Sweet Kleen Laundry

National Labor Relations Board - Board Decisions

Apr 30, 1991

302 N.L.R.B. 791 (N.L.R.B. 1991)

791
302 NLRB No. 122
SHANNOPIN MINING CO.
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
2 We find merit in the cross-exception to the failure of the judge to rec-
ommend that the Respondent remove from its records any reference to its un-
lawful refusal to hire Thomas E. Samek. See Sterling Sugars, 261 NLRB 472
(1981). We shall modify the recommended Order and substitute a new notice
adding the appropriate remedial expunction language.
Shannopin Mining Company and United Mine
Workers of America. Case 6–CA–22197
April 30, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On January 8, 1991, Administrative Law Judge
Leonard M. Wagman issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel filed a limited cross-exception, a
supporting memorandum, and an answering brief. The
Charging Party filed both a declaration joining in the
General Counsel’s limited cross-exception and an an-
swering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three member
panel.
The Board has considered the decision and the
record in light of the exceptions, cross-exception, and
briefs and has decided to affirm the judge’s rulings,
findings,1 and conclusions and to adopt the rec-
ommended Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Shannopin Mining Company, Bobtown, Pennsylvania,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Insert the following as paragraph 2(b) and reletter
the subsequent paragraphs.
‘‘(b) Remove from its files any reference to the un-
lawful refusal to hire Thomas E. Samek and notify him
in writing that this has been done and that the refusal
to hire him will not be used against him in any way.’’
2. Substitute the attached notice for that of the ad-
ministrative 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 or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discourage membership in and sup-
port for, or activities on behalf of United Mine Work-
ers of America, or any other labor organization, by dis-
criminating in any manner against any of our employ-
ees in regard to their hire and tenure of employment
or any term or condition of employment because of
their union membership, sympathies, or activities.
WE WILL NOT coercively interrogate job applicants
about their union membership, sympathies, or activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer immediate employment to Thomas E.
Samek as an inside miner at our Shannopin mine or,
if such position does not exist, to a substantially equiv-
alent position, discharging, if necessary, any employee
hired in his stead on or after September 7, 1989.
WE WILL make Thomas E. Samek whole for any
loss of earnings and other benefits he may have suf-
fered as a result of the discrimination against him, plus
interest.
WE WILL notify Thomas E. Samek that we have re-
moved from our files any reference to our refusal to
hire him and that such refusal will not be used against
him in any way.
SHANNOPIN MINING COMPANY
Stephanie Brown, Esq., for the General Counsel.
Joseph Mack, III. Esq. (Thorp, Reed, Armstrong), of Pitts-
burgh, Pennsylvania, for the Respondent.
Paul Girdany, Esq., of Washington, Pennsylvania, for the
Charging Party.
792 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1989, unless otherwise indicated.
2 The Company’s mine superintendent, Alfred A. Smalara, testified that the
use of the VG test score was the Job Service’s choice. However, later, on
cross examination, after flatly denying that in 1989, the Company used the VG
test scores as a criterion for accepting job applicants for underground mining
employment, Scalara contradicted himself, and admitted that they were used
‘‘[a]s a screening tool.’’ He did so, after counsel reminded him of the earlier
testimony of Job Service employee Barbara L. Cole. Ms. Cole had testified
that the VG test score was one of the requirements which the Company im-
posed on applicants for mining jobs, in 1989. Of the two, Cole was more
forthright. She consistently testified in an objective manner. In contrast, under
cross-examination, Scalara was, at times, evasive. Accordingly, where their
testimony conflicted, I have credited Cole.
3 My findings regarding Dominic Esposto’s conversation with employee
Novak, are based on the latter’s uncontradicted testimony. That Novak was a
candid witness, and was a Company employee at the time he testified, per-
suaded me to credit his testimony in this regard. I also noted that the Company
neglected to call Dominic Esposto as a witness and to assert that he was un-
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge. This
case was tried in Pittsburgh, Pennsylvania, on May 16 and
23, 1990. The charge and an amended charge were filed by
the Union, United Mine Workers of America, on October 24,
1989, and January 12, 1990, respectively.1 A second amend-
ed charge was filed on April 17, 1990. The complaint was
issued on December 29. An amendment to the complaint was
issued on April 20, 1990. The complaint, as amended, al-
leged that the Respondent, Shannopin Mining Company
(Company), had violated Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act, as amended (29 U.S.C. 151 et
seq.) (the Act), by questioning job applicants about ‘‘their
union membership, activities and sympathies’’ and by refus-
ing to hire Thomas E. Samek. The Company filed a timely
answer, and an amended answer, denying that it had com-
mitted the alleged unfair labor practices.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel, the Union, and the Company,
I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company, a Pennsylvania corporation, mines, and
sells at nonretail, coal, at its facility in Bobtown, Pennsyl-
vania, where, during the 12 months ending September 30, in
the course of its business, it sold and shipped products,
goods and materials valued at more than $50,000, directly to
points outside of the Commonwealth of Pennsylvania. The
Company admits, and I find, that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act and that the Union, is a labor organization within
the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
he Company employs approximately 200 employees in the
operation of its underground coal mine located at Bobtown,
Pennsylvania. The Union has represented the Company’s em-
ployees since 1980. In that year, the Company was incor-
porated and acquired the mine.
