Consolidation Coal Co.

National Labor Relations Board - Board Decisions

Apr 14, 1992

307 N.L.R.B. 69 (N.L.R.B. 1992)

69
307 NLRB No. 13
CONSOLIDATION COAL CO.
1 The Respondent also filed a reply brief.
2 In light of the type of violation alleged and found, i.e., a refusal
to furnish information, we find it unnecessary to pass on the judge’s
determination at sec. III, par. 6 of his decision that the Respondent
attempted to exclude certain operations from the terms of its collec-
tive-bargaining agreement with the Union.
3 The Respondent has excepted to the judge’s finding that the Re-
spondent must provide the information requested in the 48-page
checklist, designated as C.P. Exh. 26, which was submitted by the
Union following the hearing. At the hearing, the parties stipulated
to a checklist procedure in order to determine what information had
been provided by the Respondent with respect to the original infor-
mation request, a five-page letter dated April 18, 1990. The Re-
spondent never stipulated however, to the relevance of the Charging
Party’s exhibit. Because the information requested in the April 18,
1990 letter has been found to be potentially relevant, and because
the complaint dates the violation from the Respondent’s failure to
comply with the April 18 letter, we find that the remedy must be
based on the April 18 letter, and not on the C.P. Exh. 26. Par. 2(a)
of the recommended Order will be modified accordingly. If the par-
ties have any dispute over any differences between the April letter
and the C.P. Exh. 26, they should first attempt to adjust their dispute
through the process of collective bargaining. Compare Minnesota
Mining & Mfg. Co., 261 NLRB 27, 32 (1982).
Also in par. 2(a) of his recommended Order, the judge provided
a 20-day time period for the Respondent to respond to the Union’s
information request. We shall delete this requirement as unwar-
ranted.
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
the narrow cease-and-desist language ‘‘in any like or related man-
ner’’ is appropriate. We shall modify the judge’s recommended
Order accordingly.
Consolidation Coal Company and United Mine
Workers of America, International Union and
United Mine Workers of America, District 4
and their Local Unions No. 6321 and 1980.
Case 6–CA–22722
April 14, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On September 11, 1991, Administrative Law Judge
Richard H. Beddow Jr. issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel and the Union filed an-
swering briefs.1
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,2 and con-
clusions and to adopt the recommended Order as
modified.3
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, Pittsburgh, Pennsylvania, its
officers, agents, successors, 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 following for paragraph 2(a).
‘‘(a) Furnish the Union with the requested informa-
tion as described in the Union’s letter dated April 18,
1990.’’
3. 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, United Mine Workers Of Amer-
ica, as the exclusive bargaining agent of our employees
in the appropriate bargaining unit by failing and refus-
ing to furnish the Union with certain requested infor-
mation, which is necessary and relevant to the Union’s
performance of its function as the exclusive bargaining
agent of the unit employees.
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 furnish to the Union all information re-
quested by the Union’s letter dated April 18, 1990.
CONSOLIDATION COAL COMPANY
Suzanne C. McGinnis, Esq., for the General Counsel.
Darriel L. Fassio, Esq. and Anthony J. Polito, Esq., of Pitts-
burgh, Pennsylvania, for the Respondent.
Michael Dinnerstein, Esq. and Judith A. Scott, Esq., of
Washington, D.C., for the Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter was heard in Pittsburgh, Pennsylvania, on February 11
and 12, 1991, on a consolidated record with Case 6–CA–
70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All following dates are in 1990 unless otherwise indicated.
2 The portions of art. II relevant to this proceeding are as follows:
A. Non Signatory Operations
1. Except as modified is Section C, the first three out of every
five new job openings for work of a nature covered by this
agreement at any existing, new, or newly acquired non-signatory
bituminous coal operation of the Employer shall be filled by
classified laid off employees on the panels of the Employer’s
operations covered by this agreement. If the newly acquired
non-signatory operation has a panel of laid-off employees estab-
lished pursuant to a valid collective bargaining agreement, those
individuals shall first be recalled before this section applies.
