Shenandoah Coal Co.

National Labor Relations Board - Board Decisions

Jan 8, 1992

305 N.L.R.B. 1071 (N.L.R.B. 1992)

1071
305 NLRB No. 166
SHENANDOAH COAL CO.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We note that in sec. II, D, par. 1, the judge inadvertently stated
that the Respondent discharged Ray on January 8, 1989, rather than
on January 9.
2 We have amended the judge’s Conclusions of Law to conform
to the violations found.
1 All dates are from November 1988 to January 1989 unless other-
wise stated.
Shenandoah Coal Company and United Mine
Workers of America and District 28, United
Mine Workers of America. Case 11–CA–13282
January 8, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On August 20, 1991, Administrative Law Judge
Marion C. Ladwig issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
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 brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions,2 and to adopt the recommended Order.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 2.
‘‘2. By unlawfully rendering assistance to SVCMU
by soliciting employees in December 1988 to sign
SVCMU dues-checkoff cards and by soliciting em-
ployees in January 1989 to join SVCMU and sign
SVCMU dues-checkoff cards, the Respondent violated
Section 8(a)(2) and (1) of the Act.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Shenandoah Coal Com-
pany, Oakwood, Virginia, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Patricia L. Timmins, Esq., for the General Counsel.
Mark M. Lawson and Mark R. Graham, Esqs. (White, Elliott
& Bundy), of Bristol, Virginia, for the Respondent.
James J. Vergara Jr., Esq., of Hopewell, Virginia, for the
Union.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge. This case
was tried in Tazewell, Virginia, on January 15–16, 1991. The
charge was filed by United Mine Workers of America and
its District 28 (the Union) against Shenandoah Coal Com-
pany on April 18, 1989 (amended May 3 and June 28, 1989,
and March 29, 1990). The complaint was issued March 30,
1990.
The Company’s underground mine, leased from Pittston,
was previously operated as a union mine. About May or June
1988 the Company resumed the production of coal at the
mine. About 2 months earlier, when only four employees
were there pumping water in preparation for production, the
Company assisted in forming, and signed a 5-year agreement
with, an organization called Southwest Virginia Coal Miners
Union (SVCMU).
On January 3, 1989,1 the Union sent the Company a writ-
ten request for negotiations. The following week the Com-
pany informed union supporter Peck Ray it was ‘‘time for
you to leave’’ and permanently laid off union supporters
Glen Cook, Joe Horne, and Rockie and Todd Meadows, dis-
regarding the contractual seniority in the SVCMU agreement.
The primary issues are whether the Company, the Re-
spondent, (a) rendered unlawful assistance to SVCMU during
the 10(b) 6-month limitation period (after October 18, 1988),
(b) engaged in coercive interrogation and other coercive con-
duct, (c) threatened to close the mine and move to another
site to avoid the Union, and (d) discriminatorily discharged
employee Ray and laid off employees Cook, Joe Horne, and
Rockie and Todd Meadows, violating of Section 8(a)(1), (2),
and (3) of the National Labor Relations Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Company, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Company, a corporation, mines coal in Buchanan
County, Virginia, where it annually ships coal valued over
$50,000 to Jewel Ridge Mining Corp., which annually ships
coal valued over $50,000 directly outside the State. The
Company admits, and I find, that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act and that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Seniority Provisions in SVCMU Agreement
The Company, under the management of President James
Ashby and Owner Rick Jackson, leased from Pittston a mine
site that previously was a union operation (Tr. 10, 27, 109,
114, 281–282).
