Robinson Creek Coal Co.

58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Amos Newsome and Tivis Newsome d/b/a Robinson Creek Coal Company and Amos Newsome Coal Company, Incorporated and United Mine Workers of America. Case 9-CA-4952 August 14, 1969 hereby orders that the Respondents, Amos Newsome and Tivis Newsome d/b/a Robinson Creek Coal Company and Amos Newsome Coal Company, Incorporated, Pike County, Kentucky, their officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On May 26, 1969, Trial Examiner Charles W. Schneider issued his Decision in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondents filed exceptions to the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed.' The Board has considered the Trial Examiner's Decision, the exceptions, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner, and 'For the reasons stated in N.L.R. B. v. Golden Age Beverage Company, 415 F.2d 26 (C.A. 5), we find no merit in the Respondents' exception to the Trial Examiner's ruling denying their motion to require the Regional Director to include in the record the employee affidavits obtained in connection with the investigation of the Respondents' objections to the election . We note, moreover, that when the Regional Director issued his Supplemental Decision, Order Directing Hearing, and Notice of Hearing on December 6, 1967, in which, inter alia, he overruled the Employers' objections after an ex pate investigation , the Respondents failed to seek review of the Regional Director's findings on the objections as required by the Board's Rules and Regulations , Series 8, as amended, Sec. 102.67(b). However, almost 7 months later, on May 29, 1968 , the Respondents sought review of the Regional Director's Second Supplemental Decision, Order, and Certification of Representative, issued May 21, 1968, which sustained the challenges to three ballots . In this request for review the Respondents, without indicating any grounds therefor, included the conclusionary statement that the earlier action of the Regional Director "in overruling the objections to the election [on December 6, 1967] ... is clearly erroneous." On these facts, it is clear that the Respondents failed to seek timely review as is required by Sec . 102.69(c) and 102.67(b) of the Board's Rules and Regulations , Series 8, as amended. Accordingly, the Regional Director's ruling with respect to the objections was final and not subject to further review in any subsequent proceeding. See Rules and Regulations, Sec. 102.67(f). TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The Representation Proceeding= CHARLES W. SCHNEIDER, Trial Examiner: On June 8, 1967, upon petition filed by United Mine Workers of America, and after hearing, the Regional Director of the Board directed an election in an appropriate unit, hereinafter described, of employees of Amos Newsome and Tivis Newsome d/b/a Robinson Creek Coal Company and Amos Newsome Coal Company, Incorporated,' herein called the Respondents. Though the Respondents had contested the appropriateness of the unit found by the Regional Director, they did not file a request for review of the Regional Director's Decision as provided in Section 102.67 of the Board's Rules (Rules and Regulations and Statements of Procedure, National Labor Relations Board , Series 8, as amended). On July 6, 1967, the election was held under the direction and supervision of the Regional Director. Of 57 eligible voters 56 voted, 25 voted for the Union, 24 voted against the Union and 7 ballots were challenged. On July 10, 1967, the Respondents filed timely objections to conduct affecting the results of the election. Specifically the objections stated that: A union adherent, supporting the position of the United Mine Workers of America, undertook to and did deprive employees of a free choice in the election through violence and threats of violence and repeated harassment. The Regional Director investigated the objections and took affidavits of witnesses whose names were supplied by Respondents. On December 6, 1967, the Regional Director issued a Supplemental Decision, order directing hearing , and notice of hearing in which he found that the two incidents involved, which included, among other conduct, the firing of a pistol, to be without merit on the ground that there was no evidence of union agency, that the incidents involved mere nonviolent disagreement and not threats, had no affect on individuals present, or was isolated in nature. 'I have amended the caption and other references herein to reflect what I deem to be the correct spelling of the name of the Respondents Newsome, as given in Exhibit F attached to the Motion for Summary Judgment and in the caption on the Respondents' motion, response, and memorandum filed in response to the Order To Show Cause on the Motion for Summary Judgment. 'Administrative or official notice is taken of the record in the representation proceeding, Case 9-RC-7198, as the term "record" is defined in Sec. 102.68 and 102.69(f) of the Board's Rules (Rules and Regulations and Statements of Procedure, National Labor Relations Board , Series 8, as amended ). See LTV Electrosystems, Inc., 166 NLRB No. 81, enfd . 