Glenn's Trucking Co.

National Labor Relations Board - Board Decisions

Oct 25, 2000

332 N.L.R.B. 880 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

880
Glenn’s Trucking Co., Inc. and United Mine Workers
of America. Case 9–CA–35666
October 25, 2000
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On May 26, 1999, Administrative Law Judge David L.
Evans issued the attached decision. The Respondent
filed exceptions and a supporting brief and a “reply” (sic)
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified.2
We affirm the judge’s finding that the General Counsel
met her initial evidentiary burden under Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), with respect to the Re-
spondent’s refusal to hire, or delay in hiring, the named
discriminatees. We do so on the following grounds.
As set forth in detail in the judge’s decision, the Union
presented the Respondent with a copy of its “Preferential
Hiring List” (list) containing the names of 25 employees
identified to the Respondent as sympathetic to the Union.
All 25 individuals named on the list applied to the Re-
spondent for jobs at the Starfire Mine. The Respondent
hired 141 drivers between July 1997 and May 1998, only
7 of whom were on the list. The Respondent hired one
of the individuals named on the list in July 1997, before
the Union provided the list to the Respondent; and it be-
latedly hired six additional list employees. Eliminating
25 available jobs filled by drivers formerly employed by
the Respondent at its Leatherwood site, there remained
116 job vacancies that could have been filled by the dis-
criminatees.
We agree with the judge that “[t]he possibilities of the
Respondent’s lawfully filling [the remaining] vacancies
without hiring one employee on the Union’s ‘Preferential
Hiring List’ are, at minimum, statistically remote,” and
his further finding that “[t]he extreme [Union versus
nonunion hiring] ratios clearly demonstrate animus
against the employees whose names had appeared on the
Union’s ‘Preferential Hiring List.’” The judge implicitly
found a “blatant disparity” in the Respondent’s treatment
of applicants. In these circumstances, the statistical evi-
dence can be used as an element of animus. In addition,
we are satisfied that the General Counsel has established
the falsity of the Respondent’s contention that the dis-
criminatees were unqualified or less qualified than the
employees the Respondent hired and that they had been
passed over during an “honest random selection proc-
ess.” We are further persuaded, on the basis of the re-
cord considered as a whole, that the circumstances war-
rant the inference that Respondent’s true motive is an
unlawful one. See Wright Line, supra, 251 NLRB at
1088 fn. 12 (citing Shattuck Denn Mining Co. v. NLRB,
362 F.2d 466, 470 (9th Cir. 1966)). Having concluded
that the Respondent’s asserted business reasons were
pretextual, we also find that the Respondent failed to
satisfy its Wright Line burden of showing that it would
not have hired the discriminatees or delayed in hiring
them or offering them jobs, even in the absence of their
union sympathy. See FES (A Div. of Thermo Power,
Inc.), 331 NLRB No. 20, slip op. at 4 (2000).

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 Substitute the following narrow order language for that of the ad-
ministrative law judge in the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Glenn’s Trucking Co., Inc.,
Hazard, Kentucky, its officers, agents, successors, and
assigns, shall take the action set forth in the Order as
modified.
1. Substitue the following for paragraph 1(b).
“(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.”
2. Substitute the attached notice for that of the admin-
istrative law judge.

APPENDIX

NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
332 NLRB No. 87
GLENN’S TRUCKING CO. 881
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT deny employment to employee-
applicants, or delay offering employment to employee-
applicants, because they have become or remained mem-
bers of United Mine Workers of America or because they
have given assistance or support to that labor organiza-
tion.
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL make the following named individuals
whole, with interest, for any loss of earnings and other
benefits suffered as a result of the discrimination against
them:

Reid Brewer Douglas Bush Jr.
Kermit Campbell Charles Caudill
Clyde Cockrell Mike Combs
John M. Fugate Roy Gayheart
Spencer Godsey Harold Guerra
James H. Haddix Mike Hayes
Tom Hurley Danny Lovins
Destry Mullins Grover Napier
Ray Napier Jerry Noble
Raymond Robinson Leander Ronk
James Larry Stacy Donny Strong
Kenneth Williams

WE WILL remove from our files any reference to
the unlawful delays in hiring, or refusals to hire, the
above-named individuals, and WE WILL thereafter no-
tify each of them in writing that this has been done and
that our delays in hiring them, or our refusals to hire
them, will not be used against them in any way.

GLENN’S TRUCKING CO., INC.

Deborah Jacobson, Esq., for the General Counsel.
George J. Miller and Richard C. Ward, Esqs., of Lexington,
Kentucky, for the Respondent.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This case
under the National Labor Relations Act (the Act) was tried
before me in Hazard, Kentucky, on January 19–21, 1999. On
January 26, 1998, United Mine Workers of America (the Un-
ion) filed the charge in Case 9–CA–35666 against Glenn’s
Trucking Co., Inc. (the Respondent). On May 5, 1998, the Gen-
eral Counsel issued a complaint and notice of hearing (the
complaint) alleging that the Respondent has violated Section
8(a)(3) and (1) of the Act by denying employment to 23 appli-
cants since July 26, 1997.1 The Respondent denies the commis-
sion of any unfair labor practices.

1 All dates are in 1997, unless otherwise indicated.
On the testimony and exhibits entered at trial,2 and on my
observations of the demeanor of the witnesses,3 and after con-
sideration of the briefs that have been filed, I make the follow-
ing
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
As it admits, the Respondent is a corporation that is located
in Hazard, Kentucky, where it is engaged in the business of
transporting coal by truck. During the year preceding the issu-
ance of the complaint, the Respondent, in the course of those
business operations, derived gross revenues in excess of
$50,000 as an essential link of interstate commerce. Therefore,
at all relevant times the Respondent has been an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. As the Respondent further admits, the Union
is a labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Lost Mountain Mine and the Starfire Mine are two of
the many coal strip mines that are located in the Hazard area.
Cypress Mountain Coal Corporation (Cypress) was a producer
that operated the Lost Mountain Mine until some time in 1994;
Cypress operated the Starfire Mine until late 1998.4 During the
period that Cypress operated the Lost Mountain Mine, it had a
contract for coal hauling with Leslie Haulers, Inc. (Leslie Haul-
ers). When Cypress operated the Starfire Mine, it first had a
contract for coal hauling with John Chaney Trucking, Inc.
(Chaney Trucking). In July 1997, however, Chaney Trucking
went out of business, and Cypress awarded the Starfire Mine
coal-hauling contract to the Respondent. The Respondent re-
mained the contract hauler at the Starfire Mine until Cypress
closed that operation in late 1998. The essence of the General
Counsel’s case is that, during the period that the Respondent
performed under its Starfire Mine contract with Cypress, it
refused to hire, or delayed the hiring of, certain former employ-
ees of Chaney Trucking and Leslie Haulers because those em-
ployees were members of, or were in sympathy with, the Un-
ion.
In 1994, the Board certified the Union as the statutory collec-
tive-bargaining representative of truckdrivers employed by
Chaney Trucking at the Starfire Mine. Also in 1994, the Na-
tional Labor Relations Board certified the Union as the collec-
2 Certain passages of the transcript have been electronically repro-
duced. Some corrections to punctuation have been entered. Where I
quote a witness who restarts an answer, and that restarting is meaning-
less, I sometimes eliminate redundant words; e.g., “Doe said, he men-
tioned that” becomes “Doe mentioned that . . . .” In my quotations of
the exhibits, I sometimes simply correct meaningless grammatical
errors rather than use “[sic].” Some extraneous usages of “you know”
are omitted.
3 Credibility resolutions are based on the demeanor of the witnesses
and any other factors that I may mention.
4 During the 1994–1998 period, Cypress had a contractual relation-
ship with the Union as the representative of its production employees,
but those employees are not involved in this case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 882
tive-bargaining representative of truckdrivers employed by
Leslie Haulers at the Lost Mountain Mine.5 Shortly after the
certifications, Cypress closed the Lost Mountain Mine; as a
result, Leslie Haulers laid off all its truckdrivers. Between 1994
and early 1997 the Union and Chaney Trucking engaged in
collective bargaining, but no contract was reached. During the
spring of 1997, Chaney Trucking notified Cypress and the Un-
ion that it was planning to go out of business in July. Thereaf-
ter, Cypress put the Starfire Mine coal-hauling contract up for
bidding.
Two types of trucks are used in the coal hauling business; to
wit: tandems (or “ten-wheelers”) and tractor-trailers (or “eight-
een wheelers”). Tandems are single-unit trucks that are more
efficient than tractor-trailers in the transportation of coal in off-
road situations (for example, between the excavation site and a
processing facility that is located on the same property); this is
because tandems can get into tighter places, they can climb
steeper grades, and they can work in slippery areas where a
tractor-trailer cannot. Tandems are also used for transporting
coal on public highways, but they are not as efficient for that
purpose as tractor-trailers which have a much greater carrying
capacity. For loads that are taken onto Kentucky highways, a
driver of a tractor-trailer is legally required to have a class-A
commercial driver’s license (class-A license); a driver of a
tandem, however, is required to have only a class-B license to
operate on the public highways. (Neither type of license is re-
quired to operate coal trucks off of public highways.) Chaney
Trucking and Leslie Haulers used only tandems in their opera-
tions at the Starfire and Lost Mountain mines, and only a few of
their drivers had class-A licenses.
Under the regulations of the Department of Labor, Mine
Safety and Health Administration, employees who work in or
around coal mines, including truckdrivers, must have one or
more types of training. On completion of any required training,
employees are issued certificates. As reflected by certificates
that the Respondent introduced into evidence, miners’ safety
certificates (or “safety papers”) include those designated “An-
nual Refresher” or “Newly Employed Experienced Miner” or
“Newly Employed Inexperienced Miner.” An Annual Refresher
certificate relates to certain property; as the name implies, em-
ployees are annually given instructions about safety factors on
the mining property at which they work. A Newly Employed
Experienced Miner certificate relates to one employer; as the
name implies, employees are to be given certain training before
they may lawfully work for a new employer, even if they are
experienced in the industry. At the time that the Respondent
was awarded the coal-hauling contract at the Starfire Mine,
several of the alleged discriminatees already possessed Annual
Refresher certificates for that property because they had
worked there for Chaney Trucking during the preceding year.

5 Leslie Haulers was one of several subsidiaries of a concern named
“Perry Transport.” At the hearing, Leslie Haulers was sometimes re-
ferred to as “Perry,” or it was referred to by the name of one of Perry’s
other subsidiaries.
Glenn Baker is the Respondent’s president.6 The Respon-
dent’s principal office is located in Baker’s home in Hazard.
When the Respondent is under contract for hauling coal from
area mines, it establishes offices at those mines, as well. Baker
testified that, at the time that Cypress had the Starfire Mine
hauling contract up for bidding, the Respondent was the con-
tract hauler at another mine in the area, the Leatherwood Mine.
Operations at the Leatherwood Mine were then winding down,
however, and the Respondent was looking for new business.
Baker submitted a bid to Cypress for the Starfire Mine contract;
that bid assumed that the Respondent would be using at least
some tractor-trailers. On July 10, Cypress accepted the Re-
spondent’s bid, and the date for the beginning of performance
was set at July 16. At that point, the Respondent owned no
tractor-trailers; this was because, in performing its previous
coal-hauling contracts (including the contract at the Leather-
wood Mine), the Respondent had used only tandems. On the
Respondent’s being awarded the Starfire Mine contract, Baker
immediately began purchasing some new tractor-trailers. Dur-
ing the first few days of its operations at the Starfire Mine, the
Respondent engaged some independent contractors,7 but it also
began hiring employees immediately. The parties stipulated
that, between July 1997 and May 1998, the Respondent hired
141 truckdrivers for the Starfire Mine operations.
The Starfire Mine was quite close to Hazard; the Leather-
wood Mine was about 30 miles away. Baker testified that on
receiving the contract award from Cypress he began moving
tandems from the Leatherwood Mine operation to a lot in Haz-
ard. Baker also placed newly purchased trucks on that lot. (Also
on the Hazard lot was a liquor store, and some witnesses re-
ferred to the lot as the “liquor store lot.”) The parties stipulated
that during 1997 the Respondent purchased 7 tandems, 16 trail-
ers, and 11 tractors. Baker further testified that the Respondent
had as many as 60 trucks operating at the Starfire Mine while
he was performing his contract with Cypress.
B. The General Counsel’s Case-in-Chief
Creation of the Union’s “Preferential Hiring List.” Charles
Dixon is an International representative of the Union. Dixon
testified that on June 25 Walter Reed, an official of Cypress,
informed Dixon that his company had received bids from sev-
eral trucking companies that wished to succeed Chaney Truck-
ing as the contract hauler at the Starfire Mine. Dixon told Reed
that there were certain employees of Chaney Trucking whom
the Union wished any successor to hire; thereafter Dixon pre-
sented Reed with a document entitled “Preferential Hiring
List.” The document listed 25 employees (here alphabetically):

Reid Brewer Douglas Bush Jr.
Kermit Campbell Charles Caudill
Clyde Cockrell Mike Combs
Manuel Davis Robert Durham
6 When asked at trial, Baker identified himself only as the Respon-
dent’s general manager. The answer, however, admits that Baker is its
president; moreover, another individual, one Jerry Gilliam, was identi-
fied at the hearing as the “general manager.”
7 Baker testified that the use of independent contractors was uneco-
nomical, and he replaced them with employees as soon as possible.
GLENN’S TRUCKING CO. 883
John M. Fugate Roy Gayheart
Spencer Godsey Harold Guerra
James H. Haddix Mike Hayes
Tom Hurley Danny Lovins
Destry Mullins Grover Napier
Ray Napier Jerry Noble
Raymond Robinson Leander Ronk
James Larry Stacy Donny Strong
Kenneth Williams

(The spellings of the names of Gayheart and Stacy are cor-
rected to reflect those of their signatures, copies of which are in
evidence.) At the time that Dixon submitted the Union’s “Pref-
erential Hiring List” to Reed, 14 of the above-listed employees
were still employed by Chaney Trucking at the Starfire Mine,
and the remainder were drivers who had been laid off by Leslie
Haulers. The listed employees were not all of those who were
then employed by Chaney Trucking, and they were not all of
the employees who had been laid off by Leslie Haulers. Rather,
the names were those drivers of Chaney Trucking and former
drivers of Leslie Haulers whom the Union believed were in
sympathy with it. As will be seen, Baker acknowledged at trial
that he received a copy of the Union’s “Preferential Hiring
List” on July 17.
Basic stipulations and contentions. As amended at trial, the
complaint alleges that, since on or about July 26,8 in violation
of Section 8(a)(3), the Respondent has refused to hire all of the
employees on the Union’s “Preferential Hiring List” except
Davis and Durham; that is, of the 25 former employees of
Chaney Trucking and Leslie Haulers whose names appeared on
the Union’s “Preferential Hiring List,” 23 are named as alleged
discriminatees in the complaint. The parties stipulated that the
Respondent hired Davis and Durham on July 16 and August 8,
respectively. The Respondent hired alleged discriminatees Ray
Napier and Ronk on September 8, 1997.9 It hired alleged dis-
criminatee Godsey on December 15, 1997; and it hired alleged
discriminatees Combs and Fugate on March 9, 1998.
The parties further stipulated that, in September 1998, Re-
spondent sent letters offering employment to all of the alleged
discriminatees who had not been previously hired. The parties
further stipulated that, before September 1998, the Respondent
had never offered employment to the following eight alleged
discriminatees: Gayheart, Guerra, Haddix, Hurley, Mullins,
Noble, Robinson, and Williams. Although not a matter of stipu-
lation, the Respondent makes no contention that it offered em-
ployment to Hayes before September 1998. An issue in this
case is whether, before September 1998, the Respondent of-
fered employment to the following nine alleged discriminatees:
Brewer, Bush, Campbell, Caudill, Cockrell, Lovins, Grover
Napier, Stacy, and Strong.

