Jamar Coal Co.

National Labor Relations Board - Board Decisions

May 10, 1989

293 N.L.R.B. 1009 (N.L.R.B. 1989)

JAMAR COAL CO
Jamar Coal Company and John Cutright and Roger
Hollandsworth and Baron Lee and District 31,
United Mine Workers of America Cases 9-
CA-23883-1, 9-CA-23883-2, 9-CA-23883-3,
and 9-CA-23890
May 10, 1989
DECISION AND ORDER
By CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On June 18, 1987, Administrative Law Judge
Thomas A Ricci issued the attached decision The
Respondent filed exceptions and a supporting brief
On November 2, the Board remanded the proceed-
ing to the judge for further consideration On De-
cember 14, the judge issued the attached supple-
mental decision reaffirming his initial decision The
Respondent filed exceptions and a supporting brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision, the sup-
plemental decision, and the record in light of the
exceptions and supporting briefs, and has decided
to affirm the judge's rulings , findings,' and conclu-
sions and to adopt the recommended Order 2
The judge found that the Respondent's discharge
of employees John Cutright, Roger Hollandsworth,
and Baron Lee violated Section 8(a)(3) and (1) of
the Act For the reasons set forth below, we agree
with the judge
The Respondent, Jamar Coal Company, mines
coal under contract with and for the benefit of
mine owners The Respondent operated two coal
mines that are pertinent to this case Jamar No 1
for Holly Coal Company, and Jamar No 2 for N
F Mining Incorporated (N F) The work at
Jamar No 2 began about July 21, 1986, and pro-
gressed for about 10 days During this time the
three alleged discriminatees, Cutright, Hollands
worth, and Lee, engaged in protected concerted
activity-that is, signing and distributing authoriza-
tion cards and talking with other miners in order to
solicit their support for the Union The judge
found that during this time period, the Respond-
ent's coowners, Burnell Boggs and James Murphy,
questioned the alleged discriminatees about union
activity at the mines According to the credited
' The Respondent has excepted to some of the judge s credibility find
rags 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 Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 The judge inadverently cited New Horizons incorrectly The correct
citation is New Horizons for the Retarded 283 NLRB 1173 (1987)
1009
testimony, Boggs and Murphy made repeated state-
ments that the Respondent would not sign a union
contract or run a union operation Lee testified that
Murphy told him he had received a telephone call
informing him that the Respondent's employees
were engaging in organizational activities In the
same conversation, Murphy told Lee that he would
close the mine and return to teaching school before
running a union operation again The next day the
Respondent discharged Cutnght, Hollandsworth,
and Lee, and transferred the other employees to
Jamar No 1 3
In Wright Line,4 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 puma facie showing sufficient to support
the inference that protected conduct was a moti-
vating factor in the 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
The judge found, and we agree, that the General
Counsel established a prima facie case of a viola-
tion The timing and the circumstances of the dis-
charges warrant a strong inference of unlawful mo-
tivation The alleged discriminatees engaged in
union activity at Jamar No 2 shortly after it
opened The credited versions of conversations Re-
spondent had with Hollandsworth regarding the
Union on July 23 establishes the Respondent was
aware of its employees' union activity The Re-
spondent's statements-found violative of Section
8(a)(1) of the Act-that it would not run a union
operation or sign a union contract and would close
if the employees chose to organize firmly estab
lashes the Respondent's union animus The capstone
of the General Counsel's prima facie case is that
the Respondent discharged the alleged discrimina-
tees within hours of learning that an election peti-
tion had been filed by its employees-thereby, the
Respondent essentially fulfilled its promise to close
rather than operate with a union Significantly, the
Respondent transferred-rather than discharged-
those employees who were not involved in the
union activity Based on the foregoing, the General
Counsel established a compelling prima facie case
that the Respondent discharged Cutnght, Hollands
worth, and Lee because of their union activity
3 The employees who were transferred were Alan Hawkins-day fore
man Lee Casteel-night foreman Alan Sampson-nephew or stepson of
