Peabody Coal Co.

826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Peabody Coal Company and Local 1148, United Mine Workers of America. Case 14-CA-5836 June 21, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On May 26, 1971, Trial Examiner Thomas F. Maher issued his Decision in this proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National, Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner to the extent consistent with this Decision. As more fully set forth in his Decision, the Trial Examiner found that Respondent Peabody Coal Company violated Section 8(a)(3) of the Act by refusing to hire three employees (Scanlan, Dawson, and Todd) who worked for Boyles Brothers con- structing the mine shaft and other facilities for Peabody. Each of the three was a member of the union safety committee and, on separate occasions, each closed down construction work on the mine because of alleged safety hazards. The Trial Examin- er found that Peabody was aware of their work as members of the safety committee and was also aware that they were responsible for halting the construc- tion work until the defects were corrected. Credited testimony establishes that both Scanlan and Dawson were told by agents of Peabody that they would not be hired because of their activities as safety commit- tee members.' However, it does not automatically follow that Peabody's subsequent refusal to hire them was based on such activities, nor did the Trial Examiner make such a narrowly based finding. The Trial Examiner held that failure to hire any one of the three, standing alone, might arouse nothing more I The Respondent has excepted to these and certain other credibility findings made by the Trial Examiner In view of our disposition of this than a suspicion, but that three such failures arising in a common context taxed credulity. The most experienced of the three, Edward Scanlan, was conceded to be well qualified and held the certificates necessary to perform any under- ground job in an Illinois coal mine. Following his application to Peabody, Scanlan learned from Frost, one of Peabody's mine superintendents whom he had listed as a reference, that Frost had already been questioned about him and that Scanlan had been accused of "blowing the whistle on them." Frost, at Scanlan's request, set up a meeting with management representatives so that Scanlan could tell his side of the story. At the meeting Stunson, Peabody's superintendent, told Scanlan that he would be crazy to hire him because of the trouble. After this conversation, Mine Manager Gothard joined them and eventually offered Scanlan a supervisoryjob as a face boss. Scanlan turned this offer down on the ground that taking a supervisory position would cost him his union pension. Some 4 or 5 weeks later Gothard, apparently on his own initiative, again unsuccessfully offered Scanlan a job as face boss. There is no indication in the record that the supervisory position offered Scanlan was a paper title intended solely to remove a disturbing influence from the union ranks, and thus we view it with less suspicion than did the Trial Examiner. If Gothard's true motive in originally offering the job was to quiet a troublemaker, then his reoffering the job without any prodding from Scanlan would make no sense, since by remaining quiet he would be quit of him entirely. Gothard further testified that it was his policy not to offer a man a supervisory job and then to hire him for a rank-and-file job since he had trouble obtaining supervisors. The substantive merits of this policy are not before us, only its plausibility as a motive for not hiring Scanlan-and it is plausible. We conclude that the General Counsel has failed to establish by a preponderance of the evidence that Peabody refused to hire Scanlan for discriminatory reasons. Seldon Dawson was employed by Boyles Brothers as a mine examiner to check on safety conditions during construction. In this capacity Dawson report- ed a ventilation problem to the State Mine Inspector when Boyles Brothers refused to correct it; it was then resolved. Later, Dawson was named to the union safety committee and as a safety committee member closed down the hoist because of safety defects, against the wishes of Boyles' Superintendent Patterson. Dawson's judgment was confirmed by the State Mine Inspector. Patterson, however, continued to use the hoist and was replaced the next day. proceeding, infra, we find it unnecessary to reach this issue. 197 NLRB No. 120 PEABODY COAL COMPANY Peabody's field engineer then told Dawson that he had ruined his chances for a job. Thereafter, Dawson brought an alleged defect in the mine roof to the attention of the safety committee, which insisted that the mine be closed until it was corrected although the State Mine Inspector judged it to be perfectly safe. About 4 months after the roof incident Dawson applied for a job with Peabody and was told by a company official, Moke, that the Company was not hiring at the time, although Moke told two other applicants (one of whom was Todd, the object of another alleged 8(a)(3) violation) that it was hiring only experienced underground miners. Dawson, who was experienced, was also told that the Company would call him and, apparently for that reason, made no further application for a job with Peabody. Moke did not testify and Gothard, who did the hiring for the mine, testified that he did not hire Dawson because he learned that Dawson had been absent 57 out of 207 workdays when previously employed by Peabody and had a criminal record. At the hearing Dawson admitted that he had been convicted on a bad check charge in 1968 for which he served 5 months in jail and that he had been convicted of a similar offense in 1951.2 The Trial Examiner, in finding that Dawson was discriminated against, relied in part on the shifting reasons given for not hiring him. However, we do not find it particularly significant that two other appli- cants were told that the Company needed experi- enced men while Dawson was told it was not hiring, since the record shows that it was not hiring anyone at the time and the statement was apparently made in the presence of all three applicants. Nor do we attach great significance to the fact that two company officials had different reasons for not hiring him on what, in fact, were separate occasions. We conclude that there was more than sufficient reason for the Respondent to refuse to hire Dawson and that the largely circumstantial evidence to the contrary is not sufficient to prove that he was unlawfully discriminated against. William Todd, the third safety committee member, was not qualified for underground mining but some 10 years earlier had worked at a strip mining operation of one of Peabody's subsidiaries. As a safety committee member, Todd ordered the men out of the mine when he discovered a short circuit in an electrical cable near fused explosives. Todd originally applied for a job with Peabody in 2 Dawson also admitted that he had lied on his application to Boyles Brothers, claiming that he had worked for another company when in fact he had been working at another Peabody mine where he had a bad attendance record. Dawson explained that he had also been on a safety committee during his previous Peabody job and feared that Boyles would hold it against him The Trial Examiner credited this explanation and therefore viewed Dawson's "misstatement" with less concern than he would 827 June 1969 and in August 1969 went to work for Boyles Brothers. In March 1970 Todd went to Peabody's office with Dawson and another applicant to see if his application was still under consideration and was told that it was, but that the Company needed experienced miners. When Todd was laid off he spoke to Peabody's mine manager, Gothard, about a job and Gothard asked if he could run a continuous miner. Todd replied that he could not and Gothard then told him that was all the Company needed but that- there