Reading Antheracite Co.

National Labor Relations Board - Board DecisionsJan 18, 1985

273 N.L.R.B. 1502 (N.L.R.B. 1985)

1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reading Anthracite Company and United Mine Workers of America. Case 4-CA-13877 18 January 1985 DECISION AND ORDER REMANDING BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 3 April 1984 Administrative Law Judge Joel A. Harmatz issued the attached decision. The Re- spondent filed exceptions and a supporting brief; the Charging Party filed cross-exceptions and a brief in support of its cross-exceptions and in oppo- sition to the Respondent's exceptions; the General Counsel filed a brief in support of the judge's deci- sion and in answer to the Respondent's exceptions; and the Respondent filed an answer to the Charg- ing Party's cross-exceptions. The Board has considered the decision and the record in light of the exceptions and briefs and makes the following findings. Following the hearing, but before the issuance of the judge's decision, the Respondent moved that the judge disqualify himself from the instant pro- ceeding on the grounds that the record reflects statements by him which demonstrate hostility, bias, and prejudice towards the Respondent and prejudgment of the merits of the case. In his deci- sion the judge denied the Respondent's motion as "plainly lacking in merit" based on his findings, contained in a separate report which he included as an exhibit in the record, of "misconduct" by the Respondent's attorney in filing the motion to dis- qualify.' The judge further found, on the merits, that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to furnish relevant infor- mation requested by the Union concerning the Re- spondent's leasing out of coal lands. After carefully reviewing the entire record, we find merit in the Respondent's contentions that the judge appeared to prejudge the merits of the case and exhibited hostility, bias, and prejudice towards the Respondent. As the Board stated in Indianapo- lis Glove Co., 2 and recently reaffirmed in Dayton Power & Light Co.:3 ' The attorney who filed the motion to disqualify did not represent the Respondent at the hearing The Respondent subsequently filed with the Board a response to the charges of misconduct and a motion to strike the judge's report from the record The General Counsel filed a position letter stating that the Board should reject the judge's recommendation of disciplinary action against the Respondent's counsel The judge thereafter filed a supplemental report in response to the Respondent's motion to strike For the reasons set forth in this decision, we grant the Respond- ent's motion to strike, and, sua sponte, further strike the judge's supple- mental report 2 88 NLRB 986 (1950) 3 267 NLRB 202 (1983) [I]t is essential not only to avoid actual partial- ity and prejudgment . . . in the conduct of Board proceedings, but also to avoid even the appearance of a partisan tribunal.4 Here it appears that the judge made statements throughout the hearingâ€”from as early as during the direct examination of the first witnessâ€”to the effect that the Union had a statutory right to the requested information, thereby giving the impres- sion that he had prejudged the ultimate issue in the case. 5 Moreover, when the Respondent's counsel was attempting to elicit evidence as to the nature of the operations of the Respondent's lessees, the judge stated to counsel for the General Counsel, "I would appreciate it if counsel would maintain a reasonably militant posture with respect to the rel- evance of this material." Further, the judge made several comments to the Respondent's attorney that are particularly troublesome because of their serious accusations and hostile tone, such as when the judge told the Respondent's attorney that he would be "suborning perjury" if he attempted to ask certain questions of his witness, whereupon counsel was impelled to make an offer of proof with respect to that inquiry. With regard to the judge's report recommending that the Board take disciplinary action against the Respondent's attorney for his "contemptuous and unethical conduct" in filing the motion to disquali- fy and the judge's supplemental report reaffirming his charges of misconduct, we firmly reject any 4 88 NLRB at 987, 267 NLRB 202 See also Center for United Labor Action, 209 NLRB 814 (1974), Better Monkey Grip Co, 113 NLRB 938 (1955) 5 For example, during the judge's examination of the General Coun- sel's witness, Union President Semko, after Semko stated, "We have the right to it [the leasing information] under the agreement, right," the judge responded, "Not only do you have the right, you have the respon- sibility Later, during the Respondent's cross-examination of Semko, the judge Interrupted to state [W]hat they are attempting to do in this proceeding is to verify that information and they have a perfect right under the law to do SO The obligation of a signatory contractor under this agree- ment couldn't be expressed more clearly than is set forth in subpara- graph (g) of Article 2 In a further dialogue with the Respondent's counsel, the judge stated, "All they have to do is suspect that their contract is being violated and they have a right to request information to protect the interests of the working people who are the beneficiaries of this agreement" A short while later he asked, presumably rhetorically, "What is wrong in giving a little information if It doesn't hurt to give it?" Finally, during the Respondent's examination of its own witness, Em- ployer Vice President Ulmer, the judge stated As far as I'm concerned, the unions have a right to see the leases, to examine what they cover, and to all the other information to assure themselves that there is no violation of the collective-bargain- ing agreement and They don't have to take your word for it They are entitled to see the business records They are entitled to see what is beyond dispute, i e, the identity of your shareholders, the identity of your managers, the identity of your directors 273 NLRB No. 187 READING ANTHRACITE CO 1503 such recommendation and express our disapproval of the judge's reports. Particularly where, as here, the attorney's motion to disqualify and the support- ing brief are based entirely on the contents of the official record, even the suggestion of discipline for filing such a motion necessarily would have an in- hibiting effect on the attorney's duty to represent the best interests of his client in this or any future Board proceeding. Further, we find no basis for the judge's characterization of the Respondent's motion to disqualify the judge as "contemptuous" or "unethical" or, as the judge viewed it, as a per- sonal attack on the judge which was designed ulti- mately to obstruct Board processes. Accordingly, we find