Master Mining, Inc. And Neibert Coal Co., Inc.

National Labor Relations Board - Board Decisions

Mar 29, 1985

274 N.L.R.B. 1213 (N.L.R.B. 1985)

MASTER MINING
Master Mining , Inc. and Neibert Coal Company,
Inc. and Cecil Burgess. Case 9-CA-20390
29 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 28 June 1984 Administrative Law Judge Karl
H. Buschmann issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in support of
the judge's decision.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent violated
Section 8(a)(3) and (1) of the Act by refusing to
hire Burgess, Mays, and Dean because they filed a
grievance against a previous employer. We agree
with the judge's findings regarding Mays and
Dean. We disagree with the judge's findings re-
garding Burgess.
The three alleged discriminatees worked for
Dakota Enterprises until it closed down in early
1983. Camp Branch Coal Company then com-
menced a new mining operation on the old Dakota
site.' The three individuals applied for jobs with
Camp Branch claiming seniority or "panel rights."
After being refused employment they filed a griev-
ance against Camp Branch and eventually were
awarded an arbitration decision. Camp Branch
ceased operations shortly thereafter.
The Respondent began operations on the same
site in the fall.2 The alleged discriminatees applied
for jobs on separate occasions and were all refused
employment. The facts showing that Mays and
Dean were denied employment solely because of
their roles in the Camp Branch grievance are set
forth fully in the judge's decision. The circum-
stances surrounding the Respondent's refusal to
hire Burgess are as follows.
Burgess applied for a job as a timberman in late
August or early September Superintendent Bishop
followed his usual practice by taking Burgess'
name, telephone number, and previous employer
and told him to return in a few days. When Bur-
gess returned he was told that no decision had
been made and to come back again. This happened
several more times,until 14 November when Bur-
gess' credited testimony shows that Bishop told
i Dakota and Camp Branch were operated by the same owners
2 The parties stipulated that the Respondent is not affiliated with Camp
Branch or Dakota
1213
Burgess he would not be hired because of his par-
ticipation in the Camp Branch grievance and that
Burgess' history of absenteeism was something he
could not tolerate. Bishop denied telling Burgess
that he was not hired because of the grievance.
Bishop said he did not hire Burgess solely because
of his history of absenteeism and because none of
Burgess' references recommended Burgess for the
job.
The judge credited Burgess over Bishop in part
because Bishop expressed his opposition to the
Camp Branch grievance to Burgess and Mays in
the same manner3 and in part because he found
Bishop's versions of his handling the three applica-
tions to be implausible and inconsistent.4 Relying
on these credibility findings, the judge concluded
that the Respondent's refusal to hire Burgess was
based primarily on Burgess' participation in the
grievance. He found the Respondent's contention
based on Burgess' absenteeism to be pretextual.
The Respondent argues that its decision not to
hire Burgess was motivated solely by Burgess'
poor absenteeism record. The Respondent relies on
the undisputed evidence that Bishop told Burgess
he could not tolerate Burgess' absenteeism and on
substantial record evidence reflected in the judge's
finding that Burgess' absenteeism presented serious
problems.
We find merit in the Respondent's exceptions.
The judge's credibility resolution does not end the
inquiry into whether the Respondent's refusal to
hire Burgess was unlawful. The Board held in
Wright Line5 that in cases alleging violations of
Section 8(a)(3) which turn on employer motivation
the General Counsel must first make out a prima
facie showing sufficient to support the inference
that protected activity was a motivating factor in
the employer's decision. The employer then has the
opportunity to demonstrate that it would have
reached the same decision even in the absence of
protected conduct.
Applying Wright Line we agree with the judge
that the General Counsel presented a prima facie
case to show that the Respondent refused to hire
Burgess because of his role in the Camp Branch
grievance. However, we also find that the Re-
spondent has satisfied its burden of showing that it
s Bishop told Mays that he "can't hire no radicals" and if he "did he'd
kill them if they'd file a grievance against me "
4 The judge found Bishop's conduct in encouraging Burgess to return
to the jobsite on numerous occasions to be suspect He found that if
Bishop were honestly concerned with Burgess' absenteeism he would
have discouraged Burgess after receiving the first few negative reports
He also found implausible the Respondent's contention that it did not hire
Burgess because every reference contacted recommended against his em-
ployment
5 251 NLRB 1083 (1980)
274 NLRB No. 183
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would not have hired Burgess even in the absence
of his union activity.
