Mine Workers (Boich Mining Co.)

National Labor Relations Board - Board Decisions

Feb 27, 1991

301 N.L.R.B. 872 (N.L.R.B. 1991)

872
301 NLRB No. 123
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel contends that the Respondents’ answering brief does
not conform to Sec. 102.46(d)(2) of the Board’s Rules and Regulations. Spe-
cifically, the General Counsel argues that, although the Respondents did not
file exceptions or cross-exceptions to the judge’s decision, their brief improp-
erly contains numerous proposed findings of fact not raised by way of the ex-
ceptions filed by the General Counsel and the Charging Party. We deny the
General Counsel’s motion. In so doing, we emphasize that our decision is
based entirely on testimony credited by the judge and on unrebutted record
evidence; thus the General Counsel and the Charging Party are not prejudiced
by our refusal to strike the Respondents’ brief.
2 The General Counsel and the Charging Party have excepted to some of
the judge’s credibility findings. The Board’s established policy is not to over-
rule an administrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for re-
versing the findings.
3 Although we have used the term ‘‘single employer’’ herein, we wish to
emphasize that we use the term for the limited purpose of connoting that
Boich is sufficiently related to Aloe Coal as to render Boich nonneutral with
respect to the labor dispute with Aloe Coal. See Teamsters Local 560 (Curtin
Matheson), 248 NLRB 1212, 1213–1214 (1980). This does not necessarily
mean that Boich and Aloe Coal would constitute a single employer for all pur-
poses or in other contexts.
4 The judge erroneously stated that Boich is owned by Aloe Coal. We cor-
rect the error.
5 Robinson Coal, North Fayette Coal, and Boich Lime and Coal are owned
directly by the Aloe family, not by Aloe Holding.
6 We base our finding that Coal Equipment Co. and Imperial Farms, Inc.
are owned by Aloe Coal on C.P. Exh. 9, which was sponsored by James
Birsic, the director of legal affairs for Aloe Holding. Birsic testified that he
prepared that exhibit on the basis of his actual knowledge of the ownership
relationships among the entities in question, and that it was an accurate rep-
resentation of those relationships.
Abe Bryan, president of Boich, testified generally (without stating the basis
of his claim to knowledge) that Coal Equipment and Imperial Farms were sub-
sidiaries of Aloe Holding. That characterization is not completely inconsistent
with Birsic’s, because Aloe Coal, which Birsic depicted as owning both Coal
Equipment and Imperial Farms, is itself a subsidiary of Aloe Holding. To the
extent the two witnesses’ testimony is inconsistent, however, we find Birsic’s
to be more accurate because Birsic was in a better position to know the com-
panies’ relationship in detail, and because his testimony was more precise than
Bryan’s, which was technically without foundation.
7 Unless otherwise noted, all dates are in 1989.
8 The judge inadvertently stated that the strike at Aloe Coal ended on Sep-
tember 4. The strike that ended that day was the strike at Boich.
9 We do not rely on Royal Typewriter Co. v. NLRB, 533 F.2d 1030 (8th
Cir. 1976); Emsing’s Supermarket, 284 NLRB 302 (1987), enfd. 872 F.2d
1279 (7th Cir. 1989); or United Contractors, 220 NLRB 463 (1975), cited by
the judge, because we find them inapposite to this case.
International Union, United Mine Workers of
America and Boich Mining Company
District 6, United Mine Workers of America and
Boich Mining Company
Local Union No. 7449, United Mine Workers of
America and Boich Mining Company. Cases 8–
CC–1420–1, 8–CC–1420–2, and 8–CC–1420–3
February 27, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
On March 22, 1990, Administrative Law Judge
Thomas A. Ricci issued the attached decision. The
General Counsel and the Charging Party filed excep-
tions and supporting briefs, and the Respondents filed
an answering brief.1 The General Counsel filed a mo-
tion to strike the Respondents’ brief, and the Respond-
ents filed a response to the General Counsel’s motion.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions as modified and to adopt the recommended
Order.
