Medicine Bow Coal Co.

MEDICINE BOW COAL COMPANY Medicine Bow Coal Company andUnited Mine Work- ers of America. Case 27-CA-4208 May 12, 1975 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On December 31, 1974, Administrative Law Judge William J. Pannier III issued the attached Decision in this proceeding. Thereafter, the Respondent filed ex- ceptions and a supporting brief, and the General Coun- sel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order, as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondent, Medicine Bow Coal Company, Hanna, Wyoming, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 1(b): "'(b) Telling employees that Respondent does not hire supporters of the Union or of any other labor organizations." Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F 2d 362 (C.A. 3, 1951) We have carefully examined the record and find no basis for reversing his findings 2 While the Administrative Law Judge found that Briggs was unlawfully discharged in violation of Sec 8(a)(3) of the Act, we note that, even if Briggs in fact had never been hired, the refusal to hire in the circumstances here would equally violate Sec. 8(a)(3) We have decided not to adopt the Ad- ministrative Law Judge's finding that a conversation between the Respon- dent's mine superintendent, Paul Barnett, and employee John Dellinger violated Sec 8(a)(1) of the Act. Since this conduct was not alleged in the complaint issued by the General Counsel, we will not base a finding upon it. However, we note and accept his factual finding as evidence of the Respondent's union animus. Accordingly, the first phrase in par. 4 of the Administrative Law Judge's Conclusions of Law, reading "By threatening not to employ employees who would organize on behalf of the Union," is hereby deleted. 931 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 Act, as amended, gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representa- tive they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activity except to the extent that the employees' bargaining rep- resentative and employer have a collective-bar- gaining agreement which imposes a lawful re- quirement that employees become union members. In recognition of these rights, we hereby notify our employees that: WE WILL offer to reinstate Lonnie J. Briggs to his former job, without prejudice to any of his rights and privileges, and make him whole for any wages which he has lost as a result of our discrimi- nation against him. WE WILL NOT tell employees that we do not hire supporters of the United Mine Workers of America or of any other labor organization. WE WILL NOT discharge or otherwise discriminate against any employee because he or she is a sup- porter of the United Mine Workers of America or because he or she is a supporter of any other labor organization. WE WILL NOT discharge or otherwise discriminate against any employee because he or she has en- gaged in activities on behalf of the United Mine Workers of America or on behalf of any other labor organization. WE WILL NOT in any manner interfere with any of your rights under the National Labor Relations Act as set forth above. MEDICINE Bow COAL COMPANY DECISION STATEMENT OF THE CASE WILLIAM J. PANNIER III, Administrative Law Judge: This case was heard by me at Laramie , Wyoming, on November 5, 1974,1 pursuant to a complaint and notice of hearing is- 1 Unless otherwise stated, all dates occurred in 1974. 217 NLRB No. 152 932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sued on October 1 by the Acting Regional Director for Re- gion 27'of the National Labor Relations Board. The com- plaint is based on an unfair labor practice charge filed on July 22 and alleges violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called the Act. All parties have been afforded full opportunity to appear, to introduce evidence , to examine and cross-examine wit- nesses, and to file briefs. Based on the entire record, the briefs filed on behalf of the General Counsel and on behalf of the Respondent, and on my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT I JURISDICTION Medicine Bow Coal Company,' herein called Respon- dent, is a joint venture , consisting of Dana Coal Company, a Delaware corporation, and Hanna Basin Coal Company, a Utah corporation, and maintains an office and place of busi- ness at Hanna, Wyoming. At its mine located near Hanna, Respondent engages in the mining of coal and, as admitted in the answer, in the course and conduct of its business opera- tions, Respondent annually sells and ships goods and materi- als valued in excess of $50,000 directly to points and places outside the State of Wyoming. Therefore, I find, as admitted by the answer, that Re- spondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED United Mine Workers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. Motion To Reopen Hearing In its brief, Respondent moves that the hearing be re- opened for further cross-examination of witnesses called by the General Counsel and so that Respondent may present additional evidence . This motion is based on the grounds that I erred in denying Respondent's motion for pretrial discovery and that discovery of memoranda authorizing the issuance of the complaint in this matter is required by the Freedom of Information Act. At the commencement of the hearing, Respondent pointed out that on November 1, 4 days earlier , it had filed with the Regional Director for Region 27 a request for discovery,' asking for the production of. (1) "Names and addresses of all persons whom the NLRB or General Counsel will or may call to testify at the hearing"; (2) "Any and all written or recorded statements of each and every person whom the NLRB or General Counsel will or may call to testify at the hearing in 2 As amended at the hearing 3 Respondent has appended a copy of the request for discovery to its brief with the representation that following the close of the hearing, it agreed with counsel for the General Counsel that the request could be introduced into evidence in this manner the above-captioned case"; (3) "Any and all notes or memo- randa of interviews of each and every person whom the NLRB or General Counsel has interviewed pertaining to the above-captioned case"; and (4) "Any and all memoranda authorizing the issuance of a complaint and the prosecution of the above-captioned case." This information was sought, asserted Respondent's counsel at the hearing, because Re- spondent did not believe that unfair labor practice hearings should be "conducted in a veil of secrecy," leaving Respon- dent in the position of not knowing the identity of the witnesses until they testify and, further, "in an untenable position of trying to prepare cross-examination and locating rebuttal wit- nesses to anything that the General Counsel puts on." Ac- cordingly, Respondent renewed before me its motion for the information which it had sought from the Regional Director, contending that it was entitled to this information under the Due Process Clause of the United States Constitution, the Freedom of Information Act and the Jencks Act. Contrary to Respondent's position, discovery is not a con- stitutional right in administrative proceedings . N.L.R.B. v. Interboro Contractors, Inc., 432 F.2d 854, 857-858 (C.A. 2, 1970), cert. denied 402 U.S. 915 (1971); Starr v. Commis- sioner of Internal Revenue, 226 F.2d 721, 722 (C.A. 7, 1955), cert. denied 350 U.S. 933 (1955); see also United States v. Avella, 395 F.2d 762 (C.A. 3, 1968). In its brief, Respondent argues that since Section 10(b) of the Act provides that pro- ceedings before the Board "shall, so far as practicable, be conducted in accordance with the rules of evidence applicable in the district courts of the United States," that it, therefore, is entitled to discovery under Federal Rules of Civil Proce- dure 26 through 37 insofar as it is practical to adapt those rules to Board proceedings, citing N.L.R.B. v. Safeway Steel Scaffolds Company of Georgia, 383 F.2d 273 (C.A. 5, 1967), cert. denied 390 U.S. 955 (1968), and McClain Industries, Inc. v. N.L.R.B., 87 LRRM 2207 (E.D. Mich., 1974). The applicability of discovery under the Federal Rules of Civil Procedure to Board proceedings is a topic which has generated considerable controversy . Thus, some courts have held that the above-cited provision of Section 10(b) of the Act does not authorize the use of discovery in Board proceedings. N.L.R.B. v. Globe Wireless, Ltd., 193 F.2d 748, 751 (C.A. 9, 1951); N.L.R.B. v. Interboro Contractors, Inc., 432 F.2d 854, 858-860 (C.A. 2, 1970), cert. denied 402 U.S. 915 (1971). Other courts