mine. It is also clear that Dennis Bregar was a leader, if not the leader, of the union organizing effort underway at the Superior No. 2 mine, a fact which both James Huyser and Dan Lebo, the mine manager, knew. Although James Huyser gave absenteeism as his reason for termi- nating Bregar, the circumstances of the termination strongly indicate that absenteeism was only a pretext, in- tended to hide a real reason, which was to break the union organizing effort by intimidating the employees. Supporting this conclusion, Huyser acted rapidly and personally, terminating Bregar the day after an absence from work, without affording to Bregar any opportunity to explain why he was absent. The inference to be drawn here is that Huyser did not care why Bregar was absent, only that he was absent, and that could be used as an excuse to terminate him. At least in so far as the case in chief presented by the counsel for the General Counsel is concerned, the remark by Mine Manager Dan Lebo that he and Huyser felt that getting rid of Bregar would calm the problem with the Union around the mine is strong evidence of Respondent's illegal motive in discharging Dennis Bregar. The Respondent offered considerable testimony in an effort to demonstrate that its decision to terminate Bregar would have been the same in the absence of Bre- gar's protected conduct. I find that the Respondent has failed to meet that burden by a preponderance of the evi- dence, as required under Wright Line. James Huyser testified that he was concerned about low production at the Superior No. 2 mine in August 1986, and that he called a meeting of the employees on the first and second shifts to discuss with them the poor quality of coal coming from Superior No. 2 and absen- teeism. Huyser testified (with corroboration by numerous witnesses) that he told the assembled miners that miners 17 There is no evidence that the management of Superior Coal Compa- ny was aware of the 1 -hour delay by the first shift in going underground on September 10, 1986, or, even assuming that they were aware of it, there is no evidence that management took any action against any of the miners involved. 18 Ronald Bregar, Dennis Bregar's brother, testified that Harrison Bingham was at the Long Branch Bar during the union meeting on Sep- tember 11 , 1986 There is no evidence in the record that Bingham report- ed either incident to any other management official of Superior Coal Company. who had more than one unexcused absence during a month would be ineligible to participate in the monthly production bonus (elsewhere stated to amount to as much as $300 per miner per month). Huyser admitted that at that time there was no way to tell from company records whether a miner's absence was excused or unex- cused. To cure that, Huyser testified, he directed Mark Wilson, the safety director and purchasing agent, to do a review whenever miners called in an absence. According to Huyser, Mine Superintendent John Lee Sr. told him in August that he (Lee) had warned Bregar about his attendance . Huyser characterized Bregar's at- tendance as "very, very, very bad." Huyser testified that he met again with his employees on September 5, 1986, at the request of employee Jon McCarty, at which time there was a discussion concern- ing how the bonus was computed, and the state of main- tenance of some of the mine machinery. According to Huyser, he first had an indication that the employees at the Superior No. 2 mine were seeking representation by the United Mine Workers of America when Mine Manager Lebo came to his office at Iowa Coal Mining Company and delivered a crumpled UMW flyer which Lebo said he had found taped to the shower- house door at the mine . Huyser testified that Lebo did not identify the employees involved. According to Huyser, after first contacting someone to find out what he could legally do to protect the compa- ny, he met with the employees of Superior No. 2 on Sep- tember 15, 1986 (possibly September 16), at the mine. Huyser stated that he told the assembled miners that he was aware of the union organizing effort, and that it tied his hands somewhat as to what he could say to them. But, he testified , he told them he could explain some things that unions could or could not do for them. He statd that unions could charge dues and assessments, but they could not guarantee a paycheck or employment. He testified that he told the miners that Superior Coal could write their paychecks and guarantee some security in employment. He added that he could not deal directly with the employees anymore . Huyser also told the miners that the coal business was competitive , and any- thing which drove costs up would put the mine in a non- competitive position, and if he could not sell coal at a profit, he would not sell coal. Huyser admitted that prior to discharging Dennis Bregar, he had not personally discharged any employee of Superior Coal. According to Huyser, that was John Lee Sr.'s responsibility. Huyser acknowledged that he made the decision to discharge Dennis Bregar on Sep- tember 20, 1986. He said Lee was working nights and was not around; however, he stated that Lebo could have terminated Bregar. Huyser said he did not know why he did it himself. According to Huyser, he terminated Dennis Bregar because he had a bad attendance record, an on the previ- ous Friday, instead of coming to work , he had been run- ning around the town of Bussey. He learned of this, he said, through a telephone call from Mary Joann Bingham, the wife of one of Superior Coal Company's employees (Chief Electrician Harrison Bingham), who 448 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD had called him around noon and reported that she had seen Bregar coming from the Long Branch Saloon with "a bunch of guys." Huyser testified that he called Mark Wilson at the mine, and Wilson reported that Bregar had called in and stated that his truck was in the ditch and he could not come to work. Huyser stated he called M . J. Bingham, and asked her to come to his office, which she did that afternoon . She told the same story as before,19 and after that, Huyser made out a termination notice for Berger. Huyser stated that he contacted Dan Lebo, and instruct- ed him to come to Huyser's office to pick up Bregar's termination notice and final check . According to Huyser, John Lee Sr. had told him in August that he had warned Dennis Bregar about his attendance. In his testimony, Huyser said there were no written rules concerning attendance in existence in August, and he did not know if there were any in September. He ac- knowledged that he did not personally ask Bregar for an explanation for his absence that day. He stated he had never discussed Bregar's attendance with Jack Adcock (supervisor of the day-shift dead work crew of which Bregar was a member). Huyser denied that he had made any effort to find out who had brought the yellow union handbills on the mine property. He stated that he did not instruct Lebo to find out anything more about Bregar's absence on September 19, 1986.20 Huyser testified that at the time he fired Dennis Bregar, he did not know that Bregar had been involved in the union organizing effort at Superior No. 2 mine, and he did not know if Bregar was sympathetic to the Union. Huyser stated that he learned of the meeting be- tween Superior No. 2 employees and the Union about the time it happened ; however, he did not know the names of the employees who had attended , and he did not interrogate anyone to find out how far the union or- ganizing campaign had gone, or how many employees had signed cards or were sympathetic to the Union. Mark Wilson, the safety director and purchasing agent for Superior Coal Company (whose office was at the Su- perior No. 2 mine), testified that daily attendance records were filled out by the face bosses and then turned over to him. He said that James Huyser had reviewed compa- ny attendance records, which he kept, on occasion, most recently in August 1986. According to Wilson, Huyser commended on that occasion on the attendance of Dennis Bregar, Jim Deeringer, and Philip Maddison. Ac- cording to Wilson, Mine Manager Dan Lebo looked at the attendance records after his arrival on September 9, 1986. Wilson acknowledged that the attendance records did not reflect whether an absence was excused or unex- cused, but, Wilson said, after one of Huyser's meetings with the miners (in August or September), he tried to keep a note of when miners called in. Wilson admitted that the company did not have a formal attendance policy until November of December 1986. Wilson denied that he had participated in the decision to terminate Dennis Bregar. Wilson testified he did not see who put up the union handbill on the showerhouse door, and made no effort to find out, although he admitted being curious to a degree (Wilson stated he did not learn who put up the handbill until several days before the trial of this case). Wilson stated that an employee named Joe Wing told him that 80 percent of the miners had signed union authorization cards. The conversation took place either a few days before or after September 28, 1986, in the showerhouse at Superior No. 2 mine . Wilson testified that he did not ask Wing who the miners were, and he did not tell anyone else what Wing had said.21 Dan Lebo testified that he is a graduate engineer, and that he operated his own coal mine consulting business for over 4 years prior to September 1986, during which time he had performed work for Superior Coal Company in connection with the design and layout of Superior No. 1 and Superior No. 2 mines. On September 4 and 5, 1986, he was contacted by James Huyser and Randy Luwe, vice president and chief geologist of Iowa Coal Mining Company (of which Superior Coal Company was a wholly owned subsidiary), about a position at Superior No. 2. He accepted the position of mine manager, and started work on September 9, 1986. His responsibilities were to increase production , reduce costs, and increase profitability. He replaced John Lee Sr. as the person in charge of day-to-day operation of the Superior No. 2 mine. According to Lebo, between 8 and 9 a.m., on Septem- ber 11 or 12, 1986, he saw a union handbill taped to the showerhouse door at Superior No . 2 mine. He stated that his reaction was "here we go again ," referring to another company at which he had worked, where the same thing happened. He stated he was concerned because he thought the union organizing campaign there had diluted a lot of management effort and time, and at Superior No. 2 management had enough to worry about as it was. Al- though he was concerned about the situation , Lebo testi- fied, he made no effort to find out who had distributed the flyer. As for the flyer, he tore it down, stuck it in his pocket, and went to his office, where he called James Huyser and reported what he had found. Subsequently, he drove to Huyser's office at the Iowa Coal Mining Company, and turned over the handbill to Huyser. Lebo stated that Huyser did not seem upset. Lebo acknowledged that he had discussed the union- ization campaign with Face Bosses Terry Thompson and Billy Joe Maddison, and that from Thompson, he learned there was going to be a UMWA rally in the near future. He denied that he tried to find out through the face 19 Huyser said he asked M. J Bingham to come to his office because he wanted to be sure of the circumstances under which she saw Bregar She said she saw Bregar coming out from behind the Long Branch Saloon with several guys. Huyser said he told M. J. Bingham it occurred to him that Bregar should have been at work . Huyser said he asked M. J. Bingham if she had seen Bregar 's car in the ditch 20 Huyser stated that he thought that if Bregar could ride around with his buddies in a vehicle, he certainly could come to work. 21 Wilson's professed lack of knowledge concerning the union organiz- ing campaign contrasts sharply with testimony by Carlton Vinsick. Vin- sick stated that in a conversation with Wilson which took place about a week after the September 28, 1986 reorganization (Vinsick was released as an employee of Superior Coal Company), Vinsick disclosed to Wilson that he had signed a union authorization card. Wilson replied that "he knew just about everybody who did sign a card " SUPERIOR COAL CO. 449 bosses who had distributed the handbill, or who was in- volved in the union organizing campaign. Lebo stated he heard from Mark Wilson