Robinson Creek Coal Co.

National Labor Relations Board - Board Decisions

Aug 14, 1969

178 N.L.R.B. 58 (N.L.R.B. 1969)

58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Amos Newsome and Tivis Newsome d/b/a Robinson
Creek Coal Company and Amos Newsome Coal
Company , Incorporated and United Mine Workers
of America . Case 9-CA-4952
August 14, 1969
hereby orders that the Respondents, Amos
Newsome and Tivis Newsome d/b/a Robinson
Creek Coal Company and Amos Newsome Coal
Company, Incorporated, Pike County, Kentucky,
their officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
recommended Order.
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On May 26, 1969, Trial Examiner Charles W.
Schneider issued his Decision in the above-entitled
proceeding, finding that the Respondents had
engaged in and were engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
they cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondents
filed exceptions to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial error was
committed. The rulings are hereby affirmed.' The
Board has considered the Trial Examiner's Decision,
the exceptions, and the entire record in this case,
and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
recommended Order of the Trial Examiner, and
'For the reasons stated in N.L.R. B. v. Golden Age Beverage Company,
415 F.2d 26 (C.A. 5), we find no merit in the Respondents' exception to
the Trial Examiner 's ruling denying their motion to require the Regional
Director to include in the record the employee affidavits obtained in
connection with the investigation of the Respondents ' objections to the
election . We note, moreover, that when the Regional Director issued his
Supplemental Decision, Order Directing Hearing, and Notice of Hearing
on December 6, 1967, in which , inter alia, he overruled the Employers'
objections after an ex pate investigation , the Respondents failed to seek
review of the Regional Director 's findings on the objections as required by
the Board ' s Rules and Regulations , Series 8, as amended , Sec. 102.67(b).
However, almost 7 months later , on May 29, 1968 , the Respondents
sought review of the Regional Director's Second Supplemental Decision,
Order, and Certification of Representative, issued May 21, 1968, which
sustained the challenges to three ballots . In this request for review the
Respondents, without indicating any grounds therefor, included the
conclusionary statement that the earlier action of the Regional Director
"in overruling the objections to the election [on December 6, 1967] ... is
clearly erroneous." On these facts, it is clear that the Respondents failed to
seek timely review as is required by Sec . 102.69(c) and 102 .67(b) of the
Board ' s Rules and Regulations , Series 8, as amended. Accordingly, the
Regional Director 's ruling with respect to the objections was final and not
subject to further review in any subsequent proceeding . See Rules and
Regulations , Sec. 102.67(f).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Representation Proceeding=
CHARLES W. SCHNEIDER, Trial Examiner: On June 8,
1967, upon petition filed by United Mine Workers of
America, and after hearing, the Regional Director of the
Board directed an election in an appropriate unit,
hereinafter described, of employees of Amos Newsome
and Tivis Newsome d/b/a Robinson Creek Coal
Company and Amos Newsome Coal Company,
Incorporated,' herein called the Respondents. Though the
Respondents had contested the appropriateness of the unit
found by the Regional Director, they did not file a request
for review of the Regional Director's Decision as provided
in Section 102.67 of the Board's Rules (Rules and
Regulations and Statements of Procedure, National Labor
Relations Board , Series 8, as amended).
On July 6, 1967, the election was held under the
direction and supervision of the Regional Director. Of 57
eligible voters 56 voted, 25 voted for the Union, 24 voted
against the Union and 7 ballots were challenged. On July
10, 1967, the Respondents filed timely objections to
conduct affecting the results of the election. Specifically
the objections stated that:
A union adherent, supporting the position of the United
Mine Workers of America, undertook to and did
deprive employees of a free choice in the election
through violence and threats of violence and repeated
harassment.
The Regional Director investigated the objections and
took affidavits of witnesses whose names were supplied by
Respondents. On December 6, 1967, the Regional
Director issued a Supplemental Decision, order directing
hearing , and notice of hearing in which he found that the
two incidents involved, which included, among other
conduct, the firing of a pistol, to be without merit on the
ground that there was no evidence of union agency, that
the incidents involved mere nonviolent disagreement and
not threats, had no affect on individuals present, or was
isolated in nature.
'I have amended the caption and other references herein to reflect what I
deem to be the correct spelling of the name of the Respondents Newsome,
as given in Exhibit F attached to the Motion for Summary Judgment and
in the caption on the Respondents' motion, response, and memorandum
filed in response to the Order To Show Cause on the Motion for Summary
Judgment.