have interpreted this language of Section 10(b) to be sufficiently broad to permit formulation of discovery procedures for Board proceedings. N.L.R.B. v. Safeway Steel Scaffolds Company of Georgia, 383 F.2d 273, 276 (C.A. 5, 1967), cert. denied 390 U .S. 955 (1968); North American Rockwell Corporation v. N.L.R .B., 389 F.2d 866, 871 (C.A. 10, 1968); N. L. N.L.R.B. v. Vapor Blast Manufacturing Company, 287 F.2d 402, 407 (C.A. 7, 1961), cert. denied 368 U.S. 823 (1961). It does not appear, however, even under the latter view, that the-Board is compelled to formulate such proce- dures. North American Rockwell Corporation v. N.L.R.B., ibis,, N.L.R.B. v. Vapor Blast Manufacturing Company, ibid.; N.L.R.B. v. Interboro Contractors, Inc., supra, at 858, 860; Electromec Design and Development Company v . NL.R.B., 409 F.2d 631 , 635 (C.A. 9, 1969), although it does appear that it might be error for the Board to deny discovery in situations where a respondent could show a sufficient "need" for such procedures. N.L.R.B. v. Vapor Blast Manufacturing Com- MEDICINE BOW COAL COMPANY 933 pony, ibid.; Morgan Precision Parts v. N..L.R.B., 444 F.2d 1210 (C.A. 5, 1971); N.L.R.B. v. Rex Disposables, Div. of D.FIJ Industries, Inc., 494 F.2d 588, 592 (C.A. 5, 1974); see also N.L.R.B. v. Quest-Shon Mark Brassiere Co., Inc., 185 F.2d 285 , 289 (C.A. 2, 1950), cert. denied 342 U.S. 812 (1951); Huff v. N.D. Cass Company ofAlabama, 468 F.2d 172, 177 (C.A. 5, 1972). In its brief, Respondent contends that I prevented it from making such a showing of "need" by ruling that discovery was not available. This is patently inaccurate, for examina- tion of the record discloses that I afforded Respondent a full opportunity to argue in support of its motion and, then, after I had ruled, permitted Respondent to argue in opposition to the ruling. Counsel for Respondent ended the latter by stat- ing, "That's all I have." In fact, the arguments presented in Respondent's brief to establish a need for discovery and to establish that I erred in failing to grant discovery are unper- suasive. Three arguments are advanced to show Respondent's asserted need for discovery: first, at the time of the request, it (lid not know the names of the witnesses whom the General Counsel intended to call with the result that it was unable to prepare cross-examination or rebuttal testimony; second, that Respondent was unable to present rebuttal evidence regard- ing the employees that John L. Dellinger, whom the General Counsel alleged to be a supervisor, testified that he had hired and regarding Dellinger's testimony that Mine Superinten- dent Paul W . Barnett had said, in the proximity of employees, that Respondent "could not hire a Union organizer"; and, finally, that the dispute over whether or not the dis- criminatee, Lonnie J. Briggs, was ever hired was so unusual that it left Respondent in the position of not knowing the basic nature of the General Counsel 's case. At the time that I denied Respondent's motion at the com- mencement of the hearing, I pointed out to Respondent that I would entertain a motion for a continuance, albeit of reason- able duration, at the close of the General Counsel's case in order to afford Respondent an opportunity to be properly prepared to present evidence in its case-in-chief. By the time that such a continuance would have been granted, Respon- dent would have known the names and addresses of all wit- nesses called by the General Counsel and would have re- viewed all statements of such persons pursuant to the rule of Ra-Rich Manufacturing Corporation, 121 NLRB 700 (1958).° Notwithstanding this offer, after the General Coun- sel rested, no request for continuance was forthcoming. In its brief, Respondent argues that a continuance , had it been requested and granted, would not have been of assistance, because additional and substantial expense would have been incurred to travel the 100 miles from Laramie to the mine in ordler to locate witnesses and, further, Respondent would have been in the position of having to attempt to locate wit- nesses on extremely short notice. A short answer to both of 4 The pretrial statements of his witnesses were willingly turned over, upon Respondent's request, by counsel for the General Counsel at the completion of each witness' direct examination In the case of two witnesses (Eddie Campbell and Donald M Anderson) who had not given pretrial statements, I ordered counsel for the General Counsel to turn over his notes of pretrial conversations with these individuals even though, as I pointed out at the time , they were not encompassed by the Ra-Rich rule. Nonetheless, these notes did afford Respondent an opportunity to examine what the General Counsel had at his disposal, in lieu of statements, at the time that these witnesses were called to testify. these arguments is provided by reference to Respondent's request for discovery filed with the Regional Director and by reference to a map of the area. The request for discovery was not filed with the Regional Director until Friday, November 1-4 days, two of which were weekend days, prior to com- mencement of the hearing-and it requested the information "at least twenty-four hours prior to the scheduled hearing." Surely Respondent would have filed its request for discovery much earlier and sought to have the specified information produced much sooner if, in fact, it was concerned with time and distance. With regard to the latter-distance-ref- erence to a map of the State of Wyoming discloses that Hanna, where Respondent 's mine is located , is situated northwest of Laramie, where the hearing was held. Denver, Colorado, is of course, due south of Laramie and, consequently, even further away from Hanna than is Lara- mie. Yet, in its request for discovery, Respondent requested that the Regional Director produce the specified information at least 24 hours before the hearing at 500 Equitable Building, Denver, Colorado. If the expense of traveling the 100 miles from Laramie to the mine to locate witnesses would have been great and if Respondent would have been operating on extremely short notice had a continuance been granted when the General Counsel rested, how much greater that expense and shorter that notice under the terms set forth in Respon- dent's request for discovery. Therefore, I do not regard Re- spondent's reasons for failing to request a continuance when the General Counsel rested to be a valid basis for having failed to request a continuance at that time. In summary, at the hearing, Respondent moved that the General Counsel produce the names and addresses of his witnesses, their pretnal statements , notes and memoranda of interviews with them, and all memoranda authorizing issu- ance of the complaint. Further, Respondent moves that the hearing be reopened because, inter alia, its "Motion for Dis- covery was improperly denied." Yet, "the Board's rules of procedure specify that a respondent is entitled to copies of statements only after the particular witnesses has testified." N.L.R.B. v. Central Oklahoma Milk Producers Association, 285 F.2d 495, 498 (C.A. 10, 1960); see also Raser Tanning Company v. N.L.R.B., 276 F.2d 80, 83 (C.A. 6, 1960), cert. denied 363 U.S. 830 (1960);-Kayser-Roth Hosiery Company, Inc. v. N.L.R.B., 447 F.2d 396, 399 (C.A. 6, 1971). Moreover, there is no guarantee that the notes of thoughts, deliberations, and impressions of Board agents regarding witnesses are complete or accurate and, further , the Board has a valid interest in maintaining its informal processes and delibera- tions free from mandatory production. J. H. Rutter' Rex Manufacturing Company, Inc. v. N..L.R.B., 473 F.2d 223, 233-234 (C.A. 5, 1973), cert. denied 414 U.S. 822 (1973). The pretrial affadivits of witnesses called by the General Counsel were, as pointed out above, made available to Respondent who was afforded whatever time it needed to review them prior to commencing cross-examination. Morgan Precision Parts v. N.L.R.B., 444 F.2d 1210, 1215 (C.A. 5, 1971). Re- spondent did not avail itself of the opportunity to move for a continuance upon the conclusion of the General Counsel's case. N.L.R.B. v. Vapor Blast Manufacturing Company, 287 F.2d 402, 408 (C.A. 7, 1961), cert. denied 368 U.S. 823 (1961). Respondent has not shown any "specific detriment" from its failure to obtain discovery, Morgan Precision Parts 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD v. NL R.B., supra' N.L.R.B. v. Central Oklahoma Milk Pro- ducers Association, supra; N.L. N.L.R.B. v. Seine and Line Fisher- man's Union of San Pedro, 374 F.2d 974, 981-982 (C.A. 9, 1967), cert. denied 