Jamar Coal Co.

JAMAR COAL CO Jamar Coal Company and John Cutright and Roger Hollandsworth and Baron Lee and District 31, United Mine Workers of America Cases 9- CA-23883-1, 9-CA-23883-2, 9-CA-23883-3, and 9-CA-23890 May 10, 1989 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On June 18, 1987, Administrative Law Judge Thomas A Ricci issued the attached decision The Respondent filed exceptions and a supporting brief On November 2, the Board remanded the proceed- ing to the judge for further consideration On De- cember 14, the judge issued the attached supple- mental decision reaffirming his initial decision The Respondent filed exceptions and a supporting brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision, the sup- plemental decision, and the record in light of the exceptions and supporting briefs, and has decided to affirm the judge's rulings, findings,' and conclu- sions and to adopt the recommended Order 2 The judge found that the Respondent's discharge of employees John Cutright, Roger Hollandsworth, and Baron Lee violated Section 8(a)(3) and (1) of the Act For the reasons set forth below, we agree with the judge The Respondent, Jamar Coal Company, mines coal under contract with and for the benefit of mine owners The Respondent operated two coal mines that are pertinent to this case Jamar No 1 for Holly Coal Company, and Jamar No 2 for N F Mining Incorporated (N F) The work at Jamar No 2 began about July 21, 1986, and pro- gressed for about 10 days During this time the three alleged discriminatees, Cutright, Hollands worth, and Lee, engaged in protected concerted activity-that is, signing and distributing authoriza- tion cards and talking with other miners in order to solicit their support for the Union The judge found that during this time period, the Respond- ent's coowners, Burnell Boggs and James Murphy, questioned the alleged discriminatees about union activity at the mines According to the credited ' The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 The judge inadverently cited New Horizons incorrectly The correct citation is New Horizons for the Retarded 283 NLRB 1173 (1987) 1009 testimony, Boggs and Murphy made repeated state- ments that the Respondent would not sign a union contract or run a union operation Lee testified that Murphy told him he had received a telephone call informing him that the Respondent's employees were engaging in organizational activities In the same conversation, Murphy told Lee that he would close the mine and return to teaching school before running a union operation again The next day the Respondent discharged Cutnght, Hollandsworth, and Lee, and transferred the other employees to Jamar No 1 3 In Wright Line,4 the Board set forth its test of causation for cases alleging violations of Section 8(a)(3) of the Act First, the General Counsel must make a puma facie showing sufficient to support the inference that protected conduct was a moti- vating factor in the employer's decision Once this is established, the burden shifts to the employer to demonstrate that the same action would have taken place even in the absence of protected conduct The judge found, and we agree, that the General Counsel established a prima facie case of a viola- tion The timing and the circumstances of the dis- charges warrant a strong inference of unlawful mo- tivation The alleged discriminatees engaged in union activity at Jamar No 2 shortly after it opened The credited versions of conversations Re- spondent had with Hollandsworth regarding the Union on July 23 establishes the Respondent was aware of its employees' union activity The Re- spondent's statements-found violative of Section 8(a)(1) of the Act-that it would not run a union operation or sign a union contract and would close if the employees chose to organize firmly estab lashes the Respondent's union animus The capstone of the General Counsel's prima facie case is that the Respondent discharged the alleged discrimina- tees within hours of learning that an election peti- tion had been filed by its employees-thereby, the Respondent essentially fulfilled its promise to close rather than operate with a union Significantly, the Respondent transferred-rather than discharged- those employees who were not involved in the union activity Based on the foregoing, the General Counsel established a compelling prima facie case that the Respondent discharged Cutnght, Hollands worth, and Lee because of their union activity 3 The employees who were transferred were Alan Hawkins-day fore man Lee Casteel-night foreman Alan Sampson-nephew or stepson of Boggs and R K Hamnck-a former employee Only those employees involved in union activity received discharge notices 4 Wright Line 251 NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cir 1981) cert denied 455 U S 989 (1982) approved in NLRB v Transporta tion Management Corp 462 U S 393 (1983) 293 NLRB No 126 1010 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In rebuttal, the Respondent relies primarily on a contract between it and N F The Respondent contends that this contract limited its duties to opening the mine According to the Respondent, it did not receive a contract to operate the mine and therefore was required by N F to cease its oper- ation at Jamar No 2 and discharge employees In regard to the contract, we conclude that it is insufficient to establish the Respondent's rebuttal case