Consolidation Coal Company

National Labor Relations Board - Board Decisions

Jun 12, 1981

256 N.L.R.B. 541 (N.L.R.B. 1981)

CONSOLIDATION COAL COMPANY 541
Consolidation Coal Company and United Mine
Workers of America. Case 14-CA-14626
June 12, 1981
DECISION AND ORDER
Upon a charge filed on January 21, 1981, by
United Mine Workers of America, herein called
the Union, and duly served on Consolidation Coal
Company, herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 14, issued a com-
plaint on February 5, 1981, against Respondent, al-
leging that Respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and
Section 2(6) and (7) of the National Labor Rela-
tions Act, as amended. Copies of the charge and
complaint and notice of hearing before an adminis-
trative law judge were duly served on the parties
to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on December 3,
1980, following Board elections in Cases 14-RC-
9251, 14-RC-9252, and 14-RC-9253, the Union
was duly certified as the exclusive collective-bar-
gaining representative of Respondent's employees
in each of the separate units found appropriate;'
and that, commencing on or about December 30,
1980, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bar-
gaining representative, although the Union has re-
quested and is requesting it to do so. Subsequently,
Respondent timely filed an answer and an amended
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On February 25, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on March 10,
1981, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
thereafter filed a response to the Notice To Show
Cause.
Upon the entire record in this proceeding, the
Board makes the following:
I Official notice is taken of the record in the representation proceed-
ings, Cases 14-RC-9251. 14-RC-9252, and 14-RC-9253, as the term
"record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules
and Regulations, Series 8, as amended See LT' Electrosystems, Inc., 166
NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968); Golden Age Bever-
age Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir 1969): Inter-
type Co. v. Penello, 269 FSupp. 573 (D.C.Va 1967); Follett Corp.. 164
NLRB 378 (1967), enfd 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the
NLRA, as amended.
256 NLRB No. 93
Ruling on the Motion for Summary Judgment
In its answer to the complaint and response to
the Notice To Show Cause, Respondent attacks the
validity of the Union's certifications by denying the
appropriateness of the certified units. Respondent
also asserts that the complaint should be dismissed
as a matter of policy because the Union seeks rec-
ognition in units in which the Union had contrac-
tually agreed not to do so. The General Counsel
argues that all material issues have previously been
decided. We agree with the General Counsel.
A review of the record herein, including the
record in consolidated Cases 14-RC-9251, 14-RC-
9252, and 14-RC-9253, reveals that, on October
15, 1980, the Regional Director for Region 14
issued a Decision and Direction of Elections, in
which he found appropriate separate units of ware-
house employees at each of three mines operated
by Respondent in the State of Illinois. In so find-
ing, the Regional Director rejected Respondent's
contentions that (1) the only appropriate unit
would be an employerwide unit of all its ware-
house employees, and (2) that the Union agreed in
the National Bituminous Coal Wage Agreement of
1978, to which the Union and Respondent are par-
ties, not to seek to represent its warehouse employ-
ees in issue. Thereafter, Respondent filed a timely
request for review.
On November 13, 1980, separate elections were
held in each of the units found appropriate and the
ballots were impounded in each. On November 24,
1980, the Board denied Respondent's request for
review. Accordingly, 2 days later, all impounded
ballots were opened and counted. The tallies of
ballots showed that, of approximately four eligible
voters in Case 14-RC-9251, three cast valid ballots
in favor of, and one against, the Union; that, of ap-
proximately five eligible voters in Case 14-RC-
9252, four cast valid ballots for, and one against,
the Union; and that, of approximately five eligible
voters in Case 14-RC-9253, five cast valid ballots
for, and none against, the Union. Respondent filed
timely objections to the elections raising, inter alia,
the same contentions that had been rejected by the
Regional Director in his Decision and Direction of
Elections. Following an investigation, the Regional
Director issued a Supplemental Decision and Certi-
fications of Representative overruling the objec-
tions and certifying the Union as representative in
each of the three units. Thereafter, Respondent
filed a timely request for review, which the Board
denied on January 16, 1981.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leging a violation of Section 8(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding.2
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence, nor does
it allege that any special circumstances exist herein
which would require the Board to reexamine the
decision made in the representation proceeding. We
therefore find that Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we grant the
Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Consolidation Coal Company, a Delaware cor-
poration, maintaining mine facilities in the State of
Illinois, is engaged in the mining and nonretail sale
of coal. Respondent's mine facilities, Burning Star
Mine No. 3, Sparta, Illinois; Burning Star Mine No.
4, Cutler, Illinois; and Burning Star Mine No. 5,
DeSoto, Illinois, are the only facilities involved in
this proceeding. During the 12-month period
ending January 31, 1981, a representative period,
Respondent sold and shipped, or caused to be
shipped, goods valued in excess of $50,000, of
which goods valued in excess of $50,000 were
shipped from Respondents Sparta, Cutler, and
DeSoto, Illinois, facilities directly to points located
outside the State of Illinois.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
11. THE LABOR ORGANIZATION INVOLVED
United Mine Workers of America is a labor or-
ganization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute separate units appropriate for collective-bar-
2 See Pittsburgh Plate Glass Co. v. N.L.R.B.. 313 US. 146, 162 (1941);
Rules and Regulations of the Board, Sees. 102.67(f) and 102.69(c).
gaining purposes within the meaning of Section
9(b) of the Act:
All warehouse employees employed at Re-
spondent's Burning Star Mine No. 3 in Sparta,
Illinois, excluding office clerical and profes-
sional employees, warehouse managers, guards
and supervisors as defined in the Act.
