Sand Mountain Minerals, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1981

256 N.L.R.B. 985 (N.L.R.B. 1981)

SAND MOUNTAIN MINERALS, INC 985
Sand Mountain Minerals, Inc. and United Mine
Workers of America. Case 10-CA-16600
June 30, 1981
DECISION AND ORDER
Upon an amended charge filed on January 26,
1981, by United Mine Workers of America, herein
called the Union, and duly served on Sand Moun-
tain Minerals, Inc., herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Acting Regional Director for Region
10, issued a complaint on January 29, 1981, against
Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Na-
tional Labor Relations Act, as amended. Copies of
the charge and complaint and notice of hearing
before an administrative law judge were duly
served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on December 9,
1980, following a Board election in Case 10-RC-
12119, the Union was duly certified as the exclu-
sive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;' and that, commencing on or about January
13, 1981, and at all times thereafter, Respondent
has refused, and continues to date to refuse, to bar-
gain collectively with the Union as the exclusive
bargaining representative, although the Union has
requested and is requesting it to do so. On Febru-
ary 13, 1981, Respondent filed its answer to the
complaint admitting in part, and denying in part,
the allegations in the complaint. Respondent admits
receipt of the charge filed by the Union on January
26, 1981, and that it meets the Board's jurisdiction-
al standards. Respondent admits that an election
was held among its production and maintenance
employees in Bryant and Rosalie, Alabama, on
June 26, 1980, but denies that an uncoerced major-
ity of the employees designated the Union as their
exclusive representative. Respondent admits that
the Board certified the Union as representative, but
asserts that the certification issued erroneously be-
cause the Board improperly failed to sustain its ob-
jections to the conduct of the election. Respondent
admits that the Union requested bargaining and
I Official notice is taken of the record in the representation proceed-
ing. Case 10-RC-12119, as the term "record" is defined in Secs. 102h8
and 102.6
9
(g) of the Board's Rules and Regulations, Series 8. as amended
See LTV Electroysletn. Inc. 16i N.RB 938 (1967), enfd .388 F2d 683
(4th Cir 1968); Golden .4Age Rerage (Co.. 167 NLRB 1I (19h7), enfd 415
F 2d 26 (5th Cir 1969) Interrlp C. P,ncllo, 26h4 F Supp 573
(DCVa 1967); ollett (Corp. I64 NRBH 378 (1467),. enld 37 2d 1
(7th Cir 1968); Sec (d) ,f the NI RA. amended
256 NLRB No. 154
that it refused this request, but denies that it there-
by violated Section 8(a)(5) and (1) of the Act.
On April 27, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on May 1,
1981, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
thereafter filed a response to the Notice To Show
Cause.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and its response to
the Notice To Show Cause, Respondent asserts
that the Board erred in certifying the Union as rep-
resentative and by failing to sustain its objections to
the conduct of the election.
Review of the record herein reveals that in Case
10-RC-12119 the Union filed the petition for an
election on May 23, 1980. The Regional Director
approved the parties' Stipulation for Certification
Upon Consent Election on June 24, 1980, and the
election took place on June 26, 1980. The tally of
ballots revealed that, of approximately 82 eligible
voters, 43 cast valid votes for, and 36 cast valid
votes against, the Union. There were four nonde-
terminative challenged ballots. Respondent filed
timely objections to the conduct of the election on
July 3, 1980, alleging that the Union interfered
with the election by statements designed to threat-
en, coerce, intimidate, and mislead employees. Fol-
lowing an investigation the Regional Director or-
dered a hearing on the objections. The Hearing Of-
ficer's report issued on August 28, 1980, wherein
he concluded that the Union was not responsible
for the two instances of threatened physical harm
occurring prior to the election and that union offi-
cials' statements at a meeting 2 days before the
election did not contain material misrepresentations
and, therefore, the objections should be overruled
and the Union certified. Respondent filed excep-
tions to the Hearing Officer's report, contending
that the threats of physical harm created a general
atmosphere of fear and confusion which tainted the
election conditions and that the Union's statements
about possible firings contributed to the coercive
atmosphere and that the election should be set
aside. On December 9, 1980, the Board issued its
Decision overruling Respondent's objections on the
basis that the record failed to establish that the
third-party conduct was sufficiently disruptive of
the election conditions to warrant setting aside the
election and because the Union's statements were
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the type which the employees could reasonably
be expected to evaluate during the course of an
election campaign. The Board certified the Union
as the collective-bargaining representative.