In so concluding, we cannot endorse the judge's view that the contract "expressly provides that the Respondent was to mine the coal once the mine was in operation "s However, we do not agree with the Respondent's view that the contract limited its duties and "expressly provides that N F "will mine the coal "6 The contract does not speci- fy any limitation on the length of time or scope of responsibility for the Respondent's operation at Jamar No 2, nor does it require the Respondent to vacate the mine once it is established The con- tract's failure to provide with clarity that the Re- spondent would definitely cease its operation at the mine on opening the mine persuades us that the Respondent did not establish that its actions were dictated by contractual requirements 7 In further support of its defense that N F dic- tated its decision to leave Jamar No 2, the Re- spondent relied on the testimony of Murphy that N F 's president, Cecil Nichols, during the last week in July 1986, informed him that N F had decided to operate Jamar No 2 itself However, the judge discredited Murphy's testimony on this point, and, as previously noted, we have found no basis for reversing the judge's credibility findings 8 5 The judge noting the contracts references to the mining responsi bilities of the Respondent concluded that the contract provided for the Respondent to operate the mine However the Respondent notes that some degree of mining is required to complete the opening of a mine 6 The Respondent cites contractual language to wit Jamar Coal Company will put a mine under ground for N F who is to mine the coal However this language by itself is insufficient to establish that the Respondent was required to cease operation of the mine on comple tion of the initial phase The language does not state with specificity that the Respondent will cease its operation at any given time 7 Member Johansen notes that generally a document-like the contract between the Respondent and N F -speaks for itself The contract ap pears to be a complete expression of all the terms agreed on as well as a final expression of the terms it contains Thus testimony elicited to inter pret a contract will generally be inadmissible Cf NLRB v L. B Priester & Son Inc 669 F 2d 355 (5th Cir 1982) (admission of extrinsic evidence to resolve an ambiguity is proper in interpreting a contract ) Therefore it is questionable whether the judge should have admitted the testimony of coowner Murphy that in effect was elicited to interpret the contract In any event the judge rejected Murphy s testimony on this point and we find no reason to disturb the judge s finding in this regard 8 The judge in discrediting Murphy and finding his testimony not at all convincing noted that the Respondent did not call Nichols to testify The Respondent contends that Nichols testimony would have been cu mulative surplusage Contrary to the Respondent Nichols testimony on this point would have been relevant nonhearsay testimony by an appar ently neutral witness Based on the foregoing, the Respondent has failed to establish that it would have discharged the three alleged discnminatees even in the absence of their union activity as required to rebut the prima facie case against its Accordingly , in agreement with the judge, we find that the Respondent violat- ed Section 8(a)(3) and (1) of the Act by discharg- ing employees because of their union activity io ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Jamar Coal Company, Summersville, West Virginia, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order 9 In further support of our finding that the Respondent has not rebut ted the strong prima facie case we rely on the credited evidence that established that Boggs informed both Lee and Hollandsworth that he contemplated that the mine would remain in operation some 10-12 years Though the Respondent argues that its contract with N F precluded work at Jamar No 2 beyond the initial preparations for opening the mine it is clear from comments like those above that at the time it began operations the Respondent believed that the commitment for Jamar No 2 was a long term one The contract between the Respondent and N F does not rebut this evidence While we disagree with the judge s interpre tation of the contract we do not find that the contract clearly establishes that the Respondent would be required to cease operations on a date cer tarn Furthermore we note that shortly after the closure of Jamar No 2 Hawkins an alleged supervisor told Hollandsworth that he had heard that N F would take over the mine if it went union In addition we note that even if the mine was closed for reasons beyond the control of the Respondent the Respondent has not satisfactorily rebutted the puma facie case as it applies to Cutright Hollandsworth and Lee These three employees the only active union adherents at mine No 2 were also the only employees laid off as a result of the closing of that mine 10 The Respondent excepted to the judges refus [al] to consider at all the prior determination of the Regional Director [in Case 9-RC-14974] that the Respondent ceased operations at mine No 2 for economic rea sons Contrary to the Respondents argument we are satisfied that the judge fully considered the Regional Director s prior decision We note that in a hearing over issues relevant to the representation case the Re gional Director would