Cedar Coal Co.

National Labor Relations Board - Board Decisions

Aug 26, 1980

251 N.L.R.B. 554 (N.L.R.B. 1980)

554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cedar Coal Campany and Roger Hammack. Case 9-
CA-14015
August 26, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDAI.E
On March 26, 1980, Administrative Law Judge
Hutton S. Brandon issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Cedar Coal Company, Chelyan, West Virginia, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order, as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer Roger L. Hammack immediate em-
ployment in a position which became available on
or after the effective date of his application thereto,
and for which he is qualified, granting him the
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
We find, in agreement with the Administrative Law Judge, that Re-
spondent's purported reasons for its refusal to hire Roger Hammack were
pretextual and asserted to mask the real, discriminatory reason for the re-
fusal to hire him. We note in this connection that none of Respondent's
asserted reasons for the refusal to hire withstood scrutiny and that, ac-
cording to credited testimony, Respondent's Sec. 2(11) supervisors, in-
cluding its personnel director, John Goodard, linked the decision not to
hire Hammack to his prior union activity.
In the section of his Decision entitled "The Remedy," the Administra-
tive Law Judge correctly noted Board law indicating that the issue of
whether a suitable position was available during the period of an individ-
ual's active application for employment is one for compliance However,
failed he to include this finding in his recommended Order We hereby
modify par. 2(a) of his recommended Order to state that reinstatement is
contingent on a showing that a suitable position was available during the
period of Hammack's active application for employment.
251 NLRB No. 81
same seniority and other rights and privileges he
would have enjoyed absent the discrimination
against him, and make him whole for any lost earn-
ings in the manner set forth in the section of the
Administative Law Judge's Decision entitled 'The
Remedy."'
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OI 'THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT refuse to employ any employ-
ee applicants because of their activities on
behalf of the United Mine Workers of America
or any other labor organization.
WE WIl. NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of rights guaranteed them under
Section 7 of the Act.
WE WI.l. offer Roger L. Hammack immedi-
ate employment in a position which became
available on or after the effective date of his
application thereto, and for which he is quali-
fied, granting him the same seniority and other
rights and privileges he would have enjoyed
absent the discrimination against him, and WE
WIlnl make him whole, with interest, for any
loss of earnings he may have suffered as a
result of the discrimination against him.
CEDAR COAL COMPANY
DECISION
STATEMENT OF THE CASE
HUTTON S. BRANDON, Administrative Law Judge:
This case was heard at Charleston, West Virginia, on
January 21-22, 1980. The charge was filed by Roger
Hammack, an individual, herein called Hammack, on
June 21, 1979 ,' and the complaint alleging violations of
Section 8(a)(3) and (1) of the National Labor Relations
Act, as amended, herein called the Act, by Cedar Coal
Company, herein called the Company or Respondent,
was issued on August 8. The issues presented are wheth-
er the Company discriminatorily refused to hire Ham-
mack in violation of Section 8(a)(3) of the Act on and
All dates are in 1979 unless otherwise stated.
CEDAR COAL COMPANY 555
after February 7, and whether the Company indepen-
dently violated Section 8(a)(1) of the Act in allegedly ad-
vising Hammack that he would have to refrain from
union activity if he became employed by the Company.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the positions of the parties, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Company is a West Virginia corporation with an
office and principal place of business in Chelyan, West
Virginia, where it is engaged in the coal mining business.
It operates mines at various locations in the State of
West Virginia. During the 12 months preceding issuance
of the complaint, the Company purchased and received
goods and materials valued in excess of 50,000 directly
from points located outside the State of West Virginia.