The judge found that Boich Mining Company
(Boich) and Aloe Coal Company (Aloe Coal) are a
single employer and therefore that the Respondents’
strike against Boich in support of their strike against
Aloe Coal was lawful primary activity. We agree with
the judge’s conclusion, although we find the evidence
presents a closer question than he adjudged. For the
reasons stated below, we find that evidence of com-
mon ownership and the interrelation of operations, on
balance, indicates that Boich and Aloe Coal are a sin-
gle employer, especially in light of the fact that the
coal of both companies is blended to create a new
product that both companies sell to their customers.3
Boich and Aloe Coal are wholly-owned subsidiaries
of Aloe Holding Company (Aloe Holding), which is
owned by a family of six Aloe siblings.4 One of those
siblings, David Aloe, is responsible for the Aloe fam-
ily’s mining properties, which also include Robinson
Coal Co., North Fayette Coal Co., and Boich Lime and
Coal Company.5 Aloe Coal is the sole owner of Coal
Equipment Company (Coal Equipment), which does
maintenance work for mining companies, and Imperial
Farms, Inc., which does reclamation work on strip-
mined properties.6
Boich’s mine is located in eastern Ohio, some 31
miles from Aloe Coal’s operations in western Pennsyl-
vania. Employees at each facility are represented by
the Respondent United Mine Workers International and
its local unions.
During the summer of 1989,7 there was a labor dis-
pute between the Union and Aloe Coal. On August 3,
the International Union called the employees of Boich
out on strike in support of its strike against Aloe Coal.
From August 4 through September 4, the Boich em-
ployees, represented by Respondent Local 7449, struck
and picketed Boich’s facility.8
The complaint alleges that the Respondents’ action
against Boich was ‘‘secondary’’ activity against a neu-
tral employer, and therefore violated Section 8(b)(4)(B)
of the Act. For the reasons set forth below, we agree
with the judge’s dismissal of the complaint.9
Section 8(b)(4)(B) makes it unlawful for a union or
its agents to strike or picket one person, with whom
the union does not have a labor dispute, in order to
force that person to cease doing business with another
person (usually an employer with whom the union
873MINE WORKERS (BOICH MINING CO.)
10 Struck work is work done by the secondary employer which that em-
ployer would not have performed but for the strike against the primary em-
ployer. Newspaper & Mail Deliverers (Gannett Co.), 271 NLRB 60, 67
(1984).
11 In fact, the Board has indicated that, although no single factor is control-
ling, the most important factor may be centralized control of labor relations.
See, e.g., Geo. V. Hamilton, Inc., 289 NLRB 1335, 1336 (1988). We therefore
disavow the judge’s statement that interrelationship of operations is the most
significant of these factors, at least insofar as that statement suggests that that
factor is always the most significant. As we discuss below, however, that fac-
tor is the one that influences our decision most heavily in this case.
12 Employees Larry Trushel and Gibson Holland both testified that David
Aloe is on the Boich property at least twice a week. (Trushel, however, admit-
ted on cross-examination that, because he rotates shifts, he does not personally
see Aloe on the Boich property that often.) Bryan testified that Aloe visits the
Boich facility less than once a month. The judge observed that, although
David Aloe was present for the entire hearing, he did not testify to contradict
the Respondents’ witnesses. Contrary to the General Counsel and the Charging
Party, the judge was clearly justified, under the circumstances, in drawing an
adverse inference from Aloe’s failure to testify. International Automated Ma-
chines, 285 NLRB 1122 (1987). Although the judge may have overstated the
credited testimony when he found that Aloe visits Boich ‘‘several’’ times a
week, that testimony fairly supports a finding that he is there an average of
twice a week.
13 The observation is, as the General Counsel points out, somewhat specula-
tive, because the record does not establish what David Aloe normally does
when he visits Boich’s facility. Nevertheless, we do not think the judge was
required to blind his eyes to the obvious import of Aloe’s regular, frequent
visits to the Boich mine: namely, that he plays an active role in at least some
aspects of the mine’s management. In any event, as we find below, the record
as a whole indicates that Boich and Aloe Coal are separately managed.
14 One of those employees is named Kenneth Allen, not (as the judge stated)
Don Allen.
does have a labor dispute). Section 8(b)(4)(B) does
not, however, prohibit otherwise lawful primary strikes
or picketing (that is, actions taken against one with
whom the union has a labor dispute). Section
8(b)(4)(B) was designed, in other words, ‘‘to preserve
the traditional right of striking employees to bring
pressure against employers who are substantially in-
volved in their dispute, while protecting neutral em-
ployers from being enmeshed in it.’’ Curtin Matheson,
supra, 248 NLRB at 1212–1213.
