South East Coal Co.

National Labor Relations Board - Board Decisions

May 24, 1979

242 N.L.R.B. 547 (N.L.R.B. 1979)

SOUTH EAST COAL COMPANY
South East Coal Company and Bonnie E. Collins and
Ernestine Bentley. Cases 9-CA-11958-1 and 9
CA-I 1958-2
May 24, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On February 26, 1979, Administrative Law Judge
Herbert Silberman issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
the Charging Parties filed exceptions and supporting
briefs, and Respondent filed cross-exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of Administrative Law Judge and hereby orders
that the complaint be, and it hereby is, dismissed in
its entirety.
I Respondent and the Charging Parties have each excepted to certain
credibility findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an administrative law judge's resolutions
with respect to credibility unless the clear preponderance of all of the rel-
evant evidence convinces us that the resolutions are incorrect. Standard DrO
Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing his
findings.
DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN, Administrative Law Judge: Upon
a charge of unfair labor practices filed by Bonnie E. Collins
in Case 9-CA-11958-1 on November 22, 1977, and a
charge of unfair labor practices filed by Ernestine Bentley
in Case 9-CA-11958-2 on December 5, 1977, an order con-
solidating the cases and a consolidated complaint therein
alleging violations of Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended, were issued on March
28, 1978. The consolidated complaint, as amended on May
30, 1978, in substance, alleges that Respondent South East
Coal Company, herein also called the Comapny, since May
23, 1977, has refused to hire Bonnie E. Collins, Ernestine
Bentley, and Vera Edith Hall, who are sisters, for employ-
ment in positions for which they were qualified because of
the known or suspected union membership, sympathies,
and activities of their father, Ben Hall, and other members
of their family. Respondent duly filed answers to the con-
solidated complaint and its amendment, in substance deny-
ing that it had engaged in the alleged unfair labor practices
and asserting as an affirmative defense that its refusals to
hire Bonnie E. Collins, Ernestine Bentley, and Vera Edith
Hall, herein sometimes referred to as the Complainants, oc-
curred respectively on May 28, 1975: September 24, 1976;
and September 29, 1976-more than 6 months before the
first charge in these proceedings was filed-and therefore
"the amended consolidated complaint herein is barred by
Section 10(b) of the National Labor Relations Act." These
proceedings were heard in Whitesburg, Kentucky, on Au-
gust 23, October 31, and November 1, 1978. Thereafter,
pursuant to leave given the parties, briefs were filed with
the Administrative Law Judge on behalf of the General
Counsel, Respondent, and each of the Charging Parties.
Upon the entire record in these cases, and from my ob-
servation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
South East Coal Company, a Kentucky corporation, is
engaged in mining coal at Isom, Kentucky. During the 12
months preceding the issuance of the consolidated com-
plaint, the Company sold coal valued at in excess of
$50,000 which was shipped from its Isom, Kentucky, mine
through channels of interstate commerce to points outside
the Commonwealth of Kentucky. Respondent admits, and I
find, that the Company is an employer within the meaning
of Section 2(2) engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II1. THE LABOR ORCiANIZATION INVOLVED
United Mine Workers of America, herein called the
Union, is a labor organization within the meaning of sec-
tion 2(5) of the Act.
II1. THE ALLEGED UNFAIR LABOR PRACTICES
The two issues in these proceedings are whether the three
daughters of Ben Hall, that is, Bonnie Collins, Ernestine
Bentley, and Vera Hall, were denied employment by Re-
spondent for unlawful reasons and whether a remedy
herein is time barred by reason of Section 10(b).
The Complainants filed separate applications for employ-
ment with Respondent on various dates prior to May 23,
1977. Ernestine Bentley's application, which is dated Sep-
tember 3, 1976, was received by Respondent on September
16, 1976, and Vera Hall's application, which is dated Sep-
tember 17, 1976, was received by Respondent on September
20, 1976. Bonnie Collins filed two applications, one on May
28, 1975, and a second, dated December 8, 1976, was re-
242 NLRB No. 95
547
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ceived by Respondent on December 11, 1976. As the earli-
est charge in these proceedings was filed on November 22,
1977, and served on Respondent on November 23, 1977,
the complaint alleges that the unlawful refusals to hire the
Complainants occurred since May 23, 1977, months after
they had filed their respective applications for employment.