'Administrative or official notice is taken of the record in the
representation proceeding , Case 9-RC-7198, as the term "record" is
defined in Sec. 102.68 and 102.69(f) of the Board ' s Rules (Rules and
Regulations and Statements of Procedure, National Labor Relations
Board , Series 8, as amended ). See LTV Electrosystems, Inc., 166 NLRB
No. 81, enfd . 388 F.2d 683 (C.A. 4); Golden Age Beverage Co., 167
NLRB No. 24; Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va.);
/ntertype Co. v. N.L.R.B., 401 F.2d 41 (C.A. 4), cert . denied 393 U.S.
1049; Follett Corp.. et al., 164 NLRB No. 47, enfd. 397 F.2d 91 (C.A. 7);
Sec. 9(d) of the NLRA.
178 NLRB No. 6
AMOS NEWSOME D/B/A ROBINSON CREEK 59
With respect to the challenges, the Regional Director,
in accordance with the Respondents' contentions and over
the Union's objections, sustained the challenges by the
Board agent to four unemployed voters on the ground that
they had no reasonable expectation of reemployment in
the foreseeable future by the Respondents However, as to
three individuals whose votes were challenged by the
Union as being supervisors (Herston Childers, Teddy
Newsom, and Paul Newsom), the Regional Director found
Childers not to be a supervisor, but ordered that a hearing
be held to resolve the status of the Newsoms
On December 22, 1967, the Union filed with the Board
in Washington, D C , exceptions and objections to
Supplemental Decision seeking review of the Regional
Director's findings as to Childers
On January 5, 1968, the Board granted review and
directed that the issue of Childers' status be resolved in
the hearing with the two Newsoms
A hearing was held before a Hearing Officer on
January 10, 1968, and on May 8, 1968, the Hearing
Officer issued and nerved on the parties his report and
recommendations in which he found Childers to be a
managerial employee and the two Newsoms to be
supervisors He therefore recommended that the
challenges to their ballots be sustained and that the Union
be certified
On May 21, 1968, the Regional Director issued his
Second Supplemental Decision, Order and Certification of
Representative in which he adopted the recommendations
of the Hearing Officer and accordingly certified the Union
as the bargaining representative in the appropriate unit
On May 29, 1968, the Respondents filed an Appeal and
Exceptions to the Regional Director's Decision and
Certification asserting as grounds therefore that (1) the
three individuals were not supervisors, (2) that the
Regional Director was in error in overruling the
Respondents' objections to the election, and (3) that the
Regional Director's action in refusing to count the ballots
of the three individuals and in certifying the Union in an
inappropriate unit was erroneous and contrary to law As
has been seen, the Respondents did not file a petition for
review of the Regional Director's findings as to the
appropriate unit at the time of issuance of the Decision
and Direction of Election
On June 17, 1968, the Board denied the Respondents'
Request for Review on the ground that it raised "no
substantial issues warranting review "
The Unfair Labor Practice Proceeding
On November 5, 1968, the Union filed a charge
alleging that the Respondents had refused to bargain with
the Union
On December 17, 1968, the Regional Director issued a
complaint and notice of hearing alleging that the
Respondents had failed and refused to bargain with the
Union On December 30, 1968, the Respondents filed an
Answer to the Complaint denying the commission of
unfair labor practices
On February 6, 1969, the General Counsel issued an
amended complaint alleging that beginning on or about
July 6, 1968, the Union has requested the Respondents to
bargain and that at all times since on or about August 14,
1968, the Respondents' have refused to bargain '
'A comparison of the original and the amended complaint indicates that
they differed in 3 respects (1) the original complaint following the
allegations of the charge described Amos Newsome Coal Company as
On February 14, 1969, the Respondents filed their
answer to the amended complaint The answer to the
amended complaint admits the allegations of that
complaint as to (1) the filing and service of the charge, (2)
jurisdiction, (3) that Amos Newsome and Tivis Newsome
are agents and supervisors of Respondents, and (4) that
the Union was certified by the Board on May 21, 1968
The answer to the amended complaint denies
allegations in the complaint in the effect that (1) Robinson
Creek Coal Company and Newsome Coal Company are
affiliated businesses with common ownership and common
management with such interrelation and integration of
operations and centralized control of labor relations and
personnel policies, affecting all of their employees, that
they thereby constitute a single employer for both
jurisdictional and unit purposes-facts which the Regional
Director had found in the Decision and Direction of
Election (Par 2(b) of the amended complaint), (2) that the
Union is the representative of the employees in the
certified unit (par 5(b) of the amended complaint), (3)
that the Union requested the Respondents to bargain
collectively (par 5(c) of the amended complaint), (4) that
the Respondents refused to recognize, meet or bargain
