Consolidation Coal Co.

National Labor Relations Board - Board Decisions

Jan 4, 1993

310 N.L.R.B. 6 (N.L.R.B. 1993)

6
310 NLRB No. 3
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 In agreement with the judge, we find Soule Glass & Glazing Co.
v. NLRB, 652 F.2d 1055 (1st Cir. 1981), relied on by the Respond-
ent, distinguishable on its facts from the present case. In so doing,
we emphasize that in Soule, unlike here, the employer both provided
a partial response to the union’s information request and explained
its reasons for not complying with the balance of the request.
1 All dates herein refer to 1991 unless otherwise indicated.
2 Although Respondent admits timely service of the charge as filed
in Case 9–CA–28993, it sets forth a ‘‘defense’’ in its answer that,
‘‘The complaint must be dismissed for the reason that no charge was
filed in the above proceeding.’’ This ‘‘defense’’ is discussed in my
analysis and conclusions below.
Consolidation Coal Company and United Mine
Workers of America. Case 10–CA–25715
January 4, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On August 7, 1992, Administrative Law Judge Phil-
ip P. McLeod issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
Charging Party filed an answering brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Consolidation Coal Com-
pany, Tackett Creek, Tennessee, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
Susan Pease Langford, Esq., for the General Counsel.
Daniel L. Stickler, Esq. and Albert F. Sebok, Esq. (Jackson
& Kelly), of Charleston, West Virginia, for the Respond-
ent.
Michael J. Healey, Esq. (Healey, Davidson & Hornack), of
Pittsburgh, Pennsylvania, for the Union.
DECISION
STATEMENT OF THE CASE
PHILIP P. MCLEOD, Administrative Law Judge. I heard this
case in Tazewell, Tennessee, on March 24, 1992. The charge
which gave rise to this case was filed on October 10, 1991,1
by United Mine Workers of America (the Union) against
Consolidation Coal Company (Respondent) in Region 9 of
the National Labor Relations Board (the Board) where it was
docketed as Case 9–CA–28993. On December 2, Case 9–
CA–28993 was transferred to Region 10 of the Board and as-
signed Case 10–CA–25696. It was later determined that the
case number had been assigned in error, and on December
18, the case number was corrected to be Case 10–CA–25715,
as referred to in the caption herein. On December 31, a com-
plaint and notice of hearing issued which alleges, inter alia,
that Respondent violated Section 8(a)(1) and (5) of the Na-
tional Labor Relations Act (the Act) by failing to provide the
Union with information necessary and relevant to its per-
formance of duties as the exclusive collective-bargaining rep-
resentative of certain of Respondent’s employees.
In its answer to the complaint, Respondent admitting cer-
tain allegations including the filing and serving of the charge
in Case 9–CA–28993;2 its status as an employer within the
meaning of the Act; the status of union as a labor organiza-
tion within the meaning of the Act; the existence of a collec-
tive-bargaining relationship and a collective-bargaining
agreement between the Union and Respondent; and the
Union’s request for certain information from Respondent.
Respondent denied having failed and refused to give the
Union the requested information and denied having engaged
in any conduct which would constitute an unfair labor prac-
tice within the meaning of the Act.
At the trial herein, all parties were represented and af-
forded full opportunity to be heard, to examine and cross-ex-
amine witnesses, and to introduce evidence. Following the
close of the trial, all parties filed timely briefs with me
which have been duly considered.
On the entire record in this case and from my observation
of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Consolidation Coal Company is, and has been at all times
material, a Delaware corporation with an office and place of
business at Tackett Creek, Tennessee, where it is engaged in
the mining and sale of coal. In the course and conduct of its
business operations, Respondent annually sells and ships
from its Tennessee facility products valued in excess of
$50,000 directly to customers located outside the State of
Tennessee.
Respondent is, and has been at all times material, an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. LABOR ORGANIZATION
United Mine Workers of America is, and has been at all
times material, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Respondent and the Union are signaties to the National Bi-
tuminous Coal Wage Agreement of 1988, which is effective
by its terms until February 1, 1993. Pursuant to article II of
7CONSOLIDATION COAL CO.
that collective-bargaining agreement, laid-off employees have
certain preferential hiring rights at mines of their signatory
employer even though those mines are not covered by the
agreement.
The ‘‘Matthews Mine’’ is owned and was operated by Re-
spondent until early 1991. Employees at that operation were
covered by the collective-bargaining agreement between Re-
spondent and the Union. Consolidation Coal Company of
Kentucky is a wholly owned subsidiary of Respondent. It op-
erates various mines in the State of Kentucky which are not
covered by the collective-bargaining agreement, including
mines at Sierra, Wiley, Jones Fork, and a preparation plant
at Skyline.
