United Mine Workers, Local 1829

222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Mine Workers of America, Local 1829, District 31 and Virginia Electric and Power Company and International Brotherhood of Electrical Workers, Local 2308, AFL-CIO. Case 5-CD-211 March 31, 1975 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, JENKINS, AND PENELLO This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following charges filed by Virginia Electric and Power Company (hereinafter called VEPCO or Employer) alleging that United Mine Wrokers of America, Local 1829, District 31 (hereinafter called UMW), violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed conduct with an object of forcing or requiring VEPCO to assign certain work to employees represented by UMW rather than to employees represented by Inter- national Brotherhood of Electrical Workers, Local 2308, AFL-CIO (hereinafter called IBEW). Pursuant to notice, a hearing was held before Hear- ing Officer Angela S. Anderson on September 10 and 11, 1974. VEPCO and UMW appeared at the hearing' and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Thereafter, the case was transferred to the Board, and VEPCO and UMW filed briefs which have been duly considered. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeeding to a three-member panel. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: I THE BUSINESS OF THE EMPLOYER The Charging Party, VEPCO, is a Virginia corpora- tion having its principal offices in Richmond, Virginia. It is engaged as an electric utility in the business of generating and distributing electric power within a service area which covers parts of three States, Vir- ginia, West Virginia, and North Carolina. In the opera- tion of its business, VEPCO annually realizes gross revenues in excess of $1 million, and causes materials valued in excess of $50,000 to be shipped to it from outside the State of West Virginia. i Although it was duly served with a copy of the notice of hearing, IBEW did not enter an appearance or otherwise participate in the hearing Laurel Run Mining Company (hereinafter called Laurel), also a Virginia corporation, is a wholly owned subsidiary of VEPCO engaged in the operation of a coal mine at Mt. Storm, West Virginia. Laurel annually purchases and receives at its Mt. Storm location goods valued in excess of $50,000 from suppliers located out- side the State of West Virginia. The parties stipulated, and we find, that VEPCO and Laurel are engaged in interstate commerce within the meaning of Section 2(6) and (7) of the Act. We further find that it will effectuate the policies of the Act to assert jurisdiction herein. II THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that UMW and IBEW are labor organizations within the meaning of the Act. -III THE DISPUTE A. The Work in Dispute As stipulated by the parties and described in the notice of hearing, the work in dispute consists of "the operation of the 7000 ft. overland conveyor belt be- tween the Laurel Run Mining Company and Virginia Electric and Power Company plant at Mt. Storm, West Virginia." B. Background and Facts One of VEPCO's electric generating facilities is a coal-burning, steam-powered plant located at Mt. Storm in Grant County, West Virginia, in the vicinity of the Laurel mine. The coal used at this facility is purchased by VEPCO from Laurel, as well as from other sources. Until August 1974, all of the coal was delivered to the Mt. Storm generating plant either by rail or truck. Since August 1974, when the newly con- structed covered overland conveyor, the operation of which is here in dispute, was completed, all of the coal purchased from Laurel has been delivered via the conveyor? VEPCO's employees have been repre- sented in a systemwide unit by IBEW since the later's certification in 1973.3 Laurel, as stated, is engaged in Mt. Storm in the deep mining of coal. Although it is a wholly owned subsidi- ary of VEPCO, Laurel is managed by Eastern Coal Associates, Inc., an independent management corpora- tion which establishes and administers all of Laurel's employment policies. Laurel's employees are repre- 2 Laurel is a relatively new mine and in its early stages of development produced less than 1 percent of VEPCO's coal needs. When the mine is fully developed and the conveyor fully operational, VEPCO expects to obtain about 30 to 40 percent of its coal needs from Laurel via the conveyor. 3 Virginia Electric & Power Company, 49 NLRB 1095 (1943) UNITED MINE WORKERS, LOCAL 1829 sented by Respondent UMW and , on December 24, 1971, Laurel became signatory to UMW's National Bituminous Coal Wage Agreement of 1971 . Until the events of August 1974, Laurel's entire coal production was sold to VEPCO and transported to VEPCO's gen- erating plant by truck owner-operators and their em- ployees, all of whom were also members of UMW. These owner-operators were also signatories of UMW's 1971 Coal Wage Agreement. Sometime in 1971 or 1972, work began on the con- struction of the covered overland conveyor involved in the instant dispute. This conveyor runs from a "trans- fer house" at the Laurel mine to the coal storage silos at VEPCO's plant, and for its full length of 7,000 feet traverses land belonging to VEPCO . The conveyor was constructed, pursuant to contract with Laurel, its owner, by Robert & Schaefer, a mine facilities con- struction firm whose employees are represented by UMW. On December 17, 1973, before construction was completed, Laurel -leased the conveyor to VEPCO at an annual rental of $90,000. The lease agreement provided, inter alia, that the conveyor, with com- pleted, would , be operated and maintained by VEPCO.4 The overland conveyor is powered by electric motors which are controlled from a drive house located in front of the storage silos in the VEPCO coalyard. In late July or early August 1974, VEPCO assigned the task of operating the conveyor to its employees who are represented by IBEW. On or about June 6, 1974, UMW first learned that the overland conveyor had been leased to VEPCO. At the time UMW took the position that the operation and maintenance of the conveyor was within UMW's juris- diction and should be assigned to employees repre- sented by it. In furtherance of its continuing demand for the work, UMW on or about August 7 threatened to cause a work stoppage and its members did, in fact, cease to