The Company admits and I find that it is an employer
within the meaning of Section 2(2) of the Act engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. rHF IABOR ORGANIZATION INVOI VED
The complaint alleges, the Company in its answer
admits, and I find that the United Mine Workers of
America, herein called the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
Ill. THE AI.IEGED UNFAIR LABOR PRACTICES
The efforts of Roger Hammack to obtain employment
by the Company which gave rise to the instant proceed-
ing began with Hammack's employment application
dated June 5, 1978.2 Hammack had already had one
prior 6-week period of employment with the Company
in 1976 following his release from prison3 pursuant to a
work release program. There was no evidence that his
performance as a "communications operator" during that
prior period of employment was in any way deficient or
inadequate. According to Hammack, he quit his employ-
ment at the Company in order to work for another em-
ployer, Roberts and Shafer, at roughly three times the
rate of pay he had received at Cedar Coal. 4
In July 1978, after putting in his application for em-
ployment with the Company, Hammack talked to Allen
Tackett, Respondent's transportation superintendent and
an admitted supervisor, at the Company's main office
gate. Hammack advised Tackett of his application and
asked for his help in getting a job at the Company. Tack-
ett responded that he would help Hammack but it would
2 Resp. Exh. 4.
3 Hammack freely admitted in his testimony that in 1975 after entering
a plea of guilty he had been sentenced to prison for involvement in a
school building bombing growing out of a controversy between certain
persons in the community and the local board of education over certain
textbooks used in the school system. The controversy had drawn union
involvement with attendant mine shutdowns, including the shutdown of
the Company's mines for a period of about 3 weeks Hammack had
served 13 months of his sentence before his release in 197b.
4Hammack subsequently quit that job after a period of time in order
to take a job closer to his home He was subsequently laid off from that
job and succeeding jobs
be difficult for Hammack to work there because of the
"strikes, all the news media that I had talked to on the
television and in the papers." Nevertheless, Tackett told
Hammack that he would do what he could for Ham-
mack.
It is undisputed that Hammack had a penchant for at-
tracting publicity. Besides his involvement in the school
book controversy which was widely publicized in 1975,
he had attracted some newspaper attention during the
several preceding years as a spokesman for various
groups within the Union. Hammack had been a member
of one local or another of the Union since 1969. He had
served on grievance committees and/or safety commit-
tees for the Union at his previous places of employment.
Moreover, he had at one time prior to 1975 served as
vice president of Local 6243 of the Union which repre-
sented employees of Union Carbide Company where
Hammack had once been employed. In January 1977,
Hammack had received some newspaper publicity re-
garding his announcement as a candidate for the position
of vice president of District 17 of the Union. However,
he apparently withdrew his candidacy at some time prior
to actual nomination or the election. The publicity Ham-
mack received closer to his 1978 application for employ-
ment with the Company grew out of his involvement
with the Union's 1977-78 contract strike and his leader-
ship in a movement to shut down nonunion companies
during that strike. That movement was reported in news-
paper accounts of the Charleston (West Virginia) Ga-
zette in late December 1977. 5 Charleston newspapers on
two occasions in late February 6 and on one occasion in
March 7 1978 reported stories on the strike containing
quotations of Hammack or reflecting his activities in sup-
port of the strike. In addition, according to Hammack's
testimony, during the strike he worked on the Union's
relief fund committee helping to dispense funds and sup-
plies to those strikers in need. His work in connection
with that committee, which included a truck trip to Wy-
oming to obtain food stuffs (produce) for the strikers, re-
ceived not only newspaper coverage but also network
television attention. Hammack testified further without
contradiction that during the strike he also was involved
in radio talk shows in Michigan and television shows for
European distribution.
Local publicity concerning Hammack of a more
remote nature includes newspaper accounts8 of a strike
at Riverton Coal Company in 1970 which was precipitat-
ed by Hammack's discharge from that Company. The
newspaper accounts referred to the strike which affected
some 2,000 miners as an "unauthorized" or "wildcat"
strike. Hammack's discharge was ultimately arbitrated
and was found to have been for cause.9
After submitting his June 1978 application, Hammack
also had a number of conversations with Terry Whitt, a
personnel supervisor and an admitted agent of the Com-
pany. On these occasions Whitt, according to Hammack,
GC Exhs 4(c) and 4(d)
GC Exhs 5(a) and 5(b)
' Ibid
"Resp Exhs (a) through 3(d)
Resp Exh 2
CEI)AR COAL COMPANY
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
advised him that Whitt was doing all he could for Ham-
mack, but that nothing had "come loose" for Hammack.