By early 1991, all union miners were laid off at Respond-
ent’s Matthews Mine. The mine was closed. Equipment and
certain employees, primarily supervisors, were moved from
the Matthews Mine to facilities owned and operated by Con-
solidation Coal Company of Kentucky. Many of the miners
laid off at Matthews Mine sought to claim job rights at
mines owned and operated by Consolidation Coal Company
of Kentucky. These employees received letters stating that
they were not able to claim job rights at these mines because
Consolidation Coal Company of Kentucky was not signatory
to the 1988 collective-bargaining agreement.
On approximately January 23, the Union filed a class ac-
tion grievance on behalf of employees from the Matthews
Mine alleging that the ‘‘employer has violated the labor
agreement of 1988 by failing to honor article II on its coal
lands in Eastern Kentucky, including, but not limited to
Sierra/Consol of Kentucky.’’
On February 26, a step-three grievance meeting was held
between the parties concerning this class action grievance.
The grievance was not resolved. It is undisputed that at this
meeting, the Union’s representative, Ken Johnson, said that
the Union intended to pursue the matter, but that before
doing so it needed certain information from Respondent. It
is also undisputed that Johnson then orally presented a de-
tailed and lengthy request for information. Respondent’s rep-
resentatives at that meeting, Daniel French and James
Ingram, both testified that as Johnson spoke, they tried to
write down what he said. When they were not able to keep
up, they asked Johnson to slow down. According to French
and Ingram, Johnson told Respondent, ‘‘Don’t worry about
trying to get it all down,’’ that the Union would be sending
Respondent a formal request by mail. Johnson, who testified
before Ingram and French, admitted stating that he was going
to follow up this verbal request with a written request which
would probably include additional information. According to
Johnson, however, he told Ingram and French, ‘‘I was telling
them verbally of some information that they could be work-
ing on for me.’’ I credit Ingram and French insofar as they
assert Johnson informed them he would follow the oral re-
quest with a written request. I do not credit them, however,
that Johnson told them not to worry about taking down the
oral list. Johnson may have told Ingram and French ‘‘not to
worry’’ about taking the list verbatim, but it is clear from
the length and scope of the information requested that John-
son was not simply exercising his voice box. I credit Johnson
he told Ingram and French he was giving them the oral re-
quest then so that they could be working on getting the infor-
mation together.
I find that when Johnson told Ingram and French he would
be following the oral request with a written request and when
he may have told them ‘‘not to worry’’ about writing his oral
request verbatim, Ingram and French chose not to worry
about the oral request at all. They did not ask Johnson any
questions about the information he was requesting, nor was
Johnson asked to clarify anything which was asked for.
Ingram and French chose simply to wait for the written re-
quest.
Earl Gambrell, one of the employees who had been laid
off at Respondent’s Matthew Mine, testified that in March
and April 1991, he observed that both supervisors and equip-
ment from the Matthews Mine were sent to the Jones Fork
Mine owned and operated by Consolidation Coal Company
of Kentucky. Although Respondent would not stipulate to
these facts as testified to by Gambrell, it offered no evidence
to contradict his testimony.
On May 6, the Union sent a written request for informa-
tion, including interrogatories, to Respondent seeking infor-
mation about the relationship between Consolidation Coal
Company of Kentucky and Respondent. There is no question
that this request for information is lengthy and detailed. It is
lengthy, however, precisely because it is specific and de-
tailed.
On May 17, Respondent wrote to the Union referring to
the request as being ‘‘lengthy and incredibly broad.’’ Re-
spondent told the Union, however, that it would respond to
the request for information by May 31.
On May 30, Respondent wrote to the Union stating that
‘‘several questions need to be addressed and clarification ob-
tained.’’ Respondent recommended that another step-three
grievance meeting be held. When Johnson received this letter
from Respondent, he telephoned the union counsel to discuss
what response, if any, to take. Johnson and the Union’s attor-
ney concluded that, in view of similar requests and refusals
to provide information elsewhere, including pending litiga-
tion elsewhere, Respondent’s May 30 letter was simply foot
dragging by Respondent.
The Union did not immediately file an unfair labor prac-
tice charge against Respondent. Instead, it continued to gath-
er what information it could on its own about the relationship
between Consolidation Coal Company of Kentucky and Re-
spondent. During September and October 1991, the Union
made trips to various facilities being operated by Consolida-
tion Coal Company of Kentucky, including the Wiley Mine
and the Skyline Preparation Plant. During these visits, the
Union observed what it could about the operations, employ-
ees, and company logos being exhibited. The Union did not
specifically request or gain access to the facilities. During
one of these visits, however, Union President Mason Caudill
repeatedly requested some of the items of information which
had been included in the earlier written request. Respondent
did not provide any of this information.