that the judge's reports recommending dis- ciplinary action against the Respondent's attorney were without justification and in the circumstances here were improper, and we strike them from the record. When the judge's conduct is considered as a whole, both his on-the-record conduct and his issu- ing reports on misconduct, there are sufficient grounds for finding that the judge, at the very least, gave the appearance of partiality and pre- judgment sufficient to warrant his disqualification from the case. Accordingly, in fairness to the par- ties, and in order to effectuate the purposes of the Act, we shall set aside the judge's decision and remand this proceeding to the Chief Administrative Law Judge for a hearing de novo before a different administrative law judge duly designated by him, who shall prepare and serve on the parties a deci- sion containing findings of fact, conclusions of law, and recommendations with respect to the unfair labor practices alleged in the complaint herein. ORDER It is ordered that the administrative law judge's decision of 3 April 1984 is set aside. IT IS FURTHER ORDERED that a hearing de novo be held before a different administrative law judge for the purpose of receiving evidence on the issues raised by the allegations of the complaint. IT IS FURTHER ORDERED that, upon conclusion of the hearing, the administrative law judge shall prepare and serve on the parties a decision contain- ing findings of fact, conclusions of law, and recom- mendations based on the evidence received and that, following service of such decision on the par- ties, the provisions of Section 102.46 of the Board's Rules and Regulations shall be applicable. DECISION STATEMENT OF THE CASE JOEL A HARMATZ, Administrative Law Judge. This matter was heard in Pottsville, Pennsylvania, on January 9, 1984, upon an unfair labor practice charge filed on July 29, 1983, and a complaint issued on September 14, 1983, alleging that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to furnish requested infor- mation necessary and relevant to the Union's perform- ance_of its function as .exclusive bargaining representative of employees in the appropriate collective-bargaining unit. In its duly filed answer, Respondent denies that any unfair labor practices were committed Following close of the hearing, briefs were filed on behalf of the General Counsel, the Charging Party, 1 and Respondent.2 On the entire record in this proceeding, and after care- ful consideration of the postheanng briefs, I make the following FINDINGS OF FACT I. JURISDICTION Respondent is a Pennsylvania corporation with a main office located in Pottsville, Pennsylvania, from which it is engaged in the strip-mining, processing, and sale of an- thracite coal Respondent is a member of the Anthiacite Operators, an employer association which represents em- ployer-members in negotiating and administering collec- tive-bargaining agreements with the Charging Party. Members or a member of the Anthracite Operators has sold and shipped products valued in excess of $50,000 di- rectly to points outside the Commonwealth of Pennsyl- vania. The complaint alleges, the answer admits, and it is found that Respondent is, and has been at all times mate- 1 A posthearing brief filed on behalf of the Charging Party was over the signature of Attorney Randall Vehar, whose appearance was verified by mail and subsequently entered For reasons set forth below, the Charging Party's "Opposition to Respondent's Motion to Disqualify Ad- ministrative Law Judge" is stricken 2 The brief of the Respondent was over the signature of Richard S Meyer, an attorney, who did not attend the hearing Pursuant to formal correspondence with Meyer, his appearance is noted At his request, the record is reopened to receive a letter from me, dated February 27, 1984, and marked AUJ Exh 1 and Meyer's response of March 2, 1984, marked AUJ Exh 2 Meyer also filed a "Motion to Disqualify Administrative Law Judge," alleging that I "demonstrated hostility, bias and prejudice toward Reading Anthracite Company and prejudged the case" and on that basis requesting "the proceeding to be heard de novo before a new administrative law judge " These latter charges raise fundamental issues concerning the competence, fitness, and integrity of an administrative law judge The relief sought is plainly calculated to prolong resolution of the instant controversy Despite their gravity, said allegations are so baseless as to suggest possible malice as well as an intent deliberately to impede Board processes The motion has been analyzed fully in an independent report Issued simultaneously herewith and filed by me with the Executive Secretary of the National Labor Relations Board for further investigation and appropriate action pursuant to Sec 102 44(b) of the National Labor Relations Board Rules and Regulations Findings therein are deemed a part of this record and it is received in evidence as AU J Exh 3 Upon request of Meyer it shall be attached to this decision as an .!'Appendix" and published [omitted from publication] Needless to say, the motion to disqualify is denied as plainly lacking in merit Respondent on March 12, 1984, outside the due date, filed a "Reply Brief" The General Counsel and the Charging Party urge that said docu- ment be stricken They correctly observe that such filings are not author- ized by the Board's Rules and Regulations For this reason, reply briefs customarily are rejected at this level Accordingly, neither the belatedly filed "Reply Brief" nor the Charging Party's "Opposition" referred to above has been considered herein 1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rial herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and it is found that United Mine Workers of America is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The material facts in this case are simple and beyond dispute Respondent, as a member of the Anthracite Op- erators, is bound to a multiemployer collective-bargain- ing agreement, executed on June 1, 1981, and scheduled to expire on June 1, 1984 3 On the face of that agree- ment, Respondent, as a signatory, is obligated to apply the terms and standards thereof to employees engaged in "the production, preparation, processing and cleaning of coal from deep mining operations, strip operations, and refuse banks."4 In addition, Respondent has agreed, as a member of the employer association and party to the contract, that it "will not lease out any coal lands for the purpose of avoiding the application of this agreement "5 On May 2, 1983, the Union wrote Respondent request- ing information bearing upon the latter's practice of leas- ing lands for the mining of coal, stating as follows. In order to insure compliance with certain por- tions of our collective bargaining agreement, we are requesting