After Bonnie Collins filed her first application for em-
ployment with Respondent on May 28, 1975, she began to
suspect that she had been denied employment because Re-
spondent was discriminating against women. In August
1976 she and her sister, Ernestine Bentley, filed complaints
with the Kentucky Commission on Human Rights alleging
violations by Respondent of the Kentucky Civil Rights Act.
The stated grounds were that they had been denied employ-
ment as miners because of their sex. At the time these com-
plaints were filed, another proceeding was pending before
the Kentucky Commission on Human Rights which had
been initiated by the Complainants' aunt, Deborah Hall.
That proceeding was resolved by a conciliation agreement,
dated October 6, 1976, whereunder, among other things,
Respondent offered employment to Deborah Hall in an en-
try level "clean up" position plus backpay and agreed to
take other action to insure that its hiring practices would
not discriminate against women. However, the complaints
filed by Bonnie Collins and Ernestine Bentley were dis-
missed, and upon reconsideration the dismissals were af-
firmed on October 24, 1977.'
In connection with the dispostion of the Civil Rights Act
case brought against it by Deborah Hall, Respondent on
August 26, 1976, placed the following advertisement in the
three newspapers which are circulated in the communities
where its employees reside:
South-East Coal Company is an equal opportunity
employer and seeks applications from all qualified per-
sons regardless of race, color, religion, national origin,
sex or age.
All persons who have in the past applied for employ-
ment with South-East Coal Company are advised that
all previous applications are considered inactive. All
past applicants, who wish to be considered for employ-
ment, must reapply.
Applications will be available during the hours of
10:00 a.m. to 12:00 noon and 1:00 p.m. to 3:00 p.m.
each Friday beginning September 3, 1976, at the office
of South-East Coal Company, Isom, Kentucky.
Following the appearance of this advertisement, Ernestine
Bentley and Vera Hall filed their applications for employ-
ment with Respondent, and Bonnie Collins filed a second
application. To each of the application forms handed out
by Respondent on and after September 3, 1976, was at-
tached an instructions sheet which, among other things, in
capital letters stated:
In its letter of October 24, 1977, the commission, among other things,
stated, "Respondent did however, admit that Complainants were not hired
and will not be hired because the Hall family headed by Mr. Ben Hall
(father of both Complainants) has a reputation in the community of being
anti-management, anti-company and pro-union which are characteristics not
desired amongst its employees." This recital is not competent evidence that
Respondent had made such admission, and General Counsel did not pro-
duce other probative evidence to prove the fact.
ALL APPLICATIONS WILL BE CONSIDERED INACTIVE SIX
MONTHS AFTER THEY ARE FILLED OUT. ANYONE WHO
STILL WISHES TO BE CONSIDERED FOR EMPLOYMENT
MUST REAPPLY.
Although the three Complainants received the instructions
with their application forms, they did not reapply for em-
ployment upon the expiration of the 6 months.
During the times material herein all hiring by Respon-
dent was done by Daniel Quillen, vice president in charge
of operations. Following receipt of their applications, Quil-
len interviewed Ernestine Bentley on September 24, 1976,
and interviewed Vera Hall on September 29, 1976. Collins
never was interviewed by Quillen.
Quillen testified that he decided not to hire Bentley and
Hall on the respective days that he interviewed them and
that he decided not to hire Bonnie Collins in May 1975
after he reviewed her application for employment. He also
testified that he did not review the second application for
employment which Collins filed with the Company in De-
cember 1976. Upon examination by Respondent's counsel,
Quillen testified:
Q. Have you ever reversed or reconsidered your ini-
tial decision not to hire any or all of the charging par-
ties?
A. No I've not reversed it.'
Quillen also testified that whenever he has a vacancy to
fill, his practice is to review the applications of all persons
who have applied for the position except that normally he
does not review applications that are more than 6 months
old. If he is unable to find a qualified applicant for a spe-
cific job among the current applications, he then will review
outdated applications.3 Quillen further testified that, in ac-
cordance with the announced policy of the Company, the
applications of Ernestine Bentley, Vera Hall, and Bonnie
Collins became inactive 6 months after their respective
dates, namely, on March 3, March 17, and June 8, 1977.4
The reasons given by Quillen for not hiring the Com-
plainants are the same for each, namely, that their father,
Ben Hall, had a reputation in the community for being an
unproductive worker and that the Company had current
applications from persons who he believed were more
qualified than the Complainants.'
I Elsewhere Quillen specifically testified that he did not reconsider the
applications of Collins and Bentley.
