Maben Energy Corp.; Stoney Coal Co.; East Gulf Fuel Corp.; Hansford Smoke-Less Collieries, Inc.; Harley Mining, Inc.; Birch-Field Mining, Inc.; Davidson Mining, Inc.; M.A.E.-West, Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 149 (N.L.R.B. 1989)

MABEN ENERGY CORP. 149
Maben Energy Corporation ; Stoney Coal Company;
East Gulf Fuel Corporation; Hansford Smoke-
less Collieries , Inc.; Harley Mining, Inc.; Birch-
field Mining, Inc.; Davidson Mining, Inc.;
M.A.E.-West , Incorporated and United Mine
Workers of America . Case 9-CA-25737
DECISON AND ORDER
June 15, 1989
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On March 9, 1989, Administrative Law Judge
Frank H. Itkin issued the attached decision. The
Respondents filed exceptions and a supporting
brief, and the Charging Party filed an answering
brief.
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, I and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondents, Maben
Energy Corporation; Stoney Coal Company; East
Gulf Fuel Corporation; Hansford Smokeless Col-
lieries, Inc.; Harley Mining , Inc.; Birchfield
Mining , Inc.; Davidson Mining, Inc.; and M.A.E.-
West, Incorporated, Beckley, West Virginia, their
officers, agents, successors , and assigns , shall take
the action set forth in the Order.
i In affirming the judge 's 8(a)(5) and (1) findings based on the Re-
spondents ' refusal to provide relevant information requested by the
Union, we find no ment in the Respondents ' contention that their refusal
was justified because some of the requested information was confidential.
The Respondents raised confidentiality concerns for the first time at the
hearing , and at no time complied with the duty to come forward with
some offer to accommodate its concerns with its bargaining obligation.
See Oil Workers Local 6-418 v . NLRB, 711 F 2d 348 , 363 (D C Cir.
1983); Tritac Corp., 286 NLRB 522 (1987). At no time has the Union indi-
cated that it would not consider such an accommodation , and it implicit-
ly showed a willingness to do so in its information request by providing
for the exclusion of arguably confidential contract sales figures from a
relevant document requested.
Damon W. Harrison Jr., Esq., for the General Counsel.
Fred F. Holroyd and William D. Stover, Esqs., for the Re-
spondents.
Charles F. Donnelly, Esq., for the Charging Party Union.
DECISION
FRANK H. ITKIN, Administrative Law Judge. An
unfair labor practice charge was filed in this case on Sep-
tember 2 and an amended charge was filed on October 5,
1988. An amended complaint issued on November 9,
1988. Briefly , the General Counsel alleges that the Union
has requested each Respondent Employer since June 6,
1988, to furnish it with certain information; the informa-
tion requested is necessary and relevant to the Union's
performance of its function as the exclusive bargaining
representative of appropriate units of each Employer's
employees ; and each Employer has failed and refused to
furnish the Union with the requested information, in vio-
lation of Section 8(a)(1) and (5) of the National Labor
Relations Act. Respondent Employers deny violating the
Act as alleged . A hearing was held on the issues raised
in Beckley, West Virginia , on January 10, 1989, and on
the entire record, including my observation of the de-
meanor of the witnesses , I make the following
FINDINGS OF FACT
Respondents admittedly are employers engaged in
commerce and the Union is a labor organization as al-
leged. The Union admittedly has been the exclusive bar-
gaining agent of an appropriate unit of each Respondent
Employer's employees at all times material to this case
and each Respondent Employer has so recognized the
Union. Such recognition has been embodied in separate
successive collective-bargaining agreements, the most
recent of which are effective from January 31, 1988,
through February 1, 1993. The appropriate bargaining
units are as follows:
All employees employed by [each Respondent]
working in or about [each Respondent 's] mine, ex-
cluding all professional employees , guards and su-
pervisors as defined in the Act.
See General Counsel's Exhibits 1(o) and 1(q).