Bishop gave uncontroverted testimony that tim-
bering is the single most important safety aspect of
the mine operation because it involves roof control.
If the regular timberman is missing, either the mine
shuts down or an inexperienced worker must fill in.
The mine could still shut down with an inexperi-
enced timberman because there is a greater risk of
employee injury due to loose rock -falling from an
unsupported roof. Production is hampered further
since the replacement worker's job is usually left
unattended. Thus, the record readily shows the
vital importance of the timberman's job and that
excessive absenteeism by an employee occupying
that position can not be tolerated.
Early in his investigation of Burgess, employee
Maynard told Bishop that Burgess was a good
worker, but that "he lays off a lot." Supervisor
Bartram and Mullins also told Bishop in September
that Burgess was an irregular worker. Bishop did
not tell Burgess about these comments because he
wanted to investigate further the absenteeism.
Bishop then spoke with several other people famil-
iar with Burgess' work habits and received the
same response. He finally stopped his investigation
because he "couldn't get anybody to give him
[Burgess] a recommendation as being a regular
worker."
A finding that Burgess' absenteeism was a legiti-
mate concern for the Respondent's refusal to hire
him for the timbering job is warranted on the
record. Thus, the judge found that "the record cer-
tainly shows that Burgess had a history of absen-
teeism which under ordinary circumstances would
discourage an offer of employment."
The judge nevertheless found that the Respond-
ent's claim that it refused to hire Burgess because
of his absenteeism problem was a pretext. The
judge's pretext analysis is at odds, however, with
the substantial record evidence that Burgess' "ab-
senteeism problem in fact existed" and the judge's
own finding that "under ordinary circumstances [it]
would discourage an offer of employment."
Indeed, the judge credited Burgess' testimony that
Bishop told him on 14 November that "he [Bishop]
couldn't tolerate it." Hence this case involves not
pretext but mixed motives.
In these circumstances the question becomes
whether the Respondent satisfied its burden of
showing that it would not have hired Burgess even
absent his protected activity. We find that it did.
Despite the Respondent's knowledge of the
Camp Branch grievance in August-September 6 the
6 The judge found that the Respondent knew about the Camp Branch
grievance in August -September when it refused to hire Mays and Dean
record shows that the Respondent continued to
conduct an investigation of Burgess' record of ab-
senteeism . Thus, the Respondent did not refuse to
hire Burgess until 14 November. At that time Bur-
gess testified that Bishop told him he could not tol-
erate Burgess' absenteeism . We find that the Re-
spondent's continued investigation of Burgess'
record after it knew about the Camp Branch griev-
ance is compelling evidence on this record that it
would not have hired Burgess even absent his pro-
tected activity.
On the record as a whole, we are convinced that
the Respondent would have made the decision not
to hire Burgess even in the absence of his protected
activity because of his absenteeism problem. Ac-
cordingly, we shall dismiss the complaint allegation
regarding the Respondent's refusal to hire Burgess.
AMENDED CONCLUSIONS OF LAW
3.
Substitute the following for Conclusion of Law
"3. The Respondent violated Section 8(a)(3) and
(1) of the Act by refusing to employ Mack Mays
and Joe Dean for available jobs because of their
protected concerted activity in filing a grievance."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Master Mining, Inc., and Neibert Coal
Company, Inc., Logan, West Virginia, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified..
1. Substitute the following for paragraph 2(a).
"a. Offer Mack Mays and Joe Dean employment,
discharging, if necessary, any employees hired in
their stead or, if no such jobs are available, substan-
tially equivalent jobs if such jobs exist, discharging,
if necessary, any incumbents therein, and make
them whole for any losses they may have suffered
by reason of its unlawful refusal to employ them in
the manner set forth therein."
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
MASTER MINNING 1215
WE WILL NOT refuse to employ or to consider
for employment applicants for employment because
they engaged in filing a grievance or engaged in
other protected activities on behalf of the Union,
or any other labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Mack Mays and Joe Dean em-
ployment, discharging, if necessary, any employees
hired in their stead or, if no such jobs are available,
substantially equivalent jobs if such jobs exist, dis-
charging, if necessary, any incumbents therein, and
make them whole, with interest, for any losses they
may have suffered as reason of our unlawful refusal
to employ them.
