New Laxton Coal Co.

NEW LAXTON COAL COMPANY 927 tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 1V. THE REMEDY Having found that the Company has engaged in and is engaging in certain unfair labor practices affecting commerce, I shall recommend that it cease and desist there- from and take certain affirmative action in order to effectuate the policies of the Act. It has been found that the Company, by interrogating and threatening employees in connection with union activity, interfered with, restrained, and coerced its em- ployees in violation of Section 8(a),(l) of the Act. I shall therefore recommend that the Company cease and desist therefrom and from any like or related conduct. For the reasons stated in the subsection entitled "The alleged vioaltion of Sec- tion 8(a) (2)," I shall recommend that the complaint be dismissed insofar as it alleges violation of that section of the Act. Upon the basis of .the above findings of fact , and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. District Lodge 76, International Association of Machanists , AFL-CIO, is a, labor organization within the meaning of Section 2(5) of the Act. 2. By interrogating and threatening employees in connection with union activity, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteeed in Section 7 of the Act, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 3. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 4. The Company has not engaged in unfair labor practices within the meaning of Section 8 (a) (2) of the Act. [Recommendations omitted from publication.] New Laxton Coal Company 1 and United Mine Workers of America (Ind.), Petitioner. Case No. 10-RC-4667. December 4, 1961 SECOND SUPPLEMENTAL DECISION, ORDER, AND THIRD DIRECTION OF ELECTION On February 28, 1961, the Board issued a Supplemental Decision, Order and Direction of Election herein 2 finding appropriate the following bargaining unit : "All employees at the Employer's Clinch- more, Tennessee, coal mine, excluding office clerical employees, engi- neering and technical employees, professional employees, guards, fore- men, and all supervisors as defined in the Act." Thereafter, on March 30, 1961, the Board issued an Order Amend- ing Decision and Direction of Election, postponing the directed elec- tion herein pending disposition of unfair labor practice charges which had been filed. On August 7, 1961, the Board issued a Second Direc- tion of Election, based on advice from the Regional Director that the unfair practice case had been closed on compliance with a settlement agreement. On August 18, 1961, C & P Coal Company, herein re- 1 The Employer's name, formerly C & P Coal Company, appears as amended in accord- ance with our decision herein. 3130 NLRB 910. 134 NLRB No. 92. 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'ferred to as C & P, filed a motion to dismiss the petition herein on the grounds that it no longer operated the mine in which the em- ployees sought in the petition were employed and that the said mine was now operated by New Laxton Coal Company, herein referred to as New Laxton. On September 1, 1961, the Board issued a notice to show cause why the name of the Employer herein should not be amended by substituting the name "New Laxton Coal Company" in place and stead of the name "C & P Coal Company." On September 11, 1961, the Board received a response to its notice to show cause from the Intervenor,' opposing the amendment on the ground that its current contract with New Laxton was a bar. On September 21, 1961, the Board received a response from New Laxton, opposing, the ,amend- ment on the ground of its contract with the Intervenor and on the additional ground that it had never been a party to any proceeding involving the Petitioner and C & P. The other parties, although served with the notice to show cause, did not respond. The Board has been administratively advised as follows : C & P ceased operations at the Clinchmore mine on September .29, 1960, after the hearing in this proceeding had been held and the petition dismissed by the Board. During October 1960, New Laxton leased the mine and machinery from Round Mountain Coal Company, which had previously leased it to C & P. On October 17, the Petitioner filed a motion for reconsideration with the Board. Thereafter, on October 27, New Laxton and the Intervenor entered into the contract asserted as a bar. On February 28, 1961, the ' Board granted the Petitioner's motion for reconsideration and directed an election. The coal mined by New Laxton was sold to New River Coal Company and then re-sold by Royal Fuel Company on a commission basis, which is the same system of operation engaged in by C & P when it leased the mine. Of the 38 employees employed by C & P at the .Clinchmore mine when it surrendered its lease, 25 employees and 2 of the same supervisors are now employed by New Laxton. Nothing in the responses received to the notice to show cause refutes any of this information. It thus appears that, except for the substitution of New Laxton for C & P, the mine is being operated in the same manner as before, with essentially the same complement of employees, and the rela- tionship between the employees in the unit and the mine management has remained basically unchanged. We find, therefore, that New Laxton has in fact replaced C & P as the employer of the employees here involved. We -find further that this proceeding is not barred by R Local 104, Southern Labor Union, herein referred to as the Intervenor, was permitted to intervene and it thereupon