Mammoth Coal Company

National Labor Relations Board - Administrative Judge Opinions

Nov 21, 2007

09-CA-042057 (N.L.R.B. Nov. 21, 2007)

JD–73–07
Kanawha County, WV
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
MASSEY ENERGY COMPANY AND ITS
SUBSIDIARY, SPARTAN MINING COMPANY
D/B/A MAMMOTH COAL COMPANY
and Case No. 9–CA–42057
UNITED MINE WORKERS OF AMERICA
Engrid Emerson Vaughan, Esq.,
Donald A. Becher, Esq., and
Linda B. Finch, Esq.
for the General Counsel.
Charles F. Donnelly, Esq.
Charleston, West Virginia, and
Judith Rivlin, Esq.
Fairfax, Virginia,
for the Charging Party.
Richard R. Parker, Esq.
(Ogletree, Deakins, Nash,
Smoak & Stewart, P.C.)
Nashville, Tennessee,
for Respondent Massey
Energy Company.
Forrest H. Roles, Esq., and
Brace R. Mullett, Esq.
(Dinsmore & Shohl L.L.P.)
Charleston, West Virginia,
for Respondent Spartan Mining
Company d/b/a Mammoth
Coal Company.
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, 2007, 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, 2005, July 22, 2005, and June 22, 2006. The Regional Director
of 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).
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The complaint alleges that the Respondents -- Massey Energy 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 Horizon 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 successor, and also because those individuals were
union members and engaged in protected activities. If not for that discrimination, the complaint
avers, the majority of Mammoth’s workforce 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 complaint 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 representative of the unit employees and unilaterally established
mandatory 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.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the parties, I make the following findings of fact and
conclusions of law.
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 subsidiaries and operations, and satisfies the Board’s direct
outflow and/or direct inflow non-retail 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 commerce 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 certain 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
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understanding 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 Cannelton/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’ officials offered employment interviews and/or continued
employment to every one of the non-bargaining unit employees of Cannelton/Dunn. The
Respondents offered this opportunity not only to supervisory staff, but also to non-supervisory
employees who were not in the bargaining unit. For example, the Respondents offered pre-
takeover employment interviews and/or employment 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 non-
bargaining unit workers were hired and continued their employment uninterrupted when the
Respondents 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 employees
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 provides 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 perform 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

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 Respondents into “utility”
classifications (utility, outside utility, plant utility, surface utility) among the total of approximately
219 who were assigned to perform what had been bargaining unit work at Cannelton/Dunn. At
trial, there was discussion of a contention by Respondent Mammoth that the utility employees’
work would not have been considered 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.) 1630-31; General Counsel’s Exhibit (GC
Exh.) 14(a) at pp. 64-66, 317, 318, 320, 325, 326, 332.
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Respondents hired to work at Mammoth did not include a single one of the approximately 11
individuals who had been union officials or union committee members at Cannelton/Dunn when
the operation changed hands.3 Since the Respondents began operating 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 attempting to hire the most qualified
workforce. Mammoth contends that the rejected former Cannelton/Dunn employees either
received poor references from their former supervisors, were not recommended by interviewers,
were not qualified for the positions 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 positions
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 Respondent 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 Virginia, 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 subsidiaries in the Massey
corporate family "funnel up" to Respondent Massey.
Respondent Massey argues that it had no meaningful involvement in the operations of
Mammoth and bears no responsibility for the actions that give rise to the alleged unfair labor
practices in this case. Counsel for Massey strains to characterize 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 coordinated by officials of Massey.
For example, the wage rates and benefits offered by the individual mining subsidiaries are not

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
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.
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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 subsidiary will offer
retention incentives for experienced miners. Massey also tells the human resources directors at
the subsidiary mines when they must hire trainee miners and place them with experienced
mentors. Transcript at (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 corporate family. For example, if an employee at one Massey
subsidiary mine wishes to leave for work at another Massey subsidiary 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 permitted to transfer if it means that the
first employer will be "stripped" of a needed employee. Employees at subsidiary mines
participate in a corporate-wide pension plan, and their pension status is not affected when they
move from one subsidiary to another. The Massey organization places help wanted
advertisements stating that Respondent Massey is seeking 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. 1558-59 and 2164; General Counsel’s Exhibit (GC
Exh.) 11a (Respondent Massey’s 2005 Annual Report) at pages 5 and 20. Jennifer Chandler,
while employed as the regional human resources 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 subsidiary 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 participated in the decision to unilaterally change the
terms of employment 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 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 Mammoth 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.
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In addition to Short’s own role interviewing and coordinating interviews, he was also
responsible for assigning Jeff Gillenwater, a Massey Coal Services official, to conduct interviews
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 December 2004 until August 2005) with a
spreadsheet that set forth the approximate "union time" of each of the former Cannelton/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) questioning 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 advertisements. During the period
when they were staffing Mammoth, Gillenwater instructed Doss to watch a film that discussed,
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 Mammoth in personnel matters other
than staffing, and employee wages and benefits. For example, Short, a Massey senior vice
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 facility.
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 recognizing 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 superintendent 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-
21. Moreover, Adamson explained that interviewees were asked whether they were willing to
work nonunion because "[i]t was pretty common knowledge 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

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 Cannelton/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.
6 In the record, his last name is often misspelled “Stephens.”
7 As discussed above, Blankenship is the CEO, president, and chairman of Massey.
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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 recommendations about whether to hire employees who had worked at
Cannelton/Dunn.
Respondent Massey’s attempt in this proceeding to characterize 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 promotional materials. In annual reports for 2005 and 2004, Respondent Massey described
itself as a company that mines, process, and sells coal, and repeatedly referred to the coal
miners 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 employment 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 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 resume 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 mining operations, function as "a single production entity with sales,
transportation and distribution coordinated from Massey’s Richmond headquarters." 305 F.3d
226, 233 (4th Cir. 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 conclusion. 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, Inc.,
347 NLRB No. 109, slip op. at 1 fn. 2 (2006) (parent corporation is liable for subsidiary’s unfair
labor practices on a direct participation theory where parent was directly 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. N.L.R.B., 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

8 I credit Terry Abbott’s clear and certain testimony that Stevens made this statement to
him. Stevens testified that he did not recall making 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 statement
recounted by Abbott, he would not necessarily remember it. Tr.2752-53. 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.
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"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
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 Respondents selected the employees who would perform the work
of the former Cannelton/Dunn unit members. Massey’s decision 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. 2172-73. According 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 non-union 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,
applicant 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. 1695-96, and when Adamson discussed
the possibility of employment at Mammoth with applicant Joe Brown, Adamson questioned
Brown about his willingness to work nonunion. Tr. 1916-17.
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 candidate for employment in part because Siemiaczko had stated
that if hired he would "make every effort to organize." Tr. 3054-55. 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.

9 Massey argues that these legal standards for parent company liability were not set forth in
the amended complaint. The amended complaint, 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 committed 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 interrelation 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. Brief of Respondent 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 practices has been fully litigated.
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
Cannelton/Dunn unit members to become employed at Mammoth.
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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 Community Impact Board (CIB) meeting, told the CIB that
Respondent Massey’s "philosophy" was one of "non-union," 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 interviewed 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 Mammoth 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
example, Blankenship was quoted as saying that "No operator in their right mind would go
union." At trial, Blankenship testified that he generally agreed with the statements that were
attributed 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,

