Consolidation Coal Co.

National Labor Relations Board - Board Decisions

Jun 30, 1992

307 N.L.R.B. 1055 (N.L.R.B. 1992)

1055
307 NLRB No. 165
CONSOLIDATION COAL CO.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We adopt the judge’s conclusion that the Respondent violated Sec.
8(a)(5) and (1) of the Act by denying the Union access to its prop-
erty for purposes of securing samples of residue. In so doing, we
note that, contrary to the judge, the Respondent has admitted that
coal, among other substances, is contained within the sediment.
However, we further note that the Respondent does not agree with
the Union that the residue which accumulates in the sediment ponds
is ‘‘coal waste’’ within the meaning of the work jurisdiction clause,
art. 1A, sec. (a), of the existing agreement. In short, it is not control-
ling for the purposes of this case whether the Union or the Respond-
ent has the correct view of the meaning of the contractual term
‘‘coal waste.’’ The Union’s view is at least arguable, and the Union
is entitled to access to secure evidence of what is actually there, in
support of its view. The arbitrator will be the judge of the persua-
siveness of the evidence. Further, we note that the Respondent con-
tends that the record in this proceeding does not establish, as the
judge intimated, that for purposes of an arbitration proceeding a sci-
entific lab result of the pond sediment is necessarily the ‘‘best evi-
dence’’ to prove the existence of ‘‘coal waste.’’ However, we find
it unnecessary to pass on whether the pond sediment is the most pro-
bative evidence to support the Union’s contractual argument before
an arbitrator.
Finally, in adopting the judge’s conclusion, we note that art. 1A,
sec. (e) of the same agreement provides, in relevant part:
Authorized representatives of the Union shall be permitted rea-
sonable access to the mine property to insure compliance with
this Agreement.
2 In par. 1(b) of his recommended Order, the judge used the broad
cease-and-desist language ‘‘in any other manner.’’ However, we
have considered this case in light of the standards set forth in
Hickmott Foods, 242 NLRB 1357 (1979), and have concluded that
at this time the narrow cease-and-desist language ‘‘in any like or re-
lated manner’’ is appropriate. We shall modify the judge’s rec-
ommended Order accordingly.
Consolidation Coal Company and United Mine
Workers of America, District 31. Case 6–CA–
23393
June 30, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On December 17, 1991, Administrative Law Judge
Martin J. Linsky issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Con-
solidation Coal Company, Robinson Run Mine No. 95,
Shinnston, West Virginia, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 1(b).
‘‘(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail and refuse to bargain in good
faith with the Union as the exclusive bargaining agent
of our employees in the appropriate unit by failing and
refusing to furnish the Union access to our property to
secure residue from sediment ponds which residue is
necessary for and relevant to the Union’s discharge of
its collective-bargaining obligation.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL permit the Union, on request, access to our
property to secure samples of residue from our ponds.
CONSOLIDATION COAL COMPANY
Patricia J. Scott, Esq., for the General Counsel.
Daniel L. Fassio, Esq., of Pittsburgh, Pennsylvania, and Rob-
ert M. Steptoe, Jr., Esq. and David M. Hammer, Esq., of
Clarksburg, West Virginia, for the Respondent.
Carlo Tarley, Executive Board Member, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On Feb-
ruary 20, 1991, the United Mine Workers of America, Dis-
trict 1 (the Union) filed a charge against Consolidation Coal
Company (the Respondent).
On March 1991, the National Labor Relations Board, by
the Regional Director for Region 6, issued a complaint which
was later amended, which alleges that Respondent violated
Section 8(a)(1) and (5) of the National Labor Relation Act
1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On this same day a hearing was held before me involving the
same Respondent and Charging Party, i.e., Consolidation Coal Co.,
Case 6–CA–2681. No party to the litigation moved to consolidate
the two cases.
when it failed and refused to provide information to the
Union in the form of samples of residue dredged from a
pond which information the Union claims was necessary for
and relevant to the performance of its function as the exclu-
sive bargaining representative of certain employees of Re-
spondent.
Respondent filed an answer in which it denies it violated
the Act in any way.
A hearing was held before me in Fairmont, West Virginia,
on September 19, 1991.1
I find that Respondent did violate the Act as alleged in the
complaint.
On the entire record in this case, to include posthearing
briefs submitted by the General Counsel and Respondent,
and on my observation of the demeanor of the witnesses, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Delaware corporation with an office and
place of business at the Robinson Run Mine #95 rear
Shinnston, West Virginia, has been engaged in the mining
and nonretail sale of coal.