Counsel for Respondent Employers, in his posthearing
brief, acknowledges that the "Union and the Employer
are signatory to a collective bargaining agreement ...";
"the parties have had such a contractual relationship at
all times material to this case"; "on June 6, 1988, the
Union sent a letter to Paul Kizer , an officer of some of
the employers listed herein ," requesting certain informa-
tion (G.C. Exh . 2) in order "to determine the interrela-
tionship between the various companies included as Re-
spondents herein"; "the Employer . . . determined that it
was an improper request because it called for informa-
tion clearly confidential and privileged and not subject to
the disclosure rule"; and "the Employer thereby declined
to furnish the requested documents or to answer the ex-
pounded interrogatories." Counsel for Respondent Em-
ployers further states in his posthearing brief that "there
is no question that the Union is entitled to request much
of the information contained in the June 6, 1988 letter";
the Union assertedly did not respond to "a request for
clarification" (G.C. Exh. 5); "a clarification of the
demand would narrow the request to the point where it
would not . . . jeopardize the Employers' financial posi-
tions" ; "the [requested ] tax returns are of such confiden-
tial nature that they would not be required to be dis-
closed"; and the "information requested was covered by
. .. arbitration proceedings." The General Counsel and
the Union argue that the requested information is neces-
295 NLRB No. 23
150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sary and relevant to the Union 's performance of its func-
tion as bargaining agent of the unit employees and the
Employers have refused to disclose any of the requested
information . The evidence pertaining to these and related
contentions is summarized below.
The June 6, 1988 request was sent from Robert
Phalen, president of District 17 of the Union, to H. Paul
Kizer, admittedly part owner , president, officer, and
agent of various of the named Respondent Employers
(G.C. Exhs. 1(o), 1(n), and 2).1 Phalen explained in his
June 6 request that "there has been much disagreement
and confusion over the nature and scope of your various
operations" within the jurisdiction of both District 17
and District 29 of the Union "as they impact upon our
membership's important contractual rights such as, but
not limited to, seniority issues, panel and recall rights
and job bidding." Phalen requested the specified informa-
tion for each of 15 named companies , which include the
8 named Respondents , from October 1, 1984, to the
present . The documentary requests were for, inter alia,
copies of leases, subleases and/or mining contracts be-
tween or among the named companies in effect during
the Union 's 1984 contract and presently in effect ; copies
of the Legal Identity Reports filed with MSHA for all
operations owned , leased , or controlled by the named
companies or in which they had an interest ; copies of all
mining permits in existence presently and during the
1984 contract with the Union ; copies of certain reports
pertaining to the payment of employee benefits filed with
IRS from 1983 to the present ; copies of notices to the
State Commissioner of Labor regarding any contract,
subcontract, lease or sublease for mining operations on
any property owned , leased or controlled by the named
companies or in which they had an interest between 1983
and the present; copies of any Withdrawal Liability
Notice and Demand as required under ERISA or any re-
lated documents to or from the UMWA Health and Re-
tirement Funds or anyone else concerning any withdraw-
al liability of the named companies ; copies of all coal
sales contracts between any of the named companies and
purchasers , with financial information deleted ; copies of
corporate income tax returns with designations pertain-
ing to consolidated returns ; and an organizational flow
chart of the named companies. Phalen also requested an-
swers to certain interrogatories pertaining to the identity
of the officers, directors, and management representa-
tives of the named companies ; the identity of persons
performing their labor relations functions; the identity of
their customers; the identity of individuals performing
certain services for the named companies ; the identity of
their common insurance carriers ; the identity of any
equipment exchanged , sold, or leased between the named
companies; the identity of personnel transferred between
the named companies ; and the identity of the hiring pro-
cedures utilized.
Subsequently , on June 23 , Phalen again wrote Kizer,
as follows (G.C. Exh. 3):
' At the hearing , counsel for Respondent Employer stipulated that "the
information request leter of June 6 was sent to and received by each
of Respondent corporations in this proceeding." See Tr 8.
As it is essential for the Union to determine the
extent, if any, of the interrelationship between your
signatory companies and your nonsignatory compa-
nies . for purposes of contract administration and col-
lective bargaining , this is to request your immediate
response to my letter of June 6, 1988 to you re-
questing certain detailed information . . . . If you
have any problem with or desire clarification of any
of the Union 's information request, please don't
delay the submission of the remainder of your an-
swers; but , instead , send them and contact me im-
mediately in order that we may discuss any particu-
lar problem you have encountered . .. .