389 U.S. 913 (1967), nor has it shown that it was "prejudiced, surprised or in any way put at a disadvan- tage" due to its failure to obtain discovery. N.L.R.B. v. Vapor Blast Manufacturing Company, supra. Indeed, the supervi- sory status of John Dellinger was pleaded in the complaint and denied in the answer as was the fact that Respondent had discriminated against Lonnie J. Briggs on or about June 25. These allegations did not involve unusual or unduly com- plicated issues and, as set forth, infra, Respondent presented evidence directed to each of them. In fact, notwithstanding its assertions that the record must be reopened to permit it to further cross-examine the General Counsel's witnesses and to present additional evidence, Respondent does not specify what facts it would seek to elicit or what witnesses it would call. Nor does it even suggest what could or might have been brought out had its request for discovery been granted. Mor- gan Precision Parts v. N.L.R.B., 444 F.2d 1210, 1215 (C.A. 5, 1971). Contrary to the United States District Court in McClain Industries, Inc. v. N.L.R.B. supra and as shown above, dis- covery is not a constitutional right in administrative proceed- ings, and, thus, the Board's failure to provide for it is not a violation of due process of law. While some courts have held that it must be made available where there is a showing of "need," Respondent has made no such showing in the cir- cumstances of this case. "Neither before the Board nor here has respondent demonstrated a `need' to examine the docu- ments in question before the administrative hearing except by broad statements that such examination was necessary in its preparation for the unfair practices hearing." N.L.R.B. v. Vapor Blast Manufacturing Company, supra. Therefore, I deny Respondent's motion to reopen the record because it was denied pretrial discovery. Respondent also advances the Freedom of Information Act, 5 U.S.C., Sec. 552, as a basis for its demand for the information which it requested, particularly with regard to its request for memoranda authorizing the issuance of a com- plaint and the prosecution of the instant case. As Respondent acknowledges in its brief, the Board has taken the position that material such as that requested by Respondent need not be provided under the Freedom of Information Act and certi- orari has been granted by the Supreme Court in N.L.R.B. v. Sears, Roebuck and Co., 346 F.Supp. 751, affd. 480 F.2d 1195 (C.A.D.C., 1973) [421 U.S. 132 (1975)]. Since the Board con- tinues to maintain that it is not obliged to make available the type of information requested by Respondent and as the issue is currently before the Supreme Court in the Sears case, I deny Respondent's motion under 5 U.S.C., Sec. 552, to re- open the record for the production of the information, particu- larly memoranda authorizing the issuance of the complaint, specified in its request for discovery. Motion To Defer to Arbitration In its brief, Respondent renews its motion, made at the commencement of the hearing, that further proceedings on this matter be deferred to the grievance and arbitration proce- dure in Respondent's collective-bargaining agreement, under the doctrine of Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837 (1971) I reserved ruling on this motion and, having reviewed the record in this matter, feel that the motion must be denied. Although the terms of the grievance and arbitration provi- sions of Respondent's agreement are sufficiently broad to encompass the dispute in this proceeding, the agreement is not with the Union, but rather is between Respondent and the International Union, Progressive Mine Workers of America, herein called Progressive. Thus, unlike the situation contemplated under Collyer, there is no identity of parties to the unfair labor practice case and the collective-bargaining agreement-the sole common denominator is Respondent So far as the record discloses, the alleged discriminatee, Lon- nie J. Briggs, has never been a member of Progressive, but rather had been an organizer for the Union prior to the events of late June, and has never authorized Progressive to repre- sent him in connection with his dispute with Respondent. Cf. Great Scott Supermarkets, Inc., 206 NLRB 447 (1973). In- deed, it was the Union-not Progressive-which filed the charge in this matter with the allegation of unlawful conduct on the part of Respondent predicated upon Briggs' member- ship and activities on behalf of the Union, not Progressive. Though the alleged unfair labor practice occurred in June, at no point has Progressive come forward to assert that it would be willing to represent Briggs under the grievance procedure of the contract. In these circumstances, while I do not feel that the record is sufficient to establish that Progressive's interests are adverse to those of Briggs, cf. Kansas City Meat Packers, A Division of Aristo Foods, Inc., 198 NLRB 543 (1972), neither do I believe that it is sufficient to establish that the interests of Briggs and Progressive are in such substantial harmony that Briggs would be adequately represented in the arbitral process. Cf. American Bridge Division, United States Steel Corporation, 206 NLRB 265 (1973), Plumbers & Steam- fitters Local No. 198 (National Maintenance Corporation), 210 NLRB 974 (1974). Therefore, as Briggs is not a member of Progressive and has not authorized Progressive to represent him in this dis- pute with Respondent, as Progressive has not indicated a willingness to represent Briggs in this dispute, as there is no showing that the interests of Briggs and Progressive are in substantial harmony sufficient to assure adequate representa- tion of his interests by Progressive, and as the charge has been filed by the Union, which is not a party to a contract with Respondent, alleging discrimination against Briggs because of his membership and activities on behalf of the Union, I deny Respondent's motion to defer further proceedings in this matter to the grievance and arbitration provisions of Progressive's contract with Respondent. III ISSUES 1. Whether John L. Dellinger is a supervisor within the meaning of Section 2(11) of the Act and an agent of Respon- dent within the meaning of Section 2(2) and (13) of the Act. 2. Whether, on or about June 25, Respondent, through Mine Superintendent Paul W. Barnett, told an employee to leave Respondent's premises because Respondent did not hire union men and, if so, whether Respondent thereby violated Section 8(a)(1) of the Act. MEDICINE BOW COAL COMPANY 3. Whether, on or about June 25 , Respondent discharged Lonnie J. Briggs because of Briggs' activities on behalf of the Union and, if so, whether Respondent thereby violated Sec- tion 8(a)(3) and (1) of the Act. A. The Events of June 25 and 26 On or about the evening of June 25, John L. Dellinger, whom the General Counsel alleges to be a supervisor and an agent of Respondent, received a telephone call from his sec- ond cousin, Lonnie J. Briggs.' Dellinger testified that Briggs asked for a job and that he told Briggs to come out to the mine the following morning and he could go to work. On direct examination, Briggs testified that he, as counsel for the Gen- eral Counsel phrased it, asked Dellinger for employment and that Dellinger inquired how badly Briggs needed a job, to which the latter replied, "bad-I wasn't working." Briggs testified that Dellinger then told him to come out the follow- ing morning at 8 o'clock. On cross-examination, Briggs testi- fied initially that he had asked Dellinger if Respondent was hiring and that when Dellinger then asked how badly Briggs needed a job, he replied "bad because I was laid off 2 weeks, and I had to have work.s6 Then, testified Briggs, he was told by Dellinger to report the next day at 8 o'clock. Later, on cross- examination, Briggs testified that he had asked Dellinger if "they had any job openings out there" and denied telling the agent of the Board who had taken Briggs' pretrial affidavit that he (Briggs) had asked Dellinger to see if he could help find Briggs a job out there. Respondent then showed this affidavit to Briggs and in the affidavit appears the sentence: "Mr. Dellinger is a cousin of mine, and I asked him if he could help me secure employment at the mine." After reading this sentence, Briggs renewed his prior testimony concerning the substance of his telephone conversation with Dellinger: that he had asked Dellinger if there was a job opening because he needed a job and that Dellinger had asked how bad. Briggs then added "as far as I can see, he's helping me to get a job if he can-get