8 Under Sec. 10(b) of the Act, July 26 is the 6 months’ limitation
date for the charge.
9 Actually, the parties stipulated that the Respondent hired Ray
Napier on September 8, “1998”; this was clearly a mutual mistake,
however, as the testimony demonstrated. (For example, a supervisor
who was hired in 1997 testified that Napier was hired before he was.)
Moreover, the Respondent has submitted an unopposed motion that I
note this mistake.
The alleged discriminatees’ applications. Several employees
testified, and it is undisputed, that before Chaney Trucking
went out of business, it had a bitterly hostile relationship with
the Union. Dixon testified that shortly before July 10, he re-
ceived a telephone call from Baker. According to Dixon:

[Baker] basically wanted to assure me that he was not an
anti-Union person or did he run an anti-Union company.
That he was one of the bidders for the coal haul at Starfire.
He wanted to assure me that if he was to be the one to get
the coal-haul that he would sit down and try to work things
out with the Union.

Baker did not deny this testimony.
Dixon testified that on July 10 he heard from another union
representative that Cypress had awarded the Starfire Mine con-
tract to the Respondent. Dixon immediately contacted alleged
discriminatees Grover Napier10 and Michael Hayes. Napier had
been a union steward when he worked for Chaney Trucking;
Hayes had been a union steward when he worked for Leslie
Haulers. Dixon told Napier and Hayes to tell employees to go
to the Respondent’s office and submit applications for em-
ployment. All of the employees whose names appeared on the
Union’s “Preferential Hiring List” did so.
Almost all of the application forms that the Respondent used
contained no spaces for entries of dates. Because of this fact, it
is impossible to tell precisely which alleged discriminatee ap-
plied on which date.11 The parties stipulated, however, that all
of the alleged discriminatees applied for employment on either
Friday, July 11, or Monday, July 14. From many aspects of the
testimony, it appears that the great bulk of the alleged discrimi-
natees applied on July 11. Other individuals submitted applica-
tions on July 11, and other individuals submitted applications
thereafter. As well as stipulating that the Respondent hired 141
truckdrivers for work at the Starfire Mine, the parties stipulated
that it rejected about 100 applicants other than the alleged dis-
criminatees.
(Not all of the applications that the Respondent received
were placed into evidence. The General Counsel placed into
evidence the applications of the 23 alleged discriminatees; the
Respondent placed into evidence the applications of 28 former
Chaney Trucking employees, or former Leslie Haulers employ-
ees, whom it did hire, including those of alleged discriminatees
Combs, Fugate, Godsey, Ray Napier, and Ronk. Of the 48 non-
duplicates, only 1 bears a date; that was the application of Mi-
chael D. Pennington whom the Respondent hired on May 13,
1998. Some of the applications that the Respondent took in
10 Alleged discriminatees Grover and Ray Napier are brothers. A
third brother mentioned in this decision is John Napier. All subsequent
references in this decision to “Napier” are to Grover, unless otherwise
indicated.
11 The lack of dates on the applications also makes it impossible to
determine just who did get hired, and when. The parties did stipulate to
the numbers of employees who were hired during each month of the
Respondent’s operations at the Starfire Mine, but this was not as help-
ful as other information would have been. In future refusal-to-hire
cases, the search for truth would be better facilitated by evidence that
shows just who was hired, and precisely when, and for what jobs.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 884
1998 did have dates, and those dates were sometimes read into
the record, but those applications were not offered as exhibits.)
Joan Hall is Baker’s secretary; she works at the Respon-
dent’s Hazard office at Baker’s home. Baker is often away,12
and Hall manages the Hazard office when he is. When the July
11 applicants (including, but not limited to, the alleged dis-
criminatees) appeared at that office, Hall gave them applica-
tions to complete; then she interviewed the applicants and made
notations on their applications. Each application had spaces for
the usual information (except dates), and each also had a space
designated for “CDL Proof.” That blank was used by Hall to
indicate what type of commercial driver’s license (class-A or
class-B) that an applicant showed her during an interview. Hall
additionally asked each applicant about the type of trucks that
he had driven in the past (either tandem or tractor-trailer), and
Hall entered that information in the margins of the applications.
Of the 23 alleged discriminatees, only 13 possessed class-A
licenses when they applied on July 11 or 14: Bush, Cockrell,
Combs, Fugate, Gayheart, Godsey, Guerra, Haddix, Hayes,
Hurley, Noble, Stacy, and Strong. As all 13 of these applicants
had recently been employed by Chaney Trucking or Leslie
Haulers, however, none had recent tractor-trailer experience.
The remainder of the alleged discriminatees had only class-B
licenses, and, of course, they had no tractor-trailer experience.
Baker’s conversations with the applicants. Baker came to the
Hazard office while Hall was interviewing applicants on June
11 or 14 (or both). While Hall was interviewing some appli-
cants, Baker had discussions with others. Alleged discriminatee
Bush testified:

[Baker] started talking, and there was a few of us gathered
around, or something and he said that he was mainly look-
ing for tractor/trailer drivers and the ones that was quali-
fied, or had the license to drive the tractors, he was want-
ing to hire those and then as the other trucks came in, I
guess tandems or whatever, that he’d hire the rest.

Alleged discriminatee Hayes testified that when he, Brewer,
Gayheart, Lovins, and Campbell were in the office:

[Baker] said that he was going to hire about fifteen to be-
gin with and he was going to hire maybe five at a time as
he got the equipment and, as he got five more trucks, he’d
hire five more. Fifteen is the number that I remember that
he was going to begin with.

Further, according to Hayes:

[Baker] was talking about letting the ones that didn’t have
their class-A license[s] use his trucks to practice. He said
he’d take some of them to Leatherwood, a job somewhere
in Perry County that he had had before. He would take
some of them to let them practice in his tractors so that
they could familiarize [themselves] and get their Class-A
license[s], the ones that didn’t have their Class-A li-
cense[s].

12 For example, Baker not only maintained a separate office at the
Leatherwood Mine, he also maintained a separate residence in the area
of that mine, which was about 30 miles from Hazard.
Hayes further testified that Baker also told the group of appli-
cants:

Well, he was going to hire us but he couldn’t hire us
all at one time, he was going to . . . hire fifteen and as he
got five more trucks he’d put five more in those trucks and
he was offering the ones that didn’t have their Class-A li-
cense[s] to get their Class-A license[s] because he said
they were going to use quite a few tractors.

(Hayes further testified that when he filled out his application,
the fact that he had been a steward for the Union at Leslie
Haulers was not mentioned; his application, however, has
“UMWA Committeeman” written on it. Hall admitted making
the notation, but she testified that Hayes volunteered during his
interview that he had been a union committeeman at Leslie
Haulers. I credit Hall.)
Alleged discriminatee Caudill testified he was in the office
with Godsey, Napier, and others when Baker “told us that he
could hire us if we get the class-A license. Everything was
going to tractors.” Alleged discriminatee Lovins testified that
he heard Baker say at the time that: “He had fifteen trucks com-
ing in or something like that, and he was going to put us to
work as they come in.” Lovins further testified that he later
returned to the Respondent’s office in order to show alleged
discriminatee Brewer where the office was. According to
Lovins, after Brewer finished his application, Baker invited the
two men into his office. There, according to Lovins, Baker:
“told us he was going to put us to work when his trucks came
in. He had them scattered out and he didn’t have enough trucks
to put everybody to work.” When testifying in the Respon-
dent’s case, Baker generally denied that he told anyone that he
would hire any applicant.
The July 15 safety-training class. As Hall acknowledged
when she testified in the Respondent’s case, on July 14 and 15,
she telephoned applicants who had applied by then and told
them to go on July 15 to a Cypress office facility (a double-
wide trailer) that was located at the entrance to the Starfire
Mine. There, a safety-training class would be conducted. The
following six alleged discriminatees testified that they received
Hall’s telephone call and did attend the training: Bush, Camp-
bell, Caudill, Cockrell, Napier, and Stacy. According to the
testimony of these six alleged discriminatees, and documents
placed in evidence by the Respondent, the following seven
alleged discriminatees also attended the July 15 safety-training
class: Combs, Fugate, Guerra, Haddix, Hurley, Noble, and
Ronk.13 Napier testified officials of Cypress conducted the
safety classes, but also present for the Respondent were Baker
and one Jerry Gilliam. Gilliam, as the Respondent admits, was
the Respondent’s “General Manager of Operations.” According
to Napier, Baker addressed the group of applicants and intro-
duced Gilliam as the supervisor who would be “running” the
Respondent’s operation at the Starfire Mine. Gilliam then ad-
dressed the group; according to Napier:

13 The documentation regarding who attended the July 15 safety-
training class was not complete; at least 40 individuals received the
training on that date.
GLENN’S TRUCKING CO. 885
[Gilliam] said that he hoped everyone of us would be up
on the hill working and that they was going to have four,
five trucks at a time fixed and was going to put us to work
in groups of four or five, but they was going to have to
continue using contractors until Mr. Baker got his trucks
fixed.

According to Cockrell, Baker spoke to those at the July 15
safety-training class and:

[Baker] said the trucks was going to be safe on the job. He
said if they wasn’t safe when we got in them every morn-
ing to not leave the parking lot, leave them set until
they’re fixed and he was going to try to work with every-
body and try to make a good job and stuff out of it.

Neither Baker nor Gilliam disputed this testimony. Gilliam,
who came to be in charge of safety for the Respondent, testified
that the July 15 training was for newly employed experienced
miners. A certificate that was placed in evidence by the Re-
spondent also shows that the July 15 training was for the train-
ing of “Newly Employed Experienced Miner(s).” (This was the
certificate that was issued after the session to Samuel Hollifield
who was hired by the Respondent and who is not an alleged
discriminatee; none other of the July 15 certificates were of-
fered into evidence.)
Union Representative Dixon testified that on July 17, and on
August 20 and 29, he met with Baker in attempts to secure
employment for the alleged discriminatees.14
Meeting of July 17. Dixon testified that on July 17 he,
Napier, and Hayes went to the Respondent’s Hazard office. At
that time, they gave Baker a copy of the Union’s “Preferential
Hiring List.” During the Respondent’s case, Baker admitted
receiving the list at the July 17 meeting, he admitted that
Dixon, Hayes, and Napier told him that the list was “a list of
men that they wanted me to hire,” and he admitted that Dixon,
Hays, and Napier told him that the list contained the names of
truckdrivers who had “worked with the Union.”
Dixon testified that at the July 17 meeting:

Mr. Baker informed me that he had no intentions of
fighting the Union like John Chaney had. That he had in-
tentions of hiring all these guys, giving them a job, and
that he felt that he could work things out with the Union.
. . . .

[Baker] told us that all the drivers would need to get their
Class-A license[s] because if they were happening to be
driving a ten-wheeler and it broke down then they would
be required to drive one of the eighteen-wheelers.

[Baker] said he would help the drivers with regards to this
by getting one of his best trucks, an eighteen-wheeler, and
let everybody take their test[s] with it. He wanted the ones
that didn’t have Class-A licenses to go ahead and immedi-
ately try to get their Class-A license[s].

14 Dixon further testified that during these meetings he attempted to
get Baker to agree to a collective-bargaining agreement. That testimony
was not disputed, but there is no allegation that the Respondent, in any
way, violated Sec. 8(a)(5).
Dixon, Hayes, and Napier assured Baker that they would see to
it that all of the employees on the Union’s “Preferential Hiring
List” obtained their class-A licenses, if they did not already
have them.
(Again, all of the alleged discriminatees had submitted appli-
cations to the Respondent on either July 11 or 14, but neither
Dixon nor Baker testified that during their July 17 meeting that
those applications were mentioned. Nor did Dixon nor Baker
testify that there was any mention of the fact that some of the
alleged discriminatees had attended a safety-training class for
newly employed experienced miners on July 15. Nor did Dixon
or Baker testify that either of these factors was mentioned in
their two subsequent meetings.)
Napier testified that, further at the July 17 meeting:

Well he [Baker] said, “I’ve got a bunch of old trucks
and some ones at Leatherwood [Mine] and I’m going to be
fixing them up and try to get like four or five at a time
[into operation].”