would be more hiring in June. When Todd returned in June, Gothard told him they would be hiring in September or October. Todd obtained a job elsewhere and did not return. The evidence that Todd was discriminated against is not strong. The Trial Examiner emphasized that Todd was a former Peabody employee and that Peabody was allegedly hiring only former employ- ees,3 although it hired three men who were neither experienced nor former employees. The transcript, however, indicates that Peabody's stated policy was to give preference to former employees. Thus the mere fact that three individuals without papers and not in a favored category were hired during the period from May 2 to July 10 is not determinative of the issue . Todd was offered a job running a continuous miner which he could not accept because he was not qualified. When he returned in June and was told there would be no openings for which he would qualify until September or later, he obtained anotherjob and did not come back. We conclude that the General Counsel has failed to carry his burden of proof and that a preponderance of the evidence does not establish that Respondent's failure to hire Scanlan, Dawson, and Todd violated the Act. Other than the statements made to Scanlan and Dawson there is no independent evidence of union animus. As the Trial Examiner indicated, the circumstances in each case, although suspicious, are not compelling evidence of a violation of the Act. Only the fact that all three were linked in having zealously performed their duties as safety committee members convinced him of the violation. The evidence tending to show that Scanlan and Dawson were discriminated against is insufficient to overcome the fact that Scanlan was twice offered a supervisory position by Peabody and that Dawson's record was such that any employer could justifiably question whether he would make a satisfactory employee. Todd's case, standing on its own, indicates otherwise, though he did not excuse it Apparently the Trial Examiner was balancing equities However, we are primarily concerned with determining the Respondent's intent, and such balancing presupposes the Respondent's guilt In the context of this case, Dawson's motivation is irrelevant 3 The statement at l 35, p 16 of the Trial Examiner's Decision that Todd was "also a non-Peabody applicant ." is an obvious typographical error and is hereby corrected 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nothing more than that he was a safety committee member who in the face of an immediate hazard ordered the men out of the mine, and was subse- quently told there was no work for him at the time he applied. The fact that three men who were similarly unqualified, but were not former Peabody employees or safety committee members, were hired at more or less monthly intervals between May 1 and August is not enough to warrant a finding of unlawful discrimination. We shall dismiss the complaint.4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER JENKINS, dissenting in part: I concur in my colleagues' dismissal of the complaint as to Dawson and Todd. Unlike them, however, I am persuaded that a preponderance of the evidence on the record as a whole clearly establishes that Respondent's failure to hire Scanlan violated Section 8(a)(1) and (3) of the Act. In my view, the majority has placed too much emphasis on the Trial Examiner's analysis of the evidence wherein he states that each case "consid- ered in isolation, could well arouse nothing more than a suspicion," but "three suspicious failures to hire . . . in a common context . . . present coinci- dence that taxes credulity." Accepting this analysis at face value the majority then concludes that the Trial Examiner's finding of a violation as to all three employees was based "[o]nly [on] the fact that all three were linked in having zealously performed their duties as safety committee members." This theory, however, is not applicable to Scanlan. The violation as to him has been proven by independent evidence and it need not be bottomed on nor buttressed by a lumping together of "three suspicious failures to hire." The record evidence shows that the finding that there was no violation of the Act as to Dawson and Todd does not in any wise diminish the independent and credited evidence which requires a conclusion that there was a violation as to Scanlan. 4 We are not unaware of the facts urged by the dissent or blind to the inferences it draws to support finding a violation with respect to Scanlan But we do not think them sufficient to constitute a preponderance of the evidence For example, the dissent infers that the Respondent could have anticipated Scanlan's refusal of a supervisory position because of its effect on his union pension, but finds it implausible that the Respondent was reluctant to offer a rank-and-file job to a man who refused a more responsible one We would submit that the dissent's ready inference of the Respondent's knowledge that Scanlan, and, we should suppose, others in a similar position , would react in this fashion , is at some vanance with its rejection of the Respondent's motive, which allegedly was based on the difficulty it experienced in obtaining supervisors . Further, to assert that Scanlan had not applied for a supervisory position begs the question as, Scanlan was a competent miner of extensive and varied experience, a fact well known to Respondent's officials by virtue of his employment as a hoist engineer by Boyles Brothers at the River King Mine during the period of August 1969 through March 1970.5 Early in his employment with Boyles, Scanlan interested himself in the safety conditions at the mine . A brief factual summary of his activities relating to safety standards at the mine follows: 1. Shortly after his employment he objected to the lack of a guardrail around the open mine. 2. In September 1969, he was selected by the Union for membership on the safety committee and immediately thereafter advised Boyles' superintend- ent, Matt Patterson, that there was a hazardous condition relating to the electrical wiring on the project, and that there was an inadequate communi- cations system for the operation of the hoist. Both of these conditions, he informed Patterson, were in violation of the state safety laws. He also reported these conditions and others to Bill Smith, Boyles' safety engineer, who cautioned him to be "patient." 3. Shortly after Scanlan's complaints, there were two accidents related to the operation of the hoist because of the lack of an adequate bell system and because of the system's use for purposes unrelated to the hoist's operation. Scanlan complained to Super- intendent Patterson but to no avail. A safety meeting was called and there were improvements in commu- nications and wiring shortly thereafter. 