Hallmark & Son Coal Co. White Oak Mining Co. Single, Joint Or Successor Employer

National Labor Relations Board - Board Decisions

Jul 30, 1990

299 N.L.R.B. 259 (N.L.R.B. 1990)

• HALLMARK & SON COAL CO 259
Hallmark & Son Coal Company; White Oak Mining
Company, Inc.; Single, Joint or Successor Em-
ployer and United Mine Workers of America,
Local Union 2438. Case 10-CA-23554
July 30, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On June 29, 1989, Administrative Law Judge
Hutton S Brandon issued the attached decision
The Respondent, White Oak Mining Company,
Inc (White Oak), filed exceptions and a supporting
brief The General Counsel and the Charging Party
filed answering bnefs
The National Labor Relations Board has delegat-
ed 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 only to the extent consistent with this
Decision and Order
The judge found that the Respondent's refusal to
hire former Hallmark & Son Coal Company (Hall-
mark) employees violated Section 8(a)(3) of the
Act The judge also found that the Respondent
was a successor to Hallmark and therefore its fail-
ure to recognize and bargain with the Union as the
exclusive collective-bargaining representative of
the unit employees violated Section 8(a)(5) of the
Act We disagree with the judge's reasoning and
therefore reverse
Hallmark operated a coal strip mining operation
and a coal washing facility near Sipsey, Alabama
In early 1987, Hallmark began winding down its
operations and laying off its employees By late
1987, only three employees, Carl Ford, James
Price, and Marvm Tuck, and one supervisor,
Samuel Yates, remained They operated the coal
washer The employees, who had previously occu-
pied other positions in the unit, obtained washer
positions by virtue of their unit seniority, rather
than by their washer operation skills
It is undisputed that the washer was an old facili-
ty that needed frequent repair work The repair
work involved substantial amounts of vertical and
overhead welding, as well as high voltage electri-
cal work When Yates and the three employees op-
1 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance 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 Or 1951)
We have carefully examined the record and find no basis for reversing
the findings
erated the washer for Hallmark, Fred Hallmark,
the owner of Hallmark, and other management em-
ployees often performed the repair work because
they possessed the necessary welding and electrical
skills Ford, Price, and Tuck did not perform any
significant repairs because, as the judge found, they
did not possess these necessary skills
Hallmark entered into a lease agreement with the
Respondent on December 2, 1987, leasing the
washer facility to the Respondent effective Febru-
ary 1, 1988 2 Hallmark laid off Yates and the three
employees on January 31 It informed the Union
that the collective-bargaining agreement was can-
celed because Hallmark was no longer in business
For approximately 30 days after signing the De-
cember 2, 1987 lease agreement, the Respondent
contemplated how it would staff the washer, i e,
how many employees it would hire and the neces-
sary job qualifications Realizing that the washer
needed frequent repairs, the Respondent concluded
that it would require employees who would oper-
ate the washer to have the skills of certified weld-
ers or electricians
The Respondent interviewed Yates in late Janu-
ary, and on February 1 hired him to be foreman of
the washer operation At or about the same time,
the Respondent interviewed two individuals who
had submitted applications on January 27 and 28 3
Both individuals satisfied the Respondent's multiple
skills requirements During the week before the
"start up," the Respondent decided to hire them
On February 12 the Respondent told Yates to
inform the two applicants to begin work on Febru-
ary 15 4 On February 11 Yates had informed Ford
that the Respondent would not hire former Hall-
mark employees because of fear of union problems
The Respondent's employees began operating the
washer on February 15 In addition to operating
the washer, these employees used their welding
and electrical skills to repair the facility Sometimes
the employees could not perform the necessary re-
pairs within normal operating hours On these oc-
casions, the Respondent hired an independent con-
tractor to assist with repairs
Relying on the fact that the Respondent con-
tracted out some of the welding work, the judge
found the Respondent's claim that it needed em-
ployees who were certified welders and electricians
was exaggerated and pretextual The judge found
instead that the Respondent's failure to hire the
former Hallmark employees was based on union
considerations We disagree
2 All dates refer to 1988 unless otherwise noted
3 Neither of these two employees was a former Hallmark employee
4 A third employee, who had welding skills, was lured in March
299 NLRB No 39
260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In Wright Line, 5 the Board set forth its test of
causation for cases alleging violations of Section
8(a)(3) of the Act First, the General Counsel must
make a prima facie showing sufficient to support
the inference that protected conduct was a moti-
vating factor in an employer's decision Once this
is established, the burden shifts to the employer to
demonstrate that the same action would have taken
place even in the absence of protected conduct
Based on his finding that Yates' February 11
statement to Ford violated Section 8(a)(1) and re-
flected both union animus and antiunion motiva-
tion, the judge found, and we agree, that the Gen-
eral Counsel established a prima facie case that the
Respondent failed to hire Hallmark employees be-
cause of their union affiliation The judge further
found that the Respondent failed to overcome the
prima facie case Contrary to the judge, we do not
regard as pretextual the Respondent's claim that it
relied on the possession of welding and electrical
skills as a criterion for hiring employees to operate
the washer Instead, we find that the Respondent
actually relied on that as a hiring standard and that
it demonstrated that it would not have hired the
Hallmark employees even in the absence of their
union affiliation
As noted above, the washer frequently needed
welding and electrical repairs It is clear that, when
Hallmark operated the facility, none of the alleged
discnmmatees performed any significant repair
work on the washer because they did not possess
the necessary skills 6 When making its decision re-
garding staffing the operation, the Respondent was
aware of the fact that the washer needed frequent
repairs Thus, the Respondent determined that it
would hire employees possessing the skills of certi-
fied welders or electricians capable of performing
such repair work to operate the washer The Re-
spondent made this decision about the qualifica-
tions before it received employment applications
and began hinng The employees ultimately hired
by the Respondent possessed these qualifications
After the washer operation started up, the Re-
spondent's employees used their welding and elec-
trical skills to repair the washer As the judge ob-
served, "[W]eldmg and electrical skills were obvi-
ously helpful in the maintenance of the washer op-
eration" Despite the judge's findings that the
former Hallmark employees did not meet the quali-
fications established by the Respondent and that
the employees the Respondent hired possessed and
6 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert
denied 455 U S 989 (1982), approved in NLRB v Transportation Manage-
ment Carp, 462 U S 393 (1983)
6 The judge found that "neither Ford, Pnce, or Tuck possessed such
qualifications" There are no exceptions to this finding
utilized welding and electrical skills, the judge con-
cluded that the Respondent's hiring requirements
were pretextual because it contracted out some of
the repair work 7 The record indicates that the Re-
spondent sought outside welders, instead of relying
solely on its skilled employees, only when its em-
ployees could not perform the repairs within
