ROCKWELL MINING LLC

National Labor Relations Board - Board Decisions

Dec 11, 2018

367 NLRB No. 46 (N.L.R.B. 2018)

367 NLRB No. 46
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Rockwell Mining LLC and United Mineworkers of
America, AFL–CIO, Region 2, District 12. Case
09–CA–216001
December 11, 2018
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
This is a refusal-to-bargain case in which the Re-
spondent is contesting the Union’s certification as bar-
gaining representative in the underlying representation
proceeding. Pursuant to a charge filed on March 5, 2018,
by United Mineworkers of America, AFL–CIO, Region
2, District 12 (the Union), the General Counsel issued the
complaint on June 29, 2018, alleging that Rockwell Min-
ing LLC (the Respondent) has violated Section 8(a)(5)
and (1) of the Act by refusing the Union’s request to rec-
ognize and bargain with it and to furnish relevant infor-
mation following the Union’s certification in Case 09–
RC–202389. (Official notice is taken of the record in the
representation proceeding as defined in the Board’s
Rules and Regulations, Secs. 102.68 and 102.69(d).
Frontier Hotel, 265 NLRB 343 (1982).) The Respondent
filed an answer, admitting in part and denying in part the
allegations in the complaint and asserting affirmative
defenses.
On August 15, 2018, the General Counsel filed a Mo-
tion for Partial Summary Judgment and a memorandum
in support. On August 22, 2018, the Board issued an
order transferring the proceeding to the Board and a No-
tice to Show Cause why the motion should not be grant-
ed. The Respondent did not file a response.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Partial Summary Judgment
The Respondent admits its refusal of the Union’s re-
quests to bargain and to provide information, but contests
the validity of the Union’s certification based on its ob-
jections to the election in the underlying representation
proceeding.
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding.1 The Respondent does not offer to ad-

1 Chairman Ring did not participate in the underlying representation
proceeding. He agrees with his colleagues that the Respondent has not
raised any litigable issue in this unfair labor practice proceeding and
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding. We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair labor practice proceeding. See Pittsburg Plate Glass
Co. v. NLRB, 313 U.S. 146, 162 (1941).
We also find that there are no factual issues warranting
a hearing with respect to many of the items in the Un-
ion’s request for information. The complaint alleges, and
the Respondent admits, that on February 28, 2018, the
Union requested the following information:
1. A roster of all bargaining unit employees on the
payroll from January 1, 2016, to present, including their:
i. addresses
ii. email addresses
iii. phone numbers
iv. job title
v. mine and/or facility designation
vi. daily rate of pay and
vii. date of hire and/or discharge
2. Copies of all health, life and other insurance poli-
cies in effect for all bargaining unit employees.
3. Copies of any and all individual contracts of em-
ployment for any and all bargaining unit employees.
4. Copies of any pension plan, savings plan and/or
401(k) plans in effect for all bargaining unit employees.
5. For calendar year 2016–2017 and to date, provide a
quarterly distribution of coal production, hours and em-
ployment by type of operation:
A. Surface mines
B. Common facilities
6. Distribution of hours should be provided on the fol-
lowing basis:
A. Straight time hours
B. Daily overtime hours
C. Saturday hours
D. Sunday hours
F. Day shift hours
G. Evening shift hours
H. Midnight shift hours