Boggs and R K Hamnck-a former employee Only those employees
involved in union activity received discharge notices
4 Wright Line 251 NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cir
1981) cert denied 455 U S 989 (1982) approved in NLRB v Transporta
tion Management Corp 462 U S 393 (1983)
293 NLRB No 126
1010 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In rebuttal, the Respondent relies primarily on a
contract between it and N F The Respondent
contends that this contract limited its duties to
opening the mine According to the Respondent, it
did not receive a contract to operate the mine and
therefore was required by N F to cease its oper-
ation at Jamar No 2 and discharge employees
In regard to the contract, we conclude that it is
insufficient to establish the Respondent's rebuttal
case In so concluding, we cannot endorse the
judge's view that the contract "expressly provides
that the Respondent was to mine the coal once the
mine was in operation "s However, we do not
agree with the Respondent's view that the contract
limited its duties and "expressly provides that N F
"will mine the coal "6 The contract does not speci-
fy any limitation on the length of time or scope of
responsibility for the Respondent's operation at
Jamar No 2, nor does it require the Respondent to
vacate the mine once it is established The con-
tract's failure to provide with clarity that the Re-
spondent would definitely cease its operation at the
mine on opening the mine persuades us that the
Respondent did not establish that its actions were
dictated by contractual requirements 7
In further support of its defense that N F dic-
tated its decision to leave Jamar No 2, the Re-
spondent relied on the testimony of Murphy that
N F 's president, Cecil Nichols, during the last
week in July 1986, informed him that N F had
decided to operate Jamar No 2 itself However,
the judge discredited Murphy's testimony on this
point, and, as previously noted, we have found no
basis for reversing the judge's credibility findings 8
5 The judge noting the contracts references to the mining responsi
bilities of the Respondent concluded that the contract provided for the
Respondent to operate the mine However the Respondent notes that
some degree of mining is required to complete the opening of a mine
6 The Respondent cites contractual language to wit Jamar Coal
Company will put a mine under ground for N F who is to mine
the coal However this language by itself is insufficient to establish that
the Respondent was required to cease operation of the mine on comple
tion of the initial phase The language does not state with specificity that
the Respondent will cease its operation at any given time
7 Member Johansen notes that generally a document-like the contract
between the Respondent and N F -speaks for itself The contract ap
pears to be a complete expression of all the terms agreed on as well as a
final expression of the terms it contains Thus testimony elicited to inter
pret a contract will generally be inadmissible Cf NLRB v L. B Priester
& Son Inc 669 F 2d 355 (5th Cir 1982) (admission of extrinsic evidence
to resolve an ambiguity is proper in interpreting a contract ) Therefore it
is questionable whether the judge should have admitted the testimony of
coowner Murphy that in effect was elicited to interpret the contract In
any event the judge rejected Murphy s testimony on this point and we
find no reason to disturb the judge s finding in this regard
8 The judge in discrediting Murphy and finding his testimony not at
all convincing noted that the Respondent did not call Nichols to testify
The Respondent contends that Nichols testimony would have been cu
mulative surplusage Contrary to the Respondent Nichols testimony on
this point would have been relevant nonhearsay testimony by an appar
ently neutral witness
Based on the foregoing , the Respondent has
failed to establish that it would have discharged the
three alleged discnminatees even in the absence of
their union activity as required to rebut the prima
facie case against its Accordingly , in agreement
with the judge, we find that the Respondent violat-
ed Section 8(a)(3) and (1) of the Act by discharg-
ing employees because of their union activity io
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Jamar Coal
Company, Summersville, West Virginia, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order
9 In further support of our finding that the Respondent has not rebut
ted the strong prima facie case we rely on the credited evidence that
established that Boggs informed both Lee and Hollandsworth that he
contemplated that the mine would remain in operation some 10-12 years