normal operating hours Thus, rather than lending
support to the judge's pretext finding, the evidence
of contracting out strengthens the Respondent's ar-
gument that repairs were frequently needed and
that the skills requirement was a necessary compo-
nent of the job
In sum, we find that the Respondent decided to
hire employees who possessed welding and electri-
cal skills based on legitimate business reasons and
that former Hallmark employees did not possess
these skills We are also satisfied that—given the
timing of the decision to require welding and elec-
trical skills, and the legitimate business reasons for
the skills requirement, which in practice proved es-
sential to operating the washer—the Respondent
has established it would not have hired the former
Hallmark employees even in the absence of their
union affiliation Accordingly, we shall dismiss the
complaint's allegation that the Respondent violated
Section 8(a)(3) and (1) of the Act
We have found that the Respondent did not dis-
criminate against the former Hallmark employees
Consequently, there is no basis for the judge's find-
ing that the Union's representative status would
have survived the Respondent's assumption of the
Hallmark washer and that the Respondent was
therefore a successor employer under the Act We
therefore shall also dismiss the complaint's allega-
tion that the Respondent violated Section 8(a)(5)
and (1) of the Act
AMENDED CONCLUSIONS OF LAW
Delete Conclusions of Law 3, 4, 6, and 7, and re-
number the remaining paragraphs
ORDER
The National Labor Relations Board orders that
the Respondent, White Oak Mining Company, Inc ,
Sipsey, Alabama, its officers, agents, successors,
and assigns, shall
1 Cease and desist from
(a) Informing employees that they will not be
hired because of their representation by United
7 To the extent the judge suggested that the Respondent could have
hired the former Hallmark employees and contracted out more of the
repair work, the judge impermissibly substituted his business judgment
for that of the Respondent
HALLMARK & SON COAL CO 261
Mine Workers of America, --Local Union 2438, or
any other labor organization
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the nghts guaranteed them by Section 7
of the Act
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) Post at its office and facilities near Sipsey,
Alabama, copies of the attached notice marked
"Appendix " 8 Copies of the notice, on forms pro-
vided by the Regional Director for Region 10,
after being signed by the Respondent's authorized
representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60
consecutive days m conspicuous places including
all places where notices to employees are custom-
arily posted Reasonable steps shall be taken by the
Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material
(b) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT inform employees that they will
not be hired because of their representation by
United Mine Workers of America, Local Union
2438, or any other labor organization
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WHITE OAK MINING COMPANY, INC
Richard Prowell, Esq , for the General Counsel
Charles P Powell, Esq (Powell, Tally & Frederick), of Bir-
mmgham, Alabama, for the Respondent
Robert M Weaver, Esq (Longshore, Nakamura & Quinn),
of Birmingham, Alabama, for the Charging Party
DECISION
STATEMENT OF THE CASE
HurroN S BRANDON, Administrative Law Judge
This case was tried at Birmingham, Alabama, on April
12-13, and May 1, 1989 The charge was filed by United
Mine Workers of America, Local Union 2438 (the
Union), on July 19, 1988 1 The complaint based on the
charge issued on October 31 and an amended complaint
issued on December 8 In light of a settlement reached
between the parties the complaint was further amended
at the hearing to delete complaint paragraphs 14, 15, and
21 alleging certain violations of the National Labor Rela-
tions Act (the Act) by Hallmark & Son Coal Company
(Hallmark) In its last amended form the complaint al-
leged that White Oak Mining Company, Inc (Respond-
ent or White Oak), as a successor to Hallmark (1) violat-
ed Section 8(a)(1) of the Act by threatening not to hire
the former employees of Hallmark because of their mem-
bership in the Union, (2) violated Section 8(a)(3) and (1)
of the Act by refusing to hire former employees of Hall-
mark because of their membership in, and representation
by, the Union, and, (3) violated Section 8(a)(5) and (1) of
the Act by unilaterally changing the terms and condi-
tions of the bargaining unit employees without notifica-
tion to, or consultation with, the Union Respondent filed
a timely answer denying the unlawful conduct alleged
The issues presented are whether the individual to whom
the unlawful independently violative 8(a)(1) conduct was
attributed was a supervisor or agent of Respondent,
whether Respondent refused to hire the former employ-
ees of Hallmark because of their umon affiliation, and
whether Respondent was a legal successor to Hallmark
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel, the Union, and
Respondent, I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent is an Alabama corporation with an office
and place of business located at a coal preparation facili-
ty near Sipsey, Alabama, where it is engaged in the
processing and sale of coal During the calendar year
preceding issuance of the complaint Respondent pur-
chased and received at its Alabama facilities materials
and supplies valued in excess of $50,000 directly from
suppliers located outside the State of Alabama The com-
plaint as amended alleged, Respondent at the hearing ad-
mitted, and I find that Respondent is an employer within
the meaning of Section 2(6) and (7) of the Act subject to
the jurisdiction of the Board
The complaint also alleged, Respondent admitted, and
I also find that the Union is a labor organization within
the meaning of the Act
, All dates hereinafter are in 1988 unless otherwise indicated
262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II THE ALLEGED UNFAIR LABOR PRACTICES
A Background
Hallmark for several years operated a coal strip mining
operation in the vicinity of Sipsey, Alabama In connec-
tion with such mining it operated a coal preparation or
"washing" facility, referred to as the Sipsey washer or
simply the washer, on premises leased from McWane
Coal Company (McWane) While there was a dispute
raised at the hearing by Respondent whether Hallmark
was signatory to a collective-bargaining agreement with
the Union covenng its employees, Respondent in its bnef
conceded that Hallmark had been signatory to the Na-
tional Bituminous Coal and Wage Agreement of 1984
which was effective to January 31, 1988 The employees
covered by that agreement as described at article IA,
section (a), were as follows
The production of coal including removal of over-
burden and coal waste, preparation, processing and
cleaning coal repair and maintenance work
shall be performed by classified Employees of
the Employer covered by this agreement
Specific exemptions from coverage set out in section (b)
were
Coal inspectors and weigh bosses at mines where
men are paid by the ton, watchmen, clerks, engi-
neering and technical forces of the employer, work-
ing at or from a district or local mine office
Section (b) also excluded "essential supervisors as
are in charge of any class of labor inside or outside the
mines" The Hallmark unit alleged by the General Coun-
sel in the complaint described the unit as a production
and maintenance unit with the same exclusions noted
above but limited it to the Sipsey preparation facility In
any event, it is clear, and there is no dispute that histori-
cally Hallmark's production and maintenance employees
employed in its stnp mining operations as well as its
washer facility were represented by the Union in a single
unit
In early 1987, according to Fred H Hallmark, owner
and president of Hallmark, the Company began winding
down its operations and idled its dragline operations be-
ginning in January of that year Through the remainder
