Kingwood Mining Co.

National Labor Relations Board - Board Decisions

Feb 17, 1970

181 N.L.R.B. 181 (N.L.R.B. 1970)

KINGWOOD MINING COMPANY 181
Kingwood Mining Company and United Mine
Workers of America . Case 6-CA-3903
February 17, 1970
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On April 30, 1968, the National Labor Relations
Board issued its Decision in the above-entitled
proceeding,' finding that Respondent had engaged in
certain conduct in violation of Section 8(a)(1) and
(5) of the National Labor Relations Act, as
amended, and ordering Respondent to cease and
desist therefrom, and to take certain affirmative
action, set forth therein. Thereafter, on June 16,
1969, the Supreme Court of the United States
issued its opinion in N.L.R B. v. Gissel Packing
Company,' wherein the Court laid down certain
guidelines relative to the propriety of issuing orders
to bargain to remedy violations of Section 8(a)(5) or
violations of other sections of the Act. In view of
the Supreme Court decision, the Board, acting on its
own motion, decided, in light of Gissel, supra, to
reexamine the Decision and Order herein.
Accordingly, the Board, on August 4, 1969, issued a
notice granting permission to the parties to submit
statements of position with respect to the issues to
be reexamined. Such statements were duly filed by
the Respondent and General Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has considered the statements of
position and the entire record in this proceeding
and, for the reasons set forth below, reaffirms its
original finding that Respondent violated Section
8(a)(5) and (1) of the Act by refusing to recognize
the Union as majority representative of the
employees and that a bargaining order is necessary
to effectuate the purposes and policies of the Act in
this case.
We have previously found that the Respondent
engaged in extensive unlawful conduct during the
Union's organizational drive. Thus, the Respondent
violated Section 8(a)(1) of the Act by coercively
interrogating and threatening employees; creating
the impression of surveillance of union activities;
threatening employees with cessation of operations if
they selected the Union as their bargaining
representative; assisting in the solicitation of the
withdrawal of union authorization cards; promising
and granting additional benefits; promulgating and
maintaining an unlawful work rule prohibiting
1171 NLRB No 24
'395 U S 575
solicitation on company premises or during working
hours without prior approval; and threatening
reprisals for filing unfair labor practice charges. We
further found that the Respondent violated Section
8(a)(5) and (1) of the Act by reason of the
aforementioned extensive unlawful conduct, which
was designed to dissipate the Union's majority, and
which indicated a clear rejection of the
collective-bargaining principle. Accordingly, the
Board ordered the Respondent to bargain with the
Union.
Insofar as is relevant here, the Supreme Court in
Gissel, supra, in stating the general principles
applicable to the issuance of bargaining orders,
agreed that the Board has authority to issue a
bargaining order to redress unfair labor practices
"so coercive that, even in the absence of a Section
8(a)(5) violation, a bargaining order would have
been necessary to repair the unlawful effect of those
[unfair labor practices]."3 Additionally, it confirmed
that in less extraordinary cases involving less
pervasive practices, the Board has authority to issue
a bargaining order when it determines that "even
though traditional remedies might to be able to
ensure a fair election there was insufficient
indication that an election (or a rerun . . .) would
definitely be a more reliable test of the employees'
desires than the card count taken before the unfair
labor practices occurred."4
In our opinion, a bargaining order is warranted
on the facts of this case under either of the
standards. The extensive unlawful conduct during
the Union's organizational drive was of such a
pervasive nature as to require a bargaining order,
even in the absence of an 8(a)(5) violation, to
remedy the other unfair labor practices. Further, we
find that the Respondent, by engaging in the
foregoing conduct and refusing to recognize the
Union, violated Section 8(a)(5) of the Act and that
a bargaining order is justified to remedy that
violation. The character of Respondent's excessive
conduct was such as to have a lingering effect and
preclude the holding of a fair and free election. We
therefore find that, on balance, the rights of the
employees and the purposes of the Act would be
better effectuated by reliance on the employee
sentiments expressed in the authorization cards
rather than on the results of an election.
Accordingly, we shall reaffirm the unfair labor
practice findings and the remedy provided therefor
in the original Decision and Order herein.
SUPPLEMENTAL ORDER
In view of the foregoing, and on the basis of the
record as a whole, the National Labor Relations
Board reaffirms its Order of April 30, 1968, in this
proceeding.
'Id at 615.
'Id at 616
181 NLRB No. 31