Mingo Logan Coal Co. v. National Labor Relations Board

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MINGO LOGAN COAL COMPANY, 
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,  No. 02-1205
Respondent,
UNITED MINE WORKERS OF AMERICA,
Respondent-Intervenor.

MAHON ENTERPRISES, INCORPORATED, 
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,  No. 02-1261
Respondent,
UNITED MINE WORKERS OF AMERICA,
Respondent-Intervenor.

NATIONAL LABOR RELATIONS BOARD, 
Petitioner,
UNITED MINE WORKERS OF AMERICA,

Petitioner-Intervenor,
No. 02-1360
v.
MINGO LOGAN COAL COMPANY;
MAHON ENTERPRISES, INCORPORATED,
Respondents.

2 MINGO LOGAN COAL v. NLRB
On Petitions for Review and Cross-application
for Enforcement of an Order
of the National Labor Relations Board.
(9-CA-31797, 9-CA-31939)
Argued: April 3, 2003
Decided: June 17, 2003
Before WIDENER, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed in part and remanded in part by unpublished opinion. Judge
Gregory wrote the opinion, in which Judge Widener joined. Judge
Niemeyer wrote an opinion concurring in the judgment.
COUNSEL
ARGUED: Forrest Hansbury Roles, HEENAN, ALTHEN &
ROLES, L.L.P., Charleston, West Virginia, Petitioners. Jill Ann Grif-
fin, NATIONAL LABOR RELATIONS BOARD, Washington, D.C.,
for Respondents. ON BRIEF: George J. Oliver, SMITH MOORE,
L.L.P., Raleigh, North Carolina, for Petitioner Mahon. Arthur F.
Rosenfeld, General Counsel, John E. Higgins, Jr., Deputy General
Counsel, John H. Ferguson, Associate General Counsel, Aileen A.
Armstrong, Deputy Associate General Counsel, Frederick C. Havard,
Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for Respondent Board. Grant Crandall, Deborah
Stern, Judith Rivlin, UNITED MINE WORKERS OF AMERICA,
Fairfax, Virginia, for Respondent UMW.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
MINGO LOGAN COAL v. NLRB 3
OPINION
GREGORY, Circuit Judge:
This appeal follows from the National Labor Relations Board’s
(the "Board") affirmance of an Administrative Law Judge’s ("ALJ")
decision and recommended order finding that the appellants, Mingo
Logan Coal Company ("Mingo") and Mahon Enterprises, Inc.
("Mahon") (collectively, the "Employers") were joint employers who
had committed numerous violations of the National Labor Relations
Act (the "Act") by, inter alia, threatening, intimidating, and ultimately
firing 18 mine workers for their union organizing activity. The
Employers challenge the sufficiency of the evidence underlying the
ALJ’s findings. Additionally, the Employers argue that the Board’s
remedial order, which requires the Employers to offer employment to
the discharged laborers as well as backpay, constitutes an abuse of
discretion. Because there is substantial evidence to support the ALJ’s
findings, the liability judgment should be affirmed. However, because
the Board’s remedial order unfairly deprives the Employers of the
opportunity to litigate whether Mahon employees would have been
hired by Mingo, we remand to the Board for further proceedings con-
sistent with this decision.
I.
The decision of the ALJ, as adopted by the Board, contains an
extensive discussion of the facts underlying this case. Because we
affirm the Board’s decision on liability, we shall limit our factual dis-
cussion herein largely to the ALJ’s findings.
Mingo commenced operations in its Mountaineer Mine (the
"Mine") in West Virginia in June 1991. The Mine is a high-
production, longwall mine, which produces large quantities of metal-
lurgical and seam coal. The development of the mine relies upon both
continuous miner and logwall mining techniques. From the beginning
of its operations, Mingo relied upon outsourced contract labor. The
primary supplier of this labor was Mahon. Most of Mahon’s employ-
ees were experienced miners, 80% of whom had experience working
in unionized mines.