In his brief General Counsel argues, "[lit is apparent that Respondent
does not, and never has, consistently maintained an effective policy of keep-
ing employment applications active for only six months." The evidence
shows only one exception to the 6-month policy, and therefore, contrary to
General Counsel, the evidence is consistent with Quillen's testimony.
At various places in his brief General Counsel argues that Respondent had
no basis for assuming that Collins, Bentley, or Hall had lost interest in ob-
taining employment with Respondent. Whether or not these women main-
tained a continuous interest in secunng such employment is irrelevant to the
issues herein. What is relevant is whether and when they were considered
and rejected for employment by Respondent.
General Counsel argues, "If there was a six-month rule, it certainly did
not stand in the way of Quillen's consideration of Bonnie Collins herself in
May 1978 for the unskilled position of clean-up, and ultimate rejection in
favor of applicants Sherry Holland and Bonnie Howard." However, Collins'
last application is dated December 8. 1976, so the 6-month period of the
application's vitality expired on June 8, 1977, while Holland and Howard
were hired on May I, 1980, more than 10 months later.
Quillen's testimony regarding his decisions not to hire the Complainants
refers to the times when he first reviewed each of their applications. Accord-
ing to Quillen, he did not reconsider or review the applications of any of the
Complainants when filling vacancies on and after May 23, 1977.
548
SOUTH EAST COAL COMPANY
Ben Hall had worked in the coal mines of Elkhorn Coal
Corporation from 1926 until his retirement on September
10, 1954. While so employed Hall had been a member of
the United Mine Workers of America and had served as a
safety committeeman and as a mine committeeman for the
Union. Ben Hall's uncontradicted testimony is that as a
mine employee he was never discharged, suspended. or oth-
erwise disciplined. Respondent utterly had failed to prove
that while Ben Hall was employed he was an unproductive
worker or that he had a reputation in the community for
being an unproductive worker.'
Although Ben Hall has not worked in mines since 1954.
he has continued actively to support the Union. Among
other things, he solicits miners to sign authorization cards
for the Union and has supported union strikes by soliciting
funds for the striking employees and joining the Union's
picket lines. Ben Hall picketed Respondent's premises dur-
ing the strike which the Union called against Respondent in
the period between 1962 and 1963. Also, Hall actively solic-
ited funds for the Union during its most recent strike, which
extended from December 6, 1977. until March 1978. Ben
Hall is known in the community as an active union advo-
cate. and Quillen testified that he knew Ben Hall was pro-
union and had been a member of the United Mine Workers
of America. However, Quillen denied that he had knowl-
edge concerning the extent of Hall's union activities.
When questioned by General Counsel as to why he had
not hired any of the three Complainants, Quillen testified:
A. Well they're not qualified and they're not the
type of people that I want to take the chance on.
Q. What do you mean not the type of people. what
does that mean?
* . * . *
A. I [said] the reputation that I've heard of Ben Hall
was he was not a reliable employee.
Q. You mean you heard that Ben Hall was not a
reliable employee. Go on, based on that what hap-
pened. what did you say?
A. I'm saying that I've got enough choices that I
don't have to take a chance on them.
6 Apart from Quillen, the only witness whom Respondent alled t estilf
about Ben Hall's work reputation was Quinton Tolliver, who is currently
employed by Respondent. Tolliver testified that he worked in the same mines
as Hall from 1942 until 1954 and that Hall's work reputation was bad. When
asked to explain what he meant. Tolliver testified:
Well I don't hardly know how to explain it but we loaded coal and
got paid by the ton. And Ben would go in there and he'd load so many
cards and he's come out most of the time before quitting time.
Tolliver further explained that there was no question regarding the quality of
Ben Hall's work but that Ben Hall's poor reputation stemmed only from the
fact that Hall quit work early. Upon closer examination it developed that
Tolliver had no valid basis for believing that Hall had followed a practice of
leaving his work before he had completed all that he was supposed to do on
his shift. I find Tolliver's testimony to be without any value, because, first, he
did not testify that he had knowledge of Ben Hall's reputation as an unpro-
ductive employee but only that it was his opinion that Ben Hall followed a
practice of leaving his shift early. and. second. olliser's testimony reseals
that he had no basis for the opinion he voiced- particularly as his testimony
relates to events 24 36 years earlier
Q. Well what reputation of Ben Hall are you talking
about?
A.* * The reputation he is not a productive worker.
