Magnet Coal

National Labor Relations Board - Board Decisions

Aug 31, 1993

311 N.L.R.B. 1392 (N.L.R.B. 1993)

1392
311 NLRB No. 193
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We have modified the case caption to reflect the correct name
of the Charging Party.
2 In adopting the judge’s findings and conclusions dismissing the
complaint, we note that the General Counsel failed to establish that,
during the period alleged in the complaint, the Respondents’ testing
of applicants was undertaken for unlawful discriminatory reasons or
applied in a discriminatory fashion based on union status, activities,
or membership.
1 All dates are in 1990, unless otherwise indicated.
Magnet Coal, Inc. and Mutual Mining, Inc. and
United Mine Workers of America, District 31.1
Cases 9–CA–28075–2 and 9–CA–28075–3
August 31, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On March 12, 1993, Administrative Law Judge
Leonard M. Wagman issued the attached decision. The
Charging Party filed exceptions and a supporting brief
and the Respondents filed answering briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings, and conclusions2 and to adopt the rec-
ommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Linda B. Finch, Esq., for the General Counsel.
L. Anthony George, Esq. (Jackson & Kelly), of Charleston,
West Virginia, for the Respondent, Magnet Coal, Inc.
W. Jeffrey Scott, Esq., of Grayson, Kentucky, for the Re-
spondent, Mutual Mining, Inc.
Jerry D. Miller, Vice President, United Mine Workers of
America, District 31, of Fairmont, West Virginia, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge. This
case was tried at Charleston, West Virginia, on October 16
and 17, 1991, and at St. Albans, West Virginia, on April 27–
30 and on June 22–26, 1992. On charges filed by the Union,
United Mine Workers of America, District 31, in Cases 9–
CA–28075–2 and 9–CA–28075–3, respectively, on Novem-
ber 29, 1990,1 the Acting Regional Director for Region 9
issued a consolidated complaint on January 17, 1991, alleg-
ing that the Respondents, Magnet Coal, Inc. and Mutual
Mining, Inc. (Magnet and Mutual), had violated Section
8(a)(3) and (1) of the Act, by refusing to employ members
of the Union. In their answers to the consolidated complaint,
Magnet and Mutual have denied committing the alleged un-
fair labor practices.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel, the Union, Magnet and Mutual,
respectively, I make the following
FINDINGS OF FACT
I. JURISDICTION
Magnet, a corporation with a facility in Myrtle, West Vir-
ginia, has, at all times material to these cases, operated a sur-
face coal mine. During the 12 months preceding the issuance
of the consolidated complaint in these cases, Magnet, in the
course and conduct of its coal mining, purchased and re-
ceived at its Myrtle, West Virginia facility products, goods,
and materials valued in excess of $50,000 directly from out-
side the State of West Virginia. Magnet admits the foregoing
data. I find that Magnet is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
Mutual, a corporation with a facility in Holden, West Vir-
ginia, has, at all times material to these cases, operated a sur-
face coal mine. During the 12 months preceding the issuance
of the consolidated complaint in these cases, Mutual, in the
course and conduct of its coal mining, purchased and re-
ceived at its Holden, West Virginia facility products, goods,
and materials valued in excess of $50,000 directly from out-
side the State of West Virginia. Mutual admits the foregoing
data. I find, that Mutual is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
Mutual and Magnet admit, and I find that United Mine
Workers of America, District 31 is a labor organization with-
in the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
Since 1987, Magnet has been party to a mining agreement
with Twin Branch Coal Company, a wholly owned sub-
sidiary of Island Creek Coal Company, Inc. (Island Creek),
pursuant to which Magnet has been operating a surface coal
mine. Since 1989, Mutual has been party to, and has been
operating a surface coal mine under, a similar agreement
with Island Creek. At all times material to these cases, Island
Creek, Mutual, and Magnet have been signatories to the Na-
tional Bituminous Coal Wage Agreement with the Union’s
parent organization, United Mine Workers of America. That
agreement required Magnet and Mutual to look first to the
list or panel of laid-off Island Creek miners when hiring em-
ployees for their mining operations under their respective
agreements with Island Creek. Both surface mines lie within
the geographic jurisdiction of District 17 of United Mine
Workers of America.
Other agreements have permitted Magnet and Mutual to
employ miners from sources other than the panel of laid-off
Island Creek employees. Thus, in 1987, United Mine Work-
ers of America and its District 17 authorized Magnet to hire
a core group of five employees, who were not on the Island
Creek panel. Magnet added a sixth employee to that core
group, and, prior to the period covered by the consolidated
complaint, hired 11 more nonpanel miners. In a grievance
settlement dated March 28, United Mine Workers of America
authorized Magnet to retain these 17 nonpanel employees.
1393MAGNET COAL
2 If no exceptions are filed as provided by Sec. l02.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. l02.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
In 1989, Island Creek and District 17 authorized Mutual
to hire approximately 25 temporary employees, who had
