Amax Coal Co.

National Labor Relations Board - Board Decisions

Jul 20, 1979

243 N.L.R.B. 571 (N.L.R.B. 1979)

AMAX (OA. (COMPANY
Amax Coal Company and Northeast Wyoming Affili-
ated Coal Mine Employees-Independent, Peti-
tioner. Case 27 RC' 5342
July 20, 1979
DECISION AN) DIRECTION OF ELECTIONS
By MEMBERS JNKINS, PNI I ,() ANI) TRI tSI)AI
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer William J. Dal) of
the National Labor Relations Board. Following the
hearing and pursuant to Section 102.67 of the Na-
tional Labor Relations Board Rules and Regulations
and Statements of Procedure, Series 8, as amended.
the Regional Director tor Region 27 transferred this
case to the Board for decision. Thereafter, all the par-
ties filed briefs in support of their respective positions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board finds:
I. The Employer, a division of Amax Inc., a New
York corporation, is engaged in the mining and pro-
duction of coal in the States of Indiana, Illinois, Ken-
tucky, and Wyoming. The parties have stipulated,
and we find, that during the past year the Employer.
from its operations in Wyoming, shipped goods val-
ued in excess of $50,000 to points located outside the
State. The parties have stipulated, and we find, that
the Employer is engaged in commerce within the
meaning of the Act, and we further find that it will
affectuate the purposes of the Act to assert jurisdic-
tion herein.
2. The labor organizations involved claim to repre-
sent certain employees of the Employer.' The Operat-
ing Engineers and the UMWA contend, however,
that the Petitioner is not a labor organization within
the meaning of the Act. The record reveals that the
Petitioner is a nonprofit corporation, which, at the
time of the hearing, had approximately 80 dues-pay-
ing members. According to its constitution and by-
laws, it exists, in part, "to deal with employers con-
The International Union of Operating Engineers, Local 400 (hereinafter
referred to as the Operating Engineers) was permitted to intervene on the
basis of a showing of interest. The United Mine Workers of America. Local
1854 (hereinafter referred to as the UMWA) was permitted to intervene on
the basis of an expired contract It had with the Employer covering the em-
ployees at the Belle Ayr Mine.
cerning grievances, labor disputes. wages. rates ot
pay. hours of work, and all other terms and condi-
tions of work." Based on the foregoing. and the rec-
ord as a whole, we find that the Petitioner is a labor
organization within the meaning of Section 2(5) of the
Act. 2
3. A question affecting commerce exists concern-
ing the representation of certain emplo,ees of the
Employer within the meaning of Section 8(c)( I ) atnd
Section 2(6). and (7) of the Act.'
4. 'The Petitioner seeks to represent the production
and maintenance employees at the t:mploIer's Belle
Ayr and agle Butte mines in ('amphell ounty,
Wyoming, in a single overall unit. 4 Ihe Operating
Engineers also contends that the petitioned for unit is
appropriate. The MWA asserts that onlx separate
units for each mine are appropriate.' In agreement
with the Petitioner and the Operating Elngineers, the
Employer maintains that an overall unit including the
employees of both mines is appropriate.
The record reveals that in March 1972 the IIMWA
and the Employer entered into an agreement covering
the employees at the Belle Ayr mine, which was to
expire by its terms on November 12, 1974. It was not
until July 1973, however, that the Employer actuall\
began its coal mining operations at the mine. In Sep-
tember 1974, prior to the expiration date of that
agreement, the International Ulnion of Progressive
Mine Workers filed a petition seeking to represent the
employees at the Belle Ayr mine. The UMWA inter-
vened in that proceeding and won the election con-
ducted on November 22. 1974. Thereafter, on De-
cember 9, 1974, the UMWA was certified as the
exclusive bargaining representative for the produc-
tion and maintenance employees at the Belle Ayr
mine. Meanwhile, during the latter part of 1974, the
UMWA extended the then existing agreement for
two 30-day periods. However, on January 12, 1975.
that agreement finally expired and the UMWA began
a strike against the Employer. The Employer re-
opened the mine in March 1975, and although nego-
tiations continued up until February of 1976. the
UMWA and the Employer did not reach agreement
on another contract covering the employees at the
Belle Ayr mine.
2 N.. R.B v. Cabot Carbon Conmpuan and Cabot Shops Inc. 3
6
0 I S. 203
(19591; S H res & Conmpany. 212 NLRB 132 (19741; lane itatlion (Corpo
ration. 211 NLRB 824 (1974).
The issuance of our decision in United Mine Workers of 4 meri a ( 4ma·
Coal Co. A Dision of Ama, Inc . 238 NLRB 1583 (1977). renders moit
the UMWA's contention that a question concerning representallon could
not he raised while the charges in that case were pending before the Board
4 The Petitioner indicated that it would participate in a self-determination
election. it: under the circumstances of this case, the Board finds that such an
election is warranted
' In the alternative, the tlMWA indicated that it would participate in an
election in the unit petitioned fr in the event the Board finds such a unit to
he appropriate.
