Mammoth Coal Co.

National Labor Relations Board - Board Decisions

Sep 30, 2009

354 N.L.R.B. 687 (N.L.R.B. 2009)

354 NLRB No. 83
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Massey Energy Company and its subsidiary, Spartan
Mining Company d/b/a Mammoth Coal Com-
pany and United Mine Workers of America.
Case 9–CA–42057
September 30, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On November 21, 2007, Administrative Law Judge
Paul Bogas issued the attached decision. Respondents
Massey Energy Company (Massey) and Mammoth Coal
Company (Mammoth) filed separate exceptions and sup-
porting briefs; the General Counsel and the Charging
Party Union filed answering briefs; and Mammoth filed a
reply brief.1 The General Counsel filed cross-exceptions
and a supporting brief; the Respondents filed answering
briefs; and the General Counsel filed a reply brief.
The National Labor Relations Board2 has considered
the decision and the record in light of the exceptions and
briefs. With respect to the allegations regarding Mam-
moth’s conduct, we have decided to affirm the judge’s
rulings, findings,3 and conclusions as modified below

1 The Union has requested oral argument. The request is denied as
the record, exceptions, and briefs adequately present the issues and the
positions of the parties.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act. See Snell Island SNF LLC v. NLRB, 568 F.3d
410 (2d Cir. 2009), petition for cert. filed __U.S.L.W.__ (U.S. Septem-
ber 11, 2009) (No. 09-328); New Process Steel v. NLRB, 564 F.3d 840
(7th Cir. 2009), petition for cert. filed 77 U.S.L.W. 3670 (U.S. May 22,
2009) (No. 08-1457); Northeastern Land Services v. NLRB, 560 F.3d
36 (1st Cir. 2009), petition for cert. filed 78 U.S.L.W. 3098 (U.S. Au-
gust 18, 2009) (No. 09-213). But see Laurel Baye Healthcare of Lake
Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009), petitions for re-
hearing denied Nos. 08-1162, 08-1214 (July 1, 2009).
3 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces 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.
In adopting the judge’s finding that Mammoth’s conduct evidenced
anti-union animus, Member Schaumber does not rely on various state-
ments made by Massey’s chief executive officer, Donald Blankenship
and to adopt his recommended Order4 as modified and
set forth in full below. In order to expedite the issuance
of this Decision, we have decided to sever the allegation
of Massey’s liability for the unlawful conduct found here
and to reserve that issue for separate resolution.
Background
In August 2004, Massey, through a subsidiary, pur-
chased the Cannelton/Dunn mining operation in Ka-
nawha County, West Virginia from Horizon Natural Re-
sources (Horizon), which had filed for bankruptcy. Since
at least 1969, the Union has been the bargaining repre-
sentative of the coal-mining employees at the Cannel-
ton/Dunn operation (under a succession of owners); Ho-
rizon had adopted the National Bituminous Coal Wage
Agreement of 2002 with the Union. Shortly before the
sale to Massey, however, the bankruptcy judge issued an
order authorizing the rejection of this collective-
bargaining agreement, including the agreement’s succes-
sorship clause, which forbids the sale of any operation to
any buyer that does not agree to assume the collective-
bargaining agreement.
Massey created a subsidiary, Mammoth, to operate the
Cannelton/Dunn mine, which it did beginning December
4, 2004. Although Mammoth hired 219 employees to
perform bargaining unit work, it did not continue the
employment of the approximately 211 bargaining unit
employees. While the Union informed Massey that 250
unit employees were willing to return to work,5 and
many of those employees applied for employment with
Mammoth, only 19 former unit employees were hired.
Mammoth declined to recognize the Union, and it im-
posed new terms and conditions of employment, includ-
ing wages lower than those paid by Horizon.
The General Counsel alleged, and the judge found, that
Mammoth violated Section 8(a)(3) and (1) of the Act by
refusing to hire Horizon’s union employees at the Can-
nelton/Dunn operation in order to avoid incurring a bar-
gaining obligation with the Union. The General Counsel
also alleged, and the judge found, that Mammoth vio-
lated Section 8(a)(5) and (1) by failing and refusing to
recognize the Union as the bargaining representative of
the bargaining unit employees and by unilaterally chang-

that he opposed the Union. Member Schaumber would find that these
statements came within the protection of Sec. 8(c) of the Act.
4 In addition to the remedies provided in the judge’s order, the Gen-
eral Counsel requests a public reading of the Board’s notice. We de-
cline to grant this remedy, and accordingly deny the General Counsel’s
request.
The record indicates that the judge misspelled Jackie Danbury’s
name in his recommended Order; we have corrected the spelling ac-
cordingly.
5 This number may have included laid-off Horizon employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
ing the bargaining unit’s terms and conditions of em-
ployment. For the reasons discussed below, we agree.
Discussion
1. Mammoth’s discriminatory refusal to hire
unit members
For the reasons discussed by the judge in his decision,
we adopt his conclusion that Mammoth unlawfully dis-
criminated on the basis of union status when it refused to
hire 85 former Horizon employees based on their mem-
bership in the predecessor’s bargaining unit and their
prounion sentiments.6 In this regard, we reject Mam-
moth’s contention that application of the evidentiary
burdens set forth in the Board’s recent decision in Toer-
ing Electric, 351 NLRB 225, 233 (2007), which the
judge declined to apply, dictates a different result. Even
assuming that Toering applies to cases in which a suc-
cessor employer has attempted to avoid a bargaining ob-
ligation by refusing to hire the employees of its prede-
cessor,7 we would find that the General Counsel has sat-
isfied the evidentiary burden imposed on him in Toering
by showing that the discriminatees herein were genuine
applicants protected by the Act.
In Toering, which did not arise in the context of a suc-
cessor’s discriminatory refusal to hire the employees of

6 Mammoth has excepted to the judge’s finding that it unlawfully re-
fused to hire applicant Lawson Shaffer, an employee on injured status
at the time it took over the operation and who later applied for and
received Social Security disability insurance benefits. In adopting the
judge’s conclusion that the Respondent discriminated against Shaffer,
we do not rely on the judge’s finding that Shaffer would not have quit
his job upon qualifying for disability benefits from the Social Security
Administration. We will leave to the compliance stage the issue of
whether to toll the backpay period because Shaffer’s physical condition
had rendered him unavailable for work when he qualified for disability
benefits. See, e.g., Aero Ambulance Service, 349 NLRB 314, 314–316
(2007); Performance Friction Corp., 335 NLRB 1117, 1119–1120
(2001).
The judge inadvertently listed discriminatee Dewey Dorsey with
several other applicants who declined a job offer from Mammoth or
chose not to proceed further in the hiring process. In fact, the judge had
credited Dorsey’s account that he did not turn down a job offer.
7 Cf. Planned Building Services, 347 NLRB 670 (2006). In that de-
cision, decided before Toering Electric, the Board held that elements of
the General Counsel’s initial burden of proof under FES do not apply
where (as in the instant case) a successor employer has discriminated in
hiring against its predecessor’s employees in order to avoid a bargain-
ing obligation. Id. At 673–674 (2006). Specifically, the Board stated
that it serves no purpose in a successorship case, where an incumbent
work force has been performing the jobs in question, to require the
General Counsel to prove that the existing employees have relevant
training and experience. Similarly, because a successor employer must
fill vacant positions in starting up its business, there is no reason to
require the General Counsel to demonstrate that the employer was
hiring or had concrete plans to hire. Instead, the Board held, a dis-
criminatory refusal to hire requires the General Counsel “ . . . to prove
[only] that the employer failed to hire employees of its predecessor and
was motivated by antiunion animus.” Id. at 673.
its predecessor, the Board8 held that “an applicant for
employment entitled to protection as a Section 2(3) em-
ployee is someone genuinely interested in seeking to
establish an employment relationship with the em-
ployer.” Id. at 228. The Board imposed upon the Gen-
eral Counsel the ultimate burden of establishing genuine
applicant status by showing both an application for em-
ployment and that the application reflected a genuine
interest in becoming employed. Id.
In the instant case, the employees of Mammoth’s
predecessor had been performing the same jobs at the
same location where Mammoth planned to resume min-
ing. Union officials as well as individual employees re-
peatedly informed the Respondent that the predecessor
work force was ready, able, and willing to fill any and all
available mining positions. Moreover, the union presi-
dent personally submitted 53 applications on behalf of
unit members, and many individual unit members ap-
plied directly to Mammoth through Massey job fairs or
by handing in an application to Mammoth supervisors or
other Mammoth employees. In addition, the record re-
flects, and the judge found that Mammoth routinely hired
employees who failed to submit formal applications.9
Therefore, on the record before us, we would conclude
that the General Counsel satisfied his initial burden of
demonstrating the discriminatees’ application for em-
ployment within the meaning of Toering Electric.
We would also find that Mammoth has not identified
any evidence that might call into question any of the dis-
criminatees’ actual interest in employment. Contrary to
Mammoth’s contention, picketing to protest Massey’s
takeover of the Cannelton/Dunn operation did not indi-
cate a lack of interest in employment; in fact, as the
judge found, the pickets encouraged union members to
apply for work with Mammoth.10
Mammoth’s contention that the submission of applica-
tions in bulk indicates a lack of genuine interest in em-
ployment also fails. The Board specifically held in Toer-
ing that “[t]he fact that applications may be submitted in
a batch is not, in and of itself, sufficient to destroy genu-
ine applicant status, provided that the submitter of the
batched applications has the requisite authority from the

8 Chairman Liebman and then Member Walsh dissented in Toering.
9 As the judge noted, the Respondent recruited, interviewed and
hired many of the nonunit employees of its predecessor without requir-
ing a formal application and could have followed the same practice
with unit employees.
10 Furthermore, even assuming that alleged threats to employees who
crossed the picket line were made, because they were not linked to any
individual picketer they would not disqualify any of the applicants. See
Beaird Industries, 311 NLRB 768, 769 (1993) (picket-line misconduct
does not disqualify individual strikers from rehire unless they are linked
to specific misconduct).
MAMMOTH COAL CO. 3
individual applicants.” 351 NLRB at 233 fn. 51. That
was the situation here: the individual applicants filled out
the applications themselves, signed them, and gave them
to the Union to convey to Mammoth. Thus, even if con-
veying the applications could be said to be “applying” on
their behalf, id. at 233, the applicants clearly authorized
the Union to do so by giving it their filled-out and signed
applications.111 Accordingly, even if Toering were to
apply in this case, we would find that the General Coun-
sel has proved that the individual discriminatees quali-
fied as genuine applicants entitled to the Act’s protec-
tion.
2. Mammoth’s unlawful refusal to recognize and
bargain with the Union
We also agree with the judge that Mammoth is the
statutory successor to Horizon at its Cannelton/Dunn
operation because: (1) Mammoth conducted essentially
the same business at the same location as Horizon did,
and (2) the majority of the newly constituted bargaining
unit employees would have been composed of former
employees of the predecessor, absent Mammoth’s unlaw-
ful discrimination.12 Love’s Barbeque Restaurant No.
62, 245 NLRB 78, 82 (1979), enfd. in relevant part sub
nom. Kallman v. NLRB, 640 F.2d 1094 (9th Cir. 1981).
Consequently, we agree that Mammoth was obligated to
recognize and bargain with the Union as the unit em-
ployees’ exclusive bargaining representative. Love’s
Barbeque, supra, 245 NLRB at 82; NLRB v. Burns Secu-
rity Services, 406 U.S. 272, 280–281 (1972).
We also adopt the judge’s finding that Mammoth’s
discriminatory refusal to hire unit employees, and its
announcement to applicants that its operation would be
nonunion, disqualified it from setting initial terms and
conditions of employment.13 See Love’s Barbeque, supra

11 In any event, it appears that the Union resorted to batched applica-
tions because of the obstacles to application imposed by Mammoth and
the lack of success encountered by individual applicants.
12 In finding that Mammoth conducted essentially the same business
as did Horizon at the Cannelton/Dunn operation, the judge referred to
Mammoth’s post-takeover relocation of equipment and the use of
highway trucks to move coal as unilateral changes made without regard
to its bargaining obligation. We need not address whether or not these
unilateral changes were subject to mandatory bargaining because we
agree with the judge’s central finding that these and other changes did
not alter the essential nature of the business at the Cannelton/Dunn
operation, the mining and processing of coal.
13 The judge correctly rejected Mammoth’s contention that requiring
it to bargain with the Union over the employees’ initial terms and con-
ditions of employment would negate the bankruptcy court’s order set-
ting aside the collective-bargaining agreement. In agreeing with the
judge, we do not rely on his statement that the Respondents would have
been obligated to honor the existing terms and conditions of employ-
ment for the life of the collective-bargaining agreement if the bank-
ruptcy court had not rejected the successorship provision in the agree-
ment.
(discriminatory refusal to hire majority unit of predeces-
sor’s employees precludes employer from unilaterally
setting initial employment terms); Advanced Stretch-
forming International, 323 NLRB 529, 530–531 (1997),
enfd. in relevant part 233 F.2d 1176 (9th Cir. 2000)
(statement to prospective employees that operation
would be nonunion precludes successor from unilaterally
setting initial employment terms). Accordingly, we
adopt the judge’s conclusion that Mammoth violated
Section 8(a)(5) and (1) by failing to recognize and bar-
gain with the Union and by unilaterally imposing new
terms and conditions of employment on the bargaining
unit.
ORDER14
IT IS ORDERED that paragraph 5 of the amended com-
plaint, relating to the liability of Respondent Massey
Energy Corporation, is severed and reserved for separate
consideration and decision by the Board.
IT IS FURTHER ORDERED that the Respondent, Spartan
Mining Company d/b/a Mammoth Coal Company,
Leivasy, West Virginia, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to hire bargaining unit employees of Ho-
rizon Natural Resources Company’s Cannelton/Dunn
operation (the predecessor employer) because of their
union-represented status in the predecessor’s operation,
or because of their union activities, or otherwise dis-
criminating against these employees to avoid having to

A successor that acts lawfully is not legally obligated to accept a
predecessor’s collective-bargaining agreement, but only to bargain with
the majority representative of its employees. Burns, 406 U.S. at 284.
Indeed, unless the “perfectly clear” exception applies, a successor may
normally set initial employment terms without bargaining. Id. at 294–
295.
Here, however, under extant Board precedent, Mammoth’s own
postsale conduct (its continuation of Horizon’s business, its discrimina-
tory refusal to hire the predecessor’s employees, and its announcement
to prospective employees that Mammoth would be nonunion) triggered
an obligation to bargain over the employees’ initial terms and condi-
tions of employment. Advanced Stretchforming, supra; Love’s Barbe-
que Restaurant, supra. Member Schaumber did not participate in Ad-
vanced Strechforming or Love’s Barbeque and does not pass on
whether those cases were correctly decided. However, he applies that
authority here for institutional reasons. Cf. Smoke House Restaurant,
347 NLRB 192, 193 fn. 7 (2006) (Chairman Battista and Member
Schaumber, concurring), citing Pacific Custom Materials, Inc., 327
NLRB 75 (Member Hurtgen, dissenting).
14 We have modified the Order and notice to reflect that the viola-
tions found and remedies imposed are limited to Mammoth, and to
sever the allegations concerning the liability of Massey. Likewise, for
purposes of this decision, the remedy portion of the judge’s decision
applies solely to Mammoth.
At the General Counsel’s request, we have also corrected the judge’s
inadvertent error in the description of the collective-bargaining unit
contained in his recommended Order and notice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
recognize and bargain with the United Mine Workers of
America (the Union).
(b) Refusing to recognize and bargain in good faith
with the Union as the exclusive collective-bargaining
representative of its employees in the following appro-
priate unit:
All employees engaged in the production of coal, in-
cluding the removal of overburden and coal waste,
preparation, processing, and cleaning of coal, and
transportation of coal (except by waterway or rail, not
owned by the Respondent), repair and maintenance
work normally performed at the mine site or at the Re-
spondent’s central shop; and maintenance of gob piles,
and mine roads, and work of the type customarily re-
lated to all of the above at the Respondent’s mines and
facilities; but excluding all office clerical employees,
and all professional employees, guards and supervisors
as defined in the Act.
(c) Unilaterally changing wages, hours, and other
terms and conditions of employment of the employees in
the above-described unit without first giving notice to
and bargaining with the Union about these changes.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Notify the Union in writing that it recognizes the
Union as the exclusive representative of the bargaining
unit employees under Section 9(a) of the Act and that it
will bargain with the Union concerning terms and condi-
tions of employment for the unit employees.
(b) Recognize and, on request, bargain with the Union
as the exclusive representative of the unit employees
concerning terms and conditions of employment and, if
an understanding is reached, embody the understanding
in a signed agreement.
(c) At the request of the Union, rescind any departures
from the terms and conditions of employment of unit
employees that existed immediately prior to the Respon-
dent’s takeover of the predecessor employer, retroac-
tively restoring preexisting terms and conditions of em-
ployment, including wage rates and benefit plans, until it
negotiates in good faith with the Union to agreement or
to impasse.
(d) Make whole, in the manner set forth in the remedy
section of the judge’s decision, the unit employees for
losses caused by the Respondent’s failure to apply the
terms and conditions of employment that existed imme-
diately prior to their takeover of the predecessor em-
ployer.
(e) Within 14 days from the date of this Order, offer
employment to the following named former employees
of the predecessor employer in their former positions or,
if such positions no longer exist, in substantially equiva-
lent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, discharging
if necessary any employees hired in their places:
Michael Armstrong, Charles Bennett, Randel Bowen,
Sr., Roger Bowles, Joseph Brown, Norman Brown,
Mark Cline, Leo Cogar, Tilman Cole, Russell Cooper,
Michael Cordle, Terry Cottrell, David Crawford, Jackie
Danbury, Kenneth Dolin, Dewey Dorsey, Thomas
Dunn, Robert Edwards, Stanley Elkins, William Fair,
Jr., Lacy Flint, Ronald Gray, James Hanshaw, Paul
Harvey, Charles Hill, Cheryl Holcomb, Robert
Hornsby, Clarence Huddleston, Jeffrey Hughes, Harry
T. Jerrell, Jimmy Johnson, Mike Johnson, Alvin Jus-
tice, John Kauff, Tommie Keith, Barry Kidd, Randy
Kincaid, Chester Laing, Everett Lane, Marion "Pete"
Lane, Rodney George Leake, Danny Legg, William
Larry McClure, Robert McKnight, Jr., Ricky Miles,
James Mimms, Gregory Moore, James Moschino,
James Nichols, Robert Nickoson, William Nugent,
Charles Nunley, John Nutter, Ronald Payne, David
Preast, Danny Price, Doyle Roat, Gary Roat, Michael
Roat, Paul Roat, Shannon Roat, Gary Robinson,
Charles Rogers, Michael Rosenbaum, Michael Ryan,
Melvin Seacrist, Lawson Shaffer, Russell Shearer,
Dwight Siemiaczko, Charles Parker Smith, Donald
Stevens, Jeffrey Styers, Jackie Tanner, Roger Taylor,
Gary Totten, Charles Treadway, Byron Tucker, Jr.,
Larry Vassil, Thomas Ward, James Whittington, Jr.,
Philip Williams, William Willis, Ralph Wilson, Gary
Wolfe, Fred Wright.
(f) Make the employees referred to in the preceding
paragraph 2(e) whole for any loss of earnings and other
benefits they may have suffered by reason of the Re-
spondent’s unlawful refusal to hire them, in the manner
set forth in the remedy section of the judge’s decision.
(g) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful refusal
to hire the employees named in the preceding paragraph
2(e) and, within 3 days thereafter, notify them in writing
that this has been done and that the refusal to hire them
will not be used against them in any way.
(h) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
MAMMOTH COAL CO. 5
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(i) Within 14 days after service by the Region, post at
its facilities in and around Kanawha County, West Vir-
ginia, copies of the attached notice marked “Appen-
dix.”15 Copies of the notice, on forms provided by the
Regional Director for Region 9, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at its facilities at
any time since December 3, 2004.
(j) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. September 30, 2009
Wilma B. Liebman, Chairman
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

15 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your
benefit and protection
Choose not to engage in any of these protected
activities
WE WILL NOT refuse to hire bargaining unit employees
of Horizon Natural Resources Company’s Cannel-
ton/Dunn operation, the predecessor employer, because
of their union-represented status in the predecessor’s
operation, or because of their union activities, or other-
wise discriminate against these employees to avoid hav-
ing to recognize and bargain with the United Mine
Workers of America..
WE WILL NOT refuse to recognize and bargain in good
faith with the Union as the exclusive collective-
bargaining representative of our employees in the follow-
ing appropriate unit:
All employees engaged in the production of coal, in-
cluding the removal of overburden and coal waste,
preparation, processing, and cleaning of coal, and
transportation of coal (except by waterway or rail, not
owned by us), repair and maintenance work normally
performed at the mine site or at our central shop; and
maintenance of gob piles, and mine roads, and work of
the type customarily related to all of the above at our
mines and facilities; but excluding all office clerical
employees, and all professional employees, guards and
supervisors as defined in the Act.
WE WILL NOT unilaterally change wages, hours, and
other terms and conditions of employment of employees
in the above-described unit without first giving notice to
and bargaining with the Union about these changes.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL notify the Union in writing that we recognize
it as the exclusive representative of our unit employees
and that we will bargain with it concerning terms and
conditions of employment for unit employees.
WE WILL recognize and, on request, bargain with the
Union as the exclusive representative of the unit employ-
ees concerning terms and conditions of employment and,
if an understanding is reached, embody the understand-
ing in a signed agreement.
WE WILL, at the request of the Union, rescind any de-
partures from terms and conditions of employment that
existed immediately prior to our takeover of Horizon’s
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Cannelton/Dunn operation, retroactively restoring preex-
isting terms and conditions of employment, including
wage rates and benefit plans, until we negotiate in good
faith with the Union to agreement or to impasse.
WE WILL make whole the unit employees for losses
caused by our failure to apply the terms and conditions of
employment that existed immediately prior to our take-
over of Horizon’s Cannelton/Dunn operation.
WE WILL, within 14 days from the date of the Board’s
Order, offer employment to the following named former
employees of Horizon’s Cannelton/Dunn operation, in
their former positions or, if such positions no longer ex-
ist, in substantially equivalent positions, without preju-
dice to their seniority or any other rights or privileges
previously enjoyed, discharging if necessary any em-
ployees hired in their places:
Michael Armstrong, Charles Bennett, Randel Bowen,
Sr., Roger Bowles, Joseph Brown, Norman Brown,
Mark Cline, Leo Cogar, Tilman Cole, Russell Cooper,
Michael Cordle, Terry Cottrell, David Crawford, Jackie
Danbury, Kenneth Dolin, Dewey Dorsey, Thomas
Dunn, Robert Edwards, Stanley Elkins, William Fair,
Jr., Lacy Flint, Ronald Gray, James Hanshaw, Paul
Harvey, Charles Hill, Cheryl Holcomb, Robert
Hornsby, Clarence Huddleston, Jeffrey Hughes, Harry
T. Jerrell, Jimmy Johnson, Mike Johnson, Alvin Jus-
tice, John Kauff, Tommie Keith, Barry Kidd, Randy
Kincaid, Chester Laing, Everett Lane, Marion "Pete"
Lane, Rodney George Leake, Danny Legg, William
Larry McClure, Robert McKnight, Jr., Ricky Miles,
James Mimms, Gregory Moore, James Moschino,
James Nichols, Robert Nickoson, William Nugent,
Charles Nunley, John Nutter, Ronald Payne, David
Preast, Danny Price, Doyle Roat, Gary Roat, Michael
Roat, Paul Roat, Shannon Roat, Gary Robinson,
Charles Rogers, Michael Rosenbaum, Michael Ryan,
Melvin Seacrist, Lawson Shaffer, Russell Shearer,
Dwight Siemiaczko, Charles Parker Smith, Donald
Stevens, Jeffrey Styers, Jackie Tanner, Roger Taylor,
Gary Totten, Charles Treadway, Byron Tucker, Jr.,
Larry Vassil, Thomas Ward, James Whittington, Jr.,
Philip Williams, William Willis, Ralph Wilson, Gary
Wolfe, Fred Wright.
WE WILL make the above-named employees whole for
any loss of earnings and other benefits they may have
suffered by reason of our unlawful refusal to hire them,
less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful refusal to hire the above-named employees and,
within 3 days thereafter, notify each of them in writing
that this has been done and that the refusal to hire them
will not be used against them in any way.
SPARTAN MINING COMPANY D/B/A MAMMOTH
COAL COMPANY
Engrid Emerson Vaughan, Esq., Donald A. Becher, Esq., and
Linda B. Finch, Esq., for the General Counsel.
Richard R. Parker, Esq. (Ogletree, Deakins, Nash, Smoak &
Stewart, P.C.), of Nashville, Tennessee, for Respondent
Massey Energy Company.
Forrest H. Roles, Esq. and Brace R. Mullett, Esq. (Dinsmore &
Shohl L.L.P.) of Charleston, West Virginia, for Respondent
Spartan Mining Company d/b/a Mammoth Coal Company.
Charles F. Donnelly, Esq., of Charleston, West Virginia, and
Judith Rivlin, Esq., of Fairfax, Virginia, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. This case was tried
in Montgomery, West Virginia, on 16 days commencing on
January 22 and concluding on March 15, 2007. The United
Mine Workers of America (the Union) filed the original charge
on June 2, 2005, and amended charges on June 28 and July 22,
2005, and June 22, 2006. The Regional Director for Region 9
of the National Labor Relations Board (the Board) issued the
complaint and notice of hearing on August 18, 2006, and an
amended complaint and notice of hearing on October 6, 2006
(the complaint).
The complaint alleges that the Respondents—Massey En-
ergy Company (Massey) and its subsidiary, Spartan Mining
Company d/b/a Mammoth Coal Company (Mammoth)—
violated the National Labor Relations Act (the Act) when they
began staffing and operating Mammoth as a successor to Hori-
zon Natural Resources Company (Horizon). More specifically,
the complaint alleges that since about December 3, 2004,
Mammoth violated Section 8(a)(3) and (1) when it refused to
employ bargaining unit employees of Horizon in order to avoid
an obligation to recognize and bargain with the Union as a suc-
cessor, and also because those individuals were union members
and engaged in protected activities. If not for that discrimina-
tion, the complaint avers, the majority of Mammoth’s work
force would have been comprised of individuals previously
employed by Horizon, and a responsibility to recognize and
bargain with the Union would have been triggered. The com-
plaint alleges that Mammoth violated Section 8(a)(5) and (1) of
the Act when it failed and refused to recognize and bargain
with the Union as the exclusive collective-bargaining represen-
tative of the unit employees and unilaterally established manda-
tory terms and conditions of employment for employees in the
bargaining unit. In addition, the complaint alleges that the
unfair labor practices of the Respondents affect commerce
within the meaning of Section 2(6) and (7) of the Act. Both
Respondents filed timely answers in which they denied having
committed any of the violations alleged in the complaint.
MAMMOTH COAL CO. 7
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
Mammoth, a corporation, with an office in Leivasy, West
Virginia, is engaged in the mining, processing, and shipping of
coal at various facilities in and around Kanawha County, West
Virginia. In conducting these activities during the 12 months
preceding issuance of the complaint, Mammoth purchased and
received at its Kanawha County, West Virginia facilities, goods
valued in excess of $50,000 directly from points outside the
State of West Virginia. I find that Mammoth is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
Massey, a corporation, with its principle office in Richmond,
Virginia, performs various administrative services for its sub-
sidiaries and operations, and satisfies the Board’s direct outflow
and/or direct inflow nonretail jurisdictional standards. Massey,
through its subsidiaries and operations, annually mines and
ships out of the State of West Virginia, coal worth more than
$50,000. I find that Massey is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
The Respondents admit, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. OVERVIEW
In August 2004, Respondent Massey, through its operating
subsidiary, A.T. Massey Company (A.T. Massey), bought cer-
tain assets and properties of Horizon, a company that had filed
for bankruptcy. Among the assets that Massey acquired were a
Horizon coal mining operation known as Cannelton Industries,
Inc. (Cannelton) and Cannelton’s subsidiary, Dunn Coal and
Dock Company (Dunn), which operated on the Cannelton
property. Massey created a new subsidiary, Mammoth, for the
purpose of operating what had been Cannelton/Dunn. Coal
mining employees at Cannelton/Dunn had, since at least 1969,
been represented by the Union, Local 8843. Recently, officials
of Cannelton and Dunn had signed memoranda of understand-
ing adopting the National Bituminous Coal Wage Agreement of
2002 (2002 National Coal Agreement) as their base agreement
with the Union. That agreement had not expired at the time the
Respondents took over Cannelton/Dunn, but has since reached
its stated expiration date of December 31, 2006.
The Respondents assumed control of Horizon’s Cannel-
ton/Dunn operation on September 24 or 25, 2004. At that time,
the Respondents did not continue the employment of any of the
bargaining unit employees represented by the Union. However,
prior to taking control of the operation, the Respondents’ offi-
cials offered employment interviews and/or continued em-
ployment to every one of the nonbargaining unit employees of
Cannelton/Dunn. The Respondents offered this opportunity not
only to supervisory staff, but also to nonsupervisory employees
who were not in the bargaining unit. For example, the Respon-
dents offered pretakeover employment interviews and/or em-
ployment to Cannelton/Dunn’s secretaries, maintenance clerk,
payroll clerk, accounts payable clerk, benefits clerk, shipping
clerk, warehouse clerk, CAD operator who made maps, and
human resources employee. The Respondents also offered
employment interviews and/or employment to the laboratory
staff working as contractors at Cannelton/Dunn. As a result of
these interviews, many nonbargaining unit workers were hired
and continued their employment uninterrupted when the Re-
spondents took over the Cannelton/Dunn operation. However,
every one of the over 200 Cannelton/Dunn bargaining unit
employees lost their jobs at the facility when the Respondents
took it over in September 2004. Between 19 and 22 of those
Cannelton/Dunn unit employees eventually found employment
with the Respondents at the facility.
On November 18, 2004, William Willis,1 the president of the
Union’s Local 8843, which represented the Cannelton/Dunn
unit employees, wrote to Respondent Massey’s chief executive
officer, Don L. Blankenship, and stated that the approximately
250 former Cannelton/Dunn workers represented by the Union
were “ready, willing and able to return to work at a moment’s
notice.” Many of those employees, including almost all of the
alleged discriminatees, obtained applications from the union
hall and applied to work at the former Cannelton/Dunn facility,
now known as Mammoth. Former Cannelton/Dunn unit em-
ployees also sought work at Mammoth by going to Massey
offices and to Massey job fairs. On December 3, 2004, the
Respondents began employing individuals to perform the work
of the former bargaining unit employees, and the record pro-
vides information on the individuals hired by the Respondents
from that time until May 1, 2006. That information shows that
the Respondents hired approximately 219 individuals to per-
form the types of work that had been done by bargaining unit
employees at Cannelton/Dunn,2 but hired no more than 22 of
the over 200 former Cannelton/Dunn unit employees. The
former Cannelton/Dunn employees that the Respondents hired
to work at Mammoth did not include a single one of the ap-
proximately 11 individuals who had been union officials or
union committee members at Cannelton/Dunn when the opera-
tion changed hands.3 Since the Respondents began operating

