Cedar Coal Co.

CEDAR COAL CO. Cedar Coal Company and Roger L. Hammack. Case 9-CA-14015 24 October 1983 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 8 February 1983 Administrative Law Judge Hutton S. Brandon issued the attached supplemen- tal decision. The Respondent and the General Counsel each filed exceptions and a supporting brief, and the Respondent filed a brief in response to the General Counsel's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the supplemental deci- sion and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions' and to adopt the recom- mended Order. 2 ORDER The recommended Order of the judge is adopted and the complaint dismissed. I We agree with the judge's assessment of the effect of the remand order of the United States Court of Appeals for the Fourth Circuit in this proceeding; i.e., that the General Counsel had not made out a prima facie case and, because the General Counsel declined to produce further evi- dence at a "new trial," and the record therefore remains the same, dismis- sal of the complaint is mandated under the terms of the court's remand order. In such circumstances, however, we find it unnecessary to pass on the judge's alternative findings on the ments. 2 Chairman Dotson notes that not only did the Fourth Circuit remand this case for a "new trial," 678 F.2d 1197, 1199 (4th Cir. 1982), but also the Board, on 24 September 1982, issued an Order remanding the pro- ceeding to the judge "for the purpose of reopening the hearing." Never- theless, as stated above, counsel for the General Counsel took the posi- tion that no further evidence would be presented. In the Chairman's view, counsel for the General Counsel is bound by the decisions of the Fourth Circuit and the Board, even if she may personally disagree with them. Further, counsel for the General Counsel should have moved for dismissal or withdrawal of the complaint since she did not intend to comply with the court decree or the Board Order instead of wasting the time of the judge and this Board. SUPPLEMENTAL DECISION HUTTON S. BRANDON, Administrative Law Judge: My initial decision in this case issued on March 26, 1980, finding that Cedar Coal Company, herein called Re- spondent, violated Section 8(a)(3) and (1) of the Act in refusing to employ Roger L. Hammack, herein referred to as Hammack, on and after February 7, 1979, because of his publicized activities in support of United Mine Workers of America, herein called the Union. Excep- tions to the decision were taken by Respondent, and the Board on August 26, 1980, affirmed the decision with a modification of the Order.' Respondent thereafter filed a petition with the United States Court of Appeals for the Fourth Circuit for review of the Board's decision, and the Board cross-petitioned the court for enforcement of its Order in the case. On May 19, 1982, the court issued a decision2 in which it denied enforcement of the Board's Order and remanded the case to the Board: · . for further remand to the Administrative Law Judge for a new trial to ascertain (I) whether the General Counsel has demonstrated a prima facie violation of the Act, and, if so (2) whether meas- ured under the appropriate standard, the refusal to hire was a violation of the Act. With respect to the first issue, the court had con- cluded that in my initial decision I had only "as- sumed" that the union activity which was found to be the basis for Respondent's refusal to hire Ham- mack was protected under the Act. The second specified issue was related to the court's direction to the Board to consider Respondent's motivation in the case in light of the standard established by the Board in Wright Line, Inc., 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (Ist Cir. 1981).3 Consistent with the court's remand, the Board on Sep- tember 24, 1982, issued its "Order Remanding Proceed- ing to the Administrative Law Judge for Further Hearing,"in which it remanded the case to me "for the purpose of reopening the hearing to ascertain under the guidelines laid down by the court" the issues specified by the court. Accordingly, pursuant to the Board's Order, on October 21, 1982, I issued an "Order Reopening and Scheduling Hearing on Remand," setting the hearing for November 23, 1982, in Charleston, West Virginia. There- after, the General Counsel, on November 12, 1982, filed a motion to cancel the hearing, close the record, and set a time for filing posthearing briefs, along with a memo- randum in support of the motion. In her memorandum in support of the motion, the General Counsel contended that the record in the case as it stood was "complete," that based on that record a prima facie case had been es- tablished, and that further hearing was neither required nor mandated by the court or Board Order. Respondent, by document dated November 15, 1982, filed objections to the General Counsel's motion contending, inter alia, that the court's remand contemplated a trial de novo in the case.4 In view of Respondent's opposition to the ' 251 NLRB 554 (1980). 