NLRB v. Dove Coal Company

• Citation: 369 F.2d 849
• Decision Date: 29 November 1966
• Docket Number: No. 10209.,10209.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DOVE COAL COMPANY and Lark Coal Company, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

369 F.2d 849 (1966)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DOVE COAL COMPANY and Lark Coal Company, Respondents.

No. 10209.

United States Court of Appeals Fourth Circuit.

Argued March 11, 1966.

Decided November 29, 1966.

Julius Rosenbaum, Atty., N. L. R. B., (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Warren M. Davison, Atty., N. L. R. B., on the brief), for petitioner, and Dean E. Denlinger, Dayton, Ohio (Smith & Schnacke, Dayton, Ohio on the brief), for respondent.

Before BOREMAN and ALBERT V. BRYAN, Circuit Judges, and MARVIN JONES, Senior Judge^*, United States Court of Claims.

ALBERT V. BRYAN, Circuit Judge:

Under the National Labor Relations Act the Board has found Dove Coal Company and Lark Coal Company in violation of §§ 8(a) (1) and (3), 29 U.S.C. 158 (a) (1) and (3), and now petitions for enforcement of its orders. The 8(a) (1) infractions consist of the unlawful interrogation of employees in regard to their union activities¹ and threats to the employees to close the mines if they brought in a union; the 8(a) (3) breaches are the discharge or layoff of miners to discourage union membership. The Board ordered cessation and desistance in the interrogation and threats, and reinstatement of the terminated and unrecalled employees, with reimbursement for any wages lost.

We enforce the orders. With the companies, we think the trial examiner, all of whose now relevant findings the Board adopted, should have detailed the facts upon which he rejected the employers' explanations of their actions. In this regard the report is too general, and sometimes objectionably sweeping. However, we cannot say that the ultimate findings are without a substantial evidential floor.

These companies each have a coal mine at Big Rock, Virginia, approximately 200 yards apart. Dove began operations in early 1963, and Lark commenced installation in October 1963 and started extracting in January 1964. Both were under the management of Jess Nelson, as president of Dove and manager of Lark.

Nelson had previously mined in West Virginia, where all of his employees had been union members.² He hired for Dove and Lark several men who had worked for him earlier. At the time of their engagement Nelson advised all employees that the mines must be non-union. This explanation was made, he said, because his companies would not be able to pay the royalties demanded by the union to provide the men with hospitalization and other benefits. He stressed that the entry of a union would mean the mines' closing.

On Monday, February 3, 1964 a union³ took steps to organize the employees at both mines. Nelson learned of these efforts the next day and at once undertook a thorough inquiry of his employees' intentions and interest in this movement. On Wednesday, February 5, Lark employee Ray Hutchinson was discharged. On Monday, February 10, five Dove employees — Leo Bennett, Ledford Osborne, Ferrell Lester, Charles R. Dixon and Joseph H. Barton — were laid off. Their terminations were imputable, the Board held, to their acceptance of the union.

Hutchinson was first employed by Lark in October 1963 in the installation of the mining facilities. In January 1964, he took a permanent job with Lark. He was a jack-setter on an appliance known as a continuous miner machine. Attended by two jack-setters, the machine was moved along the face of the coal vein by a rope running from the machine to a jack on either side. One jack would pull it in one direction, and the other the opposite way, as the single operator wished. During Hutchinson's shift on February 4, the rope at his machine broke on three separate occasions. The last was just before he was leaving work in the afternoon. On reporting for work the next morning, February 5, he was discharged.

The reason given for Hutchinson's discharge was that the ropes were broken through his negligence. The company's evidence shows that he had been previously warned of his inattention to the ropes. His foreman, David Boyd, testified that he had witnessed this neglect on the day of the last incident. On the other hand, Boyd concedes that he did not remonstrate with Hutchinson at the end of his shift, stating that he preferred to "cool off" before firing him. That night Boyd talked with Nelson, who was still investigating the union's imminence. Nelson directed that Hutchinson be released for careless work. Hutchinson testified before the trial examiner that the parting of ropes was not uncommon, that he had known as many as 7 to be broken on a single shift without employee censure.