worked for Elm Coal Company, Mutual’s predecessor on the
contract site. Mutual agreed to replace these 25 employees
with laid-off Island Creek employees in accordance with the
National Bituminous Coal Wage Agreement.
The consolidated complaint alleges that commencing on or
about September, Magnet has violated Section 8(a)(3) and
(1) of the Act by refusing to employ Rodney Butler, Gary
Chenoweth, Donald Thayer, and other job applicants because
they belonged to or supported the Union. Further, the com-
plaint alleges that during the same period, Mutual has en-
gaged in the same unlawful discrimination against Donald
Thayer, George Bennett, and other applicants. The record
shows the alleged refusals to hire the named individuals and
other union members.
Where, as here, the complaint alleges that employers have
discriminated against employees by failing to hire them be-
cause of their membership in, or activity on behalf of, a
labor organization, the General Counsel has the burden of
showing by a preponderance of the evidence that the employ-
ees’ union membership or union activity was a motivating
factor in the employers’ decisions to withhold employment
from them. NLRB v. Transportation Management Corp., 462
U.S. 393, 402–403 (1983), affg. Wright Line, 251 NLRB
1083 (1980), enfd. on other grounds 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982).
I have carefully considered the evidence before me and
find that counsel for the General Counsel has not shown by
a preponderance of the evidence that membership in, or ac-
tivity on behalf of, the Union or the locals within its jurisdic-
tion, was a motivating factor in the Respondents’ failure and
refusal to hire the alleged discriminatees. Absent from the
consolidated complaint are any allegations that either Magnet
or Mutual committed any independent violations of Section
8(a)(1) of the Act, directed at membership in, or activity on
behalf of the Union or its constituent locals. Nor did the
record disclose evidence suggesting that Magnet or Mutual
were hostile to the Union, its locals, or its members. Thus,
I find that counsel for the General Counsel has failed to es-
tablish a prima facie case showing that the Respondents de-
nied employment to the alleged discriminatees because of
their union affiliation. Ramar Coal Co., 303 NLRB 604
(1991).
Counsel for the General Counsel urges me to heed the lan-
guage in NLRB v. Great Dane Trailers, 388 U.S. 26, 33
(1967), in which the Court noted that some conduct ‘‘is so
inherently destructive of employee interests that it may be
deemed proscribed without need for proof of an underlying
improper motive’’ and apply that principle here. However, I
find that the record does not show that Respondents’ treat-
ment of the Union’s members was in the ‘‘inherently de-
structive’’ category, or even close to it. For the record shows
that during the period covered by the consolidated complaint,
‘‘September 1990 and continuing thereafter’’ the Respond-
ents have hired employees from the panel of laid-off Island
Creek employees, who were members of locals within the
Union’s jurisdiction. Indeed, I find from Union Vice Presi-
dent Jerry Miller’s testimony, on direct examination by coun-
sel for the General Counsel, that after June, Magnet and Mu-
tual began sending out job notices ‘‘to a lot of members in
District 31, and testing employees for various types jobs.
And, in fact, they hired some—some members of District 31
who were laid off from Island Creek.’’
Mutual’s treatment of job applicants does not support the
contention that it discriminated against members of locals
under the Union’s jurisdiction. As of June 25, 1992, and
since July 1989, Mutual had issued job notices to 33 laid-
off Island Creek employees from union locals, tested their
competence, and hired 14. Of the 14, 9 were working at the
Mutual site on June 25, 1992. During the same period, Mu-
tual tested the competence of seven District 17 individuals
who had been on the Island Creek panel, and rejected all of
them. I find from the testimony of Mutual’s superintendent
Allen Roe, who tested the applicants for Mutual, that during
his employment he did not qualify any members of locals
under District 17’s jurisdiction. There was no evidence that
the testing of the union applicants was more stringent than
that accorded the seven disqualified District 17 applicants.
There was no showing that Magnet treated District 17 job
applicants from the Island Creek panel better than it treated
District 31 applicants from the same panel. Instead, the
record shows that from August 21, until January 21, 1991,
six of the eight applicants hired by Magnet during that period
came from District 31’s jurisdiction. The remaining two
came from District 17.
In sum, I find that the General Counsel has not shown by
a preponderance of the evidence that the Respondents dis-
criminated against the individuals named in the complaint,
and other similarly situated applicants in violation of Section
8(a)(3) and (1) of the Act. I shall, therefore, recommend dis-
missal of the consolidated complaint.
CONCLUSIONS OF LAW
1. Magnet Coal Company, Inc. is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Mutual Mining, Inc. is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
3. United Mine Workers of America, District 31 is a labor
organization within the meaning of Section 2(5) of the Act.
4. Neither Magnet Coal, Inc., nor Mutual Mining, Inc.
have committed any of the unfair labor practices alleged in
the consolidated complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The complaint is dismissed.