Consolidation Coal Co.

National Labor Relations Board - Board Decisions

Jun 25, 1992

307 N.L.R.B. 976 (N.L.R.B. 1992)

976
307 NLRB No. 152
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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.
The Respondent defends its conduct by arguing, inter alia, that its
general superintendent was merely following the contractual griev-
ance procedure when he refused to allow the District 31 executive
board member to serve as Robert Knisely’s representative at the in-
vestigatory interview held on June 10, 1991. This argument lacks
merit. Even assuming that any restrictions that may pertain to the
grievance process would have been applicable had a grievance been
filed, no grievance involving Knisely was pending at the time of the
June interview.
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 at this
time that 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, Robinson Run Mine
No. 95 and United Mine Workers of America,
District 31. Case 6–CA–23681
June 25, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On January 17, 1992, 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 deny the request of our employees for
representation by District 31 board members at inves-
tigatory interviews which could result in their dis-
cipline if the District 31 board member requested is
readily available to provide such representation.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed to them in Section 7 of the
National Labor Relations Act.
WE WILL grant the request of our employees for rep-
resentation by District 31 board members if readily
available at investigatory interviews that could result in
employee discipline.
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 June 12
and July 24, 1991, United Mine Workers of America, Dis-
trict 31 (the Union), filed a charge and first amended charge,
respectively, against Consolidation Coal Company (Respond-
ent).
On July 24, 1991, the National Labor Relations Board, by
the Acting Regional Director for Region 6, issued a com-
plaint, which was later amended, which alleges that Re-
spondent violated Section 8(a)(1) of the National Labor Rela-
tions Act (the Act), when it denied the request of its em-
ployee Robert Knisely to be represented by United Mine
Workers of America, District 31 Board Member Carlo Tarley
at an investigatory interview which could have resulted in the
discipline of Robert Knisely.
Respondent filed an answer in which it denies it violated
the Act in any way.
977CONSOLIDATION COAL CO.
1 On this same day a hearing was held before me involving the
same Respondent and the Charging Party, i.e., Consolidation Coal
Company, Case 6–CA–23393. No party to the litigation moved to
consolidate the two cases.
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.
Upon the entire record in this case, to include posthearing
briefs submitted by the General Counsel and Respondent,
and upon 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 No. 95 near
Shinnston, West Virginia, has been engaged in the mining
and nonretail sale of coal.
During the 12-month period ending May 31, 1991, Re-
spondent, in the course and conduct of its business oper-
ations, sold and shipped from its West Virginia facilities,
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, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that the United Mine
Workers of America, District 31, is now, and has been at all
times material, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
On Wednesday, June 5, 1991, Robert Knisely, a motor-
man, and Charles Cienowski, his coworker, both of whom
are employees of Respondent and represented by the Union
were involved in an incident at work which included a de-
railment.
On Saturday, June 8, 1991, Robert Knisely was informed
that he was to meet at 5 p.m. on June 10, 1991, at the start
of his shift, with Thomas ‘‘Pete’’ Simpson, the general su-
perintendent of Robinson Run Mine No. 95. Knisely was
told that the meeting with Simpson could result in his being
disciplined and the discipline might include his discharge.
Knisely called Nelson Starcher, the president of UMW
Local 1501. Starcher told Knisely that he would be out of
town on June 10, 1991, and had asked Carlo Tarley from
District 31 to take care of matters in his absence.
The Union signatory to the collective-bargaining agree-
ment under which Knisely worked was the International
Union UMW. The International’s District 31 helped police
collective-bargaining agreements within its jurisdiction. Dis-
trict 31 was broken down into two sections. The section
under Executive Board Member Carlo Tarley handled Local
1501 UMW, which was Knisely’s Local.
On Monday morning Knisely went to District 31’s head-
quarters to see Tarley and told Tarley that he wanted Tarley
to represent him at the investigatory interview at 5 p.m. that
afternoon. Tarley agreed to represent Knisely.
Later that Monday Knisely appeared at the mine. Also
present were two men from District 31, i.e., Carlo Tarley,
who Knisely wanted to represent him at the investigatory
interview with Thomas ‘‘Pete’’ Simpson, and Gary Jordan.
Also present were three newly elected members of the mine
committee, W. T. Hockenberry, Sam Marra, and Jim Parker.
Hockenberry, Marra, and Parker all work at Robinson Run
Mine No. 95 but none had ever represented an employee at
an investigatory interview. Carlo Tarley himself had worked
at Robinson Run Mine No. 95 for 20 years or until June
1989 when he became an executive board member of District
31. Tarley was officially in a leave-of-absence status from
his job at Robinson Run Mine No. 95.
I credit Knisely that prior to Knisely’s interview with
Simpson that when Simpson said that Knisely would be al-
lowed only one representative at the interview that Knisely
said to Simpson that Tarley would be his representative and
Simpson said no.
Tarley testified that Simpson said that Knisely could have
only one representative at the investigatory interview and it
could not be Tarley and Tarley argued with Simpson that it
should be him. Simpson corroborates that Tarley was present
for the Knisely interview and was told by Simpson that he
could not be present during the interview and that Tarley ar-
gued that he had a right to be present.
It is clear in the extreme that Knisely wanted Tarley to
represent him at the investigatory interview and Respondent
knew it and it is an insult to one’s intelligence and common
sense to suggest otherwise.
Simpson made it clear to Knisely, Tarley, and the others
that Knisely could have only one representative at the inves-
tigatory interview and that it could not be Tarley or Jordan
but had to be one of the three mine committeemen, none of
whom had ever represented an employee at an investigatory
interview. Since I find that Knisely told Simpson that he
wanted Tarley to represent him Simpson denied Knisely the
representative of his choice. Simpson testified that Knisely
did not specifically request Tarley. I do not credit Simpson
on this point. But even Simpson admits that Tarley, in Simp-
son and Knisely’s presence, argued that he had a right to be
present at the interview. No reasonable person could con-
clude that Simpson did not know that Knisely wanted Tarley
to represent him at the investigatory interview.
Simpson told Knisely that he had to appear at the 5 p.m.
investigatory interview and if he wanted representation it had
to be one of the three mine committeemen. As noted all
three of the mine committeemen were inexperienced in han-
dling investigatory interviews whereas Tarley was highly ex-
perienced. Forcing Knisely to chose one of the three mine
committeemen and denying his request for Carlo Tarley as
his representative was the functional equivalent of forcing a
defendant to select as his counsel a young lawyer who had
never tried a case before over the late great trial lawyer, Ed-
ward Bennett Williams, when both were present and ready
to represent the defendant. It was obvious why Knisely
would want Tarley and Tarley was present and ready to rep-
resent him. No delay whatsoever would be occasioned by let-
ting Knisely have Tarley as his representative.
Suffice it to say Simpson required that Knisely pick as his
representative one of the three mine committeemen present.
978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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.
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.’’
Since he could not have Tarley, Knisely selected W. H.
Hockenberry to represent him. Hockenberry represented
Knisely at the investigatory interview and he also represented
Knisely’s coworker, Charles Cienowski. Neither Knisely nor
Cienowski received any discipline. This, of course, is no de-
fense to the allegation that Respondent violated the Act in
denying Knisely his choice of representative. Nor, of course,
is it any defense to an alleged unlawful denial of choice of
representative that the employee, like Knisely, is a college
graduate, has himself represented at least one fellow em-
ployee at an investigatory interview, and is a member or
former member of the mine committee and safety committee.
I note that lawyers, even very talented ones, hire the best
lawyers they can get if faced with legal problems. In NLRB
v. J. Weingarten, 420 U.S. 251 (1975), the Supreme Court
approved the Board’s view that Section 7 of the Act gives
an employee the right to demand union representation at in-
vestigatory interviews which the employee reasonably be-
lieves could result in discipline. Respondent stipulated in the
instant case that the investigatory interview that Knisely was
to have with Simpson could have resulted in Knisely’s being
disciplined and possibly even discharged. I find as a matter
of fact that Knisely requested Tarley to be his representative
and expressed that desire to Respondent. Respondent did not
cancel the investigatory interview but went forward with it.
Respondent’s refusal to let Tarley, who was present, rep-
resent Knisely at the investigatory interview was a violation
of Section 8(a)(1) of the Act. See GHR Energy Corp., 294
NLRB 840 (1989), where a similar violation was found, i.e.,
it was a violation of the Act to deny an employee his choice
of representative, who in that case was from the International
union and present, and force the employee to proceed with
another representative.
In the instant case it would not have been a violation of
the Act if Respondent denied Knisely’s request for represen-
tation by Tarley if Tarley was not present and to grant the
request would force a postponment of the investigatory inter-
view. See Coca-Cola Bottling Co., 227 NLRB 1276 (1977).
But in the instant case as in GHR Energy Corp., supra, the
requested representative was present and ready to go for-
ward. Hence, Respondent violated Section 8(a)(1) 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 to 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 Board
cases of unfair labor practices being committed by this Re-
spondent that I will grant the application for a broad reme-
dial order.2 Subsequent to the hearing in this case the Board
issued yet another decision finding the Respondent quilty of
an unfair labor practice. See Consolidation Coal Co., 305
NLRB 545 (1991). On December 17, 1991, I issued my deci-
sion in Consolidation Coal, JD–335–91, wherein I found Re-
spondent again violated the Act. I will recommend a broad
remedial order even though evidence at the hearing reflects
that Respondent 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.
CONCLUSIONS 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. District 31, United Mine Workers of America, is a labor
organization within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act when it
denied the request of its employee Robert Knisely to be rep-
resented by United Mine Workers of America, District 31
Board Member Carlo Tarley at an investigatory interview
which could have resulted in the discipline of Robert
Knisely.
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, Robinson
Run Mine No. 95, Shinnston, West Virginia, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Denying the requests of its employees for representa-
tion by District 31 board members at investigatory interview
which could result in their discipline if the District 31 board
members requested is readily available to provide such
represeentation.
(b) In any other manner interfering with, restraining, or
coerceing their employees in the exercise of the rights guar-
anteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Grant the request of its employees for representation by
District 31 board members if readily available at investiga-
tory interviews that could result in employee discipline.
(b) Post at its Shinnston, West Virginia facility copies of
the attached notice marked ‘‘Appendix.’’4 Copies of the no-
979CONSOLIDATION COAL CO.
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.