that you provide the following informa- tion: (1) A description of all anthracite coal lands lo- cated within District 25 that Reading Anthracite Company has leased out or during the terms [sic] of this Agreement intends to lease out. (2) Specifically identify the leases, the date the leases were let, and whether or not the United Mine Workers of America was previously notified of this lease (3) Please provide copies of all the leases de- scribed in paragraph one (1) to the United Mine Workers of America, Region 1 Office, R.D. #1, Box 172, Belle Vernon, Pennsylvania 15002. (4) Please provide any agreements and descrip- tions of any arrangements whereby the leases [sic] provide coal (produced from lands leased from Reading Anthracite Company) to Reading Anthra- cite Company or provides such coal for Reading Anthracite Company customers. Please provide any agreements and descriptions of arrangements where- by Reading Anthracite Company has obtained coal produced by such leases or whereby Reading An- thracite Company has assisted the lessee in obtain- ing customers for such coal. Identify whether any of these agreements or arrangements for providing 3 See Jt Exh 1 4 IbId , art 2, sec (a), p I 5 Ibld , art 2, sec (g)(1), p 3-4 or purchasing back coal or [sic] exclusive agree- ments or arrangements. (5) Please provide the following additional infor- mation: A. Specifically identify any share holders, di- rectors, officers, managers, supervisors, and/or agents of Reading Anthracite Company. The lessor [sic] who are also share holders in the lessee, and/or who otherwise have connections with the lessee as a director, officer, manager, su- pervisor, agent employee, etc with the lessee Specifically identify any subsidiary and/or affili- ates of Reading Anthracite Company that are les- sees. B. Specifically identify whether or not Read- ing Anthracite Company and the lessee share any fringe benefit coverage programs, mining or other governmental permits, financial accounts, etc., and identify such connections. Specifically identify any situations in which Reading Anthra- cite Company has paid or is paying taxes, black lung benefits, royalties, etc. for the lessee. C. Identify the nature of any financial assist- ance provided by Reading Antracite Company to the lessees identified in paragraph one (1). (6) Specifically identify any type of control legal- ly or contractually retained (whether or not exer- cised) and/or as a practical matter actually exer- cised by Reading Anthracite Company over the production, mining, processing, etc. of coal by les- sees from such leased coal lands, including, but not limited to the manner in which the coal is to be mined, the amount and the extent to which the coal is to be mined, the type of reclamation that is to be accomplished, etc. (7) For the past four (4) years, please identify on a monthly or quarterly basis the tonnage of coal produced by Reading Anthracite Company under the agreement, produced by Reading Anthracite Company by not under the agreement [sic], and the tonnage of coal produced by Reading Anthracite Company lessees (from lands leased from Reading Anthracite Company). To the extent that the above information can be provided in a package or if necessary in install- ments, please provide it as soon as possible to the Region I Office. If you have any questions regard- ing this request, including clarification of request or suggestions as to any conditions under which you will provide this information, please contact the Region I office.6 Thereafter, on July 29, 1983, the Union filed unfair labor practice charges with the Board, reciting in materi- al part, as follows. Since on or about May 2, 1983, the above-named employer has been violating Section 8(a)(5) of the Act by refusing to provide the United Mine Work- 6 See Jt Exh 2 READING ANTHRACITE CO 1505 ers of America, the collective bargaining representa- tive, with the information the Union needs to effec- tively administer its labor contract with the employ- er. 7 On September 23, 1983, the Union, through its "legal coordinator" informed Respondent that its letter of May 2 included a typographical error, attempted to correct same, and indicated that the Union remained available to clarify any questions held by Respondent concerning the request. 8 Prior to the instant hearing on January 9, 1983, Re- spondent simply ignored the request, neglecting to in- quire in any fashion as to the nature, purpose, or scope of the Union's interest in the subject matter. B. The Controlling Precedent, Relevance of the Requested Information Pursuant to settled authority, employers, as a corollary of the duty to bargain in good faith, are required, on re- quest, to provide the exclusiv e collective-bargaining agent with certain information within its possession This duty exists where the data sought is i elevant to the Union's duties in connection with the negotiation, en- forcement, or administration of a collective-bargaining agreement. See, e.g , NLRB v. Truitt Mfg. Co., 351 US 149, 152 (1956); NLRB v. Acme Industrial Co., 385 U.S. 432, 435-436 (1967); Detroit-Edison Co. v. NLRB, 440 U S. 301, 303 (1979) Apart from issues addressed to the relevance of infor- mation sought, precedent leaves little room for contro- versy in this area of the law. Once relevance is estab- lished, the failure of the employer to respond is tanta- mount to a per se violation of Section 8(a)(5) and (1) of the Act See Curtiss-Wright Corp. v. NLRB, 347 F.2d 61, 68 (3d Cir 1965); C-B Buick Inc. v. NLRB, 506 F 2d 1086, 1091 (3d Cir 1974). 9 In the Interest of facilitating a free exchange of facts, labor organizations have been fa- vored with wide latitude in perfecting a legally enforcea- ble claim. Thus, certain requests, such as those related to "wages" fall into a category so "intrinsic" to the core of the employer-employee relationship as to be "presump- tively relevant." See, e.g , San Diego Newspaper Guild Local 95 v. NLRB, 548 F.2d 863, 867 (9th Cir 1977). In such cases, "the employer bears the burden of showing a lack of relevance." Prudential Insurance Co. of America v. NLRB, 412 F.2d 77, 84 (2d Cir. 1969), cert. denied 396 U S. 928 (1969) On the other hand, in connection with certain other types of information, "the courts have re- quired a showing of relevance by the Union before hold- ing that the employer must comply wii h the request" San Diego Newspaper Guild Local 95 v. NLRB, 548 F.2d at 867, and cases cited therein However, even under this more stringent standard, the initial burden of proof im- posed upon labor organizations is readily satisfied, on the theory that "a broad range of potentially useful informa- 7 See G C Exh 1(a) 8 See Jt Exh 2(b) 9 "To refuse to furnish such relevant information violates the Act, irre- spective of the employer's good or bad faith, because