However, Whitt added that he would continue to help
Hammack. ' 0
On February 7, Hammack submitted a second applica-
tion for employment to the Company because he was
told that his first application had been lost. This time he
had expanded the scope of his application, indicating that
he sought employment in any position, including under-
ground mining.
Sometime after submitting his second application, but
still during February, Hammack attempted to telephone
John Goodard, the Company's personnel manager. That
call went through Helen Kunsman Lake, a personnel
clerk at the time, who testified for the General Counsel
that Goodard refused to take the call, referring Ham-
mack instead to Whitt and adding that Hammack's em-
ployment was left entirely up to Whitt.
Subsequently, but still during February, Hammack met
with Larry Hughes, a mine superintendent for the Com-
pany, for an interview arranged by Lake. During that in-
terview Hughes inquired of Hammack, "You know the
reason you haven't went [sic] to work here?" Hammack
remarked that he was "pretty sure" why and Hughes re-
plied that Goodard would be leaving within the next 2
or 3 weeks' 2 and that after he did Hughes was "sure"
they could put Hammack to work. Hughes and Ham-
mack discussed the 1977-78 union strike and Hughes re-
marked that Hammack's picture had been shown on tele-
vision and in the newspaper. Hughes added that Ham-
mack was very vocal and people did not like that, and
stated that Hammack would have a better chance of
going to work there if he completely stayed out of the
paper or any type of news. Hughes even asked Ham-
mack to promise to "stay out of the paper," and Ham-
mack said he would. The conversation concluded with
Hughes stating that if Hammack kept "his nose clean"
Hughes was sure that they could put him to work after
Goodard left.
Also, sometime in February and after his attempted
phone call to Goodard, Hammack had another conversa-
tion with Whitt in which he told Whitt that Goodard
had told him that Hammack's hiring was solely up to
Whitt. Whitt replied that it was not true; that Whitt did
not have the power to hire him and it was up to Goo-
dard.13 Moreover, during that conversation Whitt re-
marked that "some other people" felt Hammack was not
10 Whitt in his testimony indicated this was a typical response to em-
ployee applicants. Whitt related it was his policy not to advise applicants
that they were not going to be hired.
I Lake impressed me as a credible witness and her testimony in this
regard was not contradicted. Accordingly, I credit it.
1" It is undisputed that, sometime in February, Goodard transferred to
Southern Appalachian Coal Company, a sister company of Respondent
herein, both being owned by American Electric Power System. Goodard
retained authority at Respondent, however, during a transition period in
which a new personnel manager for Respondent was learning his duties
and functions.
13 This is consistent with a statement attributed to Whitt by Lake, who
credibly testified that Whitt once told her that Goodard would not let
him hire Hammack, although Whitt was trying hard to get him to work
there.
qualified enough and that was the reason that he did not
get to go to work there. 14
Hammack had one other conversation in February
with a representative of the Company at some point after
the submission of his second application. Hammack tele-
phoned Tackett and inquired if Tackett had talked to
anyone on his behalf and requested Tackett's help in se-
curing employment with Respondent. Tackett replied
that he had talked to someone but did not specify who it
was. He did state, however, that he would continue to
help Hammack.
