Island Creek Coal Co.

National Labor Relations Board - Board Decisions

Jan 18, 1989

292 N.L.R.B. 480 (N.L.R.B. 1989)

480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Island Creek Coal Company and United Mine
Workers of America , District 31
Laurel Run Mining Company and United Mine
Workers of America, District 31. Cases 6-CA-
19812, 6-CA-19814, and 6-CA-20021
January 18, 1989
DECISION AND ORDER
By CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
On March 1, 1988, Administrative Law Judge
Thomas A. Ricci issued the attached decision. The
General Counsel and the Charging Party filed ex-
ceptions and supporting briefs, and the Respond-
ents filed an answering brief. The Charging Party
also filed a motion to reopen the record for admis-
sion of new evidence, and the Respondents filed a
brief in opposition to the Charging Party's motion
and a motion to strike references in the Charging
Party's brief to evidence not in the record. The
Charging Party thereafter filed a motion for leave
to file a memorandum of law in support of its
motion to reopen and an accompanying memoran-
dum of law, and the Respondents filed a brief op-
posing the Charging Party's motion for leave to
file its memorandum of law and a response to the
Charging Party's memorandum.'
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.2
The amended complaint alleges that the Re-
spondents, Island Creek Coal Company and Laurel
Run Mining Company, violated Section 8(a)(5) of
1 As we explain fully below, we find that the Respondents unlawfully
failed to provide certain information to the Union . That finding is based
exclusively on evidence introduced at the hearing , and not on any evi-
dence addressed in the Union 's motion to reopen the record . According-
ly, we need not reach the issues raised in the Union ' s motion , the Re-
spondents ' opposition , and the other related papers.
2 The General Counsel has excepted to the judge's failure to credit the
unrebutted testimony of Union Official Jerry Miller, the only witness to
testify about the dealings between the Union and the Respondents and
the author of the requests for information that are at issue in this case.
Having carefully reviewed the transcript and the documentary evidence,
we entertain serious doubts (discussed below) concerning the validity of
the judge's credibility findings. We find, however, that we are able to
decide this case on the basis of the documentary evidence and of Miller's
testimony insofar as it (1) was, at least inferentially , credited by the
judge, (2) is corroborated by the documents and other testimony, or (3)
appears to be against his or the Union's interest. Accordingly, we do not
pass on the merits of the General Counsel's exception.
The General Counsel also urges us to draw an adverse inference from
the Respondents ' failure to call witnesses within their control who could
have either corroborated or rebutted Miller's testimony . Because of our
disposal of the case , we need not reach this issue.
the Act by failing and refusing to furnish the
Charging Party, United Mine Workers of America,
District 31, information that it requested about De-
cember 4, 1986, and February 16, 1987. Contrary
to the judge, we find that certain of the Respond-
ents' actions were unlawful.
Both Respondents are corporations engaged in
the mining and nonretail sale of coal and related
products. Each has been, at all relevant times, a
party to a collective-bargaining agreement with the
Union as the representative of certain of its em-
ployees. It is undisputed that the bargaining units
are appropriate for purposes of collective bargain-
ing, and that the Union is the exclusive representa-
tive of employees in those units.
At the beginning of 1986, Respondent Laurel
Run was a wholly owned subsidiary of Virginia
Electric and Power Company (VEPCO), which
took and used the coal mined by Laurel Run at its
mine in West Virginia. Effective September 15,
1986, however, VEPCO sold the stock of Laurel
Run to Occidental Petroleum Corporation, which
also owns the stock of the corporation that owns
Island Creek. The sale was effected in the form of
a merger of Laurel Run with Canaan Mining Com-
pany, a corporation created by Occidental for the
purpose of acquiring Laurel Run, and which subse-
quently ceased to exist, leaving Laurel Run as the
survivor. Even before the effective date of the
merger, Island Creek became involved in the man-
agement of the Laurel Run operations, and it re-
mained involved in those operations at the time of
the hearing.
During the period of negotiations over the pur-
chase and sale of Laurel Run, a nonunion compa-
ny, Buffalo Mining Company, was engaged in a
project for VEPCO that involved digging an "ash
pit" to store fly ash generated as a byproduct of
VEPCO's utility operations.3 Although the record
does not indicate clearly whether the ashpit was
being dug on land that was being mined by Laurel
Run, it appears that the ashpit operation was at
least near or adjacent to the Laurel Run Mine. To
facilitate the acquisition of Laurel Run by Occiden-
tal, Island Creek agreed to take over responsibility
for the ashpit operation from VEPCO, with Buffa-
lo Mining continuing to perform the actual work
because of its greater experience. In the process of
constructing the ash pit, Buffalo Mining dug up
coal that it sold to Island Creek, which, in turn,
sold it to VEPCO.
During the same period of time, employment at
Laurel Run was reduced considerably, from ap-
3 Buffalo Mining Company is not owned by any of the other compa-
nies involved in this case.
292 NLRB No. 49
ISLAND CREEK COAL CO
proximately 300 to less than 100 Some 100 em
ployees were laid off in July 1986, and a compara
ble number were laid off around the end of the
year
It was against this background that the Union,
beginning in the spring of 1986, began to ask for
certain information from the Respondents Thus,
on June 54 Jerry Miller, the Union's vice president,
wrote to John Ely, manager of Laurel Run, stating
that he had been informed that Laurel Runs oper-
ations had been sold to Island Creek and asking for
notification and documentation of the event pursu-
ant to the collective-bargaining agreement 5 Ac
cording to Miller, Ely called him on June 9 and
said that the deal between Laurel Run and Island
Creek was not yet final, but that Island Creek was
"calling all the shots" at Laurel Run
By letter dated July 28, Eugene Claypole, presi
dent of the Union, made a request to Don Bassett,
Island Creek's industrial and employee relations
manager for its Potomac Division, that was similar
to Miller's request of June 9 The record does not
reflect that Island Creek made any response to
Claypole's letter 6
Thereafter, on August 12, Michael Holland, gen
eral counsel for the United Mine Workers, in-
formed Island Creek and Laurel Run that it had
come to the UMW's attention that Island Creek
"had" the Laurel Run facility but that the Union
had not been notified pursuant to the collective
bargaining contract Holland demanded assurances
that the seller's obligations had been passed on as
set forth in the contract Three days later, the Re-
spondents informed Holland that the final transfer
of the Laurel Run operations had not been com
pleted, but that it was the parties' intention to
comply with article I of the contract and that the
Union would be duly notified on the conclusion of
the sale
As noted above, the purchase and sale of Laurel
Run became final on September 15 By letter dated
September 17, VEPCO and Laurel Run informed
4 Until further notice all dates are in 1986
5 Art I of the National Bituminous Coal Wage Agreement of 1984 to
which the Union and Laurel Run were signatories provided in relevant
part that
In consideration of the Union s execution of this Agreement each
Employer promises that its operations covered by this Agreement
shall not be sold conveyed or otherwise transferred or assigned to
any successor without first securing the agreement of the successor
to assume the employers obligations under this Agreement Immedi
ately upon the conclusion of such sale conveyance assignment or
transfer of its operations the Employer shall notify the Union of the
transaction Such notification shall be accompanied by docu
mentation that the successor obligation has been satisfied
e Neither Island Creek s failure to respond on that occasion nor any of
its responses to the Union s requests before December 4 is alleged to con
stitute a violation
481
John Banovic , UMW secretary treasurer, as fol
lows
Dear Mr Banovic
Pursuant to Article I of the 1984 Wage
Agreement, the United Mine Workers of
America is hereby notified that on September
15, 1986, Virginia Electric and Power
(VEPCO) entered into an agreement with Oc
cidental Petroleum Corporation with respect
to the Laurel Run Mining Company
The Laurel Run Mining Company has
merged with Canaan Mining Company, a sub
sidiary of Occidental Laurel Run Mining
Company is the survivor to the merger Island
Creek Coal Company will manage the Laurel
Run Mining Company for the benefit of all
parties
The undersigned parties have reviewed the
obligations of the seller and purchaser under
Article I of the 1984 Wage Agreement In ad
dition, Laurel Run Mining Company, as the
survivor, recognizes its obligations under Arti
cle I and fully intends to comply with those
obligations
However, by letter apparently received on October
3, the Union was informed by C P Hardesty, op
erations accounting manager for Island Creek, that
Laurel Run had been acquired by Island Creek, not
by Occidental
In any event, Holland informed VEPCO in a
letter dated October 22 that the September 17 noti
fication by VEPCO and Laurel Run failed to satis
fy the requirements of the collective bargaining
agreement in that it did not include the requisite
documentation Holland reiterated his demand for
documentation, which, he said, `should, inter alia,
include copies of 1) the title page of the Sales
Agreement, 2) the pertinent provisions of the Sales
Agreement wherein the Seller's obligations under
the 1984 National Bituminous Coal Wage Agree-
ment are transferred to the Buyer, and 3) the signa-
ture page "
By letter dated November 10, T L Baucom,
vice president of VEPCO, responded to Holland,
in relevant part, as follows
Dear Mr Holland
William W Berry has asked me to respond
to your letter of October 22, 1986 regarding
the September 15, 1986 transaction involving
Laurel Run Mining Company In that transac
tion Occidental Petroleum Corporation,
through its wholly owned subsidiary Canaan
Mining Co (Newco), acquired the stock of
Laurel Run Mining Company from Virginia
482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Electric and Power Company and merged
Laurel Run with Canaan Mining. Laurel Run
is the surviving corporation. Laurel Run has
been and continues to be a signatory to the
NBCWA. Virginia Electric and Power Com-
pany has never been a signatory to that Agree-
ment and has no obligations under it.