On July 1, William D. Wise Sr., of M.A.E. Services,
Inc., wrote Phalen that the June 6 letter to Kizer had
been given to Wise, "as I have worked on labor relations
matters for him in the past," and would be responded to
within 30 days. (See G.C. Exh. 4.) Thereafter, on July
29, Wise wrote Phalen (G.C. Exh. 5), stating , inter alia,
"I am at a loss to understand your request for informa-
tion . . ."; "we have had no request for that type of in-
formation from District 29" and some of the named cor-
porations are within the geographical division of District
29; although Harley, Davidson , Birchfield and M.A.E.-
West are within the "boundaries of District 17, they
have signed contracts with the Union and have provided
the Union with certain information ; "therefore, you have
all the information necessary for contract administra-
tion"; "there are no negotiations in process . . ."; and
"information above and beyond that stated contractually
is not germane especially in light of the fact that I know
of no grievance or dispute in process . . . . " Wise then
asked in his letter whether there are "specific allega-
tions" by employees of the corporations ; that they be
identified ; and, if not, what is the "specific purpose of
your request." The letter concluded:
Mr. Kizer, in his individual capacity , is not a signa-
tory to any agreement . Therefore, counsel for him
has advised him not to divulge information concern-
ing corporations or other individuals . . . each [cor-
poration] should make their own decision on pro-
viding you with corporate information other than
that requested within the confines of the current
Wage Agreement ... .
On August 4, Phalen wrote Wise (G.C. Exh. 6) repeat-
ing his request for the information; "the requested infor-
mation is essential to enable the UMWA to effectively
administer and monitor important contractual rights and
obligations which I have previously specified"; "both
Districts 17 and 29 share common concerns and prob-
lems in this matter"; and "I [Phalen] have been charged
with the task of attempting to untangle an ever increas-
ing maze of corporate transactions which severely
impact on the job security of union members notwith-
standing any geographical division between District 17
and 29 ." Respondents concededly did not provide the re-
quested information in response to Phalen's letters of
June 6, June 23, and August 4; however , on August 12,
Wise wrote Phalen (G.C. Exh. 7):
MABEN ENERGY CORP. 151
Please note that nowhere in my letter to you .. .
does it state a refusal of information to you in mat-
ters of a contractually authorized concern. Howev-
er, the letter asks for more specific information
before your request can be properly assessed . It also
asked that you request any desired information from
each corporation you listed which you feel you are
authorized to do ....2
Phalen testified that his responsibilities as president of
District 17 include the administration and enforcement of
the Union's 1984 and 1988 contracts (G.C. Exhs. 8 and
9); that Cecil Roberts, vice president of the International
Union , in response to "several complaints from people
within the organization ," "assigned me to look into this
matter involving Maben Energy" or the "Maben Energy
Complex"; that "we had received complaints from .. .
former employees of Quinland Coal [one of the compa-
nies named in G.C. Exh. 2] . . . they felt that they had
panel rights under the new language of the 1988 con-
tract"; that the 1988 contract provides , inter alia, "panel
rights and expanded job opportunities for employees that
may be on an inactive panel for an employer ";3 and that,
based on information in the Union's possession, the
Union "suspected" or "concluded" that the "companies
listed" in the June 6 letter "constituted one common
single joint employer or alter eqos ." Phalen then listed
the bases for this suspicion or conclusion , as follows: Re-
spondent - Employers have the same address; a 1987
newspaper article reported that 10 coal mining and proc-
essing companies , including various Respondents here,
and Kizer , an official of all the corporations, agreed to
pay back wages to some 500 workers in proceedings in-
volving the United States Department of Labor's Wage
and Hour Division (G.C. Exh. 32); a complaint from a
former Quinland Coal employee that there had been a
transfer of some 46 employees from Respondent Harley's
mine to Respondent Birchfield's mine during late 1987
(G.C. Exhs. 30 and 31); a September 9, 1987 meeting
with representatives of various Respondents or the so-
called Maben group to discuss signing . a "me-too agree-
ment" or "letter of intent" between the Union and vari-
ous Respondents pertaining to the new 1988 contract to
be negotiated ; Kizer was the "primary spokesman" for
the Respondents at the above September 9 meeting
where the operations of the various companies were dis-
cussed and Kizer announced "that we were getting
ready to open up the old Bonnie operation which was
formely the Beckley Lick Run Coal Company [named in
2 As noted supra , counsel for Respondent Employers stipulated at the
hearing that Phalen 's June 6 letter to Wise was "sent to and received by
each of the Respondent corporations."