2 Cedar Cooal Ca r. NLRB, 678 F.2d 1197 (1982). 3 The court recognized that the Board's decision in Wright Line issued on the day following its decision in the case sub judice, but concluded that remand for consideration of the application of Wrighr Line was man- dated by NLRB v. Food Store Employees Union, 417 U.S. 1, 10 fn. 10 (1974), wherein the Supreme Court stated that: A court reviewing an agency decision following an intervening change of policy by the agency should remand to permit the agency to decide in the first instance whether giving the change retrospec- tive effect will best effectuate the policies underlying the agency's governing act. 4 Respondent's "objections" contained a certificate of service showing service on the General Counsel and other parties by "regular" mail. 268 NLRB No. 9 121 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel's motion and because the Board's Order directed "further hearing," I issued an order on Novem- ber 19, 1982, denying the General Counsel's motion. On November 22, 1982, the General Counsel arranged a telephonic conference with Respondent's counsel and me5 in which she complained that she had not been served with a copy of Respondent's objections to her prior motion, and in which she again urged cancellation of the hearing and the setting of a time for the filing of briefs containing arguments in the case. The General Counsel stated that she had no intention of presenting any additional evidence at the scheduled hearing. Re- spondent's counsel then asserted that, if the General Counsel did not intend to produce evidence at the hear- ing, he would not produce evidence. Accordingly, it ap- pearing that the parties were in agreement that no fur- ther evidence would be produced and that nothing would be gained through the holding of the hearing as scheduled, I issued an order dated November 22, 1982, canceling the scheduled hearing and setting a date for the filing of briefs containing arguments based on the ex- isting record to be considered in light of the court's remand.6 I. SUMMARY OF CREDITED FACTS A brief summary of the facts found in the initial deci- sion is here necessary. Hammack had been involved in work in the coal mining industry for many years prior to 1978. He had also been an active member of the United Mine Workers, herein called the Union, and various of its locals for an equivalent period of time. In 1975, he had pled guilty to bombing a school building during a school book controversy and had been sentenced to prison. In 1976, in connection with a work release pro- gram, Hammack was employed by Respondent, an em- ployer in the coal mining industry, and worked for a period of about 6 weeks after which he quit to take a better paying job in the same industry. Hammack has always been an outspoken supporter of the Union and its goals. Beginning in December 1977, and continuing through March 1978, Hammack partici- pated in a strike by coal miners represented by the Union in furtherance of the Union's contractual demands in a new collective-bargaining agreement sought with the Bi- tuminous Coal Operators Association (BCOA) of which Respondent was a member. At that particular time, Ham- mack was employed by an employer engaged in coal mine construction work (as opposed to mining itself) and party to a collective-bargaining agreement negotiated with the Union by the Association of Bituminous Con- tractors (ABC). Hammack testified without contradiction that he perceived support of the Union-BCOA strike to be in his own self-interest since benefits achieved through that strike would, in effect, enhance the Union's bargaining demands on the ABC contract which was ' The General Counsel claimed that the Charging Party's counsel was unavailable for the conference call, but counsel related that the Charging Party's position was nevertheless consistent with hers. 6 Since this disposition of the hearing is consistent with the General Counsel's motive of November 12, 1982, no prejudice to the General Counsel can attach to any failure of service on her of Respondent's ob- jections to her November 12 motion. being negotiated at the same time. There was no conten- tion that Hammack's general support of the Union- BCOA strike breached a no-strike agreement between the Union and ABC or was otherwise unprotected in itself. Hammack received substantial publicity for his in- volvement in the 1977-1978 strike, and newspaper ac- counts of his activities and observations during the period were received in evidence. Two such accounts re- ported in a Charleston, West Virginia, paper are dated December 21 and 28, 1982, and referred to picketing of striking union miners at nonunion coal companies in Kentucky. The first account quotes Hammack as saying he intended to participate in such picketing, the second account contains remarks of Hammack on his return from Kentucky to