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. 944-47, 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 testimony 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.
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when Blankenship first began working with a Massey company, its operations were 70 to 75
percent unionized. By 2005, Massey operations were 97 percent non-union 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 unionization 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 represented, Massey could be subject to additional
risk of work stoppages and higher labor costs, which could adversely affect the stability of
production and reduce the Company’s net income." GC Exh. 11(a) at page 22.
In multiple presentations to investors, Blankenship boasted that its operations were 97
percent union-free, and his enthusiasm 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 Respondents’ 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 Mammoth union-free. GC Exh. 8(o),
Interview Record by Jim Nottingham, 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 dismissed
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 directly 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
decisions to give preferences to trainees and transferees at Mammoth – decisions that limited
the opportunities for Cannelton/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 declined to retain the
predecessor’s bargaining unit miners, Massey was experiencing significant problems recruiting
experienced miners for its mining subsidiaries. In Massey publications, 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 "We’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 airplanes 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 representation, Massey’s difficulty hiring experienced miners
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extended 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 qualified 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 official
who had human resources responsibilities and was involved 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 staffing 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
experienced miners and must be mentored by experienced individuals. 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 profound problems
that Massey subsidiary mines face hiring miners 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 September 2004, and that the Respondents declined to
offer employment to the overwhelming majority of those union miners during subsequent hiring.
The Respondents did this despite the fact that, before assuming control of the operation, they
offered pre-takeover interviews and/or employment to the numerous nonunit individuals who
were working at Cannelton/Dunn operation 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 Respondents 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 co-worker
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 record shows that in 2005 and
2006 Mammoth was mining less efficiently, as measured by tons of coal produced per

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 included:
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.
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employee per day, than had been the case when the experienced Cannelton unit workforce 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
positions 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. 2506-11. 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 positions 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 problems 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 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 second 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
Cannelton 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 facility 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
received 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" machines that extracted the coal

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 complete 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, production was 23.40 tons of coal per employee per day.
17 In the record, the preparation plant operation is sometimes construed to include the river
loadout facility. These portions of the facility 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.”
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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 continuous 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 controls 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 included 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 operate 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 been as high as 113, but, since December 31, 1999, that number has been
reduced to between 7 and 12. During the period immediately before Mammoth took over Dunn,
the Dunn employees 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 "reclamation"
activities that were aimed at restoring the landscape to its condition prior to the surface mining
activity.
Cannelton and Dunn both signed memoranda of understanding 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 contradict 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 transportation 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 maintenance of gob piles and mine roads, and work of the
type customarily related to all of the above." GC Exh. 14(a) at page 3 (art. IA). The appendices
to the 2002 Agreement set forth job classifications for employees doing this covered work,
including, 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 machine operator; shovel and drag line oiler; groundman; mobile
equipment operator (strip mines and preparation plant); tipple attendant; utility man; stationary
equipment operator (including, inter alia, processing plan operator, loading point operator, river
loading equipment operator, river tipple operator, and tipple operator); tipple attendant; truck
driver, service; preparation plant utility man; surface utility man. Id. pages 316 to 335.
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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
Cannelton/Dunn operation became the property of the Massey organization. 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 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
Union 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 management 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 interruption through the
transition from Cannelton/Dunn to Mammoth. Similarly, the Respondents arranged pre-takeover
interviews 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
represented by the Union lost their jobs when the operation changed hands. Blankenship and
Gillenwater indicated in their testimonies that the objective was to have the Mammoth
management/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 pre-takeover interviews or employment.
Not only did the Respondents fail at that time to offer interviews or employment to any
of the over 200 union-represented incumbent employees, but the Respondents did not even
provide 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 difficult 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 assumed 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 applications available at Mammoth’s guard station, the record indicated 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, nondiscriminatory, explanation for the
Respondents’ decision to offer pre-takeover interviews and/or employment to the unrepresented
non-supervisory incumbents, at the same time that they declined to offer union-represented unit
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employees interviews, employment, or even information about applying. Nor did the company
witnesses offer a credible explanation for why, if the objective was to allow a Mammoth
management/supervisory team to hire its own rank-in-file employees, it was Short and a
Cannelton/Dunn superintendent, not Mammoth managers and supervisors, 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 Respondents offered pre-takeover
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 examined this contention in light of the testimony by Gillenwater that
Mammoth relies upon to support it. Tr. 2165-66. A review of that testimony indicates that
Gillenwater was explaining the decision to grant supervisors pre-takeover interviews and
employment, not a reason why unrepresented clerks, secretaries, 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 pre-takeover,
not that he had personal knowledge of either the request or the Respondents’ response to the
request. He did not disclose how he came to his "understanding" or identify any official of the
Respondents who made a decision to honor the request. Gillenwater’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 decided not to offer pre-takeover
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 pre-takeover
interviews and/or employment, and at the same time offer such opportunities to all the
managers, supervisors, secretaries, clerks, laboratory workers, and other nonunit incumbents.
Within a few weeks of when the union-represented Cannelton/Dunn employees lost their
employment, the Union initiated picketing outside the entrances to the employees’ former
workplace. 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 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

18 On one occasion, approximately 10 to 12 individuals – including the president of the
Union local (Willis), and the international president of the Union (Cecil Roberts) – were arrested
while engaging in a protest on a highway adjacent to Mammoth. At trial, counsel for
Respondent 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. 170-72. A review of the record evidence shows that
the Respondents 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 Respondents’ briefs.
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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 Mammoth; 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 efforts 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 Cannelton/Dunn. This hiring continued, with about 16 such
employees hired in January 2005; 26 hired in February 2005; and others hired in every month
through at least May of 2006. As of May 1, 2006, the Respondent had hired a total of
approximately 219 employees to perform the types of work that had previously 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 operation. 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 opportunity to bargain, regarding these changes in the terms and
conditions of employment.
Of the approximately 219 employees hired by the Respondents 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

19 A number of these applications were not submitted at the Mammoth 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.
20 Respondent Mammoth suggests that it did not hire more former Cannelton/Dunn unit
employees, in part, because the Union discouraged 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 president 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
Continued
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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 of 200622 because by that time the operation was "staffed up" and there was no need to
hire somebody who was not experienced. The Respondents also recruited a significant number
of miners by soliciting applications 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 Virginia. The production work that was
necessary was basically unchanged. As at Cannelton/Dunn, the Respondents had employees
at Mammoth who performed the work of continuous miner operators, shuttle car operators,
beltmen, electricians, brattice men,23 roof bolters, fire bosses, loadout operators, mechanics,
electricians, plant operators (at Mammoth called "control room operators"), and assistant plant
_________________________
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 Cannelton/Dunn employee, turned down a job because the president of the union local
(Willis) had told Moore that by going to work for Mammoth 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 discouraged former Cannelton/Dunn employees from working for
Mammoth, or that the Respondents would have hired significantly more Cannelton/Dunn
employees if not for the supposed interference.
21 These figures are based on General Counsel’s Exhibits 26(a)(1), 26(b)(1), and 26(c)(1),
the compilation charts included by Respondent Mammoth and the General Counsel in their
briefs, and the portions of the record underlying those compilations. See Brief of Respondent
Mammoth at pp. 20 to 31, and Brief of General Counsel 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.
23 Mammoth had employees who performed the brattice man functions, Tr. 2393, but
apparently no longer used “brattice man” as a job title, Tr.2802.
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operators (at Mammoth 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 customers, 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 operation 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" sections. 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 of 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. 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 Respondents 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 Cannelton/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 expected 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
Cannelton’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
bankruptcy 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
obligations under this Agreement." GC Exh. 14(a) at pages 1 to 2 (art. I). Prior to the Horizon

24 Case No. 02-14261, United States Bankruptcy Court for the Eastern District of Kentucky,
Ashland Division.
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sale, a number of the individual debtors, 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 successor liability under collective bargaining agreements and under the Coal Industry
Retiree Health Benefit Act of 1992." Respondent 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 hardship this decision
would cause employees, but, in weighing the equities of the situation, the judge reasoned that if
he did not authorize the sale "free and clear of . . . successor liability under 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 interruption." 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 September 24, 2004, at which time it surrendered control of
the operation to the Respondents.
IX. 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 employees
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 engaging in such activities.
As the new owner of Horizon’s Cannelton/Dunn operation, the Respondents were not
obligated to hire any of the predecessor’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 Local Joint Executive Board, 417 U.S. 249, 262 fn. 8 (1974); NLRB v. Burns Intl. Security
Services, 406 U.S. 272, 280-81 fn. 5 (1972); Planned Bldg. Services, 347 NLRB No. 64, slip op.
at 37(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 Bldg.
Services, supra, slip op. at 4, 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, Inc., 348 NLRB No. 11, slip op. at 2 (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 Bldg. Services, supra, slip
op. at 4. The Board rejected the idea that the General Counsel had to prove either that the
predecessors’ employees met the successor’s qualifications for hire, or that the successor was

25 The procedural history before the bankruptcy judge is also discussed in United Mine
Workers of America v. Midwest Coal Corp., 2005 Westlaw 1972592 (E. D. Ky.)
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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 Bldg. Services, if the General Counsel meets its burden of showing that
the employer failed to hire employees of its predecessor and was motivated by antiunion
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 Bldg. Services,
supra, slip op. at 4-5. The employer may attempt to establish 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 Respondents 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 employer would have relied on this reason alone.").
B. General Counsel’s Evidence of Discrimination
1. Failure to Hire Employees of Predecessor
In this case there is no question that the alleged discriminatees 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 predecessor’s unit employees using a spreadsheet that stated
the approximate "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’
security 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
evaluation of candidates for employment, knew which of the alleged discriminatees held office
with the Union and/or were members of the Union’s mine and safety committees at
Cannelton/Dunn.