On October 9, the Union sent another letter to Respondent,
again requesting the information which it believed it needed
for processing the class action grievance. At about the same
time, the Union filed its charge with the Board. On Novem-
ber 4, Respondent answered the Union’s letter of October 9,
again expressing a need to discuss the scope of the informa-
tion request.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 For a complete discussion of applicable cases, see Consolidation
Coal Co., 307 NLRB 69 (1992), and 305 NLRB 545 (1991).
Analysis and Conclusions
In its answer to the complaint herein, Respondent admits
service of the charge in Case 9–CA–28933. Nevertheless, the
answer also claims, ‘‘Consol denies that it was served with
any charge in the above proceeding.’’ Elsewhere in its an-
swer, as a ‘‘second defense’’ Respondent also claims, ‘‘The
complaint must be dismissed for the reason that no charge
was filed in the above proceeding.’’ Respondent does not
elaborate on this argument in its posttrial brief, and I find
the argument altogether ludicrous. There is only one unfair
labor practice charge involved in this case. It was filed in
Region 9 of the Board and docketed as Case 9–CA–28993.
Respondent admits proper service of that charge. Thereafter
the charge was transferred from Region 9 to Region 10 and
eventually docketed as Case 10–CA–25715. On December
31, 1991, complaint issued bearing the new case number,
with reference therein to the earlier case number. Transfer of
an unfair labor practice charge from one region to another
region of the Board is a purely administrative matter, which
neither requires Respondent’s permission nor affects the
service requirements of Section 10(b) of the Act. I find that
Respondent was properly served with the underlying unfair
labor practice charge in this matter.
It is well settled that employers are under an obligation to
provid information that is needed by the bargaining rep-
resentative in the performance of its duties. Further, informa-
tion requested by the bargaining representative of an employ-
er’s employees related to wages, hours, and conditions of
employment is considered presumptively relevant. Where the
bargaining agent requests information not directly connected
to the terms and conditions of employment of the employees
it represents, the Union has the initial burden of establishing
relevance of that information to the performance of its du-
ties.3 This initial burden of showing relevance has been re-
quired, and been found to have been met, in cases involving
an employer’s double-breasted operations and in cases where
represented employees have contractual job rights at non-
signatory operations of the same employer. See NLRB v.
Lenoard B. Herbert Jr. & Co., 696 F.2d 1120 (5th Cir.
1983); Maben Energy Corp., 295 NLRB 149 (1989).
In the instant case, the Union requested information relat-
ing to the mining operations of Consolidation Coal Company
of Kentucky, a wholly owned subsidiary of Respondent. At
the trial herein, Respondent’s counsel admitted the relevance
of the information requested by the Union, stating, ‘‘We’re
willing to say that there is a reasonable basis for them to
make that inquiry. . . . I think the only issue before the
judge is whether we refused the request for information.’’
The facts here clearly support Respondent’s admission. The
uncontroverted testimony about the transfer of supervisory
personnel, the transfer of equipment, common executives,
and identical logos at Respondent’s facilities and those of
Consolidation Coal of Kentucky is sufficient to form the re-
quired reasonable basis the Union needed for requesting the
information in this case. I note too that various license appli-
cations for Consolidation Coal of Kentucky facilities appear
at different times to refer interchangeably to Consolidation
Coal Company and Consolidation Coal Company of Ken-
tucky. Roger Gann, the manager of mines for Consolidation
Coal Company of Kentucky, whose signature appears on
those documents, was unable to explain any reason for these
names being used interchangeably. The facts here clearly
demonstrate, and I find, that the information requested by the
Union of Respondent was relevant to the performance of its
duties, and the Union is entitled to the requested information.
Nevertheless, Respondent denies that it has violated the
Act, apparently focusing on the narrow contention that it
never actually refused to provide the requested information.
Respondent’s position is best described in its posttrial brief,
wherein Respondent states:
The UMWA served a written request for information
on May 6, 1991. Since receiving that request, Consol
has never refused to produce any documents or infor-
mation requested by the UMWA. In fact, Consol, in
good faith, has requested that the UMWA meet with it
to discuss and seek clarification to the overly-broad re-
quest served by the UMWA . . . . It is the UMWA,
and not Consol, that has failed to bargain in good faith
. . . by not meeting with Consol.
Respondent also quotes from and relies on Soule Glass &
Glazing Co. v. NLRB, 652 F.2d 1055, 1098 (1st Cir. 1981).
