St. Patrick Mining Co., Inc.

National Labor Relations Board - Board Decisions

Jan 27, 1977

227 N.L.R.B. 1612 (N.L.R.B. 1977)

1612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
St. Patrick Mining Co., Inc. and United Steelwork-
ers of America, AFL-CIO-CLC. Case 31-CA-
6049
January 27, 1977
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
Upon a charge filed on April 12, 1976, by United
Steelworkers of America, AFL-CIO-CLC, herein
called the Union, and duly served on St. Patrick
Mining Co., Inc., herein called the Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 31, issued
a complaint and notice of hearing on May 27, 1976,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the
National Labor Relations Act, as amended. Copies of
the charge, complaint, and notice of hearing before
an Administrative Law Judge were duly served on the
parties of this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on December 8,
1975, following a Board election in Case 31-RC-
3195, the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; i and that,
commencing on or about December 22, 1975, and at
all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining represen-
tative, although the Union has requested and is
requesting it to do so. Further, the complaint alleges
that Respondent closed its Pioche, Nevada, opera-
tions on or about February 20, 1976, without prior
notification to, or bargaining with, the Union con-
cerning the effects of such closure on the unit
employees. On June 10, 1976, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On July 8, 1976, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on July 23, 1976, the Board
issued an order transferring the proceeding to the
Board and a Notice To Show Cause why the General
Counsel's Motion for Summary Judgment should not
be granted. Respondent thereafter filed a response to
Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
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 admits all
operative averments of the complaint but denies the
jurisdiction of the Board, the majority status of the
Union, and the validity of the Union's certification.
The General Counsel contends that there exists no
factual issue which would require a hearing, that the
matters now disputed by Respondent were deter-
mined in the previous representation proceeding, and
that summary judgment is thus appropriate. We agree
with the General Counsel.
An examination of the entire record, including that
in Case 31-RC-3195, discloses that, in an election
conducted pursuant to a Stipulation for Certification
Upon Consent Election, the Union was selected as
bargaining representative by a vote of 20 to 12 with 1
ballot challenged, Respondent filed timely objections
to conduct affecting the results of the election in
which it contended, in substance, that: (1) The Union
distributed a handout containing material misrepre-
sentations at a time which did not afford Respondent
an opportunity to reply and which employees could
not evaluate because of high turnover since the
previous election; (2) a union official on the eve of the
election made threats and misrepresentations to
employees; and (3) the Union promised to waive
initiation fees for certain employees.
After an investigation, the Regional Director, on
September 30, 1975 , issued a report on objections in
which he recommended that the objections be
overruled in their entirety and that the Union be
certified. Respondent filed timely exceptions to the
Regional Director's Report on Objections together
with a supporting brief, requesting that a new election
be ordered or a hearing held. On December 8, 1975,
the Board, after reviewing the record in light of
Respondent's exceptions and brief, adopted the
findings and recommendations of the Regional
Director and certified the Union.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances a respondent in a proceeding
alleging a violation of Section 8(a)(5) is not entitled to
' Official notice is taken of the record in the representation proceeding , 1968), Golden Age Beverage Co, 167 NLRB 151 (1967), enfd. 415 F.2d 26
Case 31-RC-3195, as the term "record" is defined in Secs 102 68 and (C A 5, 1969); Intertype Co. v. Penello, 269 F Supp 573 (D.C.Va., 1967);
102 69(g) of the Board 's Rules and Regulations , Series 8, as amended . See Follett Corp., 164 NLRB 378 (1967), enfd. 397 F 2d 91 (C A 7, 1968), Sec.
LTV Electrosystemr, Inc, 166 NLRB 938 (1967), enfd 388 F 2d 683 (C.A 4, 9(d) of the NLRA, as amended.
227 NLRB No. 242
ST. PATRICK MINING CO.
relitigate issues which were or could have been
litigated in a prior representation proceeding.2
All issues raised by the Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and the Respondent does
not offer to adduce at a hearing any newly discovered
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 the Respondent has not raised any issue
which is properly litigable in this unfair labor practice
proceeding.