Since 1984, the Company and the Pennsylvania Job Serv-
ice, an agency of the Commonwealth of Pennsylvania, have
been parties to a written, total placement agreement. Under
that agreement, the Waynesburg, Pennsylvania, office of the
Job Service is the source of the Company’s clerical employ-
ees, security guards, and underground employees. The Job
Service processes employment applications and assists the
Company in the selection of qualified job applicants.
The Job Service normally accepts job applications for un-
derground mine jobs for a short period each year. In 1989,
the Job Service announced that it would accept such applica-
tions for 2 weeks in April. Persons seeking employment with
the Company filed their applications at the Job Service’s
Waynesburg office, and were given a general validity test,
referred to as a ‘‘VG’’ test, which measures general aptitude.
The Job Service maintains a file of job applications and VG
test results.
Pennsylvania does not require the VG test as a prerequisite
for employment as an underground miner in the State. Em-
ployer’s enjoy the option of using VG test results as a quali-
fication for mine employment.2 The Company uses VG test
scores to screen job applicants.
When the Company seeks job applicants, it contacts the
Job Service’s Waynesburg office and sets forth the qualifica-
tions in terms of experience, skills, and the VG test. Based
upon the Company’s instructions, the Job Service writes a
‘‘job order’’ showing the number of jobs to be filled, and
the required qualifications.
Shortly before June 2, the Company’s mine super-
intendent, Alfred A. Smalara, asked the Job Service to ar-
range a schedule of a single afternoon’s interviews for quali-
fied job applicants. The Job Service’s job order, dated June
2, showed that Smalara requested that applicants be at least
18 years old, and have a State miner’s certificate, 5 years’
mining experience, and the VG test. The Job Service sent to
the Company a list of job applicants arranged in ascending
order of VG test scores, and scheduled the top 13 applicants
for interviews to be conducted on June 2, at the Waynesburg
office. One of the persons to be interviewed was Thomas E.
Samek, who had the third highest VG score on the Job Serv-
ice’s list of Company job applicants. Samek had worked at
J. & L. Steel’s Vesta Number 5 Mine from 1977 until March
1, 1982, when he was laid off. From 1983 until his layoff
on December 31, 1988, the Union had employed him as an
international representative.
On April 4, Samek saw a notice at the Job Service, an-
nouncing that it was accepting job applications for the Com-
pany. Samek filled out an application and, later in April,
took the VG test. During the week after he took the test, the
Union reinstated him as a temporary representative, and as-
signed him to the Pittston Coal strike, in southwest Virginia.
In the early spring, employee Leonard Novak, who is
president of the Union’s local at the Company’s mine, con-
versed with the Company’s president and part owner,
Dominic Esposto, about the employees’ insurance problems.
Esposto asked Novak if he preferred a job with insurance or
no job at all. Novak answered that considering the scarcity
of jobs and his status as a union official, he doubted that any
other mine would hire him, if he lost his current job. Esposto
replied: ‘‘I don’t blame any other company for not hiring
union officials because I wouldn’t either.’’3
793SHANNOPIN MINING CO.
available to do so. These omissions suggested that Esposto would not have
contradicted Novak.
In late May, the Union assigned Samek to conduct bath-
house meetings at the Company’s mine and at other nearby
coal mines. At these meetings, Samek spoke about the
Pittston strike to mine employees, as they prepared for work
or cleaned up after work. On the afternoon of June 1, Samek
learned that on the afternoon of June 2, the Company was
to interview him for a job. Somewhat reluctantly, Samek
conducted a bathhouse meeting at the Company’s mine on
the afternoon of June 1.
On June 2, Samek appeared at the Job Service’s
Waynesburg office, in time for his scheduled interview. The
receptionist tendered some forms to Samek, including a job
application, which he filled out and returned to her. There
were three applicants ahead of him. After approximately 45
minutes, it was Samek’s turn to be interviewed.
The Company’s mine superintendent, Alfred A. Smalara,
and its assistant mine superintendent, Richard M. Esposto,
interviewed Samek. Dominic Esposto, Richard’s father is,
and was at all times material to this case, the Company’s
president and one-fourth owner. Smalara and Samek knew
each other from prior contacts. After introducing him to
Richard Esposto, Smalara turned to Samek and remarked: ‘‘I
see you’re working for the Mine Workers Union again.’’