In March 1988 the Company hired Joe Horne, Todd
Meadows, Rick Jackson’s nephew Ronnie Blankenship, and
1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a fourth employee to pump water from the mine to prepare
it for resuming the production of coal around May or June
1988 (Tr. 8–9, 27, 134–135). Before hiring any other em-
ployees the Company assisted Blankenship in forming an or-
ganization called Southwest Virginia Coal Miners Union
(SVCMU). It provided Blankenship the services of its attor-
ney Bill Clay and its labor relations consultant Orville Sykes
to form SVCMU and to draft a 5-year agreement. On April
27, 1988, Blankenship, Joe Horne, and Todd Meadows
signed the agreement as SVCMU’s officers. (Tr. 11–13, 38–
42, 46, 51, 62, 135–148, 159–168, 175–177, 182–185, 192,
195–196; G.C. Exh. 2.)
As prepared by Sykes, the agreement established the com-
pany policy of following seniority and qualifications when
laying off employees. Article XIV, Seniority, of the agree-
ment (G.C. Exh. 2, p. 18) read:
SECTION 1. Seniority shall mean continuous length
of service, at the mine site, calculated from the last date
of employment.
SECTION 2. When a reduction in force is made at
the mine site, the employee with the most seniority and
qualifications will be retained.
The wage scale in the 5-year agreement that company con-
sultant Sykes drafted provided wages from $55 to $75 a day
for 8 hours work. To induce Blankenship, Horne, and Mead-
ows to sign the agreement, President Ashby orally promised
to continue paying them the $85 a day they were being paid.
(Tr. 10–13, 43, 138–142, 186; G.C. Exh. 2, appen. A, p. 27.)
SVCMU has never held a meeting or an election. No em-
ployees has ever paid any dues. Copies of the agreement
have never been distributed to the employees. (Tr. 13–14,
36–37, 39–40, 58–59, 75–76, 103, 170–174, 190–191, 199–
200.)
B. Assistance to SVCMU and Coercive Conduct
In November Ronnie Blankenship, Joe Horne, and Todd
Meadows (all of whom had signed the SVCMU agreement
as officers of that organization), Peck Ray (who is alleged
to have been discharged on January 9), Glen Cook and
Rockie Meadows (who were laid off with Joe Horne and
Todd Meadows on January 11), and other employees of the
Company visited the union hall in Oakwood, Virginia, and
signed cards authorizing the Union to represent them. (Tr.
19, 74–75, 114–115, 211.)
On December 11 (the second Sunday in December) Peck
Ray, four employees laid off January 11 (Glen Cook, Joe
Horne, and Rockie and Todd Meadows), and other company
employees attended UMWA Local 1852’s regular monthly
meeting held at a trailer parked at another mine site. Addi-
tional company employees signed union authorization cards
at that meeting and later at the union hall in Oakwood. (Tr.
20, 75, 95–97, 114–115, 211.)
On December 16, the following Friday, in the presence of
members of the day shift, Owner Rick Jackson handed Peck
Ray a SVCMU dues-checkoff card. Ray handed it back. As
Peck Ray credibly testified, Jackson asked ‘‘wasn’t I going
to sign it.’’ Ray answered no and walked off. Ray had never
heard of SVCMU before. (Tr. 97–99.)
About that same date in December, Jackson approach
third-shift electrician John Johnson and asked him to sign a
SVCMU checkoff card. Johnson had never heard about
SVCMU and would not agreed to sign the card. (Tr. 123–
124.)
In a meeting of second-shift employees, Jackson gave
Clark Horne a SVCMU dues-checkoff card. The card (G.C.
Exh. 3) was already filled out with his name, social security
number, and name of employer, but the amount of dues was
left blank. (No dues had ever been paid.) As Clark Horne
credibly testified (Tr. 76–78), Jackson said he wanted Horne
to sign it and
I told him I didn’t want to sign it. He wanted to know
why? I told him I’d never heard of it before, I didn’t
belong to that union.
He said that we’d belonged to it ever since I’d been
working there and I told him that I’d never heard of it
before.
The following Monday morning, December 19, President
Ashby called Peck Ray into his office. In the presence of
Owner Jackson and Superintendent Gordon Russ, Ashby
wanted ‘‘to know the reason why I wouldn’t sign the card.’’
