NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
McElroy Coal Company and United Mine Workers of
March 9, 2009
DECISION AND ORDER
By Chairman Liebman and Member Schaumber
On November 21, 2008, Administrative Law Judge Eric M. Fine issued the attached decision. The Respondent filed exceptions,1 and the General Counsel and the Charging Party filed separate answering briefs. The General Counsel also filed limited exceptions and a supporting brief, and the Respondent filed an answering brief.
The National Labor Relations Board has considered the decision and the record in light of the exceptions, limited 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
ORDER
The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Respondent, McElroy Coal Company, Glen Easton, West Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
“(a) Restricting employees by threatening them with having their vehicles towed from its parking lot because employees engaged in the protected activity of displaying signs stating ‘We Don’t Want Scabs’ on those vehicles in support of the United Mine Workers of America, Local 1638, AFL–CIO, CLC’s position on subcontracting.”
2. Substitute the attached notice for that of the administrative law judge.
Dated,
_____________________________________
Wilma B. Liebman, Chairman
_____________________________________
Peter C. Schaumber, Member
(Seal) National Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order of the
National Labor Relations Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not restrict employees by threatening them with having their vehicles towed from our parking lot because employees engage in the protected activity of displaying signs stating “We Don’t Want Scabs” on those vehicles in support of the United Mine Workers of America, Local 1638, AFL–CIO, CLC’s position on subcontracting.
We will not in any like or related manner interfere with, restrain, or coercive you in the exercise of the rights set forth above.
McElroy Coal Company
Suzanne Bernett, Esq., for the General Counsel.
Thomas H. May, Esq., of
Deborah J. Gaydos, Esq., of
DECISION
Statement of the Case
Eric M. Fine, Administrative Law Judge. This case was
tried in
On the entire record, including my observation of the demeanor of the
witnesses, and after considering the oral arguments by the General Counsel, the
Findings of Fact
i. jurisdiction
Respondent, a corporation, with an office and place of business in Glen
Easton, West Virginia, has been engaged in the business of operating an
underground coal mine. During the 12
month period ending September 30, Respondent purchased and received at its
ii. alleged unfair labor practices
The mine operates continuously on three shifts. The
Lewis testified that subcontracting has always been an issue between the
Lewis estimated that during January 2 to October 1, there were about 150
grievances filed over subcontracting.
Subcontracting was discussed at a lot of union meetings. The subcontracting provision in the
applicable collective bargaining agreement provides that repair and maintenance
work customarily performed by classified employees at the mine or central shop
shall not be contracted out except where the work is performed by a
manufacturer or supplier under warranty or where the employer does not have
available equipment or regular employees, including laid off employees, with
the necessary skills to perform the work.
Lewis testified that, during the time period of January to September
2007, seven cases went to arbitration over subcontracting, and the Employer
prevailed in almost all of them. Lewis
could not state how many grievances were settled short of arbitration. Lewis testified most of the arbitrations were
in the latter part of 2007. Lewis
testified the
Clifford White has been employed by Respondent since 2003. In September, White was a belt man, and at
the time of the trial he was a rock duster.
White holds union office as a mine committeeman, organizer, and alternate
safety person. He has held those
positions since June 2007. White testified
there was a dispute between the Union and Respondent over subcontractor GMS
putting in belt rollers, shoveling belts, setting posts, hanging life line, and
water line. White first saw the
subcontractor performing this work around April or May, and the amount of the
work GMS was performing increased in September.
White testified grievances were filed over this work.
White testified that, as a belt man, White traveled through the mine
which contained about 26 miles of belt enabling White to see subcontractors
perform the disputed work. White
testified the amount of subcontracting was increasing all of the time. White testified he spoke to Assistant Belt
Coordinator Chuck Davis about the increase in the use of subcontractors around
June. White was a committeeman at the
time of the conversation with
White testified there are about 737 employees in the bargaining unit,
working three rotating shifts. The
contractors were performing work on all shifts.
White estimated that about 145 people in the bargaining unit performed
the disputed work per shift, with a little more on the day shift. White estimated that about 22 or 23
contractor employees were coming in and doing the work per day at one portal. White did not know the number of subcontractor
employees, if any, at the other two portals.
