Foundation Coal West, Inc.

National Labor Relations Board - Administrative Judge Opinions

Aug 30, 2007

27-CA-020202 (N.L.R.B. Aug. 30, 2007)

JD(SF)–24–07
Gillette, WY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
FOUNDATION COAL WEST, INC.
and Cases 27-CA-20202
27-CA-20295
UNITED MINE WORKERS OF AMERICA
Michael Cooperman Esq. and Ian Farrell, Esq.,
of Denver, Colorado for the General Counsel.
Robert Guilfoyle,International Representative
for United Mine Workers of America
of Wheat Ridge, Colorado for the Charging Party.
Anna M. Dailey, Esq., (Dinsmore & Shohl)
of Charleston, West Virginia, for the Respondent.
DECISION
Statement of the Case
JOHN J. MCCARRICK, Administrative Law Judge: This case was tried in Gillette,
Wyoming on April 18 and 19, 2007 based upon the Order consolidating cases, amended
consolidated complaint and Notice of Hearing in cases 27-CA-20202 and 27-CA-20295 issued
on February 7, 2007 by the Regional Director for Region 27.
The amended consolidated complaint alleges that Foundation Coal West Inc.,
Respondent, violated Section 8(a)(1) and (3) of the Act by unlawfully enforcing its no-
solicitation/no-distribution rule, by disparately enforcing its no-solicitation/no-distribution rule, by
threatening to call and calling police to prohibit its employees from distributing union material,
and by issuing written warnings to employees for violating its no-solicitation/no-distribution rule.
Respondent filed a timely answer to the amended consolidated complaint denying any
wrongdoing.
Findings of Fact
Upon the entire record herein, including the briefs from the General Counsel and
Respondent, I make the following findings of fact.
I. Jurisdiction
Respondent, a Delaware corporation, with facilities in Gillette, Wyoming, is engaged in
the business of operating coal mines throughout the United States, including the Belle Ayr Mine
in Gillette, Wyoming. In the course of its business operations Respondent annually purchases
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and receives at its Wyoming facility goods, materials and services valued in excess of $50,000
directly from points located outside the State of Wyoming.
Based upon the above, Respondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. Labor Organization
Respondent admitted and I find that the United Mine Workers of America, the Union, is a
labor organization within the meaning of Section 2(5) of the Act.
III. The Alleged Unfair Labor Practices
A. Respondent’s Belle Ayr Mine
Respondent has owned and operated the Belle Ayr coal mine in Gillette, Wyoming since
about April 2005. Respondent’s President is Steven Rennell (Rennell), its Human Resources
Manager is Michael Meyer (Meyer), its Pit Process Manager is Dale Saathoff (Saathoff), and its
Short Term Planner and Drilling and Blasting Supervisor is John Crawford (Crawford).
Respondent’s night shift Pit Coordinator is Luther Martinez (Martinez). Respondent has
admitted that Rennell, Meyer, Saathoff, Crawford and Martinez are agents of Respondent within
the meaning of the Act.
Respondent’s Belle Ayr mine is an open-pit coal mine so vast that when coal is blasted
from its benches it is loaded into trucks 15 feet off the ground. When the coal is taken to market
entire trains are dedicated to the coal removed from the Pit. At Belle Ayr mine the Pit, where
coal is blasted, shoveled and loaded onto gigantic dump trucks, is over a mile distance from
Respondent’s administrative offices and coal loading mill where trains are loaded with coal. An
employee parking lot is adjacent to the main building.1 Located within the main building are an
administrative office, including the executive offices of Respondent’s President, Human
Resources, and Blasting Supervisor, a warehouse, a maintenance area, Pit Supervisor’s office,
Pit Coordinator’s office, the Yellow Training Room, men’s and women’s changing rooms, rest
rooms, an ambulance bay, Emergency Medical Technician’s (EMT) office and the Hallway.2
The Hallway,3 the situs of the dispute herein, is the entry point to the Belle Ayr mine for
all hourly employees, Pit supervisors, and vendors. The Hallway is 81 feet long and about 9
feet wide. At the right end of the Hallway is a double door entrance leading to the employee
parking lot and loading doors to the warehouse. At the left end of the Hallway is a double door
leading to the men’s changing room and doors to the women’s changing room. Both the men’s
and women’s changing rooms have direct access outside the administrative building from where
they are transported to the Pit. Off the hallway behind closed doors are the Pit Supervisor's
Office, the Pit Coordinator’s Office, the Yellow Training Room and the Changing Rooms. At
various points along the Hallway are the time clock, located near the double door entrance, a
bench where employees congregate to socialize and eat their lunch opposite the coffee maker