it conflicts with the statutory policy to facilitate effective collective bargaining 'S Procter & Gamble Mfg Co v NLRB, 603 F 2d 1310, 1315 (8th Cir 1979) tion should be allowed to the Union for the purpose of effectuating the bargaining process, unless it is clearly ir- relevant." Procter & Gamble Mfg. Co v. NLRB, 603 F.2d at 1315. Consistent therewith, the Supreme Court, has admonished that the Board need only find a "probabili- ty" as to relevance, and that the information sought "would be of use to the union in carrying out statutory duties and responsibilities." NLRB v. Acme Industrial Co., 385 U S. at 437; NLRB v. Rockwell Standard Corp., 410 F.2d 953 (6th Cir 1969); Procter 41 Gamble Mfg. Co. v. NLRB, 603 F 2d at 1315 With these principles in mind, on the undisputed facts in this proceeding, the prima facie entitlement of the Union is beyond realistic challenge. The request, on its face, relates to possible violations of separate obligations willingly assumed by Respondent through the bargaining process . The first derives from a "resolution" adopted in 1939 by the Union and the Anthracite Operators which in material part provided as follows: "When any operator proposes to lease a . . mine or parcels of coal land, and before such lease is executed, he shall notify the President of the District of the United Mine Workers of America in which the property is located " i Â° Accord- ing to testimony adduced on behalf of the complaint it was the Union's position that the aforesaid notification obligation was carried forward through article 1 of the subsisting collective-bargaining agreement which in ma- terial part states: THIS AGREEMENT . . carries forward the pro- visions of the precedessor Agreements except to the extent inconsistent with this Agreement. Prior prac- tice, custom, local agreements and rulings and deci- sions of the Anthracite Board of Conciliation and umpire not in conflict with this Agreement shall be continued Consistent with this interpretation, there was no showing in the instant case that the 1939 resolution had ever been modified, abrogated, or otherwise limited. Against this background, the May 2 letter urges Respondent to "spe- cifically identify the leases, the dates the leases were let, and whether or not the United Mine Workers of Amer- ica was previously notified of this lease." Such a request was plainly relevant to the Union's assessment of wheth- er or not Respondent had breached an enforceable com- mitment to the Union. Beyond the notification Issue, the letter of May 2 sought disclosure of factors bearing upon the possibility that Respondent might have embarked upon an improper intrusion upon work awarded by contract to represented employees On its face, that letter seeks documentation and other evidence pertaining to the degree of common control, common ownership, and other elements of inter- relationship of operations relevant to assessment of whether lessees were utilized as a "disguised continu- ance" in furtherance of a design by Respondent to evade its negotiated contractual duties See, e.g., Southport Pe- i Â° See G C Exh 4, pp 179-180 Respondent in its postheanng brief erroneously refers to the resolution as the "Anthracite Coal Strike Com- mission award " 1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD troleum Co. v. NLRB, 315 U.S 100, 106 (1942). In this connection, it will be recalled that article 2, section (g)(1), of the governing agreement embodies an injunc- tion that "[t]he Operators agree that they will not lease out any coal lands for the purpose of avoiding the appli- cation of this Agreement." Michael Semko, president of District 5 of the United Mine Workers, testified that the request for comprehensive data concerning Respond- ent's leasing arrangements also was effected pursuant to article 2, section (g), of the subsisting collective-bargain- ing agreement and that this request was based on "con- cern by the coal operators and . . the Union prior to the time . . that Reading Anthracite was leasing coal lands out to other people without notifying the Union," and the fact that operators were "expressing concern about nonunion operations in District 25," and "these nonunion operators . . does affect our membership. "912 It is also clear that, as a matter of law, the theory on which a grievance or other cause of action might be maintained was implicit in the May 2 letter That docu- ment sought a return which closely tracked factors rele- vant to the Board's alter ego policy, a concept designed to assure that an employer not avoid its statutory obliga- tions "merely by forming a new business entity." NLRB v. Scott Printing Co., 612 F.2d 783, 786 (3d Cir. 1979) In that same vein, as a matter of settled principle, "one entity is responsible as the alter ego for another's unfair labor practices if an apparent transfer of operations is not an 'arms length' transaction between distinct entities . . but merely a sham, creating a disguised continuance of the precedessor's operations." Fugazy Continental Corp. v. NLRB, 725 F.2d 1416 (D C. Cir. 1984), South Prairie Construction Co. v. Operating Engineers, 425 U.S 800 (1976). By the same token, a contracting employer's use of a closely related firm to operate on a nonunion basis " Attorney Kopko, on behalf of Respondent, after close of the eviden- tiary portion of the hearing, represented that "[t]hrough a reading of the complaint, the Reading Anthracite Company was not alerted to the con- tractual provision which they [the Union] were relying upon for their entitlement to the information that they had requested " In view of Kopko's limited experience under this Act, his representation might well have been accurate I would note, however, that the governing collec- tive-bargaining agreement itself has but one article dealing with the leas- ing of coal lands Furthermore, leasing practices unmistakably were the focal point of the Union's letter In any event, the Union both on May 2 and September 23 invited the Employer to address any questions or need for clarification to the Union concerning the request Respondent obvi- ously failed to show any interest in this offer, electing Instead on its own assumption, blindly, to assert that "the information requested is beyond the scope of any collective bargaining obligations imposed by the Act" See G C Exh 1(e) " In its postheanng brief, Respondent characterizes the General Coun- sel's testimony as failing to provide "clear or consistent reason for the broad request for information " To exemplify the so-called shifts in this evidence Respondent fails to rest entirely upon testimony Indeed, at the core of this contention is a representation uttered by the General Counsel in support of an offer of evidence which later was excluded by me pursu- ant to Respondent's own objection Surely, learned