Harlan #4 Coal Co.

National Labor Relations Board - Board Decisions

Sep 18, 1972

199 N.L.R.B. 104 (N.L.R.B. 1972)

104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harlan #4 Coal Company and United Mine Workers
of America . Case 9-CA-6829
September 18, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS , AND KENNEDY
Upon a charge filed on February 22, 1972, by
United Mine Workers of America, herein called the
Union, and duly served on Harlan #4 Coal Compa-
ny, herein called the Respondent, the General Coun-
sel of the National Labor Relations Board, by the
Regional Director for Region 9, issued a complaint on
March 29, 1972, against Respondent, alleging that
Respondent had engaged in and was engaging in un-
fair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6)
and (7) of the National Labor Relations Act, as
amended. Copies of the charge, complaint, and notice
of hearing before a Trial Examiner were duly served
on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on November 15,
1972, following a Board election in Case 9-RC-8432
the Union was duly certified as the exclusive collec-
tive-bargaining representative of Respondent's em-
ployees in the unit found appropriate;' and that,
commencing on or about November 30, 1971, and
more particularly by a written letter to the Union on
or about December 10, 1971, and at all times thereaf-
ter, Respondent has refused, and continues to date to
refuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the Un-
ion has requested and is requesting it to do so. On
April 6, 1972, Respondent filed its answer to the com-
plaint admitting in part, and denying in part, the alle-
gations of the complaint.
On June 8, 1972, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on June 13, 1972, the Board
issued an order transferring the proceeding to the
Board and a Notice To Show Cause why the General
Counsel's Motion for Summary Judgment should not
be granted. Respondent thereafter filed, as a response
to Notice To Show Cause, a Motion in Opposition to
the General Counsel's Motion for Summary Judg-
ment.
Pursuant to the provisions of Section 3(b) of the
'Official notice is taken of the record in the representation proceeding,
Case 9-RC-8432, as the term "record" is defined in Secs. 102.68 and 102
.69(f) of the Board's Rules and Regulations , Series 8, as amended . See LTV
Electrosystems, Inc., 166 NLRB 938, enfd . 388 F.2d 683 (C.A. 4, 1968);
Golden Age Beverage Co., 269 F.Supp . 573 (D.C. Va., 1967); Follett Corp., 164
NLRB 378, enfd . 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA.
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and opposition in
response to the General Counsel's Motion for Sum-
mary Judgment, Respondent contends, in effect, that
the unit is inappropriate, that the Regional Director
erroneously overruled its objections in the representa-
tion case and improperly and unlawfully certified the
Union. The General Counsel contends that since the
Respondent is attempting to relitigate issues which
were or could have been litigated and decided in the
representation proceeding, and which therefore may
not be relitigated here, he is entitled to Summary
Judgment as a matter of law. We agree.
The record in Case 9-RC-8432-reflects that, pur-
suant to the Regional Director's Decision and Direc-
tion of Election, an election was conducted on May
28, 1970, among the production and maintenance em-
ployees working at and around the Respondent's coal
mines and those of its K.O.K. Coal Company divi-
sion. The Union failed to receive a majority and,
thereafter, filed timely objections. The Regional Di-
rector, on October 7, 1970, issued his Supplemental
Decision, Order Directing Hearing, and Notice of
Hearing, overruling the Union's Objections 2 and 3
and ordering a hearing with respect to Objection 1,
which, in substance, alleged that the Respondent in-
timidated and coerced its employees with threats of
plant closure and with statements that the Union
would cause, and had forced, small mines to go out
of business. After a hearing, the Hearing Officer, on
February 23, 1971, issued his Report on Objections to
Election in which he recommended that the election
of May 28, 1970, be set aside. Thereafter, Respondent
timely filed with the Regional Director exceptions to
the Hearing Officer's Report.
In his Second Supplemental Decision, Order and
Direction of Second Election of March 12, 1971, the
Regional Director affirmed the Hearing Officer's rul-
ings and directed a second election. Thereafter, the
Respondent filed a Request for Review which the
Board, in a telegraphic response, dated April20, 1971,
denied as it raised no substantial issues warranting
review.
On May 5, 1971, the Respondent filed a motion
to amend the Regional Director's Second Supplemen-
tal Decision, requesting him (a) to determine a new
unit or different collective-bargaining units in the
light of changed conditions and circumstances, in-
cluding the closing of one coal mine and the opening
199 NLRB No. 15
HARLAN# 4 COAL'COMPANY
of another, called K.O.K. Company Coal Mine No. 2
and (b) to direct a new date for the Respondent to
provide a list of names and addresses of employees
eligible to vote. Thereafter, on June 22, 1971, the Re-
gional Director stayed the second election and direct-
ed a hearing on the substantial and material issues
raised by the Respondent's motion with respect to the
appropriate bargaining unit and employee eligibility
at the new mine.