me on." Briggs concluded his testimony on this point by stating: "When I called Mr. Dellinger, just like I told you, I asked him if they were hiring out there-to me it's the same. I don't know." On the morning of June 26, when Dellinger arrived at the mine, Briggs was already there, and when Don Beach, who works in Respondent's office-trailer at the Hanna mine, ar- rived, Dellinger took Briggs into the trailer so that he could complete the necessary application forms. Beach, however, was too busy to take care of the matter at that time and directed Briggs to return at the 10 a.m. coffee break. Briggs left the trailer and joined the men in front of the toolshed where Dellinger was "lining them out" for the day. Dellinger assigned Briggs to work with Mike Judge, dressing and clean- ing rusty 2-1/2-inch bolts and putting them in the botton of a transformer, which he did until 10 o'clock when he returned 5 Dellinger testified that Briggs lived 14 miles from Dellinger's home, that Briggs had never lived eloseror in the same house with Dellinger, and that he was "friends" with Briggs Briggs testified that he knew Dellinger pretty well, that they were "good friends" but did not see much of each other, that he had known only that Dellinger was working at Respondent's mine, and that this telephone call had been his first contact with Dellinger since the first of the year 6 Briggs testified that he was supporting his wife and two children, with another child expected at that time. 935 to the trailer, this time without Dellinger. Briggs acknowl- edged that on this morning he reported only to Dellinger. Briggs testified that when he walked into the office Mine Superintendent Paul W. (Bill) Barnett' was there and that, while speaking with Beach, Barnett, who had looked directly at Briggs, left the office. After having been given the neces- sary forms and having been instructed to return them com- pleted on the following morning, Beach testified that he left the office to put the papers in his truck, but while enroute, he encountered Barnett who said Briggs' background in this part of the country wasn't worth s-, and who then said: "We don't hire Union guys here." Then, according to Briggs, Bar- nett grabbed the application forms from Briggs' hand and ripped them up. "So I got the message, and I left the job premises," testified Briggs. Briggs further testified that, be- tween the time that Barnett had left the trailer and the time that he, himself, left, approximately 55 seconds elapsed.' Dellinger testified that during the ten o'clock coffeebreak he had been sitting next to one of the feet on the dragline, "a little bit apart from the rest of the guys,"9 when Barnett ap- proached him and asked, "Did you hire that Briggs kid?" Dellinger testified that he replied, "Yes," and that Barnett responded, "I can't have a Union organizer like him around here," started waving his hands, and left in the direction of the office-trailer. Dellinger testified that as Barnett neared the office he (Dellinger) observed Briggs leaving the office and that Barnett "caught" Bnggs between the office and Briggs' pickup truck, a distance, Dellinger estimated, of 50 to 60 yards from where Dellinger was seated. While he could not hear what was being said, Dellinger testified that he observed Barnett say something to Briggs and then jerk the application forms from Briggs' hand. Dellinger further testified that fol- lowing the incident, on either the afternoon of the same day or on the following morning, Barnett said to him, "After this before you hire a man, make sure it is approved by either Harold [Mellott] 10 or me." Barnett testified that on this morning he was making his daily inspection and that, after the coffeebreak whistle had blown, he was coming off the dragline and walking toward his ofice when he observed Briggs coming from the office with some papers in his hand. Barnett testified that he asked Briggs what he was doing there and that when Briggs replied that he was going to work, he (Barnett) said, "No; with your background, you are not going to work for me"ii and took the papers from Briggs, tore them up, and threw them in the trash barrel, after which he asked Bnggs to leave the prem- ises. Barnett denied that he had observed Briggs in the trailer- office prior to this time and further denied that he gave Briggs any reason for denying him employment other than Briggs' 7 In its answer, Respondent admitted that Barnett was mine superinten- dent and a supervisor. 'Although he testified that he was never paid for the 2 hours of work which he performed on that morning and that he later complained to- Dellinger about not being paid for this work, Briggs acknowledged that he never filed a grievance over the nonpayment. 9 Dellinger did not identify "the guys" and Respondent did not pursue the matter of their identity on cross-examination There is no showing that they could have overheard the conversation between Barnett and Dellinger, in any event. 10 Harold Mellott's status with Respondent is described in sec III, C, infra. i i Briggs denied specifically that Barnett said anything like, "Due to your past record, you're not going to work here." 936 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD past record. Barnett further ,testified that he had never heard the statement "We don't hire Union men" before and claimed that he did not know to what it pertained . However, on direct examination concerning events following his conversation with Briggs, the following occurred: Q. Did you have a subsequent conversation with Mr. Dellinger? A. I did. Q. And you heard this testimony that you said some- thing about Union organizers . Would you describe that conversation? A. I do not recall personally, but Mr. Dellinger said that I said that-I will accept that. To support its contention that it was not motivated by unlawful considerations in connection with its actions con- cerning Briggs, Respondent advanced several contentions: first, that Briggs' past record was so bad that Barnett refused to hire him; second, that Dellinger was not a supervisor and had no authority to hire Bnggs ; third, that there were no vacancies for which Briggs could have been hired ; and, fi- nally, that Respondent had had a history of amicable rela- tions with Progressive and had hired former union members and officials , thereby precluding any possible assertion that Respondent would harbor animus toward Bnggs because of his former employment by and activities on behalf of the Union. B. The Background of Briggs In its brief, Respondent points to four items to support its defense that Briggs' past record justified Barnett's action. First, Briggs had been employed previously by Rosebud Coal Company at another coal mine in Wyoming and at one point during this employment , Barnett, who was then super- intendent of Decker Coal Mining Company working at Rose- bud as aconsultant, had supervised Briggs on the night shift. Barnett testified that, based on his daily observation of Briggs during this period, he believed Briggs to be a "very danger- ous, sloppy, inefficient worker." However, Barnett provided no details to support his generalized characterization of Briggs' work and he acknowledged that he never had occa- sion to discharge Briggs. So far as the record discloses, Bar- nett never raised his dissatisfaction with Briggs nor com- plained about Briggs to any official of Rosebud . Moreover, at the Rosebud mine, Barnett had only supervised Briggs for a 60- to 90-day period and this occurred in 1971. Finally, it is undisputed that Briggs continued to work at Rosebud until June 12, 1973. On June 12, 1973, Rosebud discharged Briggs and it is this discharge to which Respondent points as a second basis to support its defense that Barnett's decision was justified. How- ever, the discharge was not occasioned by the lack of quality in Briggs' work. Rather, he was discharged for leaving his machine during a shift, according to Barnett, "to attend a Union meeting put on by Arnold Miller at the Miner cafe, handing out drinks and food to organize Rosebud Coal Com- pany." Following his discharge, Briggs filed an unfair labor practice charge against Rosebud, alleging that the discharge had been unlawfully motivated, but the General Counsel refused to issue a complaint on such a basis. Barnett testified that he had been aware of the events surrounding Briggs' discharge by Rosebud and of the processing of the charge against Rosebud, for Barnett attended regular meetings of coal operators, including Rosebud, and "At a meeting, I was well-informed about Mr. Briggs' activities. I