White testified there have been disagreements between the
Lewis testified the
On September 27,
White testified he had signs made for his truck. The signs stated, “WE DON’T WANT SCABS.” The signs were two feet by eight feet on a
sheet of plywood painted white with blue letters. There was one sign on each side of the bed of
White’s full size pick up truck. The
signs were the length of the truck bed.
White called
White testified he drove the truck to work with the signs on September
27, 28 and October 1. White testified he
worked the afternoon shift on September 27.
White arrived at the parking lot at about 2 p.m. and parked 50 feet from
the main entrance to where the coal miners get ready for work. White testified employees asked him about the
sign. He testified he knew Adkins saw
the sign because Adkins walked by White.
White testified Rich Eddy from the UMW was there and he and White were
talking at the time. White testified
Adkins walked by White and went right up to the truck. Adkins put his hands on his hips, stood there
looked at the truck for a while, and then walked back in the office. Adkins did not say anything. White worked the afternoon shift on September
28. He parked toward the back end of the
parking lot that day, about 200 feet from the mine entrance. The next shift White worked was October
1. He testified he parked that day
towards the main entrance where the miners drive by.6
White testified, “My definition of a scab is it’s a union coal mine; it should be union work.” White testified he knew the workers employed by the subcontractor were not in a union “Because we know what GMS is.”7 White testified he thought the word “scab” would be safe. White testified he did not use the word scab to fire people up. He testified, “Nobody got fired up.” He stated, “Guarantee you, nobody got fired up, not even the contractor.” He testified no one was upset about the word. White testified he did not use the word to get people upset to take action. He testified, “There was no action being taken.”
White testified on October 1, he was asked to report to the office by
Adkins. Some of White’s coworkers told
him Adkins was looking for him because White’s truck had signs on them. White testified he went to Adkins office at
the end of White’s shift on October 1.
Lewis, a mine committeeman, accompanied White. White testified as follows: Adkins told White he wanted the signs removed
from White’s truck. Adkins told White he
had to remove the truck from the parking lot because of the signs. White said, “It’s a freedom of speech, ain’t
it?” Adkins responded he did not care
about that, he wanted the truck removed.
White said, “You mean to tell me I can’t bring it back the next day?” Adkins said, “No. Take the signs off the truck, you can bring
the truck back.” White responded, “Okay.” Adkins told White if he came back with the
signs, the truck would be towed at White’s expense. White testified that ended the meeting. Lewis testified that when he came out of the
mine from work, Lewis was told by different employees that White was looking
for him. When Lewis found White, White
told him he needed Lewis to go to the office with him. Lewis testified as follows about the meeting:
Lewis testified Adkins stated to White in reference to White’s truck, “I want
it off the property.” White asked why,
and Adkins said, “Because of the sign.”
White said, “I am just expressing a freedom of speech, and don’t I have
a right to do that?” Adkins said, “No. This is a private parking lot and I want it
off.” White asked if he could bring it
back. Adkins responded, “As long as the
signs are gone, you can bring it back.”
Adkins said, “If I see it out there again with the signs on it, I will
have it towed.” Lewis testified the only
reason Adkins gave for the removal of the signs was it was private property and
he wanted the vehicle removed. Lewis
testified Adkins did not cite any rules to them, or state the signs caused
turmoil at the mine.
White removed the signs, and has not put them back on his truck. He testified no other employees had put signs
on their trucks since about sub contractors.
White testified about 30 or more employees asked him why he took the
signs off his truck and White told them Adkins, “said I had to have them off
there or my truck would be towed at my expense.” Lewis testified employees asked him about
White taking the signs off his truck. He
testified, “Different guys said—well, they were curious what happened when we
went in the office.” He testified he
told them “Jason said he had to take the signs off or get the truck out of the
parking lot.” Lewis testified it was “it
was pretty much the bath house topic as to what happened.” He testified, “I explained to them what
happened and then it was over.”
