Mine Workers Local 1329 (Alpine Construction)

National Labor Relations Board - Board Decisions

Sep 24, 1985

276 N.L.R.B. 415 (N.L.R.B. 1985)

MINE WORKERS LOCAL 1329 (ALPINE CONSTRUCTION) 415
Tamaha Local No. 1329 , United Mine Workers of
America; District 21, United Mine Workers of
America; and United Mine Workers of America
,and Alpine Construction Corp . Case 16-CP-159 -
24 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 30 March 1984 Administrative Law Judge
Thomas E. Bracken issued the attached decision.
Respondents District 21 and Local No. 1329, both
of the United Mine Workers of America, filed ex-
ceptions and a supporting brief; Respondent United
Mine Workers of America (the International
Union) filed exceptions and a supporting brief; the
Charging Party, Alpine Construction Corp., filed
limited cross-exceptions, a supporting brief, and an
answering brief in support of the judge's decision;
and the International Union filed an an
brief in opposition to the Charging Party's limited
cross-exceptions.
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, 2
i At the hearing , the Judge permitted the Respondents to present evi-
dence for the purpose of proving that Alpine Construction Corp was an
alter ego, successor, or single or joint employer of Garland Coal and
Mining Company The judge noted that under then Board precedent,
Food & Commercial Workers Local 576 (R & F Grocers), 252 NLRB 1110
(1980), the Respondents may be precluded from introducing evidence in
support of these defenses In that case, as here, the General Counsel had
previously refused to issue an 8(a)(5) complaint against the employer
when a charge was filed by the union premised on these same theories of
alter ego, successorship, and joint and single employer status The judge
here permitted the defenses in light of remand instructions to the Board
from the United States Court of 'Appeals for the District of Columbia
Circuit in the above-referenced case sub nom Food & Commercial Work-
ers Local 576 (Muelbach & Sons) v NLRB, 675 F 2d 346 (D C Cir 1982)
Pursuant to those remand instructions , the Board had permitted the union
in Muelbach & Sons to assert its defenses , but, at the time of issuance of
his decision in this case , it was unclear to the judge whether the Board
had reconsidered its position, in agreement with the court, or whether it
only accepted the court's direction in Muelbach & Sons as the law of the
case Subsequently, in Hotel & Restaurant Employees Local 274 (Warwick
Caterers), 269 NLRB 482 ( 1984), the Board abandoned its prior interpre-
tation of the statute and adopted the court 's construction The Board
there recognized that allowing the respondent to present its 8(b)(7)(C)
defenses in the face of dismissal of 8(a )(5) charges against the employer
"is not tantamount to reviewing the General Counsel ' s decision not to
issue a complaint " Accordingly, and for reasons stated in Warwick Cater-
ers, we adopt the judge 's ruling and hold that the Respondents' defenses
were properly considered in reaching his decision
2 The Respondents and the Charging Party have excepted to some of,
the judge ' s credibility findings The Board 's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance 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 reversing the findings.
and conclusions3 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, Tamaha
Local No. 1329, United Mine Workers of America;
District 21, United Mine Workers of America; and
United Mine Workers of -America, their officers,
agents, and representatives, shall take the action set
forth in the Order.
3 The judge found , and we agree , that Alpine Construction Corp is
not a legal successor to Garland Coal and Mining Company under
NLRB v'Burns Security Services, 406 U S 272 (1972) We note, however,
that, under the Burns doctrine , one of the requirements for successorship
is that , for the representative period, a majority of the successor employer's
employees be composed of employees from the former employer's work
force-not, as inadvertently stated by the judge , that the successor have
employed a majority of the predecessor's employees The judge applied
the correct standard to reach his determination of nonsuccessorship In
view of our agreement with this determination and the judge 's further
finding that the employing industry did not remain 'substantially the same
after the purchase and sale of Garland Coal and Mining Company, we
find it unnecessary to pass on the judge 's discussion of employer animus
in fn 44 of his decision In adopting the judge 's finding of nonsuccessor-
ship , Chairman Dotson finds it unnecessary to pass on the rationale relied
on by the judge in reaching this determination
' We agree with the judge 's finding that there was no point in the pur-
chase and sale of Garland Coal and Mining Company at which the two
companies shared common management and supervision In adopting this
finding , however , we note that Alpine 's Rose Hill mine superintendent
Steve Hein had been employed by Garland at its Charleston, Arkansas
mine as recently as June 1982 'and had not therefore been long retired
from Garland, as suggested by the judge's decision, at the time he accept-
ed employment at Alpine
In its exceptions , the International contends that the judge failed to
consider the Respondents ' defense that Alpine and Garland are single or
joint employers and moves that the case be remanded to the judge for a
ruling on the validity of those defenses The indicia for, finding a "single
employer" are much the same as those on which the judge based his de-
termination regarding alter ego status , i.e, interrelation of operations,
centralized control of labor relations, common management and common
ownership or financial control . Victor Valley Heating & Air Conditioning,
267 NLRB 1292 (1983) Similarly, in order to establish that the compa-
nies are "joint employers ," it must be shown that they codetermined mat-
ters governing essential terms and conditions of employment US. Pipe &
Foundry Co, 247 NLRB 139 , 140 (1980) We have reviewed the judge's
findings and the record as a whole and conclude that the Respondents
have not met their burden of proving that Alpine and Garland are
"single" or "joint" employers We therefore deny the International's re-
quest for a remand
J. O. Dodson, Esq., of Fort Worth, Texas, for the Gener-
al Counsel. -
Maynard L Ungerman, Esq. (Ungerman, Conner, Little,
Ungerman & Goodman), of Tulsa, Oklahoma, and A.
Randall Vehar, Esq., of Washington, D.C., for the Re-
spondents.
T. J. Wray, Esq. (Fulbright & Jaworski), of Houston,
Texas, and Ed Edmondson, Esq., of Muskogee, Oklaho-
ma, for the Charging Party.
276 NLRB No. 46
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
THOMAS E. BRACKEN, Administrative Law Judge.
This case was tried at Muskogee, Oklahoma,. on Decem-
ber 13 and 14, 1982,1 and March 14 through 18' and 21
through 23, 1983. The charge was filed by Alpine Con-
struction Corp. (the Company or Alpine) on August 26.'
The complaint was issued on October 26, alleging that
the Respondent2 had engaged in conduct in violation of
Section 8(b)(7)(C) of the National Labor Relations Act.3
On the first day of the hearing, the' parties discussed
the case of Food & Commercial Workers Local 576 (R &
F Grocers), 252 NLRB 1110 (1980), and its implications
for the instant case. In the Local 576 case, the Board had
found that the respondent union had violated Section
8(b)(7)(C) of-the Act, the same section involved herein.
The administrative law judge, affirmed by the Board,
had refused to allow the union to introduce, as a defense,
evidence that-the picketed employer, R' & F Grocers,
was the alter ego, joint employer, or successor of
George Muehlbach & Sons, inasmuch as the General
Counsel had previously refused to issue a complaint
against the employer following a charge filed by Local
576; in which that union had alleged such an affirmative'
defense. -
On April 2, 1982, in Food & Commercial Workers Local
576 v. NLRB, 675 F.2d'1346 (D.C. Cir. 1982), the -United
States Court of Appeals for the District of Columbia had
issued its opinion, and reversed the Board's. decision,
holding that the Act required the Board to permit the
Union to introduce such evidence. The court; remanded
the case to the Board to reopen the hearing, and to hear
the Union's defense as to alter ego and successor. The
Board did-not seek certiorari, and on June 30, remanded
the Local 576 case to the judge ordering that the hearing
be reopened,-and that the Union be allowed to present its
affirmative, defense.
.
It was in this posture that the instant case opened on
December 13. Counsel • for Respondent UMW requested
that he be allowed to present evidence that would prove
that Charging Party, Alpine was an alter ego, successor,
ally, or point employer of Garland Coal & Mining Com-
pany, so that in the event the Board accepted the law on
' All dates are in 1982 unless otherwise indicated -
z Respondent Tamaha Local Number 1329, United Mine Workers of
America, is sometimes referred to as Local 1329, Respondent District 21
United Mine Workers of America is sometimes referred to as District 21,
Respondent United Mine Workers of America is sometimes referred to as
UMW, all are collectively referred- to as the Respondent -
3 Sec 8(b)(7)(C) provides in pertinent part.
(b) It shall be an unfair labor practice for a labor organization or its
agents-
(7) to picket or cause to be picketed , or threaten to picket or cause
to be picketed , any employer where an object thereof is forcing or
requiring an employer to recognize or bargain with a labor organiza-
tion as the representative of his employees , or forcing or requiring
the employees of an employer to accept or select such labor organi-
zation as their collective bargaining representative , unless such labor
organization is currently certified as the representative of such em-
ployees .
(C) where such picketing has been conducted without a petition
under Section 9(c) being filed within a reasonable period of time not
to exceed thirty days from the commencement of such picketing:
Section 8(b)(7)(C) as propounded by the D.C. Court of
Appeals in - the Local 576 case, the record would have
been made, and there would be no need for the Board at
some future date to order the parties to return to Musko-
gee to reopen the record for an additional hearing. There
being a consensus among the parties that this was the
most practical way to handle the situation, I allowed Re-
spondent to put in its evidence as to its affirmative de-
fense of alter- ego, successor, joint venture, or joint em-
ployer.
On February 4, 1983, Administrative Law Judge Wil-
liam J. Pannier III issued his supplemental decision in the
Local 576 case, and on August 26, 1983, the Board issued
its Supplemental Decision and Order, affirming Judge
Pannier's supplemental decision.4 Neither the Board's
remand-nor the Supplemental Decision and Order made
clear "whether the Board had reconsidered its position,.
and agreed with the circuit court, or whether it merely
accepted the circuit court's decision as the law of the
case. In any event, the Respondent herein was permitted
to present its alter ego, successor, joint employer de-
fense, as the Board had allowed in its remand of the
Local 576 case.5
Motions
After the hearing was closed, several motions were
filed by the Respondent and responses in opposition
thereto were also filed. My rulings on these motions are
set forth herein.
- May 26, 1983: Respondent's motion to correct the
record is granted by changing on page 1525, line 16, "the
sale had been consummated," to "the sale had not been
consummated"; and by changing, on page 1643, line 9,
"July 18th" to "July 12." The Charging Party did not
object to my making these changes.6 •
August 16, 1983: Respondent's motion to take judicial
notice or to reopen the record for two exhibits. Exhibit
A is a 'certified copy of a 1982 State of Delaware annual
franchise tax report filed by Great Western Enterprise,
Inc. on March 16, 1982.7 This exhibit listed J. F. Porter
III as a vice president and treasurer of that corporation
whose term expired in - March 1982: Counsel for the
Charging Party and the General Counsel filed responses
dated August 22 and 26,-1983, respectively, objecting to
Respondent's motion in toto. On September 14, 1983,
Respondent filed a "Reply of the United Mine Workers
of America to Charging Party's . Position on Judicial
Notice," and on September 27, 1983, supplemented this
reply by a letter with an attached affidavit of a UMW
* Food & Commercial Workers Local 576 (R & F Grocers), 267 NLRB
891 (1983)
s On December -27, while the hearing was in adjournment , UMW filed
a charge, Case 16-CA-10805 , alleging the Alpine, as the alter ego, joint
employer, and successor of Garland, had refused to bargain , in violation
of Sec 8(a)(1), (3), and (5) of the Act By letter dated March 10, 1983,
the Regional Director advised the UMW that it was refusing to issue a
complaint
9 The General Counsel 's motion in his brief to correct the transcript is
granted.
7 Attached to Exhibit A was a copy of a State of Delaware 1981
annual tax report for Great'Western , filed on March 6, 1981 This docu-
ment was not mentioned in Respondent's motion and carried no certifica-
tion
MINE WORKERS LOCAL 1329 (ALPINE CONSTRUCTION)
economist . Judicial notice is taken of the State . of Dela-
ware certified document . However , I do not find that it
diminishes Porter 's credibility . While Porter 's relation-
ship to Great Western was only a collateral matter,
Porter did testify . that he had been a vice president of
Great Western more than a year prior to his testimony,
and that it could have been less than 2 years . Porter also
testified that he owned all of the stock of Great Western,
hardly the admission of a person who was trying to hide
a relationship with Great Western.
Exhibit B was a letter dated June 22, 1983 , on the let-
terhead of the Oklahoma Water Resources Board , direct-
ed to Respondent 's attorney . This letter stated that their
records showed that the Rose Hill Mine was still permit-
ted by Garland as of _ that date . It also stated, among
other things , that the Tamaha mine had been taken over
by Alpine, and its permit file transferred to Alpine. Judi-
cial notice is taken of the document . However, I do not
find that it tends to prove Respondent 's alter ego theory.
Witnesses Wilson and Hawk testified at length that
Alpine had no intention of mining Rose Hill, but only to
perform reclamation work on it , and there is no evidence
that it -was, in fact , mined for coal. The record does not
disclose that a mining permit was required to do recla-
mation work . Respondent 's motion is marked as R^e
-spondent Exhibit 50A; its reply dated September 14, as
Respondent 's Exhibit 50B; its letter dated 27 and its at-
tached affidavit as Respondent 's Exhibit 50C; and to
retain continuity in the posthearing documents, the
Charging Party 's response is marked as Respondent's Ex-
hibit 50D , and the General Counsel 's response as Re-
spondent 's Exhibit 50E, and are admitted into evidence.
:October 28,-1983 : Respondent filed a supplemental brief
"in order to bring to the attention of the Judge recent
cases which may be relevant to this proceeding." The
cases cited by Respondent are All Kind Quilting Inc., 266
NLRB 1186 (1983), and American Pacific Concrete Pipe
Co., 262 NLRB 1223 (1982). No opposition to the receipt
of this supplemental brief was received , and I have ad-
mitted it into evidence as Respondent 's Exhibit 51, and
have considered these cases.