. . . .
C. Coordination of Employment Obligations Under the JOBS
Program
At those locations where the Employer hereto is the lessee li-
censee of another employer which is also party to the obliga-
tions of Article II, the Employer hereto shall first honor the hir-
ing obligation to which it should be found as a result of the les-
sor-licensor’s agreement with the Union. Thereafter, and al all
other locations covered by this Article, the Employer hereto
shall follow the obligations of Section A and B above.
D. Employer-Wide Panel Rights to Signatory Operations
Each Employer also agrees to extend employer-wide panel
rights to its signatory operations pursuant to Article XVII. Ac-
cordingly, within forty-five (45) days of the effective date of the
Agreement, a laid-off employee may revise his panel form for
any purpose, in addition to his annual right of revision under
Article XVII (d).
22561. By order dated March 6, 1991, the proceedings were
severed and subsequently briefs were filed by Respondent
and the General Counsel. A decision, JD–156–91, was issued
in the related proceeding on June 7, 1991. This proceeding
is based on a charge filed May 21, 1990, by United Mine
Workers of America, International Union and United Mine
Workers of America, District 4 and their Local Unions No.
6321 and 1980. The Regional Director’s complaint dated De-
cember 21, 1990,1 alleges that Respondent, Consolidation
Coal Company of Pittsburgh, Pennsylvania, violated Section
8(a)(1) and (5) of the National Labor Relations Act by fail-
ing and refusing to furnish the Union with certain informa-
tion needed by the Union to police and enforce the parties’
collective-bargaining agreement.
On review of the entire record in this case and from my
observation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent is engaged in the mining and nonretail sale of
coal at facilities in Pennsylvania. It is wholly owned by Du-
Pont Energy Co. and it admits that it and Consol Pennsyl-
vania Coal Company and Enlow Fork and Mining Company
are subsidiaries of the same parent company and have the
same registered office address. It annually ships goods val-
ued in excess of $50,000 from its locations in Pennsylvania
to points outside that Commonwealth and it admits that all
times material it has been an employer engaged in operation
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act. It also admits that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
As noted in the related decision in Case 6–CA–22561, Re-
spondent is and has been a signatory to collective-bargaining
agreements between the Bituminous Coal Operators Associa-
tion (BCOA) and the International Union. The National Bitu-
minous Coal Workers Agreement (NBCWA) negotiated in
1988 is effective from February 1, 1988, to January 31,
1993. B. R. Brown, president of Respondent, was the chief
negotiator for the employers’ association.
The production of bituminous coal involves the depletion
of resources at work locations, and because various mining
arrangements can adversely impact on job security, the
Union’s main objective in the 1988 negotiations was to se-
cure a provision that would offer protection to laid-off min-
ers. Consequently, for the first time, the agreement included
a provision entitled, ‘‘Article II, Job Opportunity and Benefit
Security (JOBS)’’ wherein the Union’s concerns about job
security are expressly recognized.2
In effect, the contract provides that employees laid off
from Respondent’s operations have the right to complete
panel forms requesting reemployment to any job for which
he or she is qualified at other mines of Respondent. The
panel forms are then retained by Respondent and the Union.
The contract also covers the operation of all coal lands and
coal preparation facilities held by the signatory, its subsidi-
aries, and affiliates, whether in operation at the time of the
contract execution or at any time thereafter. The contract also
bars the leasing or licensing of coal lands, coal production,
or preparation facilities to avoid the application of the con-
tract, and the licensing of coal lands if such licensing results
in the loss of bargaining unit work.
Respondent admits that during negotiations for the
NBCWA of 1988, President B. R. Brown agreed that article
II rights would extend to Respondent’s Bailey Mine. District
4 President Ed Yomkovich testified that at the contract ex-
planation meetings on the NBCWA of 1988, the local union
presidents discussed rights and obligations under article II.