Ray answered that he had been with the Union since 1974
and he was not going to jeopardize his retirement for that
place. (Tr. 97, 99.)
In the same conversation, Ashby said they had heard the
rumors that the men had been at the union hall. Ray admitted
that he and also other company employees had been there.
Ashby stated and repeated that they were going to work (if
the Union struck) and said that they would do so ‘‘even if
he had to call the police in.’’ Ray responded that he could
not talk for the other men, ‘‘but myself, when the picketers
come I was going to the house.’’ (Tr. 100.) Without expla-
nation, Ashby, Jackson, and Russ were not called to testify.
Later, with Jackson and Russ again present, Ashby talked
to Clark Horne about signing the SVCMU card. As Horne
credibly testified (Tr. 78–79):
James [Ashby] asked me if I had any particular reason
why I would not sign it. And I told him that I did not
belong to that union. He asked me if I belonged to any
other union. I told him that I’d belong to the UMWA
and he wanted to know that if in case they had a strike
or anything, that Pittston [employees] picketed them,
would I cause him any trouble. I told him, no, I would
not cause any trouble but I would not cross the picket
line. He said that that was pretty much the same thing
that Peck [Ray] had told him earlier.
I note that on January 2 (7 days before Ray’s termination
and 9 days before Glen Cook, Joe Horne, and Rockie and
Todd Meadows were laid off) Clark Horne was injured on
the job and was no longer working (Tr. 74).
During the first week of January, in the presence of Glen
Cook and Todd Meadows outside the mine office, Owner
Jackson handed Joe Horne one of the SVCMU checkoff
cards and asked him to sign it. He refused. Cook and Mead-
ows also refused to sign the cards that Jackson handed them.
(Tr. 15–17.)
I find, as alleged, that Owner Rick Jackson unlawfully ren-
dered assistance to SVCMU by soliciting Clark Horne, John
Johnson, and Peck Ray in December and Glen Cook, Joe
1073SHENANDOAH COAL CO.
Horne, and Todd Meadows in January to sign SVCMU
checkoff cards, violating Section 8(a)(2) and (1) of the Act.
A.M.A. Leasing, 283 NLRB 1017, 1022 (1987).
I also find that President Ashby’s reference to employees
being at the union hall created the impression that the Com-
pany was engaged in surveillance of union activities, coerc-
ing employees in violation of Section 8(a)(1), and that in the
context of this and the unlawful solicitation of signatures on
SVCMU dues-checkoff cards, Ashby’s interrogation of Peck
Ray and Clark Horne about their union support was coercive
and further violated Section 8(a)(1).
C. Further Coercion and Threats
On Tuesday, January 3, after ‘‘just about’’ all the Com-
pany’s mining employees had signed union authorization
cards, the Union sent the Company a letter requesting nego-
tiations. The Company did not respond to the letter. (Tr.
115–116; G.C. Exh. 4.)
It is undisputed that Raymond Jackson (Owner Rick Jack-
son’s brother) observed Peck Ray, as well as Glen Cook, Joe
Horne, and Todd Meadows, in open view at the trailer for
the Local 1852 meeting on January 8 (Tr. 17–18, 20–22, 59–
61). The next morning, as discussed later, Rick Jackson
called Ray to his office and told him it was time for him
to leave the mine. Jackson then talked to Cook, Joe Horne,
Todd Meadows, and other employees on the first shift. This
was the first Monday after the Union sent the Company its
January 3 request for negotiations and 2 days before the
Company permanently laid off Cook, Joe Horne, and Todd
and Rockie Meadows. (Tr. 22–23, 115; G.C. Exh. 4.)