During the 12-month period ending January 1, 1991, Re-
spondent, in the course and conduct of its business oper-
ations, sold and shipped from its Shinnston, West Virginia
facility products, goods, and materials valued in excess of
$50,000 directly to points outside the State of West Virginia.
Respondent admits, and I find, that it is now, and has been
at all times material herein, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Respondent admits, and I find, that the United Mine
Workers of America, AFL–CIO (International Union), and its
District 31, and United Mine Workers of America, Local 501
(collectively the Union), are now, and have been at all times
material, labor organizations within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The International Union has been the designated exclusive
collective-bargaining representative of Respondent’s employ-
ees as described in the National Bituminous Coal Wage
Agreement of 1988. Such recognition has been embodied in
successive collective-bargaining agreements, the most recent
of which is effective by its terms for the period February 1,
1988, to February 1, 1993.
Pursuant to the Federal Surface Mining Control and Rec-
lamation Act, Respondent in the seventies constructed several
man-made ponds on its property. The ponds were for the
purpose of collecting water runoff so the runoff of surface
water over surfaces disturbed because of mining did not con-
taminate nearby streams.
Periodically, the ponds must be dredged of sediment which
has settled on the bottom of the ponds. Under Federal law,
dredging must take place once a pond has accumulated sedi-
ment to 60 percent of its capacity. For years Respondent has
employed an outside contractor to once or twice a year
dredge the four ponds on its property. The outside contractor
uses a hydraulic dredge called a mudcat and other equipment
to do the dredging. Respondent does not have its own
mudcat.
In the spring of 1990, an outside contractor was hired to
dredge one of the ponds on Respondent’s property. The
Union believed that the product being dredged was coal
waste. If it was coal waste then the removal of the coal
waste through the dredging process was unit work and could
not be contracted out under the contract. The Union referred
to its collective-bargaining agreement for its authority that if
the product being dredged is coal waste it is unit work.
Article IA, section (a) of the collective-bargaining agree-
ment entitled ‘‘Work Jurisdiction’’ provides in pertinent part
as follows:
The production of coal, including removal of overbur-
den and coal waste, preparation, processing and clean-
ing of coal and transportation of coal . . . and work of
the type customarily related to all of the above shall be
performed by classified Employees of the Employer
covered by and in accordance with the terms of this
Agreement. [Emphasis added.]
Respondent takes the position that the residue is just sedi-
ment and not coal waste and Respondent is, therefore, per-
mitted to contract out the dredging work.
The Union filed a grievance and wanted a sample of the
residue in the pond so that it could send it to a laboratory
for ana]ysis to determine whether the residue was coal waste
or not. Respondent said okay. Representatives of Respondent
and the Union then went to the pond and took samples of
residue from four parts of the pond—two selected by Re-
spondent and two by the Union. The Union filled four 1-pint
jars with residue. The jars were provided by the lab. The en-
tire process of collecting the residue took between 5 to 15
minutes. The cost of the lab work was borne entirely by the
Union. It cost Respondent no more thau 15 minutes of one
employee’s time.
The Union sent the jars to Reliance Laboratory which ap-
parently performed the wrong test. The Union, without sci-
entific evidence that the residue was coal waste, withdrew
the grievance. By this time, of course, the pond had been
dredged and there was no residue to collect. Carlo Tarley
from District 31 told Local 1501 Vice President Carl Morris
to get a sample of residue the next time Respondent brought
in an outside contractor to dredge one of the ponds.
In December 1990 Morris saw an outside contractor
dredging one of the other ponds at Robinson Run Mine #95.
On December 10, 1990, Morris asked Plant Superintendent
John Boyd for a sample of residue from the pond and Boyd
said he did not have authority to give him a sample. The
next day Morris asked Employee Relations Supervisor Mark
Shiffbauer for a sample. Shiffbauer said he had to check on
it but never got back to Morris. A grievance was filed on
December 11, 1990. In the grievance the Union objected to
an outside contractor doing unit work. At a step 2 grievance
1057CONSOLIDATION COAL CO.
2 See the following Board cases where Respondent was found to
have violated the Act: 253 NLRB 789 (1980); 256 NLRB 541
(1981); 260 NLRB 466 (1982); 263 NLRB 1306 (1982); and 266
NLRB 670 (1983).
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
meeting on January 9, 1991, the Union asked Superintendent
Denver Johnson for a sample of residue from the pond. John-
son said that the dredging was complete, the residue buried,
and he had no residue from the pond to give the Union and,
in any event, it was Respondent’s property and Respondent
should not give a sample to the Union.