At that time, the local union presidents, including Yankovich
who was then a local president, were informed about
Brown’s statements at the bargaining table and during the
same time period, the Union also became aware of Respond-
ent’s plans to expand its Bailey operation (referred to as Bai-
ley 1) and create Bailey 2.
Respondent built Bailey 1 as a new mine in Greene Coun-
ty, Pennsylvania, in 1984, naming it after a former executive,
George Bailey. According to press accounts, the Bailey Mine
operates on Respondent’s reserves, however, Respondent
Consol created a wholly owned subsidiary, Consol Penn-
sylvania Coal Company (CPCC), in whose name the mine
was operated. Bailey was treated like any other mine of
Consol and Consol itself consistently referred to Bailey as
one of its own mines in various documents and public state-
ments. In late 1984, as Bailey 1 was almost ready to open,
Consol began work on a so-called companion mine to Bai-
ley, which Respondent initially referred to as Bailey 2. This
title also used by the U.S. Department of Labor and the
press. Bailey 2 was a physical continuation of the Bailey 1
Mine with miners entering both mines through the same por-
tal and coal from both mines existing on the same conveyor
belt.
On March 14, 1990, Enlow Fork requested and thereafter
was granted a transfer of the applicable mining permit from
71CONSOLIDATION COAL CO.
3 C.P. Exhs. 16 (one single document: 008458–008462), 17 (one
single document: 008465–008467), 18 (one-page handwritten note:
008468), 19 (second page of two-page memo prepared by Buck
Continued
CPCC to the newly created ‘‘Enlow Fork Mining Com-
pany.’’ After the 1988 agreement was signed, Consol
stopped referring to the mine as Bailey 2 and started refer-
ring to it as the Enlow Fork Mine.
Prior to April 18, 1990, when the Union made its informa-
tion request, a newspaper article in the Washington, Pennsyl-
vania Observer-Reporter disclosed that the companion oper-
ation of Bailey 1 would not be run by Respondent; but that
‘‘Enlow Fork Mining Company, a subsidiary of DuPont En-
ergy Company’’ would be announcing the opening of the
mine ‘‘informally referred to as Bailey 2 in the past.’’ This
specific revelation caused the Union to investigate whether
the hiring was being conducted in accordance with article II.
On April 16, Yankovich wrote to B. R. Brown and requested
information to show that the employees at the Bailey Mine
were being hired in accordance with article II. On May 4,
Respondent informed the Union that inasmuch as Bailey
Mine is an operation of CPPC, not Respondent, neither the
NBCWA of 1988 nor its article II applied to the hiring at
Bailey Mine.
By letter of April 18, the Union requested information
from Respondent regarding each company in which Re-
spondent plays a role or has an interest, including Consolida-
tion Coal Company, CPCC, Enlow Fork, and DuPont Energy
Company and any other subsidiary or affiliate of Respondent
operating and/or controlling coal lands in Pennsylvania. The
documents requested by the Union include, among others,
leases, subleases, mining permits, and annual returns for em-
ployee benefit plans. The Union also inquired about the iden-
tity of the officers, directors and management representatives,
customers and insurers of the Respondent and its subsidi-
aries, and/or affiliates as well as information regarding hiring
procedures and transfer of personnel between the listed com-
panies. The Union letter also set a date of compliance, May
6, after which it said a failure to respond would be consid-
ered a refusal.
On April 19, Local Union 6321 filed grievance 90–17
against Respondent at its Robena Preparation Plant. This
grievance alleged that Respondent, by and through CPCC,
Enlow Fork, DuPont Energy Company, and its other subsidi-
aries and affiliates, violated articles I, Ia, II and any other ap-
plicable sections by refusing to recognize panel rights of
union members. On April 20, Local Union 1980 filed an
identically worded grievance, grievance 90–36, against Re-
spondent at the Dilworth Mine. Both grievances were denied
by Supervisor of Industrial and Employee Relations Kathleen
P. Kimbrough.
On May 7, District 4 President Yankovich telephoned
Kimbrough to emphasize the Union’s need for the informa-
tion before processing the grievances to the third step of the
grievance procedure. Kimbrough stated that she did not know
whether Respondent would provide the requested information
and refused to waive time limits on the grievances while Re-
spondent decided on its course of action.