that summary judgment is appropriate, with the parties retaining their
respective rights to litigate relevant issues on appeal.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
7. For calendar year 2016–2017 and to date, provide the
distribution of bargaining unit employees by grade and job
classification.
A. Employees at surface mines
B. Employees at common facilities
8. Provide the job description, including the duties and
minimum qualifications, for each job classification listed
above.
9. For calendar year 2016−2017 and to date, provide a
distribution of employees by age:
A. Surface mines
B. Common facilities
10. For calendar years 2016−2017 and to date, provide a
distribution of employees by years of continuous service
with the current employer.
A. Surface mines
B. Common facilities
11. For calendar year 2016–2017 and to date, provide a
distribution of annual earnings by employees:
A. Surface mines
B. Common facilities
12. For calendar year 2016–2017 and to date, provide a
distribution of employees by sex:
A. Surface mines
B. Common facilities
13. Provide a distribution of employees on lay-off by
years of continuous service with Rockwell-Blackhawk
for the year 2016–2017 and to date:
A. Surface mines
B. Common facilities
14. For calendar year 2016–2017 and to date, provide
the following work force turnover information:
A. Numbers of retiring employees
B. Numbers of voluntary quits
C. Number of involuntary terminations
D. Number of recalls from any panel Rock-
well/Blackhawk operations
E. Number of new hires
i. with experience
ii. without experience
15. For calendar year 2016–2017 and to date, provide
the total cost of unemployment compensation insurance.
16. For calendar year 2016–2017 and to date, provide
the total cost of workers’ compensation insurance.
17. For calendar year 2016–2017 and to date, provide
the total cost of black lung insurance.
18. For calendar year 2016–2017 and to date, provide
the total amount of wages said for newly hired and expe-
rienced miner orientation.
19. For calendar year 2016–2017 and to date, provide
the total amount of wages paid for newly hired and inex-
perienced miner orientation.
20. For calendar year 2016–2017 and to date, provide
the total amount of wages paid for annual re-training.
21. For calendar year 2016–2017 and to date, provide
the number of covered
employees, the number of total covered participants
and the average monthly cost of the following benefits:
A. Hospital benefits
B. Physician services
C. Prescription drugs
D. Vision care services
E. Dental care
F. Life and accidental death and dismemberment in-
surance
22. For calendar year 2016–2017 and to date, provide the
following data regarding sickness and accident benefits:
A. Number of employees receiving S & A benefits
B. Number of employees who exhausted all S & A
benefits
C. Average length of S & A benefits
D. Total cost
E. Average cost per hour worked
23. Provide the monthly cost of employer-provided
health, life and AD & D benefits since January 1, 2017
for working employees and state whether coverage is for:
i. Single employee
ii. Family coverage
24. Provide the projected monthly cost of employer-
provided health, life and AD & D benefits as of January
1, 2017, for working employees and state whether the
coverage is for:
i. Single employee
ii. Family coverage
ROCKWELL MINING LLC 3
25. For calendar year 2016−2017 and to date, provide
the following health care utilization information for bar-
gaining unit employees:
A. Number of primary beneficiaries
B. Number of carved participants, including depend-
ents
C. Number of hospital in-patient visits
D. Number of hospital in-patient days
E. Total hospital in-patient claim dollars paid
F. Number of prescription drugs
G. Total prescription drug claim dollars paid
H. Number of physical visits
i. in hospital
ii. out of hospital
I. Total physician claims dollars paid
i. in hospital
ii. out of hospital
J. Number of out-patient visits
K. Total out-patient claims dollars paid
L. Number of emergency room visits
M. Total emergency room claims dollars paid
N. Number of diagnostic lab tests performed
O. Total lab test claims dollars paid
P. Number of diagnostic x-rays performed
Q. Total x-ray claims cost paid
26. Provide a list of all warranties held by the Employ-
er, identifying each item of equipment held by warranty
and the expiration date of the warranty.
Identify all new mines and facilities opened since Jan-
uary 1, 2017. For each such operation, specify:
A. Type of operation
B. Number of employees performing work of a classi-
fied nature
C. Number of exempt employees
27. Provide a listing of all companies that have operat-
ed mines or other facilities under a lease or license
agreement (including a mining agreement) since January
1, 2017 where the production or work was performed in
part or entirely for the Employer or an affiliate. The list-
ing should include:
A. Name of operating company
B. Name and location of the operation
C. Annual tonnage produced
D. Average number of employees
E. Union affiliation of employees, if any
F. Type of arrangement (e.g., active, temporarily shut
down, sealed and etc.)
28. For calendar year 2016–2017 and to date, provide a
quarterly listing of the number of subcontracting jobs
performed for the Employer where the total value of the
subcontracted work exceeded $5,000.
A. Number of such contracts
B. Total cost of such contracts
C. Type of work performed
i. Transportation
ii. Repair and maintenance
iii. Construction
iv. Reclamation, including revegetation,
fine grading and seeding
D. Reason for such subcontracting
E. Number of hours worked on each such subcontract
29. For all the subcontracted reclamation work listed
above, specify:
A. Nature of reclamation work
B. Duration of contract
C. Number of employees
D. Job classification of employees
30. Provide the number of bargaining unit employees
performing reclamation work on an annual basis for cal-
endar year 2016–2017, and to date.
31. On an annual basis for calendar year 2016–2017,
and to date, provide a record of coal sales by type of
transaction:
A. Long term contracts (greater than five years)
B. Short term contract (less than five years)
C. Sport market
32. On an annual basis for calendar year 2016–2017,
and to date, provide a record of coal sales in the follow-
ing distribution:
A. Domestic sales
1. Electric utilities
2. Steel producers
3. Other industry
B. Canadian export
1. Electric utilities
2. Steel producers
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
