United Mine Workers, Local 1829

National Labor Relations Board - Board Decisions

Mar 31, 1975

217 N.L.R.B. 222 (N.L.R.B. 1975)

222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Mine Workers of America , Local 1829 , District
31 and Virginia Electric and Power Company and
International Brotherhood of Electrical Workers,
Local 2308 , AFL-CIO. Case 5-CD-211
March 31, 1975
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, JENKINS, AND PENELLO
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following
charges filed by Virginia Electric and Power Company
(hereinafter called VEPCO or Employer) alleging that
United Mine Wrokers of America, Local 1829, District
31 (hereinafter called UMW), violated Section
8(b)(4)(D) of the Act by engaging in certain proscribed
conduct with an object of forcing or requiring VEPCO
to assign certain work to employees represented by
UMW rather than to employees represented by Inter-
national Brotherhood of Electrical Workers, Local
2308, AFL-CIO (hereinafter called IBEW).
Pursuant to notice, a hearing was held before Hear-
ing Officer Angela S. Anderson on September 10 and
11, 1974. VEPCO and UMW appeared at the
hearing' and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to
adduce evidence bearing on the issues. Thereafter, the
case was transferred to the Board, and VEPCO and
UMW filed briefs which have been duly considered.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeeding to a three-member panel.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. The rulings are hereby affirmed.
Upon the entire record in this case, the Board makes
the following findings:
I THE BUSINESS OF THE EMPLOYER
The Charging Party, VEPCO, is a Virginia corpora-
tion having its principal offices in Richmond, Virginia.
It is engaged as an electric utility in the business of
generating and distributing electric power within a
service area which covers parts of three States, Vir-
ginia, West Virginia, and North Carolina. In the opera-
tion of its business, VEPCO annually realizes gross
revenues in excess of $1 million, and causes materials
valued in excess of $50,000 to be shipped to it from
outside the State of West Virginia.
i Although it was duly served with a copy of the notice of hearing, IBEW
did not enter an appearance or otherwise participate in the hearing
Laurel Run Mining Company (hereinafter called
Laurel), also a Virginia corporation, is a wholly owned
subsidiary of VEPCO engaged in the operation of a coal
mine at Mt. Storm, West Virginia. Laurel annually
purchases and receives at its Mt. Storm location goods
valued in excess of $50,000 from suppliers located out-
side the State of West Virginia. The parties stipulated,
and we find, that VEPCO and Laurel are engaged in
interstate commerce within the meaning of Section 2(6)
and (7) of the Act. We further find that it will effectuate
the policies of the Act to assert jurisdiction herein.
II THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that UMW and
IBEW are labor organizations within the meaning of
the Act.
-III THE DISPUTE
A. The Work in Dispute
As stipulated by the parties and described in the
notice of hearing, the work in dispute consists of "the
operation of the 7000 ft. overland conveyor belt be-
tween the Laurel Run Mining Company and Virginia
Electric and Power Company plant at Mt. Storm, West
Virginia."
B. Background and Facts
One of VEPCO's electric generating facilities is a
coal-burning, steam-powered plant located at Mt.
Storm in Grant County, West Virginia, in the vicinity
of the Laurel mine. The coal used at this facility is
purchased by VEPCO from Laurel, as well as from
other sources. Until August 1974, all of the coal was
delivered to the Mt. Storm generating plant either by
rail or truck. Since August 1974, when the newly con-
structed covered overland conveyor, the operation of
which is here in dispute, was completed, all of the coal
purchased from Laurel has been delivered via the
conveyor? VEPCO's employees have been repre-
sented in a systemwide unit by IBEW since the later's
certification in 1973.3
Laurel, as stated, is engaged in Mt. Storm in the deep
mining of coal. Although it is a wholly owned subsidi-
ary of VEPCO, Laurel is managed by Eastern Coal
Associates, Inc., an independent management corpora-
tion which establishes and administers all of Laurel's
employment policies. Laurel's employees are repre-
2 Laurel is a relatively new mine and in its early stages of development
produced less than 1 percent of VEPCO's coal needs. When the mine is fully
developed and the conveyor fully operational, VEPCO expects to obtain
about 30 to 40 percent of its coal needs from Laurel via the conveyor.