The testimony is that at lunch on his last day Hutchinson had expressed a wish to join a union. That evening he signed an application for membership. The company contends it had no knowledge of Hutchinson's statement or union application. However, as there were only 18 employees at Lark, and Nelson was then alert to sense union sympathy, word of a worker's attitude could readily spread.

In the circumstances, the Board found that Lark had notice of Hutchinson's union inclinations and that his discharge might fairly be attributed to that leaning. We cannot say the Board's conclusion rests on insubstantial proof.

The 5 employees of Dove laid off on Monday, February 10, had all joined the union during the week of February 3. One of them, Bennett, had been called long distance at his home by Nelson on Saturday, February 8 and told that he need not return to work. The reason given at this time was his union persuasion. He reported for work on Monday however, and then was told, with the other 4, that their lay-offs were due to a "cut back" in the mining. The Board rejected this explanation, and we cannot say its ruling is unfounded in the evidence.

Specifically, the company maintained that the cut back was necessary to lower the percentage of "dirty coal" in its production. This term refers to the relative quantity of rock, ash or other noncombustible material in the extractions. Henry Bailey, sole purchasing agent for all of the companies' coal, testified that he would caution a supplier delivering coal having an impurity content in excess of 7%, and would refuse to purchase if the problem persisted.

The Dove operation was divided into two main sections. In one, excavation was performed by blasting the coal out and then gathering it with a work loader, called a "pig". This area of work was thus designated the pig section. The other section was worked by a continuous miner machine, using augers to undercut and withdraw the coal. This method was more efficient, and collected less "dirt", than the pig. As the coal captured in the pig section was likely to be unacceptable because of its impurity, it was intermixed with coal from the other section to satisfy the purchaser's standard.

Commencing in October 1963, Dove had considerable trouble with dirty coal. Bailey complained, and a variety of expedients was tried to eliminate the foreign matter. With none of its experiments successful, in the last of December 1963 Dove abandoned an entire section of the mine and moved the equipment elsewhere. Until January 14, the character of the minings was better but thereafter it lapsed again.

Dove then determined to halve the work force on each shift in the pig section. As there would then be less coal from the pig section to mix with the purer coal from the other section, the effect would be to reduce the percentage of dirt in the entire production. The 5 employees of Dove released on February 10 labored in the pig section. Four were chosen for termination, the company said, because of the lower quality of their work, and one, Bennett, because of his declared intention to quit.

Evidence adduced by the Board's General Counsel indicated that the "dirty coal" problem was not the real cause of the lay-offs, and we cannot say the trial examiner was wholly unwarranted in adopting this view. The concurrence of the lay-offs with union activities, Nelson's telephone conversation with Bennett and the fact that the suspended employees were union adherents point to an anti-union motivation. At the least, indubitably it was a factor in Dove's decision, and this is sufficient to declare the suspensions discriminatory. NLRB v. West Side Carpet Cleaning Co., 329 F.2d 758, 761 (6 Cir. 1964); NLRB v. Overnite Transportation Co., 308 F.2d 284, 294-295 (4 Cir. 1962).

In rebuttal of Dove's contention that the furloughs were economically justified, the trial examiner warrantably found that purchasing agent Bailey had not warned the companies of a "dirty coal" problem during the period immediately preceding the releases. There is nothing to suggest that the company had greater cause for concern with "dirty coal" on February 8 than at any earlier period. Certainly, the claimed economic justification is not made clear in the evidence. At best, there was a conflict on the issue, a difference to be resolved by the trial examiner. The evidence underlying his resolution of it against the employers is not insubstantial. See NLRB v. Williams, 195 F.2d 669, 672 (4 Cir. 1952), cert. denied 344 U.S. 834, 73 S.Ct. 42, 97 L.Ed. 649.

In this connection, the companies assign error to the trial examiner's refusal to receive certain testimony proffered by purchasing agent Bailey. It consisted of an alleged warning by Bailey to Nelson of dirty coal between January 31 and February 10, 1964. The trial examiner did not demand, as the companies complain, that the witness pin-point the day of the conversation. He did insist that Bailey first be able to say that it in fact occurred at some time between those dates. For his failure to do so, the examiner excluded the tender. This was not error.

Lastly, we have no difficulty in sustaining the Board in its finding that Nelson impermissibly threatened to shut down the mines upon admission of the union.

We will enforce the orders of the Board.

Orders...