MASTER MINING, INC. AND NEIBERT
COAL COMPANY, INC
DECISION
KARL H. BUSCHMANN, Administrative Law Judge.
This case was heard in Logan, West Virginia, on March
13, 1984, pursuant to a complaint issued on January 10,
1984, and a charge filed November 28, 1983 In sub-
stance, the complaint alleges that the Respondent violat-
ed Section 8(a)(3) and (1) of the National Labor Rela-
tions Act (the Act) by refusing to hire three individuals,
Cecil Burgess, Mack Mays, and Joe Dean, for discrimi-
natory reasons, i.e., their filing of a grievance The Re-
spondent, Master Mining, Inc. which, pursuant to an
amendment to the complaint, includes Neibert Coal
Company, Inc as the Respondent, filed a timely answer
in which the jurisdictional aspects of the complaint are
admitted and in which the commission of any unfair
labor practice is denied.
On the entire record, including my observation of the
witnesses and after consideration of the briefs filed by
the General Counsel and the Respondent, I make the fol-
lowing
FINDINGS OF FACT
Master Mining Coal Company, including Neibert Coal
Company, Inc., collectively referred to as the Respond-
ent, is located in Neibert, West Virginia, where it is en-
gaged in the mining of coal The Respondent is admit-
tedly an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
The Union, United Mine Workers of America, District
17, Local Union 5869, is admittedly a labor organization
within the meaning of Section 2(5) of the Act.
The alleged discrimmatees, Cecil Burgess, Mack Mays,
and Joe Dean were members of Local 5869 of the
UMW, and were last employed by Dakota Enterprises,
Inc, a mine operated by the Mullins family. The Dakota
mine closed in early 1983, shortly after the Mullins
family commenced a new mining operation under the
name of Camp Branch Coal Company, Inc. After their
layoff from Dakota Enterprises in early 1983, Burgess,
Mays, and Dean applied for employment with the Camp
Branch Coal Company Since both mines were signato-
ries to the National Bituminous Coal Wage Agreement
with the United Mine Workers, the three job applicants
expected to be hired by the new Company on the basis
of their acquired seniority or "panel rights " When Camp
Branch failed to recognize their panel rights, Mays filed
a grievance on April 25, 1983, on behalf of himself,
Dean, Burgess, and several other employees The three
miners personally served the grievance on Gary Mullins,
one of the principal officials of the Camp Branch mine
Mullins initially resisted, but finally accepted the griev-
ance. He denied its allegations on the basis that Camp
Branch was independent from Dakota Enterprises The
matter went through the various stages of the grievance
procedure concluding with an arbitration award in favor
of the employees.
The three miners, Mays, Dean, and Burgess, were
prominently and actively involved throughout the griev-
ance procedure. They delivered the grievance, and they
were present at the third stage of the procedure, as well
as the arbitration hearing. Dean and Mays personally tes-
tified at the hearing. Their principal opponent in the
matter was Gary Mullins who had been the representa-
tive for management Soon after the employees had won
the arbitration award which recognized their panel rights
at the Camp Branch mine, it ceased doing business.
In the fall of 1983, the Respondent, Master Mining,
Inc. began operations at the old Camp Branch site Even
though the Respondent operated at the same location as
the old Camp Branch site, the parties are in agreement
that the Respondent (Master Mining and Neibert Coal
Company) are not affiliated with Camp Branch or
Dakota Enterprises. Accordingly, the "panel rights" won
in the arbitration award of July 27, 1983, had lost their
significance for the three miners, Mays, Dean, and Bur-
gess . Nevertheless, the record shows that the Respond-
ent had hired all the miners from the Camp Branch mine
who had applied for jobs and that eventually half of the
Respondent 's employees had formerly been employed by
Camp Branch The Union voiced no objection to the Re-
spondent's refusal to accord panel rights to the Camp
Branch employees, but the Respondent had assured the
Union that it would hire all qualified Camp Branch
miners and that it would sign the National Agreement
with the United Mine Workers. The Respondent began
to hire only a few men in August, but employed more
than 20 by the end of September and continued its hiring
process until the end of January 1984
Burgess, Dean, and Mays who applied for jobs with
the Respondent in late August or early September were
not hired by the Respondent. According to the General
Counsel, the Respondent refused to hire the three miners
because they had filed the grievance against Camp
Branch. The Respondent, on the other hand, argues that
the miners' involvement with the grievance had nothing
to do with the Respondent's decision, and that the
miners were refused employment for certain other rea-
sons The General Counsel's reliance is based primarily
upon the testimony of the three discrimmatees, who testi-
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fled in detail concerning the conduct of Raymond
Bishop, the Respondent's superintendent, and his reac-
tion to their job application. The Respondent similarly
relies on Bishop and his justification for failing to hire
the three miners. Bishop testified that his usual practice
was to accept applications for employment from men
who visited the mine in search of employment and who
left their names and phone numbers, as well as their pre-
vious employers' names He stated that he relied heavily
on the advice of Gary Mullins, the former superintendent
at Camp Branch as to whether a man had a good reputa-
tion. Bishop handled the applications of the three alleged
discrimtnatees as follows-
' Joseph Dean- In late August or early September, before
the mine commenced operation, Dean drove to the mine,
parked his car, and walked towards the Respondent's
office.t Bishop, with the help of Gary Mullins, saw and
recognized Dean before he had reached the office.