As you requested, the following documents
are enclosed: (1) the portion of the merger
agreement identifying the parties involved; (2)
the portion of Section 3.3(a) of that agreement
in which Occidental recognizes Laurel Run's
obligations under the 1984 National Bitumi-
nous Coal Wage Agreement (NBCWA); and
(3) the signature page.
This transaction was not a sale or transfer of
operations as contemplated under Article I of
the NBCWA, so notice to the UMWA was
not required. Nevertheless, Laurel Run
promptly notified the Union of the transaction.
In any event, as the enclosed documents clear-
ly confirm, Occidental recognized the obliga-
tions of Laurel Run under the NBCWA and
that those obligations of Laurel Run, as the
surviving corporation, continue after the
merger. If you have questions about this
matter, we suggest you direct inquiries to
Laurel Run Mining Company.
Section 3.3(a) of the merger agreement, referred to
by Baucom, provided that:
3.3 Employment Matters.
(a) General.
(i) Except as otherwise specifically provided
in this Section 3.3, the Company [Occidental],
Newco and the Surviving Corporation shall
assume and be responsible for all costs (includ-
ing contributions), claims, related claims, and
obligations, known and unknown, fixed, con-
tingent, past or future, and expenses (including
attorney fees) related to all Laurel Run em-
ployees and retirees, excluding salaried non-
union retirees, regardless of whether any of
the foregoing results from events occurring on
or prior to the Closing Date, including, with-
out limitation, wages, fringe benefits, work-
men's compensation, obligations of Laurel Run
or the Group under the United Mine Workers
of America National Bituminous Coal Wage
Agreement of 1984, and black lung claims and
benefits.
The record reflects no response by Holland.
In perhaps justifiable confusion over the true
identity of the ownership of Laurel Run, on De-
cember 4 Miller wrote the first two letters contain-
ing the requests for information that are at issue
here. To Island Creek's Bassett he wrote:
Dear Don:
In order for District 31, UMWA, to intelli-
gently and effectively represent the bargaining
unit employees of Laurel Run Mining Compa-
ny for whom we are the recognized exclusive
bargaining agent, it is necessary that you pro-
vide us with certain information regarding the
role of Island Creek Coal Company at Laurel
Run Mining Company.
Therefore, I am requesting that you provide
the following information:
1. A copy of all preliminary, temporary, or
interim contracts, agreements, memoranda, or
letters of intent which gave Island Creek Coal
Company authority to manage Laurel Run
Mining Company prior to September 15, 1986;
2. A copy of the final contract(s),
agreement(s), or whatever such document(s)
may be called that sets forth the terms and
conditions through which Island Creek will
manage the Laurel Run Mining Company.
Additionally, will Island Creek recall to em-
ployment at Island Creek operations, such as
the North Branch Mine or Birch-2A, employ-
ees who have paneled for employment at such
Island Creek operations upon layoff at Laurel
Run Mining Company.7
Your prompt response to this information
request will be appreciated.
And to Donald Schlick, president of Laurel Run,
he addressed a similar but more extensive request:
Dear Mr. Schlick:
In order for the United Mine Workers of
America, District 31, to intelligently and effec-
tively represent the bargaining unit employees
of Laurel Run Mining Company for whom we
are the recognized exclusive bargaining agent,
it is necessary that you provide us with infor-
mation regarding the recent transactions
among Laurel Run Mining Company, Virginia
Electric and Power Company, Occidental Pe-
troleum Corporation, Island Creek Coal Com-
pany, and Canaan Mining Company.
Accordingly, I am requesting that you pro-
vide a copy of the following:
1. "Agreement and Plan of Reorganization
And Merger" dated September 15, 1986,
among Occidental Petroleum Corporation,
r "Paneling" refers to the practice of allowing employees who are laid
off at a mine covered by the collective-bargaining agreement to apply to
transfer to other mines controlled by the same employer.
ISLAND CREEK COAL CO 483
Canaan Mining Company, and Virginia Elec-
tric and Power Company,
2 The "Plan of Merger" attached to the
document identified in 1 above as Exhibit A,
3 The contract(s) or agreement(s), or what-
ever such documents may be called, that set
forth the terms and conditions through which
Island Creek Coal Company will manage the
Laurel Run Mining Company,
4 All preliminary, temporary, or interim
contracts agreements, memoranda, or letters
of intent dated prior to September 15, 1986,
which gave Island Creek Coal Company au-
thority to manage Laurel Run Mining Compa-
ny prior to September 15, 1986
In addition, will Laurel Run Mining Compa-
ny recall to employment those employees who
have been laid off by Island Creek's operations
by Island Creek and have paneled for employ-
ment with Laurel Run Mining?
Your prompt response to this information request
will be appreciated We note that neither request
explained why the Union desired the information it
sought We also observe that the UMW already
had been furnished a copy of part of the merger
agreement-the portion dealing with the assump-
tion of Laurel Run's contractual obligations-re-
quested in Miller's letter to Schlick
By letter dated January 13, 1987,8 Bassett re-
sponded to Miller's December 4, 1986 letters
Dear Jerry
We have reviewed your request for informa-
tion made in your December 4, 1986 letters
We do not have a written management agree
ment as requested in Item 3 of your letter to
Don Schlick We consider the other docu-
ments you have requested to be proprietary in
formation, and not subject to disclosure
Jerry, we have allowed our laid-off employ
ees at Laurel Run to panel to other Island
Creek operations Under the circumstances, we
intend to honor those panel rights as long as
Island Creek manages Laurel Run Converse
ly, of course, Island Creek employees at other
operations can panel to the Laurel Run Mine
as long as Island Creek manages that mine
Given the fact that you are requesting infor-
mation relating to a period prior to September
15, 1986, and there is no grievance pending, I
do not see any relevance to the information
you have asked for We have honored our
1984 Wage Agreement the entire time we have
managed the mine
8 Unless otherwise noted all dates henceforth are in 1987
If you have a specific question as to whether
we are complying with our Agreement, feel
free to call me and let's discuss it
Miller did not claim to have called Bassett to dis
cuss specific questions concerning the Respondents'
compliance with their collective-bargaining agree
ments Instead, he filed the charges in Cases 6-CA-
19812 and 6-CA-19814 on behalf of the Union on
February 9 9
A week later, on February 16, Miller addressed a
second request for information to Bassett
Dear Don
As the legally recognized exclusive bargain-
ing agent of the bargaining unit employees em-
ployed by Laurel Run Mining Company, I am
requesting that you provide us with certain in-
formation that is both relevant and necessary
in order that District 31 can intelligently and
effectively represent the aforementioned em-
ployees
Accordingly, please forward the following
information
1 A listing of the daily production of
Laurel Run Mining Company for the calendar
year of 1986 and for the month of January,
1987,
2 Copies of all contracts, agreements, requi
sitions, purchase orders, or memoranda which
specify the total amount of coal that Laurel
Run Mining Company was/is to provide to
Virginia Electric Power Company for the
years of 1986 and 1987,
a Also to be included is documentation de-
tailing in what amounts Laurel Run is to deliv
er this coal and the frequency of delivery,
3 A copy of the annual budget report sub-
mitted on behalf of Laurel Run Mining Com
pany
Your prompt attention to this information
request will be appreciated
We again observe that, as before, Miller did not ex-
plain specifically why the Union was seeking the
requested information
On April 3 a meeting took place at UMW head-
quarters in Washington, D C Representing the
Union were Miller, Rick Yanero, subdistrict execu
tive board member for the Union, and Judy Scott,
8 The Respondents deny that a copy of the charge in Case 6-CA-
19812 was served on Island Creek on February 10 1987 as alleged in the
complaint The return receipt attached to the copy of the charge re
ceived in evidence shows that the charge was delivered on February 13
1987 to an address that appears as the return address on one of Bassett s
letters to Miller and to which Miller sent several letters to Bassett (all of
which were received) We find that service on Island Creek was effected
on February 13 1987
484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
associate general counsel for the UMW Island
Creek was represented by Robert Reineke, the
Company 's general counsel , and Michael Garrison,
another attorney Reineke and Garrison explained
to the union representatives how Laurel Run had
come to be acquired by Occidental , and supplied
details of the interrelationships between and among
Island Creek , Laurel Run, Occidental , VEPCO,
and Buffalo Mining Company
Miller testified that he then requested copies of
documents , including those requested in his De-
cember 4 , 1986 letter to Laurel Run According to
Miller , Garrison said that he did not have all that
information with him , and that he was not going to
give the Union copies of the documents anyway
However , the Island Creek attorneys did produce
copies of certain documents for review by Miller,
Yanero , and Scott , including a copy of the Agree-
ment and Plan of Reorganization and Merger
under which Laurel Run had been acquired Miller
testified that he reviewed the document from ap-
proximately noon until 3 pm, with time out for
discussion, after which the Island Creek representa-
tives left to catch a plane While he was reviewing
the merger document , Miller took some 20 pages
of notes on its provisions , some in considerable
detail 10 Miller did not claim that after he re
viewed the merger documents he ever told the Re
spondents that the review was not sufficient for the
Union 's purposes , that he needed time for further
review, or that the Union still needed copies of the
documents Neither , however, did he tell the Re