All of the foregoing, with the exception of the refer-
ence to Lake's testimony, is based upon the testimony of
Hammack, who testified in a forthright and credible
manner. I deem his testimony to be worthy of belief, and
much of it was not significantly contradicted by Re-
spondent. Neither Tackett nor Hughes was called by Re-
spondent and the failure to so call them was not ex-
plained. Furthermore, Hammack's testimony received
some indirect support from Lake, who credibly testified
that, on the same day of, but after, Hughes' interview
with Hammack, she had asked Hughes how the inter-
view had gone and Hughes stated it had gone well and
that he had told Hammack that if he would stay out of
the news media that he would see what he could do
about getting Hammack a job after Goodard left. Lake
had a subsequent conversation with Hughes in mid-Feb-
ruary following the publication of a newspaper article in-
volving Hammack on February 16. t5 Hughes, according
to Lake's uncontradicted and credited account, told Lake
that he had read the article and that, since he made
Hammack promise to stay out of the news media, and
since he had nevertheless appeared in the media again, it
was going to be hard to get him on at the Company. In
view of the foregoing, I credit Hammack's testimony as
reflected above and as supported by the testimony of
other witnesses attributing similar statements by the
Company's representatives showing concern over Ham-
mack's past activities and news media involvement as re-
lated below.
In September 1978, William Carter, previously a fore-
man over Hammack when Hammack worked for Rogers
and Shafer, applied for employment with the Company.
In talking to Whitt about Carter's employment Hammack
was mentioned and Carter urged Hammack's employ-
ment. Whitt said he would do everything he could for
him. A little over a week later, Carter, who was at that
time married to Whitt's niece, visited Whitt in his home
and during their conversations Hammack's employment
was again mentioned. According to Carter, Whitt stated
he had done everything possible to help Hammack get a
job at the Company but that "a couple of guys were
blackballing him." Carter inquired why and Whitt re-
'4 Hammack's experience at that time consisted of 5-1/2 years of un-
derground mining in various positions, and 4 years on surface jobs con-
nected with coal mining. He had undertaken a required underground
miner's course and had received a certificate therefor in 1971. He had
also completed a surface mining course in January 1979.
I5 G.C. Exh. 2. This newspaper article only reported Hammack's ill-
ness with infectious hepatitis as a result of a suspected contaminated com-
munity water supply.
CEDAR COAL COMPANY 557
sponded, "because he was a troublemaker for the
Union."
Whitt in his testimony denied the remark attributed to
him by Carter. Carter's testimony was emphatic and ap-
parently impartial, and his recollection was clear. While
Whitt's denials were equally emphatic his recall reflected
in his overall testimony was less clear, and I found him
less persuasive. I therefore credit Carter.
Robert Bess,16 an employee of the Company on leave
of absence since April 3 to serve as a field representative
of the Union, testified that in mid-February he was asked
by Hammack to help in obtaining employment for Ham-
mack at the Company. Bess thereafter spoke to Whitt on
several occasions on Hammack's behalf. On one occa-
sion, between mid-February and the end of March, when
Bess raised the question of Hammack's employment,
Whitt stated "that he had done all he could for Ham-
mack but that Hammack was on television a lot and
mixed up in these strikes a lot, and, you know, he had
trouble or was in that bombing and was in jail," and
"they're not going to give him a job." Bess replied that
the Company was leaving itself open for the "Labor
Board" and "Roger will bust your ass on it." Whitt re-
sponded still, according to Bess, "I know it Bob, but
that's the way it is... They are not going to give him
a job."
Whitt in his testimony denied the remarks attributed to
him by Bess. I found Bess more convincing as a witness.
Moreover, the remarks he attributed to Whitt are entire-
ly in keeping with the undenied concern expressed by
company representatives Tackett and Hughes regarding
Hammack's involvement with the news media. I there-
fore credit Bess.
Finally, there is the testimony of employee Hays Hol-
stein who related that he spoke to Goodard once, asking
if he would give Hammack a job. Goodard replied that
he could not hire Hammack because "he was a previous
troublemaker and [gave] them a lot of trouble," and
Goodard was "afraid" of Hammack's "making trouble."