that 80 per- cent of the employees had signed union authorization cards. He stated that he wondered if that was so, why the Union had not notified the Company. Lebo stated that he did not participate in the decision to fire Dennis Bregar. He stated that Huyser had told him that Bregar and Ronald Nupp had been warned about their attendance records, and the next absence would be cause for their termination.22 Lebo stated that Huyser told him in person that Bregar was going to be fired after Bregar missed work on September 19, 1986. Lebo stated that he did not ask Bregar why he had been absent, because the reason was unimportant ; Bregar's work record was spotty, and the president of the compa- ny had said that he would be fired if he had one more absence. John Lee Sr. testified that he was the superintendent of Superior No. 2 until September 28, 1986 , when the work force was reorganized . After that he was a face boss, until he resumed his position as mine superintend- ent in early 1987. Lee stated that he saw the union hand- bill attached to the showerhouse door, as did Dan Lebo. He stated that he did not know what Lebo did with the handbill.23 Lee stated that he did not know who was distributing the handbills, or who put the handbill on the showerhouse door. He acknowledged that he saw an- other handbill of the same kind on the floor inside the showerhouse, and that he said to Joe Bregar (the brother of Dennis Bregar), "well, babe, they didn't say nothing about where we're going to work next." Lee stated that during that time (September 1986) he saw no other evidence at the mine of union organizing, such as stickers on employees' hats, or bumper stickers. He said Jon McCarty told him there was going to be a union meeting in Bussey, but he told McCarty that he was not going to attend. According to Lee, he had terminated four miners for absenteeism while Superior No. 1 was in operation. They were Norman Nupp (subsequently rehired), Jim Ricka- baugh Jr., Billy DeRaad, and John Gall. Lee stated that sometime in August, James Huyser asked him about Dennis Bregar, Norman Nupp, and Jim Deeringer missing work. Lee testified that he told Huyser that he had talked to the employees about it, and thought they were doing better.24 Lee denied that he 22 Lebo stated that Huyser had told him that John Lee Sr . had warned Bregar and Nupp that their next absence would be cause for termination According to Lebo that conversation with Huyser had taken place earlier in the week that Bregar was fired, or late in the week before . Lebo said that the name of John Lee Jr. and Eugene Fry came up in the conversa- tion, and Lee was to be terminated when Lebo saw him. (Company at- tendance records show that John Lee Jr . worked last on September 4, 1986.) Lebo stated that he deferred terminating John Lee Jr . until Sep- tember 23, 1986, because he was the son of John Lee Sr . and in deference to the father, Lebo "wanted to do it like a gentleman." Lebo made the termination of John Lee Jr. effective September 13, 1986. 23 Lee denied talking to Lebo or Huyser about the union handbill. 24 According to Lee, in the summer of 1986, there were a few men taking days off, including Mike Bingham, Dennis Bregar , Norman Nupp, James Deennger, Mike Carter, and Philip W. Maddison. Lee said others of these employees were warned , in addition to Bregar, Nupp, and Deer- inger. had recommended the termination of Bregar or Nupp, or had participated in the decision to terminate them, or even knew about their terminations until after the fact. Mary Joann Bingham, the wife of Harrison Bingham, chief electrician of Superior Coal Company, testified that around 11:15 or 11 :30 a.m., September 19, 1986, she saw Dennis Bregar driving a pickup truck (matching the de- scription of Bregar's pickup truck) in an alley behind the Long Branch Bar in Bussey.25 She stated that she called for Bregar to stop, and that when he did, she asked him for some UMWA stickers, which he gave her.26 Mrs. Bingham stated that she knew Bregar had UMWA stick- ers and caps, because other people had gotten them from him. According to M. J . Bingham, earlier that day she had made an appointment to see James Huyser that afternoon at his office at Iowa Coal Mining Company . 27 She said that her purpose was to obtain permission for her son to take pictures of the mine and "to visit." She said she had some ideas concerning absenteeism at the mine which she wanted to tell Huyser. M. J. Bingham stated that she brought up the subject of Dennis Bregar while meeting with Huyser during the afternoon of September 19, 1986 . Also present, in addi- tion to Huyser, was Dan Lebo. She said that she told Huyser that she had seen Dennis Bregar and talked to him (that day), and asked if he was not supposed to be working. She also told Huyser she had received UMWA stickers from Bregar. M. J. Bingham stated that she did not think that Huyser said anything about the union stickers, and neither Huyser nor Lebo said anything about the Union while she was an Huyser's office. M. J. Bingham stated that she had a longstanding ar- gument with Dennis Bregar concerning the Union. She stated that Bregar was very prounion , but she did not want to see the workers at Superior No. 2 organized. She stated that she did not believe the Union could orga- nize enough people to succeed in Iowa. According to M. J. Bingham, her hobby was doing research on coal mining in Iowa, and she expected to make a presentation at a local college on May 1, 1987. Counsel for the General Counsel called Dennis Bregar as a rebuttal witness . Bregar denied that his truck was in downtown Bussey before noon on September 19, 1986. He acknowledged that he had given bumper stickers to M. J. Bingham, at her request, but said that the incident had taken place 2 or 3 days earlier. The issue here is not whether Dennis Bregar's absence from work was excused or unexcused. Nor is the issue whether or not Dennis Bergar actually drove his truck 25 M. J. Bingham testified that she was the former owner of the Long Branch Bar, and that she had employed Dennis Bregar as a bartender for about 10 months . She stated that she had known Bregar for 25 to 30 years 26 M J Bingham said that she did not tell Bregar why she wanted the stickers, but, in fact, she wanted them to use in playing a joke on another person. 27 M. J. Bingham stated she had known Huyser to 5 or 6 years, and that she had met him while working for McConville Coal Company. She stated that she had never been employed by Huyser , but, on occasion, had used her truck to pick up parts from out-of-town for the Huyser's mining operations On those occasions , Huyser paid her travel expenses. 450 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD into ditch on September 19, 1986, as he claimed . Rather, the issue is whether or not James Huyser used Bregar's absence from work on September 19, 1986, as a pretext to cover up his real motive in terminating Bregar, which was to get rid of Bregar because of his union organizing activities. It is clear from the record that there were three people who played pivotal roles in the dismissal of Dennis Bregar. Two of these individuals were James Huyser, the owner of Superior Coal Company, and Dan Lebo, the manager of Superior No. 2 coal mine . The third individ- ual was Mary Joann Bingham , who was not an employee of Superior Coal Company, although she was personally acquainted with James Huyser, and is the wife of Harri- son Bingham, the chief electrician at Superior No. 2 mine. M. J. Bingham, it appears, made it a point to bring to James Huyser's attention Dennis Bregar's absence from work on September 19, 1986 , and his involvement in the union organizing campaign at the Superior No. 2 mine. Two things are apparent from the testimony of these three individuals . First, each of them was personally op- posed to the United Mine Workers organizing the work- ers at the Superior No. 2 mine and, second , their testimo- ny concerning the events leading to the termination of Dennis Bregar is inconsistent and contradictory. I find from the record as a whole, and his demeanor as a witness, that James Huyser's testimony concerning his motive for terminating the employment of Dennis Bregar is disingenuous . Huyser's claim that he terminated Bre- gar's employment for excessive absenteeism , after the latter had been warned, and without any knowledge that Bregar was involved in union organizing activities at Su- perior No. 2 mine, is contrary to the weight of the evi- dence, and is unbelievable. The timing of the termination, alone, suggests that Bregar's protected activities and his termination were connected. Huyser personally terminated the employ- ment of Dennis Bregar, whose union organizing activities were openly conducted and well known among the miners and in the community, approximately 5 days after a meeting which he called with his employees, during which he made clear that he opposed unionization of the work force at the Superior No. 2 mine. Other persuasive evidence further establishes that Huyser's termination of Bregar for excessive absenteeism was a pretext which Huyser seized upon to get rid of one of the leaders, if not the principal leader, of the union organizing effort at the Superior No. 2 mine. First, Huyser had never in the past personally termi- nated any employee at either of the Superior mines. Huyser stated that function was a responsibility of John Lee, the mine superintendent. Huyser could offer no good reason why he acted personally in Bregar 's case. At one point he stated that he acted because Lee was working nights, then he stated that Dan Lebo could have done it. Finally, Huyser said he did not know why he did it. Second, Huyser acted precipitously, without giving Bregar any opportunity to submit his explanation for his absence from work on September 19, 1986 . Huyser ad- mitted that he first learned of Bregar's absence from Mary Joann Bingham, who, according to Huyser, placed a telephone call to him on that date to report that she had seen Bregar in downtown Bussey . Huyser called Mark Wilson at the mine, and learned that Bregar had reported that he could not get to work because he had driven his vehicle into a ditch . Huyser then had M. J. Bingham come to his office to verify that she had seen Bregar in Bussey, and proceeded to prepare Bregar's ter- mination papers. The clear inference to be gained from the manner in which Huyser handled Bregar's termina- tion is that Huyser was simply looking for an excuse to fire Bregar, and seized on the latter's absence from work on September 19, 1986, as the excuse for which he had been looking. Clearly, Huyser did not care why Brager was absent from work . The fact that he was absent was all that mattered. Third, contrary to James Huyser's testimony that at the time he terminated Bregar, he did not know that the latter was involved in the union organizing campaign, the evidence overwhelmingly shows that he did know. Huyser acknowledged that he first learned of the union organizing campagign on the day it started, September 11, 1986, from Dan Lebo, who brought Huyser a copy of a union handbill which Lebo found attached to the showerhouse door at the mine . Regardless of whether he found out that Dennis Bregar was involved in the union organizing campaign before September 19, 1986, Re- spondent's own witness, Mary Joann Bingham testified that she told Huyser on September 19, 1986, that she had obtained a union bumper sticker from Bregar. Also tending to show knowledge by Huyser of Bre- gar's union activities is Bregar 's testimony that he told Dan Lebo on September 11, 1986, that he had posted the union handbill on the showerhouse door, and Jon McCarty's testimony that Lebo told him after Bregar's termination that it was Lebo's understanding with Jim Huyser that if they got rid of Dennis Bregar, that would calm the problems with the Union around the mine. I find the testimony of Dennis Bregar and Jon McCarty to be credible. Conversely, I find Dan Lebo's testimony that he did not attempt to find out which employees were involved in the union organizing campaign to be incredible, especially in view of his negative view of the effect unionization of miners has on the operation of coal mines. Further, I find it incredible that if Lebo knew which employees were involved in the union organizing cam- paign, he would withhold that information from his em- ployer, James Huyser . Indicative