spondents that his review had satisfied the Union's
request for information On April 27 Miller filed
the charge in Case 6-CA-20021 on behalf of the
Union
On May 5 Miller sent a letter to Bassett attempt
ing to clarify his February 16 request for informa-
tion
Re Information Request-Dated February 16,
1987
Dear Don
Although Messrs Reineke and Garrison ap
parently understand my reasons for requesting
the above referenced information inasmuch as
they had with them at our April 3rd meeting,
the "Buffalo Ash Pit Agreements " and partici-
pated in the discussion of the change in pro
duction at Laurel Run and the "Buffalo" deal,
I, nevertheless , wish to inform you that I have
requested this information in order for District
31 to decide whether , or not , Laurel Run
10 Millers notes were introduced into evidence by the Respondents
We rely on Miller s testimony when it is corroborated by the notes or by
other documentary evidence
and/or Island Creek have/has violated the
terms of the National Bituminous Coal Wage
Agreement
The information requested in item 3 of the
February 16th request was based upon the
deposition of one of Island Creek 's agents
which indicated that an annual projection is
provided , not only for Island Creek mines but
also for contract mines, by Division Managers
to upper management officials Thus this infor-
mation should show the anticipated 1987 pro-
duction for both Laurel Run and Buffalo
Mining
Please contact me at your discretion if you
have any questions regarding this matter
Bassett responded by letter dated May 18
Dear Jerry
We have reviewed your letter of February
16, 1987 , wherein you requested various docu
ments and information Pursuant to your re-
quest, I will be forwarding the daily produc
tion of the Laurel Run Mine for calendar year
1986 and January of 1987 as soon as I collect
the information
The Company considers the information re-
quested in items 2 and 3 of your February 16,
1987, letter extremely confidential and unrelat-
ed to the terms and conditions of employment
of your members Your letter of May 5, 1987,
indicates that you believe the Company may
have violated the collective bargaining agree-
ment and states that the information requested
in item 3 is based upon the deposition of a
Company employee Further you state that the
budget would show anticipated production for
both Laurel Run and Buffalo Mining
We do not understand how the information
you are seeking is relevant to your duties and
responsibilities Your letter of May 5, 1987, for
example, fails to specify what provision of the
Wage Agreement you are concerned with or
why anticipated production is relevant or nec-
essary Nor do we have any indication as to
what specific information, from the numerous
documents requested , you are actually seeking
If you can tell us what specific information
you are seeking and describe the relevance of
the information , including the specific contract
provisions that you feel are applicable, I be
lieve we can resolve our problems by furnish
mg you with the information you need, possi
bly with confidentiality requirements
Until we are provided with that information,
we consider your request for information in
items 2 and 3 overly broad and irrelevant And
ISLAND CREEK COAL CO
as a result, we are unwilling to release infor
matron relating to specific customers and the
Company budgetary process
I look forward to hearing from you with the
hope that we can resolve this matter
In a letter dated May 27, Miller provided further
clarification of the Union's request, and gave his as-
surance that the Respondents' confidential informa
tion would not be disclosed to other coal compa-
nies or to the news media
Re Information Request-Dated February 16,
1987
Dear Don
We have received your letter of May 5 [sic],
1987, and, although we believed that you, or
at least Messrs Reineke and Garrison, knew
the areas of the collective bargaining agree-
ment that were applicable in this dispute, we
will try to answer your inquiry
We believe that the contracting out of the
production of coal at Laurel Run constitutes a
violation(s) of the NBCWA in such areas as
Article I, Article IA, Sections (a), (f), (g)(1),
and (h), Article XVII, and, Article XX
As to your concern for specificity of the in
formation requested, suffice it to say that the
information requested in the February 16th re
quest is clearly identified
Finally, in an attempt to allay your fear that
we will divulge the requested information,
please be advised that we have already given
assurances to Messrs Reineke and Garrison
that we will not release this information to any
other coal company and will not distribute the
information to the news media for publication
or transmission We may, however, submit the
information to an arbitrator in the event that a
grievance should progress to arbitration
Please provide the information requested by
letter of February 16th in order that we can
proceed with the resolution of our problems
On June 2 Miller attended a second meeting, this
time at Island Creek's offices at Elkins, West Vir-
ginia Also present were Claypole, the Union's
president, Garrison, the attorney for Island Creek,
and Bill Phillips, Island Creek's director of industri-
al relations Miller and Claypole were allowed to
review several documents, including a mining
permit obtained by Buffalo Mining Company, a
lease agreement (and an amendment to that agree-
ment) between Island Creek and Buffalo Mining, a
contract between VEPCO and Island Creek, and a
485
subcontract between Island Creek and Buffalo
Mining 11
On June 12 Bassett sent Miller a letter in which
he enclosed the production data for Laurel Run for
1986 and January 1987, which the Union had re-
quested on February 16
On June 30 Phillips sent Miller a letter in re-
sponse to Miller's letter of May 27
Dear Jerry,
I have reviewed your letter of May 27,
1987, to Don Bassett, in light of our brief dis
cussion at Elkins on June 2 with respect to
clarification of the issue and pertinent wage
agreement sections you believe have been vio-
lated
While we now better understand the issue
and which sections of the Wage Agreement
you believe have been violated, we continue to
believe the information you are requesting,
other than the production data Don has pro
vided, is not relevant Therefore, I request an
explanation as to why the subject documents
and/or information are relevant to resolving
the matter
As we have told you, the documents you
have requested are proprietary and confiden-
tial If you will identify the information you
are seeking to obtain from the documents and
explain its relevance, we will attempt to pro
vide such information, while, at the same time,
protecting document confidentiality, particu-
larly on document contents for which you
have no need
Please contact me at your earliest conven
fence so that we can resolve this matter
We note that neither Phillips nor Bassett, in the Tat-
ter's May 18 letter, proposed any specific confiden-
tiality requirements for the release of the requested
documents, nor did Phillips indicate that the
Union's promise not to disclose the requested docu
ments was unacceptable to the Respondents 12 The
Union did not respond to Phillips' letter
On August 10 Phillips sent Miller a second
letter, in which he stated that, in order to assuage
the Union's doubts concerning the successorship
situation at Laurel Run, he would assure the Union
that "it has always been Island Creek's intention to
11 Although those documents may have been relevant to the Unions
concerns they were not requested by the Union and the Respondents do
not contend that they were responsive to the Union s requests
12 Both Phillips and Bassett are admitted to be agents of Island Creek
but not of Laurel Run However in view of Island Creek s admitted role
in the management of Laurel Run we find that Phillips and Bassett s re
sponses to Millers letters can properly be attributed to Laurel Run as
they evidently were intended to be
486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
assume all successorship obligations . . . for which
Laurel Run had previously been responsible," and
he enclosed a copy of a letter from Attorney Gar-
rison to Judy Scott that confirmed that position:
Dear Ms. Scott:
You have brought to my attention certain
Union concerns regarding the extent and
nature of the successorship obligations of
Island Creek Corporation with respect to the
Laurel Run operation. This letter is to confirm
that Island Creek Corporation is the successor
to Laurel Run Mining Company at its oper-
ation in Grant County, West Virginia, pursu-
ant to Article I of the 1984 NBCWA. As such,
it has assumed all obligations of the 1984
NBCWA for which Laurel Run Mining Com-
pany . had been previously responsible. Thus,
Island Creek Corporation's relationship to the
Laurel Run operation is now identical to its
relationship to its other operations covered by
the 1987 EESP.
Phillips further stated that certain information re-
quested by the Union-documents setting forth the
terms under which Island Creek would manage
Laurel Run and documents specifying the amounts
of coal Laurel Run was to provide to VEPCO for
1986 and 1987-did not exist, and that Bassett
would provide an affidavit to that effect.13 Phillips
also offered-subject to the Union's signing a con-
fidentiality agreement (discussed below)-to pro-
vide the Union with copies of the merger agree-
ment and the plan of merger, the interim manage-
ment agreement that gave Island Creek authority
to manage Laurel Run prior to September 15, 1986,
and "relevant parts" of the letter of intent between
VEPCO and Island Creek. Concerning the Union's
request for a copy of Laurel Run's budget report,
Phillips wrote:
As I am sure you understand, our annual
budget is very confidential. Given the fierce
competition in the coal industry, particularly
in this economy, the release of this information
could have serious impact on our competitive
position and sales. In order to resolve this
matter, however, we will provide a chart indi-
cating both the original and the revised Janu-
ary forecast of "Anticipated Production for
1987 for Laurel Run Mining Company,"
which was developed directly from our 1987
Annual Operating Plans. This information will
be provided to you on the condition that it be
13 Bassett 's affidavit was introduced into evidence. It corroborates
Phillips' assertions.
maintained in the strictest confidence in ac-
cordance with the confidentiality agreement.