On May 10 and 14 respective, third-step grievance meet-
ings were held and Yankovich perused the information re-
quest. He stated that the information was necessary to deter-
mine whether Respondent violated article II of the contract;
however, Respondent refused to comply and took the posi-
tion that the Union must either arbitrate or drop the griev-
ances without the benefit of the information. Respondent also
refused a request to consolidate both grievances for arbitra-
tion.
On June 8 the arbitration hearing for grievance 90–17 was
held. The arbitrator determined that Respondent was required
to furnish the Union with the requested information and re-
manded the case back to the third step of the grievance pro-
cedure. He specifically noted that the question of whether the
Act was violated was not before him, and stated that the fact
that a charge alleging a violation of Section 8(a)(5) for fail-
ure to provide the information had been filed by the Union
had no bearing on the arbitration case.
Respondent then filed a lawsuit in the United States Dis-
trict Court for the Western District of Pennsylvania at civil
action 90–1443, and moved to vacate, in part, the arbitrator’s
award. The Union filed a counterclaim seeking to enforce the
arbitrator’s award. These actions are pending in the Federal
court.
In June 1990, the Union filed a related suit at civil action
90–0969, to compel the joint participation of Respondent,
CPCC, and Enlow Fork in the processing of the two griev-
ances discussed here. Pursuant to discovery in this action, the
Union served Respondent, CPCC, and Enlow Fork with in-
terrogatories and requests for production of documents.
On September 9, Yankovich met with Respondent’s man-
ager of industrial relations, Ronald Likar, for the purpose of
viewing some of the documents described in the arbitrator’s
order, however, the parties could not agree on a confiden-
tiality agreement and the Union was not permitted to take
possession of any of the documents. The defendants in the
Federal court action filed answers to interrogatories in No-
vember. Thereafter, in response to the requests for produc-
tion of documents, certain documents were produced; how-
ever, the documents produced were subject to a confiden-
tiality agreement whereby the Union was not permitted to
use any of the material marked ‘‘CONFIDENTIAL’’ for any
purpose other than the Federal court action.
At the hearing in the present case, on February 11, 1991,
Respondent agreed that the Union could use the information
and documents produced in the Federal court action for the
performance of its duties as the exclusive collective-bar-
gaining representative of Respondent’s employees covered by
the NBCWA of 1988. During the course of the hearing the
parties also agreed to a procedure whereby any and all the
requested information yet outstanding would be identified.
This was accomplished in a 48-page specific but summa-
rized ‘‘check list’’ format filed by the Union on February 28,
1991, and it is received into evidence as Charging Party’s
Exhibit 26. On March 14, 1991, the Respondent filed a re-
sponse which is identified as Respondent’s Exhibit 16 and
received into evidence.
By pleading dated March 25, 1991, the Union filed a
reply. In turn, Respondent filed a supplemental response on
April 11, 1991, to explain why it did not use the checklist
formate in an attempt to narrow the issues.
Subsequently provided additional information was the sub-
ject of any agreement between the Respondent and Union on
April 12, 1991, and it is received into evidence as Charging
Party’s Exhibits 16 through 25.3
72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Hyler on January 9, 1990: 008469), 20 (first and fifth pages of five-
page memo prepared by Greg Dixon on December 26, 1989:
008470–008471), 21 (two pages from memo prepared by Greg
Dixon on January 2, 1990: 008472008473), 22 (one-page memo:
008475), 23 (one-page memo typed by ‘‘mm’’: 008479), 24 (one
single document: 008480–008481), and 25 (one-page memo) (miss-
ing sheet attachment): 008482).
