Hallmark & Son Coal Co. White Oak Mining Co. Single, Joint Or Successor Employer

• HALLMARK & SON COAL CO 259 Hallmark & Son Coal Company; White Oak Mining Company, Inc.; Single, Joint or Successor Em- ployer and United Mine Workers of America, Local Union 2438. Case 10-CA-23554 July 30, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On June 29, 1989, Administrative Law Judge Hutton S Brandon issued the attached decision The Respondent, White Oak Mining Company, Inc (White Oak), filed exceptions and a supporting brief The General Counsel and the Charging Party filed answering bnefs The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, 1 and conclusions only to the extent consistent with this Decision and Order The judge found that the Respondent's refusal to hire former Hallmark & Son Coal Company (Hall- mark) employees violated Section 8(a)(3) of the Act The judge also found that the Respondent was a successor to Hallmark and therefore its fail- ure to recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit employees violated Section 8(a)(5) of the Act We disagree with the judge's reasoning and therefore reverse Hallmark operated a coal strip mining operation and a coal washing facility near Sipsey, Alabama In early 1987, Hallmark began winding down its operations and laying off its employees By late 1987, only three employees, Carl Ford, James Price, and Marvm Tuck, and one supervisor, Samuel Yates, remained They operated the coal washer The employees, who had previously occu- pied other positions in the unit, obtained washer positions by virtue of their unit seniority, rather than by their washer operation skills It is undisputed that the washer was an old facili- ty that needed frequent repair work The repair work involved substantial amounts of vertical and overhead welding, as well as high voltage electri- cal work When Yates and the three employees op- 1 The Respondent has excepted to some of the judge's credibility find- ings 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 Or 1951) We have carefully examined the record and find no basis for reversing the findings erated the washer for Hallmark, Fred Hallmark, the owner of Hallmark, and other management em- ployees often performed the repair work because they possessed the necessary welding and electrical skills Ford, Price, and Tuck did not perform any significant repairs because, as the judge found, they did not possess these necessary skills Hallmark entered into a lease agreement with the Respondent on December 2, 1987, leasing the washer facility to the Respondent effective Febru- ary 1, 1988 2 Hallmark laid off Yates and the three employees on January 31 It informed the Union that the collective-bargaining agreement was can- celed because Hallmark was no longer in business For approximately 30 days after signing the De- cember 2, 1987 lease agreement, the Respondent contemplated how it would staff the washer, i e, how many employees it would hire and the neces- sary job qualifications Realizing that the washer needed frequent repairs, the Respondent concluded that it would require employees who would oper- ate the washer to have the skills of certified weld- ers or electricians The Respondent interviewed Yates in late Janu- ary, and on February 1 hired him to be foreman of the washer operation At or about the same time, the Respondent interviewed two individuals who had submitted applications on January 27 and 28 3 Both individuals satisfied the Respondent's multiple skills requirements During the week before the "start up," the Respondent decided to hire them On February 12 the Respondent told Yates to inform the two applicants to begin work on Febru- ary 15 4 On February 11 Yates had informed Ford that the Respondent would not hire former Hall- mark employees because of fear of union problems The Respondent's employees began operating the washer on February 15 In addition to operating the washer, these employees used their welding and electrical skills to repair the facility Sometimes the employees could not perform the necessary re- pairs within normal operating hours On these oc- casions, the Respondent hired an independent con- tractor to assist with repairs Relying on the fact that the Respondent con- tracted out some of the welding work, the judge found the Respondent's claim that it needed em- ployees who were certified welders and electricians was exaggerated and pretextual The judge found instead that the Respondent's failure to hire the former Hallmark employees was based on union considerations We disagree 2 All dates refer to 1988 unless otherwise noted 3 Neither of these two employees was a former Hallmark employee 4 A third employee, who had welding skills, was lured in March 299 NLRB No 39 260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In Wright Line,5 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 prima facie showing sufficient to support the inference that protected conduct was a moti- vating factor in an 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 Based on his finding that Yates' February 11 statement to Ford violated Section 8(a)(1) and re- flected both union animus and antiunion motiva- tion, the judge found, and we agree, that the Gen- eral Counsel established a prima facie case that the Respondent failed to hire Hallmark employees be- cause of their union affiliation The judge further found that the Respondent failed to overcome the prima facie case Contrary to the judge, we do not regard as pretextual the Respondent's claim that it relied on the possession of welding and electrical skills as a criterion for hiring employees to operate the washer Instead, we find that the Respondent actually relied on that as a hiring standard and that it demonstrated that it would not have hired the Hallmark employees even in the absence of their union affiliation As noted above, the washer frequently needed welding and electrical repairs It is clear that, when Hallmark operated the facility, none of the alleged discnmmatees performed any significant repair work on the washer because they did not possess the necessary skills 6 When making its decision re- garding staffing the operation, the Respondent was aware of the fact that the washer needed frequent repairs Thus, the Respondent determined that it would hire employees possessing the skills of certi- fied welders or electricians capable of performing such repair work to operate the washer The Re- spondent made this decision about the qualifica- tions before it received employment applications and began hinng The employees ultimately hired by the Respondent possessed these qualifications After the washer operation started up, the Re- spondent's employees used their welding and elec- trical skills to repair the washer As the judge ob- served, "[W]eldmg and electrical skills were obvi- ously helpful in the maintenance of the washer op- eration" Despite the judge's findings that the former Hallmark employees did not meet the quali- fications established by the Respondent and that the employees the Respondent hired possessed and 6 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989 (1982), approved in NLRB v Transportation Manage- ment Carp, 462 U S 393 (1983) 6 The judge found that "neither Ford, Pnce, or Tuck possessed such qualifications" There are no exceptions to this finding utilized welding and electrical skills, the judge con- cluded that the Respondent's hiring requirements were pretextual because it contracted out some of the repair work 7 The record indicates that the Re- spondent sought outside welders, instead of relying solely on its skilled employees, only when its em- ployees could not perform the repairs within normal operating hours Thus, rather than lending support to the judge's pretext finding, the evidence of contracting out strengthens the Respondent's ar- gument that repairs were frequently needed and that the skills requirement was a necessary compo- nent of the job In sum, we find that the Respondent decided