388 F.2d 683 (C.A. 4); Golden Age Beverage Co., 167 NLRB No. 24; Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va.); /ntertype Co. v. N.L.R.B., 401 F.2d 41 (C.A. 4), cert. denied 393 U.S. 1049; Follett Corp.. et al., 164 NLRB No. 47, enfd. 397 F.2d 91 (C.A. 7); Sec. 9(d) of the NLRA. 178 NLRB No. 6 AMOS NEWSOME D/B/A ROBINSON CREEK 59 With respect to the challenges, the Regional Director, in accordance with the Respondents' contentions and over the Union's objections, sustained the challenges by the Board agent to four unemployed voters on the ground that they had no reasonable expectation of reemployment in the foreseeable future by the Respondents However, as to three individuals whose votes were challenged by the Union as being supervisors (Herston Childers, Teddy Newsom, and Paul Newsom), the Regional Director found Childers not to be a supervisor, but ordered that a hearing be held to resolve the status of the Newsoms On December 22, 1967, the Union filed with the Board in Washington, D C , exceptions and objections to Supplemental Decision seeking review of the Regional Director's findings as to Childers On January 5, 1968, the Board granted review and directed that the issue of Childers' status be resolved in the hearing with the two Newsoms A hearing was held before a Hearing Officer on January 10, 1968, and on May 8, 1968, the Hearing Officer issued and nerved on the parties his report and recommendations in which he found Childers to be a managerial employee and the two Newsoms to be supervisors He therefore recommended that the challenges to their ballots be sustained and that the Union be certified On May 21, 1968, the Regional Director issued his Second Supplemental Decision, Order and Certification of Representative in which he adopted the recommendations of the Hearing Officer and accordingly certified the Union as the bargaining representative in the appropriate unit On May 29, 1968, the Respondents filed an Appeal and Exceptions to the Regional Director's Decision and Certification asserting as grounds therefore that (1) the three individuals were not supervisors, (2) that the Regional Director was in error in overruling the Respondents' objections to the election, and (3) that the Regional Director's action in refusing to count the ballots of the three individuals and in certifying the Union in an inappropriate unit was erroneous and contrary to law As has been seen, the Respondents did not file a petition for review of the Regional Director's findings as to the appropriate unit at the time of issuance of the Decision and Direction of Election On June 17, 1968, the Board denied the Respondents' Request for Review on the ground that it raised "no substantial issues warranting review " The Unfair Labor Practice Proceeding On November 5, 1968, the Union filed a charge alleging that the Respondents had refused to bargain with the Union On December 17, 1968, the Regional Director issued a complaint and notice of hearing alleging that the Respondents had failed and refused to bargain with the Union On December 30, 1968, the Respondents filed an Answer to the Complaint denying the commission of unfair labor practices On February 6, 1969, the General Counsel issued an amended complaint alleging that beginning on or about July 6, 1968, the Union has requested the Respondents to bargain and that at all times since on or about August 14, 1968, the Respondents' have refused to bargain ' 'A comparison of the original and the amended complaint indicates that they differed in 3 respects (1) the original complaint following the allegations of the charge described Amos Newsome Coal Company as On February 14, 1969, the Respondents filed their answer to the amended complaint The answer to the amended complaint admits the allegations of that complaint as to (1) the filing and service of the charge, (2) jurisdiction, (3) that Amos Newsome and Tivis Newsome are agents and supervisors of Respondents, and (4) that the Union was certified by the Board on May 21, 1968 The answer to the amended complaint denies allegations in the complaint in the effect that (1) Robinson Creek Coal Company and Newsome Coal Company are affiliated businesses with common ownership and common management with such interrelation and integration of operations and centralized control of labor relations and personnel policies, affecting all of their employees, that they thereby constitute a single employer for both jurisdictional and unit purposes-facts which the Regional Director had found in the Decision and Direction of Election (Par 2(b) of the amended complaint), (2) that the Union is the representative of the employees in the certified unit (par 5(b) of the amended complaint), (3) that the Union requested the Respondents to bargain collectively (par 5(c) of the amended complaint), (4) that the Respondents refused to recognize, meet or bargain with the Union (par 6 of the amended complaint), (5) that the Respondents had thereby engaged in unfair labor practices (par 7 of the amended complaint) On April 7, 1969, counsel for the General Counsel filed a motion for summary judgment