In assessing whether an employer is neutral or not,
the Board and the courts have developed the ‘‘ally
doctrine,’’ which has two branches. One involves the
employer whose neutrality is alleged to be com-
promised by the performance of ‘‘struck work’’;10 the
other, the employer who is claimed to be so closely re-
lated to the primary employer that the two constitute
a single employer or single enterprise. Id. at 1213. In
either case, it is the union’s burden to demonstrate the
existence of an ally relationship. Gannett Co., supra,
271 NLRB at 67. As there is no evidence that Boich
performs struck work for Aloe Coal, our analysis must
focus on whether Boich and Aloe Coal constitute a
‘‘single employer.’’
In determining whether two entities constitute a sin-
gle employer, the Board considers four factors: (1)
common ownership, (2) common management, (3)
interrelation of operations, and (4) common or central-
ized control of labor relations. Teamsters Local 50
(E. J. Dougherty Oil), 269 NLRB 170, 174 (1984).
These factors are to be considered together, not in iso-
lation; however, the nature of the day-to-day oper-
ations and of the labor policies of the two entities are
of paramount consideration. Ibid.11 Common owner-
ship, with its attendant potential for control, alone is
insufficient to support a finding of single-employer sta-
tus; it is active, not potential, control that is significant.
Ibid.; Food & Commercial Workers Local 1439 (Price
Enterprises), 271 NLRB 754, 756 (1984).
In this case, it is uncontroverted that Boich and Aloe
Coal are commonly owned by Aloe Holding. Thus, the
factor of common ownership points toward single-em-
ployer status.
Concerning the second and fourth factors—common
management and common or centralized control of
labor relations—the evidence is somewhat more am-
biguous. As the General Counsel and the Charging
Party urge, there is considerable unrebutted evidence in
the record indicating that Boich and Aloe Coal are
managed, at least on a day-to-day basis, substantially
independently of each other. Thus, Boich’s president,
Abe Bryan, testified that he has the responsibility for
hiring, firing, and day-to-day labor relations at Boich,
and that he handles all personnel and grievances, as
well as safety, permitting, and reclamation matters.
Bryan is responsible for planning Boich’s operations.
It was Bryan who negotiated the 1988 local collective-
bargaining agreement on behalf of Boich. Boich’s
treasurer, Raymond Skundrich, negotiated the rates
paid by Boich for employee health benefits.
Similarly, Grant MacSwain, vice president of Aloe
Coal, testified that he oversees the entire operation of
the Aloe mine, including labor, maintenance, and cost
control. According to MacSwain, he is in charge of
day-to-day labor relations for Aloe Coal: he is respon-
sible for hiring and firing, handles grievances, and ne-
gotiates the collective-bargaining agreement with the
Union.
Unlike the judge, we think the evidence recounted
above is substantial and that it points toward a finding
that Boich is a neutral employer. However, certain
other evidence, concerning David Aloe’s relationship
with Boich, casts a measure of doubt on Boich’s neu-
trality. Thus, the judge found that David Aloe visits
the Boich mine several times a week.12 As the judge
suggestively inquired, what would Aloe, as the fam-
ily’s representative for mining activities, be doing at
the Boich mine so regularly and frequently other than
to make sure the mine was being operated properly?13
Two Boich employees testified that Aloe had, in fact,
given them instructions on the preferred method of op-
erating certain equipment, and that they had obeyed
those instructions.14 Bryan testified that David Aloe
had given him a suggestion concerning a different way
of ‘‘shooting’’ (i.e., blasting) coal which proved to be
874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 However, Bryan denied ever having been given an order by David Aloe.
He also testified that Aloe had made suggestions that he (Bryan) disagreed
with and did not implement.
16 The judge also alluded to an episode in which a Boich employee, in the
presence of David Aloe, was threatened with discharge. However, there is no
evidence that Aloe himself said or did anything other than audit the event, and
the employee was not discharged. Unlike the judge, we find no reason to at-
tribute to David Aloe any authority over the affairs of Boich on the basis of
this episode. Nor do we rely on any of the testimony concerning David Aloe’s
role in Boich’s operations that was not based on the witnesses’ personal
knowledge.