4 MINGO LOGAN COAL v. NLRB
In the context of the mining activity, employees of both companies
worked closely together. To better coordinate this joint activity,
Mingo undertook measures to consolidate management of the two
firms. Accordingly, Mingo employed a staff of foremen to oversee
both inby and outby work. Among the supervisory staff retained by
Mingo were several ex-Mahon foremen. The consolidation of opera-
tions often involved the placement of Mahon laborers directly under
Mingo supervision. As such, the record contains numerous illustra-
tions of the blurring of the lines separating the two companies. For
example, Mingo Foreman James Allen, without consulting Mahon
President Amon Mahon, asked Mahon employee Stewart Vint to take
a job directly under his supervision. Though still a Mahon employee,
Vint accepted this position with the added condition that all Mahon
employees recognize Vint as having the capacity to speak for Allen.
Other forms of Mingo control over Mahon laborers included the
determination of tasks to be performed, staffing levels, wage rates,
wage increases as well as the direct supervision of labor. Addition-
ally, Mingo was involved in the discipline of Mahon employees.
The two Employers also enjoyed a referral relationship, wherein
employment with Mahon was often represented as a stepping-stone to
eventual employment with Mingo. As part of this relationship, Mingo
exerted influence over Mahon employees who hoped eventually to
gain employment with Mingo. For example, when Dennis Evans, an
experienced miner with some unionized mine experience applied for
a position with Mingo, he was referred to Mahon and told that the job
would represent "a foot in the door to get a job with Mingo Logan."
In another case, Mahon employee David Massey was asked by Mingo
to become a crew leader, a position he originally declined. When told
that taking the position would "be like putting your first step in the
door" at Mingo, Massey agreed to take the position. Pleased with
Massey’s performance, as well as the fact that Mingo had not heard
any rumors regarding his association with union organizing activity,
Mingo directed Mahon to grant Massey a pay raise.
However, in cases where an employee was associated with union
organization, his prospects with Mingo were substantially diminished.
Evans, for example, at the behest of several Mingo supervisors who
were pleased with his work, made repeated efforts to move to Mingo.
Evans testified that a Mingo supervisor informed him that the real
MINGO LOGAN COAL v. NLRB 5
reason why he was not hired by Mingo was his brother’s union activ-
ity.
According to the Employers, these instances of joint control repre-
sented the rare exception rather than the rule. The Employers assert
that Mahon exercised independent control over the vast majority of
its 350 to 400 employees. Furthermore, the Employers maintain that
cases involving supervision or decision-making regarding the essen-
tial terms of employment by Mingo over Mahon laborers were highly
unusual. According to the Employers, Mingo exerted the degree of
control over Mahon labor that would customarily characterize an out-
sourcing relationship. That is, Mahon made changes in response to
Mingo’s evolving needs. The Employers also maintain that Mingo
was unaware of the union experience of the Mahon laborers that it
was found to have turned away. Furthermore, the Employers maintain
that Mingo hiring decisions were motivated only by their specific
labor requirements.
The United Mine Workers of America (the "Union") began orga-
nizing activity at the Mine in January 1994.1 About one month later,
the Union held its first mass union meeting, at which time the cam-
paign became open. Union organizers employed customary means in
support of their campaign, including the distribution of literature and
stickers. The Employers responded decisively to the news of the cam-
paign. This response included interrogations of employees regarding
their own involvement in union organization as well as the involve-
ment of their peers. Mingo management also threatened to terminate
employees suspected of involvement with the union campaign. The
record also contains evidence that Mingo threatened, in the event the
campaign were successful, to terminate its relationship with Mahon
and close the Mine. Mahon employees who were seen demonstrating
support for the Union, by for example wearing stickers on their hel-
mets, were warned to remove the stickers or risk endangering their
prospects of obtaining a position with Mingo. The Employers devel-
oped stickers of their own in opposition to the campaign, which they
distributed to employees accompanied by the suggestion that they be
displayed. The Employers went as far as to tell Massey, who rode to
1
The Union was the charging party before the Board and intervened on
the side of the Board in this action.
6 MINGO LOGAN COAL v. NLRB
work with an open Union supporter, to terminate all association or
risk losing his job.