Samek answered that he was working for the Union on a
temporary basis. He went on to ask how Smalara knew about
his current employment by the Union, which had begun after
Samek had filed his earlier application for employment by
the Company. Smalara replied that he had noted Samek’s
comments regarding the Pittston strike in a newspaper.
Smalara asked about Samek’s current work assignment
from the Union. Samek explained that the Union had as-
signed him to the Pittston strike in southwest Virginia, where
he was involved in paying and servicing benefits for Union
members. Smalara asked how Samek thought the strike was
proceeding. Samek sounded a pessimistic note, answering
that it was ‘‘going to get ugly,’’ and that the end of the
strike was not in sight.
Samek did not assure Smalara that the Pittston strike
would not impact upon the Company. When Smalara asked
if the strike would spread, Samek pointed out that it had al-
ready spread into southwest Virginia. Samek added that he
hoped it would not spread into the Company’s area, but cau-
tioned that he ‘‘wouldn’t know for sure.’’ Smalara said that
the Company would be very appreciative, if Samek would
see to it that the strike did not affect the Company. Samek
said he was not in a decision-making position, but that when
he returned to Virginia, he would convey Smalara’s concerns
to those who were directing the Pittston strike.
Smalara asked why Samek was not in Virginia, working
on the Pittston strike. Samek revealed that he was conducting
bathhouse meetings for the Union at local coal mines for the
week. Esposto said that he and Smalara knew of Samek’s ac-
tivity, having seen him through their office window, on the
day before, as he entered the Company’s bathhouse. Samek
learned from further discussion, that the Union’s local had
not afforded the Company advance notice of his visit. Samek
apologized and promised to call Smalara prior to his next
visit to the Company’s premises on Union business. Smalara
answered that instead of calling, Samek should stop at the
mine office before pursuing union business on the Com-
pany’s property.
After a brief discussion of where Samek lived and why he
needed a job closer to home, he said that the Company was
one of the places he would prefer to work at. Samek com-
plained that working away from home was a hardship for
him and his family.
Esposto asked about Samek’s mining experience at the
Vesta Number 5 mine. Samek answered that he had worked
there for approximately 5 years. He stated that he had
worked as a general inside laborer with a DC electrician and
a pipeman, and had operated a continuous miner, various
types of roof bolters, a shuttle car and a scoop tractor. Samek
boasted that he was ‘‘the best shuttle car operator in the
world.’’ He also asserted that he had been a conveyor belt
mechanic, a first class welder, a washer mechanic, had
worked alternate positions as dispatcher, control room oper-
ator, and had been on the move crew. Esposto asked Samek
some questions about his conveyor belt experience at Vesta
Number 5.
Esposto asked how Samek had gotten along at Vesta Num-
ber 5. Samek said he had gotten along very well. Esposto
asked if Samek had processed grievances. Samek answered
that he had not been a committeeman, but had filed two
grievances for himself. Samek explained his grievances and
their successful results. Esposto went on to inquire if Samek
had held any local union office. Samek denied that he had
sought or occupied any local union elective office. However,
he volunteered that he had served on an audit committee to
review the local’s books, and had been on its election com-
mittee. Esposto went on to ask if Samek had worked for the
Union’s district. Samek answered that he had not had any
political job in the district.
Finally, Esposto inquired about how Samek had obtained
employment with the Union. Samek explained how the
Union first employed him temporarily to help organize a coal
mining company, then gave him a second temporary assign-
ment, and finally employed him as an international represent-
ative, until December 31, 1988.
Smalara asked Samek how he felt about the Union, after
it had gotten rid of him. Samek answered that if he did not
have anything good to say, he would not comment.
Samek felt uncomfortable and wanted to talk about his at-
titude toward work. He said he had worked hard for his
brother and the Union, and would do the same for the Com-
pany. Samek provided a list of references. Catching a
glimpse of a list of VG test scores, Samek asked how he had
done. Smalara answered that Samek had done well. When
Samek pressed for more information, Smalara answered that
he had scored 96-96, and that the highest score on the list
was 98-96.
Smalara asked Samek, if he were offered a job, how soon
could he report to work. Samek looked at his watch, said that
it was ‘‘getting late’’ and added, ‘‘but if you want, I can be
there for the afternoon shift.’’ Smalara and Esposto agreed
that it was getting late and that they might be finished.
Changing the subject, Smalara suggested that Samek would
be going to Carmichaels that evening. Samek said he did not
understand Smalara’s remark. Smalara informed Samek that
the Union’s President Trumka would be speaking at
Carmichaels that evening, and suggested that Samek would
be there to clap for him.