The confidentiality agreement that Phillips pro-
posed read as follows:
I, , hereby understand that Island
Creek Corporation considers documents relat-
ed to the acquisition of Laurel Run Mining
Company, including but not limited to the
Agreement and Plan of Reorganization and
Merger and the Plan of Merger, and all data
taken from the Company's Annual Operating
Plan for 1987, proprietary and confidential in-
formation.
Therefore, in consideration of Island Creek
Corporation supplying information to me and
allowing me access to the documents relating
to the acquisition so that I may review them, I
hereby agree that I will maintain the confiden-
tiality of the information, and I will not dis-
close the information to anyone other than
representatives or counsel of the UMWA who
need to know to ensure that Island Creek Cor-
poration has complied with the Wage Agree-
ment. Any Union official allowed access to
said information, shall first be required to read
and sign a copy of this Confidentiality Agree-
ment. This information will not be disclosed to
anyone else, including employees of Island
Creek Corporation.
It is understood and agreed that the infor-
mation above may be utilized as the Union de-
termines necessary in a grievance or arbitra-
tion proceeding involving Island Creek. In
such event, both the Union and Island Creek
will attempt to protect the confidentiality of
the information.
Miller did not respond directly to Phillips'
August 10 letter. However, in discussions with the
Respondents' counsel during the week before the
hearing, Miller raised numerous objections to Phil-
lips' offer. First, he objected to the absence of a
notice-posting provision, apparently in the belief
that such a provision would require the Respond-
ents to furnish the Union with information even
absent a request by the Union. He also complained
that Phillips' and Garrison's assurances did not put
to rest the question of successorship, inasmuch as
they appeared to conflict with the representations
made in the merger agreement. Miller further ob-
jected to the Respondents' position that they
should be entitled to decide for the Union what the
relevant parts of the requested documents were,
and to withhold the rest.
ISLAND CREEK COAL CO
Miller also objected to three features of the pro-
posed confidentiality agreement First , he took
issue with the requirement that the information ob
tamed could not be disclosed to employees of
Island Creek Second , he objected that the informa
tion could be used only to determine whether
Island Creek-not Laurel Run-had complied with
the collective bargaining agreement Finally, he ob-
jected to his being unable to disclose evidence of
unlawful conduct to the Federal Government if
such was uncovered
Based on the course of dealings detailed above
between the Union and the Respondents , we must
decide whether the Respondents ' failure to provide
some of the information requested by the Union on
December 4, 1986 , or February 16, 1987, constitut-
ed a refusal to bargain in good faith The judge
found that it did not He found , instead , that the
Union had requested the information in order to
harass the Respondents , that much of the informa
tion requested was irrelevant to the Union 's legiti
mate purposes , and that the rest of the information
had been provided Accordingly, he dismissed the
complaint
The Act requires an employer to furnish infor-
mation requested by a union that is the bargaining
representative of its employees if there is a proba
bility that the information is relevant and necessary
to the union in carrying out its statutory duties and
responsibilities as the employees ' bargaining repre
sentative NLRB v Acme Industrial Co, 385 US
432, 437 ( 1967), Doubarn Sheet Metal, 243 NLRB
821, 823 (1979) Those duties and responsibilities in-
clude the filing and processing of grievances Acme
Industrial , supra , Doubarn , supra Although infor
matron that is not relevant to the union ' s purposes
need not be furnished , the standard for assessing
relevance is a liberal , discovery type standard
Acme Industrial, supra , NLRB v Associated General
Contractors of California, 633 F 2d 766, 770 (9th
Cir 1980), cert denied 452 US 915 ( 1981), Ohio
Power Co, 216 NLRB 987 , 991 (1975), enfd 531
F 2d 1381 (6th Cir 1976), W-L Molding Co, 272
NLRB 1239, 1240 (1984) The Board in Ohio Power
formulated the following test for evaluating the rel-
evance of broad categories of requested informa-
tion
Where the information sought covers the
terms and conditions of employment within
the bargaining unit , thus involving the core of
the employer-employee relationship , the stand
and of relevance is very broad , and no specific
showing is normally required, but where the
request is for information with respect to mat
ters occurring outside the unit , the standard is
somewhat narrower (as where the precipitat-
487
mg issue or conduct is the subcontracting of
work performable by employees within the ap
propriate unit) and relevance is required to be
somewhat more precise The obligation is
not unlimited Thus where the information is
plainly irrelevant to any dispute there is no
duty to provide it
216 NLRB at 991 Where the information sought
pertains to the filing or processing of grievances,
the Board in Ohio Power went on to say
It is not required that there be grievances or
that the information be such as would clearly
dispose of them The union is entitled to the
information in order to determine whether it
should exercise its representative function in
the pending matter , that is, whether the infor
matron will warrant further processing of the
grievance or bargaining about the disputed
matter
Id See also Doubarn Sheet Metal , supra at 823 Fi-
nally, in assessing the relevance of the information,
the Board does not pass on the merits of the
union ' s claim that the employer breached the col-
lective-bargaining contract or committed an unfair
labor practice , thus, the union need not demon
strate that the contract has been violated in order
to obtain the desired information W L Molding
Co, supra at 1240 As the Board observed in Dou-
barn, "Indeed, if the Union had sufficient informa-
tion to prove contractual violations, it would not
need to request information from Respondent[s] "
243 NLRB at 824
The judge , unfortunately , did not consider those
settled principles , and found instead that
A very important fact, one virtually determi-
native of this entire case, must be emphasized at
this point Throughout the entire period of
these events, from the summer of 1986 to the
day of the hearing a year later , not a single
grievance was filed by the Union against any of
the many companies mentioned in Miller's ex-
tended testimony Nor was any suit brought of
any kind This means that the Union's contract
with both the named Respondents-Laurel Run
and Island Creek-has been honored in every re-
spect Stated more precisely in terms of Board
law it means that where the employees ' condi-
tions of employment were involved-the sole
concern of any union protected by this stat
ute-the Union had no reason to complain at all
This reality takes on a special significance in
this case because during the summer of 1986
the employee complement at Laurel Run was
reduced by over 200 employees I do not
488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
know why such a reduction in force took
place. . . . but the fact remains that the Union
never complained-either to the predecessor or to
the successor, about their . . . honoring all the
terms of the collective-bargaining agreement in
effect. This is what no filing of any grievances or
suits means. . . . Had . . . the Respondents
. . . violated a single clause in that contract,
surely the Union would have done something
about it. It did not ! [Emphasis added.]
Thus, the judge not only misstated settled Board
law (by concluding , erroneously , that the absence
of a filed grievance was "virtually determinative of
this entire case," see Ohio Power , supra), but also
erroneously reasoned that , because the Union filed
no suit or grievance , the Respondents had not vio-
lated the contract , even though the Union made
clear that it was seeking the information in order to
determine whether a contract violation had oc-
curred . Further , he failed to consider vital, unre-
butted documentary evidence . He stated , incorrect-
ly, that in support of his demands for information
Miller relied on only one contract provision-the
portion of article I dealing with successorship and
notification of the Union in the event of a transfer
of covered operations . In fact , in his letter of May
27, Miller specifically cited several other portions
of the NBCWA-including those concerning the
scope of covered work ; application of the agree-
ment to covered employers ' coal operations (in-
cluding properties acquired after the effective date
of the contract); contracting out of the transporta-
tion of coal ; leasing , subleasing , and licensing of
coal lands and facilities ; seniority as applied in
times of reductions of the work force or layoffs, in-
cluding "panel rights "; and employer contributions
to employee health and retirement plans- provi-
sions that the Union thought might have been vio-
lated by the contracting out of production of coal
at Laurel Run. Worse , the judge belittled the
Union 's concern that unit work might have been
subcontracted to Buffalo Mining Company (a non-
union firm) as "extraneous elements . . . that in the
end proved to have nothing to do with this com-
plaint." He based this erroneous conclusion , appar-
ently , on the Union 's failure to file a grievance: "If
there is one contract violation United Mine Work-
ers would not stand for , it is the hiring , by a union-
ized mining company , of nonunion miners to do
that work ." He concluded his analysis by observing
that "there is no reliable evidence on which it can
be found either of the Respondents took work
away from their employees that was covered by
the District 31 contract to give it to a nonunion
employer or employees ." That observation , even if
true, is irrelevant to this case . The union was seek-
ing information that it thought would assist it in
determining whether such subcontracting had
taken place in violation of the contract; it was not
required to demonstrate such a violation as a pre-
requisite to obtaining the information. See W-L
Molding Co., supra at 1240; Doubarn Sheet Metal,
supra at 824.