January 27, 1984: Respondent 's motion to reopen the
hearing-In this motion Respondent seeks to support its
alter ego, et al. defense- by "submitting and developing
newly and recently discovered evidence , which was not
available at the time of the hearing ." Attached to its
motion as Exhibit A was an affidavit by one Robert Ka-
siner dated January 22 , 1984, in which he stated that he
held property rights to atract of coal lands , and that
prior to June 24, 1981 , Garland had the rights to mine
coal from his land, although none had been mined. The
statement went on further to say that he had been in-
formed that after June 24, 1982 , Garland's right to mine
such coal was transferred to Alpine , but that in Decem-
ber 1983 , he had received a sizeable check from Garland
"as advanced royalties for coal yet to be mined from my
land." Attached to this affidavit was a photocopy of a
checkstub of Garland which had typed thereon , "Note-
Deed #59, Remaining Balance $8 ,000.00." Attached as
Exhibit B -was a photocopy of a bill from Stigler Feed
Store to Garland for $367 . 10 worth of fence wire and
posts, signed by one Cecil Smith . The Charging Party
417
filed a response to Respondent's motion to reopen, dated
February 16, 1984, requesting that.it not be reopened,
but that, if it were it should be reopened for all purposes
including taking evidence pertaining to a damage suit
bought by Alpine against Garland since the closing of
the instant hearing. The Charging. Party states that such
suit would show that "Alpine has sued Garland for an
amount in excess of $84 million in Case No. CLV-83-
2972-E in the United States District Court for the West-
ern District of Oklahoma, alleging, inter alia, misrepre-
sentation, fraud and breach of contract by Garland idits
dealings with Alpine. It is obvious that if Alpine and
Garland were alter egos, as Respondent's contend, one
would hardly be suing the other."
From a procedural standpoint I find that Exhibits A
and B do not meet the test of being newly discovered
evidence, as such evidence was not in existence at the
time of the hearing of this case; "[n]ewly discovered evi-
dence must be in existence of which a party was excus-
ably ignorant, discovered after trial." United States v. 41
Cases, More or Less, 420 F.2d 1126, 1132 (5th Cir. 1970),
cited, in NLRB v. Jacob E. Decker & Sons, 569 F.2d 357
(5th Cir. 1978). I would also find that such evidence does
not have probative value. Respondent's Exhibit 11, the
assignment of coal leases and agreement , contains a list'
of 75 leases sold-by Garland to Alpine. Kasiner's name
does not appear in this listing, nor does it appear in the
notices of coal lease assignment contained in Respond-
ent's Exhibit 23A through 23UUU. II also did not find
any testimony or document in the record that would dis-
close any obligation on the part of Alpine or Garland to
Kasiner. Likewise, I find nothing in the record to reflect
any connection between Alpine or Garland to Cecil
Sutton.
By a document dated March 8, 1984, Respondent filed
"Respondents Reply to Charging Party's Response to
Respondent 's Motion to Reopen the Record," and moves
again to reopen the hearing in order to develope and es-
tablish this newly discovered evidence. In this 18-page
reply, with 100 pages of exhibits attached thereto, Re-
spondent attacks the Charging ' Party 's assertion in its
February 16, 1984 response that Alpine's damage suit in
Oklahoma militates against finding Alpin _ to be the alter
ego of Garland. Respondent contends that on the con-
trary, "the nature of the lawsuit and the pleadings there-
in clearly support the UMWA arguments" that this was
less than an arm's -length relationship between Garland
and Alpine , and that there was an alter ego relationship
between the two companies.
I find no merit in Respondent's "reply to Charging
Party's Response to Respondent 's Motion to Reopen the
Hearing." It is sprinkled with speculation and conjecture
as to what may be the outcome of that damage suit. To
reopen the instant case to admit the pleadings of that
damage suit, with its ramifications of many pages of tran-
scripts of testimony and exhibits, will clearly needlessly
burden the record, particularly in the light of Respond-
ent's position that there is sufficient evidence already in
the record to support its position. To reopen the hearing
at this time would cause an unwarranted prolongation of
this already lengthy case. There comes a time when liti-
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gation must 'end, and that time has surely arrived. Re-
spondent's motions to reopen are denied, and are placed
in the rejected exhibit file, as Respondent's Exhibit 52
and 52A. To retain continuity, Charging Party's response
is marked Respondent's Exhibit 52B, and is also placed
in the rejected exhibit file.
March 14, 1984: Respondent filed a letter requesting
that the judge take judicial notice of Great Western's
1982 Annual Franchise Tax Report filed September 9,
1983, with the State of Delaware. The request is denied,
and these documents are placed in the rejected exhibit
file as Respondent's Exhibit 53.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel, the Company,
and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company, an Oklahoma corporation, with its
principal office in Chickasha, Oklahoma, is engaged in
the mining and the transporting of coal at various surface
mines in the Stigler, Haskell County area . From these
mines it has sold and shipped coal valued in excess of
$50,000 directly to points located outside the State,
during the past 12 months. The Union admits , and I find,
that it is an employer engaged 'in commerce and in oper-
ations affecting commerce within the meaning of Section
2(6) and (7) of the Act.
-II. THE LABOR ORGANIZATIONS INVOLVED
The Unions are labor organizations within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A The Contentions of the Parties
The General Counsel contends that an object of the
picketing which commenced about July 5, at the Compa-
ny's Tamaha and Rose Hill. mines , under the direction
and auspices of the Respondent, was to force or require
Alpine to hire all the former employees of Garland Coal
&'Mining Company, to force or_require Alpine to.recog-
nize the Union as the collective -bargaining representative
of its employees, and that such picketing was engaged in
without the filing of a petition under' Section 9(c) of 'the
Act within a reasonable period of time, 30 days from the
commencement of • the 'picketing, and thereby violated
Section 8(b)(7)(C) of the Act.The Respondent contends
that the picketing in question was not for the purpose of
recognition, and that there was no violation of Section
8(b)(7)(C) in any event; as Alpine is a successor employ-
er to or alter ego of Garland. While Respondent in its
answer also alleges that Alpine was a single employer,
ally,'and/or joint employer with Garland, in-its brief Re-
spondent relies-on its being an alter ego and/or successor
of Garland, an employer who formerly recognized the
Union as the bargaining representative of its employees.
It is the basic position of the Respondent that there was
no arm 's-length transaction between Garland and Alpine
in which equipment, leases, and assets were properly
conveyed to Alpine, until at least November. Therefore,
the Union as the bargaining agent for Garland's employ-
ees had a legal right to picket Alpine in the summer of
1982, as Alpine was an alter ego and/or a successor of
Garland.
B. Background8
Garland Coal & Mining Company, with its headquar-
ters in Fort Smith, Arkansas, was a closely held corpora-
tion of the Porter family, and had operated surface coal
mines in eastern Oklahoma and in western Arkansas
since the early 1950s. In 1981 -1982, Garland was operat-
ing four mines, three-in Haskell County, Oklahoma, and
one in Arkansas. The Haskell County mines were named
Tamaha, Rose Hill, and Bokoshe. In addition Garland
owned and operated a coal loading facility 9 miles from
the Tamaha mine on the Arkansas River that is referred
to herein as the Port. The Arkansas mine was named the
Charleston. The Tamaha mine , with its auxiliary the
Port, and the Rose Hill mine are the principal mines in-
volved in this case , with the Bokoshe and Charleston
mines only playing a peripheral part. Jeff Porter III since
the early 1970s has served as Garland's vice president
and chief executive officer, while owning 49 percent of
its stock.
For some years Local 1329 has been recognized by'
Garland as the bargaining representative of its produc-
tion and maintenance employees at the 'Tamaha mine,
and Local 2428 UMW had been the certified bargaining
representative of the same unit of employees at the Rose
Hill mine . The employees at these mines , as well as at
Garland's Bokoshe and Charleston mines , were covered
by collective-bargaining agreements between Garland
and the UMW. The final contract between the parties
terminated on March 26,1981, and the Respondent went
on strike against all four Garland mines.9
In mid-April 1981, Garland commenced hiring miners
to replace the employees who had gone on strike. The
four mines continued to operate with replacements serv-
ing as the working force until March 1982, when Gar-
land notifed the Respondent that it was closing perma-
nently the Tamaha and Rose Hill mines . i 0 Porter 'decid-
ed to put the two 'closed mines up for sale because, he
testified, that Garland had experienced large electrical
outages , chiefly due to vandalism to the power lines off
a The findings of fact herein are based on a consideration of the record
as a whole No attempt has been made to note every apparent conflict in
the evidence. Testimony in this record which is inconsistent with findings
made herein is not credited on the basis of my evaluation of the reliability
of the witnesses and the entire record
9 Relations between Garland and the Respondent had begun to dete-
riorate following the UMW 111-day national strike from December 6,
1977, through March 26, 1978 Thereafter various unfair labor practice
charges were filed by the Respondent against Garland, including Case '
16-CA-7046 and Consolidated Cases 16-CA-9050, 16-CA-9176, and 16-
CA-9252 Respondent's attorney testified that he had filed 8 to 10 unfair
labor practices against Garland since , 1978, and that in a majority of the
cases, the Regional Director had refused , to issue a complaint Garland
had also filed charges against the Respondent , with'the Board's decision
reported at 258 NLRB 56 (1981)
10 Garland continued to operate the Charleston and Bokoshe mines,
the employees of each being represented by sister locals of Locals 1329
and 2428
MINE WORKERS LOCAL 1329 (ALPINE CONSTRUCTION) 419
the Tamaha dragline, t t that his company could no
longer operate the mines. As he testified, he felt that this
vandalism was a result of his company's dispute with the
UMW. Porter did not list the mines with a broker, but
put the word out to the trade that the mines, equipment,
and leases - were for sale. He also contacted Turner
Brothers , a.company engaged in coal mining in Kansas.
On April 5, a decertification petition was filed with
the Board's Regional Office by an employee covering,
Garland's employees at Bokoshe, Charleston, and Stigler.
The petition -was dismissed by the Regional Director on
December 1. On June 4, having heard rumors that there
was a potential buyer for the Tamaha and Rose Hill
mines , UMW Washington Attorney A. Randall Vehar
sent a mailgram to "Alpine- Construction Co." at Chicka-
sha, Oklahoma, t 2 and' to J. C. Hurley, superintendent of
Alpine's Kinta mine, informing Alpine that there were
rumors that Alpine or a' subsidiary, affiliate,, or parent
company of Alpine might 'be negotiating with Garland
"for a sale,' transfer of.operations, assets, or- coal lands."
The mailgram went on to state that there were a number
of unfair- labor practice charges filed by the UMW
against Garland, and that if any remedy was -granted by
the Board, the purchasing or successor company to Gar-
land would be obligated to remedy these changes, in-
cluding an obligation to bargain (G.C. Exh. 7).
Having received no acknowledgement from Alpine,
and having heard reports that Alpine was seeking miners
for Tamaha and Rose Hill, on June 21, Vehar sent a
longer telegram to Alpine at its Chickasha address, re-
peating its earlier message in more detail , and also stated
that it was the, UMW's position that Alpine, as a pur-
chasing or successor company, "and or its related com-
panies" would be required to reinstate all or part of the
striking miners, and that "Garland miners would also be
considered employees of the " purchasing or successor
company." (G.C. Exh. 8.) . - '
2. Alpine '
Clay Wilson Jr. had operated the Nineteenth Seed
Company (19th Seed) out of his hometown of Chickasha
since about 1958 with the stock being owned by himself
and his wife. This company was engaged in the construc-
tion of concrete highways and heavy construction
projects that involved the stripping and moving of large
quantities of dirt. In the middle 1970s, finding that the
Federal road building program was diminishing, Wilson
entered into the strip coal mining business with a new
company, the Alpine Construction Corp. i 3 Wilson's wife
11 This dragline referred to hereafter as the Page dragline was a huge
machine weighing several thousand tons and valued by Porter as worth
$6-1/2 million.
12 Chickasha was located approximately 120 miles west of the Tamaha
mine and the main office of Alpine was located there , as well as the resi-
dence of Clay Wilson Jr, the president of Alpine.
13 It is to be noted that all parties in the case usually referred to the
-Charging Party as Alpine Construction Corporation. The charge and the
complaint show the name as ending in Corp, while the Respondent's
answer ends the name as Corporation . As will be seen , infra, Garland,
Alpine, and.the Respondent intermittently used the name Alpme Con-
struction Corporation on various documents.
and two daughters own all of Alpine's stock. Wilson also
runs several other businesses, the 20th Century Indus-
tries, which owns and leases equipment, and the 21
Ranch; which is a subsidiary of 19th Seed. All three of
these companies also operate out of Wilson's hometown,
Chickasha.
In 1976 Wilson began operating his first mine which
was located in Coal County, and was about midway be-
tween Chickasha and Haskell County.14 In 1978, he
commenced operating a second mine, located at Checo-
tah, which was near Haskell County, and operated it for
2 years. In 1981-1982, Wilson operated the Taft mine,
which was located in the Muskogee area . In July or
August 1981, Wilson commenced operating the Kinta
mine , also located in Haskell County, mining it under a
contract with the United Coal Company. The equipment
used at Kinta was owned by 19th Seed. This mine used a
sizeable work force, 'with the payroll records for the=
week ending June 25 showing 27 employees. Hurley,
who was the- superintendent at Kinta, testified that he
had 56 employees at one time. • , '
Wilson, when asked on cross-examination , if his 6-year
coal "venture" had been profitable, replied without any
amplification that it had not.