1 This individual is often referred to in the record by his nickname,
(Bolts)—a reference to his past work as a roof bolter in the mines.
2 I have included the approximately 15 persons hired by the Respon-
dents into “utility” classifications (utility, outside utility, plant utility,
and surface utility) among the total of approximately 219 who were
assigned to perform what had been bargaining unit work at Cannel-
ton/Dunn. At trial, there was discussion of a contention by Respondent
Mammoth that the utility employees’ work would not have been con-
sidered bargaining unit work under the 2002 National Coal Agreement.
It is not clear that Mammoth is continuing to press this point. At any
rate, one of Mammoth’s own witnesses, Jennifer Chandler, who was in
charge of human resources matters for Mammoth during significant
periods of time, testified that the utility workers were doing the work
that, at Cannelton, had been done by “miner helpers,” a category of
positions that are covered by the 2002 Agreement. Transcript (Tr.)
1630–1631; General Counsel’s Exhibit (GC Exh.) 14(a) at pp. 64–66,
317, 318, 320, 325, 326, and 332.
3 The Cannelton/Dunn unit members who had been union officers or
committee members during the period leading up to the transfer of
ownership are: David Crawford, Ronald Gray, Harry T. Jerrell, Robert
McKnight Jr., Gregory Nuckols, Ronald Payne, Kenneth Price, Michael
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
the facility, Mammoth has refused to recognize and bargain
with the Union as the collective-bargaining representative of
any of its employees.
According to Respondent Mammoth, it was simply attempt-
ing to hire the most qualified work force. Mammoth contends
that the rejected former Cannelton/Dunn employees either re-
ceived poor references from their former supervisors, were not
recommended by interviewers, were not qualified for the posi-
tions that they were seeking or that were available, or had failed
to make adequate efforts in pursuit of employment. The record
shows that instead of retaining or hiring the Cannelton/Dunn
unit employees, the Respondents filled many of the open posi-
tions by moving employees from other Massey subsidiary
mines to Mammoth even though the other subsidiary mines
were facing serious shortages of experienced miners and were,
in many cases, located where recruitment was more difficult
than at Mammoth. The record shows that, early on, the Re-
spondent also filled many positions by hiring inexperienced
trainee miners. A number of these individuals had no prior
employment at all with a mining operation.
III. THE MASSEY ORGANIZATION
Respondent Massey, a holding company, is the largest coal
company in central Appalachia, with operations in West Vir-
ginia, Kentucky, Tennessee, and Virginia. Among Massey’s
holdings are at least 22 subsidiary coal mining operations,
which Massey refers to as “resource groups.” These Massey-
owned mining operations usually consist of several coal mines,
a preparation plant to which coal from those mines is brought
for processing, and a shipping facility at which the processed
coal is loaded for transportation to customers. Mammoth is
one such subsidiary operation. A.T. Massey, another wholly
owned subsidiary of Respondent Massey, is described by
Massey as the “operating entity” for the Massey enterprise.
Massey Coal Services, also a wholly owned Massey subsidiary,
serves as an internal consulting group for Massey companies.
The staff of Massey Coal Services, inter alia, assists subsidiary
coal mines by providing advice on human resources matters
and sometimes by performing the human resources functions
for those subsidiaries. According to the testimony of
Blankenship (Respondent Massey’s CEO), all of the subsidiar-
ies in the Massey corporate family “funnel up” to Respondent
Massey.
Respondent Massey argues that it had no meaningful in-
volvement in the operations of Mammoth and bears no respon-
sibility for the actions that give rise to the alleged unfair labor
practices in this case. Counsel for Massey strains to character-
ize Massey narrowly to include only the Company’s existence
as an entity listed on the stock exchange that interacts with
investors. That characterization is contrary to the evidence in
this case, which amply demonstrates that the Massey corporate
family, including its subsidiary mining operations such as
Mammoth, is highly interrelated and that its labor policy is

Ryan, Dwight Siemiaczko, William Willis, and Gary Wolfe. Charles
Treadway, another alleged discriminatee, had been a union committee
member, but it is not clear how recent that experience was. Jackie
Tanner, who had been a union committee member until 2000, was also
not hired.
coordinated by officials of Massey. For example, the wage
rates and benefits offered by the individual mining subsidiaries
are not set by the management of those subsidiaries, but rather
by Massey’s board of directors and/or Massey’s chairman.
Similarly, Massey dictates whether or not a particular subsidi-
ary will offer retention incentives for experienced miners.
Massey also tells the human resources directors at the subsidi-
ary mines when they must hire trainee miners and place them
with experienced mentors. (Tr. 2658.) According to a mine
superintendent at Mammoth, who has been a manager at five
different Massey subsidiary mines, policies and procedures are
the same from one Massey-owned mine to another. (Tr. 2759.)
In some practical respects, Massey treats the employees of
its subsidiary mines as members of the greater Massey corpo-
rate family. For example, if an employee at one Massey sub-
sidiary mine wishes to leave for work at another Massey sub-
sidiary mine it is not enough that the prospective employer
agrees to hire him or her. Approval must also be sought from
the first employer and the employee will generally not be per-
mitted to transfer if it means that the first employer will be
“stripped” of a needed employee. Employees at subsidiary
mines participate in a corporatewide pension plan, and their
pension status is not affected when they move from one sub-
sidiary to another. The Massey organization places help
wanted advertisements stating that Respondent Massey is seek-
ing experienced miners, even though miners hired through such
efforts will work at the subsidiary mining companies.
The highly interrelated, integrated, character of the Massey
corporate family is underscored by the fact that officials have
positions with multiple entities within it. For example, Don L.
Blankenship is Respondent Massey’s chief executive officer
(CEO), chairman and president, but he is also CEO, chairman,
and president of A.T. Massey. Drexel Short is Respondent
Massey’s senior vice president for group operations, and also
holds the position of chairman of Massey Coal Services. (Tr.
1558–1559 and 2164); General Counsel’s Exhibit 11a (Re-
spondent Massey’s 2005 Annual Report) at pages 5 and 20.
Jennifer Chandler, while employed as the regional human re-
sources director for Massey Coal Services, also served as the
human resources official for Massey subsidiaries Mammoth,
Alex Energy, Green Valley Coal, Nicholas Energy, and Power
Mountain. Susan Carr, the benefits coordinator for Respondent
Mammoth is also the benefits coordinator at two other subsidi-
ary mines, and is actually employed by Massey Coal Services.
The evidence shows that Respondent Massey’s control over
its subsidiaries, and in particular over the labor relations policy
of its subsidiaries, extends to Mammoth. Although Mammoth
has its own president—David Hughart, who was selected for
that position by Massey’s CEO, Blankenship—it was Massey
officials, not the leadership at Mammoth, who decided what
wages and benefits could be offered to prospective Mammoth
employees. Therefore, those Massey officials directly partici-
pated in the decision to unilaterally change the terms of em-
ployment from the ones Cannelton/Dunn had offered prior to
Massey’s acquisition of the operation. Similarly, it was Massey
that dictated when Mammoth had to hire trainee miners, and
that established any preferences for transferees from other
Massey mines. Indeed, in its brief, Mammoth argues that
MAMMOTH COAL CO. 9
Massey policies on, inter alia, trainees and transferees explain
the failure to hire the former Cannelton/Dunn unit members to
fill openings at Mammoth.
In addition, Drexel Short, Respondent Massey’s senior vice
president for group operations, interviewed prospective Mam-
moth staff, including at least one individual, James Fitzwater,
who was being considered for work that had been performed by
the union-represented Cannelton/Dunn unit employees. Short’s
office was also involved with coordinating job interviewers
during the period when the Respondents chose to offer pre-
takeover interviews to the nonunion/nonunit Cannelton/Dunn
incumbents, but not to the union/unit incumbents. Another
Massey official, Chris Adkins, Massey’s senior vice president
and chief operating officer, also interviewed prospective
Mammoth staff.
In addition to Short’s own role interviewing and coordinat-
ing interviews, he was also responsible for assigning Jeff
Gillenwater, a Massey Coal Services official, to conduct inter-
views of prospective Mammoth employees. Gillenwater, in
turn, not only conducted interviews, but oversaw aspects of the
effort to staff Mammoth. For example, Gillenwater provided
Kevin Doss4 (Mammoth’s human resources officer from De-
cember 2004 until August 2005) with a spreadsheet that set
forth the approximate “union time” of each of the former Can-
nelton/Dunn bargaining unit employees and directed Doss to
ascertain the status of each of these union employees in the
application/hiring process and report that information back to
Gillenwater.5 In addition, Gillenwater gave Doss the names of
former Cannelton/Dunn employees who had signed a letter to
the State Department of Environment Protection (DEP) ques-
tioning permits used by a Massey subsidiary. According to
Susan Carr, Mammoth’s benefits coordinator, Hughart had to
obtain Gillenwater’s approval before hiring individuals at
Mammoth who did not have a high school degree or GED.
Gillenwater and Doss discussed how to recruit Mammoth
staff—specifically, the possibility of placing help-wanted ad-
vertisements. During the period when they were staffing Mam-
moth, Gillenwater instructed Doss to watch a film that dis-
cussed, among other subjects, how union recognition could be
triggered based on the percentage of union supporters who
completed union cards.
Officials of Massey directly supervised officials at Mam-
moth in personnel matters other than staffing, and employee
wages and benefits. For example, Short, a Massey senior vice

4 The last name of this individual is sometimes misspelled in the
transcript as “Dawes.”
5 Gillenwater claimed that he did not know why “union time” was
included on this spreadsheet, and stated that he used the spreadsheet
only because it had been sent to him by Michael Haynes, the Cannel-
ton/Dunn mine superintendent, via e-mail. Haynes, who is neither an
alleged discriminatee nor an official of the Respondents, testified that
he did not provide this spreadsheet to the Respondents, that he did not
possess the information included on it, and that he could not have sent
it to Gillenwater by e-mail since the Horizon e-mail system was
“closed” and only allowed him to contact persons inside Horizon.
Based on the demeanor of the witnesses, the testimony, and the record
as a whole, I found Haynes’ testimony on this subject more credible
than Gillenwater’s.
president, told Doss how to discipline Mammoth employees
involved in a safety infraction that occurred shortly after the
Respondents began operating the former Cannelton/Dunn facil-
ity. Similarly, John Poma, Massey’s vice president for human
resources, was the direct supervisor of Chandler, the Massey
Coal Services employee who handled human resources duties
at Mammoth during two stretches in the relevant time period.
Supervisory personnel at Mammoth made statements recog-
nizing that labor policy at Mammoth was not entirely in the
hands of the leadership at Mammoth, but rather was controlled
in significant respects by Massey. Jon Adamson, the superin-
tendent of Mammoth’s preparation plant and a person heavily
involved with selecting employees for Mammoth, testified that
Massey officials made known to him that Mammoth was to be
operated “union free.” (Tr. 3020–3021.) Moreover, Adamson
explained that interviewees were asked whether they were will-
ing to work nonunion because “[i]t was pretty common knowl-
edge that Massey would operate that operation union free.”
(Tr. 2992.) Similarly, when employee Terry Abbott suggested
to Keith Stevens,6 a Mammoth supervisor, that the shortage of
experienced miners at Mammoth could be addressed by hiring
more of the displaced Cannelton/Dunn unit employees, Stevens
dismissed the suggestion, replying, “Don Blankenship’s7 a
smart man, he’s not going to let the numbers go against him.”
(Tr. 664.)8 Stevens had been a supervisor at Cannelton/Dunn
and according to Respondent Mammoth would, therefore, have
participated in the hiring process at Mammoth by making rec-
ommendations about whether to hire employees who had
worked at Cannelton/Dunn.
Respondent Massey’s attempt in this proceeding to charac-
terize itself narrowly to include only its existence as an entity
on the stock exchange that is not actually involved with the
Mammoth mining operation is inconsistent not only with the
activities and evidence discussed immediately above, but also
with the way Massey presents itself in annual reports and pro-
motional materials. In annual reports for 2005 and 2004, Re-
spondent Massey described itself as a company that mines,
process, and sells coal, and repeatedly referred to the coal min-
ers at subsidiaries such as Mammoth as Massey’s “members”—
the term Massey uses for employees. Similarly, a document
that was distributed to applicants for employment at Mammoth
states that “Massey Energy is pleased to be able to offer em-
ployment opportunities at Mammoth Coal Company.” (GC
Exh. 23, emphasis added.) It is also telling that, while Massey
now claims it was not sufficiently involved in Mammoth’s

6 In the record, his last name is often misspelled “Stephens.”
7 As discussed above, Blankenship is the CEO, president, and chair-
man of Massey.
8 I credit Terry Abbott’s clear and certain testimony that Stevens
made this statement to him. Stevens testified that he did not recall mak-
ing the statement to Abbott, but he did not testify that he recalled that
he had not done so. Stevens conceded that if he had made the state-
ment recounted by Abbott, he would not necessarily remember it. Tr.
2752–2753. In addition, Abbott is not an alleged discriminatee and has
nothing obvious to gain by falsely claiming that Stevens made such a
statement. Although Abbott had been a union officer in the past, he
had not held such a post since 1979, and since that time had worked at
coal mines in non-unit positions as a salaried employee.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
operations to be held responsible for harm caused by any unfair
labor practices at the former Cannelton/Dunn facility, it took
the position in a lawsuit filed in Virginia Circuit Court on June
15, 2005, that Massey (not Mammoth) was entitled to recover
damages from the Union for alleged harm to the effort to re-
sume the Cannelton operation. (GC Exh. 19.)
To restate the obvious, the record shows that the Massey
corporate family, including Mammoth, is highly interrelated
and that its labor and human resources policy is controlled in
significant respects by officials of Respondent Massey. The
integrated nature of the Massey enterprise has been recognized
by the United States Court of Appeals for the Fourth Circuit.
In A.T. Massey Coal Co. v. Massanari, the Fourth Circuit stated
that the Massey corporate family, including its subsidiary min-
ing operations, function as “a single production entity with
sales, transportation and distribution coordinated from
Massey’s Richmond headquarters.” 305 F.3d 226, 233 (2002),
citing A.T. Massey Coal Co. v. Mine Workers, 799 F.2d 142,
144 (4th Cir. 1986), cert. denied 481 U.S. 1033 (1987). The
evidence discussed above confirms the validity of that conclu-
sion. Moreover, the involvement of Massey officials in the
personnel functions of its subsidiary Mammoth, and indeed its
direct participation and key causal role in the actions alleged to
be unlawful in this proceeding, satisfy the Board’s standard for
holding a parent company liable for the unfair labor practices of
a subsidiary. See Smithfield Foods, 347 NLRB 122, 122 fn. 2
(2006) (parent corporation is liable for subsidiary’s unfair labor
practices on a direct participation theory where parent was di-
rectly responsible for several violations, and one of its officials
was involved in the antiunion campaign from which the full
panoply of violations arose); Condado Plaza Hotel & Casino,
330 NLRB 691, 693 (2000), enfd. sub nom. Posadas de Puerto
Rico Associates, Inc. v. NLRB, 243 F.3d 87 (1st Cir. 2001)
(parent corporation is liable for the unfair labor practice by a
subsidiary where parent is shown to have participated directly
in the unfair labor practice); Esmark, Inc., 315 NLRB 763, 767
(1994) (parent corporation liable for unfair labor practice of
subsidiary where parent through its “vigorous and detailed
exercise of its right of ownership” played a “key causal role” in
the unfair labor practice, even though no direct participation
was shown).9

9 Massey argues that these legal standards for parent company liabil-
ity were not set forth in the amended complaint. The amended com-
plaint, however, alleges that Mammoth is a subsidiary of Massey, that
Massey performs various administrative services for its subsidiaries,
that Massey and Mammoth have been “acting for and on behalf of each
other,” and are “agents of each other” and that both Respondents com-
mitted unfair labor practices that affect commerce. On the first day of
the trial, counsel for the General Counsel took the position that Massey
and Mammoth were both part of “one big ball of wax.” Tr. 159. At
any rate, in its brief, Massey discusses the legal standard for parent
company liability, but cites to no types of evidence regarding its inter-
relation with Mammoth, or involvement in the alleged unfair labor
practices, that it did not introduce, but would have, if the complaint had
been precise about the applicable legal standard. Br. R. Massey at p.10.
Based on my review of the entire record, I conclude that Massey’s
involvement in, and potential liability for, the alleged unfair labor prac-
tices has been fully litigated.
IV. RESPONDENTS’ CULTURE OF ANIMOSITY TOWARDS
UNIONS AND UNION ACTIVITY
As Adamson testified, Massey officials had declared that
they would operate Mammoth union-free even before the Re-
spondents selected the employees who would perform the work
of the former Cannelton/Dunn unit members. Massey’s deci-
sion to operate Mammoth without a union was communicated
not just to managers like Adamson, but also to individuals who
were seeking work at Mammoth. Indeed a document that the
Respondents’ officials distributed to applicants flatly stated that
“the mine is nonunion.” (GC Exh. 23; Tr. 2172–2173.) Ac-
cording to Ray Hall, a Mammoth mine superintendent, the
same point was made while interviewing applicants. (Tr.
2785.) This was confirmed by several prospective employees.
During an interview on November 30, 2004, applicant Michael
Armstrong was told that the operation at Cannelton was “a
nonunion mine now, it wasn’t no longer be union.” At the
interview, Armstrong was asked whether he knew the mine was
non-union and “would [he] mind?” (Tr. 3354.) Similarly, ap-
plicant Leo Cogar was advised during his interview of January
28, 2005, that Mammoth would be operated union free. (Tr.
1072.) During his interview for work at Mammoth, Randy
Kincaid was asked how he “felt” about working nonunion (Tr.
1695–1696), and when Adamson discussed the possibility of
employment at Mammoth with applicant Joe Brown, Adamson
questioned Brown about his willingness to work nonunion. (Tr.
1916–1917.)
In addition, Adamson testified that one of the main things
that influenced his unwillingness to hire Willis—president of
the Union’s local—was Willis’ statement of intent to organize
on behalf of the Union if hired. (Tr. 2934.) Similarly, Doss
testified that he evaluated Dwight Siemiaczko as a poor candi-
date for employment in part because Siemiaczko had stated that
if hired he would “make every effort to organize.” (Tr. 3054–
3055.) The interviewers also asked many of the applicants
whether they would cross union picket lines or whether the
picket lines would be a problem for them.10 Applicants who
the interviewers questioned about the picket lines included
alleged discriminatees Tilman Cole, Russell Cooper, Willis,
and Fred Wright.
Adamson did not state specifically which Massey officials
made it known to him that Mammoth would be operated union
free. The record contains evidence, however, that in addition
to whatever Massey officials may have communicated directly
to Adamson, a number of persons representing Massey publicly
stated that Mammoth would be a nonunion operation. Shane
Harvey, a Massey Coal Services attorney who was designated
to appear on Massey CEO Blankenship’s behalf11 at a Commu-

10 At the time of the interviews, the Union had begun informational
picketing at multiple entrances to the Mammoth location. The purpose
of this picketing was not to keep the Union’s members from entering
the facility. To the contrary, the Union encouraged the former Cannel-
ton/Dunn unit members to become employed at Mammoth.
11 By letter dated October 29, 2004, Randy White, a West Virginia
State senator who served as chairman of the CIB, invited Blankenship
to attend a CIB hearing regarding Massey’s purchase of Cannelton.
Harvey appeared at the hearing instead of Blankenship, and informed
the CIB that he was appearing on Blankenship’s behalf. Tr. 944–947;
MAMMOTH COAL CO. 11
nity Impact Board (CIB) meeting, told the CIB that Respondent
Massey’s “philosophy” was one of “nonunion,” and that
“Massey intended to operate without a union to start with” at
Mammoth, although “the miners would then have the right to
petition for a union if they wanted to do so.” While being in-
terviewed by a newspaper reporter in October 2004, Katherine
Kenny, who was Respondent Massey’s director of investor
relations, stated, in regards to Mammoth, that “it was Massey’s
policy to maintain a nonunion operation.”12
Although the record does not show that Blankenship was
among those Massey officials who told Adamson that Mam-
moth would be operated nonunion, or who publicly identified
Mammoth as union free, the record does show that Blankenship
made public comments that suggested an intent to operate all of
Massey’s mines union free. In one published account, for ex-
ample, Blankenship was quoted as saying that “[n]o operator in
their right mind would go union.” At trial, Blankenship testi-
fied that he generally agreed with the statements that were at-
tributed to him in that account. Blankenship has also stated
that he is “ready to be killed” in his battle against the Union,
and has characterized that conflict as not “any different” than
“the World Wars.” He opined that “[the Union] tried to kill us
on several occasions.”13 In 1982, when Blankenship first be-
gan working with a Massey company, its operations were 70- to
75-percent unionized. By 2005, Massey operations were 97-
percent nonunion and none of its underground miners were
represented by a union. The 10-K form that Massey filed with
the Securities and Exchange Commission for 2005, and which
Blankenship signed, characterizes the possibility of unioniza-

GC Exhs. 53 and 54; see also Cablevision Industries, 283 NLRB 22, 29
(1987) (Agent has apparent authority to speak for a principal when the
principal does something, or permits the agent to do something, which
reasonably leads another to believe that the agent had the authority he
purported to have.”).
12 This statement by Kenny was testified to by James Dao, the New
York Times reporter to whom it was made, and was not specifically
denied by Kenny. The General Counsel would have me credit another
statement, this one recounted in an October 24, 2004, article written by
Dao, in which Dao reported that a Massey spokesperson had stated that
Massey “w[ould] hire only nonunion workers” when it reopened the
Cannelton operation. Dao testified that the source for this was Kenny,
but he did not testify that he currently remembered Kenny specifically
making the statement that Massey would hire only nonunion workers.
Kenny denied making the statement. Given Kenny’s denial, and Dao’s
failure to specifically recount the statement while testifying, I find that
the evidence is insufficient to establish that the statement was made.
13 In determining how much weight to assign to Blankenship’s
statements that he is ready to be killed in his fight with the Union and
that it was like “the World Wars,” I considered the fact that those
statements were made approximately 18 years prior to the first of the
alleged violations in this case. I also considered that during his testi-
mony in this proceeding, Blankenship acknowledged that he made
those statements and did not assert that his views had changed. Indeed,
Blankenship testified that he continues to oppose the Union’s influence
and believes operating its mines union-free is important to Massey’s
success. I give Blankenship’s temporally distant statements far less
weight than I would if they were more recent utterances. Nevertheless,
the earlier statements, when considered together with the other record
evidence, help contribute to an accurate understanding of Massey’s
stance with respect to the Union.
tion at its mines as one of the “Risk Factors” that threaten
Massey’s income. The report states: “Massey has experienced
some union organizing campaigns at some of its open shop
facilities within the past five years. If some or all of Massey’s
current open shop operations were to become union repre-
sented, Massey could be subject to additional risk of work stop-
pages and higher labor costs, which could adversely affect the
stability of production and reduce the Company’s net income.”
(GC Exh. 11(a) at p. 22.)
In multiple presentations to investors, Blankenship boasted
that its operations were 97-percent union free, and his enthusi-
asm for operating union free is echoed by Mammoth officials.
For example, Mammoth’s president, Hughart, testified that he
agreed with Blankenship’s management philosophy and viewed
it as a positive thing for Massey that its coal mining operations
were 97-percent union free. The interview reports that the Re-
spondents’ officials prepared, record that Doss (Mammoth’s
human resource’s officer) told an applicant that Massey was
97-percent union free and had intentions of operating Mam-
moth union free. (GC Exh. 8(o), interview record by Jim Not-
tingham, p. 2.) When one employee suggested to Stevens, a
Mammoth supervisor, that the Company could address the
shortage of experienced miners at Mammoth by hiring more of
the displaced Cannelton/Dunn unit employees, Stevens dis-
missed the suggestion, replying that “Don Blankenship’s a
smart man, he’s not going to let the numbers go against him.”
Although the evidence did not show that Blankenship was di-
rectly involved in selecting particular miners at Mammoth, the
evidence indicates that Massey fostered a culture of anti-
unionism that discouraged the hiring of union/unit employees
from Cannelton/Dunn. Moreover, as the CEO, chairman, and
president of Massey, Blankenship had involvement in the deci-
sions to give preferences to trainees and transferees at Mam-
moth—decisions that limited the opportunities for Cannel-
ton/Dunn’s unit employees to find continued employment
there.
V. SHORTAGE OF MINERS AT MASSEY OPERATIONS
The record shows that at the same time the Respondents de-
clined to retain the predecessor’s bargaining unit miners,
Massey was experiencing significant problems recruiting ex-
perienced miners for its mining subsidiaries. In Massey publi-
cations, and in presentations by CEO Blankenship, the shortage
of experienced miners is mentioned again and again as one of
the most significant obstacles to the Massey’s optimization of
production and profits at its mining operations. In a July 2005
newspaper interview, Katherine Kenny (Massey’s director of
investor relations) acknowledged that Massey had a shortage of
miners in much of central Appalachia, and stated that “[w]e’re
always two to three hundred miners short of where we want to
be.” (Tr. 751; GC Exh. 38.) The testimony indicated that this
problem is more pronounced at some Massey subsidiaries, such
as those referred to as the “route 3” mines, but that Massey’s
difficulty hiring experienced miners extends to all subsidiary
mines in West Virginia . During the time period relevant to the
allegations in the complaint, Respondent Massey ran numerous
newspaper and billboard advertisements in the general vicinity
of Mammoth seeking experienced miners, and even had air-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
planes pull banners with help-wanted announcements above
Myrtle Beach, South Carolina—a popular vacation destination
for miners who live in West Virginia.
Mammoth argues that while Massey had severe problems
hiring and retaining experienced miners, it was somehow
spared this problem when seeking to hire miners to staff an
entire mining operation at the former Cannelton/Dunn facility.
The evidence leads me to conclude that, contrary to this repre-
sentation, Massey’s difficulty hiring experienced miners ex-
tended to staffing Mammoth. Respondent Massey and
Blankenship said as much in a lawsuit they filed in Virginia
Circuit Court on June 15, 2005, alleging, inter alia, that they
had experienced delays in restarting operations at the Cannelton
location because of difficulties in attracting and retaining quali-
fied workers. On August 26, 2005, the Respondents ran a
newspaper help-wanted advertisement explicitly stating that
they were seeking experienced underground coal miners to
work at Mammoth. Gillenwater, a Massey Coal Services offi-
cial who had human resources responsibilities and was in-
volved in staffing Mammoth for the Respondents, testified that
although Massey’s difficulty hiring miners was greater at some
locations than others, the difficulty extended to all Massey
mines in West Virginia. The assertion that Massey’s general
problem hiring experienced miners bypassed its Mammoth
operation is also belied by evidence that, during the initial staff-
ing of Mammoth, the Respondents resorted to hiring many
miners who either had no experience working in mines, or
lacked the 6 months’ experience necessary to qualify as other
than a trainee miner. In West Virginia, such inexperienced
miners are required to work within the sight and sound of ex-
perienced miners and must be mentored by experienced indi-
viduals. At work, the trainee miners are required to wear a red-
colored hardhat, rather than the standard black-colored one,14 in
order to alert other miners to the safety hazards they pose.15
The General Counsel suggests that, against this background,
the Respondents’ explanations for declining to employ the vast
majority of the experienced miners at Cannelton/Dunn ring
hollow. The record does, in fact, show that despite the pro-
found problems that Massey subsidiary mines face hiring min-
ers in West Virginia, the Respondents did not retain a single
one of the over 200 incumbent bargaining unit members at
Cannelton/Dunn when they took over that operation in Septem-
ber 2004, and that the Respondents declined to offer employ-
ment to the overwhelming majority of those union miners dur-
ing subsequent hiring. The Respondents did this despite the
fact that, before assuming control of the operation, they offered

14 For this reason, trainee miners are often referred to in the record as
“red hats.”
15 Of the 130 or so persons the Respondents hired for bargaining unit
work between December 2004 and August 2005 there were at least 19
who were either hired by the Respondents as trainee miners or whose
applications indicate that they lacked the 6 months’ mining experience
necessary to avoid such classification. The inexperienced miners in-
cluded: Joshua Accord, Jeremiah Adkins, David Buford, Christopher
Burgess, Jeremy Campbell, Derrick Easterday, Darrell Elks, Mark
Fitzpatrick, Johnny Fox, Steve Goodwin, Raymond Peterson, Chad
Rogers, Jack Rose, Thomas Sanford, Christopher Sargent, Larry Lee
Sargent, Paul Lawrence Scott, John Toney, and Michael Upton.
pre-takeover interviews and/or employment to the numerous
nonunit individuals who were working at Cannelton/Dunn op-
eration as clerks, secretaries, and laboratory workers—
categories of employees who Massey was not shown to have
had trouble recruiting.
Blankenship himself testified that experienced miners are
generally more productive than inexperienced miners, and
Hughart conceded that it was sometimes helpful to hire miners
who were experienced at the particular facility where they
would be assigned. Not surprisingly, the fact that the Respon-
dents employed so few miners who had prior experience at the
facility, and so many trainee miners, appears to have created
challenges for that operation. Indeed, in January 2005, a
Mammoth supervisor, Donnie Rutherford, complained to a
former coworker about the use of trainees and said he needed
“some good experienced coal miners.” Three other Mammoth
supervisors—Keith Stevens, Mickey Sizemore, and Dennis
Roat—complained that the Respondents’ heavy reliance on
inexperienced miners was interfering with production. These
comments find support in the documentary evidence. The re-
cord shows that in 2005 and 2006 Mammoth was mining less
efficiently, as measured by tons of coal produced per employee
per day, than had been the case when the experienced Cannel-
ton unit work force was in place in 2003. The record also
shows that Mammoth fell short of its production goal for 2006,
the first year it set such a goal after taking over the operation
from Cannelton/Dunn.16
Mammoth’s claim that the miner shortage did not extend to
the former Cannelton location is also belied by evidence that
the Respondents filled the greatest portion of the miner posi-
tions by moving miners from other Massey subsidiary mines,
including from its route 3 mining operations, especially Elk
Run Coal. Of the first 24 miners that Mammoth hired, 13 came
from other Massey mines, including seven from Elk Run. (Tr.
2506–2511.) As alluded to above, the difficulty finding miners
was particularly pronounced at Massey’s route 3 operations.
By taking employees from other Massey operations to fill posi-
tions at Mammoth, the Respondents were not only “robbing
Peter to Paul,” but were in some instances satisfying its needs
at Mammoth by creating vacancies at locations where the prob-
lems filling positions were particularly acute. Chandler, a
witness for Mammoth, testified that transferring a miner from
another Massey subsidiary to Mammoth would adversely affect
the transferring company. Yet his was done to fill positions at
the former Cannelton/Dunn location where there was already
an experienced incumbent workforce available to select from.
VI. HISTORY OF CANNELTON/DUNN
Cannelton conducted underground coal mining operations in
Kanawha County, West Virginia, for many years prior to when
the Massey organization acquired the operation from Horizon

16 Mammoth’s production goal for 2006 was 1,500,000 tons of coal
and it fell 30,000 to 40,000 tons short of that. In 2003, the last com-
plete year that the operation was run by Cannelton/Dunn, the mines
were producing 35.07 tons of coal per employee per day. In 2005, the
first complete year that the mines were operated by Mammoth, that
figure dropped to 24.53 tons per employee per day. In 2006, produc-
tion was 23.40 tons of coal per employee per day.
MAMMOTH COAL CO. 13
in 2004. Although the precise number of years that Cannelton
operated is not revealed by the record, some idea is provided by
the fact that a number of the alleged discriminatees were sec-
ond and third generation Cannelton miners. Over the years
Cannelton had mined coal at numerous sites on the property.
When one mine site was depleted to such an extent that Cannel-
ton decided to cease work at that location, the miners would
generally be moved to an active mine on the property and their
employment with Cannelton would continue. In addition to the
mine sites themselves, Cannelton operated a preparation plant
where coal was separated from impurities, a river loadout facil-
ity where coal was loaded into river barges for shipment, and a
refuse impoundment where the impurities resulting from coal
processing were dumped.17 The preparation plant received coal
primarily from the mines operated by Cannelton, but also re-
ceived coal from other mines. Cannelton did not own the rights
to the coal in the property where it was operating. Even before
Massey purchased Cannelton, the coal rights there were owned
by a Massey subsidiary, to which Cannelton paid royalties.
Immediately prior to when Massey acquired the operation,
Cannelton was mining coal exclusively at a site on the property
known as the Stockton mine. Cannelton mined this site using
the “room and pillar” technique—which means that miners
made cuts at right angles across the same underground “seam”
of coal, so that pillars were left to hold the ceiling or “top” up.
The coal was cut by employees using “continuous miner” ma-
chines that extracted the coal and moved it to the rear of the
machines where it was dumped onto shuttle cars. Shuttle cars
then moved the coal to belts that transported it above ground.
At Cannelton, belts and off-road trucks were then used to take
the coal to the preparation plant. Cannelton was mining four
sections of the Stockton mine and employees used one continu-
ous miner machine at each of these sections. Cannelton was
operating three shifts a day—two production shifts, and one
maintenance shift. Some of the main employee classifications
in the underground mine at Cannelton were continuous miner
operator, shuttle car operator, beltman (cleans, splices, and does
other work to belts), electrician, brattice man (puts up the con-
trols that help direct fresh air through the mine), roof bolter
(places bolts in unsupported ceiling areas to secure them), and
fire boss (checks safety of walks, airways, escapeways). Work
classifications at the preparation plant and loadout facility in-
cluded plant operator, assistant plant operator, loadout operator,
mechanic, and electrician. There was also bargaining unit work
above-ground for mobile equipment operators, “greasers” who
serviced equipment, and refuse impoundment workers.
Cannelton’s subsidiary Dunn was originally created to oper-
ate as a surface mine—also referred to in the record as a “strip”
mine—on the same property where Cannelton was performing
underground mining operations. However, the surface mine
operation was essentially abandoned after December 31, 1999.
The number of individuals employed by Dunn had previously