3. Other industry
C. Overseas export
1. Electric utilities
2. Steel producers
3. Other industry
33. State the total amount of Coal which was pur-
chased, either directly or indirectly, by the Employer in
calendar year 2016–2017, and to date, the source of the
purchased coal and the means by which the coal was
purchased.
34. Provide the most recent budget or forecast on an
annual basis for the years 2016–2017, and to date, in-
cluding projections of the following categories of infor-
mation:
A. Tons
B. Number of employees
C. Revenue
D. Net income
E. Labor cost per ton
F. Mines schedule to be opened, or operations expand-
ed
G. Mines projected to be conveyed, assigned or trans-
ferred
35. For calendar year 2016–2017 and to date, please
provide a quarterly list of contributions to any pension
plan, savings plan and/or 401(k) account in effect for
bargaining unit employees.
It is well established that information concerning the
terms and conditions of employment of unit employees is
presumptively relevant for purposes of collective bar-
gaining and must be furnished on request. See, e.g.,
Metro Health Foundation, Inc., 338 NLRB 802, 803
(2003). Paragraphs 1–4, 7, 8, 25, 30, and 35 specifically
refer to “bargaining unit employees” and thus clearly
request presumptively relevant information. The Re-
spondent has not asserted any basis for rebutting the pre-
sumptive relevance of that information. Rather, the Re-
spondent raises as an affirmative defense its contention,
rejected above, that the Union was improperly certified.
We find that the Respondent unlawfully refused to fur-
nish the information sought by the Union in paragraphs
1–4, 7, 8, 25, 30, and 35.
Additionally, it is well established that although a un-
ion's information request might not be specifically lim-
ited to bargaining unit employees and therefore could be
construed as requesting information pertaining to nonunit
employees as well as unit employees, this does not justi-
fy an employer's blanket refusal to comply with the un-
ion's request. See Superior Protection Inc., 341 NLRB
267, 269 (2004) (“an employer may not simply refuse to
comply with an ambiguous or overbroad information
request, but must request clarification or comply with the
request to the extent it encompasses necessary and rele-
vant information”), enfd. 401 F.3d 282 (5th Cir. 2005),
cert. denied 546 U.S. 874 (2005); Streicher Mobile Fuel-
ing, 340 NLRB 994, 995 (2003) (failure to limit request
to bargaining unit information did not excuse noncom-
pliance with request as to unit employees), affd. mem.
138 Fed. Appx. 128 (11th Cir. 2005). In such cases, the
Board will construe a request that seeks information that
is otherwise presumptively relevant as pertaining to unit
employees, even though the information requested is not
consistently described in these specific terms. See, e.g.,
Metro Health Foundation, supra at 803 fn. 2 (partial de-
nial of summary judgment on information request did not
excuse failure to provide other, clearly relevant, infor-
mation, which the Board construed to pertain to unit em-
ployees); Freyco Trucking, Inc., 338 NLRB 774, 775 fn.
1 (2003) (request for payroll records and benefit fund
payments construed to pertain to unit employees). Ac-
cordingly, we find that the fact that paragraphs 5, 6, and
9–24 do not specifically refer to “bargaining unit em-
ployees” does not excuse the Respondent’s failure to
furnish the information requested in those paragraphs to
the extent that they could be construed to pertain to unit
employees. To the extent that those paragraphs pertain
to nonunit employees, we deny summary judgment and
remand them to the Regional Director for further appro-
priate action.
Paragraphs 26–29 and 31–34, however, request finan-
cial information, information concerning only nonunit
employees, or other information that is not presumptively
relevant. The pleadings fail to indicate why the Union
needs that information or to otherwise indicate the rele-
vance of that information. Therefore, we deny summary
judgment with respect to paragraphs 26–29 and 31–34,
and remand those issues to the Regional Director for
further appropriate action.
For the reasons stated above, we grant the Motion for
Partial Summary Judgment and order the Respondent to
bargain with the Union and to furnish the Union with the
information that it requested on February 28, 2018, with
the exception of the information requested in paragraphs
5, 6, and 9–24 to the extent that those paragraphs pertain
to nonunit employees and the information requested in
paragraphs 26–29 and 31–34.
On the entire record, the Board makes the following
ROCKWELL MINING LLC 5
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a lim-
ited liability corporation with an office and place of
business in Wharton, West Virginia (the Respondent’s
facility), and has been engaged in the mining of coal.
In conducting its operations during the 12-month peri-
od ending June 1, 2018, the Respondent sold and shipped
from the Respondent’s facility goods valued in excess of
$50,000 directly to points located outside the State of
West Virginia.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the representation election held on August
3, 2017, the Union was certified on February 16, 2018,2
as the exclusive collective-bargaining representative of
the employees in the following appropriate unit:
All full-time and regular part-time production and
maintenance employees, including mobile equipment
operators, mechanics, welders, and oilers employed by
the Employer at the Glancy Surface Mine located in
Wharton, West Virginia; but excluding all other em-
ployees, office clerical employees, professional em-
ployees, guards and supervisors as defined in the Act.
The Union continues to be the exclusive collective-
bargaining representative of the unit employees under
Section 9(a) of the Act.
B. Refusal to Bargain
About February 28, 2018, the Union, by letter, fax, and
email, requested that the Respondent recognize and bar-
gain collectively with it as the exclusive collective-
bargaining representative of the unit. Since about March
1, 2018, the Respondent has failed and refused to do so.
About February 28, 2018, the Union requested that the
Respondent furnish it with the information set forth
above, which, except as described above, is necessary
for, and relevant to, the Union’s performance of its duties
as the exclusive collective-bargaining representative of
the unit. Since March 1, 2018, the Respondent has failed