The parties stipulated the parking lot is not visible from the road
leading to the mine. White testified
employees, management, employees of subcontractors, and people who bring materials
in park in the lot. White testified
there was no strike or picket line going on at the facility at the time he put
the sign on his truck. The employees of
the subcontractors were not crossing a picket line, or replacing a
striker. White testified during the time
that he saw the subcontracting increasing there were no mine workers on
layoff. Lewis testified all of the
employees working at that portal of the mine park in that parking lot. Lewis testified employees put signs on their
vehicles at the mine, such as favorite teams, hunting logos, religious signs,
and others. Lewis testified he is not
aware of any rule against displaying the signs on the parking lot. Lewis testified he did not hear that White’s
signs caused any disruption of work or hostility to the subcontractors.
Mercer testified he became aware that White had a sign on his truck, the
day White got in trouble. Mercer
testified, “I come to work one day and noticed his truck sitting in the parking
lot and seen the sign. And then when I
went in the building, a lot of guys were talking about the company telling
Cliff to remove his truck or remove the sign.”
Mercer testified he had planned on putting a sign on his vehicle, but
did not “Because of the trouble that was raised over Cliff’s sign in his truck.” Mercer testified he had not actually made a
sign. Van Scyoc testified he did not see
the sign on White’s truck. However, he
testified that White told him he had placed a sign on his truck and had taken
it off because he was told to remove it or his vehicle would be towed. Van Scyoc testified what happened to White
changed his plans to put a sign on his car stating, “I can’t afford to have my
vehicle towed.” Van Scyoc testified he
never got around to making a sign.
A. The testimony of Respondent’s witnesses
Adkins has been employed by Respondent as supervisor of human resources
since January 2007. He has been employed
by the Employer or another mine owned by its parent company since 2003. Adkins testified the name of Respondent’s
parent company is Consol Energy, Inc., and that it is actually Consolidation
Coal Company.
Adkins testified he first became aware of the sign on White’s truck on
September 24. Adkins testified, “I heard
through the hallways that Cliff had had a sign on his truck, so I went out and
looked at it.” Adkins identified a photo
he had taken of the truck, which he testified he took the same day he saw the
sign. Adkins testified the truck was parked
in the employee parking lot near the entrance to the building when Adkins took
the picture. Adkins testified when he
saw the sign, “I was alarmed,” because of the word “scab.” Adkins testified it is an inflammatory word
that “means somebody that is crossing the picket line or somebody that is
replacing a worker that is on strike. Adkins
testified if someone calls someone a scab it is a derogatory term. Adkins testified there was nothing on White’s
truck that referred to subcontractors, and he did not interpret scab to be
synonymous with subcontractor. However,
the following exchange occurred:
The Hearing Officer: Did you know who he was referring to when you read the sign?
The Witness: I did not. I mean, I assumed it was contractors.
Q. What made you assume that?
A. The amount of grievance activity the union—the amount of protest that the union had made because of our use of subcontractors. All that was going on at the mine at the time.
Adkins testified he was concerned with what might happen if the sign remained visible in the parking lot. He testified, “I was concerned that there could be, you know, one, violence, and two, a work stoppage, a potential work stoppage or slowdown.” Adkins testified he thought contractors would see the sign. He testified, “I thought that if they see this, they would be ticked off and they wouldn’t want to come to work or we would have other members of the bargaining unit that see the sign and potentially go on strike.”
Adkins testified he met with White about the sign the same day Adkins
first saw the sign. Adkins testified
that, during his meeting with White and Lewis, Adkins told White if he wanted
to display the signs, he would have to do it off company property. He testified he told White if he refused to
take the signs down and he parked his vehicle on company property Adkins would
have the vehicle towed. Adkins
testified, “I also told him that I was concerned that this could be construed
as a work stoppage or slowdown.” Adkins
denied that White asked him if it was not his right of freedom of speech. Adkins testified the phrase freedom of speech
never came up. Adkins testified, “Basically,
when I told him that I didn’t want him parking on company property, he said he
understood. You know, he just listened
to what I had to say, and at the end, said ‘Okay’ and got up and left.” Adkins testified White raised no protest
about it. Adkins testified he did not
recall Lewis saying anything at the meeting.
Adkins testified no one raised anything.
They just said “Okay” and that was the end of it.
Adkins testified in response to a leading question, that he raised
Respondent’s rules of conduct during the meeting. He testified, “I referred to employee conduct
rule No. 11, ‘Picketing, instigating, participating or leading in an
unauthorized work stoppage or slowdown.”’