[Baker said that we] would drive the old trucks until he got
new trucks in but he was going to have to continue using
the contractors until he got all of his trucks down there.
Then he asked how many had a Class-A license[s] and
how many had Class-B licenses. At that time I didn’t
know.
I had this list, this handwritten list, that I had given
them we was going over it. Then he [Baker] said well he
was going to have to have drivers that was qualified to
drive an eighteen wheeler which they would have [to se-
cure] class-A licenses.
They was ten of us that just had class-B licenses. He
offered to let us go up to Leatherwood where he had a
truck and practice on Sundays. Then when we thought we
was ready he would send a driver and a new truck to Som-
erset for the testing station with us and four or five could
follow in a car. One could drive in the truck with the
driver and we would all take our test at the same day.

Baker did not deny this testimony by Dixon and Napier.
Meeting of August 20. On August 20, Dixon, Napier and
Hayes again went to the Respondent’s Hazard office. Gilliam
was present with Baker. According to Dixon:

Mr. Gilliam wanted to assure me, Grover, and Mike
Hayes that he had every intention of working with us and
cooperating with us. That he had only been on the job for
like a week and he hadn’t hardly got quite familiar enough
with it yet, but he assured us that he was going to start ...
[h]iring the guys that we had put on the list. That he was
going to [be] hiring some of those drivers. [At one] point
during the meeting Mr. Baker told him, “Well you need to
go ahead and hire Grover [Napier] now.”

(In fact, Napier was not hired by the Respondent; again, an
issue in this case is whether the Respondent ever offered em-
ployment to Napier before a stipulated offer to all alleged dis-
criminatees that was made in September 1998.) During the
August 20 meeting Napier told Baker that all of the employees
who were named on the Union’s “Preferential Hiring List,”
save one, had secured their class-A licenses. Napier further
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 886
testified that at the August 20 meeting Baker and Gilliam fur-
ther said that: “They was going to put four or five of us to work
at a time as they got the trucks fixed and they would have to
continue to use the contractors until they got their own trucks
fixed.” Baker did not deny any of this testimony by Dixon and
Napier.
Although Napier told Baker that all but one of the employees
on the Union’s “Preferential Hiring List” had received their
class-A licenses, there were at least three of the employees
named there who were never to receive class-A licenses; to wit:
Davis and alleged discriminatees Ray Napier and Ronk. (As
previously noted, Davis had already been hired by the Respon-
dent on July 16, and Ronk and Napier were thereafter hired on
September 8.) Brewer, Campbell, Cuadill, Lovins, and Grover
Napier testified that they attended a class (the tuition for which
was $250) and secured their class-A licenses after Baker told
them, and the Union, that they needed to do so “immediately.”
Without objection, Campbell testified that Williams and Robin-
son were among the employees who attended the course and
that Williams and Robinson were among those who passed the
test given at the end of the course; presumably, therefore, Wil-
liams and Robinson received their class-A licenses. Whether
alleged discriminatee Mullins ever received his class-A license
is not reflected in the record, and it must be assumed that he did
not.
Meeting of August 29. Dixon further testified that, at a tele-
phonic request from Baker, he went to the Respondent’s office
at Baker’s home on August 29. Napier and Hayes did not go
with him. Dixon testified that he met with Baker and Gilliam,
and Baker told him that the Respondent was planning to bid on
a West Virginia trucking operation and that he thought that if it
was successful he could put some of the employees who were
on the Union’s “Preferential Hiring List” to work there. Dixon
told Baker that the employees did not want to go to work in
West Virginia and that Baker should put them to work in Ken-
tucky as he had promised. Dixon testified that Baker replied
that:

[I]f he could get that West Virginia coal-haul he could put
everybody to work over there, but it would be hard for him
to do that here at Hazard. That he might have to work out
some sort of arrangement with us to provide three out of
five of them a job.

Dixon further testified that during the meeting Baker told him
that he could put Napier to work then, and possibly he could
put Hayes to work later; Baker told Dixon to tell Napier to
come back to the office. Baker’s denials of this testimony will
be discussed below.
Napier testified that on August 29, Dixon called him and
stated that he had met with Baker and that Baker had said that
he would hire him (Napier) and Hayes. On the next working
day, September 2, Napier went to Baker’s office. Hall told
Napier that Baker was not there and that Napier should come
back the next day. Napier went back to the office on September
3, but Hall told him that, again, Baker was not coming in that
day. On September 4, Napier called Hall and stated that he
could not be there that day; Hall replied that Baker was not
coming to the office that day anyway. On Friday, September 5,
Napier again called Hall; Hall told Napier that Baker had been
into the office and had “pulled” his application, and that Baker
would be calling Napier during the following week; Hall told
Napier to “stay by the phone.” Neither Baker nor Hall called
Napier thereafter. Neither Baker nor Hall denied this testimony.
The General Counsel contends that Napier did not receive an
offer of employment from the Respondent until he received the
stipulated offer of September 1998. Again, the Respondent
contends that it effectively offered Napier employment before
that point, but that Napier declined.
By letter to Baker dated September 3, Dixon recited various
items to which Baker had purportedly agreed on August 29,
including agreements that the Respondent would consider hir-
ing all of the employees who had been named on the Union’s
“Preferential Hiring List” and that the Respondent would be
“contractually obligated to employ three (3) out of every five
(5) employees on the preferential hiring list.” Dixon’s letter
concluded with a request that the Respondent advise him “as
soon as possible as to whether or not the above-mentioned
terms are agreeable in general terms.” The Respondent did not
reply to this letter. By letter dated September 16, Dixon re-
peated his requests of September 3. By letter dated September
26, Gilliam replied that he had received Dixon’s letter of Sep-
tember 16 and that “I deeply apologize for this response and
delay.” Gilliam went on to describe how busy he had been in
getting the Respondent’s business started, and Gilliam further
stated: “I plan to get with you in a couple of weeks and discuss
your proposals.” Gilliam’s letter concludes that: “We have
already started hiring employees on the preferential hiring list
as of this date.” Dixon made further attempts to contact Baker,
but his telephone calls were not returned and his letters were
not answered.
Testimony concerning animus. According to alleged dis-
criminatee Godsey, on or about December 15, he went to the
Starfire Mine. There, he met with General Manager Gilliam and
Foreman Dean Hoskins, and Godsey asked them for a job. At
the time, Godsey also told Hoskins and Gilliam that he had
signed a union authorization card when he had worked for
Chaney Trucking, and Godsey expressed concern that Baker
would hold that against him. Hoskins and Gilliam told Godsey
not to be concerned. Hoskins and Gilliam further told Godsey
that, at that moment, the Respondent needed a driver to go with
other drivers to pick up some trucks that Baker had recently
purchased. Godsey agreed to be the additional driver. A party
consisting of Baker, Hoskins, Godsey, and two drivers whom
Godsey did not know set out to retrieve the new trucks. It was
lunchtime, and the group stopped at a restaurant that was
owned by John Chaney, the former owner of Chaney Trucking.
Godsey, who was not on good terms with his former employer,
refused to go into the restaurant, and he waited for the others in
an automobile in the parking lot. At one point while Godsey
was waiting, Hoskins came out of the restaurant and urged
Godsey to come in to eat. According to Godsey:

[Hoskins] came out and we was talking about the trucks
that [Baker] bought off of John [Chaney], and we got to
talking, and one thing led to another, and then he told me
about a list that Cypress and Chaney had give to Glenn
GLENN’S TRUCKING CO. 887
[Baker] of the drivers to hire and not to hire.Godsey and
Hoskins talked about other things; then Hoskins returned
to the restaurant. A few minutes later, further according to
Godsey, Baker came out of the restaurant, also to urge him
to come into the restaurant. According to Godsey, as he
and Baker conversed, Baker told him that “they” (unspeci-
fied) had given him a list of “the ones to hire and not to
hire . . . but then he would hire who he wanted to.” The
General Counsel then asked Godsey and he testified:

Q. Did Baker say anything more to you?
A. Yeah, we just, more or less, you know, but we
talked there, and he said that, then, you know, that he
could hire who he wanted to. He would hire who he
wanted to, you know.
Q. Do you remember him mentioning anything about a
majority––
MR. MILLER: Objection––objection [to the leading
nature of the question].
JUDGE EVANS: All right, let’s––can you––is there
anything else you can recall at this time?
THE WITNESS: Yeah, well, like, he told me, you
know, if he [Baker] had hired half or a majority that he
would have to give us a contract, and they [Cypress]
wouldn’t have given him a contract. In other words Cy-
press wouldn’t have give him a contract to haul the coal.

During the Respondent’s case, both Baker and Hoskins denied
these remarks that Godsey attributed to them. Godsey further
testified that after the trip to secure the trucks, Hoskins and
Gilliam retrieved the application that Godsey had filed in July,
and Godsey was then hired by the Respondent.
Other stipulations. The parties stipulated that during the fol-
lowing months of 1997, the Respondent hired the following
numbers of drivers: July, 16; August, 28; September, 9; Octo-
ber, 16; November, 6; and December, 14. The parties further
stipulated that during the following months of 1998, the Re-
spondent hired the following numbers of drivers: January, 11;
February, 8; March, 12; April, 9; and May, 12. Of these 141
drivers who were hired by June 1, 1998, 7 had been named on
the Union’s “Preferential Hiring List”: Davis and Durham and
alleged discriminatees Ronk, Godsey, Combs, Fugate, and Ray
Napier, all of whom who were hired on the dates that are noted
above.
C. The Respondent’s Case
As set forth above, Hall described on direct examination how
she took applications at the Respondent’s Hazard office. The
Respondent maintained a file of all applications of employees
who were not hired, and the Respondent presented that file
during Hall’s testimony. After the applications of the alleged
discriminatees were removed, the parties stipulated that there
were about 100 applications in that file. Although all of the
applications that Hall took were undated, she testified that she
could tell by marks that she had made which were those that
she had taken during the first few days after July 10 (again, the
date that Cypress awarded the Starfire Mine hauling contract to
the Respondent). When Hall was on cross-examination, she
was asked to examine the Respondent’s file of rejected applica-
tions to see if any of the early applicants, other than the alleged
discriminatees, had been rejected. After examining the file, Hall
admitted that she could find none.
The Respondent contends that it favored its former employ-
ees in its hiring processes at the Starfire Mine. According to a
list identified by Hall, there were 26 former Leatherwood Mine
employees of the Respondent whom it hired at the Starfire
Mine from July 1997 through September 1998.15 The 1997
months, and the numbers of former Leatherwood Mine em-
ployees hired in each, were: July, six; August, six; September,
two; October, three; November, two; and December, none. The
1998 months, and the numbers of former Leatherwood Mine
employees hired in each, were: January, four; February, one;
March and April, none; May, two; and none thereafter.
The Respondent further contends that it preferred employees
who were persistent in pursuing their applications. Of the for-
mer Chaney Trucking drivers who were hired, Hall testified
that Ray Napier called “at least twice a week” seeking em-
ployment “and so Mr. Baker hired him.” Hall testified that
Durham was also “persistent.”
Baker testified that he was present “a time or two” when
groups of employees came to the Hazard office and applied for
work. Baker was asked and he testified:

Q. What did you tell them?
A. I told them that we would be needing a bunch of
drivers, it looked like. Several of them told me that they
had several years [of driving experience] in this and that. I
told them that we would most certainly be able to use
them, I felt like.

Baker testified that, nevertheless, he never looked at any of the
applications that any of the alleged discriminatees completed,
because he had not ever hired by applications. Baker testified
that he had historically hired by interview and road-test only; if
he decided that he wanted to hire an applicant, he would put the
applicant to work and later have him complete an application.
Baker testified that he had previously used applications only so
that Hall would have Social Security numbers and other infor-
mation when it was time to prepare paychecks. Baker admitted,
however, that in this instance he told Hall to take applications
before any hiring decisions had been made. Baker was there-
fore asked on direct examination, and he testified:

Q. Why did you tell Ms. Hall to take applications from
all of these people?
A. I felt like we would be hiring them.
Q. All of them?
A. I felt like all of them qualified to work, you know,
that wanted to work, I’d hire them. I didn’t have any inten-
tion of not hiring them.
Q. But, you didn’t hire some of them.
A. They never come and ask to work.
Q. But you had an application.

15 The title of the list indicates that the 26 employees were “trans-
ferred” from the Leatherwood Mine, but cross-examination of Hall
showed that many were not transferred; rather, they were only re-hired
after having once worked at Leatherwood.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 888
A. We had applications, but they never did show up to
work. When they showed up to work, I hired them.
Q. Did you ever tell them or tell anyone that one of the
conditions of getting hired was to show up to work or
show up on the job?
A. Anybody that knows me, that has ever worked for
me, has showed up on the job and talked to me and been
there ready to work, if they wanted to work for me.
Q. That is not my question, Mr. Baker. My question
was, did you ever tell anybody, these people who put in
applications or Mr. Dixon or anyone, that if they wanted to
get hired, they had to show up on the job?
A. Whenever I talked to these guys over at the [Hazard
office], I said, “You fellows need to keep your eyes open
and be over there when these trucks comes in. When these
trucks come in, I’m going to put drivers in them. You guys
need to be over there on the job now, ready to go, when
this truck comes in. You need to be there. You guys now,
stay in touch with me. The closer you stay in touch with
me, the quicker you will go to work because I am going to
be awful busy trying to get these trucks ready. Come over
on the job where we are at and as these trucks come in, I’ll
put you guys in them.”