Bishop then informed Dean in no uncertain terms that he
would not accept any applications and that Dean was
just wasting his time. Dean responded that he had panel
rights with the old Company, but Bishop just stated that
he would not honor that panel Dean left without an op-
portunity to leave his name and telephone number. It is
significant that Bishop, contrary to his practice, refused
to record Dean's name and telephone number and subse-
quently hired more than 20 employees from a list of job
applicants Moreover, Mullins who obviously knew
Dean from his grievance dispute, had informed Bishop of
Dean's identity during the brief conversation.
Cecil Burgess. In late August or early September, Bur-
gess applied for employment with the Respondent
Bishop, as was his practice, asked for Burgess' name,
telephone number, and previous employer. He was told
to return in a few days. Burgess returned a few days
later only to be told to come back again During the next
4 or 6 weeks, Burgess came to the mine at least six or
seven times at Bishop's behest. On one of his visits in the
middle of October, Bishop told Burgess that he would
have a job if he "checked out." On November 11, 1983,
'Bishop requested that Burgess return on Monday, No-
vember 14. On that day Bishop finally informed Burgess
that he could not hire him
When asked why, Bishop, according to Burgess' testi-
mony, replied "over the grievances [Burgess] filed on
Waldon Mullins and Camp Branch " Bishop further told
him that he had a copy of the grievance and that he con-
sidered Burgess a troublemaker who had caused trouble
once and who might do it again. Bishop also made refer-
ence to Burgess' absenteeism, stating that he could not
tolerate it
In his testimony, Bishop disputed the substance of that
conversation but admitted that Burgess had come to the
mine on a number of occasions in search of employment.
Bishop explained, however, that when he inquired about
Burgess' previous employment record he concluded that
Burgess was an "irregular worker" who had missed a
great deal of work. He testified that he checked Burgess'
reputation with Gary Mullins and other supervisors, as
well as a handful of employees. The record generally
supports Bishop's testimony that Burgess had a history of
absenteeism with his previous employer. To what extent
the Respondent considered Burgess' absenteeism in its
decision not to hire Burgess was revealed in the Novem-
ber 14 conversation.
Mack Mays After several trips to the mine in August
and September, Mays finally met Bishop one day in late
October while Bishop was sharpening his pocket knife.
Mays initially asked for a job and then explained the
kind of work he could do and the experience he had.
Mays had the impression that Bishop was about to offer
him a job until he opened his desk drawer and pulled out
a sheet of paper to check his name At that point Bishop
slammed the drawer shut, resumed sharpening his knife,
and said that he could not hire him until 1984 When
Mays said that he could not wait that long, Bishop said-
"Well, that's the best I can do. I can't hire no radicals If
I did, I'd kill them if they'd file a grievance against me "
Bishop denied the episode and only recalled that Mays
may have come by his office, stuck his head in the office,
and said: "I'm not looking for a job All I want to do is
see a face " Bishop did not recall that Mays ever applied
for a job
Analysis
It has long been settled that an employer's refusal to
employ job applicants because of their union activities
violates Section 8(a)(3) and (1) of the Act. Phelps Dodge
Corp. v. NLRB, 313 US. 177 (1941) The parties are in
sharp disagreement, however, as to whether the record
established a discriminatory motive for the Respondent's
failure to hire the three men, Dean, May, and Burgess,
r e., because they had filed the grievance against their
previous employer. In this regard the record fully estab-
lished the applicants' prominent role in filing and active-
ly pursuing the grievance all the way to arbitration, and
it cannot be gainsaid that the Respondent was fully
aware of it. The arbitration award listed the names of
Dean, Burgess, and Mays among the grievants, and Gary
Mullins who represented their former employer during
the entire grievance procedure was one of the chief advi-
sors to Bishop during the hiring process Mullins was ul-
timately hired by the Respondent in a supervisory capac-
ity Moreover, the record shows that the Respondent
hired all of the applicants who had formerly been em-
ployed by the Camp Branch mine many of whom had
been employed by Dakota Enterprises.