with the Union (par 6 of the amended complaint), (5)
that the Respondents had thereby engaged in unfair labor
practices (par 7 of the amended complaint)
On April 7, 1969, counsel for the General Counsel filed
a motion for summary judgment in which he moved (1)
that paragraph 1 of the Respondents' answer be stricken
as sham insofar as it denies the allegations of paragraphs
2(b), 5(b), 5(c), 6, and 7, (2) that all allegations of the
amended complaint be deemed true and so found, and (3)
that an appropriate Decision and Remedial Order issue
Attached to the motion for summary judgment as exhibits
are inter alia purported copies of (1) a letter dated July
26, 1968, from C E Beane , President of District 30 of the
United Mine Workers of America, to Amos Newsome,
adverting to the election and certification and stating that
the Union desired to arrange a mutually convenient
meeting for the purposes of attempting to negotiate a
contract (Exh E) The letter further signified the
availability of President Beane at most any time and place
the Respondents desired within the confines of District 30,
(2) a purported response dated August 14, 1968, on the
letterhead of Robinson Creek Coal Co , from Amos
Newsome, President (Exh F) In this letter President
Newsome, acknowledging receipt of Beane's July 26 letter,
stated that the Respondents declined to recognize the
Union as bargaining agent because the Respondents
entertained doubt that the Union represented an
uncoerced majority of employees in an appropriate
bargaining unit
Along with the motion for summary judgment, counsel
for the General Counsel filed a supporting memorandum
in which he prayed for the relief sought in the Motion, on
the ground that all material issues had been previously
resolved, or were admitted or otherwise established
On April 8, 1969, I issued an Order To Show Cause
returnable April 21, 1969, providing inter alia that, if the
Respondents filed a Response to the motion for summary
judgment, they state specifically whether they deny the
Newsom Coal Company (2) The original complaint alleged that the
request to bargain began on May 21 1968 and (3) the original charge
contained an allegation not included in the amended complaint to the
effect that the Respondents had refused to sign a written agreement
containing terms of employment agreed on between the Respondents and
the Charging Party
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authenticity of any of the exhibits attached to the General
Counsel's motion for summary judgment
On April 21, 1969, the Respondents filed (1) a response
to motion for summary judgment (2) a memorandum in
support thereof, and (3) a motion moving the Trial
Examiner to require the Regional Director to produce and
make a part of the record the affidavits of the two
witnesses whom the Respondents presented to the
Regional Director in support of the Respondents'
objections to the election, both of whom, according to the
Regional Director's Supplemental Decision of December
6, 1967, "gave affidavits [presumably to a Board agent]
during the investigation "
In their Response to the motion for summary judgment
the Respondents admitted the correctness of the exhibits
attached to the motion for summary judgment
Respondents attached to their response a copy of each of
the following documents the original complaint and
notice of hearing, the tally of election ballots,
Respondents' objections to election, Respondents' appeal
and exceptions to the Regional Director's Second
Supplemental Decision, Order and Certification of
Representative, dated May 21, 1968, the Board's Order
denying review of the Decision and Order, and a copy of
the transcript of testimony in the hearing to determine the
status of Childers and the two Newsoms '
Ruling on Motion for Summary Judgment
The Respondents resist the motion for summary
judgment on the ground (1) that the certification was
"improper because votes which should have been counted
for and on behalf of the employer were not counted,"5 and
(2) "because of unlawful conduct of people assisting in the
organization of the Union, deprived the employees of their
free choice and destroyed the laboratory conditions under
which Board conducted elections are to be held " The
answer to the amended complaint does not contest the
appropriateness of the unit, as did the answer to the
original complaint
These contentions of the Respondents are essentially
reiterations of contentions presented, considered, and
decided in the representation case The Regional Director
disposed of the question of the eligibility of Childers and
the two Newsoms to vote, and the Board denied review of
this matter With respect to the objections to the election,
the Respondents filed no request with the Board to review
that determination Under Board rules all such action thus
become final '
It is established Board policy, in the absence of newly
discovered or previously unavailable evidence, not to
With respect to the Respondents motion to require the Regional
Director to produce and make a part of the record the affidavits of
witnesses the motion is denied in accordance with the Decision of the
Board in the cases of L TV Electrosystems Inc and Golden Age Beverage