794 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Of the three participants in Samek’s job interview, Samek impressed me
as being the most candid in testifying about it. I also noted that Samek seemed
to be providing his best recollection as if he were reliving the interview.
In contrast, cross-examination revealed that Esposto and Smalera were at
times careless in presenting their recollections of the interview. Thus, Esposto
claimed that he had looked at the front and reverse sides of Samek’s job appli-
cation, yet, on cross examination, he conceded that there was no reverse side
in that application. Esposto testified that during the interview, Samek said he
resided in Carmichaels. On cross-examination, after seeing Samek’s applica-
tion showing a Waynesburg address, Esposto conceded that Samek might have
said he lived in Waynesburg.
Smalara testified that on June 2, he asked Samek about the Union’s Camp
Solidarity, which had been mentioned in the Mine Worker Journal. I find it
unlikely that Smalara had even heard about that camp on or before that date.
For, credited testimony of a Union international representative, and Samek,
showed that Camp Solidarity opened on June 6, without any press release prior
to that date, and that the Mine Worker Journal did not mention Camp Soli-
darity until August or September. Smalara also contradicted Esposto and
Samek when he denied that Samek’s interview on June 2, included any discus-
sion of where he lived.
5 I based my findings regarding the content of the Company’s second re-
quest for job applicants from the Pennsylvania Job Service, upon Barbara
Cole’s testimony and the Service’s job order. Cole was a careful witness, who
seemed conscientious about searching her memory and articulating the full ex-
tent of her recollection objectively.
Smalara, testifying for the Company, asserted that since 1988, he has re-
quested no less than 5 years’ experience as a requirement for Company job
applicants coming through the Pennsylvania Job Service. However, the manner
in which he testified about the Job Service’s August job order cast doubt upon
his testimony regarding the 2-year requirement it contained. At first, Smalara
seemed reluctant to testify that Barbara Cole and the Job Service had erred.
He hedged, testifying that he did not remember ‘‘consciously ever asking for
two years.’’ Next, he testified that he did not know why the 2-year require-
ment was on the job order. After further reflection, and a third question on
the same issue, Smalara flatly denied ever asking for a two year experience
requirement, when recruiting mine employees for the Company, through the
State Job Service.
Smalara’s first two answers were evasive. It was not until he apparently had
time to think, that he answered directly. As this episode cast serious doubt
upon the reliability of Smalara’s denial, I have rejected it and have credited
Barbara Cole’s contradictory testimony.
6 I have credited Samek’s uncontradicted testimony regarding his encounter
with Dominic Esposto, who did not testify before me.
7 I have credited Samek’s and Petro’s detailed testimony regard the remarks
which passed between them and Smalara when they met at the Company’s fa-
cility in in early October. Smalara testified that his discussion with Samek was
‘‘small talk’’ and he could not remember what they talked about. Smalara’s
quick treatment of this encounter after suggesting that the matter of Samek’s
rejection had come up, hinted that Smalara was reluctant to search his recol-
lection about this incident.
Samek shook hands with Smalara and Esposto and was
moving toward the door. As he left the room, Samek said
that he needed the job, would work hard if he got it, and,
if notified early enough in the morning, would report to the
Company’s mine for the afternoon shift. The interview had
taken about 45 minutes. I also find from Samek’s testimony
that Smalara’s and Esposto’s questions about his union activ-
ity took up most of the interview. The Company has never
offered a job to Samek.4
The Company did not hire any of the thirteen job appli-
cants it had interviewed on June 2, until September 7, when
it hired Gary Morris, who had approximately 11 years’ coal
mining experience and had scored 92-94 on the VG test. The
Company later hired applicant Gary Hazuga as a foreman.
In August, the Company sought a new group of job appli-
cants through the Pennsylvania Job Service. The Company
requested that applicants have at least 24 months of mining
experience, and a high school education, be at least 18 years
old, and pass a Company physical examination. VG test
scores were also used to screen applicants. However, the
record does not reveal the scores of the 25 applicants named
on the job order. There were no interviews of these appli-
cants. In September, the Company hired thirteen of them and
Gary Morris.5
The Company hired 10 additional employees between Feb-
ruary 19, 1990, and April 6, 1990, both dates inclusive.
Among them were Samuel Hall and Clare Fraenzl, who were
in the group of 13 interviewed on June 2. The Company
hired Clare Fraenzl and a second female applicant, Denise
Hutchinson, on March 20, 1990, pursuant to the settlement
of a sex discrimination case before the Equal Employment
Opportunity Commission. The Company gave prehire inter-
views to the remaining seven employees in this group.
In October, Samek along with Ed Yankovich, who was a
union district president, and International representatives Carl
Petro, and Larry Pasquale, attended the opening of a new op-
eration on the Company’s premises. When the four union of-
ficials arrived, the Company issued to each of them, a name
tag which had ‘‘UMWA’’ inscribed on it.