of Lebo's lack of candor in his testimony concerning his knowledge of which mine employees were involved in the union orga- nizing campaign, Lebo gave the impression in his testi- mony that he had nothing to do with the decision to ter- minate Bregar, other than to carry out the orders of James Huyser. In fact, Lebo was involved in the termi- nation of Bregar at a much earlier stage than he admit- ted. Respondent's witness, Mary Joann Bingham, testi- fied that Lebo was present in Huyser 's office when she met with Huyser during the afternoon of September 19, 1986, and reported his absence from work and the fact that she had obtained union bumper stickers from him. SUPERIOR COAL CO. 451 M. J. Bingham had no evident motive to falsely testify that Lebo was present; accordingly I credit her testimo- ny on this point . I find that Lebo's lack of candor on this point in this testimony reflects adversely on his overall credibility as a witness in this case. Fourth, Respondent's claim that Dennis Bregar was warned that he would be fired if he had another unex- cused absence from work in not supported by the record. To begin with, Respondent had no work rule prior to September 19, 1986, which, as part of a disciplinary scheme, defined what constituted an excused or unex- cused absence. Further, even if such a rule did exist, it is not possible to tell from Respondent 's attendance records whether a particular employee's absence on a particular date was excused or unexcused , or for that matter, what the reason for the absence was. Finally , in August 1986, John Lee told James Huyser that he had talked to Dennis Bregar and several other employees who had missed more days of work most of the other employees, and he thought they were doing better. Nothing in Lee's testimony, however, indicates that anything was said to Bregar and the other employees to the effect that they would be fired if they had another unexcused absence . In fact, Respondent's records indi- cate that Dennis Bregar missed work during the weeks ending August 23, 1986; August 30 1986 ; and September 6, 1986; yet no action was taken by Respondent to termi- nate his employment because of any of these absences. The only thing that had changed when Bregar missed a day or work on September 19, 1986, was that he had become involved in a union organizing campaign. Then, belatedly, he was terminated for excessive absenteeism. The connection between his termination and his protect- ed activities is evident. Fifth, the termination of Dennis Bregar for excessive absenteeism constituted disparate treatment . Although John Lee Sr. had terminated the employment of several miners working at the Superior No. 1 mine in 1985, be- cause of absenteeism, no one working at the Superior No. 2 mine between January 1986 and September 19, 1986, had been terminated for that reason , although there were a number of miners, in addition to Dennis Bregar, who accumulated a substantial number of days absent from work. Among those was John Lee Jr., who was absent from about September 5, 1986, until he was termi- nated on September 23, 1986, after Dennis Bregar's ter- mination on September 20, 1986 . The Respondent clearly condoned the repeated absence of some of its employees, even after absenteeism was identified as a problem inhib- iting the achievement of desired production goals. The sudden reversal of the policy of condoning absence start- ed with the peremptory dismissal of Dennis Bregar, no doubt because he had become a problem for Respondent by his union organizing activities. The comparison of the termination of Dennis Bregar, initiated on the day of his absence, with the termination of John Lee Jr., on Sep- tember 23, 1986, after an absence of approximately 18 days, convincingly illustrates the disparity in the treat- ment of Dennis Bregar. Two of Respondent's key witnesses were James Huyser and Mary Joann Bingham. There are substantial inconsistencies and contradictions in the testimony of these two individuals . And, to complicate matters fur- ther, Dennis Bregar's rebuttal testimony substantially conflicts with the testimony of M. J . Bingham . For ex- ample, Huyser testified that he received a telephone call from Mrs. Bingham at about noon on September 19, 1986, during which she reported seeing Dennis Bregar in Bussey. Later that afternoon according to Huyser, he asked M. J. Bingham to come to his office at Iowa Coal Mining Company to. confirm her story, which she did. Huyser made no mention of any discussion with Mrs. Bingham concerning permission for her son to take pho- tographs of the Superior No. 2 mine, or of any discus- sion concerning Bregar's union activities . Neither, for that matter, did he mention that Dan Lebo was present. M. J. Bingham, on the other hand, testified that she tele- phoned Huyser during the morning of September 19, 1986, before she saw Bregar in Bussey , and made an ap- pointment to see Huyser at his office that afternoon in order to obtain approval for her son to take photographs of the mine. It was during the afternoon meeting, she said, that she brought up seeing Dennis Bregar in down- town Bussey that morning , and mentioned she had ob- tained union bumper stickers from him. She also testified that Dan Lebo was present during the conversation. Bregar, for his part, stated he did not have his truck in Bussey between 11 a.m. and noon, because it was still stuck in a ditch, and he gave Mrs. Bingham the bumper stickers 2 or 3 days before September 19, 1986. There is no way to reconcile the testimony of these three witnesses, or to ascertain, with any degree of cer- tainty, which, if any of them, was wholly truthful in his or her testimony . However, I find it unnecessary to the disposition of this case fo fully resolve the conflicts in the testimony of the three witnesses. There is no dispute that Huyser first learned of Dennis Bregar's absence from work on September 19, 1986, from M. J. Bingham, and that she visited his office during the afternoon of that day. There is no dispute that M. J. Bingham ob- tained union bumper stickers from Dennis Bregar, whether on September 19, 1986, or earlier. I credit M. J. Bingham's testimony that she told Huyser both that Bregar was not at work and that she had obtained the union material from him. I also credit her testimony that Dan Lebo was present during her conversation with Huyser that day. I can discern no reason for M. J. Bingham to lie in this regard about what she told Huyser. The question of when she obtained the union material from Bregar and whether or not he was driving his truck between 11 a.m. and noon in downtown Bussey is immaterial . There is no dispute that he was in Bussey at that time, and not at work at Superior No. 2 mine, as he was supposed to be. His reason for missing work on September 19, 1986, is not an issue in this case, and had no bearing on whether his rights under Section 7 of the Act were violated. The relevant issue are why Respond- ent terminated Bregar, and whether or not Respondent's motive violated Bregar's Section 7 rights. Accordingly, based on the record and the demeanor of the witnesses, I find that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Dennis Bregar on September 20, 1986. The Respondent has failed to 452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD demonstrate that it would have taken the same action against Bregar in the absence of his engaging in union activities. The General Counsel has proven by a prepon- derance of the evidence that the Respondent was moti- vated by antiunion animus and discharged Dennis Bregar because he had engaged in protected concerted activities, specifically, because he was involved in union organizing at Respondent's coal mine known as a Superior No. 2. The discharge of Dennis Bregar on September 20, 1986, interfered with, restrained, and coerced him in the exer- cise of rights guaranteed by Section 7 of the Act. B. Discharge of Norman Nupp The complaint alleged that the Respondent discharged its employee, Norman Nupp, on September 22, 1986, be- cause he had engaged in union activities and concerted protected activities for the purpose of collective bargain- ing or other mutual aid or protection. The Respondent concedes that that it discharged Nupp on September 22, 1986, but asserts that it discharged him for nondiscrim- inatory reasons, specifically, excessive absenteeism. The law applicable to resolving the allegation involv- ing Norman Nupp's discharge is the same as a law set out above in connection with the allegation involving the discharge of Dennis Bregar. I find that counsel for the General Counsel has made the requisite prima facie showing that Norman Nupp's protected conduct was a motivating factor in Respond- ent's decision to terminate his employment on September 22, 1986. Although Nupp was not a leader in the union organiz- ing campaign at Superior No. 2 in September 1986, he was the only miner employed by Superior No. 2 who ad- vertised his prounion sympathies by displaying a UMWA bumper sticker on the vehicle he drove to and from the mine, and parked in the mine parking lot. According to Nupp, he signed a union authorization card at the Long Branch on September 11, 1986, and on September 17, 1986, he attached a UMWA bumper sticker, which Dennis Bregar had given to him , to the back bumper of his vehicle. Nupp stated that he put the bumper sticker on his car while it was parked beside the showerhouse in the Superior No. 2 parking lot. According to Nupp, after he had finished putting the UMWA bumper sticker on his car, Dan Lebo walked by, and , in Nupp's opinion, "looked funny" at him "with his eyes." Nupp testified that he had car trouble on September 20, 1986, and made no effort to get to work.28 He was not scheduled to work on September 21, 1986 on Sep- tember 22, 1986, his next schedule workday, after work- ing in the mine for about an hour, he was summoned to Dan Lebo's office.29 Nupp testified that Lebo told him that he was terminated because he had missed too much work, and they wanted employees to be there every day. Lebo did not ask Nupp why he had missed work on Sep- 28 Nupp did not call the mine to report his absence . According to Nupp, he lived in his car, and did not have a telephone 29 Mark Wilson came into the mine in a golf cart, and transported Nupp out of the mine to Lebo's office. tember 20, 1986; in fact Nupp said absolutely nothing to Lebo on that occasion.30 Nupp admitted that he had missed 4 days of work around Labor Day 1986, and when he returned to work on September 2, 1986, John Lee Sr. asked him if he had gotten lost. Nupp replied, "Yea." Lee responded that if he got lost again, just stay lost. However, Nupp missed work on September 12 and 13, 1986, because of car trou- ble. When he told Lee that he had been working on his car, Lee told him to go to work.31 Jon McCarty testified that during the morning of Sep- tember 21 , 1986, the day after Dennis Bregar had been fired, he asked Dan Lebo whether he was going to be terminated for absenteeism, also. Lebo stated, "no," and stated that McCarty had not missed that much work. In response to McCarty's question if absenteeism was the reason for Bregar's termination, Lebo stated that it was his understanding from James Huyser that getting rid of Bregar "would calm the problems with the union down around the coal company ." Later that morning, McCarty had occasion to go to Hutch (Harrison) Bingham's shop for parts. There he overheard a conversation between Lebo and Mark Wilson concerning the bumper sticker or Nupp's car. According to McCarty, Lebo said he thought that Nupp was involved with the Union, too. Norman Simmons, a miner employed at the Superior No. 2 mine, testified that over a period of several days he saw a UMWA bumper sticker on the back bumper of Nupp's car. Ronald Bregar, the brother of Dennis Bregar, testified that Nupp put the UMWA bumper sticker on his car about a week before he was fired. I find the evidence presented by counsel for the Gen- eral Counsel in his case in chief is sufficient to meet his burden under Wright Line of making a prima facie show- ing that Norman Nupp's protected conduct was a moti- vating factor in the Respondent 's decision to terminate his employment. As noted previously, the evidence clearly shows that James Huyser and Dan Lebo were opposed to unioniza- tion of the miners working at the Superior No. 2 mine. Norman Nupp advertised his support for the Union by displaying a UMWA bumper sticker on his car, some- thing which no other miner employed at the Superior No. 2 mine did. There is credible evidence from which it can be inferred that Dan Lebo saw the UMWA Bumper sticker on the rear bumper of Nupp's car, and credible evidence that he was overheard stating that Nupp was involved with the Union. The timing of Lebo's remark, made the day after Dennis Bregar had been discharged, because of his union organizing activities , according to Lebo's statement to Jon McCarty, and the day before Nupp was terminated, supports the inference that Nupp was also discharged because of his participation in union organizing activities . Nupp's sudden discharge, ostensibly so Nupp testified that on September 21, 1986 , his brother, Joe Nupp, told him that he had heard a rumor from Hutch (Harrison) Bingham, that Norman Nupp was going to be fired. 