In addition to the usual bargaining order, the
General Counsel seeks as part of the remedy limited
backpay based on Respondent's admitted failure to
notify and bargain with the Union regarding the
effects of the closing of its Pioche, Nevada, opera-
tions on its employees, as provided in Transmarine
Navigation Corporation and its subsidiary, Internation-
al Terminal, Inc.3 We have held that the effect of
termination of operations is a mandatory subject of
collective bargaining4 and we have further held, with
court approval, that an employer must notify its
employees' collective-bargaining representative of a
decision to cease operations so the union can bargain
about the effects of the closing upon the terminated
employees.5
We hold therefore that Respondent was under a
continuing duty to bargain about the effects of the
closing of its operations in Pioche, Nevada, upon its
terminated employees and its refusal to do so violated
Section 8(a)(5) of the Act 6 We shall, accordingly,
grant the General Counsel's Motion for Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
Findings of Fact
I. THE BUSINESS OF THE RESPONDENT
Respondent is a Delaware corporation with an
office and place of business in Pioche, Nevada, where
it engages in mining and milling operations. It
annually sells and ships goods or services valued in
excess of $50,000 directly to customers located
outside the State of Nevada.
We find, on the basis of the foregoing, that
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
2 See Pittsburgh Plate Glass Co, v. NLRB, 313 U S 146, 162 (1941),
Rules and Regulations of the Board, Secs. 102 67(f) and 102 69(c).
3 170 NLRB 389 (1968).
4 New York Mirror, Division of Hearst Corporation, 151 NLRB 834, 838,
fn. 4(1965).
5 Interstate Tool Co, Inc, 177 NLRB 686 (1969), Transmarme Navigation
Corporation, supra
1613
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 Steelworkers of America, AFL-CIO-CLC,
is a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
Included: All full-time and regular part-time
production and maintenance employees employed
by Respondent at its reduction mill located at
Pioche, Nevada.
Excluded: Office clerical employees, warehouse-
men, professional employees, guards and supervi-
sors as defined in the Act.
2. The certification
On June 23, 1975, 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 31, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on December 8, 1975, and the
Union continues to be such exclusive representative
within the meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about December 15, 1975, and
at all times thereafter, the Union has requested the
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 December 22, 1975, and
continuing at all times thereafter to date, the Respon-
6 We reject Respondent's contention that the fact that it was contesting
the validity of the Board's certification at the time of the closing of its
operations distinguishes this case from Transmarine, supra A refusal to
bargain in order to test validity of Board certification in the courts warrants a
finding that Respondent is continuing to refuse to bargain and that further
requests to bargain would be futile and therefore unnecessary , Williams
Energy Company, 218 NLRB 1080 (1975).
1614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent has refused, and continues to refuse, to recog-
nize and bargain with the Union as the exclusive
representative for collective bargaining of all employ-
ees in said unit with respect to, but not limited to,
refusing to meet and bargain with the Union over the
terms of an initial collective-bargaining agreement or
over the effects of the closing of its operations.
Accordingly, we find that the Respondent has,
since on or about December 22, 1975, and at all times
thereafter, refused to bargain collectively with the
Union as the exclusive representative of the employ-
ees in the appropriate unit, and that, by such refusal,
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
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 take
certain affirmative action designed to effectuate the
policies of the Act.
As a result of the Respondent's unlawful failure to
notify and to bargain about the effects of its discon-
tinuance, the terminated employees have been denied
an opportunity to bargain through their collective-
bargaining representative at a time when the Respon-
dent might have been still in need of their services,
and a measure of balanced bargaining power existed.
Meaningful bargaining cannot be assured until some
measure of economic strength is restored to the
Union. A bargaining order alone, therefore, cannot
serve as an adequate remedy for the unfair labor
practices committed.
Accordingly, we deem it necessary, in order to
effectuate the purposes of the Act, to require the
Respondent to bargain with the Union concerning
the effects of the discontinuance of its operations on
its employees, and shall include in our Order a
limited backpay requirement designed both to make
whole the employees for losses suffered as a result of
the violation and to recreate in some practicable
manner a situation in which the parties' bargaining
position is not entirely devoid of economic conse-
quences for the Respondent. We shall do so in this
case by requiring the Respondent to pay backpay to
its employees in a manner similar to that required in
Transmarine, supra. Thus the Respondent shall pay
employees backpay at the rate of their normal wages
when last in Respondent's employ from 5 days after
the date of this Decision and Order until the
occurrence of the earliest of the following conditions:
(1) the date the Respondent bargains to agreement
with the Union on those subjects pertaining to the
effects of the discontinuance; (2) a bona fide impasse
in bargaining; (3) the failure of the Union to request
bargaining within 5 days of this Decision and Order,
or to commence negotiations within 5 days of the
Respondent's notice of its desire to bargain with the
Union; or (4) the subsequent failure of the Union to
bargain in good faith; but in no event shall the sum
paid to any of these employees exceed the amount he
would have earned as wages from on or about
February 20, 1976, when the Respondent terminated
its operations, to the time he secured equivalent
employment elsewhere, or the date on which the
Respondent shall have offered to bargain, whichever
occurs sooner; provided, however, that in no event
shall this sum to be less than these employees would
have earned for a 2-week period at the rate of their
normal wages when last in the Respondent's employ.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. St. Patrick Mining Co., Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. United Steelworkers of America, AFL-CIO-
CLC, is a labor organization within the meaning of
Section 2(5) of the Act.
