Penn Hills Energy

National Labor Relations Board - Board Decisions

Nov 30, 1992

309 N.L.R.B. 707 (N.L.R.B. 1992)

707
309 NLRB No. 104
PENN HILLS ENERGY
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.
2 We will modify the remedy to make whole all bargaining unit
employees and the Union for losses as prescribed in Ogle Protection
Service, 183 NLRB 682 (1970), with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
3 We have modified par. 1(a) and (b) of the recommeneded Order
to more closely reflect the violations he found. The judge’s notice
listed only Penn Hills Energy, Inc. as the Employer in this case. We
have amended the notice to also include the Allen Mark Weiss Com-
pany as the Employer in this case. We have also conformed the no-
tice to the revised recommended Order to reflect the violations found
by the judge.
The recommended Order requires that Respondent post at its facil-
ity in Monroeville, Pennsylvania, copies of the attached notice
marked ‘‘Appendix.’’ However, since the Respondent closed its
Monroeville facility, we find it appropriate to order Respondent to
mail copies of the notice to the last known addresses of its employ-
ees. We shall modify the recommended Order accordingly.
Penn Hills Energy, Inc. and/or Penn Hills Energy,
Inc., Debtor-in-Possession and United Mine
Workers of America, District No. 5
Penn Hills Energy, Inc., and/or Allen Mark Weiss
Company, and/or A.M.W.C., Inc., a Single Em-
ployer and United Mine Workers of America,
District No. 5. Cases 6–CA–22558 and 6–CA–
23138
November 30, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On May 7, 1992, Administrative Law Judge Hubert
E. Lott issued the attached decision. The Respondent
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, to modify the remedy,2 and to adopt the rec-
ommended Order as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative judge and or-
ders that the Respondent, Penn Hills Energy, Inc.,
and/or Allen Mark Weiss Company, Penn Hills, Penn-
sylvania, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Substitute the following for paragraphs 1(a) and
(b).
‘‘(a) Repudiating and failing to abide by the terms
of the contract and memorandum of understanding
signed with the Union.
‘‘(b) Bypassing the Union and dealing directly with
employees over wages and hours.’’
2. Substitute the following for paragraph 2(d).
‘‘(d) Mail a copy of the attached notice marked
‘‘Appendix’’3 to each of its employees employed at
Respondent’s Monroeville facility. Copies of the no-
tice, on forms provided by the Regional Director for
Region 6, after being signed by Respondent’s author-
ized representative, shall be mailed immediately upon
receipt by the Respondent to all such employees at
their last known addresses, and additional copies shall
be posted by the Respondent upon receipt by the Re-
spondent and maintained by it for 60 days in conspicu-
ous places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent
to ensure that the notices are not altered defaced, or
covered by and other material.’’
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 repudiate and fail to abide by the
terms of the contract and memorandum of understand-
ing we signed with the Union.
WE WILL NOT bypass the Union and deal directly
with employees over wages and hours.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL make whole, with interest, all bargaining
unit employees and the Union for any loss of wages,
benefits, dues, contributions, and penalties they may
have suffered as a result of our repudiation of the 1988
National Bituminous Coal Wage Agreement as modi-
fied by the Memorandum of Understanding dated July
22, 1988. The unit is:
All production and maintenance employees em-
ployed by us at our Newfield Mine located in
Penn Hills, Pennsylvania, excluding office clerical
708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees, professional employees, guards, and
supervisors as defined in the Act.
PENN HILLS ENERGY, INC., AND/OR
ALLEN MARK WEISS COMPANY
Jo Ann F. Dempler, Esq., for the General Counsel.
Allen Mark Weiss, of Monroeville, Pennsylvania, for the Re-
spondents.
DECISION
STATEMENT OF THE CASE
HUBERT E. LOTT, Adminstrative Law Judge. This case
was tried in Pittsburgh, Pennsylvania, on August 21, 22, and
23, 1991. Charges and amended charges were filed on June
1, November 13 and December 11, 1990, and on March 26,
1991. The last consolidated amended complaint issued Au-
gust 2, 1991.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and Respondents on record ar-
gument, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Penn Hills Energy Corporation (PHE) is a Pennsyl-
vania corporation engaged in the business of coal mining.
During the 12-month period ending February 28, 1990, Re-
spondent, in the course and conduct of its business oper-
ations purchased and received at its Penn Hills, Pennsylvania
facility products, goods, and materials valued in excess of
$50,000 directly from other enterprises located within the
Commonwealth of Pennsylvania, each of which are them-
selves engaged in interstate commerce.