31 Nupp acknowledged that he had been terminated as an employee at Superior No I in 1985 by John Lee Sr. for absenteeism. He was rehired, missed work, and was laid off in October 1985 He was rehired by Lee, on a temporary basis, in July 1986, to work at Superior No. 2 SUPERIOR COAL CO. 453 for absenteeism, which had been condoned by the em- ployer earlier in the month of September, indicates that absenteeism was no more than a convenient pretext, and that the real reason for Nupp's discharge was because of his union organizing activities, and to deter other em- ployees from supporting the Union. The Respondent offered testimony in an effort to dem- onstrate that its decision to terminate Nupp would have been the same in the absence of his protected conduct. I find, however, that the Respondent has failed to meet that burden by a preponderance of the evidence, as re- quired under Wright Line. James Huyser testified that the day after Bregar had been terminated, Dan Lebo informed him that Norman Nupp had failed to report for work . Huyser stated that Nupp's attendance record was very bad, he had been warned, and Huyser determined that he would have to be terminated, too. Huyser stated that he did not recall if Nupp received a termination letter . He stated he did not discuss Nupp's termination with John Lee Sr., who was in West Virginia, with Jack Adcock, Nupp's supervisor, or with Nupp, himself. Huyser said he had reviewed the company attendance records earlier , and had been ap- praised of Nupp's poor attendance record . He stated that he believed Nupp had been warned.32 Mark Wilson testified that when he brought Nupp to Dan Lebo's office on September 22, 1986 , he heard Lebo say to Nupp that he had reveiwed Nupp's time records, and there was an indication of excessive absenteeism. Lebo informed Nupp that he was being terminated for that reason. Nupp said absolutely nothing . Wilson stated that Nupp's letter of termination and final check were sent from the main office (Iowa Coal Mining Company). The letter was signed by James Huyser. Wilson stated that he gave the letter and check to Nupp. John Lee Sr. stated that he had previously terminated Norman Nupp for "laying off," missing too much work (when Nupp was employed at Superior No. 1 mine in 1985). After Lee reemployed Nupp in 1986, at Superior No. 2 mine, he told Nupp that he was going to have to stop missing work if he wanted to work there . The last warning occurred when Nupp said he had gotten lost, after missing several days' work, and Lee told him if he got lost again, just stay lost. Lee stated that in August 1986, he had discussed with Huyser the attendance records of Dennis Bregar, Norman Nupp, and Jim Deer- inger. At that time he told Huyser he thought they were doing better. Lee stated that he did not participate in the decision to terminate the employment of either Bregar or Nupp, and, in fact, did not know they had been terminat- ed until after the fact. The testimony offered by Respondent in an effort to show by a preponderance of the evidence that it would have discharged Norman Nupp in the absence of his pro- tected conduct is unpersuasive. It was unusual for James Huyser to personally involve himself in the discharge of employees of Superior Coal Company, yet within the space of 2 days he personally 32 As noted previously, before terminating Dennis Bregar, James Huyser had not personally involved himself in the termination of the em- ployment of any employee of Superior Coal Company terminate the employment of two miners, both to whom were visibly involved in the union organizing campaign, which Huyser oppposed, at Superior No. 2 mine. In the case of Norman Nupp , as in the case of Dennis Bregar, whose discharge preceded that of Nupp by 2 days, Huyser acted precipitously , without giving Nupp any op- portunity to explain why he was absent from work. The clear inference is that Huyser did not care why either Bregar or Nupp was absent; the only thing significant to Huyser was that they were absent, and that provided him with an excuse to terminate their employment. It may be reasonably inferred from the evidence that at the time he acted, Huyser knew that Nupp actively supported the Union . There is credible evidence that Dan Lebo, who also opposed the Union, knew of Nupp's support of the Union, and, it is simply not believable that he would fail to inform his employer of that fact when he reported Nupp's absence on September 21, 1986. Respondent's claim that Nupp had been warned that his next absence would result in his termination is not substantiated by the record . John Lee Sr., who sup- posedly gave that warning to Nupp, in fact condoned Nupp's absences on September 12 and 13, 1986. Casting further doubt on Huyser's claim that Nupp had been warned, the evidence clearly shows that Respondent had not provided any guidance to its employees concerning what constituted an unexcused absence, as opposed to an excuse absence, and it is not possible to tell from Re- spondent's records covering the first 9 months of 1986 what the reason for any employee's absence was. As discussed with reference to the termination of Dennis Bregar, for the same reason , the termination of Norman Nupp constituted disparate treatment. Considered as a whole, the record establishes that the termination of Norman Nupp for absenteeism was a pre- text. James Huyser terminated the employment of Nupp because Nupp had engaged in union organizing activities, and was a visible supporter of the Union, whose termina- tion would serve as a object lesson to other employees of Superior No. 2 mine. Accordingly, based on the record and demeanor of the witnesses, I find that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Norman Nupp on Sep- tember 22, 1986. The Respondent had failed to demon- strate that it would have taken the same action against Nupp in the absence of his engaging in union activities. The General Counsel has proven by a preponderance of the evidence that the Respondent was motivated by an- tiunion animus and discharged Norman Nupp because he had engaged in protected concerted activities, specifical- ly, because he was involved in union organizing at Re- spondent's Superior No. 2 coal mine . The discharge of Norman Nupp on September 22, 1986, interfered with, restrained, and coerced him in the exercise of rights guaranteed by Section 7 of the Act. C. Layoff of September 28, 1986 On September 26, 1986, Mine Manager Dan Lebo told the assembled employees of Superior No. 2 coal mine that the two production shifts were going to be reorga- nized into one production unit, referred to as a "Super 454 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Section." A "Memorandum" (R. Exh. 3), dated Septem- ber 26, 1986, signed by James Huyser, was posted at the mine. It stated that historically, the mine had not operat- ed efficiently or economically, due in part to lack of maintenance (of equipment), and absenteeism. The pur- pose of the reorganization was stated to be "to maximize the productive output of the operation and allow the ex- perience and abilities of our personnel to be afforded the fullest potential." The memorandum stated that not all employees would remain on the payroll . The criteria to be applied in selecting personnel for retention was stated to be "ability to perform a job, past job performance, se- niority, potential for personal development , job classifi- cation and attendance record." On September 28, 1986, nine employees (Jon McCarty, Kyle Pettyjohn, Norman Simmons, Jim Deeringer, Robert Carr, Rick Fry, Gene Fry, Carlton Vinsick, and Mike Bingham), and one supervisor (Face Boss Terry Thompson), were notified that they were released as em- ployeees of the Superior Coal Company at its Superior No. 2 coal mine. As previously noted , all of the released employees had signed union authorization cards (except Face Boss Terry Thompson), but not all the employees who had signed union authorization cards were released. Summarized, of the 19 employees who signed union au- thorization cards prior to September 28, 1986, two were fired before September 28, 1986 (Dennis Bregar and Norman Nupp), nine were released on September 28, 1986, and eight were retained as employees of the Supe- rior Coal Company at the Superior No. 2 mine (Ronald Bregar, Rick Bregar, Harold Bennett, Jeff Beary, Robert Black, Lawrence Laird, Robert M. Smith, and Michael Carter). Of the 11-man pre-September 28 second-shift produc- tion crew, of which Terry Thompson was the face boss, only 4 were retained in the September 28 reorganization. They were Mike McKay, Phillip W . Maddison, Law- rence Laird , and Craig Marshall. The released employees were Terry Thompson, Norman Simmons, Kyle Petty- john, Eugene Fry, Jon McCarty, and Carlton Vinsick. Of the 13-man first-shift production crew, only 2 were released in the September 28 reorganization .33 They were Rick Fry and Robert Carr. Of the five-man first- shift dead work crew, four were released or terminated on or before September 28. They were James Derringer (released on September 28), Mike Bingham (released on September 28), Dennis Bregar (terminated on September 20), and Norman Nupp (terminated on September 22). The only employee from that crew who was retained in the September 28 reorganization was William Adcock. Not including Dan Lebo, John Lee Sr., Mark Wilson, and Chief Electrician Harrison Bingham , the work force at Superior No. 2 mine prior to the September 28, 1986 reorganization, totaled 35 employees.34 After the Sep- 33 Gary Zellman, who was listed as the cutter on the pre -September 28 first-shift production crew, quit, effective September 20, 1986. 34 The total of 35 employees also does not include Dennis Bregar, who was terminated on September 20, 1986 , Norman Nupp, who was termi- nated on September 22, 1986, and Gary Zellman, the cutter on the pre- September 28 first-shift production crew, who quit on September 20, 1986. tember 28, 1986 reorganization, the work force, includ- ing John Lee Sr., whose new title was super section su- pervisor, and two new employees hired as part of the surface support group, totaled 29 employees . Of that number, 14 employees , including John Lee Sr., worked on the first-shift super section. As constituted on Septem- ber 28, 1986, the super section was larger by one em- ployee than the pre-September 28 first-shift production crew, and worked a 9-hour day instead of the 8-hour days worked by the pre-September 28 first-shift produc- tion crew . There was no change in the 6-day workweek. Of the eight employees who signed union authoriza- tion cards and were retained as employees of Superior Coal Company after the September 28 reorganization, six performed the same job on the newly organized super section as they had performed prior to September 28. They were Ronald Bregar, driller; Rick Bregar, shooter; Jeff Beary, shuttle car operator ; Robert M. Smith, feeder; Bob Black, belt; and, Michael Carter, dead work. The two who were given new jobs were Harold Ben- nett, formerly a shuttle car operator, but assigned as a bolter in the super section; and, Lawrence Laird, former- ly a scoop operator, but assigned as supply man in the super section. The six other members of the 14-man super section (none of whom had signed union authorization cards) were new to the positions which they occupied on the super section . They were John Lee Sr., supervisor (for- merly mine superintendent); William (Billy Jo) Mad- dison, loader (formerly face boss of the first-shift produc- tion crew); Jim Chenet, shuttle