Though the Respondent argues that its contract with N F precluded
work at Jamar No 2 beyond the initial preparations for opening the
mine it is clear from comments like those above that at the time it began
operations the Respondent believed that the commitment for Jamar No 2
was a long term one The contract between the Respondent and N F
does not rebut this evidence While we disagree with the judge s interpre
tation of the contract we do not find that the contract clearly establishes
that the Respondent would be required to cease operations on a date cer
tarn Furthermore we note that shortly after the closure of Jamar No 2
Hawkins an alleged supervisor told Hollandsworth that he had heard
that N F would take over the mine if it went union In addition we
note that even if the mine was closed for reasons beyond the control of
the Respondent the Respondent has not satisfactorily rebutted the puma
facie case as it applies to Cutright Hollandsworth and Lee These three
employees the only active union adherents at mine No 2 were also the
only employees laid off as a result of the closing of that mine
10 The Respondent excepted to the judges refus [al] to consider at all
the prior determination of the Regional Director [in Case 9-RC-14974]
that the Respondent ceased operations at mine No 2 for economic rea
sons Contrary to the Respondents argument we are satisfied that the
judge fully considered the Regional Director s prior decision We note
that in a hearing over issues relevant to the representation case the Re
gional Director would not have before him the unfair labor practice issue
associated with the closure of mine No 2 That issue would not be criti
cal to a determination of voter eligibility Thus the Regional Directors
reference in Case 9-RC-14974 to Mine No 2 closing for economic rea
sons while being entitled to consideration is not binding Rather in
these circumstances our decision like that of the judge must ultimately
be based on an independent consideration and evaluation of the evidence
received in the unfair labor practice proceeding Garrison Valley Center
277 NLRB 1422 fn 1 (1985) see also Reeves Bros 277 NLRB 1568
(1986) It is on this basis that our findings and decision in this proceeding
have been made
James R Schwartz Esq, for the General Counsel
Forrest H Roles Esq and Mark A Carter Esq (Smith
Heenan and Althen), of Charleston , West Virginia, for
the Respondent
Jerry Miller of Fairmont West Vingina , for the Charg
ing Party
DECISION
STATEMENT OF THE CASE
THOMAS A Ricci, Administrative Law Judge A hear
ing in this proceeding was held at Charleston, West Vir
JAMAR COAL CO
ginia, on 7 April 1987, on complaint of the General
Counsel against Jamar Coal Company (the Respondent
or the Company) The complaint issued on 25 February
1987, based on separate charges filed by John Cutright,
Roger Hollandsworth, and Baron Lee, on 9 January
1987, and by District 31, United Mine Workers of Amer
ica (the Union), on 12 January 1987 The essential allega
tions of the complaint are that the Respondent unlawful
ly discharged these three employees and some others in
violation of Section 8(a)(3) of the statute Briefs were
filed by the General Counsel and the Respondent
On the entire record and from my observation of the
witnesses, I make the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Jamar Coal Company, with an office at Summersville,
West Virginia , is engaged in the mining of coal During
the calendar year ending 31 December 1986, in the
course of its business operations , it provided services
valued in excess of $50 ,000 to a nonretail enterprise lo
cated within the State of West Virginia which is directly
engaged in interstate commerce I find that the Respond
ent is an employer within the meaning of the Act
II THE LABOR ORGANIZATION INVOLVED
I find that District 31, United Mine Workers of Amer
ica (the Union) is a labor organization within the mean
ing of Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
At the time of the events that gave rise to this pro
ceeding, the Respondent was operating two coal mines,
about half a mile distant from one another One, where it
employed above 15 employees, was called mine No 1,
and had been operating for some time The other called
mine No 2, only started work on 21 July 1986, and em
ployed about seven or eight men During the week start
ing 21 July, there developed a move among the employ
ees at both mines toward joining the Union There was
talk among the employees, on and off the job, and union
cards were signed On 29 July the Union filed a petition
with the National Labor Relations Board for an election
among all the Respondents employees On 31 July the