In the meeting with the day crew, Jackson ‘‘Said he was
going to try to get insurance just as soon as he got to run-
ning a little more coal’’ (Tr. 229, 267). Until then, the Com-
pany had not provided the ‘‘major medical health plan’’ re-
quired in article XIX, Insurance, in the SVCMU agreement
(G.C. Exh. 2, p. 23). Also in this meeting, as Joe Horne
credibly testified (Tr. 23), Jackson said that
he heard that some of us had joined the Union, that he
was not going to mine UMWA. He said, before he did
that he would quit. The ones that had joined the Union,
that would not sign the authorization to [checkoff dues
for] Southwest Virginia Coal Miners Union, that wher-
ever he went that the men that did sign to [check off
the SVCMU dues] would go with him [but that those
who would not sign] he would no longer have a job for
them.
Although Rick Jackson was present at the trial, sitting at the
counsel table assisting the company counsel, he did not tes-
tify (Tr. 10).
I find, as alleged, that in the January 9 meeting with Glen
Cook, Joe Horne, Todd Meadows, and other members of the
day crew, Owner Jackson (a) created the impression that the
Company was engaged in surveillance of union activities, (b)
threatened to close the mine if the employees joined the
Union, (c) threatened to move to another site to avoid the
Union, and (d) unlawfully rendered assistance to SVCMU by
implicitly soliciting the employees to join SVCMU and to
sign its dues-checkoff cards, further violating Section 8(a)(1).
D. Discharge of Peck Ray
Early Monday morning before work on January 8, Owner
Rick Jackson called shuttle car operator Peck Ray into the
office. There, in the presence of Superintendent Gordon Russ
and Foreman Keith Horne, Jackson discharged Ray, telling
him ‘‘I think it’s time for you to leave.’’ As Ray credibly
testified (Tr. 101–102), the following transpired:
I asked him what the problem was. [Jackson] said,
well, you said you wasn’t going to give me no trouble.
I said, well, I’m not giving you no trouble. . . .
what’s going on here?
He said, well, I think it’s time for you to leave.
I said, well, are you firing me?
He said, no. . . . I just think it’s time for you to
leave. You said you weren’t going to give me no trou-
ble. . . . he asked me where I was at the day before
that. And I told him it weren’t none of his damn busi-
ness, that was Sunday. But I was at the union meeting
and I’d be at the next one.
Then he asked me to leave again.
Then I told him . . . well, you need to talk to these
men here. Negotiate with them or something.
He asked me if they’s all out there and I told him,
no. So, I walked out in the shop. When they all got
there I hollered at him and told him they was there.
As found, Ray had signed an authorization card for the
Union in November, had refused to sign a SVCMU dues-
checkoff card upon Jackson’s request on December 16, had
informed Jackson and President Ashby on December 19 that
he would not cross a union picket line, and then on Sunday,
January 8, had attended a union meeting in open view of
Jackson’s brother Raymond.
The Company neither disputes Ray’s testimony that Jack-
son told him, before working time that morning, that it was
time for him to leave the mine, nor attempts to offer any ex-
planation or justification. Neither Jackson nor Russ testified.
Keith Horne did testify about what happened after the meet-
ing, but did not dispute Ray’s testimony about what tran-
spired during the meeting.
Although Jackson at one point in the meeting denied that
he was firing Ray, I find the undisputed testimony clear that
he was discharging Ray by insisting on his leaving his em-
ployment at the mine. The evidence indicates that Jackson
took this action because of the so-called trouble Ray was
giving the Company: (a) refusing Jackson’s request that he
support SVCMU, (b) declaring his determination not to cross
a union picket line, and (c) continuing his open support of
the Union by attending the union meeting the day before.
Moreover, immediately following the meeting with Ray,
Jackson revealed the Company’s unlawful motivation by
threatening the day-shift employees with the loss of jobs if
they refused to support SVCMU and selected the Union to
represent them.
I therefore find that the General Counsel had made a
prima facie showing sufficient to support the inference that
Ray’s support of the Union was a motivating factor in the
Company’s decision to discharge Ray. Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
1074 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Company’s defense is that Ray was not discharged
and that he ‘‘resigned voluntarily from employment’’ (G.C.