17 There is also evidence that much of Boich’s production goes to fulfill
contract obligations of Boich Lime and Coal Co., and that the mix of coal
mined by Boich has changed since Boich was acquired by Aloe Holding. This
evidence, too, indicates that Boich may have a close relationship with Aloe
Holding, but establishes little concerning Boich’s relationship with Aloe Coal.
18 James Birsic, the director of legal affairs for Aloe Holding, testified as
follows:
Q. So right now David [Aloe] is the man in charge of the mining oper-
ations?
A. Basically he controls the mining investments we have, yes.
Q. And David, I presume, goes to the mining operations and oversees
them and does what he feels necessary as the owner of those operations,
correct?
A. Well, correct. I mean, we have sizable investments in these compa-
nies, and he’s responsible to make sure that we’re maximizing the returns
from those investments.
Q. And as an owner, though, it’s not unusual for David to get right
out there and make direct operations from day to day the goings on with
regard to each of these operations, isn’t that true?
. . . .
A. I don’t know that.
Thus, although Birsic testified in general terms that David Aloe has the re-
sponsibility to make certain the Aloe family’s mining operations are being run
well, he did not testify specifically concerning David Aloe’s relationship with
Aloe Coal (or, for that matter, with Boich). Moreover, Birsic admitted that he
had no personal knowledge of whether David Aloe made day-to-day oper-
ational decisions for any of the mining properties.
19 Bryan also testified that Boich’s health care benefits are provided by Blue
Cross/Blue Shield of West Virginia, whereas Blue Cross/Blue Shield of Penn-
sylvania provides health care benefits for the ‘‘Aloe Holding Company oper-
ations.’’ We do not rely on this testimony, because Bryan did not specify
whether Aloe Coal’s health insurance provider was separate from Boich’s.
20 On occasion, Boich coal has been hauled by Fairfield-Hawthorne Truck-
ing Company, a subsidiary of Imperial Land Corporation, which is owned 50
percent by the six Aloe siblings and 50 percent by two of their cousins, and
which is also used by Aloe Coal. That arrangement was temporary, however,
and was occasioned by the fact that high water and a lack of barges at the
Weirton, West Virginia dock (which Boich usually uses) prevented Boich from
loading coal at that dock. It elected to load instead at a dock in Pennsylvania.
Because the coal in question was to be picked up and loaded in Pennsylvania,
it was necessary for Boich to engage a trucking company with a Pennsylvania
intrastate license, which the companies usually used by Boich did not have.
Boich therefore engaged Fairfield-Hawthorne, which did have such a license.
Because this was a temporary departure from its normal method of operation
and was necessitated by natural causes, we find little significance in Boich’s
limited use of Fairfield-Hawthorne (which, in any event, is not owned or con-
trolled by Aloe Coal).
21 Bryan testified that he believed the computer was leased from Aloe Hold-
ing. However, invoices introduced by the General Counsel indicate that Aloe
Coal, not Aloe Holding, leases the computer system to Boich.
22 Boich has acquired equipment from non-Aloe coal companies as well.
23 That employee apparently is named Bob Struith, not Bob Stoop, as in the
judge’s opinion. He works at Boich pursuant to a maintenance contract be-
tween Boich and Coal Equipment Co. He also is sometimes supervised by
Jesse McCullough from Coal Equipment Co. (not, as the judge stated, from
‘‘Aloe’’).
Some maintenance work at the Boich mine is performed by entities unre-
lated to the Aloe family’s holdings.
a major improvement when it was implemented.15 On
one occasion, employees at Boich approached Bryan
during a period of wildcat strike activity in the district
and asked him if, instead of taking staggered vacations,
they could shut the mine down for a week and all take
their vacations at the same time, in the hope that the
wildcat activity would have blown over by then and
the miners could go back to work. Although Bryan
thought the idea was a good one, it was vetoed by
David Aloe.16
The foregoing evidence, as we have said, indicates
that Boich actually may not be as independently man-
aged as it appears to be on paper. However, that evi-
dence raises only the possibility that Boich may not be
managed independently of Aloe Holding Company. It
does not establish that Boich is controlled in any
meaningful way by Aloe Coal, the entity with which
the Union had the labor dispute.17 Nor is there any
specific evidence that David Aloe controls the oper-
ations of Aloe Coal, even to the extent he influences
the affairs of Boich.18 We therefore find that, although
there is some evidence of common management and
control, on balance the record indicates that, on a day-
to-day basis, Boich and Aloe Coal have separate man-
agement and control of labor relations, and that those
factors tend to support a finding that Boich is a neutral
party.