That conversation, which according to Holstein took
place in February after Hammack had put in his second
application, was denied by Goodard, although Goodard
admitted having talked to Holstein about Hammack sev-
eral times. Holstein's credibility was affected by the fact
that portions of his testimony was elicited through lead-
ing questions. Nevertheless, he gave the appearance of
sincerity while testifying. Furthermore, the remarks Hol-
stein attributed to Goodard are not inconsistent with a
concern of Goodard expressed at the hearing about his
reluctance to hire Hammack who was convicted in a
bombing case to work in a job where he might have
access to explosives. Accordingly, and on balance, I
credit Holstein.
Respondent concedes that the decision not to hire
Hammack was made by Goodard. That decision, based
upon Goodard's testimony, was made after Goodard first
personally learned of Hammack's application in February
when Whitt approached Goodard about hiring Ham-
"I The record is hereby corrected to reflect "Bess" wherever it now
reads "Best"
mack. 17 Goodard testified he rejected the hiring of
Hammack and told Whitt that he remembered that Ham-
mack had been hired at the Company in the past for only
a short duration. Goodard expressed no other reason to
Whitt.' 8 While not expressed to Whitt at the time, Goo-
dard testified, as mentioned above, that he was also con-
cerned with Hammack's involvement in the bombing
during the school book controversy and did not want to
put Hammack in a job where explosives were available
to him. According to Goodard, he had been present and
had opposed Hammack's hiring on such grounds in 1976
when the then personnel supervisor, Joe Ellis, had ap-
proached the then personnel director, Scarborough,
about hiring Hammack. Nevertheless, Scarborough had
consented to Hammack's hiring at that time because he
believed Ellis had already made some commitment to
Hammack to hire him.
The General Counsel contends that the reasons assert-
ed by the Company for refusing to hire Hammack on
and after February 7 were pretextual reasons designed to
conceal the real reason; i.e., Hammack's "union activities
on behalf of United Mine Workers which received exten-
sive news media coverage in 1977 and 1978." In support
of this contention the General Counsel points to Whitt's
admission that there was no general policy against not
rehiring former employees who had previously quit their
employment. Further, with respect to Goodard's concern
over Hammack's prior conviction the General Counsel
presented evidence which unquestionably established that
Respondent had no policy against hiring ex-convicts.
Lake testified she was aware of no such policy, and,
Goodard himself conceded there was no such policy.
Moreover, the General Counsel presented the uncontra-
dicted and credible testimony of Larry Stevens that he
had been employed by the Company in April 1978, not-
withstanding the fact that he, too, had previously been
involved in the school book controversy and had been
convicted and imprisoned for dynamiting a school.
There was also the testimony of Holstein, undisputed in
this regard, in which Holstein named two other employ-
ees who had prison records prior to their employment by
the Company. One of these had even become a "boss"
for the Company. Furthermore, even Hammack himself
had been hired by the Company once subsequent to his
conviction and imprisonment.
Conclusion
It is settled that an employer violates Section 8(a)(3)
and (1) of the Act by refusing to hire a job applicant be-
cause of his sentiment for, affiliation with, or activities
on behalf of a labor organization. Phelps Dodge Corpora-
tion v. N.L.R.B., 313 U.S. 177, 185 (1941); J.P. Stevens &
Company, Inc., Gullistan Division v. N.L.R.B., 441 F.2d.
514, 518-519 (5th Cir. 1971), cert. denied 404 U.S. 830. It
is also a recognized and established principle that any
employment action such as a discharge or a refusal to
hire which is based in part upon an unlawful reason
" Whitt testified that although he had the authority to hire Hammack
he wanted "clearance" from Goodard because of Hammack's "prison
record and everything."
' This is corroborated by Whitt's testimony
CEDAR COAL COMPANY
558 I)ECISIO)NS ()F NAIIONAL LABOR RELATIONS BOARD
makes such action altogether unlawful. See, e.g., Neptune
Water Meter Company v. N.L.R.B., 551 F.2d 568 (4th
Cir. 1977); N.L.R.B. v. Elias Brothers Restaurants Inc.,
496 F.2d 1165 (6th Cir. 1974); N.:L.R.B. v. Adam Loos
Boiler Works Co., 435 F.2d 707 (6th Cir. 1970); N.L.R.B.
v. Jamestown Sterling Corp, 211 F.2d 725 (2d Cir. 1954).