After a consolidated hearing,2 the Regional Di-
rector, on August 5, 1971, issued his Decision, Order
and Amended Direction of Second Election in which,
inter alia, the Southern Labor Union was permitted to
intervene and have its name placed on the ballot in
the second election directed in Case 9-RC-8432, and
the appropriate unit was amended to describe specifi-
cally the three K.O.K. mines.
In the election conducted on September 23, 1971,
the Union received a majority of the votes cast. The
Respondent, thereafter, filed timely objections to the
election alleging, in substance, that (1) the Union gave
the impression of surveillance of the voters, (2) the
Union made material misrepresentations concerning
the wage freeze, (3) the Union disseminated false in-
formation that the Respondent had coerced and in-
timidated its employees, and (4) the ballot's provision
for a "neither" vote was misleading. In his Supple-
mental Decision and Certification of Representative
of November 15, 1971, the Regional Director de-
termined that the objections raised no substantial or
material issues requiring the election to be set aside
and certified the Union as the exclusive bargaining
representative of the employees in the appropriate
unit.
A timely Request for Review of the Regional
Director's action was filed by the Respondent alleg-
ing, in substance, that he erred in overruling the objec-
tions and in his unit determination. The Board, in a
telegraphic response dated February 2, 1972, denied
the request as it raised no substantial issues warrant-
ing review.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding alleg-
ing a violation of Section 8(a)(5) is not entitled to
relitigate issues which were or could have been litigat-
ed in a prior representation proceeding.'
All issues raised by the Respondent in this pro-
ceeding were or could have been litigated in the prior
z On June 21 , 1971, the Southern Labor Union, Local No. 325, filed a
petition in Case 9-RC-9124 seeking to represent a unit of employees at the
Respondent 's new mine , K 0 K No. 2. This case was consolidated for hear-
m7 & with the instant Case 9-RC-8432
See Pittsburgh Plate Glass Co. v N LR.B, 313 U.S. 146, 162 (1941); Rules
and Regulations of the Board , Secs 102.67(f) and 102 69(c)
105
representation proceeding, and the Respondent does
not offer to adduce at a hearing any newly discovered
or previously unavailable evidence, nor does it allege
that any special circumstances exist herein which
would require the Board to reexamine the decision
made in the representation proceeding. We therefore
find that the Respondent has not raised any issue
which is properly litigable in this unfair labor practice
proceeding.4 We shall, accordingly, grant the Motion
for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent is a Tennessee corporation with its
principal offices and place of business located at or
near Alva, Kentucky, where it is engaged in coal min-
ing operations. During the past 12 months, which is
representative period, Respondent sold and shipped
coal valued in excess of $50,000 in interstate com-
merce, directly from its coal mining operations in
Kentucky to points outside the State of Kentucky.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material herein,
an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert juris-
diction herein.
II THE LABOR ORGANIZATION INVOLVED
United Mine Workers of America is a labor or-
ganization within the meaning of Section 2(5) of the
Act.
In its answer to the complaint, Respondent claims insufficient informa-
tion to either affirm or deny that the Union is a labor organization However,
this issue was raised and determined in the underlying representation case
and is not litigable herein. In its answer , the Respondent denies refusing to
bargain although it admits that on or about November 29, 1971, and contin-
uing to date , the Union has requested the Respondent to bargain Attached
to the Motion for Summary Judgment are (I) Exh . E, a letter dated December
10, 1971, signed by William Conley, president of Respondent to William
Turnblazer, president of the Union, replying to the Union 's bargaining re-
quest of November 29, 1971, and advising that a request for review had been
filed with the Board and suggesting that the Union contact the Respondent
again after the Board had ruled, and (2) Exh H, a letter dated March 2, 1972,
from Respondent 's President Conley to Union's President Turnblazer re-
plying to the Union 's request of February 4, 1972, to negotiate a contract
(Exh. G), and stating that a serious issue exists as to the Union's certification
We agree with the General Counsel that this correspondence clearly and un-
equivocally shows the Respondent 's continuing refusal to honor the Union's
requests to bargain In its response to the Notice To Show Cause, the Respon-
dent neither alludes to nor controverts these letters Accordingly, the truth
of the factual allegations of the complaint concerning the refusal to bargain
stands admitted by the uncontroverted factual averments in the General
Counsel's Motion for Summary Judgment . See Davis Sales Co, 195 NLRB
No. 85.
