South East Coal Co.

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