A. The reputation he is not a productive worker.
Q. And because of that you didn't hire his daugh-
ters?
A. That's right.
Q. Did you ever hear any direct reputation that
they themselves were not productive workers?
A. Nope.
Q. No. So you didn't know anything about them,
you just heard that their father was unproductive?
A. Right.
Quillen was unable to explain how he learned of Ben Hall's
reputation as an unproductive worker. He was unable to
recall a single conversation with any person any place
where the subject of Ben Hall's productivity was discussed.
Quillen also testified that he knew nothing about Ben Hall's
reputation in regard to activities on behalf of the United
Mine Workers of America.
I discredit Quillen's testimony that a factor which influ-
enced his decision not to hire any of the Complainants
when he considered their respective applications was their
ftther's reputation as an unproductive worker. Ben Hall
had no such reputation. On the other hand, Respondent's
operations are nonunion. Ben Hall is known in the commu-
nit- as an active union advocate. Quillen admitted that he
knew Hall was prounion. I infer. based upon all the evi-
dence adduced at the hearing, that Quillen also knew that
Ben Hall was an active supporter of the Union. I find, as
Quillen testified, that Ben Hall's "reputation" influenced
Quillen's decision not to hire the Complainants. However. I
find that it was Hall's "reputation" as a prounion man that
was the influencing factor and not, as Quillen testified.
Hall's reputation as an unproductive worker.
Discussion
An applicant for employment has a statutory right to be
considered for employment on a nondiscriminatory basis.
and whether the applicant has received such treatment does
not depend upon the availability of a job at the time the
application is acted upon.' Because unlawful considerations
motivated the decisions not to hire the Complainants, viola-
tions of the Act occurred in May 1975 and on September 24
and 29. 1976. when the respective applications of Collins,
Bentley, and Vera Hall for employment with Respondent
Phelps Dodge Corporation v. N. L R.B., 313 U.S. 177 (1941): V L.R.B. v.
The Lummu.r Company. 210 F.2d 377. 381 (5th Cir. 1954); Sarkes Tar:ian.
Inc . . NL.R.B. 374 F.2d 734 (7th Cir. 1967). cert. denied 389 U.S. 839
11967). When an application for employment is discriminatorily rejected. a
violation of Sec 8(aX I) and (3) takes place regardless of whether a job was
then available for the applicant. "The availability of a job for which [the
applicant] was qualified and has applied was necessary for the Board's con-
sideration only in relation to the remedy which would best effectuate the
policy underlying the act" Sarker 7Tar:an. supra at 738. Shawnee Industries,
Inc. eta., 140 NLRB 1451, 1452 53(1963). enfd. in pertinent part 333 F.2d
221 (0 Ith Cir 1964).
549
. .
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were considered and rejected. There is no direct evidence
that the applications of the Complainants were reviewed or
were reconsidered again, and Quillen specifically testified
that they were not. As the rejections occurred prior to May
23, 1977, Respondent's answer pleads that the time limita-
tions proviso of Section 10(b) requires that the complaint be
dismissed.
General Counsel and the Charging Parties argue that the
Complainants did not have actual or constructive notice of
the facts constituting the alleged unfair labor practices until
late summer 1977- prior thereto they believed that they
had been denied employment by Respondent because of
their sex and therefore the limitations period did not com-
mence running until then. This argument, as Respondent
points out, "blithely ignores" the complaint, which alleges
that the unfair labor practices began not when the Com-
plainants admittedly were rejected for employment by Re-
spondent which then in effect would allege that the stat-
ute of limitations had been tolled---but as of May 23, 1977,
precisely 6 months before the first of the charges in these
proceedings was filed and served. Thus, the theory of the
complaint is that there was no tolling of the statute of limi-
tations. At the hearing I excluded evidence which otherwise
might have been admissible had the complaint not excluded
consideration of unfair labor practices antedating May 23,
1977, and Respondent was given no opportunity to meet
the issue of, and to adduce evidence in relation to, whether
the 10(b) limitations period was tolled. "[Tlhe Board has
consistently fbllowed a liberal policy with respect to allow-
ing the amendment of complaints during litigation
thereof."' General Counsel had opportunity to amend the
complaint to raise the question, but he did not do so. As the
issue was not pleaded and was not litigated, I find no merit
to the contention that the 10(b) limitations period has been
tolled in these cases.