Adkins testified that rule 4 also applies pertaining to abusive and
threatening language referring to the term scab. Adkins did not testify that he cited rule 4,
during the meeting. Adkins testified
when he met with White, White did not say the term scab applied to subcontractors. He testified the term subcontractor did not
come up in the conversation. Adkins
testified White did not tell Adkins what the reference to scab meant and Adkins
did not ask him.
Adkins testified he only saw the truck with the sign on the day he had
the conversation with White asking him to remove the vehicle. Adkins testified White was on afternoon shift
that day. Adkins testified he saw the
truck in the late afternoon. Adkins
testified that after he finished talking to White then White returned to work
to complete the remainder of his shift.
Adkins testified he let White keep the truck on the lot for the
remainder of his shift. Adkins testified
he took a picture of White’s truck following the meeting after White had returned
to work. Adkins testified he consulted
with the superintendent at the mine Richard Harris, who was in charge of the
operations, before talking to White.
Adkins testified there was no violence at the mine caused by the sign,
and to his knowledge there was no disruption of production. Adkins testified there was no strike, picket
line, or work stoppage at the time of the incident with White’s truck. Adkins testified he did not receive any
complaints from employees of subcontractors about the sign. Adkins testified he was not aware of any
contractors at the mine that had union represented employees. He testified, “The subcontractors that we
were using were not UMWA members.”
Adkins testified he consulted with Gregory Dixon, a labor consultant
employed by Consol Energy, Inc. Adkins
testified he spoke to
Dixon testified that Adkins called Dixon on September 24 or 25, and
notified him that White had a sign on his truck in the company parking lot and
he told Dixon the sign said something to the effect that, “We don’t want scabs.”
Q. And when you saw a picture or heard about that sign described to you, did the word subcontractor come to your mind?
A. I didn’t—I really didn’t know 100 percent what the purpose was.
The Hearing Officer: Did you know what the dispute was about?
The Witness: I thought the dispute on the contractors was behind us.
The Hearing Officer: Did you know why he put the sign up?
The Witness: I didn’t know if, you know, we have had a history about—we had, at one point in time, illegal work stoppages or unauthorized work stoppages in the industry. That’s well behind us.
The Hearing Officer: How long ago was that?
The Witness: When I started in the industry in 1976, it was very, very common.
The Hearing Officer: When was the last time you were aware of one?
The Witness: I am going to estimate maybe early ‘80s. It’s pretty much behind us now, but I didn’t know.
The Hearing Officer: But you were told by Mr. Adkins that there was a term “scab” on the truck?
The Witness: Right.
The Hearing Officer: Did you ask him what it was about?
The Witness: I can’t remember exactly the nature of our conversation.
The Hearing Officer: You don’t know whether you asked him what it was about? I mean, a truck appears in the parking lot that says “scab” on it. You didn’t ask him why? You weren’t concerned?
The Witness: I was very concerned.
The Hearing Officer: You didn’t ask him why he thought it was there?
The Witness: I don’t remember whether I did or not. As I said, I can’t remember, sir, if he called and said—I know that at one point in time or at a point in time, that Jason had told Mr. White that he wanted the sign removed. Again, I can’t remember if Jason called and said “Greg, this is what I am thinking about telling Cliff. What do you think” or if he called and says “Look, I had a meeting with Cliff. This happened and I told him that we wanted the sign off.”
The Hearing Officer: Are you saying —
The Witness: I may have asked him if there was anything going on that I didn’t know about at the coal mine.
The Hearing Officer: What did you think the sign was about?
The Witness: I thought it could have been—again, I don’t know if it had something to do with starting an illegal strike or if it was a remnant of the subcontracting dispute which, you know, it was pretty much behind us by that time. Now, you know, I mean the local was not happy that we had prevailed on that issue, so I thought maybe it was —
The Hearing Officer: You never discussed with Mr. Adkins whether that was what it was about?
The Witness: I can’t swear to you today that he and I had a discussion exactly like you and I are having right this minute, no, sir.
The Hearing Officer: You can’t say you did or you can’t say you didn’t?
Witness: Correct.
The Hearing Officer: So if they used a sign “We don’t want contractors,” you wouldn’t have agreed that it should be removed?
The Witness: I don’t think the sign should have been removed.