4. The mine was shut down on December 2 because of inadequate bolting of roof beams. Scanlan attended the safety meeting held the following morning where, in addition to the roof bolting complaint, an extended discussion of the communications system and the continuance of noise interference, matters which Scanlan had continuously raised in the past, were discussed. While there was further roof bolting, Scanlan found it necessary to continue to complain of electrical shock hazards and the lack of an adequate bell system to continue the operation of the hoist, conditions which apparently were never improved. It is against this background of Scanlan's deter- mined and conscientious efforts to enforce safety standards at the mine that we must evaluate the without more, does the suggestion that hiring Scanlan on his own terms would not contravene the Respondent's asserted policy We agree that if the Respondent's counteroffer was unlawfully motivated it violated the Act However, the fact that the Respondent offered to hire Scanlan on its terms, not his, does not establish discrimination . Nor does the dissent's contention that the Respondent's policy might have been construed more favorably to Scanlan (though, we suggest, at the cost of nullifying it), even if correct, demonstrate that the Respondent's application of it was unlawfully motivated 5 It should be noted that Frost knew of Scanlan's competence In his application Scanlan had included Frost as a reference and identified him as Respondent's field superintendent . At the hearing, Frost identified himself as a mine superintendent at one of Respondent's Kentucky installations PEABODY COAL COMPANY events relating to his futile application for a position as hoist engineer at the Respondent's River King Mine. On his application for employment as a hoist engineer at River King, Scanlan had included Frost's name as a reference and telephoned Frost to advise him of that fact. Frost, in response, told Scanlan that inquiries had been made about him and that Frost's questioner had charged Scanlan with "blowing the whistle on them," an obvious reference to Scanlan's safety complaints. Scanlan asked Frost for a meeting with management representatives so he could tell his side of the story. Scanlan also credibly testified that he had previously had a brief conversation with Respondent's Superintendent Stunson in which he told Stunson he wanted to tell his "part of the story," to which Stunson replied "that it better be good because if he . . . had anything to say about it Scanlan would not work for Respondent." Frost set up the meeting Scanlan had requested. Scanlan, Stunson, and Frost were present; later they were joined by Mine Superintendent Gothard. The Trial Examiner credited Scanlan's testimony that Stunson told him "he [Stunson] would have to be crazy to hire me because of all the trouble." Gothard, at Frost's suggestion, offered Scanlan a job as face boss when the mine opened. Scanlan declined the offer because as a face boss he would be a part of management thereby becoming disqualified for his union pension. Gothard, at a later date, renewed the offer; Scanlan again declined. Three applicants were hired as hoist engineers; two had applied prior to Scanlan, and the third (Hayes)6 at a date well after the meeting at which Scanlan was offered the job of face boss. Because of these established facts, my colleagues conceded, as they must, that "[c]redited testimony establishes that both Scanlan and Dawson were told by agents of Peabody that they would not be hired because of their activities as safety committee members." 7 But they conclude that Respondent in offering Scanlan a supervisory position on two occasions demonstrated that its refusal to hire Scanlan as a hoist engineer was not a violation of the Act. This conclusion and the reasoning on which it is based will not bear scrutiny. As to the first offer, it cannot be gainsaid that at the time it was made Scanlan's safety activities were uppermost in the minds of Respondent's representatives. Further, Scanlan's refusal of the offer on the ground that it would impair or eliminate his union pension is both plausible and reasonable and it might be inferred that Respondent's agents were fully familiar with union pension matters and anticipated Scanlan's response. Further, Scanlan as a member of manage- ment would be subject to being summarily dis- 829 charged if in ,the future he attempted to invoke or enforce safety regulations, a fact certainly within the knowledge of the Respondent's agents. As to the second offer, of which the majority makes much, noting that it "make[s ] no sense," I would note that this alleged offer was casually made by Gothard while Scanlan was protesting an underground assign- ment. It is, however, clear that this second offer is as vulnerable as the first offer. Nothing had transpired which would in any wise invalidate the reasons given by Scanlan for declining the first offer, so that the second offer was at best a repetition which added nothing. Gothard's testimony, which the majority accepts, that it was not his policy to offer a man a supervisory job and then hire him for a rank-and-file job, is in my view not plausible. Scanlan did not apply for a supervisory job. On the contrary, he applied for a rank-and-file job for which he was eminently qualified. The initial offer of a supervisory job by management does not in these circumstances contravene Gothard's alleged hiring policy. On the basis of the credited evidence and for the reasons set forth above, I conclude that the General Co'insel has by a preponderance of the evidence proven violations of Section 8(a)(1) and (3) of the Act with respect to Scanlan, as found by the Trial Examiner. 6 It should be noted that Scanlan at the time of his meeting with Respondent's officials was operating a hoist, whereas Hayes had not run a hoistfor the previous 4 years r The majority notes that "other than the statements to Scanlan and Dawson there is no independent evidence of union animus " Since the Respondent's statements amounted to an admission of the violation, one might wonder why none was needed , but in any event this statement overlooks the fact that Scanlan and Dawson, particularly Scanlan, were the "safety activists" and were the applicants for employment Moreover, Respondent's mine is unionized, thereby reducing almost to nil the possibility of demonstrated union animus except in situations where, as here, Respondent sought a desired individual result , e.g., denial of employment to Scanlan, a safety activist. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS F. MAHER, Trial Examiner: Upon a charge filed on September 23, 1970, by Local 1148, United Mine Workers of America, against Peabody Coal Company, Respondent herein, the Acting Regional Director for Region 14 of the National Labor Relations Board, herein called the Board, issued a complaint on behalf of the General Counsel of the Board alleging violations of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151, et seq. ), herein called the Act. In its duly filed answer, Respondent, while admitting certain allegations of the complaint, denied the commission of any unfair labor practice. Pursuant to notice, a trial was held before me in St. Louis, Missouri, at which all parties were present, represented, and afforded full opportunity .to be heard, 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD present oral argument, and file briefs. Briefs were filed by the parties on or about February 12, 1971. Upon consideration of the entire record, including the briefs filed with me, and specifically upon my observation of each witness appearing before me,' I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW I. THE NATURE OF THE RESPONDENT'S BUSINESS Peabody Coal Company, Respondent herein, is an Illinois corporation with its principal office and place of business in St. Louis, Missouri, and a mine, the River King Mine, located at or near Freeburg, Illinois, where it is engaged in the mining of coal. On a number of previous occasions, Respondent has appeared as a party to proceedings before the National Labor Relations Board in which the Board has asserted its jurisdiction and found the Respondent to be an employer within the meaning of Act.2 Upon the Board's earlier findings with respect to this Respondent and upon my review of the record in this proceeding, which discloses no changed circumstances with respect to the nature and extent of its business, and upon agreement of the parties, I accordingly conclude and find Respondent to be an employer within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted and I accordingly conclude and find that Local 1148, United Mine Workers of America, Charging Party herein, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Facts At River King Mine, in the immediate vicinity of Freeburg, Illinois, Boyles Brothers, a Utah organization, was engaged in the construction of a mine shaft and other mining facilities for Peabody Coal Company, Respondent herein. During this same period, Continental Conveyor Company was engaged in constructing conveyors to be used in the mining operations; Little Egypt Construction Company constructed the mine buildings. Upon completion of the work of these three organiza- tions, Respondent, in early June 1970, assumed control of the operation of the mine with employees it had hired during the intervening period. In the course of hiring preliminary to the commencement of its operations, three individual applicants, Edward Scanlan, William Todd, and Sheldon Dawson, together with a considerable number of other applicants, were not selected for employment by Respondent. In the case of each of the three named above, 1 Cf Bishop and Matco, Inc, 159 NLRB 1159, 1161 2 180 NLRB 263, 175 NLRB 454, 151 NLRB 47. 