On the basis of the foregoing errors of fact, law,
and logic, the judge concluded that Miller lied at
the hearing, and that, for reasons the judge stated
that he did not understand, Miller's real intention
was simply to harass the Respondent[s]. Thus, the
judge found that:
If there is one thing about which Miller was
certain as soon as he learned that Island Creek
had taken over the Laurel Run mine, it is that
as a successor it was bound to honor the con-
tract with District 31 . . . he knew, at all times,
that the new takeover company was fulfilling the
contract in every jot and tittle. It was exactly
the same contract that used to bind the prede-
cessor. And he was always assured that Island
Creek had no intention of violating that con-
tract, as in fact it did not. Miller was lying at
the hearing. [Emphasis added.]
The judge bolstered his findings by citing Miller's
testimony that one reason he rejected the Respond-
ents' proposed confidentiality agreement was that,
in the event the requested documents contained in-
formation indicating that Island Creek had violated
Federal tax or antitrust laws, the agreement would
prevent him from turning that information over to
the appropriate agencies . The judge misconstrued
Miller's statement as an admission that one reason
he wanted the information to begin with was to be
able to charge Occidental with tax evasion. He also
disparaged as "practically incredible" Miller's testi-
mony that he had shown his notes regarding the
documents he had been provided to counsel for the
General Counsel and to the Union's general coun-
sel, and that those attorneys had not indicated the
existence of any tax or antitrust problems. Appar-
ently the judge thought that that testimony estab-
lished that Miller knew full well that no such viola-
tions had been committed, and that his rejection of
the confidentiality agreement on that ground was
further evidence of a lack of good-faith dealing on
his part. That inference, however, is a non sequitur.
In the first place, Miller did not testify that he
asked the attorneys if they saw evidence of any tax
or antitrust violations. Accordingly, it should come
as no surprise that the attorneys, who would. have
been interested in discovering whether the contract
had been violated, would not have commented on
the peripheral issues. Second, and more important,
ISLAND CREEK COAL CO 489
Miller had not been furnished with copies of all the
information he had sought, obviously, neither he
nor the attorneys could have known whether tax
or antitrust problems would be found in documents
they had never seen
The judge also relied on Miller's testimony that,
although he had requested a copy of Laurel Run's
budget report, the only information he sought from
that report pertained to anticipated coal produc
tion, not to the Respondents' finances The judge
found significance in Miller's concession that he
had not told the Respondents' agents during settle
ment negotiations that the Union would accept a
copy of the budget report with the financial figures
deleted, and he characterized Miller's testimony as
"double talk " Once again, however, the judge
overlooked the fact that, in his May 5 letter, Miller
explicitly stated that the budget report "should
show the anticipated 1987 production for both
Laurel Run and Buffalo Mining ," and thereby put
the Respondents on notice concerning the real sub-
stance of the information request
Were we to agree with the judge that the
Union's only real reason for making its information
requests was to harass the Respondents, we would
undoubtedly affirm his dismissal of the complaint,
for if the only reason for such a request is harass
ment, an employer is not required to comply with
the request Hawkins Construction Co, 285 NLRB
1313 (1987), enf denied on other grounds 857 F 2d
1224 (8th Cir 1988) (request must be made in good
faith, good faith requirement is met if at least one
reason for the demand can be justified) 14 Howev-
er, we reject the judge's harassment finding as
lacking support in the record As we have noted,
the judge erred as a matter of law in finding that
the absence of a grievance was "virtually determi-
native of this entire case," and he inexplicably con
cluded that the fact that the Union had filed no
grievance or suit meant not only that the contract
had not been violated but that the Union knew it
had not been violated From that point, his ultimate
conclusion-that the Union's requests for informa-
tion had been made in bad faith-was practically a
certainty Of course, no such conclusion can fairly
be drawn, because it does not follow from the fact
that no suit or grievance was filed that the Union
knew the contract had not been breached 15 Nor
14 Bad faith is an affirmative defense that must be pled and proved by
the Respondents Hawkins Construction supra fn 20 The Respondents
here did not raise the issue of bad faith in their answer to the complaint
Whether their failure to do so precludes us from finding bad faith is an
issue we need not decide because the record does not support that find
mg
,5 On cross examination Miller was asked whether after it became in
volved in managing Laurel Run Island Creek processed grievances and
complied with [their] obligations under [their] collective bargaining
agreement Miller responded eventually We interpret Miller s answer
can the judge's conclusion be supported by his
practice of ignoring critical portions of the docu-
mentary record and of misconstruing Miller's testi-
mony In sum , we find, contrary to the judge, that
the Union did not make its requests for information
to harass the Respondents 16
Having found that the Union's requests for infor
mation were not made in bad faith, we must deter-
mine whether the responses to those requests by
Island Creek and Laurel Run amounted to a breach
of the Respondents' duty to bargain
We first consider whether the information re-
quested was relevant, under a liberal discovery-
type standard, to the Union's performance of its
duties as the employees' collective-bargaining rep
resentative We find that it was Thus, in its De-
cember 4, 1986 requests, the Union sought to
obtain documents that it hoped would shed light
on the actual identity of the employees' employer
following the purchase and of sale of Laurel Run,
and the extent to which the Respondents had com-
plied with their contractual duties to secure the
"successor's" 17 agreement to comply with the
terms of the contract It can hardly be contended
that a union is not entitled to know the identity of
the employer of the employees it represents, and
certainly the Union was entitled to know who the
"successor" was and whether it had complied with
any obligations arising from the contract Similarly,
having been informed that Island Creek was man-
aging Laurel Run, the Union had an interest in
knowing the terms of the management relationship,
so that it could determine, among other things,
as a concession only that the Respondents at some point began to process
grievances not that they were in every respect in compliance with their
contract with the Union The phrasing of the question by the Respond
ents counsel is too general for us to conclude that Miller s reply meant
specifically that there had been no subcontracting of Laurel Run work in
violation of the contract which was the focus of the Union s concerns
when it made its requests for information Accordingly Miller s state
ment does not undermine our finding that the Union did not know
whether the contract had been violated
15 We are mindful that in a similar case the Eighth Circuit denied en
forcement of the Board s decision in which the Board overturned a
judge s finding based partly on credibility that the union s only motive
in requesting information was to retaliate against the employer for filing a
lawsuit against the union NLRB Y Hawkins Construction Co 857 F 2d
1224 (8th Cir 1988) Hawkins however is distinguishable from this case
because there the fudge found that the union had knowledge of the em
ployer s suit when it made its information request 2 days later Here by
contrast there was no such action on the part of the Respondents that
might have triggered a campaign of harassment by the Union and the
fudge conceded that he had no idea why the Union would have wanted
to embark on such a campaign Moreover in Hawkins the Board simply
drew different inferences from those of the judge based on the relevant
evidence The Board did not part company with the fudge as we do
here over his errors of law his failure to fully consider the record and
his drawing of unfounded inferences from that record Accordingly al
though we respectfully disagree with the court s decision in Hawkins
that decision does not conflict with our decision in this case
it We express no view concerning whether any of the companies in
volved in that transaction is a successor within the meaning of Board
law
490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
whether Island Creek was a joint employer with
Laurel Run. Accordingly, we find that copies of
the "Agreement and Plan of Reorganization and
Merger" and attached "Plan of Merger," and of
the interim and final agreements concerning Island
Creek ' s management of Laurel Run, requested on
December 4, were relevant to the performance of
the Union's statutory duties.
We also find relevance in the documents request-
ed in the Union's February 16 letter. Each of those
documents, including the Laurel Run budget
report, contained (or was thought to contain) infor-
mation concerning past and prospective coal pro-
duction at Laurel Run. That information could
have helped the Union to assess whether the Re-
spondents had breached the contract by subcon-
tracting out unit work, and thus could have assist-
ed it in deciding whether to file a grievance. 18
However, although we find relevance in each of
the documents sought by the Union, we do not
find that the relevance of any of those documents
would have been obvious to the Respondents
under the circumstances in which the initial re-
quests were made . Although the adequacy of the
requests to apprise the Respondents of the rel-
evance of the information must be judged, not
from the communications alone, but in the light of
the entire pattern of facts available to them, Ohio
Power, supra at 990-991 fn. 9; Westwood Import Co.,
251 NLRB 1213, 1227 (1980), enfd. 681 F.2d 664
(9th Cir. 1982), we find that the Respondents were
not given notice of the relevance of the informa-
tion sought until May. None of the requests were,
on the surface, concerned with terms and condi-
tions of employees in the unit. A showing of rel-
evance therefore was required. Ohio Power, supra at
991. (Indeed , a request for information about sub-
contracting in violation of the contract-evidently
the Union's chief concern here-was cited in Ohio
Power as an example of a request requiring a more
precise demonstration of relevance. Id.) Nor did
the Union explain in either the December 4 or the
February 16 letters why it was seeking the docu-
ments in question . 19 Nothing in any of those letters
adverted to the possibility that the Respondents
had violated the contract by subcontracting unit
work . Plainly , there is nothing in its request for the
18 Without question , information concerning subcontracting of unit
work is relevant to a union 's performance of its representational func-
tions. See, e .g., Acme Industrial, supra ; W-L Molding, supra; Doubarn
Sheet Metal, supra ; Island Creek Coal Co., 289 NLRB 851 (1988).