The issue of an employer's motivation in an employment
action is one of fact. N.L.R.B. v. Murray-Ohio Manufac-
turing Company, 358 F.2d 948 (6th Cir. 1966). Where the
motivation asserted for an employer's action with respect
to an employee or employee applicant is found to be
false, the trier of fact can infer the existence of another
motive which the employer desires to conceal and may
even infer that such concealed motive is an unlawful one
where the surrounding facts tend to support or reinforce
that inference. Shattuck Denn Mining Corporation (Iron
King Branch) v. N.L.R.B., 362 F.2d 466, 470 (9th Cir.
1966).
On the other hand, it is also clear that an employer
may refuse to hire a job applicant even for a "bad"
reason so long as the reason is not related to a statutorily
protected activity. The burden to establish the statutorily
prohibited reason is upon the General Counsel.
Examining the asserted reasons for the refusal to hire
Hammack in the instant case, it is quite clear that such
reasons have no foundation in company policy or prece-
dent. Indeed, the asserted reason relating to the refusal to
hire Hammack based upon his prior conviction is even
contrary to company precedent since other ex-convicts
had been hired, including one who had been imprisoned
for the same type of offense as Hammack. It is incon-
ceivable and incredible that Goodard as a personnel di-
rector with previous experience with the employer as a
personnel supervisor would not have been aware of such
hirings, particularly in view of his claimed sensitivity to
persons convicted in "bombings" because of his concern
over the accessibility of explosives to those employed by
the Company.
Other circumstances support a conclusion that any re-
liance upon Hammack's prior conviction as a basis for
the refusal to hire him was pretextual. Even though
Whitt did refer to Hammack's prior conviction in his
comments to Bess, the uncontroverted fact remains that
Respondent had already hired Hammack once before in
spite of that prior conviction. Moreover, while Whitt tes-
tified that he checked with Goodard about hiring Ham-
mack because of Hammack's "having a prison record
and everything" he must have put more emphasis in
doing so on "everything" than the prison record for the
record does not establish that Hammack's prison record
was even mentioned in Whitt's discussion with Goodard
regarding Hammack. Even Goodard's testimony reflect-
ed that his concern with Hammack's prior conviction
was secondary and unexpressed.
The other asserted reason for refusing to hire Ham-
mack, i.e., because he had been employed once before
and quit, also does not withstand close scrutiny. There
was no policy against rehiring people who had formerly
quit. Hammack's previous job with the Company was a
menial and low-paying one. There was no evidence that
his quitting caused the Company any hardship or extra
expense. Nor was there a showing that a replacement for
Hammack was unobtainable or that such replacement re-
quired substantial training or even any training at all.
Moreover, according to Hammack's uncontradicted testi-
mony, when he told his supervisor at the Company
during his prior period of employment, General Mine
Foreman Woody Goins, that he was quitting for a job
making more money, Goins responded that he did not
blame Hammack and even offered to help Hammack out
anytime he could. Thus, Hammack's prior separation
from the Company was an amicable one and reliance
upon his prior separation as a basis for refusing to rehire
him appears ill-founded and hollow. The weakness of the
asserted reasons for the refusal to hire Hammack strong-
ly supports the inference that the asserted reasons were
in fact false.
That the asserted reasons were false is also indicated
not only by the Company's failure to advise Hammack of
such reasons, but also by statements of Respondent's su-
pervisors that reflected concern over Hammack's in-
volvement in union strikes and his attraction for the
news media. Both Tackett and Whitt in their separate re-
marks to Hammack and Bess very specifically referred to
Hammack's involvement in the Union's strikes as a con-
cern of the Company. And Whitt had described Ham-
mack in remarks to Carter as a "union troublemaker."