Respondent closed down its operations at mine No 2, it
discharged three workers employed there-the men who
later filed charges in this case-and transferred the re
maining employees to its mine No 1
After hearings were held, in August and September,
on the election petition which the Union had filed, an
election was conducted by the Board on 21 October
The Union won a majority of the votes The very next
day the Respondent closed its mine No 1 and sent ev
erybody home At the hearing in this case, 6 months
later, James Murphy, one of the two partner owners of
the Company, admitted clearly that the reason why the
Respondent closed its mine No 1 was because the em
ployees had voted in favor of the Union and that the
1011
Company was not willing to deal with any employees
through a union collective bargaining agent 1
The complaint alleges that the Respondent discontin
ued its operations at mine No 2 because of the union ac
tivity and that therefore when it fired some of the people
working there it committed unfair labor practices The
General Counsel does not contend that the closing of
mine No 1, an admitted retaliation against employees be
cause of their prounion activity, was unlawful The Re
spondent's defense is essentially that the closing of mine
No 2 had nothing to do with the employees' union ac
tivity
The two partners who own this business-James
Murphy and Barnell Boggs-have been in the coal
mining business for some time , operating now one mine
and now another in different locations In fact there is
evidence in this record that the Respondent closed down
another of its mines because the employees there had
also tried to establish a union to represent them What
ever mines the Respondent operates now I do not know
But it is clear to me that its overall business is essentially
to operate multiple mines at various times from place to
place
At the hearing owner Murphy was ambivalent in his
testimony about why he closed mine No 2 That oper
ation was started pursuant to a contract with a company
called N F Mining, Inc At one point in his testimony
Murphy seemed to say that the contract with that com
pany was for his company to do no more than prepare
the mine for operation, and that from the start it had
been agreed N F would do the actual mining thereaf
ter He said that preparatory work was finished by 29
July But Murphy also testified "Our deal was for us to
provide the labor and the supplies and put the coal on
the ground, and they pick it up from there and take it to
the tipple and we get paid on a clean coal basis This
was another way of saying that the Respondent was to
continue to mine the coal after getting the equipment in
place
At another point in his testimony the witness said
there was a change of mind between the contracting par
ties , and that N F decided later to do its own mining
Again from his testimony
A The week before August the 1st Mr Nichols
[owner of N F Mining] told me that he was plan
ning to run the operation himself
Q What did he mean by that?
A He meant that N F Mining was going to
take over at that point after we had completed our
obligation and that N F Mining would be running
the place
If the contract between them provided that N F was
going to do the mining-that is, to run the place-why
' From the transcript of Murphy s testimony
Q Would it be fair to say that you closed down because the union
won the election and you didn t think you could live with union s
demands?
A I suppose that would be fair
1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
did Nichols have to make any new decision just before
Jamar Coal left the mine?
Roger Hollandsworth, one of the employees hired
when mine No 2 started operations on 21 July is an old
friend of Boggs, one of the two owner partners of the
Respondent He testified that Boggs went to his home 2
or 3 days before 21 July and offered him a job John Cu
tnght was also present there that evening From Hol
landsworth s testimony
We talked about the mine and how long it was
going to last and what-the height and things like
that
Q What did Mr Boggs say about how long the
mine was going to last?
A He told us from 10 to 12 years
Q Did you have any other discussion-did he
mention the size of the mine or what they intended
to do at the mine site?
A Well, he said that he was planning driving, I
believe 2 200 foot, maybe through there and then
rooming off and he said he could cut into Mine No
1 from there
Cutright testified that a few days after mine No 2
started operating Boggs spoke to him
He said he believed it would be a good mine for
us to work
Q Did he give you any indication how long he
thought the mine would operate?