C. Credibility
As in many of these cases, the resolution of testimonial
conflicts is of critical importance. While the number of
witnesses was not large, there being 10, the 1784-page
transcript plus 1839 pages of exhibits resulted in a sub-
stantial number of conflicts. Added to the complexity of .
resolving the conflicts is. that the General Counsel, the
Charging Party, and the Respondent called witnesses
identified with the other party for extensive examination
under Rule 611(c).
I have particularly 'noted those instances when Re-
spondent indicates . in its 109-page brief, as reflecting on
the testimony of certain witnesses for the General Coun-
sel. I have found the testimony of three of the four wit-
nesses for the' General Counsel, Ed Edmondson, J. F:
Porter III, and Clay•Wilson to be generally reliable, and
hence credited their testimony. From my observation, as
well as from a consideration of the record, I am con-
vinced they were striving to tell the truth as directly and
straightforward as best they 'could recall it." 5 However,
I found Don Hawk to be an evasive, vague, and uncon-
vincing witness' who was attempting to protect the com-
pany by his answers, and I do not credit his testimony in
certain instances of conflict.
Donnie Wayne Oldham, the president of Local 1329,
and Roy Tackett, president of District 21, were=extreme-
ly evasive and hesitant witnesses, and did not impress me
as witnesses in whose testimony I could have confidence,
as to its accuracy and' reliability. Rather,- I received the
strong impression that they were advocates, hesitatingly
and inartfully trying to-furnish answers that helped their
14 Rand McNally Road Atlas , 1980 ed -
15 Edmondson. particularly impressed me as a person who would not
fabricate . While it ' would have been very helpful for the cause of his
client to have identified G C Rejected Exh 5 , he steadfastly refused to
do so. ,
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause, rather than trying to state the facts as they re-
membered them.: . •
As to other witnesses called by the Respondent, I
found Leon Lefler and Leland W. Smith to be sincere,
straightforward, honest coal miners, who told the 'facts
dust as they remembered them, letting the chips fall
where they may. Julius C. Hurley was an evasive, con-
tradictory witness with an obvious smoldering dislike of
Alpine; apparently due to his discharge on October 1.18
D. The Sale of Garland's Equipment, Leases, and the
Port
1. Early negotiations
In late April or early May, Porter was contacted by a
Mr. Turman, who advised him that Wilson might be in-
terested in buying out Garland. Turman was a- former
contract hauler for Garland, and was a personal friend of
Wilson. Turman then arranged for a meeting between-
Porter and Wilson, which took place at Garland's office
in Fort Smith in early May. When Wilson asked Porter
why he wanted to sell, Porter informed him that he was
tired of fighting the Union, and sick of the mess with the
Union. Wilson advised Porter that he was primarily in-
terested in coal reserves, and'not equipment. Porter gave
Wilson a list of the Company's equipment at the Tamaha
and Rose Hill mines , and a geological survey of Gar-
land's coal reserves - in the mines located in Haskell
County. Porter also informed Wilson that Garland's Bo-
koshe and Charleston mines were for sale. Wilson in-
formed Porter that he was not interested in the Charles-
ton mine. • -
Porter also told Wilson that Garland had a contract
with the Japanese for 200,000 tons of coal, which he
would like to see carried out. Wilson' then arranged an
appointment for his engineer, Kelly McBride, to look at
Garland's leases.17 and for J. C. Hurley, an Alpine super-
intendent , to look at Garland 's equipment . Hurley knew
well the most valuable piece of equipment owned by'
Garland, the Page dragline, because several years previ-
ously he had helped to assemble it for over a period of
16 months, when it" was newly delivered to Garland's
mine from the factory.
About a week later , in the middle of May, Wilson,
Hawk, and John Brooks, an officer of both Alpine and
nineteenth Seed, together with Hurley and McBride,
went to Porter's office in Fort Smith, to secure addition-
al information on what Garland actually had to sell.
Here, Wilson asked for and received permission to exam-
ine the mines and to look at the equipment, to examine
Garland's permits by which the State of Oklahoma al-
lowed Garland to mine coal, and to examine its coal
leases.
16 Hurley, on direct examination , testified that he was discharged in
August, only to correct himself the following day In the prehearing affi-
davit he gave to the Board , he stated that he had resigned
17 Garland owned little ground at Tamaha or Rose Hill, but had ap-
proximately 73 leases which gave Garland the right to mine coal on the
leased land (R Exhs. 23a through 23mmm )
Following this 3-hour meeting, - Wilson instructed
Hawk18 to evaluate the leases-as to-how'much coal was
in the leased ground, and the value of the coal after it
was out of the ground, and to have Garland' s equipment
examined. Wilson was not concerned with learning about
the quality of the coal, as he was familiar with its qual-
ity, due to the mining he was doing at Kinta. The Kinta
mine was in the same coal vein as Tamaha and Rose
Hill, a vein which Wilson regarded as a high quality.
Wilson also instructed Hawk to evaluate the equipment
owned by garland, which was on - a list furnished by
Porter. Hawk secured an outside mechanic from the
Boecking Equipment Company of Oklahoma City, who
assisted him in evaluating the equipment, by surveying it
so as to determine how much money would be required
to put it in workable condition. Alpine then had its em-
ployee Kelly McBride, an engineer, examine the leases
and coal reserves. Hawk also secured.the part-time serv-
ices of Shannon Craig, an employee of Garland, on a
contractual basis to assist Hawk in evaluating the re-
serves. Craig was Garland's chief authority on the leases.
Wilson's next, and third, meeting with Porter19 oc-
curred about the first of June. At this 17hour meeting he
and Porter discussed price20 with Porter wanting $12
million as the total price for the equipment, properties,
and leases. Porter had mentally arrived at this total price
by valuing the Page dragline at $6-1/2 million, the Bu-
cyrus Erie dragline at $4 million, the Port at $ 1 million,
and the leases at $1 million.21
Wilson agreed verbally to this price, and they further
agreed that at the time of the formal sale, $3-1/2 million
would be the down payment, with the balance paid in
monthly payments over a period of 5 years, at a rate of
interest of 2 percent under the New York prime on the
unpaid balance. - •
There was also a discussion about Porter selling coal
for Alpine. Porter told Wilson that he would do every-
thing he could to keep the Japanese contract going, and
that if Wilson paid his expenses for trips to Japan, he
would undertake to do so. Wilson then told him that he
did not want people working for him for nothing, and
generally suggested that Alpine pay him 25 cents a ton.
brokerage fee for the first 200,000 tons he sold, and 35
cents for over 200,000 tons. Porter then told Wilson that
18 Hawk and Wilson had been friends and business associates for over
a period of 14 years At one time Hawk had built roads in Saudi Arabia
for Wilson At another time, as owner of the Cardinal Construction Com-
pany, he had done subcontracting work for Wilson in highway paving. In
early 1982, Hawk and Wilson were partners in the Hawk Engineering
and Construction Company doing earth construction work in the oil field
industry Hawk, a college graduate with a degree in civil engineering,
had an extensive background in heavy construction and earth moving for
over 20 years -
19 Respondent in its brief states that Porter testified that there were
only two such meetings with Wilson Porter actually testified that there
were "a couple of meetings "
20 Porter had testified that he believed that at the first meeting he had
informed Wilson that the price was $12 million but admitted that Wilson
had not discussed puce
21 Porter did not push a cash value on the reserves, nor did he know
how many acres were involved in all the leases He testified that calcula-
tions were made in tonnage, and Garland thought there were approxi-
mately 700,000 tons at Tamaha and 2 million tons at Rose Hill. He had
given these figures to Kelly McBride and probably Wilson.
MINE WORKERS LOCAL, 1329 (ALPINE CONSTRUCTION)
either way'was okay with-him and Wilson "could make
up his mind."
Porter also testified as to a meeting he:' had with
Hawk, which affected the purchase price. Porter did not
state the date of the meeting, nor whether it occurred
after the third meeting with Wilson. At this meeting
Hawk talked to him about the amount of reclamation
that remained to be done in the Rose Hill properties.
Hawk stated that if Alpine did the reclamation instead of
Garland, it should be entitled to a reduction of the pur-
chase price. Hawk returned a day or so later and stated
that Alpine should be entitled to a reduction of $1-1/2
million for doing the reclamation. While Porter thought
this was too high, in a few days he agreed to this reduc-
tion. When asked on cross-examination if- this meant that
Garland "was selling the property for eleven million dol-
lars," he replied yes.
According to Wilson, after the June 1 meeting and its,
verbal agreement he discovered that there was a tremen-
dous amount of reclamation to be done at Rose Hill, that
he had not originally considered. Alpine then, by Hawk,
offered to do this reclamation for Garland for $1-1/2
million which should be taken off the purchase price.22
Porter "didn't. see it that way," and Wilson testified that
"to this date23 that hasn't been completely resolved." He
further testified that as to the question of the ultimate
purchase price, there were two opinions, his and Por-
ter's. Porter did not recall if Wilson came .to Fort Smith
or called, or sent word, but that, basically Wilson did
agree to the, deal outlined between himself and Hawk.
At a date subsequent to June 1, Porter then telephoned
the firm's lawyer William Prugh, of the firm of Shugh-
art, Thomson & Kilroy,-. which was located in Kansas
City. Porter outlined the verbal agreement to his attor-
ney, and then mailed to him a list of the leases, the list of
properties that Garland owned, and the list of equip-
ment . Porter also talked with his attorney about a sales
representative agreement. No covering letter was sent.
Wilson called one of his lawyers, Ed Edmondson,24 in
Muskogee, and in Wilson's words, told him to get going,.
and work with Porter's lawyer on the papers.
Edmondson recalled Wilson's call to him, adding-that
Wilson told him there was an ongoing negotiation for ac-
quisition of the major part of the lease holdings of Gar-
land in Haskell County. In early June, Edmondson tele-
phoned Prugh and thereafter had several conversations
with Prugh about the details of the sale of leases, as well
as the land at the port. -
2. The closing meeting
a. According to Alpine
The major conflict of testimony in this case is whether.
or not there was a meeting of Alpine and Garland repre-
22 Subsequently, Wilson testified that it would take five times this
amount to complete the Rose Hill reclamation.
23 March 16, 1983 '
24 Alpine had been a client of Edmondson since late . 1981, when
Wilson sought his help to acquire coal leases in the Muskogee County
area . A member of the Oklahoma .bar since 1947, Edmondson had served
as county attorney of Muskogee County from 1949 to 1953, and had
served as a member of the House of Representatives from 1953 to 1972
- 421
sentatives on June 24 at Garland's office. The General
Counsel and the Charging-Party maintain that there was,
and Respondent vehemently contends that there was not.
Furthermore, Respondent argues, even if there was a
meeting, it was not a closing meeting and there was no
closing meeting until, at best, November • 1982.
Wilson, Edmondson, and' Hawk, all testified that they
went to. Garland's office in Fort Smith on the morning
of June 24,-where they met with Porter and his attorney
Prugh for a meeting that lasted most of the day. Porter
also so testified.25
Prugh had prepared the documents to be used at the
closing in his Kansas City office, and at Porter's instruc-
tions had listed the buyer's name in the assets purchase
agreement as the Nineteenth Seed Company. Porter be-
lieved that Nineteenth Seed was the parent company,
and had assumed it was the purchaser. At this meeting
many, and in -some cases, voluminous documents were
presented to'-Alpine by Prugh. These documents were
then reviewed by Edmondson and Wilson, with various
changes requested by Edmondson, who claimed that
some of the changes he had asked Prugh to make over
the _ telephone had not been made. While Prugh argued
for his version; in most instances Porter directed Prugh
to adjust the documents to Edmondson's view.
The basic document was the asset purchase agreement
which consisted of 15 pages (C.P. Exh. 7).26 The first
line of the first paragraph of page 1 reads as follows:
THIS AGREEMENT is made and entered into the
'24th day of June, • 1982, by and between GAR-
LAND COAL & MINING COMPANY, a Missou-
ri corporation (hereinafter referred to as "Seller"),
and NINETEENTH SEED COMPANY, an Okla-
homa corporation (herein referred to as "Buyer").
By mutual agreement the Nineteenth Seed Company
name was inked through, and Prugh wrote in its place
Alpine Construction Corporation. Thereafter, inked
changes were made by Prugh on pages 4, 5, 7, 9, 10, 13,
14, and 15. Also reviewed that day were a series of doc-
uments that were referred to in the asset purchase agree-
ment by exhibit letters.
Paragraph 1.1 of this basic document referred to Ex-
hibit A, as a list of the Seller's assets, "machinery, equip-
ment and fixtures." While this Exhibit A does not have
its own individual case exhibit number, it is in evidence
as a one-page attachment of Respondent's Exhibit 10.
Hurley, who had worked as a superintendent at the
Kinta mine for Alpine, was called by the Respondent as
a witness. He testified that he had examined this equip-
ment for Wilson, and that the equipment shown on Ex-
hibit A had a used value of $9 million exclusive of the
Page dragline. However, when asked to appraise each
item of this list, he arrived at a total of $2,227,000.
26 The findings as to what occurred at this meeting are based on a
composite of the testimony of Wilson, 'Edmondson , and Porter, and many
exhibits admitted into evidence Prugh, the Kansas City attorney, did not
testify. -
26 All pages of this document , as well as all supporting documents,
were typed, unless otherwise stated. . .
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hurley, who had helped assemble the Page for Garland
in 1979, appraised it at $7 million.
Paragraph 1.2 concerns assignment of coal leases and
agreement (R. Exh. -11).. The first four pages of this ex-
hibit contain the lease agreement itself . The final para-
graph is fully typed and reads that it shall be effective
"This 24th day of June, 1982." It carries the signatures
of Porter and Wilson. Attached to it are four. pages of
leases , which list under three columns the names of the
leasors , the dates of the leases , and brief descriptions, of
the leased properties.
Paragraph 1.3 concerns the "Coal Leases" and is a
five-page document from Garland, which allows Alpine
to mine and remine coal underlying the leased premises.