While concern for Hammack's affinity for publicity was
also expressed by Hughes, it must be recalled that Ham-
mack's publicity following his first period of employment
(with the exception of one news item related to his ill-
ness from hepatitis) flowed from his strike activity and
support during the 1977-78 contract dispute. That pub-
licity was inseparable from his strike involvement and
was a part of his activity protected under the Act.' 9 I
find incredible Goodard's testimony that he was unaware
of the publicity involving Hammack. Clearly Goodard
was aware of who Hammack was by virtue of his first
period of employment with Respondent. Moreover, it is
highly unlikely that he would not have known of the
publicity regarding Hammack when the other company
representatives, Tackett, Hughes, and Whitt, were fully
aware of such publicity.
It is true of course, that the Company's employees
were at all material times represented by the Union and
the Company harbored no union animus generally. How-
ever, this does not preclude the existence of animosity
against Hammack, who could, because of his past record
of militant and staunch union support and leadership
with his disposition to attract news media attention, rep-
resent a risk to the Company sufficient to cause Goodard
to be "afraid" to hire Hammack. Indeed, it was the fear
and concern that Hammack would be a "union trouble-
maker" with a penchant for highly publicized strike in-
'" Al the hearing the Cornpanly argued that certain activity of Ham-
mack during the 1977 78 general contract strike was not protected under
the Act That activity involved his picketing of certain nonunion mines
during the strike, but the record does not clearly establish the unprotect-
ed nature of such activ ity Further, while the remarks of Whitt, Tacketi,
and Hughes regarding Hammack's strike activity could perhaps be con-
strued as references to unprotected activily on Hammack's part, the
record does not affirmlatively establish it On the contrary, the Company
:lade no claim herein that it relied upon any unprotected activity by
IHammack in refusing to hire him
CEI)AR\ CAICO PN 559
volvement which is reflected in the credited comments
attributed to Hughes, Tackett, and Whitt. As Hughes
had put it, people did not like the fact that Hammack
was "vocal." Even if Goodard may have had some ap-
prehension over hiring Hammack because of his prior
conviction, I am convinced, particularly because of
Hammack's previous hiring by the Company in spite of
that conviction, that it was only a minor concern, and
that other factors played a more substantial part in the
motivation.
Considering all the foregoing, I find and conclude that
the reasons asserted by the Company for the refusal to
hire Hammack were pretextual. I infer from that conclu-
sion and from the other surrounding circumstances, in-
cluding statements of the company representatives de-
tailed herein, that the pretextual reasons were designed
in an effort to hide an illegal one--concern that Haim-
mack by virtue of his outspoken and militant union sup-
port would cause "trouble" for the Company. After all,
Hammack had done nothing since his prior period of em-
ployment with the Company which would in any wva
adversely affect his employability. The rejection of Ham-
mack can only be understood in light of his involvement
in the 1977-78 strike and his publicity connected there-
with. His involvement in that strike as a protected
union activity. Accordingly, I find and conclude that the
Company violated Section 8(a)(3) and (1) of the Act in
discriminatorily failing to consider for employment or
hire Roger L. Hammack.
The complaint alleged that the Company through
Hughes had independently violated Section 8(a)(1) of the
Act by telling a prospective employee that he had to re-
frain from union activity if he became employed by Re-
spondent. To establish this violation, the General Coun-
sel relied upon Hammack's testimony that Hughes asked
Hammack to promise to "stay out of the paper." While I
have found that Respondent refused to hire Hammack
because of his past publicized strike activity and militant
union support, I am not persuaded that Hughes' request
that he "stay out of the paper" may be interpreted under
the circumstances of this case as tantamount to a request
that he forgo union activity generally as a condition of
employment. Accordingly, I conclude that there was no
independent violation in this regard.
CONCI USIONS o01 LAW
1. Cedar Coal Company is an employer within the
meaning of Section 2(2) of the Act and is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The United Mine Workers of America is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. By refusing to employ Roger L. Hammack because
of his publicized activities in support of the Union, Re-
spondent has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(3) and (11) of
the Act.
4. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
5. Respondent did not violate the Act in any other
manner alleged in the complaint.
Till R li a)i
Having found that Respondent has committed viola-
tions of Section 8(a)(3) and (I) of the Act, I shall recom-
mend that it be required to cease and desist therefrom
and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that Respondent discriminatorily refused
to hire Roger L. Hammack after his February 7 applica-
tion as alleged in the complaint, I shall recommend that
Respondent be ordered to offer employment to Ham-
mack 2 ' to a position in which he sought employment
and for which he was qualified. granting him the same
seniority and other rights and privileges he would have
enjoyed absent the discrimination against him with back-
pay. 2 1 Backpay shall be computed in accordance with
the formula approved in : W. WoolHorth Company, 90
NLRB 289 (1950), with interest computed in the manner
and amount prescribed in lorida Steel Corporation, 231
NIRB 651 (1977).22
Upon the basis of the foregoing findings of fact. con-
clusions of law, and the entire record. and pursuant to
Section 10(c) of the Act. I hereby issue the following
recommended:
ORDER2:
The Respondent, Cedar Coal Company, Chelyan,
West Virginia, its officers, agents, successors, and as-
signs, shall:
I. Cease and desist from:
(a) Discriminatorily refusing to employ applicants for
employment because of their activities on behalf of the
United Mine Workers of America or any other labor or-
ganization.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action deemed neces-
sary to effectuate the policies of the Act:
(a) Offer Roger L Hammack immediate employment
in a position in which he sought employment and for
which he is qualified, granting him the same seniority
and other rights and privileges he would have enjoyed
2' An offer of employ mcnt coupled with a make-wh ole reied! is ap-
propriate here rloll lihsrallding Responldent's ncontention that it wm id ll
have employed Hammack anywas had it checked his emplolment refer-
ence, The Respondent's offer of proof to shhow that to,) former ephl,-
ers of Htammack, Rlertlon Coal Compan' and U!nlon Carbide, would
have gi en adserse ecommerldaini onl itailack * hih h ould hasr
pr'cluded his emplos,ment h) Respondent as rejected as sp\culatile
Moreo,er. he references of those two eployers from .n horm Hammack
had x. orked prior to 176 had not presented Hammack's emploment h5
Respodent in 107h
'I hile he record does nor c learlI resecal specific job Opelinig, aft-r
Fehruali 7, the a.allahili of a job is eeniall a matter for compliance
once a iliscrimrlilal ry refusl I, consider anl applicant for eirlplonient
has been established See, e g, Gr(,dunar uring lioRn. Inc, 222 Nt Rl
141
)
1176 ); ( C I. lngcru ( rporaiwtil i/ 4lahunra, 146 N R hlt0l (l0t4}
-2 See, genIerals. u /u'llumblng & flcatrimg (. 138 NIRtt 716h l9t2)
I2' II the escill 1i1 crcepliolls are filed is prl,idled h5 Sec 1(12 4 of
the Rules and RcgiulalionIs f the Naliinal I ahir Relations Board, he
filldlll.gs. concllionIls. and recolllnlclided ()rder hre1i1 hall, a proidedl
III Sec 1()2 48 of the Rules aild Reguilialton. adopte d h, he Board arid
bectine' it, fildings. n) I dLOlsll. .nI )rder. alli all obhlectiols tlhtreto
shall he deemed s aled r all purpose'
CEI)AR COAL (OMPAN'
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
absent the discrimination against him, and make him
whole for his loss of earnings in the manner set forth in
the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its Chelyan, West Virginia, facility copies
of the attached notice marked "Appendix." 2 4 Copies of
24 In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
for Region 9, after being duly signed by Respondent's
representative, shall be posted by it immediately upon re-
ceipt thereof, and be maintained by Respondent for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that such notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein be,
and it hereby is, dismissed to the extent that it alleges
any unfair labor practices not found herein.
I