have been all the way through on his National Labor Relations case. In fact, I have copies at my desk of his appeals and everything." Following his discharge by Rosebud , Briggs was hired on June 15, 1973, as an organizer by the Union , a position he was to occupy until his layoff by the Union on June 16 or 17 and a position which he occupied during two events to which Respondent points as added reasons for rejecting him on June 26. The first incident occurred on July 4, 1973, when Briggs called Barnett and requested a donation for a party. When Barnett declined ' to contribute, Briggs called Barnett "chickens-." The second event arising during Briggs' employment by the Union and the final item to which Respondent points to support its defense of justification by past record involved the Union's campaign at Rosebud . At the time that Barnett had supervised Briggs in 1971 , Rosebud's employees were repre- sented by the Operating Engineers. In 1973, the Union par- ticipated in a representation election as a result of which the Union replaced the Operating Engineers as the bargaining representative of Rosebud's employees. Barnett testified that he was "fully aware" of the campaign at the Rosebud mine which was "very close" to Arch Mineral, Seminole Mine No. 2, where Barnett was, at that time, superintendent. In fact, the proximity of those two mines was such that there was only one county access road to both mines , with Rosebud being located further down the road than Seminole Mine No. 2 which had a haulage road crossing the access road, approxi- mately 2,000 feet from the Rosebud mine. Either in connec- tion with the organizational campaign or because of a dispute arising following certification, the Union commenced a strike against Rosebud in August 1973. In connection with this strike, - for 3 or 4 days in August 1973, the Union placed pickets and a trailer in the intersection formed by Seminole Mine No. -2's haulage road and the county access road to Rosebud, thereby interfering with hauling on the former. Both Briggs and Barnett testified that they had no knowledge of any dispute which the Union could have had with Arch Mineral. Barnett testified that he personally observed that Briggs was one of the pickets at that location and Briggs acknowledged his presence at the picket line. C. The Status of John L. Dellinger The General Counsel alleges that John L. Dellinger, who had been hired as a welder by Respondent in 1973, was a supervisor. Dellinger testified that, one Sunday in March, Erection Superintendent Charlie Caudill told him, "You tell Barnett when he comes back I left," and that when he related Caudill's comment to Barnett on the following day the latter said that the iron was still coming in, that he did not intend to spend over an hour a day at the mine, that the dragline was all Dellinger's, that Dellinger could hire people, and that Dellinger should try to keep everything going and "I'll try to get you a superintendent." Subsequently, testified Dellinger, Barnett said that he had hired Harold Mellott as superinten- MEDICINE BOW COAL COMPANY dent, but that it would be about 2 weeks before Mellott would report. Ultimately, Mellott's first day of work was April 2. Dellinger testified that he remained a foreman until July 3 when he quit and in that capacity he would report one-half hour before the shift commenced to speak with the foreman whom he was to relieve concerning what had to be done and, also, to check out things, personally. Then, testified Dellin- ger, he would "line out" the men in his crew, numbering bet ween 35 and 40 individuals working in the job classifica- tions welder, helper, and laborer. Eddie Campbell testified that he received most of his daily assignments from Dellinger following commencement of employment with Respondent on May 3 or 4. Both Barnett and Mellott testified that Dellinger had been employed as a lead welder or, in effect, a leadman. While Dellinger testified that, after his own promotion, he no longer worked with the other employees on his shift but rather assigned jobs to the employees which kept him occupied fully, Barnett testified that Dellinger "worked with the men" and Mellott testifed that Dellinger was "actually a working mem- ber of that unit," who "kind of pushes the men on." There is no dispute regarding the fact that Dellinger remained a member of Progressive during the time that he worked for Respondent and that supervisors are not normally members of Progressive nor, for that matter, of the labor organizations representing mine employees, at least those in Wyoming. Dellinger was paid the rate specified for the classification lead welder in Respondent's collective-bargaining agreement with Progressive. A substantial dispute exists over whether or not Dellinger has the authority to hire employees with Barnett and Mellott both testifying that neither Dellinger nor any other leadman possessed such authority and that only one of them (Barnett or Mellott) could authorize the hiring or discharging of em- ployees. Both testified that this was communicated to all of the leadmen, including Dellinger, when Mellott first com- menced working for Respondent and that thereafter this ad- monition was repeated to Dellinger. Dellinger denied specifi- cally that anything was ever said to him about his lack of authority to hire or fire employees, either at the time that Mellott first started working for Respondent or at any time thereafter. Dellinger testified that he had hired a number of people after Mellott started working at Respondent's Hanna Mine and he named as among them Eddie Campbell, Don Ander- son, and Rich Anderson. Campbell testified that in early May when he and another individual, Stillson, applied for employ- ment as welders with Respondent, they flunked the welding test administered by Dellinger, after which Dellinger in- quired if they would be interested in working as laborers or helpers. When they expressed interest in -this alternative, Campbell testified that Dellinger went into the trailer-office and returned a moment later, telling them to start the follow- ing day. Barnett testified that he had been in the office and that Dellinger had asked for authority to hire the two men, which Barnett granted. Also called as a witness was Don Anderson, who testified that in April when he and his father approached Beach about employment, they were directed to Mellott who, upon ascertaining that Don Anderson had had welding experience, directed him to Dellinger for a welding test which Anderson did not pass. When he testified, Ander- 937 son was uncertain as to whether Mellott was still present during the conversation after the test when he and his father were offered jobs as laborers. Mellott testified that, when he learned that Don Anderson had not passed the welding test, he decided to hire the Andersons as laborers. Although called as a rebuttal witness, Dellinger did not dispute Barnett's account of how Campbell and Stillson came to be hired nor did he controvert Mellott's testimony regarding how the Andersons came to be hired as laborers. Dellinger testified that he had the sole authority to give welding tests to applicants to ascertain if they were qualified to be welders and that administering these tests had been his job before his conversation with Barnett following Caudill's departure. In describing Dellinger's duties, Barnett testified that Dellinger "had the authority to test welders. And upon his authority or approval, I would act upon hiring people." However, testified Barnett, either he or Mellott made the actual decision as to whether or not an applicant would be hired and both of them testified that there had been occasions when Dellinger had selected men to be hired and his selection had been reversed by either Barnett or Mellott. However, neither Barnett nor Mellott specified the names of such in- dividuals, and Dellinger flatly denied that he had ever been reversed in his decision to hire a man. Dellinger's testimony that Respondent had a policy of re- quiring employees to obtain approval by a foreman or super- intendent for time off was uncontradicted and it was un- denied that employees had come to Dellinger to report that they would be taking time off. Dellinger cited two specific examples of instances where he had granted 4-day leaves to employees, one of which occurred just before he quit in July. D. Absence of Vacancies Respondent contends that on June 26 there was no vacancy available for Briggs. To support this contention, Respondent produced its personnel record book which showed, Barnett testified, that no helpers had