1 Jt. Exhs. 1 and 2.
2 Jt. Exh. 3.
3 Employees called the Hallway “Junk Food Alley” in reference to the vending machines
located in the Hallway from which they purchased junk food.
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and microwave, various bulletin boards,4 three vending machines, an ice machine, a coffee
maker and microwave, desks5 and cabinets for first aid supplies, forms, medicine and ear
plugs.6 All production employees have access to the vending, coffee, and ice machines as well
as the microwave.
Pit employees, who remove coal from the Pit work on two 12-hour shifts. The day shift
clocks in between 6:27 a.m. and 6:42 a.m. and clocks out between 6:55 a.m and 7:00 p.m. The
night shift clocks in between 6:27 p.m. and 6:42 p.m. and clocks out between 6:55 a.m. and
7:10 a.m. In addition to the Pit employees, Respondent employs drillers and blasters and
maintenance employees. The drillers and blasters work two 12-hour shifts beginning and
ending at 5:05 a.m. or p.m. The maintenance employees work two 12-hour shifts beginning and
ending at 6:00 a.m. or 6:00 p.m.
There is no dispute that employees use the Hallway to socialize with coworkers before,
during and after work. At the beginning of each production shift there is a short pre-shift
meeting7 of about three minutes at 6:42 a.m. or p.m. for production employees in the Yellow
Training Room where various production issues are discussed, including changes in work
assignments. Occasionally the dispatcher will tell an employee of an assignment change in the
Hallway if they cannot contact the employee in the Yellow Room. Human Resource employees
are present during the morning shift change to discuss human resources and safety issues with
production employees. The Pit Supervisor was also present during the morning shift change as
occasionally was Respondent’s President. It was admitted that the human resources
employees, Respondent’s President and Blasting Supervisor also socialized with production
employees and it was not clear how much of the conversation between production employees
and Respondent’s managers and supervisors was social conversation as opposed to work
related issues as no estimates of the number of work related conversations with employees
versus social conversation was established. Meyer, Pit and Saathoff claimed they were present
in the Hallway during the morning shift change to assess the demeanor and fitness of
employees for work by observing them.8
The Blasting Supervisor, who works from 5:00 a.m. to 1:00 p.m., briefly meets with
drilling and blasting employees in the Hallway at the shift change in the morning to discuss what
happened on the night shift. Blasters and Drillers likewise speak with each other at shift change
in the Hallway to discuss what occurred on the previous shift. No blasting takes place at night
but drilling is performed. The Blasters and Drillers speak to Respondent’s engineers in the
Hallway once every two weeks about blasting or drilling issues. Again no estimate was made of
the proportion of time the Drillers, Blasters, and Blasting Supervisor spent having conversations
about work-related issues as opposed to socializing nor was an estimate made as to how long
any conversations lasted among these employees during shift change in the Hallway. Given the
short duration of time production employees were in the Hallway between starting and quitting