s Phalen noted that the specific contractual language "Dealing with ex-
panded job opportunites" for employees is contained in art. II, Job Op-
portunity and Benefit Security (JOBS), and the specific contractual lan-
guage pertaining to "panel rights" is contained in art . XVII, Seniority of
the 1988 contract , 0 C. Exh. 8 See also Gies & Smith , Labor Law
Successorship Under the National Bituminous Coal and Wage Agreement
and the Union 's Campaign for Job Security, Vol 90 W.VA. L. Rev 921,
942-951 (1988), in which the writers note that the new provisions of the
1988 contract "affect both job security at non-signatory operations and
leasing and licensing activities at signatory operations ," and "create sig-
nificant new obligations for industry employers." A copy of this publica-
tion is also annexed to Charging Party 's brief.
G.C. Exh. 2]"; information that William D. Wise Sr.
"handles all aspects of labor relations . . . for the entire
group of the Maben companies" (see G .C. Exhs. 4 and 5)
and they have a common insurance carrier; "several
complaints" from former employees "regarding the inter-
change of equipment from one operation to another" of
various Respondents as well as the "interchange of su-
pervisory personnel"; the facts recited in 1983, 1986, and
1987 arbitration decisions or adduced at the proceedings
pertaining to various Respondents ' operations and their
relationships (G.C. Exhs . 25, 28, and 29); and related
documents which the Union had in its files . See also
General Counsel 's Exhibit 27, a memorandum from
Kizer of M.A.E. Services , on June 8, 1987 , to "salary
and management personnel ," reciting: "M.A.E. Services,
Inc. provides management services for the coal oper-
ations which comprise the East Gulf Complex . . . and
the M.A.E.-West Complex ..." and General Counsel's
Exhibit 26, a memorandum from M .A.E. Services, on
September 2, 1986 , to its employees and the employees
of "those operations service" including Quinland and
various Respondents.
Phalen then reviewed each requested item of informa-
tion in his June 6 letter explaining how the requested in-
formation would assist the Union in performing its func-
tion as bargaining agent of the unit employees . The re-
quested information would , inter alia , reveal "who the
players are"; the nature of the relationship between these
various enterprises "insuring that our members' rights
have not been violated by the complex structure of
Maben"; disclose "what Maben owns" and what the
other named entities own and their relationships; "who
the company is that holds [each mining] permit" ; the ex-
istence of "common management" or "common control"
among the entities ; and thus "would place us in the pos-
ture to make a valid argument " that this "group" "consi-
tutes a common employer or an alter ego . . . in order to
provide . . . panel rights for the employees as well as ex-
panded job opportunities" under the contract. Phalen
noted that the Union 's request permitted the Employers
to "delete the actual price per ton" for coal under sales
contracts between these companies and purchasers;
"We're not looking for specific financial data" in the re-
quested tax returns and such data can be deleted; "we
can sign a confidentiality pledge or whatever today";
"what I am looking for is whether or not it's a consoli-
dated return." Phalen explained that he has not received
any of the requested information and "was willing to ad-
dress any concerns the Company may have concerning
confidentiality or proprietary information"-the Employ-
ers never expressed to him "any concerns regarding .. .
confidentiality."4
4 On cross-examination, Phalen explained that "panel rights" or "job
opportunities" are not the only concern of the Union here ; there are
other contractual benefits involved including the health benefits for em-
ployees of employers who have gone out of business Phalen also ex-
plained that Beckley Lick Run Company, referred to above, formerly op-
erated the Bonnie mine and that enterprise is now operated by Respond-
ent Hanford Smokeless and Zalkia Sales , also named in G.C. Exh. 2; fur-
ther, the former Quinland Coal, also named in G.C. Exh. 2, was signato-
ry to the 1984 contract and did not sign the 1988 contract -"the old
structure Quinland and M A.E.-West . . . panels are under [Respond-
ent] M.A.E.-West."