Otherwise, the Respondent admits that some specific infor-
mation and documents still have not been provided in re-
sponse to the Union’s June 18, 1990 letter, but it contends
that such information is not necessary for or relevant to the
performance of the Union’s collective-bargaining obligations
and the processing of the two pending grievances.
III. DISCUSSION
On brief the Respondent agrees that the necessity and rel-
evance of the information requested is normally a primary
issue in a case of this nature. It contends, however, that the
information sought here does not meet this test because the
request is not premised on the processing and presentation of
the underlying grievances, because these matters were taken
from arbitration to the United States district court on the
Charging Party’s own initiative, that the Federal court now
has jurisdiction of both the substantive and collateral dis-
covery of documentation and information in the pending
Federal court proceeding and that the information thereby is
no longer necessary and relevant to the presentation of the
pending grievances.
The Respondent’s contentions completely miss the thrust
of this proceeding. This is a complaint by the Regional Di-
rector for the Board under the provisions of the National
Labor Relations Act and it stands independent of any rights
of the Charging Party to pursue other legal remedies. Re-
spondent’s plea could have some relevancy at the compliance
stage in this proceeding, but it has no bearing at all on the
question presented by the complaint which is directed at the
issue of whether Respondent violated the Act in the spring
of 1990 when it failed and refused to comply with the union
information request.
As summarized in the related proceeding decided June 7,
1991, it is well established that as part of its duty to bargain
in good faith, an employer must comply with a union’s re-
quest for information that will assist the union in fulfilling
its responsibilities as the employees’ statutory representative,
NLRB v. Acme Industrial Co., 385 U.S. 432 (1967); Detroit
Edison v. NLRB, 440 U.S. 301, 303 (1979), including infor-
mation relevant to both contract administration and contract
negotiation, Leland Stanford Jr. University, 262 NLRB 136,
139 (1982), enfd. 715 F.2d 473 (9th Cir. 1983).
The standard applied in determining relevancy in these cir-
cumstances requires that the information have some bearing
on the issue for which the information is requested and be
of probable or potential relevance to the Union’s duties.
Pfizer, Inc., 269 NLRB 916, 918 (1984).
The instant proceeding has nothing to do with the sub-
stantive and ultimate merits of the grievances but deals only
with Respondent’s admitted failure at the time of the infor-
mation request and its admitted subsequent failure, up to and
including this time it filed its brief, to fully comply.
The issue in this proceeding is tied into the Union’s need
for information regarding Respondent’s apparent relationship
to operations which would tend to provide employment op-
portunities within the framework of the Union’s collective-
bargaining agreement with the Respondent, operations which
Respondent or its parent or affiliated companies have at-
tempted to exclude from the terms of the agreement.
Respondent failed to comply in a timely manner to the ini-
tial information request, and I find that it’s subsequent piece-
meal disclosure of dribs and drabs of information at each
successive stage of the Union’s efforts, including the griev-
ance-and-arbitration procedures, the Federal court procedure,
and the initial stages of this administrative court proceeding,
does nothing to mitigate or satisfy its primary and preexist-
ing duties to bargain in good faith. Respondent did not meet
its obligation in a timely manner. See EPE, Inc., 284 NLRB
191 (1987), and, accordingly, the Respondent must be found
to be in violation of the Act unless it shows that the Union
and the General Counsel have failed to show the necessity
and relevancy to the Union’s collective-bargaining function
of the information requested by the Union and also has failed
to establish even a ‘‘reasonable belief’’ that Respondent and
Enlow Fork were operating as a single employer.
As stated in Bohemia, Inc., 272 NLRB, 1128 (1984), a
union must generally establish the relevancy of information
regarding an employer’s potential single employer or alter
ego relationship with another entity. This burden was applied
in Maben Energy Corp., 295 NLRB 149 (1989), a case simi-
lar to the instant case, inasmuch as it involved an informa-
tion request by the United Mine Workers pursuant to article
II of the 1988 agreement. There, the Board found that where
a union seeks information to establish an alter ego or single
employer relationship, it is not required to prove the exist-
ence of such a relationship, rather, it is sufficient ‘‘that Gen-
eral Counsel has established that the union had an objective
factual basis for believing’’ that one entity is an ‘‘alter ego
or single employer’’ of the other.