(Below, I refer to the last-quoted answer as Baker’s “seven-
sentence answer.”) Baker testified that every applicant whom
he hired came either to the liquor store lot where he stored the
trucks in Hazard or came to the mine after he began operations
there. Baker admitted that Hurley approached him about a job
at the liquor store lot, but he further testified that Hurley ap-
peared inebriated to him at the time, and Baker refused to talk
to him.16 On cross-examination, however, Baker admitted that
he nevertheless would have hired Hurley later if Hurley had
met the Respondent’s other requirements and had approached
Baker when he was not inebriated.
Baker testified that when he met with some of the alleged
discriminatees at his office he noted that “95%” of them said
that they had no experience in driving tractor-trailers. Baker
testified that he preferred to hire experienced tractor-trailer
drivers, and he offered to let the alleged discriminatees train at
Leatherwood Mine, using new tractor-trailers that he was buy-
ing. When asked why he made this offer, Baker replied: “I felt
like I was going to need them.” Baker testified that he told the
applicants who did not have class-A licenses:

I would be glad for you guys to go up there [to Leath-
erwood] and I’ll put you in these trucks on a Sunday when
they are not working, so you can learn how to drive these
tractor and trailers, so that whenever they come in, ‘til I
can put you guys to work.

Baker testified that he would have put the alleged discrimina-
tees with other drivers who were experienced in driving tractor-
trailers during some Sunday and, if the alleged discriminatees
had taken advantage of this training offer, within a week:

16 On rebuttal, Hurley denied that he was inebriated when he ap-
proached Baker; however, I credit Baker’s testimony that Hurley ap-
peared inebriated.
they would have been prepared to drive the tractor and
trailers. I think that they would have been better than some
that I have had to hire that have drove tractor and trailers
for me down here that I have had problems with getting
out to work and so on, these younger guys, that I didn’t
want to hire that did have experience. I’d rather have the
older guys.

(Baker testified that Napier and other of the alleged discrimina-
tees were older employees for whom he had genuine feelings.)
After giving this testimony, however, Baker was asked if he
would have hired alleged discriminatee Campbell after Camp-
bell had gone to the school to get training to secure his class-A
license; Baker replied that he would not because: “He didn’t
have any experience in driving a tractor and trailer.”
Baker further testified that, after the Respondent received the
initial applications, he told Hall to call all of the applicants and
tell them to go to the July 15 safety-training class because: “I
didn’t know how many of them I was going to need or which
ones I was going to hire at that time, but I wanted all of them to
be there so that they would be prepared to go when we needed
them. I felt like we would, definitely, going to be needing them
and we would have that little part of it behind us.”
Baker testified that he hired 10 drivers on July 16, the Re-
spondent’s first day of operations at the Starfire Mine (and 1
day before he received the Union’s “Preferential Hiring List”).
Baker testified that the circumstances of these hirings were: (1–
2) Steve Baker and Charlie Baker are his two sons; (3) Manuel
Davis (who, again, is named on the Union’s “Preferential Hir-
ing List,” but is not an alleged discriminatee), talked to Baker
“several times” about being hired; (4) Irwin Combs (not alleged
discriminatee Mike Combs) was hired because his mother
worked at a dry cleaners that Baker owns and, according to
Baker, “she wanted me to hire her son and I hired her son.” (5–
7) James Noble (not alleged discriminatee Jerry Noble), Carl
Gray and Virgil Williams had driven trucks for Baker in the
past. (8–9) Freddie Campbell and Max Sizemore,“might have”
been recommended for hire by Noble; and (10) Jeffrey Skiles,
according to Baker, was “kind of a personal friend of mine.”
Baker further testified that on July 22 he hired (11) Hubert
(Gene) Begley because he was, according to Baker, “born and
raised just across the hill from where I was and I knowed
him.”17 As noted, the Respondent produced a list of former
employees of the Leatherwood Mine who were hired at the
Starfire Mine, by months, from July 1997 through May 1998.
Of the 11 employees who are named in this paragraph, only
Steve and Charlie Baker are named on that list.
Baker testified that after the first week of operations he
turned the hiring responsibilities over to one Todd Daniels.18
Hall’s list shows that the following Leatherwood employees (in
addition to Charley and Steve Baker) were hired in July, appar-
ently by Daniels: (12) Ronald Folmsbee, (13) Walter Craig
Sizemore, (14) Mitchel Farler, and (15) Gary Wilkerson. Al-
17 Baker gave the date for the hiring of Begley on cross-examination.
18 Daniels’ title, if any, is not disclosed in the record. Daniels left the
Respondent’s employ sometime during September. Daniels did not
testify; the Respondent showed that it had subpoenaed Daniels for the
hearing, but he did not appear.
GLENN’S TRUCKING CO. 889
though the parties stipulated that the Respondent hired 16
truckdrivers in July, neither party offered evidence to explain
who the 16th employee was, or the circumstances of, or the
reason for, that hiring.
When Gilliam was hired, he began taking part in the hiring
processes. One of the persons whom Daniels and Gilliam hired
in September was Dean Hoskins.19 Hoskins was hired as a me-
chanic, but after a few weeks Baker assigned Hoskins to do the
hiring, along with Gilliam (and Daniels quit). Baker testified
that the reason for giving responsibility for hiring to Hoskins
was that Hoskins was from the area and knew “all” of the driv-
ers in the area.
As previously noted, Baker admitted that at his July 17 meet-
ing with Dixon, Napier, and Hayes, he was told that the Un-
ion’s “Preferential Hiring List” named drivers who had
“worked with the Union” and whom the Union wanted the
Respondent to hire. Baker testified that after the meeting he
told Hall to file the Union’s “Preferential Hiring List” with the
applications that she had previously taken. When asked if he
ever saw the Union’s “Preferential Hiring List” again, Baker
replied: “I didn’t pay any attention to the list.” (The copy of the
list that Baker received from the Union on July 17 was not
offered by either party, and what ultimately happened to it is
not disclosed in the record.) Baker did not deny telling Dixon at
that meeting that all of the drivers on the list should get their
class-A licenses “immediately.”
Baker testified that at the August 20 meeting: “I had very
few words to say to [Dixon] because I felt like that Jerry [Gil-
liam] was a better hand to talk to him than I was, and I let Jerry
do most of the talking.” Baker did testify that at the August 20
meeting he offered Napier a job.
Baker was asked what had occurred at his August 29 meet-
ing with Dixon and Gilliam, and he testified:

The only thing that was said at that time as far hiring
was concerned––Me and Jerry [Gilliam] and Mr. Dixon
was together. Mr. Dixon told me, he says, “Fellows, let me
tell you guys. If you guys will hire these two. If you guys
will hire Napier and Mike [Hays], then the hell with the
rest of them. I’ve been aggravated with these [on the Un-
ion’s “Preferential Hiring List”] as long as I want to be.
Hire them two and don’t worry about the rest of them.”
Those are the very words that he said. . . .
I told Jerry at that time to hire both of them. And, fur-
thermore, I told Mr. Dixon to tell them to come on to the
job.

Baker was specifically asked if he ever told Dixon that he was
going to hire all of the alleged discriminatees; Baker replied:
“I’ve not told anybody I was going to do anything except hire
people as we needed them. I didn’t say I was going to do ‘all’
of anything.”

19 Baker and Hoskins testified that Hoskins was hired in August. Ho-
skins, however, testified twice that Ray Napier was hired before he
was. Because the parties stipulated that Ray Napier was hired on Sep-
tember 8, Hoskins was necessarily hired in September. (Again, records
of who was hired, and when, would have been helpful.)
On cross-examination, Baker reaffirmed that the alleged dis-
criminatees would have had to come to the Hazard liquor store
lot to have been hired by him; when asked if he told Hall to tell
the applicants that they also needed to come to the lot (as well
as going to the safety-training class and getting their class-A
licenses) to be considered for employment, Baker was first
evasive, then he testified that he did so; later, however, he ad-
mitted that he would only have told Hall: “Joan, I’m going to
be over at the whiskey store [lot] here. . . . If anybody comes
there looking for me, tell them that I am over here at the whis-
key store [lot] where we are parking our trucks.” (Hall did not
testify that Baker told her to tell the applicants that they must
come to the Hazard lot or the mine to be considered for em-
ployment; she further did not testify that she did so.) When
asked if he ever had any intention of using the applications that
Hall collected from the alleged discriminatees, Baker replied:
“If I had needed them real bad, I would have called them.”
Gilliam testified that he became employed by the Respon-
dent during the week of August 1, but he did not dispute the
testimony of the General Counsel’s witnesses who testified that
at the July 15 safety meeting Baker introduced him as the indi-
vidual who would be “running” Respondent’s operations at the
Starfire Mine. When Gilliam and Daniels did the hiring,
Gilliam would check to see if applicants had proper safety cer-
tificates; Daniels would place applicants with experienced driv-
ers to see if they could handle a truck. Gilliam continued to
participate in the hiring processes after Hoskins took over
Daniels’ responsibilities in September (for example, Gilliam
testified about hiring Godsey in December).
Gilliam admitted that he knew of the Union’s “Preferential
Hiring List” from the time that he was hired by Baker. Gilliam
testified, however, that the listing of alleged discriminatees
made no difference in his hiring decisions. Gilliam testified that
at some point he placed the applications that Hall had taken at
the Hazard office with applications that were taken at the mine.
(Gilliam did not place a date on this act, but Hall testified that
she gave her applications to Gilliam “three or four weeks” after
the alleged discriminatees appeared at the office on July 11 and
14; therefore, Gilliam took possession of the alleged discrimi-
natees’ applications sometime in early August, or immediately
after he became employed by the Respondent.) Gilliam testified
that, although he hired many applicants at the mine when they
came there to apply, turnover was great, and at times there were
needs for employees when no applicant was present. In such
cases, Gilliam testified, he would review the applications and
call three or four possibly suitable applicants and have them
come to the mine. From interviews of those applicants, he
chose the one (or ones) that he needed.
Gilliam testified that when he was interviewing applicants,
he considered experience and willingness to work long hours.
Gilliam was asked and he testified:

Q. What about the type of license, type of commercial
driver’s license?
A. That would apply too. I would rather have had, at
times, someone Class-A due to I know he could handle the
larger vehicles if we needed it, you know. I think Class-A,
you know, is just a step above being Class-B, which it is.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 890
When you’re on Class-B, you know, you can just haul un-
der the weight limits of Class-B. . . . Well, like I say, that
would probably be one of my first preferences, really, if I
was interviewing and so forth, I would rather have a Class-
A driver.

(Gilliam then contradicted himself by volunteering: “But, if I
wasn’t needing a Class-A, you know, it wouldn’t have no pref-
erence on me, I’d stick with a Class-B guy.” On cross-
examination, however, he reaffirmed that, if he had a choice, he
“probably would” prefer an applicant with a class-A license.)
Gilliam has training in mine safety, and he was in charge of
seeing that employees whom the Respondent did hire had re-
ceived the required Annual Refresher certificates and Newly
Employed Experienced Miner certificates before they worked
at the Starfire Mine. Gilliam testified that there were about 40
employees at the July 15 safety-training class; on cross-
examination, he admitted that such training is usually given
after hiring decisions are made.
Hoskins testified that he began working for the Respondent
in mid-August, but above I have found that it was not until after
September 8 (when Ray Napier was hired) that Hoskins was
hired. Hoskins worked as a mechanic for 2 weeks (or until mid-
to late September) when Baker assigned him to assume
Daniels’ role in doing the hiring along with Gilliam. Hoskins
testified that neither Baker nor Gilliam told him anything about
the Union’s “Preferential Hiring List,” and Hoskins further
testified that he did not know that any such thing existed until
shortly before trial. When he began hiring employees, Hoskins
was not given the applications that Hall had taken from the
alleged discriminatees. Hoskins testified that he started taking
applications from those who came to the jobsite, and he worked
strictly from those until some point in October when the Re-
spondent established an office facility at the Starfire Mine. At
that point, Gilliam brought the applications that Hall had taken
at the Hazard office (including those of the alleged discrimina-
tees) and placed them with applications that Hoskins had taken,
in no particular order.
Hoskins further testified that “many times” he and Gilliam
would hire applicants “on the spot” when they appeared at the
mine, but also “many times” they would resort to the applica-
tions that they had received and “bring” (probably call) the
applicants in for an interview. Hoskins testified that he and
Gilliam would interview applicants together, if Gilliam was
available. Whether Gilliam was available for the interview or
not, Hoskins testified that he “always” sent applicants to Gil-
liam for a review of their safety qualifications.
Hoskins testified that Godsey came to the job from two to
four times seeking work before he hired him. Hoskins denied
that, when he offered Godsey food in the parking lot of
Chaney’s restaurant, he told Godsey that he had been given a
list of employees to hire or not hire. Hoskins further testified
that, in fact, Baker never told him who to hire, or not hire.
On cross-examination, Hoskins testified that from his prior
working experience at Leslie Haulers, and elsewhere, he per-
sonally knew alleged discriminatees Hayes, Brewer, Strong,
Lovins, Cockrell, Ray Napier, Grover Napier, Ronk, Stacy,
Bush, Godsey, Fugate, Combs, and Caudill. Hoskins agreed
that all of those men were good drivers, and Hoskins further
agreed with the blanket proposition that he “would have hired
any of them.” When asked specifically about Napier, Hoskins
vacillated about whether he ever saw Napier’s application when
he went through the stack. Then Hoskins was asked and he
testified:

Q. About how many times would you guess that you
went through those applications that you had on file?
A. Thirty five or forty.
Q. And when you went through them, did you go
through the whole stack?
A. I went from front to back and got the most qualified
driver.

Hoskins further acknowledged that, had he seen the applica-
tions of alleged discriminatees Cockrell, Noble, and Stacy
(which Hall had taken on July 11 or 14), he would have consid-
ered them for employment as tandem drivers. After these ad-
missions, Hoskins was asked on redirect examination:

Q. Did you ever go all the way through the stack of
application forms?
A. Not completely.
Q. When would you stop?
A. I would go from the front of it until I found enough
applicants to fill the spots that I needed.