the effect that he was disappointed in that the trip had been ineffective, and that the striking miners had been followed by state police. Hammack ad- mitted in his testimony herein that he had picketed at the nonunion mines for approximately 2 or 3 days. There were at least four other local newspaper ac- counts7 of the Union-BCOA strike referring to Ham- mack in either his observation on the likelihood of the Union and its membership achieving an agreement, or his involvement in the Union's relief committee which sought to obtain and distribute food for the strikers. Two of the articles contained pictures of Hammack. In July 1978, after the strike had terminated in March, Hammack applied for employment with Respondent. Shortly after his application, Hammack was told by Re- spondent's transportation superintendent, Allen Tackett, that it would be difficult for Hammack to work for Re- spondent because of all the "strikes, all the news media," that Hammack had talked to. Hammack was not, in fact, employed by Respondent, and he reapplied in February 1979. Thereafter, he received assurances from representa- tives of Respondent, specifically Personnel Supervisor Terry Whitt and Mine Superintendent Larry Hughes, that they would try to help him. However, Hughes, in talking to Hammack, referred to Hammack's involve- ment in the 1977-1978 strike and remarked that Ham- mack had been very vocal and people did not like that. Hughes added that Hammack would have a better chance of working for Respondent if he completely stayed out of the paper or any type of news. Personnel Supervisor Terry Whitt had also told an- other job applicant, William Carter, in September 1978, that Hammack would not be employed, "because he was a troublemaker for the Union." Subsequently, in mid- February 1979, Whitt also told Respondent's former em- ployee Robert Bess that Hammack had been on televi- sion, had been mixed up in the strikes, had had trouble, was in that "bombing," and was jailed, and Respondent would not give him a job. Finally, there was also cred- ited testimony of employee Hayes Holstein to the effect that Respondent's personnel manager, John Goodard, told him that Hammack was a "previous troublemaker," and Goodard was "afraid" of Hammack making trouble. 7 These accounts are dated December 7, 1977. February 23, 1978, Feb- ruary 26, 1978, and March 21, 1978. G.C. Exhs. 4(e), 5(a), 5(b), and 5(c), respectively. 122 CEDAR COAL CO. Hammack was never hired, and the charge alleging he was denied employment because of his union activities was filed. Respondent's defense to the charge and the complaint thereon was based primarily on the testimony of Goodard who assertedly made the decision not to hire Hammack. Goodard testified, in effect, that Hammack was not hired because he had quit after a short period of employment in 1976. Moreover, Goodard testified that he was aware that Hammack had been involved in the school bombing and was concerned that, if employed, Hammack would present a risk because of being put into a position where explosives might be available to him. The General Counsel argued that the reasons asserted by Respondent were pretextual and designed to cloak the real reason-Hammack's staunch union advocacy and ac- tivity. In my initial decision, I observed that the burden of es- tablishing the statutorily prohibited reason was on the General Counsel, but I nevertheless concluded that the General Counsel had sustained that burden. I noted that Hammack's publicity following his period of employ- ment with Respondent was related to his involvement in this 1977-1978 contract dispute and concluded that such "publicity was inseparable from his strike involvement and was a part of his activity protected under the Act." While footnoting Respondent's argument that Ham- mack's picketing of the nonunion mines in the 1977-1978 strike was not protected, I concluded that the unprotect- ed nature of such picketing was not affirmatively estab- lished and pointed out that in any event, Respondent had not claimed that it had relied upon any such protected activity in refusing to hire Hammack. I proceeded to conclude that Respondent's asserted reasons for failing to hire Hammack were pretextual, because (I) Respondent admittedly had no policy against hiring prior felons and in fact, based on record evidence, Respondent had em- ployed others who had committed offenses identical to Hammack; (2) Respondent had hired Hammack once before subsequent to his offense and after he had been re- leased from prison; (3) Respondent admittedly had no policy against not rehiring people who had previously quit; (4) Respondent had no evidence of any deficiency with respect to Hammack's work during his period of employment; (5) Respondent's asserted reasons for not hiring Hammack were never communicated to him; and (6) the statements of Respondent's representatives to Hammack and others regarding Hammack's perchant for publicity, including