After the presentation and speeches, Samek met Dominic
Esposto, who was circulating and shaking hands. Upon see-
ing Samek’s name tag, Esposto said: ‘‘[O]h, I see who you
are, you are one of them.’’ Samek squeezed Esposto’s hand
and announced that he was ‘‘Tom Samek with the Mine
Workers Union . . . .’’ Esposto ‘‘pulled his hand away and
walked away from [Samek].’’6
Samek next came upon Union Representative Petro con-
versing with Superintendent Smalara. Noting that he, Petro
and Smalara had worked at the J. & L. coal mine, Samek
asked if this conversation was a J. & L. alumni meeting.
Smalara said it was. Smalara asked Samek if he had worked
at the J. & L. Vesta mine. After saying he had, Samek asked
Petro if he had worked at the Bobtown mine. Petro said he
had. Smalara joined in the exchange, saying that he had not
hired Petro. Samek looked at Smalara and said, ‘‘Well, you
didn’t hire me either.’’ Smalara denied that he had refused
to hire Samek and said that Rick Esposto had made that de-
cision. Petro remarked that Smalara would not hire him pres-
ently. Smalara agreed and ended the conversation.7
B. Analysis and Conclusions
The General Counsel and the Charging Party urge a find-
ing that the Company discriminated against Thomas Samek
by refusing to employ him because of his activity as a union
representative, and thereby violated Section 8(a)(3) and (l) of
the Act. It is also urged by the General Counsel and the
Charging Party, that the Company violated Section 8(a)(1) of
the Act, by questioning Samek about his union activity dur-
ing the job interview on June 2. The Company contends that
the General Counsel has failed to show that union activity
played any part in the Company’s decisions to hire other ap-
plicants in preference to Samek. Further, the Company con-
tends that the questioning complained of was not unlawful,
on the ground that it was not coercive. Contrary to the Com-
pany, I find that the General Counsel has, by ample proof,
shown the alleged violations.
Section 8(a)(3) of the Act prohibits an employer from re-
fusing to hire a job applicant because of his or her union ac-
tivity or prounion sentiment. To establish such a violation
here, the General Counsel was required to make a Drima
facie showing sufficient to sustain the inference that union
activity was a motivating factor in the Company’s rejection
795SHANNOPIN MINING CO.
8 According to Smalara’s testimony, he asked Samek about Camp Solidarity,
on June 2, because the Pittston strike ‘‘was rather prominent in the news,’’
and he was curious about the Union’s new tactics in support of its strike.
of Samek’s quest for employment at its mine. If the General
Counsel satisfied that requirement, the refusal to hire Samek
must be found unlawful unless the Company has shown, as
an affirmative defense, that it would have rejected him even
in the absence of his union activity. NLRB v. Transportation
Management Corp., 462 U.S. 393, 402–403 (1983), affg.
Wright Line, Inc., 251 NLRB 1083 (1980), enfd. on other
grounds 662 F.2d 899 (lst Cir. 1981), cert. denied 455 U.S.
989 (1982). If the record shows that the business reasons ad-
vanced by the Company for rejecting Samek were
pretextual—that is, that the reasons either do not exist or
were not in fact relied upon—it necessarily follows that the
Company has not met its burden and the inquiry is logically
at an end. Wright Line, Inc., 251 NLRB at 1084. Applying
this formula, I am satisfied that the Company has resorted
to pretext in its effort to keep a union activist off of its pay-
roll.
Before Samek’s job interview began, Superintendent
Smalara and Assistant Superintendent Esposto knew that he
was working for the Union as a temporary representative.
They knew that he was assisting the Union in the conduct
of the Pittston coal strike. These two bits of information they
had gleaned from a newspaper. In addition, Samek’s applica-
tion showed that from February 1983 until December 31,
1988, the Union had employed him as an international rep-
resentative.
Smalara was not satisfied with the information he had ob-
tained from Samek’s application and the newspaper item. He
proceeded to ask Samek about his current assignment from
the Union. Samek outlined his duties in support of the strike.
Smalara wanted to know what Samek was up to in Pennsyl-
vania. When Samek mentioned the previous day’s bathhouse
meeting at the Company’s facility, Esposto revealed that he
and Smalara knew about it.8
Following a discussion of where Samek lived and his min-
ing experience, the questions reverted to Samek’s union ac-
tivity. Esposto asked about Samek’s union activity during his
employment at the J. & L. Vesta mine. Esposto wanted to
know if Samek had processed grievances under a union con-
tract, if he had held any local union office, and if he had
worked for the Union’s district office. Esposto asked Samek
how he had obtained employment with the Union.
