Harlan #4 Coal Co.

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