B. Credibility
The original charge in this case was filed on October 26, 2007, and it
asserts that White was instructed to remove the sign on September 24. The amended charge is dated, January 28,
2008, but was not listed in the complaint as being filed by the
White testified with specificity, good recall, and in a credible fashion
that he parked his vehicle with the signs on Respondent’s lot on September 27
and 28, and October 1. He also testified
he contacted
Concerning the October 1, meeting, both White and Lewis credibly
testified Adkins instructed White to remove the truck from the parking lot
because of the signs, or have the truck towed at White’s expense. They both testified White protested Adkins’
directive as a violation of White’s right to freedom of speech, and that Adkins
rejected White’s protest and wanted the truck removed. White was told he could bring the truck back
after the signs were removed. White and
Lewis credibly testified that was the extent of the discussion, with Lewis
being called on rebuttal adding that Adkins did not cite any work rules or
claim the signs caused any turmoil at the mine during the meeting.
On the other hand, I did not find Adkins’ testimony particularly
convincing. Adkins claimed he saw the
vehicle in the afternoon of September 24, consulted the job superintendent, met
with Lewis and White that same afternoon with a formulated concern over the
application of two of the Employer’s work rules. He also testified he photographed the vehicle
that same day. No documentation of any
of his actions was presented showing the date of the occurrence. He testified he emailed the picture of the
truck that same day or the next to
Adkins impressed me as someone who, in the ordinary course of business,
paid attention to detail. For example, Adkins
did not respond to
Considering, the demeanor of the witnesses, and the evidence of the
record as a whole, I have also credited White and Lewis’ version of the October
1, meeting over that provided by Adkins.
Given the fact, that the employees had discussed subcontracting at the
September 16 union meeting, discussed the language of the signs, and come up a
plan to post them in the Respondent’s lot, that White went through the time and
effort to have the signs made and mount them on his truck, and thereafter
notify Sparks that they were complete, I find it highly unlikely White would
have just agreed to remove the signs without voicing any protest as Adkins
claimed. Rather, I find White did raise
a first amendment argument during the meeting, which was rejected by
Adkins. In these circumstances, I have
also credited White and Lewis’ consistent testimony that Adkins gave no
explanation for the removal of the signs other than the fact that he wanted
them removed from the Respondent’s property.
I also did not find
C. Analysis
In International Business Machines
Corp., 333 NLRB 215, 219–221 (2001), enfd. 31 Fed. App. 744 (2d Cir. 2002),
two employees placed signs on their vans in the employer’s parking lot
soliciting employees to support a union at IBM.
One sign was 4 feet by 8 feet and the other was 2 feet by 4 feet. There the Board affirmed the judge’s findings
that the employer violated Section 8(a)(1) of the Act by informing the
employees that the display of their signs contravened company policy, and they
employer reserved the right to enforce that policy. In finding a violation, the judge noted that
the display of signs, union insignia and other visual means of supporting a
union fall within the category of solicitation.
The judge, as approved by the Board stated the following:
In Firestone Tire
& Rubber Co., 238 NLRB 1323 (1978),[10] an employee and shop
steward was told that he could only continue to use the company parking lot if
he removed from his car, several large signs, one stating “Don’t Buy Firestone
Products.” This parking lot was used primarily by company employees but also
was used by visitors. When the individual refused to remove the signs, he was
disciplined. The Board, citing the Supreme Court’s decisions in Eastex, Inc., v. NLRB, 434
In an unbroken line of decisions, this Board and the Supreme Court have stated that where an employee exercises his Section 7 rights while legally on an employer’s property pursuant to the employment relationship, the balance to be struck is not vis a vis the employer’s property rights, but only vis a vis the employer’s managerial rights. The difference is “one of substance,” since in the latter situation Respondent’ managerial rights prevail only where it can show that the restriction is necessary to maintain production or discipline or otherwise prevent the disruption of Respondent’s operations.…
The facts clearly reveal that but for the fact that the parking lot was located on Respondent’s premises, Knight was clearly engaged in protected concerted activities. This Board has long held that actions taken in sympathy of other striking employees fall within the protection of Section 7 of the Act.