3 Virginia Electric & Power Company, 49 NLRB 1095 (1943)
UNITED MINE WORKERS, LOCAL 1829
sented by Respondent UMW and , on December 24,
1971, Laurel became signatory to UMW's National
Bituminous Coal Wage Agreement of 1971 . Until the
events of August 1974 , Laurel 's entire coal production
was sold to VEPCO and transported to VEPCO's gen-
erating plant by truck owner -operators and their em-
ployees, all of whom were also members of UMW.
These owner-operators were also signatories of UMW's
1971 Coal Wage Agreement.
Sometime in 1971 or 1972, work began on the con-
struction of the covered overland conveyor involved in
the instant dispute. This conveyor runs from a "trans-
fer house" at the Laurel mine to the coal storage silos
at VEPCO's plant , and for its full length of 7,000 feet
traverses land belonging to VEPCO . The conveyor was
constructed , pursuant to contract with Laurel, its
owner , by Robert & Schaefer, a mine facilities con-
struction firm whose employees are represented by
UMW. On December 17 , 1973, before construction
was completed , Laurel -leased the conveyor to VEPCO
at an annual rental of $90,000 . The lease agreement
provided, inter alia, that the conveyor, with com-
pleted , would , be operated and maintained by
VEPCO.4
The overland conveyor is powered by electric motors
which are controlled from a drive house located in
front of the storage silos in the VEPCO coalyard. In
late July or early August 1974, VEPCO assigned the
task of operating the conveyor to its employees who are
represented by IBEW.
On or about June 6, 1974, UMW first learned that
the overland conveyor had been leased to VEPCO. At
the time UMW took the position that the operation and
maintenance of the conveyor was within UMW's juris-
diction and should be assigned to employees repre-
sented by it. In furtherance of its continuing demand
for the work, UMW on or about August 7 threatened
to cause a work stoppage and its members did, in fact,
cease to work at the Laurel mine and began picketing
at Highway 93, approximately 1-1/2 miles from VEP-
CO's power station . The picketing continued until Au-
gust 20, 1974, when it was terminated pursuant to a
temporary restraining order issued , pursuant to Section
10(1) of the Act, by the United States District Court for
the Northern District of West Virginia, in C.A.
74-168-E.
Laurel, as stated, is signatory to UMW 's 1971 Na-'
tional Bituminous Coal Wage Agreement which pro-
vides, in pertinent part, as follows:
Article II-Scope and Coverage
4 The agreement also provided that title to the coal would pass to VEPCO
when placed by Laurel employees on the conveyor at the transfer or junction
house and that the agreement would not become binding until approved by
the appropriate regulatory authorities of the States of Virginia , West Vir-
ginia , and North Carolina
223
Section (d) Application of Contract to Coal Lands
As part of the consideration for this agreement,
the Employers agree that this agreement covers
the operation of all of the coal lands , coal produc-
ing and coal preparation facilities owned or held
under lease by them , or any of them, or by any
subsidiary or affiliate at the date of this agreement,
or acquired during its term which may hereafter
(during the term of this agreement) be put into
production or use . The Employers agree that they
will not lease , license or contract out any coal
lands, coal producing or coal preparation facilities
for the prupose of avoiding the application of this
agreement or any section, paragraph or clause
thereof.
* * * * *
Section (f) Work Jurisdiction
The following work shall be performed solely by
members of the United Mine Workers of America
and will be covered by this agreement:
(1) All hauling of coal , overburden, mine refuse
in or about the mine, including hauling to a
screening , crushing, washing or other prepara-
tion facility, or other contiguous mine-related
operation.