Co cited in fn 2 above supra The other documents attached to the
Respondents response constitute part of the record as defined in the
Board s rules of which administrative or official notice has been taken in
fn 2
'Presumably reference to the votes of Childers and the two Newsoms
'Thus Board rule 102 67(f) provides
The parties may, at any time waive their right to request review
Failure to request review shall preclude such parties from relitigating
in any related subsequent unfair labor practice proceeding any issue
which was or could have been, raised in the representation
proceeding Denial of a request for review shall constitute an
affirmance of the regional directors action which shall also preclude
relitigating any such issues in any related subsequent unfair labor
practice proceeding
permit litigation before a Trial Examiner in a complaint
case of issues which were or could have been litigated in a
prior related representation proceeding ' This policy is
applicable even though no formal hearing on objections
has been provided by the Board Such a hearing is not a
matter of right unless substantial and material issues are
raised ' and that there are not such issues here has been
effectively decided by the Board
In their response to the motion for summary judgment
and in their accompanying memorandum the
Respondents, while recognizing that the Board will not
ordinarily permit relitigation in an unfair labor practice
proceeding of representation case issues, state the
Respondents are undertaking the only remedy left for
review of the correctness of the findings and conclusions
of the Regional Director Since the Board's dispositions
are binding upon the Trial Examiner the Respondents'
contentions in these regards are referred to the Board
There thus being no unresolved matters requiring an
evidential hearing the motion of the General Counsel for
summary judgment is granted However, the General
Counsel's motion to strike paragraph 1 of Respondent's
answer insofar as it denies the allegations of paragraphs
2(b), 5(b), 5(c), 6, and 7 of the amended complaint as
sham is denied Though found not to be sustained, the
Respondent' answer in those respects raise issues
necessary to be pleaded if the Respondent wishes to
contest the matter before the Board or the Court of
Appeals
Upon the basis of the entire record I therefore make
the following further
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
At all times material herein, Robinson, a partnership
composed of Amos Newsome and Tivis Newsome, is and
has been engaged in the mining of coal near Robinson
Creek, Pike County, Kentucky, and Newsome, which is a
Kentucky corporation, is and has been engaged in the
operation of a tipple facility at the same location
Robinson and Newsome are and at all times material
herein have been affiliated businesses with common
ownership and common management with such
interrelation and integration of operations and centralized
control of labor relations and personnel policies, affecting
all of their employees, that they thereby constitute a single
employer for both jurisdictional and unit purposes'
During the past 12 months, which is a representative
period, Respondents mined, sold, and shipped coal valued
'Krieger Ragsdale & Co Inc 159 NLRB 490 enfd 379 F 2d 517
(C A 7) cert denied 389 U S 1041 N L R B v Macomb Pottery 376
F 2d 450 (C A 7) Howard Johnson Company 164 NLRB No 121
Metropolitan Life Insurance Company 163 NLRB No 71 See Pittsburgh
Plate Glass Co v N L R B 313 U S 146 162 NLRB Rules and
Regulations , Sec 102 67(f) and 102 69(c)
'O K Van and Storage Inc 127 NLRB 1537 enfd 297 F 2d 74 (C A
5) See Air Control Window Products Inc 355 F 2d 245 249 (C A 5)
If there is nothing to hear then a hearing is a senseless and useless
formality See also N L R B v Bata Shoe Co 377 F 2d 821, 826 (C A
4) there is no requirement constitutional or otherwise that there be
a hearing in the absence of substantial and material issues crucial to
determination of whether NLRB election results are to be accepted for
purposes of certification '
'Though Respondents answer to the amended complaint denies these
allegations the Regional Director made these findings of fact in the
Decision and Direction of Election and Respondent did not seek review
thereof The Regional Directors findings in this respect are thus final
AMOS NEWSOME D/B/A ROBINSON CREEK
in excess of $50,000 to various firms in the State of
Kentucky, each of whom, in turn, during the same period,
sold and shipped coal valued in excess of $50,000 directly
to customers outside the State.of Kentucky.
At all times material herein, Respondents are and have
been "employers" as defined in Section 2(2) of the Act,
engaged in "commerce" and in operations "affecting
commerce" as defined in Section 2(6) and (7) of the Act,
respectively.
II. THE LABOR ORGANIZATION INVOLVED
At all times material herein, the Union is and has been
a labor organization as defined in, Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
At all times material herein, Amos Newsome and Tivis
Newsome have been agents of Respondents acting on
Respondents' behalf within the meaning of Section 2(13)
of the Act, and supervisors within the meaning of Section
2(11) of the Act.