to hire employees who possessed welding and electri- cal skills based on legitimate business reasons and that former Hallmark employees did not possess these skills We are also satisfied that—given the timing of the decision to require welding and elec- trical skills, and the legitimate business reasons for the skills requirement, which in practice proved es- sential to operating the washer—the Respondent has established it would not have hired the former Hallmark employees even in the absence of their union affiliation Accordingly, we shall dismiss the complaint's allegation that the Respondent violated Section 8(a)(3) and (1) of the Act We have found that the Respondent did not dis- criminate against the former Hallmark employees Consequently, there is no basis for the judge's find- ing that the Union's representative status would have survived the Respondent's assumption of the Hallmark washer and that the Respondent was therefore a successor employer under the Act We therefore shall also dismiss the complaint's allega- tion that the Respondent violated Section 8(a)(5) and (1) of the Act AMENDED CONCLUSIONS OF LAW Delete Conclusions of Law 3, 4, 6, and 7, and re- number the remaining paragraphs ORDER The National Labor Relations Board orders that the Respondent, White Oak Mining Company, Inc , Sipsey, Alabama, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Informing employees that they will not be hired because of their representation by United 7 To the extent the judge suggested that the Respondent could have hired the former Hallmark employees and contracted out more of the repair work, the judge impermissibly substituted his business judgment for that of the Respondent HALLMARK & SON COAL CO 261 Mine Workers of America, --Local Union 2438, or any other labor organization (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the nghts guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces- sary to effectuate the policies of the Act (a) Post at its office and facilities near Sipsey, Alabama, copies of the attached notice marked "Appendix " 8 Copies of the notice, on forms pro- vided by the Regional Director for Region 10, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days m conspicuous places including all places where notices to employees are custom- arily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply 8 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 ordered us to post and abide by this notice WE WILL NOT inform employees that they will not be hired because of their representation by United Mine Workers of America, Local Union 2438, or any other labor organization WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act WHITE OAK MINING COMPANY, INC Richard Prowell, Esq , for the General Counsel Charles P Powell, Esq (Powell, Tally & Frederick), of Bir- mmgham, Alabama, for the Respondent Robert M Weaver, Esq (Longshore, Nakamura & Quinn), of Birmingham, Alabama, for the Charging Party DECISION STATEMENT OF THE CASE HurroN S BRANDON, Administrative Law Judge This case was tried at Birmingham, Alabama, on April 12-13, and May 1, 1989 The charge was filed by United Mine Workers of America, Local Union 2438 (the Union), on July 19, 1988 1 The complaint based on the charge issued on October 31 and an amended complaint issued on December 8 In light of a settlement reached between the parties the complaint was further amended at the hearing to delete complaint paragraphs 14, 15, and 21 alleging certain violations of the National Labor Rela- tions Act (the Act) by Hallmark & Son Coal Company (Hallmark) In its last amended form the complaint al- leged that White Oak Mining Company, Inc (Respond- ent or White Oak), as a successor to Hallmark (1) violat- ed Section 8(a)(1) of the Act by threatening not to hire the former employees of Hallmark because of their mem- bership in the Union, (2) violated Section 8(a)(3) and (1) of the Act by refusing to hire former employees of Hall- mark because of their membership in, and representation by, the Union, and, (3) violated Section 8(a)(5) and (1) of the Act by unilaterally changing the terms and condi- tions of the bargaining unit employees without notifica- tion to, or consultation with, the Union Respondent filed a timely answer denying the unlawful conduct alleged The issues presented are whether the individual to whom the unlawful independently violative 8(a)(1) conduct was attributed was a supervisor or agent of Respondent, whether Respondent refused to hire the former employ- ees of Hallmark because of their umon affiliation, and whether Respondent was a legal successor to Hallmark On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel, the Union, and Respondent, I make the following FINDINGS OF FACT I JURISDICTION Respondent is an Alabama corporation with an office and place of business located at a coal preparation facili- ty near Sipsey, Alabama, where it is engaged in the processing and sale of coal During the calendar year preceding issuance of the complaint Respondent pur- chased and received at its Alabama facilities materials and supplies valued in excess of $50,000 directly from suppliers located outside the State of Alabama The com- plaint as amended alleged, Respondent at the hearing ad- mitted, and I find that Respondent is an employer within the meaning of Section 2(6) and (7) of the Act subject to the jurisdiction of the Board The complaint also alleged, Respondent admitted, and I also find that the Union is a labor organization within the meaning of the Act , All dates hereinafter are in 1988 unless otherwise indicated 262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD II THE ALLEGED UNFAIR LABOR PRACTICES A Background Hallmark for several years operated a coal strip mining operation in the vicinity of Sipsey, Alabama In connec- tion with such mining it operated a coal preparation or "washing" facility, referred to as the Sipsey washer or simply the washer, on premises leased from McWane Coal Company (McWane) While there was a dispute raised at the hearing by Respondent whether Hallmark was signatory to a collective-bargaining agreement with the Union covenng its employees, Respondent in its bnef conceded that Hallmark had been signatory to the Na- tional Bituminous Coal and Wage Agreement of 1984 which was effective to January 31, 1988 The employees covered by that agreement as described at article IA, section (a), were as follows The production of coal including removal of over- burden and coal waste, preparation, processing and cleaning coal repair and maintenance work shall be performed by classified Employees of the Employer covered by this agreement Specific exemptions from coverage set out in section (b) were Coal inspectors and weigh bosses at mines where men are paid by the ton, watchmen, clerks, engi- neering and technical forces of the employer, work- ing at or from a district or local mine office Section (b) also excluded "essential supervisors as are in charge of any class of labor inside or outside the mines" The Hallmark unit alleged by the General Coun- sel in the complaint described the unit as a production and maintenance unit with the same exclusions noted above but limited it to the Sipsey preparation facility In any event, it is clear, and there is no dispute that histori- cally Hallmark's production and maintenance employees employed in its stnp mining operations as well as its washer facility were represented by the Union in a single unit In early 1987, according to Fred H Hallmark, owner and president of Hallmark, the Company began winding down its operations and idled its dragline operations be- ginning in January of that year Through the remainder of the year Hallmark cleaned out its coal stock yards and laid off most of its employees Hallmark reduced its op- erations to only the operation of its washer in the latter part of 1987 In the washer operation coal was physically water washed and cleaned to increase its grade and value, and in some cases it was thereafter "blended" with other coals of various grades to meet customer specifica- tions By December 1987, Hallmark had reduced the number of employees in it unit work force from about 40 to only 3 employees The last three were used only in the washer operations but they had previoulsy occupied other positions and classifications in the unit and came to their washer positions by virtue of their unit seniority rather than by their washer operation skills These three employees were Marvin Tuck, normally a motor grader operator who primarily operated a loader when finally assigned to the washer operations, James Price, previous- ly a drill operator and "shooter," who ran a loader and the washer itself, and Carl Ford, formerly a dozer opera- tor who assisted Price in "running" the washer Samuel "Jerry" Yates testified that at the "very end" he was the washer superintendent for Hallmark, although other managers of Hallmark were frequently present at the washer in late December, including Jimmy Brown, Hall- mark's overall superintendent, and Fred Hallmark him- self who was frequently involved in the maintenance of the washer which, by all accounts, was an old facility re- quiring numerous and frequent repairs B The Relationship Between Hallmark and White Oak On December 2, 1987, Hallmark entered into a lease agreement with White Oak leasing the washer facility to White Oak effective February 1, 1988 The lease, signed by Fred Hallmark and James Fortner, president of White Oak, was for a term of 1 year but was renewable for ad- ditional terms in the absence of notice of nonrenewal by December 31 of each year Hallmark, however, reserved the right to terminate the lease at his discretion upon 30 days' notice The lease was also approved by a represent- ative of Empire Coal Company, McWane's parent corpo- ration On January 31, 1988, Hallmark, as a final step in its cessation of any coal production or processing, laid off Yates and its last three employees In addition, Fred Hallmark advised the Union by letter that the collective- bargaining agreement was canceled inasmuch as Hall- mark was no longer in business White Oak began operation of the Sipsey washer on February 15 Prior to that time it had operated two coal surface mines, one within about 2 miles of the washer It does not appear that White Oak's employees utilized in its surface mines were represented by any labor organiza- tion For the washer operation White Oak hired Hall- mark's former employee, Yates, to run the washer as a "working foreman" and two additional employees, Jerry Boyd and Norman Key who submitted applications for employment to White Oak on January 27 and 28, respec- tively, and who were not former Hallmark employees, to assist in the washer operation A third man, Billy Hams, who likewise was not a former Hallmark employee, was hired by White Oak for the washer operation, initially on a part-time basis in late March There was no evidence that White Oak at any material time shared any common officers with Hallmark, nor was there any evidence of common ownership interests shared by the two concerns The only relationship be- tween the two concerns is reflected in the lease agree- ment which White Oak terminated on December 20 No company was operating the washer at the time of the hearing White Oak did, according to the record, subsequent to taking over the washer operation service the three cus- tomers who were Hallmark's major source of business for the washer On the other hand, White Oak appears to have increased the total complement of customers serv- iced by the washer operation by adding several addition- HALLMARK & SON COAL CO 263 al but smaller customers, the exact number of which was not shown on the record Based on the foregoing unrefuted evidence the Gener- al Counsel and the Union contend that White Oak was Hallmark's successor in the washer operation because there was a continuity in the employing enterprise In this regard the General Counsel points to the fact that the same business operation was being conducted by White Oak as had been conducted by Hallmark in the washer operation The same physical facility was used, the same jobs and working conditions were in existence after White Oak assumed the washer operation, the same supervisor, Yates, was used by both, the same equipment and method of production was used, and the same prod- uct was produced Further, there was even a substantial continuity in customers While the work force was not the same, the General Counsel argues that White Oak purposely failed and refused to hire Hallmark's former employees because of their union membership and Re- spondent's desire to avoid application of the Board's successorship doctrine This contention and Respondent's contention to the contrary necessitates setting forth the evidence concerning White Oak's employment of those it did over the former Hallmark washer employees C White Oak's Choice of Employees The ultimate decision of which employees to utilize in the washer operation was made by Frank Whitfield Jr, general manager of White Oak It is clear that Whitfield initially met with Yates in late January, discussed the washer operation with him, and hired Yates as the "working foreman" of the washer Whitfield testified he told Yates that Yates would be responsible for the oper- ation of the washer and the men under him would be "his baby" While Whitfield was frequently present at the washer he had other substantial duties in other loca- tions although he could be contacted by Yates by radio or telephone Yates was given authority to issue pur- chase orders for supplies or repair items According to Whitfield, when he met and interviewed Yates they discussed the three Hallmark employees, and Yates advised him that the three were not good employ- ees for the washer jobs Neither of the three were certi- fied welders or electricians, skills which Whitfield and White Oak President James Fortner had previously de- termined were necessary in combination with other loader and operator skills to the economic success of the washer operation 2 Whitfield testified that he gave Yates some blank application forms and told him to accept ap- plications from anyone interested in the jobs If Yates ever subsequently offered an application to anyone the record does not show it At around the same time that Yates was hired Whit- field took the applications of Boyd and Key who had been working for other employers at the time Boyd's application indicated he was a certified welder, while 2 Electrical skills were necessary according to Whitfield because the washer was operated with multiple electnc motors and high voltage cir- cuitry requiring constant attention and repair Welding skills were neces- sary because the operation required frequent welding repair as a result of the washer's age and poor condition Key's claimed he was a licensed electrician who also had utility skills Both met White Oak's multiple skills re- quirements Whitfield's testimony indicates that he sought out Boyd and Key having learned of their work from a McWane foreman While Whitfield testified that Yates was present dunng the interview of Boyd and Key, Yates maintained' in his testimony that he was present only for about 15 minutes of the interview of Key According to Whitfield, the decision to hire Key and Boyd was made the week prior to the White Oak "start up" of the washer on February 15 Yates was told on February 12 to tell Key and Boyd to report to work on February 15 They did so Harris was hired subse- quently in late March after Yates advised Whitfield that he needed more help in running the washer Harris, ac- cording to Whitfield, had welding and loader skills In the meantime, however, Whitfield contracted with Boyd to load out some coal from the washer left by Hallmark which a customer desired The coal was moved on February 5 In addition, after White Oak start- ed up the washer operation it contracted out some weld- ing work to an independent contractor Whitfield ex- plained that White Oak used