152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Everett G. Accord is president of District 29 of the
Union . His duties and responsibilities for the Union
within his geographical division are essentially similar to
those of Phalen. Accord testified that, shortly after
spending the 1988 contract which as noted contained
"new job protection and job opportunity" provisions,
International Union Vice President Cecil Roberts ap-
prised him that the Union
was going to attempt to determine if in fact all the
corporations [in the so-called Maben group] .. .
were one in the same, were a common employer,
and that he [Roberts] had assigned Mr. Phalen to
head up that project and I was to assist him
[Phalen] in any manner.
Accord later spoke with Phalen and authorized Phalen
"to make the request" of the Employers involved.
Accord also assured Phalen that he would provide any
information pertaining to operations within District 29.
Accord further testified that during late 1987, he was no-
tified by M.A.E. Services and Wise that Amigo Smoke-
less Coal Corporation , named in General Counsel Exhib-
it 2, would no longer be liable or responsible for the
health benefits of a group of its pensioners and widows;
that he thereafter spoke with Kizer about the possibility
of continuing these benefits ; that Kizer "did agree that
he would continue the health benefits for Amigo Smoke-
less" and that "as of this day . . . they are still providing
these benefits" even though Amigo Smokeless is no
longer "operating" and is not a signatory to the 1988
contract.5
William D . Wise Sr., vice president of human re-
sources for M.A.E. Services , Inc., testified with respect
to a pending arbitration proceeding . See attachments to
counsel for Respondent Employers' brief, discussed
below with reference to the Employers' contention that
the Board should defer to this pending arbitration pro-
ceeding . As Wise noted, "basically, it 's some of the per-
sonnel from [the former] Quinland Coal wanting to panel
to other mines in the area belonging to Harley Mining,
Birchfield Mining and Davidson Mining . . ." Wise next
testified that he has not received any "response" from
Phalen to his alleged request for "clarifications," as recit-
ed above. And, Wise, referring to Respondent's Exhibit
1, claimed that Respondent Employers, by signing a 1987
interim agreement with the Union, were no longer obli-
gated to provide the requested information in this case.
This waiver contention is also discussed below. Wise was
asked about "pensions [and hospitalization rights] paid to
the Amigo and Beckley Run Companies ." Wise general-
ly claimed that "they 're being paid through the same sit-
uation as all other retired employees are being paid for
the various companies whether they are in business right
now or not" and "it is not unusual in the coal fields for a
6 Accord also explained that Beckley Lick Run Company, named in
G.C. Exh. 2, was initially a subsidiary of CSX Corporation; that it was
shut down in 1987, and that it was later "taken over by Paul Kizer and
his corporations ... and they named the deep mines Hansford Smokeless
Collieries and they named the preparation plant Zalikia Sales." Hansford
Smokeless is a Respondent in this proceeding and both Hansford Smoke-
less and Zalkia Sales are named in G.C. Exh. 2.
company to enter into these side type agreements...."
Elsewhere, Wise claimed that he did not know "who is
providing the health benefits for Amigo Smokeless."
Much of the testimony and evidence summarized
above is undisputed. I credit the above testimony of
Phalen and Accord. Their testimony is in part mutually
corroborative and is sustantiated by undisputed docu-
mentary evidence of record. They impressed me as trust-
worthy and reliable witnesses . On the other hand, the
testimony of Wise was general , limited , and incomplete.
Insofar as the testimony of Phalen and Accord conflicts
with the testimony of Wise, I credit the testimony of the
former witnesses as more detailed , complete, and reli-
able.
Discussions
Under settled principles of labor law,
an employer is obligated to provide a union with re-
quested information if there is a probability that
such data is relevant and will be of use to the union
in fulfilling its statutory duties and responsibilities as
the employees' exclusive bargaining representative.
The issue in such a case is "whether the requested infor-
mation had - probable and potential relevance to the
union's statutory obligation to represent employees
within the contractual units"; "the fact the requested in-
formation may relate to employers ad employees outside
the represented bargaining unit does not by itself negate
its relevance";
for, whatever the eventual merits of the union's
claim that their contracts are being violated and
their bargaining units unlawfully diminished, they
are entitled to the requested information under the
discovery type standard announced in NLRB v.
Acme Industrial Co., 385 U.S. 432, 437 (1967), to
judge for themselves whether to press their claims
in the contractual grievnace procedures or before
the Board or Courts ... .
Associated General Contractors of California, 242 NLRB
891 (1979), enfd. as modified 633 F.2d 766 (9th Cir.