We turn now to the final factor, interrelatedness of
operations. There is unrebutted testimony that, in many
significant respects, the operations of Boich and Aloe
Coal are separate. Thus, each company maintains sepa-
rate offices, payrolls, bank accounts, and financial and
accounting operations.19 There is no interchange of ei-
ther employees or supervisors between the two oper-
ations, which are located some 31 miles apart in dif-
ferent States, and the two companies do not sell coal
to each other’s principal customers. Contrary to the
judge, Boich coal normally is hauled by trucking com-
panies that are entirely independent of the Aloe fam-
ily.20
Other evidence, however, indicates a greater degree
of interrelatedness between Boich and Aloe Coal.
Thus, Boich leases its computer system from Aloe
Coal.21 Boich has acquired several pieces of equipment
from Aloe Coal, either by way of exchange or outright
purchase.22 An employee of Coal Equipment Com-
pany, a subsidiary of Aloe Coal, works with Boich’s
mechanics doing maintenance work on Boich equip-
ment at the Boich mine under the supervision of
Boich’s maintenance foreman.23 Boich also purchases
some parts and equipment from Coal Equipment Com-
pany. Imperial Farms, another subsidiary of Aloe Coal,
does the bulk of the reclamation work at the Boich fa-
cility. There is no evidence that any of these trans-
actions are made on other than an arm’s-length basis.
We note, however, that Boich entered into the com-
puter lease with Aloe Coal, as well as its relationships
875MINE WORKERS (BOICH MINING CO.)
24 The judge also remarked on the large number of telephone calls that are
regularly made between Boich and other Aloe interests. We agree that those
calls constitute some evidence of interrelated operations. However, in the ab-
sence of any testimony indicating the subject matter of the calls or the identi-
ties of the persons who made them, we do not assign them the degree of sig-
nificance the judge did.
25 Boich pays Aloe Coal for the washing service, apparently on an arm’s-
length basis. Bryan testified that other coal-washing plants in the area either
do not have the capacity to take Boich’s coal or have been shut down. Boich
acquired a portable washing plant from Thistle Coal Co., another Aloe Coal
subsidiary (now inactive, according to Birsic), but found that it would be eco-
nomically impossible to operate it under EPA regulations. Thus, according to
Bryan, if Boich could not have its coal washed by Aloe Coal, the coal could
not be washed at all.
26 Aloe Coal also blends its coal with that of other companies, including
some that apparently are not owned or controlled by the Aloe family. It also
washes coal for non-Aloe entities.
27 It appears that the mixture typically is approximately two parts Boich coal
to one part Aloe. Thus, Boich would take two-thirds of the mixture and Aloe,
one-third.
28 The estimate for Boich refers to 1988; that for Aloe Coal is for 1989.
MacSwain testified that only a negligible percentage of Aloe Coal’s output
was blended with Boich coal in 1988.
29 Charles Abbott, who operates Aloe Coal’s washing and mixing plant, tes-
tified that he processes Boich coal 15 to 20 percent of the time.
with Coal Equipment Company and Imperial Farms,
only after it was acquired by the Aloe interests.24
Even more important, a significant amount of
Boich’s coal is sent on a regular basis to Aloe Coal’s
facility to be washed and blended with coal from the
Aloe Coal mine before it is shipped to customers.
Some of Boich’s coal must be washed to remove dirt,
debris, and rocks.25 It is then blended with Aloe coal
to produce a mixture that is lower in sulfur content
than Boich’s coal, and lower in ash content than
Aloe’s.26 At the end of the process, each company
takes a share of the mixed coal that corresponds to the
fraction of the mixture that it contributed.27 According
to Bryan and MacSwain, approximately 8 percent of
Boich’s coal and 5 to 6 percent of Aloe Coal’s output
are blended in this manner.28
We view the evidence as a whole as establishing
that the operations of Boich and Aloe Coal are inter-
related to a significant degree. In particular, we agree
with the judge that Aloe Coal’s blending of Boich’s
coal with its own to create, in effect, a new product
that then is sold to the customers of both producers
constitutes an integration of both processes and prod-
ucts the importance of which cannot be gainsaid. Even
though only a comparatively small fraction of the out-
put of each company is blended with that of the other,
the amounts blended cannot be said to be de minimis.