General Counsel urges other theories as to why the com-
plaint is not time barred. One, which was advanced during
the hearing, is that when Respondent received the respec-
tive applications for employment from the Complainants, it
consciously decided not to hire them for reasons that are
unlawful, and, although there was no further review or re-
consideration of the applications, nevertheless, every time
thereafter that a new employee was recruited for a job
which one of the Complainants was qualified to fill, another
and a separate violation of the Act took place. Under this
theory it was necessary for General Counsel to prove that
after May 23. 1977, vacancies for which the Complainants
were qualified occurred and were filled by new hires. Gen-
eral Counsel adduced evidence directed toward proving
such facts but succeeded in establishing only that two va-
cancies were filled by new hires for which the Complainants
had comparable or better qualifications. These jobs were
filled on May 1, 1978, by Sherry Holland and Bonnie How-
ard. However, in his brief, General Counsel abandons this
theory and asserts that "the question of the would-be dates
of hire but for unlawful discrimination by the hiring em-
ployer is remedial in nature and therefotre is not to be con-
sidered in the unfair labor practice hearing stage of the
IJefferson Chemical Compunr, Inc., 220 NL.RB 992 11972). See also (ord
North American Moing & Storage C(ompanri 227 NL.RB 1986 (1977).
proceeding." He further contends that "it is inappropriate,
at this stage in the proceedings. to determine a particular
certain [date] at which time the Hall sisters would have
been hired but for Respondent's discrimination against
them."9 General Counsel sensibly abandoned this theory.
Apart from other considerations, the thrust of the theory
would be to except applicants for employment from the
time limitations proviso of Section 10(b) - a proposition for
which there is no support in the legislative history of the
Act or in Board or court precedents."'
General Counsel's primary theory is extracted from a sin-
gle sentence in a footnote in La-Z-Bov Tennessee, 233
NLRB 1255 (1977), where the Board states, "We agree with
the Administrative Law Judge that Respondent's refusal to
rehire Ferrell Hensley was a continuing violation of the
Act." (Emphasis supplied.) The only other case General
Counsel cites in support of the continuing-violation theory
is Peabody Coal Company, 197 NLRB 826 (1972). While
General Counsel does not define the term "continuing vio-
lation." he offers the following rationale for the concept:
Unlike [the] discharge of an employee, where a date in
time can usually be fixed with relative certitude, the
exact moment in time in which an employer refuses to
hire an employee is difficult to peg. The very nature of
the act is marked, not by action, removal of an em-
ployee, but [by] inaction, the subjective refusal to act
on [the] application. It is manifestly difficult, if not im-
possible, to prove when in time an employer decided
not to take action, when it decided not to hire an appli-
cant. To establish such date certainly involves delving
into the employer's subjective state of mind. However,
it is difficult, it' not impossible to adduce such subjec-
tive evidence through the trial technique of examina-
tion of witnesses.
There are two problems with General Counsel's thesis: one,
it is not an explanation anywhere expounded by the Board.
and, two, it has no valid basis in fact or in law. For in-
stance, in these cases there is direct evidence as to when
Respondent refused to hire each of the Complainants, and
most of the reported cases involving unlawful refusals to
hire fix the times when the refusals occurred. Also, contrary
to General Counsel, an unlawful refusal to hire is usually
characterized by action the employer's action in filling the
vacancy and the employer's action in not hiring the alleged
9 Ernestine Bentley in her brief argues:
The unfair labor practices about which Ms. Bentlev complains occur
on each date another individual is hired. Since there were individuals
hired to fill positions for which she and her sister were qualified after
May 1977, it is indisputable that her claim is timely.
Noteworthy, however. is that she does not describe by name or otherwise the
individuals who were hired to fill such positions.
In some circumstances, as in the Shawnee and the Sarke Tarirzau cases.
rupra, an employer may violate Sec. 81a(3) by refusing to hire an applicant
even though there is no vacancy for the applicant to fill, and, in such case,
the availability of a job for the applicant is relevant only in relation to the
remedy. 'This principle would apply here with respect to the admitted deci-
sions by Quillen not to hire the Complainants prior to May 23. 1977. How-
ever. under the theory advanced by General Counsel at the hearing, the
revival of the time-barred unfair labor practices depends upon proof that
vacancies actually had been filled by new hires within the 10(b} period.