Exh. 1AA). Regarding what Ray said when he left Jackson’s
meeting with the day crew, Foreman testified: ‘‘I can’t re-
member if he said ‘I quit’ or ‘‘I’ll just give it to you’’ (Tr.
268), or that ‘‘He could have’’ said ‘‘I’m out of here’’ (Tr.
281). Electrician Ernest Hale recalled (Tr. 222) that ‘‘We
was having a talk there and [Ray] just pulled his belt off and
jerked his light off and said, ‘I quit.’’’ Ray recalled (Tr. 102)
that ‘‘when I hollered at [Jackson] he come out there and
started to talking to them and I just left.’’
I agree with the General Counsel’s contention in his brief
(at 18) that ‘‘even assuming that Ray subsequently stated
that he ‘quit,’’’ the Company ‘‘itself had already dis-
charged’’ him.
I reject the Company’s contention that Peck Ray ‘‘re-
signed voluntarily from employment’’ at the mine and find
that the Company discriminatorily discharged him on January
9, violating Section 8(a)(3) and (1). I further find, as alleged,
that in the meeting with Ray that morning, Owner Jackson
coercively interrogated the employee, violating Section
8(a)(1).
E. Four Union Supporters Laid Off
1. The permanent layoffs
On January 11, after a motor went down on one of the
two continuous mining machines that the Company was op-
erating, the Company disregarded its own seniority policy for
layoffs and laid off senior employees from the first (day)
shift, but none of the junior employees on the second shift
(Tr. 24–25, 35, 94, 105, 261, 269, 273–280, 287; G.C. Exh.
2, p. 18).
The trouble-plagued Lee-Norse 265 mining machine and
the superior Joy mining machine were used on both the first
and second shifts. On both shifts the two mining machines
were being used in separate sections of the mine, with sepa-
rate crews except for the beltman who worked on the con-
veyor belt for both sections. After removing the Lee-Norse
miner, the Company continued operating the Joy miner on
both shifts. (Tr. 49–50, 125–126, 157–158, 210, 212–213,
217–218, 247, 263.)
No witness was called at the trial to explain why, after
months of continual problems with the Lee-Norse miner, the
Company decided at that time to discontinue using it instead
of replacing the faulty motor, as before (Tr. 217). Owner
Jackson had never indicated any intention of shutting down
the Lee-Norse section (Tr. 270–271). Two days earlier, in a
meeting with the day crew (as discussed above), Jackson had
talked about getting insurance for the employees ‘‘as soon as
he got to running a little more coal.’’ Removing the Lee-
Norse miner would result in far less production. Signifi-
cantly, the decision to stop using the Lee-Norse miner was
made 8 days after the Union requested negotiations and 2
days after the Company terminated Peck Ray and threatened
day-shift employees with the loss of jobs if they selected the
Union.
Furthermore, no witness was called to explain how it se-
lected employees to lay off. Owner Rick Jackson and Super-
intendent Gordon Russ, who made the selection without con-
sulting day-shift Foreman Keith Horne, did not testify (Tr.
287).
On January 11 the Company permanently laid off union
supporters Glen Cook, Joe Horne, and Horne’s two half-
brothers, Rockie and Todd Meadows (Tr. 25–26, 44, 41–52,
105, 177–178). As found, all four of them had signed union
authorization cards and attended the December 11 union
meeting. One week earlier Cook, Joe Horne, and Todd
Meadows had refused Jackson’s requests that they sign
SVCMU dues-checkoff cards, and 3 days earlier they had at-
tended the union meeting in open view of Rick Jackson’s
brother Raymond.
I note that the Company also laid off Rick Jackson’s neph-
ew Ronnie Blankenship (who was off January 11–13, but
was recalled Monday, January 16) and employee Raymond
Vanover, neither of whom is alleged to have been
discriminatorily laid off (Tr. 177–178, 204–206).