1980). -See also Electrical Energy Services, 288 NLRB 925
(1988), and cases cited at 16 to 19.. And, where a union
seeks information to establish an alter ego or single em-
ployer relationship, it is not required to prove the exist-
ence of such a relationship , rather, it is sufficient "that
General Counsel has established that the union had an
objective factual basis for believing" that one entity is an
"alter ego or single employer" of the other. M. Scher &
Sons, Inc., 286 NLRB 688 (1987).
The Union's showing here amply demonstrates proba-
ble and potential relevance of the requested information
in fulfilling its statutory representative duties . The Union,
as shown above, requested the specified information
from Respondent Employers in order "to effectively ad-
minister and monitor important contractual rights and
obligations"; "to determine the extent if any of the inter-
relationship between [Kizer's] signatory companies and
[his] nonsignatory companies for purposes of contract ad-
MABEN ENERGY CORP. 153
ministration and bargaining"; "to determine whether the
listed employers constitute a joint employer or single em-
ployer or alter ego"; because , as union representative
Phalen credibly explained,
they impact upon our memberships ' important con-
tractual rights such as, but not limited to, seniority
issues, panel and recall rights and job security bid-
ding.
Significantly, as noted above, the new provisions of the
1988 contract signed by Respondents "affect both job se-
curity at nonsignatory operations and leasing and licens-
ing activities at signatory operations " and thus enhance
the potential and probable relevance of the requested in-
formation . In sum , the requested information has suffi-
cient probable and potential relevance here.
Further, the General Counsel has adequately demon-
strated on this record that the Union had an "objective
factual basis for believing" that Respondent Employers
are a single or joint employer or alter ego or otherwise
contractual rights beyond the confines of each separate
employer . Thus, as Union Respresentative Phalen credi-
bly testified, and the record shows, Respondent Employ-
ers have the same address ; Wise has handled the labor
relations for Respondents for some time ; there is evi-
dence of common ownership and management; a 1987
newspaper article reported that 10 coal mining and proc-
essing companies , including various Respondents here,
and Kizer , an official of all the corporations , agreed to
pay back wages to some 500 workers in proceedings in-
volving the United States Department of Labor's Wage
and Hour Division ; there were reports of a transfer of
some 46 employees from Respondent Harley's mine to
Respondent Birchfield 's mine during late 1987; there was
a September 9, 1987 meeting with representatives of vari-
ous Respondents or the so-called Maben group to discuss
signing a "me-too agreement" or "letter of intent" be-
tween the Union and various Respondents pertaining to
the new 1988 contract to be negotiated ; Kizer was the
"primary spokesman" for the Respondents at the above
September 9 meeting where the operations of the various
companies were discussed and Kizer announced "that we
were getting ready to open up the old Bonnie operation
which was formerly the Beckley Lick Run Coal Compa-
ny"; Respondent Employers have a common insurance
carrier; there were reports of the "interchange of equip-
ment from one operation to another" of various Re-
spondents as well as the "interchange of supervisory per-
sonnel"; there was a memorandum from Kizer of M.A.E.
Services, on June 8, 1987, to "salary and management
personnel ," reciting : "M.A.E. Services , Inc. provides
management services for the coal operations which com-
prise the East Gulf Complex . . . and the M.A.E.-West
Complex"; and there was a memorandum from M.A.E.
Services, on September 2, 1986 , to its employees and the
employees of "those operations serviced" including
Quinland and various Respondents . Further, as Union
Representative Accord credibly testified, during late
1987, he was notified by M.A.E. Services and Wise that
Amigo Smokeless Coal Corporation would no longer be
liable or responsible for the health benefits of a group of
its pensioners and widows ; that he thereafter spoke with
Kizer about the possibility of continuing these benefits;
that Kizer "did agree that he would continue the health
benefits for Amigo Smokeless" and that "as of this day
... they are still providing these benefits " even though
Amigo Smokeless is no longer "operating" and is not a
signatory to the 1988 contract . There is on this record an
objective basis for believing that Respondent Employers
and the other entities named in the Union 's request for
information were or are a single or joint employer or
alter egos or otherwise sufficiently interrelated to en-
force union contractual claims beyond the boundaries of
each named Respondent Employer.