17 In the record, the preparation plant operation is sometimes con-
strued to include the river loadout facility. These portions of the facil-
ity are also referred to as “Lady Dunn” and the “tipple.” The refuse
impoundment is referred to by a variety of other names, including the
“gob pile,” the “slurry,” and the “dump.”
been as high as 113, but, since December 31, 1999, that number
has been reduced to between 7 and 12. During the period im-
mediately before Mammoth took over Dunn, the Dunn employ-
ees were no longer engaged in the surface mining of coal, at
least not to any significant extent. Rather, they worked in
support of Cannelton’s underground mining operation. For
example, the Dunn employees maintained the road between
Cannelton underground mines and the preparation plant and
also built a storage bin at the Stockton mine. In addition, the
Dunn employees were engaged in government-mandated “rec-
lamation” activities that were aimed at restoring the landscape
to its condition prior to the surface mining activity.
Cannelton and Dunn both signed memoranda of understand-
ing with the Union in which they agreed to follow the 2002
National Coal Agreement. The memoranda stated an effective
period from January 1, 2002, until December 31, 2006,—the
same term stated by the 2002 National Coal Agreement. Those
memoranda also set forth, or referenced, certain additional
terms, but none of those additions have been alleged to contra-
dict any term of the 2002 Agreement that is germane here. The
2002 National Coal Agreement describes unit work as: “The
production of coal, including removal of overburden and coal
waste, preparation, processing and cleaning of coal and trans-
portation of coal (except by waterway or rail not owned by
Employer), repair and maintenance work normally performed
at the mine site or at a central shop of the Employer and main-
tenance of gob piles and mine roads, and work of the type cus-
tomarily related to all of the above.” (GC Exh. 14(a) at p. 3
(art. IA).) The appendices to the 2002 Agreement set forth job
classifications for employees doing this covered work, includ-
ing, inter alia: continuous mining machine operator; electrician
(underground, strip mines, and preparation plant); mechanic
(underground, strip mines, and preparation plant); fireboss; roof
bolter; dispatcher (underground); loading machine operator
(underground); welder, first class (underground, strip mines,
and preparation plant); general inside repairman and welder
(underground, strip mines, and preparation plant); shuttle car
operator(underground); motorman (underground); beltman
(underground); brattice man; general inside labor; trackman;
labor-unskilled (underground, strip mines, and preparation
plant); coal loading shovel operator; overburden stripping ma-
chine operator; shovel and drag line oiler; groundman; mobile
equipment operator (strip mines and preparation plant); tipple
attendant; utility man; stationary equipment operator (includ-
ing, inter alia, processing plan operator, loading point operator,
river loading equipment operator, river tipple operator, and
tipple operator); tipple attendant; truckdriver, service; prepara-
tion plant utility man; surface utility man. Id. pages 316 to 335.
VII. MASSEY TAKES OVER CANNELTON/DUNN
On August 17, 2004, A.T. Massey and Horizon executed a
purchase agreement that was approved by the bankruptcy judge
on September 16, 2004, and under which Horizon’s Cannel-
ton/Dunn operation became the property of the Massey organi-
zation. After the parties executed the purchase agreement,
Cannelton/Dunn continued running the operation for about 5
weeks—employing the same unit workers and providing the
same terms and conditions of employment to them as it had
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
before it was purchased. The last day that Cannelton/Dunn
operated the facility was September 24, 2004, at which time
control was turned over to the Respondents. Since taking over
the facility, the Respondents have refused to recognize the Un-
ion as the collective-bargaining representative of any of the
employees at Mammoth.
Prior to September 24, Massey Senior Vice President Drexel
Short coordinated with Cannelton/Dunn’s underground mine
superintendent, Michael Haynes, to arrange interviews and/or
employment for all of Cannelton/Dunn’s supervisory and man-
agement employees. Many of these individuals were hired by
the Respondents prior to the change in control of the facility,
and their employment at the operation continued without inter-
ruption through the transition from Cannelton/Dunn to Mam-
moth. Similarly, the Respondents arranged pretakeover inter-
views and/or employment for Cannelton/Dunn’s nonunit rank-
in-file workers—including secretaries, clerks, and laboratory
workers. The only group of Cannelton/Dunn employees to
whom the Respondents did not offer these opportunities were
the union-represented unit incumbents. Consequently, all of
the more than 200 Cannelton/Dunn employees who were repre-
sented by the Union lost their jobs when the operation changed
hands. Blankenship and Gillenwater indicated in their testimo-
nies that the objective was to have the Mammoth manage-
ment/supervisory team in place first, and to let that team hire
the rank-and-file employees. They did not explain, however,
why the new management team would not have wanted to hire
some union incumbents prior to the Respondents’ takeover of
the operation, or why the nonunit rank-and-file employees were
offered pretakeover interviews or employment.
Not only did the Respondents fail at that time to offer inter-
views or employment to any of the over 200 union-represented
incumbent employees, but the Respondents did not even pro-
vide the unit employees with information about how to go
about seeking employment at the facility where many had
worked for decades. Ascertaining how to apply was more dif-
ficult than one might at first imagine since human resources
functions for the new operation were initially neither based at
the Mammoth production facility itself, nor handled by officials
employed directly by Mammoth. The first human resources
official was Chandler—a Massey Coal Services employee who
was not based at Mammoth. She passed the human resources
responsibility to Doss—who testified that Massey moved him
to the Massey Coal Services office in Charleston when he as-
sumed human resources responsibilities at Mammoth. Even
through much of the hearing, there were lingering questions
about what locations constituted offices of Mammoth, and these
were resolved only after the General Counsel presented records,
such as facsimile communications, that would not have been
available to the Cannelton/Dunn miners. In addition, although
officials of the Respondents testified that they made applica-
tions available at Mammoth’s guard station, the record indi-
cated that this was not generally communicated to the union-
represented individuals. Indeed, a union-represented, former
Cannelton/Dunn, employee who approached the guard station
and inquired about employment was not given an application.
The record does not substantiate any credible, nondiscrimi-
natory, explanation for the Respondents’ decision to offer pre-
takeover interviews and/or employment to the unrepresented
nonsupervisory incumbents, at the same time that they declined
to offer union-represented unit employees interviews, employ-
ment, or even information about applying. Nor did the com-
pany witnesses offer a credible explanation for why, if the ob-
jective was to allow a Mammoth management/supervisory team
to hire its own rank-in-file employees, it was Short and a Can-
nelton/Dunn superintendent, not Mammoth managers and su-
pervisors, who scheduled the interviews for the nonunit rank-
and-file incumbents and why those interviews were conducted
at essentially the same time as the new Mammoth managers
and supervisors were themselves being interviewed.
In its brief, Mammoth suggests that the reason the Respon-
dents offered pretakeover interviews and employment to the
unrepresented rank-and-file incumbents, but not to the union-
represented incumbents, was that Horizon had made a request
that interviews be offered to the salaried workers. I have ex-
amined this contention in light of the testimony by Gillenwater
that Mammoth relies upon to support it. (Tr. 2165–2166.) A
review of that testimony indicates that Gillenwater was explain-
ing the decision to grant supervisors pretakeover interviews and
employment, not a reason why unrepresented clerks, secretar-
ies, laboratory workers and other nonsupervisory, nonunit,
personnel were offered that opportunity as well. Even at that,
Gillenwater’s reference to this subject was passing and vague.
He said that it was his “understanding” that Horizon had made
a request that supervisors be interviewed pretakeover, not that
he had personal knowledge of either the request or the Respon-
dents’ response to the request. He did not disclose how he
came to his “understanding” or identify any official of the Re-
spondents who made a decision to honor the request. Gillen-
water’s passing and vague mention of his “understanding” is
not persuasive evidence that a request from Horizon accounts
for the startling disparity in treatment between the represented
and non-represented incumbents.
In its brief, Mammoth also hints that the Respondents de-
cided not to offer pretakeover interviews/hiring to the union-
represented incumbents because Cannelton/Dunn had been
unable to operate profitably with those employees. However,
Mammoth does not explain why the Respondents would hold
Cannelton/Dunn’s financial problems against every single one
of the union-represented incumbent miners, and therefore deny
those individuals pretakeover interviews and/or employment,
and at the same time offer such opportunities to all the manag-
ers, supervisors, secretaries, clerks, laboratory workers, and
other nonunit incumbents.
Within a few weeks of when the union-represented Cannel-
ton/Dunn employees lost their employment, the Union initiated
picketing outside the entrances to the employees’ former work-
place. The Respondents contracted with security personnel
who took approximately 1000 hours of videotape and hundreds
of photographs of the picket activity. With few exceptions, the
alleged discriminatees in this case participated in that picket
activity, which included distributing literature critical of
Massey.18 This picketing continued daily for over a year until

18 On one occasion, approximately 10 to 12 individuals—including
the president of the Union local (Willis), and the international president
MAMMOTH COAL CO. 15
early 2006. The Union’s purpose in picketing was not to stop
the former Cannelton/Dunn unit members from entering the
facility, and the evidence establishes that, to the contrary, the
union actively encouraged former unit members to work for
Mammoth. That encouragement included: making numerous
copies of a blank application from another Massey subsidiary
and providing copies to unit employees; attempting to hand
deliver completed applications for employment at Mammoth to
company officials; mailing copies of the completed applications
to the offices of officials who were selecting staff for Mam-
moth; and telling union members that it was permissible to
work at Mammoth while the picket activity continued. Many
of the over 200 Cannelton/Dunn unit employees submitted
applications for work with Mammoth, including all but a few of
the 85 alleged discriminatees in this case.19 Some former unit
employees also sought employment by participating in the ef-
forts to hand deliver applications, attending Massey job fairs, or
inquiring at the Mammoth guard shack.
The Respondents began interviewing potential employees for
bargaining unit work in late November 2004, and hired the first
of these employees on December 3. By the end of December,
the Respondents had hired about 30 employees to perform the
types of work that had been bargaining unit work at Cannel-
ton/Dunn. This hiring continued, with about 16 such employ-
ees hired in January 2005; 26 hired in February 2005; and oth-
ers hired in every month through at least May 2006. As of
May 1, 2006, the Respondent had hired a total of approximately
219 employees to perform the types of work that had previ-
ously been performed by the union-represented employees.
These employees were not provided with the wages and other
terms of employment that were in effect at Cannelton/Dunn
immediately prior to the Respondents’ taking over the opera-
tion. Instead, the Respondents provided the employees with
other terms, including, in general, lower wages. The wage rate
parameters and a number of other terms of employment that
Mammoth officials offered were not set by the leadership at
Mammoth, but rather were decided upon by Massey officials.
The Respondents did not give the Union prior notice, or an

of the Union (Cecil Roberts)—were arrested while engaging in a pro-
test on a highway adjacent to Mammoth. At trial, counsel for Respon-
dent Mammoth elicited testimony regarding these arrests, but was
unclear about whether Mammoth planned to claim that the arrests were
the basis upon which any of the alleged discriminatees were rejected.
Tr. 170–172. A review of the record evidence shows that the Respon-
dents did not offer testimony or other evidence showing that any of the
alleged discriminatees were rejected because they had been arrested in
the highway protest, and no such argument was made in the Respon-
dents’ briefs.
19 A number of these applications were not submitted at the Mam-
moth operation, but rather at the offices of two Massey subsidiaries—
Massey Coal Services and Nicholas Energy—which shared human
resources functions and/or human resources officials with Mammoth.
The record shows, moreover, that Kevin Doss, a Mammoth human
resources official, took possession of the applications that the former
Cannelton/Dunn employees mailed to Nicholas Energy. At least some
other applications were mailed to a location in Leivasy, West Virginia,
which served as an office of Mammoth, as well as of another Massey
subsidiary, Alex Energy.
opportunity to bargain, regarding these changes in the terms
and conditions of employment.
Of the approximately 219 employees hired by the Respon-
dents to perform bargaining unit work, no more than 22 had
been among the at least 211 Cannelton/Dunn unit employees
who lost their jobs when the Respondents took over the facility
in September 2004.20 As discussed above, for its initial staffing
the Respondents relied heavily on experienced miners who it
moved from other Massey subsidiary mines, including from
“route 3” subsidiaries where Massey was already starved for
experienced miners. Information provided by Respondent
Mammoth shows that, as of May 20, 2005, transfers accounted
for 38 of the 89 miner positions filled at Mammoth. Of those
38 transferred employees, 17 came from the Massey’s route 3
subsidiaries.21
The Respondents’ early staffing also relied to a significant
extent on the use of trainee miners and other inexperienced
individuals, of whom it hired approximately 19. According to
a Mammoth mine supervisor, Donnie Rutherford, the Company
stopped using trainees as of June or July 200622 because by that
time the operation was “staffed up” and there was no need to

20 Respondent Mammoth suggests that it did not hire more former
Cannelton/Dunn unit employees, in part, because the Union discour-
aged those individuals from working at Mammoth. On its face this
claim is implausible given the evidence of the Union’s extensive efforts
to help such individuals seek employment at Mammoth. Moreover,
Willis credibly testified that he and Cecil Roberts (International presi-
dent of the Union), made a decision to encourage the unit members to
obtain employment with Mammoth both because those individuals
needed the jobs, and because the Union wanted to establish itself as the
bargaining representative. Several former Cannelton/Dunn employees
testified that union officials verbally encouraged them to work at
Mammoth. In an effort to substantiate the contention that threats from
the Union or union members had been responsible for keeping former
Cannelton/Dunn employees from accepting employment, Mammoth
presented the testimony of James Fitzwater—a former Cannelton/Dunn
employee who refused employment at Mammoth. However, when
questioned by Mammoth’s counsel, Fitzwater emphatically denied that
he had a basis for believing that he had been threatened by the Union or
its members. He stated that he decided not to work for Mammoth
because the Respondents tried to pay him a lower wage than they had
promised him, and because he was disturbed that the Respondents were
denying employment to other qualified Cannelton/Dunn employees.
Mammoth also claims that Gregory Moore, another former Cannel-
ton/Dunn employee, turned down a job because the president of the
Union local (Willis) had told Moore that by going to work for Mam-
moth he could lose his son’s private health coverage. Both Moore and
Willis denied that Willis had made such a statement, and Moore further
testified that his son’s healthcare needs were covered by Medicaid and
that he did not use, or need, the private health insurance. The record
does not substantiate the Respondents’ contentions that the Union dis-
couraged former Cannelton/Dunn employees from working for Mam-
moth, or that the Respondents would have hired significantly more
Cannelton/Dunn employees if not for the supposed interference.
21 These figures are based on GC Exhs. 26(a)(1), (b)(1), and (c)(1),
the compilation charts included by Respondent Mammoth and the
General Counsel in their briefs, and the portions of the record underly-
ing those compilations. See Br. of R. Mammoth at pp. 20 to 31, and
Br. of GC at pp. 78 to 82.
22 Rutherford’s testimony on February 27, 2007, was that Mammoth
had not used trainee miners (“red hats”) for 8 months.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
hire somebody who was not experienced. The Respondents
also recruited a significant number of miners by soliciting ap-
plications from employees of a non-Massey operation—
Kanawha Eagle. The Kanawha Eagle miners had not sought
employment at Mammoth, but had worked with an individual
that the Respondents hired as a mine supervisor for Mammoth.
On December 6, 2004, the Respondents began operations at
the Stockton mine and the preparation plant. In January 2005,
the Respondents loaded coal at the river barge facility for the
first time after taking over the operation from Cannelton/Dunn.
Initially, the Respondents operated one production shift at one
section of the Stockton mine. In March 2005, the Respondents
added a second production shift, and began mining at a second
section in the Stockton mine. The Respondents also added a
maintenance shift. The work was performed using continuous
miner machines, shuttle cars, belt lines, preparation plant, and
other equipment that had been in operation at Cannelton/Dunn
prior to the change in ownership. As at Cannelton/Dunn, the
Respondents utilized the “room and pillar” mining method—
one of several underground mining methods used in West Vir-
ginia. The production work that was necessary was basically
unchanged. As at Cannelton/Dunn, the Respondents had em-
ployees at Mammoth who performed the work of continuous
miner operators, shuttle car operators, beltmen, electricians,
brattice men,23 roof bolters, fire bosses, loadout operators, me-
chanics, electricians, plant operators (at Mammoth called “con-
trol room operators”), and assistant plant operators (at Mam-
moth called “floor operators”). According to Adamson and
Chandler, Mammoth’s miners were performing essentially the
same tasks as the Cannelton/Dunn miners had performed, and
the coal itself underwent the same process. Mammoth’s cus-
tomers, like those of Cannelton/Dunn, were electrical power
generating companies. Both before and after the transition
from Cannelton/Dunn to Mammoth the operation’s short list of
major customers included American Electric Power (AEP).
The Respondents did make some adjustments to how the op-
eration was run. Most notably, instead of using one continuous
miner for each of four sections in the mine, the Respondents
began using two continuous miners in each of two “dual” sec-
tions. In addition, a few job duties were re-distributed among
the job classifications and, initially, fewer employees were
employed than had been the case under Cannelton/Dunn. For
example the work of Cannelton/Dunn’s “miner helpers” was
done at Mammoth by employees in “utility” classifications.
Cannelton/Dunn had three employees working at the refuse
impoundment, but Mammoth assigned two employees to do
that work. The Respondents employed electricians, but, unlike
Cannelton/Dunn, it did not station one of the electricians at the
river loadout facility.
In July and August 2005, the Respondents began shutting
down the Stockton mine work after concluding that mining
there was no longer practical. In July, the Respondents re-
located equipment and staff to the “130 mine”—another site on
the same property—and began operating in one section there.

23 Mammoth had employees who performed the brattice man func-
tions, Tr. 2393, but apparently no longer used “brattice man” as a job
title, Tr.2802.
In August, the Respondents moved other equipment and staff
from the Stockton mine to the “Winifrede mine,” where the
Respondents began operating in one section for two production
shifts a day. As of the time of trial, the Mammoth plant and
loadout were being used to process and load coal from the 130
mine and the Winifrede mine, as well as from Massey mines
that were not part of the Mammoth operation. The Winifrede
mine is on the same property as the Stockton mine and 130
mine, but the Respondents use highway trucks, rather than belt
lines or off-road trucks, to haul coal from the Winifrede mine to
the preparation plant. The Respondents hired over-the-road
truck drivers to operate the highway trucks and, as of the time
of trial, employed 10 of these drivers. Cannelton/Dunn had not
used over-the-road drivers or operated its own highway trucks,
but it apparently did receive coal at the preparation plant that
came from outside the property. In January 2006, the Respon-
dents discontinued the use of the off-road trucks at Mammoth,
but have continued the use of the highway trucks.
In addition to the coal reserves on the former Cannel-
ton/Dunn property, Massey owns coal reserves in an adjacent
area referred to as the Kanawha Energy property. Mammoth’s
president, Hughart, testified that Mammoth was developing the
mining capability on the Kanawha Energy property and ex-
pected to begin production there later in 2007.
VIII. BANKRUPTCY COURT RULING REGARDING ASSUMPTION
OF COLLECTIVE-BARGAINING AGREEMENT
As alluded to earlier, Horizon was bankrupt at the time it
sold the Cannelton/Dunn operation to the Massey organization.
In bankruptcy proceedings,24 certain issues related to Cannel-
ton’s and Dunn’s collective-bargaining agreements—the 2002
National Coal Agreement—with the Union were addressed.
That agreement included a provision, referred to by the bank-
ruptcy judge as a “successorship clause,” which stated that the
employer could not sell its operation “without first securing the
agreement of the successor to assume the Employer’s obliga-
tions under this Agreement.” (GC Exh. 14(a) at pp. 1 to 2 (art.
I).) Prior to the Horizon sale, a number of the individual debt-
ors, including Cannelton and Dunn, filed a motion with the
bankruptcy court in which they sought an order permitting them
to “reject certain collective-bargaining agreements pursuant to
section 1113 of the Bankruptcy Code.” The bankruptcy judge
stated that the order sought by the debtors would “authoriz[e]
the sale of the debtors’ assets free and clear of all liens, claims,
encumbrances, and other interests, apparently including succes-
sor liability under collective-bargaining agreements and under
the Coal Industry Retiree Health Benefit Act of 1992.” Re-
spondent Mammoth’s Exhibit (Mammoth Exh.) 75(c). On
August 6, 2004, the bankruptcy judge issued an opinion and
orders granting the debtors’ requests for authority to reject the
collective-bargaining agreements, including the successorship
provision. Id.25 The bankruptcy judge acknowledged the hard-
ship this decision would cause employees, but, in weighing the

24 Case 02-14261, United States Bankruptcy Court for the Eastern
District of Kentucky, Ashland Division.
25 The procedural history before the bankruptcy judge is also dis-
cussed in United Mine Workers v. Midwest Coal Corp., 2005 Westlaw
1972592 (E. D. Ky.)
MAMMOTH COAL CO. 17
equities of the situation, the judge reasoned that if he did not
authorize the sale “free and clear of . . . successor liability un-
der the collective bargaining agreements” then the debtors’
operations would be idled and job loss would ensue, whereas if
the “operations are sold as going concerns, there is no reason to
believe that the miners’ employment would suffer any interrup-
tion.” Id. at 24. After the bankruptcy judge issued the August
6 opinion and orders, Cannelton/Dunn continued to apply the
existing terms and conditions of employment through Septem-
ber 24, 2004, at which time it surrendered control of the opera-
tion to the Respondents.
IX. THE 8(A)(3) ALLEGATIONS
A. Legal Standard
The complaint alleges that since about December 3, 2004,
and continuing, Respondent Mammoth has violated Section
8(a)(3) and (1) by discriminatorily refusing to hire unit employ-
ees of the predecessor employer in order to avoid an obligation
to recognize and bargain with the Union, and because those unit
employees were members of the Union and had engaged in
concerted activities, and to discourage employees from engag-
ing in such activities.
As the new owner of Horizon’s Cannelton/Dunn operation,
the Respondents were not obligated to hire any of the predeces-
sor’s employees, but they were not free to refuse employment
to the predecessor’s employees because those employees were
represented by a union or in order to avoid having to recognize
and bargain with the Union. Howard Johnson’s v. Detroit Lo-
cal Joint Executive Board, 417 U.S. 249, 262 fn. 8 (1974);
NLRB v. Burns Security Services, 406 U.S. 272, 280–281 fn. 5
(1972); Planned Building Services, 347 NLRB 670, 707
(2006); U.S. Marine Corp., 293 NLRB 669, 670 (1989), enfd.
944 F.2d 1305 (7th Cir. 1991), cert. denied 503 U.S. 936
(1992); Kessel Food Markets, 287 NLRB 426, 429 (1987),
enfd. 868 F.2d 881 (6th Cir. 1989), cert. denied 493 U.S. 820
(1989). In Planned Building Services, supra at 672 , the Board
held that the applicable framework for determining whether a
successor employer has violated Section 8(a)(3) and (1) by
refusing to hire employees of its predecessor in order to avoid a
bargaining obligation is that set forth in Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). See also W & M Properties of
Connecticut, 348 NLRB 162, 163 (2006) (same). The Board
stated that, under Wright Line, a violation of Section 8(a)(3)
and (1) is established where the General Counsel proves that
the successor “failed to hire employees of its predecessor and
was motivated by antiunion animus.” Planned Building Ser-
vices, supra at 673. The Board rejected the idea that the Gen-
eral Counsel had to prove either that the predecessors’ employ-
ees met the successor’s qualifications for hire, or that the suc-
cessor was hiring or planning to hire. The Board reasoned that
such proof was superfluous because “if hired by the successor,
[the predecessor’s employees] ordinarily would continue to
perform essentially the same type of work as they did for the
predecessor” and because it is clear that a “successor employer
must fill vacant positions in starting up its business.” Ibid.26
Under Planned Building Services, supra, if the General
Counsel meets its burden of showing that the employer failed to
hire employees of its predecessor and was motivated by anti-
union animus, “the burden then shifts to the employer to prove
that it would not have hired the predecessor’s employees even
in the absence of its unlawful motive.” Planned Building Ser-
vices, supra at 673–674. The employer may attempt to estab-
lish this defense with evidence “that it did not hire particular
employees because they were not qualified for the available
jobs, and that that it would not have hired them for that reason
even in the absence of the unlawful considerations.” Id. It is
not enough to show that a legitimate explanation exists for the
Respondents’ decision not hire an individual; rather the Re-
spondents must show by a preponderance of the evidence that
the same decision would have been made absent the antiunion
motivation. Briar Crest Nursing Home, 333 NLRB 935, 937
fn. 9 (2001); Hicks Oils & Hicksgas, 293 NLRB 84, 85 (1989),
enfd. 942 F.2d 1140 (7th Cir. 1991) (“A judge’s personal belief
that the employer’s legitimate reason was sufficient to warrant
the action taken is not a substitute for evidence that the em-
ployer would have relied on this reason alone.”).
B. The General Counsel’s Evidence of Discrimination
1. Failure to hire employees of predecessor
In this case, there is no question that the alleged discrimina-
tees had been union-represented, bargaining unit, employees of
Mammoth’s predecessor, and that the Respondents were aware
of this. Indeed, while they were staffing Mammoth, Doss and
Gillenwater monitored the hiring/interview status of the prede-
cessor’s unit employees using a spreadsheet that stated the ap-
proximate “union time” of each unit employee. It is also clear
that the Respondents were aware of the union activities of
many of the predecessor’s employees. The Respondents’ secu-
rity personnel took approximately 1000 hours of videotape and
hundreds of photographs of the picketing employees. The vast
majority of the alleged discriminatees who testified stated,
without contradiction, that they participated in those activities.
In addition, former Cannelton/Dunn manager and supervisors
who were hired by Mammoth, and participated in the evalua-
tion of candidates for employment, knew which of the alleged

26 In Planned Building Services, supra, the full Board unanimously
held that the analysis set forth in FES, 331 NLRB 9 (2000), does not
apply to cases where unlawful refusal to hire the predecessor’s employ-
ees is alleged in a successorship avoidance context, and that the ele-
ments that the Board added to the General Counsel’s burden in FES
were inapplicable to successor hiring cases. Thus the Board’s decision
in Toering Electric Co., 351 NLRB 225 (2007), which concerns the
General Counsel’s burden in “salting” cases governed by FES is not
relevant to the analysis of the hiring violations alleged in the instant
successorship case. See also Oil Capitol Sheet Metal, 349 NLRB 1348
(2007) (FES standard requiring the General Counsel to show that union
“salts” were interested in employment of indefinite duration is not
applicable in refusal-to-hire cases that do not involve “salts” because
job applicants normally seek employment of indefinite duration). For
this reason, I deny Respondent Massey’s October 8, 2007 motion for
supplemental briefing to address the Toering Electric, supra., decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
discriminatees held office with the Union and/or were members
of the Union’s mine and safety committees at Cannelton/Dunn.
The General Counsel has also met its burden of showing that
the Respondents “failed to hire employees of its predecessor.”
Indeed, when it initially took over the predecessor’s operation
the Respondent failed to hire any of the 211 or more bargaining
unit employees. During subsequent staffing, when the Respon-
dents hired approximately 219 persons to perform bargaining
unit work, the Respondents hired only 22 of the at least 211
employees who had been performing that work at Cannel-
ton/Dunn.
2. Antiunion motivation
Direct evidence establishes the Respondents’ antiunion mo-
tivation in this case. The testimony of Adamson, the superin-
tendent of Mammoth’s preparation plant, showed that during
the initial hiring at Mammoth, Massey officials made it known
to Mammoth officials that the operation would be “union free.”
In addition, during the hiring process, the Respondents gave
applicants a document which matter-of-factly stated that “the
mine is nonunion.” The Respondents’ officials communicated
the same information verbally to applicants during their em-
ployment interviews—informing prospective employees that
Mammoth was going to be a nonunion mine and asking many
to reveal whether they were willing work nonunion. Harvey, a
Massey Coal Services lawyer who appeared on Massey CEO
Blankenship’s behalf at a community forum, stated on that
occasion that “Massey intended to operate without a union to
start with” at Mammoth, although “the miners would then have
the right to petition for a union if they wanted to do so.”
At first blush, the Respondents’ statements declaring Mam-
moth a union free operation might appear somewhat benign
since, arguably, all those statements indicated was that Mam-
moth was going to initially operate nonunion, not that employ-
ees would be prevented from later choosing union representa-
tion. However, as the Board recognized in Eldorado, Inc., 335
NLRB 952 (2001), such statements are anything but benign.
In Eldorado, the successor’s president told employees that the
new business was starting out as a nonunion company, but that
if the employees wanted a union it was up to them. The Board
found that the statement violated Section 8(a)(1), and ex-
plained:
[P]rior to making its hiring decisions, a successor employer
does not know whether it will have a duty to recognize and
bargain because it does not know whether it will hire a major-
ity of the predecessor’s employees. Therefore, when a suc-
cessor employer “tells applicants that the company will be
nonunion before it hires its employees, the employer indicates
to the applicants that it intends to discriminate against [the
predecessor’s] employees to ensure its nonunion status.”
Id. at 953, quoting Kessel Food Markets, 287 NLRB at 429.
Following this reasoning, the Board held in Eldorado, supra,
and Kessel Food, supra, that successor employers violated Sec-
tion 8(a)(1) when, like the Respondents here, they told appli-
cants that the new company would be nonunion. More re-
cently, in W & M Properties of Connecticut, supra at 163, the
Board unanimously held that a successor employer’s statement
to a prospective employee that it “would not be a union job and
that the [employer’s] owners did not want a union,” showed
antiunion motivation in hiring. In the instant case, the Respon-
dents’ similar, but far more numerous, verbal and written pro-
nouncements that Mammoth would operate nonunion easily
satisfy the General Counsel’s burden.
The direct evidence of antiunion motivation in this case does
not end with the Respondents’ pronouncements that Mammoth
would operate union free. As discussed above, Adamson and
Doss—two Mammoth officials who helped select employees—
admitted that when applicants Willis and Siemiaczko stated an
intent to work to organize the Mammoth work force on behalf
of the Union, those remarks were held against them in the hir-
ing process. In addition, when an employee suggested to Ste-
vens, a Mammoth supervisor, that the company could address
the shortage of experienced miners at Mammoth by hiring more
of the displaced Cannelton/Dunn unit employees, Stevens dis-
missed the suggestion, replying that “Don Blankenship’s a
smart man, he’s not going to let the numbers go against him.”
Stevens had been a supervisor at Cannelton/Dunn, and accord-
ing to the Respondent Mammoth would, therefore, have par-
ticipated in the hiring process by making recommendations
about whether to hire employees he had worked with at Cannel-
ton/Dunn.
The Respondents also asked a number of the alleged dis-
criminatees whether they would cross the picket lines. In
Planned Building Services, antiunion motivation for a succes-
sor’s refusal to hire its predecessor’s employees was demon-
strated, in part, by the evidence that the new owner asked an
incumbent employee if he would cross an expected picket line.
347 NLRB 677, at 677 and 707. As noted there, an em-
ployee’s willingness to cross a picket line is an “impermissible
consideration for hiring, since it penalizes employees for their
intention to engage in protected concerted activities.” Planned
Building Services, supra at 707–708; see also Fremont Ford,
289 NLRB 1290 fn. 6 (1988) (employer violates the Act by
asking prospective employees if they intended to honor picket
line). This rule extends to cases, like the instant one, in which
the picket line is already in existence. In Spencer Foods, for
example, the Board held that a successor employer violated the
Act when it asked an applicant whether he would cross an ex-
isting picket line. 268 NLRB 1483, 1503 (1984), affd. in rele-
vant part sub nom. Food & Commercial Workers Local 152 v.
NLRB, 768 F.2d 1463 (D.C. Cir. 1985).
Additional evidence that antiunion animus played a part in
the Respondents’ hiring decisions is provided by the spread-
sheet that Gillenwater and Doss used to monitor where former
Cannelton/Dunn miners stood in the hiring process. That
spreadsheet explicitly set forth the approximate “union time” of
each prospective employee. Aside from “union time,” this
spreadsheet included only minimal information about the Can-
nelton/Dunn unit employees—prior work location, seniority
date, job title, and age. The Respondents have failed to estab-
lish any plausible, nondiscriminatory, reason for noting each
applicant’s years in the union among the few bits of informa-
tion deemed significant enough to include on the spreadsheet
that was used to monitor the interview/hiring status of the for-
mer Cannelton/Dunn unit employees.
MAMMOTH COAL CO. 19
The above-direct evidence is more than adequate to satisfy
the General Counsel’s burden of showing that antiunion moti-
vation played a part in the Respondents’ refusal to hire the un-
ion-represented, unit, employees of Mammoth’s predecessor.
Additional perspective is, however, provided by the statements
of Respondent Massey’s CEO, Don Blankenship. Blankenship
has a history of making unusually venomous antiunion state-
ments. For example, he has stated that he sees his fight against
the Union as no different than that of the soldiers who fought in
the World Wars and has declared his willingness to die fighting
against the Union. In a report that Blankenship signed, and
Massey filed with the Securities and Exchange Commission,
the possibility of unionization at Massey-owned coal mines was
discussed as a “risk factor” that threatened Massey’s net in-
come. Blankenship boasted to investor groups that Massey’s
once largely unionized mines had become 97-percent “union
free.” Although the evidence does not show that Blankenship
made decisions about whether to hire particular miners at Mam-
moth, the evidence does show that Blankenship and Respon-
dent Massey were directly involved with personnel decisions at
Mammoth. By his own account, Blankenship, either alone or
as a member Massey’s Board, decided on the wages that would
be offered to miners at Mammoth. Therefore, it is clear that
Blankenship participated in making at least some of the
changes to terms and conditions of employment that the Gen-
eral Counsel alleges were unlawful. Other Massey officials—
for example, Short (Massey senior vice president for opera-
tions) and Chris Adkins (Massey senior vice president and chief
operating officer)—took part in interviewing applicants and/or
staffing Mammoth. Gillenwater and Chandler, both of whom
had extensive hands-on involvement in the hiring of miners at
Mammoth, were each directly supervised by an official of Re-
spondent Massey—Gillenwater by Short, and Chandler by
Poma (vice president for human resources). A number of the
staffing decisions at Mammoth—such as the granting of prefer-
ences to trainee miners and transferees—that led to the Cannel-
ton/Dunn unit employees being refused employment were dic-
tated by Massey. Moreover, the evidence indicates that one or
more Mammoth officials who were involved in recommending
or selecting miners were aware of Blankenship’s antiunion
views and were influenced by those views. Thus when an em-
ployee suggested to Stevens, a Mammoth supervisor, that more
of the experienced former Cannelton/Dunn miners should be
hired, Stevens rejected the suggestion out-of-hand, stating that
“Don Blankenship’s a smart man, he’s not going to let the
numbers go against him.” Hughart, the official that
Blankenship appointed Mammoth’s president, stated that he
was aware of, and agreed with, Blankenship’s management
philosophy. During the interview of a prospective employee,
Doss echoed Blankenship’s boast that Respondent Massey was
97-percent union free, and stated, further, that Massey intended
to operate Mammoth union free.27