Smalara also expressed interest in Samek’s sentiment to-
ward the Union. Smalara asked Samek how he felt about the
Union, after it had laid him off at the end of 1988. Samek
answered that if he did not have anything good to say, he
would withhold comment.
Smalara and Esposto revealed their preoccupation with
Samek’s activity as a union representative and his attitude to-
ward the Union in the context of an interview for a job in
the Company’s mine. By this conduct, they also interfered
with Samek’s statutory right to engage in union activity and
support a union. Indeed, the Board has recognized that an
employer’s questions regarding union activity or union sym-
pathies ‘‘ in the context of a job interview are inherently co-
ercive and thus interfere with Section 7 rights.’’ Service
Master All Cleaning Services, 267 NLRB 875 (1983). Ac-
cordingly, I find that by questioning Samek during his job
interview on June 2, about his activity on the Union’s behalf,
and about his attitude toward the Union, the Company vio-
lated Section 8(a)(1) of the Act.
I also find ample evidence of the Company’s hostility to-
ward Samek’s union activity. The Company’s resort to un-
lawful interrogation during Samek’s interview on June 2, was
a manifestation of the Company’s animus toward his activity
as a union representative. A suggestion of the Company’s at-
titude toward union officials surfaced earlier in the spring,
when employee Novak conversed with Richard Esposto’s fa-
ther, Dominic. In the course of this discussion, Dominic
Esposto, the Company’s president and part owner, said he
would not hire any union officials. In October, Dominic re-
fused to finish a handshake with Samek, after learning that
he was an employee of the Union.
Superintendent Smalara apparently shared Dominic
Esposto’s sentiment toward Union officials. In October,
Smalara conceded that he would not hire Union Representa-
tive Carl Petro. At the time of this exchange, Petro was
wearing a name badge reflecting his affiliation with the
Union as a representative.
I find that at the time he participated in Samek’s unlawful
interrogation, and since, Richard Esposto had, and continues
to have, the same hostility toward union officials that
Dominic, his father, expressed in April, and later exhibited
in October, when he came upon Samek. Richard worked at
the Company’s mine as an assistant superintendent. His fa-
ther, Dominic was the Company’s president and part owner,
and thus was also Richard’s boss. The family and business
ties between the father, Dominic, and the son, Richard, pro-
vided ample opportunity for them to discuss an important
concern, such as the Company’s employment policy. In par-
ticular, Dominic certainly would have shared his opinion
with Richard, regarding union officials and their suitability
for employment as rank-and-file coal mine workers. Rich-
ard’s questions to Samek suggested that he had the same
opinion as did his father.
That the Company had hired a chairman of a union mine
committee and a member of a union safety committeeman
prior to its refusal to employee Samek, did not rebut the
strong evidence of animus which I have recited above. For
unlike Samek, there was no showing that either of these em-
ployees had been union International representatives prior to
their employment by the Company, or that either had en-
gaged in active support of a major strike, or had actively as-
sisted in the organization of a mine. Nor was there any
showing that the Company had ever hired a union Inter-
national representative, or any other Union official, prior to
or since Samek’s application for employment at its mine.
Between June 2 and April 6, 1990, both dates inclusive,
the Company hired 24 mine employees. Samek was not one
of them. Richard Esposto conceded that Samek had as much
experience as some of the applicants hired during that period;
that Samek’s interview of June 2 went well; that Samek said
he very much wanted to work for the Company; and, that
Samek had all the qualifications the Company wanted.
From the foregoing array of facts, I find that the General
Counsel has made a prima facie showing that the Company
refused, and continues to refuse, to employ Thomas Samek
because of his activity on behalf of the Union. The timing
of the Company’s refusal, after Dominic Esposto’s remark
that he would not employ union officials, and after the exten-
sive unlawful interrogation of Samek, in which he revealed
796 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
his union activity to Superintendent Smalara and Assistant
Superintendent Richard Esposto, and Richard Esposto’s ad-
mission that Samek was qualified for employment by the
Company, provided strong support for the General Counsel’s
contention.
Smalara and Richard Esposto testified that all of the mine
employees the Company hired after June 2 were better quali-
fied than Samek. Thus, according to their testimony, Samek’s
qualifications, rather than his union activity deprived him of
employment at the Company’s mine. Some doubt is cast
upon this explanation by the Company’s failure to provide
that explanation to Samek in early October, when he implied
to Smalara that his employment as a Union representative
was the reason Smalara had not hired him. Instead of offer-
ing any explanation, Smalara told him that it was Rick
Esposto who had not hired Samek. Smalara’s refusal to offer
lack of experience in mining or any other deficiency in re-
sponse to Samek’s remarks, suggests that Company’s defense
before me was an afterthought.