its own employees for welding work which was necessitated during the normal operation hours and could be completed during such time, while welding which could not be completed during normal working hours was contracted out to an independent contractor 3 Also in the meantime, on February 1, the former Hall- mark employees, Ford, Price, and Tuck, appeared at the gate to the washer operation accompanied by Kenneth Harris, president of the Union and a former Hallmark employee who had been laid off earlier These four, from all accounts, saw Hallmark Superintendent Brown4 at the gate and informed him that they were there ready and able to go to work Brown advised them that Hall- mark had ceased operation and there were no jobs avail- able with Hallmark Around February 22 and after White Oak began oper- ation of the washer the Union put up a picket line at the washer gate 5 On one occasion after the picket line went up Fortner and Whitfield spoke to pickets Whitfield's testimony was that Fortner inquired of Union President Harris who was present if there was a problem Harris responded that the jobs being performed on the site were "their jobs" Fortner replied the washer we c being oper- ated by White Oak and if they had a problem they needed to be picketing Hallmark Harris repeated the 3 Yates provided a different reason in his testimony He claimed that the washer had only one old welder left which had short leads It was therefore sometimes necessary to use an independent contractor with equipment having long leads in order to reach and repair some portions of the washer 4 Brown explained his presence by testimony that he continued to per- form work on the premises for about 3 months after Hallmark's shut- down, but such work was related to surveying in property lines after completion of the reclamation process and was not related to the washer operation 5 The language on the picket signs was never revealed at the hearing, and the record is unclear concerning the exact purpose of the picketing However, counsel for the General Counsel asserted that he was not rely- ing upon the picketing to establish any demand for bargaining by the Union 264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD claim that it was "their jobs," and Fortner responded that if they wanted to put in an application that would be fine but the Company didn't need any problems with traffic at the gate Harris' version of this exchange which he placed as occurnng on February 22 does not differ significantly from Whitfield's except that he attnbuted to Fortner a remark that White Oak was not obligated to Hallmark's employees and left out any reference to the filing of applications with White Oak In any event, if Harris was correct with respect to the date, and there was no evidence to contradict him, White Oak had long before hired its contemplated full complement of em- ployees for the washer 1 Testimony of the former Hallmark employees Ford testified that he had about three discussions with Yates concerning White Oak's taking over the washer, first one occurring about 3 weeks before Hallmark ceased operations In that discussion Ford asked Yates if the Hallmark employees would have jobs there after White Oak took over Yates replied that he didet know, that he was going to a meeting with McWane and White Oak, and he would let Ford know when he got back The second conversation took place about a week later when Ford inquired of Yates if he had talked to White Oak about the jobs, and Yates responded that White Oak couldn't believe that they wanted jobs there Ford asked how much White Oak was paying and Yates replied that they were paying $10 per hour but he believed they could get $12 6 Ford inquired about insurance and Yates replied that White Oak had insurance but he didn't know what kind Ford asked him to inquire at the next meeting about the insurance and also to inquire whether "they" would sign a (union) contract According to Ford, Yates went to another meeting with White Oak but after he re- turned "he never would get into no deep subject or any- thing" The next conversation with Yates about White Oak, Ford testified, took place on February 11 Yates came to Ford's house near the washer to give him some metal banding, a shipping or packaging matenal sometimes re- ceived at the washer, that Ford had requested They dis- cUssed White Oak, and Ford inquired when White Oak was going to "crank up" Yates replied that they would after he had secured some tools Ford asked if "we" were going to have jobs out there and Yates replied neg- atively saying that they had already hired Boyd and "some other fellows" Ford asked why "they" meaning Ford, Price, and Tuck, wouldn't be hired, and Yates re- plied that "they was afraid it would cause trouble" Ford asked what kind of trouble to which Yates responded, "Afraid y'all will cause some trouble towards the union" Ford asked for further explanation, and Yates replied, "Well, if it gets out there and you go to talking about the union, they have to sign a contract to cover the pits and everything" Except for the second discussion with Yates related above when Ford claimed Hallmark em- ployee Price was present, there were no witnesses to the other remarks of Yates testified to by Ford 6 Minimum union scale under the expired Hallmark agreement was about 515 per hour Price did not support Ford's testimony concerning the second meeting or exchange with Yates regarding em- ployment by White Oak Although he recalled that Yates once said White Oak would pay $10 an hour, Price testi- fied that Ford was not present Price also testified that he did discuss White Oak with Yates when Yates told him sometime in January that White Oak "wanted me to run the washer for them "7 Price said he would if he did not have to cross a picket line Subsequently at a time not specified, Yates again talked to Price about running the washer and Price responded that he would have to talk to the Union about it because he didn't want to get "knocked out of" his union retirement by working there And while he later ascertained from the Union that it would not affect his retirement Price did not so advise Yates Finally, Price testified that he was at Ford's home 1 day after Hallmark shut down and before White Oak started up when Yates came by and brought Ford a metal band However, he could not recall Yates saying anything about White Oak at the time The third Hallmark employee, Tuck, a neighbor of Ford's, testified he had seen Yates and Price at Ford's house around February 5 or 6 but denied that he had joined them He attributed no remarks to Yates about the White Oak startup or operations at any time 2 The testimony of Yates Yates was called as an adverse witness by the General Counsel and testified prior to the testimony of Ford, Tuck, and Price Accordingly, he did not specifically contradict the occurrence of conversations with them about White Oak He acknowledged, however, that they all knew that Hallmark was going to cease operations, and Ford, Price, and Tuck had told him that they had jobs elsewhere None of the three, whom he described as his buddies, asked him for a White Oak application after he received them from Whitfield on Monday, February 1 Yates testified that Whitfield did not mention the Union in the initial interview with Yates which Yates said took place after Hallmark shut down the washer Confronted with his prehearmg statement to the Board, however, Yates conceded that Whitfield had told him that there "might be hard feelings" from the men be- cause White Oak was not union 8 According to Yates, he never made any remark to Ford, Price, or Tuck that could be construed as a threat that White Oak would not be hinng them because they were members of the Union On the other hand, he relat- ed Ford had telephoned him on Thursday, February 11, asking to meet him at Ford's home that afternoon, and Yates complied with the request There he met with Ford, Price, and Tuck, all of whom he desnbed as being neatly dressed Ford did the