3 The undenied testimony of Scanlan Although it is undisputed that Macke was present at the River King Mine during the period it was under control of Boyles and had even participated in mine safety committee meetings as Respondent's representative , and that it is contended that Respondent's failure to hire him was grounded upon his respective activities as a member of the Union's Mine Safety Committee during the construction period prior to Respondent's assumption of operations from Boyles Brothers. For this reason, it is contended, Respondent's failure to select them for hire constituted unlawful discrimination. The circumstances relating to each of the three follows: 1. Edward Scanlan Edward Scanlan was a miner of extensive and varied experience. Thus, since 1942, he has earned all of the certificates and "mine papers" required to perform any job in an underground mining operation in the State of Illinois including that of hoist engineer. For a period of time he was a part owner and general superintendent of his own mining operation. All of these qualifications were known to Respondent's officials during the period between August 1969 and March 30, 1970, when Scanlan was employed as a hoist engineer by Boyles Brothers at the River King Mine. Shortly after coming to work with Boyles Brothers, Scanlan displayed a studied interest in the safety condi- tions at the mine, discussing them with Boyles' supervisor, Carl Mann, and Respondent's project manager, Floyd Macke.3 Scanlan objected to the absence of a guardrail around the open mine shafts and cautioned the two officials to take care less they themselves slip and fall in. Not long thereafter, still in September 1969, Scanlan was informed by his fellow workers that at a union meeting on the previous night he had been selected for membership on the safety committee. Upon learning of his appointment, Scanlan visited with Boyles' superintendent, Matt Patter- son, advised him of his new assignment, and stated that there were a number of things that the two of them should talk over. He referred Patterson to the hazardous condition of the electrical wiring on the project, mainly the absence of weatherproofing, and the inadequate communication system for the operation of the hoist by which personnel and material were lowered to the various working levels of the mine. Both of these conditions, he informed Patterson, were in violation of state safety laws; as to the operation of the hoist, he could not operate it until an adequate bell system was installed. During the same period, Scanlan had conversations on the same subject with a Bill Smith, identified, by him as Respondent's safety engineer, and with W. O. Johnson, an Illinois state mine inspector. Scanlan pointed out to Smith the exposed electrical wiring, with its possibility of shock hazard, the absence of rubber matting on wooden platforms, and the wet and slippery conditions which prevailed in vital operating area, thus increasing the likelihood of shock and stumbling hazards. Smith told him that they were shorthanded at the time and that "you have to be patient." Scanlan's conversation with State Mine Inspector John- Respondent did not assume operations of the mine until June 1970, the specific purpose of Macke's presence was not clearly delineated. In any event, it is not contended by General Counsel and it is not to be implied from any findings herein , that Respondent bore any responsibility for actions which occurred poor to its assumption of responsibility for the operations of the mine in June 1970. PEABODY COAL COMPANY son appears to have been general in character and quite abbreviated. Thus, Scanlan credibly testified to warning Johnson that there was a likelihood of someone getting hurt, and Johnson assured him that he was aware of his own responsibilities in that area. Scanlan credibly testified that the noise level at the project was then so high that further conversations with Johnson at that time were impossible, a safety condition which he thereafter com- plained of to Patterson and Williams, Boyles' officials on the site. On the occasion shortly thereafter, when Boyles' superin- tendent, Williams, and Respondent's project manager, Macke, were in the operating area, Scanlan described a brief exchange between the two, Williams cautioning Macke to watch himself because of the slick walkway, to which Macke replied, "Yes, Mr. Scanlan just told me about it.11 The lack of an adequate bell system and its use for purposes other than controlling the hoist resulted, shortly after Scanlan's complaints, in two accidents on the hoist when Scanlan had no way of learning that the cage carrying the passengers had reached the lowest level. On both occasions, the cage tipped over and injuries occurred. Scanlan sent for Patterson and complained to him of the signal confusion that had caused the accidents. This meeting was fruitless and Scanlan insisted that the state inspector be called and Patterson reluctantly agreed. A meeting of Boyles' officials, Scanlan and Todd of the safety committee and two safety inspectors, was held at Scanlan's insistence on the following morning. Improve- ments in communication and wiring followed shortly thereafter and within 2 weeks the top Boyles officials, Patterson and Williams, were replaced by individuals with whom there appear to have been very few serious complaints. The Union's safety committee shut down construction at the mine thereafter on December 2, for what was described as "sinking conditions" found to be the result of the inadequate bolting of roof beams. Although not on the safety committee for the shift which had closed down the mine, Scanlan nevertheless attended the meeting held on the following morning.4 Among those present at the meeting in addition to Scanlan were William Todd and Seldon Dawson, whose problems with Respondent will be discussed hereafter, the managing officials of Boyles, and Macke, Respondent's engineer. In addition to the roof bolting complaint raised by the shift member shutting down the mine, an extended discussion was also had concerning the inadequate communication system and the noise interference, subjects which were continually being raised by Scanlan. Further roof bolting was done as a result of this meeting, but, according to Scanlan, although considerable improvement in conditions was shown be- 4 It appears that each shift has its safety committee and all shift committees comprise a general safety committee 5 The foregoing is the credited, substantially undenied testimony of Edward Scanlan Patterson, Johnson, Smith, nor Williams were called as witnesses and Floyd Macke was not questioned concerning the events detailed above 6 Scanlan testified that he "believed" he also applied for the job of mine examiner 831 tween September and December with the replacement of the first Boyles officials, Scanlan continually found it necessary to complain of shock hazards, and, despite his constant request, an adequate bell system to control the operation of the hoist was never installed.5 In October 1969, Scanlan applied for a job with Respondent as a hoist engineer at the River King Mine, to commence when Boyles had completed its work there and Respondent had