counsel could be ex- pected to grasp the difference, in terms of probative weight, between proof and argumentation by an attorney Contrary to Respondent, the testimony of Semko concerning the Union's suspicion as to the possibility that Respondent was engaging in evasive tactics through its leases, the fact that any such practice would offend interests of represented employ- ees as well as other signatory operators, and the fact the Union sought to protect those concerns by the May 2 effort was perfectly plausible and did in fact portray "a clear and consistent reason for the broad request for information that it made to Reading Anthracite has been held to violate Section 8(a)(5) and Section 8(d) of the Act as an abrogation of the terms of a subsisting contract. NLRB v. Al Bryant Inc., 711 F.2d 543 (3d Cir. 1983) And beyond the authority of the Board, in Car- penters Local 1846 v. Pratt-Farnsworth, 690 F.2d 489, 511 (5th Cir. 1982), the court recognized the legal substanti- ality of a union's cause of action to enforce a contract as against a related, nominally independent nonsignatory under Section 301 of the Act, stating as follows: It was Congress' stated goal in adopting section 301 to treat collective bargaining agreements as con- tracts fully enforceable in federal courts, in order to encourage the making of such agreements and to promote industrial peace through faithful perform- ance of such agreements. . . . The NLRA similarly has as one of its goals the promotion of industrial peace through faithful performance of collective bargaining agreements. . . . We have seen that the Board has developed the single employer and alter ego theories in the context of unfair labor practice proceedings in which it is alleged that related em- ployers have violated sections 8(a)(5) and (1) of the NLRA by failing to abide by the terms of a collec- tive bargaining agreement entered into by one of them. Both of those theories are clearly designed to promote the faithful performance of a collective bargaining agreement not only by the signatory em- ployer but also by a nonsignatory employer with the requisite high degree of consanguinity to the signatory employer. . . [We] see no reason why the law developed by the Board and by federal ap- pellate courts in that context should not be the sub- stantive law applied in a suit under section 301 against related employers for breach of a collective bargaining agreement entered into by one of them. In the instant case, the governing contract on its face purports to assure represented employees in the multiem- ployer bargaining unit work entailed in "the production, preparation, processing and cleaning of coal from deep mining operations, strip operations, and refuse banks."13 It need not be gainsaid that: "The preservation or diver- sion of [such] . . . work is a subject of mandatory bar- gaining under the Act. Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 209 . . . (1964)." NLRB v. Rock- well-Standard Corp., 410 F.2d 953, 957 (6th Or 1969). Here, the leasing operations of Respondent were exten- sive. Most of the lessees were performing work akin to that described in the "Work Jurisdiction" clause of the contract. In these circumstances, the Union's right to in- formation enabling determination as to whether any em- ployee interests were compromised by operations fi- nanced, owned, controlled, or supervised by Respondent is not only confirmed by Board precedent, but also by specific views expressed in at least two circuit courts of appeals. See NLRB v. Leonard B. Herbert Jr. & Co., 696 F.2d 1120 (5th Cir. 1983), NLRB v. Associated General Contractors, 633 F 2d 766, 772 (9th Cir. 1980), see also Doubarn Sheet Metal, Inc., 243 NLRB 821 (1979) 13 Jt Exh 1, art 2(a)(1), p 1 READING ANTHRACITE CO. 1507 Indeed, in the most recent pronouncement affecting the instant issue, the Ninth Circuit Court of Appeals stated as follows: We think the union needed the requested infor- mation to perform an essential collective bargaining function. The union had reason to suspect that the employer was attempting to circumvent the collec- tive bargaining contract by secretly cutting wages and directing work to other, possibly related, firms. Without further data, however, it could not success- fully act on these suspicions. [NLRB v. National Cleaning Co., 723 F.2d 746, 748 (9th Cir. 1983).] C. The Defense Respondent's posture in this matter is inexplicable under the law and the facts. Despite prodding by me not a shred of competent proof was offered which would tend to controvert the relevance of the requested infor- mation. The clear message from an overwhelming body of judicial authority has been ignored, rather than chal- lenged or distinguished. At least one defense collides di- rectly with the teachings of the Supreme Court. Thus, it is asserted on behalf of Respondent that the instant com- plaint can have no merit "absent some indication that the purpose for the leases was to avoid the Anthracite Wage Agreement." Under this contention the Charging Party would have to substantiate, and the Board and courts affirm, a violation of the contract as a prerequisite to dis- closure. Respondent cites neither authority nor line of reasoning which would tend to support such a require- ment. Indeed, this is a view which has been discredited by empirical authority. In NLRB v. Acme Industrial Co., 385 U.S. 435, 437-438 (1967), the Supreme Court made it clear that the duty to furnish requested information was an obligation which stood "in aid of the arbitral proc- ess." As such, it was enforced "to enable [a] union to evaluate intelligently grievances," in order that it might make an "intelligent appraisal of its right to grieve" and, thus, to "sift out unmeritorious claims." Hence, an em- ployer is precluded from withholding relevant informa- tion so as to require a union to proceed with a grievance under conditions amounting to no more than "a game of blind man's bluff." 