been hired since prior to June 25 and that the next general laborer was not hired until July 27. However, other than Briggs, who was to be classified as a helper, there is no evidence that there were applicants for positions as helpers after June 25. At the time of the hearing, Respondent was still in the construction phase of its operations and does not expect to become operational until the beginning of 1975. Apparently, this is a difficult phase of operations, for Barnett testified that when he first arrived on February 1 he was very busy organiz- ing the mine. Moreover, the mine is in a location where it is not easy to obtain employees, for Barnett testified that it was hard to get men to work in temperatures which drop to 40 degrees below zero, which is the situation in Hanna. Thus, testified Barnett, Respondent had to be flexible as to whom it hired during the winter. Indeed, it does appear that even during the spring there was a problem with staffing, since examination of the two pages of personnel record book which are in evidence discloses the following: of 11 individuals shown to have been hired in March, 6 are no longer employed by Respondent and of these 6 persons, 5 were no longer in Respondent's employment by the time of Briggs' appearance at the mine on June 26. Of 22 individuals shown to have been hired in April, 7 are no longer employed by Respondent, and 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of those 7, 3 were no longer employed by June 26. Of 17 individuals who commenced employment in May, 13 are no longer employed by Respondent and of those 13 individuals, 6 had ceased employment with Respondent prior to the time that Briggs appeared at the Hanna mine. Of the 10 individu- als hired in June, 7 are no longer employed by Respondent, although none had ceased work for Respondent prior to June 26. Dellinger testified, in effect, that when a qualified applicant appeared a vacancy was created for him and he was hired if he could be used any place. E. Respondent's History of Labor Relations It is undisputed that since June 1973 Progressive has been the certified bargaining representative of Respondent's em- ployees and, at the time of Briggs' appearance at the Hanna mine, Progressive and Respondent were parties to a collec- tive-bargaining agreement effective from June 14, 1973, to October 31, with provision for yearly renewal absent written notice by either party. Respondent's relations with Progres- sive have been marred neither by strikes nor unfair labor practices. It is, moreover, undisputed that Respondent has hired many persons represented by the Union to work at its mine and, further, that Respondent has employed former officers of the Union. IV ANALYSIS A. Introduction In its brief, Respondent argues that I should not credit Briggs or Dellinger. While it is true that these two individuals are second cousins and, to that extent, had an interest in obtaining employment for Briggs with Respondent, this rela- tionship was not so close, in either blood or fact, as to war- rant, of itself, an inference that they would commit perjury or that Dellinger would exceed his authority in putting Briggs to work on the morning of June 26. In this regard, it should be noted that when he telephoned Dellinger on June 25 Briggs did not seek a special favor of Dellinger-he merely asked if Respondent had openings or was hiring.12 Moreover, while Respondent argues in its brief that Dellin- ger stated that on the morning of June 26 Barnett "came down off the dragline," and thus could not have been in the office as Briggs had testified, examination of the portion of the transcript to which Respondent refers discloses that Del- linger testified only that he (Dellinger) was "next to one of the feet on the dragline." Thus, Briggs' testimony that Bar- nett observed him in the office is not controverted by Dellin- ger's testimony 11 There was a variance between Briggs' testimony as to what he said to Dellinger during the telephone conversation (were there openings or was Respondent hiring?) and his pretrial affidavit ("I asked him if he could help me secure employment"), but I do not regard this as a significant variance Further, when he testified, Briggs was attempting to recite, word for word, his conversation with Dellinger, whereas the affidavit appears to be no more than a summation of the gist of the conversation It was evident that Briggs did not appreciate any difference between the words "secure employment" and those which he had testified to using when he spoke with Dellinger and, based on my observation of him, I find it unlikely that he normally used the phrase "secure employment," which appears to be the Board agent's charac- terization of Briggs' remarks during the conversation. It did appear to me at the hearing that Briggs might have erred in estimating the length of time between Barnett's de- parture from the office and his own departure to have been 55 seconds, in light of Dellinger's testimony that he was-- sitting 50-60 yards from the office. Barnett came and ques- tioned him as to whether he had hired Briggs, and then returned in the direction of the trailer. However, the estimate was given in response to a question as- to the length of time between Barnett's and his own departure from the office, and it is undisputed that Barnett encountered Briggs after the latter had left the office and was en route to his truck. Thus, it is evident that the 55-second estimate only takes into ac- count part of the time between Barnett's departure from the trailer and his subsequent encounter with Briggs--the esti- mate, in other words, is not inconsistent with Barnett's in- tervening remarks to Dellinger. Respondent also points out that Briggs did not file a griev- ance over the nonpayment of the wages for the 2 hours that he worked on the morning of June 26. However, Briggs did complain to Dellinger about not having been paid for the 2 hours of work. Progressive was not his representative and the Union did file an unfair labor practice charge on his behalf. In these circumstances, I find that the fact that Briggs did not also file a grievance to recover 2 hours' pay is not sufficient to warrant a conclusion that he was lying about not working for 2 hours on June 26. Based on my observation of the two individuals, I believe that both Dellinger and Briggs were honestly testifying in response to the questions asked them. In many respects, their testimonies were corroborated by objective factors, with the most obvious such factor being Barnett's concession that he probably had told Dellinger, "We don't hire Union guys here." Accordingly, I credit Bnggs and Dellinger. B. Whether John L. Dellinger is a Supervisor Within the Meaning of Section 2(11) ofthe Act and an Agent of Respondent Within the Meaning of Section 2(2) and (13) of the Act Contrary to the contention of the General Counsel, I do not believe that the evidence is sufficient to- establish that Dellinger was a supervisor within the meaning of Section 2(11) of the Act in June. While Dellinger "lines out" the men each morning, there is no showing that the tasks performed by these individuals are nonroutine in nature or that Dellinger is required to exercise any degree of direction in making their assignments. In short, the evidence will not support a conclusion that Dellinger exercised independent judgment in "lining out" the employees. See Commercial Fleet Wash, Inc., 190 NLRB 326- (1971); Highland Telephone Cooperative, Inc., 192 NLRB 1057 (1971). A similar observation is applicable regarding the fact that employees reported to Dellinger when they intended to take time off. So far as the record discloses, Dellinger had no authority to deny such requests nor is there evidence that he had ever done so. Rather, it appears that he was merely one of the individuals to whom employees could go to provide notification of their intent to take time off-in essence, a conduit for the employees to provide information to Respon- MEDICINE BOW COAL COMPANY dent. The record does not support the conclusion that he exercised independent judgment in this area. Although Barnett notified Dellinger that he had authority to hire employees, this occurred when Barnett learned that Caudill had quit and Barnett's statement was made in the context of authorizing Dellinger to handle operations while Barnett tried to get a superintendent to replace Caudill. Subsequently, Barnett notified Dellinger that a superinten- dent had been retained and Mellott commenced work on April 2. Thus, the condition upon which Dellinger's authority had been predicated-a vacancy in