° See Hershe Chocolate Corporation 129 NLRB 1052. 1054 (1960):
N. ..R.B. v. The Electric Furnace Co. and Salem Fabricating & Machine Co..
327 F.2d 376 (6th Cir. 1964).
550
SOUTH EAST COAL COMPANY
discriminatee for the available job. General Counsel's thesis
suggests a novel proposition of law, to wit, that if it is diffi-
cult to prove all the elements of an unfair labor practice by
direct or circumstantial evidence, then the missing elements
will he inferred.
Also, Peabody Coal, supra, upon which General Counsel
relies, does not support the continuing-violation theory. Ac-
cording to General Counsel, in that case "the Administra-
tive Law Judge found that while the initial application of
the discriminatee fell outside the IO(b) period, and he was
initially turned down for employment outside that period,
the fact that the employer hired another employee within
the 10(b) period, knowing full well that the original appli-
cant discriminatee had not abandoned his application, was
enough to establish a refusal to hire within the 10(b) pe-
riod."" This is a misconstruction of the Administrative aw
Judge's findings in the case. Although the decision may not
be a model of clarity, it follows and applies the established
principle that each unlawfully motivated refusal to hire an
applicant for employment is a separate and distinct unfair
labor practice, and finding a violation of the Act is not
barred by Section 10(b) because one or more of the unlaw-
ful refusals to hire occurred outside the limitations period.
Thus, in Peabody Coal the Administrative Law Judge
states: "To meet the requirements of Section 10(b) it is the
General Counsel's burden to establish that the discrimina-
tion alleged to have occurred on and after March 23, 1970.
did in fact occur then or thereafter and not before. The
controlling element of this burden is necessarily theJact of
the discrimination and not merely an inference or presump-
tion that discrimination did occur because, based upon
what occurred earlier, it should have occurred. " ,' He then
proceeded to find that respondent employer had made spe-
cific determinations not to hire the alleged discriminatees.
Scanlan and Dawson, for unlawfully motivated reasons
within the 10(b) period." The decision in Peahody Coal is
consonant with the principle stated above and not with a
theory that once an applicant is unlawfully rejected for em-
ployment, a "continuing violation" of the Act comes into
being which is not subject to the time limitations of Section
10(b).
The term "continuing violation" has appeared in Board
and court decisions over the years. The only applications of
" As General C(ounsel maintains that it is not essential to his case to prove
that within the 1O(b) period Respondent hired new employees in jobs for
which the Complainants were qualified, and as under his interpretation of
Peabod Coal proof of such fact was the necessary ingredient to revise an
otherwise time-barred unfair labor practice, then, even under General Coun-
sel's construction of Peabodya Coal, it does not support his position in these
cases.
" See Lee A Consaul Co., Inc. et al., 192 NLRB 1130. 1158 59 (1971).
,V.L.RB. s Bas Wi re Products. Incr 516 F2d 261. 267 (6th Cir. 1975);
N.L R B . McCreads and Sons, Inc. 482 F 2d 872. 874 6th ('ir 1973).
I Peabohd (1 (omnpanv. lsupra at 834.
4 See N LR.B. v. ,41brilton Engineering (Corporation. 340 F 2d 281. 285
(5th ('ir. 1965), cert. denied 382 U.S. 815, where the Court pointed out that
"Itlhe record. however, establishes that the applications of Alvarado, Remi-
rez, Faust, and Munoz were regarded by both the applicants and the Com-
pany as continuing applications." and as the company's practice was to use
these applications in filling vacancies, an unfair labor practice was com-
mitted each time thereafter that the company tbr discriminatory reasons
bypassed the applicants. The circumstances In that case established that each
time a vacanc) was filled, the applications of the alleged discriminatees were
considered and were rejected for unlawful reasons
the term in a 10(b) context. apart from its use in La-Z-Bov
Tennessee, supra. that have come to my attention are in
situations of the nature referred to by the Supreme Court in
Bryan Manu/acturing, ' that is, "an agreement invalid on its
face or . . . one validly executed, but unlawfully adminis-
tered."' 6 While I am not aware of other applications of the
term "continuing violations," another similar-sounding
term, "continuing obligation," has had much currency."
There is no difficulty with the concept described by that
term. Parties over whom the Board has jurisdiction may be
subject to obligations under the Act which are of a continu-
ing nature such as the obligation of an employer to recog-
nize the majority representative of his employees but no
unfair labor practice occurs until the obligation is violated,
and repeated violations of the same continuing obligation
constitute separate and distinct unfair labor practices.