26 In Planned Blg. 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 employees is alleged in a successorship avoidance context, and that the
elements 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 No. 18
(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 No. 118, slip op. at 1 (2007) (FES standard requiring
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.
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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 Respondents 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 Cannelton/Dunn
2. Antiunion Motivation
Direct evidence establishes the Respondents’ antiunion motivation in this case. The
testimony of Adamson, the superintendent 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
employment interviews – informing prospective employees that Mammoth was going to be a
nonunion mine and asking many to reveal whether they were willing work non-union. 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 Mammoth a union-free operation
might appear somewhat benign since, arguably, all those statements indicated was that
Mammoth was going to initially operate non-union, not that employees would be prevented from
later choosing union representation. 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 explained:
[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
majority of the predecessor’s employees. Therefore, when a successor 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 section
8(a)(1) when, like the Respondents here, they told applicants that the new company would be
nonunion. More recently, in W & M Properties of Connecticut, Inc., supra, slip op. at 3, 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 Respondents’ similar, but far more numerous, verbal
and written pronouncements 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
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when applicants Willis and Siemiaczko stated an intent to work to organize the Mammoth
workforce on behalf of the Union, those remarks were held against them in the hiring process.
In addition, when an 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 dismissed 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 according to the Respondent Mammoth would,
therefore, have participated in the hiring process by making recommendations about whether to
hire employees he had worked with at Cannelton/Dunn.
The Respondents also asked a number of the alleged discriminatees whether they
would cross the picket lines. In Planned Bldg. Services, antiunion motivation for a successor’s
refusal to hire its predecessor’s employees was demonstrated, in part, by the evidence that the
new owner asked an incumbent employee if he would cross an expected picket line. 347 NLRB
No. 64, slip op. at 5 and 38. As noted there, an employee’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 Bldg. Services, supra, slip op. at 38; see
also Fremont Ford, 289 NLRB at 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 existing picket line. 268 NLRB 1483, 1503 (1984), affd. in relevant part 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 spreadsheet 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 Cannelton/Dunn unit employees –
prior work location, seniority date, job title and age. The Respondents have failed to establish
any plausible, non-discriminatory, reason for noting each applicant’s years in the union among
the few bits of information deemed significant enough to include on the spreadsheet that was
used to monitor the interview/hiring status of the former Cannelton/Dunn unit employees.
The above direct evidence is more than adequate to satisfy the General Counsel’s
burden of showing that antiunion motivation played a part in the Respondents’ refusal to hire the
Union-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 statements. 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 income. 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 Mammoth, the evidence does show that Blankenship and Respondent 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 General Counsel alleges were
unlawful. Other Massey officials – for example, Short (Massey senior vice president for
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operations) 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 Respondent 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 preferences to trainee miners and transferees – that led to the
Cannelton/Dunn unit employees being refused employment were dictated 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 employee 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
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 Respondents’ 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 Respondents’ antiunion motive. It was not necessary for the
Respondents to deny employment at Mammoth to all of the Cannelton/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

27 The Respondents assert that Blankenship’s antiunion statements cannot be considered in
this case because those statements are protected by Section 8(c) of the Act. I note, at the
outset, that the other direct evidence of antiunion animus, standing alone, is sufficient to meet
the General Counsel’s initial burden. At any rate, the Respondents’ broad reading of Section
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) (employer
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) (Section 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 animus.”).
28 Based on my review of the record evidence, I conclude that four of these ten individuals
never refused job offers or further consideration. Those four are Tilman Cole, Rodney Leake,
Gregory Moore, and Donald 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.
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employees, but stopping short of allowing those employees to constitute a majority of the new
workforce. For example, in MSK Cargo/King Express, 348 NLRB No. 73 (2006), the Board
affirmed the administrative law judge’s conclusion that the successor employer had refused to
hire nine of the predecessor’s employees in order to avoid a successor collective-bargaining
obligation, even though the successor employer included eight of the predecessor’s employees
among the 21 employees it hired. Similarly, in Daufuskie Island Club & Resort, 328 NLRB 415
(1999), enfd. 221 F.3d 196 (D.C. Cir. 2000) (Table), the Board found that an employer who had
purposely hired 48.5 percent of the predecessor’s employees had violated the Act. In the
instant case, the Respondents, 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 Cannelton/Dunn, or that a successor bargaining obligation would be triggered by such a
majority. Moreover, by refusing employment to the Cannelton/Dunn employees, such as Willis
and Siemiaczko, because those individuals intended to spearhead a union organizing effort at
Mammoth, the Respondents dramatically reduced the likelihood that the former Cannelton/Dunn
employees on its workforce would elect to create a new bargaining 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 Bldg. 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 Workforce
In the most general terms, Mammoth’s defense is that it denied employment to former
unit employees of Cannelton/Dunn because it was seeking the most qualified possible
workforce. Mammoth offers an array of reasons for finding alleged discriminatees insufficiently
qualified, and I will discuss those reasons below. Putting aside specific explanations for
Massey/Mammoth’s individual post-takeover 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 mining
positions they filled, one would think they would have recruited from among the experienced
Cannelton/Dunn employees 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 Cannelton/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-represented 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 members to employment opportunities post-takeover. 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
continued employment. After taking over the operation, Massey placed help-wanted
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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 available 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 Union-provided copies of applications from other
Massey subsidiaries. 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
employees 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 experienced 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
workforce.
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 employees 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 Respondents’
relied too heavily on trainees. During the period that the Respondents were using a large
number of trainees at the facility, they failed to meet Mammoth’s overall production goal, and
saw Mammoth’s per-employee productivity drop significantly from the levels that had been
achieved at Cannelton/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 constitute 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. Supp. 924,
931 (M.D. Ala. 1989); see also Planned Bldg. Services, 347 NLRB No. 64, slip op. at 46 (the
fact that a putative policy is unwritten, and not strictly adhered to, lends support to a finding that
it is pretextual); Kentucky General, Inc. 334 NLRB 154, 161 (2001) (policy on which union
applicants were rejected is pretextual 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 the unwritten trainee/red hat

29 As is discussed through the course of this decision, the Respondents repeatedly failed to
introduce documents demonstrating the existence of purported personnel policies that
Mammoth argues account for the refusal to employ the former Cannelton/Dunn employees. On
several 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,
Continued
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preference was intermittently, rather than strictly, applied at Massey subsidiaries. Clock Electric,
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 location 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 supervisor 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 discriminatees because supervisors
who had worked with those applicants at Cannelton/Dunn gave them negative
recommendations. Brief of Respondent at 61-65. 30 Although Mammoth titles this argument
"Negative recommendations from former Cannelton supervisors," it only discusses the
assessments made by one such supervisor, Rutherford. Mammoth claims that it relied on the
recommendations from Cannelton/Dunn supervisors who became 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 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, 2816-17, 2820. In instances where Rutherford made specific negative
assertions about particular Cannelton/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 problems he now said disqualified them for work at Mammoth. Tr. 2832,
2834-35. Mammoth’s contention is weakened further by Rutherford’s demeanor as a witness.
_________________________
much less showing that they accounted for the challenged hiring decisions. Given the size of
the Massey enterprise, it would be surprising if such personnel policies had been established,
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,
Ralph Wilson.
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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 record 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 recommendations to the
Respondents’ officials in any way,32 and the Respondents 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 discriminate 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’ antiunion motivation, would have caused the alleged discriminatees to be denied
employment.
Mammoth also contends that a number of applicants were rejected 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, considered Wright an
"everyday worker, hard worker" and a "good man" who was "equivalent" to those hired. Tr.
2963. Similarly, although Mammoth asserts that alleged discriminatee Bobby Preast was
eliminated by the interview process, the record 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