(R. Exh. 15.) The first line of the first paragraph reads,.
"THIS LEASE executed this , day of ,
19 " Written in these blanks in ink are 24, June and
82. The document carries Porter 's and Wilson's signa-
tures. Attached thereto are 1-1/4 pages of description of
the properties covered by that lease. I
Section 2 states unequivocally that the purchase price
would be $11 million. Porter testified that this figure was
arrived at after Wilson requested that $1 million be taken
off the purchase -price for the excess reclamation at Rose
Hill. Instead of such a deduction "we gave them a grace
period where there would be no principal nor any inter-
est accumulated on the large note , and we then deducted
from the purchase price a principal amount plus an inter-
est factor which we had waived."
Section 3 provides that the closing of this agreement
will take place on June 24, 1982, at Garland's office, and
that a closing statement shall be executed at that time.
Section 4 pertains to the payment of the purchase
price and , in subsection 4.1, states that $2,275,000 will be
payable at closing by cashier's check' or certified check.
Porter testified that 4 or 5 days prior to June 24, Wilson
had asked him to_ reduce the down payment from $3 mil-
lion to $2,275,000, and he had agreed to do so. During
the course of the-day, and without informing Edmond-
son, Wilson presented. to Porter, Alpine's Chickasha
Bank check number 1608, dated June 24, payable to Gar-
land, in the amount of $2,275,000 (C.P. Exh. 9). Porter
deposited this check around noon in the First National
Bank of Fort Smith, apparently to have it deposited
before the bank's closing time . As Edmondson testified,
he was shocked when he was advised later that day that
this transaction had occurred without his knowledge.'
An examination of -Charging Party 's Exhibit 9 dis-
closes that on the face of Alpine's check is handwritten,
"OK by phone DW 6-29-82." Wilson testified that he
did not know whose writing it was, but thought it was
that of somebody, in the Fort Smith bank who called the
Chickasha bank- to ascertain the condition of Alpine's ac-
count . On the reverse side of the check appears the im-
pressions of three rubber stamps . The far left end of the
check contains the stamped words, "Pay to the Order of
First National Bank, Fort Smith, Arkansas Garland Coal
and Mining Co." Below this imprint appears , "Pay Any
Bank, P.E.G. First National -Bank of Fort Smith, Ark.
81-31 81-31 Jun 24 82." The third and last imprint reads,
"UE '82' 25 Pay Any Bank First Natl Bk. & T. Co.
Oklahoma City, Okla."
Subsection 4.2 -provides that at closing the buyer
would deliver to- Garland a promissory note in 'the
amount of $1,225,000, and that it shall be due 4 months
after closing. This-note, dated June 24, 1982,.-was signed
by Wilson and witnessed by Brooks. (R. Exh. 19.)
Subsection 4.3- provided that at closing the buyer
would deliver a note in- the amount of $8 million to the
seller, with the first payment due January 24; 1983, and
future payments to be made in monthly installments over
a period of 5 years . Interest was to be paid 'on the basis
of the prime rate in effect at the First National Bank in
Fort Smith , less 2 percent. During the negotiations, the
date on which the first installment was to be paid was
extended by 1 month, so that it became due in January
1983 rather than in December 1982. Edmondson pointed
this change out in his testimony as one of the substantial
changes made during this meeting . This note , also dated
June 24, 1982,' was likewise signed by Wilson and wit-
nessed by Brooks. (R. Exh. 18.)
Section 5 provided that the seller, Garland, shall-have
a security interest in certain assets purchased by Alpine,
as set out in Exhibit E. (R. Exh. 13.) Exhibit E is a two-
page, preprinted legal form27 captioned "Security
Agreement." It- is dated in the top right-hand comer
June 24, 1982, and is signed on the bottom by Porter and
Wilson. Attached to this document is an uncaptioned 5-
by 7-inch preprinted legal _form that states that this fi-
nancing statement covers the items set forth in the at-
tached Exhibit A, and all coal leases described in the at-
tached Schedule. Exhibit A, in turn, sets forth the fol-
lowing five items: _ . '
Page 752 LR Dragline S/N 397
Substation
B.E. 1250 Dragline S/N 114235
Substation E.E. Atkinson -
Port complete with stocking and loading.28
The attached schedule I 'consists of four -pages of leases,
setting forth the lessor 's names, date of lease, and a de-
scription of the property. The leases covered a period. of
time from 1969 to 1981.
Section 6 dealt with various other documents that
Alpine was to deliver to Garland at the closing. Among
these were bills of sale that were to be in the form 'of
Exhibit F of section 6.1. Received into evidence were
two such exhibits, Respondent's Exhibits 26 and 27; both
preprinted legal forms of the Demeree Kansas City print-
ing company. These documents required only Porter's
signature, and were so executed bearing the date June
24, 1982. Bill of sale (R. Exh. 26) set forth Garland as
the seller , and Nineteenth Seed Company as the buyer,
and listed only one item, the page 752 LR Dragline'S/N
397. Bill of sale (R. Exh. 27) from Garland to Alpine had
attached thereto the one-page document- that listed a
large number of specific pieces of machinery and equip-
ment that was referred to as Exhibit A in paragraph 1.1-
z' Imprinted on the' top right of the first page is Demeree Stationary
Company, Kansas City, Missouri
28 The Port was conveyed to Alpine by a Warranty Deed dated June
24, 1982 (R Exh . 14.)
MINE WORKERS LOCAL 1329 (ALPINE CONSTRUCTION) 423
above.-The first line thereof, page 752 LR Dragline S/N
397, had a line drawn through it. On the first page of
both Respondent's Exhibits 26 and 27 was hand printed
in large letters, "Cancelled." Respondent's Exhibit 10
was an identical copy of Respondent's Exhibit 27, but it
did not have "Cancelled" imprinted thereon, and on the
attached sheet, Exhibit A, no line was drawn through
page 752LR Dragline S/N 397. Porter's signature was on
this document as of June 24, 1982. Wilson testified, with-
out contradiction, that to the best of his recollection the
document was signed on June 24, and there were no
changes required in that document. The record does not
disclose in what manner the' other two bills of sale (R.
Exhs. 26 and 27) were marked canceled.29
Various other subsequent sections of the assets pur-
chase agreement. pertained to warranties of both par-
ties,30 to conditions precedent, indeminities, Bulk Sales
Law, brokers, how notices should be given, and that
Oklahoma law would govern.3 i
At the meeting Porter also presented a three-page sales
representative agreement. After examining it, Wilson re-
fused to sign it, as his 'interpretation of its contents was
that Porter would receive 25 cents a ton commission on
all coal sold by Alpine, and not just on coal covered by
new sales made by Porter. No sales agreement was
thereafter entered into.
In late afternoon, Porter, and Wilson informed Prugh
and Edmondson that they had a deal, and that the two
attorneys were to work out the details, and get the docu-
ments in final shape for signing . The marked-up, asset
purchase agreement was signed by Porter and Wilson.'A
closing agreement was then drafted and typed by one of
Porter's office employees.32 Wilson and Porter then
signed it in the presence of each other (C.P. Exh. 8).
This closing agreement reads as follows:
It is agreed that the Asset Purchase Agreement
dated June 24, 1982, and the exhibits .thereto, shall
- be ,signed by both parties in their present form, in-
cluding changes made by hand, that the said agree-
ment and all exhibits thereto shall be retyped in
final form and signed by the parties as promptly as
possible, and the retyped document shall be substi-
tuted for the documents signed today and shall be
effective as of June 24, 1982. In addition it is agreed
that Ninteenth Seed Company and Clay Wilson, Jr.
shall give corporate and individual guarantees on
29 Respondent in its brief overlooked -the fact that the bill of sale for
the Page dragline to Nineteenth Seed was canceled . I regard Porter's
answer that Nineteenth Seed gave a bill of sale back to Garland for the
dragline in November as an inadvertent mistake . The Page was sold to
Alpine on June 24 as the lead item enumerated on Exhibit A of the bill of
sale -
so R Exh 16 was a list of encumbrances on seven assets purchased by
Alpine '
3' Edmondson particularly remembered that the early drafts had pro-
vided that Missouri law would apply to the sale , and that he had in-
formed Prugh that this must be changed so that Oklahoma law would
apply At the closing meeting it had not been changed and, at Wilson's
insistence , the parties crossed out Missouri and inserted Oklahoma.
32 Garland had two office employees who performed typing duties
Charlotte Jennings was the secretary and did most of the office typing
Patsy Hampton assisted on some occasions. Jennings did not testify, but
Hampton did, as set forth infra . Hampton denied that she typed this ex-
hibit
both promissory notes covered by the Asset Pur-
chase Agreement.
Edmondson and Prugh went through the papers, doc-
ument by document, to make sure that each attorney's
documents conformed with "those of the other. At the
end of the day, Prugh took his original documents back
to Kansas City to have them retyped in accordance with
the changes made that day.
Porter testified that he filed the security agreement
and the leases in early July. Admitted into evidence as
Charging Party's Exhibit 6 were five documents that re-
flect that these documents were 'so filed, although they
do not - show that he personally filed them. Three of
these pages were on identical preprinted legal forms.33
Although these forms were not captioned, there was
typed: "This is a Purchase Money Security Interest."
Wilson identified it as a UCC34 filing. Boxes 1 and 2 at
the top of the form showed Alpine Construction Compa-
ny, Box 45, Chickasha, Oklahoma, as the debtor, and
Garland Coal & Mining Company as the secured party.
Box 3 was captioned, "This financial statement covers
the following types (or items) of property:"
All machinery, equipment and fixtures of Debtor lo-
cated in Haskell County, Oklahoma, as described in
the schedules attached hereto' consisting of 1 page,
and identified as Exhibit "A." All Coal Leases 'of
Debtor for property located in Haskell County,
Oklahoma, as described in the schedules attached
hereto 'consisting of 4 pages, and identified as
Schedule 1.
Below this statement is printed, "File with the County
clerk Grady County, State of Oklahoma, under Uniform
Commercial Code effective January 1, 1963."
The first of these -three forms, as identified by Wilson,
had been signed by him for Alpine as the debtor.35 At
the bottom of this form is printed, "(5) Debtor Copy
Originator- Remove this copy and forward balance of
form intact for filing." z
In the second of these forms there is printed at the
bottom, : "(3) Filing Officer Copy-Acknowledgement-
Filing Officer is requested to note file number, date and
hour of filing on this copy and return it to the person
filing, as an acknowledgement." In the right upper
corner is a space in which is printed, "For Filing Officer
(Date, Time, Number, and Filing Office)." While it is
evident that something was stamped thereon such words
are undecipherable. However, at the very top of this box
is written 22216. Appearing under the document de-
scribed above is a reproduced copy of receipt No. 3572
on a printed form captioned, "Office of County Clerk,
Grady County:" Right after the printed words, "Chicka-
33 The fourth document was the list which cited the Page Dragline
Substation, B E Dragline, Atkinson' Substation, and the Port, formerly
referred to in C P Exh 6, supra The fifth document was the four-page
list of leases, formerly referred to in C P Exh 6
14 Uniform Commercial Code
35'Although Wilson's signature was barely visible, he laid this'to the
fact that there were about four copies to a form and his signature became
less descernible on each successive copy.
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sha, Oklahoma" is written "July 1, 1982." The next line
has printed, "Received of and immediately thereafter is
written "Shughart, Thompson & Kilroy."36 Below this is
written "Five & No/100-Dollars." Other printed data on
the form indicates that the $5 fee was paid by check, and
was for "Filed instruments." It was initialed under the
printed words, "Betty Bullard, County Clerk," and over
the word "Deputy." - -
The third identical preprinted form contains the same
typed-in data as typed in on the.first two forms but has
one exception. On the line in which appears, "File with:
THE COUNTY CLERK," is typed in "Haskell."37 Ap-
pearing under this document is a reproduced copy of re-
ceipt 37212 from "The Office of the County Clerk in
Haskell County, Stigler, Oklahoma." It is hand dated "7-
6-82" and written therein is that $5 was received of Shu-
gart, Thompson & Kilroy, by check, for "Filed instru-
ments." Under the printed name of the county clerk, the
name S. McGuire, is written over the printed word
"Deputy." -
Also admitted into evidence was, Respondent's Exhibit
12, which consisted of three documents, -somewhat semi-.
lar in form to the purchase money security interest forms
in Charging Party's Exhibit 6. The purpose of these
forms was typed in on all three as Item D: "The name of
the Debtor in the original financing statement, Alpine
Construction Company, is amended to Alpine Construc-
tion Corp." The first of these three, forms is for-Grady
County and reads, "This statement refers to Financing
Statement No. B004646-filed 7/1-1982." The third and
last of these three forms is for Haskell County and reads,
"This statement refers to original Financing Statement
No. 50242 Filed 7/6/82."
b. According to Respondent
In support of its position that there was no meeting of
the parties on June 24, Respondent produced one wit-
ness, 'Patsy Hampton. Hampton had worked for the
UMW at its District 2 office from October 1970 until
March 1981, when she was discharged for union political
reasons. She then was hired by Porter to work for Great
Western Enterprise in April 1981, and in November 1981
was put on the Garland payroll.38 For Garland she han-
dled the,health benefit claims of employees who worked
at Tamaha, Rose Hill, Bokashe, and Charleston mines.
On September 28, Porter gave her a letter of recommen-
dation which stated, among other things, that he' would
recommend her for both "her job capability and her per-
sonal integrity." In November she was laid off for lack
of work. -
On being asked on direct examination if she was famil-
iar with an alleged sale of certain assets by Garland to
Alpine, the following colloquy took place:
36 As previously stated , this is the name of the law firm in Kansas
City, of which Prugh was a member
37 As previously stated , the Tamaha and Rose Hill mines are located
in Haskell County Wilson lives in and Alpine's main office is in Chicka-
sha, which is in Grady County -
36 Great Western performed general machine shop and repair services
for the public at large and was managed by C E Etchison At the time
of his testimony , Porter was the sole shareholder, was a director of the
corporation , and had served as a vice president in the past year or two
A. I made copies of some agreements. I did some
typing on changes and things.