talking and pressed Yates to On cross-examination, Pnce put Yates' question in the hypothetical form of whether he would run the washer for White Oak if White Oak asked Whitfield's statement to the Board provides a different version He related that he told Yates 'if he had a problem working with the Union at Hallmark [and] then working for White Oak who was non-union & had two non-union mines," Whitfield would understand HALLMARK & SON COAL CO 265 admit that the washer was being operated by McWane saying it was "real important" to them 9 Yates refused Then Ford repeatedly asked him, "Well, tell us they won't hire us" Yates again refused saying he didn't know, that he had only met with Whitfield on one time Yates testified he felt uncomfortable at this meeting and left as quickly as he could D Arguments and Conclusions The acquisition of successorship status and any bar- gaining obligation incidental thereto is not wholly discre- tionary with an employer Successorship status is deter- mined by law applying settled criteria growing out of concerns for public obligations rather than private con- tract See Aircraft Magnesium, 265 NLRB 1344, 1346 fn 13 (1982), and cases cited therein The criteria considered in successorship cases are all related to determining whether there is a "substantial continuity in the employ- ing enterprise" See NLRB v Burns Security Services, 406 U S 272, 279-281 (1972) "Substantial continuity in the employing enterprise" is measured in a number of areas including, business operations, plant, work force, jobs and working conditions, supervisors, machinery, equip- ment, and methods of production and product and serv- ice Aircraft Magnesium, supra at 1345 The "measure- ments" are taken from the employees' perspective with an eye toward determining whether their job situation has so changed as a result in the change in ownership that their attitudes about union representation would also have changed See Derby Refining Co, 292 NLRB 1015 (1989) The presumption is that a mere change in owner- ship without a significant or substantial change in work- ing conditions would not likely bring about a change in employee attitudes regarding representation NLRB v Burns, supra This presumption is warranted in order to promote stabihty during changes in employers and in order to reduce industrial strife Derby Refining Go, supra As a practical matter, however, no successorship for labor relations purposes may be found if a majority of a new owner's employees were not employees of the pred- ecessor employer After all, a new owner is not obligated to hire any of the predecessor's employees, and in case he does not there is obviously no continuity in the work force and, thus, no successorship Burns, supra On the other hand, if the new owner seeks to avoid status as a successor with its attendant obligations through dis- cnminatonly refusing to consider and hire the predeces- sor's employees due to their union representation it may be inferred that "but for" the discrimination he would have retained all of the predecessor's employees US Marine Corp, 293 NLRB 669 (1989), Fremont Ford, 289 NLRB 1290 (1988) Such discnmmation results not only in a breach of Section 8(a)(3) of the Act but also a viola- tion of Section 8(a)(5) on the premise that the union's representative status would have survived the successor's takeover "but for" the unlawful discrimination Fremont 9 Why Ford would want to extract such an admission from Yates is not entirely clear from the record The record does disclose, however, that McWane and the Union have been parties to a labor dispute since 1984 Ford, supra, Love's Barbeque Restaurant No 62, 245 NLRB 78 (1979), enfd in pertinent part 640 F 2d 1094 (9th Cir 1981) The Board looks to a number of evidentiary factors in determining whether a new owner has violated Section 8(a)(3) of the Act in declining to hire the employees of a predecessor Those factors were listed in US Marine, supra at 670 as (1) substantial evidence of union animus, (2) lack of a convincing rationale for refusal to hire the predecessor's employees, (3) inconsistent hinng practices or overt acts or conduct evidencing a discriminatory motive, and (4) evidence supporting a reasonable infer- ence that the new owner conducted its staffing in a manner precluding the predecessor's employees from being hired as a majority of the new owner's overall work force to avoid the Board's successorship doctrine Considering the instant case in light of the foregoing precedent it is initially clear that White Oak meets prac- tically all the criteria of a successor to Hallmark in the washer operation Thus, it conducted the same business operation in the same facility utilizing employees in the same jobs and working conditions using the same ma- chinery and equipment producing the same product and service Moreover, it served the same major customers of Hallmark, a factor also considered by the Board in successorship cases See Stewart Chevrolet, 262 NLRB 362, 363 (1982) It is true that Hallmark was at one time a larger oper- ation of which the washer was only a part It is on this point, and the fact that the washer, once acquired, was only a part of White Oak's operation, that White Oak bases it mitial defense that the unit specified in the com- plaint was not shown to be appropriate and therefore White Oak cannot be a successor to Hallmark Respond- ent in its brief accuses the General Counsel of trying to fragmentize White Oak so that the resultmg unit reflects neither Hallmark's old unit or White Oak's operation According to White Oak, if there was a "continuity of business, it was in an integrated mining/processing com- pany," and that "if the alleged 'continuity' is to the washer, then there is none because the 'washer' is inte- grated into the White Oak enterprise" I find no merit to Respondent's unit arguments The Board has said "that successorship obligations are not de- feated by the mere fact that only a portion of a former union-represented operation is subject to the sale or transfer to a new owner, so long as the employees in the conveyed portion constitute a separate appropriate unit, and they comprise a majority of the unit under the new operation" Stewart Granite Enterprises, 255 NLRB 569, 573 (1981) See also Louis Pappas' Restaurant, 275 NLRB 1519 (1985), G T d1 E Data Services Corp, 194 NLRB 719, 720-721 (1971) Mere diminution in the employee complement is no impediment to a finding of successor- ship See Lloyd Flanders, 280 NLRB 1216, 1219 (1986) Here, a unit of washer production and maintenance em- ployees appears appropriate Such a unit represents the complete remainder of the Hallmark unit resulting from Hallmark's diminished operation It is composed of em- ployees performing related work under the same work- ing conditions No other employees of White Oak are 266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD within 2 miles of the washer employees and White Oak's other employees A single location unit of a multifacility employer is presumptively appropriate Westbrook Bowl, 293 NLRB 1000 (1989), Hegins Corp, 255 NLRB 1236 (1981) Thus, I conclude the washer employees constitute a separate appropriate unit, and there are no unit consid- erations here which serve to bar a successorship finding Considering the above, I conclude that White Oak meets all the criteria of a successorship except, obvious- ly, that it did not hire a majority of Hallmark's employ- ees leaving the continuity in the work force unestab- lished This factor does not, as noted, preclude a finding of successorship if White Oak was discriminatorily moti- vated in refusing to hire the Hallmark employees A con- clusion that it was so motivated depends on whether Yates was at the material times a supervisor and/or agent of White Oak, and, if so, whether he made the re- marks attributed to him which reflect union animus and tend White Oak's failure to hire the former Hallmark em- ployees was based upon union considerations While White Oak contends