[T]he Administrative Law Judge cites Cashway Lumber Inc., for the rule that an employee does not have a right to affix union posters on the employer’s walls and property. However, this case is clearly distinguishable since Cashway, supra, stands only for the proposition that an employee is not engaged in protected activity if he defaces the employer’s property. The mere presence of an automobile on which signs have been attached does not constitute the defacement of the property on which it has been parked.
. . . .
This case does not present a situation analogous to Southwestern Bell Telephone Co. supra, where a message printed on shirts worn at work . . . was found to be “offensive, obscene or obnoxious,” thereby justifying the employer’s actions taken against employees who refused to remove them or cover them up. Here . . . the boycott signs were not taken into Respondent’s work areas, did not interfere with Knight’s ability to perform his assigned tasks, and did not otherwise interfere with Respondent’s managerial rights. Here, the record clearly reveals that the parking lot was primarily used by employees not then at work and was an appropriate forum for communication among them. The fact that other persons not employed by Respondent may have had access to the parking lot and accordingly have had occasion to read these signs in insufficient reason for Respondent to be able to control an employee’s exercise of his Section 7 rights.
In Coors Container
Co, 238 NLRB 1312, 1319 (1978),[11]
employees of Coors during the course of an economic strike by other employees
of a related company, showed their sympathy by placing signs in their vehicle
windows stating; “Boycott Coors-Scab Beer.” The company barred the display of
such signs on its property. The administrative law judge rejected the company’s
contention that the signs were not protected under NLRB v. Electrical Workers Local 1229 (
Here there is no showing of such special circumstances. Certainly
none existed in the circumstances surrounding the display of the sign by Mugge
and Clemente. The sign was displayed inside “Clemente’s” truck. They were some
distance away from any work location. There had been no incidents among Respondent’s
employees arising out of the strike, and, in any event, the wording of the sign
was not unduly provocative. The Board has long recognized that the term “scab”
is not so opprobrious as to justify barring its use in the workplace.
As to the general prohibition against the display of boycott signs, no special circumstances were shown to exist anywhere on Respondent’s premises which would justify, in the interest of the maintenance of production and discipline, restricting the employee’ right to engage in such activity. I therefore find that the rule promulgated by Respondent prohibiting the display by employees of boycott signs was violative of Section 8(a)(1) of the Act. Similarly, Respondent violated the Act . . . in asking Mugge and Clemente to remove the sign …
See Nor-Cal Beverage Co.,
330 NLRB 610, 611 (2000), where it was held an employee’s use of the word scab
while engaging in protected concerted activity when conversing with another
employee “unaccompanied by any threat or physical gestures or contact,” “does
not, in and of itself, deprive him of the protection of the Act. It follows
therefore that the Respondent could not lawfully discipline Gould for use of
that word and that the warning notice violated Section 8(a)(3) and (1) of the
Act.” See
also Mead Corp., 314 NLRB 732 (1994),
enfd. 73 F.3d 74 (6th Cir. 1996), where employees wearing “No scab” buttons to
protest the employer’s flex program agreed to under a collective bargaining
agreement was held to constitute protected concerted activity. The Board held the union’s signing of the contract
did not waive of the right to protest its provisions. There was no on going strike or picket line
in Mead Corp., rather the union was
protesting the employees’ participation in the employer’s flex program as a
perceived encroachment on bargaining unit work.
In Machinists Lodge 91 v. NLRB, 814 F.2d 876, 879 (2d Cir. 1987), the
court found a company rule prohibiting large signs or banners on employee
vehicles in company parking lots violated Section 8(a)(1) of the Act. The court stated, “Managerial rights decisions
make clear that any restriction of employees’ on-premises communication in
nonworking areas during nonworking hours ‘must be presumed to be an unreasonable
impediment to self-organization—in the absence of evidence that special
circumstances making the rule necessary.’” (Internal citations omitted.)