not have before him the unfair labor practice issue associated with the closure of mine No 2 That issue would not be criti cal to a determination of voter eligibility Thus the Regional Directors reference in Case 9-RC-14974 to Mine No 2 closing for economic rea sons while being entitled to consideration is not binding Rather in these circumstances our decision like that of the judge must ultimately be based on an independent consideration and evaluation of the evidence received in the unfair labor practice proceeding Garrison Valley Center 277 NLRB 1422 fn 1 (1985) see also Reeves Bros 277 NLRB 1568 (1986) It is on this basis that our findings and decision in this proceeding have been made James R Schwartz Esq, for the General Counsel Forrest H Roles Esq and Mark A Carter Esq (Smith Heenan and Althen), of Charleston, West Virginia, for the Respondent Jerry Miller of Fairmont West Vingina, for the Charg ing Party DECISION STATEMENT OF THE CASE THOMAS A Ricci, Administrative Law Judge A hear ing in this proceeding was held at Charleston, West Vir JAMAR COAL CO ginia, on 7 April 1987, on complaint of the General Counsel against Jamar Coal Company (the Respondent or the Company) The complaint issued on 25 February 1987, based on separate charges filed by John Cutright, Roger Hollandsworth, and Baron Lee, on 9 January 1987, and by District 31, United Mine Workers of Amer ica (the Union), on 12 January 1987 The essential allega tions of the complaint are that the Respondent unlawful ly discharged these three employees and some others in violation of Section 8(a)(3) of the statute Briefs were filed by the General Counsel and the Respondent On the entire record and from my observation of the witnesses, I make the following FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Jamar Coal Company, with an office at Summersville, West Virginia, is engaged in the mining of coal During the calendar year ending 31 December 1986, in the course of its business operations, it provided services valued in excess of $50,000 to a nonretail enterprise lo cated within the State of West Virginia which is directly engaged in interstate commerce I find that the Respond ent is an employer within the meaning of the Act II THE LABOR ORGANIZATION INVOLVED I find that District 31, United Mine Workers of Amer ica (the Union) is a labor organization within the mean ing of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES At the time of the events that gave rise to this pro ceeding, the Respondent was operating two coal mines, about half a mile distant from one another One, where it employed above 15 employees, was called mine No 1, and had been operating for some time The other called mine No 2, only started work on 21 July 1986, and em ployed about seven or eight men During the week start ing 21 July, there developed a move among the employ ees at both mines toward joining the Union There was talk among the employees, on and off the job, and union cards were signed On 29 July the Union filed a petition with the National Labor Relations Board for an election among all the Respondents employees On 31 July the Respondent closed down its operations at mine No 2, it discharged three workers employed there-the men who later filed charges in this case-and transferred the re maining employees to its mine No 1 After hearings were held, in August and September, on the election petition which the Union had filed, an election was conducted by the Board on 21 October The Union won a majority of the votes The very next day the Respondent closed its mine No 1 and sent ev erybody home At the hearing in this case, 6 months later, James Murphy, one of the two partner owners of the Company, admitted clearly that the reason why the Respondent closed its mine No 1 was because the em ployees had voted in favor of the Union and that the 1011 Company was not willing to deal with any employees through a union collective bargaining agent 1 The complaint alleges that the Respondent discontin ued its operations at mine No 2 because of the union ac tivity and that therefore when it fired some of the people working there it committed unfair labor practices The General Counsel does not contend that the closing of mine No 1, an admitted retaliation against employees be cause of their prounion activity, was unlawful The Re spondent's defense is essentially that the closing of mine No 2 had nothing to do with the employees' union ac tivity The two partners who own this business-James Murphy and Barnell Boggs-have been in the coal mining business for some time , operating now one mine and now another in different locations In fact there is evidence in this record that the Respondent closed down another of its mines because the employees there had also tried to establish a union to represent them What ever mines the Respondent operates now I do not know But it is clear to me that its overall business is essentially to operate multiple mines at various times from place to place At the hearing owner Murphy was ambivalent in his testimony about why he closed mine No 2 That oper ation was started pursuant to a contract with a company called N F Mining, Inc At one point in his testimony Murphy seemed to say that the contract with that com pany was for his company to do no more than prepare the mine for operation, and that from the start it had been agreed N F would do the actual mining