Counsel for Respondent Employers acknowledges that
"there is no question that the Union is entitled to request
much of the information contained in the June 6, 1988
letter"; nevertheless, none of the information was provid-
ed to the Union in response to its repeated requests.
Counsel for Respondent argues that the Union had
waived its statutory right to the requested information.
In support of this contention , counsel cites a November
9, 1987 letter (R. Exh . 1) from the Union to Respondents
pertaining to the negotiation of a new contract and en-
closing an interim agreement . The letter recites, inter
alia:
Execution of the 1987 Interim Agreement by your
company and the UMWA will eliminate the need
for your , response to the enclosed information
demand and the need to conduct independent nego-
tiations.
The "information demand " in this letter is not the same
as the requests which are the subject of the instant litiga-
tion. It is true that there are some similar requests for in-
formation; however, a reading of both the 1987 "infor-
mation demand" and the June 6, 1988 requests makes it
apparent that the 1987 "demand" was for "meaningful
bargaining over a successor contract" and significantly
different than the requests in issue here . Consequently,
the fact that Respondents signed such Interim Agree-
ments in 1987 and therefore did not have to respond to
the enclosed "information demands" cannot be viewed
on this record as a "clear and unmistakable " waiver by
the Union of its statutory right to future requests for in-
formation necessary and relevant to the performance of
its duties as the exclusive bargaining agent of the unit
employees involved in this case . Cf. Indianapolis Power
Co., 291 NLRB 1039 (1988).
Counsel for Respondents next argues "that the infor-
mation requested was covered by . . . arbitration pro-
ceedings" and the Board should defer to these arbitration
proceedings . Counsel for Respondents has submitted
with his posthearing brief and opinion an award between
M.A.E.-West, Birchfield, Davidson, and Maben Energy
and United Mine Workers of America Local Union No.
1989, with related correspondence . This award, issued on
January 10, 1989 , is styled as an "interim-award " deter-
mining that the grievance involved was "timely" filed
"and the case shall now proceed upon its merits ." As the
arbitrator stated,
154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
at this stage of this case , the only question to be de-
termined is whether or not the . grievance was
timely filed. The grievanace concerns the claim by
previous employees of Quinland that they be per-
mitted to panel for work at Davidson, Harley,
Birchfield and Maben Industries as and when work
becomes available.
The Arbitrator, however, in his "interim-award,:" did
direct the Employers involved to make specific limited
disclosures to the Union under the contract "in the hope
that the Union will accept limited relevant information."
It is clear that the information requested by the Union in
the instant case is for a much broader purpose and great-
er in scope than the information relevant to claimed
"panel rights" of only the former Quinland employees.
As counsel for the General Counsel argues, "The infor-
mation is sought in order to determine whether or not
contract violations have occurred and whether to file ad-
ditional grievnaces unrelated to the grievance pending
before the Arbitrator." And, as the Board restated in Ste-
phen Oderwald, Inc., 284 NLRB 277 (1987), such "8(a)(5)
allegations are not properly deferrable . . . involving an
employer's refusal to furnish information requested by an
exclusive collective -bargaining representative."
Counsel for Respondents also argues that the requested
information is "clearly confidential and privileged."
However, as Union Representative Phalen credibly testi-
fied, the Employers were permitted to delete prices from
sales contracts; "we're not looking for specific financial
data" in the tax returns; "we can sign a confidentiality
pledge or whatever today"; the Union "was willing to
address any concerns" the Employers may have "con-
cerning confidentiality or proprietary information" and
the Employers never expressed to the Union "any con-
cerns regarding . . . confidentiality ." Under the circum-
stances, counsel for Respondents ' vague claim here of
confidentiality and privilege, where Respondents have
provided none of the material in response to the Union's
repeated requests , does not provide a defense to its refus-
al as found unlawful above . Moreover, such matter per-
taining to the protection of confidential or privileged in-
formation can be dealt with more appropriately and ef-
fectively during the compliance stage of this proceeding
if necessary.6
In sum, I find and conclude on this record that Re-
spondent Employers have violated Section 8(a)(1) and
(5) of the Act as alleged.