the position of superintendent-having lasped, so too did the authority which accompanied it. Dellinger was a member of Progressive. This, of course, does not preclude a finding that he is a supervisor within the meaning of Section 2(11) of the Act. N.L.R.B. v. Montgomery Ward & Co., 242 F.2d 497 (C.A. 2, 1957); Liberty Coach Company, Inc., 128 NLRB 160, 164 (1960). However, it is of some significance that Dellinger was paid at the wage rate for lead welders set forth in Respondent's agreement with Progressive and that it was not common for supervisors to be members of labor organizations in the coal mining industry in 'Wyoming. Although Dellinger administered welding tests to appli- cants, he had done this even before Caudill's resignation and, apparently, the General Counsel does not contend that he was a supervisor prior to his conversation with Barnett in March. Dellinger was experienced in welding and neither Barnett nor Mellott was skilled in this area. Thus, it only made sense for them to take advantage of Dellinger's welding skill by permitting him to screen the proficiency of applicants for positions as welders. However, the Board has held that, authority which is derived from working skill and experience is not sufficient to confer supervisory status. Pervel Corpora- tion, 119 NLRB 497, 499 (1957); Southern Bleachery and Print Works, Inc., 115 NLRB 787, 791-792 (1956). In these circumstances, I find that any supervisory au- thority which Dellinger exercised while he was employed by Respondent was confined to the interim between the resigna- tion of Caudill and the commencement of work by Mellott. In all other respects, he exercised only that authority derived from his skill and experience. Accordingly, I find that the General Counsel has failed to establish that Dellinger was a supervisor within the meaning of Section 2(11) of the Act. This, of course, poses the question of whether, contrary to my finding in section IV, A, above, I feel that Dellinger was lying when he testified that he was supervisor. I do not. The fact that Dellinger assigned work to employees and, as Mel- lott described it, "kind of pushes the men on" could lead Dellinger to believe logically that he was a supervisor. This belief could only be reinforced by his role in the hiring pro- cess, since he was the individual who made the decisions as to whether welder-applicants were or were not qualified. I credit Dellinger that he was never told that he did not have the o uthority to hire employees. Rather, what appears to have happened was that Respondent's need for employees, shown by its admittedly less than ideal location and by the exigencies of the construction phase of its operations, as well as by the significant degree of turnover which it experienced, led it to take whatever employees it could get so long as they were qualified, as illustrated by the fact that notwithstanding the 939 fact that they failed the welding tests, Stillson, Campbell, and Don Anderson were still offered employment by Respondent in other classifications. In fact, there is no evidence that any applicant, other than Briggs, was ever refused employment or was fired by Respondent. Thus, passage of the welding test was tantamount to acceptance of an application for employ- ment and, consequently, it would be logical for Dellinger to conclude that he was a supervisor and, as a practical matter, did the hiring for Respondent. While Barnett testified that there had been occasions when Dellinger's selections of em- ployees for hire had been reversed, he did not cite any specific examples and I do not, in any event, credit this assertion. The determination of whether or not an individual is a supervisor can be difficult and requires an analysis of all of the circumstances of that individual's employment. That Del- linger, a layman, viewed his own status incorrectly can hardly be held-to be a factor showing that he should not be credited. C. Whether, on or about June 25, Respondent, Through Mine Superintendent Paul W Barnett, Told an Employee To Leave Respondent's Premises Because Respondent Did Not Hire Union Men and, if so, Whether Respondent Thereby Violated Section 8(a)(1) of the Act As stated above, I credit Briggs, and accordingly I find that on, June 26 he was told by Barnett, "We dont hire Union guys here." While Respondent contends that such an assertion by Barnett would not make sense in light ofRespondent's amica- ble relations with Progressive and its record of hiring mem- beis and former officers of the Union, -at least one factor belies such an assertion. This factor was the tenor of Barnett's testimony at two points. The first occurred when he testified regarding Briggs' discharge by Rosebud. Rather than merely state that Briggs had been discharged for leaving his shift without authoriza- tion, Barnett added "to attend a Union meeting put on by Arnold Miller at the Miner cafe, handing out drinks and food to organize Rosebud Coal Company." The second occurred when Barnett testified regarding the processing of Briggs' unfair labor practice charge against Rosebud and stated: "At a meeting, I was well-informed about Mr. Briggs' activities. I have been all the way through on his National Labor Rela- tions case." When he made these statements, his tone of voice was one of disdain and contempt, clearly portraying the scorn which he harbored against Briggs for his activities on behalf of the Union and for filing the charge against Rosebud. That Barnett would feel this way is only natural in light of the fact that Respondent was satisfied with its relationship with Progressive-a relationship unsullied by either strikes or un- fair labor practices. Conversely, Barnett was well aware that the Union had organized Rosebud's employees, had replaced the Operating Engineers as the representative of Rosebud's employees, and had conducted a strike against Rosebud, dur- ing which there had been picketing in which Barnett had observed Briggs participating. Furthermore, this campaign had generated at least one unfair labor practice charge against Rosebud-that filed over the discharge of Briggs. It is not, therefore, surprising that on June 26 (127 days before the terminal date of Respondent's collective-bargaining agree- ment with Progressive and, accordingly, 37 days before a representation petition could be filed under the Board's con- 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tract-bar doctrine by a rival labor organization) Barnett would be less than overjoyed at the prospect of employing an individual who had participated in picketing Rosebud and who had been the subject of an unfair labor practice -charge filed against Rosebud. Accordingly, I reject any argument that the amicable relationship between Respondent and Progressive, as well as Respondent's record of hiring past officers and members of the Union, refute Briggs' assertion as to what Barnett said to him on June 26. Rather , I find that Barnett did say, "We don't hire Union guys here." In doing so, I find that Respondent violated Section 8(a)(1) of the Act. Furthermore, the General Counsel alleged that Dellinger was a supervisor and, accordingly, did not allege that Bar- nett's statement to Dellinger, "I can't have a Union organizer like him around here," was a violation of the Act. However, I have found that the evidence does not support the General Counsel's contention that Dellinger was a supervisor and Barnett agreed that he had probably made this statement to Dellinger. I find, therefore, that this issue has been fully litigated, that Barnett did, in fact, make the statement to Dellinger and that Respondent, thereby, violated Section 8(a)(1) of the Act by threatening not to employ employees who would organize on behalf of the Union. D. Whether, on or About June 25, Respondent Discharged Lonnie J. Briggs Because of Briggs' Activities on Behalf of the Union and if so, Whether Respondent Thereby Violated Section 8(a)(3) and (1) of the Act I have already found that on June 26 Barnett told Dellin- ger, "I can't have a Union organizer like him around here" and told Briggs, "We don't hire Union guys here." Moreover, I find that underlying these statements Barnett was con- cerned that the Union would attempt to organize Respon- dent's employees, replace Progressive as their representative as it had replaced Operating Engineers at Rosebud, and visit upon Respondent strikes and unfair labor practice charges just as had happened at Rosebud and as had not happened at Respondent while Progressive had been the representative. When, accordingly, Barnett discovered that Briggs was com- mencing