thereaf ter He said that preparatory work was finished by 29 July But Murphy also testified "Our deal was for us to provide the labor and the supplies and put the coal on the ground, and they pick it up from there and take it to the tipple and we get paid on a clean coal basis This was another way of saying that the Respondent was to continue to mine the coal after getting the equipment in place At another point in his testimony the witness said there was a change of mind between the contracting par ties, and that N F decided later to do its own mining Again from his testimony A The week before August the 1st Mr Nichols [owner of N F Mining] told me that he was plan ning to run the operation himself Q What did he mean by that? A He meant that N F Mining was going to take over at that point after we had completed our obligation and that N F Mining would be running the place If the contract between them provided that N F was going to do the mining-that is, to run the place-why ' From the transcript of Murphy s testimony Q Would it be fair to say that you closed down because the union won the election and you didn t think you could live with union s demands? A I suppose that would be fair 1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD did Nichols have to make any new decision just before Jamar Coal left the mine? Roger Hollandsworth, one of the employees hired when mine No 2 started operations on 21 July is an old friend of Boggs, one of the two owner partners of the Respondent He testified that Boggs went to his home 2 or 3 days before 21 July and offered him a job John Cu tnght was also present there that evening From Hol landsworth s testimony We talked about the mine and how long it was going to last and what-the height and things like that Q What did Mr Boggs say about how long the mine was going to last? A He told us from 10 to 12 years Q Did you have any other discussion-did he mention the size of the mine or what they intended to do at the mine site? A Well, he said that he was planning driving, I believe 2 200 foot, maybe through there and then rooming off and he said he could cut into Mine No 1 from there Cutright testified that a few days after mine No 2 started operating Boggs spoke to him He said he believed it would be a good mine for us to work Q Did he give you any indication how long he thought the mine would operate? A After that he did He told me that down at No 2 mines, we was talking out there right after we went to work and he said he figured that place would last 10 or 11 years Q Did you have any discussion about the size of the mine or the size of the area that he would be mining9 A Yes, he told me it was 2 200 feet through that hill, and he said when we drove through that hill we could room it both ways and he said they could even cut that mines in with the old mines Both Hollandsworth and Cutright testified that before the layoff on 1 August neither of them had ever heard any mention of the possibility of layoff or lack of work Their discharge clips read Lack of work None of the foregoing testimony was contradicted by any of the Re spondent s witnesses Baren Lee was also hired on 21 July He said that a few months before that date he spoke to Boggs about the work prospects because he was considering buying a truck and wondered whether he could afford it Boggs told him as Lee testified that they had 10 to 12 years work at Mine No 2 Lee too, said there was never a mention of layoff before 1 August for lack of work There is no contradiction of this testimony either Would the owner Boggs, tell Hollandsworth, whom he said he was friends with since their childhood that the job was going to be steady work if in fact he had agreed with the N F Company to stay there at that mine only 10 days? To ask the question is to answer it The written contract the Respondent made with the N F Company was received in evidence All it says is the Respondent was to mine the coal and give it to N F There is no direct language indicating any limita tion on the period during which Jamar Coal was to oper ate there No one was offered from N F Company to corroborate Murphy s interpretation of the contract There is no question on this record but that the Re spondent started the work at its mine No 2 with the full intention of continuing it for a long time Something hap pened after it started work at mine No 2 that caused the Respondent to change its mind What was it? As Board law also says When the reason advanced by the re spondent as the reason for discharging a man proves to be false, a contrary reason, even an illegal one is justified in conclusion by the administrative law judge Shattuck Denn Mining Corp v NLRB, 362 F 2d 466 (9th Cir 1966) Hollandsworth testified that after he started work Boggs asked him, on 23 July if I had heard anything about union activities, ' and that he said No The next day still as Hollandsworth testified Boggs said to him he wasn t going to run the union operation The only thing that he had said to me prior to that date that he just wasn t going to run a union operation Hollands worth also recalled that a week after his layoff, Hawkins, an admitted supervisor, told him he heard Cecil Nichols [owner of N F Mining] was going to take the mine over if it went union Hawkins did not testify In August Hollandsworth was present at a Board hearing on the Union s election petition The witness testimony