2 By unpublished order dated June 21, 2018, the Board denied the
Respondent’s request for review.
and refused to furnish the Union with the relevant infor-
mation.3
We find that the Respondent’s conduct described
above constitutes an unlawful failure and refusal to rec-
ognize and bargain with the Union and an unlawful fail-
ure and refusal to furnish requested information to the
Union in violation of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing since March 1, 2018, to recog-
nize and bargain with the Union as the exclusive collec-
tive-bargaining representative of employees in the ap-
propriate unit and to furnish the Union with requested
information, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to bargain on request with the Union, and, if an
understanding is reached, to embody the understanding
in a signed agreement. We shall also order the Respond-
ent to furnish the Union with the information requested
on February 28, 2018, with the exception of the infor-
mation requested in paragraphs 5, 6, and 9–24 to the ex-
tent that those paragraphs pertain to nonunit information
and the information requested in paragraphs 26–29 and
31–34.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by law, we shall construe the initial period of the certifi-
cation as beginning the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); accord Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57
(10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir.), cert. denied 379
U.S. 817 (1964).

3 The complaint alleges that about February 19, 2018, the Union, by
letter and email, initially requested that the Respondent recognize and
bargain with it and furnish it with the information set forth above. The
Respondent’s answer denies those allegations and contends that it did
not receive the Union’s February 19, 2018 requests. However, the
Respondent’s answer admits that it received the Union’s identical Feb-
ruary 28, 2018 requests and that it has failed and refused to bargain
with or furnish the requested information to the Union since March 1,
2018. As a determination regarding the date on which the Respondent
first received the Union’s requests to bargain and to furnish information
does not affect the remedy, we find it appropriate to rely on the Re-
spondent’s uncontested admission that it received the Union’s bargain-
ing and information requests on February 28, 2018, and has refused to
bargain with or furnish the requested information to the Union since
March 1, 2018. Accordingly, the Respondent's denials regarding the
earlier requests do not raise issues of fact warranting a hearing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
ORDER
The National Labor Relations Board orders that the
Respondent, Rockwell Mining LLC, Wharton, West Vir-
ginia, its officers, agents, successor and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
United Mineworkers of America, AFL–CIO, Region 2,
District 12 as the exclusive collective-bargaining repre-
sentative of the employees in the bargaining unit.
(b) Refusing to bargain collectively with the Union by
failing and refusing to furnish it with requested infor-
mation that is relevant and necessary to the Union’s per-
formance of its functions as the collective-bargaining
representative of the Respondent’s unit employees.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit concerning terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:
All full-time and regular part-time production and
maintenance employees, including mobile equipment
operators, mechanics, welders, and oilers employed by
the Employer at the Glancy Surface Mine located in
Wharton, West Virginia; but excluding all other em-
ployees, office clerical employees, professional em-
ployees, guards and supervisors as defined in the Act.
(b) Furnish to the Union in a timely manner the in-
formation requested by the Union on February 28, 2018,
with the exception of the information requested in para-
graphs 5, 6, and 9–24 to the extent that those paragraphs
pertain to nonunit information and the information re-
quested in paragraphs 26–29 and 31–34.
(c) Within 14 days after service by the Region, post at
its Wharton, West Virginia facility copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 09,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,