Moreover, the blending takes place on a regular basis,
not sporadically.29 We find that this blending of prod-
ucts to make a new product that both companies sell,
combined with the other forms of interrelationship dis-
cussed above, outweighs in importance the independent
aspects of the operations of the two companies. We
therefore find that the factor of interrelationship of op-
erations favors a finding that Boich and Aloe Coal are
a single employer.
To sum up, then, common ownership and inter-
relationship of operations are factors indicating that
Boich and Aloe Coal constitute a single employer,
while separate day-to-day management and control
over labor relations suggest that Boich is neutral with
respect to the Union’s labor dispute with Aloe Coal.
Clearly, this is a close case. We find, however, that the
factor of interrelated operations, and especially the
blending of Boich and Aloe coal to create a new prod-
uct that both producers sell to their customers, tips the
balance in favor of single-employer status. We think
that when two commonly owned entities combine their
products in this way, they may be said to have ‘‘such
identity and community of interests as [to negate] the
claim that [one] is a neutral employer.’’ Curtin Mathe-
son, supra, 248 NLRB at 1213–1214, quoting Team-
sters Local 282 (Acme Concrete & Supply Corp.), 137
NLRB 1321, 1324 (1962). We find, therefore, that the
Union has carried its burden of demonstrating that an
ally or single-employer relationship exists between
Boich and Aloe Coal, and thus that it did not violate
Section 8(b)(4)(B) by striking and picketing Boich.
Accordingly, we shall dismiss the complaint.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Susan Fernandez, Esq. and Mark Neubecker, Esq., for the
General Counsel.
William Manion, Esq., of Washington, Pennsylvania, for the
International Mine Workers of America.
Thomas M. Myers, Esq., of Shadyside, Ohio, for District 6
and Local 7449 of the United Mine Workers of America.
David J. Laurent, Esq. (Polito & Smock), of Pittsburgh,
Pennsylvania, for the Charging Party.
DECISION
STATEMENT OF THE CASE
THOMAS A. RICCI, Administrative Law Judge. A hearing
in this proceeding was held at St. Clairsville, Ohio, on Sep-
tember 21 and 22, 1989, on complaint of the General Coun-
sel against the International Union, United Mine Workers of
America, District 6, United Mine Workers of America, and
Local Union No. 7449, United Mine Workers of America
(the Respondents). The complaint issued on August 25, 1989,
on three separate charges filed on August 4, 1989, by Boich
Mining Company (the Charging Party). The sole issue to be
decided is whether the various groups of the three Unions
here named as Respondents violated Section 8(b)(4) of the
statute by calling a strike against the Charging Party. Briefs
were filed by the General Counsel, the Charging Party, and
the Respondents.
On the entire record and from my observation of the wit-
nesses, I make the following
876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 From the testimony of James Birsic, Aloe Holding Company’s director of
legal affairs:
Q. And David, I presume, goes to the mining operations and oversees
them and does what he feels necessary as the owner of those operations,
correct?
A. Well, correct.
From the testimony of the manager of the Boich Mine, Mr. Bryan:
Q. So, he [David Aloe] decides whether the Boich Mining Company
will purchase new equipment or buy a piece of equipment from one of
the other Aloe Holding Company subsidiaries?
A. I will make the request and he hasn’t said no, yes, but I think he
can.
2 Another coal mining company owned by the Aloe family is called Coal
Equipment Company.
FINDINGS OF FACT
I. THE LABOR ORGANIZATIONS INVOLVED
I find that International Union, United Mine Workers of
America, District 6, United Mine Workers of America, and
Local Union No. 7449, United Mine Workers of America,
are labor organizations within the meaning of Section 2(5) of
the Act.
II. THE BUSINESS OF THE CHARGING PARTY
Boich Mining Company, an Ohio corporation, is engaged
in the mining, processing, and nonretail sale of coal at its
Bloomingdale, Ohio place of business. Annually it sells and
ships from its mining location products, goods, and materials
valued in excess of $50,000 directly to points located outside
the State of Ohio. I find that Boich Mining Company is an
employer within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
Boich Mining Company does a mining operation in
Bloomingdale, Ohio. Its employees are represented by the
Mine Workers Union with a collective-bargaining contract in
effect until 1993. Aloe Coal Company is engaged in the min-
ing of coal in a Pennsylvania location. Its employees are also
represented by the Mine Workers Union. At the time of the
events here considered, the Union and the Aloe Coal Com-
pany were engaged in a labor dispute, and its employees
were on strike. On August 3, 1989, the Union called the em-
ployees of Boich Mining out on strike in support of its then-
current strike against Aloe Coal Company. That strike activ-
ity against Aloe Coal Company was discontinued on Sep-
tember 4, 1989, and those employees returned to work.