that Yates was not a super- visor, spokesman, or agent of White Oak, I find to the contrary Respondent argues that Yates had no authority to hire, fire, set rates of pay, direct work or "do any of the things that would cloak him with apparent author- ity" Yates had no authority to formulate or implement corporate personnel policy Thus, any statement attrib- uted to Yates, according to White Oak, is pure hearsay as to it The undisputed evidence reveals, however, that Whitfield in hiring Yates made it clear that running the washer was Yates' "baby" In support of this responsibil- ity Yates was authorized to pledge White Oak's credit up to at least $1000, 1° and there appears to have been no limit in the exercise of Yates' independent judgment in using his authority in this regard Moreover, Yates oper- ated the washer without the presence of any other White Oak management or supervisory official for most of the time the washer was operating 11 Besides being salaried Yates' employment benefits not shared by the other White Oak washer employees included a provided vehi- cle and insurance coverage It was Yates' further respon- sibility to keep the time of the washer employees, and there is no evidence that his function in this regard was merely ministerial or clerical Employees reported ab- sences and illnesses to Yates who determined whether work positions left vacant by employee absences would have to be filled And Whitfield testified that Yates had authority to grant employees time off Finally, although Yates was not shown to possess authority to hire em- ployees it is clear, if Whitfield's version of affairs is ac- cepted, that Yates' opinions regarding the skills of the former Hallmark employees were given controlling weight in White Oak's refusal to consider them for em- 10 Whitfield's testimony indicated $1000 was the upper limit of Yates' authonty to make purchases on White Oak's behalf, but his preheanng statement to the Board stated the limit was "$1000 or two" " Whitfield testified that he was a full-time employee of JEF Co, ap- parently another concern owned by Fortner, both before and after the acquisition of the Hallmark washer Accordingly, although he became the general manager of the washer operation It is difficult to perceive how he could have spent much time directly supervising the washer op- eration ployment It was Yates who recommended the use of contract welders and who selected and scheduled them when he determined they were needed Further it was Yates who prevailed on Whitfield to hire an additional employee in March based on Yates' perception of the need for one Yates was the only indi- vidual around the washer most of the time who could, and did, direct the work of the washer I find on this record that such direction was of a responsible nature and that, although Yates was not shown to have direct hire or fire authority, Whitfield accorded him sufficient authonty and discretion in the exercise of independent judgment in the operation of the washer as to constitute Yates a supervisor within the meaning of Section 2(11) of the Act as the General Counsel and the Union con- tend Thus, I conclude that Yates was hired by White Oak as, and he operated as, a supervisor at all material times after such hiring on February 1 The above conclusion supplies an additional cntena in- dicating White Oak's successorship to Hallmark, continu- ity in supervision See Aircraft Magnesium, supra Even if not a statutory supervisor for Hallmark, he was Hall- mark's washer superintendent during the last few months of its operation He provided the immediate supervision of the employees, and this remained unchanged after White Oak assumed the washer operation 12 White Oak in its brief interposed a number of addition- al defenses to the complaint allegations It contends that the three Hallmark employees never applied to White Oak for jobs, that there was no evidence that supports knowledge of futility of application on their part, that they were not, in any event, qualified for the White Oak jobs, that there was not evidence of union animus on White Oak's part or any evidence that White Oak's staff- ing plan was a scheme or sham to avoid hiring the Hall- mark employees, and, finally, that the Union never re- quested White Oak to recognize or bargain with it At least three of these contentions, the lack of applications, the lack of qualifications, and the absence of a bargaining request may be treated separately Resolution of the re- maining contentions are dependent, in my view, upon whether Ford or Yates is to be believed With respect to the absence of applications the Board has stated that "when it is futile for employees to file ap- plications, an employer is barred from asserting that it lawfully failed to hire them because of the absence of ap- plications" Shortway Surburban Lines, 286 NLRB 323 (1987) See also Love's Barbegue Restaurant, supra at 81- 82 fn 1, Mason City Dressed Beef 231 NLRB 735 (1977) Knowledge of the former Hallmark employees of the fu- tility of filing an application here is immaterial in the presence of evidence that they did not know they were required to file one but did, in fact, desire employment Here the three Hallmark employees made known their 12 Whitfield testified that he had told Yates his duties would change from what they were at Hallmark However, in his preheanng statement to the Board he stated he told Yates his duties would be pnmanly as they had been at Hallmark There may be no contradiction here when consid- ered in light of the fact that Yates' duties at White Oak appear to have been expanded from what they had been at Hallmark, at least with re- spect to selecting suppliers and pledging credit HALLMARK & SON COAL CO 267 desire for employment by showing up at the washer premises on February 1 and consecutive days thereafter Moreover, Whitfield admittedly knew of their desire for employment with White Oak because of his awareness of Yates' version of the discussion at Ford's house on Feb- ruary 11 and Yates' commitment to "recommend" them 23 Their applications were never solicited by White Oak prior to its employment of other employees whose applications were solicited And while White Oak's name and telephone number may have been placed at the washer worksite, the record does not show when this was done The only contact with White Oak the former employees had prior to February 22 was through Yates who did not advise them of the need for applications Fi- nally, and in any event, Whitfield had admittedly decid- ed on Yates' assessments of their respective skills that the former Hallmark employees were unqualified, and had already hired Boyd, at least temporarily, on February 5 or 6 Under these circumstances, I find the failure of the three Hallmark employees to file applications constitutes no defense to Respondent for such filing would have been futile Notwithstanding the fact that the Hallmark employees involved had run the washer for several months prior to the White Oak lease of the washer, White Oak claims they were not qualified for the work under its concept of operation and its need for employees with multiple skills This claim has a certain appeal to It for obviously an old facility like the washer needed diligent maintenance and repair Having employees with welding and electrical skills would reasonably appear to be most desirable Crit- ical weldmg and electrical work on the washer had pre- viously been done by Fred Hallmark, Don Crane, and Ray Calvert, salaried nonumt Hallmark employees But Ford testified that he had also done welding and electri- cal work on the washer changing out electrical motors and wiring them with high voltage Price, on the other hand, gave conflicting testimony on his having done welding on the washer Thus, he initially testified he had done some minor welding work, and had changed out one electric motor but did not wire it On cross-examina- tion, in contradiction of his earlier testimony he said Hallmark, Crane, and Calvert did