During the same period of time, PHE sold and shipped
from its Penn Hills, Pennsylvania facility coal valued in ex-
cess of $50,000 directly to WJM Coal Company, Inc., an en-
terprise located within the Commonwealth of Pennsylvania.
At all times material herein, WJM, a Pennsylvania cor-
poration with an office and place of business in Shelocta,
Pennsylvania, has been engaged in the purchase and nonretail
resale of coal. During a 12-month period ending February 28,
1990, WJM purchased and received coal valued in excess of
$50,000 directly from points outside the Commonwealth of
Pennsylvania.
The Company admits, and I find, that PHE is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Single Employer Issue
AMWC and Allen Mark Weiss Company are the same en-
tity, which is a Pennsylvania corporation engaged in com-
mercial construction. It was incorporated in 1987 and had an
office in Glassport, Pennsylvania. Allen Weiss held all the
corporate stock and executive offices. He did all the hiring
and negotiated labor agreements with the construction unions
for his 5 to 20 employees. Reporting directly to Weiss was
Construction Foreman Bart Yeager. Betty Ann Betz handled
the office clerical duties as office manager.
In December 1987, Weiss sought to acquire the Newfield
Mine located in Verona, Pennsylvania. At that time the mine
was owned by LTV Steel. In December 1986, LTV had
ceased production and laid off all its 130 bargaining unit em-
ployees who were represented by the United Mine Workers
of America, Local 6132 under the 1984 National Bituminous
Coal Wage Agreement. The employees continued their mem-
bership in the Union by paying reduced union dues.
Weiss, in his efforts to acquire the mine, contacted Robert
Black, who had been a longtime supervisor at the Newfield
Mine. Black acted as a consultant for Weiss until his unem-
ployment compensation expired in June 1988. Thereafter,
Weiss hired Black as a laborer working for AMWC while he
(Black) assisted in acquiring the mine.
As part of the acquisition process, Weiss, on July 22,
1988, signed the National Bituminous Coal Wage Agreement
with District 5 of the United Mine Workers of America on
behalf of AMWC. The agreement is effective from February
2, 1988, to February 2, 1993. At the same time the parties
also signed a memorandum of understanding granting certain
waivers of pension, benefit contributions, and vacation days.
From September 1988 to March 17, 1989, Black worked
as a mine consultant at $2500 per month paid by AMWC to
assist in securing permitting and financing for the mine oper-
ation. He worked out of AMWC’s Glassport office, using
AMWC’s clerical employees. He represented to others that
he was acting on behalf of PHE and used AMWC’s business
address and telephone number when dealing with third par-
ties. AMWC’s letterhead includes the words, ‘‘Coal Min-
ing.’’
Penn Hills Energy, Inc. was incorporated in Pennsylvania
in April 1988 to operate the Newfield Mine. Weiss became
president of the corporation and Black became vice president
and secretary. Weiss was the sole shareholder.
On March 17, 1989, PHE acquired the Newfield Mine
from LTV. Shortly thereafter, Weiss closed AMWC’s
Glassport office and moved the office furniture and equip-
ment to the mine site. AMWC’s files were also transferred
to the mine office which became AMWC’s business address
for receiving mail and telephone calls. At this same time
Weiss shut down AMWC’s construction business so that he
could devote full time to managing the mine.
Equipment used underground by PHE was the same as
that utilized by LTV. However, the equipment used above
ground was leased from AMWC. This equipment included a
backhoe, dozer, loader, dump trucks, pickup trucks, flatbed
trucks, car, compressors, crane, compactor and crane. Weiss
admitted that AMWC did not bill PHE for the use of office
space and there was no evidence offered that AMWC billed
PHE for office equipment and furniture. Weiss and Betz tes-
tified that they had no knowledge about such matters.
Weiss further testified that AMWC leased the above
ground equipment to PHE. No lease agreements were pro-
duced by Weiss nor for that matter were any pertinent sub-
poenaed documents produced by Weiss. Bankruptcy records
indicate that PHE owed $207,000 to AMWC apparently for
equipment rental. Weiss testified that PHE paid AMWC only
$2000 or $3000 during the entire time the mine operated.
709PENN HILLS ENERGY
1 After the mine closed, the Union requested and received from
Respondent a summary of money owed to employees for wages, ac-
crued hours, clothing allowance, and payment in lieu of health insur-
ance (G.C. Exh. 23).
After the mine opened, Weiss became manager and Black
was mine superintendent. Bart Yeager became outside fore-
man and Betz was office manager.
As mine manager and owner, Weiss made all the final de-
cisions relating to wages, hours, grievances, and collective
bargaining. He represented PHE in all the above matters and
in fact signed the same collective-bargaining agreement and
memorandum of understanding with the United Mine Work-
ers of America as president of PHE, backdating them to July
22, 1988, to satisfy the Union’s Health and Welfare Fund’s
requirements that hours and contributions be credited to the
correct account. He also made all corporate decisions. Black
had no independent decision-making authority. Apparently no
corporate meetings were held and no minutes were kept.