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent con-
stitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All production and maintenance employees
working in and around the coal mines of the Harlan
#4 Coal Company and its K.O.K. No. 1, K.O.K. No.
2, and K.O.K. No. 3 division mines located in and
around Alva, Kentucky; but excluding all office cleri-
cal employees, professional employees, guards, and
supervisors as defined in the Act.
2. The certification
On September 23, 1971, a majority of the em-
ployees of Respondent in said unit, in a secret ballot
election conducted under the supervision of the Re-
gional Director for Region 9, designated the Union as
their representative for the purpose of collective bar-
gaining with the Respondent. The Union was certified
as the collective-bargaining representative of the em-
ployees in said unit on November 15, 1971, and the
Union continues to be such exclusive representative
within the meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's Refusal
Commencing on or about November 29, 1971,
and at all times thereafter, the Union has requested
the Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about December 10, 1971, and contin-
uing at all times thereafter to date, the Respondent
has refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representative
for collective bargaining of all employees in said unit.
Accordingly, we find that the Respondent has,
since December 10, 1971, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit , and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1) of
the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its operations
described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
V THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we shall
order that it cease and desist therefrom , and, upon
request , bargain collectively with the Union as the
exclusive representative of all employees in the appro-
priate unit , and, if an understanding is reached, em-
body such understanding in a signed agreement.
In order to insure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certification
as beginning on the date Respondent commences to
bargain in good faith with the Union as the recogniz-
ed bargaining representative in the appropriate unit.
See Mar-Jac Poultry Company, Inc., 136 NLRB 785;
Commerce Company d/b/a Lamar Hotel, 140 NLRB
226, 229, enfd . 328 F .2d 600 (C.A. 5), cert. denied 379
U.S. 817; Burnett Construction Company, 149 NLRB
1419, 1421, enfd . 350 F.2d 57 (C.A. 10).
The Board, upon the basis of the foregoing facts
and the entire record , makes the following:
CONCLUSIONS OF LAW
1. Harlan #4 Coal Company is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. United Mine Workers of America is a labor
organization within the meaning of Section 2(5) of the
Act.
3. All production and maintenance employees
working in and around the coal mines of the Harlan
#4 Coal Company and its K.O.K. No. 1, K.O.K. No.
2, and K.O.K. No. 3 division mines located in and
around Alva, Kentucky; but excluding all office cleri-
cal employees , professional employees , guards, and
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since November 15, 1971, the above-named
labor organization has been and now is the certified
and exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about December 10, 1971,
HARLAN# 4 COAL COMPANY 107
and at all times thereafter, to bargain collectively with
the above-named labor organization as the exclusive
bargaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
5 In the event that 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."
APPENDIX
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent, Harlan
#4 Coal Company, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and condi-
tions of employment with United Mine Workers of
America as the exclusive bargaining representative of
its employees in the following appropriate unit:
All production and maintenance employees
working in and around the coal mines of the Harlan
#4 Coal Company and its K.O.K. No. 1, K.O.K. No.
2, and K.O.K. No. 3 division mines located in and
around Alva, Kentucky; but excluding all office cleri-
cal employees, professional employees, guards, and
supervisors as defined' in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other terms
and condition of employment, and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its place of business and coal mines
and division coal mines located in and around Alva,
Kentucky, copies of the attached notice marked "Ap-
pendix.", Copies of said notice, on forms provided by
the Regional Director for Region 9, after being duly
signed by Respondent's representative, shall be post-
ed by Respondent immediately upon receipt thereof,
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with United
Mine Workers of America as the exclusive repre-
sentative of the employees in the bargaining unit
described below.
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, upon request, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wages,
hours, and other terms and conditions of employ-
ment, and, if an understanding is reached, em-
body such understanding in a signed agreement.
The bargaining unit is:
All production and maintenance employ-
ees working in and around the coal mines of
the Harlan #4 Coal Company and its K.O.K.
No. 1, K.O.K. No. 2, and K.O.K. No. 3 divi-
sion mines located in and around Alva, Ken-
tucky; but excluding all office clerical
employees, professional employees, guards,
and supervisors as defined in the Act.
HARLAN #4 COAL COMPANY
(Employer)
Dated By
(Representative) (Title)
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is an official notice and must not be defaced Any questions concerning this notice or compli-
by anyone. ance with its provisions may be directed to the
This notice must remain posted for 60 consecu- Board's Office, Federal Office Building, Room 2407,
tive days from the date of posting and must not be 550 Main Street, Cincinnati, Ohio 45202, Telephone
altered, defaced, or covered by any other material. 513-684-3686.