assumed its operation.6 On his application he included as a reference the name Clarence Frost, described by Scanlan as Respondent's field superintendent and identified by Frost's own testimony at the trial as presently being a mine superintendent at one of Respon- dent's Kentucky installations. Thereafter, Scanlan tele- phoned Frost and told him that he had used him as a reference on the application. Frost, in reply, told him that he had already been questioned about Scanlan, and what kind of a person he was, being told that his (Frost's) questioners charged him with "blowing the whistle on them," referring to the previously discussed safety com- plaints. At this juncture, Scanlan asked Frost to arrange a meeting with management representatives so that he could tell his side of the story.? Scanlan also testified that he had already had a brief conversation with Respondent's superintendent, James R. Stunson, on his visit to the mine in December concerning his application and the safety committee work, specifically referring to his attendance at the previously described December 3 safety meeting. Scanlan on this occasion told Stunson then that he wanted to tell his "part of the story" and Stunson replied that it better be good because if he (Stunson) had anything to say about it, Scanlan would not work for Respondent.8 Thereafter in mid-January 1970, the meeting initially requested by Scanlan and set up by Frost was held at Sam's Restaurant in downtown Freeburg, Illinois. What occurred at this meeting is in dispute. All that seems certain is that Scanlan, Superintendent Stunson, and Frost were present, that Mine Superintendent Raymond Gothard joined them later, and that Gothard offered Scanlan the job of face boss, a supervisory position of foreman of the underground operations. Scanlan testified that the meeting had been set up, as previously noted, to provide him the opportunity to tell his side of the safety committee activities, in support of his job application after his brief encounter with Stunson in December. The trend of the restaurant meeting with Stunson appears to have followed the earlier course, according to Scanlan. Thus he testified that by the end of the meeting he felt that he "didn't get through" to Stunson, the latter telling him "he would have to be crazy to hire me because of all the trouble." Upon my observation of the r Frost testified to this call, to the request for a meeting, specifically with Stunson, and to the meeting thereafter held in Sam's Restaurant Frost did not deny that the telephone conversation included references to the complaints he had heard against Scanlan He testified only that he could not recall such references 8 I do not credit Stunson's denial of this statement attributed to him by Scanlan nor do I accept his denial of knowledge that Scanlan was a member of the safety committee Instead I accept Scanlan's version 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD three witnesses to this incident, I do not accept Stunson's denial. Nor do I accept Frost's vague recollection.9 Following this conversation, Mine Manager Gothard joined the group and the conversation centered around Scanlan's employment. Frost then suggested that he thought Scanlan would make a good face boss (mine foreman). Gothard agreed and offered Scanlan a job to begin when the mine opened. Scanlan rejected the offer stating that he had been in classified work, meaning a union job, so long and that considering all the years he had accumulated as a union miner working as management would disqualify him for his pension.10 This job offer and its rejection, as described by Scanlan, were confirmed by both Frost and Gothard, both of whom also attested to Scanlan's experience and qualifications for the job. Gothard also recalled an occasion at the mine site 4 or 5 weeks later when Scanlan came into the Boyles trailer to inquire about the propriety of an order then being imposed upon him by Boyles' supervisors that he leave his hoist and go underground to perform work. The outcome of this dispute does not appear, but Gothard describes a collateral conversation he then had with Scanlan wherein he asked him if he had changed his mind about accepting the face bossjob and Scanlan again refused.11 By the time Scanlan had applied for one of the three available hoist jobs in October 1969, two former Peabody employees, Franklin P. Coleman and Lee D. Peters had already applied. A third Peabody employee, William R. Hayes, applied on March 10, 1970, a date well after the meeting in Sam's Restaurant described above, and about the time Gothard repeated to Scanlan his offer of a face boss job. All three applicants were qualified hoist engi- neers. All three were hired and Scanlan was not. 2. William Todd William Todd, an unsuccessful applicant for employ- ment at the Respondent's River King operation has been employed by Boyles during the period August 1969 to April 15, 1970, near the close of the construction phase of the mine. Prior to his employment by Boyles he had not engaged in mining since 1960. For 10 years before that 9 Frost testified that he was not sure that Gothard came to the meeting, a well-established fact, and he did not "think " anything was said to Scanlan about being too active on the safety committee In such a context of vagueness, I reject as not credible his positive assertion that Stunson did not say anything to Scanlan about Respondent not hiring him to The job of face boss entails the supervision of 15 men underground, being the coal crew and the loading crew It is considered a supervisory position under existing collective-bargaining agreements 11 I accept Gothard's recollection of this second meeting, Scanlan being most confused in his account of what transpired , stating that he did not recall "if we talked about taking a job as a face boss " 11 The function and authority of a mine safety committee was established by the terms of the outstanding collective-bargaining agreement Thus it is provided At each mine there shall be a mine safety committee selected by the local union The committee members while engaged in the performance of their duties with the following exceptions shall be paid by the local union When the mine safety committee is making an investigation of an explosion and/or a disaster they shall be paid by the company at their regular rate of pay for the hours spent making such investigation provided there is not a more favorable local agreement or practice already in effect The committee at all times shall be deemed to be acting within the scope of their employment in the mine within the date, however, he was employed, according to his applica- tion for current employment with Respondent, in the strip mining operations of Seminole Coal Corporation, a subsidiary of the Respondent. Todd did not have mine papers and admitted he had no underground mining experience. At the River King, site, while employed by Boyles, Todd does appear to have worked underground, drilling, firing explosive "shots," and engaging in roof timbering and bolting; and this was clarified in the record to indicate that the employment was not in the mine in itself, but on the slope, the underground entranceway into the mine from ground level. Upon his separation from Boyles on April 15, as part of a reduction in force, Todd was issued a separation notice on which the quality of his workmanship was checked "Good." Prior to his employment with Boyles, Todd, in June 1969, had filed an application with Respondent for employment at its Green Diamond Mine, approximately 15 miles distant from River King. In March 1970, Todd, in the company of Gary Bauer, the Union president's son, and Seldon Dawson, went to the Respondent's office to be sure that his application was still under consideration and was told by an unidentified official that it was. When Todd asked whether they would be hiring he was told that they would need experienced miners. Upon his layoff