All warehouse employees employed at Re-
spondent's Burning Star Mine No. 4 in Cutler,
Illinois, excluding office clerical and profes-
sional employees, warehouse managers, guards
and supervisors as defined in the Act.
All warehouse employees employed at Re-
spondent's Burning Star Mine No. 5 in
DeSoto, Illinois, excluding office clerical and
professional employees, warehouse managers,
guards and supervisors as defined in the Act.
2. The certification
On November 13, 1980, a majority of the em-
ployees of Respondent in said separate units, in
secret-ballot elections conducted under the supervi-
sion of the Regional Director for Region 14, desig-
nated the Union as their representative for the pur-
pose of collective bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said sep-
arate units on December 3, 1980, and the Union
continues to be such exclusive representative
within the meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about December 30, 1980,
and at all times thereafter, the Union has requested
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about December 30, 1980, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said separate units.
Accordingly, we find that Respondent has, since
December 30, 1980, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the
separate appropriate units, and that, by such refus-
al, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act.
CONSOLIDATION COAL COMPANY 543
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and,
upon request, bargain collectively with the Union
as the exclusive representative of all employees in
the separate appropriate units and, if an under-
standing is reached, embody such understanding in
signed agreements.
In order to insure that the employees in the sepa-
rate appropriate units will be accorded the services
of their selected bargaining agent for the period
provided by law, we shall construe the initial
period of certification as beginning on the date Re-
spondent commences to bargain in good faith with
the Union as the recognized bargaining representa-
tive in the separate appropriate units. See Mar-Jac
Poultry Company, Inc., 136 NLRB 785 (1962); Com-
merce Company d/b/a Lamar Hotel, 140 NLRB
226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964),
cert. denied 379 U.S. 817; Burnett Construction
Company, 149 NLRB 1419, 1421 (1964), enfd. 350
F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Consolidated Coal Company is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. United Mine Workers of America is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All warehouse employees employed at Re-
spondent's Burning Star Mine No. 3 in Sparta, Illi-
nois, excluding office clerical and professional em-
ployees, warehouse managers, guards and supervi-
sors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. All warehouse employees employed at Re-
spondent's Burning Star Mine No. 4 in Cutler, Illi-
nois, excluding office clerical and professional em-
ployees, warehouse managers, guards and supervi-
sors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
5. All warehouse employees employed at Re-
spondent's Burning Star Mine No. 5 DeSoto, Illi-
nois, excluding office clerical and professional em-
ployees, warehouse managers, guards and supervi-
sors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
6. Since December 3, 1980, the above-named
labor organization has been and now is the certified
and exclusive representative of all employees in the
aforesaid separate appropriate units for the purpose
of collective bargaining within the meaning of Sec-
tion 9(a) of the Act.
7. By refusing on or about December 30, 1980,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employ-
ees of Respondent in the separate appropriate units,
Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Sec-
tion 8(a)(5) of the Act.
8. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(l) of the Act.
9. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Consolidation Coal Company, Sparta, Cutler, and
DeSoto, Illinois, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with United Mine Work-
ers of America as the exclusive bargaining repre-
sentative of its employees in each of the following
separate appropriate units:
All warehouse employees employed at Re-
spondent's Burning Star Mine No. 3 in Sparta,
Illinois, excluding office clerical and profes-
sional employees, warehouse managers, guards
and supervisors as defined in the Act.
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All warehouse employees employed at Re-
spondent's Burning Star Mine No. 4 in Cutler,
Illinois, excluding office clerical and profes-
sional employees, warehouse managers, guards
and supervisors as defined in the Act.
All warehouse employees employed at Re-
spondent's Burning Star Mine No. 5 in
DeSoto, Illinois, excluding office clerical and
professional employees, warehouse managers,
guards and supervisors as defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative
of all employees in the aforesaid separate appropri-
ate units with respect to rates of pay, wages, hours,
and other terms and conditions of employment,
and, if an understanding is reached, embody such
understanding in signed agreements.
(b) Post at its Sparta, Cutler, and DeSoto, Illi-
nois, facilities copies of the attached notice marked
"Appendix." 3 Copies of said notice, on forms pro-
vided by the Regional Director for Region 14,
after being duly signed by Respondent's representa-
tive, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 14,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
3 In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with United Mine Workers of America as the
exclusive representative of the employees in
the separate bargaining units described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the separate bar-
gaining units described below, with respect to
rates of pay, wages, hours, and other terms
and conditions of employment, and, if an un-
derstanding is reached, embody such under-
standing in signed agreements. The bargaining
units are:
All warehouse employees employed at our
Burning Star Mine No. 3 in Sparta, Illinois,
excluding office clerical and professional
employees, warehouse managers, guards and
supervisors as defined in the Act.
All warehouse employees employed at our
Burning Star Mine No. 4 in Cutler, Illinois,
excluding office clerical and professional
employees, warehouse managers, guards and
supervisors as defined in the Act.
All warehouse employees employed at our
Burning Star Mine No. 5 in DeSoto, Illinois,
excluding office clerical and professional
employees, warehouse managers, guards and
supervisors as defined in the Act.
CONSOLIDATION COAL COMPANY