General Counsel's interpretation of the La-Z-Bov Ten-
nessee decision is more extreme than the theory he ad-
vanced at the hearing. In essence, General Counsel asserts
that La-Z-Bov Tennessee stands for the proposition that
whenever an employer for unlawful reasons decides not to
hire an applicant, there arises a "continuing violation" of
the Act which is not subject to the time limitations proviso
of Section 10(b). While such reading of the artless language
in the Administrative Law Judge's Decision, with which the
Board states it agrees, is not entirely unreasonable. mani-
festly the Board did not intend to state any such radical
proposition in one brief sentence in a footnote to its Deci-
sion. Fortunately, guidance as to the Board's meaning may
be had from the brief and the reply brief that the Board
filed with the United States Court of Appeals for the Sixth
Circuit, Docket No, 78 1207, on application for enforce-
ment of its order in the la-Z-Bov Tennessee case. On page
20 of the Board's brief is the explanation:
In any event, as the Board concluded (A. 690. fn. I),
(Member Murphy dissenting), the Company's refusal
to hire Hensley was a continuing violation of the Act.
See N.L.R.B. v. lhritton Engineering ('o., 340 F.2d
281. 285 (C.A. 5. 1965)., cert. denied 382 U.S. 815. Kel-
ley apparently treated Hensley's application as a con-
tinuing one but purposely bypassed him when new em-
ployees were taken on (A. 688). Under the
circumstances, the Board could reasonably conclude
that the Company violated Section 8(a)(3) and (I ) each
time it bypassed Hensley and hired another employee
in September and October 1976. The Board deferred to
subsequent compliance proceedings determination of
the exact date of the unlawful refusal to rehire (A. 690,
fn. 1).
'I local Iodge %;, 1424. International A.sociatln of ftachnisL,. 4FL.
('10 /Br an Manulaaiturng fCmpam' ..s I. R, B, 362 S 41 1. 423 19601.
'° But see Internationail Union. United Automohile. 4rospace and Agricul-
tural Implement Workers of America. A FI (10 Aerospace Corporation v
N.LR.B. 363 F.2d 702. 706 (D.(.Cir. 1966). "ITIhe continuing iolation
theory . has been limited largely to situations involsing the applicatons of
union-securilt agreements which are prospective in nullre and unlavtul per
se." Bosen Produclt Corporaion, 113 NLRB 731. 732 (1955
" See Pennwoven. Inc . 94 NLRB 175. 191 (1951 ). modified 194 1: 2d 521
(3d ('ir. 1952): V LR B . lcC(readsv Sons, In,'. supra, v 1. R B Baslc
lire Prsduct, In , supral, I. R B v Auto 'Warehourers. In, 571 F: 2d 860.
865 (5th ('ir 1978)
551
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In its reply brief in La-Z-Boy Tennessee the Board states
further:
Contrary to the Company's contention (Br. 12-13),
the Board's application of the continuing violation the-
ory in the instant case is fully consistent with the deci-
sions of the Third Circuit in N.L.R.B. v. Pennwoven.
194 F.2d 521 [1952], and of this Court in N. L.R.B. v.
Basic Wire Products, Inc., 516 F.2d 261 (1975), and
N.L.R.B. v. McCready and Sons, Inc., 482 F.2d 872
(1973).
Thus, as explained in its briefs, in La-Z-Boy Tennessee
the Board found that within the 10(b) period the company.
first, had hired new employees to fill vacancies for which
the discriminatee Hensley was qualified and, second, had
bypassed Hensley when it filled those positions. As the
Board explicitly stated, in La-Z-Boy Tennessee it was not
articulating a new theory but was applying the established
principle reflected by the Pennwoven, Basic Wire, and
McCready cases,"5 which is simply that where there is proof
that an employer unlawfully has refused to hire an appli-
cant for employment within the 10(b) period the statute
does not bar the complaint because the employer previously
has decided not to hire the same employee at a time which
antedated by more than 6 months the applicable unfair la-
bor practices charge.,9
As a fallback position, General Counsel urges that the
facts herein are within the established principle that a con-
sidered rejection of an applicant for employment within the
10(b) period if for an unlawful reason is a violation of the
Act even though the applicant previously has been rejected
for employment outside the 10(b) period. According to
General Counsel, "Respondent's defense, that the Hall sis-
ters' applications were not actively considered during the
10(b) period, is frivolous, ill conceived. and not supported
by the totality of the record evidence." He advances three
grounds for this assertion: "First and foremost, it is appar-
ent that Respondent does not, and never has, consistently
maintained an effective policy of keeping employment ap-
plications active for only six months." However, General
Counsel proved only one deviation for the 6-month policy.
t ln Textile Machine Works, Inc., 105 NLRB 618. 630 (1953). enfd. 214
F.2d 929 (3d Cir. 1954), the Board specifically pointed out that it does not
treat an unlawful discrimination "like a continuing tort" and that it did not
do so in its Pennwoven decision, 94 NLRB 175 (1951), enfd. as modified 194
F.2d 521 (3d Cir. 1952).
