Zeigler Coal Company

National Labor Relations Board - Board Decisions

Jul 6, 1981

256 N.L.R.B. 1126 (N.L.R.B. 1981)

1126 I)ECISIONS ()OF NATIONAL. ABOR RELAIIONS BO()ARI)
Zeigler Coal Company and United Mine Workers of
America. Case 14-CA- 14695
July 6, 1981
DECISION AND ORDER
Upon a charge filed on February 12, 1981, by
United Mine Workers of America, herein called
the Union, and duly served on Zeigler Coal Com-
pany, herein called Respondent, the General Coun-
sel of the National Labor Relations Board, by the
Regional Director for Region 14, issued a com-
plaint on March 6, 1981, against Respondent, alleg-
ing that Respondent had engaged in and was en-
gaging 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 Rela-
tions Act, as amended. Copies of the charge and
the complaint and notice of hearing before an ad-
ministrative 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
31, 1980, following a Board election in Case 14-
RC-9306, the Union was duly certified as the ex-
clusive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;' and that, commencing on or about January
29, 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 March
18, 1981, Respondent filed its answer to the com-
plaint admitting in part, and denying in part, the al-
legations in the complaint. Respondent denies that
the Union has requested Respondent to bargain and
that Respondent has failed or refused to bargain
with the Union as the exclusive collective-bargain-
ing representative of its employees in the appropri-
ate unit. Respondent also denies that it has commit-
ted any unfair labor practices.
On April 6, 1981, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on April 10, 1981,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent
' Official notice is taken of the record ill the represttllatiltll proceed-
ing, Case 14-RC 9306, as the term "record" is defined in Secs. 12 6
and 102.6
9
1g) of he Board's Rules and Regulations, Series 8, as amended
See LI'V E[ ectrirosterms. Inc., 166 NI.RB 938 (1967), enftd 388 1- 2d 683
(4th Cir 1968); Golden ,.ge Be&vrage ('o., 167 N.RIt 151 (l(967), enlld 415
F.2d 26 (5th Cir 1969): Intertype (Co v t'encllo, 26h1 Supp 573
(D C Va. 1967): Filletn Corp., 164 NIRII 378 (1967). cilfd 397 F 2d )I
(7th Cir. 1968): Sec 9(d) of the Ni R A, as a;niclded
256 NLRB No. 169
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 opposing the General Counsel's motion, Re-
spondent argues that the General Counsel has not
satisfied his burden of establishing, by admissible
evidence, that there is no genuine issue as to any
material fact. Specifically, Respondent contends
that the affidavit of union attorney Thomas
Gumbel and the exhibits incorporated into that affi-
davit, submitted in support of the General Coun-
sel's motion, are not admissible and that the affida-
vit, with exhibits, does not support a legal conclu-
sion that Respondent refused to bargain with the
Union. Respondent does not offer any affidavits or
other evidence to raise any issues of fact, but con-
tends only that the General Counsel had failed to
satisfy the burden of proving facts that would sup-
port a summary judgment, considering that any in-
ferences drawn from the underlying facts "must be
viewed in the light most favorable to the party op-
posing the motion."2
In his affidavit, Gumbel states, inter alia, that he
sent a mailgram to Respondent on January 29,
1981, in which he requested bargaining, confirming
an earlier verbal request made by Union Repre-
sentative Tony Kujawa. The mailgram is incorpo-
rated into the affidavit. Gumbel further stated in
his affidavit that Kujawa forwarded the following
letter, dated February 2, 1981, to Gumbel:
Mr. Tony Kujawa
International Board Member
District 12
United Mine Workers of America
800 Reisch Building
Springfield, Illinois 62701
Dear Tony:
This will acknowledge receipt of Tom Gum-
bel's letter of January 29, 1981, in which he re-
quested we commence negotiations with re-
spect to the warehousepersons employed at
out Zeigler #11 Mine. We are of the opinion
that these warehouse persons are covered by
Article II1, Section (b) Exemption Clause, of
our agreement with your union and that you
have agreed not to seek to organize or ask rec-
ognition for such exempt employees during the
life of said agreement.
Since our agreement with your union is not
subject to termination prior to March 28, 1981,
I S X I hold, l rpoeatcd, l t,9 tI S 654, (1962)
Zil(GIFR CAl C)MP'ANY 1127
we suggest that the matter be reviewed after
that date.
Very truly yours,
William Kuzman, Jr.
Vice President
Industrial and Employee Relations
Gumbel then stated in his affidavit that Respondent
is continting to fail to meet with or bargain with
the Union and that the Union has received no fur-
ther response from Respondent.
Respondent asserts that the February 2, 1981,
letter, purportedly sent by Respondent Vice Presi-
dent Kuzma, has not been properly authenticated
and therefore does not constitute admissible evi-
dence, and that its authenticity can be attested to
only by either the sender or a party competent to
identify the signature of the sender. Respondent
does not assert that the letter is a forgery or that it
had not been sent by Kuzma. Contrary to Re-
spondent, we find that the letter is self-authenticat-
ing as a "reply letter" since Gumbel states in his af-
fidavit that he sent the January 29, 1981, letter
(mailgram) referred to in the February 2, 1981,
letter and incorporates the January 29, 1981, letter
in his affidavit. 3
Respondent also attacks Gumbel's affidavits by
asserting that it is not based on personal knowledge
since Gumbel swore that the statements therein
were "true to the best of memory, information,
knowledge, and belief." In support of its contention
that Gumbel's affidavit does not comply with the
mandatory requirement of Rule 56 of the Federal
Rules of Civil Procedure, Respondent cites A4uto-
matic Radio Manufacturing Co., Inc. v. Hazeltine
Research, Inc., 339 U.S. 827, 831 (1950), and F. S.
Bowen Electric Co., Inc. v. J. D. Hedin Construction
Co., Inc., 316 F.2d 362, 364 (D.C. Cir. 1963). We
find these cases to be distinguishable in that, on the
basis of the entire affidavit, including the exhibits