of the year Hallmark cleaned out its coal stock yards and
laid off most of its employees Hallmark reduced its op-
erations to only the operation of its washer in the latter
part of 1987 In the washer operation coal was physically
water washed and cleaned to increase its grade and
value, and in some cases it was thereafter "blended" with
other coals of various grades to meet customer specifica-
tions By December 1987, Hallmark had reduced the
number of employees in it unit work force from about
40 to only 3 employees The last three were used only in
the washer operations but they had previoulsy occupied
other positions and classifications in the unit and came to
their washer positions by virtue of their unit seniority
rather than by their washer operation skills These three
employees were Marvin Tuck, normally a motor grader
operator who primarily operated a loader when finally
assigned to the washer operations, James Price, previous-
ly a drill operator and "shooter," who ran a loader and
the washer itself, and Carl Ford, formerly a dozer opera-
tor who assisted Price in "running" the washer Samuel
"Jerry" Yates testified that at the "very end" he was the
washer superintendent for Hallmark, although other
managers of Hallmark were frequently present at the
washer in late December, including Jimmy Brown, Hall-
mark's overall superintendent, and Fred Hallmark him-
self who was frequently involved in the maintenance of
the washer which, by all accounts, was an old facility re-
quiring numerous and frequent repairs
B The Relationship Between Hallmark and
White Oak
On December 2, 1987, Hallmark entered into a lease
agreement with White Oak leasing the washer facility to
White Oak effective February 1, 1988 The lease, signed
by Fred Hallmark and James Fortner, president of White
Oak, was for a term of 1 year but was renewable for ad-
ditional terms in the absence of notice of nonrenewal by
December 31 of each year Hallmark, however, reserved
the right to terminate the lease at his discretion upon 30
days' notice The lease was also approved by a represent-
ative of Empire Coal Company, McWane's parent corpo-
ration
On January 31, 1988, Hallmark, as a final step in its
cessation of any coal production or processing, laid off
Yates and its last three employees In addition, Fred
Hallmark advised the Union by letter that the collective-
bargaining agreement was canceled inasmuch as Hall-
mark was no longer in business
White Oak began operation of the Sipsey washer on
February 15 Prior to that time it had operated two coal
surface mines, one within about 2 miles of the washer It
does not appear that White Oak's employees utilized in
its surface mines were represented by any labor organiza-
tion For the washer operation White Oak hired Hall-
mark's former employee, Yates, to run the washer as a
"working foreman" and two additional employees, Jerry
Boyd and Norman Key who submitted applications for
employment to White Oak on January 27 and 28, respec-
tively, and who were not former Hallmark employees, to
assist in the washer operation A third man, Billy Hams,
who likewise was not a former Hallmark employee, was
hired by White Oak for the washer operation, initially on
a part-time basis in late March
There was no evidence that White Oak at any material
time shared any common officers with Hallmark, nor
was there any evidence of common ownership interests
shared by the two concerns The only relationship be-
tween the two concerns is reflected in the lease agree-
ment which White Oak terminated on December 20 No
company was operating the washer at the time of the
hearing
White Oak did, according to the record, subsequent to
taking over the washer operation service the three cus-
tomers who were Hallmark's major source of business
for the washer On the other hand, White Oak appears to
have increased the total complement of customers serv-
iced by the washer operation by adding several addition-
HALLMARK & SON COAL CO 263
al but smaller customers, the exact number of which was
not shown on the record
Based on the foregoing unrefuted evidence the Gener-
al Counsel and the Union contend that White Oak was
Hallmark's successor in the washer operation because
there was a continuity in the employing enterprise In
this regard the General Counsel points to the fact that
the same business operation was being conducted by
White Oak as had been conducted by Hallmark in the
washer operation The same physical facility was used,
the same jobs and working conditions were in existence
after White Oak assumed the washer operation, the same
supervisor, Yates, was used by both, the same equipment
and method of production was used, and the same prod-
uct was produced Further, there was even a substantial
continuity in customers While the work force was not
the same, the General Counsel argues that White Oak
purposely failed and refused to hire Hallmark's former
employees because of their union membership and Re-
spondent's desire to avoid application of the Board's
successorship doctrine This contention and Respondent's
contention to the contrary necessitates setting forth the
evidence concerning White Oak's employment of those it
did over the former Hallmark washer employees
C White Oak's Choice of Employees
The ultimate decision of which employees to utilize in
the washer operation was made by Frank Whitfield Jr,
general manager of White Oak It is clear that Whitfield
initially met with Yates in late January, discussed the
washer operation with him, and hired Yates as the
"working foreman" of the washer Whitfield testified he
told Yates that Yates would be responsible for the oper-
ation of the washer and the men under him would be
"his baby" While Whitfield was frequently present at
the washer he had other substantial duties in other loca-
tions although he could be contacted by Yates by radio
or telephone Yates was given authority to issue pur-
chase orders for supplies or repair items
According to Whitfield, when he met and interviewed
Yates they discussed the three Hallmark employees, and
Yates advised him that the three were not good employ-
ees for the washer jobs Neither of the three were certi-
fied welders or electricians, skills which Whitfield and
White Oak President James Fortner had previously de-
termined were necessary in combination with other
loader and operator skills to the economic success of the
washer operation 2 Whitfield testified that he gave Yates
some blank application forms and told him to accept ap-
plications from anyone interested in the jobs If Yates
ever subsequently offered an application to anyone the
record does not show it
At around the same time that Yates was hired Whit-
field took the applications of Boyd and Key who had
been working for other employers at the time Boyd's
application indicated he was a certified welder, while
2 Electrical skills were necessary according to Whitfield because the
washer was operated with multiple electnc motors and high voltage cir-
cuitry requiring constant attention and repair Welding skills were neces-
sary because the operation required frequent welding repair as a result of
the washer's age and poor condition
Key's claimed he was a licensed electrician who also had
utility skills Both met White Oak's multiple skills re-
quirements Whitfield's testimony indicates that he
sought out Boyd and Key having learned of their work
from a McWane foreman While Whitfield testified that
Yates was present dunng the interview of Boyd and
Key, Yates maintained' in his testimony that he was
present only for about 15 minutes of the interview of
Key According to Whitfield, the decision to hire Key
and Boyd was made the week prior to the White Oak
"start up" of the washer on February 15 Yates was told
on February 12 to tell Key and Boyd to report to work
on February 15 They did so Harris was hired subse-
quently in late March after Yates advised Whitfield that
he needed more help in running the washer Harris, ac-
cording to Whitfield, had welding and loader skills
In the meantime, however, Whitfield contracted with
Boyd to load out some coal from the washer left by