employment with Respondent, he immediately acted to prevent further employment of this individual who had been both the subject of an unfair labor practice charge against Rosebud and an identifiable participant in the Union's picketing of Rosebud. I do not credit Barnett's assertions that his conduct of June 26 was motivated by Briggs' past work record . Barnett's de- scription of Briggs as a "dangerous, sloppy and inefficient worker" was unsupported by any specific testimony to sup- port such a conclusion. Moreover, Barnett had only super- vised Briggs for 90 days at most and, then, almost 3 years prior to Briggs' appearance at Respondent's mine on June 26. In the interim, Briggs had continued to be employed at Rosebud for almost 2 years after Barnett had supervised him and there is no evidence that any Rosebud official had shared Barnett's asserted opinion of Briggs' work. In fact, Briggs' termination at Rosebud had not been occasioned by a lack of quality of his work, but rather by an act of, in effect, disobedience. While Barnett attempted to justify his decision by relying, as well, on this discharge, I am convinced that the manner in which he testified, as found above, disclosed that his true concern was not with the fact that Briggs had been dis- charged for leaving his work station, but rather with the fact that Briggs had done so' "tooattend .a Union meeting put on by Arnold Miller." Similarly, I am not persuaded that Bar- nett was motivated by Briggs' participation in assertedly un- lawful picketing of Rosebud in 1973. In the first place, there has been, so far as the record discloses , no finding by the Board or by an Administrative Law Judge that the Union's picketing of Rosebud was a violation of the Act. In fact, there is no evidence that a charge was even filed on the matter. Moreover, notwithstanding the evidence concerning this picketing, there are a number of circumstances which might render that picketing, as described by Barnett, lawful , Le., the ally doctrine, a joint employer relationship. Finally, I am convinced from observing Barnett that his concern was not with the legality of the picketing but rather with the fact that Briggs had picketed a mine on behalf of the Union and that the same might occur at Respondent 's mine. Similarly, I find that the July 4, 1973, telephone solicitation by Briggs was raised by Barnett as nothing more than a pretext to cloak his unlawful motive. At the hearing and in its brief, Respondent argued that there were no vacancies for helpers on June 26. However, this was not advanced to either Briggs or to Dellinger on June 26 as a reason for Barnett's action, and, accordingly, appears to be no more than an afterthought designed to cloak Barnett's true reason. Moreover, the evidence does not support Re- spondent's contention that there were no vacancies on June 26. To say that no helpers were hired after June 26 is not helpful, for this does not establish that there were applicants for such a position. Moreover, as found above, the inhospita- ble location of Respondent's mine and the significant degree of turnover which it experienced among employees clearly support Dellinger's testimony that a vacancy is created for a qualified applicant. Accordingly, I find that Respondent has failed to establish that there were no vacancies for helpers on June 26 and, further find that this defense is, in any event, merely pretextual. Therefore, I find that on June 26 Briggs had commenced working for Respondent, even though he had not completed all of the formalities of the application process, " that he would have continued to work for Respondent but for his encounter with Barnett , and that Barnett's motive in ter- minating Briggs was because of the latter's activities on behalf of the Union at Rosebud and because of his fear that the Union would attempt to organize Respondent's employees, thereby posing a threat to its amicable relations with Progres- sive. 13 Beach's conduct on June 26 clearly refutes any assertion by Respondent that Briggs had not been hired on that date, for although Beach knew that Briggs was working, he was unconcerned about the fact that Briggs had not filled out the forms and, indeed , he ultimately gave the forms to Briggs with the instruction only to have them completed by the following morning. Beach's conduct in this regard reinforces my conclusion that Dellinger did not act improperly in permitting Beach to commence work on June 26, since had specific approval of Barnett or Mellott been required , it is unlikely that Beach would have been so cavalier in his attitude toward obtaining the completed forms MEDICINE BOW COAL COMPANY 941 V THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial, rela- tionship to trade, traffic, and commerce among the several States and tend to lead, and have led to labor disputes burden- ing and obstructing commerce and the free flow of commerce. VI THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I-shall recommend that it be ordered to cease and desist therefrom and that it take certain affirmative ac- tion designed to effectuate the policies of the Act. With re- gard to the latter, Respondent will be required to offer Lonnie J. Briggs reinstatement to his former position or, if that post- tion no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privi- leges, dismissing, if necessary, anyone who may have been hired or retained to perform the work which he had been performing prior to the time that he was discharged on June 26. Additionally, Respondent will be required to make Lon- nie J. Briggs whole for any loss of earnings he may have suffered by reason of his unlawful discharge with the backpay to be computed on a quarterly basis, making deductions for interim earnings, and with interest to be paid at the rate of 6 percent per annum. F. W. Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962), enforcement denied on different grounds 322 F.2d 913 (C.A. 9, 1963). CONCLUSIONS OF LAw I Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging and thereafter refusing to offer reinstate- ment to Lonnie J. Briggs because of his activities on behalf of the Union and because of Respondent's fear that he would attempt to organize Respondent's employees, Respondent vi- olated Section 8(a)(3) and (1) of the Act. 4. By threatenting not to employ employees who would organize on behalf of the Union and by telling an employee that Respondent did not hire union supporters. Respondent has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, and, accordingly, has violated Section 8(a)(l) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 14 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become Upon the foregoing findings of fact and conclusions of law, and upon the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 14 Respondent, Medicine Bow Coal Company, Hanna, Wyoming, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employee because he or she is a supporter of the Union or any other labor organization or because he or she has engaged in activities on behalf of the Union or on behalf of any other labor organization. (b) Threatening not to employ employees who would or- ganize on behalf of the Union or any other labor organization and telling employees that Respondent did not hire support- ers of the Union or of any other labor organization. (c) In any manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the purposes of the Act: (a) Offer Lonnie J. Briggs immediate and full reinstatement to his former position, dismissing, if necessary, anyone who may have been hired or retained to perform the work which he had been performing prior to his discharge on June 26, or, if his former position does not exist, to a substantially equiv- alent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered as the result of the discrimination, in the manner set forth above in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents all payroll and other records necessary to compute the backpay and reinstatement rights as set forth in "The Remedy" section of this Decision. (c) Post at its Hanna, Wyoming, mine copies of the at- tached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 27, after being duly signed by Respondent's authorized represen- tative, shall be posted by Respondent immediately upon re- ceipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 27, in writing, within 20 days from the date of this Order, what steps Re- spondent has taken to comply herewith. its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 15 In the event the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."