Joe Horne, the most senior employee, had been employed
as a mining machine operator (a top-rated job) on both the
Lee-Norse and Joy miners. He was laid off instead of junior
miner operators on the second shift. (Tr. 8, 27–28, 248, 265;
G.C. Exh. 2, p. 27.)
Senior shuttle car operators Glen Cook (hired in May
1988) and Todd Meadows (hired in March 1988) were laid
off instead of junior shuttle car operators on the second shift.
Todd Meadows was working on the Joy miner section, which
continued in operation. His brother Rockie Meadows, who
was the day-shift beltman working on the conveyor belt for
the Lee-Norse and Joy sections, was laid off permanently
even though the conveyor belt remained in operation on the
day shift for the Joy section after the removal of the Lee-
Norse miner. Thus, Rockie and Todd Meadows’ jobs were
not eliminated. (Tr. 37, 94, 105, 247, 261, 264–266, 274.)
In the absence of either Owner Jackson or Superintendent
Russ as a witness, no nondiscriminatory reason was given at
the trial for permanently laying off senior employees Glen
Cook, Joe Horne, and Todd Meadows or for permanently
laying off Rockie Meadows, the half-brother of Joe Horne
and the brother of Todd Meadows, all of whom where open
union supporters.
2. Contentions and concluding findings
The General Counsel contends in his brief (at 19) that
without an explanation for the Company’s decision ‘‘to get
rid of the Lee-Norse miner at that time, one can only con-
clude that it was for the sole purpose of covering up the real
purpose of its actions, the elimination of known union activ-
ists and its employees’ support’’ of the Union. The General
Counsel points out the problems experienced with the Lee-
Norse ‘‘for as long as the miner had been in the mine,’’ yet
the Company took no action to discontinue using it ‘‘until
after [the Company] received the demand for recognition’’
from the Union in early January.
Moreover, the General Counsel argues, even if the re-
moval of the Lee-Norse miner ‘‘was justified and not a guise
to conceal [the Company’s] true motivation of stifling the
[union] activities of its employees,’’ the Company ‘‘never
explained why it chose many of its most senior and most ex-
perienced employees for layoff,’’ referring to Glen Cook, Joe
Horne, and Todd Meadows. He also points out that Todd
Meadows’ work as shuttle car operator in the Joy section re-
mained, and Rockie Meadows’ work as a beltman on the
conveyor belt also remained.
1075SHENANDOAH COAL CO.
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
The Company, ignoring its failure to call Rick Jackson to
testify, contends in its brief (at 6) that ‘‘When the Lee-Norse
miner broke down for the last time, [Company Owner] Rick
Jackson made the decision to shut down the Lee-Norse sec-
tion’’ and some of the ‘‘employees had to lose their jobs.’’
It ignores the violations of its own seniority policy, argues
that the evidence shows that more employees joined the
Union than were laid off, and contends (at 7) that it ‘‘had
legitimate business reasons for shutting down the Lee-Norse
section of the mine and laying off some of its work force.’’
It argues that the ‘‘General Counsel failed to prove a prima
facie case, but even if she did, the Employer produced suffi-
cient evidence to prevail.’’
I find that the General Counsel has made a prima facie
showing sufficient to support the inference that their union
support was a motivating factor in the Company’s decision
to permanently lay off employees Glen Cook, Joe Horne, and
Rockie and Todd Meadows. In making this finding I rely
particularly on the following:
(a) The timing of the permanent layoffs, 8 days after the
Union requested negotiations and 2 days after Owner Jack-
son discriminatorily discharged union supporter Beck Ray
and threatened the first-shift employees with the loss of jobs
if they refused to support SVCMU and selected the Union
to represent them.
(b) The refusals by Glen Cook, Joe Horne, and Todd
Meadows of Jackson’s requests the week before that they
sign SVCMU dues-checkoff cards.
(c) The four employees’ open support of the Union.
(d) The permanent layoff of three of them, although senior
employees, in violation of the Company’s own seniority pol-
icy for layoffs.