The complaint alleges that the Boich Mining Company has
nothing to do with Aloe Coal, that the two companies are
entirely separate and unrelated operations, and that since
Boich was a neutral, or secondary employer as far as Aloe
is concerned, such strike action by tbe Union was in viola-
tion of Section 8(b)(4) of the Act. The Mine Workers de-
fends on the ground that Aloe and Boich are in reality a sin-
gle employer, completely integrated, and that therefore there
was nothing secondary about its strike against Boich at that
time.
There was a dispute at the hearing about the responsibility
of the various organizations within the Mine Workers Union
for that strike action. The complaint names three separate
Respondents—the International Union, its District 6, and its
Local Union No. 7449. Did all three of these organizations
participate in the decision to strike Boich, and did all three
actually take part in the strike action? Were it necessary on
this record I would find that all three of the named Respond-
ents did join to bring about that strike. But I do not reach
that question in this decision because the evidence clearly
supports the basic defense assertion that Boich Mining and
Aloe Coal Company are in fact to be deemed a single em-
ployer within Board law and that therefore the complaint
must be dismissed.
No two cases involving questions of this kind are alike,
and therefore no precise precedent can serve to decide the
next case. As the Mine Workers correctly argue here, there
are several factors that relate intimately to the basic issue.
One is common ownership, or financial control. Another is
common management at the top. Centralized control of labor
relations is a pertinent factor. And finally, most significant,
is interrelationship of operations.
Boich Mining is owned by Aloe Coal Company, which
purchased it from a previous owner in 1986. Aloe Coal owns
and operates another mine about 30 miles distant from the
operation of Boich Mining. Aloe Coal is only one of a num-
ber of other mining companies also owned and operated by
that company. All these companies are owned by a number
of brothers and sisters in a family called Aloe. Within that
family there is one brother (David Aloe) who alone actually
runs the entire operations, including about all the various
mining operations, each under a different corporate name.
The focus of the defense asserted here is that that man is fre-
quently at the Boich Mine, that he decides much of what is
done there, and how it is performed, and that there is con-
stant communication between the Aloe Company and Boich
Mining. A number of witnesses for the defense testified
clearly that David Aloe is present at the Boich Mine several
times each week. Boich Mine records received in evidences
show constant telephoning back and forth between the two
companies. They reveal that about 35 percent of the tele-
phone calls between the two locations, 30 miles apart, are
between one company and the other. Several managerial offi-
cers of Boich Mining, who run that mine for the Aloe Com-
pany, gave contrary testimony, some of them saying that
David Aloe only visits the Boich Mine about once a month.
David Aloe was present in the hearing room throughout the
2-day hearing, but chose not to testify at all!1 With him
choosing not to contradict a word of the defense witnesses,
there is no question but that they must be believed.
I find that David Aloe is present at the Boich Mine several
times each week. As the sole representative of the owners of
the mine, what would he be doing there so often except to
see that it operated as he thinks proper?2 Bryan said clearly
that there is an employee of Coal Equipment Company, one
Bob Stoop, who regularly works at tbe Boich Mine. Stoop
works on Boich’s equipment as a repairman ‘‘on a day-to-
day basis’’; together with Boich’s mechanics. Bryan also ad-
mitted there is an employee named Jesse McCullough, who
comes from Aloe to work at Boich Mining. This is from the
direct testimony of the Boich Mining manager.
There is also direct testimony that David Aloe participates
on questions of vacation time, about the discharge of a man
from Boich Mine, about his instructions to Boich Mining
employees as how to operate some of the machines. Again,
the fact the owner of the mine sitting there did not contradict
a word of these witnesses makes their testimony completely
acceptable. If this record showed no more than the foregoing,
I would find that Boich Mining and Aloe Coal are an inte-
877MINE WORKERS (BOICH MINING CO.)