by Boyles, Todd returned to Respondent's office and spoke to Mine Manager Gothard who asked him if he could operate a "continuous miner " When Todd replied that he could not, Gothard said that was all they were looking for then and told him that there would be some more hiring in June. On his return in June, Gothard said, "It looks like it will be sometime in September or October." Todd never returned to Respondent's operation and heard nothing from them. Because Todd's activities while employed by Boyles have been alleged as the controlling reason for the failure of Respondent to hire him a review of his employment record is in order. Shortly after his employment in September, an acquaint- ance who was active in union affairs asked Todd if he would become a safety committeeman and he accepted.12 meaning of the workman's compensation law of the state where such duties are performed The mine safety committee may inspect any mine development or equipment used in producing coal If the committee believes conditions found endanger the lives and bodies of mine workers it shall report its findings and recommendations to the management In those special instances where the committee believes that an immediate danger exists and the committee recommends that the management remove all mine workers from the unsafe area, the operator is required to follow the recommendations of the committee If the safety committee in closing down an unsafe area acts arbitrarily and capriciously , members of such committee may be removed from the committee Grievances that may arise as a result of a request for removal of members of the safety committee under this section shall be handled in accordance with the provisions provided in settling of disputes The safety committee and operators shall maintain such records concerning the inspections, findings, recommendations and actions relating to this provision of the agreement as may be required and copies of all reports made by the safety committee shall be filed with the operators While the contract does not literally authorize a committeeman or the committee itself to shut down ajob without consultation with management PEABODY COAL COMPANY Shortly after his appointment to the committee, Todd discovered a "shorted" electrical cable lying on the ground in mud and water at or near the location where fused explosive charges had been readied for use in the mine. Todd immediately ordered the men out of the mine. Shortly thereafter, a Boyles official, Carl Mann, came upon the scene to inquire what had happened, was told, and went to locate Superintendent Patterson.13 Patterson arrived in an upset condition, swearing at Todd. He told him that he (Todd) was not running the job and asked what authority he had to shut down the mine. To which Todd replied he had authonty to do so when danger to the men was involved. Meanwhile Todd had sent for the night safety committeeman, Huerer, on duty at the mine tipple. Huerer confirmed Todd's judgment and told Patterson that the job could not work again until the cable was fixed. Within 2 1/2 hours the cable was replaced and work resumed. In addition to the foregoing instances involving his safety committee work, Todd regularly attended safety committee meetings in the company of his fellow commit- teemen Scanlan and Dawson, including the December 3 meeting involving the closing of the mine for roof bolting (supra, p. 5). He would frequently raise objections to unsafe conditions, usually relating to the unsafe handling of explosions. But Todd's objections were not made as often as were Dawson's or Scanlan's. These meetings were held twice a month and were attended by Patterson or Williams for Boyles. Macke frequently represented Respondent,14 and the state inspector was present on many occasions. One final incident was related to support Todd's safety activity On the occasion of working in a shaft, Todd called the attention of Respondent's Macke to the condition of one area, stating to him, "That rock is caving in pretty good back there." Macke heeded Todd's warning and did not proceed further. As previously noted, Todd returned in June seeking employment and was told that there was nothing then, but he should return in September or October or November.15 In justification of its failure to hire Todd, Respondent asserted that he was not qualified for underground work and had no mine papers. It was also stated as policy that the Respondent was only hiring former Peabody employ- ees. As Todd was in fact a former Peabody employee this further requirement would not seem to have applied. It does appear from the schedule of hiring, however, that some among those employed were also without mine papers. Michael Day, hired on May 1, was stated to be a son of a former Peabody employee, a category for which an exception was usually made; Donald Oyler, hired on May 20, had previously worked on the Boyles job and was a qualified conveyor belt man, an assignment for which Todd had already stated he was not qualified; Luety Smith, hired on May 21, was hired as a classified repair man, familiar with blue prints and hydraulic equipment. the testimony of Scanlan and Todd, the absence of testimony to the contrary by anyone else, and simple respect for human life clearly support this authority in emergency situations i3 Patterson was one of the two officials whom Boyles replaced shortly after complaints had been lodged by Scanlan 14 Todd could not recall that Respondent's mine manager, Gothard, attended any of these meetings and Gothard testified that he was not aware 833 David Jenkel and Ray Macke, both hired on June 8, were stated to be sons of Peabody employees and fell into the aforementioned excepted category. Only three hired before August were non-Peabody people without papers: John Dobbins, May 2; Charles Ray, June 8; and Jerome Hargett, July 10. Todd's Peabody employment, it will be recalled, ended 10 years previously. 3. Seldon Dawson Seldon Dawson, an unsuccessful applicant for the job of mine examiner at Respondent's River King Mine, had 14 years experience as a coal miner, including the jobs of mine examiner with Boyles Brothers on the River King construc- tion. He held mine examiner papers. The job of mine examiner was nonsupervisory and held by a qualified employee and a member of the bargaining unit represented by the Union. Thejob entailed continuing checking of safety conditions in the mine, including roofing, bolting, taking of air readings, checking for gases, and checking the equipment and facilities used in and about the mine. As mine examiner for Boyles, Dawson's first encounter with management was a dispute which arose when he spoke to Patterson about putting air down a shaft, i.e., ventilation by installation of a motor driven fan. Patterson told Dawson that he would "put air down whenever we needed it and not until," whereupon Dawson reported the condition to State Inspector Johnson who directed Peter- son to install the fan. Shortly after this incident, in early September, Dawson was named to the mine safety committee. Dawson asked Patterson on a number of occasions to put in an adequate signal system,16 and to install a magnetic brake on the slope hoist, both in conformity with Illinois law. Patter- son's reply was, "Well, we've done it a long time, I never did ever hear of it." Finally, a short time thereafter, when Dawson was about to raise a piece of machinery with the slope hoist, Patterson began giving Dawson signals, "waving his arms and hollering." Dawson did not understand the signal and Patterson renewed his frantic waving and ran up to Dawson reprimanding him for not following the signals he had given. Whereupon Dawson told Patterson that henceforth the hoist would be used only on signals provided by the state code. Then, speaking as safety committeeman, he informed Patterson that the hoist was "down" until an approved bell signal system was put into effect and a magnetic brake installed on the hoist. The state mine inspector was summoned immediately, con- firmed Dawson's orders, and directed that they be complied with before the hoist was used again. In the face of this order, however, Patterson continued to use the hoist; an incident witnessed by the entire safety committee and the union local president. On the following day, according to Dawson's uncontradicted testimony, Boyles of Todd's committee membership 15 The foregoing findings concerning Todd are based upon his credited testimony 16 The record does not indicate whether this is the same complaint made by Scanlan concerning the inadequacy of the signal system. I assume that it was 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD replaced Patterson and Williams as the superintendents. On the same day, Dawson met with Respondent's Field Engineer Macke who said to him, "Well, Dawson, it surely looks like you ruined your chances for a job with Peabody." 