that growing out of the 1977-1978 strike, demonstrated the actual basis for Respondent's re- fusal to hire Hammack. Accordingly, the reasons assert- ed by Respondent were rejected as pretextual, and a con- clusion was made that Hammack was not hired, at least in part, because of his publicized involvement in the 1977-1978 strike. II. COURT'S DECISION The court in its decision remanding the case stated that, "it is apparent from the Administrative Law Judge's opinion that the General Counsel did not actually dem- onstrate a prima facie violation of the Act." It went on to state that, "while the General Counsel provided satisfac- tory proof that Hammack was involved in union activity during the 1977-78 strike, there was no proof that this conduct was protected under §7 of the Act, 29 U.S.C. Sec. 157." The court construed the footnoted reference in the initial decision regarding Respondent's failure to clearly establish that the picketing of nonunion mines by Hammack was an unprotected activity as improperly shifting "the burden of demonstrating the unprotected nature of activities to the employer when, in fact, the burden is on the General Counsel to establish the pro- tected nature of the activities." Accordingly, and also in order to allow the Board to apply the analysis an- nounced by the Board in Wright Line, supra, the court deemed the remand was necessary. III. THE ARGUMENTS OF THE PARTIES ON REMAND The General Counsel in her brief recited the union ac- tivity of Hammack contained in the record which was claimed to be protected under the Act. Such activity in- cluded service on the grievance and safety committees for the Union in times past, and serving as union local vice president as well as a brief, but aborted, campaign for vice president of the Union's District 17. More spe- cifically, in relation to the 1977-1978 strike, Hammack had participated in the work of the Union's strike relief fund committee and had worked to obtain and dispense funds and supplies for needy strikers. With respect to Re- spondent's contention that Hammack had engaged in un- protected activity by virtue of his picketing of nonunion mines during the strike, the General Counsel contends that such picketing lasted only 2 or 3 days and, even if unprotected, was insufficient to justify refusal of employ- ment to him. Moreover, Respondent did not contend that it was aware of such unprotected activity at the time it refused to hire Hammack, or that it refused to hire Hammack because of it. Proceeding from the claim that the record does estab- lish protected activities on Hammack's part, the General Counsel argues that, based on the credibility resolutions reached in the initial decision, Respondent was charged with knowledge of that activity. That knowledge cou- pled with Hammack's qualifications and experience in the industry, the statements of Respondent's representa- tives tying his strike publicity to the failure to hire him, constitute all the elements of a prima facie violation as the first step in the application of Wright Line. The Gen- eral Counsel completed the application of Wright Line in her argument by asserting that in view of the previously found falsity of Respondent's claimed reasons for not hiring Hammack, i.e., his prior quitting of Respondent and his prior felony conviction, Respondent failed to rebut the General Counsel's prima face case. Respondent's argument in its brief can be related more succinctly. Respondent first asserts that the court in its decision remanding the case found as a matter of fact and law that the General Counsel had failed to establish a prima facie violation of the Act because he had not shown that Hammack's union activity was, in fact, pro- tected under the Act. Respondent argues that that deci- sion establishes the law of the case as it stood at the point of remand citing EEOC v. International Longshore- men's Assn., 623 F.2d 1054 (5th Cir. 1980), and Wailston v. 123 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The School Board of the City of Suffolk, 566 F.2d 1201 (4th Cir. 1980). Accordingly, since the General Counsel sought to produce no additional evidence on remand, no prima facie case has been established and the court's de- cision requires that the case be dismissed. Respondent extends this argument to the second issue specified in the remand regarding the application of Wright Line. Thus, under Wright Line the General Coun- sel was first required to demonstrate a prima facie case, and after such demonstration, the burden is shifted to Respondent to rebut the prima facie case by coming for- ward with evidence to establish that Respondent would have taken the same actions it took with respect to the alleged discriminatee without regard to his involvement in union or other protected activity. Because the General Counsel here, under the court's decision, did not estab- lish a prima facie case, the first requirement of Wright Line was not satisfied, and