VEPCO, on the other hand, has been signatory to
successive collective-bargaining agreements with
IBEW , covering all production and maintenance em- -
ployees on a systemwide basis, since its certification in
1943. The job classifications in VEPCO's current con-
tract with IBEW, however, do not contain any specific
titles applying to the operation of conveyors.'
C. Contentions of the Parties
VEPCO contends that the work in dispute should be
assigned to its own employees who are represented by
IBEW on the basis of its contract with IBEW and the
location of the work at VEPCO's end of the conveyor
as well as on the grounds that VEPCO's employees can
perform the work more efficiently and economically.
Although IBEW did not appear at the hearing and has
not filed a brief, it can be assumed that it agrees with
VEPCO's position inasmuch as it has never disclaimed
the work and its members have continued to perform
it.
5 It should be noted, however, that the employees of both VEPCO and
Laurel traditionally and regularly operate various smaller conveyor belts
within their respective employer 's operations. Thus, VEPCO uses convey-
ors which carry the coal from the storage silos to the furnaces , and Laurel
uses conveyors to remove the coal from the mines and transport it to
cleaning and weighing stations
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
UMW, on the other hand, contends, that the work
in dispute should properly be assigned to employees
represented by it on the basis of article II of its contract
with Laurel. It also claims the work because the con-
veyor belongs to Laurel which had it built with UMW
labor and replaces the coal transportation work for-
merly performed by UMW-represented drivers. UMW
further argues that the work can be performed more
safely and more efficiently by employees represented by
it; and, finally, it contravenes Laurel's contract with
UMW and because, by its very terms, the lease agree-
ment is not binding until approved by the appropriate
regulatory agencies of the three States wherein VEPCO
operates.
D. Applicability of the Statute
Before the Board may proceed to the determination
of a dispute pursuant to Section 10(k) of the Act, it
must be satisfied that (1) there is reasonable cause to
believe that Section 8(b)(4)(D) has been violated, and
(2) the parties do not have an agreed-upon method for
the voluntary resolution of the dispute.
As to (1) above, UMW concedes and the record
establishes that on or about August 7, 1974, it threat-
ened to strike if the work in dispute was not assigned
'to employees represented by it. The record further esta-
blishes that on or about August 7 UMW picketed
Highway 93, approximately 1-1/2 miles from the
VEPCO power station, to prevent coal and oil from
being hauled into VEPCO's Mt. Storm plant and to
prevent residual ash from being removed from the
plant, and that such picketing was in support of its
demand for the disputed work. Also, from August 19,
to August 20, when all of the picketing was temporarily
restrained by court order, the UMW members picketed
the entrance to the Mt. Storm facility itself for the same
reason. Based on the foregoing, we find that reasonable
cause exists to believe that UMW engaged in the afore-
mentioned conduct with an object of forcing or requir-
ing the assignment of the work in dispute to employees
who are represented by UMW rather than to em-
ployees who are represented by IBEW, and that, there-
fore, such conduct violated Section 8(b)(4)(D) of the
Act.b And, since the record shows that the parties do
not have an agreed-upon method for the voluntary ad-
justment of this dispute which is binding upon all of the
parties, we find that the dispute is properly before the
Board for resolution.
6 Respondent 's claim that the lease agreement between Laurel and
VEPCO is invalid, inoperative, or in violation of Respondent's collective-
bargaining agreement with Laurel does not provide a valid defense to an
action under Sec. 8(b)(4)(D) of the Act Cf. International Longshoremen's
and Warehousemen 's Union, Locals 13 and 63, (California Cartage Com-
pany), 208 NLRB 986 (1974).
E. Merits-of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of disputed work after giving due
consideration to various relevant factors. We find the
following factors relevant:
1. Certification and collective-bargaining agreement
IBEW was certified in 1974 as the bargaining agent
of VEPCO's production and maintenance employees in
a systemwide unit. And, although IBEW's contract
with VEPCO does not contain a job description pre-
cisely tailored to the work here in dispute, it appears
that the contract, covering all employees engaged in
production and maintenance functions , is sufficiently
broad to cover the employees performing the work.