continues Mr Boggs stopped at my house and he said that he had heard that-what I had to testify to at Som mersville and he said that he would not run a union op eration the words he told me he would not run a union operation Baron Lee gave like testimony One day, as he testi feed he saw Murphy talking to someone on the office telephone, after which Murphy came to him And he told me that was the organizer-union organizer on the phone and they had said that the men at Mine No 1 had chosen them to-I forget the words-anyhow chose the organizers to participate in a union activity Sign union cards and so forth he said he couldn t afford to go union that they d shut her down first And that they d go back to teaching school first before they d ever run a union again And he said that that s the reason why they had given up another mine at Island Creek mines that they had leased before [T]hat they was running it union then and said they couldn t afford to run it union then, that s the reason why they sold out This was the day someone from the National Labor Re lations Board office called the Respondent to inform it that the Union had filed the election petition dated 29 July Both Murphy and Boggs denied any knowledge of union activity by any of their employees before receiving notice of the Union s election petition on 29 or 30 July They also denied making any of the statements about an tiunionism attributed to them by employees Hollands JAMAR COAL CO 1013 worth and Lee I credit the two employees against the owners The Respondents determination whatever the cost not to permit a union to represent its employees could not be clearer on this record The very timing of the two drastic actions it took against the employees is enough to support my credibility finding-closing mine No 2 as soon as it learned of the Union s petition, and closing mine No 1 the day after the employees voted in favor of the Union In its letter to all the employees on 16 Octo ber, 5 days before the election, in which the Respondent strongly urged, No' votes, it candidly said, We can't afford the UMW contract and will not sign one This statement alone is completely consistent with the em ployees testimony about Boggs telling them the Compa ny would close down before it had to deal with the Union And, of course, Murphy s final admission, at the hearing, that he closed his last mine, No 1, because a majority of the employees had voted Yes,' removes all doubt about whether the employees had been told that if they voted for the Union the Respondent will go out of business 2 In sum, I find that by discharging Hollandsworth, Lee, and Cutright on 1 August 1986 the Respondent violated Section 8(a)(3) of the Act I also find that by telling its employees, while they were engaged in union activity, that the Respondent would under no circumstances oper ate a union represented shop, the Respondent violated Section 8(a)(1) of the Act The complaint also alleges that on 25 July 1986, the Respondent laid off four other employees each specifi cally named, in violation of Section 8(a)(3) of the Act at its Mine No 1 Unlike the charges relating to Cutright, Hollandsworth and Lee, where those individuals each filed their own separate charges against the Respondent, as to the four men said to have been laid off illegally on 25 September the charge was filed by the Union Not one of the four men so listed in the complaint ap peared at the hearing Indeed the only evidence that they ever worked for this Company is the Respondent's ad mission, in its answer to the complaint, that they were in fact laid off on 25 July At the hearing the owner said only that they were laid off from mine No 1 for eco nomic reasons How long had they worked there how many men were needed from day to day at mine No 1, was anyone of these four men involved in any way in the union activity, did the Respondent have any knowl edge of such activity by them if in fact it happened at all-absolute silence on the entire record In his brief the General Counsel concedes that there is no documentary or otherwise indisputable proof that the Respondent had any knowledge of union activity before these four men were fired The only case precedent on which the General Counsel relies involved the discharge of a man who was the only union activist in the workplace who 2 From the Respondents brief The Union won and was certified Jamar shut down on October 22 and has not resumed operations Its deci lion to do so was in part connected to the outcome of the election It [the Respondent] objects to the fact that this union-the UMWA-would in accordance with its notorious and unviolated policy make demands Jamar could not meet and destroy it with a strike for not acceding was interrogated by his employer who was released without warning and as to whom its employer advanced only a pretextual excuse There are no facts at all on this record about what happened at the Respondents mine No I when these people were laid off I also know that a fifth man was discharged that same day at mine No 1, because the Union s charge lists five men who left there on 25 July Why is not his name also in the complaint9 The burden to prove a violation of the statute always rests affirmatively on the General Counsel It has not been born in this case with respect to these four men, I shall therefore recommend dismissal of the complaint as to them IV THE REMEDY The