Hallmark which a customer desired The coal was
moved on February 5 In addition, after White Oak start-
ed up the washer operation it contracted out some weld-
ing work to an independent contractor Whitfield ex-
plained that White Oak used its own employees for
welding work which was necessitated during the normal
operation hours and could be completed during such
time, while welding which could not be completed
during normal working hours was contracted out to an
independent contractor 3
Also in the meantime, on February 1, the former Hall-
mark employees, Ford, Price, and Tuck, appeared at the
gate to the washer operation accompanied by Kenneth
Harris, president of the Union and a former Hallmark
employee who had been laid off earlier These four, from
all accounts, saw Hallmark Superintendent Brown4 at
the gate and informed him that they were there ready
and able to go to work Brown advised them that Hall-
mark had ceased operation and there were no jobs avail-
able with Hallmark
Around February 22 and after White Oak began oper-
ation of the washer the Union put up a picket line at the
washer gate 5 On one occasion after the picket line went
up Fortner and Whitfield spoke to pickets Whitfield's
testimony was that Fortner inquired of Union President
Harris who was present if there was a problem Harris
responded that the jobs being performed on the site were
"their jobs" Fortner replied the washer we c being oper-
ated by White Oak and if they had a problem they
needed to be picketing Hallmark Harris repeated the
3 Yates provided a different reason in his testimony He claimed that
the washer had only one old welder left which had short leads It was
therefore sometimes necessary to use an independent contractor with
equipment having long leads in order to reach and repair some portions
of the washer
4 Brown explained his presence by testimony that he continued to per-
form work on the premises for about 3 months after Hallmark's shut-
down, but such work was related to surveying in property lines after
completion of the reclamation process and was not related to the washer
operation
5 The language on the picket signs was never revealed at the hearing,
and the record is unclear concerning the exact purpose of the picketing
However, counsel for the General Counsel asserted that he was not rely-
ing upon the picketing to establish any demand for bargaining by the
Union
264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
claim that it was "their jobs," and Fortner responded
that if they wanted to put in an application that would
be fine but the Company didn't need any problems with
traffic at the gate Harris' version of this exchange which
he placed as occurnng on February 22 does not differ
significantly from Whitfield's except that he attnbuted to
Fortner a remark that White Oak was not obligated to
Hallmark's employees and left out any reference to the
filing of applications with White Oak In any event, if
Harris was correct with respect to the date, and there
was no evidence to contradict him, White Oak had long
before hired its contemplated full complement of em-
ployees for the washer
1 Testimony of the former Hallmark employees
Ford testified that he had about three discussions with
Yates concerning White Oak's taking over the washer,
first one occurring about 3 weeks before Hallmark
ceased operations In that discussion Ford asked Yates if
the Hallmark employees would have jobs there after
White Oak took over Yates replied that he didet know,
that he was going to a meeting with McWane and White
Oak, and he would let Ford know when he got back
The second conversation took place about a week later
when Ford inquired of Yates if he had talked to White
Oak about the jobs, and Yates responded that White Oak
couldn't believe that they wanted jobs there Ford asked
how much White Oak was paying and Yates replied that
they were paying $10 per hour but he believed they
could get $12 6 Ford inquired about insurance and Yates
replied that White Oak had insurance but he didn't know
what kind Ford asked him to inquire at the next meeting
about the insurance and also to inquire whether "they"
would sign a (union) contract According to Ford, Yates
went to another meeting with White Oak but after he re-
turned "he never would get into no deep subject or any-
thing"
The next conversation with Yates about White Oak,
Ford testified, took place on February 11 Yates came to
Ford's house near the washer to give him some metal
banding, a shipping or packaging matenal sometimes re-
ceived at the washer, that Ford had requested They dis-
cUssed White Oak, and Ford inquired when White Oak
was going to "crank up" Yates replied that they would
after he had secured some tools Ford asked if "we"
were going to have jobs out there and Yates replied neg-
atively saying that they had already hired Boyd and
"some other fellows" Ford asked why "they" meaning
Ford, Price, and Tuck, wouldn't be hired, and Yates re-
plied that "they was afraid it would cause trouble" Ford
asked what kind of trouble to which Yates responded,
"Afraid y'all will cause some trouble towards the union"
Ford asked for further explanation, and Yates replied,
"Well, if it gets out there and you go to talking about
the union, they have to sign a contract to cover the pits
and everything" Except for the second discussion with
Yates related above when Ford claimed Hallmark em-
ployee Price was present, there were no witnesses to the
other remarks of Yates testified to by Ford
6 Minimum union scale under the expired Hallmark agreement was
about 515 per hour
Price did not support Ford's testimony concerning the
second meeting or exchange with Yates regarding em-
ployment by White Oak Although he recalled that Yates
once said White Oak would pay $10 an hour, Price testi-
fied that Ford was not present Price also testified that
he did discuss White Oak with Yates when Yates told
him sometime in January that White Oak "wanted me to
run the washer for them "7 Price said he would if he did
not have to cross a picket line Subsequently at a time
not specified, Yates again talked to Price about running
the washer and Price responded that he would have to
talk to the Union about it because he didn't want to get
"knocked out of" his union retirement by working there
And while he later ascertained from the Union that it
would not affect his retirement Price did not so advise
Yates Finally, Price testified that he was at Ford's home
1 day after Hallmark shut down and before White Oak
started up when Yates came by and brought Ford a
metal band However, he could not recall Yates saying
anything about White Oak at the time
The third Hallmark employee, Tuck, a neighbor of
Ford's, testified he had seen Yates and Price at Ford's
house around February 5 or 6 but denied that he had
joined them He attributed no remarks to Yates about the
White Oak startup or operations at any time
2 The testimony of Yates
Yates was called as an adverse witness by the General
Counsel and testified prior to the testimony of Ford,
Tuck, and Price Accordingly, he did not specifically
contradict the occurrence of conversations with them
about White Oak He acknowledged, however, that they
all knew that Hallmark was going to cease operations,
and Ford, Price, and Tuck had told him that they had
jobs elsewhere None of the three, whom he described as
his buddies, asked him for a White Oak application after
he received them from Whitfield on Monday, February
1
Yates testified that Whitfield did not mention the
Union in the initial interview with Yates which Yates
said took place after Hallmark shut down the washer
Confronted with his prehearmg statement to the Board,
however, Yates conceded that Whitfield had told him
that there "might be hard feelings" from the men be-
cause White Oak was not union 8
According to Yates, he never made any remark to
Ford, Price, or Tuck that could be construed as a threat
that White Oak would not be hinng them because they
were members of the Union On the other hand, he relat-
ed Ford had telephoned him on Thursday, February 11,