A After that he did He told me that down at
No 2 mines, we was talking out there right after
we went to work and he said he figured that place
would last 10 or 11 years
Q Did you have any discussion about the size of
the mine or the size of the area that he would be
mining9
A Yes, he told me it was 2 200 feet through that
hill, and he said when we drove through that hill
we could room it both ways and he said they could
even cut that mines in with the old mines
Both Hollandsworth and Cutright testified that before
the layoff on 1 August neither of them had ever heard
any mention of the possibility of layoff or lack of work
Their discharge clips read Lack of work None of the
foregoing testimony was contradicted by any of the Re
spondent s witnesses
Baren Lee was also hired on 21 July He said that a
few months before that date he spoke to Boggs about the
work prospects because he was considering buying a
truck and wondered whether he could afford it Boggs
told him as Lee testified that they had 10 to 12 years
work at Mine No 2 Lee too, said there was never a
mention of layoff before 1 August for lack of work
There is no contradiction of this testimony either
Would the owner Boggs, tell Hollandsworth, whom
he said he was friends with since their childhood that
the job was going to be steady work if in fact he had
agreed with the N F Company to stay there at that
mine only 10 days? To ask the question is to answer it
The written contract the Respondent made with the
N F Company was received in evidence All it says is
the Respondent was to mine the coal and give it to
N F There is no direct language indicating any limita
tion on the period during which Jamar Coal was to oper
ate there No one was offered from N F Company to
corroborate Murphy s interpretation of the contract
There is no question on this record but that the Re
spondent started the work at its mine No 2 with the full
intention of continuing it for a long time Something hap
pened after it started work at mine No 2 that caused the
Respondent to change its mind What was it? As Board
law also says When the reason advanced by the re
spondent as the reason for discharging a man proves to
be false, a contrary reason, even an illegal one is justified
in conclusion by the administrative law judge Shattuck
Denn Mining Corp v NLRB, 362 F 2d 466 (9th Cir
1966)
Hollandsworth testified that after he started work
Boggs asked him, on 23 July if I had heard anything
about union activities, ' and that he said No The next
day still as Hollandsworth testified Boggs said to him
he wasn t going to run the union operation The
only thing that he had said to me prior to that date that
he just wasn t going to run a union operation Hollands
worth also recalled that a week after his layoff, Hawkins,
an admitted supervisor, told him he heard Cecil Nichols
[owner of N F Mining] was going to take the mine
over if it went union Hawkins did not testify In
August Hollandsworth was present at a Board hearing
on the Union s election petition The witness testimony
continues Mr Boggs stopped at my house and he said
that he had heard that-what I had to testify to at Som
mersville and he said that he would not run a union op
eration the words he told me he would not run a union
operation
Baron Lee gave like testimony One day, as he testi
feed he saw Murphy talking to someone on the office
telephone, after which Murphy came to him And he
told me that was the organizer-union organizer on the
phone and they had said that the men at Mine No 1 had
chosen them to-I forget the words-anyhow chose the
organizers to participate in a union activity Sign
union cards and so forth he said he couldn t afford
to go union that they d shut her down first And that
they d go back to teaching school first before they d
ever run a union again And he said that that s the reason
why they had given up another mine at Island Creek
mines that they had leased before [T]hat they was
running it union then and said they couldn t afford to
run it union then, that s the reason why they sold out
This was the day someone from the National Labor Re
lations Board office called the Respondent to inform it
that the Union had filed the election petition dated 29
July
Both Murphy and Boggs denied any knowledge of
union activity by any of their employees before receiving
notice of the Union s election petition on 29 or 30 July
They also denied making any of the statements about an
tiunionism attributed to them by employees Hollands
JAMAR COAL CO 1013
worth and Lee I credit the two employees against the
owners
The Respondents determination whatever the cost
not to permit a union to represent its employees could
not be clearer on this record The very timing of the two
drastic actions it took against the employees is enough to
support my credibility finding-closing mine No 2 as
soon as it learned of the Union s petition, and closing
mine No 1 the day after the employees voted in favor of
the Union In its letter to all the employees on 16 Octo
ber, 5 days before the election, in which the Respondent
strongly urged, No' votes, it candidly said, We can't
afford the UMW contract and will not sign one This
statement alone is completely consistent with the em
ployees testimony about Boggs telling them the Compa
ny would close down before it had to deal with the