27 The Respondents assert that Blankenship’s antiunion statements
cannot be considered in this case because those statements are protected
by Sec. 8(c) of the Act. I note, at the outset, that the other direct evi-
dence of antiunion animus, standing alone, is sufficient to meet the
General Counsel’s initial burden. At any rate, the Respondents’ broad
In conclusion, the evidence demonstrates the existence of an
undisguised culture of animosity towards the Union and union
activity at Mammoth and Massey, and shows that this antiunion
animus influenced hiring decisions at Mammoth.
Respondent Mammoth contends that it would be improper to
conclude that antiunion motivation played a part in its hiring
process since the Company has hired 19 union miners from the
Cannelton/Dunn unit, and has tried to hire 10 others who either
refused job offers or declined further consideration.28 The Re-
spondents’ hiring of a small percentage of the over 200 former
Cannelton/Dunn unit members when filling 219 openings at
Mammoth does not undercut the clear evidence of the Respon-
dents’ antiunion motive. It was not necessary for the Respon-
dents to deny employment at Mammoth to all of the Cannel-
ton/Dunn unit members to meet the objective of unlawfully
avoiding a successor’s bargaining obligation. As the Board
has repeatedly recognized, a successor can meet that objective
by hiring some of the predecessor’s employees, but stopping
short of allowing those employees to constitute a majority of
the new work force. For example, in MSK Cargo/King Ex-
press, 348 NLRB 1096 (2006), the Board affirmed the adminis-
trative law judge’s conclusion that the successor employer had
refused to hire 9 of the predecessor’s employees in order to
avoid a successor collective-bargaining obligation, even though
the successor employer included 8 of the predecessor’s em-
ployees among the 21 employees it hired. Similarly, in
Daufuskie Island Club & Resort, 328 NLRB 415 (1999), enfd.
mem. sub nom. Operating Engineers Local 465 v. NLRB, 221
F.3d 196 (D.C. Cir. 2000), the Board found that an employer
who had purposely hired 48.5 percent of the predecessor’s em-
ployees had violated the Act. In the instant case, the Respon-
dents, by hiring 19 to 22 of Cannelton/Dunn’s over 200 unit
employees when filling 219 positions created no risk that a
majority of the Mammoth workforce would come from Cannel-
ton/Dunn, or that a successor bargaining obligation would be
triggered by such a majority. Moreover, by refusing employ-
ment to the Cannelton/Dunn employees, such as Willis and
Siemiaczko, because those individuals intended to spearhead a
union organizing effort at Mammoth, the Respondents dramati-

reading of Sec. 8(c) has been rejected by the Board, which has held that
antiunion statements, even if not themselves alleged to be violations of
the Act, are nevertheless evidence of antiunion animus or motivation.
Overnite Transportation Co., 335 NLRB 372, 375 fn. 15 (2001) (em-
ployer statements in employee handbooks indicating that the employer
values union free working conditions are indicative of union animus);
Stoody Co., 312 NLRB 1175, 1182 (1993) (animus can be based on
unalleged conduct, and on conduct that is not necessarily violative of
the Act); Gencorp, 294 NLRB 717 fn. 1 (1989) (the 8(c) argument
rejected because “Board has consistently held that conduct that may not
be found violative of the Act may still be used to show antiunion ani-
mus”).
28 Based on my review of the record evidence, I conclude that 4 of
these 10 individuals never refused job offers or further consideration.
Those four are Tilman Cole, Rodney Leake, Gregory Moore, and Don-
ald Stevens. The record supports Mammoth’s contention that the other
six—Dewey Dorsey, Fred Hale, Danny Morris, Robert Moore, and Joe
Rader—either declined a job offer of some sort, or chose not to proceed
further in the hiring process. Of these six, only Dorsey is an alleged
discriminatee in this case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
cally reduced the likelihood that the former Cannelton/Dunn
employees on its work force would elect to create a new bar-
gaining obligation.
C. Respondents’ Burden of Showing Nondiscriminatory
Reasons
For the reasons discussed above, I conclude that the General
Counsel has met its burden of showing that the Respondents
failed to hire unit employees of the predecessor employer and
were motivated by antiunion animus. Therefore, under
Planned Building Services supra, and Wright Line, supra, the
burden shifts to the Respondents to prove that they would not
have hired the predecessors’ employees even in the absence of
the unlawful motive.
1. Seeking most qualified work force
In the most general terms, Mammoth’s defense is that it de-
nied employment to former unit employees of Cannelton/Dunn
because it was seeking the most qualified possible work force.
Mammoth offers an array of reasons for finding alleged dis-
criminatees insufficiently qualified, and I will discuss those
reasons below. Putting aside specific explanations for
Massey/Mammoth’s individual posttakeover hiring decisions,
the Respondents have offered no plausible explanation for the
decision to completely exclude Cannelton/Dunn’s union-
represented miners from the hiring that it did prior to taking
over the operation in September 2004. If the Respondents truly
wanted to find the 219 most qualified individuals for the min-
ing positions they filled, one would think they would have re-
cruited from among the experienced Cannelton/Dunn employ-
ees who were already doing the work and were familiar with
the facility. Indeed, the Respondents reached out in just that
way to all the nonunion, nonunit, employees at Cannel-
ton/Dunn—including secretaries, clerks, laboratory workers
and others. Many of those nonunion/nonunit employees of
Cannelton/Dunn were hired and continued working without
interruption when the Respondents began operating the facility,
whereas the union-represented unit employees, to a person,
were let go when the operation changed hands. No plausible
reason was established for the blatant disparity between how
the Respondents treated the nonunion incumbents and how they
treated the union/unit incumbents.
The Respondents not only failed to seek the most qualified
workers by reaching out to Cannelton/Dunn’s union-repre-
sented employees prior to taking over the operation, but the
evidence indicates that they went further by avoiding forms of
recruitment that were likely to alert the majority of unit mem-
bers to employment opportunities posttakeover. Prior to taking
over the operation, the Respondents’ officials did not make any
public announcements about how interested unit employees
could obtain and submit applications or otherwise seek contin-
ued employment. After taking over the operation, Massey
placed help-wanted announcements for experienced miners in
the vicinity of Mammoth, but those announcements generally
did not reveal whether the work was at Mammoth, or some
other Massey mine. Shortly after the Respondents took over
the operation, the president of the union local notified Massey’s
CEO, Blankenship, that the former unit members were avail-
able to fill positions at Mammoth, but the Respondents did not
respond by informing either the Union, or the vast majority of
the unit members, how to apply. Generally, the unit members
were reduced to applying for work at Mammoth by using un-
ion-provided copies of applications from other Massey subsidi-
aries. Although Mammoth claims that it made applications
available at its guard shack, the Respondents’ officials did not
make a general announcement to the Cannelton/Dunn employ-
ees about this. Moreover, when a former Cannelton/Dunn unit
employee inquired about work at the guard shack, he was not
offered an application. Given that Massey was having difficulty
recruiting experienced miners at its subsidiary mines, including
Mammoth, the Respondents’ unwillingness to make use of the
resource provided by Cannelton/Dunn’s more than 200 experi-
enced incumbent miners, indeed its apparent avoidance of that
resource, is very telling and rebuts Mammoth’s claim that it
was seeking to assemble the most qualified possible work
force.
Mammoth’s contention that the Respondents were simply
seeking the most qualified individuals is also undercut by the
fact that they filled many of the openings with inexperienced
trainee/red hat miners. Approximately 19 of the first 130 em-
ployees that the Respondents hired to perform the work of the
former bargaining unit were not qualified to work underground
at Mammoth as other than trainees. This is approximately the
same number as the Respondents hired from among the pool of
highly experienced Cannelton/Dunn miners. Even according
to Massey’s CEO, experienced miners would generally have
been more productive than these inexperienced trainees, and
several Mammoth supervisors complained that the Respon-
dents’ relied too heavily on trainees. During the period that the
Respondents were using a large number of trainees at the facil-
ity, they failed to meet Mammoth’s overall production goal,
and saw Mammoth’s peremployee productivity drop signifi-
cantly from the levels that had been achieved at Cannel-
ton/Dunn prior to the change in ownership.
Respondent Mammoth attempts to explain its reliance on
trainees by stating that those individuals were hired pursuant to
a Massey policy of preferring inexperienced miners who it
could train in its own practices and who, hopefully, would con-
stitute a future supply of well-trained miners. The Respondents
introduced no evidence showing that such a policy existed in
written form or was consistently applied. “Unwritten policies,
as opposed to written policies, can be easily turned into tools of
discrimination”. Dunning v. National Industries, 720 F.Sup.
924, 931 (M.D. Ala. 1989); see also Planned Building Services,
347 NLRB 670, 708 (the fact that a putative policy is unwrit-
ten, and not strictly adhered to, lends support to a finding that it
is pretextual); Norman King Electric, 334 NLRB 154, 161
(2001) (policy on which union applicants were rejected is pre-
textual where, inter alia, policy was unwritten); Sioux City
Foundry, 241 NLRB 481, 484 (1979) (alleged policy relied on
to reject applicants who were strikers from other employers “is
a mere pretext” where, inter alia, “this ‘policy’ was not written
down anywhere”).29 Indeed, the evidence here indicates that

29 As is discussed through the course of this decision, the Respon-
dents repeatedly failed to introduce documents demonstrating the exis-
tence of purported personnel policies that Mammoth argues account for
MAMMOTH COAL CO. 21
the unwritten trainee/red hat preference was intermittently,
rather than strictly, applied at Massey subsidiaries. Clock Elec-
tric, Inc., 323 NLRB 1226, 1232 (1997) (“The inconsistent
application of the unwritten rule supports the view that this
reason for the refusal to hire was pretextual.”), enfd. in part and
remanded 162 F.3d 907 (6th Cir. 1998). Doss, the former
human resources director at Mammoth, explained that the way
the preference worked was that “we would be instructed as HR
managers to hire some red hats, put them with mentors in the
mine, and train them to be equipment operators or just different
labor positions.” (Tr. 2658.) The evidence did not show why
the newly acquired Mammoth operation was selected as a loca-
tion to train such individuals. Facially, such training would be
more appropriate at established Massey mining operations
where there was an experienced workforce in place to provide
mentoring.
At any rate, the testimony of Rutherford, a Mammoth super-
visor who helped interview and select staff, supports the view
that a desire to train the next generation of Massey miners was
not the reason that the Respondents chose to fill openings at
Mammoth with trainee miners. Rutherford testified that the
Respondents stopped using trainee miners at Mammoth once
the operation was “staffed up” since at that time there was no
longer any need to hire inexperienced individuals. In other
words, the trainee miners were not being hired at Mammoth
because of a desire to provide training, but rather were being
hired in order to fill positions until the Respondents could hire
enough experienced miners.
Mammoth claims that it rejected multiple alleged discrimina-
tees because supervisors who had worked with those applicants
at Cannelton/Dunn gave them negative recommendations. (R.
Br. at 61–65.)30 Although Mammoth titles this argument
“Negative recommendations from former Cannelton supervi-
sors,” it only discusses the assessments made by one such su-
pervisor, Rutherford. Mammoth claims that it relied on the
recommendations from Cannelton/Dunn supervisors who be-
came Mammoth supervisors, but, curiously, it fails to discuss
the recommendations of Terry Buckner, Shay Couch, Jimmy
Nottingham, and Keith Stevens—all of whom were Mammoth
supervisors who, like Rutherford, had also been supervisors at
Cannelton/Dunn. Moreover, Rutherford’s testimony about his
recommendations was so vague and so conclusory as to be of
almost no persuasive value. In most instances, Rutherford

the refusal to employ the former Cannelton/Dunn employees. On sev-
eral occasions, the General Counsel objected to testimony regarding
these policies on the grounds that the “best evidence” of the policies
would be documents setting forth the policies. Although I overruled
those objections, I do consider it highly suspicious that the Respondents
failed, again and again, to introduce documentary evidence showing
that such policies existed, much less showing that they accounted for
the challenged hiring decisions. Given the size of the Massey enter-
prise, it would be surprising if such personnel policies had been estab-
lished, but not reduced to writing or otherwise documented.
30 The Cannelton/Dunn unit employees who Mammoth claims were
rejected because they received poor recommendations are: Mark Cline,
Crawford, Jackie Danbury, Robert Edwards, Lacy Flint, Harvey,
Cheryl Holcomb, Alvin Justice, William McClure, Ricky Miles, Doyle
Roat, Gary Roat, M. Roat, Paul Roat, Charles Rogers, Lawson Shaffer,
Totten, Charles Treadway, and Ralph Wilson.
simply opined that there were “better” workers than the former
unit employee, without either providing specific instances of
the unit applicant’s supposed shortcomings or identifying who
the “better” workers were. (See, e.g., Tr. 2804, 2805, 2806,
2808, 2814, 2815, 2816–2817, 2820.) In instances where Ruth-
erford made specific negative assertions about particular Can-
nelton/Dunn employees, the credibility of those assertions was
undermined by Rutherford’s admission that he had never once
written up the applicants for the supposed performance prob-
lems he now said disqualified them for work at Mammoth. (Tr.
2832, 2834–2835.) Mammoth’s contention is weakened further
by Rutherford’s demeanor as a witness. He was palpably
straining to conform his testimony to his current employer’s
litigation needs and there were numerous incongruities in his
account.31 Based on his demeanor and testimony, and the re-
cord as a whole, I conclude that Rutherford was not a credible
witness.
Even assuming that Rutherford recommended against hiring
some of the alleged discriminatees, the evidence does not show
that those recommendations played a significant part in the
hiring process. Rutherford did not document his recommenda-
tions to the Respondents’ officials in any way,32 and the Re-
spondents do not point to any testimony by decisionmaking
officials claiming to have rejected particular Cannelton/Dunn
applicants because of the statements that Rutherford testified to
having made about them. The record shows that alleged dis-
criminate Randy Kincaid was rated a “good” employee by
Rutherford, but the Respondents still declined to hire him. In
conclusion, the Respondents have not shown that Rutherford
made recommendations that played a significant part in the
rejection of the alleged discriminatees, and certainly not that he
made any recommendations that, absent the Respondents’ anti-
union motivation, would have caused the alleged discriminatees
to be denied employment.

31 For example, Rutherford tried to explain the rejection of certain
Cannelton/Dunn unit employees by stating that they had been “brattice”
men or “greasers” and that no such positions existed at Mammoth. Tr.
2802, 2820–2821. However, Rutherford later stated that, although
those were no longer job classifications, the work of brattice men and
greasers was still being done at Mammoth. Tr. 2825–2826, 2832; see
also Tr. 2949 (Adamson testifies about hiring two “greaser” employees
at Mammoth). At one point, Rutherford claimed that certain former
Cannelton/Dunn employees had been rejected because the positions
they had applied for or most recently performed had already been filled
and applicants were not considered for other positions. Tr. 2799,
2825–2826. However, elsewhere in his testimony Rutherford discusses
an alleged discriminatee who had most recently worked at the plant,
and stated a preference for a job there, but who was instead considered
for an underground position. Tr. 2802–2803. In addition, as alluded to
earlier, Rutherford claimed that a number of the rejected Cannel-
ton/Dunn applicants had performance or attendance deficiencies, but
when pressed he admitted that he had never once written up any of
those applicants for the supposed deficiencies.
32 Rutherford apparently did make some notations about particular
employees on a list that was in the possession of Cannelton/Dunn mine
superintendent Haynes. Haynes was not an official of the Respondents
and did not provide that list to any official who made hiring decisions
at Mammoth.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
Mammoth also contends that a number of applicants were re-
jected because they performed poorly at their interviews.33 I
find that the evidence for this defense is lacking. Mammoth
states, for example, that Fred Wright was rejected because he
received a low recommendation from interviewers, but cites no
evidence of such a recommendation. The evidence regarding
Wright shows that in fact, one interviewer, Adamson, consid-
ered Wright an “everyday worker, hard worker” and a “good
man” who was “equivalent” to those hired. (Tr. 2963.) Simi-
larly, although Mammoth asserts that alleged discriminatee
Bobby Preast was eliminated by the interview process, the re-
cord shows that interviewer Jimmy Nottingham rated Preast as
a satisfactory employee who should be considered for hire.
Nottingham was the only one of the interviewers who had
worked at Cannelton/Dunn and would have had an opportunity
to observe Preast’s work there.34 Mammoth’s claim that it
rejected Cannelton/Dunn employees because they received
poor interview evaluations is further undermined by Mam-
moth’s admission that some of those employees who it claims
to have rejected for receiving “low ratings” had actually been
rated “satisfactory”—the same rating received by other appli-
cants who were offered employment. (Br. of R. Mammoth at
69.)
Even more telling is the direct evidence that the Respon-
dents’ evaluation of the qualifications of potential employees
was tainted by antiunion bias. As discussed above, Adamson
and Doss admitted to instances where they rated former Can-
nelton/Dunn employees as undesirable applicants because those
employees had stated an intention to engage in union activity if
hired. Moreover, during the interview process, company offi-
cials asked many applicants to declare their attitudes about
working nonunion and about crossing picket lines. Similarly,
the spreadsheet that the Respondents used to keep track of the
Cannelton/Dunn employees’ status in the hiring process, ex-
plicitly set forth each individual’s approximate “union time.”
The Respondents have not shown that this union-related infor-
mation had any lawful relevance to the evaluation of a candi-
date’s qualifications, and have not satisfactorily explained why
it was made part of the evaluation process documentation.
Finally, in considering Mammoth’s claim that it rejected the
alleged discriminatees based on qualifications, I observe that
the Respondents ultimately found only 10 to 14 percent of the
approximately 211 former unit members qualified enough to
warrant offering them one of the 219 openings the Respondents
filled between December 3, 2004, and May 1, 2006. On its
face, those figures are hard to explain as the product of an effort
to assemble the “most qualified” work force given that the ma-
jority of the former unit members had extensive experience as
miners and that Massey was having serious problems recruiting

33 The Cannelton/Dunn unit employees who Mammoth claims were
rejected for receiving low evaluations from interviewers are: Norman
Brown, Leo Cogar, Paul Harvey, Randy Kincaid, Marion Lane, James
Nichols, David Preast, Michael Roat, Melvin Seacrist Jr., Gary Totten,
Larry Vassil, Willis, and Fred Wright.
34 Hall, who had not worked with Preast, recommended against giv-
ing him further consideration. Hall’s interview report provides no
explanation for the negative recommendation, but does note that Preast
obtained his application from the Union. GC Exh. 8(p).
enough experienced miners. Moreover, the small percentage of
unit members who were hired is particularly telling when con-
sidered in light of the evidence, discussed above, of: the Re-
spondents’ disparate treatment of the Cannelton/Dunn’s unit
incumbents, as compared to the nonunit incumbents;35 the
Respondents’ failure to offer the Cannelton/Dunn unit employ-
ees information about applying at Mammoth; the fact that
Mammoth officials admitted that they evaluated certain Cannel-
ton/Dunn unit members poorly because those individuals in-
tended to support the Union if hired; and, the Respondents’
failure to hire applicants who had been part of the Cannel-
ton/Dunn bargaining unit even when those applicants were
evaluated as highly as nonunit applicants who were hired.
2. Transferees from other Massey subsidiary mines
Respondent Mammoth also contends that the failure to hire
the former Cannelton/Dunn unit employees is explained by
adherence to a corporatewide Massey policy of giving a prefer-
ence to current employees of Massey-owned mines who wished
to transfer to a Massey mine closer to home. Mammoth does
not clarify which of the alleged discriminatees were rejected
because of the preference for transferees. At any rate, under
circumstances similar to those present here, the Board has
viewed a successor’s reliance on transferees as evidence of
discrimination, not evidence rebutting a prima facie showing of
discrimination. In Planned Building Services, supra, at 709, the
successor’s decision to staff the new facility with transferees,
rather than with the predecessor’s unionized employees, was
treated as evidence of discrimination because it left the succes-
sor with the problem of having to replace those workers at the
facility that they came from. The Planned Building Services
rationale applies even more strongly in the instant case given
the evidence that Massey and its subsidiaries could not find
enough experienced miners and that many of the employees
who the Respondents transferred to Mammoth came from
Massey’s “route 3” locations where the shortage of miners was
particularly acute. One of Mammoth’s own witnesses, Human
Resources Official Chandler, conceded that the use of transfer-
ees from other Massey mines could negatively impact the trans-
ferring mines because they would have to replace the employ-
ees sent to Mammoth. The Respondents took this extreme
measure to find staff for Mammoth, even while offering posi-
tions to only 10 to 14 percent of the experienced union miners
of its predecessor.
The Respondents do not address the discussion in Planned
Building Services regarding a successors’ reliance on trans-

35 The blatant disparity between the Respondents’ treatment of the
incumbents in the bargaining unit and its treatment of the incumbents
outside the bargaining unit, not only leads me to conclude that the
Respondents failed to demonstrate that a desire to generate the most
qualified work force explains the rejection of the Cannelton/Dunn unit
employees, but also constitutes additional evidence that antiunion mo-
tivation led to the decisions. See New Otani Hotel & Garden, 325
NLRB 928 fn. 2 (1998) (“blatant disparity is sufficient” for a prima
facie case of unlawful motive); see also Planned Building Services, 347
NLRB 670, 674 quoting U.S. Marine Corp., 293 NLRB 669 (1980)
(“‘[I]nconsistent hiring practices’” are among factors “that would estab-
lish that a new owner violated Section 8(a)(3) by refusing to hire the
employees of the predecessor.”).
MAMMOTH COAL CO. 23
ferred employees. They argue that the transferees were hired
pursuant to an established Massey policy. I note, first, that
there is a complete lack of documentary evidence to support the
claims of the Respondents’ officials that such a policy existed.
No written policy was produced, and the Respondents cite to no
document referencing the existence of such a policy, describing
how it works, or recording the use of the policy to prefer an-
other applicant over a specific alleged discriminatee. As dis-
cussed above, the Board has repeatedly recognized that unwrit-
ten policies are a ready means of discrimination and are sus-
pect. Planned Building Services, supra; Norman King Elec-
tric, supra; Clock Electric, Inc., supra; Sioux City Foundry,
supra; Dunning v. National Industries, supra. Moreover,
Mammoth’s own mine superintendent, Ray Hall, contradicted
Mammoth’s claim that transferees from other mines were given
a preference. Hall testified at length about transferees who
were hired, but stated emphatically that employees from other
Massey mines received no edge or special consideration for
positions at Mammoth. (Tr. 2784.)
Witnesses who testified that a transferee preference existed,
did not describe a preference policy that was fixed and rea-
sonably well defined. Gillenwater testified that the policy only
applied to Massey miners who were currently working at a
mine over 50 miles from their homes, but other witnesses who
testified about the policy did not state that there was a 50-mile
requirement and Mammoth’s position is that the policy was not
limited by the 50-mile requirement described by Gillenwater.
(Br. of R. Mammoth at p. 19 and fn. 12.)36 None of the wit-
nesses who testified about the supposed policy explained
whether it was an absolute preference, or whether the alleged
discriminatees could vie against the transferees for openings.
Indeed, as noted above, one Mammoth official stated that there
was no preference at all given to employees transferring from
other Massey mines. The Respondents’ putative policy on
transferees is “conveniently vague” and this further supports a
finding of pretext. Norman King Electric, 334 NLRB at 161.
To the extent that Mammoth’s witnesses testified about the
way the putative transfer policy operated, that testimony con-
flicted with other evidence. Witnesses stated, for example, that
employees had to volunteer for the transfer to Mammoth by
placing their names on signup sheets posted at the Massey
mines where they worked. However, Doss testified that the
sign-up sheets that he used to select transferees did not arrive
from other Massey mines until approximately 2 weeks after he
started work at Mammoth—i.e., on about January 11, 2005,—
by which time approximately 19 transferees had already been
hired. Moreover, none of the sign-up sheets were introduced at
trial to corroborate that the persons transferred had, in fact,
volunteered. Nor were any of the transferees themselves called
to testify that they had volunteered or that transferring to
Mammoth had shortened their commutes. Indeed, the Respon-
dents cite no evidence showing that particular, identified, trans-

36 Mammoth cites to Gillenwater’s testimony at p. 2147 of the tran-
script to support its contention that the 50-mile requirement had been
eliminated from the policy, but that portion of the transcript does not
support the proposition.
ferees for miner positions had volunteered or reduced their
commutes by coming to work at Mammoth.
Although the record does not show with any specificity how
the Respondents’ putative policy on transfers operated, it ap-
pears that, however it operated, it did not serve the purpose of
minimizing the commutes of the Mammoth work force. The
evidence showed that the transferees and other nonunion per-
sons the Respondents hired to work at Mammoth lived, on av-
erage, approximately 33.76 miles from the Mammoth facility,
whereas the union/unit applicants who the Respondents rejected
lived, on average, only 15.11 miles away. (Tr. 3721–3723; CP
Exhs. 2 and 3.) In other words, despite Mammoth’s claim that
minimizing commuting distances was the concern that drove
the hiring of transferees, the evidence shows that the Respon-
dents selected transferees and other nonunion individuals who
lived relatively far from Mammoth, while rejecting former
Cannelton/Dunn unit employees who tended to live much
closer.
Based on the reasoning of the decision in Planned Building
Services, and in view of the evidence discussed above, I con-
clude that the Respondents’ reliance on transferees, rather than
the predecessor’s unionized employees, to staff Mammoth not
only does not establish that the alleged discriminatees would
have been denied employment absent antiunion motivation, but
provides additional support for a finding of antiunion motiva-
tion.
3. Applications
Mammoth claims that it would not have employed nine of
the alleged discriminatees, even absent antiunion motivation,
because those individuals either failed to initiate the hiring
process by filing applications, or because their filings were
somehow deficient. The evidence shows, however, that the
Respondents’ application requirements, to the extent such re-
quirements existed, were applied discriminatorily. While the
Respondents’ officials required the unit members from Cannel-
ton/Dunn to file applications before contacting those individu-
als about potential employment at Mammoth, the Respondents’
officials imposed no such requirement on many other individu-
als. For example, the Respondents’ officials required no appli-
cation before scheduling employment interviews for the non-
unit/nonunion incumbents at Cannelton/Dunn. The Respon-
dents could have recruited and retained the unit/union incum-
bents in the same manner—i.e., without awaiting applica-
tions—but chose not to do so. The Respondents’ officials also
recruited, and later hired, six nonunit employees from Kanawha
Eagle (a non-Massey mine) even though those individuals had
not filed applications prior to being contacted by the Respon-
dents. Charles McCutcheon and Michael Upton—two nonunit
individuals—were hired at Mammoth even though the Respon-
dents do not have applications from them and there was no
testimony that those employees had ever filed applications.37
The Respondents’ officials did require most prospective em-
ployees to fill out applications at some point in the process, but,
except in the cases of the unit employees from Cannel-

37 The Respondents’ personnel records contain resumes from these
employees, but not application forms.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
ton/Dunn, the Respondents’ officials demonstrated a willing-
ness to contact miners about employment at Mammoth before
those applications were completed.
The disparate administration of the Respondents’ supposed
application requirement exposes that requirement as pretextual,
and I find that such a requirement would not have led the Re-
spondents to deny employment to the alleged discriminatees
absent antiunion motivation. At any rate, the Respondents have
failed to show that any of the alleged discriminatees were re-
fused employment because they had not submitted applications.
In its brief, Mammoth argues that the following 9 individuals—
out of 85 alleged discriminatees—did not file applications:
Joseph Brown, Norman Brown, Kenneth Dolin, William Fair,
Clarence Huddleston, Jimmie Johnson, Danny Legg, Robert
Nickoson, and Charles Nunley. In the cases of Norman Brown,
Jimmie Johnson, and Danny Legg, the question of whether they
initiated the hiring process by filing an application is essentially
moot, because the evidence indicates that all three were inter-
viewed regarding positions at Mammoth.38 No official of the
Respondents testified that any of those three individuals were
rejected after being interviewed because they had not previ-
ously filed applications.
With respect to the other six individuals, the Respondents
have failed to show that they did not file applications. The only
evidence the Respondents offer is the testimony of Kyle Bane,
the current human resources official at Mammoth. He testified
that the Company’s records contain no applications filed by
five of those alleged discriminatees, and that the application
submitted by the sixth individual was not filed until July 2006.
This evidence is not compelling since Bane did not arrive at
Mammoth, or become involved with human resources matters
there, until November 2005. Thus he would not have direct
knowledge of what the Respondents did with applications filed
during the time period in late 2004 and the early part of 2005
when most of the alleged discriminatees applied. He did not
claim to know that every application filed prior to his arrival
had been retained in the Respondents’ files. If anything,
Bane’s testimony indicated otherwise. He stated that when he
arrived at Mammoth the hiring records were in “poor” shape
and that he had “tried to organize them the best I could.”
Thus, one cannot infer that an alleged discriminatee had not
filed an application based on Bane’s testimony that such an
application was not in the Respondents’ “poor” records when
he took over in November 2005.
Moreover, the six alleged discriminatees who Mammoth
claims were not considered because they had failed to file ap-
plications, testified that, to the contrary, they had submitted
applications to the Respondents. Joseph Brown testified that he
mailed a completed application to the Massey Coal Services
office in Charleston (Kanawha City) and also returned a com-
pleted application to Adamson (Mammoth’s plant superinten-
dent). (Tr. 1912, 1914–1915.) Similarly, Dolin testified that

38 See GC Exh. 8(c) (interview reports for Norman Brown); Tr.
1987–1980 (Jimmie Johnson testifies about discussing employment at
Mammoth during interviews with officials of other Massey subsidiar-
ies); Tr. 2603–2604 (Doss testifies about discussion with Danny Legg
about employment at Mammoth).
after personnel at the Massey Coal Services office in Charles-
ton (Kanawha City) refused to accept his application, he sub-
mitted an application at the Mammoth guard shack. (Tr.1021–
1025.) Fair testified that he submitted applications at two dif-
ferent Massey job fairs in West Virginia. (Tr. 677–680.) Hud-
dleston stated that he mailed his application to either Mammoth
or Massey, and also went to the Massey Coal Services office in
Charleston (Kanawha City) for the purpose of hand delivering
his application for work at Mammoth. (Tr. 2000–2002, 2008,
2015.) Robert Nickoson testified that he submitted an applica-
tion to Jennifer Chandler at a Massey job fair, and that he was
also one of a group of former Cannelton/Dunn unit members
who attempted to hand deliver their applications for work at
Mammoth to the Massey Coal Services office in Charleston
(Kanawha City). In addition, evidence shows that Nickoson
contacted Adamson to express interest in employment at
Mammoth, and that Adamson responded by providing
Nickoson’s contact information to the human resources de-
partment at Mammoth. (Tr. 1375–1380, 2960–2962.) Nunley
testified that he mailed an application for work at the former
Cannelton facility to Mammoth or Massey, but never heard
from the Respondents. (Tr. 1359–1361.) In some instances,
the recollections of these six individuals were somewhat vague
or confused. However, their testimony about submitting appli-
cations still outweighs the countervailing testimony of Bane,
who, as discussed above, had no personal knowledge about
whether the six individuals submitted applications prior to No-
vember 2005.
Respondent Mammoth claims that some alleged discrimina-
tees who filed applications were not hired because their appli-
cations had omissions—for example, the evidence showed that
the applicant had not completed one of several signature lines
on the application or had not accounted for a gap in employ-
ment history. This argument is not factually supported and
appears to be made only half-heartedly by Mammoth. The
Respondents did not present testimony of hiring officials identi-
fying alleged discriminatees who they declined to hire because
of application omissions, and the Respondents’ posthearing
briefs do not specify which individuals supposedly were re-
jected on this basis. More importantly, Respondent Mam-
moth’s own witness, Gillenwater, contradicted Mammoth’s
claim that such omissions would disqualify an applicant.
Gillenwater, stated that the practice when an application was
not complete was to ask the applicant to supply the omitted
information, not to deny the applicant further consideration.
(Tr. 2221–2222.)39 The applications of non-Cannelton/Dunn
individuals who the Respondents did hire include many appli-
cations with significant omissions. See, generally, General
Counsel’s Exhibit 6. Finally, Mammoth’s claim that alleged
discriminatees were rejected because of omissions on their
applications does not ring true given that the Respondents’
officials contacted numerous nonunit individuals about em-
ployment before receiving any applications at all from those