asking to meet him at Ford's home that afternoon, and
Yates complied with the request There he met with
Ford, Price, and Tuck, all of whom he desnbed as being
neatly dressed Ford did the talking and pressed Yates to
On cross-examination, Pnce put Yates' question in the hypothetical
form of whether he would run the washer for White Oak if White Oak
asked
Whitfield's statement to the Board provides a different version He
related that he told Yates 'if he had a problem working with the Union
at Hallmark [and] then working for White Oak who was non-union &
had two non-union mines," Whitfield would understand
HALLMARK & SON COAL CO 265
admit that the washer was being operated by McWane
saying it was "real important" to them 9 Yates refused
Then Ford repeatedly asked him, "Well, tell us they
won't hire us" Yates again refused saying he didn't
know, that he had only met with Whitfield on one time
Yates testified he felt uncomfortable at this meeting and
left as quickly as he could
D Arguments and Conclusions
The acquisition of successorship status and any bar-
gaining obligation incidental thereto is not wholly discre-
tionary with an employer Successorship status is deter-
mined by law applying settled criteria growing out of
concerns for public obligations rather than private con-
tract See Aircraft Magnesium, 265 NLRB 1344, 1346 fn
13 (1982), and cases cited therein The criteria considered
in successorship cases are all related to determining
whether there is a "substantial continuity in the employ-
ing enterprise" See NLRB v Burns Security Services, 406
U S 272, 279-281 (1972) "Substantial continuity in the
employing enterprise" is measured in a number of areas
including, business operations, plant, work force, jobs
and working conditions, supervisors, machinery, equip-
ment, and methods of production and product and serv-
ice Aircraft Magnesium, supra at 1345 The "measure-
ments" are taken from the employees' perspective with
an eye toward determining whether their job situation
has so changed as a result in the change in ownership
that their attitudes about union representation would also
have changed See Derby Refining Co, 292 NLRB 1015
(1989) The presumption is that a mere change in owner-
ship without a significant or substantial change in work-
ing conditions would not likely bring about a change in
employee attitudes regarding representation NLRB v
Burns, supra This presumption is warranted in order to
promote stabihty during changes in employers and in
order to reduce industrial strife Derby Refining Go,
supra
As a practical matter, however, no successorship for
labor relations purposes may be found if a majority of a
new owner's employees were not employees of the pred-
ecessor employer After all, a new owner is not obligated
to hire any of the predecessor's employees, and in case
he does not there is obviously no continuity in the work
force and, thus, no successorship Burns, supra On the
other hand, if the new owner seeks to avoid status as a
successor with its attendant obligations through dis-
cnminatonly refusing to consider and hire the predeces-
sor's employees due to their union representation it may
be inferred that "but for" the discrimination he would
have retained all of the predecessor's employees US
Marine Corp, 293 NLRB 669 (1989), Fremont Ford, 289
NLRB 1290 (1988) Such discnmmation results not only
in a breach of Section 8(a)(3) of the Act but also a viola-
tion of Section 8(a)(5) on the premise that the union's
representative status would have survived the successor's
takeover "but for" the unlawful discrimination Fremont
9 Why Ford would want to extract such an admission from Yates is
not entirely clear from the record The record does disclose, however,
that McWane and the Union have been parties to a labor dispute since
1984
Ford, supra, Love's Barbeque Restaurant No 62, 245
NLRB 78 (1979), enfd in pertinent part 640 F 2d 1094
(9th Cir 1981)
The Board looks to a number of evidentiary factors in
determining whether a new owner has violated Section
8(a)(3) of the Act in declining to hire the employees of a
predecessor Those factors were listed in US Marine,
supra at 670 as (1) substantial evidence of union animus,
(2) lack of a convincing rationale for refusal to hire the
predecessor's employees, (3) inconsistent hinng practices
or overt acts or conduct evidencing a discriminatory
motive, and (4) evidence supporting a reasonable infer-
ence that the new owner conducted its staffing in a
manner precluding the predecessor's employees from
being hired as a majority of the new owner's overall
work force to avoid the Board's successorship doctrine
Considering the instant case in light of the foregoing
precedent it is initially clear that White Oak meets prac-
tically all the criteria of a successor to Hallmark in the
washer operation Thus, it conducted the same business
operation in the same facility utilizing employees in the
same jobs and working conditions using the same ma-
chinery and equipment producing the same product and
service Moreover, it served the same major customers of
Hallmark, a factor also considered by the Board in
successorship cases See Stewart Chevrolet, 262 NLRB
362, 363 (1982)
It is true that Hallmark was at one time a larger oper-
ation of which the washer was only a part It is on this
point, and the fact that the washer, once acquired, was
only a part of White Oak's operation, that White Oak
bases it mitial defense that the unit specified in the com-
plaint was not shown to be appropriate and therefore
White Oak cannot be a successor to Hallmark Respond-
ent in its brief accuses the General Counsel of trying to
fragmentize White Oak so that the resultmg unit reflects
neither Hallmark's old unit or White Oak's operation
According to White Oak, if there was a "continuity of
business, it was in an integrated mining/processing com-
pany," and that "if the alleged 'continuity' is to the
washer, then there is none because the 'washer' is inte-
grated into the White Oak enterprise"
I find no merit to Respondent's unit arguments The
Board has said "that successorship obligations are not de-
feated by the mere fact that only a portion of a former
union-represented operation is subject to the sale or
transfer to a new owner, so long as the employees in the
conveyed portion constitute a separate appropriate unit,
and they comprise a majority of the unit under the new
operation" Stewart Granite Enterprises, 255 NLRB 569,
573 (1981) See also Louis Pappas' Restaurant, 275 NLRB
1519 (1985), G T d1 E Data Services Corp, 194 NLRB
719, 720-721 (1971) Mere diminution in the employee
complement is no impediment to a finding of successor-
ship See Lloyd Flanders, 280 NLRB 1216, 1219 (1986)
Here, a unit of washer production and maintenance em-
ployees appears appropriate Such a unit represents the
complete remainder of the Hallmark unit resulting from
Hallmark's diminished operation It is composed of em-
ployees performing related work under the same work-
ing conditions No other employees of White Oak are
266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
within 2 miles of the washer employees and White Oak's
other employees A single location unit of a multifacility
employer is presumptively appropriate Westbrook Bowl,
293 NLRB 1000 (1989), Hegins Corp, 255 NLRB 1236
(1981) Thus, I conclude the washer employees constitute
a separate appropriate unit, and there are no unit consid-
erations here which serve to bar a successorship finding
Considering the above, I conclude that White Oak
meets all the criteria of a successorship except, obvious-
ly, that it did not hire a majority of Hallmark's employ-
ees leaving the continuity in the work force unestab-
lished This factor does not, as noted, preclude a finding
of successorship if White Oak was discriminatorily moti-
vated in refusing to hire the Hallmark employees A con-
clusion that it was so motivated depends on whether
Yates was at the material times a supervisor and/or
agent of White Oak, and, if so, whether he made the re-
marks attributed to him which reflect union animus and