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, 2820-21. 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. 2825-26, 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, 2825-26. 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. 2802-03. In addition,
as alluded to earlier, Rutherford claimed that a number of the rejected Cannelton/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.
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.
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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
Mammoth’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 applicants who were offered employment. Brief of Respondent Mammoth at 69.
Even more telling is the direct evidence that the Respondents’ 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 Cannelton/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 officials 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, explicitly set forth each individual’s approximate "union
time." The Respondents have not shown that this union-related information had any lawful
relevance to the evaluation of a candidate’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" workforce given that the majority of the former unit members had extensive
experience as miners and that Massey was having serious problems recruiting enough
experienced miners. Moreover, the small percentage of unit members who were hired is
particularly telling when considered in light of the evidence, discussed above, of: the
Respondents’ 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 employees
information about applying at Mammoth; the fact that Mammoth officials admitted that they
evaluated certain Cannelton/Dunn unit members poorly because those individuals intended to
support the Union if hired; and, the Respondents’ failure to hire applicants who had been part of
the Cannelton/Dunn bargaining unit even when those applicants were evaluated as highly as
nonunit applicants who were hired.

34 Hall, who had not worked with Preast, recommended against giving 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).
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 workforce explains the rejection of the Cannelton/Dunn unit employees, but also
constitutes additional evidence that antiunion motivation 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 Bldg. Services, 347 NLRB No. 64, slip op. at 4, quoting
U.S. Marine Corp., 293 NLRB 669 (1980) (“’[I]nconsistent hiring practices’” are among factors
“that would establish that a new owner violated Section 8(a)(3) by refusing to hire the
employees of the predecessor.”).
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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 corporate-wide Massey policy of giving a
preference 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 Bldg.
Services, supra, slip op. at 39, 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 successor with the problem of having to replace those workers
at the facility that they came from. The Planned Bldg. 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 transferees from other Massey mines could negatively impact the
transferring mines because they would have to replace the employees sent to Mammoth. The
Respondents took this extreme measure to find staff for Mammoth, even while offering positions
to only 10 to 14 percent of the experienced union miners of its predecessor.
The Respondents do not address the discussion in Planned Bldg. Services regarding a
successors’ reliance on transferred 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 another applicant over a specific alleged discriminatee. As discussed above, the Board
has repeatedly recognized that unwritten policies are a ready means of discrimination and are
suspect. Planned Bldg. Services, supra; Kentucky General, Inc. supra; Clock Electric,
Inc. supra; Sioux City Foundry, supra; Dunning v. National Indus., 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 reasonably 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. Brief of Respondent Mammoth at page 19 and footnote
12.36 None of the witnesses 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

36 Mammoth cites to Gillenwater’s testimony at page 2147 of the transcript 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.
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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 conflicted with other evidence. Witnesses stated, for example,
that employees had to volunteer for the transfer to Mammoth by placing their names on sign-up
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
Respondents cite no evidence showing that particular, identified, transferees 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 appears that, however it operated, it did not serve the purpose of
minimizing the commutes of the Mammoth workforce. The evidence showed that the
transferees and other non-union persons the Respondents hired to work at Mammoth lived, on
average, 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-
23; Charging Party’s Exhibits 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 Respondents 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 Bldg. Services, and in view of the
evidence discussed above, I conclude 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 motivation.
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
requirements existed, were applied discriminatorily. While the Respondents’ officials required
the unit members from Cannelton/Dunn to file applications before contacting those individuals
about potential employment at Mammoth, the Respondents’ officials imposed no such
requirement on many other individuals. For example, the Respondents’ officials required no
application before scheduling employment interviews for the nonunit/nonunion incumbents at
Cannelton/Dunn. The Respondents could have recruited and retained the unit/union
incumbents in the same manner -- i.e., without awaiting applications -- 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 Respondents. Charles McCutcheon and Michael Upton – two nonunit
individuals – were hired at Mammoth even though the Respondents do not have applications
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from them and there was no testimony that those employees had ever filed applications.37 The
Respondents’ officials did require most prospective employees to fill out applications at some
point in the process, but, except in the cases of the unit employees from Cannelton/Dunn, the
Respondents’ officials demonstrated a willingness 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 Respondents 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
refused employment because they had not submitted applications. In its brief, Mammoth
argues that the following nine 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 interviewed 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
previously 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 applications, 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 completed
application to Adamson (Mammoth’s plant superintendent). Tr. 1912, 1914-15. Similarly, Dolin
testified that after personnel at the Massey Coal Services office in Charleston (Kanawha City)
refused to accept his application, he submitted an application at the Mammoth guard shack.
Tr.1021-25. Fair testified that he submitted applications at two different Massey job fairs in

37 The Respondents’ personnel records contain resumes from these employees, but not
application forms.
38 See GC Exh. 8(c) (interview reports for Norman Brown); Tr. 1987-80 (Jimmie Johnson
testifies about discussing employment at Mammoth during interviews with officials of other
Massey subsidiaries); Tr. 2603-04 (Doss testifies about discussion with Danny Legg about
employment at Mammoth).
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West Virginia. Tr. 677-80. Huddleston 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. 2000-02, 2008, 2015.
Robert Nickoson testified that he submitted an application 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 department at Mammoth. Tr.
1375-80, 2960-62. 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. 1359-61.
In some instances, the recollections of these six individuals were somewhat vague or confused.
However, their testimony about submitting applications still outweighs the countervailing
testimony of Bane, who, as discussed above, had no personal knowledge about whether the six
individuals submitted applications prior to November 2005.
Respondent Mammoth claims that some alleged discriminatees who filed applications
were not hired because their applications 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 employment 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 identifying alleged discriminatees who they declined to hire because
of application omissions, and the Respondents’ posthearing briefs do not specify which
individuals supposedly were rejected on this basis. More importantly, Respondent Mammoth’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. 2221-22.39 The applications of non-Cannelton/Dunn individuals who the
Respondents did hire include many applications with significant omissions. See, generally, GC
Exh. 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 employment before receiving any applications at
all from those individuals, and hired some for whom the Respondents apparently do not have
any applications at all.
Mammoth also contends that employment was refused to alleged discriminatees Joseph
Brown, Kenneth Dolin, and Clarence Huddleston, because those individuals filed their
applications at the wrong location and that others were rejected because their applications had
not been updated. Both of these contentions are suspect in light of the evidence that the
Respondents contacted numerous individuals who had not submitted applications – updated or
otherwise. At any rate, neither of these defenses is factually supported. Regarding the
contention that alleged discriminatees were rejected because they filed applications at the
wrong location, the testimony of the Respondents’ 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