In the instant case, the Respondent operates an underground coal mine,
with over 700 employees in the bargaining unit, working on three rotating
shifts. The
Lewis, the president of the local union, testified the union has filed
subcontracting grievances since the seven arbitration cases, and they settled a
case as late a week before the trial herein taking place in October 2008, in
which the Respondent paid backpay as part of the grievance settlement. White as a beltman traveled throughout the
mine. He testified to witnessing an increase
in subcontracting, and that the subcontractors began to shovel the belt, set
posts, and working on waterlines, which White testified was theretofore bargaining
unit work. White, as a union committeeman,
met with supervisors Davis and Reynolds in June 2007, where he protested the
employees of subcontractors performing bargaining unit work. White testified the Employer has settled
grievances concerning setting posts and shoveling the belt, where the Employer
has paid employees. He testified he
testified each grievance he wrote about the disputed work, the Respondent would
settle by paying the bargaining unit employees, but then continue to
subcontract the work.
There was a union meeting on September 16, where the subject of
contracting out came up. About 35 to 40
employees attended the meeting. During
the course of the discussion, then Union President Sparks suggested signs be
posted on employee vehicles parking in the Respondents parking lot protesting
the subcontracting. Some of the
suggested language included “We don’t want Scabs.” On September 27,
During this period, White had two large signs made up spanning the
length of the bed of his pick up truck.
The signs stated, “WE DON’T WANT SCABS.”
White called
White testified, “My definition of a scab is it’s a union coal mine; it
should be union work.” White testified
he did not use the word scab to fire people up.
He testified, “Nobody got fired up.”
He stated, “Guarantee you, nobody got fired up, not even the contractor.” He testified no one was upset about the
word. White testified he did not use the
word to get people upset to take action.
He testified, “There was no action being taken.”
White credibly testified that: On October 1, some of White’s coworkers
told him Adkins was looking for him because of the signs on White’s truck. White went to Adkins’ office at the end of
White’s shift on October 1. Lewis, a
mine committeeman, accompanied White. Adkins
told White he wanted the signs removed from White’s truck. Adkins told White he had to remove the truck
from the parking lot because of the signs.
White said, “It’s a freedom of speech, ain’t it?” Adkins responded he did not care about that,
he wanted the truck removed. White said,
“You mean to tell me I can’t bring it back the next day?” Adkins said, “No. Take the signs off the truck, you can bring
the truck back.” White responded, “Okay.” Adkins told White if he came back with the
signs, the truck would be towed at White’s expense. White testified that ended the meeting. Lewis corroborated White’s version of the meeting,
and testified further that Adkins never said the signs caused any turmoil at
the mine, nor did Adkins did cite any work rules. Lewis credibly testified the only reason
Adkins gave for removing the signs was that it was private property and he
wanted the vehicle removed.
The parties stipulated that the Respondent’s parking lot is not visible
from the road leading to the mine. White
testified employees, management, employees of subcontractors, and people who
bring materials in out of the mine park in the lot. White testified there was no strike or picket
line going on at the facility at the time he put the sign on his truck.
White’s display of the signs on his truck in Respondent’s parking lot
was clearly protected union activity as it arose of out a dispute between the
Respondent contends White’s use of the term scabs was improper since
there was no strike or picket line and therefore the circumstances did not meet
the accepted definition of the word’s usage.
Respondent argues that since the definition at its core involves a
person who refuses to strike or take the place of a striking employee, Whites’
use of the term was false and it was done to recklessly and designed to incite
his fellow employees to take improper action against either Respondent or
subcontractors or both. I do not find
merit in Respondent’s argument. White
credibly testified he used the term scab to represent nonunion workers taking
the work of union members. I do not find
that definition so far a field from the formula Respondent prescribes to remove
its usage from the protections of the Act.
I do not find that White, given the circumstances, including numerous
grievances that were not resolving an ongoing dispute concerning the alleged
loss of bargaining unit work, to have used the term recklessly or in bad
faith. In fact, White did not need to
further define the term, because given the grievance background, Adkins
testified he assumed it was a reference to subcontracting. I have also not found
1. By threatening employees with having their vehicle
towed from Respondent’s parking lot because the employees engaged in the
protected activity of displaying signs stating “We Don’t Want Scabs” in support
of the Union’s position on subcontracting the Respondent
has violated Section 8(a)(1) of the Act.
2. The aforesaid violation affects commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
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.
On
these findings of fact and conclusions of law and on the entire record, I issue
the following recommended14
ORDER
The National
Labor Relations Board orders that Respondent, McElroy Coal Company, with its
office and place of business in Glen Easton, West Virginia, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with having their vehicles towed from its parking lot because employees engaged in the protected activity of displaying signs stating “We Don’t Want Scabs” on those vehicles in support of the United Mine Workers of America, Local 1638, AFL–CIO, CLC’s position on subcontracting.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effectuate
the policies of the Act.