tend White Oak's failure to hire the former Hallmark em-
ployees was based upon union considerations
While White Oak contends that Yates was not a super-
visor, spokesman, or agent of White Oak, I find to the
contrary Respondent argues that Yates had no authority
to hire, fire, set rates of pay, direct work or "do any of
the things that would cloak him with apparent author-
ity" Yates had no authority to formulate or implement
corporate personnel policy Thus, any statement attrib-
uted to Yates, according to White Oak, is pure hearsay
as to it The undisputed evidence reveals, however, that
Whitfield in hiring Yates made it clear that running the
washer was Yates' "baby" In support of this responsibil-
ity Yates was authorized to pledge White Oak's credit up
to at least $1000, 1 ° and there appears to have been no
limit in the exercise of Yates' independent judgment in
using his authority in this regard Moreover, Yates oper-
ated the washer without the presence of any other White
Oak management or supervisory official for most of the
time the washer was operating 11 Besides being salaried
Yates' employment benefits not shared by the other
White Oak washer employees included a provided vehi-
cle and insurance coverage It was Yates' further respon-
sibility to keep the time of the washer employees, and
there is no evidence that his function in this regard was
merely ministerial or clerical Employees reported ab-
sences and illnesses to Yates who determined whether
work positions left vacant by employee absences would
have to be filled And Whitfield testified that Yates had
authority to grant employees time off Finally, although
Yates was not shown to possess authority to hire em-
ployees it is clear, if Whitfield's version of affairs is ac-
cepted, that Yates' opinions regarding the skills of the
former Hallmark employees were given controlling
weight in White Oak's refusal to consider them for em-
10 Whitfield's testimony indicated $1000 was the upper limit of Yates'
authonty to make purchases on White Oak's behalf, but his preheanng
statement to the Board stated the limit was "$1000 or two"
" Whitfield testified that he was a full-time employee of JEF Co, ap-
parently another concern owned by Fortner, both before and after the
acquisition of the Hallmark washer Accordingly, although he became
the general manager of the washer operation It is difficult to perceive
how he could have spent much time directly supervising the washer op-
eration
ployment It was Yates who recommended the use of
contract welders and who selected and scheduled them
when he determined they were needed
Further it was Yates who prevailed on Whitfield to
hire an additional employee in March based on Yates'
perception of the need for one Yates was the only indi-
vidual around the washer most of the time who could,
and did, direct the work of the washer I find on this
record that such direction was of a responsible nature
and that, although Yates was not shown to have direct
hire or fire authority, Whitfield accorded him sufficient
authonty and discretion in the exercise of independent
judgment in the operation of the washer as to constitute
Yates a supervisor within the meaning of Section 2(11)
of the Act as the General Counsel and the Union con-
tend Thus, I conclude that Yates was hired by White
Oak as, and he operated as, a supervisor at all material
times after such hiring on February 1
The above conclusion supplies an additional cntena in-
dicating White Oak's successorship to Hallmark, continu-
ity in supervision See Aircraft Magnesium, supra Even if
not a statutory supervisor for Hallmark, he was Hall-
mark's washer superintendent during the last few months
of its operation He provided the immediate supervision
of the employees, and this remained unchanged after
White Oak assumed the washer operation 12
White Oak in its brief interposed a number of addition-
al defenses to the complaint allegations It contends that
the three Hallmark employees never applied to White
Oak for jobs, that there was no evidence that supports
knowledge of futility of application on their part, that
they were not, in any event, qualified for the White Oak
jobs, that there was not evidence of union animus on
White Oak's part or any evidence that White Oak's staff-
ing plan was a scheme or sham to avoid hiring the Hall-
mark employees, and, finally, that the Union never re-
quested White Oak to recognize or bargain with it At
least three of these contentions, the lack of applications,
the lack of qualifications, and the absence of a bargaining
request may be treated separately Resolution of the re-
maining contentions are dependent, in my view, upon
whether Ford or Yates is to be believed
With respect to the absence of applications the Board
has stated that "when it is futile for employees to file ap-
plications, an employer is barred from asserting that it
lawfully failed to hire them because of the absence of ap-
plications" Shortway Surburban Lines, 286 NLRB 323
(1987) See also Love's Barbegue Restaurant, supra at 81-
82 fn 1, Mason City Dressed Beef 231 NLRB 735 (1977)
Knowledge of the former Hallmark employees of the fu-
tility of filing an application here is immaterial in the
presence of evidence that they did not know they were
required to file one but did, in fact, desire employment
Here the three Hallmark employees made known their
12 Whitfield testified that he had told Yates his duties would change
from what they were at Hallmark However, in his preheanng statement
to the Board he stated he told Yates his duties would be pnmanly as they
had been at Hallmark There may be no contradiction here when consid-
ered in light of the fact that Yates' duties at White Oak appear to have
been expanded from what they had been at Hallmark, at least with re-
spect to selecting suppliers and pledging credit
HALLMARK & SON COAL CO 267
desire for employment by showing up at the washer
premises on February 1 and consecutive days thereafter
Moreover, Whitfield admittedly knew of their desire for
employment with White Oak because of his awareness of
Yates' version of the discussion at Ford's house on Feb-
ruary 11 and Yates' commitment to "recommend"
them 23 Their applications were never solicited by White
Oak prior to its employment of other employees whose
applications were solicited And while White Oak's name
and telephone number may have been placed at the
washer worksite, the record does not show when this
was done The only contact with White Oak the former
employees had prior to February 22 was through Yates
who did not advise them of the need for applications Fi-
nally, and in any event, Whitfield had admittedly decid-
ed on Yates' assessments of their respective skills that the
former Hallmark employees were unqualified, and had
already hired Boyd, at least temporarily, on February 5
or 6 Under these circumstances, I find the failure of the
three Hallmark employees to file applications constitutes
no defense to Respondent for such filing would have
been futile
Notwithstanding the fact that the Hallmark employees
involved had run the washer for several months prior to
the White Oak lease of the washer, White Oak claims
they were not qualified for the work under its concept of
operation and its need for employees with multiple skills
This claim has a certain appeal to It for obviously an old
facility like the washer needed diligent maintenance and
repair Having employees with welding and electrical
skills would reasonably appear to be most desirable Crit-
ical weldmg and electrical work on the washer had pre-
viously been done by Fred Hallmark, Don Crane, and
Ray Calvert, salaried nonumt Hallmark employees But
Ford testified that he had also done welding and electri-
cal work on the washer changing out electrical motors
and wiring them with high voltage Price, on the other
hand, gave conflicting testimony on his having done
welding on the washer Thus, he initially testified he had
done some minor welding work, and had changed out
one electric motor but did not wire it On cross-examina-
tion, in contradiction of his earlier testimony he said