On further cross-examination, Hoskins was confronted with his
prior testimony that he reviewed all of the applications when-
ever he sought to hire a new driver. Although given ample op-
portunity to explain, Hoskins could do no more than repeat that
he did not review all applications before calling applicants in.
Further on cross-examination, Hoskins testified that he
would not have considered any applicant for a tractor-trailer
position unless his application listed a great deal of experience
as a tractor-trailer driver. Hoskins admitted that, in cases where
an application was not specific about how much tractor-trailer
driving the applicant had done in the past, he did not call the
applicant to ask.
As previously noted, the General Counsel alleges that the
Respondent delayed employment of, or denied employment to,
23 of the 25 former employees of Chaney Trucking and Leslie
Haulers who were named on the Union’s “Preferential Hiring
List.” The General Counsel does not allege that the Respondent
discriminated against all employees of Chaney Trucking and
Leslie Haulers. Nevertheless, the Respondent offered into evi-
dence a collection of 30 applications (and personnel files)
which the Respondent represented as being those of all former
Chaney Trucking and Leslie Haulers employees whom the
Respondent did hire as drivers.20 One of the applications that
the Respondent offered in this group was apparently included
by mistake; this was the application of one Jesse Darler for
whom there is no evidence that he ever worked for the Respon-
dent. (The safety certificates that were included in Darler’s file
refer only to other employers; moreover, on the face of his

20 When counsel was offering these applications, he stated that he
was including a number 35. In fact, the Respondent submitted no Exh.
35.
GLENN’S TRUCKING CO. 891
application someone wrote: “Called 1–13–98. Wasn’t inter-
ested.”) Also erroneously included in the Respondent’s offering
was the application of alleged discriminatee Hayes who, it is
undisputed, never worked for the Respondent. Relevant ele-
ments of the remaining 28 files that were offered by the Re-
spondent as those of former employees of Chaney Trucking and
Leslie Haulers whom it hired are:

(1) Charles Ball (who was hired about October 6, ac-
cording to a note on his application) had a class-A license,
but his application reflects no tractor-trailer experience.
(2) Hubert Begley (who was hired on July 22, accord-
ing to the testimony of Baker) had a class-A license, but
he had driven for Chaney Trucking for the last 2 years;
apparently this was as a tandem driver because, again,
Chaney had no tractor-trailers.
(3) Alleged discriminatee Combs (who was hired on
March 9, 1998, as stipulated) possessed a class-A license,
but on his application he wrote that he had driven only a
tandem for Chaney Trucking for 4 years. Also, Hall wrote
on his application: “Can drive a tractor-trailer, but has
been a while. Prefers tandem.”21
(4) Alleged discriminatee John Fugate (who was also
hired on March 9, 1998, as stipulated) had a class-A li-
cense, but he listed no experience at driving a tractor-
trailer. Hall wrote on Fugate’s application, “Can drive
tractor-trailer, tandem and rock truck.” (A rock truck is not
a tractor-trailer, according to Baker.)
(5) Robert Fugate (who was hired about December 18,
according to an INS form that he signed) had no commer-
cial driver’s license. On his application Fugate listed his
experience as that of a “Highwall” driver. (A Highwall
Miner is an off-the-road vehicle that is used at points
where coal is mined by boring into open coal seams, ac-
cording to Baker.)
(6) Davis (who was hired on July 16, as stipulated) had
only a class-B license, and he had experience only in driv-
ing tandems. Hall wrote on his application, “Can only
drive tandem.” (Again, Davis was listed on the Union’s
“Preferential Hiring List,” but he is not an alleged dis-
criminatee.)
(7) Durham (who was hired on August 8, as stipulated)
had a class-A license, and he listed extensive tractor-trailer
experience. (Again, Durham was listed on the Union’s
“Preferential Hiring List,” but he is not an alleged dis-
criminatee.)
(8) Alleged discriminatee Godsey (who was hired on
December 15, as stipulated) stated on his application that
he had a class-A license, but he had no experience in driv-
ing tractor-trailers.
(9–11) Carl Gray (who was hired on July 16, accord-
ing to Baker) and Billy Holland and Andy Miller (whose
hire dates cannot be determined) each possessed class-A
licenses, but there is no indication in their files that they
had any previous experience in driving tractor-trailers.

21 Again, the General Counsel contends that alleged discriminatees
who were hired by the Respondent were hired belatedly and that the
delays in hiring violated Sec. 8(a)(3).
(12) Samuel Hollifield (who was hired about October
10, according to an INS certificate in his file) had a class-
A license, and he had experience with several trucking
firms, but his application reflects no experience in driving
tractor-trailers.
(13) Kenneth Grigsby (who was hired on February 15,
1998, according to certificates in his file and a handwritten
notation on his application) had no commercial driver’s li-
cense; his application contains the notation that he was
hired to drive a Highwall Miner.
(14) Ray Napier (who was hired on September 8, as
stipulated) possessed only a class-B license.
(15) Billy Joe Noble (who received a Newly Employed
Experienced Miner’s certificate on July 16 as an employee
of the Respondent) had only a class-B license.
(16) James Noble (who was also hired on July 16, ac-
cording to Baker’s testimony and a certificate in his file)
possessed a class-A license, but his only experience was
with Chaney Trucking, and therefore in tandem-driving
only.
(17) Michael Pennington (who was hired in October
according to testimony of Gilliam, but whose application
is dated May 13, 1998, as mentioned above) had only a
class-B license.
(18) Timothy Roberts (whose date of hire cannot be
determined) had only a class-B license and his application
indicates that he was only a “tandem” driver.
(19) Alleged discriminatee Ronk (who was hired on
September 8, as stipulated), possessed only a class-B li-
cense.
(20) Mack (or Max) Sizemore (who was hired on July
16, according to Baker’s testimony) did possess a class-A
license, but Hall wrote on his application “very little ex-
perience on t/t [tractor-trailer].” Sizemore, moreover,
listed only tandem experience on his application.
(21) Jeffrey Skiles (who was hired on July 16, accord-
ing to Baker’s testimony) did possess a class-A license,
but he listed as his experience only “truck driver,” and
there is no indication that he had ever driven a tractor-
trailer.
(22) Ira Southwood (who was hired in December, ac-
cording to testimony by Gilliam) had a class-B license,22
and his application lists only tandem experience.
(23) Joseph Southwood (whose date of hire cannot be
determined) also had only a class-B license, and his appli-
cation listed only tandem experience.
(24) Ola Stacy (whose date of hire cannot be deter-
mined) had no proof of possession of a commercial
driver’s license at the time that she applied, and there is no
evidence that she subsequently obtained one.
(25) Carl Vanover (who was hired about July 31, ac-
cording to a certificate in his file) possessed only a class-B
license, and his previous 16 years of experience was with
Chaney Trucking (which, again, only used tandems).
22 Contrary to the effect of an exchange between counsel for the
General Counsel and Hall at Tr. 316, a copy of Southwood’s license is
in evidence.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 892
(26) Virgil Williams (who was hired on July 16, ac-
cording to Baker’s testimony) possessed a class-A license,
but he had driven only tandems for the previous 5 years.
(27) Marcus Wooten (who was hired about August 7,
according to a certificate in his file) had only a class-B li-
cense.
(28) Hunter Yeary (who was hired by the Respondent
in October, according to Gilliam) had no proof of posses-
sion of a commercial driver’s license.

In addition to these, during cross-examination of Gilliam the
General Counsel examined the files of other employees who
were hired by the Respondent (i.e., others who were not former
employees of Chaney Trucking or Leslie Haulers). That exami-
nation disclosed that during October the Respondent hired Tim
Deton who had only a class-B license, and it hired Donald Hol-
lifield who had no commercial driver’s license. In December,
the Respondent hired Hubert Hylton as a driver although he had
a only class-B license. Also in December, the Respondent hired
Jerry Jones and Shawn Baker although neither had a commer-
cial driver’s license.
D. Credibility Resolutions and Conclusions
The prima facie case
In Wright Line,23 the Board set forth the test to be employed
in cases where the General Counsel alleges 8(a)(1) and (3)
violations that turn on employer motivation. First, the General
Counsel must make a prima facie showing sufficient to support
an inference that known protected conduct was a motivating
factor in the employer’s action. If General Counsel does estab-
lish a prima facie case, the burden then shifts to the employer to
demonstrate that it would have taken the same action notwith-
standing the known protected conduct of the alleged discrimi-
natees. Specifically in cases where unlawful refusals to hire
employees are alleged, the required elements of the prima facie
case are as follows: (1) an application by each alleged discrimi-
natee; (2) refusals to hire each alleged discriminatee; (3) a
showing that each alleged discriminatee was a union member or
sympathizer; (4) a showing that the employer knew of or sus-
pected such membership or sympathy; (5) availability of at
least some jobs for the applicants; and (6) proof of a degree of
animus against the known union membership or sympathy suf-
ficient to support an inference that protected conduct was a
motivating factor in the employer’s action in refusing to hire
each alleged discriminatee.24 The initial inquiry in this case
therefore is whether the General Counsel has presented a prima
facie case that the Respondent refused, at least for some period
of time, to hire the alleged discriminatees whose names ap-
peared on the Union’s “Preferential Hiring List.”
(1) The parties stipulated that each of the 23 alleged dis-
criminatees applied for work on either July 11 or 14. (2) The
23 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982); approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
24 See Hoboken Shipyards, 275 NLRB 1507, 1514 (1985), citing Big
E’s Foodland, 242 NLRB 963, 968 (1979), and Pan American Electric,
326 NLRB No. 7 (1999) (not reported in Board volumes), citing GM
Electrics, 323 NLRB 126, 128 (1977).
parties further stipulated that none of the alleged discriminatees
was hired by the Respondent until September 8 when the Re-
spondent hired Ronk and Ray Napier. By that point, however,
the Respondent had already hired at least 44 other truckdrivers
(16 in July, and 28 in August). Thus, at least for a time, the
Respondent refused to hire all of the alleged discriminatees. (3
and 4) Knowledge of the prounion sympathies of the alleged
discriminatees is not an issue; as Baker admitted, Dixon,
Napier, and Hayes told him on July 17 that the applicants who
had been named on the Union’s “Preferential Hiring List” had
“worked with the Union.” Hoskins denied having ever seen the
Union’s “Preferential Hiring List,” but Gilliam admitted that he
knew of it from the start of his employment at the first of Au-
gust. I do not believe Hoskins’ testimony that he never saw a
copy of the Union’s “Preferential Hiring List.” Even if that
testimony were true, however, Baker did the hiring initially,
and Gilliam testified that he did the hiring with Daniels from
the time that he was hired about August 1 until mid- to late
September, and Hoskins testified that Gilliam “always” did the
hiring along with him thereafter, at least as far as the safety
reviews of the applicants were concerned. The necessary ele-
ment of knowledge was therefore embodied in Gilliam who
was a part of all hiring decisions, at least after August 1. Finally
on this point, although Baker testified that he turned the hiring
over to Daniels after the first week of operations, or about July
23, Baker did not testify that he somehow withheld the Union’s
“Preferential Hiring List” from Daniels, and there is no basis
for finding that he did. Therefore, even if Hoskins’ was truthful
in his testimony that he never saw the Union’s “Preferential
Hiring List,” others who did see it were involved in all of the
hiring decisions of the Respondent. (5) The parties stipulated
that the Respondent hired 141 employees from the beginning of
its operations at the Starfire Mine on July 16 through May
1998. Discounting the 10 whom Baker testified that he hired on
July 16, the day before he received the Union’s “Preferential
Hiring List,”25 the General Counsel has still shown that there
were at least 130 truckdriving jobs available from July 17
through the termination of the Respondent’s operations at the
Starfire Mine in late 1998. The remaining prima facie element,
therefore, is animus.
For evidence of animus the General Counsel heavily relies
on Godsey’s testimony that Baker and Hoskins told him that
Chaney Trucking and Cypress had given Baker a list of em-
ployees to hire, and not hire, and that Baker told him that Cy-
press would not have given him a contract if he had hired a
“majority” of Chaney Trucking employees. Baker and Hoskins
showed themselves not to be trustworthy witnesses on many
other accounts, and their denials of this testimony are necessar-
ily suspect. Nevertheless, as quoted above, without attempting
to exhaust Godsey’s recollection, the General Counsel led God-
sey directly to “majority,” the key word in this critical part of
25 Baker was not a truthful witness, and the record only has his bare
statements that he hired 10 employees on July 16; nevertheless, the
General Counsel did not object to Baker’s being led to the names of
those witnesses (with a document that was not offered into evidence),
and the General Counsel did not offer evidence of when those 10 em-
ployees were actually hired, if not July 16.
GLENN’S TRUCKING CO. 893
his testimony.26 Godsey had not been making a favorable im-
pression before he got to this point in his testimony, and the
General Counsel’s leading appeared to me to be a tacit admis-
sion that Godsey could not be credited without leading. More-
over, there is no logical sense to Godsey’s testimony that Baker
told him that Cypress “wouldn’t have given him a contract” if
he had hired a majority of Chaney Trucking employees; Cy-
press did give Baker the contract on July 10,27 and it was after
that point that Baker, many times, represented to the alleged
discriminatees and the Union that he was going to hire the em-
ployees named on the Union’s “Preferential Hiring List.” Baker
presumably would not have made those representations if Cy-
press had threatened not to give him the contract, and it is ex-
ceedingly unlikely that Baker would have told Godsey that
Cypress did so. Finally, Godsey’s admission that Baker also
told him that he would hire “who he wanted to” is hardly con-
sistent with the inference that the General Counsel seeks to
draw from his testimony. Godsey’s testimony of what Baker
and Hoskins told him, therefore, is not probative evidence of
animus.
The necessary element of animus is found, however, when
one looks at the number of applicants on the Union’s “Preferen-
tial Hiring List” who were hired, or not hired, and compares
that number to the total number of applicants who were hired.
The parties stipulated to the number of employees who were
hired, by months. The Board has held that employers may law-
fully prefer former employees, and Respondent also introduced
a summary of how many former Leatherwood Mine employees
it hired, also by months. These figures are displayed in the fol-
lowing table along with the numbers (and names) of the appli-
cants whose names appeared on the Union’s “Preferential Hir-
ing List” who were hired.