the complaint should be dis- missed. Respondent points out that even under Board law existing prior to Wright Line such as in Neptune International Corp. v. NLRB, 551 F.2d 658 (4th Cir. 1977), the General Counsel was still required to establish a prima facie case of a violation. No prima face case having been established on remand, the application of either Wright Line or Neptune, the Respondent argues, requires that the complaint be dismisssed. IV. CONCLUSION The initial and critical issue presented is whether the court in its brief opinion remanding the case concluded that, based on the record under review, the General Counsel had failed to establish a prima facie violation of the Act. Support for the conclusion that it made no de- termination on the points is found in the remand itself rather than simply denial of enforcement of the Board's Order. Moreover, the court did not specifically state that the General Counsel had not establish a prima facie case. Rather, the court stated only that the administrative law judge had "assumed" that the union activity which was concluded to be the real basis for Respondent's refusal to hire Hammack was protected under the Act and added that it was "apparent from the ALJ's opinion that the General Counsel did not actually demonstrate a prima face violation of the Act." Thus, in this observation the court appears to be commenting on a perceived critical omission below rather than making a specific independ- ent conclusion of its own as to the existence of the prima facie violation. On the other hand, the court directed the Board to "further remand [the case] to the Administrative Law Judge for a new trial," on the specified issues. That lan- guage suggests a conclusion by the court that the Gener- al Counsel had not established a prima facie case on the existing record. Futhermore, the court prefaced its second basis for remand, i.e., to consider the application of Wright Line, only on the assumption or condition that the General Counsel "demonstrates" a prima facie case. That assumption clearly implies the inadequacy of the General Counsel's existing evidence and contemplates the production of further evidence. Considering the court's language and its decision as a whole, I am of the opinion that it determined that a prima face case had not been established by the General Counsel because of the absence of specific evidence that Hammack's union activity was protected. Moreover, and in any event, whatever ambiguity exists in the court's de- cision, it appears that the Board has interpreted the court's decision as finding that the General Counsel had not established a prima facie case. Thus, the Board in its remand order of September 24, 1982, stated: The court indicated that, in finding the violation, the Administrative Law Judge had aassumed that this activity was protected under the Act. But the court found that the General Counsel had not proven a prima facie violation of the Act because he had not shown that Hammack's union activity was, in fact, protected under Section 7 of the Act. [Em- phasis added.] The Board's interpretation of the court's decision is bind- ing on me. The court's decision is the law of the case, as argued by Respondent. Since the General Counsel de- clined to produce further evidence and the record re- mains unchanged with respect to the facts considered by the court, I am compelled to recommend dismissal of the complaint. Should my construction of the court's decision and the Board's remand order be in error, and in order to avoid the possibility of further remand for such error and any failure on my part to make specific findings on the evi- dence already received, I deem it not inappropriate to briefly treat the two issues specified by the court. First, with respect to Hammack's protected activity, it is abundantly clear that he participated in the 1977-1978 strike activity. That was an economic strike in support of bargaining demands. Participation by employees in an economic strike has traditionally been held to fall within the protection of the Act. Accordingly, Hammack's ac- tivities generally in support of that strike, including his publicized comments on the progress of negotiations and the likelihood of an agreement, as well as his efforts in support of the Union's relief committee, must be consid- ered as protected. To the extent my initial decision was unclear on the point or poorly articulated, I would spe- cifically conclude that Hammack's activity in support of the strike in the foregoing respects was clearly protected. A concern of the court was Hammack's involvement in picketing of nonunion mines which also received publici- ty. Assuming that such picketing was unprotected be- cause of secondary boycott implications, the uncontro- verted fact remains that such picketing was of short du- ration lasting only 2 or 3 days. Thus, considered in con- text with Hammack's other involvement in the strike, it constituted