39 Gillenwater indicated that in cases of suspected fraud applications
would not be considered further, but the Respondents have not asserted
that any of the alleged discriminatees who it failed to contact had omit-
ted information from their applications for fraudulent reasons.
MAMMOTH COAL CO. 25
individuals, and hired some for whom the Respondents appar-
ently do not have any applications at all.
Mammoth also contends that employment was refused to al-
leged discriminatees Joseph Brown, Kenneth Dolin, and Cla-
rence Huddleston, because those individuals filed their applica-
tions at the wrong location and that others were rejected be-
cause their applications had not been updated. Both of these
contentions are suspect in light of the evidence that the Re-
spondents contacted numerous individuals who had not submit-
ted applications—updated or otherwise. At any rate, neither of
these defenses is factually supported. Regarding the conten-
tion that alleged discriminatees were rejected because they filed
applications at the wrong location, the testimony of the Re-
spondents’ own witness, Jennifer Chandler, is to the contrary.
Chandler, a Massey Coal Services employee assigned to serve
as Mammoth’s first human resources officer, testified that when
one Massey subsidiary “get[s] an application from anyplace, we
send them to other sister resource groups, you know, if they can
use those applicants.” Chandler further stated that if she re-
ceived resumes that were filed at another Massey subsidiary,
but expressed interest in working at Mammoth, those resumes
would be forwarded to Mammoth. (Tr.1654, 2560–2561.) The
Respondents did not present other evidence rebutting Chan-
dler’s description of the Respondents’ application-sharing prac-
tice.
The evidence did show that Joseph Brown, Dolin, and Hud-
dleston all attempted, initially at least, to apply at Massey Coal
Service’s Charleston/Kanawha City office. That was the office
where Gillenwater was stationed and, as discussed above,
Gillenwater was responsible for helping to interview and select
staff for Mammoth, as well as for monitoring the application
status of the bargaining unit employees. Moreover, when Doss
assumed Mammoth’s human resources functions he moved to
the Charleston/Kanawha City office. Chandler, who at times
served as the human resources officer for Mammoth, was her-
self an employee of Massey Coal Services. Given that the Re-
spondents did not inform the former unit employees from Can-
nelton/Dunn how to apply for work at Mammoth, they cannot
fairly fault those individuals for applying at Massey Coal Ser-
vices, where Doss and Gillenwater were stationed, and which
employed Chandler. In light of the evidence discussed above,
Mammoth’s attempt to raise this as a basis for failing to hire the
predecessor’s unit employees, suggests an effort to obfuscate
the application process in order to screen out those employees.
Also telling is the fact that in early 2005, after he attempted
to apply at the Charleston/Kanawha City location, Joseph
Brown filed a second application, this one at the Mammoth
facility. The uncontradicted testimony was that Brown gave his
application directly to Mammoth’s plant superintendent,
Adamson. After he filed this application, Brown was still not
contacted by anyone from Mammoth or Massey. Similarly, in
the summer of 2006, Dolin presented an application to person-
nel at one of Mammoth’s security stations but like Brown he
has not been hired by the Respondents. Thus, even assuming
Brown’s and Dolin’s first applications were filed at the wrong
location, that would not explain the Respondents’ failure to hire
Brown and Dolin on the basis of their subsequent applications.
Mammoth also claims that alleged discriminatees were re-
jected because their applications had become “stale” under
Mammoth’s “application consideration policy.” This argument
begs the question of why the alleged discriminatees were not
hired during the period before their applications supposedly
became stale when much of the hiring was taking place. More-
over, the claim that Cannelton/Dunn employees disqualified
themselves by failing to update their applications is disingenu-
ous given the credible evidence that many of those applicants
repeatedly called officials of the Respondents after filing their
applications, but were directed to a voicemail service or ma-
chine where they left messages that were never returned. At
any rate, the evidence is wholly inadequate to show either that a
policy on “stale” applications existed or that the alleged dis-
criminatees were rejected pursuant to it. The Respondents do
not reference any documentary evidence mentioning the exis-
tence of the policy, explaining how the policy operates, or dis-
cussing the policy’s application to alleged discriminatees. As
has been noted above, such unwritten policies are a ready
means of discrimination and are suspect. See Planned Building
Services, supra; Norman King Electric, supra; Clock Electric,
supra; Sioux City Foundry, supra; Dunning v. National Indus-
tries, supra. The only record support for Mammoth’s claim that
such a policy existed was the testimony of Bane. The record
shows that Bane assumed his duties at Mammoth in November
2005—over a year after the Respondents took over the Cannel-
ton/Dunn facility, and at a time when the Respondents had
already hired 166 employees to do bargaining unit work. None
of the officials responsible for Mammoth’s hiring prior to No-
vember 2005 claimed that a policy on stale applications was
being applied during their tenure, nor did they state that such a
policy was the reason they did not hire alleged discriminatees
to fill any of the 166 openings. Moreover, Bane did not claim
to know the reasons why the Respondents failed to hire the
alleged discriminatees during the year-long period prior to his
arrival. He did not even state how he learned about the Re-
spondents’ putative policy of disqualifying stale applications.
Mammoth’s purported policy on stale applications is also
conveniently vague. Bane did not state how long he would
consider the applications of alleged discriminatees to be cur-
rent. When asked whether a 6-month old application would be
viable, he replied that such applications “generally” would be
kept on file but not be considered; however, Bane never stated
that applications would be considered viable for any specific
period of time less than 6 months. Moreover, Bane’s statement
that a stale application “generally” would not be considered
suggests that there were exceptions to the requirement, but he
did not explain what those exceptions were. The evidence indi-
cated, in fact, that it was not unusual for the Respondents to
consider applications that were “stale” according to Bane’s
testimony. Indeed, Bane himself testified that after coming to
Mammoth, he recruited a few of the former Cannelton/Dunn
unit employees who had not filed new applications or updated
their earlier applications before Bane contacted them.40 The

40 At the trial, Bane initially made a general statement that some of
the former Cannelton/Dunn employees he recruited might have con-
tacted him first. However, when he discussed those employees indi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
evidence also shows that the Respondents interviewed a num-
ber of other individuals—including Jeffrey Styers, Lawson
Shaffer, and Melvin Seacrist—more than 6 months after they
filed their original applications, even though the record does
not show that those individuals had filed new applications or
updated their existing applications. Moreover, the Respondents
do not claim, and the evidence does not show, that the Respon-
dents ever advised the union/unit applicants that they needed to
update their applications after a period of time to remain in
consideration. The fact that the putative policy was not re-
vealed to the union applicants further supports the conclusion
that the policy was pretextual. See Beacon Electric, Co., 350
NLRB 238, 241 (2007) (employer’s claim that it refused con-
sideration/hiring pursuant to unwritten policy is pretextual
where, inter alia, the employer’s policy was not disclosed to
union applicants).
The putative “stale” application policy in this case is similar
to a policy that was found pretextual in Planned Building Ser-
vices, supra. In that case, the successor employer argued that it
had denied consideration to its predecessor’s unionized em-
ployees pursuant to a policy of contacting only those individu-
als who followed up their applications by continuing to call to
express interest. 347 NLRB 670 at 708, 709. In reasoning
affirmed by the Board, the administrative law judge rejected
that defense, noting that the employer had contacted applicants
who did not call first, and had “solicit[ed] inexperienced em-
ployees to apply for jobs, who had not even filed applications,
and still did not use the applications of fully qualified experi-
enced [predecessor] employees that [the employer] had sitting
in its main office.” Id. Similarly, in the instant case the evi-
dence showed that the Respondents’ officials allowed the ap-
plications of experienced Cannelton/Dunn employees to lan-
guish in Mammoth’s offices, even while those officials: con-
tacted individuals who had not updated their applications; hired
many inexperienced employees; failed to inform the Cannel-
ton/Dunn employees that they needed to update on their appli-
cations; and failed to return the messages of alleged discrimina-
tees who attempted to followup their applications.
In its brief, Mammoth relies on Vantage Petroleum Corp.,
247 NLRB 1492 (1980), for the general proposition that the
failure of a predecessor’s employees to file applications is a
valid nondiscriminatory basis for the successor’s failure to
consider or hire them. However, unlike alleged discriminatees
in the instant case, those in Vantage Petroleum failed to file
applications even though the new employer invited them to file
applications before it made any of its hiring decisions. The
recent decision in Planned Building Services, distinguishes the
Vantage Petroleum holding on precisely that basis. Planned
Building Services, supra at 715 fn. 69 (unlike the employees
rejected by Planned Building Services, the employees rejected
in Vantage Petroleum “were advised by [Vantage Petroleum]
before it made its hiring decision, that they could file applica-
tions”); see also Vantage Petroleum, 247 NLRB at 1494. The
Respondents not only failed to advise the Cannelton/Dunn unit

vidually, Bane revealed that he had been the one to initiate contact in
each case, usually after hearing about the individual from a current
employee or applicant for employment. Tr. 2739–2741.
employees that they could file applications for work at Mam-
moth, but generally did not reveal how those persons could
obtain applications or where they could submit them. During
the initial hiring, Massey placed help-wanted announcements in
the vicinity of Mammoth, but those advertisements did not
identify Mammoth as the prospective employer.41 In Love’s
Barbeque Restaurant No. 62, 245 NLRB 78, 81 fn. 10 (1979),
(the Board held that a hiring violation extended to employees of
the predecessor who did not file applications since such failure
was “hardly surprising” where, inter alia, hiring was conducted
“on the basis of advertisements which did not state the name of
the [employer].”), enf. granted in part, denied in part sub nom.
Kallmann v. NLRB, 640 F.2d 1094 (9th Cir. 1981).
Lastly, I note that to the extent the Respondents are claiming
that they believed the alleged discriminatees who had not up-
dated their applications by May 2005 were no longer interested
in employment, that claim is not credible. Not only did many
of these individuals leave followup phone messages for com-
pany officials, but in June 2005 the Union filed charges identi-
fying all but one of the 85 alleged discriminatees and challeng-
ing the decision not to hire those individuals. (GC Exh. 1(a)
and (g).)42 This certainly would have given the Respondents an
inkling that many of the alleged discriminatees were still trying
to become employed at Mammoth.
For the reasons discussed above, I conclude that the Respon-
dents have failed to show that, absent their antiunion motiva-
tion, they would refused to hire the alleged discriminatees be-
cause those individuals failed to file applications, or because
their application filings were somehow deficient or stale.
4. High school diploma/GED
Mammoth argues that, absent antiunion motivation, it would
have rejected 16 of the alleged discriminatees because they did
not meet Mammoth’s requirement of having a high school edu-
cation or a general equivalency diploma (GED). As with its
purported policies on applications, this policy was conveniently
vague, was not consistently applied, and the Respondents intro-
duced no evidence that it existed in writing.
The only evidence Mammoth cites for the existence of the
high school education/GED requirement is the testimony of
Susan Carr, a Massey Coal Services employee who served as
Mammoth’s benefits coordinator. However, based on Carr’s
own description of her responsibilities as benefits coordinator,
those responsibilities did not extend to helping select appli-
cants43 and there was no evidence that she knew why the Re-
spondents’ officials actually decided not to hire any of the al-
leged discriminatees. Carr did not even reveal the basis for her
understanding that Mammoth had the unwritten requirement.
Moreover, she conceded that individuals were hired to work at
Mammoth who had neither a high school diploma nor a GED.

41 Later, in August 2005, the Respondents placed a help wanted ad-
vertisement that identified Mammoth as the prospective employer.
42 The one alleged discriminatee who was not specifically identified
in the attachment to the charge is Everett Lane.
43 Carr testified that her responsibilities at Mammoth concerned such
things as employees’ healthcare benefits, dental and vision benefits,
vacations, holidays, workers’ compensation matters, and disability
claims.
MAMMOTH COAL CO. 27
The Respondents point to no evidence showing that the offi-
cials who actually helped select Mammoth’s employees re-
jected any of the alleged discriminatees because of a high
school education/GED requirement, or even that those officials
considered such credentials to be a significant factor in hiring
decisions.
The record shows that information in the Respondents’ pos-
session indicated that at least three of the individuals identified
by Mammoth as failing to meet the purported educational re-
quirement actually had either a high school education or a
GED. In its brief, Mammoth says that the requirement was not
met by 16 alleged discriminatees, including Dewey Dorsey,
Paul Harvey, and Gary Totten. However, the applications that
Dorsey, Harvey, and Totten filed with the Respondents state
that each had either a high school education or a GED. Mam-
moth’s claim that it rejected Dorsey based on the educational
requirement is also contradicted by the interview report that
Hall completed for Dorsey, which notes that Dorsey met that
requirement. (GC Exh. 8(g).) The Respondents do not point to
any evidence contradicting the information in these documents.
Moreover, although Carr claimed that waivers of the educa-
tion requirement were rare, and could only be approved by
Gillenwater (not by Hughart or any other Mammoth official), a
review of the applications shows that the Respondents fre-
quently hired nonunit miners who did not have either a high
school education or a GED. During the investigation of this
matter, the Respondents produced the applications or resumes
of 59 non-Cannelton/Dunn employees who they hired. (GC
Exh. 6.) Thirteen of those hirees—about 22 percent—either
indicated on their application materials that they had not com-
pleted high school or obtained a GED, or did not represent that
they had done so.44 Moreover, the Respondents do not point to
any documentation showing why waivers were granted to these
individuals, or even that waivers had in fact been obtained from
Gillenwater or anyone else. Indeed, in its brief, Mammoth
states that, without first obtaining a waiver, it offered employ-
ment to an applicant who it now claims did not meet the educa-
tional requirement. (Br. of R. Mammoth at 60 fn. 25.) Simi-
larly, David Lane testified that Doss offered him a job during
the interview, even though Lane had revealed that he had nei-
ther a high school diploma nor a GED. (Tr.1281–1282, 3480–
3481; GC Exh. 8(l).) The lack of documentation for the sup-
posed waivers and the evidence that the Respondents inconsis-
tently applied the purported waiver requirement further sup-
ports the conclusion that the educational policy is an after-the-
fact rationalization. See Planned Building Services, 347 NLRB
at 715; Clock Electric, 323 NLRB at 1232.

44 See GC Exhs. 6d, m, t, u, w, kk, nn, qq, ss, uu, xx, yy, and bbb. In
the tally, I include the nonunit/nonunion hirees who stated on their
applications that they had completed 12 years of school, but who did
not check the boxes indicating either that that they had graduated from
high school or obtained a GED. My inclusion of these individuals is
consistent with Mammoth’s alleged practice. Several of the former
Cannelton/Dunn employees who Mammoth claims did not meet the
education requirement state on their applications that they completed
12 years of school, but not that they had graduated from high school or
obtained a GED. These include alleged discriminatees Charles Bennett,
Robert Edwards, and Mike Johnson.
For the reasons discussed above, I conclude that the Respon-
dents’ purported policy requiring hirees to have a high school
education or a GED is pretextual, and that, absent antiunion
motivation, the Respondents would not have rejected any of the
alleged discriminatees based on such a requirement.
5. Position did not exist
As stated above, Mammoth claims that Bennett was not
hired because he did not have a high school diploma or GED.
In another portion of its brief, Mammoth cites a different reason
for not hiring Bennett—stating that he applied to work as a
“general laborer” and that no such position existed at Mam-
moth. The record shows that’s Bennett’s application listed ex-
perience in a variety of contexts at Cannelton/Dunn, both un-
derground (e.g., scoop operator at the mine face, miner helper)
and above ground (e.g., cleaning the bathhouse and maintaining
the driveway). His application materials also note that he pos-
sessed state certification to work as underground miner as well
as a mine foreman.
To support its claim that Bennett was rejected because he
applied for a position that did not exist at the new operation,
Mammoth relies on Doss’ testimony that he did not contact
individuals whose applications showed that they were applying
for positions at the plant or “on the surface,” since the Com-
pany was “primarily . . . filling underground positions.” That
testimony is inadequate to support Mammoth’s argument for a
number of reasons, not the least of which is that it does not
show that the term “general laborer” excludes underground
assignments at Mammoth. Nor did Doss, or anyone else, testify
that Bennett said he was unwilling to work in an underground
position at the mine as he done in the past. Mammoth’s as-
serted defense is also rebutted by evidence showing that the
Respondent did not limit its consideration of applicants to the
position they were seeking, but also considered them for other
positions for which they were qualified. Doss himself testified
that when initially staffing Mammoth he would “just look at the
. . . person’s qualifications . . . or past experience and try to best
fit them in . . . the open positions that we had available.” (Tr.
2676.) Indeed, Doss hired Guy Crist as a fire boss even though
the positions Crist applied for were shuttle car operator, roof
bolter, and scoop operator. (Tr. 963; GC Exh. 5(d).) At any
rate, the record fails to a show a lawful reason why the Respon-
dents filled so many of the above-ground positions before they
afforded Bennett and other employees of the predecessor con-
sideration for those positions.
Based on the above, I find that the claim that Bennett was re-
jected because the position he applied for did not exist at
Mammoth, is pretextual, and would not have caused the Re-
spondents to deny employment to him, absent antiunion ani-
mus.
6. Applicant did not want to work at Mammoth
Mammoth contends that absent antiunion animus it would
not have hired a number of the alleged discriminatees because
those individuals were not interested in continued employment
at the Cannelton/Dunn facility once the Respondents took con-
trol of the operation. The alleged discriminatees who Mammoth
claims disavowed an interest in employment are Tilman Cole,
Dewey Dorsey, Thomas Dunn, Robert Edwards, Rodney
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
Leake, Danny Legg, Gregory Moore, Michael Rosenbaum,
Lawson Shaffer, and Donald Stevens.45
Tilman Cole: The evidence showed that Cole had worked at
the Cannelton/Dunn facility, under various owners, for over 20
years. He lost his job there when the Respondents took over
the operation in September 2004. During his years at Cannel-
ton, Cole performed both underground and preparation plant
assignments, set the individual 1-day production record for
operating a continuous miner, and never had an unexcused
absence. The Respondents did not offer Cole continued em-
ployment at the time they took over the operation. After the
Respondents began operating the facility, Cole obtained an
application at a Massey job fair and submitted it by mail. Sub-
sequently, Cole called Adamson, who invited Cole to interview
for a job at Mammoth. On November 30, 2004, Cole came for
the interview which was conducted by Hall, Adamson, and
Rutherford. Cole testified that, at the interview, Hall stated that
Adamson wanted Cole to work at the preparation plant, but
Rutherford wanted him to operate a continuous miner. Hall
asked Cole which position he preferred, and Cole said he was
not sure given the higher wage rate that was being offered for
the underground job. According to Cole’s testimony, Hall then
said, “Well, I’ll call you in a couple of days for a [pre-
employment] physical and you can let us know then.” Neither
Hall, nor anyone else, contacted Cole regarding a physical ex-
amination or work at Mammoth. After about a week, Cole
called Adamson to ask about the job, but Adamson said he did
not know what the status was. Cole waited another week or
two and then, while picketing, again asked Adamson if he had
heard anything about the job, and again Adamson said that he
did not know. On another occasion within about 3 or 4 weeks
of the interview, Cole called Adamson to ask about working at
Mammoth, but Adamson said he did not have any information
about the subject. No one from the Respondents ever called
Cole, or left him a message, about employment. Cole testified
that the Respondents never offered him a job at Mammoth, or
told him that he could have a job there. After applying at a
variety of coal mines without success, Cole obtained employ-
ment with a construction company starting in August 2005.
In its brief, Mammoth contends that Cole was offered a job,
but turned it down. To support this contention, Mammoth re-
lies on the testimony of Adamson who stated that Cole was
offered a job during an interview, but that “[t]he job he was
offered was back underground, and [Cole] said he didn’t want
to go back underground.” After reviewing the record, I con-
clude that Cole’s testimony that the Respondents did not offer
him a job, was more credible than Adamson’s contrary testi-
mony. Cole was able to recall with confidence both what was
said at the interview, and who said it. Moreover, his account
was consistent with the interview reports completed by the
Respondents’ own officials—none of which mention a job offer
being made to Cole. Adamson, by contrast, gave only a vague

45 The discussions immediately below regarding specific applicants
relate only to Mammoth’s defense that the individuals did not want to
work at Mammoth. Other defenses raised by Mammoth, including a
number that are forwarded for these same individuals, are discussed
elsewhere in this decision.
account of the interview. He did not recount the specifics of
what was said, and was unsure who actually extended the sup-
posed job offer to Cole. Moreover, Adamson did not deny
Cole’s credible testimony that, during the month after the inter-
view, Cole contacted him on three occasions to check his status
in the hiring process, but that in each instance Adamson an-
swered that he did not know Cole’s status. Neither Adamson
nor the Respondents explain why Cole would contact Adamson
to inquire about his application if Cole had already been of-
fered, and turned down, employment. Nor do Adamson or the
Respondents explain why Adamson would tell Cole that he did
not know the status of Cole’s application if Adamson knew that
Cole had already rejected employment with Mammoth.
I conclude that the Respondents have failed to show that
Cole was offered, or turned down, a job at Mammoth.
Thomas Dunn: Dunn started at Cannelton/Dunn in 1996 and
lost his job when the Respondents took over the operation in
September 2004. In its brief, Mammoth contends that Dunn
told Doss that he was working at another coal company and
was not interested in coming for an interview at Mammoth.
This contention is not based on the recollection of any witness,
but rather on Doss’ notes of his contacts with employees.
Those notes are informal and Doss’ testimony indicated that
they were something he prepared for his own use, not a formal
business record that it was the regular practice of Mammoth or
Massey to make.46 Apparently they were made on a notepad,
not on any type of form generally used by either Respondent,
and are not signed by him. Doss concedes that he did not re-
cord every contact between himself and prospective employees
in those notes. Moreover, Doss did not testify that he had a
recollection of a conversation with Dunn, or that the notes re-
freshed his recollection of such a conversation. In fact, Doss
indicated that his notes did not refresh his recollection as to
specific contacts with applicants. (Tr. 2591–2592.) Under
these circumstances I believe that Doss’ notes are entitled to
very little evidentiary weight.
For his part, Dunn testified that he talked by phone with
someone from Mammoth or Massey about employment. Dunn
testified that he had found another job, but that he was prepared
to accept an offer with Mammoth if he had been offered em-
ployment pursuant to the existing terms and conditions of em-
ployment as set forth in the collective-bargaining agreement.
(Tr. 1780–1783.) Based on Dunn’s demeanor and testimony, I
credit his sworn statement that he would have done so. I find
that Dunn was contacted by a hiring official about employment
with Mammoth, but that he declined to participate further in the
hiring process because the Respondents were not offering to
maintain the existing terms and conditions of employment.
The question then becomes whether the Respondents were
entitled to set their own terms, and thus to decline to hire appli-
cants who insisted on employment under the predecessor’s

46 Under Fed.R.Evid. 803(6) a writing does not meet the business re-
cord exception to the hearsay rule unless it “was the regular practice of
that business activity to make the memorandum, report, record, or data
compilation.” The Respondents did not submit similar notes from
either Chandler or Bane—the officials who handled Mammoth’s human
resources functions before and after Doss’ tenure.
MAMMOTH COAL CO. 29
terms and conditions of employment. A successor employer is
generally not required to adopt the terms and conditions of
employment in existence at the predecessor, but is “ordinarily
free to set the initial terms on which it will hire the employees
of a predecessor.” Smoke House Restaurant, 347 NLRB 192,
204 (2006), quoting NLRB v. Burns Security Services, 406 U.S.
at 294. However, the Board has held that, under certain cir-
cumstances, a successor forfeits that privilege. Those circum-
stances include when either: (1) the successor “informs the
predecessor’s employees that it will operate the successor busi-
ness sans the Union,” Smoke House, supra, quoting Concrete
Co., 336 NLRB 1311 (2001), and citing Eldorado, Inc., 335
NLRB at 952-53; or (2) the successor “plans to retain all” of
the predecessors employees, Planned Building Services, 347
NLRB 670, 674, citing NLRB v. Burns Security Services, 406
U.S. at 294-95. As is discussed below, the Respondents have
forfeited the privilege of setting initial terms and conditions of
employment for the predecessor’s employees, including Dunn,
under both of these rules.47
During the initial staffing at Mammoth, company officials
distributed a document to applicants in which the Respondents
stated that “the mine is nonunion.” During the interview proc-
ess the Respondents’ officials told a number of the predeces-
sor’s employees that Mammoth would be a nonunion operation.
In Advanced Stretchforming, International, the Board explained
why a successor forfeits the entitlement to set initial terms and
conditions of employment when it makes such statements to the
predecessor’s employees:
A statement to employees that there will be no union at the
successor employer’s facility blatantly coerces employees in
the exercise of their Section 7 right to bargain collectively
through a representative of their own choosing and constitutes
a facially unlawful condition of employment. Nothing in
Burns suggests that an employer may impose such an unlaw-
ful condition and still retain the unilateral right to determine
other legitimate initial terms and conditions of employment.
A statement that there will be no union serves the same end as
a refusal to hire employees from the predecessor’s unionized
work force. It “block[s] the process by which the obligations
and rights of such a successor are incurred.”
Advanced Stretchforming International, 323 NLRB 529, 530–
531 (1997), enfd. in relevant part 233 F.3d 1176 (9th Cir.
2000), cert. denied 534 U.S. 948 (2001), quoting State Distrib-
uting Co., 282 NLRB 1048, 1049 (1987).
The Respondents also forfeited the entitlement to set initial
terms and conditions under the rule that applies to successors
who plan to retain all of the predecessor’s employees. Starting
with its decision in Love’s Barbecue Restaurant No. 62, the
Board has held that when an employer attempts to evade a bar-
gaining obligation by discriminatorily refusing to hire the em-
ployees of the predecessor, the Board will assume that the em-
ployer would have hired employees of its predecessor to fill all
unit positions if not for the discrimination. Planned Building
Services, supra at 674, citing Love’s Barbeque Restaurant No.

47 For reasons discussed elsewhere in this decision, I also conclude
that Mammoth was the legal successor to Cannelton/Dunn.
62, 245 NLRB 78.48 The Board recently explained that
“[a]lthough it cannot be said with certainty whether the succes-
sor would have retained all of the predecessor employees if it
had not engaged in discrimination, the Board resolves the un-
certainty against the wrongdoer and finds that, but for the dis-
criminatory motive, the successor employer would have em-
ployed the predecessor employees in its unit positions.”
Planned Building Services, supra at 674. As I find below, the
Respondents discriminated against the predecessor’s unit em-
ployees and therefore I must assume that, but for the discrimi-
nation, the Respondents would have filled all of its unit posi-
tions with employees of the predecessor. Under Love’s Barbe-
cue, an employer who triggers this assumption forfeits the
privilege to set initial terms and conditions of employment, and
must maintain the existing terms and conditions pending bar-
gaining. See Planned Building Services, supra.49
Since the reason Dunn declined to participate further in the
selection process was that the Respondents were unlawfully
refusing to maintain the existing terms and conditions of em-
ployment pending bargaining, Dunn’s failure to participate
further in the process does not constitute a legitimate, nondis-
criminatory, basis for refusing to hire him.
Dewey Dorsey: Dorsey started at Cannelton/Dunn in 1996
and lost his job there when the Respondents took over the op-
eration. During the last 2 years he had worked above-ground as
bulldozer/mobile equipment operator, and before that he had
worked as an underground electrician. As discussed above,
Mammoth has claimed that Dorsey was refused employment
because he did not meet minimum educational requirements.
However, Mammoth contradicts that contention by also arguing
that it offered Dorsey a job and that he turned the offer down.
To support the contention that Dorsey refused a job offer,
Mammoth relies on Rutherford’s testimony regarding Dorsey’s
November 30, 2004 interview. Rutherford testified that the
interview had gone well and that Dorsey was offered a job as
an underground electrician, but turned it down because he
wanted an above-ground position at the plant. Dorsey contra-
dicted Rutherford’s account, stating that at the interview he told
the Respondents that he was applying for the underground elec-
trician position. Based on demeanor, I would find Rutherford’s
and Dorsey’s testimonies to be equally credible.50 However,
consideration of the documentary evidence leads me to credit
Dorsey’s account. Rutherford’s claim that Dorsey was offered

48 The Respondents have not challenged the validity of the Love’s
Barbecue doctrine.
49 Mammoth has argued that it employs a smaller, leaner, work force
than Cannelton/Dunn employed. If this is true, it would not change the
result here since the Board has held that a successor must maintain the
existing terms and conditions of employment where it “did not plan to
retain literally all of the predecessor employees, but rather, ‘planned to
employ a smaller work force consisting solely of predecessor employ-
ees.’” Planned Building Services, supra, at 674 fn.17 (emphasis in
original), quoting Galloway School Lines, Inc., 321 NLRB 1422, 1427
(1996).
50 For reasons discussed above, I considered Rutherford to be a less
than fully reliable witness based on his demeanor and testimony. For
his part, Dorsey was a surly and combative witness, especially during
cross-examination, and his account of what transpired at the interview
was at times self-contradictory.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
an underground electrician position, but was only interested in
a plant job, is contradicted by the “interview record” form com-
pleted by Rutherford, on which Rutherford reported that Dorsey
desired the position of “Electrician Underground.” (GC Exh.
8(g).) Likewise, Hall and Adamson note on their interview
forms that Dorsey was seeking an underground electrician posi-
tion. None of interviewers’ report forms, including the one
completed by Rutherford, state that Dorsey was offered a job of
any kind. To the contrary, all of those reports recommend
against interviewing Dorsey further, and Hall’s report states,
“Do not hire at this time.”
For the reasons discussed above, I conclude that the Respon-
dents have failed to show that, absent antiunion animus, Dorsey
would not have been hired because he was offered a position as
an underground electrician and turned it down.
Robert Edwards: Edwards worked at Cannelton/Dunn for
18 years, and once returned there when recalled after a layoff of
over 10 years. Mammoth states that Edwards was not hired
because he declined an offer to interview. This is one of a
number of shifting explanations that Mammoth asserts for the
failure to hire Edwards. Mammoth also claims that Edwards
was not hired because he did not meet Mammoth’s minimum
educational requirements and that he was not hired because he
was evaluated as an “average” employee by Rutherford. For
reasons discussed above, I have concluded that Mammoth’s
claims that alleged discriminatees were rejected based on a
Mammoth educational requirement and on Rutherford’s rec-
ommendations are pretextual.51 I reach the same conclusion
regarding Mammoth’s claim that Edwards refused to be inter-
viewed. The Board has held that when, as here, an employer
offers inconsistent or shifting reasons for its actions, a reason-
able inference may be drawn that the reasons being offered are
pretexts designed to mask an unlawful motive. Inter-
Disciplinary Advantage, Inc., 349 NLRB 480, 506 (2007), cit-
ing Mt. Clemens General Hospital, 344 NLRB 450, 458
(2005); Holsum De Puerto Rico, Inc., 344 NLRB 694, 714
(2005); and GATX Logistics, Inc., 323 NLRB 328, 335 (1997).
I find that such an inference is warranted regarding Mammoth’s
contention that Edwards refused to be interviewed.
In addition, Mammoth’s claim that Edwards was not hired
because he refused to be interviewed is contrary to the evi-
dence. The only testimony that Mammoth relies on is Edwards’
own account. It is true that Edwards stated that he talked to
Doss at one point and told him he wanted a job, but would not
cross the picket line. However, Edwards also testified that after
that conversation, he contacted the Union local about the picket
line, and was told that he could cross it. Edwards testified that
he then telephoned Doss repeatedly in an effort to arrange an
interview, but was only able to reach Doss’ answering ma-
chine/service. On three or four occasions, Edwards left phone
messages telling Doss that he wanted to interview, but Doss
never returned those messages. Neither Doss nor any other
witness contradicted Edwards’ testimony that he left messages