Here, I am persuaded that the Union is shown to have had
a clear objective basis for its request for information. In
Maben Energy, supra, the Board found that the Union’s
showing amply demonstrated probable and potential rel-
evance of the requested information in fulfilling its statuatory
representative duties. The union, as here, requested specified
information from respondent employer in order ‘‘to effec-
tively administer and monitor important contractual rights
and obligations’’; ‘‘to determine the extent if any of the
interrelationship between signatory companies and non-signa-
tory companies for the purposes of contract administration
and bargaining’’; ‘‘to determine whether the listed employers
constitute a joint employer or single employer or alter ego’’;
and because the information could impact on the important
contractual rights including seniority, panel and recall, and
job security bidding rights.
Here, in order to pursue its grievances filed under articles
I, Ia, and II of the contract, the Union sought information to
establish that Respondent, CPCC, Enlow Fork, and any other
subsidiary or affiliate operates as a joint or single employer
with Respondent. The Union’s objective belief that Respond-
ent, by and through various other entities, is seeking to avoid
its contractual obligations was based on numerous bits of in-
formation, much of it information generated by Respondent
itself as well as information that was part of the public
record or information which appeared in other publicized ac-
counts.
73CONSOLIDATION COAL CO.
Despite the fact that in 1988 Respondent’s president had
specifically recognized that the article II JOBS provisions
were applicable to the Bailey Mine, on May 4, 1990, the
Union was informed that the Bailey Mine was not an oper-
ation of Respondent but solely an operation of CPCC. Be-
cause of various newspaper articles, intercompany news-
letters, and other documents, however, the Union understood
that it was part of the Respondent’s operations. For example,
Bailey Mine is listed as part of Respondent’s Eastern Region
Washington Operations in several publications of Respond-
ent’s newspaper and on interoffice memoranda regarding the
terms and conditions of employment of the employees at
Bailey Mine. In one issue of Consol News, B. R. Brown, in
a message from the chairman, enumerated the achievements
of Respondent’s marketing department in cultivating cus-
tomers for the coal from Bailey Mine and in a corporate pro-
file of Respondent in the October 1988 issue of Coal, Re-
spondent is credited with building the largest underground
coal mine (Bailey) in the Western Hemisphere. Newspaper
articles monitored by the Union consistently referred to
‘‘Consolidation Coal Company’s Bailey Mine’’ and the mine
was named for Respondent’s former president, Ralph Bailey.
The Union also became aware of several instances of
interchange among supervisors at Respondent’s Dilworth
Mine and supervisors at Bailey Mine. Until late 1989 Re-
spondent’s plans to expand the Bailey were self-described
with references to the additional mine under construction as
Bailey 2. Also, U.S. Department of Labor Mine Safety and
Health Administration reports also referred to Consol Bailey
2 Mine and described occurrences on slope 2.
A further basis for the Union’s belief in an apparent rela-
tionship between Respondent, CPCC, and Enlow Fork is the
physical outlay of the Bailey Mine and the Enlow Fork
Mine. Both mines are entered via a common entrance. Coal
exits the mine via the same slope and is dumped on a com-
mon belt. Moreover, these entities were known to jointly sell
the coal produced by the mines, and it appeared the Re-
spondent and CPCC have jointly agreed to sell coal from
Bailey Mine. In addition, Enlow Fork has contractual rela-
tionships with Respondent and CPCC whereby these compa-
nies, which have the ‘‘necessary experience and personnel’’
will perform services for Enlow Fork. The Union is aware
that Respondent, CPCC, and Enlow Fork all receive mail at
the same address.