A union is entitled to information which is necessary for
and relevant to the discharge of its responsibilities as exclu-
sive collective-bargaining representative and a failure by an
employer to furnish such information is an unfair labor prac-
tice. See NLRB v. Acme Industrial Co., 385 NLRB 432
(1967). One of the obligations of the Union is to process
grievances. It would appear to me that it goes without saying
that in light of the contract provision granting exclusive ju-
risdiction to the unit for removal of coal waste that the
Union should be allowed onto the property of Respondent to
secure a sample of residue from the pond to send to a lab
for analysis to see if what is being dredged is coal waste or
not. As noted above, the cost of the analysis will be borne
by the Union. The amount of time it takes to collect the sam-
ple is no more than 15 minutes and a representative of Re-
spondent can and should be present at the time the sample
is acquired. Balancing the property rights of Respondent
against the need of the Union for the sample to process the
grievance and considering the slight intrusion on Respond-
ent’s property, it is obvious that Respondent’s property rights
should yield to the Union’s right to collect the residue sam-
ple. See Holyoke Water Power Co., 273 NLRB 1369 (1985),
enfd. 778 F.2d 49 (1st Cir. 1985).
Respondent concedes in its brief but did not at the hearing
or in the pleadings that some coal may be in the residue,
which residue by the way has no mometary value to Re-
spondent. This does not resolve the issue however. It is obvi-
ous that a scientific lab result will be the best evidence one
way or the other in any arbitration. The grievance is on hold
pending disposition of this case.
Respondent relies on two prior arbitration decisions. The
first decision issued on March 27, 1986, and involved one
of Respondent’s other mines, i.e., Loveridge Mine #3. An
issue in that arbitration was whether the residue dredged
from the ponds at Loveridge Mine #22 was coal waste or
not. The arbitrator concluded it was not coal waste but noted
in his decision that no samples of residue were taken by ei-
ther party to the arbitration to try and determine the amount
of coal waste that may have accumulated in the pond during
a specific period of time. It seems clear that scientific evi-
dence would be helpful to the arbitrator in deciding whether
dredging of the ponds is removal of coal waste and unit
work under the contract or not.
The other arbitration decision issued on June 30, 1988, and
involved Respondent’s Osage Mine #3. In that case the arbi-
trator ruled that the dredging of the ponds is not exclusive
unit work and that the residue is not coal waste. However,
he did not have scientific evidence as to the makeup of the
residue.
It seems obvious that the Respondent should permit the
Union limited access to its property to remove samples of
residue from the next pond which is ready to be dredged.
The obtaining of the residue should he done in the same
manner as it was done in the spring of 1990, i.e., with mini-
mal inconvenience and virtually no expense to Respondent.
Respondent’s failure to do so violated Section 8(a)(1) and (5)
of the Act.
The General Counsel requests a broad remedial order in
this case. The Board in Hickmott Foods, 242 NLRB 1357
(1979), held that a broad cease-and-desist order requiring a
respondent to cease and desist from ‘‘in any other manner
restraining or coercing employees in the exercise of their
Section 7 rights’’ rather than the narrow ‘‘in this or any like
manner’’ language should be reserved for situations where a
respondent is shown to have a proclivity to violate the Act
or has engaged in such egregious or widespread misconduct
as to demonstrate a general disregard for the employees’ fun-
damental statutory rights.
The General Counsel has referred me to enough cases of
unfair labor practices being committed by this Respondent
that I will grant the application for a broad remedial order.2
I do even though the evidence at the hearing reflects that Re-
spondent is the second largest producer of coal in the United
States, operates some 25 unionized mines in 7 States, and
employs some 10,500 people.
CONCLUSONS OF LAW
1. Respondent is an employer engaged in commerce and
in operations affecting commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. Local 1501, District 31, and the International Union,
United Mine Workers of America are labor organizations
within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) and (5) of the Act
when it refused access to the Union to enter its property for
purposes of securing samples of residue which was necessary
for and relevant to the Union’s performance of its collective-
bargaining responsibilities.
THE REMEDY
Having found that Respondent has engaged in this unfair
labor practice, it is recommended that the Respondent be or-
dered to cease and desist therefrom and to take the affirma-
tive action described below which is designed to effectuate
the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Consolidation Coal Company, Shinnston,
West Virginia, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing the Union access to its property
to secure a sample of residue which residue is necesssary for
and relevant to the Union’s discharge of its collective-bar-
gaining responsibilities.
1058 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(b) In any other manner interfering with, restraining, or co-
ercing thelr employees in the exercise of the rights guaran-
teed to them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Grant access to the Union to its property to secure a
sample of residue from sediment ponds when requested by
the Union.
(b) Post at its Shinnston, West Virginia facility copies of
the attached notice marked ‘‘Appendix.’’4 Copies of the no-
tice, on forms provided by the Regional Director for Region
6, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.