incorporated therein, it is clear that Gumbel had
personal knowledge of all the key facts asserted,
particularly that he sent the mailgram to Respond-
ent requesting bargaining, and that the Union has
received no further response to his request, other
than the February 2, 1981, letter. We note that the
January 29, 1981, request from Gumbel specified
Gumbel as one of the parties Respondent should
contact with regard to bargaining. Respondent
makes no claim that it responded in any manner to
the request.
On the basis of the foregoing and the entire
record, we find that the Union requested Respond-
ent to bargain on January 29, 1981, that Respond-
3 Purer & Company .4ktiebolageit Addo, 410 F 2d 871, 876 (9th Cir
1969); Wine? v. U'S, 365 F.2d 646. 648 (8th Cir 19h6)
ent's only reply was the February 2, 1981, letter,
and that by such conduct Respondent has, since
February 2, 1981, refused and failed to bargain
with the Union in the appropriate unit. Thus, the
General Counsel has satisfied the burden of prov-
ing by admissible evidence that there is no genuine
issue as to any material fact, even with the evi-
dence viewed in the light most favorable to Re-
spondent.
Furthermore it is well settled that in the absence
of newly discovered or previously unavailable evi-
dence or special circumstances a respondent in a
proceeding alleging a violation of Section 8(a)(5) is
not entitled to relitigate issues which were or could
have been litigated in a prior representation pro-
ceeding. 4
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, and has been at all times material
herein, a corporation duly organized under and ex-
isting by virtue of the laws of the State of Illinois.
At all times material herein, Respondent has main-
tained its principal office and place of business in
Chicago, Illinois, and a mining facility located in
Coulterville, Illinois, herein called the Coulterville
mining facility or Zeigler Mine #11. Respondent
maintains other installations in the State of Illinois.
Respondent is, and has been at all times material
herein, engaged in the mining and nonretail sale of
coal.
During the year ending February 28, 1981,
which period is representative of its operations
during all times material hereto, Respondent, in the
course and conduct of its business operations, pur-
chased and caused to be transported and delivered
at its Coulterville mining facility, goods and mate-
rials valued in excess of $50,000, of which goods
and materials valued in excess of $50,000 were
4 See Piarhurgh Plaw Glas Co . I. RB, 313 I iS 146. 162 (1941).
RuleC nd Regulation,i r' Ih e ,ird. Scs 1(02 67(0) and 102.09(c)
ZIIGIER CoAL COMPANY
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
transported and delivered to its Coulterville mining
facility in Coulterville, Illinois, directly from points
Icoated outside the State of Illinois.
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.
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 warehousepersons employed at the Em-
ployer's Zeigler Mine #11, EXCLUDING
office clerical and professional employees,
storekeeper, guards and supervisors as defined
in the Act, and all other employees.
2. The certification
On December 19, 1980, a majority of the em-
ployees of Respondent in said unit, in a secret-
ballot election conducted under the supervision of
the Regional Director for Region 14, 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 31, 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 January 29, 1981, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about February 2, 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
February 2, 1981, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respond-
ent 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 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/b/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
1. Zeigler Coal Company is an employer en-
gaged in commerce within the meaning of Section
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 warehousepersons employed at the Em-
ployer's Zeigler Mine #11, EXCLUDING office
clerical and professional employees, storekeeper,
---
ZEIGIER COAL COMPANYI 1129
guards and supervisors as defined in the Act, and
all other employees, constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since December 31, 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 February 2, 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)(l) 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,
Zeigler Coal Company, Coulterville, Illinois, its of-
ficers, 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 warehousepersons employed at the Em-
ployer's Zeigler Mine #11, EXCLUDLVG
office clerical and professional employees,
storekeeper, guards and supervisors as defined
in the Act, and all other employees.
(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
an understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its mining facility in Coulterville, Illi-
nois, Zeigler Mine #11, copies of the attached
notice marked "Appendix. " 5 Copies of said notice,
on forms provided by the Regional Director for
Region 14, 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 14,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
I' l Ih' C1t111 thai Iti Order Is lnfirccd h a Judgmenr t Ifi .1 fnillcd
States Curl of ppcas. the ords II the noticC reading ' Icd hb
()rdr f the Nional L.ahbr Relations Ho.ard" shall rad Po,ted Pulrel-
ant t a Jdgm cnt )t the l ted Sltates (ourt ot Appeals ltiircliry in
()rder of th Nalteional I.lthor RltiolS oard
APPENDIX
No-rlcFE To EMPIOF. II(S
POS'IH) BY ORDI)R 01 1H'
NATIONA. LABOR RI!IATIONS BOARD
An Agency of the United States Government
WE wII.l 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 WII. 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 WIt.L, 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 warehousepersons employed at the Em-
ployer's Zeigler Mine #11, EXCLUDI.NG
office clerical and professional employees,
ZEIGIER COAL COMPANY 1 29
1130 DECISIONS ()F NATIONAL. I.AB()R REL.ATI)NS B()ARI)
storekeeper, guards and supervisors, as de-
fined in the Act, and all other employees.
ZEIGIER COAL. COMPANY