Q Do you recall approximately when you made
copies of agreements and made changes?
A. It was July 12th.
Q. You think it was around July 12th9 -
A. Around July 12th, yes.
When shown the closing agreement (C P. Exh. 8)
Hampton denied that she had typed a one-paragraph
document that'changed Nineteenth Seed to Alpine Con-
struction Company. When asked what date she thought
that document was typed, she replied, "Aproximately
July 12th." "
On cross-examination when asked if she was ' certain
about the, date being July 12, she replied, "Not exactly,
sir, no." 'She also testified that it was on a Monday.39
Later, 'when pressed as 'to the date of the meeting she
testified that the date was July 12 because an article
came out in the July 13 local newspaper telling about the
sale to Alpine on June 24. She further testified that she
had a copy of the newspaper at home. It was never pro-
duced by either side.
Hampton was a sincere and straightforward witness.
However, when asked if she could identify Wilson in the
hearing room, she was unable to do so. Since the hearing
was being conducted under Rule 615,- exclusion of wit-
nesses , there was virtually no person in the room other
than the judge, court reporter, the UMW, and Wilson.
Wilson was present at the trial table as the representative
of Alpine, and easily visible.
c. Conclusion
After considering the testimony of Edmondson,
Wilson, and Porter, and the conflicting testimony of
Hampton, all credible witnesses, I 'conclude that the
meeting did take place on June 24. The version present-
ed by the General Counsel's witnesses is strongly sup-
ported by exhibits admitted into evidence from both the
Charging Party as well as Respondent. Alpine's check
for $2,275,000 was clearly' deposited in Garland's Fort
Smith bank on June 24. Charging Party's Exhibit 6 clear-
ly shows that these security interest forms were filed and
received in the county clerks' offices of Grady County
and Haskell County on July 1. Respondent's Exhibit 12
clearly shows that on July 6 amendments were filed in
the same county courthouses to the documents first filed
on July 1. These documents could not have been filed on
the dates set forth thereon had the closing meeting taken
place on July 12.
I also find that there was a legally binding sale of
equipment, leases , and assets on June 24. The parties had
signed a marked-up asset purchase agreement, then had
agreed that this instrument should be retyped to conform
with the document signed in Fort Smith, then had signed
a coal lease and an assignment of. coal leases, • and then
had signed a bill of sale for the Page dragline, the,B. E.
dragline, the Port, and numerous items of mining equip-
ment , as well a warranty deed conveying the Port to
39 July 12 was a Monday
MINE WORKERS LOCAL 1329 (ALPINE, CONSTRUCTION) 425
Alpine. The parties had also signed a security agreement
giving Garland the right, among other things, to repos-
sess the equipment in the event of a default by Alpine, as
well as security interest forms for filing in Haskell, and
Grady Counties Finally, and of particular significance,
Alpine had delivered to Garland a check for $2,275,000
as a down payment on the purchase price. Clearly, this
massive amount of money was sufficient consideration
for the ensuing sale. However, in addition, Alpine had
signed promissory notes in the amounts of $1,22.5,000 and
$8,100,000. All of the essentials to close the sale had been
completed and there merely remained some tidying up to
do as set forth in the closing agreement.
3. The Japanese coal sales
Although Porter had told Wilson prior to the sale that
Garland had a contract with the Japenese for 200,000
tons of coal, Wilson learned sometime thereafter that this
contract had terminated on March 31, 1982 (R. Exh.:30).
A similar draft for the delivery of 200,000 tons for the
period of June, 1, 1982, through May 31, 1983, had not
been signed by either Garland or the customer (R. Exh.
31). Porter informed Wilson that he thought that the
buyer, Nessho Iwai Corporation, would honor what
Porter considered a commitment. Porter proceeded to
set up a meeting in mid-July at the Tulsa airport. Wilson,
Hawk, and Porter met with two representatives of
Nessho Iwai, who agreed to buy coal from Alpine on a
spot basis. A schedule was set up and, as of March 1983,
Nessho Iwai had purchased 80,000 tons for which Alpine
had received $4,987,000.,
Payments for this,coal were sent to Garland, who pro-
ceeded to deduct $4 a ton in accordance with the inter-
est provisions set forth in the promissory note signed by
Wilson on November 15. (R. Exh. 17.) Garland then
transferred the net payments to Alpine. Garland had a
telex machine in its office which it'used to send messages
to Nessho Iwai about coal shipments. Garland performed
this service without charge to Alpine until December
when it commenced charging $25 a month. At the time
of Porter's testimony in March 1983, he had made two
trips to Japan on behalf of Alpine, for which the ex-
penses were paid by Alpine. On the second trip, he had
taken with him Alpine's .newly hired salesman, James
Hall. Alpine paid the expenses for these trips. When
Wilson was asked on cross-examination if he thought
Porter was taking the trips to Japan dust to be going to
Japan, he replied that Porter should be doing everything
in his power-to try to make the operation a success, "Be-
cause other than that, he'd have a very difficult time col-
lecting the rest of his money."
4. Subsequent events related to the sale
In accordance with the agreement of counsel at the
June 24 meeting, Prugh took the original documents
back to Kansas City, so that the replacement documents
would be typed on the same typewriter as the marked-up
documents. After having them retyped to reflect the
changes agreed to in Fort Smith, Prugh mailed these re-
typed but unsigned documents to Edmondson, who re-
ceived them in mid-July. Upon receiving these docu-
ments , Edmondson determined that there were several
changes that had been negotiated-which had not been ef-
fectuated in Prugh's second draft. The Muskogee attor-
ney particularly recalled that Prugh had not changed
that section which stated that Missouri law would.apply
to read that Oklahoma law would apply. Edmondson
then wrote to Prugh pointing out certain changes that
had to be made before he would have Wilson sign the
documents. Prugh advised Edmondson that he had the
documents on a word processor;-and he would make the
changes'and send the corrected papers back to him.
In early August, Edmondson received the corrected
documents from Prugh. He then reviewed them and
found them to be as agreed to As Porter testified, a
meeting was set up in August at Garland's office so that
the documents could be signed. Porter, Prugh, and
Wilson showed but Edmondson, who had the docu-
ments, did not attend. At this meeting Wilson advised
Porter that he wanted to give Garland a lien on the
dragline instead of a personal guarantee. The parties then
agreed to meet the next morning. On the following day
Porter was the only person to appear. He was subse-
quently advised that the Alpine people had been delayed.
Shortly thereafter Porter contacted Edmondson, who ad-
vised him that he would have the documents signed by
Alpine and then turn them over to Porter. -
In September, Porter stopped by Edmondson's office
in Muskogee to pick up the documents, but the attorney
was not in. Later, in September or October, Porter con-
tacted Hawk and threatened to withhold payments from
the Japanese in lieu of Alpine's failure-to sign the docu-
ments. Hawk then informed him that lie would get the
documents signed and, bring them down to Porter. Hawk
did stop by Edmondson's office and pick up the docu-
ments taking them to Wilson.
Also in the fall, at Wilson's instructions, Hawk went to
see Porter in Fort Smith and informed Porter that eco-
nomic conditions were such40 that Alpine was not going
to be able to fulfill its obligation to Porter, and that
Alpine had to have a different payment schedule "or the
show was over." Porter testified that sometime in Octo-
ber or November, Wilson wanted to restructure the two
notes signed on June 24 into one note, so that it would
reflect "the deductions for the -down payment and the
deduction for the reclamation, with the balance to start
drawing interest as of June 24th, instead of a seven-
month grace period." Porter accepted Wilson's request
and, to effectuate this change,- a new promissory note
was drafted. This replacement note (R Exh. 19) was in
substantially the same form as the first two notes, with
the figure $8,775,000 typed on the left side and June 24,
1982, typed on the right side. A comparison of the notes
shows the following differences:
Amount of two June 24 Notes
$8,100,000
40 While Hawk did not state what these economic conditions were,
Porter testified that Wilson was having problems with the financing of
the purchase because of the "Penn Square debacle " .
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
First payment due on June 24, 1983, with last pay-
ment due-on December 24, 1987
Unpaid balance payable at 2 percent below prime
rate charged by Fort Smith Bank.
Amount of November 15 Note
$8,750,000
First payment due on June 24, 1983, with last pay-
ment due on June 24.1987
Unpaid balance at 10 percent from June 24, 1982
through June 23, 1983, thereafter at 2 percent below
prime rate charged by Fort Smith
During period June 24, 1983 until June 23, 1984,
Alpine shall pay Garland $4 for each ton of coal
sold.
While the record does not 'disclose who drafted this
new note, there was also drafted an "Amendment to
Asset Purchase Agreement and' Modification Agree-
ment" (R. Exh. 17). This two-page amendment document
provided that the asset purchase agreement dated June
24, 1982, and all its attached documents are hereby
amended "solely with respect to the method and sched-
ule for payment." Attached to this amending document
was the $8,775,000 promissory note referred to above.
Wilson signed the amending document and the note on
November 15, 1982, writing this date on the documents.
He also testified that he may have signed the retyped
original asset purchase agreement that day, but he was
not sure. This revised agreement contained 14 pages
whereas the original document signed on June 24 con-
tained 15 pages. Porter remembered signing the amend-
ment around November 15, but was not sure of the date.
The record also contains a "Certificate of Officer" which
states that the representations contained in the asset pur-
chase agreement are true on and as of June 24, 1983, and
that since that date no acts have been done which would
constiute a default or noncompliance. This document
was signed by Porter and hand-dated November 17,
1982, which would indicate that he also signed the
amendment-on that date.
On November 18, Hawk filed in the office of the
county clerk of Haskell County 74 "NOTICE(S) OF
COAL- LEASE ASSIGNMENT" (R. Exhs. 23A
through 23 UUU). These notices set forth that Garland
as lessee was assigning-its leases to Alpine as assignee.
Finally, on November 24, there was filed with the Has-
kell County clerk the "COAL LEASE" and the" warran-
ty deed (R. Exh. 22). Both the coal lease and the deed
showed June 24, 1982,- as the effective date, and were
duplicates of Respondent's Exhibits 14 and 15.
5. Analyis and conclusions
Respondent relies heavily on the case of Fugazy Conti-
nental Corp ., 265 NLRB 1301 (1982), enfd . 725 F.2d 1416
(D.C. Cir. 1984), in support of its position that the sale
involving the equipment , assets , and leases of Garland's
Tamaha and Rose Hill mines to Alpine was not a bona
fide arm 's-length transaction, and that Alpine was an
alter ego of Garland . While the record discloses that this
sale and subsequent events were not models of efficiency,
and would never be used in a master's- business adminis-
tration course to illustrate how the sale of a mine should
be handled, I conclude that Respondent has not estab-
lished that the transaction was not bona fide. '
In determining whether Alpine is the alter ego of Gar-
land, a number of. factors must be considered, although
no one of which, taken alone, is determinative. Crawford
Door Sales Co., 226 NLRB 1144 (1976). Many of these
factors are set out in Fugazy Continental Corp., supra, as
follows: common management and ownership; -common
business purpose; nature of operation and supervision;
common premises and equipment; common customers;
nature and extent of the negotiations; and formalities sur-
rounding the transaction.
Respondent particularly criticizes the negotiations and
formalities surrounding the sale, declaring several times
in its brief that -there were "departures from normal busi-
ness procedures that would indicate less than an arm's
length relationship." In support -of this position, Re-
spondent argues, among other things, that Alpine did not
use an independent geologist to evaluate the coal re-
serves, and that Alpine engaged in no appraisals of the
equipments' value or, if made, they "fell far short of
what one would'except in an arm's length transaction of
this magnitude." Respondent is very critical of Hawk,
who was Alpine's principal representative in these mat-
ters, claiming that he had "practically" no previous expe-
rience in coal mining or in analyzing chemical character-
istics of coal. But Hawk was a college graduate with a
master's degree in civil engineering, and had broad expe-
rience for many years in the heavy and highway con-
struction field, involving the" excavation and moving of
huge quantities of earth. Hawk was also an old and trust-
ed friend and associate of Wilson for over 14 years in the
highway construction business. Wilson was by no means
a novice in -the strip mining of the coal industry, as he
had been engaged in that business for 6 to 7 years before
he considered the purchase of the equipment and leases
from Garland. While it is probable that an independent
geologist would have done a better and more thorough
job than Hawk, Respondent offered no proof that it was
required or customary for a prospective purchaser such
as Alpine to use such a geologist. Hawk did evaluate the
coal reserves with the assistance of Alpine's engineer,
Kelly McBride. Hawk did check the leases with the as-
sistance of Alpine's corporate secretary John Brooks and
Garland's expert Shannon Craig, who had worked on
these leases for many years.
• As to the equipment, Wilson well knew the value of
the almost new Page dragline and the other dragline, the
Bucyrus-Erie, both of which represented 87 percent of
the entire purchase price asked by Porter.4 i The other
mine equipment, such as dump trucks, bulldozers, and
pumps, was not even an item in Porter's mind when he
calculated his total purchase price. Much of this equip-
ment was old and needed repairs to get in working _
order. Hawk did have it examined by an experienced
contract mechanic to estimate the costs of such repairs.
41 Hurley valued these draglines at $7 million and $4 million, very
close to Porter's estimate of $6 5 million and $4 million.
MINE WORKERS LOCAL '1329 (ALPINE CONSTRUCTION)
In June, Wilson also took the business-like step of call-
ing in his local attorney to represent Alpine's interests in
drafting the necessary legal documents, and Porter used
Garland's regular corporate law firm from Kansas City.