a small portion of his overall strike activity which lasted for almost 4 months. Still assuming the un- protected nature of the picketing of the nonunion mines, I would conclude that such picketing would be insuffi- cent to so taint all of Hammack's strike involvement as to warrant his complete removal from the protection of the Act. This is not to say that Respondent, claiming awareness of Hammack's alleged unlawful picketing on nonunion mines, could not have relied on such picketing as a legitimate basis for refusing to hire him. But the fact 124 CEDAR COAL CO. remains that Respondent did not claim such awareness8 and, hence, did not claim reliance on such picketing in refusing to hire Hammack.9 Accordingly, and because Hammack's involvement in picketing the nonunion mines was only a small portion of his publicized strike involvement, I would adhere to my original conclusion that Hammack had engaged in pro- tected activity under the Act. Further, I would specifi- cally find that to the extent Hammack's involvement in protected activity was a necessary element to the Gener- al Counsel's prima facie case, that element was estab- lished. Turning to the application of Wright Line, the Board has stated that an analysis under Wright Line is "essen- tially the same" as that employed in the pre-Wright Line cases involving issues of employer motivation in alleged discrimination cases. See, e.g., Thurston Motor Lines, 258 NLRB 385 (1981); Guerdon Industries, 255 NLRB 610 (1981). Moreover, the Board has specifically refused to find that the Wright Line analysis is inapplicable to pre- text cases. See C-E Cast Equipment, 260 NLRB 520 (1982). It has held, on the other hand, that "a finding of pretext necessarily means that the reasons advanced by the employer either did not exist or were not in fact relied upon thereby leaving intact the inference of wrongful motive established by the General Counsel." Limestone Apparel Corp., 255 NLRB 722 (1981). In the initial decision in the instant case, a conclusion was reached that Respondent's asserted basis for refusal to hire Hammack was pretextual and designed to cloak its unlawful reason. Application of Wright Line analysis to the facts of the case, I conclude, produces the same result. First, using the Wright Line terminology and anal- ysis, I would find the General Counsel established a prima facie case of an unlawful refusal to hire Hammack based on his involvement and publicized protected union activity during the 1977-1978 strike, knowledge of which was charged to Respondent, and statements to supervi- sors which indicated Respondent's refusal to hire Ham- mack was related to publicity regarding his union activi- ty. The finding of the existence of a prima facie violation ' The failure to assert such a claim can be understood in view of its discredited assertion that it was not aware of any of the newspaper pub- licity surrounding Hammack's involvement in the 1977-1978 strike. 9 The Board has held that an administrative law judge may not rely on defenses never asserted to justify dismissal of a complaint allegation. Inland Steel Co, 257 NLRB 65 (1981). shifts to Respondent the burden of demonstrating that it would have refused to hire Hammack without regard to his protected activity. I would conclude that Respondent failed in this regard since the reasons asserted by it are not founded in fact and could not in fact be relied upon. As already indicated herein, the first ground asserted by Respondent in refusing to hire Hammack, i.e., his prior quitting of Respondent, was not based on either an estab- lished practice or policy of not hiring former employees. Similarly, the second ground relied on, Hammack's prior conviction for the school bombing, cannot be considered valid because Respondent has once before hired Ham- mack after the conviction and Hammack's imprisonment. Furthermore, Respondent had hired other employees notwithstanding their conviction for identical or similar offenses. Accordingly, I would find no change from my original decision in this case is warranted by the applica- tion of Wright Line. CONCLUSIONS OF LAW 1. The General Counsel has not proven a prima facie violation of the Act inasmuch as she has not shown by additional evidence that Hammack's union activity was, in fact, protected under Section 7 of the Act. 2. Respondent, by refusing to employ Roger L. Ham- mack, did not engage in, and is not engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (I) of the Act. Upon the basis of the foregoing, the decision of the United States Court of Appeals for the Fourth Circuit remanding the case to the Board, and the Board's Order remanding the case to the administrative law judge, the conclusions of law reached in light of the court's deci- sion and the Board's Order, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended ORDER ' The complaint is dismissed in its entirety. 'o If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 125