19 The Union's only explanation in each letter was that it needed the
information "to intelligently and effectively represent the bargaining unit
employees" of Laurel Run. That sort of generalized , conclusionary expla-
nation is insufficient to trigger an obligation to supply information that is
on its face not presumptively relevant . Super Valu Stores, 279 NLRB 22,
25 (1986), citing Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055, 1099
(1st Cir. 1981).
Laurel Run budget report to indicate that what the
Union really was seeking was anticipated produc-
tion information. Although the relevance of the
Union's unexplained request for a copy of the
merger documents might have been apparent in an-
other context, here it must be remembered that the
UMW already had demanded and received portions
of those documents that it had indicated must be
supplied pursuant to article I of the contract. One
of those portions dealt with the issue of assumption
of Laurel Run's contractual obligations by Occi-
dental and Laurel Run following the merger. Con-
cerning the Union's request for copies of the inter-
im management agreements governing the relation-
ship between Island Creek and Laurel Run prior to
September 15, 1986, we find that, given the lack of
explanation , as well as the relative remoteness in
time of the requested information, the Union had
not demonstrated the relevance of those docu-
ments.20 Finally, we note that, although Bassett
suggested in his letter of January 13 that Miller call
him if there was a specific question regarding the
Respondents' compliance with the contract, Miller
did not do so. In summary, because the Union
failed initially to apprise the Respondents of the
relevance of the information sought in its Decem-
ber 4 and February 16 requests, and because the
entire pattern of facts surrounding those requests
were not such as to make the relevance of that in-
formation plain to the Respondents, we find that
the Respondents were not required to supply the
information requested until the Union clarified its
requests in May.21
The situation changed dramatically with Miller's
letters of May 5 and 27, at least concerning the
February 16 request. On May 5, Miller wrote to
Bassett and explained that the request involved the
"Buffalo Ash Pit Agreements" and the change in
production at Laurel Run, and that the Union
needed the information in order to decide whether
the Respondents had violated the collective-bar-
gaining agreement . He further stated that the
budget report for Laurel Run should show the an-
ticipated 1987 production for both Laurel Run and
20 The collective-bargaining agreement provided that a grievance must
be filed within 10 working days from the time the employee reasonably
should have known about it. In view of that fact , and because no griev-
ance was pending that related to the period before September 15, it is
understandable that the Respondents should have failed to apprehend the
relevance of the interim agreement to the Union 's performance of its
duties as of December 4.
21 In fact , the complaint alleges that the Respondents' failure to pro-
vide the documents requested in Miller's February 16 letter was unlawful
only since May 27.
The remaining information sought either was provided or, according to
the unrebutted contentions of the Respondents, did not exist . According-
ly, we find that the Respondents satisfied their duty to bargain with re-
spect to the requests for those items.
ISLAND CREEK COAL CO 491
Buffalo Mining Even so, Miller did not indicate
specifically that the Union was concerned that the
Respondents had subcontracted Laurel Run work
in violation of the agreement, nor did he state
which provisions of the agreement he thought had
been breached However, in his letter of May 27
Miller identified several specific provisions of the
contract that the Union believed had been violated
by the contracting out of coal production at Laurel
Run " Moreover, in response to Bassett's allusion
to the need for "confidentiality requirements,"
Miller assured the Respondents that the Union
would not release the information to any other coal
company or to the news media for "publication or
transmission "
Thus, by May 27, the Union had informed the
Respondents that it believed they had violated
specified provisions of the contract by subcontract
ing coal production at Laurel Run, that it wanted a
copy of the budget report for Laurel Run, which
contained production forecasts for both Laurel Run
and Buffalo Mining that would clearly pertain to
any question of improper subcontracting, and that
it would not divulge confidential information either
to their competitors or to the news media We find
that, no later than May 27, the Respondents were
on notice that the production forecasts contained in
the budget report were relevant to the Union's per
formance of its functions as the employees' bar-
gaining representative At that point, then, it
became the Respondents' duty to provide those
portions of the requested budget report relating to
production, subject to reasonable safeguards for
confidential information 22
The Respondents, however, failed to take action
in the face of the Union's clarifications As late as
June 30, Phillips wrote to Miller stating that, al-
though they better understood "the issue," and had
been told which provisions of the contract the
Union believed had been violated, the Respondents
still could not discern the relevance of the request
Phillips also requested that Miller identify the in-
formation the Union was seeking from the docu
22 The Union still did not explain why it needed the information re
quested in its December 4 1986 letter Moreover on April 3 Miller and
the other union representatives were allowed to peruse the merger docu
ments at length and to make extensive notes on their contents The
record does not indicate that Miller ever indicated to the Respondents
(before the heating) that his April 3 review of those documents was in
sufficient or that he either needed to obtain copies thereof or additional
time to review them Miller testified that the Union needed copies of the
documents because in the event the information contained in them was
needed at arbitration the Union would be prejudiced if it could not intro
duce the documents themselves However there is no indication that
Miller made that concern known to the Respondents before the heating
Accordingly to the extent that the Union s request was for copies of the
merger documents rather than simply for an opportunity to review them
we find that it never made the relevance of its request known to the Re
spondents and therefore that the Respondents had no duty to provide
copies
ments, even though Miller had clearly indicated
that he was asking for the production forecasts
from the budget report This response does not sat
isfy an employers obligation under Section 8(a)(5)
It should have been clear to the Respondents by
May 27, if not before, exactly what information the
Union sought to obtain in its request for the budget
report and the relevance of that information If the
Respondents were concerned that the request in its
original form was overly broad, they could have
offered a reasonable proposal to provide the pro-
duction information the Union was seeking,23 in
stead of continuing to express a lack of understand
Ing of the Union's request 24 Moreover, the Union
had offered reasonable assurances that it would re-
spect the confidentiality of the Respondents' docu
ments, and the Respondents gave no indication
until much later that those assurances were in any
way unsatisfactory If the Respondents thought the
Union's assurances would not have protected their
confidential information sufficiently, they should
have made their concern known to the Union 25
However, the Respondents took neither of those
reasonable actions Instead, for more than 2 months
after the Union had clarified its request, the Re
spondents continued in their failure to comply with
that request Under all the circumstances, then, we
find that the Respondents26 violated Section
8(a)(5) by failing, after May 27, to furnish the
Union with the production forecasts contained in
the budget report for Laurel Run 27
2 3 As in fact they later did See discussion infra
24 Even if a union s request for information is overly broad the em
ployer may not refuse to provide the portions of the information that are
relevant to the union s performance of its bargaining functions Westwood
Import Co supra at 1227 Super Valu Stores supra at 26
25 As again they subsequently did See discussion infra
26 Par 15(b) of the complaint alleges only that Laurel Run failed to
provide the information requested by the Union on February 16 Howev
er par 16 alleges that the Respondents violated the Act by their actions
described in par 15 (which also included the failure to supply the infor
mation sought by the Union in December) Moreover the February re
quest was directed to Bassett of Island Creek which through Phillips
and Bassett was the party that was actively involved in dealing with the
Union after May 27 Counsel for the General Counsel moved at the end
of the heating to conform the pleadings to the proof On the basis of all
the foregoing we find that Island Creek as well as Laurel Run violated
the Act
21 We find Bohemia Inc 272 NLRB 1128 (1984) to be distinguishable
from this case In Bohemia Inc the Board found that the union had
failed to demonstrate the relevance of its request for information con
cerning production sales payroll hours and output projections at two
facilities which the union was seeking out of concern over a possible
transfer of unit work The Board noted that the union had no objective
basis for believing that such a transfer had occurred and that its request
was based solely on the suspicions of employees that work had been
transferred to another facility because of a wage cut there The Board
also remarked on the absence of a pending grievance to the union s fail
ure to cite the contract provisions that it thought had been violated and
its failure to show that it had raised the subject matter of the request in
contract negotiations In this case by contrast we find that there was ob
jective evidence of subcontracting of unit work About the same time
Island Creek became involved in the management of the Laurel Run op
Continued
492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
We further find that the Respondents did not
cure the violation by offering on August 10 to fur-
nish a chart containing projected production fig-
ures derived from the budget report, subject to the
Union's acceptance of the confidentiality agree-
ment. First, the offer was incomplete: it consisted
of production figures only for Laurel Run, not, as
Miller had also requested, for Buffalo Mining.
Second, on this record, the Employer has failed to
carry its burden of demonstrating that the prof-
fered production date (as opposed to the entire re-
quested budget report, which also contained finan-
cial information) was actually confidential.211 Both
Phillips, in his August 10 letter, and the Respond-
ents' only witness, Attorney Marshall Peace, stated
only in a general, conclusionary way that the
budget information was confidential ; neither men-
tioned specifically that the production forecasts
were confidential, or tried to explain how the re-
lease of those projections could harm the Respond-
ents. On cross-examination of Miller , counsel for
the Respondents sought to establish the sensitivity
only of the cost information contained in the
budget report, not of the production forecasts.