17 In the context of Edward Scanlan's safety committee activities, a complaint of faulty roof bolting has already been considered in detail, as has the safety committee meeting with management in connection with the com- plaint held on December 2. It was Dawson who in the course of his duties observed in early December that the roof bolting on the slope, the entrance to the mine, was inadequate. He complained of this to Supervisor Carl Mann on frequent daily occasions. After finally receiving Mann's reply that he would bolt the roof whenever he thought he needed it Dawson presented the problem to a meeting of the Union Local. As a consequence the safety committee and union officials determined to investigate the complaint and, upon doing so that same evening, Union President Bauer, speaking for the group, insisted that the mine be shut down until the bolting was corrected, and they so informed Mine Foreman Hedgcoth on the scene. It is to be noted at this point that the condition of the roof had been observed by State Mine Inspector Johnson as being so satisfactory that he would willingly sleep under it, and his official report reflected this judgment. Nevertheless, according to Boyles' project manager, Joe Jurneke, because the men felt the job was unsafe and were objecting so strongly, it was agreed at the meeting on the following morning that in the interest of production the requested bolting would be done and the job was shut down for a total of five shifts. At this December 2 meeting, Dawson was present, together with Scanlan and Todd, Union President Bauer, Peabody's Macke, Boyles' Jurneke, and State Inspector Johnson. Dawson applied for a job with Respondent in mid- March 1970 when he went to the Peabody office at the mine in the company of Todd and Gary Bauer, the union president's son. All three were interviewed by an official, Moke, who told Bauer, as he also told Todd, that they were only hiring experienced men underground. Dawson, when interviewed by Moke, told him that he had underground experience, but contrary to the answer Moke had given young Bauer and Todd, he told Dawson that "at the present time we aren't needing anyone. In case we do we will give you a phone call or get in touch with you." It is significant to this conversation that Dawson had told Moke he was presently a mine inspector and employed by Boyles at the site.18 In fact, it was conceded at the trial that Respondent then knew Dawson was working for Boyles and that he possessed mine papers. Further, from the constant presence of Field Engineer Macke at the site as well as his admission at the trial, I can reasonably infer that Macke, and therefore Respondent, knew Dawson was a qualified mine examiner then employed by Boyles. Supporting this Dawson testified without contradiction 17 Macke was called as a witness to deny this statement Upon my observation of him, I do not credit the denial 18 The credited testimony of Dawson, confirmed in part by Todd Moke was not called as a witness 19 Dawson also testified to a brief employment at the Island Creek Mine before coming to Boyles The reason for leaving this lob does not appear in that his mining experience included the operation of a continuous miner, drilling, roof bolting, and explosive handling. Dawson, being told that he would be called by Respondent, did not return again in support of his application. In explanation of its failure to hire Dawson, Respondent cites his unsatisfactory attendance record when previously employed by it, a misstatement on his application for employment with Boyles, and his conviction in 1968 for issuing bad checks. Thus, it appears that, at Respondent's Shawneetown Eagle No. 1 Mine, Dawson was a mine examiner in 1967-68, a member of the mine safety committee and known to Respondent's Production Super- intendent Stunson, who had been an official at Eagle No. 1 at the time, and more recently at River King. Attendance records at Eagle No. 1 for the period of Dawson's employment show him to have been absent for 57 days, including 1 week of vacation, during a working period of 207 days. When confronted at the trial with his application for employment with Boyles, Dawson conceded that he had not worked for Turco Mfg. Co., from 1966 to 1968, as indicated on the form, but that he had actually worked then for Respondent and had quit on April 2, 1968. Explaining his falsification, he stated, "Well I had some safety problems with Peabody. . . . So I figured that my chances of staying there wouldn't be too good if I put down that I had worked for Peabody before." Shortly after this period of employment, Dawson spent 4 or 5 months in the county jail on the aforementioned bad check conviction. Upon his release, he was unemployed until he was hired by Boyles.19 B. Analysis and Conclusions 1. The timeliness of the charge It is argued by Respondent that the subject matter of the complaint herein as it relates to allegations of discriminato- ry refusal to hire Scanlan and Dawson are barred by the limiting proviso of Section 10(b) of the Act.20 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 the fact of the discrimination and not merely an inference or presumption that discrimination did occur because, based upon what occurred earlier, it should have occurred. With this in view, we come to the alleged discriminatory refusal to hire Edward Scanlan to the job of hoist operator for which he was qualified and for which he had applied. Scanlan's application for this job was not casual nor routine and Respondent's efforts to persuade him to take another job instead were most determined, and as we shall see hereafter, purposeful. This the record clearly supports. the record 20 In Sec 10(b), it is stated in part ' " Provided, that no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made . " PEABODY COALCOMPANY So it is clear that the matter of Scanlan's application for a job was not to be considered as ended until the three hoist jobs were filled and Scanlan was shown to have been either hired or rejected. The third hoist job was filled by the hiring of William R. Hayes on May 2, 1970. On this day, Respondent demonstrated that it had conclusively resolved not to hire Scanlan, knowing full well that at no time prior thereto had he abandoned his application. Upon this reasonable interpretation of the facts surrounding the selection of the hoist operators, I conclude and find that the alleged discrimination against Scanlan occurred by its judgment to hire Hayes, within 6 months prior to the September 23, 1970, filing of the charge and is therefore not barred by Section 10(b). The failure to hire Seldon Dawson for allegedly discriminatory reasons raises the same 10(b) problem. The credited testimony of Dawson and Todd discloses that in March 1970, prior to the 6-month period, Dawson went to Respondent's field headquarters to check on the status of his application, telling the official, Moke, that if it was not on file he "would make out another one." Moke assured him that they had his application. When he asked Moke if they needed experienced miners, Moke replied, "Not right at the presence." Moke continued, "In case we do, we will give you a phone call or get in touch with you." The list of experienced miners hired by Respondent on or after May 1, 1970, amply resolves any question raised by Moke's statement, "In case we do." The foregoing statement credibly attributed to Respon- dent's hiring official, Moke, establishes a stated determina- tion to consider Dawson for employment. As hiring proceeded after May 1, it is clear that the failure to hire him occurred as a result of determinations made by Respondent during this period in which they said that they would "get in touch" with him. Such being the posture of Dawson's application and its rejection, I conclude and find that the alleged discrimination occurred while it presuma- bly remained under consideration, during the 6-month period prior to the date of the filing of the charge herein and was therefore not barred by Section 10(b). 