Respondent must be ordered to cease and desist from again committing the unfair labor practices found here John Cutright, Roger Hollandsworth and Baron Lee must be reinstated to their former positions and they must be made whole for any loss of earnings they suffered in consequence of the illegal discrimination against them In view of the nature of the unfair labor practices committed, the Respondent must be ordered to cease and desist from in any other manner violating the statute hereafter V THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I have a close, intimate and substantial relationship to trade traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce CONCLUSIONS OF LAW 1 By discharging John Cutnght, Roger Hollands worth and Baron Lee the Respondent has violated and is violating Section 8(a)(3) of the Act 2 By the foregoing conduct and by telling its employ ees that it would not permit them to be represented by a labor organization, and that it would close any of its mines in retaliation if the employees chose to be repre sented by a union the Respondent has violated and is violating Section 8(a)(1) of the Act 3 The above described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act On these findings of fact and conclusions of law and on the entire record, I issue the following recommend ed3 ' 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 1014 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER The Respondent, Jamar Coal Company, Summersville, West Virginia, its officers, agents, successors, and as signs, shall 1 Cease and desist from (a) Discharging or in any other manner discriminating against its employees in retaliation for their concerted, protected union activity (b) Telling its employees that it would in no event rec ognize a collective bargaining agent selected by them, and that it would discontinue part of its operations in re taliation if they chose to be represented by a union (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self organization , to form, join, or assist District 31, United Mine Workers of America, or any other labor or ganization, to bargain collectively through representa tives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer John Cutright , Roger Hollandsworth, and Baron Lee immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges (b) Make whole John Cutright , Roger Hollandsworth, and Baron Lee for any loss of pay or benefits they may have suffered by reason of the Respondent's discnmina tion against them, with interest thereon to be computed in the manner prescribed in F W Woolworth Co , 90 NLRB 289 (1950), and New Horizons for the Retarded, 283 NLRB 1173 (1987) 4 (c) Preserve and, on request, make available to the Board or its agents for examination and copying all pay roll records, social security payment records, timecards, personnel records and reports, and all other records nec essary to analyze the amount of backpay due under the terms of this Order (d) Post at its places of business in Summersville, West Virginia copies of the attached notice marked Appen dix 5 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondents authorized representative , shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus tomarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de faced or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply * See generally Isis Plumbing Co 138 NLRB 716 (1962) 5 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al 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 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or dered us to post and abide by this notice WE WILL NOT tell our employees that we will refuse to recognize any collective bargaining agent of their choice WE WILL NOT tell our employees that we will shut down our places oif business in retaliation if they chose to be represented by District 31, United Mine Workers of America, or any other labor organization WE WILL NOT discharge any employee in retaliation for their union activity WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL offer John Cutright , Roger Hollandsworth, and Baron Lee immediate and full reinstatement to their former positions and, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges WE WILL make whole John Cutright , Roger Hollands worth, and Baron Lee for any loss of pay they may have suffered as a result of the discrimination against them with interest All of our employees are free to join or assist District 31, United Mine Workers of America, or any other labor or ganization of their choice JAMAR COAL COMPANY SUPPLEMENTAL DECISION THOMAS A Ricci Administrative Law Judge On 18 June 1987, I issued a decision in this proceeding finding that the Respondent had violated Section 8(a)(3) of the Act by discharging three employees on 31 July 1986 On 2 November 1987 the Board remanded the case to me for further examination and consideration of the issues raised The essential issue raised in this case is whether the Respondent on August 1986 discontinued operations of its mine No 2-the day after it learned that the employ ees had filed a petition for a Board election-in reaction to that prounion activity , or whether, as the Respondent contended at the hearing, because its contractual agree ment with the owner of that time mine-a company called N F Mining-had by its terms expired On the basis of the entire record-including the un contradicted