Thus, having failed to substantiate its contention
that the production information offered on August
10 was confidential, the Respondents were not enti-
tled to insist on Miller's acceptance of the confi-
dentiality agreement as a condition precedent to re-
leasing that information.29
THE REMEDY
Having found that the Respondents violated Sec-
tion 8(a)(5) by failing after May 27 to provide the
Union with the portions of the budget report for
Laurel Run30 containing the production forecasts
for Laurel Run and Buffalo Mining Company, we
shall order it to do so now. If the Union continues
to profess concern over the process by which in-
formation is included or deleted, the parties shall
bargain over a mutually acceptable method of
doing so.31
eration, a nonunion company began extracting coal from a pit it was dig-
ging on or adjacent to the Laurel Run facility and selling the coal to
Island Creek for resale to VEPCO, Laurel Run 's parent corporation until
September 15, 1986 . During that period of time, the employee comple-
ment at Laurel Run was reduced by about two-thirds . Moreover, the
Union here identified specifically the contract provisions it believed had
been violated.
28 See, e.g., Washington Gas Light Co., 273 NLRB 116 (1984).
29 We therefore are not required to decide whether the Respondents
lawfully could have insisted on the Union 's pledge of confidentiality in
return for providing the entire budget report.
so In his letter of August 10, Phillips referred to "our 1987 Annual Op-
erating Plans ." If that is the accurate title of the "budget report" request-
ed by the Union, that is what shall be provided.
2' See, e .g., Kelly-Springfield Tire Co., 266 NLRB 587, 588 ( 1983), and
cases cited therein . We recognize that, if the parties are unable to reach
an accommodation of their respective interests through bargaining, they
may be before us again ; in that event , if the issue of whether they have
ORDER
The National Labor Relations Board orders that
the Respondents, Island Creek Coal Company,
Lexington, Kentucky, and Laurel Run Mining
Company, Elkins, West Virginia, their officers,
agents, successors , and assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with United
Mine Workers of America, District 31 by failing
and refusing to furnish the Union with a copy of
the portions of the annual budget report submitted
on behalf of Laurel Run Mining Company contain-
ing the production forecasts for Laurel Run and
Buffalo Mining Company, or other information rel-
evant and necessary to the Union's duty to admin-
ister the collective-bargaining agreements between
itself and the Respondents.
(b) In any like or related manner interfering
with, restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Furnish to the Union, on request, a copy of
the portions of the annual budget report submitted
on behalf of Laurel Run Mining Company, con-
taining the production forecasts for Laurel Run
and Buffalo Mining Company.
(b) Post at Laurel Run's Grant County, West
Virginia facility copies of the attached notice
marked "Appendix."32 Copies of the notice, on
forms provided by the Regional Director for
Region 6 , after being signed by the Respondents'
authorized representatives, shall be posted by the
Respondents immediately upon receipt and main-
tained for 60 consecutive days in conspicuous
places including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by the Respondents to ensure that
the notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondents have taken to comply.
bargained in good faith is presented, we shall make our determination
based on the totality of the circumstances. Id.
12 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 Nation-
al 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."
ISLAND CREEK COAL CO 493
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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT refuse to bargain collectively with
United Mine Workers of America, District 31 by
refusing to furnish the Union with portions of the
annual budget report submitted on behalf of Laurel
Run Mining Company, containing the production
forecasts for Laurel Run and Buffalo Mining Com-
pany
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL, on request, furnish the Union a copy
of the portions of the annual budget report submit-
ted on behalf of Laurel Run Mining Company,
containing the production forecasts for Laurel Run
and Buffalo Mining Company, in order to assist the
Union in protecting the rights of employees cov
ered by the Union's collective-bargaining agree-
ment with us
ISLAND CREEK COAL COMPANY
LAUREL RUN MINING COMPANY
Sandra Beck Levine Esq for the General Counsel
J Steve Warren Esq (Jackson Lewis Schnitzler & Krup
man), of Greenville, South Carolina and Paul B Lin
demann Esq for the Respondent
Jerry D Miller Vice President and Barbara Fleischauer
Esq, of Fairmont West Virginia for the Charging
Party
DECISION
STATEMENT OF THE CASE
THOMAS A Ricci, Adminstrative Law Judge A hear
ing in this proceeding was held on 27 August 1987, at
Fairmont, West Virginia, on complaint of the General
Counsel against Island Creek Coal Company and against
Laurel Run Mining Company (Respondents) The com
plaint issued on 17 July 1987 based on charges filed on 9
February and 27 April 1987 by United Mine Workers of
America District 31 (the Union or the Charging Party)
The only issue presented is whether the Respondent
Companies violated Section 8(a)(5) of the Act by refus
ing to furnish requested information to the Charging
Party Briefs were filed by the General Counsel and the
Respondent after the close of the hearing
On the entire record and from my observation of the
witnesses, I make the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENTS
Island Creek Coal Company and Laurel Run Mining
Company are engaged in the mining and nonretail sale of
coal and related products in the State of West Virginia
During the 12 month period preceding February 1987,
Island Creek sold and shipped in excess of $50 000 of its
products to points outside the State During the same
period, Laurel Run Mining Company sold products
valued in excess of $50 000 to Virginia Electric Power
Company, a West Virginia enterprise engaged in inter
state commerce I find that Island Creek and Laurel Run
are employers within the meaning of the Act
II THE LABOR ORGANIZATION INVOLVED
I find that United Mine Workers of America District
31 is a labor organization within the meaning of Section
2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
The principal witness at this hearing was Jerry Miller,
vice president of United Mine Workers District 31 He
spoke in support of the complaint for 136 pages of testi
mony recorded He spoke in ambiguous language mixed
his supposed statements of fact with arguments , reversed
his direct testimony a number of times and in general
was not an understandable or reliable witness Were I to
attempt to use his language here, the reader would have
difficulty understanding what this case is about Prob
lems of this kind are always resolved by resorting to the
basic principles of the Act in plain language in examining
the complaint itself in the light of those fundamental con
cepts
The pertinent facts are plain and undisputed between
the General Counsel and the Respondent Company or
Companies For many years at least as far back as 1970
Laurel Run Mining Company has operated a coal mine
in West Virginia Its employees have been since that time
represented by United Mine Workers District 31 under
regular precise bargaining contracts Laurel Run was for
years owned by Virginia Electric Power Company
which took and used the coal mine by Laurel Run
In 1986 VEPCO sold the Laurel Run Company and
its mining property to a company called Occidental Pe
troleum Occidental is a worldwide organization with all
kinds of business, many of them in separate corporate
names, in subcompanies all controlled by the parent or
ganization One of its many companies is called Island
Creek Coal Company which for some time has owned
and operated two mines in the general West Virginia
area in which the Laurel Run Mine is also located these
two mines are called Dobbin and North Branch Island
Creek too has since 1969 been under regular contract
with United Mine Workers District 31 the Union repre
renting its employees at these two places
After several months of talking experimentation, and
negotiations, the deal between VEPCO and Occidental
494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
finalized on 15 September 1986. In order to operate the
former Laurel Run Mine, Occidental placed that proper-
ty in the name of one of its subsidiaries, called Canaan
Mining . For operational purposes the functioning of the
Laurel Mine was placed in the hands of the Island Creek
Company. From September 19136 to the day of the hear-
ing in August 1987 management of the mine consisted of
former lower managers who had worked for Laurel Run
Mining Company and upper management employees of
the Island Creek Company. Island Creek considered the
Laurel Mine employees as covered by its own contract
with District 31. In fact, it was agreed by all parties at
the hearing that Island Creek gave those employees what
is called "panel rights," i.e., the right to go from one of
its mines to its other mines if work is short at one place.
This was pure application of the District 31 contract to
all Island Creek operations, including the new one. That
is how matters stood at the time of the hearing-the
present employer, whatever its name, as being bound by
the United Mine Workers contract.
A very important fact, one virtually determinative of
this entire case, must be emphasized at this point.
Throughout the entire period of these events, from the
summer of 1986 to the day of the hearing a year later,
not a single grievance was filed by the Union against any
of the many companies mentioned in Miller's extended
testimony. Nor was any suit brought of any kind. This
means that the Union's contract with the named Re-
spondents-Laurel Run and Island Creek-has been hon-
ored in every respect. Stated more precisely in terms of
Board law, it means that where the employees' condi-
tions of employment were involved-the sole concern of
any union protected by this statute-the Union had no
reason to complain at all.
This reality takes on a special significance in this case
because during the summer of 1986 the employee com-
plement at Laurel Run was reduced by over 200 employ-
ees. Where its mine used about 300 employees before all
this happened there were only about 87 at the time of
the hearing. I do not know why such a reduction in
force took place. There is unexplained testimony about
"work stoppages," "unauthoriz:ed strikes," in violation of
the no-strike clause in the District 31 contract having
taken place. There is talk in the record about "nervous
working conditions," "damage: suits," etc. I know noth-
ing about all that, but the fact remains that the Union
never complained-either to the predecessor or to the
successor, about their treatment of the employees, about
their honoring all the terms of the collective-bargaining
agreement in effect. This is what no filing of any griev-
ances or suits means. The union contract, placed in evi-
dence, covers 218 pages printed. Had the Employer-
either Laurel Run or Island Creek, the Respondents
named in this complaint-violated a single clause in that
contract, surely the Union would have done something
about it. It did not!