Month Em-
ploy-
ees
Hired
(Less)
Former
Leath-
erwood
Differ-
ence
On Union
List Hired
1997
July 16 6 10 1 (Davis)
August 28 6 22 1 (Durham
September 9 2 7 2 (R.
Napier,
Ronk)
October 16 3 13 0
November 6 2 4 0
December 14 0 14 1 (Godsey)
1998
January 11 3 8 0
February 8 1 7 0
March 12 0 12 2 (Combs,
Fugate)
April 9 0 9 0

26 This was true, even though during the pretrial conference, I had
warned both sides against leading witnesses to key words and phrases
before exhausting their recollections.
27 The contract is not in evidence, but the record has more than
Baker’s testimony on this point; Dixon admitted that he heard about the
contract-signing on July 10 from another union representative.
May 12 2 10 0
Totals 141 25 116 7
Totals
(less)
July 1997
125 19 106 6

I enter the row that is designated “Totals (less) July 1997” be-
cause the numbers for that month may fairly be disregarded.
This is because: (1) Baker testified (without rebuttal) that it was
on July 16 that he hired 10 of the 16 employees who were hired
that month; July 16, of course, was one day before Baker re-
ceived the Union’s “Preferential Hiring List”; (2) four of the six
others were former Leatherwood employees; (3) the two other
employees who were hired in July (Begley and the unidentified
16th employee) are too few in number to raise an inference of
animus. Therefore, the number of employees hired in July is
not, as the General Counsel contends, evidence of unlawful
animus. Also, Davis was on the Union’s “Preferential Hiring
List,” but Baker named Davis as one of the employees whom
he hired on July 16, the day before he received the list. There-
fore, the Respondent’s hiring Davis is not, as the Respondent
contends, evidence that it harbored no animus against the pro-
tected activities of the employees who were named on the Un-
ion’s “Preferential Hiring List.”
Disregarding July (and the hiring of Davis in July), the above
table shows that, overall, the Respondent hired 125 employees,
19 of whom were former Leatherwood Mine employees, but
106 who were not; of the 106 non-Leatherwood employees (as
I shall call them), only 6 of the 24 (again, excluding Davis)
applicants who were named on the Union’s “Preferential Hiring
List” were ever hired. Looking at it another way, by subtracting
the total of vacancies that were filled by those named on the
Union’s “Preferential Hiring List” from the total of vacancies
that were filled by non-Leatherwood employees, there were
exactly 100 vacancies that could have been, but were not, filled
by other applicants who were on the Union’s “Preferential Hir-
ing List.” The possibilities of the Respondent’s lawfully filling
100 vacancies without hiring one employee on the Union’s
“Preferential Hiring List” are, at minimum, statistically remote.
Moreover, reviews of statistics for individual months for
which records were produced further demonstrate the meager
possibilities that lawful selection processes were employed. In
August, the first full month after the Respondent received the
Union’s “Preferential Hiring List,” the Respondent hired 28
employees; 6 of these were former Leatherwood employees,
but 22 were not; of these 22 non-Leatherwood employees, only
1 employee whose name appeared on the Union’s “Preferential
Hiring List” (Durham) was hired. The Respondent has empha-
sized that it rejected 100 applicants in addition to the alleged
discriminatees, but it has failed to show that any of the 100
other rejected applicants had applied in August, or before. In
fact, Baker’s secretary Hall testified that she could find no re-
jected applications that were filed at the beginning of opera-
tions, other than those of the alleged discriminatees. Therefore,
the August figures, alone, are evidence of a discriminatory
motive. Admittedly, in September two of the seven non-
Leatherwood employees who were hired (Ronk and Ray
Napier) had been named on the Union’s “Preferential Hiring
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 894
List,” but in October the Respondent hired 13 non-Leatherwood
employees, and it hired no employees who were on the Union’s
“Preferential Hiring List.” In November the Respondent hired
four non-Leatherwood employees, but it hired no employees
who had been listed on the Union’s “Preferential Hiring List.”
In December, the Respondent hired 14 non-Leatherwood em-
ployees, but it hired only one employee (Godsey) who was on
the Union’s “Preferential Hiring List.” From January through
May 1998, the Respondent hired 45 non-Leatherwood employ-
ees, but the names of only 2 of those hired (Combs and Fugate)
had appeared on the Union’s “Preferential Hiring List.” These
extreme ratios clearly demonstrate animus against the employ-
ees whose names had appeared on the Union’s “Preferential
Hiring List.”28
Finally on this issue, the Respondent contends that the fact
that it ultimately hired seven of the employees on the Union’s
“Preferential Hiring List” defeats any contention that it had
unlawful animus toward the protected activities of any appli-
cants. Again, immediately to be disregarded is the hiring of
(non-alleged-discriminatee) Davis which occurred on July 16,
the day before the Respondent had even received the Union’s
“Preferential Hiring List.” That is, the Respondent did not
know that Davis was on the Union’s “Preferential Hiring List
when it hired him, and the Respondent’s hiring of Davis proves
nothing. Admittedly, nonalleged discriminatee, and listed pro-
union employee, Durham was hired within 3 weeks of the Re-
spondent’s receiving the Union’s “Preferential Hiring List,” but
alleged discriminatees Ray Napier and Ronk were not hired
until September 8. The Respondent therefore delayed the hiring
of Ray Napier and Ronk at least through the full month of Au-
gust during which it hired 28 others (22 of whom were non-
Leatherwood employees). From July 17 until December 15, the
Respondent delayed the hiring of Godsey, but during the Au-
gust-November period alone, the Respondent hired 59 other
employees instead of Godsey, 46 of whom were non-
Leatherwood employees. From July 17 until March 9, 1998, the
Respondent delayed the hiring of Fugate and Combs, but dur-
ing the period from August 1997 through February 1998, the
Respondent hired 92 employees other than Combs and Fugate,
75 of whom were non-Leatherwood employees. From all of this
I conclude that the Respondent’s hiring of seven of those who
were named on the Union’s “Preferential Hiring List” is not
evidence of lack of animus. Rather, the Respondent’s delays in
hiring five of those who are named on the Union’s “Preferential
Hiring List (while, at the same time, hiring so many other ap-
plicants who were not former employees of the Respondent)
constitute further evidence of animus.
I therefore conclude that the General Counsel has presented a
prima facie case of unlawful discrimination against the alleged
discriminatees, and the Respondent’s defenses must be exam-
ined.
28 Citing San Angelo Packing Co., 163 NLRB 842, 846 (1967), and
Continental Radiator Corp., 283 NLRB 234, 248 (1987), the Board in
Fluor Daniel, Inc., 304 NLRB 970 (1991), found that such a “blatant
disparity” in the selection of applicants supported a finding of a prima
facie case of discrimination.
The defenses
The Respondent contends that it did not offer employment to
the alleged discriminatees, or it delayed offering them employ-
ment, because: (1) they were not persistent in seeking employ-
ment; (2) they were not qualified tractor-trailer drivers; and (3)
the applications of those who were qualified to drive tandems
were passed over during honest processes of random selection.
First defense—The Respondent’s “persistence” policy. In
Irwin Industries, 325 NLRB 796 (1998), the Board held that
there was no violation where an employer showed that: (a) it
had “historically” given preference to applicants who were
persistent; and (b) the applicants whom it did hire showed per-
sistence in pressing their applications by repeatedly asking for
employment; but (c) the alleged discriminatees in that case
showed no such persistence. Relying on Irwin Industries, the
Respondent first contends that the alleged discriminatees in this
case were delayed or denied employment because they failed to
press their applications by coming, sua sponte, to the liquor
store lot in Hazard where Baker stored trucks, or to the Starfire
Mine itself, and asking for a second interview (after they had
already interviewed with Hall).
Aside from the fact that the alleged discriminatees continued
to press their applications through the Union,29 this contention
is immediately defeated by certain undenied testimony by al-
leged discriminatee Brewer. Brewer testified that, at one point
after he submitted his application, he met Baker at the liquor
store lot. Brewer testified that he asked Baker for employment;
Baker wrote his name on a piece of paper, but Brewer heard
nothing further from the Respondent until he received the stipu-
lated offer of September 1998. On brief, the Respondent offers
no suggestion of why Brewer’s approach to Baker at the liquor
store lot was not a sufficient pressing of his application to war-
rant his employment. The failure of the employees who were
listed on the Union’s “Preferential Hiring List” to submit, sua
sponte, to a second interview, therefore, appears to have made
no real difference to the Respondent. Even discounting
Brewer’s testimony, however, there is ample evidence that the
Respondent’s “persistence” policy was nothing more than an
educated afterthought.
Baker testified that he had been hiring employees for about
50 years, but he did not testify that he had ever before required
employees to return time and again to press their applications if
they were not hired upon their first application. Moreover, it is
quite apparent that Baker did not actually adopt such a policy
for his hiring at the Starfire Mine; if he had done so, he would
have told Daniels, Gilliam and Hoskins about the policy, and he
would have testified that he had done so. Baker did not so tes-
tify. Additionally, Gilliam did not mention persistence as a
factor in hiring qualifications, and Hoskins testified (when led)
only that persistence was “significant”; Hoskins did not testify
that he considered lack of persistence to be a disqualification.
29 Again, on July 17, August 20 and 29, the Union met with Baker to
request the hiring of the alleged discriminatees. By subsequent corre-
spondence Dixon did the same. On September 23, Gilliam replied to
that correspondence by stating that the Respondent had already begun
hiring the applicants who were named on the Union’s “Preferential
Hiring List.”
GLENN’S TRUCKING CO. 895
Further, Gilliam and Hoskins testified that they did call several
applicants who had filed applications and left, but they did not
testify that they called only those who had returned to the job
site to ask for work thereafter. All of which is to say that the
Respondent’s “persistence” policy never existed, except as an
afterthought constructed for the purpose of defense in this case.
Assuming, however, that the Respondent’s “persistence”
policy did exist at some point before trial, the Respondent is ill-
position to assert that policy here because: (a) Baker did not tell
the alleged discriminatees that they needed to be interviewed at
the jobsite, or at the liquor store lot, as well as at the Hazard
office, and (b) Baker gave the alleged discriminatees every
reason to believe that further application efforts were not neces-
sary.
a. Baker did not tell the alleged discriminatees that they needed
to be interviewed at the jobsite, or at the liquor store lot, as
well as at the Hazard office
Baker did testify that at one point while Hall was interview-
ing applicants he told the alleged discriminatees that they also
needed to return for a second interview with him at the Starfire
Mine, or the liquor store lot, but this testimony was false. When
Baker was first asked, in non-leading fashion, what he told the
alleged discriminatees, he testified only: “I told them that we
would be needing a bunch of drivers, it looked like. Several of
them told me that they had several years [of driving experience]
in this and that. I told them that we would most certainly be
able to use them, I felt like.” Baker did not then testify that he
qualified his statements to the alleged discriminatees by also
telling them that they additionally needed to make a trip to the
mine and be interviewed again. The need for such testimony
was sensed by the lawyer, however, and he asked Baker the
leading question: “Did you ever tell them or tell anyone that
one of the conditions of getting hired was to show up to work
or show up on the job?” At first, Baker ignored the lead and
responded: “Anybody that knows me, that has ever worked for
me, has showed up on the job and talked to me and been there
ready to work, if they wanted to work for me.” For that, the
Respondent’s counsel felt constrained to admonish Baker and
to firmly repeat the lead: “That is not my question, Mr. Baker.
My question was, did you ever tell anybody, these people who
put in applications or Mr. Dixon or anyone, that if they wanted
to get hired, they had to show up on the job?” Then, finally
seeing the light, Baker gave forth with the above-quoted seven-
sentence exposition of how, in every way imaginable, he had
told the alleged discriminatees to keep in touch with him. If any
part of that detailed recital had been true, Baker would have
mentioned it the first time he was asked, “What did you tell
them?” Also, if Baker’s extensive answer had been even par-
tially true, he would have responded with at least some of it
when counsel first attempted to lead him. Instead, counsel had
to admonish Baker that he was not answering his leading ques-
tion, and he led Baker again. Finally, Baker grasped the signifi-
cance of the leading questions and gave his seven-sentence
answer, which answer was palpably false.
Also, Baker was asked on cross-examination if he told Hall
to tell the applicants that they needed to come to the mine (or
the liquor store lot) for a second interview. Baker was first
evasive; then he said that he did; then he admitted that he only
told Hall to tell applicants where they could find him if they
asked. At minimum, Baker’s vacillation would not have oc-
curred if there had been any truth to his testimony that he had
previously had a policy of requiring persistence by applicants
and that he categorically told the alleged discriminatees about
that policy.
Finally on this point, Baker was not a truthful witness, but
even if his testimony is credited it was no more than that he
only told some of the applicants who came to the Hazard office
that they also needed to come to the Starfire Mine and undergo
a second interview. Certainly, Baker did not identify any of the
alleged discriminatees as being present when he allegedly an-
nounced his “persistence” policy. Moreover, the alleged dis-
criminatees appeared at the Hazard office on two dates, July 11
and 14, but Baker did not testify that it was more than once that
he announced his policy. Also, it is undisputed that applicants
other than the alleged discriminatees came to the Hazard office,
and Baker could well have been speaking only to them.
b. Baker gave the alleged discriminatees every reason to be-
lieve that further application efforts were not necessary
As quoted above, Baker on cross-examination admitted that
he told the alleged discriminatees that he would be hiring them
as he needed them. Baker’s making this statement was hardly
surprising; Baker knew that most of the alleged discriminatees
had worked for Chaney Trucking at the Starfire Mine, and he
obviously wanted to take advantage of their experience there.
Additionally, according to the above-quoted testimony of the
General Counsel’s witnesses, which testimony I credit, on July
11 (or July 14, or both) Baker represented to the alleged dis-
criminatees that the only condition to his offer to employ them
was that they must secure their class-A licenses. The alleged
discriminatees relied on Baker’s representation to their detri-
ment (the time and expense involved) and did secure their
class-A licenses (the only exceptions being Ronk and Ray
Napier who did ultimately get hired and Mullins who did not).
In a fundamental sense, therefore, Baker assured the alleged
discriminatees that he was contractually obligated to hire them
without their doing anything more––such as come to the Star-
fire Mine and submit to another interview, at least without be-
ing called to do so.
Also, on July 15, Baker (through Hall) convened all appli-
cants for the safety-training class. That class, as Gilliam admit-
ted, was to secure for the former Chaney drivers Newly Em-
ployed Experienced Miner certificates. The nature of such
training, of course, would have caused the alleged discrimina-
tees to believe there was no other predicate for their being
hired, except securing their class-A licenses and waiting by the
telephone. Moreover, at the July 15 session, Gilliam told all
applicants that they would be put to work in groups of five, as
Baker got his trucks in service. Baker, himself, told the appli-
cants that they would be driving safe trucks, and if they found a
truck to be unsafe, they “were not to leave the parking lot.”
These statements and actions would have affirmatively created
in the minds of the alleged discriminatees the impression that
they need do nothing else to secure employment, except secure
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 896
their class-A licenses, before being called to report to work or,
at least, before being called for further interviews.
Also on this point, Baker was not lawfully required to deal
with the Union, but he did. In fact, Baker first contacted Dixon
to tell him that he was one of the bidders for the Starfire Mine
contract and that he wanted to work things out with the Union.
On July 17, Baker told Dixon, Napier and Hayes that he had no
intention of fighting the Union (as Chaney had done), that he
had intentions of hiring all of the former Chaney drivers, that
all they needed to do was secure their class-A licenses, and that
the alleged discriminatees could use the Respondent’s trucks at
the Leatherwood Mine to practice for the examination. On Au-
gust 20, Gilliam told Dixon, Napier and Hayes that he was
going to start hiring those on the Union’s “Preferential Hiring
List” as soon as he got “familiar” with the job. On August 29,
Baker told Dixon that he could thereafter hire at least three
employees out of five from the Union’s “Preferential Hiring
List,” and that Napier should come back to the Hazard office
for an interview.30 Dixon thereafter tried to contact the Respon-
dent, but his calls and letters went unanswered, except for a
letter of September 26 in which Gilliam stated that: “We have
already started hiring employees on the preferential hiring list
as of this date.” Therefore, the Respondent affirmatively gave
the Union, as well as the alleged discriminatees, the impression
that no further interviews were necessary.31
In summary, the Respondent’s first defense is to be rejected
because it has not shown that its “persistence” policy existed at
any time before the trial in this case; even if the policy did pre-
viously exist, the Respondent has, by word and by deed, as-
sured the employees and the Union that it would not be applied
in this case. Respondent’s invocation of Irwin Industries, there-
fore, is nothing short of a cynical attempt to escape the lawful
consequences of its actions.
Second defense—The alleged discriminatees’ qualifications.
I have found above that all 23 of the alleged discriminatees
except Mullins, Ronk, and Ray Napier possessed class-A li-
censes when they applied for work on July 11 or 14, or they
secured class-A licenses immediately after they applied, and
they did so at Baker’s instructions. The Respondent contends,
however, that, even though the alleged discriminatees had se-
cured their class-A licenses, they were not experienced in driv-
ing tractor-trailers.
Not all of the personnel files of all of the drivers that the Re-
spondent hired were placed in evidence, but the Respondent did
place in evidence the files of 28 of the drivers whom it did hire.
All 28 had most recently worked for Chaney Trucking or Leslie
Haulers, both of which used only tandems. As listed above,
only Durham stated on his application that he had tractor-trailer