The mine initially began operations with five salaried em-
ployees and eventually reached a peak of 56 bargaining unit
employees who were hired from the United Mine Workers
recall panel. From February to May 1989, AMWC advanced
$27,200 to PHE and Allen Weiss advanced PHE $14,000 to
meet payroll. Black testified that his first two paychecks
were drawn on AMWC’s account.
On October 30, 1989, PHE filed a voluntary petition under
Chapter 11 of the Bankruptcy Code. At that time PHE had
the option of petitioning the court to cancel the collective-
bargaining agreement which it did not exercise. On Septem-
ber 12, 1990, the Bankruptcy Court dismissed PHE’s petition
thus returning the mine to its former status. As Weiss testi-
fied, PHE returned to status quo ante.
On June 29, 1990, the mine closed. The heavy equipment
was removed to a Weiss Brothers construction site in West
Virginia. Weiss claims Weiss Brothers Construction Com-
pany, Inc. is now owned solely by his brother. Weiss testi-
fied that AMWC is still in business but that it has no con-
tracts.
Analysis and Conclusions
On all critical elements of evidence, I discredit the testi-
mony of Allen Weiss because he testified that he lacked
knowledge of the financial affairs of AMWC and PHE when,
in fact, he was the owner and manager of both companies.
Furthermore, he failed to produce relevant subpoenaed docu-
ments which would have shed light on the single employer
issue. Therefore, I will presume that had the documents been
tendered, they would have supported General Counsel’s alle-
gation that AMWC and PHE corporation are a single em-
ployer. Moreover Weiss offered no rebuttal evidence other
than general denials.
Relying on the evidence of General Counsel’s witnesses,
Weiss’ admissions and bankruptcy documents, I find that
AMWC and Penn Hills Energy Corporation are one and the
same Employer. Both companies share common ownership
and control. Both companies had common management and
shared the same corporate office. Furthermore the labor rela-
tions policies and practices for both companies were con-
trolled by the same person, Allen Weiss. In fact Weiss
signed a collective-bargaining agreement for PHE as presi-
dent of AMWC. Finally there was an interrelation of oper-
ations. Both companies shared the same common premises
and both Weiss and Black, while attempting to acquire the
mine operation were employed by AMWC. When the mine
opened all the AMWC management personnel were em-
ployed by PHE and up until May 1989 were paid by
AMWC. It is also noteworthy that when the mine opened on
March 17, 1989, AMWC ceased doing business and there-
fore had no employees. Under these circumstances, I find
that both companies hired and employed the employees that
worked in the mine and both companies engaged in coal
mining. There is also evidence of interchange of equipment.
When the mine opened all the AMWC construction equip-
ment was transferred to PHE corporation with no lease
agreement and at virtually no cost to PHE.
I further find that there was a total lack of arms length
transactions between AMWC and PHE for ‘‘leased’’ equip-
ment, office furniture and equipment and wages. I also find
that both companies held themselves out to be a single em-
ployer through the AMWC letterhead and the collective-bar-
gaining agreement signed by Allen Weiss.
Accordingly, I find that AMWC and PHE corporation are
a single employer and as such are jointly and severely liable
for any debts owed by either company.
B. Direct Dealing
Former mine employees Charles Hackenberry and Don
Hecker testified that from December 1, 1989, to June 29,
1990, Weiss and Black periodically met with employees in
an effort to negotiate wage and hour concessions. Hecker
told Weiss he couldn’t meet with employees over wages.
United Mine Workers Representative Kenneth Horcicak testi-
fied that he told Weiss many times that he had no right to
negotiate directly with the employees.
Robert Black admits that he and Weiss met with employ-
ees in an attempt to negotiate concessions on wages and
hours and that these employee meetings were not discussed
with the Union Mine Committee beforehand.
Analysis and Conclusions
Based on the evidence which is not denied, I find that Re-
spondent bypassed the Union and dealt directly with employ-
ees over wages and hours in violation of Section 8(a)(5) and
(1) of the Act.
C. Contractual Obligations
I find that when the mine closed on June 29, 1990, Re-
spondents had a valid collective-bargaining agreement with
the United Mine Workers of America. It is undisputed or ad-
mitted that Penn Hills energy corporation defaulted on the
following contractual obligations:
1. Wages for the last two pay periods.
2. Overtime wages—employees had worked two
hours of overtime, per day and had been assured of
payment. This overtime is recorded on PHE records as
accrued hours.1
3. Clothing allowance—the clothing allowance for
1990 was $180. Of that amount only $10 was paid.