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 omitted information from their applications for
fraudulent reasons.
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applicants." Chandler further stated that if she received resumes that were filed at another
Massey subsidiary, but expressed interest in working at Mammoth, those resumes would be
forwarded to Mammoth. Tr.1654, 2560-61. The Respondents did not present other evidence
rebutting Chandler’s description of the Respondents’ application-sharing practice.
The evidence did show that Joseph Brown, Dolin and Huddleston 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 herself an employee of Massey Coal
Services. Given that the Respondents did not inform the former unit employees from
Cannelton/Dunn how to apply for work at Mammoth, they cannot fairly fault those individuals for
applying at Massey Coal Services, 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 personnel 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 rejected 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.
Moreover, the claim that Cannelton/Dunn employees disqualified themselves by failing to
update their applications is disingenuous 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 machine 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 discriminatees were rejected pursuant to it. The Respondents do not
reference any documentary evidence mentioning the existence of the policy, explaining how the
policy operates, or discussing 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 Bldg. Services, supra; Kentucky General, Inc., supra; Clock Electric, supra; Sioux City
Foundry, supra; Dunning v. National Indus., 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 Cannelton/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 November 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
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period prior to his arrival. He did not even state how he learned about the Respondents’
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 current.
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 indicated, 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 evidence also shows that the Respondents
interviewed a number 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 Respondents 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 revealed to the union applicants further supports the conclusion that the policy
was pretextual. See Beacon Electric, 350 NLRB No. 26, slip op. at 6. (2007) (employer’s claim
that it refused consideration/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 Bldg. Services, supra. In that case, the successor employer argued that it
had denied consideration to its predecessor’s unionized employees pursuant to a policy of
contacting only those individuals who followed up their applications by continuing to call to
express interest. 347 NLRB No. 64, slip op. at 41. 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 employees to apply for jobs,
who had not even filed applications, and still did not use the applications of fully qualified
experienced [predecessor] employees that [the employer] had sitting in its main office." Id.
Similarly, in the instant case the evidence showed that the Respondents’ officials allowed the
applications of experienced Cannelton/Dunn employees to languish in Mammoth’s offices, even
while those officials: contacted individuals who had not updated their applications; hired many
inexperienced employees; failed to inform the Cannelton/Dunn employees that they needed to
update on their applications; and failed to return the messages of alleged discriminatees who
attempted to follow-up 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

40 At the trial, Bane initially made a general statement that some of the former
Cannelton/Dunn employees he recruited might have contacted him first. However, when he
discussed those employees individually, 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. 2739-41.
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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 Bldg. Services, distinguishes the Vantage Petroleum
holding on precisely that basis. Planned Blg. Services, supra, slip op. at 45 fn. 69 (unlike the
employees rejected by Planned Bldg. Services, the employees rejected in Vantage Petroleum
"were advised by [Vantage Petroleum] before it made its hiring decision, that they could file
applications"); see also Vantage Petroleum, 247 NLRB at 1494. The Respondents not only
failed to advise the Cannelton/Dunn unit employees that they could file applications for work at
Mammoth, 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]."), enforcement
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 updated their applications by May 2005 were no longer
interested in employment, that claim is not credible. Not only did many of these individuals
leave follow-up phone messages for company officials, but in June 2005 the Union filed charges
identifying all but one of the 85 alleged discriminatees and challenging the decision not to hire
those individuals. GC Exh. 1(a) and 1(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 Respondents have failed to show
that, absent their antiunion motivation, they would refused to hire the alleged discriminatees
because 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 education 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 introduced 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
applicants43 and there was no evidence that she knew why the Respondents’ officials actually

41 Later, in August 2005, the Respondents placed a help wanted advertisement 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
Continued
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decided not to hire any of the alleged 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.
The Respondents point to no evidence showing that the officials who actually helped select
Mammoth’s employees rejected 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’ possession indicated that at least
three of the individuals identified by Mammoth as failing to meet the purported educational
requirement 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. Mammoth’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 education 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 frequently 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 completed 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 employment to an applicant who it now
claims did not meet the educational requirement. Brief of Respondent Mammoth at 60 fn. 25.
Similarly, David Lane testified that Doss offered him a job during the interview, even though
Lane had revealed that he had neither a high school diploma nor a GED. Tr.1281-82, 3480-81;
GC Exh. 8(l). The lack of documentation for the supposed waivers and the evidence that the
Respondents inconsistently applied the purported waiver requirement further supports the
conclusion that the educational policy is an after-the-fact rationalization. See Planned Bldg.
Services, 347 NLRB slip op. at 46 ; Clock Electric, 323 NLRB at 1232.
For the reasons discussed above, I conclude that the Respondents’ purported policy
requiring hirees to have a high school education or a GED is pretextual, and that, absent
_________________________
matters, and disability claims.
44 See GC Exhs. 6d, 6m, 6t, 6u, 6w, 6kk, 6nn, 6qq, 6ss, 6uu, 6xx, 6yy, 6bbb. 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.
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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 Mammoth. The record shows that’s Bennett’s application listed experience in
a variety of contexts at Cannelton/Dunn, both underground (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 possessed 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 company 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
asserted 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 Respondents filled so many of the above-ground positions before they
afforded Bennett and other employees of the predecessor consideration for those positions.
Based on the above, I find that the claim that Bennett was rejected because the position
he applied for did not exist at Mammoth, is pretextual, and would not have caused the
Respondents to deny employment to him, absent antiunion animus.
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 control of the operation.
The alleged discriminatees who Mammoth claims disavowed an interest in employment are
Tilman Cole, Dewey Dorsey, Thomas Dunn, Robert Edwards, Rodney Leake, Danny Legg,
Gregory Moore, Michael Rosenbaum, Lawson Shaffer, and Donald Stevens.45

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.
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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 Cannelton, 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 employment 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. Subsequently, 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 examination 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 employment 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 relies 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 conclude that
Cole’s testimony that the Respondents did not offer him a job, was more credible than
Adamson’s contrary testimony. 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 account of the interview. He did not recount
the specifics of what was said, and was unsure who actually extended the supposed job offer to
Cole. Moreover, Adamson did not deny Cole’s credible testimony that, during the month after
the interview, Cole contacted him on three occasions to check his status in the hiring process,
but that in each instance Adamson answered 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 offered, 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,
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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 record 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 refreshed 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. 2591-92. 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 employment pursuant to the
existing terms and conditions of employment as set forth in the collective bargaining agreement.
Tr. 1780-83. 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 applicants who insisted on employment under the
predecessor’s 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 No. 16, slip op. at 14 (2006), quoting NLRB v. Burns
Security Services, 406 U.S. at 294. However, the Board has held that, under certain
circumstances, a successor forfeits that privilege. Those circumstances include when either: (1)
the successor "informs the predecessor’s employees that it will operate the successor business
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 Bldg. Services, 347 NLRB No. 64, slip op. at 5, 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
process the Respondents’ officials told a number of the predecessor’s employees that
Mammoth would be a nonunion operation. In Advanced Stretchforming, Intl., 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:

46 Under Federal Rule of Evidence 803(6) a writing does not meet the business record
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.
47 For reasons discussed elsewhere in this decision, I also conclude that Mammoth was the
legal successor to Cannelton/Dunn.
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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 unlawful
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 Intl. Inc., 323 NLRB 529, 530-31 (1997), enfd. in relevant part 233
F.3d 1176 (9th Cir. 2000), cert. denied, 534 U.S. 948 (2001), quoting State Distributing, 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 bargaining obligation by discriminatorily refusing to hire the
employees of the predecessor, the Board will assume that the employer would have hired
employees of its predecessor to fill all unit positions if not for the discrimination. Planned Bldg.
Services, supra, slip op. at 5, citing Love’s Barbeque Restaurant No. 62, 245 NLRB 78.48 The
Board recently explained that "[a]lthough it cannot be said with certainty whether the successor
would have retained all of the predecessor employees if it had not engaged in discrimination,
the Board resolves the uncertainty against the wrongdoer and finds that, but for the
discriminatory motive, the successor employer would have employed the predecessor
employees in its unit positions." Planned Bldg Services, supra, slip op. at 5. As I find below, the
Respondents discriminated against the predecessor’s unit employees and therefore I must
assume that, but for the discrimination, the Respondents would have filled all of its unit positions
with employees of the predecessor. Under Love’s Barbecue, 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 bargaining. See Planned Bldg. 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
employment pending bargaining, Dunn’s failure to participate further in the process does not
constitute a legitimate, nondiscriminatory, 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 operation. During the last two 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