car operator (formerly a scoop operator on the first-shift production crew); Mark McKay, scoop operator (formerly a mechanic on the first-shift production crew); William Adcock, utilityman (formerly the supervisor or leadman of the first-shift dead work crew); and Phillip L. Maddison, mechanic (a member of the surface crew prior to the September 28 reorganization). Comparison of the seniority dates, as reflected on Re- spondent's Exhibit 15, shows that seniority was not used as a factor in Respondent's determination of which em- ployees would be released and which would be retained in the September 28 reorganization.35 For example, of those employees released on September 28, Rick Fry rank 11th in seniority on a list of 41 employees ; Norman Simmons ranked 18th, and Terry Thompson ranked 19th. The other seven released employees ranked between 21st and 38th.36 Neither did Respondent consistently use employees' absenteesm rates as a factor in determining who would as The seniority list includes the names of Martin Laird and Billy Fry, two employees who were not working on September 28 because of inju- ries sustained in June and August 1986, respectively. It also includes the name of James Darnell, who was hired on September 20, 1986, but who had previously worked for Star Coal Company, a strip mine owned by James Huyser Darnell, however, is ranked last on the seniority list. sa The following is the seniority ranking on a roster of 41 employees of the 10 employees, including Terry Thompson, released on September 28, 1986. Rick Fry- 11/41, Norman Simmons-18/41; Terry Thomp- son-19/41, James Derringer-21/41; Robert Carr-22/41; Carlton Vin- sick-27/41; Michael Bingham-28/41; Jon McCarty-31/41, Kyle Pet- tyjohn-37/41; Eugene Fry-38/41 SUPERIOR COAL CO. 455 be released in the September 28, 1986 reorganization. For example, according to Respondent's Exhibit 13A of the employees who has signed union authorization cards ans were released, Rick Fry's absenteeism rate was 0 per- cent; Norman Simmon's absenteeism rate was 1.3 per- cent; Robert Carr's absenteeism rate was 0 percent; and Carlton Vinsick's absenteeism rate was .4 percent. The other five released employees who had signed union au- thorization cards had higher absenteeism rates.37 By comparison, some of the employees who had not signed union authorization cards, and were retained in the Sep-. tember 28 reorganization , had higher absenteeism rates than some of the released emloyees, who had signed union authorization cards . For example, Dennis Maddis- on's absenteeism rate was 3 .9 percent; Mike McKay's ab- senteeism rate was 3 percent; Phillip W. Maddison's ab- senteeism rate was 8.7 percent; Mark DeHeer's absentee- ism rate was 3 percent; Robert Lankford's absenteeism rate was 3 .9 percent; and Robert L. Smith's absenteeism rate was 3 percent. The following chart reflects production statistics for the Superior No. 2 Coal Mine for 1986: Vinsick testified that on September 28, 1986, after he learned that he had been released as an employee by Re- spondent he asked Mine Manager Dan Lebo why he had been laid off. Lebo responded that he did not know, but that John Lee Sr. did. Later, according to Vinsick, he asked John Lee Sr. the same question, and Lee replied that he knew nothing about it, and that it was Lebo's idea. Lee said that if another mine opened up he would hire Vinsick. Vinsick also testified that about a week later he asked Mark Wilson if the Union had anything to do with his layoff. Wilson replied, "it could but I'm not in a position to say." Vinsick said that he told Wilson he had signed an authorization card, and Wilson replied that he "knew just about everybody who did sign a card. The evidence presented by counsel for the General Counsel is sufficient to sustain his burden under Wright Line of making a prima facie showing that retaliation against the employees who signed union authorization cards, and intimidation of the remaining employees into not selecting a union as their collective-bargaining repre- sentative, were motivating factors in the Respondent's decision to release the nine employees on September 28, Month Production Per Man Day No. ofMen 1/86 17,160.41 13.76 40 2/86 9,855.86 9.28 40 3/86 14,343.01 11.60 42 4/86 16,426.09 14.00 43 5/86 9,466.00 8.00 43 6/86 11,403 .92 9.76 42 7/86 21,287.12 18.40 43 8/86 21,924.37 17.60 - 9/86 17,810.81 15.76 43 10/86 16,032.75 16.56 34 11/86 12,550.42 13.92 36 12/86 24,272.24 29.76 37.5 As reflected on the chart above, the super section did not materially improve production and, as the evidence shows, it was augmented by a second-production shift crew, called the "Peanut Crew," within a month after the September 28, 1986 reorganization. Ronald Bregar testified that the second crew , which was supposed to do dead work, began running coal (a term meaning to mine coal) in October 1986. Carlton Vinsick, who was re- leased on September 28, 1986, was recalled in October 1986, and was assigned to a second-shift production crew, called the "Peanut Crew." Vinsick stated that "our job was to get coal up and to get some load(ed) out if we could." He stated that the "Peanut Crew" either con- veyed the coal it mined outside, or stockpiled it for the day crew. Initially, there were three workers on the "Peanut Crew," including Vinsick. Vinsick stated that about a week after he returned to work in October 1986, the "Peanut Crew" was expanded in size by adding the rest of the dead work crew to it. 97 Rates of absenteeism: Kyle Pettyjohn-9.4 percent; Eugene Fry- 13.1 percent, Jon McCarty-11 percent, James Deeringer-28 95 percent; 1986. Counsel for the General Counsel presented evidence showing that within a week after terminating two em- ployees because of their union activities , Respondent an- nounced that it intended to reorganize its work force in a manner which would reduce the number of workers it employed. Following the September 26, 1986 announce- ment of the reorganization, on September 28, 1986, Re- spondent went from two coal production shifts to one large production shift, called the "super section," and re- leased 10 employees, 9 of whom had signed union au- thorization cards, and 1 of whom was a supervisor under the Act. The close proximity in time of the release of nine employees who has signed union authorization cards, to the termination of two employees because of their union activities, is sufficient to support the infer- ence that Respondent was motivated in releasing the nine employees by its desire to frighten its remaining employ- ees into abandoning any attempt to select the Union as their bargaining representative, and that it made an ex- ample of the nine emloyees for that purpose . The selec- tion of only employees who had signed union authoriza- tion cards for release, with the exception of one supervi- sor who was also released, on its face indicates a dis- criminatory discharge violative of the Act. Limpert Bros., 276 NLRB 364, 374 ( 1985), quoting NLRB it Midwest Hanger Co., 474 F.2d 1155,1158 (8th Cir. 1973). It may reasonably be inferred that the selection of only employ- ees who had signed union authorization cards for release, with the exception of the supervisor, was no coincidence where only 52 percent of the work force had signed union authorization cards , and not one of the 48 percent of the employees who had not signed union authorization cards was selected for release in the September 28, 1986 reorganization. 38 and Michael Bingham-7 5 percent. Terry Thompson, who was a face 38 G.C. Exh 4 shows a total pre-September 28, 1986 work force of 35, boss, and did not sign a union authorization cards, had an absenteeism not including Gary Zellman, who quit before the reorganization, and rate of 0 percent. Continued 456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD That the discharge of only prounion workers was by design, and not a coincidence, and thus was discriminato- ry, is further shown by the fact that the Respondent ap- plied neither seniority nor rates of absenteeism in select- ing the employees who would remain, despite having told the employees that those were two factors which would be considered . Also indicative that the September 28, 1986 reorganization was pretext , within a matter of weeks, Respondent abandoned the one production shift "super section" concept, added a second production shift, and began calling back employees who had been released. With only 18 of 35 employees, including the 2 face bosses of production shift supervisors, having not signed union authorization cards, Respondent could not release more than 9 in the pretextual reorganization, oth- erwise it would not have had enough employees to staff the super section. See USA McDonald Corp., 288 NLRB 1416 (1988). As it was, Respondent hired two new em- ployees to work as part of its reorganized work force.39 It is readily inferable from this evidence that the Re- spondent intended that reorganization serve as a warning to its remaining employees to abandon their attempt to select the Union as their bargaining representative. Knowledge by Respondent of which employees had signed union authorization cards is inferable from the fact that only employees who had signed cards were se- lected for release. Supporting this inference is the testi- mony of Carlton Vinsick, one of the released employees, that Mark Wilson, a member of Respondent's manage- ment, told him that he knew the identity of almost ev- eryone who had signed a card. Counsel for the General Counsel having established a prima facie case that Respondent's conduct was violative of the Act, the burden shifts to Respondent to show that it would have released the nine employees even in the absence of their union activities . Lewis Mechanical & Metal Works, 285 NLRB 514 (1987). In an attempt to meet this burden, Respondent present- ed the testimony of its president, James Huyser, its vice president, Randy Luwe, its former mine manager, Dan Lebo, and its present mine superintendent, John Lee Sr., all of whom gave testimony concerning how and why the "super section" concept was adopted, and how it was staffed. The relevant testimony is set out below. James Huyser testified that Superior No. 2 mine start- ed in January 1986 with one production crew . Geologi- cal problems were immediately encountered , and to get the kind of production which he wanted, a second pro- duction shift was added . Although geological conditions improved in July 1986, Huyser considered production levels and coal quality to be unsatisfactory. Huyser stated that in September 1986 he concluded that part of the problem was the inability of Mine Superintendent Dennis Bregar and Norman Nupp, who had been fired prior to Septem- ber 28. Not considering the two face bosses , William Maddison and Terry Thompson, whom the parties stipulated to be supervisors under the Act, the pre-September 28 work force totaled 33 employees. Of that number, 17 had signed union authorization cards, and 16 had not. In the reorganization, Face Boss Maddison was retained in a nonsupervisory po- sition, and Face Boss Thompson was released. as The two new employees were Jim Darnell and Dean See , both of whom were assigned to "Surface Support." John Lee Sr., to communicate with people. To remedy that, Huyser hired Dan Lebo, a consulting engineer from Kentucky, as a mine manager, with authority over John Lee Sr. Lebo's task was to improve communications with the employees and improve production. Huyser stated that even after Lebo arrived , the mine continued to lose money. Part of the problem, according to Huyser, was that the work force was not adequate to staff two production shifts and their was not enough equipment. Huyser went on to state that on September 24 or 25, 1986, after consulting with Lebo, he decided to restructure the work force, and this was accomplished on September 28, 1986. Huyser stated that he did not consult with any one other than Lebo concerning the de- cision to restructure. According to Huyser, Lebo and John Lee Sr. decided which employees would remain on the work force after September 28. Huyser denied he looked at the list of employees prior to September 28, al- though he acknowledged that he knew the list had been prepared. Huyser said that on September 28, he did not know if any of the released employees would ever be called back. Huyser testified that the super shift was not an uncom- mon type of mine organization. Huyser stated that the idea to restructure in September 1986 was his and Lebo's; however, he proposed using the super shift. Huyser said he hoped that production would increase to a level nearly equal to two shifts; however, that goal was never achieved on a consistent basis because of geologi- cal and equipment problems. After about a month, the super shift was modified by bringing people back and creating a second production shift, known as the "Peanut Crew." Its job was to shoot down coal and have it ready to load for the super shift in the morning . Eventually, Huyser said, the "Peanut Crew" evolved into a full crew, although it was not as large as the super shift. Mark Wilson, Superior Coal Company's purchasing agent and safety director, stated that he knew about the September 28, 1986 reorganization several days in ad- vance, because he heard Huyser speak about it. Wilson stated that he had no part in the decision to reorganize or in the selection of men to be assigned to the various shifts. Wilson said he was not consulted in any way. Wilson testified that he had a conversation with Carl- ton Vinsick after the latter had been laid off, during which Vinsick mentioned the union organizing effort. Wilson said he did not carry on the conversation . Wilson also acknowledged that several days before the reorgani- zation, Joe Wing, another employee, told him that 80 percent had signed cards.40 Wilson said that he did not ask Wing who the people were, and did not tell anyone what Wing had said. He also said that no doubt he had heard about the signing of cards from someone else before September 28, but he did not remember who. Wilson acknowledged that between September 11 and 29, 1986, he had discussed the union organizing effort with John Lee Sr. out of Mine Manager Dan Lebo's presence. 