However, when it came to negotiating .the price of the
total purchase, Wilson showed himself to be a hard, and
relentless, bargainer. Porter originally wanted $12.5 mil-
lion cash. In early June while retaining the same total
purchase price, 'he moved from all, cash to a $3.5 million
downpayment, then to a $3 million'i lion downpayment, with
the balance to be paid over a 5-year period with interest..
Then, in mid-June, upon Wilson' s insistence . that there
was a tremendous amount of reclamation work to be
done at Rose Hill, and Wilson's demand that $1.5 million
be taken off the purchase price for such work, Porter
gave in. While there was much testimony as-to the assets
purchase agreement showing the price as $11.6 million,42
Porter flatly testified that the final price was $ 11 million.
Wilson also testified that the purchase price was $11 mil-
lion and that was all he was going to pay Garland.
While it is true that Garland did not have a personal
guarantee from Wilson, the record is clear that Porter
had reasonable and ample security. Garland already had
banked the downpayment of $2,275,000, and as Porter
testified, if Alpine defaulted on the balance, Garland
would take back the two draglines, the leases, and the
Port. Clearly, these two huge draglines, as well as the
Port and the leases, were not capable of being boned up
overnight and carried away in trucks to unknown points
by a defaulting purchaser.
Respondent also makes much over the amount of time
that it took to -get the smooth documents signed, and this
delay was unusual and, perhaps, unconscionable. It is
possible.that Wilson was avoiding Porter during much of
this period, as when-he was asked on the witness stand
why it took so long, .replied that Porter was in a hurry -
and "I might have taken that opportunity to harass-him a
little bit." Wilson in this period was extremely busy in
getting the two new mines into operation , and was
having personal financial problems. But Porter's threat,to
withhold the payments received from the Japanese
quickly brought Wilson to sign the clean documents. But
again , Wilson, the consummate bargainer, succeeded in .
negotiating more favorable terms for Alpine. Porter was
a willing seller who badly wanted to get out of the coal -
mining business , and Wilson was a shrewd buyer, taking
every advantage he could to negotiate a better deal. The
tactics of Wilson clearly show that this was an arm's-
length transaction , and are. contrary to the creation.of an
alter ego relationship between Garland and Alpine.
All of the other factors cited by Fugazy, except one or
possibly two, require the conclusion that Alpine was not-
an alter ego of Garland. Both companies did have a
common business purpose, the strip mining and selling of
coal. It is also arguable that Alpine, and Garland had
common customers, i.e., that the 'employers constitute
"the same business in the same market." International
Harvester Co., 247 NLRB 791 (1980). The Japanese firm
42 As explained by Porter in sec D,2,a supra, this change from $12 5
million was to allow Alpine a grace period during which principle and
interest would not need to be paid on the $ 8 million note
427
remained Alpine's primary market, but Alpine had ob-
tained several new customers, including "the Lone Star
Steel Company and two cement companies. Alpine had
purchased cement from these cement firms when it was
building roads, and now had received contracts from
them for over 1 million tons of coal.
But all -the other criteria weigh -heavily against Alpine
being found an alter ego. Clearly, there was no common
ownership: Alpine had not even assumed Garland's ac-
counts receivable, accounts payable, or their tax `liability.
The. nature of operations was substantially -changed, as
Alpine no longer operated the Tamaha mine and Rose
Hill mines as Garland had done. Garland had operated
each as a separate entity, with its own set work force
and equipment. Alpine treated its three Haskell County
mines , Tamaha, Rose Hill, and Kinta, as one entity and
moved employees and equipment back and forth between
the mines, as the workload dictated. Welders, oilers, and
mechanics were dispatched on a daily basis to any one of
the three mines that required their services. Alpine re-
placed Garland's four old belly dumps with four much ,
larger end dumps: Alpine ceased using its own -trucks
and drivers to haul coal to the Port, and contracted this
hauling out to an outside contractor. It also, contrary to
Garland's- practice, contracted out its drilling.
Nor was there any common management or supervi-
sion . Porter had nothing to do with the management of
Alpine, and no one at Garland has anything,to do with
the wages, discipline, or labor relations of Alpine em-
ployees. Neither Hawk, Alpine's manager of operations,
or Jay Gay, its general superintendent, had ever worked
for Garland. Steve Heim , hired in August as the superin-
tendent at Rose Hill, had previously worked for Garland
at its Arkansas mine , but he had been -retired • for some
time prior to being hired by Alpine. There was one other
supervisor foreman disclosed by the record who worked
for Alpine, Leon Lefler. Lefler was hired, in,late August
or early September as a foreman at the Tamaha mine.
Lefler had previously worked for Garland as an assistant
superintendent at Tamaha, but had quit Garland's em-
ployment about September 1981. He then went to work
for. A ,& R, a coal company, before his subsequent em-
ployment by Alpine. At the time of the hearing he was
operating a bulldozer.
Alpine also does not have common premises and
equipment. Garland operated a total of four mines and,
although Porter wanted Alpine, to buy its Bokoshe and
Charleston mines, Wilson refused to do so. Nor do the
parties share common offices. Alpine's main office is in
Chickasha and its field office in Stigler, while Garland's
office remains many miles away in Arkansas. Of major
significance as to the equipment is that Alpine purchased
four new 85-ton end dumps at $600,000 each, and two
new. caterpillar loaders, the largest made by that manu-
facturer, with each costing $750,000. It is to be noted
that the cost of these six pieces. of equipment purchased
by Alpine for $3.9 million is far. more than the total valu-
ation placed by Hurley on all of. Garland's equipment,
excluding the two draglines . Alpine also leased two
scrapers from Ninteenth Deed, which, if purchased,
would have cost $400,000 each.
428• DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In most cases, if not all, when an alter ego relationship
is found, the alter ego is a newly created company.
Farmingdale Iron Works; 249 NLRB 98 (1980); Denzil S.
Alkire, 259 NLRB 1323_-(1982). However, Alpine had
been a going coal mining company for over 6 years
when it purchased Garland's equipment, leases, and
assets at Tamaha.and Rose Hill, and in no way could it
be deemed to have been created in 1975 to enable Gar-
land in 1982 to evade responsibilities under the Act.
Southport,Co. v. NLRB, 315 U.S. 100 (1942).
Other facts militate against finding Alpine an alter ego
of Garland, including Wilson's refusal to sign the sales
agreement presented to him by Porter. This would have
been an easy conduit for money to have been channeled
into Garland's account, but Wilson would not agree.. An-
other negative was -Porter's threat in the fall of 1982,
when Wilson was stalling in signing the clean docu-
ments, to cutoff the sale of coal to the Japanese. In sum,
I conclude and find that the transaction between Garland
and Alpine was at arms'-length, was bona fide, and that
Alpine is not an alter ego 'of Garland, and that the Re-
spondent is not • the collective-bargaining representative
of Alpine's employees. -
E. Successorship
1. Under Burns doctrine
Pay Period
No. of -
Employees
No. of former
Garland
Employees
- Percent of
former
Garland
Employees
Respondent also argues that Alpine is a successor em-
ployer under NLRB v. Burns Security Services , 406 U.S.
272 (1972), "since it has at times had 50 percent or more
former Garland unit employees at either Rose Hill or
Tamaha [emphasis added] . In support of this position Re-
spondent compiled tables for both the Tamaha mine and
the Rose Hill mine , by comparing lists of Garland em-
ployees with Alpine payroll records that had been re-
ceived into evidence during the hearing. -
The Tamaha payroll records cover the 5-month period
of July 3 through December 4. While this period consists
of 22 Saturday to Fnday workweeks, the payroll records
contain separate records for 47 different pay periods.43
Twenty-two of the Tamaha pay records cover the period
of Saturday through Fnday. Four cover a period of
Fnday through Tuesday , three cover a period of Satur-
day through Wednesday, and eighteen cover a broad va-
riety of time periods.
Respondent in the ,Tamaha table sets forth six time-pe-
riods as indicating that Alpine employed 50 percent or
more of former Garland employees:
ay Period -
No. of
Employees
No. ojformer
Garland
Employees
Percent of
rmerfa
rlandGa
Employees
Aug.7-13 2 1 50
Aug 28-Sept 3 2 1 50
Sept 22-27 7 4 57
Oct. 1-5 8 5 62.5
Oct.9-13 6 - 3 50
Oct. 17-21 6 4 66
Only two of these payroll periods cover a full work-
week, with the others covering a lesser number of days.
A more realistic comparison is achieved by using the sta-
tistics for the time periods that overlap the time periods
cited by Respondent, so as to constitute at least a full
week. Such a table then contains the following figures:
Pay Period-
No. of
Employees
No. of
former
Garland
Employees
Percent of
former
Garland
Employees
Aug. 7-13 21 4
Aug. 7-13 2 1
23 5 22
Aug. 28-Sept. 3 2 1
Aug. 31-Sept 4 32 9
34 10 29
Sept . 22-27 7 4 -
Sept. 18-24 37 12
44 16 . 36
Oct.l-5 8 5
Oct. 2-8 - 40 12
48 17 35
Oct. 9-13 6 3
Oct. 9-15 41 12
47 15 32'
Oct. 17-21 6 4
Oct 16-22 48 12
54 16 30
The Rose Hill payroll records cover the 3-1/2 month
period of August 14 through December 4. This period
consists of 16 Saturday to Friday weeks, and there are
pay records for 16 such weeks. However, there are also
18 other pay records for this period, making a total of 34
pay periods. Set forth below are the time periods listed
by Respondent in support.of its position that Alpine at
times employed 50 percent or more of former Garland
employees.
43 Neither these payroll records nor the record as a whole explain
why Alpine used so many and vaned time periods
MINE WORKERS LOCAL 1329 (ALPINE CONSTRUCTION) 429
ay Period No. ofEmployees
'No. of former
Garland
Employees
Percent of
former
Garland
Employees
Aug. 31 -Sept.4 .11 6 _ 54.5
Sept . 11-17 18 9 50.
Sept . 22-27 ' 7 5 71 ,
Oct 1-5 6 4 66
Oct. 9-13 7 6 , 86
Oct. 17-21 13 7 54
Oct. 25-29 15 4 80
Nov. 2-6 9 6 66
Again, a more realistic' comparison is made by using the
figures for the time periods that overlap the time periods
cited, by the Respondent. These figures appear as fol-
lows:
Pay Period, No. of
Employees
No. of
former
Garland
Employees
Percent of
former
Garland
Employees
Aug. 31-Sept. 4 11• 6
Aug. 28-Sept. 3 9 4
Sept. 4-8 7 2
27 12 44
Sept. 11-17 18 9
Sept. 7-15 6 1
24 10 42
Sept. 22-27 7 5
Sept. 18-24 11 4
Sept . 25-Oct. 1 9 ' 3
27 12 44
Oct. 1-5 '6 4
Oct. 2-8 11 ' 4
17 8 48
Oct. 9-13 7 6
Oct. 5-9 7 1
Oct. 9-15 11 4
25 11 44
Oct. 17-21 13 7
Oct. 16-22 8 0
21 7 33
Oct. 25-29 5 4
Oct. 23-29 15 4
20 8 40
Nov. 2-6 9-' 6
Oct. 30-Nov. 5 14 4
23 10 43
One of the requirements of Burns, supra, is that the
successor employer must have employed a majority of
the former employer's employees,' and they must have
been during a representative period of time. From the
tables I have set forth. above it is evident that Alpine
never employed a majority of Garland's employees at
either Tamaha - or Rose Hill for any representative
period. I therefore conclude and find that Alpine is not a
successor to Garland under Burns.
2. Under an unlawful hiring policy
Respondent also argues that Alpine is a successor em-
ployer under Potter's Chalet Drug, 233 NLRB 15 (1977),
and C. J. B. Industries, 250 NLRB 1433 (1980), as these
cases held that an employer can be found to be a succes-
sor, even without a majority, if the buying company has
established a hiring policy in order to keep from-becom-
ing a Burns successor.
However, Respondent overlooks the fact that both of
these cases held that all other factors for finding a
successorship must first be present, before proceeding to
the question of the illegal hiring policy.
In determining successorship, the Board and the courts
have consistently found that the keystone, is whether
there is substantial continuity of the employing industry.
Premium Foods, 260 NLRB 708 (1982), enfd. 113 LRRM
3261 (9th Cir. 1983); Miami Industrial Trucks, 221 NLRB
1223 (1975).
In Potter's Drug, supra, the selling company had a col-
lective-bargaining agreement with a union, covering the
employees at two stores, which had a termination date
for one more year beyond the date of sale. Following the
negotiation of a sales contract, the stores were closed on
a Friday and reopened on Monday by the purchaser,
Potter. In finding the purchaser to be a legal successor
with the duty to bargain among other factors, the Board
found that there was, a -"continued operation of the stores
at the same location and in substantially the same manner
as before . . . ." In C. B. J., supra, following the alleged
sale of the business, the plant was closed down for 10
days, and then reopened by the successor. The Board
also found that the operation was continued substantially
the same as it had been under the predecessor.
However, in the instant case, I do not find that there
was a substantial continuity of the employing industry.
In determining whether the employing industry remains
substantially the same, the Board uses criteria as whether
(1) there has been a substantial continuity of the same
business operation; (2) the new employer uses the same
plant; (3) the same or substantially the same work force
is employed; (4) the same jobs exist under the same
working conditions; (5) the same supervisors are em-
ployed; (6) the same machinery, equipment, and methods
of production are used; and (7) the same product is man-
ufactured or the same service offered.
The record is clear herein that there has been no sub-
stantial continuity of the same business operation. Rather,
the business operation came to a halt in March 1981,
when Garland closed its four mines following the termi-
nation of the parties' collective-bargaining agreement,
and the strike by UMW. Then, 2 months later, the mines
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were, reopened with nonunion replacement miners. This
did not work. out to the satisfaction of Garland • and, in
March 1982, it again -closed the Tamaha- and Rose Hill
mines and put their equipment and leases up for sale.