In justification of its demand for information from the
Respondents, Miller relied on only one clause in the
Union's contract, which provides as follows:
In consideration of the Union's execution of this
agreement, each employer promises that its oper-
ations covered by this agreement shall not be sold,
conveyed, or otherwise transferred or assigned to
any successor without first securing the agreement
of the successor to assume the employer's obliga-
tions under this agreement . Immediately upon the
the conclusion of such sale, conveyance, assignment
or transfer of its operations, the employer shall
notify the Union of the transaction. Such notifica-
tion shall be by certified mail to the secretary treas-
urer of the International Union and shall be accom-
panied by documentation that the successor obliga-
tion has been satisfied.
If there is one thing about which Miller was certain as
soon as he learned that Island Creek had taken over the
Laurel Run Mine, it is that as as successor it was bound
to honor the contract with District 31. He is the vice
president of District 31; he had in his hands Island
Creek's contract with District 31; he knew, at all times,
that the new takeover company was fulfilling the con-
tract in every jot and tittle. It was exactly the same con-
tract that was used to bind the predecessor. And he was
always assured that Island Creek had no intention of vio-
lating the contract, as in fact it did not. Miller was lying
at the hearing. It is enough to comment that at one point
in his testimony he plainly said a reason he wanted infor-
mation about the doings of Occidental, a company in no
way involved with the operation of this mine, was so he
could go to the Internal Revenue Service and charge it
with illegal income tax evasion. What does a parent com-
pany's income tax payment have to do with the condi-
tions of employment of the employees that a union repre-
sents? To ask the question is to answer it.
A final comment about the law before disposing of this
case. Every union established as a representative of a
unit of employees has a right to obtain from the employ-
er all information relating to the conditions of employ-
ment of those employees. This means the relationship be-
tween the worker and the owner of the business-how
much he is paid, what his job retention rights are, what
his profit-sharing or pension rights benefits may be, his
safety in the workplace, etc. Whatever the various condi-
tions may be, they are always directed to the immediate
relationship between employer and employee. Anything
that does not touch on that relationship is beyond the
Union's right to inquire into. This fundamental scheme of
the statute is so old as to require no citation.
We come to the demands for information on the Re-
spondents. The most important documents that the
Union said it had a right to have its hands on is what it
called the "Agreement or Plan of Reorganization and
Merger, dated September 15, 1986, among Occidental
Petroleum Corporation, Canaan Mining Company and
Virginia Electric Power Company." This was the ar-
rangement whereby Occidental bought the Laurel Run
Mining Company from VEPCO. The Union asked for
these documents on 4 December 1986. By that time the
Union knew that Island Creek was operating the mine on
behalf of the purchaser; it knew that Island Creek was
bound by a contract with District 31, as had been Laurel
Run Mining Company, and therefore knew absolutely
that the seller had not at all violated its contract with
ISLAND CREEK COAL CO
that Union Why did it want those documents? What did
they have to do with the conditions of employment '-
if I may again stress that critical phrase-of the employ
ees the Union represented?
At first the Respondent refused to produce those doc
uments, saying they contained confidential data that they
wanted to keep private After general talks and meetings,
the Respondent agreed to show them to the Union, and
did so The union representatives looked them over,
made copious notes of what they contained, and then
again insisted on making full copies of them all In the
end, to quiet the dispute the Respondents even agreed to
that suggestion but only on condition that the union sign
a Confidentiality Agreement, i e, a written promise
not to divulge any information there contained to anyone
except possibly an arbitrator in case of any grievances
which later might be filed With the Union refusing to
bind itself to that promise, the complaint in this case re
sulted
In light of all the related facts of this case, I do not
think the arrangement made between VEPCO and Occi
dental was any concern of the Union Asked, at the hear
ing why he wanted those documents in full in their
original, Miller testified as follows
Q What else can you tell me with regard to the
confidentiality agreement Mr Miller?
A I told you that the fact that we couldn t dis
close the information to anyone would prevent us,
in the event that these documents indicated that
Island Creek can-had broken the law, the Internal
Revenue Code or the Antitrust Laws We couldn t
even turn those documents over the Federal Gov
ernment if we determined that it happened
Q Okay Isn t it a fact, Mr Miller that you used
the IRS and the Antitrust Division of the Justice
Department as simply examples of other people that
you would like to be able to make those documents
tog
A I think I said, for example, if we discovered
that these documents were in violation of Internal
Revenue Code or the Antitrust Laws we couldn t
disclose those to those agencies
Q Okay And did I during that conversation,
indicate that it was the Company s position that
your obligation was to enforce the contract rather
than to delve into other matters outside the collec
tive bargaining agreement?
A You told me that
This statute does not authorize the employees collec
tive bargaining agent to act as enforcer of other govern
mental laws against the employer i
I The following testimony by Miller on this part of the complaint is
practically incredible
Q Have you discussed your notes regarding the documentation
that you ve been provided and allowed to look at with an attorney?
A Yes sir
Q And who was the attorney?
A I ve discussed those notes with Ms Levine of the National
Labor Relations Board and with Ms Fleischauer who is General
Counsel for District 31
495
On 16 February 1987, the Union asked for a copy of
the Annual Budget Report submitted on behalf of
Laurel Run Mining Company The Respondents' posi
tions was that what it proposed to spend in the future,
how it intended to program its expenditures and produc
tion, and other costs, is not a proper subject for the bar
gaining agent of its employees to probe into Budget
means money, not just how much coal the mining com
pany hopes to produce in the future The Respondents
refused to reveal the future budget plans, and the com
plaint calls this refusal an unfair labor practice
At the hearing Miller testified on direct examination
that that budget report ' was necessary to protect the
rights of the union members Later, on cross examina
tion, the witness reversed himself Now he explained that
all he wanted to be told was how much coal the Re
spondent intended to mine, that he did not mean to ask
for financial information Ask did he tell that to manag
ing agents when they together discussed the demands, he
said no " It will not do for the principal witness in sup
port of a complaint to doubletalk that way All Miller
proved was that his real intention during those events
was to harass the Respondent for reasons that I do not
understand It is a fact that for some reason disaster hit
this mine When over 200 employees lose their jobs
within a few months, one can understand their Union s
attempt to do something to help them regain employ
ment But however laudable that purpose may be it
cannot escape Board law as to the rights of unions
Again it all goes back to the beginning The Respond
ents-whether it be the companies named in the com
plaint or the big, overhead, parent organization that con
trol them-did nothing wrong They honored the
Union s contract in every respect at all times Never was
a single grievance filed
Finally Miller injected extraneous elements at the
hearing that in the end proved to have nothing to do
with this complaint A number of times he talked about a
company called Buffalo Mining and, in one way or an
other, indicated it was joined to Laurel Run, or Island
Creek the Respondents here His implication was clear
that the unionized employers used the nonunion compa
ny to mine their coal thereby outrageously violating
their contracts with District 31 Of course, as already
stated no grievance was filed If there is one contract
violation United Mine Workers would not stand for it is
the hiring, by a unionized mining company of nonunion
miners to do that work
At the hearing Miller said Buffalo Mining was actual
ly performing work at the Laurel Run Mining Co
Q Are they still there do you know? A Yes sir "
Again in his direct testimony, he said he understood
Buffalo was mining on the Laurel run property, what
they called the Ash Pit site
On cross examination Miller said that at a conference
with management before the hearing, he was shown a
map which revealed that Buffalo Mining worked on
Q Has any attorney indicated to you that there was any problem
with the Internal Revenue Service or with the Antitrust Division of
the Justice Department for example?
A They have not
496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
property adjacent to that of Laurel Run I believe we
were told that Buffalo Mining s operations started at an
area that began right where Laurel Run quit I believe
that s what we were told This was a complete reversal
of his earlier statement Then came the usual doubletalk
by Miller
Q Yes, sir And it was not the old works or the
previous operations that Laurel Run had mined,
isn t that correct?
A Well now , that depends on how you couch
that I believe I told you that we were told that
Laurel Run mined up to a particular point and
stopped for whatever reason At the point they
stopped is the point that Buffalo began Now I
don t know whether Laurel run was supposed to
have mined there or not I have no way of knowing
that
On this record it is not possible to say with any accu
racy just what work where or when Buffalo Mining
Company does or for that matter , to whom it sells its
nonunion product All I can say is that there is no reh
able evidence on which it can be found that either of the
Respondents took work away from their employees that
was covered by the District 31 contract to give it to a
nonunion employer or employees Miller s testimony as
to Buffalo Mining does not help support this complaint
at all
Beyond the foregoing all that the Union requested of
the Respondents was given to it
[Recommended Order for dismissal omitted from pub
lication ]