Following the Union's request, on December 19,
1980, that Respondent engage in collective bargain-
ing with the Union, Respondent, on January 13,
1981, and at all times thereafter, refused to bargain
collectively with the Union.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging a violation of Section 8(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding. 2
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence, nor does
it allege that any special circumstances exist herein
which would require the Board to reexamine the
decision made in the representation proceeding. We
therefore find that Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we grant the
Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is an Alabama corporation engaged
in the mining of coal with an office and strip mine
in Pisgah, Alabama, and surface mine pits in
Bryant and Rosalie, Alabama. During the last 12
months, a representative period, Respondent has
purchased and received at its Pisgah, Alabama, fa-
cility supplies valued in excess of $50,000 directly
from suppliers located within the State of Alabama,
who, in turn, purchased said supplies directly from
suppliers outside the State of Alabama.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
United Mine Workers of America is a labor or-
ganization within the meaning of Section 2(5) of
the Act.
2 See Pittsburgh Plate Glass Co. N.L.R.B., 313 U.S 146. 162 (1941)
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c)
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All production and maintenance employees
employed by the Employer at its surface mine
pits at Bryant, Alabama, and at Rosalie, Ala-
bama, in Jackson County, Alabama, but ex-
cluding all office clerical employees, profes-
sional employees, guards and supervisors as
defined in the Act.
2. The certification
On June 26, 1980, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional
Director for Region 10, designated the Union as
their representative for the purpose of collective
bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on December 9, 1980, and the Union continues to
be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about December 19, 1980,
and at all times thereafter, the Union has requested
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about January 13, 1981, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
January 13, 1981, and at all time thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1)
of the Act.
SAND MOUNTAIN MINERALS, INC. 987
IV. THE EFFECT OF THE UNFAIR ABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and,
upon request, bargain collectively with the Union
as the exclusive representative of all employees in
the appropriate unit and, if an understanding is
reached, embody such understanding in a signed
agreement.
In order to insure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate unit. See Mar-Jac Poultry Company, Inc.,
136 NLRB 785 (1962); Commerce Company d/hb/a
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
i. Sand Mountain Minerals, Inc., is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. United Mine Workers of America is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All production and maintenance employees
employed by the Employer at its surface mine pits
at Bryant, Alabama, and at Rosalie, Alabama, in
Jackson County, Alabama, but excluding all office
clerical employees, professional employees, guards
and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act.
4. Since December 9, 1980, the above-named
labor organization has been and now is the certified
and exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a)
of the Act.
5. By refusing on or about January 13, 1981, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclu-
sive bargaining representative of all the employees
of Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Sand Mountain Minerals, Inc., Jackson County, Al-
abama, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with United Mine Work-
ers of America as the exclusive bargaining repre-
sentative of its employees in the following appro-
priate unit:
All production and maintenance employees
employed by the Employer at its surface mine
pits at Bryant, Alabama, and at Rosalie, Ala-
bama, in Jackson County, Alabama, but ex-
cluding all office clerical employees, profes-
sional employees, guards and supervisors as
defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative
of all employees in the aforesaid appropriate unit
with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and, if
988 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
an understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its Bryant, Alabama, and Rosalie, Al-
abama, facilities copies of the attached notice
marked "Appendix." 3 Copies of said notice, on
forms provided by the Regional Director for
Region 10, after being duly signed by Respondent's
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for Region 10,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
: In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with United Mine Workers of America as the
exclusive representative of the employees in
the bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All production and maintenence employees
employed by the Employer at its surface
mine pits at Bryant, Alabama, and at Rosa-
lie, Alabama, in Jackson County, Alabama,
but excluding all office clerical employees,
professional employees, guards and supervi-
sors as defined in the Act.
SAND MOUNTAIN MINERALS, INC.