4. Health benefits
The collective-bargaining agreement required Respondent
to provide a level of coverage equivalent to the United Mine
710 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 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.
Workers benefit plans but permitted the employer to pur-
chase its own coverage. Extended coverage was to be pro-
vided to employees after layoff based upon the number of
hours worked before layoff.
From September to December 1989 PHE had coverage
through Blue Cross/Blue Shield. This coverage was canceled
for nonpayment of premiums and some employees were left
with unpaid medical bills which Weiss assured would be
paid but never were.
Beginning January 1, 1990, Respondent had a modified
self-funded group health plan through Jefferson National Life
Insurance Company and Diversified Group Administrators
who received and processed employee claims. Effective July
1, 1990, both Jefferson and Diversified canceled their agree-
ments with Respondent for nonpayment of premiums and the
unpaid claims were returned to the employees for payment.
After their layoff on June 29, 1990, employees had no ex-
tended coverage.
Those employees who chose not to participate in the Re-
spondent’s group health plan were paid $100 per month.
However, when the mine closed, the final monthly payment
was not made.
5. Sick and Personal Leave—employees were not
paid for unused sick or personal leave in accordance
with the contract.
6. Regular Vacation—employees were not paid for
regular vacation, including unused regular vacation in
accordance with the contract.
7. Graduated Vacation—employees were not paid for
graduated vacation in accordance with the contract as
modified by the Memorandum of Understanding.
8. Floating Vacation—employees were not paid for
floating vacation in accordance with the contract.
9. Dues—Although dues and assessments were with-
held from employees pay, they were not remitted to the
Union with the exception of the first months dues for
new employees.
10. Pension and Retirement—Contributions to the
Union’s pension and retirement funds were never made
in accordance with the contract provisions as modified
by the Memorandum of Understanding. These contribu-
tions are limited to six months prior to filing the
amended charge on June 1, 1990. Furthermore, the con-
tractual penalty for cessation of operations was never
paid to the Union.
CONCLUSIONS OF LAW
1. AMWC (Allen Mark Weiss Company) and Penn Hills
Energy, Inc. are a single employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondents violated Section 8(a)(5) and (1) of the Act
by repudiating and failing to abide by the terms of the 1988
National Bituminous Coal Wage Agreement and the memo-
randum of understanding which were signed by the parties.
3. AMWC (Allen Mark Weiss Company) and Penn Hills
Energy, Inc. are jointly and severely liable for all wages,
benefits, dues contributions, and penalties due and owing
under the 1988 National Bituminous Coal Wage Agreement
and the memorandum of understanding signed by the parties.
4. United Mine Workers of America, District No. 5 is a
labor organization within the meaning of Section 2(5) of the
Act.
5. All production and maintenance employees employed
by Respondents at their Newfield mine located in Penn Hills,
Pennsylvania, excluding office clerical employees, profes-
sional employees, guards and supervisors as defined in the
Act constitute a unit appropriate for collective bargaining
within the meaning of Section 9(b) of the Act.
6. Respondents violated Section 8(a)(5) and (1) of the Act
by negotiating with its employees instead of the Union over
bargainable issues.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
As a remedy, I shall recommend Respondents make whole
all bargaining unit employees and the Union for any loss
they may have suffered as a result of Respondents repudi-
ation of the 1988 National Bituminous Coal Wage Agree-
ment as modified by the memorandum of understanding
dated July 22, 1988. This includes any loss of wages, bene-
fits, dues contributions, and penalties with interest computed
in accordance with current Board law.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, AMWC and Penn Hills Energy, Inc.,
Monroeville, Pennsylvania, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to pay moneys owed under the 1988 National
Bituminous Coal Wage Agreement as modified by the
memorandum of understanding dated July 2, 1988.
(b) Negotiating directly with employees instead of the
Union.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make whole, with interest in the manner set forth in
the above section entitled the remedy, all bargaining unit em-
ployees and the Union for any loss of wages, benefits, dues,
contributions, and penalties they may have suffered as a re-
sult of Respondent’s repudiation of the 1988 National Bitu-
minous Coal Wage Agreement as modified by the memoran-
dum of understanding dated July 22, 1988.
(b) Negotiate only with the Union over wages, hours, and
conditions of employment.
711PENN HILLS ENERGY
3 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.’’
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay and other payments due under the terms
of this Order.
(d) Post at its facility in Monroeville, Pennsylvania (or any
other facility maintained by Respondent), copies of the at-
tached notice marked ‘‘Appendix.’’3 Copies of the notice, on
forms provided by the Regional Director for Region 6, 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, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.