40 As noted earlier, the actual percentage of employees who signed union authorization cards was approximately 52 percent. SUPERIOR COAL CO. According to former Mine Manager Dan Lebo, he recommended the restructuring of the work force in Sep- tember 1986, and Huyser approved of it. Lebo stated that it was his thought to make one good super section crew with enough men with the right qualifications to get the job done . He stated that the super shift is a common method of mining . According to Lebo, Huyser endorsed his recommendations , and they were imple- mented on September 28, 1986. Lebo stated that he selected the crews , in the presence of Huyser. According to Lebo, the maintenance people and dead work crew which he selected were essentially the same people already doing those jobs. He said he se- lected John Lee Sr. as the supervisor of the super shift, and Billy Joe Maddison as a cutting machine operator. Lebo said that John Lee and Billy Joe Maddison com- pleted the remainder of the assignments because he did not know the people well enough . As he continued, Lebo revised his testimony somewhat by saying that John Lee Sr. actually selected Billy Joe Maddison as a cutting machine operator, and basically filled out the rest of the list. Lebo said there was some discussion as they' went along, but not in any great detail. Lebo also testified that about a month after the reorga- nization, a second production shift, called the "Peanut Crew," was started, in an effort to increase production. The "Peanut Crew" loaded out coal which the day crew had prepared but not loaded out, and blasted down coal so the day crew could begin loading immediately. Addi- tional employees were added to the "Peanut Crew" in November, and that crew had the additional duty of doing dead work, if needed. Lebo testified that he made no attempt to find out who was involved in the union organizing effort. He stated that he discussed the union campaign with Face Bosses Terry Thompson and Billy Joe Maddison, and learned of the union meeting on September 11, 1986, from Terry Thompson. Lebo also said that Mark Wilson told him that 80 percent of the employees had signed "intent cards."41 John Lee Sr. testified that he heard of the September 11, 1986 union meeting from Jon McCarty, but he told McCarty he did not intend to attend. Lee stated that he did not ask anyone the names of the persons who attend- ed the meeting, and he did not report that there was going to be a meeting to any company official. Lee testified that he did not have any role in the deci- sion to reorganize, and that he first learned of the reor- ganization when he was told by Lebo and Huyser that they were going to put it into effect . Lee stated that Lebo asked him to go over a list of employee assign- ments which would take effect after the reorganization. The list shown to Lee already had some blanks filled in. Lebo asked for some idea of where the mine employees had worked and how long they had worked there, and 41 Lebo's testimony on this point is contrary to that of Mark Wilson. Wilson said that possibly several days before the September 28, 1986 re- organization Joe Wing told him that 80 percent of the employees had signed cards Wilson stated that he did not tell anyone what Wing had said. Taking into consideration the demeanor on the witness stand of the two witnesses, and the apparent lack of any reason for Lebo to testify falsely on this matter, I credit the testimony of Lebo on this point. 457 what Lee thought about filling in the blanks on the list. Lee stated he gave Lebo the answers the latter request- ed. According to Lee, Billy Joe Maddison was listed as the cutting machine operator, and Mike McKay was listed as the loader operator .42 He told Lebo that the two should be switched, since Maddison could operate the loader, but not the cutting machine, and McKay could operate the cutting machine, but not the loader. Lee's suggestion was followed. According to Lee, the names of the surface support crew , the maintenance crew, and the dead work crew were already filled in. Lee stated that Harold Bennett had prior experience operating the bolter, although prior to September 28, 1986, the bolter operators were Rick Fry and Kyle Pet- tyjohn . Bennett was selected for the bolter position on the super section . (All three of these employees had signed union authorization cards . Rick Fry and Kyle Pettyjohn were released as employees on September 28.) Lee stated that Ronald Bregar was already listed as the driller operator, and Jim Chenet was listed as the scoop operator. (Bregar had signed a union authorization card; Chenet had not.) Lee stated that he had nothing to do with placing Lawrence Laird in the supply man position. (Laird had not signed a union authorization card.) Lee said he told Lebo that Robert Carr had been there longer than Robert M. Smith, who was listed as the feeder operator. (Both Smith and Carr had signed union authorization cards . Lebo retained Smith as the feeder operator; Carr was released.) Lee said he suggestd Wil- liam Adcock for the utilityman position. (Adcock, who had not signed a union authorization card, was placed in that position.) Lee said he had nothing to do with making Philip L. Maddison a mechanic on the first shift, or with the assignment of Philip W. Maddison to the second-shift dead work crew. (Neither of the Maddisons had signed union authorization cards .) Lee said he told Lebo that Terry Thompson should be on the list of those staying, but Lebo said he could only have so many people, and that was it. Lee stated that the Maddisons are his first cousins, Harold Bennett is his son-in-law, and Jim Chenet goes with his daughter. Lee testified that when he helped Lebo formulate the super shift, he did not know that those employees not selected would be terminated. He said he surmised that some would be, but thought more would be kept on than actually were. He stated that he found out on September 28, 1986 , who was being terminated. I find that the Respondent has failed to rebut the Gen- eral Counsel's prima facie case that it laid off or termi- nated nine of its employees on September 28, 1986, be- cause they had engaged in union organizing activities. Respondent has offered no credible evidence that the September 1986 decision to restructure the work force at the Superior No. 2 mine, along the lines of a super sec- tion, was solely for the purpose of increasing production, and was unrelated to the union organizing activity going on at the mine at that time. Neither Respondent Presi- 42 Neither Billy Joe Maddison (formerly a face boss ), nor Mike McKay (formerly the cutter operator on the second production shift), had signed union authorization cards. 458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD dent James Huyser nor former Mine Manager Dan Lebo gave credible testimony concerning the termination of Dennis Bregar and Norman Nupp, which I found to have been because the two employees engaged in union organizing activities, despite testimony to the contrary by Huyser and Lebo. Likewise, I do not find to be credi- ble their testimony concerning the restructuring of the work force, which followed closely the termination of Bregar and Nupp. In view of their demonstrated antiun- ion animus in terminating Bregar and Nupp . I do not be- lieve their disclaimers that the termination (for that if what the release of the employees amounted to) of nine more union supporters was in any way related to their union organizing activities.43 Although Huyser and Lebo each claimed in their testi- mony to have first proposed the adoption of the super section concept, which they said was a common method of mining, they both said the purpose of the restructur- ing of the work force was to increase production. While both denied, implicitly, if not explicitly, that the selection of employees to be retained and those to be discharged was unrelated to the employees ' involvement in union organizing activities, their testimony again diverged on the issue of the circumstances under which the selections were made. Respondent President Huyser claimed to have had no role in making the selections, and went so far as to testify that he did not know which employees were being retained and which were being released until September 28, 1986. Huyser said that Lebo and John Lee, Sr. decided which employees would remain on the work force after September 28. Former Mine Manager Lebo, on the other hand, testified that Huyser was present when the selections were made, and that he se- lected the maintenance and dead work crews, which were composed of essentially the same people who did that work before September 28. Lebo said he selected John Lee Sr., as the supervisor of the super section, and Billy Joe Maddison as the cutting machine operator. Lee changed Billy Joe Maddison to the position of loader op- erator, according to Lebo, and basically filled out the rest of the list. Contrary to Lebo's assertion that the maintenance and dead work were composed of essentially the same people who did that work before , 4 of the 10 persons assigned to those crews in the restructuring of the work force previously had worked on one or the other of the two coal production crews . According to John Lee Sr., the names of the surface support crew, the dead work crew, and maintenance crew were already filled in when he first saw the list, as were the names of the least 7 mem- bers of the super section, which was composed of 14 po- 43 On the face of it, it seems unlikely that production would be in- creased by reducing the coal production staff from two crews, with a total of 24 miners (the first shift had a crew of 13, the second shift, a crew of 11 ), to one production shift with a crew of 14 miners , even with the one crew working an additional hour each day . And, indeed, the super section concept was unsuccessful in meeting the goals set for it, and within a month, Respondent added a small second production shift, which was gradually enlarged , although it never equalled the super sec- tion in size. However, as there is unrebutted testimony that the super sec- tion concept is not uncommon in coal mining, I do not find that Re- spondent's adoption of that concept of coal mining , standing alone, is evi- dence of discrimination. sitions, including that Lee as supervisor. Lee stated he made recommendations that Mike McKay and Billy Joe Maddison switch jobs, and other recommendations con- cerning who should be on the super section, some of which Lebo accepted and some of which he did not. Among other inconsistencies in the testimony of Re- spondent's witnesses, Mark Wilson, Respondent's