Union And, of course, Murphy s final admission, at the
hearing, that he closed his last mine, No 1, because a
majority of the employees had voted Yes,' removes all
doubt about whether the employees had been told that if
they voted for the Union the Respondent will go out of
business 2
In sum, I find that by discharging Hollandsworth, Lee,
and Cutright on 1 August 1986 the Respondent violated
Section 8(a)(3) of the Act I also find that by telling its
employees, while they were engaged in union activity,
that the Respondent would under no circumstances oper
ate a union represented shop, the Respondent violated
Section 8(a)(1) of the Act
The complaint also alleges that on 25 July 1986, the
Respondent laid off four other employees each specifi
cally named, in violation of Section 8(a)(3) of the Act at
its Mine No 1 Unlike the charges relating to Cutright,
Hollandsworth and Lee, where those individuals each
filed their own separate charges against the Respondent,
as to the four men said to have been laid off illegally on
25 September the charge was filed by the Union
Not one of the four men so listed in the complaint ap
peared at the hearing Indeed the only evidence that they
ever worked for this Company is the Respondent's ad
mission, in its answer to the complaint, that they were in
fact laid off on 25 July At the hearing the owner said
only that they were laid off from mine No 1 for eco
nomic reasons How long had they worked there how
many men were needed from day to day at mine No 1,
was anyone of these four men involved in any way in
the union activity, did the Respondent have any knowl
edge of such activity by them if in fact it happened at
all-absolute silence on the entire record In his brief the
General Counsel concedes that there is no documentary
or otherwise indisputable proof that the Respondent
had any knowledge of union activity before these four
men were fired The only case precedent on which the
General Counsel relies involved the discharge of a man
who was the only union activist in the workplace who
2 From the Respondents brief The Union won and was certified
Jamar shut down on October 22 and has not resumed operations Its deci
lion to do so was in part connected to the outcome of the election
It [the Respondent] objects to the fact that this union-the
UMWA-would in accordance with its notorious and unviolated policy
make demands Jamar could not meet and destroy it with a strike for not
acceding
was interrogated by his employer who was released
without warning and as to whom its employer advanced
only a pretextual excuse There are no facts at all on this
record about what happened at the Respondents mine
No I when these people were laid off I also know that
a fifth man was discharged that same day at mine No 1,
because the Union s charge lists five men who left there
on 25 July Why is not his name also in the complaint9
The burden to prove a violation of the statute always
rests affirmatively on the General Counsel It has not
been born in this case with respect to these four men, I
shall therefore recommend dismissal of the complaint as
to them
IV THE REMEDY
The Respondent must be ordered to cease and desist
from again committing the unfair labor practices found
here John Cutright, Roger Hollandsworth and Baron
Lee must be reinstated to their former positions and
they must be made whole for any loss of earnings they
suffered in consequence of the illegal discrimination
against them In view of the nature of the unfair labor
practices committed, the Respondent must be ordered to
cease and desist from in any other manner violating the
statute hereafter
V THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the operations
of the Respondent described in section I have a close,
intimate and substantial relationship to trade traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce
CONCLUSIONS OF LAW
1 By discharging John Cutnght, Roger Hollands
worth and Baron Lee the Respondent has violated and
is violating Section 8(a)(3) of the Act
2 By the foregoing conduct and by telling its employ
ees that it would not permit them to be represented by a
labor organization, and that it would close any of its
mines in retaliation if the employees chose to be repre
sented by a union the Respondent has violated and is
violating Section 8(a)(1) of the Act
3 The above described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
ed3
' If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
1014 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The Respondent , Jamar Coal Company , Summersville,
West Virginia, its officers, agents , successors, and as
signs, shall
1 Cease and desist from
(a) Discharging or in any other manner discriminating
against its employees in retaliation for their concerted,
protected union activity
(b) Telling its employees that it would in no event rec
ognize a collective bargaining agent selected by them,
and that it would discontinue part of its operations in re
taliation if they chose to be represented by a union
(c) In any other manner interfering with , restraining,
or coercing its employees in the exercise of their right to
self organization , to form, join, or assist District 31,
United Mine Workers of America , or any other labor or
ganization , to bargain collectively through representa
tives of their own choosing , and to engage in concerted