4 The bulletin boards contain information including Mine Safety Health Administration
notices, general safety information, production quotas, human resource information and
employee personal notes and items for sale.
5 On a daily basis, employees drop off shift-related forms at one desk and receive their work
assignments for the day from a list at another desk.
6 Jt. Exh. 4.
7 Employees are transported to the Pit immediately after the pre-shift meeting.
8 Other than being able to detect an individual who was so inebriated as to be stumbling or
so paranoid as to be hallucinating, no expertise was established that either Meyer or Saathoff
were qualified to detect employees not fit for work merely by observing their demeanor.
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time, the time for work related discussions in the Hallway was minimal, according to dispatcher
Torres, as little as 15 minutes out of a 12-hour work day.
In about August 2006, the Union began organizing Respondent’s production employees
at the Belle Ayr mine. On about September 4, 2006, Respondent’s employees Ronald Faircloth
(Faircloth), a production technician and dispatcher and Jeff Jacobson (Jacobson), a welder and
shovel mechanic, arrived at Respondent’s main building at about 6:00 a.m., their day off work.
Both men entered the Hallway from the parking lot and began distributing union literature to
employees in the Hallway between the time clock and the entry doors from 6:00 a.m. until about
7:30 a.m. 9 The next day Faircloth and Jacobson together with Respondent’s Production
Technician, Larry Weber (Weber) on their day off returned to Respondent’s main building at
about 6p.m. and entered the Hallway through the front double doors. In the Hallway between
the time clock and the entry doors Faircloth and Jacobson again distributed the same union
literature to employees entering to go to work but before they were working. At about 6:15 p.m.,
Pit Coordinator Martinez told Faircloth and Jacobson, “You guys can’t do that.” Jacobson
replied, “We have a legal right to be here and passing out this literature.” Martinez said, “I’m
going to find out about that.” About ten minutes later Martinez returned and said, “I’m going to
have to call the sheriff.” Jacobson replied, “Go ahead. What we are doing, we have the right to
do.” The sheriff arrived and came to where Faircloth and Jacobson were located outside the
entry doors sometime after 6:45 p.m. The sheriff told Faircloth and Jacobson that they had to
leave. Jacobson said that they had a right to be there but the sheriff replied that the person
running the shift wants you to leave. You have to leave or be arrested for criminal trespass.
Accordingly, Faircloth, Jacobson and Weber left Respondent’s property.
On September 8, 2006, both Faircloth and Jacobson received disciplinary letters for
violating Respondent’s policy prohibiting distribution of written material.10
In the Hallway on about November 4, 2006, at approximately 6:10 a.m. to 6:25 a.m.
Faircloth distributed six copies of the Union’s constitution to employees entering on duty but
before work began. On November 10, 2006, Faircloth received a disciplinary letter for
distributing written material.11
At all times material herein Respondent has maintained the following rules, cited as
“Reasons for discipline” in its Technician Handbook dated April 20, 2006:12
9. Solicitation of another technician while either the person doing the
soliciting or the one being solicited is on working time.
10. Distribution of advertising material, handbills printed or written literature
of any kind in the working area.
The record reflects that in the Hallway during the last two years employees have sold
raffle tickets, candy, eggs, hard hat name tags and cookies and conducted sports pools.13