51 I also note that Rutherford conceded that while a supervisor at
Cannelton/Dunn he had never disciplined Edwards, Tr. 2834, and had
not even mentioned performance problems to him for a “long time,”
“probably” more than 5 years. Tr. 2836.
asking to interview and that those messages were not returned
by Doss. Moreover, after Doss failed to return those phone
messages, Edwards followed up by asking Nottingham, a
Mammoth supervisor, to check on the status of his application,
but the Respondents still did not contact Edwards to interview.
The Respondents provide no reason why I should credit Ed-
wards’ testimony that he initially told Doss that he would not
cross the picket line for an interview, but not his unrebutted
testimony that he subsequently left Doss repeated messages
stating that he would cross the picket line to interview. Based
on Edwards’ demeanor I found all of that testimony equally
credible.
In its brief, Mammoth asserts that Doss’ notes show that
Edwards never re-contacted human resources after the initial
phone call. (Br. of R. Mammoth at p. 70.) Mammoth does not
say where in Doss’ notes this representation supposedly ap-
pears. Moreover, Doss admitted that his notes did not neces-
sarily record every contact (Tr. 2672), and thus a failure of
those notes to report Edwards’ subsequent requests to be inter-
viewed would not show that such requests had not been made.
At any rate, Doss’ notes were unsworn, and neither Doss, nor
anyone else, gave testimony contradicting Edwards’ sworn
statement that he left repeated messages for Doss requesting to
interview.
For the reasons discussed above, I conclude that Mammoth’s
contention that Edwards was not hired because he refused to be
interviewed is not supported by the record.
George Rodney Leake: In a position statement given during
the investigation, Mammoth took the position that Leake was
not offered a job because he received a poor evaluation. (GC
Exh. 12(c) at p. 4.) In its posthearing brief, Mammoth shifts its
explanation—claiming that it actually tried to hire Leake, but
that he turned down a job offer.
Leake started with Cannelton in April 1974 and last worked
there in September 2004. His application listed the positions he
was seeking as underground electrician and “tipple” plant elec-
trician. After the Respondents took over the operation, Leake
had an employment interview with Doss, Hall, and a Mammoth
supervisor named Rick Burke. Leake testified that Burke asked
him what job he was applying for. Leake responded, “[W]hat
job do you have open?” Burke said, “[W]hatever you want,”
and Leake answered that he would “like to go back to the plant
as the electrician.” Burke told Leake that that job was not
available and that all the openings were for underground work.
Leake testified that he replied, “[T]hen I’m applying for an
underground job.” Burke asked how Leake got along with
people and whether he had arguments with supervisors. Leake
responded that he had not had any problems in that regard.
Leake testified that the Respondents did not offer him a job
during the interview, and did not contact him subsequently.
When he did not hear from the Respondents, Leake asked two
Mammoth employees to talk to Rutherford about his applica-
tion, but Leake was still not contacted.
To support its claim that Leake rejected an offer of employ-
ment, Mammoth relies on Hall’s testimony. Hall testified that
“I think that was the one that we may have said something
about going underground, but I don’t think he was interested in
that.” I considered Hall’s testimony regarding this matter far
MAMMOTH COAL CO. 31
less reliable than Leake’s. First, Hall testimony was, on its
face, very uncertain—only that he “thinks” Leake was the one
to whom “we may have said something about going under-
ground,” and that he does not “think” Leake was interested.
Leake’s testimony on this subject was far more detailed and
certain than Hall’s. Moreover, Leake’s testimony that he ex-
pressed a willingness to work in an underground capacity is
corroborated by his application, which specifically lists under-
ground electrician as one of the jobs he was seeking.
The Respondent also relies on Adamson’s testimony regard-
ing Leake. Adamson stated that he asked Chandler to call
Leake in for an interview, but that at the interview Leake “was
offered a job and wouldn’t take it.” The record shows, how-
ever, that Adamson did not attend Leake’s interview, and it is
not clear how Adamson would have known what transpired
during it.52 At best, Adamson’s testimony on the subject is
hearsay. Moreover, Adamson’s testimony, like Hall’s, was far
less specific than Leake’s. I credit Leake’s specific, certain,
first-hand, testimony, over Adamson’s vague hearsay account.
For these reasons I find that the Respondent has failed to
show that Leake was offered a job at Mammoth but turned it
down.
Danny Legg: Legg worked for Cannelton/Dunn for ap-
proximately 10 years and lost his job there when the Respon-
dents took over the operation in September 2004. His most
recent position was an underground assignment as a continuous
miner operator. Legg testified that after the Respondents took
over Cannelton/Dunn, he sought employment with Mammoth,
as well as with Massey subsidiary mines Elk Run and Nicholas
Energy. On January 1, 2005, Legg spoke to Doss by phone
about possible employment. Doss did not claim to recall the
conversation with Legg, but he did read a portion of his notes
regarding that conversation into the trial record. Those notes
state: “Danny Legg worked at Horizon—Interested in Elk Run.
Says he has a bad name. Tried to fire him at Cannelton. Wants
to stay away from Cannelton. Run in with the boss at Cannel-
ton named George Ferrll [sic]. Not interested in Mammoth.”
(Tr. 2603; Mammoth Exh. 65.) Legg admitted that he talked to
a company official by phone about his interest in employment
at Elk Run,53 but he denies that he ever told that official, or
anyone else from Massey or Mammoth, that he was not willing
to work at Mammoth. (Tr. 3587–3588.) Legg expressed his
interest in working at Mammoth to Shay Couch, a supervisor
who he knew there. Subsequent to the conversations with Doss
and Couch, Legg was not contacted by the Respondents about
employment at Mammoth, Elk Run, or Nicholas Energy.54

52 Leake credibly testified that he was interviewed by Doss, Hall,
and Burke, Tr. 3611, and he specifically denied that Adamson was
present at the interview, Tr. 3618. Neither Adamson, nor any other
witness, contradicted Leake’s testimony that Adamson was not present.
53 Immediately, prior to assuming his responsibilities at Mammoth,
Doss held human resources positions at a number of other Massey
subsidiaries, including Elk Run, simultaneously. It is not clear whether
Doss retained human resources responsibilities at Elk Run when he
took on such responsibilities at Mammoth.
54 In its brief, Mammoth asserts that Legg was hired at Elk Run, but
it points to nothing in the record supporting that contention. Br. of R.
Mammoth at p. 57 fn. 21 and p. 68. Mammoth’s assertion is contra-
For reasons discussed earlier, I consider Doss’ uncorrobo-
rated notes to be entitled to very little weight regarding dis-
puted matters. Doss’ notes were contradicted by the testimony
of Legg, who admitted to expressing an interest in employment
at Elk Run, but denied stating that he was not interested in em-
ployment at Mammoth. I considered Legg a somewhat less
than forthcoming witness. For example, Legg initially testified
that he had not had problems with his job or supervisors at
Cannelton/Dunn, and only after some prodding stated that Far-
rell had attempted to discharge him. (See Tr. 1214 and 1229.)
The evidence presented regarding Legg is thin at best, and is
insufficient to allow me to find with any certainty that Legg
did, or did not, disavow interest in employment at Mammoth.
However, since the General Counsel has shown that antiunion
animus played a part in the Respondents’ refusal to hire the
former Cannelton/Dunn employees, the burden at this stage of
the analysis is on the Respondents. The Respondents have not
met that burden with respect to Legg.
For these reasons I find that the Respondent has failed to
show that Legg was offered a job at Mammoth but turned it
down.
Gregory Moore: G. Moore began working at Cannelton in
1974 and his employment ended when the Respondents took
over the operation in September 2004. On November 30, 2004,
he was interviewed for a job with Mammoth. The interview
was conducted by Adamson, Hall, Nottingham, and Rutherford.
Mammoth states that G. Moore was offered a job at the prepa-
ration plant, but that he turned it down. G. Moore denies that
he was ever offered a job with Mammoth, or that he ever turned
down such a job.
To support its contention that G. Moore turned down a job
offer, Mammoth relies exclusively on the testimony of
Adamson. Adamson testified that, after the interview, he told
Chandler to offer G. Moore a job in the plant. According to
Adamson, G. Moore told him that he was turning down the
offer because he had a “handicapped” child and was “afraid”
that if he took the job the child would “lose his hospitalization.”
G. Moore denies this. He states that he was never offered a job
at Mammoth, and that after his interview he was never con-
tacted by the Respondents. After considering the evidence
relating to this issue, I credit G. Moore’s account over
Adamson’s. I note first that Adamson’s account was not cor-
roborated by any of the other company officials who attended
the interview. Hall and Rutherford testified, but neither of
them stated that a decision was made to hire G. Moore. Indeed,
although Adamson’s interview notes report that he recom-
mended G. Moore for hire, none of the other interviewers’
notes report such a recommendation. Nottingham gave G.
Moore no rating and specifically recommended against inter-
viewing him further. Similarly, Chandler testified, but did not
corroborate Adamson’s testimony that she offered G. Moore a
position. G. Moore’s testimony, on the other hand, was but-
tressed by that of James Fitzwater. Fitzwater had recom-
mended G. Moore to Adamson and, after the interview, Fitz-

dicted by Legg’s testimony that he was not contacted by the Respon-
dents about a job, much less hired. Tr. 1221. I credit Legg’s testimony
on this score.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD32
water and G. Moore discussed work at Mammoth. G. Moore
told Fitzwater that he had not been offered a job. (Tr. 2891.)
Moreover, the suggestion that G. Moore turned down the job
with Mammoth out of concern about losing the private medical
coverage for his son was undercut by G. Moore’s uncontra-
dicted, and credible, testimony that he does not use that cover-
age because his son has superior medical insurance (no co-
pay/no deductible) under Medicaid. G. Moore’s testimony that
he did not use the private coverage for his son was uncontra-
dicted, and the Respondents do not explain why G. Moore
would have turned down a job offer out of concern for losing a
benefit that he did not even use.
For the reasons discussed above, I conclude that the Respon-
dents have failed to show that G. Moore rejected an offer of
employment at Mammoth.
Michael Rosenbaum: Rosenbaum began working at Cannel-
ton/Dunn in 1976. His employment there ended when the Re-
spondents took control of the facility. Rosenbaum filed an
application to work at Mammoth, and Doss invited him for an
interview. Rosenbaum was interviewed by Doss, Hall, and
Burke on January 23, 2005. At the interview, Rosenbaum was
first asked about his skills and his physical condition. Then
Hall asked Rosenbaum what he thought about the picket shacks
across the road. Rosenbaum responded: “I support them. The
Union told us to go to work.” Rosenbaum also testified that “I
needed a job, and I wanted to work, that’s why I was there.” At
the end of the interview, Doss stated, “We’ll call you.”
Rosenbaum was never contacted by Doss.
It was not until approximately 8 months after his January
2005 interview that Rosenbaum was contacted by the Respon-
dents. At that time Rosenbaum received a call from Chandler,
who had assumed responsibility for Mammoth’s human re-
sources functions.55 Chandler asked Rosenbaum whether he
wanted to be interviewed for a position. In the interval between
his January 2005 interview and Chandler’s call, Rosenbaum
had, on June 12, 2005, been granted social security disability
benefits based on a request of March 29, 2005. Rosenbaum
testified that he had psychological problems stemming from his
job loss, and also had back problems. Rosenbaum informed
Chandler that he was on social security disability. Rosenbaum
and Chandler offered differing accounts of what was said next.
According to Rosenbaum’s testimony, Chandler warned him
that it could be difficult to revive his social security benefits if
he passed Mammoth’s preemployment physical and attempted
to return to work there. She told Rosenbaum that her own
father had this problem. Rosenbaum testified that he said he
would have to “check” and think about whether he wanted to
try to come back to work. After this conversation, Rosenbaum
contacted the Social Security Administration, and was informed
that he could work for a “trial period” without endangering his
existing entitlement to disability benefits. Rosenbaum stated
that he decided to try to return to work and repeatedly tele-
phoned Chandler but was not able to reach her. On five occa-
sions he left phone messages for Chandler stating that he

55 Chandler had human resources responsibilities at Mammoth dur-
ing two periods. The first period was from September until December
17, 2004. The second was from August until late October 2005.
wanted to talk about the job interview he had been offered, but
Chandler never returned any of his messages.
According to Chandler’s account, when she called
Rosenbaum to offer him an interview, he answered that he was
unable to do that because he was receiving social security dis-
ability benefits. She testified that Rosenbaum said he was un-
able to perform the functions of the job. As a result she put a
note in his file that he was not interested in interviewing and
did not consider him further.
Even if I were to accept that Rosenbaum turned down an of-
fer of an interview during a conversation with Chandler in late
2005, that would not explain the Respondents’ earlier failure to
hire Rosenbaum following his January 2005 interview. Indeed,
the Respondents offer no nondiscriminatory explanation for
choosing not to hire him after his January interview. That in-
terview occurred months before Rosenbaum had received or
even applied for disability benefits. Rosenbaum credibly testi-
fied that at the time of his initial interview he believed that
there were jobs he was capable of performing in the Mammoth
mine and that he would have accepted a job offer. In addition, I
note that the record does not provide a basis for believing that
Rosenbaum would have quit his job upon receiving disability
benefits on June 12, since his employment would have pre-
cluded him from qualifying for such benefits if they had not
already been granted. See 20 CFR § 404.1520(b) (An individ-
ual who is engaging in substantial gainful activity will not be
found to be disabled regardless of medical findings.). More-
over, Rosenbaum’s testimony provides reason to believe that
his eventual disability was the result, at least in part, of psycho-
logical difficulties stemming from his inability to obtain em-
ployment after the Respondents took over the Cannelton/Dunn
facility.
At any rate, Chandler did not contradict Rosenbaum’s credi-
ble testimony that, following their phone conversation,
Rosenbaum repeatedly left phone messages for her stating that
he wanted to interview for a job at Mammoth. Nor did Chan-
dler contradict the testimony that she failed to respond to those
messages. Neither Chandler, nor the Respondents, explain why
Chandler did not return those messages, or schedule Rosen-
baum for an interview based on them.
For these reasons, I conclude that the Respondents have
failed to show that, absent antiunion animus, they would not
have hired Rosenbaum because he declined to be interviewed.
Lawson Shaffer: Shaffer started at Cannelton/Dunn in 1974.
Immediately before the Respondents took over the facility,
Shaffer was still an employee of Cannelton/Dunn, but was on
workers’ compensation leave due to a work-related injury. He
had surgery for the injury and his doctor released him to return
to work on February 3, 2005. Prior to receiving the doctor’s
release, Shaffer applied for social security disability benefits.
He was awarded those benefits in June or July 2005.
In December 2004—before being granted disability bene-
fits—Shaffer applied for work at Mammoth. Shaffer was not
contacted by the Respondents about his job application for over
10 months. He testified that he would have accepted a job offer
with Mammoth during the period after his doctor released him
to return to work and before he was granted disability benefits.
That period commenced, at the latest, when his doctor released
MAMMOTH COAL CO. 33
him to return to work on February 3, although it is reasonable
to assume that Shaffer’s doctor would at least have considered
an earlier release date if Shaffer had a pending job offer.
On October 26, 2005—over a year after the Respondents
took over the former Cannelton/Dunn operation—Chandler
contacted Shaffer by phone and asked whether he was inter-
ested in a job interview with Mammoth at that operation.
Shaffer replied, “[N]o.” Shaffer credibly testified that the rea-
son he rejected the offer of an interview was that, by that time,
he was receiving social security disability benefits.
The Respondents cannot claim that Shaffer’s October 26,
2005 refusal to interview would have caused it not to hire him
during the approximately 10-month period prior to October 26
since there is no evidence that before that time the Respondents
believed that Shaffer was not interested in employment. While
it is probable that the Respondents were aware of Shaffer’s
workers’ compensation injury, they do not contend that they
declined to hire Shaffer because of that injury. Moreover, as in
the case of Rosenbaum, there is no basis for believing that
Shaffer would have quit a job with Mammoth upon qualifying
for disability benefits, since that employment would have pre-
cluded him from qualifying for disability benefits that had not
already been granted. See 20 CFR § 404.1520(b).
I conclude that the Respondents have failed to show that they
would not have hired Shaffer, even absent antiunion animus,
because he disavowed interest in working at Mammoth.
Donald Stevens: D. Stevens worked at Cannelton/Dunn for
two periods totaling about 2 years and lost his job there when
the Respondents took over the operation. The record indicates
that D. Stevens was also employed by a different Cannelton
division for approximately 12 years from 1974 to 1986. On
January 31, 2005, D. Stevens had a job interview with Doss,
Hall, Nottingham, and Rutherford. Since that time, Mammoth
has offered shifting explanations for the failure to employ
D. Stevens. In a proceeding before the West Virginia Human
Rights Commission, Mammoth submitted a written response
claiming that D. Stevens was not hired because he had not filed
an application. During the investigation of the instant matter,
Mammoth submitted a position statement claiming that D. Ste-
vens was not hired because his qualifications were not suffi-
ciently impressive. (GC Exhs. 12(c) at p. 4, 17(eee).) Now, in
its posttrial brief, Mammoth concedes that D. Stevens applied,
and even argues that his job qualifications were sufficiently
impressive to earn him a job offer, but contends that D. Stevens
turned down that job offer. As discussed above, when an em-
ployer offers inconsistent or shifting reasons for its actions, a
reasonable inference may be drawn that the reasons being of-
fered are pretexts designed to mask an unlawful motive. I
conclude that such an inference is warranted regarding Mam-
moth’s contention that D. Stevens turned down a job offer.
Moreover, the record does not support Mammoth’s claim
that D. Stevens refused a job offer. D. Stevens gave detailed
and confident testimony about his Mammoth job interview and
denied he was offered a job at the interview or afterwards. (Tr.
1401–1405, 3157–3158.) D. Stevens testified that the inter-
viewers told him about the benefits being offered and he re-
sponded that those “sounded good.” At the end of the inter-
view he was told that the company would be “in touch” with
him, but he was never contacted. Based on his demeanor and
testimony I considered D. Stevens a credible witness. More-
over, Mammoth’s claim that D. Stevens refused an offer is
inconsistent the interview reports completed by the officials
who interviewed him—none of which mentions D. Stevens
being offered, or turning down, a job. To the contrary, the
notes suggest that D. Stevens was anxious to accept a job at
Mammoth. The last line of Nottingham’s interview report
states that D. Stevens was asked, “How soon could you be
available?” and that D. Stevens replied, “Today.” (GC Exh.
8(t).)
To support its contention that D. Stevens rejected a job offer,
Mammoth relies exclusively on the testimony of Rutherford.
According to Rutherford, the interview went well, and D. Ste-
vens was offered a job, but turned it down because he “didn’t
want to have any trouble between the pickets and going to
work” and “didn’t want to deal with the issues.” For reasons
discussed above, I found Rutherford to be a biased and unreli-
able witness. I am particularly unwilling to credit Rutherford’s
testimony in this instance since none of the other three inter-
viewers (Doss, Hall, and Nottingham) corroborated his testi-
mony about D. Stevens. Moreover, his testimony is inconsis-
tent with the interview records created by the other interview-
ers. In conclusion, I found the evidence that D. Stevens did not
reject a job offer far more compelling than Rutherford’s con-
trary testimony.
For the reasons discussed above, I reject Mammoth’s conten-
tion that absent antiunion animus it would not have employed
D. Stevens because he refused an offer of employment.
7. Alleged failure to return Doss’ attempts to contact
Mammoth asserts that Doss’ notes show that 36 of the al-
leged discriminatees either did not provide adequate contact
information or failed to respond to efforts that Doss might have
made to contact them. As already discussed, Doss’ notes re-
garding contacts with potential employees, are entitled to very
little weight. Those notes did not refresh Doss’ recollection
about specific contacts, do not meet the standard for business
records, were unsigned, and Doss conceded that the notes do
not necessarily list all the contacts that were made or attempted.
Under the circumstances, the notes are insufficiently probative
to establish a defense under Planned Building Services and
Wright Line. In fact, with regard to 21 of the 36 individuals for
whom Mammoth makes this argument, Respondent points to
nothing in Doss’ notes mentioning either that Doss contacted
the individuals, or that those individuals failed to respond to
such contacts.56 Without explicitly saying so, Mammoth asks
me to adopt a double standard—when Doss’ notes make no
mention of a particular alleged discriminatee contacting Doss, I
should leap to the conclusion that the individual did not do so,
but when the same notes make no mention of Doss contacting
the alleged discriminatee, I should assume that Doss simply

56 These 21 alleged discriminatees are: Roger Bowles, Michael
Cordle, Terry Cottrell, Stanley Elkins, Ronald Gray, Robert Hornsby,
John Kauff, Chester Laing, James Mimms, William Nugent, John
Nutter, Danny Price, Gary Robinson, Michael Ryan, Russell Shearer,
Charles Smith, Roger Taylor, Byron Tucker Jr., Thomas Ward, Phillip
Williams, and Gary Wolfe.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD34
neglected to record his attempted contact. The better course is
to apply the same standard to both situations; I draw no infer-
ence from the fact that Doss’ incomplete, unsigned, notes fail to
report a contact.57
Doss’ notes do report attempts to contact 15 of the alleged
discriminatees.58 Even if Doss attempted to contact these indi-
viduals, Mammoth’s defense fails because it has not shown that
those individuals failed to respond. As discussed above, Doss
himself conceded that he did not necessarily make a record of
contacts between himself and prospective employees, and
therefore, the fact that Doss’ notes do not memorialize a re-
sponse from an individual does not show that the individual did
not contract Doss. Moreover, Doss did not testify that he had
any recollection of whether these individuals failed to respond
to his contacts. Fourteen of these individuals gave sworn testi-
mony that it was the Respondents who failed to contact or re-
spond to them, not they who failed to respond to the Respon-
dent.59 Virtually all of these individuals testified that they pro-
vided accurate, current, contact information, and most of them
stated that they possessed answering machines or services to
record missed calls. Moreover, with respect to many of these
individuals, the argument based on Doss’ notes is only one of a
number of shifting explanations offered by Mammoth.60 In the

57 At any rate, in many instances the sworn testimony of these indi-
viduals contradicts the assertion that they were contacted by Doss but
did not respond. See, e.g., Tr. 995–996 (Cottrell); Tr. 802–803 (El-
kins); Tr. 3798–3799 (Kauff); Tr. 395–396 (Ryan); and Tr. 617–618
(Tucker).
58 Mark Cline, Robert Edwards, Lacy Flint, Cheryl Holcomb, Jeffrey
Hughes, Alvin Justice, Barry Kidd, Everrett Lane, James Moschino,
Ronald Payne, David Preast, Gary Roat, Shannon Roat, Jeffrey Styers,
and Ralph Wilson
59 See Tr. 1732 (Cline), Tr. 1425–1427 (Edwards), Tr. 1792 (Flint),
Tr. 1870–1872 (Holcomb), Tr. 1941–1943 (Hughes), Tr. 3574–3575
(Justice), Tr. 779 (Kidd), Tr. 1812–1813 (Moschino), Tr. 454–455,
466–467 (Payne), Tr. 706–708 (Preast), Tr. 846–847 (G. Roat), Tr.
503–504 (S. Roat), Tr. 1456–1457 (Styers), and Tr. 1046 (Wilson).
60 For example, in addition to claiming that Cline failed to respond to
Doss’ attempts to contact him about employment, Mammoth asserts
that Cline was not hired because Rutherford gave a negative reference.
Br. of R. Mammoth at 61. Mammoth has asserted that Edwards was
not hired because he was not highly recommended and did not meet
Mammoth’s minimum educational requirements, but also claims that
the company wanted to interview Edwards and was rebuffed by him.
Br. of R. Mammoth at 60 and 70; GC Exh. 12(c) at p. 4. In addition to
claiming that Justice was not employed because he failed to respond to
Doss’ attempts to contact him, Mammoth has contended that Justice
was rejected because he did not meet a minimum educational require-
ment and has also contended that he was rejected because he received a
negative recommendation from Rutherford. Br. of R. Mammoth at 60
and 63. In regards to Preast, Mammoth asserts not only that he failed to
respond to Doss’ message regarding an interview, but contradicts that
claim by arguing that Preast did interview and was rejected based on
his poor interview performance. Id. at 69. Mammoth has offered a
variety of other explanations for failing to hire G. Roat—he did not
meet minimum educational requirements, Id. at 60, he got a poor rec-
ommendation from Rutherford, Id. at 64, and he sent a letter about
Massey permits to the West Virginia Department of Environmental
Protection, Id. at 73. During the investigation of Styers’ Human Rights
Commission complaint, Mammoth asserted that Styers was not consid-
ered because he had failed to submit an application. GC Exh. 17(fff).
case of the final one these individuals, Everrett Lane, the notes,
even if credited, do not show that Lane failed to respond to
Doss’ contact. To the contrary, those notes appear to report
that, on March 3, 2005, Doss returned a call from Lane and that
Lane told Doss he wanted to interview. (Mammoth Exh. 65.)
For the reasons discussed above, I conclude that the Respon-
dents have failed to meet their burden of showing that, absent
discrimination, they would have failed to hire alleged discrimi-
natees because those individuals did not respond to contacts
from Doss, or did not provide adequate contact information.
8. Preemployment physical
Mammoth states that it did not hire one of the alleged dis-
criminatees, Michael Armstrong, because he failed his pre-
employment physical. To support this contention, Mammoth
introduced the report of the physical examination results.
(Mammoth Exh. 86.) However, the report submitted does not
state that Armstrong failed the physical. That report sets forth
three possible outcomes—“Passed,” “Failed,” and “Pending.”
The physician who completed the report of Armstrong’s physi-
cal examination checked the box for “Pending,” as opposed to
“Passed” or “Failed.” In the comments section of the report,
the physician noted “Company to review Carbon Monoxide
High.” The report states that Armstrong’s blood carbon mon-
oxide level was 4.4 percent, and that the normal range is 0.0 to
1.9 percent. The evidence does not show any subsequent com-
pany review of these results. The Respondents have not shown
what led them not to hire Armstrong after he received the
“Pending” test result.
Mammoth also cites the testimony of Susan Carr, an em-
ployee of Massey Coal Services who worked at Mammoth as
its benefits coordinator. Carr testified that the Company has a
“guideline” range of 0.0 to 1.9 percent for carbon monoxide in
the blood of prospective employees. (Tr. 3471, 3473–3475.)
This evidence fails to meet the Respondents’ burden for a num-
ber of reasons. First, Carr testified that there was a guideline
range, but she did not state what happened to applicants whose
results exceeded that range, and certainly never claimed that
such applicants were disqualified from all employment at
Mammoth. Thus, even if Carr is fully credited, an elevated
result could simply mean, inter alia, that a follow-up test would
have to be performed, that certain job assignments at the mine
would not be recommended for the individual, or that the indi-
vidual had to agree to stop using cigarettes or to sign a waiver.
Indeed, the fact that the physician who completed the report did
not check the “Failed” box lends support to the view that an
elevated score did not mean automatic disqualification. Sec-

The documentary evidence introduced at trial disproved the claim that
Styers did not submit an application, see GC Exhs. 4(kkk) and 79, so
now Mammoth argues that it received the application and tried to con-
tact Styers, but that he did not respond. Mammoth claims that Wilson
was not hired because Doss tried unsuccessfully to contact him, but
also asserts that Wilson was not hired because he received a negative
recommendation from Rutherford. Br. of R. Mammoth at 65. When
an employer offers inconsistent or shifting reasons for its actions, a
reasonable inference may be drawn that the reasons being offered are
pretexts designed to mask an unlawful motive. See Inter-Disciplinary
Advantage, Inc., supra; Mt. Clemens General Hospital, supra; Holsum
De Puerto Rico, Inc., supra; GATX Logistics, Inc., supra.
MAMMOTH COAL CO. 35
ond, Carr’s responsibilities do not extend to selecting employ-
ees. She did not claim to have played any part in the decision
not to employ Armstrong. Nor did she claim to have been
privy to deliberations of the officials who made that decision.
Thus Carr’s testimony cannot show that the officials who actu-
ally decided not to hire Armstrong considered the carbon mon-
oxide result particularly significant, much less that they would
have disqualified Armstrong on the basis of that result absent
antiunion motivation. Third, Carr did not state that Mammoth
had a written policy on carbon monoxide levels and the Re-
spondents did not introduce any written company policy on the
subject. As discussed above, unwritten policies are a ready
means of discrimination and are suspect. See Planned Building
Services, supra; Norman King Electric, supra; Clock Electric.,
Inc., supra; Sioux City Foundry, supra; Dunning v. National
Industries, supra.
For the reasons discussed above, I conclude that the Respon-
dents have failed to prove that, absent antiunion animus, they
would have rejected Armstrong on the basis of the results of his
physician examination.
9. Letter to West Virginia Department of Environmental
Protection
In a letter dated January 24, 2005, a group of 17 individuals
asked the West Virginia Department of Environmental Protec-
tion (the DEP) to conduct public hearings regarding a proposed
change in the status of permits for Jack’s Branch Coal Com-
pany—a mining company that is under the corporate umbrella
of Independence Coal Company, a Massey company. Ten of
the 17 individuals who signed the letter to the DEP are alleged
discriminatees in this case—Randel Bowen, Jeffrey Hughes,
Harry T. Jerrell, Mike Johnson, Chester Laing, Robert
McKnight, Gary Roat, Siemiaczko, Jackie Tanner, and Willis.
Hughart testified that he believed the Union was behind the
letter, which raised concerns about the environmental impact of
the permits. In its brief, Mammoth argues that it “legitimately
refused to hire some of the discriminatees because they in-
tended to jeopardize the permitting process of Jack’s Branch
Coal Company by writing and signing” the letter “petitioning
the DEP for a public hearing.”
If the record supported Mammoth’s assertion that these indi-
viduals were denied employment based on the letter regarding
state environmental permit proceedings, such action would
likely be a basis for finding a violation, not a defense, since the
Board has found such activity to be protected by the Act. In
Petrochem Insulation, Inc., the Board held that a union’s par-
ticipation in state environmental permit proceedings was pro-
tected by Section 7 inasmuch as it was a form of area-standards
activity and also because the effort to address environmental
concerns was in furtherance of the safety and health of all em-
ployees who would eventually be employed at the worksite.
330 NLRB 47, 49–50 (1999), enfd. 240 F.3d 26 (D.C. Cir.
2001), cert. denied 534 U.S. 992 (2001).
At any rate, the record suggests that this supposed basis for
rejecting alleged discriminatees is wholly the invention of
Mammoth’s counsel. I note, first, that the DEP letter was sent
approximately 4 months after the Respondents’ decision not to
allow the incumbent unit employees to continue working unin-
terrupted when the Respondents took over the Cannelton/Dunn
operation. Therefore, the letter does not explain the Respon-
dents’ decision not to initially retain incumbent unit members,
even if might conceivably explain the Respondents’ treatment
of some of those individuals in the subsequent hiring process.
Moreover, by February 3, 2005, when Mammoth’s human re-
sources official was told who had signed the letter, the Respon-
dents had already hired 52 individuals to perform the work of
the bargaining unit. The DEP letter, then, does not appear to be
the reason why the 10 alleged discriminatees who signed it
were not selected for those positions.
Mammoth does not cite to any record evidence showing that
company officials considered the DEP letter when they refused
employment to alleged discriminatees. My review of the re-
cord revealed only scant, and rather vague, reference to the
DEP letter. Hughart testified about the subject, but opined that
the signers had a legal right to file such a letter with the DEP
(Tr. 2400), and he never claimed that it influenced hiring deci-
sions. To the contrary, Hughart specifically denied that the
DEP letter had any influence on the decision not to hire Willis,
(Tr. 3053.) Doss testified that, on February 3, 2005, Gillen-
water told him about the DEP letter and identified unit employ-
ees who had signed it.61 When Doss was questioned regarding
why that information was provided to him, he replied that he
had “the obligation to—to take the best interest of the Com-
pany, and I felt like these guys were trying to shut us down.”
However, Doss did not reveal how, if at all, he used that infor-
mation, and he never claimed that it was the reason why the
Respondents refused employment to any of the applicants who
signed the letter. (Tr. 2718–2720.) Thus even assuming that
the DEP letter hypothetically could constitute a legitimate rea-
son for rejecting applicants, the Respondents have not met their
burden because they failed to show by a preponderance of the
evidence that the letter would actually have caused them to
reject any of the alleged discriminatees absent the antiunion
motivation. See Briar Crest Nursing Home, 333 NLRB at 937
fn. 9 (“Under Wright Line, an employer cannot carry its burden
of persuasion by merely showing that it had a legitimate rea-
son” for taking the action in question; rather, it “must show by
a preponderance of the evidence that the action would have
taken place even without the protected conduct.”).
Not only have the Respondents failed to meet the burden of
showing that the individuals who signed the DEP letter would
have been disqualified for that reason, but with respect to a
number of the individuals for whom this defense is raised, the
record clearly establishes that the Respondents removed them
from further consideration for reasons unrelated to the letter.
Tanner and Willis were both interviewed by the Respondents
on December 1, 2004, but the Respondents chose not to hire
them even though the DEP letter would not be sent until almost
2 months later. Similarly, Hughes had contact with the Re-