(e) The unexplained layoff of two of them, whose jobs
were not eliminated.
I find that the Company has failed to sustain its burden
to demonstrate that in the absence of the employees’ union
support it would have discontinued using the Lee-Morse
miner, or that even if it removed the Lee-Norse miner for le-
gitimate reasons, that it would have permanently laid off any
one of the four employees.
I therefore find that the Company discriminatorily laid off
Glen Cook, Joe Horne, Rockie Meadows, and Todd Mead-
ows in violation of Section 8(a)(3) and (1).
CONCLUSIONS OF LAW
1. By discriminatorily discharging Peck Ray on January 9
and permanently laying off Glen Cook, Joe Horne, Rockie
Meadows, and Todd Meadows on January 11, 1989 for sup-
porting the Union, the Company has engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(3) and (1) and Section 2(6) and (7) of the Act.
2. By unlawfully rendering assistance to SVCMU by solic-
iting employees in December 1988 to sign SVCMU dues-
checkoff cards and by soliciting employees in January 1989
to join SVCMU and sign SVCMU dues-checkoff cards, the
Company violated Section 8(a)(1).
3. By coercively interrogating employees, creating the im-
pression that the Company was engaged in surveillance of
their union activities, and threatening to close the mine and
move to another site to avoid the Union, the Company fur-
ther violated Section 8(a)(1).
REMEDY
Having found that the Respondent has engaged in certain
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.
The Respondent having discriminatorily discharged one
employee and permanently laid off four employees, it must
offer them reinstatement and make them whole for any loss
of earnings and other benefits, computed on a quarterly basis
from date of discharge or layoff to date of 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). Having rendered unlawful assistance to
SVCMU, the Respondent must cease recognizing and bar-
gaining with it.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Shenandoah Coal Company, Oakwood,
Virginia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging, laying off, or otherwise discriminating
against any employee for supporting United Mine Workers
of America (UMWA) or any other union.
(b) Rendering unlawful assistance to Southern Virginia
Coal Miners Union by soliciting employees to join SVCMU
or to sign its dues-checkoff cards.
(c) Coercively interrogating any employee about UNWA
support or UMWA activities.
(d) Creating the impression that it is engaged in surveil-
lance of employees’ UMWA activities.
(e) Threatening to close the mine and move to another site
to avoid UMWA.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Glen Cook, Joe Horne, Rockie Meadows, Todd
Meadows, and Peck Ray immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to substan-
tially 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
suffered as a result of the discrimination against them, in the
manner set forth in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
discharge and layoffs and notify the employees in writing
that this has been done and that the discharge or layoff will
not be used against them in any way.
(c) Cease recognizing and bargaining with SVCMU.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
1076 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 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
National 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.’’
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its mine in Buchanan County, Virginia copies
of the attached notice marked ‘‘Appendix.’’3 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 11, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT discharge, lay off, or otherwise discriminate
against any of you for supporting United Mine Workers of
America (UMWA) or any other union.
WE WILL NOT unlawfully assist Southern Virginia Coal
Miners Union by asking you to join SVCMU or to sign its
dues-checkoff cards.
WE WILL NOT coercively question you about your UMWA
support or activities.
WE WILL NOT create impression of surveillance of your
UMWA activities.
WE WILL NOT threaten to close the mine or move to an-
other site to avoid UMWA.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Glen Cook, Joe Horne, Rockie Meadows,
Todd Meadows, and Peck Ray immediate and full reinstate-
ment 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 en-
joyed and WE WILL make them whole for any loss of earn-
ings and other benefits resulting from their discharge or lay-
off, less any net interim earnings, plus interest.
WE WILL notify each of them that we have removed from
our files any reference to his discharge or layoff and that the
discharge or layoff will not be used against him in any way.
WE WILL cease recognizing and bargaining with SVCMU
as your representative.
SHENANDOAH COAL COMPANY