In particular, Respondent relies on the language in Soule
Glass wherein the court stated:
When the employer presents a legitimate good faith ob-
jection on grounds of burdensomeness or otherwise, and
offers to cooperate with the union in reaching a mutu-
ally acceptable accommodation, it is incumbent on the
union to attempt to reach some type of compromise
with the employer as to the form, extent, or timing of
disclosure.
It is equally important to note additional language of the
Soule Glass decision wherein the court stated:
To be sure, the union need not indulge the company in
protracted negotiations over the terms, content, and
form of disclosure. . . . Good faith is required of both
sides. [Id.]
I agree with counsel for the General Counsel that Re-
spondent’s May 30 letter claiming that ‘‘several questions
need to be addressed and clarification obtained,’’ in the cir-
cumstances present here, was nothing more than an effort by
Respondent to generate confusion where none existed and to
stall having to give the Union the information it requested.
The information requested was clear, unambiguous, and spe-
cific in its content. At the trial herein, Respondent’s attorney
conceded that the information request in this case was very
similar to the information request in other cases involving
these same parties. Consolidation Coal Co., supra. In the
more recent of those two cases, the administrative law judge
specifically noted and commented on Respondent’s ‘‘subse-
quent piecemeal disclosure of dribs and drabs of informa-
tion.’’ 307 NLRB at 72. In view of the similarity between
the Union’s request for information here and earlier requests,
and in view of Respondent’s prior practice of piecemeal dis-
closure of information requested, the Union had every reason
to believe that Respondent’s May 30 letter was nothing more
than another beginning of that same process by Respondent.
9CONSOLIDATION COAL CO.
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and allobjections to them shall be deemed
waived for all purposes.
5 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National 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.’’
I note that in neither its May 30 letter nor its November
4 letter has Respondent ever indicated which of the Union’s
specific requests for information required clarification. Even
during the trial herein, Respondent made no effort to present
any evidence of any ambiguity or lack of clarity in the
Union’s information request. Nor has Respondent made any
attempt to provide even partial response to the information
request or provide any of the requested documents. Respond-
ent has simply chosen to stand behind its alleged need for
unspecified clarification. I agree with the Union’s posttrial
brief wherein it states,
One may be permitted to wonder, in light of the (other
two Board cases involving Respondent), when it is that
Consol intends on responding by providing information.
I find that by its actions, Respondent has failed and refused
to provide the Union with information relevant and necessary
to the performance of its duties as the exclusive collective-
bargaining representative of certain of Respondent’s employ-
ees; and Respondent has thereby violated Section 8(a)(1) and
(5) of the Act.
CONCLUSIONS OF LAW
1. Respondent Consolidation Coal Company is, and has
been at all times material, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. United Mine Workers of America is, and has been at
all time material, a labor organization within the meaning of
Section 2(5) of the Act.
3. Throughout all times relevant to this proceeding, United
Mine Workers of America has been, and is, the exclusive
collective-bargaining representative of certain employees em-
ployed by Consolidation Coal Company, and those employ-
ees have been covered by the terms and conditions of a col-
lective-bargaining agreement between Respondent and the
Union.
4. Respondent has failed and refused to provide the Union
with information relevant and necessary to the performance
of its duties as the exclusive collective-bargaining representa-
tive of certain of Respondent’s employees; and Respondent
has thereby violated Section 8(a)(1) and (5) of the Act.
5. The unfair labor practices which Respondent has been
found to have engaged in, as described above, have a close,
intimate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free flow
of commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) and (5)
of the Act, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Since the Matthews Mine is now closed, it would serve no
purpose to order Respondent to post a notice to employees
at that location. Accordingly, I shall require Respondent to
mail a copy of the required notice to all employees who
worked in the bargaining unit represented by the Union at
the Matthews Mine during the last 6 months before it was
closed.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, Consolidation Coal Company, Tackett
Creek, Tennessee, it officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to provide the Union with infor-
mation relevant and necessary to the performance of its du-
ties as the exclusive collective-bargaining representative of
Respondent’s employees.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Provide the Union with information requested by it in
its letter of May 6, 1991, to Respondent.
(b) Mail to all employees covered by the collective-bar-
gaining agreement with United Mine Workers of America
who worked at the Matthews Mine during the last 6 months
before it was closed, copies of the attached notice marked
‘‘Appendix.’’5 Copies of the notice, on forms provided by
the Regional Director for Region 10, after being signed by
Respondent’s authorized representative, shall be mailed by
Respondent to all such employees by regular mail.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT fail and refuse to provide United Mine
Workers of American information relevant and necessary to
the performance of its duties as the exclusive collective-bar-
gaining representative of our employees.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them in Section 7 of the National Labor Relations
Act.
WE WILL provide the Union with the information it re-
quested in its letter of May 6, 1991.
CONSOLIDATION COAL COMPANY