in which he moved (1) that paragraph 1 of the Respondents' answer be stricken as sham insofar as it denies the allegations of paragraphs 2(b), 5(b), 5(c), 6, and 7, (2) that all allegations of the amended complaint be deemed true and so found, and (3) that an appropriate Decision and Remedial Order issue Attached to the motion for summary judgment as exhibits are inter alia purported copies of (1) a letter dated July 26, 1968, from C E Beane, President of District 30 of the United Mine Workers of America, to Amos Newsome, adverting to the election and certification and stating that the Union desired to arrange a mutually convenient meeting for the purposes of attempting to negotiate a contract (Exh E) The letter further signified the availability of President Beane at most any time and place the Respondents desired within the confines of District 30, (2) a purported response dated August 14, 1968, on the letterhead of Robinson Creek Coal Co , from Amos Newsome, President (Exh F) In this letter President Newsome, acknowledging receipt of Beane's July 26 letter, stated that the Respondents declined to recognize the Union as bargaining agent because the Respondents entertained doubt that the Union represented an uncoerced majority of employees in an appropriate bargaining unit Along with the motion for summary judgment, counsel for the General Counsel filed a supporting memorandum in which he prayed for the relief sought in the Motion, on the ground that all material issues had been previously resolved, or were admitted or otherwise established On April 8, 1969, I issued an Order To Show Cause returnable April 21, 1969, providing inter alia that, if the Respondents filed a Response to the motion for summary judgment, they state specifically whether they deny the Newsom Coal Company (2) The original complaint alleged that the request to bargain began on May 21 1968 and (3) the original charge contained an allegation not included in the amended complaint to the effect that the Respondents had refused to sign a written agreement containing terms of employment agreed on between the Respondents and the Charging Party 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD authenticity of any of the exhibits attached to the General Counsel's motion for summary judgment On April 21, 1969, the Respondents filed (1) a response to motion for summary judgment (2) a memorandum in support thereof, and (3) a motion moving the Trial Examiner to require the Regional Director to produce and make a part of the record the affidavits of the two witnesses whom the Respondents presented to the Regional Director in support of the Respondents' objections to the election, both of whom, according to the Regional Director's Supplemental Decision of December 6, 1967, "gave affidavits [presumably to a Board agent] during the investigation " In their Response to the motion for summary judgment the Respondents admitted the correctness of the exhibits attached to the motion for summary judgment Respondents attached to their response a copy of each of the following documents the original complaint and notice of hearing, the tally of election ballots, Respondents' objections to election, Respondents' appeal and exceptions to the Regional Director's Second Supplemental Decision, Order and Certification of Representative, dated May 21, 1968, the Board's Order denying review of the Decision and Order, and a copy of the transcript of testimony in the hearing to determine the status of Childers and the two Newsoms ' Ruling on Motion for Summary Judgment The Respondents resist the motion for summary judgment on the ground (1) that the certification was "improper because votes which should have been counted for and on behalf of the employer were not counted,"5 and (2) "because of unlawful conduct of people assisting in the organization of the Union, deprived the employees of their free choice and destroyed the laboratory conditions under which Board conducted elections are to be held " The answer to the amended complaint does not contest the appropriateness of the unit, as did the answer to the original complaint These contentions of the Respondents are essentially reiterations of contentions presented, considered, and decided in the representation case The Regional Director disposed of the question of the eligibility of Childers and the two Newsoms to vote, and the Board denied review of this matter With respect to the objections to the election, the Respondents filed no request with the Board to review that determination Under Board rules all such action thus become final ' It is established Board policy, in the absence of newly discovered or previously unavailable evidence, not to With respect to the Respondents motion to require the Regional Director to produce and make a part of the record the affidavits of witnesses the motion is denied in accordance with the Decision of the Board in the cases of L TV Electrosystems Inc and Golden Age Beverage Co cited in fn 2 above supra The other documents attached to the Respondents response constitute part of the record as defined in the Board s rules of which administrative or official