participated in the hearing NEW LAXTON COAL COMPANY 929 the contract between New Laxton and the Intervenor as it was signed after the filing of a motion for reconsideration by the Petitioner, and, therefore, during the existence of a substantial question concerning representation.4 The motion of C & P to dismiss the petition is hereby denied, as a change of ownership of the Employer during the course of representation proceedings is not by itself sufficient to warrant such dismissal 5 On the basis of the entire record, therefore, we shall order that the name of New Laxton be substituted for the name of C & P as the Employer herein. Our dissenting colleague objects to such substitution without ac- cording New Laxton and Local 104 a new hearing. If New Laxton had purchased the business from C & P, the Board would, in accord with long-established practice, substitute it as the Employer without a new hearing.' We are satisfied that this practice is also appropri- ate when the change in management occurs without such a purchase and where, as here, the operation, subsequent to the change, has been conducted under a lease with the same lessor, in the same man- ner, and with the same machinery, equipment, and essentially the same employees, including two supervisors. This is, moreover, not an un- fair labor practice proceeding but a representation proceeding to determine the desires of the employees with regard to a bargaining representative. Under all the circumstances, therefore, we do not agree with our dissenting colleague that either New Laxton or Local 104, the Intervenor herein, which has participated at every stage of these proceedings, has been deprived of due process. Nor have we disregarded the argument that New Laxton entered into the contract, which it urges as a bar, without notice of this pending proceeding. It is sufficient, we find, that the Intervenor, the contracting union, was then aware of the pending motion for reconsideration.' We also do not agree that a new showing of interest should be required of the Petitioner, as it made an adequate showing in the appropriate unit, which still contains substantially the same employees. ORDER IT IS HEREBY ORDERED that the name "New Laxton Coal Company" be, and the same hereby is, substituted in place and stead of the name "C & P Coal Company" as the Employer in the proceeding herein. [Text of Third Direction of Election omitted from publication.] 4 Deluxe Metal Furniture Company, 121 NLRB 995 , 1000, footnote 12. 5 Elm City Broadcasting Corporation , 116 NLRB 1670, 1673. 6 Barker Automation , Inc., et al., 132 NLRB 794 ; Allan W. Fleming, Inc., 91 NLRB 612. "Moreover, we have been administratively advised that in March 1961 C & P entered into an informal agreement with the Board settling charges that it had violated Sec- tion 8 ( a) (2) and (1) of the Act by assisting and dominating Local 104 , and that it posted the appropriate notice. 630849-62-vol . 134-60 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MEMBER RODGERS dissenting : I fail to understand what principles have guided my colleagues to their holding that New Laxton Coal Company may be "substituted" as the Employer in this case. There is no dispute as to the facts. In April 1960, the United Mine Workers filed a petition with the Board seeking to represent the em- ployees of C & P Coal Company-the operator of the Clinchmore mine under a lease arrangement with Round Mountain Coal Company. While that petition was pending before the Board, C & P ceased its operations and surrendered all rights it had to the Clinchmore mine. Subsequently, in October 1960, New Laxton entered into a similar lease arrangement with Round Mountain. All of New Laxton's em- ployees joined Local 104 of the Southern Labor Union. Local 104 then negotiated a contract with New Laxton, and this contract was approved by secret ballot by New Laxton's employees. It is to be noted first that although the foregoing events occurred while the United Mine Workers' petition for C & P's employees was pending before the Board, New Laxton was not made a party to that proceeding and received no notice thereof until the Board on Septem- ber 1, 1961, nearly 11 months after New Laxton commenced operations, issued its notice to show cause why United Mine Workers' petition should not be amended by "substituting" New Laxton for C & P as the Employer. Secondly, there neither was, nor is, any relationship or arrangement of any sort between C & P and New Laxton. New Laxton did not purchase any operating rights to the mine from C & P, and New Laxton did not assume any obligations incurred by C & P. In short, New Laxton was not a successor to C & P and was not in any sense privy to the representation proceeding pending before the Board. Notwithstanding the foregoing my colleagues are treating New Laxton, a stranger to the representation proceeding, as the employer respondent to the petition filed by C & P's employees, and they are doing so without requiring that the United Mine Workers establish any showing of interest among New Laxton's employees, without proper consideration of the contract New Laxton has with Local 104 of the Southern Labor Union covering its employees, and without according New Laxton and Local 104 the hearing to which they are entitled under the Act. This action, in my view, is unsound, unfair, and deprives New Laxton and Local 104 of due process of law. Chairman MCCuLLOCii took no part in the consideration of the above Second Supplemental Decision, Order, and Third Direction of Election.