48 The Respondents have not challenged the validity of the Love’s Barbecue doctrine.
49 Mammoth has argued that it employs a smaller, leaner, workforce 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 employees.’” Planned Bldg. Services, supra, slip op. at 5
fn.17 (emphasis in original), quoting Galloway School Lines, Inc., 321 NLRB 1422, 1427 (1996).
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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 contradicted Rutherford’s account, stating that at the interview he told the Respondents
that he was applying for the underground electrician 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 an underground electrician position, but was only interested in a plant job, is
contradicted by the "interview record" form completed 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 position. 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 Respondents 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 recommendations
are pretextual. 51 I reach the same conclusion regarding Mammoth’s claim that Edwards
refused to be interviewed. The Board has held that when, as here, 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. Inter-Disciplinary
Advantage, Inc., 349 NLRB No. 49, slip op. at 27 (2007), citing 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 evidence. 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

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.
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.
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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 machine/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 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 Edwards’ 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. Brief of Respondent Mammoth at Page 70.
Mammoth does not say where in Doss’ notes this representation supposedly appears.
Moreover, Doss admitted that his notes did not necessarily record every contact, Tr. 2672, and
thus a failure of those notes to report Edwards’ subsequent requests to be interviewed 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 page 4. In its post-hearing 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
electrician. 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 "what job do you have open?"
Burke said "whatever 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, "then 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 application, but Leake was still not
contacted.
To support its claim that Leake rejected an offer of employment, 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 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
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something about going underground," 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 expressed a willingness to work in an underground capacity is
corroborated by his application, which specifically lists underground electrician as one of the
jobs he was seeking.
The Respondent also relies on Adamson’s testimony regarding 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, however, 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 approximately 10 years and lost his
job there when the Respondents 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 Cannelton 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. 3587-88. 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
For reasons discussed earlier, I consider Doss’ uncorroborated notes to be entitled to
very little weight regarding disputed 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 employment at Mammoth. I considered Legg a somewhat less than
forthcoming witness. For example, Legg initially testified that he had not had problems with his

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. Brief of Respondent Mammoth at p. 57 fn. 21 and p. 68.
Mammoth’s assertion is contradicted by Legg’s testimony that he was not contacted by the
Respondents about a job, much less hired. Tr. 1221. I credit Legg’s testimony on this score.
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job or supervisors at Cannelton/Dunn, and only after some prodding stated that Farrell had
attempted to discharge him. See Tr.1214 and Tr. 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
preparation 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 contacted 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 corroborated 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 recommended G. Moore for hire, none of the other interviewers’ notes report such
a recommendation. Nottingham gave G. Moore no rating and specifically recommended against
interviewing 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
buttressed by that of James Fitzwater. Fitzwater had recommended G. Moore to Adamson and,
after the interview, Fitzwater 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 uncontradicted, and credible, testimony that
he does not use that coverage 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 uncontradicted, 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 Respondents have failed to show
that G. Moore rejected an offer of employment at Mammoth.
Michael Rosenbaum: Rosenbaum began working at Cannelton/Dunn in 1976. His
employment there ended when the Respondents 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
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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 Respondents. At that time Rosenbaum received a call from
Chandler, who had assumed responsibility for Mammoth’s human resources 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 pre-employment 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
telephoned Chandler but was not able to reach her. On five occasions he left phone messages
for Chandler stating that he 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 disability
benefits. She testified that Rosenbaum said he was unable 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 offer 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
interview occurred months before Rosenbaum had received or even applied for disability
benefits. Rosenbaum credibly testified 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 precluded him from qualifying for such benefits if they had not already
been granted. See 20 C.F.R. Section 404.1520(b) (An individual who is engaging in substantial
gainful activity will not be found to be disabled regardless of medical findings.) Moreover,
Rosenbaum’s testimony provides reason to believe that his eventual disability was the result, at
least in part, of psychological difficulties stemming from his inability to obtain employment after
the Respondents took over the Cannelton/Dunn facility.
At any rate, Chandler did not contradict Rosenbaum’s credible testimony that, following
their phone conversation, Rosenbaum repeatedly left phone messages for her stating that he

55 Chandler had human resources responsibilities at Mammoth during two periods. The
first period was from September 2004 until December 17, 2004. The second was from August
2005 until late October 2005.
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wanted to interview for a job at Mammoth. Nor did Chandler 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 Rosenbaum 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 benefits -- 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 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
interested in a job interview with Mammoth at that operation. Shaffer replied "no." Shaffer
credibly testified that the reason 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 precluded him from qualifying for disability benefits that had not
already been granted. See 20 C.F.R. Section 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. Stevens was not hired because his
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qualifications were not sufficiently impressive. GC Exh. 12(c) at p. 4; GC Exh. 17(eee). Now,
in its post-trial 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 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. I conclude that such an inference is
warranted regarding Mammoth’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. 1401-05, 3157-58. D. Stevens
testified that the interviewers told him about the benefits being offered and he responded that
those "sounded good." At the end of the interview 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. Moreover, 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. Stevens 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 unreliable witness. I am
particularly unwilling to credit Rutherford’s testimony in this instance since none of the other
three interviewers (Doss, Hall, Nottingham) corroborated his testimony about D. Stevens.
Moreover, his testimony is inconsistent with the interview records created by the other
interviewers. In conclusion, I found the evidence that D. Stevens did not reject a job offer far
more compelling than Rutherford’s contrary testimony.
For the reasons discussed above, I reject Mammoth’s contention 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 alleged 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 regarding 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 Bldg. 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

56 These 21 alleged discriminatees are: Roger Bowles, Michael Cordle, Terry Cottrell,
Continued
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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 neglected to record his attempted contact. The better course is to apply the same
standard to both situations; I draw no inference 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 individuals, 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 response 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 testimony that it was the Respondents who failed to contact or respond
to them, not they who failed to respond to the Respondent.59 Virtually all of these individuals
testified that they provided 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 case of the final one these individuals,
_________________________
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.
57 At any rate, in many instances the sworn testimony of these individuals contradicts the
assertion that they were contacted by Doss but did not respond. See, e.g., Tr. 995-96 (Cottrell);
Tr. 802-03 (Elkins); Tr. 3798-99 (Kauff); Tr. 395-96 (Ryan); Tr. 617-18 (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, Ralph Wilson
59 See Tr. 1732 (Cline), Tr. 1425-27 (Edwards), Tr. 1792 (Flint), Tr. 1870-72 (Holcomb),
Tr. 1941-43 (Hughes), Tr. 3574-75 (Justice), Tr. 779 (Kidd), Tr. 1812-13 (Moschino), Tr. 454-
55, 466-67 (Payne), Tr. 706-08 (Preast), Tr. 846-47 (G. Roat), Tr. 503-04 (S. Roat), Tr. 1456-
57 (Styers), 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. Brief of Respondent 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. Brief of Respondent Mammoth at 60 and 70; GC Exh. 12(c)
at page 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 requirement and has also contended that he was
rejected because he received a negative recommendation from Rutherford. Brief of
Respondent 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 recommendation from Rutherford,
Id. at 64, and he sent a letter about Massey permits to the West Virginia Department of
Continued
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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 Respondents have failed to meet
their burden of showing that, absent discrimination, they would have failed to hire alleged
discriminatees because those individuals did not respond to contacts from Doss, or did not
provide adequate contact information.
8. Pre-Employment Physical
Mammoth states that it did not hire one of the alleged discriminatees, 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 physical 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
monoxide level was 4.4 percent, and that the normal range is 0.0 to 1.9 percent. The evidence
does not show any subsequent company 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 employee 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, 3473-75. This evidence fails to meet the Respondents’ burden for a
number 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 individual 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.
Second, Carr’s responsibilities do not extend to selecting employees. 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
_________________________
Environmental Protection, Id. at 73. During the investigation of Styers’ Human Rights
Commission complaint, Mammoth asserted that Styers was not considered because he had
failed to submit an application. GC Exh. 17(fff). The documentary evidence introduced at trial
disproved the claim that Styers did not submit an application, see GC Exh. 4(kkk), GC Exh. 79,
so now Mammoth argues that it received the application and tried to contact 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. Brief of Respondent 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.
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the officials who actually decided not to hire Armstrong considered the carbon monoxide 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 Respondents 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 Bldg. Services, supra; Kentucky General, Inc.
supra; Clock Electric., Inc. supra; Sioux City Foundry, supra; Dunning v. National Indus., supra.
For the reasons discussed above, I conclude that the Respondents 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 Protection (the DEP) to conduct public hearings regarding a
proposed change in the status of permits for Jack’s Branch Coal Company -- 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 intended 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 individuals 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
participation in state environmental permit proceedings was protected 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 employees 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 uninterrupted when the Respondents took over the
Cannelton/Dunn operation. Therefore, the letter does not explain the Respondents’ 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 resources official was told who had
signed the letter, the Respondents 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 record revealed only scant, and rather vague, reference to the DEP letter. Hughart
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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 decisions. 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, Gillenwater told him about the DEP
letter and identified unit employees 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 Company, and I felt like these guys were trying to shut us down." However,
Doss did not reveal how, if at all, he used that information, and he never claimed that it was the
reason why the Respondents refused employment to any of the applicants who signed the
letter. Tr. 2718-20. Thus even assuming that the DEP letter hypothetically could constitute a
legitimate reason 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 reason" 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 Respondents 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
matter, 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 rationalization.