Thus, when Alpine' purchased the assets of these two
mines in late June, these mines had not been operating at
all for almost 3 months and, in the year prior to that, had
been working in an off-again , on-again disrupted manner.
As to the second factor, Alpine did not use the same
plant. Garland had mined four mines , three in Oklahoma
and one in Arkansas, whereas Alpine only mined one,
Tamaha, and did reclamation work at Rose Hill. Also,
Alpine did not use substantially the same work force.
Respondent's tables discussed in section E,2, supra, show
conclusively that considerably less-than 50 percent of the
employees who worked for Alpine in any workweek at
Tamaha or Rose Hill, from July through November,
ever worked for Garland:
As to the next factor, it is evident that the same jobs
do -not exist under the same working conditions. Em-
ployees were no longer assigned to work at one mine as
a permanent place' of employment. Alpine shifted em-
ployees from Tamaha to Rose Hill to its other mine,
Kinta, as its ' workload required. Welders, oilers, and me-
chanics were moved on a daily basis to any of the three
mines as their specialized- skills were required. Also the
jobs of the truckdrivers who formerly hauled coal from
the mine to the port were eliminated.
The same supervisors were obviously not employed.
Garland had employed three high-level supervisors who
had authority over the employees at all -four of its mines.
Don Lawley was its director of labor relations, Lem Bal-
lard its general- superintendent, and' Don Cooper its
safety director. None of these three supervisors was
hired by Alpine. Under Alpine's system of management
the superintendent of each mine hired and fired and han-
dled virtually all of that mine's'labor relations and safety
problems. One of Alpine's supervisors had been em-
ployed. by Garland, Steve Heim . However, prior to
being hired by Alpine, he had been in retirement from
Garland's Charleston- mine. -
Much of the same machinery and equipment was used,
although four large belly dumps were no longer used but
were replaced by big end dumps . The dump trucks used
to haul coal to the Port were no longer used, as that
work was contracted out. Much the same methods of
production were used and undoubtedly the same product
was produced, coal. -
In weighing all of these factors, it is -evident that the
employing industry did not remain substantially the
same , and-I find and-conclude that Alpine was not a suc-
cessor employer of Garland. Since it was not a successor
'--employer, the proscriptions of Potter's Drug and C. B. J.,
supra, are not applicable to Alpine.44
44 In the event that the Board would find that Alpine was a successor,
I find that Alpine did have an antiunion animus , and did not want to hire
members of the Union I credit Hurley' s testimony that in July_ Hawk
told him that he did not want to hire any union men at Tamaha or Rose
Hill, and that in haec verba, Hawk said, "Horse fuck the union ." On the
day following Hurley's -testimony concerning his conversation with
--Hawk, Hawk returned to the witness stand On being asked if he used
that earthy expression to Hurley , Hawk became flustered , hesitated, and
F The Picketing
On March 10, Garland notified the' Respondent that
the Rose Hill and, Tamaha mines would be permanently
closed on March 12: As far as Vehar knew, and as the
record discloses, these were closed on that date. The
picketing by the Locals at each mine that had preceded
the closing continued in the same fashion, with the same
pickets, and the same signs stating that the UMW was on
strike' against Garland. As Oldham testified, the pickets
at times walked across the road, but they did not carry
picket signs. The large signs carrying the wording about
Garland were either nailed on a fence post or on a stake
in the back of a pickup truck.
The facts about subsequent picketing are not in sub-
stantial dispute, except for one issue, and that is'the date
on which there was a changeover to new and differently
worded picket signs. The testimony as to this issue is re-
viewed below.
Hawk testified without contradiction that in late May
when he went to inspect the Tamaha and Rose Hill
mines , there were 6 to 12 UMW pickets present at the
entrances, with signs that stated that the local unions
were on strike against Garland for unfair labor practices.
Many of the pickets wore baseball style caps with
UMWA imprinted on them.
Following Alpine's purchase of the two mines, Hawk
in the first week of July, at Wilson's instructions, re-
moved state-required signs located at the entrances of
both mines that identified Garland as the owner-of the
property. These Garland signs were replaced with large
signs that gave notice that Alpine was now the owner.
About July 5, the first Alpine employees were placed on
the Tamaha and Rose Hill mine sites. The picketing con-
tinued as before with the same signs being displayed, by
much the same pickets. Many of the pickets continued to
wear baseball style caps with "UMA" imprinted thereon.
It is at this point that the credibility issue arises. Hawk
testified that Alpine commenced the actual mining of
coal at Tamaha about August 20, at which time the pick-
ets were still present at the entrances, and still displayed
the same picket signs as when he had first observed the
picketing. Hawk originally testified that he thought that
a change in the wording on the -picket .signs had oc-
curred in the latter part of September. On cross-examina-
tion he answered that the change took place in the
middle of August. The new picket signs contained the
following message:
HASKELL COUNTY
GROUP FOR JOB
APPLICANTS
INFORMATION PICKET
LINE
On August 26, Alpine filed the charge in this case, and
it was served on August 30, on Donnie Oldham, presi-
dent of Local 1329, and a former employee of Garland.
Oldham testified that he `was instructed shortly thereafter
unconvincingly replied, "No." Hawk knew that Hurley had so testified
on the previous day, as Wilson had informed him of it that same evening.
MINE WORKERS LOCAL 1329 (ALPINE CONSTRUCTION)
by A Randall Vehar, an attorney for the International,
to take the old picket signs down and put up replace-
ment signs-with new wording as dictated by Vehar.45
The new wording was subsequently painted on large ply-
wood boards as set forth above. Oldham was also in-
structed by Vehar that the pickets -were not to wear
UMWA caps, and this order was complied with. The
same persons continued .the picketing in the same manner
as they had when Hawk had first seen them in May,
with the only difference being the change in the wording
on the picket signs.
According to Vehar, he was in the Stigler area on
July 22, and he checked the picket line at Tamaha. Here,
he saw that the picket signs -had been changed to read,
"Haskell County Group Job Applicants Information
Picket Line,"- or something very close to that. While
Vehar was a credible witness as to other matters, I do
not credit his testimony as to this date, but credit Old-
ham's testimony on direct-examination.46 Oldham's basic
recollection as to the date was bottomed on the date on
which the charge was filed against his Union by Alpine,
which was August 26. As this date is crystal clear in the
record, I find that the picket signs were changed in the
last days of August, or the first days of September.
In early October, Alpine was notified by the UMW
that the picketing was to be discontinued, and the picket
signs were, in fact, removed from the entrances to both
mines. The Union, thereafter, continued to man the
picket shacks on a 24-hour, 7-day-a-week basis and from
then on referred to these persons as "security guards."
These security guards continued to be paid $25 a day as
strike benefits by the Respondent from its strike benefit
fund, just as they had. been paid in the prior year-and-a-
half when there were Local 1329 and Haskell County
picket signs on the two jobsites. Oldham lamely referred
to these payments as reporting pay, explaining that "If
you report to a picket line or . . since we've pulled the
picket line, you report to observation posts or gathering
place, or what is really now kind of a Local Union office
that the guys gather at and check in." As Roy Tackett,
president of District 21, testified, other than the removal
of picket signs, the only change between the time that
the pickets were stationed at the shacks and the time
when they became security, guards was that the number
of people present was reduced from four to two. The se-
curity guards were still reporting to the shacks and re-
ceiving strike benefit pay as of the time of the hearing.
The record is clear that the UMW never filed a peti-
tion for an election under Section 9(c) of the Act, nor
has the Union ever been certified as the collective-bar-
gaining representative of the employees of Alpine. I con-
clude and find that the UMW picketed for more than 30
days with the signs proclaiming that the UMW was on
strike against Garland, and that it also picketed for more
45 In response to leading questions by the UMW attorney, Oldham re-
plied that he thought that the signs were changed in the last part of July.
I do not credit this version
45 As Judge Leonard Hand stated , "It is no reason for refusing to
accept everything that a witness says, because you do not believe all of
it- nothing is more common in all kinds of judicial discussions than to be-
lieve . some and not all." NLRB Y. Universal Camera Corp., 179 F.2d 749,
754 (2d Cir. 1950)
431
than 30 days with the Haskell County information picket
line signs . I also find that the Haskell County signs were
a subterfuge to conceal the fact that the UMW was con-
tinuing its picketing of the Tamaha and Rose Hill mines.
Respondent contends in its brief that the activities en-
gaged in by its members at the entrances to the Tamaha
and Rose Hill mines constituted pure speech. While it is
true that these miners did not carry picket signs, nor did
they patrol with signs, the law is well established that
they were engaged in picketing within the, meaning of
the Act. In -Laborers Local 304 (Athejen Corp)., 260
NLRB 1311 (1982), the Board found that the placing of
this union's signs on safety cones, on barricades, and on a
jobsite fence constituted picketing within the meaning of
the Act. This case cited in support, Teamsters Local 182
(Woodward Motors), 135 NLRB 851 (1962), enfd. 314
F.2d 53 (2d Cir. 1963), which held that the placing of
signs in a snowbank,.while the employees watched from
their cars, was, in fact, picketing. While the placing of
Respondent's banners on the fence -post and stake was to
some extent speech, it was much more. It was, in fact,
picketing. U.S. v. Pasco, 678 F.2d (1st Cir. -1982).
1. The dealings between the parties
On the evening of June 29, Vehar telephoned Hawk at
his motel, believing him to be Alpine's personnel manag-
er. Vehar told Hawk that he had heard that Alpine had
purchased the Rose Hill and Tamaha mines , and that he
had a group of men who had been out of work for a
long time, who were very skilled. He further told Hawk
that he was interested in talking to Hawk about getting
these men hired, and wanted to know what Alpine's em-
ployment procedure was going to be. Hawk informed
him that Alpine was going to hire the best people that
they could locally, and the Company was taking applica-
tions for employment. He further told Vehar that Alpine
did not hire through third parties, and that anyone who
wanted to work could put in his application to be hired.
Vehar then asked if he could meet with Hawk on the
following day, and Hawk replied that-.he would be very
busy, but if Vehar could catch him, he would meet with
him. They did not meet the next day. Applications for
employment were received at the Stigler office after July
1, for all three Alpine mines, and records of all employ-
ees were kept at this office. However, the actual power
to hire was held by the superindent of each mine.
In the second week of July, Wilson and his Haskell
County attorney, Edmondson, met with John B. Cris-
well. Criswell, a resident of Stigler, was a well-respected
person in the area, and was a friend of both Edmondson
and local UMW people. Wilson sought his help, as he
put it, to bring peace to Hasekell County.47 Edmondson
asked Criswell to open up a line of communication with
the UMW, and let him know what the UMW wanted,
and he would then check with Wilson to see if Alpine
was willing to meet those demands. Edmondson advised
Creswell that his principal concern was that his client
47 Wilson complained that acts of sabotage were occurring at the
mines, testifying that he had seen on four different occasions a total of 48
power line poles cut in half No proof was elicited as to the party respon-
sible for this damage.
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was losing about $100,000 a week due to destruction.
Criswell agreed to Edmondson's request, with the under-
standing that he was not a spokesman for either side, but
was acting as a-good neighboor.
On July 19, Vehar received a telephone call in Wash-
ington from Criswell, in which Criswell informed him
that Alpine was interested in bringing peace to Haskell
County and wanted "to talk turkey," and work. out a
whole deal. Vehar replied that the UMW was also inter-
ested in bringing peace Criswell stated that one of the
reasons Alpine wanted to talk to the Union was because
the Company wanted the picket line taken down. As -
Vehar testified, Criswell was a mediator, 'not a represent-
ative of Alpine or the UMW.
On Friday morning, July 23, Criswell met with Ed-
mondson at the attorney's house in Muskogee, with each
having a number of handwritten notes. They discussed
various matters that the UMW wanted from Alpine, and
vice versa. At times-Criswell 'would use the telephone to
talk over points with UMW people, at their motel ' in
town. So -also would Edmondson talk to Wilson. The
parties recessed at noon for 2 hours. In this interim, Cris-
well returned to the motel, and asked Vehar to write up
some statements of 'the Union's position and, on a yellow
legal pad, Vehar proceeded-to draft three or four hand-
written pages.
Criswell returned. to Edmondson for futher• delibera-
tion, and in the • afternoon each typed some memos for
the other for their use. The conference concluded in the
evening with an agreement for each to contact his party,
and then get back together again . Edmondson did ask
Criswell to get him a list of UMW people who would be
interested in going to work for Alpine, and a list of their
skills. Creswell returned to the motel in Muskogee in the
evening after his meeting with Edmondson. Present at
the motel with Vehar were Oldham, District 21 presi-
dent Tacket, Herbert Own, vice president of Local 1329,
and Richard L. Trumka, an International executive
board member from Washington. As Oldham testified,
"The District and the International and the Locals, the
best I can remember, you know, was trying to see if we
couldn't work out, some kind of talks with Mr. Wilson
and Mr Edmondson and 'all the people at Alpine to try
to see if we could-get our people back to work." He also
stated that "The three organizations together were work-
ing toward that goal." -
Criswell turned over four typed documents to Vehar
(C. P. Exhs. 10, - 11, 12, and -13). The last three of these
documents were the typed versions of the documents
handwritten by Vehar on the yellow pad, and had been
typed that afternoon by Edmondson's secretary. Of par-
ticular significance to this case is Charging Party's Ex-
hibit 11, which reads as follows:
'MEMORANDUM OF UNDERSTANDING
This agreement is made this day pf July,
1982, by and between the United Mine Workers of
America (hereinafter referred - to as the Union or
UMWA) and the Alpine Construction Co (herein-
after referred to-as Alpine). Now, therefore, in con-
sideration for the mutual promises and obligations
of the parties hereto the UMWA and Alpine agree
as follows:
1. Alpine agrees to fill all employment needs at
its Alpine [sic] No. 5 mine (which includes the port
facilities located on Robert S. Kerr Lake) exclusive-
ly from the list attached hereto as Exhibit A until
said list is exhausted. The most senior employees on
the list posessing [sic] the skills needed at the time
shall be used first, then the next most senior and so
on until the list is exhausted: -
2. Alpine agrees to fill all employment needs at
its Alpine No. 6 Mine (Rose Hill) exclusively from
the list attached hereto as exhibit B until said listed
is• exhausted. The most senior employees on the list
possessing the skills needed at the time shall be
hired first, then. the next most senior and so on until
the list is exhausted.