(a) Within 14 days after service by the Region, post at its Glen
Easton, West Virginia facilities copies of the attached notice marked “Appendix.”15 Copies of the notice, on forms
provided by the Regional Director for Region 6, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent 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. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and former employees
employed by the Respondent at any time since October 1, 2007.
(b) Within 21 days after service by the Region, file with the Regional
Director a sworn certification of a responsible official on a form provided by
the Region attesting to the steps that the Respondent has taken to comply.
APPENDIX
Notice To Employees
Posted by Order of
the
National Labor
Relations Board
An Agency of the
The National Labor
Relations Board has found that we violated Federal labor law and has ordered us
to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not
threaten you with having your vehicles towed from our parking lot because you engage
in the protected activity of displaying signs stating “We Don’t Want Scabs” on
those vehicles in support of the United Mine Workers of America, Local 1638,
AFL–CIO, CLC’s position on subcontracting.
We will not in
any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
McElroy Coal Company
1 The Respondent has requested oral argument. The request is denied as the record, exceptions, limited exceptions, and briefs adequately present the issues and the positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all of 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.
3 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kirsanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Liebman and Member Schaumber constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act.
We shall modify par. 1(a) of the judge’s recommended Order to clarify his unfair labor practice findings. We shall also substitute a new notice in conformity with the recommended Order as modified.
2 The initial charge listed the Employer as Consol Energy, McElroy Coal Company, McElroy Mine. However, the amended charge only lists McElroy Coal Company as the Employer, and McElroy Coal Company is the only named Respondent in the General Counsel’s complaint.
3 In making the findings herein, I have considered all the witnesses’ demeanor, the content of their testimony, and the inherent probabilities of the record as a whole. In certain instances, I have credited some but not all of what a witness said. See NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950), reversed on other grounds 340 U.S. 474 (1951). Further discussions of the witnesses’ testimony and credibility are set forth herein.
4 Lewis testified his own definition of scab was someone who crossed a picket line and goes to work and takes another man’s job, or refused to strike. Lewis testified different people have different interpretations, “and what the interpretation that came down from that union meeting didn’t necessarily have to be my opinion.”
5 John Mercer has been
employed by the Employer for 30 years.
Mercer’s job classification is pipe man.
He is the financial secretary for the local and is on the mine and
safety committee. Mercer testified he
attended the September union meeting where the subject of making signs to
protest subcontracting was raised. He
testified, “we mainly discussed about making some type of sign to protest the
non-union people working there.” Mercer
testified
6 Lewis testified that as of October 1, 2007, Clifford White was the only employee to put a sign on his vehicle. Lewis saw the sign on White’s vehicle. Lewis testified that White put the sign up around the first part of October. Lewis testified there was a lot of discussion about it among the employees, such as, “Did you see Cliff’s truck?” Lewis testified, in reference to the sign, “I just saw it the one day.” He did not recall the exact wording, but the intent was, “Go home, scabs. We don’t want scabs.” Lewis only saw one sign, but he only glanced at the truck quickly. Lewis testified that, at the time, the employees were only working day shift, which was 8 a.m. to 4 p.m., which would have been the time the truck was parked.
7 Lewis
testified the
8
9 Indeed,
Adkins testified he assumed the term scab related to contractors, stating that
the
12 None of
the grievances, grievance settlements, or arbitration awards were submitted
into evidence. I have credited
13 I do not find Respondent’s citation to Pizza Crust Co., 286 NLRB 490, 507 (1987), enfd. 862 F.2d 49 (3d Cir. 1988), requires a different result. There an employee was found to be lawfully suspended for leveling a charge of book fixing against his employer. An allegation which the judge concluded he appeared to have made up on the spot. In finding the conduct unprotected, the judge stated, “This reckless disregard of the truth transcends any action, such as name calling.” I find labeling the contractors employees here was nothing more than a form a name calling by White traditionally used for non union employees who take the work of union members.
14 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes.
15 If this Order is enforced by
a judgment of a