In late March 1994, Mingo informed Mahon that there would be
an upcoming layoff of Mahon employees due to a decrease in demand
for laborers. Amon Mahon organized a meeting with his supervisors
to discuss the issue. At this meeting, according to a statement attri-
buted to Assistant Foreman Danny Colegrove, Mahon said that his
firm would have to fire about 20 employees to "make them an exam-
ple to everybody else." The ALJ found, over the Employers’ denials
that such an event ever occurred, that a few days before the layoff was
announced, senior management of Mingo and Mahon met to deter-
mine which employees to lay off. On the day of the layoff, Amon
Mahon informed the 18 employees who had been selected that he had
no control over the decision. Among the 18 workers who were termi-
nated, were some of the most senior and experienced laborers at the
Mine. 17 of the 18 had signed union authorization cards.
Following the layoffs, the Union filed unfair labor practice charges.
Upon completion of its own investigation, the Board’s General Coun-
sel filed a complaint alleging that Mingo and Mahon were joint
employers, and that they had intimidated, threatened, and ultimately
laid off 18 employees because of their union activity. After a 13-day
hearing, the ALJ issued its decision and recommended an order find-
ing that the Employers had committed violations of Section 8(a)(1) of
the Act. 29 U.S.C. § 158(a)(1). The ALJ also found that the Employ-
ers were joint employers and had violated sections 8(a)(1) and (3) of
the Act by discriminatorily laying off 18 employees. 29 U.S.C. § 158(a)(1) and (3). The Board affirmed the ALJ’s decision.2 In addition to
ordering the Employers to cease and desist from the unfair labor prac-
tices, the Board’s decision requires, inter alia, that the Employers
offer the laid-off employees their former positions and make them
whole for lost wages.
2
We limit our discussion of the procedural history to the relevant ALJ
and Board determinations, omitting a discussion of proceedings related
to the election.
MINGO LOGAN COAL v. NLRB 7
II.
The ALJ’s factual findings are conclusive if supported by substan-
tial evidence on the record as a whole. 29 U.S.C. § 160(e); Universal
Camera Corp. v. NLRB, 340 U.S. 474, 478 (1951). However, we may
set aside a Board decision when we "cannot conscientiously find that
the evidence supporting that decision is substantial, when viewed in
the light that the record in its entirety furnishes, including the body
of evidence opposed to the Board’s view." Id. With respect to credi-
bility determinations, which are an important part of the Employers’
challenge on appeal, we uphold the ALJ’s determinations absent "ex-
ceptional circumstances." NLRB v. Air Products & Chemicals, Inc.,
717 F.2d 141, 145 (4th Cir. 1983). Finally, we review remedial orders
for abuse of discretion. See Sure-Tan, Inc. v. NLRB, 467 U.S. 883,
898-899 (1984) (The Act vests "in the Board the primary responsibil-
ity and broad discretion to devise remedies that effectuate the policies
of the Act, subject only to limited judicial review."). Accordingly, we
give the ALJ’s determination controlling weight unless the remedy is
"arbitrary, capricious, or manifestly contrary to the statute." ABF
Freight System v. NLRB, 510 U.S. 317, 324 (1994) (citation omitted).
III.
A. THE SECTION 8(A)(3) VIOLATION
This case turns upon the conflicting factual contentions of the par-
ties with respect to whether the layoff was retaliatory. We shall
review the Employers’ principal arguments, and then assess them
against the Board’s counter-arguments in light of the appropriate stan-
dard of review. In each case, we find that there is substantial evidence
to support the ALJ’s adverse determination.3 We shall proceed by
3
The Board found that Mingo and Mahon violated Section 8(a)(1)
when its supervisors engaged in an anti-union campaign and took mea-
sures including coercive interrogations and threats of retaliation. This
issue is a bit unusual because the Employers do not properly contest the
ALJ’s findings in their brief. Rather than contesting these allegations,
they include a footnote arguing that the findings are based upon faulty
credibility determinations. Br. of Employers, at 25 n.7. They then indi-
cate that they are unable to develop their position due to space con-
8 MINGO LOGAN COAL v. NLRB
addressing the Employers’ primary arguments surrounding the central
factual questions: 1) whether the firing was motivated by anti-union
animus; and 2) whether the Employers are joint employers. We shall
then address the remedy separately.4
1. Animus
The Employers argue that the ALJ’s determination that Mingo
maintained an anti-union hiring policy, which it found to evidence
anti-union animus, is not supported by substantial evidence. The
straints. Finally, in their Reply Brief, the Employers argue that the
existence of certain violations does not automatically constitute substan-
tial evidence of other violations. Reply Br. at 7.