243 NLRB No. 73
571
DI)E(ISI()NS OF NAII()NAI I.AB()R REl.ATl(IONS H()OARD
Although there were only 50 to 60 employees work-
ing at the Belle Ayr mine in December 1974. the rec-
ord indicates that there were 185 employees working
there at the time of the hearing (November 1976) and
that the Employer's projections revealed that the fig-
ure would reach 236 by the beginning of 1978. With
respect to the Eagle Butte mine. the record discloses
that the Employer began initial operations there on
June 1, 1976. According to projections, however, the
actual production of' coal was not scheduled to begin
there until 1978, and thus, at the time of' the hearing,
all of the employees at Eagle Butte were involved in
preparatory tasks such as the removal of topsoil and
the construction of equipment. In November 1976
there were 13 employees working at the Eagle Butte
mine, all of whom had premanently transferred from
Belle Ayr. The Employer projected that there would
be 17 employees employed at Eagle Butte By the end
of 1977 and that this figure would increase to 30 by
the third quarter of 1978.
The record reveals that the Employer's division of-
fice is located in Gillette. Wyoming. The Eagle Butte
mine is situated approximately 8 miles north of that
office, while the Belle Ayr mine is located about 18
miles south of it. At the division office the Employer's
general manager presides over an administrative staff
composed of several department chiefs, who are re-
sponsible for various thcets of the operations at both
mines. The members of the staff include the assistant
general superintendent, the employee relations super-
visor, the division comptroller, and several individ-
uals responsible for egineering and environmental
tasks at both mines. Various members of this staff are
responsible for the centralized administration of pro-
duction scheduling, coal quality control, purchasing,
inventory, personnel records, accounting, banking.
budgeting, finance, engineering, tales, and security.
Specifically with regard to labor relations matters,
although both mines have superintendents who are
responsible for daily operations, these individuals are
directly responsible to and have frequent contact with
the assistant general superintendent. In fact, the
assistant general superintendent maintains daily tele-
phone contact with each mine superintendent and
visits both mines frequently. As a result, the two mine
superintendents possess only limited authority to re-
solve grievances or impose discipline. For example,
they must have all disciplinary actions above the oral
warning and written reprimand stage approved by ei-
ther the supervisor of employee relations or the assist-
ant general superintendent, both of whom possess the
authority to overrule the superintendent's decision.
According to David Schwendinger, the supervisor of
employee relations, he has in fact reversed or
amended a superintendent's actions in such matters.
He further testified that all matters involving hiring,
discharges, layoffs, recalls, and training are adminis-
tered through his office. The department relations
also determines the wages, hours, and working condi-
tions of the employees at both mines. Thus, the rec-
ord reveals that the employees at both mines receive
the sane wages and that the same policies regarding
cost-of-living increases, shift differentials, overtime,
health insurance, pensions. and other fringe benefits
are applied to both mines. Finally. Schwendinger tes-
tified that he spends approximately half of' his time at
the mines where he attempts to answer questions and
resolve problems that arise concerning these issues.
The record reflects substantial similarity in job
functions and skills between the employees of' both
mines.6 In this regard, heavy equipment operators,
electricians, mechianics, and welders are employed at
both mines and perform essentially the same tasks.
The employees also utilize similar equipment such as
trucks, bulldozers. front-end loaders, power shovels,
and lighting plants. In this connection, some of the
equipment used at Eagle Butle was actually assem-
bled at Belle Ayr, and it is common for employees to
go from one mine to another in order to pick up or
exchange parts and materials.
As indicated above, all of' the employees presently
employed at the Eagle Butte mine have transferred
there from the Belle Ayr mine, and the Employer in-
dicated it would continue to transfer employees in
such a manner fr the foreseeable future. In this re-
gard, the record discloses that the Employer utilizes
the same job-bidding procedure for both mines. The
record also discloses, however, that, in practice, when
a new job classification occurs at Eagle Butte, the job
will be posted first at that mine, and only if it is not
filled by one of the employees already there will it be
posted at Belle Ayr. Assuming that the new' job is
filled by an employee already assigned to Eagle Butte,
however, the employees at Belle Ayr are given the
opportunity to bid into the recently vacated job. Re-
gardless of' which mine he is employed at, an em-
ployee retains the same employee number.
On the basis of the foregoing, we find that the pro-
duction and maintenance employees of both mines
may constitute an appropriate unit. In arriving at this
finding, we rely specifically on the Employer's highly
centralized control with respect to personnel matters;
the fact that the employees of both mines share iden-
tical terms and conditions of employment; the simi-
, Since the Eagle Butte mine is still in the preparatory stage. some of the
employee classifications that are present at Belle Ayr are not yet present at
Eagle Butte, although the Employer's projections indicate that eventually
both mines will have the same number of employees in the same type and
number of job classifications.
572
573
larity of job skills and functions: and the relatively
high degree of employee interchange.