testimony of several employees that they were told, when hired for mine No 2 by Boggs the owner that their jobs at that mine would last for several years-I did not credit the Respondent's affirmative de fense In its remand Order the Board refers to the con tract between the Respondent and the N F Mining JAMAR COAL CO Company as ` purportedly limiting its activities to estab lishing the mine To me the word purported means- as contended by the Respondent' The facts, which always govern the case, are that the written contract, received in evidence, does not limit the Respondent's commitment to merely operning the mine Not only does it not limit the Respondents commitment, but it also expressly provides that the Respondent was to mine the coal once the mine was in operation From the contract "The coal mined by this agreement will be loaded by Jamar on trucks furnished by Holly Coal Company All coal mined is for the benefit of N F " More from the contract ' In the event that Jamar shall violate any of the laws and regulations regulating mining, Jamar shall bear the fines and further, N F shall have the option of immediately cancelling this agreement ' [Emphasis added ] In plain English the word mining ' does not mean install mining equipment and go home Moreever, Murphy, the president of the Respondent Company, testified on direct examination as to exactly what Nichols of N F told him "about the week prior to August 1 ' He just said that he had decided that N and F would mine the coal themselves No need to repeat what appears in my original decision This last statement by Murphy was pure admission that the contract made with N F did not provide that N F would do the mining If Murphy's contract with Nichols provided that the coal would be mined by N F how do you explain Nichols having had to decide," just before 1 August, to mine the coal himself? What made him change his mind? The answer lies in the testimony of Roger Hollands worth, who testified, without contradiction, that shortly after the 1 August layoff Allan Hawkins, a foreman, told him he heard Cecil Nichols was going to take the mine over if it went union' When asserting to the contrary at the hearing, Murphy was not telling the truth Indeed, his entire defense is completely inconsistent Although arguing that the contract with N F provided that he was to leave mine No 2 as soon as the equipment was installed, he also argued that his reason for closing it was because the manager of N F had changed his mind, and decided, later, to do the mining himself He stands discredited on this record In its remand Order the Board also refers to Murphy s uncontradicted testimony supporting the Respondent s defense " This uncontradicted testimony is no more than a reassertion of the Respondents affirmative de fense It was pure hearsay and not at all convincing Were it true that the contract had been altered by the 1015 parties before the employees filed their election petition on 29 July all the Respondent had to do was produce Nichols to support his hearsay assertion I did not With the significant timing of the discharge of the three men- the day after their petition was filed plus the absolutely credible evidence of antiunion animus in the Respondent, I could hardly accept Murphy's hearsay testimony to offset the General Counsels affirmative puma facie case See Wright Line, 251 NLRB 1083 (1980) Finally, the remand Order suggests that because the Regional Director, some months before the charge was filed in this case, expressed the opinion that the Respond ent's mine No 2 was closed for economic reasons, a similar finding should be made on the record before me That statement by the Regional Director appears in the Direction of Election issued on the Union s petition for an election, before this proceeding started I can only be lieve the Regional Director, at least at that earlier date, did not yet have all the relevant facts before him In any event, the opinion of the Regional Director, on the ques tion whether an unfair labor practice was committed, does not constitute relevant evidence on the final ques tion, which can only be decided on the basis of receiva ble evidence during the hearing on the complaint In United Aircraft Corp, 168 NLRB 480 (1967), the General Counsel moved to strike the defense of the respondent in a refusal to bargain complaint on the ground that the Re gional Director had simultaneously refused to hold an election at the Company's request because he felt there was no question concerning representation at the time Everytime an employer refuses to bargain on the ground that a question concerning representation existed when he refused, the complaint contradicts him, and alleges that there was no question concerning representation at the time of the refusal Does the fact that the Regional Director believes his complaint to be a good one mean the employer has no right to defend? The General Colin sel's motion to dismiss in that case was denied Id at 484 Just as a Regional Director's earlier opinion cannot deny a respondent the right to enter a defense, so his opinion cannot serve as a defense to a complaint issued regularly Decision in all unfair labor practice cases must rest solely on the evidence adduced before the adminis trative law judge 1 I reaffirm my total decision as issued initially ' 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 put poses