activities for the purpose of collective bargaining or
other mutual aid or protection as guaranteed in Section 7
of the Act, or to refrain from any and all such activities
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer John Cutright , Roger Hollandsworth, and
Baron Lee immediate and full reinstatement to their
former positions or, if such positions no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges
(b) Make whole John Cutright , Roger Hollandsworth,
and Baron Lee for any loss of pay or benefits they may
have suffered by reason of the Respondent 's discnmina
tion against them , with interest thereon to be computed
in the manner prescribed in F W Woolworth Co , 90
NLRB 289 (1950), and New Horizons for the Retarded,
283 NLRB 1173 (1987) 4
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying all pay
roll records , social security payment records , timecards,
personnel records and reports , and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at its places of business in Summersville, West
Virginia copies of the attached notice marked Appen
dix 5 Copies of the notice , on forms provided by the
Regional Director for Region 9, after being signed by
the Respondents authorized representative , shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus
tomarily posted Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de
faced or covered by any other material
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
* See generally Isis Plumbing Co 138 NLRB 716 (1962)
5 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 or
dered us to post and abide by this notice
WE WILL NOT tell our employees that we will refuse
to recognize any collective bargaining agent of their
choice
WE WILL NOT tell our employees that we will shut
down our places oif business in retaliation if they chose
to be represented by District 31, United Mine Workers
of America , or any other labor organization
WE WILL NOT discharge any employee in retaliation
for their union activity
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
WE WILL offer John Cutright , Roger Hollandsworth,
and Baron Lee immediate and full reinstatement to their
former positions and, if those positions no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges
WE WILL make whole John Cutright , Roger Hollands
worth, and Baron Lee for any loss of pay they may have
suffered as a result of the discrimination against them
with interest
All of our employees are free to join or assist District 31,
United Mine Workers of America , or any other labor or
ganization of their choice
JAMAR COAL COMPANY
SUPPLEMENTAL DECISION
THOMAS A Ricci Administrative Law Judge On 18
June 1987 , I issued a decision in this proceeding finding
that the Respondent had violated Section 8 (a)(3) of the
Act by discharging three employees on 31 July 1986 On
2 November 1987 the Board remanded the case to me
for further examination and consideration of the issues
raised
The essential issue raised in this case is whether the
Respondent on August 1986 discontinued operations of
its mine No 2-the day after it learned that the employ
ees had filed a petition for a Board election-in reaction
to that prounion activity , or whether, as the Respondent
contended at the hearing , because its contractual agree
ment with the owner of that time mine-a company
called N F Mining-had by its terms expired
On the basis of the entire record-including the un
contradicted testimony of several employees that they
were told , when hired for mine No 2 by Boggs the
owner that their jobs at that mine would last for several
years-I did not credit the Respondent's affirmative de
fense In its remand Order the Board refers to the con
tract between the Respondent and the N F Mining
JAMAR COAL CO
Company as ` purportedly limiting its activities to estab
lishing the mine To me the word purported means-
as contended by the Respondent'
The facts, which always govern the case, are that the
written contract, received in evidence, does not limit the
Respondent's commitment to merely operning the mine
Not only does it not limit the Respondents commitment,
but it also expressly provides that the Respondent was to
mine the coal once the mine was in operation From the
contract "The coal mined by this agreement will be
loaded by Jamar on trucks furnished by Holly Coal
Company All coal mined is for the benefit of N F "
More from the contract ' In the event that Jamar shall
violate any of the laws and regulations regulating
mining , Jamar shall bear the fines and further, N F
shall have the option of immediately cancelling this
agreement ' [Emphasis added ] In plain English the
word mining ' does not mean install mining equipment
and go home
Moreever, Murphy, the president of the Respondent
Company, testified on direct examination as to exactly
what Nichols of N F told him "about the week prior to
August 1 ' He just said that he had decided that N and
F would mine the coal themselves No need to repeat
what appears in my original decision This last statement
by Murphy was pure admission that the contract made
with N F did not provide that N F would do the
mining If Murphy's contract with Nichols provided that
the coal would be mined by N F how do you explain
Nichols having had to decide," just before 1 August, to
mine the coal himself? What made him change his mind?