Hallmark, Crane, and Calvert did all the welding and
electrical work, and that neither he, Ford, nor Tuck had
done "any of that work" Similarly, Fred Hallmark testi-
fied contrary to Ford that Ford had done a small amount
of flat or unskilled welding but the electrical work,
"what little there was of it" in the last 4 months of Hall-
mark's operation was done by Crane or Calvert
Considering the foregoing, the conflict between Price
and Ford regarding their usage as welders and electri-
cians and the less biased testimony of Fred Hallmark, I
conclude that if welding and electrical skills were bona
fide qualifications for employment with White Oak, nei-
ther Ford, Price, nor Tuck possessed such qualifications
Ford may have done some welding similar to the minor
welding done by Pnce; but I conclude that his claim to
significant welding as well as electrical skills was an ex-
aggeration
la Rather than recommend them Yates in fact depicted their skills to
Whitfield as rather poor
White Oak's contention regarding the absence of a
demand for recognition of bargaining by the Union need
be only briefly addressed Where an employer attempts
to defeat application of the Board's successorship doc-
trine through unlawful discrimination in the failure or re-
fusal to hire the predecessor's employees, a demand for
recognition or bargaining by the Union is unnecessary
for finding an 8(a)(5) violation See Love's Barbegue Res-
taurant, supra, Fremont Ford Sales, supra Obviously a
bargaining demand in such a situation would be a useless
gesture smce the Union could not establish its majority
status in light of the unremedied discrimination by the
employer
In the final analysis the case of the General Counsel
and the Union boils down to the slender evidentiary reed
of Ford's testimony regarding remarks he attributed to
Yates on February 11 Such testimony, if believed,
would supply not only evidence of union animus, but
direct evidence of the unlawful failure to hire which ex-
poses as pretext the absence of qualifications of the
former Hallmark employees The credibility resolution to
be made between the testimony of Yates and that of
Ford is therefore critical Neither of the two can be re-
garded as disinterested or impartial Ford was uncorro-
borated on the critical remarks, and Yates was uncorro-
borated on his denials of the remarks, and was specifical-
ly contradicted by Ford, Price, and Tuck regarding a
meeting with the three of them where they allegedly dis-
cussed White Oak, Hallmark, and McWane
A basis may be found in the record for discrediting
both Ford and Yates Ford was contradicted on several
aspects of his testimony, notably on his attribution to
Fred Hallmark of a statement that he was going to give
Yates a $3000 raise before White Oak took over Hall-
mark credibly denied the remark as well as another claim
by Ford that Ford had had several conversations with
Hallmark about White Oak assuming the washer oper-
ation Furthermore, it stnkes me as unlikely that an em-
ployer going out of business within a week or two for
economic reasons would be so generous as to announce a
substantial raise for a supervisor, particularly in the pres-
ence of unit employees Ford also failed to include in his
preheanng statement to the Board investigator any of the
statements he attributed to Yates related above which
took place prior to the shutdown of Hallmark
Yates, on the other hand, had to have his recollection
refreshed by his preheanng statement after which he
contradicted earlier testimony that Whitfield had not
mentioned the Union to him during his employment
interview In his preheanng statement he related that
Whitfield had in fact said that there might be hard feel-
ings from the men (Hallmark employees) toward Yates
because White Oak was not "union" And Yates was
overwhelmingly contradicted by Ford, Price, and Tuck
regarding Yates' meeting the three at Ford's house
where the three allegedly tried to extract an admission
from Yates that McWane was assuming the washer oper-
ation and was refusing to hire them Further, Yates in his
preheanng affidavit omitted any reference to Price and
Tuck being present when he went to Ford's home He
similarly failed to note in that statement that Ford had
268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on that occasion pressed him to say that "they" would
not hire him although the statement included a specific
denial that he told Ford or any other employee that
White Oak would not hire them because of union prob-
lems
From a demeanor standpoint neither Ford nor Yates
exhibited any clear manifestations of untruthfulness Both
appeared vague at times but understandably so since
both were testifying regarding statements and incidents
which took place some 14 months prior to the hearing
Both reflected a degree of nervousness, Ford somewhat
less than Yates, but in neither case was it excessive or
unnatural Accordingly, the demeanor of these two was
not as helpful in determining the truth of their respective
contentions as a trier of fact would prefer I therefore am
unable to base a credibility resolution here on demeanor
Considering the record as a whole, however, I am per-
suaded that Ford's testimony has the most circumstantial
support and must be credited First of all in this regard,
it is clear from the testimony of Yates and Whitfield that
Whitfield was aware that Hallmark's employees had been
represented by a union and that White Oak intended to
operate on a nonunion basis Secondly, although Whit-
field admittedly wanted whatever employees hired by
White Oak to have electrical and welding skills he made
no attempt to ascertain which of Hallmark's previously
laid-off employees may have possessed such skills Ac-
cording to the testimony of Union President Harris, un-
contradicted in this regard, a number of Hallmark's laid-
off employees possessed such skills even assuming that
the skills of Ford, Price, and Tuck in this area were in-
adequate The absence of inquiry reflects White Oak's
clear disinterest in the Hallmark employees Such disin-
terest continued as shown by White Oak's employment
of Boyd on February 6 to do, not electrical or welding
work, but loading work at the washer even though it
had made no determination at that point to hire Boyd
permanently This disinterest continued even through
March when Whitfield hired an additional employee
when White Oak knew by virtue of the picketing and
the Union's claim to the jobs that the former Hallmark
employees desired employment with White Oak And by
Yates admission, at least as of February 11 when Ford
allegedly pressed Yates to say that White Oak would not
hire the former Hallmark employees, Yates could reason-
ably conclude that they in fact wanted employment It
seems exceedingly strange that Yates, who had been
given White Oak employment applications did not offer
one to Ford on that occasion or even suggest that he
submit one If union considerations were not a factor it is
more likely that he would have done so
Thirdly, while neither Ford, Price, nor Tuck were li-
censed electricians or certified welders, as already noted
Ford and Price had done welding work on the washer
though mostly of a minor nature In any event, while
welding and electrical skills were obviously helpful in
the maintenance of the washer operation it is clear that
White Oak did not rely solely on its employees to per-
form all such work As Whitfield admitted, welding
work which could not be completed in the normal work-
day was contracted out so having employees do all the
welding work was neither absolutely necessary or even
expected As Yates testified, it was necessary to contract
out some of the welding because of the inadequacy of
the White Oak welding equipment Further, it is to be
recalled that Fred Hallmark testified that Hallmark never
had an electrician at the washer, and that there "was
very little electricals up there to be done" Thus, while
having an electrician at the washer may have been bene-
ficial, White Oak's emphasis on it as a necessary skill for
its employees to have appears to be somewhat exaggerat-