The question cf the Respondent's true motivation for
its failure to hire the three applicants is revealed by his
own conduct. Bishop's testimony is weakest with regard
to Dean's application Essentially suggesting that he was
not hiring, Bishop refused to take down Dean's name
and telephone number This was contrary to Bishop's
own testimony of his usual practice, and not consistent
with his treatment of Burgess whose name and number
he recorded even after the Respondent had begun pro-
duction Moreover, it occurred at a time before he hired
the bulk of his work force. Bishop's demeanor strongly
suggests that Mullins, who stood next to him during that
meeting, had warned him of Dean's participation in the
grievance proceeding.
Bishop's explanation of his conduct towards Mays' ap-
plication is also suspect. Bishop's explanation that Mays
MASTER MINNING
never applied for work but merely stuck his head into
the office stating that he was not looking for a job but
only wanted to see a face is implausible and difficult to
believe. Bishop's reluctant admission that he owned a
pocket knife and that he may have sharpened it supports
Mays' version of the conversation in November when
Bishop, while sharpening his pocket knife, said to Mays
that he would not hire radicals and kill them if they filed
a grievance against him.
Bishop's conduct toward Burgess, although more com-
plicated, is also suspect. On the one hand, the record cer-
tainly shows that Burgess had a history of absenteeism
which under ordinary circumstances would discourage
an offer of employment. On the other hand, Burgess,
who had a reputation as a good worker and whose at-
tendance had improved, was asked to return on numer-
ous occasions only to be told to return again. Had
Bishop earnestly been concerned about that problem, he
would not have encouraged Bishop to return numerous
times with the vague promise of employment. Bishop
would have us believe that as he checked with various
people, supervisors and follow employees, he increasing-
ly became aware that none of them would recommend
Burgess for employment because of his reputation for ab-
senteeism. Under such circumstances, an employer
would ordinarily have discouraged an applicant as soon
as he received the first adverse report. Instead, the
record shows that Burgess was encouraged to return. I
therefore view Bishop's conduct, even assuming the Re-
spondent's version, with suspicion
Dispositive of the issue are of course Bishop 's state-
ments as reflected in Burgess' testimony. Bishop un-
equivocally expressed his reason for refusing to employ
Burgess, namely, the filing of the grievance against Mul-
lins, and Bishop's own apprehension that Burgess was a
troublemaker who might file a grievance again . Bishop's
denial of the substance of that conversation is not credi-
ble First, Bishop's conduct in connection with Mays' fob
application was consistent with the episode involving
Burgess, i e , the Respondent's expressed opposition to
the grievance Second, Bishop's versions of his handling
of the three job applications was implausible and incon-
sistent Third, the record reflects that Bishop as a witness
was evasive and on occasion inconsistent. And finally,
considering Bishop's demeanor as a witness, I found his
testimony unreliable For example, Bishop appeared un-
usually nervous when asked certain questions and he fre-
quently hesitated with his responses. The testimony of
Burgess, on the other hand, impressed me as credible and
forthright. It is clear therefore that the Respondent's re-
fusal to employ Burgess was primarily based on his in-
volvement with the grievance. His absenteeism record
may have also been of some consequence. During their
final conversation, Bishop stated that Burgess had
"missed some work" and that "he [Bishop] couldn't tol-
erate it." This showed that the Respondent was also con-
cerned about that aspect of Burgess' reputation, but to a
lesser degree. The. Respondent's witnesses Eddie Bar-
tram, Kenny Maynard, and Gary Mullins confirmed
Bishop's testimony that Burgess had a reputation for ab-
senteeism but that he was a good worker. Their testimo-
ny does not fully reveal the extent to which the Re-
1217
spondent relied on this aspect. Having credited the con-
versation between the two men on November 14 as relat-
ed by Burgess, it is clear that his absenteeism might have
been of some concern but that it was not a deciding
factor in the Respondent's decision not to hire Burgess.