pur- chasing agent and safety director, testified that he did not tell anyone else that Joe Wing had told him that 80 percent of the employees had signed union authorization cards. This contrasts with the testimony of Mine Manag- er Lebo that Wilson told him that 80 percent of the em- ployees had signed union authorization cards . On this point, I credit the testimony of Mine Manager Lebo, be- cause he had no apparent motive to lie concerning this matter. Casting further doubt on the credibility of Wilson, he left uncontradicted the testimony of Carlton Vinsick that Wilson told him he knew just about all of the men who signed union authorization cards . Wilson gave the impression in his testimony that he did not know who was involved in the union organizing effort, and made no effort to find out. Under the circumstances, I credit the testimony of Vinsick, and discredit the testi- mony of Wilson, who tried to minimize his knowledge of the union organizing campaign. Instead, I find that he did know many of the employees who were sympathetic to the Union, if not all of them. Wilson was a member of Superior Coal Company's management , and I find that there is strong circumstantial evidence that he shared whatever knowledge he gained concerning the union or- ganizing campaign with Mine Manager Lebo. The testimony presented by the Respondent is contra- dictory and misleading concerning numerous point, in- cluding who originated the idea to go from a two-shift production method to a single-shift production method, and who made the selections regarding the staffing of the restructured crew . Huyser said he had no part in it; Lebo said he mostly left it to John Lee Sr.; and, John Lee Sr., said it was mostly done by Lebo. Moreover, and perhaps more importantly, Respondent offered no testimony which would explain how it hap- pened that only employees, with the exception of one su- pervisor.44 who signed union authorization cards were released in the reorganization.45 Considering the lack of consistent testimony by Re- spondent's own witnesses on key issues concerning the restructuring of the work force at the Superior No. 2 coal mine on September 28, 1986, and the absence of any 44 There is no evidence that Terry Thompson, the face boss in charge of the second production shift until he was released on September 28, 1986, was engaged in union organizing activities, or even supported the Union in this case. That he once filed an NLRB charge while working at a mine in Illinois, and that his neighbor while he lived in Illinois was Junior Bishop, a UMWA organizer , is inconclusive and too remote to support an inference that his present employer, the Respondent , thought he was prounion. 45 Contrary to Huyser's assertion in his memorandum of September 26, 1986, announcing the restructuring of the work force , selection of the employees to be retained or released was not based on a review of each employee, based on an evaluation of job performance, potential , seniority, and attendance. Respondent's records show that seniority and attendance were not factors, and their is no evidence even from Respondent's own witnesses, that each employee was evaluated individually. SUPERIOR COAL CO. 459 rational explanation by any of Respondent's witnesses clarifying why only nonsupervisory employees who had signed union authorization cards were selected for re- lease on September 28, 1986, I find that Respondent had failed to rebut the General Counsel's prima facie case, and also failed to establish an affirmative defense under Wright Line that it would have released the nine employ- ees even in the absence of their engaging in union activi- ties. The General Counsel has proven by a preponder- ance of the evidence that on September 28, 1986, the Re- spondent released its employees Michael Bingham, Robert Carr, James Deering, Eugene Fry, Rich Fry, Jon McCarty, Kyle Pettyjohn, Norman Simmons, and Carl- ton Vinsick, because they were engaged in union orga- nizing at Respondent's Superior No. 2 coal mine. Ac- cordingly, I find that Respondent was motivated by an- tiunion animus, and violated Section 8(a)(3) and (1) of the Act. D. Threat and Interrogation by John Lee Sr. Mine Superintendent Lee admitted that when he found a union flyer on the floor of the bathhouse on September 11, 1986, he said to employee Joe Bregar , "Well, babe, they didn't say nothing about where we're going to work next." According to Lee, Bregar just laughed. Ronald (Joe) Bregar testified that he has known Lee for 23 years, and that Lee told him a union flyer was mis- printed, because "it did not say where we were going to work next." Bregar said he did not feel threatened by Lee's remark and considered it to be a joke , but he said he told other employees about Lee's remark about the "misprint." Jon McCarty, one of the employees who signed a union authorization card and was released on September 28, 1968, testified that on September 12, 1986, Mine Su- perintendent John Lee Sr., asked him if he had attended the union meeting in Bussey the night before . McCarty told Lee that he had. John Lee testified that McCarty told him about the union meeting on September 11, 1986, before it had taken place. According to Lee, McCarty asked him if he was going, and Lee responded that he was not. Lee denied that he heard later who had attend- ed, or asked anyone about who had attended. Section 8(c) of the Act provides: The expressing of any views, argument, or opinion, or the dissmination thereof, whether in written, printed, or graphic, or visual form, shall not consti- tute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit. The Supreme Court, in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), stated that the language of Section 8(c) "merely implements the First Amendment," but the Court went on to limit scope of an employer's expression by noting that any assessment of an employer's expres- sion "must be made in the context of its labor relations setting. Thus, an employer's rights cannot outweigh the equal of the employees to associate freely, as those rights are embodied in Section 7 and protected by Section 8(a)(1) and the proviso to Section 8(c)." 395 U.S. at 617. The Court made a distinction between "threats" and "predictions" in the context of statements by employers concerning plant closings: [a] prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control . . . . If there is an implication that an em- ployer may or may not take action solely on his own initiative for reasons unrelated to economic ne- cessities and known only to him, the statement is no longer a reasonable prediction based on available fact but a threat of retaliation based on misrepresen- tation and coercion, and as such without the protec- tion of the First Amendment. The labor relations setting at the Superior No. 2 mine was one of tense labor relations . James Huyser had met three times with his employees, and during those meet- ings the employees had expressed dissatisfaction with working conditions and pay. Huyser, for his part, had urged the men to produce more coal, while at the same time threatening to fire any employee who produced dirty coal, and to withhold the monthly production bonus from any employee who had more than one unex- cused absence during the month. The statement by Mine Superintendent Lee to employ- ee Ronald Bregar, concerning the UMWA flyer , solicit- ing membership in the UMWA, to the effect that it omit- ted crucial information, because it "didn't say nothing about where we're going to work next," clearly falls into the category of a threat and not a prediction , particularly in the context of the tense labor relations which pre- vailed at the mine, and were at the bottom of the effort by some employees to organize and select the UMWA as their collective-bargaining representative. Up until early September 1986, Lee had been in charge of the Superior No. 2 coal mine, and even after Lebo's arrival, he was still clearly a member of management, holding a position of no less than second in charge of the mine . When Lee spoke on matters of such a significant nature as the future of mining at the Superior No. 2 mine, by virtue of his position the employees would perceive him to be speaking for management . Indeed, Lee did not indicate in his testimony that he meant the remark to be a joke, whatever Bregar may have thought of it at the time. Sig- nificantly, Bregar testified that he told other employees about Lee's comment, and there is nothing in the record concerning how the other employees interpreted it. An uncalled for remark of that nature coming from a person in Lee's position in the management of the mine had, on its face, too chillng a nature to be dismissed as a joke. Lee gave no economic justification, or for that matter any justification at all, which would explain why the mine would close if the UMWA represented the miners. He merely made a bald, unsupported statement, which could be construed in no other way that if the employees selected the UMWA to represent them, they would all be out of a job. 460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Based on the record, I find that Lee's remark to em- ployee Ronald Bregar interfered with the employees' Section 7 rights, and violated Section 8(a)(1) of the Act. In the case of Rossmore House, 269 NLRB 1176 ( 1984), cited by Respondent, the Board partially reversed PPG Industries, 251 NLRB 1146 (1980), which held that ques- tions concerning union sympathies, even when addressed to open and active union supporters in the absence of threats or promises, are inherently coercive . In Rossmore House, the Board said that it overruled "PPG and similar cases to the extent they find that an employer's question- ing open and active union supporters about their union sentiments, in the absence of threats or promises, neces- sarily interferes with, restrains, or coerces employees in violation of Section 8(a)(1) of the Act." 269 NLRB at 1177-1178. The Board then proceeded to examine the questioning involved under the totality of the circum- stances and found no violation of Section 8(a)(1) of the Act. The instant case, however, in distinguishable from Rossmore House, supra. Here the questioning was not of an open and active union supporter about his union senti- ments, but of an individual to determine whether he had attended a union meeting and , therefore, by inference, was a union supporter. The coercive nature of Lee's questioning of McCarty, and the chilling nature of it, is clear. Whatever Lee may have meant by it, the question- ing put the employee in the position of having to admit to a high-ranking member of the Superior Coal Compa- ny's management, if chose to tell the truth, that he had attended a union meeting , and marked him as a possible union supporter. I find that under all the circumstances, the interroga- tion of Jon McCarty by John Lee Sr. reasonably tended to restrain, coerce, and interfere with McCarty's exercise of rights guaranteed by Section 7 of the Act, and, there- fore, violated Section 8(a)(1) of the Act. The allegations underlying the findings above are con- tained in paragraphs 5(a) and (b) of the complaint. The General Counsel cited no evidence in his posttrial brief to support the allegations involving violations of the Act by John Lee Sr., contained in paragraphs 5(c), (e), and (g) of the complaint. Accordingly, those sections of the complaint are dismissed. E. Threats and Interrogation by Jack Adcock The complaint alleges that Respondent violated the Act because on several occasions during September 1986, its face boss, Jack Adcock, threatened that employ- ees who sought to become represented by the Union would be discharged, and one occasion interrogated an employee about another employee 's union activities. Even assuming, arguendo, that Jack Adcock commit- ted the acts alleged, his conduct does not constitute a violation of the Act, because he was not a face boss or supervisor, and there is no evidence that he was author- ized to speak for the Respondent or acted as its agent. The evidence established that Adcock supervised the first shift dead work crew before the September 28, 1986 restructuring of the work force. He did not have the au- thority to hire or fire employees, but on two occasions he sent employees home, on one occasion because he caught an employee sleeping on the job, and on other occasion because an employee reported for work in an intoxicated condition . While Adcock directed the dead work crew in their assigned tasks, there is no evidence in the record that he independently determined what tasks the dead work crew would perform on any particular day. It is well settled that to qualify as a supervisor, an indi- vidual need not possess all of the powers enumerated in Section 2(11) of the Act.46 Possession of any one of the enumerated powers may be sufficient to confer supervi- sory status, Hydro Conduit Corp., 254 NLRB 433, 436 (1981); however, possession of one or more of the powers enumerated in Section 2(11), alone, is not suffi- cient to confer supervisory status. To qualify as a super- visor under the Act, an individual most have the author- ity to exercise independent judgment in the interests of the employer. Hydro Conduit Corp., supra, 254 NLRB at 437, citing NLRB v. Security Guard Service, Inc., 384 F.2d 143, 147-148 (5th Cir. 1967). In the instant case, the record does not show that Adcock exercised independent judgment in determining the priority of work or in sending employees home on two isolated occasions. Overall the record shows that Adcock did not demonstrate the exercise of discretion or independent judgment. Therefore, I find that Adcock was a leadperson, but not a supervisor within the mean- ing of the Act. Because Adcock was not a supervisor within the meaning of the Act, in September 1986, he did not violate Section 8(a)(1) when he allegedly threat- ened employees and interrogated an employee concern- ing union activities.47 Kent Products, 289 NLRB 824 (1988). F. Threats by James Huyser The complaint alleges that on or about September 15, 1986, the Respondent, by its president, James Huyser, threatened to shut down operations if the employees chose to be represented by the Union. Huyser testified that he met with the personnel of the first and second shifts on September 15 or 16, 1986. Huyser stated he told his employees that he was aware of the union organizing effort in the area, and said that it tied his hand in regard to what he could say . Huyser said he told the employees that a union could charge dues ae Sec. 2(l1) of the Act defines a supervisor as "any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge , assign, reward, or discipline other em- ployees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment 47 Dennis Bregar testified that on numerous occasions after the union organizing campaign started in September 1986, he said to Jack Adcock, "united we stand," and Adcock replied, "united we fall " A day or two before he was fired, according to Bregar, Adcock told him he hated Bregar more each day, and wished he would quit, because all that was going to happen was tht it would get Bregar fired, and possibly Adcock "to boot " On another occasion, when Bregar accepted a signed union authorization card in an envelope from Robert Black, while both were working underground, Adcock asked if Black had signed a union authori- zation card Bregar testified that he told Adcock that he could not say Then, according to Bregar, Adcock asked what was in the envelope, and Bregar replied that it was none of his business. SUPERIOR COAL CO. and assessments, but it could not guarantee a paycheck or employment. Huyser said that he told the employees they would not be able to deal directly with him, and he would not be able to deal directly with them . Finally, according to Huyser, he told the employees that the coal business was competitive, and anything that drove the Company's costs up would put the Company in a non- competitive position , and if "we could not sell coal at a profit, we would not sell coal." Even assuming, arguendo, that Company President Huyser said nothing more than he admitted saying in his testimony, I find that what he admitted saying constitut- ed a threat to close the mine if the employees selected the Union to represent them, and not a prediction. NLRB v. Gissel Packing Co., supra. In effect, by saying that the mine would be put in a noncompetitive position, and would be closed, if anything drove its costs up, Huyser was saying that he would not negotiate with the Union. Stripped of its circumlocution , the plain meaning of Huyser's remark was that he would not negotiate with the Union concerning any matter which might increase the Company's costs, and if the Company's costs were increased, he would close the mine as being noncompeti- tive. The threat of reprisal if the employees selected the UMWA as their collective-bargaining representative may have been veiled, but it was thinly veiled, and it was clearly a threat of reprisal , not a prediction based on his belief as to demonstrably probable consequences beyond his control. Accordingly, I find that Company President Huyser's remarks on or about September 15, 1986, concerning the consequences of his employees selecting the UMWA as their collective-bargaining representative, interfered with the employees' exercise of their Section 7 rights, and vio- lated Section 8(a)(1) of the Act. G. Threat by Mine Manager Dan Lebo Jon McCarty, an employee of Superior Coal Compa- ny, testified that on September 21, 1986 , the day after Dennis Bregar had been terminated, Mine Manager Dan Lebo said that it was his understanding with James Huyser that getting rid of Bregar "would calm the prob- lems with the union down around the coal company." Lebo, however, testified that Huyser told him that he was firing Bregar because he had missed work on Sep- tember 19, 1986, after being warned that his next absence would be cause for termination. Of the two , I find that Jon McCarty is by far the more credible witness. Mine Manager Lebo consistently minimized his knowledge of who was involved in the union activities at the mine, and his involvement in the termination of Bregar and Nupp, and the layoff of nine other union supporters on Septem- ber 26, 1986. I do not find his testimony to be credible when it concerns his personal involvement in any aspect of the alleged unfair labor practices which took place at the Superior No. 2 mine in September 1986. The chilling nature of Lebo's admission to McCarty that Bregar had been fired to calm the union organizing activities at the mine is obvious. The plain implication of the admission was that anyone else who actively sup- ported the Union would suffer the same fate . On its face, Lebo's admission was an interference in the free exercise 461 of Section 7 rights by McCarty and other employees at the mine, and, as such, as a violation of Section 8(a)(1) of the Act.48 CONCLUSIONS OF LAW 1. Superior Coal Company is an employer engaged in commerce within the meainig of Section 2(2), (6), and (7) of the Act. 2. International Union of United Mine Workers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent violated Section 8(a)(3) and (1) of the Act on or about September 20, 1986, by discharging Dennis Bregar because he had engaged in union organiz- ing activities, and joined , supported, and assisted the Charging Party Union. 4. The Respondent violated Section 8(a)(3) and (1) of the Act on or about September 22, 1986, by discharging Norman Nupp, because he had engaged in union orga- nizing activities, and joined, supported, and assisted the Charging Party Union. 5. The Respondent violated Section 8(a)(3) and (1) of the Act on or about September 28, 1986, by selecting for layoff, and laying off, its employees Michael Bingham, Robert Carr, Jim Deeringer, Eugene Fry, Rick Fry, Jon McCarty, Kyle Pettyjohn, Norman Simmons, and Carl- ton Vinsick, because they engaged in union organizing activities, and joined, supported, and assisted the Charg- ing Party Union. 6. The Respondent violated Section 8(a)(1) of the Act during the month of September 1986, by interrogating an employee concerning his union activities , by threatening that employees who actively participated in the unon or- ganizing campaign by the Charging Party Union would be fired, and by threatening closure of Respondent Supe- rior No. 2 mine if the employees selected the Charging Party Union as their representative for collective-bar- gaining purposes. 7. Paragraphs 5(c), (e), (f), and (g) of the complaint are repetitive, or have not been proven by a preponderance of the evidence, and are dismissed. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Respondent, having engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act, shall be ordered to cease and desist from engaging in these unfair labor practices. Respondent, having violated Section 8(a)(3) and (1) of the Act, by discrimnatorily discharging its employees 481 reject General Counsel's request for a visitatorial clause. The record does not show it likely the Respondent would seek to evade com- pliance with any order the Board should issue in this case. Such clauses are not routinely included in the Board's orders. (See Cherokee Marine Terminal, 287 NLRB 1080 (1988).) 462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Dennis Bregar and Norman Nupp, on or about Septem- ber 20 and 22, 1986, respectively, and by on or about September 28, 1986, discriminatorily laying off its em- ployes Jon McCarty , Kyle Pettyjohn, Norman Simmons, Jim Deeringer, Robert Carr, Rick Fry, Eugene Fry, Carlton Vinsick, and Michael Bingham, shall offer them immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed , and make them whole for any loss of earnings and other benefits, computed on a quarterly basis from the date of discharge or layoff, to the date of a proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).4° On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed5o ORDER The Respondent, Superior Coal Company, Lovilia, Iowa, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating employees about their union activity and support. (b) Threatening employees with retaliatory closure of Superior Coal Company's Superior No. 2 coal mine if the employees select the International Union of United Mine Workers of America as their exclusive representa- tive for the purpose of collective bargaining. (c) Threatening with discharge or any other form of retaliation, or discharging or laying off employees be- cause they join, support, or assist a union, or otherwise engage in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. *B In accordance with the Board's decision in New Horizons for the Re- tarded, supra, interest on and after January 1 , 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S C § 662. Interest on amounts accurued prior to January 1, 1987, the effective date of the 1986 amendment to 26 U.S.C. § 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). 50 If not exceptions are filed as provided by Sec. 10246 of the Board's Rules and Regulations, the findings, conclusions , and recommended Order shall, as provided in Sec. 102 48 of the Rules, and adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Dennis Bregar, Norman Nupp, Michael Bingham, Robert Carr, Jim Derringer, Eugene Fry, Rick Fry, Jon McCarty, Kyle Pettyjohn , Norman Simmons, and Carton Vinsick immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions , without prejudice to their seniority or any other rights or privileges previously en- joyed, and make them whole for any loss of earnings and other benefits, computed on a quarterly basis from date of discharge to date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Wool- worth Co., 90 NLRB 289 (1950), plus interest as comput- ed in New Horizons for the Retarded, 283 NLRB 1173 (1987), as set forth in the remedy section of this decision. (b) Remove from its files any reference to the unlawful discharges of Dennis Bregar and Norman Nupp, and notify the employees in writing that this has been done and that the discharge will not be used against them in any way. (c) Preserve and, or request, make available to the Board or its agents for examination and copying , all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Superior No. 2 coal mine , in or near Lo- vilia, Iowa, copies of the attached notice marked "Ap- pendix."51 Copies of the notice, on forms provided by the Regional Director for Region 18, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted . Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, 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 ORDERED that sections 5(c), (e), (f), and (g) of the complaint are dismissed because they have not been proven by a preponderance of the evidence. 5' 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."