3. Alpine agrees that both employment lists shall
be exhausted before any other employee is hired at
either the No. 5 or No. 6 mine.
4. The parties agree to waive their rights to an-
NLRB election and agree to determine representa-
tion status by means of a card check at the earliest
time deemed appropriate by the union.48
As Vehar admitted, paragraphs 1, 2, and 3 had been
the Union's first proposals to Alpine. Paragraph 4 _had
also been in its first proposal to Edmondson, but Vehar
had crossed out the words "waive their right to an
NLRB election and agree to" after Criswell had in-
formed him of Alpine's objection to that provision. Cris-
well returned again to Edmondson's house, in what
Vehar referred to as "shuttle diplomacy,". with' the
marked up Charging Party Exhibit 11, and then returned
to the motel one more time that evening: As Vehar ad-
mitted, at the end of the day, Charging Party's Exhibits
11, 12, and 13 represented the Union's proposal to
Alpine. When asked what kind of agreement the Re-
spondent was trying to get from Alpine, Vehar respond-
ed:
- A. We were willing to take down the picket lines
if they were willing to hire our people, period. And
we told Mr. Criswell that the picket lines would
come down on Monday the 26th if they-I think
they were only going to take on 14 people at that
.particular point and time.
And we said, "We'd take down our picket lines
and our people would be ready to go to work on
that following Monday," and we would have
agreed to that.
On the following day, Saturday, July 24, Criswell and
Edmondson discussed various problems over the . tele-
phone, with Edmondson informing the mediator' that
Alpine was not satisfied with the royalty,49 checkoff,
se The words "waive their rights to an NLRB election and agree to"
had a line drawn through them, and the ]me was connected to a hand-
written notation by Vehar which read "See if he'll agree to this and just
a reference to LRX-67-71 Maybe if he will, we don 't need to pomt him
to certain cases." - -
49 The language pertaining to the royalty problem was contamed in
C.P. Exh. 13.
MINE WORKERS LOCAL- 1329 (ALPINE CONSTRUCTION)
and preferential hiring provisions in the memorandum of
understanding (C.P Exh. 11). Criswell promised that he
would send a list of skills as requested the previous day.
Criswell met later that day with the union officials in his
trailer. At Vehar's instructions Oldham proceeded to
prepare a 'list of skills possessed by the UMW miners,
who had formerly worked at Tamaha, as he had, as well
as a list of the number of miners who could perform
these. various skills. No names were set forth in these
lists, but Vehar admitted that the 39 lines of skills set
forth in Exhibit A represented the 39 UMW miners who
had worked at Tamaha prior to the strike. A UMW
member who had worked at Rose Hill prepared the same
type lists for that mine. Vehar also admitted that the 23
lines of skills in this list, Exhibit B, represented 23 UMW
miners who had worked at Rose Hill prior to the strike.
Oldham, `later that day, had these lists typewritten by a
friend, as the UMW officials had no typewriter at 'the
motel. (G.C. Exh. 5.) Criswell then presented to Vehar a
three-page letter that he had typed, addressed to Ed-
mondson. (C.P. Exh. 14.) This letter summed up what
Criswell believed-to be-the positions of both parties at
that time, and in it he announced that he was withdraw-
ing from participation. -
On Saturday evening, Oldham and Tackett were given
an envelope by Vehaf to take to Edmondson. They ar-
rived at the attorney's house about 10 p.m., and Oldham
handed the envelope to the attorney and left.so
On the following morning, after driving Vehar and
Trumka to the Tulsa airport, Oldham stopped at Ed-
mondson's house and delivered to him the list of skills,
which inadvertently had been left out of the envelope
delivered on the previous evening. This time Oldham, ac-
cepted Edmondson's invitation to come in, and they
talked for some time. Oldham told Edmondson that the
UMW miners had worked at Tamaha and Rose Hill for a
long time and they were close to having worked suffi-
cient years to become qualified for pensions, but had sev-
eral more years to work before actual qualification.
Oldham further testified that all of the former miners
wanted to go back as a group, and admitted that they
had decided that there would be no-individual applica-
tion for a job, and that they would only go back-as a
group.
Edmondson corroborated Oldham's testimony as to
the visits by the union officials to-his house on Saturday
evening and Sunday morning. He had examined the doc-
uments Oldham had presented and discussed them gener-
ally with the Local 1329 president on Sunday morning.
In this conversation he asked Oldham, "Why don't you
folks apply for a job at Alpine?" Oldham replied that
some of the members had not worked at the mines long
enough to have vested pension rights and he was one of
them, and that he further stated, "There's some of us
that just can't, under those conditions, apply for a job
down there until we have assurance that we're going to
be working under a contract." When Edmondson made a
plea, that the Union go ahead and take their chances in
so Subsequent testimony established conclusively that CP Exhs 11,
12, 13, and 14 were delivered in that envelope with'the exception of
Exhs A and B referred to in C P Exh 11, lists of skills
433
an election, Oldham told him "that that's not going to
happen"
2. Conclusion
The sole issue is whether the picketing as previously
described had a recognitional object proscribed in Sec-
tion 8(b)(7)(C) of the Act. This section makes it unlawful
for a labor organization, inter alia, to picket an employer
with an object of requiring the employer to recognize or
bargain with the labor organization, where the picketing
has been conducted without a petition under Section 9(c)
being filed within a reasonable period of time not ex-
ceeding 30 days.
The General Counsel contends that an object of the
picketing was to force and require Alpine to hire all of
the former employees of Garland, and to force and' re-
quire Alpine to recognize and bargain with the Respond-
ent as such representative.
The Respondent denies that it had such an object. Its
contention is that it was merely picketing to obtain pref-
erential hiring rights for some miners. It further argues
that since there were no demands made for recognition,
and no effects caused by the picketing, there was no re-
cognitional object to the picketing.
-I find that Respondent's picketing from July 5 to Oc-
tober had a recognitional object. From the first time the
UMW ever communicated with Alpine it took the ada-
mant position that Alpine was either a -purchaser or a
successor employer to Garland and as such Alpine had a
bargaining obligation to the UMW. Respondent stated
this position in both of its telegrams of June 4 and 21,._
and never thereafter communicated any change in this
position to Alpine. Then, on June 29, when Vehar first
talked to Hawk, the International attorney informed
Hawk that he had a "group" of men that he was interest-
ed in getting Alpine to hire. The circumstances show
that when Vehar said "group," he meant the former bar-
gaining unit employees at Tamaha and Rose Hill, who
were on strike against Garland. When Vehar was asked
to explain what type agreement the Union was trying to
get with Alpine, he responded, "[W]e were willing to
take down the picket lines if they were willing to hire
our people, period." His term "our people" again shows
that he was nol referring to individual miscellaneous em-
ployees, but was referring to the former. units of Tamaha
and Rose Hill employees of Garland, that had been rep-
resented by the UMW in collective bargaining, and were
still represented by the UMW.
The contents of the five-paragraph proposed agree-
ment submitted by the Respondent to Alpine on the
evening of July -24 required Alpine 'to hire all 39 of the
striking employees at Tamaha before any other employ-
ees could be hired, as well as 23 of the Garland strikers
who had formerly worked at Rose Hill. 'According to
Oldham, Alpine only had a "few" people working at
Tamaha at that time, and Rose Hill had -none.5 i This
meant of course that the UMW' members who would
have been hired pursuant to the proposed agreement
would constitute a' large majority of the employees at
51 Vehar had estimated a total of eight employees '
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
each mine. Certainly these extremely loyal members who
had remained out on strike at those mines for 17 months,
on finding themselves a majority, would demand the rec-
ognition of their union
It is well established that picketing which has its
object the requirement that an employer hire union mem-
bers exclusively has a recognitional object. Laborers
Local 1297 (Austin Construction), 141 NLRB 283 (1963).
The Board also has found it to be a violation of Section
8(b)(7)(C) where a union pickets to obtain the immediate
reemployment of all striking employees, as "the effect of
the picketing if successful would be the reestablishment
of Respondent's earlier majority status and would require
[the employer] to recognize and bargain with Respond-
ent." Hotel & Restaurant Employees Local 737 (Jets Serv-
ices), 231 NLRB 1049, 1053 (1977); Gazette Printing Co.,
175 NLRB 1103 (1969).
Paragraph number 4 of the UMW's proposed agree-
ment provided, even after a conciliatory -deletion by
Vehar, that representation would be determined by a
card check "at the earliest time deemed appropriate by
the union." There can be. no doubt that these faithful
union members would have signed.cards authorizing the
UMW to represent them. Another document drafted by
the International, attorney and presented to Edmondson
further buttresses the fact that Respondent's overall end
was to secure recognition. This document (C.P. 13) pro-
vided that •after a successful card check, Alpine agrees to
execute the National Bituminous Coal Wage. Agreement,
with one modification. Clearly the UMW does not sign
its national agreement with companies which do not rec-
ognize the Union as the employees, collective-bargaining
representative.
When the pickets changed the wording on the picket
signs at the instruction of the International attorney, the
new wording, without any change in the surrounding
circumstances, also indicated that there was no real
change in the object of the picketing. This sign again
used the word "group" to identify the former employees
of Garland who would only return to work when their
Union was recognized by Alpine. These employees had
spurned filling in applications ever since Hawk first pro-
posed this procedure to Vehar on June 29. Oldham had
again rejected any idea of his members making applica-
tions for jobs on July 25, when he was asked to do so by
Edmondson Also, as far as the Local president knew,
none of the UMW members had ever filled out an appli-
cation. As the Local 1329 president testified, the mem-
bers did not want to take a chance on losing their pen-
sions , and they would not apply for a job with Alpine
"until we have- assurance that we're going to be working
under contract." Of course, the only- way that these
former Garland employees could be working under a
contract was for Alpine to have hired the former Gar-
land employees, and to have recognized the Respondent
as the collective-bargaining representative of these em-
ployees.
I find that the evidence taken in its total context plain-
ly disclosed that Respondent's picketing was to compel
Alpine to recognize it as the collective-bargaining repre-
sentative of its employees. Accordingly, I find on the
basis of the record as a whole that the Respondent en-
gaged in picketing which commenced on July 5, 1982,
and as it continued for more than ' 30 days without the
filing of a representation petition , Respondent engaged in
picketing which was in violation of Section 8(b)(7)(C) of
the Act.
CONCLUSIONS OF LAW
1. Alpine Construction Corp. is and at all times materi-
al -has been an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Tamaha Local Union No. 1329, United Mine Work-
ers of.America, District 21_ United Mine Workers of
America and United Mine Workers of America are labor
organizations within the meaning of Section 2(5) of the
Act.
3. By picketing at the Tamaha and Rose Hill mines in
Haskell County, Oklahoma, from July 5 to October 1982,
without having filed a petition under Section 9(c) of the
Act, with an object of forcing or requiring Alpine to
recognize and bargain with the Respondent as the collec-
tive-bargaiing representative of the employees of Alpine,
the Respondent has engaged in unfair labor practices
within the meaning of Section 8(b)(7)(C) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
REMEDY -
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary' to order it
to cease and desist and to take certain affirmative action
designed to effectuate the'policies of the Act.'
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed52
ORDER
The Respondents, Tamaha Local No. 1329, United
Mine Workers of America, District 21, United Mine
Workers of America; and United Mine Workers of
America, their officers , agents, and representatives, shall
1. Cease and desist from picketing, or causing to be
picketed, or threatening to picket the Tamaha or Rose
Hill mines of Alpine Construction Corp., with an object
of forcing or requiring Alpine to recognize Respondents
as the collective-bargaining representative of Alpine's
employees, at a time when Respondents are not certified
as such representative, and where such picketing has
been conducted without a petition under Section 9(c)
being filed within a reasonable period of time not to
exceed 30 days from the commencement of such picket-
ing. '
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
52 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
MINE WORKERS LOCAL 1329 (ALPINE CONSTRUCTION)
(a) Post at each of its offices and meeting halls in east
ern Oklahoma copies of the attached notice marked Ap
pendix 63 Copies of the notice on forms provided by
the Regional Director for Region 16 after being signed
by the Respondents authorized representative shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to members are cus
tomanly posted Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered de
faced or covered by any other material
(b) Mail forthwith to the aforesaid Regional Director
for Region 16 signed copies of the notice for posting by
Alpine Construction Corp, if it is willing in places
where notices to its employees are customarily posted
(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
a' 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 Na
tional Labor Relations Board shall read Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
all Labor Relations Board
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
435
WE WILL NOT picket or cause to be picketed or
threaten to picket the Alpine Construction Corp
mores at Tamaha or Rose Hill Haskell County
Oklahoma where an object thereof is to force or
require Alpine Construction Corp to recognize and
bargain with us as the representatives of employees
employed by Alpine Construction Corp at a time
when we are not certified as such representative
and where such picketing has been conducted with
out a petition under Section 9(c) being filed within
a reasonable period of time not to exceed 30 days
from the commencement of the said picketing
TAMAHA LOCAL No 1329 UMWA
DISTRICT 21 UMWA
UNITED MINE WORKERS OF AMERICA