The answer lies in the testimony of Roger Hollands
worth, who testified, without contradiction, that shortly
after the 1 August layoff Allan Hawkins, a foreman, told
him he heard Cecil Nichols was going to take the mine
over if it went union' When asserting to the contrary at
the hearing, Murphy was not telling the truth
Indeed, his entire defense is completely inconsistent
Although arguing that the contract with N F provided
that he was to leave mine No 2 as soon as the equipment
was installed, he also argued that his reason for closing it
was because the manager of N F had changed his
mind, and decided, later, to do the mining himself He
stands discredited on this record
In its remand Order the Board also refers to Murphy s
uncontradicted testimony supporting the Respondent s
defense " This uncontradicted testimony is no more
than a reassertion of the Respondents affirmative de
fense It was pure hearsay and not at all convincing
Were it true that the contract had been altered by the
1015
parties before the employees filed their election petition
on 29 July all the Respondent had to do was produce
Nichols to support his hearsay assertion I did not With
the significant timing of the discharge of the three men-
the day after their petition was filed plus the absolutely
credible evidence of antiunion animus in the Respondent,
I could hardly accept Murphy's hearsay testimony to
offset the General Counsels affirmative puma facie case
See Wright Line, 251 NLRB 1083 (1980)
Finally, the remand Order suggests that because the
Regional Director, some months before the charge was
filed in this case, expressed the opinion that the Respond
ent's mine No 2 was closed for economic reasons, a
similar finding should be made on the record before me
That statement by the Regional Director appears in the
Direction of Election issued on the Union s petition for
an election, before this proceeding started I can only be
lieve the Regional Director, at least at that earlier date,
did not yet have all the relevant facts before him In any
event, the opinion of the Regional Director, on the ques
tion whether an unfair labor practice was committed,
does not constitute relevant evidence on the final ques
tion, which can only be decided on the basis of receiva
ble evidence during the hearing on the complaint In
United Aircraft Corp, 168 NLRB 480 (1967), the General
Counsel moved to strike the defense of the respondent in
a refusal to bargain complaint on the ground that the Re
gional Director had simultaneously refused to hold an
election at the Company's request because he felt there
was no question concerning representation at the time
Everytime an employer refuses to bargain on the ground
that a question concerning representation existed when
he refused, the complaint contradicts him, and alleges
that there was no question concerning representation at
the time of the refusal Does the fact that the Regional
Director believes his complaint to be a good one mean
the employer has no right to defend? The General Colin
sel's motion to dismiss in that case was denied Id at 484
Just as a Regional Director's earlier opinion cannot
deny a respondent the right to enter a defense, so his
opinion cannot serve as a defense to a complaint issued
regularly Decision in all unfair labor practice cases must
rest solely on the evidence adduced before the adminis
trative law judge 1
I reaffirm my total decision as issued initially
' If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all put
poses