61 Doss indicated that he never saw the DEP letter itself, but rather relied on Gillenwater’s
statements regarding who had signed it. Although 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.
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For the reasons discussed above, I conclude that the Respondents have failed to meet
their burden of showing that any of the alleged discriminatees would have been refused
employment, even absent antiunion animus, because those individuals signed the DEP letter.
10. William Willis and Dwight Siemiaczko
At trial and in the post-trial briefs, the parties focused particularly extensive attention on
the Respondents’ rejection of two of the alleged discriminatees – 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 international 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 operator. 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 laborer. 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 Cannelton/Dunn, Willis was the
president of the Union local there. He was also a particularly active and visible participant in
union activities that occurred around the time that Massey acquired 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 Cannelton/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 responded 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
interview, Willis also stated that, if hired, he "would do everything [he] could to make sure we
were represented by the Union." Tr. 148-50
The Respondents did not offer employment to Willis. In its response during the Board’s
investigation of this matter, Mammoth provided no reason for the decision not to employ Willis.
GC Exh. 12(c). However, in its post-trial brief, Mammoth offers a variety of explanations for the
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decision. Mammoth states that Willis was rejected because: (1) he signed the January 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 understanding 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
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. Brief of Respondent 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. 2502-03, 2506.
Adamson attempted to justify disqualifying Willis on the basis 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 antiunion hiring discrimination. If it did,
employers who discriminated 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 recommendation 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 improperly load barges. Willis denied both
allegations. As discussed 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 extent 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

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 represented 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).
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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. Union"); GC Exh. 8(g) (Dorsey: "will work non union"); GC Exh. 8(q) (Rader: "will work non
union); GC Exh. 8(u) (Vanmeter: "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 regard 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 Cannelton/Dunn ended at 3 pm, and that
the class he taught did not begin until 6 pm. 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 criticism 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 Cannelton/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
performance. To the extent that such mishaps did occur, he stated that those incidents were
unavoidable and happened to everyone who loaded barges due to the way the loading belts
operated and the poor condition of some barges. Records introduced 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 Respondents took over
the facility. Mammoth Exh. 87. The allegation 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 interviewers also fail to mention the
alleged performance problems that Adamson now says affected his evaluation of Willis’
application. 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 testimony that these problems had ceased once Willis was replaced.
According to B. McKnight, his crane company had been called to Mammoth to remedy
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misloaded barges on approximately 5 occasions during the approximately 2 1/2 years between
when 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 "When 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 loadout operator position, not a position
operating the plant, knowledge 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 cyclones." Tr.
3052-53.
The record evidence rebuts Mammoth’s contention that Willis was rejected for failing to
demonstrate adequate knowledge 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 operated to be a prerequisite for employment at the preparation plant itself,

63 Faced with B. McKnight’s testimony, Mammoth attempts to revise 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 Cannelton/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 (Cannelton/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) (adverse
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 co-
worker. 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 comparisons 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 operator, than during the period
from late 2004 to early 2007 when new employees were doing the job.
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much less to employment at the loadout facility. James Crist, the nonunit/nonunion individual
who the Respondents hired for the assistant plant operator position (at Mammoth known as
"floor operator," Tr. 1629), had no prior experience at all with the operation of the preparation
plant. Indeed, 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 laboratory 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 contrast, Willis had many years of
experience both as loadout operator and filling-in for the plant operator. Moreover, it is
uncontradicted 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 loadout operator belies any suggestion that Willis was rejected
because 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 positions 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 relevant to employment
underground in the mine. Thus, the Respondents’ 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 explanation is particularly glaring given the fact that three underground
supervisors – Hall, Nottingham, and Rutherford – were among Willis’ interviewers. Thus, at the
interview, the Respondents were in a position to consider Willis’ application for an underground
position.
To put it bluntly, the Respondents’ nondiscriminatory explanations 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 shifting, inadequate, and demonstrably false
reasons for that decision. This in the face not only of generalized evidence of antiunion animus,
but of Adamson’s specific admission that Willis’ intent to engage in organizational activities was
one of the reasons that Willis was not recommended for hire.
I conclude that the Respondents’ nondiscriminatory explanations for refusing
employment to Willis are pretextual, and would not have caused the Respondents to reject him
in the absence of the antiunion motivation.
Dwight Siemiaczko: Siemiaczko first began working at Cannelton/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
Cannelton/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 active 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.
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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
December 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 Cannelton/Dunn operation. On October 25, 2005, Siemiaczko was
interviewed by six individuals, including Hughart, Hall, Chandler, and Larry Ward (vice-president
at Mammoth). Siemiaczko told the interviewers that he preferred the positions of fireboss 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 interviewers 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, Siemiaczko was called in for
an interview subsequent to the Respondents’ 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 because 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 already hired approximately
165 individuals to perform the work of the Cannelton/Dunn bargaining unit employees. The
Respondents’ complaints about Siemiaczko’s performance during the interview obviously
cannot provide a defense to the Respondents’ 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 excluded 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 antiunion animus. When explaining how Siemiaczko made a bad impression,
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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. 3054-55.
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 unionized, 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 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. 3054-55. 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
human 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 expressed a willingness to work in multiple positions.65

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 suggestion 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).
65 The evidence showed that, while awaiting his interview, Siemiaczko had been attempting
to repair a cassette recorder and that he had that visibly inoperative device with him during the
interview. Mammoth now argues that this is evidence of the supposed attitude problem that led
Hughart to reject Siemiaczko. This argument is directly contradicted 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 cassette
recorder in their interview reports regarding Siemiaczko.
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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 pro-union attitude. Indeed, in
Hughart’s report on Siemiaczko’s interview, his only comment 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. 3078-79. The record suggests
that the long unemployed Siemiaczko was, in fact, an eager and accommodating 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 interview.
11. Conclusion Regarding Hiring
The evidence establishes that since December 3, 2004, the Respondents
discriminatorily denied employment to the predecessor’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 workforce that would
elect to create a new bargaining obligation, and discourage union activity. Mammoth 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 Bldg. 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 discriminatorily refused to hire the unit employees.66

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 discriminatees 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, Fred Wright.
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X. Section 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
employees. 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
bargaining 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 business as the predecessor employer, and (2) whether a
majority of the new employer’s work force in an appropriate unit are former employees of the
predecessor employer. Fall River Dyeing and Finishing Corp. v. NLRB, 482 U.S. 27 (1987);
NLRB v. Burns Intl. Security Services, 406 U.S. at 279-81; New Concept Solutions, LLC, 349
NLRB No. 106, slip op. at 22 (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 essentially the same business
as Cannelton/Dunn, the evidence is clear that it did. When the Respondents took over the
operation, Mammoth continued Cannelton/Dunn’s business of mining 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 position designated
"brattice man"), roof bolters, fire bosses, loadout 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 Cannelton/Dunn and Mammoth, and Chandler, who was Mammoth’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
produced 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