Conceptual difficulties seem to arise in distinguishing the case of re-
peated unlawful refusals to hire an applicant for a job from a refusal to
reinstate an employee who has been discriminatorily discharged or who pre-
viously has been unlawfully denied reinstatement. The distinction between
these cases is well expressed by the court in N.L. R B v. 4cCready & Sons.
Inc., 482 F.2d 872. 874 (1973) by the following language: "This situation
[repeated refusals to hire an applicant for employment] is to be distinguished,
however, from one where the charge is based on the employer's refusal to
rehire an employee discriminatorily discharged from employment. The con-
tinuing obligation doctrine has not been applied to allow complaints based
on charges brought more than six months after the discharge but within six
months of a refusal to rehire, since the illegality of such refusals derives from
the illegality of the inital discharge." The distinction is further clarified by
the same court in N.L.R.B. v. Basic Wire Products, Inc.. 516 F.2d 261. 267
(6th Cir. 1975). where the court points out that "[in the refusal to rehire
situation, the basis of the complaint is the company's motive in firing the
employees, not the company's continuing obligation to hire without discrimi-
nation." For an exposition of the concept of continuing obligation to hire
without discrimination. see Penni.oven, Inc.. 94 NLRB 175, 191 (1951).
and, for reasons stated above, I find, contrary to General
Counsel, that the evidence adduced by Respondent that it
maintained a policy whereunder applications are consid-
ered active for only 6 months has not been rebutted. The
second argument advanced by General Counsel is that in a
prehearing affidavit Quillen averred, "It is my honest opin-
ion that both Mrs. Bentley and Mrs. Collins are not the best
available and this is the only reason I have not hired them
or ill not hire them." [Emphasis supplied.] General Counsel
contends that the phrase "or will not hire them" in Quillen's
affidavit establishes that their applications were later recon-
sidered and rejected. I disagree with General Counsel. Quil-
len specifically testified that he did not reconsider the appli-
cations of the Complainants, and the phrase "or will not
hire them" extracted from his affidavit does not mean that
he was averring that he had considered their applications
more than once, but just the opposite, that he was so firmly
convinced that they were unsatisfactory that at the first re-
view of their applications, he knew he would not then or at
any time in the future hire them. The third argument ad-
vanced by General Counsel is that because Quillen knew
that Collins and Bentley had filed sex discrimination
charges, he understood that they had a continuing interest
in obtaining employment with Respondent. The fact that
Quillen may have been aware of the Complainants' con-
tinuing desire for employment with Respondent does not
prove that in filling vacancies as they arose, Quillen gave
consideration to their applications for employment. Con-
trary to General Counsel, I find that he had not established
by a preponderance of the evidence that at any time since
May 23, 1977, Respondent considered or reviewed the ap-
plications for employment of any of the Complainants and
rejected them for employment.
In these cases the evidence is that prior to May 23, 1977,
Respondent decided for unlawful reasons that it would not
hire each of the Complainants. General Counsel has not
proved by a preponderance of the evidence that any similar
decision was made by Respondent on or after May 23.
1977, within the 10(b) period. Accordingly, I find that these
proceedings are time barred, and I shall recommend that
the complaint herein be dismissed.
CON(I.L SION OF LAW
The unfair labor practices alleged in the complaint in
these proceedings occurred more than 6 months prior to the
filing of the initial charge with the Board in these proceed-
ings.
Upon the basis of the foregoing findings of fact, conclu-
sion of law, and the entire record in these proceedings. and
pursuant to Section 10(c) of the Act. I hereb) issue the
following:
ORDER2 0
The complaint herein is dismissed in its entirety.
2O In the event no exceptions are filed as provided by Sec. 102.46 o the
Rules and Regulations of the National Labor Relations Board. the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations be, adopted by the Board and become its
findings, conclusions, and Order. and all objections thereto shall be deemed
waived fr all purposes.
552