We review these arguments under the standard for challenges against
the ALJ’s credibility determinations. This issue is relevant because the
findings of hostility and coercion may serve to buttress the ALJ’s find-
ings of animus in the context of the Section 8(a)(3) analysis. See NLRB
v. Frigid Storage, Inc., 934 F.2d 506, 510 (4th Cir. 1991)("[T]he Com-
pany cannot contest certain charges in a vacuum by not contesting others.
The unchallenged violations remain in the case, lending their aroma to
the context in which the issues are considered." (internal quotation and
citation omitted)). We find that there is substantial evidence to support
the Board’s findings of violations of Section 8(a)(1). The Employers
have not demonstrated that the credibility determinations between con-
flicting testimony upon which these findings rest are exceptionally
strained or invalid. The record offers ample testimony regarding threats,
intimidation and coercion. Although, there is no need to assume that the
existence of the Section 8(a)(1) violation constitutes per se evidence of
the 8(a)(3) violations, it may buttress the overall validity of the ALJ’s
findings. We shall look to this finding in our overall assessment of ani-
mus.
4
One issue that does not fit into this overall scheme is the question of
whether one of the discharged employees, David Massey, was a foreman,
and therefore not entitled to protection under the Act. The ALJ found
that Massey was not a foreman. His finding was supported by substantial
evidence. Amon Mahon himself admitted that he never told Massey that
he was a foreman, that he had no knowledge of anybody ever referring
to him as such, and that there were no payroll records designating him
as a foreman.
MINGO LOGAN COAL v. NLRB 9
Board relied upon testimony of employees such as Evans, who as dis-
cussed above, learned from his Mingo supervisor that he would not
be hired, despite strong support, because of his brother’s organizing
activity. The Employers respond that Mingo employee Jewell, who
had explained the hiring decision to Evans, denied making this state-
ment. Br. of Employers, at 4. The Employers also claim that there is
no evidence that Mingo knew of the employees’ union background,
and therefore cannot have maintained an anti-union hiring policy.
Contrary to these objections, there is ample evidence upon which
the ALJ could have found the existence of such a policy. The ALJ
cited numerous instances in which employees were warned that they
would not be able to obtain employment with Mingo if they displayed
support for the union. Mahon employee Massey, who was told that
his position with Mahon would be a foot in the door, and for whom
Mingo had arranged a pay raise for his performance and apparent lack
of union activity, was later discharged. Massey was seen wearing a
pro-union sticker on his helmet. Massey was also told by Mingo Fore-
man Cook that Mingo would never hire Mahon workers who had
signed a union card. Additionally, other Mahon employees testified
that Cook had warned them to remove pro-union stickers from their
helmets, or risk their prospects of employment with Mingo.
The record also contains substantial evidence to refute the Employ-
ers’ contention that they were unaware of the union activity occurring
at the Mine. For example, the Employers stipulated that they were
aware by the time of the layoff that the campaign was under way.
Additionally, the violations found under Section 8(a)(1) buttress the
ALJ’s finding of an animus inconsistent with objective hiring. The
threats and interrogations found to have occurred cannot easily be rec-
onciled with a neutral policy.
The Employers next argue that the ALJ abused his discretion by
relying upon the testimony of Stewart Vint to establish that Amon
Mahon based his termination decision upon union related grounds.
Before the ALJ, Vint testified that he was informed by Colegrove, a
senior Mahon employee, that Mahon would need to lay off pro-union
employees as an example to the others. The Employers argue that this
testimony should not have been credited because it was denied by
both Colegrove and Mahon. The ALJ acknowledged the denials, but
10 MINGO LOGAN COAL v. NLRB
made a specific credibility determination that Vint was credible.
There is obvious reason to suspect the veracity of these denials.
Accordingly, the ALJ made a credibility determination in the face of
conflicting accounts.5 The Employers have presented no exceptional
circumstances that should cause us to reverse the ALJ’s determina-
tion. Additionally, it is important to note that Colegrove’s comments
to Vint were found to be coercive in violation of Section 8(a)(1). Spe-
cifically, the ALJ found that Colegrove’s interrogations regarding
union activity combined with his comments regarding Mahon’s plans
constituted a threat to Mahon employees. In light of the stipulation
and other strong evidence of awareness of the campaign, the Employ-
ers do not present a convincing argument for crediting Mahon’s
denial.
Finally, the Employers assert that there is no evidence to support
the proposition that Mahon was even aware of his employees’
involvement in the campaign. Appellant’s Br. at 23-28. However, this
argument is contradicted both by the Employers’ stipulation of aware-
ness and the credited evidence of witnesses regarding Mingo and
Mahon’s anti-union campaign in violation of Section 8(a)(1). The
Employers argue that the awareness of the campaign among his
supervisors cannot be imputed to Mahon. Br. of Appellant, at 26-28.
However, where a subordinate has knowledge of such a campaign,
which is highly relevant to his employer’s labor relations, it is not
unreasonable to infer that the knowledge has move upward.
5
The Employers challenge the ALJ’s admission of comments attri-
buted to Colegrove as hearsay because Colegrove lacked agency to speak
for his employer. However, the Employers designated Colegrove as a
supervisor in their answers and failed to attempt to amend their answers
until after the first week of trial, during which several harmful statements
had been attributed to him. The ALJ did allow the Employers to intro-
duce testimony and evidence regarding Colegrove’s status. Based upon
his review of this evidence, the ALJ concluded that Colegrove should be
regarded as a supervisor. This conclusion is supported by the record testi-
mony of employees who regarded Colegrove as a supervisor. Hence,
even if the ALJ erred by refusing to permit the Employers to amend their
answer, there is substantial evidence to support the designation of Cole-
grove as a supervisor.
MINGO LOGAN COAL v. NLRB 11
Hence, even putting aside the testimony directly attributing animus
to the Employers, in light of the ample evidence of the Employers’
awareness of the campaign, the findings of section 8(a)(1) violations,
and the Employers’ stipulation, we find that there was a substantial
basis for the ALJ’s finding that the layoffs were illegally motivated
by the Employers’ desire to prevent union organization.
2. Pretext
In an attempt to justify the layoffs on non-discriminatory grounds,
the Employers offer several arguments in support of the proposition
that the layoffs were prompted by legitimate business needs.
a. The Permit Denial
In January 1994, Mingo learned that it had not obtained an environ-
mental permit necessary to advance certain aspects of its work. The
Employers maintain that there was enough remaining work for the
current Mahon laborers to keep them occupied until April 1994. At
this time, according to the Employers, Mingo required fewer Mahon
employees to continue its mining activity. Additionally, Mingo cites
an analogous layoff that occurred in September 1992 due to a permit
denial. Reply Br. of Employers, at 13. At that time, Mahon was also
forced to lay-off a significant number of workers. The Employers
argue that the ALJ’s failure to address this prior incident constitutes
reversible error.
There is substantial evidence to support the ALJ’s finding that this
explanation is pretextual. First, Mingo Superintendent Frye testified
that there was no connection between the permit problem and
Mingo’s labor needs. Second, at the time of the layoff, the Employers
were budgeting for an annual increase of work hours. This increase
in hours also resulted in an increase in budgeted labor costs.
The Employers respond that although they may have been budget-
ing for increased hours and costs, they were still achieving cost sav-
ings by laying off the Mahon employees. Reply Br. of Employees, at
16-17. However, the ALJ was not bound to accept these explanations
as truthful. Substantial evidence supports the ALJ’s decision to reject
12 MINGO LOGAN COAL v. NLRB
the counter-intuitive proposition that layoffs were necessary due to a
lack of work while increased labor hours were being budgeted.
b. The Ten-Hour Shift
The Employers implemented a 10-hour shift for many of the work-
ers around the time of the layoff. They argue that this increase in
hours rendered unnecessary the Mahon laborers. The ALJ rejected
this explanation as pretextual. The ALJ did not accept this explana-
tion because of the history behind the schedule change. Mingo had
reduced the shift of the relevant laborers to 9 hours back in October
1993. It claimed that the laborers complained and requested a return
to a 10-hour work schedule. However, the employee survey upon
which the decision to return to the 10-hour shift was based was com-
pleted in January 1994. The ALJ found that Mingo delayed imple-
mentation of the change until April in order to be able to continue to
take advantage of cheaper Mahon labor before executing the layoff.
Despite the Employers’ contention that the real reason motivating the
change was employee satisfaction, there is nothing in the record to
suggest that the ALJ abused his discretion by rejecting their version
of the events.
3. Evidence of Rehire Offer
After the layoff, Mahon offered to rehire the employees. The
Employers argue that the ALJ’s refusal to admit this evidence is con-
trolling on the issue of animus. The Board takes the position that this
evidence is properly entertained during the compliance stage of the
proceedings, rather than during the determination of liability. Br. of
Board, at 51-52. According to the Board, this evidence may be intro-
duced at compliance to determine questions such as tolling of back-
pay liability. See Eldeco, Inc. v. NLRB, 132 F.3d 1007, 1014 (4th Cir.
1997). Furthermore, the Board argues that the offers were made after
the unlawful layoff. Although the Employers dismiss the distance as
trivial for the discharged laborers, the re-employment offers were
made for work sites up to 45 miles from the Mine. Hence, the ALJ
had substantial grounds to defer consideration of this evidence.
4. Joint-Employer Status
As noted above, the determination of whether two employers are
joint-employers for purposes of the imposition of liability under the
MINGO LOGAN COAL v. NLRB 13
Act, regardless of payroll relationships to each others’ employees, is
a question of fact. Hence, we must review the ALJ’s conclusion that
Mingo and Mahon were joint employers for substantial evidence. The
test for joint-employer status turns upon indicia of control. See, e.g.,
NLRB v. Jewell Smokeless Coal Corp., 435 F.2d 1270,1271 (4th Cir.
1970)(per curiam). Where one employer exercises meaningful forms
of control over the employees of the other, notwithstanding indepen-
dent contractor status, the Board may find joint employer status.
As discussed above, there is substantial evidence that Mingo exer-
cised a great deal of control over Mahon employees. Mahon laborers
were often directly supervised by Mingo supervisors. Mingo directed
the hiring and often promotion of Mahon employees. Mingo even
involved itself in the discipline of Mahon employees. The other
examples of control discussed earlier more than suffice to show the
influence Mingo exerted over Mahon. Mingo’s only response to this
overwhelming evidence is that the ALJ’s opinion refers only to sev-
eral isolated cases of joint control. Because the cases and evidence of
domination developed by the Board are substantial, there is no real
basis for challenging the ALJ’s finding of joint-employer status.
Hence, as joint-employers, Mingo and Mahon were found to have
been motivated by anti-union animus in their layoffs. The proffered
non-discriminatory explanations were found to be pretextual by the
ALJ. The ALJ’s findings were supported by substantial evidence. The
Employers’ counter-arguments regarding the credibility of conflicting
testimony and rehiring offers do not overcome the ALJ’s findings.
Hence, we affirm the ALJ’s imposition of liability.
B. THE REMEDY
The Board has broad discretion to fashion remedies so long as they
are not "arbitrary, capricious, or manifestly contrary to the statute."