385 U.S. at 438 fn. 8. See also J. I. Case Co. v. NLRB, 253 F.2d 159, 155 (7th Cir. 1958). Accordingly, "it is not the Board's function in this type case to pass on the merits of the Union's claim that Re- spondent breached the collective bargaining agreement or has committed an unfair labor practice." NLRB v. Rockwell-Standard Corp., 410 F.2d 953, 957 (6th Cir. 1969). Equally untenable is Respondent's contention that the Charging Party's entitlement is influenced adversely by distinction between the work performed by Respondent and its lessees. Even if one were to accept Respondent's representation that the lessees are engaged in deep mining, while it participates exclusively in stripping, this would merely establish that Respondent has made a busi- ness judgment that it would not acquire the needed equipment, technology, and personnel to itself develope the capacity to engage in work performed by its lessees. Though Respondent was forewarned at the hearing by my ruling that any such operational difference was irrel- evant, the issue was again raised in the posthearing brief without articulation as to just how, under the law, this would make a difference. On the other hand, unmistak- able evidence reveals that Respondent was signatory to a multiemployer collective-bargaining agreement which "covers the wages and conditions of employment in the Anthracite coal fields of Pennsylvania,"" and which also provided that "the production, preparation, process- ing and cleaning of coal from deep mine operations, strip operations. . . shall be performed by classified Employ- ees of the Employer covered by and in accordance with the terms of this agreement."" In addition, Respondent, by virtue of article 2, section (g), affirmed that its "Agreement covers the operation of all the coal lands owned or held under lease by [it] . . . or by any subsidi- ary or affiliate." At a minimum, it is the work that Re- spondent guaranteed the Union through contract, rather than the nature of its own operations, that is determina- tive. Here again, Respondent's position is in defiance of clear holdings that employers may not subvert contrac- tually defined work jurisdiction by channeling even part thereof to a nominally separate entity which, as a matter of substance, constitutes no more than a "disguised con- tinuance." NLRB v. Scott Printing Co., supra; Fugazy Continental Corp. v. NLRB, supra; South Prairie Construc- tion Co. v. Operating Engineers, supra; NLRB v. Al Bryant Inc., supra. The final defense offered by Respondent is founded upon Section 8(e) of the Act. That issue was first raised at the hearing after all evidence had been submitted, when then counsel for Respondent represented that from a "reading of the complaint, the Reading Anthracite Company was not alerted to the contractual provision in which [the Union] . . . were [sic] relying . . . for their entitlement to the information that they had requested." On that basis, the answer to the complaint was amended to include as an affirmative defense that article 2, subsec- tion (g), embodied "a secondary purpose. . . and that it served no legitimate union function so far as the preser- vation of work is concerned because it only deals . . . [with] benefits that go to employees of independent miners and to the lessees; no benefit to the Union what- soever." A motion to dismiss the complaint on that ground was denied. That ruling is hereby reaffirmed. In this regard, the information requested herein was based upon separate contractual obligations and possible grievable violations, the first pertaining to the 1939 reso- lution and relating exclusively to the proviso thereof that "when any operator proposes to lease a. . . mine or par- cels of coal land . . . before such lease is executed, he shall notify the president of the District of the United Mine Workers of America in which the property is lo- cated." Unlike article 2, section (g), Respondent, at no time during the course of the hearing, asserted that this resolution was within its 8(e) contention. Furthermore, in now raising that issue, Respondent seeks to side step the literal terms of the Union's letter of May 2, and belatedly 14 Jtâ€¢ Exh. 1, art. 1, p. 1. " See Jt. Exh. art. 2, sec (a), p. 1. 1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to substitute a version of the facts more to its suiting. For there is no indication in the testimony which direct- ly or indirectly would tend to support the notion that the Union's request was addressed to any other obligation in- curred by Respondent under that resolution. Nonethe- less, Respondent imputes an 8(e) objective to language in the resolution which requires a lessor's cooperation with the president of the Union in establishing contact with the proposed lessee and to "render reasonable assistance to the Mine Workers and lessee to have operations under such leases carried on in accordance with the terms and provisions of the wage agreement" As indicated, here, the Union is not shown to have ever requested or to have charged Respondent with a failure to provide any such assistance, or to have requested information in con- nection therewith. Thus, on the facts, the claim of sec- ondary objective is without foundation. See National Cleaning Co., 265 NLRB 1352 fn. 14 (1982), enfd 723 F.2d 746 (9th Cir 1983). Moreover, were it necessary to reach the issue, I would find Respondent guilty of abso- lute error in representing that "the award of the Anthra- cite coal Strike Commission . states that coal lands may be leased only where the lessees agree to abide by the UMWA agreement." See Respondent's posthearing brief, page 6 This is a misstatement of the contract terms. The "assistance" arrangement does not state nor embody, di- rectly or indirectly, a "cease doing business objective" within the ambit of Section 8(e) See, e.g., Hams Truck & Trailer Sales, 224 NLRB 100 (1976); Lone Star Steel Co. v. NLRB, 639 F.2d 545 (10th Cir. 1980). It fails to include the language of "boycott" and neither imposes "onerous conditions," nor limits the signatory employer's right to contract with unorganized operators or those who fail to abide by the terms and conditions of employ- ment enjoyed by those working under union contract. See, e.g , Masters, Mates, & Pilots (Seatrain Lines), 220 NLRB 164 fn. 2 (1975) Moreover, the statement on behalf of Respondent that the assistance provision "is in substance precisely the same as the language struck down by the Board in Amax Coal, "is a materially false portrayal of what was involved in that case and fails to grasp the important distinction between the "assistance clause" and that in Amax and other cases involving 8(e) violations. Thus, the cases cited by Respondent including Mine Workers Local 1854 (Amax Coal), 238 NLRB 153 (1978), enfd 614 F.2d 872 (3d Cir. 1980), revd. on other grounds 354 U.S. 322 (1981); Teamsters Local 94 (Califor- nia Dump Truck Owners), 227 NLRB 269 (1976), and Electrical Workers IBEW Local 437 (Thmeo Construction), 180 NLRB 420 (1969), all involved clauses which on their face denied the employer discretion as to whom it would do business with, precluding business relationships with those who "do not have union contracts or employ union members" (238 NLRB at 626), or who do not pay the precise wages and benefits enjoyed by members of the bargaining unit (227 NLRB at 273). Beyond the "resolution" and the obligation to notify embodied therein, article (2), section (g), of the current agreement and language thereof precluding signatory employers from leasing coal lands "for the purpose of avoiding the application of this agreement" is the only other clause directly involved in the Union's