4 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since March 1, 2018.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 09 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that this case is remanded to
the Regional Director for Region 09 for further appropri-
ate action.
Dated, Washington, D.C. December 11, 2018
______________________________________
John F. Ring, Chairman
Marvin E. Kaplan, Member
_____________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
ROCKWELL MINING LLC 7
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to recognize and bargain
with United Mineworkers of America, AFL–CIO, Re-
gion 2, District 12 as the exclusive collective-bargaining
representative of our employees in the bargaining unit.
WE WILL NOT refuse to bargain collectively with the
Union by failing and refusing to furnish it with requested
information that is relevant and necessary to the Union’s
performance of its functions as the collective-bargaining
representative of our unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union as the
exclusive collective-bargaining representative of our
employees in the following appropriate unit concerning
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement:
All full-time and regular part-time production and
maintenance employees, including mobile equipment
operators, mechanics, welders, and oilers employed by
us at the Glancy Surface Mine located in Wharton,
West Virginia; but excluding all other employees, of-
fice clerical employees, professional employees, guards
and supervisors as defined in the Act.
WE WILL furnish to the Union in a timely manner the
information requested by the Union on February 28,
2018, with the exception of the information requested in
paragraphs 5, 6, and 9–24 to the extent that those para-
graphs pertain to nonunit information and the infor-
mation requested in paragraphs 26–29 and 31–34.
ROCKWELL MINING LLC
The Board’s decision can be found at
https://www.nlrb.gov/case/09-CA-216001 or by using the
QR code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.