Nonetheless, the fbregoing tacts also indicate that
the separate units requested by the UMWA may also
be appropriate. In this regard we note particularly the
fact that there has been a listorv of collective bar-
gaining in a unit comprised of the employees at the
Bell Ayr mine and, as noted above, the Board has
previously issued a certification finding that unit to he
appropriate. Under these circumstances, we are reluc-
tant to combine the employees in the existing unit
with the previously unrepresented employees at Eagle
Butte without granting both groups an opportunit\ to
express their choice with respect to this matter. As
further support for our finding that separate units
may also be appropriate, we note that Eagle Butte
does not, at the present time, have the same member
of employee classifications as does Belle Ayr and that
preference is accorded employees already at Eagle
Butte when new job classifications arise. Moreover.
the mines are 26 miles apart and. while the superin-
tendents at each mine are admittedly not entirely au-
tonomous in labor relations matters, they responsibly
direct employees and apply established labor rela-
tions policy. Accordingly. we find that separate units
at each mine may also be appropriate.
We therefore do not render a final determination as
to the appropriate unit at this time: rather we shall
submit the issue to the employees by directing sepa-
rate elections at each mine. By doing so, the emplo-
ees at each mine will be able to select separate repre-
sentation if they so desire.
5. Accordingly, separate elections shall be directed
among the following employees of the Employer:
Voting group A.: All production and maintenance
employees employed by the Employer at its Belle
Ayr Mine near Gillette, Wyoming: excluding of-
fice clerical employees, professional employees,
guards and supervisors as defined in the Act.
Voting group B: All production and maintenance
employees employed by the Employer at its
Eagle Butte Mine near Gillette, Wyoming: ex-
cluding office clerical employees, professional
employees, guards and supervisors as defined in
the Act.
The employees in voting group A shall vote as to
whether or not they wish to be represented for the
purposes of collective bargaining by Northeast Wyo-
ming Affiliated Coal Mine Employees (New Acme):
by the International Union of Operating Engineering,
Local 400 (Operating Engineers); by the United Mine
Workers of America, Local 1854 (UMWA): or by
none of the above-named labor organizations.
The employees in voting group B shall also vote as
to whether they wish to he represented for the pur-
poses of collective bargaining hb New Acme: the Op-
erating Engineers: the UIMWA: or b. none of the
ahbove-narmed labor organizations.7
In the vent that a majorit o the employees in
voting group A or voting group B select the UIMWA
the employees in that group will he deemed to have
indicated their desire to constitute a separate bargain-
ing unit. and the Regional Director shall issue a certi-
tication of representative for such group. In these cir-
cumstilnces. the Regional I)irector shall also Issue an
appropriate certification in the other group.
llowe\ er, if a majority of the cnplo ces in both
groups do not vote for separate representation, then
we shall include the employees in the to voting
groups in a single overall unit and we shall pool their
votes." The Regional Director shall then issue an ap-
propriate certification in the overall unit, dependinig
upon the results of the election.
Our ultimate determination in this case is based in
part on the results of the election. lowever, we make
the folloving findings with regard to an appropriate
unit.
I. If a majority of the employees in either voting
group vote for separate representation. we find the
following two units to be appropriate for the purposes
of collective bargaining within the meaning of Section
9(b) of the Act.
lUnit A. All production and maintenance em-
ployees emplo ed b the Employer at its Belle
A r Mine near Gillette, Wyoming: excluding of-
fice clerical employees professional employees.
guards and supervisors as defined in the Act.
Unit B.: All production and maintenance em-
ployees employed by the Employer at its Eagle
Butte Mine near Gillette. Wyoming: excluding
office clerical employees, professional employees.
guards and supervisors as defined in the Act.
2. If a majority of the employees in both groups do
not vote for separate representation, we find that the
following employees will constitute a unit appropriate
for collective bargaining within the meaning of Sec-
tion 9(hb) of the Act.
XAlthough the record is unclear as to whether the Operating Engineers
would participate in an election of this tpe. we have included it on both
ballots in slew of its interest in representing the production and maintenance
employees of both mines in a single unit t may withdraw. however. Irom
both ballots. within 7 days of the date of this Decision and Direction of
Elections in the event that it is not interested in participating in this election
I If the voters are pooled the) are to be tallied in the following manner
The sotes oIr the labor organizallon seeking separate units shall be counted
as valid sotes but neither for nor against the labor orgalnizations seeking to
represent the employees involved herein in a single unit All other sotes are
to be accorded their face alue
A M A X COA UO M PA N
I)l('CISIONS () NATIONAL. LABOR RELAFIONS BOARDI)
All production and maintenance employees em-
ployed by the Employer at its Belle Ayr and
Eagle Butte mines near Gillette, Wyoming; ex-
cluding office clerical employees, professional
employees, guards and supervisors as defined in
the Act.
Accordingly, this case is hereby remanded to the
Regional Director for Region 27 fir the purpose of
conducting elections in the voting groups described
above.
IDirection of Elections and Excelsior footnote
omitted from publication.]
574