67In Sierra Realty Corp., the Board stated that to determine whether a predecessor’s
business has been continued by the new employer, 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
Continued
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Mammoth contends that it was not in the same essential business as Cannelton/Dunn
because instead of using one continuous 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 adjustment did not change the fact that
Cannelton/Dunn and Mammoth were both in the coal mining and processing business, 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
evidence that the Respondents continued the business essentially unchanged, the adjustment
cited by Mammoth is inconsequential. 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 because 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 Mammoth that resulted from the
Respondents’ unlawful exclusion of Cannelton/Dunn’s unit employees. Assuming that the
Respondents were using fewer employees for reasons unrelated to unlawful discrimination,
Mammoth’s argument still fails under Board precedent. Where a buyer’s remaining employees
continue to perform the same type of work as those of the predecessor, the Board has found
successorship despite greater reductions in workforce size than any involved here. For
example, 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 Commercial Forgings Co., 315 NLRB
162, 165 (1994), enfd. sub nom. Forgings Forever v. NLRB, 77 F.3d 482 (6th Cir. 1996) (Table),
successorship was established where changes eliminated most of predecessor’s unit jobs, but
the jobs of bargaining-unit employees who remained were not altered. See also Planned Bldg.
Services, 347 NLRB No. 64, slip op. at 5 fn.17 (successor bargaining obligation where the new
employer planned to employ a smaller workforce consisting solely of predecessor employees).
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 of 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 No. 33, slip op. at 16-17 (2007). Otherwise successors who wished to avoid a bargaining
obligation could profit from their 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
_________________________
835, quoting Fall River Dyeing, 482 U.S. at 43.
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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 property. 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 practice of the operation. The change in the type of
trucks used to bring coal to the preparation plant also has not altered the essence 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, slip op. at 19; 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
successorship 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 employees if it had not engaged in discrimination, the Board
resolves the uncertainty against the wrongdoer and finds that, but for the discriminatory motive,
the successor would have employed the predecessor employees in the unit positions." Planned
Bldg. Services, 347 NLRB No. 64, slip op. at 5, 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 majority 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 Mammoth constitute an appropriate unit.
The same unit was historically recognized and bargained with by the predecessor employer,
and when the Respondents assumed control of the operation 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 evidentiary burden on a party attempting to show that historical units are no longer
appropriate." Id. "Indeed, ‘compelling circumstances 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

68 The Board also presumes that the union’s majority status would have continued. New
Concept Solutions, LLC, 349 NLRB No. 106, slip op. at 22, citing State Distributing Co., 282
NLRB 1048.
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bargaining unit that was historically recognized and bargained with at Horizon’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 employees 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 purposes 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 normally performed
at the mine site or at the central shop of Respondent 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 excluding all office clerical employees,
and all professional employees, guards and supervisors as defined in the Act.
The record shows that the Respondents’ employees at Mammoth 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 maintenance of mine roads. Other types of coal mining work performed at
Mammoth fall within the clause in the unit description that covers "all work customarily related to
all" the other types of coal production work set forth in the definition. Although 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, 694 (2001);
Black Bear Mining, Inc., 325 NLRB 960 (1998); Magnet Coal, 307 NLRB 444, 448 (1992), enfd.
8 F.3d 71 (D.C. Cir. 1993) (Table); 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
Energy & Mineral Corporation, 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 "compelling 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
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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, Intl., 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 No. 16, slip op. at 14. 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 Cannelton/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 necessary 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 Bldg. Services, 347 NLRB No. 64, slip op. at 48 (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 Respondents to recognize it when the work force
the Respondents actually employed at Mammoth, by virtue of their discriminatory hiring
process, included no more than 22 of the predecessor’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 successorship 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 August 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 successorship bargaining
obligation or require the buyer to maintain 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 predecessor employees hired. 344 NLRB No. 96, slip op. at 2-3 (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 pre-sale, but on
actions that the Respondents took post-sale. More specifically, post-sale, the Respondents
continued 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

69 Indeed it is clear that the bankruptcy judge not only did not anticipate 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 explaining 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 concerns,” in which case
“there is no reason to believe that the miners’ employment would suffer any interruption.”
Continued
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– 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 negotiations.
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 successorship provision. Rather, under
Love’s Barbeque and Advanced 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 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 conclusion 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 operation, 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 violated Section 8(a)(5) and
(1) since December 3, 2004, by failing to recognize and bargain with the Union as the exclusive
collective bargaining representative of employees in the unit, and by unilaterally imposing new
terms and conditions of employment 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 commerce 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 bargaining 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 normally performed at the mine site or at the central shop of
Respondent Mammoth; and maintenance of gob piles, and mine roads, and work
_________________________
Respondent Mammoth’s Exhibit (Mammoth Exh.) 75(c) at Page 24.
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of the type customarily related to all of the above at Respondent Mammoth’s
mines and facilities; but excluding all office clerical employees, and all
professional employees, 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 employees 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
operation 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 bargaining unit employees prior
to the transfer of control and ownership of Horizon’s Cannelton/Dunn operation to the
Respondents.
10. The unfair labor practices set forth above affect commerce 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 Respondents discriminatorily refused
to hire former Cannelton/Dunn unit employees to work at Mammoth, I recommend that the

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 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, Fred Wright.
71 For reasons discussed earlier, Respondent Massey’s liability in this case extends to the
unfair labor practices committed at its subsidiary, Respondent Mammoth. See Section III,
supra.
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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 substantially equivalent positions,
discharging if necessary any employees hired to fill those positions. The employees listed
below 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
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 order 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
perform unit work at Mammoth on December 3, 2004, I shall recommend that the Respondents
be ordered to rescind the unilateral changes and make the employees whole by remitting all
wages and benefits that would have been paid absent the Respondents’ unlawful conduct, until
the Respondents negotiate in good faith with the Union to agreement or to impasse, subject 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 lawfully
imposed. Planned Bldg. Services, 347 NLRB No. 64, slip op. at 5-6 and 9. 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. Marine Corp., 944 F.2d 1305, 1322–23 (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 paying 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 employees for any
expenses ensuing from the failure to make required 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 recommended Order. 72

72 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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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 otherwise discriminating
against these employees to avoid having to 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 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 normally performed at the mine site or at the central shop of
Respondent 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 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, 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 effectuate 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
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employment, including wage rates and benefit 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 section 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 employer in their former positions or, if such positions no longer
exist, in substantially equivalent positions at Mammoth, 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, 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 Respondents’ unlawful
refusal to hire them, in the manner set forth in the remedy section 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 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 designated by the
Board or its agents, all payroll records, social security payment records, 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 Virginia, copies of the attached notice marked "Appendix."73

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 National Labor Relations Board" shall read "Posted
Continued
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Copies 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 including 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 Respondents shall
duplicate and mail, at their own expense, a copy of the notice to all current employees and
former employees 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
attesting to the steps that the Respondent has taken to comply.
Dated, Washington, D.C., November 21, 2007.
____________________
Paul Bogas
Administrative Law Judge
_________________________
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
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Kanawha County, WV
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 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’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 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 representative 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 normally performed at the mine site or at the central shop of
Respondent 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 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 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 Section 9(a) of the Act and that we will bargain with it concerning
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
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signed agreement.
WE WILL, at the request of the Union rescind, any departures from terms and conditions
of employment that existed immediately prior to our takeover of Horizon’s Cannelton/Dunn
operation, 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
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 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 Cannelton/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, 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.
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WE WILL, within 14 days, from the date of this Order, remove 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 refusal to hire them will not
be used against them in any way.
MASSEY ENERGY COMPANY
(Employer)
Dated By
(Representative) (Title)
SPARTAN MINING COMPANY D/B/A
MAMMOTH COAL COMPANY
(Employer)
Dated By
(Representative) (Title)