As urged by the Respondent's counsel, the issue is more
one of credibility than one involving a mixed motive.
Wright Line, 251 NLRB 1083 (1980). Under that author-
ity, it must first be shown that a mixed motive existed,
and second that Burgess would not have been hired, even
in the absence of his protected activity. Here, Burgess'
absenteeism was a pretext and all indications are that he
would have been hired but for his involvement with the
grievance. That factor, I believe, was the sole reason for
the Respondent's conduct.
On balance, I have considered the Respondent's, vary-
ing, sometimes inconsistent, and implausible reasons for
its refusal to hire the three applicants Mays was not
hired, according to the Respondent, because he never ap-
plied for a job and merely stopped by the Respondent's
office stating that he was not looking for a job and only
wanted to see a face; Dean was not hired because there
were no more jobs available, yet the Respondent hired
the bulk of its work force during the following month
and Burgess who applied about the same time as Dean
was seriously considered; and Burgess who was encour-
aged to return six or seven times was not hired because
every reference which the Respondent contacted recom-
mended against his employment.
I have considered the prominent involvement of the
three men in filing and presenting their grievance. The
Respondent may well have harbored no union animus,
but it certainly was apprehensive about the three appli-
cants after their vigorous pursuit of the grievance. The
Respondent relied heavily upon the recommendations of
Gary Mullins, the grievants' chief antagonist
Significant to the resolution of these issues were the
conversations Bishop had with two of the three appli-
cants, Burgess and Mays Although the conversations
arose under different settings, the common theme was
the grievance The forthright testimony of Burgess and
Mays was supported by their reference to certain facts
which the Respondent conceded, i.e, Bishop's ownership
of the pocket knife and the potential expansion of the
mining operation in December 1983.
On the basis of the foregoing, I have no difficulty in
finding that the Respondent violated Section 8(a)(3) and
(1) of the Act when it refused to hire Burgess, Dean, and
Mays because of their protected concerted activity.
CONCLUSIONS OF LAW
1. The Respondent, Master Mining, Inc, including
Neibert Coal Company, Inc, is admittedly an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act
2. The Union, United Mine Workers of America, Dis-
trict 17, Local 5869, is admittedly a labor organization
within the meaning of Section 2(5) of the Act.
3 The Respondent violated Section 8(a)(3) and (1) of
the Act by refusing to employ Cecil Burgess, Mack
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mays, and Joe Dean for available jobs because of their
protected concerted activity in filing a grievance.
4. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that that the Respondent has engaged in
certain unfair labor practices, I shall recommend that it
cease and desist therefrom and take certain affirmative
action necessary to effectuate the policies of the Act.
Having found that the Respondent discriminated
against Cecil Burgess, Mack Mays, and Joe Dean by fail-
ing to employ them for available work, I shall recom-
mend to the Board that it be required to offer them em-
ployment discharging, if necessary, any employees hired
in their stead or, if no such jobs are available, to substan-
tidlly equivalent jobs if such jobs exist, discharging if
necessary any incumbents therein; and that the Respond-
ent be ordered to make them whole for any loss of
wages they may have suffered by reason of the discrimi-
nation against them. Backpay shall be reduced by any in-
terim earnings and computed in the manner prescribed in
F. W. Woolworth Co, 90 NLRB 289 (1950), with interest
to be computed as set forth in Florida Steel Corp., 231
NLRB 651 (1977).'
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER
The Respondent, Master Mining, Inc, including Nei-
bert Coal Company, Inc., Logan, West Virginia, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to employ or to consider for employment
applicants for employment because they engaged in ac-
tivities on behalf of United Mine Workers or any other
labor organization or other protected concerted activi-
ties.
(b) In any like or related manner, interfering with, re-
straining, or coercing its employees in the exercise of
their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Offer to Cecil Burgess, Mack Mays, and Joe Dean
employment as specified in the section of this recom-
mended decision entitled "The Remedy"' and make them
whole for any losses they may have suffered by reason
of its unlawful refusal to employ them in the manner set
forth therein.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its mine in Neibert, West Virginia, copies of
the attached notice marked "Appendix."3 Copies of the
notice, on forms provided by the Regional Director for
Region 9, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
i See generally Isis Plumbing Co, 138 NLRB 716 (1962)
2 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
a If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "