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UNPUBLISHED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Affirmed in part and remanded in part by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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.