all the welding and electrical work, and that neither he, Ford, nor Tuck had done "any of that work" Similarly, Fred Hallmark testi- fied contrary to Ford that Ford had done a small amount of flat or unskilled welding but the electrical work, "what little there was of it" in the last 4 months of Hall- mark's operation was done by Crane or Calvert Considering the foregoing, the conflict between Price and Ford regarding their usage as welders and electri- cians and the less biased testimony of Fred Hallmark, I conclude that if welding and electrical skills were bona fide qualifications for employment with White Oak, nei- ther Ford, Price, nor Tuck possessed such qualifications Ford may have done some welding similar to the minor welding done by Pnce; but I conclude that his claim to significant welding as well as electrical skills was an ex- aggeration la Rather than recommend them Yates in fact depicted their skills to Whitfield as rather poor White Oak's contention regarding the absence of a demand for recognition of bargaining by the Union need be only briefly addressed Where an employer attempts to defeat application of the Board's successorship doc- trine through unlawful discrimination in the failure or re- fusal to hire the predecessor's employees, a demand for recognition or bargaining by the Union is unnecessary for finding an 8(a)(5) violation See Love's Barbegue Res- taurant, supra, Fremont Ford Sales, supra Obviously a bargaining demand in such a situation would be a useless gesture smce the Union could not establish its majority status in light of the unremedied discrimination by the employer In the final analysis the case of the General Counsel and the Union boils down to the slender evidentiary reed of Ford's testimony regarding remarks he attributed to Yates on February 11 Such testimony, if believed, would supply not only evidence of union animus, but direct evidence of the unlawful failure to hire which ex- poses as pretext the absence of qualifications of the former Hallmark employees The credibility resolution to be made between the testimony of Yates and that of Ford is therefore critical Neither of the two can be re- garded as disinterested or impartial Ford was uncorro- borated on the critical remarks, and Yates was uncorro- borated on his denials of the remarks, and was specifical- ly contradicted by Ford, Price, and Tuck regarding a meeting with the three of them where they allegedly dis- cussed White Oak, Hallmark, and McWane A basis may be found in the record for discrediting both Ford and Yates Ford was contradicted on several aspects of his testimony, notably on his attribution to Fred Hallmark of a statement that he was going to give Yates a $3000 raise before White Oak took over Hall- mark credibly denied the remark as well as another claim by Ford that Ford had had several conversations with Hallmark about White Oak assuming the washer oper- ation Furthermore, it stnkes me as unlikely that an em- ployer going out of business within a week or two for economic reasons would be so generous as to announce a substantial raise for a supervisor, particularly in the pres- ence of unit employees Ford also failed to include in his preheanng statement to the Board investigator any of the statements he attributed to Yates related above which took place prior to the shutdown of Hallmark Yates, on the other hand, had to have his recollection refreshed by his preheanng statement after which he contradicted earlier testimony that Whitfield had not mentioned the Union to him during his employment interview In his preheanng statement he related that Whitfield had in fact said that there might be hard feel- ings from the men (Hallmark employees) toward Yates because White Oak was not "union" And Yates was overwhelmingly contradicted by Ford, Price, and Tuck regarding Yates' meeting the three at Ford's house where the three allegedly tried to extract an admission from Yates that McWane was assuming the washer oper- ation and was refusing to hire them Further, Yates in his preheanng affidavit omitted any reference to Price and Tuck being present when he went to Ford's home He similarly failed to note in that statement that Ford had 268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD on that occasion pressed him to say that "they" would not hire him although the statement included a specific denial that he told Ford or any other employee that White Oak would not hire them because of union prob- lems From a demeanor standpoint neither Ford nor Yates exhibited any clear manifestations of untruthfulness Both appeared vague at times but understandably so since both were testifying regarding statements and incidents which took place some 14 months prior to the hearing Both reflected a degree of nervousness, Ford somewhat less than Yates, but in neither case was it excessive or unnatural Accordingly, the demeanor of these two was not as helpful in determining the truth of their respective contentions as a trier of fact would prefer I therefore am unable to base a credibility resolution here on demeanor Considering the record as a whole, however, I am per- suaded that Ford's testimony has the most circumstantial support and must be credited First of all in this regard, it is clear from the testimony of Yates and Whitfield that Whitfield was aware that Hallmark's employees had been represented by a union and that White Oak intended to operate on a nonunion basis Secondly, although Whit- field admittedly wanted whatever employees hired by White Oak to have electrical and welding skills he made no attempt to ascertain which of Hallmark's previously laid-off employees may have possessed such skills Ac- cording to the testimony of Union President Harris, un- contradicted in this regard, a number of Hallmark's laid- off employees possessed such skills even assuming that the skills of Ford, Price, and Tuck in this area were in- adequate The absence of inquiry reflects White Oak's clear disinterest in the Hallmark employees Such disin- terest continued as shown by White Oak's employment of Boyd on February 6 to do, not electrical or welding work, but loading work at the washer even though it had made no determination at that point to hire Boyd permanently This disinterest continued even through March when Whitfield hired an additional employee when White Oak knew by virtue of the picketing and the Union's claim to the jobs that the former Hallmark employees desired employment with White Oak And by Yates admission, at least as of February 11 when Ford allegedly pressed Yates to say that White Oak would not hire the former Hallmark employees, Yates could reason- ably conclude that they in fact wanted employment It seems exceedingly strange that Yates, who had been given White Oak employment applications did not offer one to Ford on that occasion or even suggest that he submit one If union considerations were not a factor it is more likely that he would have done so Thirdly, while neither Ford, Price, nor Tuck were li- censed electricians or certified welders, as already noted Ford and Price had done welding work on the washer though mostly of a minor nature In any event, while welding and electrical skills were obviously helpful in the maintenance of the washer operation it is clear that White Oak did not rely solely on its employees to per- form all such work As Whitfield admitted, welding work which could not be completed in the normal work- day was contracted out so having employees do all the welding work was neither absolutely necessary or even expected As Yates testified, it was necessary to contract out some of the welding because of the inadequacy of the White Oak welding equipment Further, it is to be recalled that Fred Hallmark testified that Hallmark never had an electrician at the washer, and that there "was very little electricals up there to be done" Thus, while having an electrician at the washer may have been bene- ficial, White Oak's emphasis on it as a necessary skill for its employees