ABF Freight System, 510 U.S. at 324. The Employers object to the
ALJ’s remedial order because it requires Mingo to offer employment
to all of the discharged Mahon employees. The ALJ adopted this rem-
edy because he found that to not require Mingo to hire the laid-off
Mahon employees would confer a benefit upon Mingo. That is, the
ALJ found that the employees would probably have been hired even-
tually by Mingo given Mingo’s hiring practices. The ALJ reasoned
14 MINGO LOGAN COAL v. NLRB
that if only Mahon were required to rehire the employees, Mingo
would benefit from their less costly, non-union labor. The Employers
object that this measure is punitive and that they never had an oppor-
tunity to litigate whether the employees would ever have been hired
by Mingo. Thus, they argue, the remedy places the discharged labor-
ers in a better position than they would have been otherwise, which
is contrary to the Board’s remedial power and purposes of the Act. Br.
of Employers, at 61-64.
The Board responds that although the ALJ made this recommenda-
tion, the Board reserved for compliance the issue of whether the
employees would have been hired by Mingo. The Employers, the
Board argues, will have an opportunity to address this factual ques-
tion at the compliance stage of the litigation.
The statement relevant to determination of the meaning of the
Board’s order reads:
We shall reserve for compliance the determination of when
the employees would have been transferred to the Mingo
Logan payroll, and thus when they would have begun
receiving Mingo Logan wages and benefits, in the absence
of the Respondents[’] unlawful discrimination.
This text may certainly be read as the Employers suggest. The ques-
tion is then whether there is substantial evidence in the record to sup-
port the assumption that all of the discharged employees would have
been hired by Mingo. The Employers argue that the record cannot
support such a determination because they never had a chance to liti-
gate this issue. At most, the ALJ points to a few examples of employ-
ees who had hoped to be employed by Mingo, such as Evans.
However, there is no real support in the record for a finding that the
remainder would have received such offers.
The Board cites NLRB v. Plumbers & Pipefitters Local Union No.
403, 710 F.3d 1418, 1420-21 (9th Cir. 1983), for the proposition that
where the Board acknowledges the necessity of additional proceed-
ings regarding compliance, we should interpret the Board’s order in
light of the expressed reservation. In this case, the Ninth Circuit
addressed an indefinite order, which left open the question of how
MINGO LOGAN COAL v. NLRB 15
large an award, if any, each wrongfully discharged employee would
receive. It was precisely upon this basis, the indefinite nature of the
award, that the Ninth Circuit interpreted the order as permitting the
parties to fully litigate issues of entitlement to compensation at com-
pliance. Despite the Board’s assertions to the contrary, the present
remedial order is quite clear. Additionally, the Board’s recognition of
the need for compliance proceedings to ascertain the timing of hiring
that it believed would have occurred, leaves little room for the
Employers to litigate whether or not the employees would have
received offers from Mingo. Accordingly, the present order is more
analogous to that reviewed by the Ninth Circuit in NLRB v. Fort Van-
couver Plywood Co., 604 F.2d 596 (9th Cir. 1979). There, the court
remanded part of an order requiring the reinstatement of laborers,
which left no possibility for the employers to litigate whether the
employees would have been laid off despite their violations. Id. at
1420. Here too, the order adopted by the Board leaves no opportunity
for the Employers to contest whether employment would have been
bestowed upon the employees, and instead assumes away this ques-
tion reserving for compliance only an inquiry regarding when such a
benefit would have been conferred. We therefore remand the order to
the Board so that it may alter its remedy or order proceedings in
which the Employers are afforded a full and fair opportunity to liti-
gate the premise upon which it rests. See Tri-Dent Seafoods, Inc. v.
NLRB, 101 F.3d 111, 116 (D.C. Cir. 1996).
IV. CONCLUSION
The ALJ’s findings of liability rested upon substantial evidence of
unfair labor practices by the Employers. The proposed remedy, how-
ever, should be clarified so that the Employers have an opportunity
to litigate the issue of whether the employees would have been hired
by Mingo. We therefore, affirm in part, remand in part.
AFFIRMED IN PART, REMANDED IN PART
NIEMEYER, Circuit Judge, concurring in the judgment:
While I cannot concur in the majority’s opinion, I concur in its
conclusion that the Board’s findings that respondent violated
§§ 8(a)(3) and 8(a)(1) of the National Labor Relations Act is sup-
16 MINGO LOGAN COAL v. NLRB
ported by substantial evidence. I also concur in the conclusions that
the Board’s remedial order is overreaching.