The following constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All production and maintenance employees of the
Respondents at their Robinson and Garth and their
Newsome tipple facility, all located near Robinson
Creek, Pike County, Kentucky, excluding office clerical
employees, technical employees, and all guards,
professional employees, and supervisors as defined in
the Act.
On May 21, 1968, as a result of a secret ballot
conducted by the Board, the Union was certified by the
Board as the exclusive representative for the purposes of
collective bargaining for the employees of Respondents in
the appropriate unit.
At all times since May 21, 1968, the Union has been
and is now the exclusive collective-bargaining
representative of all the employees in the appropriate unit
for the purpose of collective bargaining in regard to rates
of pay, wages, hours and other terms and conditions of
employment.
Commencing on or about July 26, 1968, and continuing
to date, the Union has requested Respondents to bargain
collectively as representative of the employees in the
appropriate unit..
At all times since on or about August 14, 1968,
Respondents have refused, and continue to refuse, to
bargaip collectively with the Union as a representative of
the employees in the appropriate unit, by refusing to
recognize, meet or bargain with the Union.
By thus refusing to bargain collectively Respondents
have engaged in and are engaging in unfair labor practices
as defined in Section 8(a)(1) and (5) and 2(6) and (7) of
the Act.
Upon the foregoing findings and conclusions, and
pursuant to Section 10(c) of the Act, I recommend that
the Board issue the following:
ORDER
A. For the purpose of determining the duration of the
certification, the initial year of certification shall be
deemed to begin on the date the Respondents commence
to bargain in good faith with the Union as the recognized
exclusive bargaining representative in the appropriate unit?'
61
B. Amos Newsome and Tivis Newsome d/b/a
Robinson Creek Coal Company and Amos Newsome
Coal Company, Incorporated, their officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with United Mine
Workers of America as the exclusive collective-bargaining
representative of the employees in the following
appropriate bargaining unit:
All production and maintenance employees of the
Respondents at their Robinson and Garth mines and
their Newsome tipple facility, all located near Robinson
Creek, Pike County, Kentucky, excluding office clerical
employees, technical employees, and all guards,
professional employees, and supervisors as defined in
the Act.
(b) Interfering with the efforts of said Union to
negotiate for or represent employees as such exclusive
collective bargaining representative.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request bargain collectively with United Mine
Workers of America as the exclusive representative of the
employees in the appropriate unit with respect to rates of
pay, wages, hours of employment and other terms and
conditions of employment and embody in a signed
agreement any understanding reached.
(b) Post at their mines and facilities copies of the
attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 9, after being duly signed by an authorized
representative of the Respondents, shall be posted by the
Respondents immediately upon receipt thereof, and be
maintained by them for 60 consecutive days thereafter, in
conspicious places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondents to insure that said notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 9, in
writing, within 20 days from the receipt of this
Recommended Order, what steps the Respondents have
taken to comply hdrewith.12
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
WE' WILL NOT refuse to bargain collectively with
United Mine Workers of America, as the exclusive
"The purpose of this provision is to insure that the employees in the
appropriate unit will be accorded the services of their selected bargaining
agent for the period provided by law . See Mar-Jac Poultry Co., 136
NLRB 785; Commerce Co.. d/b/a Lamar Hotel, 140 NLRB 226, 229,
enfd . 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett
Construction Co., 149 NLRB 1419, 1421, enfd . 350 F.2d 57 (C.A. 10).
"In the event that thisRecommended Order is adopted by the Board the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice . In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals, the words "a decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the Regional Director for
Region 9, in writing , within 10 days from the receipt of this Order, what
steps the Respondent has taken to comply herewith."
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective-bargaining representative of all our following
employees:
All production and maintenance employees at our
Robinson and Garth mines and at our Newsome
tipple facility , excluding office clerical employees,
technical employees, and all guards, professional
employees , and supervisors as defined in the Act.
WE WILL NOT interfere with the efforts of theUnion
to negotiate for or represent employees as exclusive
collective-bargaining representative.
WE WILL bargain collectively with the Union. as the
exclusive collective-bargaining representative of the
employees in the above unit and , if an understanding is
reached , we will sign a contract with the Union.
Dated By
AMOS NEWSOME AND TIVIS
NEWSOME D/B/A ROBINSON
CREEK COAL COMPANY
AND AMOS NEWSOME COAL
COMPANY , INCORPORATED
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice may be directed to
the Board ' s Regional Office, Rm. 2407, Federal Office
Building , 550 Main Street , Cincinnati , Ohio 45202,
Telephone 513-684-3686.