9 GC Exh. 2.
10 GC Exhs. 3 and 4.
11 GC. Exh.6.
12 Jt. Exh. 6 at 32.
13 Blasting Manager John Crawford observed an employee selling hard hat name tags in the
Hallway in the summer of 2006. No evidence was adduced establishing how long the name
tags were sold nor if Respondent prohibited their sale.
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However, with the exception of the hard hat name tags, there is no evidence that Respondent’s
supervisors or managers were present when these solicitations took place nor is there evidence
that Respondent’s supervisors or managers condoned these solicitations. Moreover, the
evidence established that when Respondent became aware of employee solicitations or sales
they were promptly halted.
B. The Alleged Violations of Section 8(a)(1)
1. The September 5, 2006 Enforcement of the No-solicitation/no-distributionRules
Paragraph 6 of the amended consolidated Complaint alleges that, on September 5,
2006, Respondent violated Section 8(a)(1) of the Act by enforcing its no-solicitation/no-
distributionrules by threatening its employees that it would call the police if they continued
distributing Union literature on Respondent’s property and by calling the police to remove
employees from its property who were distributing Union literature.
Counsel for the General Counsel contends that the situs where employees were
distributing union literature was either not a work place or was a mixed use area. Respondent
posits that the location of the Union literature distribution was primarily a work area.
In Stoddard-Quirk Manufacturing Co., 138 NLRB 615, 619-620 (1962), the Board
explained its rationale in distinguishing the different rules for in plant employee distribution of
written materials and oral solicitation. The Board balanced the employer interests in maintaining
order and avoiding hazards in its production areas caused by littering versus employee interests
in distributing written materials and found the balance in the employers’ favor noting that by their
nature written materials can effectively be disseminated in non working areas. On the other
hand oral solicitation impinges on an employer’s interests only during working time. Thus, the
Board held employer rules that nondiscriminatorily prohibit distribution of literature in working
areas are valid whereas rules that prohibit oral solicitation during non work time are invalid.
In Transcon Lines, 235 NLRB 1163 (1978), the Board refused to extend the ban on
distribution of written materials in mixed use areas. The work area in question was a drivers’
room. Before making a run, drivers came to the terminal, punched the time clock in the drivers'
room, picked up and completed necessary trip documents, read company notices and bulletins,
and waited there for the driver who would share the trip with them. Upon their return, drivers
completed travel documents and reports pertaining to their equipment, tire changes, or
accidents. While in the drivers' room, the drivers drank coffee or ate snacks from machines
provided therein, and conversed with other drivers.
Likewise in United Parcel Service, 327 NLRB 317 (1998), the Board concluded that an
employee check in area that was used by drivers to read, lounge, engage in social
conversation, and was used by supervisors to occasionally give some instructions or supplies to
drivers during the prestart period was a non work area, or at most, a mixed use area and the
employer was not privileged to ban distribution in that area.
In Santa Fe Hotel, Inc., 331 NLRB 723 (2000), the Board said that the occurrence of non
production work on its property does not allow an employer to convert its entire property into a
working area. Thus, at a hotel-casino, whose main function was to house guests and allow
them to gamble, the employer could not convert the entrances to its hotel-casino into working
areas where work functions incidental to its function, including valet parking, gardening, security
and maintenance took place. See also Meijer, Inc., 344 NLRB No. 115, slip op. at 2 (2005),
where the Board found that incidental work of employees retrieving shopping carts and assisting
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customers to load purchases into cars was not work integral to its food distribution business,
thus the customer parking lot was not a working area.
Here, Respondent’s main function is the digging, removal, sorting and distribution of
coal. This work is done primarily in the Pit and loading areas of Respondent’s Belle Ayr mine,
distant from the Hallway. It is these production areas of Respondent’s facility that the Stoddard-
Quirk line of cases apply, including the cases cited by Respondent for the proposition that its
Hallway is a working area. Uarco Inc., 286 NLRB 55 (1987); Vapor Corp., 242 NLRB 776
(1979); Timken Co., 236 NLRB 757 (1978). It is the main production areas of an employer’s
facility where the hazards of littering and maintaining order are paramount over employee
distribution of literature.
On the other hand, there is no doubt that some work incidental to Respondent’s main
function takes place in the Hallway. Like the drivers in Transcon, in addition to socializing,
eating and drinking with fellow employees, supervisors and managers, Respondent’s production
employees in the Hallway punch in and out, fill out production related paperwork and read
Respondent’s notices and bulletins. Like the drivers in United Parcel, Respondent’s supervisors
occasionally give production employees instructions and employees pick up supplies while
waiting to perform Respondent’s main function, producing coal. At best, the Hallway is a mixed
use area where both socializing and non production work, incidental to Respondent’s main
function, the production of coal, take place. Employee distribution of written materials in the
Hallway does not infringe upon Respondent’s interests in conducting an orderly non hazardous
workplace for the mining of coal.
By threatening to enforce and by enforcing its no-solicitation/no-distribution rule in a
mixed use area of its facility, Respondent violated Section 8(a)(1) of the Act as alleged in
Paragraph 6 of the Complaint.
2. The Disparate Enforcement of the No-Solicitation/No-Distribution Rules
Paragraph 7 of the amended consolidated Complaint alleges that Respondent violated
Sections 8(a)(1) and (3) of the Act by disparately enforcing its no-solicitation/no-distribution rules
in threatening to call police if employees continued to distribute Union literature and calling the
police in order to remove employees distributing union literature from its premises.
While the evidence establishes that Respondent’s employees engaged in solicitation of
other employees for raffles, sales of candy, cookies and eggs, there is no evidence, other than
the isolated example of limited sale of hard hat tags, that Respondent’s supervisors or
managers condoned theses practices. Moreover, the evidence shows that as soon as
Respondent’s management became aware of employee solicitations in the Hallway they were
curtailed immediately. Thus, I find no evidence that Respondent has disparately enforced its no-
solicitation/no-distribution rules in violation of Section 8(a)(1) and (3) of the Act as alleged in
Paragraph 7 of the Complaint. I will dismiss this portion of the Complaint.
C. The Warning Letters to Employees Faircloth and Jacobson as Alleged Violations of
Section 8(a)(3)
Paragraph 8 of the amended consolidated Complaint alleges that Respondent violated
Section 8(a)(1) and (3) of the Act by issuing warning letters to employees Faircloth and
Jacobson for violating its no-solicitation/no-distribution rules.
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There is no dispute that both Faircloth and Jacobson were issued warning letters on
September 8, 2006 and Faircloth received a warning letter on November 10, 2006, for violating
Respondent’s no distribution policy by distributing union literature to employees coming to work
in Respondent’s Hallway. Having found that Respondent cannot extend its no distribution policy
to the Hallway during non work time since it is at best a mixed use area, it follows the discipline
of Faircloth and Jacobson, who Respondent knew were engaged in union activity, violated
Section 8(a)(1) and (3) of the Act as alleged in Paragraph 8 of the Complaint. Alle-Kiski Medical
Center, 339 NLRB 361 (2003).
Conclusions of Law
On the basis of the above findings of fact and the record as a whole and Section 10(c) of
the Act, I make the following conclusions of law.
1. Respondent has been at all times material an employer engaged in commerce within
the meaning of Section 2(2), (6) and (7) of the Act.
2. The Union is, and has been at all times material, a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by enforcing a rule prohibiting
employees from distributing union literature in non work areas during non work time
by threatening its employees that it would call the police if they continued distributing
union literature on Respondent’s premises and by calling the police to have its
employees distributing union literature removed.
4. Respondent violated Section 8(a)(1) and (3) of the Act by Issuing warning letters to
employees Ronald Faircloth and Jeff Jacobson for distributing union literature in non
work areas during non work time to discourage employees from engaging in union
activities.
5. The Respondent did not otherwise violate the Act as alleged in the amended
consolidated complaint and the remaining complaint allegations will be dismissed.
Remedy
Having found that the Respondent violated the Act as set forth above, I shall order that it
cease and desist therefrom and post remedial Board notices addressing the violations found.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended14
ORDER
The Respondent Foundation Coal West, Inc., its officers, agents, successors, and
assigns, shall:

14 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended 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.
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1. Cease and desist from:
a. Enforcing a rule prohibiting employees from distributing union literature in non
work areas on non work time.
b. Issuing employees written discipline for engaging in distribution of union literature
in non work areas on non work time in order to discourage union activities.
c. Threatening employees that they will call the police or in fact calling police to
remove them in order to prevent employees from distributing union literature in
non work areas on non work time.
d. 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. Take the following affirmative action designated to effectuate the policies of the Act:
a. Within 14 days from the date of this Order, remove from its files any reference to
the unlawful written warnings issued to Ronald Faircloth and Jeff Jacobson and
within 3 days thereafter notify the employees in writing that this has been done
and that written warnings will not be used against them in any way.
b. Within 14 days after service by the Region, post at its Gillette, Wyoming
Belle Ayr mine copies of the attached notice marked “Appendix”15
Copies of the notice, on forms provided by the Regional Director for
Region 27, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent immediately 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. In the
event Respondent has gone out of business or closed any of the
facilities involved in these proceedings, the Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Respondents at any
time since September 5, 2006.
c. Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.

15 If this Order is enforced by a Judgment of the 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.”
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IT IS FURTHER ORDERED that the amended consolidated Complaint is dismissed
insofar as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. August 30, 2007
_____________________
John J. McCarrick
Administrative Law Judge
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Laor Relations Board has found that we we violated Federal Labor law and has ordered us to
obey and post this notice to employees in both English and Spanish.
FEDERAL LAW GIVES EMPLOYEES THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Chose not to engage in any of these protected activities
Accordingly, we give our employees the following assurances:
WE WILL NOT do anything that interferes with these rights.
WE WILL NOT enforce a rule that prohibits you from distributing union literature in non-work areas at non work times.
WE WILL NOT issue you written warnings for distributing union literature in non-work areas on non-work time to
discourage you from engaging in union activities.
WE WILL NOT threaten you with calling the police or in fact calling the police to remove you to prevent you from
distributing Union literature in non-work areas on non-work time.
WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights guaranteed to you by
Section 7 of the National Labor Relations Act.
WE WILL remove from our files any reference to the unlawful written warnings to Ronald Faircloth and Jeff Jacobson
for distributing union literature; and WE WILL not make reference to the permanently removed materials in response to
any inquiry from any employer, employment agency, unemployment insurance office, or reference seeker and we will
not use the permanently removed material against you.
FOUNDATION COAL WEST., INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It conducts
secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Denver, Colorado Regional office set forth below. You may also obtain information from the Board’s
website: www.nlrb.gov.
600 17th Street, 7th Floor, North Tower, Denver, Colorado 80202-5433
(303) 844-3551, Hours: 8:30 a.m. to 5:00 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED,
DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, (303) 844-6647.
THIS NOTICE AND THE DECISION IN THIS MATTER ARE PUBLIC RECORDS
Any interested individual who wishes to request a copy of this Notice or a complete copy of the Decision of which this
Notice is a part may do so by contacting the Board’s Offices at the address and telephone number appearing
immediately above.