6 I also reject as without merit Respondents ' assertion that Union Rep-
resentative Phalen acted without authority here because some of the Em-
ployers are outside of Phalen's geographical division . This record makes
it clear that Phalen acted with full authority of the Union and the Re-
spondent Employers were fully aware of this at all times pertinent to this
case. In like vein , Respondents ' assertion that the Union should make sep-
arate requests of each Employer is equally baseless, counsel for Respond-
ents stipulated here that the June 6 information request was in fact re-
ceived by each Employer . Finally, I view on this record Respondents'
so-called request for clarification as not a good -faith attempt for clarifica-
tion of the requested data , but instead part and parcel of the Respondent
Employers ' effort to delay and avoid providing the relevant and neces-
sary data.
CONCLUSIONS OF LAW
1. Respondents are Employers engaged in commerce
as alleged.
2. The Union is a labor organization as alleged.
3. Respondent Employers , in violation of Section
8(a)(1) and (5) of the Act, have failed and refused to bar-
gain in good faith with the Union as the exclusive bar-
gaining agent of their employees in the folowing appro-
priate bargaining units by failing and refusing to furnish
the Union with certain requested information, as de-
scribed in the above decision , which was and is neces-
sary and relevant to the Union's performance of its func-
tion as the exclusive bargaining agent of the unit employ-
ees. The appropriate bargaining units are:
All employees employed by [each Respondent]
working in or about [each Respondent 's] mine, ex-
cluding all professional employees , guards, and su-
pervisors as defined in the Act.
4. The unfair labor practices found above affect com-
merce as alleged.
REMEDY
To remedy the unfair labor practices found above, Re-
spondent Employers will be directed to cease and desist
from engaging in such conduct or like or related conduct
and to post the attached notice. Respondent Employers
will further be directed to turn over to the Union the re-
quested information as described above.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
The Respondents, Maben Energy Corporation; Stoney
Coal Company; East Gulf Fuel Corporation; Hansford
Smokeless Collieries, Inc.; Harley Mining, Inc.; Birch-
field Mining , Inc.; Davidson Mining, Inc.; and M.A.E.-
West, Incorporated, Beckley, West Virginia, their offi-
cers, agents, successors , and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
the Union, United Mine Workers of America, as the ex-
clusive bargaining agent of their employees in the fol-
lowing appropriate bargaining units by failing and refus-
ing to furnish the Union with certain requested informa-
tion, as described in the above decision , which was and
is necessary and relevant to the Union 's performance of
its function as the exclusive bargaining agent of the unit
employees . The appropriate bargaining units are:
All employees employed by [each Respondent]
working in or about [each Respondent 's] mine, ex-
cluding all professional employees , guards, and su-
pervisors as defined in the Act.
7 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall, as provided in Sec . 102.48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
MABEN ENERGY CORP. 155
(b) In any like or related manner interfering with, re-
straining, or coercing their employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necesary to ef-
fectuate the policies of the Act.
(a) Furnish the Union with the requested information
as described in the above decision.
(b) Post at their facilities copies of the attached notice
marked "Appendix."a Copies of the notice, on forms
provided by the Regional Director for Region 9,. after
being signed by the Respondent's, authorized representa-
tive, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
8 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."
APPENDIX
WE WILL NOT fail and refuse to bargain in good faith
with United Mine Workers of America as the exclusive
bargaining agent of our employees in the following ap-
propriate bargaining units by failing and refusing to fur-
nish the Union with certain requested information, as de-
scribed in the Board 's decision , which was and is neces-
sary and relevant to the Union 's performance of its func-
tion as the exclusive bargaining agent of the unit employ-
ees. The appropriate bargaining units are:
All employees employed by [each Respondent as
named below] working in or about [each Respond-
ent's] mine, . excluding all professional employees,
guards, and supervisors as defined in the Act.
WE WILL NOT- in any like or related manner interfere
with , restrain, or coerce our employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
WE WILL furnish the Union with the requested infor-
mation as described in the Board's decision. .
MABEN ENERGY CORPORATION ; STONEY
COAL COMPANY; EAST GULF FUEL COR-
PORATION ; HANSFORD SMOKELESS COL-
LIERIES, INC.; HARLEY MINING, INC.;
BIRCHFIELD MINING, INC.; DAVIDSON
MINING, INC.; M.A.E.-WEST , INCORPO-
RATED
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
have violated the National Labor Relations Act and has
ordered us to post and abide by this notice.