Under these circumstances, I conclude that the General
Counsel has shown that the Union had a reasonable basis for
the potential relevance for the requested information concern-
ing the single, joint employer, or alter ego relationships and
that the information is relevant to a determination of whether
Respondent violated the contract. As discussed above, the
Respondent otherwise is shown to have failed at all times to
fully satisfy its obligation to bargain in good faith by timely
satisfaction of the Union’s information requests and, accord-
ingly, I conclude that the Respondent is shown to have vio-
lated Section 8(a)(1) and (5) of the Act as alleged.
Finally, I also conclude that the Respondent has persisted
both on brief and in its uncooperative response to the proce-
dures proposed and followed by the Union by means of
Charging Party’s Exhibit 26 for identification of outstanding
information not otherwise yet disclosed, to needlessly burden
the whole process with repeated and unfounded ‘‘relevance’’
contentions.
There is no need for this administrative court to assume
the burden of examining what purports to be over 7000
pages of documentation. Here, the Charging Party has the
right to review the broad category of information requested
so that it may select what it believes to be relevant and nec-
essary for presentation in any followup procedures related to
the noted grievance proceedings. Questions regarding the ac-
tual relevance of information sought to be relied on can be
justified at that point and I see little danger of any attempt
by the Union to needlessly burden any record by the at-
tempted introduction of irrelevant material.
Respondent’s continued self-serving insistence that it
‘‘does not believe’’ material is required or relevant has gone
beyond the pale of legitimate argument. As enumerated by
the Charging Party, the Respondent admits the existence of
specific documents relevant to the Union’s request which it
has not provided the Union in its response Exhibit 16 regard-
ing a mining contract; employee benefit plan; names and ad-
dresses of common owners, supervisors, managers, and in-
dustrial relations personnel; and names and addresses of enti-
ties. It also has admitted that some disclosed reports coal
sales agreements are only representative samples.
Inasmuch as the Respondent has created the overall situa-
tion in which it now finds itself, it cannot be heard to com-
plain that it has some further rights that entitle it to be less
than fully forthcoming in its disclosures to the Union. Ac-
cordingly, the remedy section of this decision will provide
for the prompt disclosure of all the requested information
specifically listed by the Charging Party as well as the impo-
sition of a ‘‘broad’’ remedial order.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce as al-
leged.
2. The Union is a labor organization as alleged.
3. The Respondent has failed and refused to bargain in
good faith with the Union by failing and refusing to furnish
the Union with certain requested information, as described in
the above decision, which was and is necessary and relevant
to the Union’s performance of its function as the exclusive
bargaining agent of the unit employees in violation of Sec-
tion 8(a)(l) and (5) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, it is recommended that the Respondent be ordered
to cease and desist therefrom and to take the affirmative ac-
tion described below which is designed to effectuate the poli-
cies of the Act.
With respect to the necessary affirmative action, it is rec-
ommended that Respondent be ordered to cease and desist
from engaging in such conduct or in any other manner inter-
fering with employee rights and to turn over to the Union
all the requested information described above and as specifi-
cally enumerated in Charging Party’s Exhibit 26 and to post
the attached notice.
In this proceeding, it is considered necessary that a broad
order be issued. This conclusion is reached because of the
Respondent’s persistance in refusing and avoiding any rea-
sonable or timely good-faith effort to satisfy an information
request that has been clearly established to be valid under
74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 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.
5 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.’’
current and applicable Board law. Any matters of purported
confidentiality can be considered and accommodated, if nec-
essary, at the compliance stage of the proceeding.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, Consolidation Coal Company, Pittsburgh,
Pennsylvania, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
United Mine Workers of America, by failing and refusing to
furnish the Union with certain requested information, as de-
scribed in the above decision, which was and is necessary
and relevant to the Union’s performance of its function as
the exclusive bargaining agreement agent of unit employees.
(b) In any other manner interfering with, restraining, or co-
ercing the employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Furnish the Union within 20 days with all the re-
quested information as described in the above decision.
(b) Post at its facilities in Pittsburgh, Pennsylvania, copies
of the attached notice marked ‘‘Appendix.’’4 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 6, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees 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.