request. As was true of its attack upon the 1939 resolution, Respond- ent also attempts to set up a "strawman" in order to per- fect its 8(e) claim with respect to article 2(g) Thus, in addition to the segment invoked herein by the Union, ar- ticle 2, section (g), also includes the following: Where coal lands of a signatory operator or a signa- tory company are leased, the signatory operator or signatory company shall be responsible for default- ed wages or earnings of miners of the lessee and in- dependent coal operators. Here again, Respondent fails to point to any evi- dence, having the remotest tendency to suggest that the Union's May or September requests, or the sur- rounding circumstances, are indicative of an interest held by the Union in obtaining information in sup- port of a charge that Respondent had violated the default language or in exploring any such possibili- ty. 16 Nor does it appear that Respondent would be possessed of data bearing upon the "wages and earnings" paid by lessees. On the other hand, clear evidence discloses that under article 2, section (g), the information sought in the instant case, on its face, was addressed to the possible diversion of unit work to an alter ego which might perform under standards undercutting those in the primary work unit The default clause is collateral to and has no bearing upon the Union's right to enforce another, legally separable obligation regulating the use of a lease as a means of avoiding the collective-bargain- ing agreement. Not a scintilla of evidence has been offered to suggest that this latter restriction consti- tutes anything other than a legitimate effort to pre- serve the work of employees of signatory employers as that work is defined in article 2, section (a), of the agreement 17 Respondent in its posthearing brief 16 Even if the default language were germane to the instant proceed- ing, evidence has not been developed to show that It was Intended to apply, or had been applied, to lessees, who in their own right, were non- signatories whose employees were not within the primary work unit See, e g, Teamsters Local 982 (Barker Trucking), 181 NLRB 515, 520 (1970), wherein it was stated "As the clauses are not clearly unlawful on thier face, we will interpret them to require not more than what is al- lowed by law" Consistent therewith, the instant default provision would be perfectly legitimate for purposes of Sec 8(e) if intended to apply only to lessees whose employees were part of the primary work unit, National Woodwork Mfrs Assn v NLRB, 386 U S 612 (1967), including those les- sees which constitute an alter ego of Respondent 17 It is argued on behalf of the defense that since the lands mined under the leases involved methods and equipment distinct from the tech- nique used by Respondent, the Union's request under art 2, sec (g), could not have carried a work preservation objective However, under settled authority, It is work performed in the "bargaining unit" that con- trols the "issue of primary versus secondary activity" Teamsters Local 710 v NLRB, 335 F 2d 709 (D C Or 1964) Here the appropriate unit was multiemployer in scope and the contract expressly defined the work thereof as including both "deep" and "strip" mining See art 2, sec (a) In such circumstances, the employer's business judgment as to its own method of operation, affecting as it does, only a segment of the overall bargaining unit, is Irrelevant See National Woodwork Mfrs Assn v NLRB, supra, where the legitimacy of a boycott was upheld despite the absence of a showing that the signatory employer, a general contractor in the construction industry, had ever engaged in the Â°Mite manufacture of preset, prefitted doors Cf Teamsters Local 216 (Bigge Drayage), 198 NLRB 1046, 1047 (1972), where none of the employees in the multiem- ployer unit had ever performed the disputed work READING . ANTHRACITE CO 1509 cites Mine Workers Local 1854 (Amax Coal), 238 NLRB 1583 (1978). It neglects to mention, howev- er, the specific finding in that case addressed to a contract term having identical substantive content to the instant leasing restriction. Thus, at, 1625, it was stated as follows: The first paragraph is addressed only to the ac- tions of the signatory employer and the interests of the unit employees. It secures an agreement that the signatory employer will not transfer coal lands by lease, sublease, or license where "the purpose thereof is to avoid the application of this Agreement." On its face the first paragraph is de- signed to prevent the erosion of the contract bar- gaining unit by a series of licensing of leasing agreements, and, as such, it "is addressed to the labor relations of the contracting employer vis-a- vis his own employees" . . . hence it is not pro- scribed by Section 8(e) of the Act. My ruling, made at the hearing, that the relevant provi- sion of article 2, section (i), involved a legitimate ar- rangement designed to protect the work of represented employees in the i)rirnary work unit derives direct gup- port from the foregoing holding and is reaffirmed. CONCLUSIONS OF LAW , I -1. Reading Anthracite 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 organi- zation within the meaning of Section 2(5) of the Act. 3. By failing and refusing to provide the Union with relevant information requested by the Union through its letters of May 2 and September 23, 1983, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 4 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has violated Section 8(a)(5) and (1) of the Act it shall be ordered to cease and deist from engaging in such conduct in the future and to take certain affirmative action designed to effectuate the policies of the Act. As it has been concluded that Respondent has refused to provide relevant information, requested by the Union to assure compliance with provisions of a subsisting col- lective-bargaining agreement, it shall be recommended that Respondent be ordered to furnish the Union said in- formation On the face of this entire proceeding, a question also exists as to whether the defenses raised were so baseless and lacking in merit as to warrant extraordinary relief. It is true that there is no licensing authority that imposes performance standards upon those who plead causes under this Act At the same time, however, extraordi- nary relief is available to protect the Board and the courts from trifling, baseless litigation. In NLRB v. Tudee Products, 426 F.2d 1243 (D.C. Cir. 1970), the Board was sharply criticized for failing to devise, a remedy which would deal effectively with employers whose violation of the duty to bargain, on the face of clear evidence, is nondebatable. The court stated as follows: [I]mportant considerations of judicial administration are involved Simply put, the present posture of the Board encourages