3 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 objec-
tions to them shall be deemed waived for all purposes.
grated and single employer for purposes of passing on the
merits of this complaint.
Larry Trushel, an employee of Boich Mine, testified, with-
out contradiction, that when Aloe Holding took over the
Boich Mine, Abe Bryan, the newly hired local manager ap-
pointed by David Aloe, introduced David Aloe ‘‘as our new
employer,’’ and that David Aloe then welcomed the employ-
ees ‘‘into the Aloe family.’’ Bryan’s testimony is even more
revealing:
Q. Do you recall when the purchase first took place
you, at a safety meeting, introducing Mr. Aloe as the
new owner and the new boss of the Boich Mining
Company?
A. Yes, sir.
Trushel testified that David Aloe started coming to Boich
Mine ‘‘at least a couple of times a week,’’ that he told
Trushel ‘‘to run the dragline in a different manner.’’ Trushel
also testified, again without contradiction, that about the
same time John Booth, a superintendent of Boich Mining,
told him ‘‘that David Aloe tells them what to do.’’
The story of David Aloe’s direct participation in the man-
agement of Boich Mine goes on and on. There came a time
when wildcat strikes by the Mine Workers Union were oc-
curring throughout the area. A number of employees asked
Bryan, the manager, could they take a week’s vacation in
order to avoid the strike problem within the larger union.
Bryan said it was a good idea, but that he would have to
clear with David Aloe. Bryan then talked to Mark Aloe, a
brother of David, who also said he liked the idea but that
he would have to first check with David. An hour later
Bryan told the employees they would not be permitted to
take the time off because David Aloe had so decided. This
testimony is fully supported by that of another employee,
Gisson Holland. Holland also said that when a medical bill
of his had not been paid, he asked the office girl in charge
of insurance why and also why the employees’ insurance
coverage had been changed, the girl told him ‘‘it was Dave
Aloe’s idea.’’ Don Allen, a longtime employee of Boich,
gave the following testimony:
Q. And, what conversation took place between you
and Mr. Aloe on that occasion?
A. He didn’t feel that I was doing the proper job—
in the proper manner, cleaning the coal, so he directed
me—to—when I finished cleaning the mines up, to
walk the back hoe down out of the pit bottom instead
of getting mud back on coal.
He told me to take it down off the coal and then
clean the coal, and then walk it back up around—the
mud still stays on the cats. It don’t come off that quick.
Allen obeyed David Aloe. Again, all the foregoing stands
uncontradicted.
A no less significant and determinative fact here is that the
two companies are substantially integrated in their mining
and selling coal operation. ‘‘Thousands of tons’’ of coal, to
quote one of the witnesses, are trucked to the Aloe Company
location 30 miles away where it is ‘‘washed’’ by Aloe in
their plant and ‘‘blended’’ with coal mined at the Aloe plant.
Part of that final product is then trucked by Aloe to its direct
customers and part is trucked, again in Aloe vehicles, to
Boich’s customers. If ever there was a picture of ‘‘inte-
grated’’ operations, to quote Board precedent, this is it. No
need to belabor the details repeated again and again by the
witnesses. Aloe mixes its product with that of Boich and
then sells it to the customers of both companies. Enough.
I see no reason to belabor this decision with the many de-
tails of Boich’s use of Aloe’s equipment, of its purchase of
many pieces of necessary equipment from the various Aloe
corporations, of its use of visiting employees of different
companies in its daily operations. The company agents kept
listing the many things they are personally responsible for in
the day-to-day work they do. They hire and fire people, they
handle grievances, they keep the daily records, they make out
the paychecks and pay all bills, etc. Much emphasis was also
placed on the fact that the Boich Corporation pays Aloe
Company for the washing of its coal, and for the deliveries
made by Aloe, in its own trucks of coal to Boich’s cus-
tomers. But in the light of the total record, all this means is
that to keep its business records straight the two companies
must record everything they do, with particular care to record
all expenses and costs against receipts of money. It amounts
to no more than correct bookkeeping. What matters here is
the actual control of operations by the Aloe Company over
the doings of both companies. See Royal Typewriter Co. v.
NLRB, 513 F.2d 1030 (8th Cir. 1976); Emsings Supermarket,
284 NLRB 302 (1987); United Contractors, 220 NLRB 463
(1975).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
I recommend that the complaint be dismissed.