to have appears to be somewhat exaggerat- ed The necessity for electrical and welding skills under the circumstances smacks of pretext and lends substance to the ulterior motivation revealed in the remarks attrib- uted to Yates by Ford The foregoing, in my opinion, reveals a pattern of de- termination not to use the former Hallmark employees regardless of their skills, a pattern wholly consistent with the remark Ford attributed to Yates 14 I therefore credit Ford's testimony that Yates did in fact tell him that the former employees of Hallmark would not be employed by White Oak because of the fear of union problems I find that Yates' statement to Ford was independently co- ercive and violative of Section 8(a)(1) of the Act as al- leged In view of Yates' statement to Ford reflecting both union animus and motivation, and since Ford and Price at least had some minor welding skills and other- wise had satisfactory employment records in operating the washer with Hallmark, I find White Oak's reliance on the possession of welding and electrical skills as a re- quirement of employment was pretextural, and that the real reason was the union representation of Ford, Price, and Tuck 15 Put another way, I do not believe that Re- spondent has overcome the General Counsel's prima facie case of unlawful discrimination based upon Ford's credited remarks by demonstrating that Respondent would not have hired Ford, Price, and Tuck due to their lack of skills and without regard to their union represen- tation Shortway Suburban Lines, supra Compare, Panco Petroleum Go, 294 NLRB 103 (1989), R & L Cartage & Sons, 292 NLRB 530 (1989) In light of this conclusion, I find Respondent discnmmatonly refused to employ the former Hallmark employees because of their representa- tion by the Union in violation of Section 8(a)(3) and (p of the Act Since I have found that White Oak discriminated in hinng against the former Hallmark employees, it follows that "but for" such discrimination the Union's status as the exclusive bargaining representative would have sur- 14 In reaching this conclusion I am not unmindful of the testimony of Whitfield that he interviewed an individual from a company whose em- ployees were represented by the Union and that individual came and checked the washer operation, but did not take the job because of the "pickets' I am able to give this testimony little weight because not only was It self-serving and uncorroborated, but the interview occurred after the picketing began on February 22, and thus after Respondent had al- ready employed the employee complement It had decided upon at that point Moreover, Whitfield's testimony did not clearly establish that a job offer was made to the man 15 Tuck was the only former Hallmark employee to whom poor work was attributed Thus, Fred Hallmark testified that Tuck was unable to use the front end loader without getting Into the "base" or pad when scooping up coal There was no evidence that Tuck was ever reprimand- ed or warned of any deficiency in this regard I therefore find any work deficiency of Tuck, an experienced equipment operator, was exaggerated HALLMARK & SON COAL CO 269 vived White Oak's assumption of the Hallmark washer Moreover, had White Oak not acted discriminatorily it would have fulfilled all the elements of a full successor- ship to Hallmark in operation of the washer According- ly, I find that White Oak violated Section 8(a)(5) as well as Section 8(a)(3) See Love's Barbeque, supra at 82 Fi- nally, and also because of the unlawful discnmmation practiced by White Oak, I find that it unlawfully violat- ed Section 8(a)(5) of the Act when it unilaterally set the initial terms of employment of the washer employees without bargaining with the Union See Potter's Chalet Drug, 233 NLRB 15, 20 (1977), enfd mem 584 F 2d 980 (9th Cir 1978), Love's Barbeque, supra CONCLUSIONS OF LAW 1 Respondent White Oak Mining Company, Inc is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 The Union, United Mine Workers of Amenca, Local Union 2438, is a labor organization within the meaning of Section 2(5) of the Act 3 All production and maintenance employees em- ployed by Respondent at its coal preparation facility near Sipsey, Alabama, excluding coal inspectors and weigh bosses (where employees are paid by the ton), watchmen, clerks, engmeenng, and technical employees, and supervisors as defined in the Act constitute a unit appropnate for the purposes of collective bargaining within th meaning of Section 9(b) of the Act 4 At all times material, the Union has been the exclu- sive representative of all the employees in the aforesaid unit for the purposes of collective bargaining with re- spect to rates of pay, wages, hours of employment, and other terms and conditions of employment within the meaning of Section 9(a) of the Act 5 Respondent, by informing employees that it would not hire them because of their affiliation with the Union, violated Section 8(a)(1) of the Act 6 By refusing to hire the employees of Hallmark & Son Coal Company, following the lease of the coal prep- aration facility from Hallmark, because of the union af- filiation of these employees and to avoid an obligation to bargain with the Union, Respondent violated Section 8(a)(3) and (1) of the Act 7 Respondent is the successor employer to Hallmark & Son Coal Company in the operation of the coal prepa- ration facility, and by failing to recognize and bargain with the Union since February 15, 1988, as the exclusive collective-bargaining representative of the employees in the above unit, including by departing from preexisting rates of pay and benefits without prior notification to and consultation with the Union, Respondent violated Sec- tion 8(a)(5) and (1) of the Act 8 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that White Oak discriminatorily refused employment to the former employees of Hallmark I shall recommend that White Oak be ordered to offer them employment in those positions in which they would have been hired in the absence of the discrunmation against them, or, if those positions no longer exist, msubstantially equivalent positions, without prejudice to their semonty or other rights or pnvileges previously enjoyed, dis- charging, if necessary, employees hired from other sources to make room for them and make them whole for any loss of earnings that they may have suffered due to the discnmmation practiced against them, as pre- scnbed in F W Woolworth Co, 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987) 16 I shall also recommend that White Oak be ordered to bargain with the Union concerning any terms and condi- tions of employment on which they would have been re- quired to bargain had the Union's majonty status been acknowledged on February 15, 1988, the date that White Oak assumed operations of the coal preparation facility near Sipsey, Alabama Further, White Oak shall be or- dered to cancel, on request by the Union, changes in rates of pay and benefits or other terms and conditions of employment unilaterally effectuated and make the em- ployees whole by remitting all wages and benefits that would have been paid absent the unlawful conduct as found from February 15, 1988 11 [Recommended Order omitted from publication ] 15 In accordance with the Board's decision in New Horizons for the Re- tarded, interest on and after January 1, 1987, shall be computed at the "short term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 17 The General Counsel urges that backpay should continue beyond the time when White Oak surrendered its lease of the washer facility, since the washer employees were transferred to another operation of White Oak albeit not a washer operation I find the record insufficient to support any conclusion on this point and shall leave the matter for deter- mination at the compliance stage of the proceeding The bargaining order provided comtemplates, however, that Respondent bargain with the Union concerning the effect of the shutdown of the washer on unit em- ployees