notice has been taken in fn 2 'Presumably reference to the votes of Childers and the two Newsoms 'Thus Board rule 102 67(f) provides The parties may, at any time waive their right to request review Failure to request review shall preclude such parties from relitigating in any related subsequent unfair labor practice proceeding any issue which was or could have been, raised in the representation proceeding Denial of a request for review shall constitute an affirmance of the regional directors action which shall also preclude relitigating any such issues in any related subsequent unfair labor practice proceeding permit litigation before a Trial Examiner in a complaint case of issues which were or could have been litigated in a prior related representation proceeding ' This policy is applicable even though no formal hearing on objections has been provided by the Board Such a hearing is not a matter of right unless substantial and material issues are raised ' and that there are not such issues here has been effectively decided by the Board In their response to the motion for summary judgment and in their accompanying memorandum the Respondents, while recognizing that the Board will not ordinarily permit relitigation in an unfair labor practice proceeding of representation case issues, state the Respondents are undertaking the only remedy left for review of the correctness of the findings and conclusions of the Regional Director Since the Board's dispositions are binding upon the Trial Examiner the Respondents' contentions in these regards are referred to the Board There thus being no unresolved matters requiring an evidential hearing the motion of the General Counsel for summary judgment is granted However, the General Counsel's motion to strike paragraph 1 of Respondent's answer insofar as it denies the allegations of paragraphs 2(b), 5(b), 5(c), 6, and 7 of the amended complaint as sham is denied Though found not to be sustained, the Respondent' answer in those respects raise issues necessary to be pleaded if the Respondent wishes to contest the matter before the Board or the Court of Appeals Upon the basis of the entire record I therefore make the following further FINDINGS AND CONCLUSIONS I THE BUSINESS OF THE RESPONDENT At all times material herein, Robinson, a partnership composed of Amos Newsome and Tivis Newsome, is and has been engaged in the mining of coal near Robinson Creek, Pike County, Kentucky, and Newsome, which is a Kentucky corporation, is and has been engaged in the operation of a tipple facility at the same location Robinson and Newsome are and at all times material herein have been affiliated businesses with common ownership and common management with such interrelation and integration of operations and centralized control of labor relations and personnel policies, affecting all of their employees, that they thereby constitute a single employer for both jurisdictional and unit purposes' During the past 12 months, which is a representative period, Respondents mined, sold, and shipped coal valued 'Krieger Ragsdale & Co Inc 159 NLRB 490 enfd 379 F 2d 517 (C A 7) cert denied 389 U S 1041 N L R B v Macomb Pottery 376 F 2d 450 (C A 7) Howard Johnson Company 164 NLRB No 121 Metropolitan Life Insurance Company 163 NLRB No 71 See Pittsburgh Plate Glass Co v N L R B 313 U S 146 162 NLRB Rules and Regulations, Sec 102 67(f) and 102 69(c) 'O K Van and Storage Inc 127 NLRB 1537 enfd 297 F 2d 74 (C A 5) See Air Control Window Products Inc 355 F 2d 245 249 (C A 5) If there is nothing to hear then a hearing is a senseless and useless formality See also N L R B v Bata Shoe Co 377 F 2d 821, 826 (C A 4) there is no requirement constitutional or otherwise that there be a hearing in the absence of substantial and material issues crucial to determination of whether NLRB election results are to be accepted for purposes of certification ' 'Though Respondents answer to the amended complaint denies these allegations the Regional Director made these findings of fact in the Decision and Direction of Election and Respondent did not seek review thereof The Regional Directors findings in this respect are thus final AMOS NEWSOME D/B/A ROBINSON CREEK in excess of $50,000 to various firms in the State of Kentucky, each of whom, in turn, during the same period, sold and shipped coal valued in excess of $50,000 directly to customers outside the State.of Kentucky. At all times material herein, Respondents are and have been "employers" as defined in Section 2(2) of the Act, engaged in "commerce" and in operations "affecting commerce" as defined in Section 2(6) and (7) of the Act, respectively. II. THE LABOR ORGANIZATION INVOLVED At all times material herein, the Union is and has been a labor organization as defined in, Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES At all times material herein, Amos Newsome and Tivis Newsome have been agents of Respondents acting on Respondents' behalf within the meaning of Section 2(13) of the Act, and supervisors within the meaning of Section 2(11) of the Act. The following constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees of the Respondents at their