30 Baker testified that on August 29 Dixon said that if the Respon-
dent would hire Napier and Hayes, “to hell with the rest of them.” If
there had been any truth to this testimony, it would have been corrobo-
rated by Gilliam who was also present.
31 The Respondent contends that Hall was only an office clerical
who had no authority to hire employees, even though she interviewed
them. The alleged discriminatees, however, did not know that; more-
over, she had called alleged discriminatees to come to the safety-
training class, and they had every reason to believe that she also would
have called again if further interviews were necessary.
experience. The remaining 27 applications clearly show that the
applicants who filed them had no tractor-trailer experience,
even if some of them did possess class-A licenses. Indeed, four
of the former Chaney drivers who were hired by the Respon-
dent instead of the alleged discriminatees had no commercial
driver’s licenses: Robert Fugate, Grigsby, Ola Stacy, and
Yeary.32 Moreover, as also shown above, of five additional
non-Chaney drivers whom the Respondent hired instead of the
alleged discriminatees two (Deton and Hylton) had only class-
B licenses and three (Hollifield, Jones and Baker) had no com-
mercial driver’s licenses at all. Necessarily, none of those five
had any tractor-trailer experience.
Additionally, as Gilliam and Hoskins admitted, the Respon-
dent would have preferred to have hired drivers who had their
class-A licenses over drivers who had only class-B licenses;
any employer in the industry logically would. The Respondent,
however, hired at least 17 class-B-licensed drivers, or non-
licensed drivers,33 rather than the 13 alleged discriminatees who
held class-A licenses when they applied34 or the 7 alleged dis-
criminatees who secured their class-A licenses at Baker’s be-
hests and promises of future employment.35
Tractor-trailer experience was not given by Baker as a reason
for hiring any of the 10 employees that he personally hired on
July 16 or the 1 employee he personally hired on July 22 (Be-
gley). Indeed, the reason that Baker gave for hiring 5 of those
11 employees included nothing about truckdriving experience
of any kind. According to Baker’s testimony: (1) Baker hired
Irwin Combs, because Combs’ mother worked at a dry cleaners
that Baker owns and, “she wanted me to hire her son and I
hired her son.” (2–3) Freddie Campbell and Max Sizemore,
“might have” been recommended for hire by former employee
James Noble, but Baker did not testify upon what basis those
recommendations might have been made; certainly, Baker did
not testify that it was based on tractor-trailer experience. (In
fact, on the application of Sizemore that the Respondent intro-
duced into evidence, Hall wrote “very little experience on t/t
[tractor-trailer].”) (4) Baker hired Jeffrey Skiles, because Skiles
was “kind of a personal friend of mine.” (On Skiles’ applica-
tion, Hall entered no notation of tractor-trailer experience,
something that Hall testified that she was careful to do). (5)
Baker hired Begley only because, according to Baker, he was
“born and raised just across the hill from where I was and I
knowed him.” That is, Baker personally hired these five em-
ployees for reasons unrelated to trucking experience of any
kind. Baker’s doing so further erodes the Respondent’s defense
that the alleged discriminatees were not hired (or, in some
cases, were not hired sooner) because they had no tractor-trailer
experience.
32 Grigsby’s file reflects that he was hired to drive a Highwall Miner,
but the others were apparently hired as truckdrivers.
33 These were the five non-Chaney drivers just mentioned plus for-
mer Chaney drivers Robert Fugate, Davis, Grigsby, Billy Joe Noble,
Pennington, Roberts, Ira Southwood, Joseph Southwood, Ola Stacy,
Vanover, Wooton, and Yeary.
34 These were: Bush, Cockrell, Combs, Fugate, Gayheart, Godsey,
Guerra, Haddix, Hayes, Hurley, Noble, Stacy, and Strong.
35 These were: Brewer, Campbell, Caudill, Lovins, Grover Napier,
Robinson, and Williams.
GLENN’S TRUCKING CO. 897
Another reason that the defense of lack of tractor-trailer ex-
perience fails is that it is an obvious afterthought. On July 17, at
the same meeting that he received the Union’s “Preferential
Hiring List,” Baker told the Union that he understood that many
of the alleged discriminatees did not have class-A licenses, and
those that did had no recent experience in driving tractor-
trailers because they had been working for Chaney Trucking or
Leslie Haulers. Nevertheless, Baker told the Union that they
could be hired if they would come some Sunday and practice
with new tractor-trailers that would be at the Leatherwood
Mine. Baker did not make this offer just to be nice, and he did
not make this offer to help the alleged discriminatees secure
employment, and experience, as tractor-trailer drivers else-
where. Baker made this offer because he knew that the experi-
enced former-Chaney (and former-Leslie) drivers could be
easily trained to work as tractor-trailer drivers. Indeed, Baker
admitted at the hearing that all of the applicants could learn to
drive a tractor-trailer satisfactorily, and, within a week

they would have been prepared to drive the tractor and
trailers. I think that they would have been better than some
that I have had to hire that have drove tractor and trailers
for me down here that I have had problems with getting
out to work and so on, these younger guys, that I didn’t
want to hire that did have experience. I’d rather have the
older guys.

All of which is to say that Baker himself admitted to the quali-
fications of the alleged discriminatees, immediately as tandem
drivers and, with minimal training, tractor-trailer drivers. Fi-
nally on this point, the Respondent makes no contention that
the September 1998 offers were made only to limit its liability.
Therefore, even though they were belated, the offers further
belie the Respondent’s contentions that the alleged discrimina-
tees were not qualified applicants.
Therefore, the Respondent’s defense that the alleged dis-
criminatees were not hired because they were not experienced
in driving tractor-trailers necessarily fails.
(As a corollary of its argument that the alleged discrimina-
tees were unqualified to work for it, the Respondent on brief
contends that none of the alleged discriminatees who did secure
their class-A licenses (after Baker told them to) updated their
applications to reflect their achievement. This is another obvi-
ous lawyer’s afterthought. Neither Baker, Gilliam, nor Hoskins
testified that it would have made any difference if the alleged
discriminatees had updated their applications. Moreover, it is
undisputed that at the August 20 meeting, Napier told Baker
that all of the alleged discriminatees (except one) had secured
their class-A licenses; at that time Baker did not tell Dixon,
Napier or Hayes that the alleged discriminatees also needed to
come back to the Hazard office (or go to the Starfire Mine) and
update their applications. Also, as detailed above, the Respon-
dent hired many employees who had only class-B licenses in-
cluding Davis, Ray Napier, Billy Joe Noble, Pennington, Rob-
erts, Ronk, Ira Southwood, Joe Southwood, Vanover, Wooten,
Deton, and Hylton. Of course, truckdrivers who never received
their class-A licenses could not have updated their personnel
files to show that they had. Finally on this point, Hollifield,
Jones, Robert Fugate, Grigsby, Ola Stacy, and Yeary had no
commercial driver’s license when they applied for work with
the Respondent; if any of them ever received one, the files that
the Respondent placed in evidence show that they did not
bother to update their applications.)
Third defense—The Respondent’s selection processes. The
Respondent’s third defense is that the alleged discriminatees
failed to secure employment with it, or failed to secure em-
ployment earlier than some of them did, because of an honest
process of random selections. As the table above shows, from
August 1 through May 31, 1998, the Respondent hired 106
non-Leatherwood employees, but not 1 of the employees
named on the Union’s “Preferential Hiring List” was called for
an interview at the Starfire Mine. Had the Respondent called
any of the applicants on the list, witnesses would assuredly
have so testified. (Daniels did not comply with his subpoena,
but the Respondent made no attempt to call any employee
named on the Union’s “Preferential Hiring List” who might
have been called by Daniels.) Stated another way, although all
of the alleged discriminatees had submitted an application by
July 14, on every subsequent review of the stack of applications
(however they were arranged), not one of them was selected to
be called in for an interview. The Respondent proved that it
rejected about 100 other applications, but it did not have 100
other applications before the alleged discriminatees applied. Of
course, as time went by and more applications were received,
the mathematical chances of any one applicant’s being called
diminished, but it is too much to believe that the applications of
all 23 of the alleged discriminatees were subsequently passed
over by simple chance, and I do not believe it.
Gilliam testified that he would review just a few applications
before he would call any applicants to come in for interviews.
This testimony made no sense, and it was incredible, because
such an approach would not have permitted the finding of the
best applicants available at any given time. Hoskins at first
testified that he examined all applications, “from front to back
and got the most qualified driver.” When he was shown the
applications of obviously qualified alleged discriminatees
whom he personally knew, however, Hoskins retreated to Gil-
liam’s approach and stated that he actually looked only at a few
applications before he called applicants to come for an inter-
view. Hoskins could not explain his inconsistency, but I can.
Hoskins, like Gilliam, was not testifying truthfully.
I firmly believe that there was no randomness to the Respon-
dent’s selections after August 1, at least as far as the alleged
discriminatees were concerned. Hoskins testified that from his
prior working experience at Leslie Haulers, and elsewhere, he
personally knew alleged discriminatees Hayes, Brewer, Strong,
Lovins, Cockrell, Ray Napier, Grover Napier, Ronk, Stacy,
Bush, Godsey, Fugate, Combs, and Caudill. Hoskins agreed
that all of those men were good drivers, and Hoskins further
agreed with the blanket proposition that he “would have hired
any of them.” It is too much to believe, and I do not believe,
that only random chance prevented Hoskins from calling any of
these drivers whom he knew and would have hired.
That is, I do not believe the testimony of Gilliam and Ho-
skins that the applications of the alleged discriminatees were
blindly placed with all other applications. It is quite apparent,
and I find, that the applications of the alleged discriminatees
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 898
were somehow isolated from those of other applicants, and the
alleged discriminatees had no chance of being called in for an
interview when the Respondent needed a truckdriver. (This was
true, even though Baker testified that he would have called the
alleged discriminatees, “[i]f I had needed them real bad.)”
Therefore, I reject the Respondent’s defense that the alleged
discriminatees were passed over by an honest selection process.
Summary and conclusions: Baker gave the Union and the al-
leged discriminatees assurances that they would be hired if they
secured their class-A licenses; they did so.36 Baker ordered
them to attend a safety-training class for new employees; they
did so. The Respondent principally defends this action by
claiming that Baker had another hoop for the alleged discrimi-
natees to jump through; to wit: without being called, appear at
the Starfire Mine (or the liquor store lot) and ask for a second
interview. Of course, 5 of the alleged discriminatees did appear
and ask for a second interview, but their accidentally finding
their way through Baker’s third hoop does not defeat the rights
of the 18 other alleged discriminatees to have been hired, and it
does not defeat the rights of those 5 to have been employed by
the Respondent sooner than they were.
The Respondent took measures to ensure that the employees
on the Union’s “Preferential Hiring List” were delayed in being
hired, or not hired at all. This was done by burying, burning, or
simply ignoring the list, rather than calling the listed employees
for employment, although it regularly called applicants who
were not on the list. (This was shown by Hoskins’ testimony
that “many times” he and Gilliam called employees, and that
“thirty-five or forty” times he looked through the applications
for the telephone numbers of applicants when more employees
were needed.) At the same time, Baker and Gilliam temporized
by promising (even in writing) to employ the alleged discrimi-
natees and even by trying to get the Union to send the alleged
discriminatees to West Virginia to work there. These maneu-
vers were designed to delay, or to entirely thwart, the attempts
to secure employment by the prounion employees who were
named on the Union’s “Preferential Hiring List.” The delays
and denials continued until September 1998 when, at the twi-
light of its contract with Cypress, it finally offered employment
to all of the alleged discriminatees.
The Respondent has therefore failed to rebut the General
Counsel’s prima facie case, and, under Wright Line, a violation
must be found. Accordingly, I find and conclude that the Re-
spondent violated Section 8(a)(3) of the Act by delaying the
employment of, or denying employment to, the 23 alleged dis-
criminatees.
THE REMEDY
As previously noted, the parties stipulated that in September
1998 the Respondent offered employment to all of the dis-
criminatees who had not been employed before that month. The
General Counsel accordingly seeks no hiring remedies after
that month, but the General Counsel does seek backpay reme-