UMW, on the other hand, has never been certified to
represent Laurel's employees nor does it represent any
employees of VEPCO. And, although UMW'S con-
tract with Laurel would, of course, cover the work here
in dispute if Laurel had control over such work, the
record shows that Laurel does not, in fact, have the
work to assign. In these circumstances, we conclude
that VEPCO's contract with, IBEW favors awarding
the work to VEPCO's employees represented by
IBEW.
2. Situs of the work
As stated, Laurel leased the conveyor to VEPCO
midway through its construction; the electric motor
and the controls used to operate the conveyor were
thereupon installed at VEPCO's end of the conveyor
and are located in the immediate vicinity of VEPCO's
storage silos into which the conveyor directly empties.
The work in dispute, therefore, is physically located
within VEPCO's facilities and must be performed there
rather than within Laurel's operating area . Moreover,
VEPCO takes legal title when the coal is placed upon
the overland conveyor at the junction house on Laurel's
property. Hence, VEPCO is, in effect, transporting its
own coal from the place of purchase to its storage silos.
UMW would have us find that the lease agreement
is somehow legally ineffective and not binding on the
parties becasue it has not been approved by the appro-
priate public utilities commission of the States of Vir-
ginia, West Virginia, and North Carolina,7 and that
Laurel, therefore, retains control over the work. We are
unable to find, on this record, that the lease agreement
was other than a valid arm's-length business transac-
tion. Moreover, we do not believe that the Board, act-
ing in a proceeding under Section 10(k) of the Act, is
the proper forum in which to challenge the validity of
7 See fn . 4, supra
UNITED MINE WORKERS, LOCAL 1829
the lease even if we thought that UMW had legal stand-
ing to do so. Accordingly, for the purposes of our deter-
mination of dispute, we shall treat the lease as a proper
and lawful business transaction by which Laurel relin-
quished control over the operation of the conveyor to
VEPCO. With this in mind, we find and conclude that
the situs of the work on VEPCO's premises favors
assigning the work to VEPCO's employees who are
represented by IBEW.
3. Company practice
The evidence shows that, until the overland con-
veyor became operational in August 1974, all of Lau-
rel's coal production was sold to VEPCO and delivered
to it by trucks driven by independent owner-operators
who were members of UMW and signatory to UMW
contracts, but that, since then, the conveyor has carried
all the coal furnished VEPCO by Laurel. UMW con-
tends that, although the conveyor has replaced those
drivers, we must nevertheless look to the practice of the
parties prior to its use as a significant factor weighing
in favor of its claim for the disputed work. However,
this contention ignores the fact that in August 1974
Laurel was still a relatively new mine which then pro-
duced only approximately 1 percent of VEPCO's total
coal needs as compared to the 30 or 40 percent that it
will be expected to provided VEPCO when its mining
operation is fully developed; that, further, the use of
independent truckers was intended to last only until the
conveyor was constructed and operational. In these
circumstances, we are unwilling to find that the use of
these truckers established a company practice which
should be accorded significant weight by us in deter-
mining which employees should be awarded the work
of operating the conveyor. To the contrary, VEPCO
had no prior practice with respect to its Mt. Storm_
overland covered conveyor for the simple reason that
no such conveyor existed until the present one was
constructed. Indeed, the only "practice" thus far
shown in the operation of the conveyor is that resulting
from VEPCO's assignment of the work now in question
to its employees represented by IBEW. Accordingly,
VEPCO's "past" practice is a factor which does not
favor the claim of either labor organization or the em-
ployees involved.