Robinson and Garth and their Newsome tipple facility, all located near Robinson Creek, Pike County, Kentucky, excluding office clerical employees, technical employees, and all guards, professional employees, and supervisors as defined in the Act. On May 21, 1968, as a result of a secret ballot conducted by the Board, the Union was certified by the Board as the exclusive representative for the purposes of collective bargaining for the employees of Respondents in the appropriate unit. At all times since May 21, 1968, the Union has been and is now the exclusive collective-bargaining representative of all the employees in the appropriate unit for the purpose of collective bargaining in regard to rates of pay, wages, hours and other terms and conditions of employment. Commencing on or about July 26, 1968, and continuing to date, the Union has requested Respondents to bargain collectively as representative of the employees in the appropriate unit.. At all times since on or about August 14, 1968, Respondents have refused, and continue to refuse, to bargaip collectively with the Union as a representative of the employees in the appropriate unit, by refusing to recognize, meet or bargain with the Union. By thus refusing to bargain collectively Respondents have engaged in and are engaging in unfair labor practices as defined in Section 8(a)(1) and (5) and 2(6) and (7) of the Act. Upon the foregoing findings and conclusions, and pursuant to Section 10(c) of the Act, I recommend that the Board issue the following: ORDER A. For the purpose of determining the duration of the certification, the initial year of certification shall be deemed to begin on the date the Respondents commence to bargain in good faith with the Union as the recognized exclusive bargaining representative in the appropriate unit?' 61 B. Amos Newsome and Tivis Newsome d/b/a Robinson Creek Coal Company and Amos Newsome Coal Company, Incorporated, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with United Mine Workers of America as the exclusive collective-bargaining representative of the employees in the following appropriate bargaining unit: All production and maintenance employees of the Respondents at their Robinson and Garth mines and their Newsome tipple facility, all located near Robinson Creek, Pike County, Kentucky, excluding office clerical employees, technical employees, and all guards, professional employees, and supervisors as defined in the Act. (b) Interfering with the efforts of said Union to negotiate for or represent employees as such exclusive collective bargaining representative. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request bargain collectively with United Mine Workers of America as the exclusive representative of the employees in the appropriate unit with respect to rates of pay, wages, hours of employment and other terms and conditions of employment and embody in a signed agreement any understanding reached. (b) Post at their mines and facilities copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by an authorized representative of the Respondents, shall be posted by the Respondents immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicious places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondents 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 receipt of this Recommended Order, what steps the Respondents have taken to comply hdrewith.12 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board WE' WILL NOT refuse to bargain collectively with United Mine Workers of America, as the exclusive "The purpose of this provision is to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law . See Mar-Jac Poultry Co., 136 NLRB 785; Commerce Co.. 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 Co., 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10). "In the event that thisRecommended Order is adopted by the Board the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify the Regional Director for Region 9, in writing, within 10 days from the receipt of this Order, what steps the Respondent has taken to comply herewith." 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collective-bargaining representative of all our following employees: All production and maintenance employees at our Robinson and Garth mines and at our Newsome tipple facility, excluding office clerical employees, technical employees, and all guards, professional employees, and supervisors as defined in the Act. WE WILL NOT interfere with the efforts of theUnion to negotiate for or represent employees as exclusive collective-bargaining representative. WE WILL bargain collectively with the Union. as the exclusive collective-bargaining representative of the employees in the above unit and, if an understanding is reached, we will sign a contract with the Union. Dated By AMOS NEWSOME AND TIVIS NEWSOME D/B/A ROBINSON CREEK COAL COMPANY AND AMOS NEWSOME COAL COMPANY, INCORPORATED (Employer) (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material. Any questions concerning this notice may be directed to the Board's Regional Office, Rm. 2407, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686.