ed The necessity for electrical and welding skills under
the circumstances smacks of pretext and lends substance
to the ulterior motivation revealed in the remarks attrib-
uted to Yates by Ford
The foregoing, in my opinion, reveals a pattern of de-
termination not to use the former Hallmark employees
regardless of their skills, a pattern wholly consistent with
the remark Ford attributed to Yates 14 I therefore credit
Ford's testimony that Yates did in fact tell him that the
former employees of Hallmark would not be employed
by White Oak because of the fear of union problems I
find that Yates' statement to Ford was independently co-
ercive and violative of Section 8(a)(1) of the Act as al-
leged In view of Yates' statement to Ford reflecting
both union animus and motivation, and since Ford and
Price at least had some minor welding skills and other-
wise had satisfactory employment records in operating
the washer with Hallmark, I find White Oak's reliance
on the possession of welding and electrical skills as a re-
quirement of employment was pretextural, and that the
real reason was the union representation of Ford, Price,
and Tuck 15 Put another way, I do not believe that Re-
spondent has overcome the General Counsel's prima
facie case of unlawful discrimination based upon Ford's
credited remarks by demonstrating that Respondent
would not have hired Ford, Price, and Tuck due to their
lack of skills and without regard to their union represen-
tation Shortway Suburban Lines, supra Compare, Panco
Petroleum Go, 294 NLRB 103 (1989), R & L Cartage &
Sons, 292 NLRB 530 (1989) In light of this conclusion, I
find Respondent discnmmatonly refused to employ the
former Hallmark employees because of their representa-
tion by the Union in violation of Section 8(a)(3) and (p
of the Act
Since I have found that White Oak discriminated in
hinng against the former Hallmark employees, it follows
that "but for" such discrimination the Union's status as
the exclusive bargaining representative would have sur-
14 In reaching this conclusion I am not unmindful of the testimony of
Whitfield that he interviewed an individual from a company whose em-
ployees were represented by the Union and that individual came and
checked the washer operation, but did not take the job because of the
"pickets' I am able to give this testimony little weight because not only
was It self-serving and uncorroborated, but the interview occurred after
the picketing began on February 22, and thus after Respondent had al-
ready employed the employee complement It had decided upon at that
point Moreover, Whitfield's testimony did not clearly establish that a job
offer was made to the man
15 Tuck was the only former Hallmark employee to whom poor work
was attributed Thus, Fred Hallmark testified that Tuck was unable to
use the front end loader without getting Into the "base" or pad when
scooping up coal There was no evidence that Tuck was ever reprimand-
ed or warned of any deficiency in this regard I therefore find any work
deficiency of Tuck, an experienced equipment operator, was exaggerated
HALLMARK & SON COAL CO 269
vived White Oak's assumption of the Hallmark washer
Moreover, had White Oak not acted discriminatorily it
would have fulfilled all the elements of a full successor-
ship to Hallmark in operation of the washer According-
ly, I find that White Oak violated Section 8(a)(5) as well
as Section 8(a)(3) See Love's Barbeque, supra at 82 Fi-
nally, and also because of the unlawful discnmmation
practiced by White Oak, I find that it unlawfully violat-
ed Section 8(a)(5) of the Act when it unilaterally set the
initial terms of employment of the washer employees
without bargaining with the Union See Potter's Chalet
Drug, 233 NLRB 15, 20 (1977), enfd mem 584 F 2d 980
(9th Cir 1978), Love's Barbeque, supra
CONCLUSIONS OF LAW
1 Respondent White Oak Mining Company, Inc is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act
2 The Union, United Mine Workers of Amenca,
Local Union 2438, is a labor organization within the
meaning of Section 2(5) of the Act
3 All production and maintenance employees em-
ployed by Respondent at its coal preparation facility
near Sipsey, Alabama, excluding coal inspectors and
weigh bosses (where employees are paid by the ton),
watchmen, clerks, engmeenng, and technical employees,
and supervisors as defined in the Act constitute a unit
appropnate for the purposes of collective bargaining
within th meaning of Section 9(b) of the Act
4 At all times material, the Union has been the exclu-
sive representative of all the employees in the aforesaid
unit for the purposes of collective bargaining with re-
spect to rates of pay, wages, hours of employment, and
other terms and conditions of employment within the
meaning of Section 9(a) of the Act
5 Respondent, by informing employees that it would
not hire them because of their affiliation with the Union,
violated Section 8(a)(1) of the Act
6 By refusing to hire the employees of Hallmark &
Son Coal Company, following the lease of the coal prep-
aration facility from Hallmark, because of the union af-
filiation of these employees and to avoid an obligation to
bargain with the Union, Respondent violated Section
8(a)(3) and (1) of the Act
7 Respondent is the successor employer to Hallmark
& Son Coal Company in the operation of the coal prepa-
ration facility, and by failing to recognize and bargain
with the Union since February 15, 1988, as the exclusive
collective-bargaining representative of the employees in
the above unit, including by departing from preexisting
rates of pay and benefits without prior notification to and
consultation with the Union, Respondent violated Sec-
tion 8(a)(5) and (1) of the Act
8 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that White Oak discriminatorily refused
employment to the former employees of Hallmark I shall
recommend that White Oak be ordered to offer them
employment in those positions in which they would have
been hired in the absence of the discrunmation against
them, or, if those positions no longer exist, msubstantially
equivalent positions, without prejudice to their semonty
or other rights or pnvileges previously enjoyed, dis-
charging, if necessary, employees hired from other
sources to make room for them and make them whole
for any loss of earnings that they may have suffered due
to the discnmmation practiced against them, as pre-
scnbed in F W Woolworth Co, 90 NLRB 289 (1950),
with interest to be computed in the manner prescribed in
New Horizons for the Retarded, 283 NLRB 1173 (1987) 16
I shall also recommend that White Oak be ordered to
bargain with the Union concerning any terms and condi-
tions of employment on which they would have been re-
quired to bargain had the Union's majonty status been
acknowledged on February 15, 1988, the date that White
Oak assumed operations of the coal preparation facility
near Sipsey, Alabama Further, White Oak shall be or-
dered to cancel, on request by the Union, changes in
rates of pay and benefits or other terms and conditions of
employment unilaterally effectuated and make the em-
ployees whole by remitting all wages and benefits that
would have been paid absent the unlawful conduct as
found from February 15, 1988 11
[Recommended Order omitted from publication ]
15 In accordance with the Board's decision in New Horizons for the Re-
tarded, interest on and after January 1, 1987, shall be computed at the
"short term Federal rate" for the underpayment of taxes as set out in the
1986 amendment to 26 U S C § 6621
17 The General Counsel urges that backpay should continue beyond
the time when White Oak surrendered its lease of the washer facility,
since the washer employees were transferred to another operation of
White Oak albeit not a washer operation I find the record insufficient to
support any conclusion on this point and shall leave the matter for deter-
mination at the compliance stage of the proceeding The bargaining order
provided comtemplates, however, that Respondent bargain with the
Union concerning the effect of the shutdown of the washer on unit em-
ployees