2. The failures to hire The failure to hire any one of the three individuals involved here, considered in isolation, could well arouse nothing more than a suspicion which, however lively, might not be equated with an unfair labor practice. But where, as here, three suspicious failures to hire arise in a common context they present a coincidence that taxes credulity. Scanlan's safety committee activity was not only known to Respondent but, from comments credibly attributed to its officials, Frost and Stunson, it was displeased with him because of it. In such a context it is to be noted that the Board has viewed with extreme suspicion the promotion of a rank-and-file employee to supervisory status where there can be shown overtones of irritating union activity.21 Todd's efforts to insure, greater safety were equally known to Respondent through its own field engineer, 21 Macke Laundry Service Co of D C , 190 NLRB No 1, Benson Wholesale Co, 164 NLRB 536, 543, 548-549 See also* Bernhard Conrad Embroidery Company, 156 NLRB 1056, Seaboard Diecasting Co, 137 NLRB 835 Macke, and certainly through its continuing liaison with Boyles Brothers officials throughout the construction phase at the mine, particularly on the one occasion when Todd!had shut down the mine for safety reasons. Finally, Dawson's continued complaints concerning the inadequate bell system and hoist brakes and his shutting down of the hoist were known to Respondent and prompted Macke's statement that he had ruined his chances of further employment with the Respondent. This and the prominent part which Dawson played in having the mine shut down for roof bolting was certainly known to Respondent and not to its liking. In the face of such circumstances as link these three applicants for employment, I find the reasons suggested by Respondent at the trial to be unconvincing. Thus it is difficult to understand that Gothard, an astute appearing individual, could have been unacquainted with Scanlan's safety committee work, when the two officials who brought Scanlan's supervisory talents to his attention, Frost and Stunson, had already been critical of his safety complaints. And, when Scanlan, then running a hoist for Boyles, persisted in his quest for a hoist job with Respondent he was still refused in favor of an applicant, Hayes, whose application discloses that he had not run a hoist for the previous 4 years. The shifting reasons given to Dawson at the time he applied for a job and advanced at the trial are worthy of special note. Thus, when Dawson and two others applied to Moke for employment, the first two, one being Todd, were turned away because they were only hiring experi- enced miners for underground work. Then, when Dawson identified himself as an experienced underground miner, he was told by Moke that "right at the present we aren't needing anyone." And finally, while it was stated numer- ous times at the trial that it was Respondent's policy to hire only former Peabody employees or their relatives, three non-Peabody men were hired while Todd, also a non- Peabody applicant was told to come back 3 or 4 months later. In light of the foregoing, I am inclined to view with less concern than I normally would Dawson's failure to list former Peabody employment on his Boyles' application, fearing, as he credibly stated, that his former activity on a mine safety committee at Respondent's Eagle No. I Mine would work to his detriment.22 Certainly what I find herein respecting Dawson, as well as the other two would tend to confirm his fears. Nor am I persuaded that Dawson's criminal record or his absentee record when previously employed by Respondent were, or either of them were, the real reason for his rejection. Quite apart from the fact that Dawson has paid his debt to society, I recognize Respon- dent's right to reject him for his criminal record or for his former absenteeism, or for any other reason not proscribed by statute. But this it must establish as the reason given or implied to the applicant when he was rejected for employment and not to me, a year later at the trial, when confronted, as Respondent was here, with more cogent reasons supplied by the facts in this case. In sum, I reject 536,540-541 22 It is not to be understood by any finding I make concerning this falsified application that I minimize it of excuse Dawson for his conduct 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the reasons given by Respondent's witnesses as pretexts designed to disguise the real purpose in their refusal to employ Dawson as well as the other two. In conclusion, therefore, I am persuaded that the failure to hire Scanlan, Todd, and Dawson was a contrived determination on Respondent's part not to have in its employ the three men whose concerted activities it was aware of, had found distasteful, and had criticized . By this conscious withholding of employment from qualified applicants for the reason that they did engage in such concerted activity, I conclude and find that Respondent thereby interfered with, restrained, and coerced them and their fellow workers in the exercise of their statutory right to engage in concerted activities , thereby violating Section 8(a)(1) of the Act. Because such concerted activity is essentially an adjunct of the Union of which all three men were members and serving as its appointed safety commit- teemen, I further conclude that Respondent had thereby discriminated against them in violation of Section 8(a)(3) of the Act.23 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its business operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It has been found that the Respondent has violated the Act in certain respects. I will accordingly recommend that an order issue requiring it to cease and desist therefrom, and, because the nature of the unfair labor practices committed here are of such gravity as to present a threat of future violations of the Act , I shall recommend that Respondent cease and desist from in any other manner interfering with, restraining, or coercing its employees in the exercise of their statutory rights . Affirmatively, I shall recommend that Respondent offer employment to Edward Scanlan, William Todd, and Seldon Dawson , with backpay to each of them from the date upon which they would have been hired in the course of the Respondent's normal hiring procedures upon its beginning of operations at the River King Mine, such backpay to be computed in the customary manner,24 with interest at the rate of 6 percent per annum,25 and that it post appropriate notices of compli- ance with such Order as the Board issues. Upon the foregoing findings of fact , conclusions of law, and the entire record in this case and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following. [Recommended Order omitted from publication.] 23 New York Trap Rock Corporation , 148 NLRB 374 25 Isis Plumbing & Heating Co , 138 NLRB 716 24 F W Woolworth Co, 90 NLRB 289