The record belies the Company’s excuse for not employ-
ing Samek. According to Smalara, Samek was ‘‘an unknown
entity as far as we (the Company management) were con-
cerned.’’ Yet Clyde Burrie, whom the Company hired to
start work on September 7, was known by the Company only
as a guard. There was no showing that the Company had any
information about the quality of his mining work. I also note
that Burrie’s application shows only that he worked as a
miner from sometime in 1980 until an undisclosed date in
1983. Samek’s application showed that he worked as a miner
for almost five years. The Company did not even bother to
interview Burrie to find out more about his mining career.
Yet, based upon Burrie’s work as a guard, and the sketchy
information in his application, the Company hired him in
preference to Samek, who was fully qualified, and had un-
dergone a full interview which, according to Richard
Esposto, ‘‘went well.’’
The Company hired Joseph Lucas, effective September 7,
on the recommendation of its General Mine Foreman James
G. Price and three hourly employees. However, all Price
knew about Lucas was something about his family, and
where he lived. According to Richard Esposto’s testimony,
he based his decision upon the recommendation of employee
Bob Vance, who had worked for the Company for 8 months
or a year and is ‘‘a real good worker,’’ and who promised
to quit if Lucas was not as good a worker as Vance was.
Lucas’ application shows that he worked for ‘‘Cumberland
Mine’’ from ‘‘2–82’’ until December 19, 1986. Lucas’s ap-
plication recites that during that time he performed ‘‘both
construction and production mining.’’ In a space provided for
‘‘Special Skills and Qualifications’’ on his application, Lucas
stated that he ‘‘can operate most underground equipment’’
and went on to detail his construction experience.
Bearing in mind that the Company did not interview
Lucas, all it had to go on was the evaluations of three em-
ployees and his sketchy application. The application showed
that Lucas had approximately 3 months’ more experience
than Samek had in mine work. However, Samek’s experience
was in production and maintenance and both his application
and interview on June 2, provided a detailed account of the
underground mining equipment he had operated. Clearly,
Samek’s application and interview provided more pertinent
information to the Company than Lucas’ did. Granted that
the three employees consulted by the Company might have
provided more information regarding Lucas’ experience, the
Company has not introduced it into the record. This neglect
suggests that the information would not have assisted the
Company’s defense. However, the evidence before me
showed that Samek’s experience gave him a substantial edge
over Lucas.
The Company’s employment of Michael Klamerus, effec-
tive April 6, 1990, again suggested that Samek’s mining
qualifications entitled him to employment at the Shannopin
mine. According to Richard Esposto, from February 1990
until April 1990, the Company’s selection of applicants for
hire was based almost entirely upon interviews. However, the
Company, again, did not supply the record with details of
those interviews. Thus, I have looked at Klamerus’s quali-
fications, only as shown on his application, and compared
them with Samek’s qualifications. Samek was more quali-
fied.
Klamerus’ application states that from February 1974 until
1980, he performed ‘‘various maintenance on mining ma-
chines,’’ roof bolted and did general inside labor. From Oc-
tober 1980 until November 1982, Klamerus was responsible
‘‘for care and maintenance of various mining machinery i.e.
mechanical, electrical, hydrolic.’’ Klamerus’ application did
not disclose how much inside mining work he had performed
prior to April 6, 1990. From January 1983 until May 1986,
Klamerus had been a substitute teacher and had done some
building and home remodelling.
In his application, Klamerus described his special skills
and qualifications as follows:
I can organize and present material for instruction due
to my teacher training and can comprehend material
presented to me easier through organization due to my
teaching disciplines.
Klamerus’ mining experience did not equal or exceed
Samek’s. Nor did Klamerus’s special skills equip him to op-
erate mining equipment. In contrast, Samek’s application
showed that he could operate a shuttle car, a roof bolter, a
continuous miner, and a motor. Samek’s application also
showed that he was a belt mechanic, a prep plant mechanic,
and a welder.
Richard Esposto admittedly knew of Samek’s experience
and skill after interviewing him on June 2. Samek’s applica-
tion showed experience and qualifications which were supe-
rior to those on Klamerus’s application. Samek’s interview
showed his familiarization with mining equipment. Yet the
Company ignored Samek.
The Company’s neglect to provide details of Klamerus’
interview precluded me from learning what if any factors
might have favored him over Samek. Here, again, the Com-
pany’s omission deprived its defense of factual underpinning.
There are flaws in Richard Esposto’s testimony which cast
further doubt on the credibility of the Company’s stated rea-
son for not employing Samek. One such infirmity arose
when Esposto was confronted with the fact that he had hired
applicant Lucas, who had only 3 years’ experience as a
miner. Esposto answered, in substance, that experience was
not important. Yet later in his testimony, Esposto insisted
that experience was the only factor making Samek less quali-
fied than the applicants which the Company had employed
797SHANNOPIN MINING CO.