36 The only exceptions were Ray Napier and Ronk (whom the Re-
spondent hired anyway, although belatedly) and Mullins. That Mullins
did not secure a class-A license is not a defense to his case; the Re-
spondent was shown to have hired too many others with only class-B
licenses, or no licenses at all.
dies through that month (except, of course, for the five dis-
criminatees who were hired before September 1998). The Re-
spondent, however, contends that backpay remedies of nine of
the discriminatees should be tolled before September 1998
because it earlier offered them employment, which offers they
refused.
Baker’s offer of employment to Napier. On brief, the Re-
spondent first contends that Baker offered Napier employment
on August 20. I have not detailed Baker’s testimony in that
regard because, on cross-examination, Gilliam admitted that
Baker’s “offer” was not serious. Moreover, although Baker told
Dixon during the August 29 meeting to have Napier contact
him about the possibility of a job, and although Dixon did con-
vey that message to Napier, and although Napier attempted to
do so in person on September 2 and 4 by visiting the Respon-
dent’s Hazard office, and although Napier further attempted to
call Baker thereafter by telephone, Baker refused to return his
telephone calls or otherwise acknowledge his visits. (This was
true even though Hall, who was clearly Baker’s agent for the
purpose, promised Napier that Baker would be contacting him.)
That is, I credit the undenied testimony of Dixon and Napier in
this regard, and I find that Baker did not offer employment to
Napier on or after August 20.
Hoskins’ offers of employment to nine of the discriminatees,
including Napier. Hoskins testified that he personally offered
employment to nine of the alleged discriminatees, including
Napier, and the Respondent contends that its backpay liability
to each discriminatee is accordingly reduced. These nine are:
(1) Brewer. Hoskins testified that in October 1998, he made
an offer of employment to Brewer by sending a message to him
through Brewer’s brother (who then worked for the Respon-
dent, but whose first name Hoskins could not remember at
trial). Brewer credibly denied that he received any such mes-
sage, but, more importantly, Hoskins attempted to send his
message to Brewer one month after the stipulated offer of Sep-
tember 1998. (Also the message was to come and file another
application; it was not an offer of employment.)
(2) Bush. Hoskins testified that at some point in 1998 that he
could not specify, at a place that he did not specify, he met
Bush and: “I offered him work to come to work for us. And he
was employed by B & C Trucking and he said that he would
rather stay with B & C Trucking at the time.” Bush generally
denied that any representative of the Respondent offered him
employment before the stipulated offer of September 1998, but
the General Counsel did not call him to rebut Hoskins’ testi-
mony. Hoskins was credible in his testimony that he made an
offer of employment to Bush, but he was completely unable to
place a date on the event. I shall not reward the wrongdoer by
assuming that it was before the stipulated offer of September
1998.
(3) Campbell. Hoskins testified that at some point in time
that he could not specify he met Campbell at a local conven-
ience store. Hoskins told Campbell “to come by and I would
give him a job because I had some tandems that were open . . .
and he told me he’d rather not.” Campbell testified that the
event that Hoskins described did not happen; moreover, Camp-
bell testified that he had not seen Hoskins from the time that he
was laid off by Leslie Haulers in 1997 until the day that he
GLENN’S TRUCKING CO. 899
testified. Hoskins was credible in his testimony that he offered
employment to Campbell, but Hoskins could place no date on
the event and, again, I shall not reward the wrongdoer by as-
suming that it was before the stipulated offer of September
1998.
(4) Caudill. Hoskins testified that in January 1998, Caudill
came to the jobsite twice. According to Hoskins: “The first
time, I didn’t have anything available. So, I got an application
off of him. He came back the second time and I had an R-
Model tractor opening. I tried to get Charles to drive it and
Charles said that he didn’t want to drive junk. He said that he
wanted a new truck. He refused me. He didn’t want the job
driving an older truck.” Thereafter, Caudill did not come back.
Caudill testified that he went to see Hoskins “five, six times,”
seeking work, but each time Hoskins told him to come back
some other time. Caudill flatly denied that Hoskins ever offered
him a job driving an R-model truck. Hoskins was credible in
his testimony that he offered a job to Caudill at some point in
January 1998, but Caudill refused. Caudill’s backpay rights,
therefore, ended as of January 31, 1998.
(5) Cockrell. Hoskins testified that during September
Cockrell came to the jobsite and asked for a job; Hoskins of-
fered Cockrell a job and gave him an application “and he said
he’d take it home and fill it out and give it back to me, and
that’s the last I had seen of him.” Cockrell testified that in late
November or early December he went to “the shop” where he
met Hoskins. According to Cockrell, Hoskins seemed interested
in hiring him until Hoskins realized that he had previously filed
an application which had not been acted upon. Cockrell flatly
denied that he took another application form with him when he
left the shop, and he denied that Hoskins ever offered him a
job. Hoskins was credible in his testimony that he gave an ap-
plication to Cockrell, and that Cockrell left with the application,
but Hoskins was not credible in his testimony that he also of-
fered Cockrell a job; if Hoskins had actually offered Cockrell a
job, he more than likely would have asked Cockrell to signify
his acceptance by at least staying around long enough to com-
plete the application.
(6) Lovins. On direct examination Hoskins testified that dur-
ing the first 3 months that he worked for the Respondent (or
before November 1997) he met Lovins at the garage that is
operated by Hoskins’ uncle. There, he offered Lovins a job but
Lovins “said he would rather pass” because he was then driving
a schoolbus and he liked that work. On cross-examination,
however, Hoskins testified that his offer to Lovins was in 1998,
but he had no idea when. Lovins denied receiving an offer of
employment from Hoskins. Hoskins was credible in his testi-
mony that he offered employment to Lovins, but cross-
examination of Hoskins showed that he had no idea of when he
made that offer. Again, I shall not reward the wrongdoer by
assuming that it was before the stipulated offer of September
1998.
(7) Napier. John Napier is a brother of Grover Napier and
Ray Napier. John worked for the Respondent in November
(although his date of hire is not revealed in the record). Hoskins
testified that in November, he “sent word” by John to Grover
“to come to work.” John returned to Hoskins with word that
Grover “would like to work for us but he didn’t want to come
and work because he’d had trouble with some people that
worked with us.” Napier, as discussed above, credibly testified
that after August 29 he separately approached the Respondent
to seek employment, but Hall repeatedly told him that Baker
was unavailable. Napier further testified in rebuttal that his
brother John did not convey to him that Hoskins might hire him
if he came to the Starfire Mine. Napier was credible in this
testimony, as well.
(8) Stacy. Hoskins testified that in mid-January 1998 he met
Stacy at a local store and: “I asked him would he like to come
to work close to home because he was working for Sam Kilgore
at the time and he told me he’d rather not, said he’d rather stay
where he was at because he liked it down there.” (Apparently,
the Kilgore place of employment is further from Hazard than
the Starfire Mine.) Stacy admitted in rebuttal that he saw Ho-
skins at a convenience store, but he flatly denied that Hoskins
ever offered him a job, and he further denied that he ever told
Hoskins that he would “rather not” work for the Respondent.
On cross-examination, Stacy acknowledged that he was
working for Sam Kilgore at the time that he saw Hoskins at a
convenience store, and he further acknowledged that he was
still working for Kilgore. Hoskins was credible in his testimony
that he offered employment to Stacy in mid-January 1998 and
that Stacy refused by stating that he would prefer to continuing
working for Kilgore. Stacy’s backpay rights therefore ended on
January 15, 1998.
(9) Strong. Hoskins testified that at some unspecified point
in the latter part of 1998 he offered Strong a job, and Strong
accepted and was to start the next day, but Strong did not there-
after show up for work. Strong admitted in rebuttal that he once
talked to Hoskins, but he denied that Hoskins offered him a job.
(Strong testified that he thought Hoskins was a mechanic for
the Respondent at the time of their conversation and he asked
Hoskins about the possibilities of part-time employment with
the Respondent as a mechanic, but Hoskins replied that there
were none.) Hoskins was credible in his testimony that in the
latter part of 1998 he offered employment to Strong, but that
Strong refused his offer. Nevertheless, and again, I shall not
reward the wrongdoer by assuming that this happened before
the stipulated offer of September 1998.
In summary, the Respondent hired Ray Napier and Ronk on
September 8, 1997; it hired alleged discriminatee Godsey on
December 15, 1997, it hired Combs and Fugate on March 9,
1998; it offered Caudill employment on January 31, 1998, but
Caudill refused that offer; and it offered employment to Stacy
on January 15, 1998, but Stacy refused that offer. The Respon-
dent’s backpay obligation to those discriminatees ended on
those dates. The Respondent’s backpay obligation to the other
discriminatees ended on September 30, 1998. (The parties did
not stipulate when it was in September 1998 that the Respon-
dent made its offers of employment; I do not toll the backpay
period until the end of the month because I shall not resolve the
ambiguity in favor of the wrongdoer.)
Having found that the Respondent unlawfully discriminated
against the 23 named job applicants, I will order it to make
them whole for any loss of earnings and other benefits they
may have suffered as a result of the Respondent’s unlawful
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 900
discrimination against them, from July 26, 1997,37 until the date
that the Respondent hired them or made them a valid offer of
employment, as determined above. Such amounts shall be
computed in the manner prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), and shall be reduced by net interim earn-
ings, with interest computed in accordance with New Horizons
for the Retarded, 283 NLRB 1173 (1987).
Because the Starfire Mine project has been completed, I shall
order that the Notice to Employees be mailed to all of the Re-
spondent’s employees who were employed at the project from
July 26, 1997,38 until the completion of that project.
On these findings of fact, conclusions of law, and the entire
record, I issue the following recommended39
ORDER
The Respondent, Glenn’s Trucking Co., Inc., Hazard, Ken-
tucky, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Denying employment to employee-applicants, or delay-
ing offers of employment to employee-applicants, because they
have become or remained members of United Mine Workers of
America or because they have given assistance or support to
that labor organization.
(b) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed to them by Sec-
tion 7 of the Act.
2. Take the following affirmative action deemed necessary to
effectuate the purposes and policies of the Act.
(a) Within 14 days from the date of this Order, make the fol-
lowing named individuals whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
them, with interest, in the manner set forth in the remedy sec-
tion of this decision.

Reid Brewer Douglas Bush Jr.
Kermit Campbell Charles Caudill
Clyde Cockrell Mike Combs
John M. Fugate Roy Gayheart

37 This is the 10(b) limitations date of the charge filed herein.
38 Id.
39 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
Spencer Godsey Harold Guerra
James H. Haddix Mike Hayes
Tom Hurley Danny Lovins
Destry Mullins Grover Napier
Ray Napier Jerry Noble
Raymond Robinson Leander Ronk
James Larry Stacy Donny Strong
Kenneth Williams

(b) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful refusals to hire the above-
named individuals, or to the unlawful delays in hiring those
individuals, and within 3 days thereafter notify each of them in
writing that this has been done and that Respondent’s refusals
to hire them, or delays in hiring them, will not be used against
them in any way.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, Social Security payment records, timecards, per-
sonnel records and reports, and all other records, including an
electronic copy of the records if stored in electronic form, nec-
essary to analyze the amount of backpay due under the terms of
this Order.
(d) Within 14 days after service by the Region, mail a copy
of the attached notice marked “Appendix”40 to each employee
who was employed by the Respondent at its Starfire Mine pro-
ject at any time from July 26, 1997. The notice shall be mailed
to the last known address of each of the employees after being
signed by the Respondent’s authorized representative.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification by a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
40 If this Order is enforced by a judgment of the United States Court
of Appeals, the words in the notice reading “Mailed by Order of the
National Labor Relations Board” shall read “Mailed Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”