4. Skills and safety
UMW contends that employees represented by it are
more skilled in the operation and maintenance of the
overland conveyor and can operate it more safely than
employees represented by IBEW . The record shows
that Laurel employees , represented by UMW, and
VEPCO employees, represented by IBEW, are equally
skilled in operating the overland conveyor. Both
225
groups of employees regularly operate smaller convey-
ors within their respective employer's operations. The
fact that the conveyor was built by a contractor using
UMW-represented labor does not of itself indicate that
Laurel's employees are better equipped to operate the
overland conveyor than VEPCO's workers. On the
matter of safety, UMW adduced evidence that its mem-
bers are uniquely trained to fight fires, the risk of which
is ever present within a totally enclosed conveyor sys-
tem; to rescue employees who might be trapped in such
conveyor; and to administer first aid in cases of emer-
gency. There is no evidence that IBEW-represented
employees have received similar special training. On
the other hand, the record shows that VEPCO has had
only one fire in one of its in-plant conveyors and that
this fire was quickly put out by the local public fire
department. Based on the foregoing, we are not per-
suaded that VEPCO, with the use of the local fire
department, is unable to cope with whatever hazards
might arise. In sum, therefore, we conclude that the
factors of skill and safety favor neither group of em-
ployees.
5. Efficiency and economy of operations
VEPCO has no employees who are represented by
UMW. To award the disputed work to UMW-repre-
sented employees, therefore, would require VEPCO
especially to hire such employees who, when not oper-
ating the conveyor, would remain idle. Alternatively, if
control of the conveyor were returned to Laurel it
would have to be completely rewired at considerable
expense to be operated from that end. On the other
hand, VEPCO presented testimony that it has assigned
two operating helpers, represented by IBEW, to per-
form the disputed work. These employees, however, are
skilled to perform other tasks for VEPCO when not
engaged in operating the conveyor. Furthermore,
VEPCO presented testimony, which was uncontested,
that the placement of the controls near the coal storage
silos enables it to avoid costly "double handling" of
coal by monitoring the conveyor and coal as the silos
fill up. Accordingly, N` find that this factor favors
awarding the work to employees represented by IBEW.
6. VEPCO's preference,
VEPCO assigned the work in dispute, and prefers an
award, to its own employees who are represented by
IBEW. This factor, therefore, favors awarding the
work to employees represented by IBEW.
Conclusions
Upon the entire record in this case , we conclude that
VEPCO's employees who are represented by IBEW are
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entitled to the work in dispute . We reach this conclu-
sion based on VEPCO's contract with IBEW , the loca-
tion of the work on VEPCO's premises , VEPCO's pref-
erence, and the fact that such assignment will result in
greater efficiency and economy of operations . Accord-
ingly , we shall determine the dispute by awarding the
work in dispute to VEPCO's employees represented by
IBEW , but not to any labor organization of which these
employees are members . In consequence, we find that
UMW is not entitled by means proscribed by Section
8(4)(b)(D) of the Act to force or require VEPCO to
assign the disputed work to employees represented by
it.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor Re-
lation Act, as amended , and upon the basis of the
foregoing findings and the entire record in this proceed-
ing, the National Labor Relations Board hereby makes
the following Determination of Dispute:
1. Employees of Virginia Electric and Power Com-
pany, who are represented by International Brother-
hood of Electrical Workers, Local 2308, AFL-CIO,
are entitled to perform the following work : operation of
the 7,000-foot overland conveyor belt between the
facilities of Laurel Run Mining Company and Virginia
Electric and Power Company located at Mt. Storm,
West Virginia.
2. United Mine Workers of America, Local 1829,
District 31 , is not entitled by means proscribed by Sec-
tion 8 (b)(4)(D) of the Act to force or require Virginia
Electric and Power Company to assign the aforemen-
tioned work to employeees who are currently repre-
sented by it.
3. Within 10 days from the date of this Decision and
Determination of Dispute, United Mine Workers of
America , Local 1829 , District 31, shall notify the Re-
gional Director for Region 5, in writing , whether or not
it will refrain from forcing or requiring Virginia Elec-
tric and Power Company, by means proscribed by Sec-
tion 8(b)(4)(D), to assign the work in dispute to em-
ployees represented by it, rather than to those
represented by International Brotherhood of Electrical
Worker, Local 2308, AFL-CIO.