61 Doss indicated that he never saw the DEP letter itself, but rather
relied on Gillenwater’s statements regarding who had signed it. Al-
though Jerrell signed the letter, and is identified in Mammoth’s brief as
an individual who was denied employment for that reason, Doss’ notes
do not include Jerrell among those who Doss was told had signed.
Obviously, Doss cannot have rejected Jerrell for signing the DEP letter
if he did not even know that Jerrell had done so.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD36
spondents about an interview in mid December 2004, but never
heard back from the Respondents about a job or an interview.
Obviously, the DEP letter cannot account for the Respondents’
decisions not to hire individuals who were rejected before the
letter was created. In Siemiaczko’s case, the evidence indicates
that the letter did not disqualify him from consideration since
the Respondents invited him for a job interview on October 27,
2005, well after the letter was received by the Respondents.
Moreover, the interview forms filled out by the six company
officials who interviewed Siemiaczko make no mention of his
involvement with the DEP letter. (GC Exh. 8(s).)
I also consider it significant that Mammoth did not make the
argument based on the DEP letter until the time of trial. In the
position statement it gave during the investigation of this mat-
ter, Mammoth asserts numerous reasons for not hiring the unit
employees, but the DEP letter is not one of those reasons. If
the DEP letter was, as Mammoth now claims, the reason why
the Respondents rejected 10 of the alleged discriminatees, it is
hard to understand why Mammoth would not have known and
raised that defense prior to trial. At any rate, for many of the
individuals for whom Mammoth now raises the DEP letter as a
defense, that letter is only another in a procession of shifting
explanations. This further supports the conclusion that the
defense based on the DEP letter is an after-the-fact rationaliza-
tion.
For the reasons discussed above, I conclude that the Respon-
dents have failed to meet their burden of showing that any of
the alleged discriminatees would have been refused employ-
ment, even absent antiunion animus, because those individuals
signed the DEP letter.
10. William Willis and Dwight Siemiaczko
At trial and in the posttrial briefs, the parties focused particu-
larly extensive attention on the Respondents’ rejection of two
of the alleged discriminates—William (Bolts) Willis and
Dwight Siemiaczko. I discuss those two individuals below.
William Willis: Willis began working at Cannelton/Dunn in
1969. In 1980 he left for other employment—first as an inter-
national representative with the Union and later as an assistant
commissioner of energy for the State of West Virginia. Willis
returned to work at Cannelton in 1997 and lost his job there
when the Respondents took over the operation in September
2004. His last position at Cannelton/Dunn was loadout opera-
tor. In that capacity he operated the equipment that loaded coal
onto river barges. He also had responsibility for blending the
coal from different belts in order to create the mixes required
by particular customers. In the past, Willis had held a number
of other jobs at Cannelton/Dunn, including: heavy equipment
operator at the preparation plant (bulldozers and end loaders),
roof bolter, belt man, brattice man, electrician, and inside la-
borer. For 5 years his responsibilities included filling in for the
plant operator on a daily basis. Shortly before the Respondents
assumed control of the Cannelton/Dunn facility, Adamson
awarded the job of plant operator to Willis, however, the record
does not show that Willis had the opportunity to move to that
position. During his employment at Cannelton/Dunn, Willis
intermittently taught an evening course at the West Virginia
University Institute of Technology.
During the 2 years preceding Mammoth’s takeover of Can-
nelton/Dunn, Willis was the president of the Union local there.
He was also a particularly active and visible participant in un-
ion activities that occurred around the time that Massey ac-
quired the operation. He participated in picketing and protests
and on more than one occasion attempted to hand deliver the
applications of unit workers to company officials.
As with all the other incumbent bargaining unit employees,
Willis was not retained by the Respondents when they took
over the Cannelton/Dunn operation in late September 2004. On
December 1, 2004, Willis was interviewed for employment at
Mammoth by six company officials—Adamson, Chandler,
Hall, Hughart, Nottingham, and Rutherford. At the interview,
Willis stated that he would prefer the loadout operator job or
another position at the plant, but that he was also willing to
work in an underground position. The interviewers asked Willis
a number of questions about his experience and history at Can-
nelton/Dunn. Then Hughart asked whether Willis had any
problem coming to the interview or working for Massey given
the presence of picket shacks outside the facility. Willis re-
sponded that he “was the one that had the picket shacks put
there,” but that he was there “to apply for a job and go to
work.” According to the interview report forms completed by
several of the interviewers, Willis also stated that he wanted the
job because he needed to provide for his family. One of the
interviewers noted that Willis said that, if hired, he would have
“no problems doing what he was told to do.” During the inter-
view, Willis also stated that, if hired, he “would do everything
[he] could to make sure we were represented by the Union.”
(Tr. 148–150.)
The Respondents did not offer employment to Willis. In its
response during the Board’s investigation of this matter, Mam-
moth provided no reason for the decision not to employ Willis.
(GC Exh. 12(c).) However, in its posttrial brief, Mammoth
offers a variety of explanations for the decision. Mammoth
states that Willis was rejected because: (1) he signed the Janu-
ary 24 letter to the DEP regarding permits held by a Massey
subsidiary; (2) Adamson recommended against hiring him
based on Willis’ performance at Cannelton/Dunn; and (3) at the
interview, Willis did not demonstrate an adequate understand-
ing of how the preparation plant operated. At the hearing
Adamson stated an additional reason for not wishing to hire
Willis. Adamson specifically stated that he did not want to
employ Willis at Mammoth because he was concerned that
Willis would engage in union activities if hired.
The defense based on the DEP letter is wholly frivolous. I
am surprised that Mammoth’s counsel would assert that Willis
was not hired because he signed the DEP letter since that letter
was not even sent until February 24, 2005, well after Willis was
refused employment. Indeed, Mammoth’s president, Hughart,
testified that the letter had nothing to do with the decision not
to hire Willis.
I also conclude that Adamson’s poor recommendation of
Willis does not provide a credible, nondiscriminatory, reason
for rejecting Willis. First, that recommendation itself was
tainted by antiunion bias. When asked about the reasons why
he recommended that Willis not be hired, Adamson responded
that “the main thing that I could think of” was that during the
MAMMOTH COAL CO. 37
interview Willis had stated that, if hired, he intended to work to
organize the operation. (Tr. 2934.)62 Mammoth attempts to
minimize the significance of Adamson’s admission by claiming
that Adamson was only one of the decisionmakers. (Br. of R.
Mammoth at 48.) However, Chandler, who was also one of
Willis’ interviewers, testified that the hiring decisions were
effectively made by the company officials, such as Adamson,
who would supervise the particular applicant’s work. (Tr.
2502–2503, 2506.)
Adamson attempted to justify disqualifying Willis on the ba-
sis of his intended Section 7 activities by stating a generalized
concern that Willis’ attention to union organizing might distract
him and pose a safety hazard for others. This generalized,
vague, concern about the form that Willis’ organizing activities
might take, if he was hired for an unspecified position, cannot
meet the Respondents’ burden of establishing a defense to anti-
union hiring discrimination. If it did, employers who discrimi-
nated against union organizers would have a nearly universal
defense, and Section 7 would be rendered a nullity with respect
a wide range of protected activities.
Adamson testified about two other reasons for his recom-
mendation not to hire Willis. Adamson stated that during the
time he oversaw Willis at Cannelton/Dunn: Willis used “union
business” leave when he was, in fact, engaged in nonunion
activities such as teaching a class at West Virginia University
Technical Institute or attending sporting events; and that Willis
was careless and, as a consequence, had a propensity to im-
properly load barges. Willis denied both allegations. As dis-
cussed below, I do not credit the nondiscriminatory reasons that
Adamson gives for recommending against hiring Willis. I note
first that Adamson gave contradictory testimony about the ex-
tent to which his negative recommendation was based on
Willis’ intended union activities. At one point Adamson denied
that he gave any consideration at all to union sentiments or
union activity, but elsewhere in his testimony he stated that
Willis’ intent to engage in union activity was one of the “main”
things that led to the recommendation against hiring Willis.
Compare (Tr. 2934 and 2969). Indeed, Adamson’s interview
notes demonstrate a preoccupation with the union sentiments of
applicants. (See, e.g., GC Exh. 8(a) (Anderson: “15 yr. Un-
ion”)); (GC Exh. 8(g) (Dorsey: “will work non union”)); (GC
Exh. 8(q) (Rader: “will work non union)); (GC Exh. 8(u) (Van-
meter: “no problem working non union”)); (GC Exh. 8(v)
(Willis: “wants to organize the work force when hired”).)
Not only does the evidence reflect an effort by Adamson to
understate the role that union activity played in his assessment
of Willis, but it also shows that Adamson overstated, or even
fabricated, his criticisms about Willis’ performance. With re-

62 Regarding the specific wording of Willis’ statement of intent to
engage in organizational activities, I credit the wording recounted by
Willis during his detailed account of the interview, Tr. 149 (Willis
“would do everything [he] could to make sure [employees] were repre-
sented by the Union”), over the wording recounted by Adamson during
his less-detailed account, Tr. 2934 (Willis said that organizing would be
his “main purpose”). I also note that Adamson’s interview report form
states that Willis said he “wants to organize the work force when
hired,” but not that such organizational activities would be his “main
purpose.” GC Exh. 8(v).
gard to Adamson’s claim that Willis used union leave when he
was teaching at West Virginia University Technical Institute,
the uncontradicted evidence showed that Willis’ shift at Can-
nelton/Dunn ended at 3 p.m., and that the class he taught did
not begin until 6 p.m. The Technical Institute is only a few
miles from the Cannelton/Dunn loadout facility and neither
Adamson nor the Respondents explain how Willis would ever
have been missing work in order to be present for a class that
did not start until 3 hours after the end of his shift. This criti-
cism of Willis is further undercut by Adamson’s admission that
he never disciplined, or issued a write-up of any kind to, Willis
about the supposed misuse of union business leave.
Adamson also complains that as loadout operator at Cannel-
ton/Dunn, Willis had a propensity to improperly load barges.
According to Adamson, these problems ceased after Mammoth
took over and hired new loadout operators. (Tr. 2997, 3883.)
The record indicates that barge loading mishaps were relatively
costly because the Respondents had to hire a crane company to
remove or redistribute the coal on the barge. Willis did not
claim that he had never misloaded a barge, but he testified that
such incidents were rare and were not the result of poor per-
formance. To the extent that such mishaps did occur, he stated
that those incidents were unavoidable and happened to every-
one who loaded barges due to the way the loading belts oper-
ated and the poor condition of some barges. Records intro-
duced by Mammoth were consistent with Willis’ testimony that
such incidents were actually quite rare during the last period of
his tenure as loadout operator. Cannelton/Dunn did not require
the services of the crane company for misloaded barges at all in
2003, and only required those services on two occasions during
the approximately 9 months in 2004 prior to when the Respon-
dents took over the facility. (Mammoth Exh. 87.) The allega-
tion that Willis had an unusual propensity to make expensive
mistakes is also hard to square with Adamson’s admission that
he had never disciplined Willis for these supposed problems.
Adamson’s notes of Willis’ interview make no mention of
Willis’ alleged performance problems. Rather, the only thing
that Adamson wrote in the comments section of his interview
report was that Willis “wants to organize the work force when
hired.” The interview forms completed by the other interview-
ers also fail to mention the alleged performance problems that
Adamson now says affected his evaluation of Willis’ applica-
tion. None of the other interviewers even mentioned that
Adamson had given Willis a poor recommendation, much less
that such a recommendation was the reason Willis was rejected.
At trial, Mammoth attempted to buttress its contention that
Willis had a propensity to improperly load barges by calling
Brian McKnight, the owner of the crane company, to testify
about the occurrence of such mishaps during various periods.
However, B. McKnight directly contradicted Adamson’s testi-
mony that these problems had ceased once Willis was replaced.
According to B. McKnight, his crane company had been called
to Mammoth to remedy misloaded barges on approximately 5
occasions during the approximately 2-1/2 years between when
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD38
Mammoth took over the facility in September 2004 and when
B. McKnight testified in March 2007. (Tr. 3829.)63
The last reason forwarded by Mammoth for the refusal to
hire Willis, is that, at his interview, Willis failed to demonstrate
adequate knowledge of how the preparation plant operated. At
trial, Hall stated that when Willis was asked how coal flows
through the plant the question “was not answered very good.”
However, Hall did not state that this was the reason Willis was
not hired and, in fact, Hall could not even recall whether or not
the Respondents had offered Willis a job. (Tr. 2773.) Hughart
also testified that “[w]hen I asked [Willis] to describe the—how
the plant operates he really didn’t do a very good definition, or
could not describe the plant process at that plant.” (Tr. 3052.)
This was also mentioned in Hughart’s notes of the interview.
Hughart testified that although Willis had applied for the load-
out operator position, not a position operating the plant, knowl-
edge of the plant was necessary because everybody working at
the plant and loadout facility had to be able to “multi-task” and
“needs to know, you know, how the coal flows through the
plant, what kind of screens it operates, the vessels, the cy-
clones.” (Tr. 3052–3053.)
The record evidence rebuts Mammoth’s contention that
Willis was rejected for failing to demonstrate adequate knowl-

63 Faced with B. McKnight’s testimony, Mammoth attempts to re-
vise Adamson’s discredited claim that the barge loading problems
ended with Willis’ employment—instead arguing that such incidents
were merely less frequent after Willis was replaced. The evidence put
forward on this subject is wholly insufficient to meet the Respondents’
burden. First, I note that Mammoth attempts to support this argument
by comparing the number of crane company invoices received by Can-
nelton/Dunn before the Respondents took over with B. McKnight’s
estimate of the number of times the crane company was called to the
operation during the period after the Respondents took over. Mammoth
does not explain why it compares actual invoices for the earlier (Can-
nelton/Dunn) period with the crane contractor’s estimate for the later
(Mammoth) period. The invoices for the post-Cannelton/Dunn period
were certainly available to Mammoth and the decision not to introduce
both sets suggests that the documents for the later period do not support
its argument. Teddi of California, 338 NLRB 1032, 1040 (2003) (ad-
verse inference appropriate where employer’s witnesses testified to
timing of decision to layoff alleged discriminatee, but employer failed
to introduce documentary evidence that “surely . . . must have existed”
regarding that timing); Galesburg Construction, 267 NLRB 551, 552
(1983) (employer’s failure to produce documents in its control that
were vital to prove its defense justified inference that those records did
not support the employer’s position). Second, Willis was one of two or
more loadout operators working at Cannelton/Dunn at any given time
during the years leading up to the change in ownership. The invoices
introduced by Mammoth do not identify the load-out operator who was
on duty at the time the barges were improperly loaded, and therefore
Mammoth has failed to show that those episodes are attributable to
Willis, rather than a coworker. In addition, since one would expect that
the number of barge loading mishaps would increase or decrease to
some extent depending on the total number of barges being loaded, and
since the record indicates that coal production at the operation varied
substantially during the periods referenced by Mammoth, the compari-
sons are not necessarily meaningful. Lastly, even the flawed evidence
introduced by Mammoth shows that the frequency of loading mishaps
was no higher during 2003 and 2004 when Willis was a loadout opera-
tor, than during the period from late 2004 to early 2007 when new
employees were doing the job.
edge of how the preparation plant operated. That evidence
shows that, contrary to Hughart’s claim, the Respondents did
not consider prior knowledge of how the preparation plant op-
erated to be a prerequisite for employment at the preparation
plant itself, much less to employment at the loadout facility.
James Crist, the nonunit/nonunion individual who the Respon-
dents hired for the assistant plant operator position (at Mam-
moth known as “floor operator” (Tr. 1629)), had no prior ex-
perience at all with the operation of the preparation plant. In-
deed, Adamson, testified that as far as he knew Crist had never
operated any preparation plant. (Tr. 2983.) In addition, a few
days after Willis’ interview, the Respondents hired Rodney
Thomas, a nonunit/nonunion worker, for the loadout operator
job that Willis had applied for and previously held. Thomas’
previous work experience at Cannelton/Dunn was as a labora-
tory supervisor and a barge guard. (Tr. 77 and 591.) On the
face of it, neither of those positions would provide Thomas
with any experience regarding the operation of the plant, and
the Respondents offered no evidence to the contrary. In con-
trast, Willis had many years of experience both as loadout op-
erator and filling-in for the plant operator. Moreover, it is un-
contradicted that shortly before the Respondents took over the
facility, Adamson had awarded Willis the position of plant
operator—thus indicating that Willis was fully qualified to do
the job. The fact that the Respondents hired Crist and Thomas,
rather than Willis, for the positions of floor operator and load-
out operator belies any suggestion that Willis was rejected be-
cause he was insufficiently familiar with the operation of the
plant.
Second, even if the Respondents’ claim that Willis did not
qualify for a position at the plant were true, it would not explain
why they did not hire him for a position working underground
in the mine. Willis had held a number of underground posi-
tions at Cannelton/Dunn and during the interview he offered to
return to such an assignment. The Respondents do not claim
that knowledge of how the preparation plant operates is rele-
vant to employment underground in the mine. Thus, the Re-
spondents’ assessment of Willis’ knowledge regarding the
preparation plant does not explain their failure to offer him a
position working underground. The absence of such an expla-
nation is particularly glaring given the fact that three under-
ground supervisors—Hall, Nottingham, and Rutherford—were
among Willis’ interviewers. Thus, at the interview, the Re-
spondents were in a position to consider Willis’ application for
an underground position.
To put it bluntly, the Respondents’ nondiscriminatory expla-
nations for Willis’ rejection are wholly unworthy of credence.
During the investigation, the Respondents offered no reason at
all for rejecting Willis, and now it forwards a number of shift-
ing, inadequate, and demonstrably false reasons for that deci-
sion. This in the face not only of generalized evidence of anti-
union animus, but of Adamson’s specific admission that Willis’
intent to engage in organizational activities was one of the rea-
sons that Willis was not recommended for hire.
I conclude that the Respondents’ nondiscriminatory explana-
tions for refusing employment to Willis are pretextual, and
would not have caused the Respondents to reject him in the
absence of the antiunion motivation.
MAMMOTH COAL CO. 39
Dwight Siemiaczko: Siemiaczko first began working at Can-
nelton/Dunn in 1974. He was laid-off for a period in the early
1980s, but then returned to work there and was employed until
the Respondents took over the facility in September 2004. His
last position was working underground as a fire boss and belt
examiner. In the past, Siemiaczko had worked at Cannel-
ton/Dunn in other underground capacities, including roof bolter
and shuttle car operator. At the time his employment ended,
Siemiaczko was a member of the union safety committee. In
that capacity he had, inter alia, filed complaints with the State
Department of Miner’s Health and Training and the Federal
Mine Safety and Health Administration. Siemiaczko was ac-
tive in union picketing and was arrested during a union protest
concerning the bankruptcy sale of Cannelton/Dunn. Hughart
was aware that Siemiaczko was active in the union picketing.
Siemiaczko also signed the January 24, 2005 letter to the DEP
regarding permits held by a Massey subsidiary. Hughart stated
that when he saw that Siemiaczko signed the letter, it led him to
believe that the Union was behind it.
Siemiaczko submitted an application for employment with
Mammoth, listing belt examiner and fire boss as his desired
positions. The Respondents received that application on De-
cember 15, 2004. The Respondents did not grant Siemiaczko
employment, or even an interview, at that time. Approximately
10 months later, Siemiaczko received a phone call inviting him
to interview for a job with Mammoth. Siemiaczko had been
unemployed since the Respondents took over the Cannel-
ton/Dunn operation. On October 25, 2005, Siemiaczko was
interviewed by six individuals, including Hughart, Hall, Chan-
dler, and Larry Ward (vice president at Mammoth). Siemiac-
zko told the interviewers that he preferred the positions of fire-
boss and belt examiner, but that he was capable of operating
any equipment in the mine other than the continuous miner
machine. He told the interviewers that he would take any job at
the mine. According to notes of several of the interviewers,
Siemiaczko stated his willingness to work any shift, including
rotating shifts and weekends, and said that he could start work
immediately. The interviewers asked Siemiaczko whether he
had any discipline or unexcused absences, and he responded
that he had not. One of the interviewers asked if Siemiaczko
had any questions. Siemiaczko responded by asking whether
the Respondents required the spouse of the potential employee
to pass a physical. One of the interviewers told him that there
was no such requirement. Siemiaczko said that he had heard
that Massey will hire a person at a high rate of pay, and then cut
the pay after the person started working. He asked the inter-
viewers whether that was true. They responded, “no,” and
Siemiaczko said, “okay.” Siemiaczko brought up the subject of
unions, and stated that he believed that “unions are good for
companies and companies are good for unions because they
keep each other in check.” He stated that the Union had always
been good to him and that he would support and participate in a
organizing drive by the Union at the facility. He opined that
the Union provided employees with a “voice,” and that union
mines with safety committees were safer than other mines. The
Respondents did not offer Siemiaczko a job.
In its brief, Mammoth states that Siemiaczko was not hired
because he signed the January 24, 2005 DEP letter, and because
he displayed a bad attitude at the interview. For the reasons
discussed above, I have concluded that Mammoth’s defense
based on the DEP letter is an after-the-fact rationalization and
would not have caused the Respondents to reject Siemiaczko,
or anyone else, absent antiunion animus. At any rate, Siemiac-
zko was called in for an interview subsequent to the Respon-
dents’ receipt of the DEP letter, so it is apparent that the letter
did not disqualify him from employment. Not one of the six
officials who interviewed Siemiaczko mentions the DEP letter
in his or her interview report.
Mammoth also claims that Siemiaczko was not hired be-
cause he displayed a bad attitude during the interview. At the
outset, I note that the interview took place over 10 months after
Siemiaczko applied and at time when the Respondent had al-
ready hired approximately 165 individuals to perform the work
of the Cannelton/Dunn bargaining unit employees. The Re-
spondents’ complaints about Siemiaczko’s performance during
the interview obviously cannot provide a defense to the Re-
spondents’ decision not to hire, or even interview, Siemiaczko
during the earlier period when most of the hiring at Mammoth
occurred.
To support its contention that Siemiaczko was lawfully ex-
cluded for employment in October 2005 based on his interview
performance, Mammoth relies on the testimony of Hughart, one
of the interviewers. Hughart testified, “I just didn’t care for his
attitude.” The evidence shows, however, that Hughart’s
evaluation of Siemiaczko’s attitude was itself tainted by anti-
union animus. When explaining how Siemiaczko made a bad
impression, Hughart admitted that this was due in part to
Siemiaczko’s statement that he intended to work to organize the
Mammoth employees. Hughart stated, moreover, that
Siemiaczko’s statement of intention to organize had a negative
impact on Siemiaczko’s prospects for hire . (Tr. 3054–3055.)
Hughart also complained that Siemiaczko said he did not like
the way Massey ran their operations. However, the evidence
shows that Siemiaczko was expressing the view that it is better
for workers and mine companies alike when mines are union-
ized, and that unionized mines are safer.64 That is only an anti-
Massey sentiment if one assumes, as Hughart apparently does,
that Massey mines are necessarily union-free mines, and that
supporting unions is therefore anti-Massey. I find that
Siemiaczko’s question about Massey’s rumored wage practices
would not have caused the Respondents to reject Siemiaczko
absent the antiunion motivation. Siemiaczko was asked if he
had any questions, and he answered by giving the interviewers

64 When asked by Mammoth’s counsel to recount specifically what
Siemiaczko had said about the Company, Hughart testified that, as he
recalled it, Siemiaczko had “just made a statement that he didn’t like
the way Massey operates in general.” To the extent that this account
conflicts with Siemiaczko’s own account of his statement, I credit
Siemiaczko’s version based on the demeanor and testimony of the
witnesses. Siemiaczko testified more spontaneously and confidently
about the specifics of what was said at the interview. Moreover, the
interview record that Hughart completed is not supportive of any sug-
gestion that Siemiaczko made a general criticism of Massey. To the
contrary, Hughart’s notation regarding Siemiaczko’s attitude makes no
mention of such a statement, but rather states simply “Poor Attitude.
Made comments on trying to organize if hired.” GC Exh. 8(s).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD40
an opportunity to respond to a negative rumor about Massey’s
practices. When the interviewers said that the rumor was false,
Siemiaczko did not argue with them, but responded, “okay.”
Regardless of the wisdom of posing such a question during an
employment interview, I am convinced that the question would
not have led the interviewers to reject an otherwise qualified
applicant who had no association with the unit or the Union.
Hughart also complained that Siemiaczko’s bad attitude was
demonstrated by his “only wanting to be a fire boss.” (Tr.
3054–3055.) On the face of it, applying for a specific position
is not evidence of bad attitude. Indeed, the record evidence
reveals that in numerous instances the Respondents considered
applicants for jobs other than the ones that they had stated a
preference for. At any rate, the evidence shows that, contrary
to Hughart’s claim, Siemiaczko expressed flexibility about the
positions he would accept. Siemiaczko credibly testified that,
during the interview, he stated that he was willing to work in
any position at the mine. Siemiaczko’s account is supported by
the interview form completed by Chandler—Mammoth’s hu-
man resources official at the time. Those notes report that the
positions Siemiaczko was seeking included not just fireboss,
but also “Shuttle Car, R[oof] B[olter], SC—Belt.” (GC Exh.
8(s).) Even Hughart admitted, when pressed, that Siemiaczko
had simply said he would “prefer” the fire boss position, not
that it was the only position he would accept. (Tr. 3100.)
Based on the demeanor of the witnesses, the testimony, and the
record as a whole, I credit Siemiaczko’s testimony that he ex-
pressed a willingness to work in multiple positions.65
On this record, I conclude that when Hughart said that
Siemiaczko had a “bad attitude,” what he really meant was that
Siemiaczko had an enthusiastically prounion attitude. Indeed,
in Hughart’s report on Siemiaczko’s interview, his only com-
ment regarding Siemiaczko’s attitude reads: “Poor Attitude.
Made comments on trying to organize if hired.” (GC Exh.
8(s).) Nowhere in that report did Hughart make any mention
of the other behaviors that Mammoth now claims demonstrated
a bad attitude. This despite the fact that Hughart testified that
his report included what he thought made a candidate desirable
or undesirable. (Tr. 3078–3079.) The record suggests that the
long unemployed Siemiaczko was, in fact, an eager and ac-
commodating applicant. He stated a willingness to work in
multiple positions, on rotating shifts or Saturday shifts, and said
he could start “immediately” if hired.
I conclude that the Respondents have failed to demonstrate
that, in the absence of antiunion animus, Siemiaczko would
have been rejected for employment because he signed the DEP
letter and/or because of his poor attitude during the job inter-
view.

65 The evidence showed that, while awaiting his interview, Siemiac-
zko had been attempting to repair a cassette recorder and that he had
that visibly inoperative device with him during the interview. Mam-
moth now argues that this is evidence of the supposed attitude problem
that led Hughart to reject Siemiaczko. This argument is directly con-
tradicted by Hughart himself, who testified that the cassette recorder
did not play any part at all in the decision not to hire Siemiaczko. Tr.
3103. Indeed, none of the interviewers so much as mentioned the cas-
sette recorder in their interview reports regarding Siemiaczko.
11. Conclusion regarding hiring
The evidence establishes that since December 3, 2004, the
Respondents discriminatorily denied employment to the prede-
cessor’s employees on the basis of their membership in the
predecessor’s bargaining unit and their prounion sentiments in
an effort to avoid the Board’s successorship doctrine, minimize
the likelihood of a work force that would elect to create a new
bargaining obligation, and discourage union activity. Mam-
moth offered a multitude of shifting, and often contradictory or
inconsistently applied, reasons for rejecting the unit employees.
None of those reasons are sufficiently supported by the record
to meet the Respondents’ rebuttal burden under Planned Build-
ing Services and Wright Line, and the record exposes that the
vast majority of the reasons as simply false. I conclude that the
Respondents violated Section 8(a)(3) and (1) when they dis-
criminatorily refused to hire the unit employees.66
X. THE 8(A)(5) ALLEGATIONS
The complaint alleges that Respondent Mammoth would be
the legal successor to Horizon’s Cannelton/Dunn operation, but
for the unlawful refusal to hire Cannelton/Dunn unit employ-
ees. The complaint further alleges that Mammoth has violated
Section 8(a)(5) since about December 3, 2004, by failing to
recognize and bargain with the Union as the exclusive bargain-
ing representative of the unit employees and by unilaterally
establishing mandatory terms and conditions of employment for
the employees in the unit. The Respondents do not deny either
that they failed to recognize and bargain with the Union or that
they made unilateral changes, but argue that no bargaining
obligation existed because Mammoth is not the legal successor
to Horizon’s Cannelton/Dunn operation.
The threshold test for determining successorship is: (1)
whether the new employer conducts essentially the same busi-
ness as the predecessor employer, and (2) whether a majority of
the new employer’s work force in an appropriate unit are for-

66 The violation and remedy in this case extend to the 85 individuals
listed as discriminatees in an exhibit to the trial complaint and the
amendments to that list made during the course of the trial. The dis-
criminatees are: Michael Armstrong, Charles Bennett, Randel Bowen,
Sr., Roger Bowles, Joseph Brown, Norman Brown, Mark Cline, Leo
Cogar, Tilman Cole, Russell Cooper, Michael Cordle, Terry Cottrell,
David Crawford, Jackie Danberry, Kenneth Dolin, Dewey Dorsey,
Thomas Dunn, Robert Edwards, Stanley Elkins, William Fair Jr., Lacy
Flint, Ronald Gray, James Hanshaw, Paul Harvey, Charles Hill, Cheryl
Holcomb, Robert Hornsby, Clarence Huddleston, Jeffrey Hughes,
Harry T. Jerrell, Jimmy Johnson, Mike Johnson, Alvin Justice, John
Kauff, Tommie Keith, Barry Kidd, Randy Kincaid, Chester Laing,
Everett Lane, Marion “Pete” Lane, Rodney George Leake, Danny
Legg, William Larry McClure, Robert McKnight Jr., Ricky Miles,
James Mimms, Gregory Moore, James Moschino, James Nichols,
Robert Nickoson, William Nugent, Charles Nunley, John Nutter,
Ronald Payne, David Preast, Danny Price, Doyle Roat, Gary Roat,
Michael Roat, Paul Roat, Shannon Roat, Gary Robinson, Charles
Rogers, Michael Rosenbaum, Michael Ryan, Melvin Seacrist, Lawson
Shaffer, Russell Shearer, Dwight Siemiaczko, Charles Parker Smith,
Donald Stevens, Jeffrey Styers, Jackie Tanner, Roger Taylor, Gary
Totten, Charles Treadway, Byron Tucker Jr., Larry Vassil, Thomas
Ward, James Whittington Jr., Philip Williams, William Willis, Ralph
Wilson, Gary Wolfe, and Fred Wright.
MAMMOTH COAL CO. 41
mer employees of the predecessor employer. Fall River Dyeing
Corp. v. NLRB, 482 U.S. 27 (1987); NLRB v. Burns Security
Services, 406 U.S. at 279–281; New Concept Solutions, LLC,
349 NLRB 1136, 1156 (2007); Sierra Realty Corp., 317 NLRB
832, 835 (1995), enf. denied 82 F.3d 494 (D.C. Cir. 1996).
Regarding the question of whether Mammoth continued es-
sentially the same business as Cannelton/Dunn, the evidence is
clear that it did. When the Respondents took over the opera-
tion, Mammoth continued Cannelton/Dunn’s business of min-
ing and processing coal. Mammoth initially extracted coal at
the same location on the property—the Stockton mine—where
Cannelton/Dunn had most recently been mining coal, and both
operations utilized the “room and pillar” mining technique.
Mammoth transported the coal to the same preparation plant
and loaded it onto river barges at the same river loadout facility
as Cannelton/Dunn had. Continuous miner machines, shuttle
cars, belt lines, and other equipment that had been in operation
at Cannelton/Dunn were also used at Mammoth. Employees at
Mammoth, like those at Cannelton/Dunn, performed the work
of continuous miner operators, shuttle car operators, beltmen,
electricians, brattice men (although there were no longer a posi-
tion designated “brattice man”), roof bolters, fire bosses, load-
out operators, mechanics, electricians, plant operators (called
“control room operators” at Mammoth), and assistant plant
operators (called “floor operators” at Mammoth). Adamson,
who supervised work at the preparation plant under both Can-
nelton/Dunn and Mammoth, and Chandler, who was Mam-
moth’s first human resources official, conceded that employees
at Mammoth were performing essentially the same tasks as the
employees at Cannelton/Dunn and that the coal underwent the
same process. A number of the individuals who oversaw the
work of unit employees at Cannelton/Dunn also oversaw the
unit work at Mammoth. These individuals included Adamson,
Terry Buckner, Couch, Nottingham, Rutherford, and Stevens.
Both Cannelton/Dunn and Mammoth sold the coal they pro-
duced primarily to electrical power companies, and American
Electric Power (AEP) was a major customer of each. These
facts establish that the Respondents continued the business of
Cannelton/Dunn without substantial change. See Sierra Realty
Corp., 317 NLRB at 835.67
Mammoth contends that it was not in the same essential
business as Cannelton/Dunn because instead of using one con-
tinuous miner machine in each of four areas of the Stockton
mine it used two continuous miner machines in each of two
areas of the Stockton mine. This adjustment in how Mammoth
organized its coal extraction effort is wholly inadequate to
show a change in the essential nature of the business. The ad-
justment did not change the fact that Cannelton/Dunn and
Mammoth were both in the coal mining and processing busi-