9 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 adoptedlby the Board and all objec-
tions to them shall be deemed waived for all purposes.
10 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
on and after September 7. This assertion also contradicted
Esposto’s earlier testimony on cross-examination that Samek
had as much experience as some of those same applicants.
Esposto also testified that Samek fit all of the qualifications
which the Company had sought in its applicants.
Smalara’s testimony regarding Samek’s interview also
contributed to my rejection of the Company’s defense of the
alleged discrimination. According to Smalara, at his inter-
view on June 2, Samek did not talk much about his famili-
arity with the continuous miner or the shuttle car. However,
both Samek’s and Esposto’s testimony showed that Samek
made considerable mention of his use of those machines. In-
deed, Esposto was satisfied that Samek had ample experience
using those devices. Given his hostility toward Samek’s
union activity, it is likely that Smalara was fashioning his
testimony to support the Company’s proffered defense.
In sum, I do not credit the Company’s defense as ex-
pressed through Smalara’s and Richard Esposto’s testimony.
For the record shows that their explanation that Samek was
not as qualified as any of the applicants, whom the Company
hired in September and during the period between February
1 and April 30, 1990, was pretextual. Indeed, the record
shows that the Company avoided Samek and hired two appli-
cants in September and one in April 1990, whose qualifica-
tions were demonstrably inferior to his.
That the Company did not offer employment to 8 of the
13 applicants interviewed with Samek on June 2, did not
rebut the General Counsel’s prima facie case. Alliance Rub-
ber Co., 286 NLRB 645, 647 (1987). Indeed, given the evi-
dence of union animus and the Company’s pretextual expla-
nation, its resort to a second list of applicants for new em-
ployees in September, suggested that it was avoiding the ear-
lier list because Samek’s name was on it.
According to Richard Esposto’s testimony, the Company
was ‘‘in a hurry to hire people.’’ Yet the Company hired
only one applicant off of the earlier list, in September, Gary
Morris. Instead of calling in the interviewed applicants, the
Company set up a new list of applicants and set about find-
ing out about their reputations as miners. There was no
showing that this procedure was quicker than calling up the
remainder of the earlier list of applicants, who had already
been interviewed. The Company left to conjecture the reason
it ignored the remainder of the 13 applicants it had inter-
viewed on June 2. Against the backdrop of union animus and
its pretextual explanation of its refusal to hire Samek, it
seems likely that the Company was using a new list to avoid
hiring him.
I find from the foregoing that the Company failed to rebut
the General Counsel’s strong showing that Samek’s activity
as a Union official provoked it to deny him employment on
and after September 7. Accordingly, I find that by this dis-
crimination, the Company violated Section 8(a)(3) and (1) of
the Act.
CONCLUSIONS OF LAW
1. By interrogating job applicant Thomas E. Samek re-
garding his union membership, activities, and sympathies, the
Company has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and Section
2(6) and (7) of the Act.
2. By refusing to hire Thomas E. Samek on and after Sep-
tember 7, 1989, because he joined, supported, or assisted the
United Mine Workers of America, the Company violated
Section 8(a)(3) and (1) of the Act.
REMEDY
Having found that the Company has engaged in certain un-
fair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the Company refused to hire Thomas E.
Samek on and after September 7, 1989, it must offer him
employment as a miner and make him whole for any loss of
earnings and other benefits, computed on a quarterly basis
from that date to the date of a proper offer of employment,
less any net interim earnings, as prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), plus interest as computed
in New Horizons for the Retarded, 283 NLRB 1173 (1987).
On the findings of fact and conclusions of law and on the
entire record, issue the following recommended9
ORDER
The Respondent, Shannopin Mining, Bobtown, Pennsyl-
vania, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in and support for, or activi-
ties on behalf of United Mineworkers of America or any
other labor organization, by discriminating in any manner
against any of its employees in regard to their hire and ten-
ure of employment or any term or condition of employment
because of their union membership, sympathies or activities.
(b) Coercively interrogating job applicants about their
union membership, activities, or sympathies.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer immediate employment to Thomas E. Samek, as
an inside miner, at its Shannopin Mine or, if such position
does not exist, in a substantially equivalent position, dis-
charging, if necessary, any employee hired in his stead on or
after September 7, 1989, and make him whole for any loss
of earnings he may have suffered by reason of Respondent’s
discrimination against him, in the manner described in the
section of this decision entitled ‘‘The Remedy.’’
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Post at its facility at Bobtown, Pennsylvania, copies of
the attached notice marked ’’Appendix.’’10 Copies of the no-
tice, on forms provided by the Regional Director for Region
6, after being signed by the Respondent’s authorized rep-
798 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director in writing 20 days from
the date of this Order what steps the Respondent has taken
to comply.