frivolous litigation not only 'before the Board, but in the reviewing courts. The case and hand 4S in point. The position of the Com- pany is palpably without merit with respect to its refusal to bargain Yet it profited through the delay that review entails; all during this litigation it has not had to bargain collectively over wages and Other financial aspects of employment. The courts, then, are doubly concerned when Board inadequacies drain and divert judicial re- sources from the provision of justice to the crowd- ed calendars and to meritorious litigants whose claims clamor for attention The same consider- ations are presumably applicable at the administra- tive level. [426 F.2d at 1249-50.] In accordance therewith the Board subsequently fash- ioned a remedy tailored to discourage needless litigation as follows: We find merit, however, in the Union's request that it be reimbursed for certain litigation costs and expenses. Normally as the Board recently noted, litigation expenses are not recoverable by the charg- ing party in Board proceedings even though the public interest is served when the charging party protects its private interests 'before the Board. We agree with the court, however, that frivolous litigation such as this is clearly unwarranted and should be kept from the nation's already crowded court dockets, as well as our own. While we do not seek to foreclose access to the Board and courts for meritorious cases, we likewise do not want to en- courage frivolous proceedings The policy of the Act to insure industrial peace through collective bargaining can only be effectuated when speedy access to uncrowded Board and court dockets is available. Accordingly, in order to discourage future frivolous litigation, to effectuate the policies of the Act, and to serve the public interest we find that it would be just and proper to order Respond- ent to reimburse the Board and the union for their expenses incurred in the investigation, preparation, presentation, and conduct of these cases, including the following costs and expenses incurred in both the Board and court proceedings: Reasonable coun- sel fees, salaries, witness fees, transcript and record cost, printing cost, travel expenses and per diem, and other reasonable costs and expenses." [Tudee Products, 194 NLRB 1234, 1236-37 (1974) ] With this policy in mind, it is noted that in this case there is no material dispute of fact. The Charging Party on May 2, 1983, made a detailed request for information, 1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD expressly pointing out that any questions or need for clarification would be provided to the Employer upon demand. Respondent ignored the request, forcing the Union to invoke the Board's jurisdiction In justification of its position Respondent has offered defenses and a line of reasoning authoritatively discredited by longstanding precedent. Clearly pertinent and unambiguous policy emanating from the Supreme Court has been knowingly overlooked," and no effort is made to distinguish a court decision which appears to be dispositive at least as to the Union's prima facie entitlement to the informa- tion." Moreover, not a single, legally competent, fact is offered to refute the complaint's allegation of relevance. Indeed, Respondent's factual position includes mischarac- terizations, some of which heretofore have been dis- cussed and misstatement as to rulings made by me, which in the circumstances cannot be lightly dismissed as attributable to careless zea1.2Â° 18 Respondent's contentions on the Issue of "relevance" cannot be rec- onciled with (1) the "liberal discovery-type standard" and (2) "the blind man's bluff- analogy adopted by the Supreme Court in NLRB v Acme Industrial Co, supra Respondent continues to maintain these positions as if the Court's pronouncements did not exist This, despite the fact that the aforesaid decision and both concepts were mentioned prominently in NLRB v Leonard B Hebert, Jr & Co, supra, a case cited by the Re- spondent 19 NLRB v Leonard B Hebert, Jr & Co, supra, which, as indicated, was cited by Respondent for purposes other than its holding 20 The Respondent at p 7 of its brief states that "The AU I ac- knowledged that if the work being done under the coal lease is no nor- mally performed by Reading Anthracite's employees, then there would be not work preservation purpose incorporated in Article 2, Section (g) " Just how anyone acquainted with this proceeding could honestly and in good faith make such an interpretation of any comment made by me is incomprehensible At several points in the hearing, including distinct seg- ments quoted by Respondent in this regard in charging me with bias, It was consistently ruled from the bench that it was the work assigned to the multiemployer bargaining unit by the contract rather than that actually performed by Respondent that was controlling Finally, in what can only be taken as a transparent and baseless attempt to divert attention from the merits and to format delay, Respondent seeks to make me the center of controversy though a prejorative laden, otherwise vacuous assault upon his basic fitness and integrity. Re- spondent's propensity to portray falsely the record facts in this respect continues and has been documented by a report, prepared by me and incorporated herein as Ad- ministrative Law Judge's Exhibit 3. The effort to dis- credit the judge is a ploy so meretricious and lacking in substance as to warrant a strong recommendation that appropriate disciplinary action be taken pursuant to the rules governing practice before the Board. For these reasons, and as the various defenses inter- posed by the Respondent merge within that class of friv- olous posturing condemned in Tiidee, supra, extraordi- nary relief, in the form of litigation costs to the Board and Charging Party, is deemed appropriate redress herein See also Koval Press, 241 NLRB 1261, 1263-64 (1980), enfd. 106 LRRM 2603 (3d Cir May 27, 1980, un- published). In so recommending, it is my considered judgment that in order to create delay herein, "the of- fending party has intentionally used defenses meritless on their face in a clear attempt to burden the processes of the Board and the courts." Admiral Merchants Motor Freight, 265 NLRB 134 (1982), see also NLRB v Daniel Construction Co., 732 F.2d 139 (1st Cir. 1984), enfg 257 NLRB 1276 (1981) Accordingly, it shall be recommend- ed that Respondent be ordered to compensate the Board and Charging Party for reasonable counsel fees, salaries, witness fees, transcript, and all record costs, printing costs, travel expenses, and per diem, and other reasona- ble costs and expenses dervived from maintenance of this action, including interest as prescribed in Florida Steel Corp., 231 NLRB 651 (1977). [Recommended Order omitted from publication ]