67 In Sierra Realty Corp., supra, the Board stated that to determine
whether a predecessor’s business has been continued by the new em-
ployer, the Board considers such factors as: “whether the business of
both employers is essentially the same, whether the employees of the
new company are doing the same jobs in the same working conditions
under the same supervisors; and whether the new entity has the same
production process, produces the same products, and basically has the
same body of customers.” Sierra Realty Corp., 317 NLRB at 835,
quoting Fall River Dyeing, 482 U.S. at 43.
ness, used the same “room and pillar” mining technique, used
their employees to do the same work, operated the same
equipment and plant/loadout facilities, processed coal in the
same way, had many of the same supervisors, and sold to the
same body of customers. In the face of the overwhelming evi-
dence that the Respondents continued the business essentially
unchanged, the adjustment cited by Mammoth is inconsequen-
tial. See Fall River Dyeing, 482 U.S. at 44 (successor’s change
in process, which bore only indirectly upon the employees’
working conditions and relationship with the employer, was not
sufficient to avoid the finding of a “substantial continuity” of
business).
Mammoth also contends that its business was different be-
cause it operated using fewer employees than Cannelton/Dunn
had. There’s a very real possibility that any such change was
dictated by an initial shortage of experienced miners at Mam-
moth that resulted from the Respondents’ unlawful exclusion of
Cannelton/Dunn’s unit employees. Assuming that the Respon-
dents were using fewer employees for reasons unrelated to
unlawful discrimination, Mammoth’s argument still fails under
Board precedent. Where a buyer’s remaining employees con-
tinue to perform the same type of work as those of the prede-
cessor, the Board has found successorship despite greater re-
ductions in workforce size than any involved here. For exam-
ple, in Tree-Free Fiber Co., 328 NLRB 389, 390 (1999), the
Board found successorship where the new employer continued
with a workforce of only 50 workers, as compared to the pre-
purchase complement of 500 workers. Similarly, in Commer-
cial Forgings Co., 315 NLRB 162, 165 (1994), enfd. mem. sub
nom. Forgings Forever v. NLRB, 77 F.3d 482 (6th Cir. 1996),
successorship was established where changes eliminated most
of predecessor’s unit jobs, but the jobs of bargaining unit em-
ployees who remained were not altered. See also Planned
Building Services, 347 NLRB 670, 674 fn. 17 (successor bar-
gaining obligation where the new employer planned to employ
a smaller work force consisting solely of predecessor employ-
ees). Thus, the relatively modest reduction in the number of
employees that Mammoth says it used to perform bargaining
unit work does not rebut the overwhelming evidence that
Mammoth’s business was essentially unchanged from that of
Cannelton/Dunn.
Mammoth also discusses changes that it made well after it
began operating the former Cannelton/Dunn facility. More
specifically, the record shows that in July and August 2005 the
Respondents began relocating equipment and staff from the
Stockton mine, where the coal reserves were largely exhausted,
to other sites on the property. The record also shows that in
January 2006, the Respondents discontinued a system that used
belt lines in combination with off-road trucks to move coal out
of the mine and to the preparation plant, and instituted a system
that used belt lines in combination with highway trucks to do
that work. The decision about whether an employer continues
to have a bargaining obligation should be judged from the time
that recognition was unlawfully withdrawn, not at a later date
on the basis of unilateral changes that the employer has made
without regard to its bargaining obligation. See Comar, Inc.,
349 NLRB 342, 356–359 (2007). Otherwise successors who
wished to avoid a bargaining obligation could profit from their
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD42
own unilateral changes by using such changes as a basis for
denying the existence of a continuing bargaining obligation. Id.
At any rate, neither the use of other mine sites on the property
nor the change in how coal was transported to the preparation
plant has altered the essential nature of the business—which is
to mine and process coal. Indeed, the uncontradicted testimony
was that, under Cannelton/Dunn, when one mine site became
depleted the work would be moved to a fresh site on the prop-
erty. Therefore, the Respondents’ shifting of equipment and
staff from the Stockton mine to fresh sites on the property not
only did not change the operation’s essential business of mining
and processing coal, but did not even change the general prac-
tice of the operation. The change in the type of trucks used to
bring coal to the preparation plant also has not altered the es-
sence of the business. Incremental improvements to production
techniques are commonplace in industry and generally do not
justify withdrawal of recognition from a union that represents a
longstanding, established, unit. See, e.g., Comar Inc., supra, at
361; Leach Corp., 312 NLRB 990, 995 (1993), enfd. 54 F.3d
802 (D.C. Cir. 1995); Allied Mills, Inc., 218 NLRB 281, 285
(1975), enfd. mem. 543 F.2d 417 (D.C. Cir. 1976), cert. denied
431 U.S. 937 (1977); Columbia Tribune Publishing Co., 201
NLRB 538, 550 (1973), enfd. in relevant part 495 F.2d 1384
(8th Cir. 1974).
Regarding the second prong of the threshold test, where, as
here, the employer has discriminatorily refused to hire its
predecessor’s employees in order to avoid the Board’s succes-
sorship doctrine, the Board infers that those employees would
have been employed absent the unlawful discrimination.
Love’s Barbeque, 245 NLRB at 82. As the Board recently
explained, “[a]lthough it cannot be said with certainty whether
the successor would have retained all of the predecessor em-
ployees if it had not engaged in discrimination, the Board re-
solves the uncertainty against the wrongdoer and finds that, but
for the discriminatory motive, the successor would have em-
ployed the predecessor employees in the unit positions.”
Planned Building Services, 347 NLRB 670, 674, citing Love’s
Barbeque 245 NLRB at 82. Thus, under Board precedent, it is
presumed not only that, absent discrimination, the Respondents
would have hired a majority of their employee complement
from among Cannelton/Dunn’s unit employees, but that they
would have employed essentially all of Cannelton/Dunn’s unit
employees.68 I find that the second prong of the successorship
test has been met.
Mammoth argues that successorship has not been established
because the test is whether the alleged successor hired a major-
ity of its employees from the predecessor in an appropriate
unit, and, according to Mammoth, an appropriate unit has not
been shown here. This contention is without merit. First, the
Respondents cite no authority for the proposition that, when
continuing majority status has been established based on the
Love’s Barbeque inference, the General Counsel must still
make a separate showing that the existing unit is appropriate.
At any rate, the evidence establishes that employees at Mam-

68 The Board also presumes that the union’s majority status would
have continued. New Concept Solutions, LLC, 349 NLRB 1136, 1157,
citing State Distributing Co., 282 NLRB 1048.
moth constitute an appropriate unit. The same unit was histori-
cally recognized and bargained with by the predecessor em-
ployer, and when the Respondents assumed control of the op-
eration they continued to use employees to perform the same
unit work. In Ready Mix USA, Inc., a successorship case, the
Board stated that “[i]t is well recognized that ‘long-established
bargaining relationships will not be disturbed where they are
not repugnant to the Act’s policies.’” 340 NLRB 946, 947
(2003), quoting Banknote Corp. of America v. NLRB, 84 F.3d
637, 647 (2d Cir. 1996). The Board “places a heavy eviden-
tiary burden on a party attempting to show that historical units
are no longer appropriate.” Id. “Indeed, ‘compelling circum-
stances are required to overcome the significance of bargaining
history.’” Id., quoting Mayfield Holiday Inn, 335 NLRB 38,
39 (2001). The Respondents have not shown any basis, must
less a compelling basis, for concluding that the bargaining unit
that was historically recognized and bargained with at Hori-
zon’s Cannelton/Dunn operation became “repugnant to the
Act’s policies” when the Respondents took over.
Mammoth argues that the bargaining unit description set
forth in the complaint does not accurately reflect what employ-
ees at Mammoth do. Assuming for purposes of argument that
the Love’s Barbeque inference is not dispositive, I conclude
that the existence of an appropriate unit at Mammoth for pur-
poses of the successorship test is established by the fact that the
duties of the Cannelton/Dunn employees in the recognized unit
and the duties of Mammoth employees were the same. At any
rate, the unit description, which tracks the language that was
used at Cannelton/Dunn under the 2002 Agreement, plainly
applies to the work being performed by the Respondents’ coal
production employees. Paragraph 7 of the amended complaint
alleges the unit to be:
All employees engaged in the removal of overburden and coal
waste, preparation, processing, and cleaning of coal, and
transportation of coal (except by waterway or rail, not owned
by Respondent Mammoth), repair and maintenance work nor-
mally performed at the mine site or at the central shop of Re-
spondent Mammoth; and maintenance of gob piles, and mine
roads, and work of the type customarily related to all of the
above at Respondent Mammoth’s mines and facilities; but ex-
cluding all office clerical employees, and all professional em-
ployees, guards and supervisors as defined in the Act.
The record shows that the Respondents’ employees at Mam-
moth are engaged in the removal of coal waste, preparation,
processing and cleaning of coal, transportation of coal, repair
and maintenance work, maintenance of the gob pile (another
term for the slurry, dump, refuge or impoundment), and main-
tenance of mine roads. Other types of coal mining work per-
formed at Mammoth fall within the clause in the unit descrip-
tion that covers “all work customarily related to all” the other
types of coal production work set forth in the definition. Al-
though some of the wording of the unit description is vague,
what is clear is that this unit description language has been used
at Cannelton/Dunn and numerous other coal mines and has
consistently and repeatedly been set forth in Board decisions to
describe coal production work such as that which is at issue in
this case. See, e.g., Pittson Coal Group, Inc., 334 NLRB 690,
MAMMOTH COAL CO. 43
694 (2001); Black Bear Mining, Inc., 325 NLRB 960 (1998);
Magnet Coal, 307 NLRB 444, 448 (1992), enfd. mem. 8 F.3d
71 (D.C. Cir. 1993); Arch of West Virginia, Inc., 304 NLRB
1089, 1093 (1991); Chafin Coal Co., 304 NLRB 286, 290
(1991); Rebb Energy, 302 NLRB 886 (1991); Rockwood En-
ergy & Mineral Corp., 299 NLRB 1136, 1141 (1990), enfd.
942 F.2d 169 (3d Cir. 1991). The Respondents site to no cases
in which this well-recognized unit description for the work of
coal miners has been invalidated by the Board. I conclude that
the Respondents have fallen far short of showing the “compel-
ling circumstances” that are necessary to overcome bargaining
history and invalidate the historical unit. Ready Mix USA, Inc.,
supra.
For the reasons discussed above, I conclude that Respondent
Mammoth is the legal successor to Horizon’s Cannelton/Dunn
operation.
Mammoth admits, and the record confirms, that since about
December 3, 2004, it has unilaterally established terms and
conditions of employment for its employees that are different
from those that were in effect under Cannelton/Dunn. The
complaint alleges that the Respondents violated Section 8(a)(5)
and (1) by taking this action with respect to employees in the
unit. I agree. As was discussed earlier, although a successor
employer is generally entitled to set initial terms and condition
of employment, the Respondents forfeited that right for two
reasons. First, The Respondents discriminatorily refused to
hire the predecessor’s unit employees in an effort to avoid the
Board’s successorship doctrine. Under Love’s Barbeque, 245
NLRB at 82, an employer who takes such unlawful action may
not set the initial terms and conditions of employment. Second,
the Respondents’ officials distributed forms to prospective
applicants stating that the Mammoth “mine is nonunion,” and
told interviewees that Mammoth would operate union free. As
is discussed by the Board in Advanced Stretchforming, Interna-
tional, 323 NLRB at 530, when the successor to a unionized
employer tells employees that there will be no union at the
facility, it loses the right to unilaterally set initial terms and
conditions of employment. See also Smoke House Restaurant,
347 NLRB 192, 204 . Thus, the Respondents were under an
obligation to continue the terms and conditions of employment
that had been in effect for unit employees at Horizon’s Cannel-
ton/Dunn operation pending bargaining.
The Respondents argue that a duty to recognize and bargain
with the Union was not triggered because the Union did not
make a timely and sufficient demand for bargaining. However,
under established Board law, no bargaining demand was neces-
sary in this case because the Respondents’ “unlawful refusal to
hire . . . its predecessor’s employees rendered any request for
bargaining futile.” Smith & Johnson Construction Co., 324
NLRB 970 (1997); see also Planned Building Services, 347
NLRB 670, 718 (2006); Triple A Services, 321 NLRB 873, 877
fn. 7 (1996); Precision Industries, 320 NLRB 661, 711 (1996).
It would be incongruous to require the Union to ask the Re-
spondents to recognize it when the work force the Respondents
actually employed at Mammoth, by virtue of their discrimina-
tory hiring process, included no more than 22 of the predeces-
sor’s unit employees among the approximately 219 persons
hired to perform unit work. See Smith & Johnson, supra.
Mammoth also argues that it is insulated against successor-
ship and a bargaining obligation on the basis of an order issued
by the bankruptcy judge who oversaw the sale of Cannelton,
Dunn, and other Horizon assets. As discussed above, on Au-
gust 6, 2004, the bankruptcy judge authorized Cannelton and
Dunn to reject the 2002 National Coal Agreement, and allowed
the operation to be sold without regard to the successorship
provision in that Agreement. However, such a bankruptcy sale
order in no way insulates against the possibility that a buyer
will take actions subsequent to the sale that give rise to a suc-
cessorship bargaining obligation or require the buyer to main-
tain the existing terms and conditions of employment. In
Foodbasket Partners, the Board held that the bankruptcy
judge’s order relieving a purchaser of successorship liability
did not insulate that purchaser from subsequently triggering a
successorship bargaining obligation based on the substantial
continuity between the enterprises and the number of the prede-
cessor employees hired. 344 NLRB 799, 800–801 (2005),
enfd. sub nom. Erica, Inc. v. NLRB, 200 Fed. Appx. 344 (5th
Cir. 2006); see also NLRB v. Horizons Hotel, 49 F.3d 795, 803
(1st Cir. 1995), enfg. 312 NLRB 1212 (1993). Similarly, in the
instant case, the Respondents’ status as legal successor and its
responsibility to maintain the existing terms of employment
during bargaining are not based on the 2002 National Coal
Agreement or the successorship provision that the bankruptcy
court voided presale, but on actions that the Respondents took
post-sale. More specifically, post-sale, the Respondents con-
tinued the predecessor’s essential business, discriminatorily
refused to hire the predecessor’s employees,69 and announced
to employees that there was no union at Mammoth—actions
that under Love’s Barbeque, supra, Advanced Stretchforming,
supra, and related precedent, establish Mammoth as the legal
successor and create an obligation to maintain the predecessor’s
terms and conditions of employment pending good-faith nego-
tiations.
Mammoth suggests that application of the Board’s decisions
in Love’s Barbeque and Advanced Stretchforming will negate
the bankruptcy judge’s authority to reject a collective-
bargaining agreement. I disagree. First, the Respondents were
not required to honor the existing terms and conditions for the
life of the collective-bargaining agreement—as they would
have been if the bankruptcy judge had not vitiated the succes-
sorship provision. Rather, under Love’s Barbeque and Ad-
vanced Stretchforming, all the Respondents were required to do
was honor the existing conditions long enough for good-faith
negotiations to take place. Second, to the extent, if any, that the

69 Indeed it is clear that the bankruptcy judge not only did not antici-
pate that the Respondents would discriminatorily refuse to employ
incumbent unit employees, but, to the contrary, based his decision on
the expectation that the Respondents would continue the employment
of the incumbents without interruption. In the August 6 opinion ex-
plaining his order, the bankruptcy judge reasoned that if he did not
authorize the sale “free and clear of . . . successor liability under the
collective bargaining agreements,” job loss would ensue, whereas the
requested order would permit the operations to be “sold as going con-
cerns,” in which case “there is no reason to believe that the miners’
employment would suffer any interruption.” R. Mammoth’s Exh.
(Mammoth Exh.) 75(c) at p. 24.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD44
terms and conditions in effect at Cannelton/Dunn had been
altered after the bankruptcy judge authorized rejection of the
collective-bargaining agreement, the Respondents would only
be required to honor the terms and conditions that were actually
in effect, not those set forth in the 2002 agreement. Third,
given the bankruptcy judge’s order, it was not a foregone con-
clusion that Mammoth would be a legal successor or that the
Respondents would be obligated to honor the existing terms
and conditions of employment pending bargaining. Rather, the
Respondents brought those obligations upon themselves when,
subsequent to acquisition of Horizon’s Cannelton/Dunn opera-
tion, they unlawfully discriminated against the predecessor’s
unit employees and announced to employees that Mammoth
would be operated union free.
For the reasons discussed above, the Respondents have vio-
lated Section 8(a)(5) and (1) since December 3, 2004, by failing
to recognize and bargain with the Union as the exclusive col-
lective-bargaining representative of employees in the unit, and
by unilaterally imposing new terms and conditions of employ-
ment for the unit employees. E. S. Sutton Realty Co., 336
NLRB 405, 408 (2001).
CONCLUSIONS OF LAW
1. Respondent Massey is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent Mammoth is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
3. Respondent Mammoth is a subsidiary of Respondent
Massey, and Respondent Massey directly participated in, and
played a key causal role in, the unfair labor practices found in
this decision.
4. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
5. The following employees of the Respondent Mammoth
constitute a unit appropriate for purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:
All employees engaged in the removal of overburden and coal
waste, preparation, processing, and cleaning of coal, and
transportation of coal (except by waterway or rail, not owned
by Respondent Mammoth), repair and maintenance work nor-
mally performed at the mine site or at the central shop of Re-
spondent Mammoth; and maintenance of gob piles, and mine
roads, and work of the type customarily related to all of the
above at Respondent Mammoth’s mines and facilities; but ex-
cluding all office clerical employees, and all professional em-
ployees, guards and supervisors as defined in the Act.
6. The Union is the collective-bargaining representative of
the above-described unit employees.
7. Respondent Mammoth is the successor employer of em-
ployees of Horizon’s Cannelton/Dunn operation in the above-
described unit.
8. Since December 3, 2004, the Respondents have violated
Section 8(a)(3) and (1) of the Act by discriminatorily refusing
to hire former employees of Horizon’s Cannelton/Dunn opera-
tion for positions in the Mammoth bargaining unit.70
9. Since December 3, 2004, the Respondents have violated
Section 8(a)(5) and (1) by failing and refusing to recognize and
bargain with the Union and by unilaterally changing the terms
and conditions of employment that had been in effect for bar-
gaining unit employees prior to the transfer of control and own-
ership of Horizon’s Cannelton/Dunn operation to the Respon-
dents.
10. The unfair labor practices set forth above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondents have engaged in certain
unfair labor practices, I find that they must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.71 Having found that the Re-
spondents discriminatorily refused to hire former Cannel-
ton/Dunn unit employees to work at Mammoth, I recommend
that the Respondents be ordered to immediately offer to the
individuals listed below employment in the positions for which
they would have been hired, absent the Respondents’ unlawful
discrimination, or if those positions no longer exist, to substan-
tially equivalent positions, discharging if necessary any em-
ployees hired to fill those positions. The employees listed be-
low shall be made whole for any loss of earnings they may
have suffered due to the discrimination against them. The
backpay is to be calculated in accordance with the formula
approved in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
Having found that the Respondents unlawfully refused to
bargain collectively with the Union, I shall also recommend
that the Respondents be ordered to recognize and bargain with

70 The 8(a)(3) and (1) violation is found with respect to the following
individuals listed in the exhibit to the complaint, as amended during
these proceedings: Michael Armstrong, Charles Bennett, Randel Bo-
wen, Sr., Roger Bowles, Joseph Brown, Norman Brown, Mark Cline,
Leo Cogar, Tilman Cole, Russell Cooper, Michael Cordle, Terry
Cottrell, David Crawford, Jackie Danberry, Kenneth Dolin, Dewey
Dorsey, Thomas Dunn, Robert Edwards, Stanley Elkins, William Fair
Jr., Lacy Flint, Ronald Gray, James Hanshaw, Paul Harvey, Charles
Hill, Cheryl Holcomb, Robert Hornsby, Clarence Huddleston, Jeffrey
Hughes, Harry T. Jerrell, Jimmy Johnson, Mike Johnson, Alvin Justice,
John Kauff, Tommie Keith, Barry Kidd, Randy Kincaid, Chester Laing,
Everett Lane, Marion (Pete) Lane, Rodney George Leake, Danny Legg,
William Larry McClure, Robert McKnight Jr., Ricky Miles, James
Mimms, Gregory Moore, James Moschino, James Nichols, Robert
Nickoson, William Nugent, Charles Nunley, John Nutter, Ronald
Payne, David Preast, Danny Price, Doyle Roat, Gary Roat, Michael
Roat, Paul Roat, Shannon Roat, Gary Robinson, Charles Rogers, Mi-
chael Rosenbaum, Michael Ryan, Melvin Seacrist, Lawson Shaffer,
Russell Shearer, Dwight Siemiaczko, Charles Parker Smith, Donald
Stevens, Jeffrey Styers, Jackie Tanner, Roger Taylor, Gary Totten,
Charles Treadway, Byron Tucker Jr., Larry Vassil, Thomas Ward,
James Whittington Jr., Philip Williams, William Willis, Ralph Wilson,
Gary Wolfe, and Fred Wright.
71 For reasons discussed earlier, Respondent Massey’s liability in
this case extends to the unfair labor practices committed at its subsidi-
ary, Respondent Mammoth. See sec. III, supra.
MAMMOTH COAL CO. 45
the Union concerning wages, hours, benefits, and other terms
and conditions of employment of bargaining unit employees at
Mammoth, upon request by the Union. In addition, and in or-
der to remedy the Respondents’ unlawful unilateral changes to
wages, benefits, and terms and conditions of employment that
went into effect when they began to employ individuals to per-
form unit work at Mammoth on December 3, 2004, I shall rec-
ommend that the Respondents be ordered to rescind the unilat-
eral changes and make the employees whole by remitting all
wages and benefits that would have been paid absent the Re-
spondents’ unlawful conduct, until the Respondents negotiate
in good faith with the Union to agreement or to impasse, sub-
ject to the Respondents’ demonstration in a compliance hearing
that had lawful bargaining taken place, less favorable terms
than had existed under Cannelton/Dunn would have been law-
fully imposed. Planned Building Services, 347 NLRB 670,
674–676. This remedial measure is intended to prevent the
Respondents from taking advantage of their wrongdoing to the
detriment of the employees and to restore the status quo ante
thereby allowing the bargaining process to proceed. U.S. Ma-
rine Corp., 944 F.2d 1305, 1322–1323 (7th Cir. 1991), cert.
denied 503 U.S. 936 (1992). Employees shall be made whole
in the manner prescribed in Ogle Protection Service, 183
NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with
interest as prescribed in New Horizon for the Retarded, supra.
The Respondents shall make whole the unit employees by pay-
ing any and all delinquent employee benefit fund contributions,
including any additional amounts due the funds in accordance
with Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7
(1979). In addition, the Respondents shall reimburse unit em-
ployees for any expenses ensuing from the failure to make re-
quired contributions, as set forth in Kraft Plumbing & Heating,
252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir.
1981), such amounts to be computed in the manner set forth in
Ogle Protection Service, supra, with interest as prescribed in
New Horizons for the Retarded, supra.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended72
ORDER
Respondent Massey Energy Company (Massey), Richmond,
Virginia, its officers, agents, successors and assigns, and
Massey’s subsidiary, Respondent Spartan Mining Company
d/b/a Mammoth Coal Company, Leivasy, West Virginia, its
officers, agents, successors and assigns, shall
1. Cease and desist from
(a) Refusing to hire bargaining unit employees of Horizon’s
Cannelton/Dunn operation (the predecessor employer) because
of their union-represented status in the predecessor’s operation,
or because they were active on behalf of the Union, or other-
wise discriminating against these employees to avoid having to
recognize and bargain with the United Mine Workers of Amer-
ica (the Union).

72 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
(b) Refusing to recognize and bargain in good faith with the
Union as the exclusive collective-bargaining representative of
Respondent Mammoth’s employees in the following appropri-
ate unit:
All employees engaged in the removal of overburden and coal
waste, preparation, processing, and cleaning of coal, and
transportation of coal (except by waterway or rail, not owned
by Respondent Mammoth), repair and maintenance work nor-
mally performed at the mine site or at the central shop of Re-
spondent Mammoth; and maintenance of gob piles, and mine
roads, and work of the type customarily related to all of the
above at Respondent Mammoth’s mines and facilities; but ex-
cluding all office clerical employees, and all professional em-
ployees, guards and supervisors as defined in the Act.
(c) Unilaterally changing wages, hours, and other terms and
conditions of employment of the employees in the above-
described unit without first giving notice to and bargaining with
the Union about these changes.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Notify the Union in writing that they recognize the Union
as the exclusive representative of the bargaining unit employees
under Section 9(a) of the Act and that they will bargain with the
Union concerning terms and conditions of employment for
employees in the above-described appropriate unit.
(b) Recognize and, on request, bargain with the Union as the
exclusive representative of the employees in the above-
described appropriate unit concerning terms and conditions of
employment and, if an understanding is reached, embody the
understanding in a signed agreement.
(c) At the request of the Union, rescind any departures from
the terms and conditions of employment of unit employees that
existed immediately prior to the Respondents’ takeover of the
predecessor employer, retroactively restoring preexisting terms
and conditions of employment, including wage rates and bene-
fit plans, until the Respondents negotiate in good faith with the
Union to agreement or to impasse.
(d) Make whole, in the manner set forth in the remedy sec-
tion of this decision, the unit employees for losses caused by
the Respondents’ failure to apply the terms and conditions of
employment that existed immediately prior to their takeover of
the predecessor employer.
(e) Within 14 days of this Order, offer employment to the
following named former employees of the predecessor em-
ployer in their former positions or, if such positions no longer
exist, in substantially equivalent positions at Mammoth, with-
out prejudice to their seniority or any other rights or privileges
previously enjoyed, discharging if necessary any employees
hired in their places:
Michael Armstrong, Charles Bennett, Randel Bowen Sr.,
Roger Bowles, Joseph Brown, Norman Brown, Mark Cline,
Leo Cogar, Tilman Cole, Russell Cooper, Michael Cordle,
Terry Cottrell, David Crawford, Jackie Danberry, Kenneth
Dolin, Dewey Dorsey, Thomas Dunn, Robert Edwards,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD46
Stanley Elkins, William Fair Jr., Lacy Flint, Ronald Gray,
James Hanshaw, Paul Harvey, Charles Hill, Cheryl Holcomb,
Robert Hornsby, Clarence Huddleston, Jeffrey Hughes, Harry
T. Jerrell, Jimmy Johnson, Mike Johnson, Alvin Justice, John
Kauff, Tommie Keith, Barry Kidd, Randy Kincaid, Chester
Laing, Everett Lane, Marion (Pete) Lane, Rodney George
Leake, Danny Legg, William Larry McClure, Robert
McKnight Jr., Ricky Miles, James Mimms, Gregory Moore,
James Moschino, James Nichols, Robert Nickoson, William
Nugent, Charles Nunley, John Nutter, Ronald Payne, David
Preast, Danny Price, Doyle Roat, Gary Roat, Michael Roat,
Paul Roat, Shannon Roat, Gary Robinson, Charles Rogers,
Michael Rosenbaum, Michael Ryan, Melvin Seacrist, Lawson
Shaffer, Russell Shearer, Dwight Siemiaczko, Charles Parker
Smith, Donald Stevens, Jeffrey Styers, Jackie Tanner, Roger
Taylor, Gary Totten, Charles Treadway, Byron Tucker Jr.,
Larry Vassil, Thomas Ward, James Whittington Jr., Philip
Williams, William Willis, Ralph Wilson, Gary Wolfe, and
Fred Wright.
(f) Make the employees referred to in the preceding para-
graph 2(e) whole for any loss of earnings and other benefits
they may have suffered by reason of the Respondents’ unlawful
refusal to hire them, in the manner set forth in the remedy sec-
tion of this decision.
(g) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful refusal to hire the em-
ployees named in the preceding paragraph 2(e) and, within 3
days thereafter, notify them in writing that this has been done
and that the refusal to hire them will not be used against them
in any way.
(h) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this order.
(i) Within 14 days after service by the Region, post at the
Mammoth facilities in and around Kanawha County, West Vir-
ginia, copies of the attached notice marked “Appendix.”73 Cop-
ies of the notice, on forms provided by the Regional Director
for Region 9, after being signed by authorized representatives
of the Respondents, shall be posted by the Respondents and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondents to
ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of
these proceedings, the Respondents have gone out of business
or closed the facility involved in these proceedings, the Re-
spondents shall duplicate and mail, at their own expense, a

73 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
copy of the notice to all current employees and former employ-
ees employed by the Respondents at the Mammoth facilities at
any time since December 3, 2004.
(j) Within 21 days after service by the Region, file with the
Regional Director sworn certifications of a responsible official
for each Respondent on a form provided by the Region attest-
ing to the steps that the Respondent has taken to comply.
Dated, Washington, D.C., November 21, 2007.
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
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT refuse to hire bargaining unit employees of
Horizon’s Cannelton/Dunn operation, the predecessor em-
ployer, because of their union-represented status in the prede-
cessor’s operation, or because they were active on behalf of the
Union, or otherwise discriminate against these employees to
avoid having to recognize and bargain with the United Mine
Workers of America (the Union).
WE WILL NOT refuse to recognize and bargain in good faith
with the Union as the exclusive collective-bargaining represen-
tative of Respondent Mammoth’s employees in the following
appropriate unit:
All employees engaged in the removal of overburden and coal
waste, preparation, processing, and cleaning of coal, and
transportation of coal (except by waterway or rail, not owned
by Respondent Mammoth), repair and maintenance work nor-
mally performed at the mine site or at the central shop of Re-
spondent Mammoth; and maintenance of gob piles, and mine
roads, and work of the type customarily related to all of the
above at Respondent Mammoth’s mines and facilities; but ex-
cluding all office clerical employees, and all professional em-
ployees, guards and supervisors as defined in the Act.
WE WILL NOT unilaterally change wages, hours and other
terms and conditions of employment of employees in the
above-described unit without first giving notice to and bargain-
ing with the Union about these changes.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL notify the Union in writing that we recognize it as
the exclusive representative of our unit employees under Sec-
tion 9(a) of the Act and that we will bargain with it concerning
MAMMOTH COAL CO. 47
terms and conditions of employment for employees in the
above-described appropriate unit.
WE WILL recognize and, on request, bargain with the Union
as the exclusive representative of the employees in the above-
described appropriate unit concerning terms and conditions of
employment and, if an understanding is reached, embody the
understanding in a signed agreement.
WE WILL, at the request of the Union rescind, any departures
from terms and conditions of employment that existed immedi-
ately prior to our takeover of Horizon’s Cannelton/Dunn opera-
tion, retroactively restoring preexisting terms and conditions of
employment, including wage rates and benefit plans, until we
negotiate in good faith with the Union to agreement or to im-
passe.
WE WILL make whole the unit employees for losses caused
by our failure to apply the terms and conditions of employment
that existed immediately prior to our takeover of Horizon’s
Cannelton/Dunn operation.
WE WILL, within 14 days of this Order, offer employment to
the following named former employees of Horizon’s Cannel-
ton/Dunn operation, the predecessor employer, in their former
positions or, if such positions no longer exist, in substantially
equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, discharging if
necessary any employees hired in their places:
Michael Armstrong, Charles Bennett, Randel Bowen Sr.,
Roger Bowles, Joseph Brown, Norman Brown, Mark Cline,
Leo Cogar, Tilman Cole, Russell Cooper, Michael Cordle,
Terry Cottrell, David Crawford, Jackie Danberry, Kenneth
Dolin, Dewey Dorsey, Thomas Dunn, Robert Edwards,
Stanley Elkins, William Fair Jr., Lacy Flint, Ronald Gray,
James Hanshaw, Paul Harvey, Charles Hill, Cheryl Holcomb,
Robert Hornsby, Clarence Huddleston, Jeffrey Hughes, Harry
T. Jerrell, Jimmy Johnson, Mike Johnson, Alvin Justice, John
Kauff, Tommie Keith, Barry Kidd, Randy Kincaid, Chester
Laing, Everett Lane, Marion (Pete) Lane, Rodney George
Leake, Danny Legg, William Larry McClure, Robert
McKnight Jr., Ricky Miles, James Mimms, Gregory Moore,
James Moschino, James Nichols, Robert Nickoson, William
Nugent, Charles Nunley, John Nutter, Ronald Payne, David
Preast, Danny Price, Doyle Roat, Gary Roat, Michael Roat,
Paul Roat, Shannon Roat, Gary Robinson, Charles Rogers,
Michael Rosenbaum, Michael Ryan, Melvin Seacrist, Lawson
Shaffer, Russell Shearer, Dwight Siemiaczko, Charles Parker
Smith, Donald Stevens, Jeffrey Styers, Jackie Tanner, Roger
Taylor, Gary Totten, Charles Treadway, Byron Tucker Jr.,
Larry Vassil, Thomas Ward, James Whittington Jr., Philip
Williams, William Willis, Ralph Wilson, Gary Wolfe, and
Fred Wright.
WE WILL make the above-named employees whole for any
loss of earnings and other benefits they may have suffered by
reason of our unlawful refusal to hire them, less any net interim
earnings, plus interest.
WE WILL, within 14 days, from the date of this Order, re-
move from our files any reference to the unlawful refusal to
hire the above-named employees and, within 3 days thereafter,
notify them in writing that this has been done and that the re-
fusal to hire them will not be used against them in any way.
MASSEY ENERGY COMPANY
SPARTAN MINING COMPANY D/B/A MAMMOTH COAL
COMPANY