3. The following employees constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act,
including all full-time and regular part-time produc-
tion and maintenance employees employed by Re-
spondent at its reduction mill located at Pioche,
Nevada; but excluding office clerical employees,
warehousemen, professional employees, guards and
supervisors as defined in the Act.
4. Since December 8, 1975, 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 December 22, 1975,
and at all times thereafter, to bargain collectively with
the above-named labor organization as the exclusive
ST. PATRICK MINING CO. 1615
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By its failure to notify the Union in advance of
the impending closure of its Pioche, Nevada, opera-
tions and by failing and refusing to bargain with the
Union regarding the effects of its closure of its
Pioche, Nevada, operations on Respondent's employ-
ees, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(5) of the Act.
7. By the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing 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
Relations Board hereby orders that the Respondent,
St. Patrick Mining Co., Inc., Pioche , Nevada, its
officers , agents , successors, and assigns , shall:
1. Cease and desist from:
(a) Failing or refusing to bargain with United
Steelworkers of America , AFL-CIO-CLC, or any
other labor organization , representing its employees
in the unit noted below regarding the terms and
conditions of employment.
(b) Failing or refusing to notify the Union in
advance of the impending closure of its Pioche,
Nevada , operations and failing and refusing to
bargain with the Union regarding the effects of the
closure of its Pioche , Nevada, operations on Respon-
dent's employees in the unit noted below:
All full-time and regular part -time production and
maintenance employees employed by Respondent
at its reduction mill located at Pioche, Nevada,
excluding office clerical employees , warehouse-
men, professional employees, guards and supervi-
sors as defined in the Act.
(c) In any like or related manner interfering with,
restraining , or coercing employees in the exercise 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) Pay the discontinued employees their normal
wages for the period set forth in the remedy section of
this Decision and Order.
(b) Upon request, bargain collectively with the
above-named labor organization as the exclusive
representative of all employees in the aforesaid
appropriate unit with respect to the effects on its
employees of its discontinuance of its operations at
Pioche, Nevada, and reduce to writing any agreement
reached as a result of such bargaining.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary or useful in checking compli-
ance with this Order.
(d) Mail a copy of the attached notice marked
"Appendix" 7 to United Steelworkers of America,
AFL-CIO-CLC, and to all the employees who were
employed at its former operations at Pioche, Nevada,
on or about February 20, 1976, when operations were
discontinued. Copies of said notice, on forms provid-
ed by the Regional Director for Region 31, after
being signed by Respondent's authorized representa-
tive, shall be mailed immediately upon receipt
thereof, as hereinabove directed.
(e) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
7 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice regarding "Posted by Order of the
National Labor Relations Board " shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals enforcing an Order to the National
Labor 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, fail or refuse to bargain with
United Steelworkers of America, AFL-CIO-
CLC, or any labor organization, representing its
employees in the unit noted below regarding the
terms and conditions of employment.
WE WILL NOT fail or refuse to notify the Union
in advance of the impending closure of its Pioche,
Nevada, operations and fail or refuse to bargain
with the Union regarding the effects of the closure
of its Pioche, Nevada, operations on Respondent's
employees in the bargaining unit. The unit is:
Included: All full-time and regular part-time
production and maintenance employees employed
1616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Respondent at its reduction mill located at
Pioche, Nevada.
Excluded : Office clerical employees , warehouse-
men, professional employees , guards and supervi-
sors as defined in the Act.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce employees in the
exercise of the rights guaranteed them in Section 7
of the Act.
WE WILL pay the discontinued employees their
normal wages for the period set forth in the
remedy section of this Decision.
WE WILL bargain collectively with the above-
named labor organization as the exclusive repre-
sentative of all employees in the aforesaid appro-
priate unit with respect to the effects on its
employees of its discontinuance of its operations
at Pioche , Nevada, and reduce to writing any
agreement reached as a result of such bargaining.
ST. PATRICK MINING
Co., INC.