work at the Laurel mine and began picketing at Highway 93, approximately 1-1/2 miles from VEP- CO's power station. The picketing continued until Au- gust 20, 1974, when it was terminated pursuant to a temporary restraining order issued , pursuant to Section 10(1) of the Act, by the United States District Court for the Northern District of West Virginia, in C.A. 74-168-E. Laurel, as stated, is signatory to UMW's 1971 Na-' tional Bituminous Coal Wage Agreement which pro- vides, in pertinent part, as follows: Article II-Scope and Coverage 4 The agreement also provided that title to the coal would pass to VEPCO when placed by Laurel employees on the conveyor at the transfer or junction house and that the agreement would not become binding until approved by the appropriate regulatory authorities of the States of Virginia , West Vir- ginia, and North Carolina 223 Section (d) Application of Contract to Coal Lands As part of the consideration for this agreement, the Employers agree that this agreement covers the operation of all of the coal lands, coal produc- ing and coal preparation facilities owned or held under lease by them, or any of them, or by any subsidiary or affiliate at the date of this agreement, or acquired during its term which may hereafter (during the term of this agreement) be put into production or use. The Employers agree that they will not lease, license or contract out any coal lands, coal producing or coal preparation facilities for the prupose of avoiding the application of this agreement or any section, paragraph or clause thereof. * * * * * Section (f) Work Jurisdiction The following work shall be performed solely by members of the United Mine Workers of America and will be covered by this agreement: (1) All hauling of coal, overburden, mine refuse in or about the mine, including hauling to a screening, crushing, washing or other prepara- tion facility, or other contiguous mine-related operation. VEPCO, on the other hand, has been signatory to successive collective-bargaining agreements with IBEW, covering all production and maintenance em- - ployees on a systemwide basis, since its certification in 1943. The job classifications in VEPCO's current con- tract with IBEW, however, do not contain any specific titles applying to the operation of conveyors.' C. Contentions of the Parties VEPCO contends that the work in dispute should be assigned to its own employees who are represented by IBEW on the basis of its contract with IBEW and the location of the work at VEPCO's end of the conveyor as well as on the grounds that VEPCO's employees can perform the work more efficiently and economically. Although IBEW did not appear at the hearing and has not filed a brief, it can be assumed that it agrees with VEPCO's position inasmuch as it has never disclaimed the work and its members have continued to perform it. 5 It should be noted, however, that the employees of both VEPCO and Laurel traditionally and regularly operate various smaller conveyor belts within their respective employer's operations. Thus, VEPCO uses convey- ors which carry the coal from the storage silos to the furnaces , and Laurel uses conveyors to remove the coal from the mines and transport it to cleaning and weighing stations 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD UMW, on the other hand, contends, that the work in dispute should properly be assigned to employees represented by it on the basis of article II of its contract with Laurel. It also claims the work because the con- veyor belongs to Laurel which had it built with UMW labor and replaces the coal transportation work for- merly performed by UMW-represented drivers. UMW further argues that the work can be performed more safely and more efficiently by employees represented by it; and, finally, it contravenes Laurel's contract with UMW and because, by its very terms, the lease agree- ment is not binding until approved by the appropriate regulatory agencies of the three States wherein VEPCO operates. D. Applicability of the Statute Before the Board may proceed to the determination of a dispute pursuant to Section 10(k) of the Act, it must be satisfied that (1) there is reasonable cause to believe that Section 8(b)(4)(D) has been violated, and (2) the parties do not have an agreed-upon method for the voluntary resolution of the dispute. As to (1) above, UMW concedes and the record establishes that on or about August 7, 1974, it threat- ened to strike if the work in dispute was not assigned 'to employees represented by it. The record further esta- blishes that on or about August 7 UMW picketed Highway 93, approximately 1-1/2 miles from the VEPCO power station, to prevent coal and oil from being hauled into VEPCO's Mt. Storm plant and to prevent residual ash from being removed from the plant, and that such picketing was in support of its demand for the disputed work. Also, from August 19, to August 20, when all of the picketing was temporarily restrained by court order, the UMW members picketed the entrance to the Mt. Storm facility itself for the same reason. Based on the foregoing, we find that reasonable cause exists to believe that UMW engaged in the afore- mentioned conduct with an object of forcing or requir- ing the assignment of the work in dispute to employees who are represented by UMW rather than to em- ployees who are represented by IBEW, and that, there- fore, such conduct violated Section 8(b)(4)(D) of the Act.b And, since the record shows that the parties do not have an agreed-upon method for the voluntary ad- justment of this dispute which is binding upon all of the parties, we find that the dispute is properly before the Board for resolution. 6 Respondent's claim that the lease agreement between Laurel and VEPCO is invalid, inoperative, or in violation of Respondent's collective- bargaining agreement with Laurel does not provide a valid defense to an action under Sec. 8(b)(4)(D) of the Act Cf. International Longshoremen's and Warehousemen 's Union, Locals 13 and 63, (California Cartage Com- pany), 208 NLRB 986 (1974). E. Merits-of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various relevant factors. We find the following factors relevant: 1. Certification and collective-bargaining agreement IBEW was certified in 1974 as the bargaining agent of VEPCO's production and maintenance employees in a systemwide unit. And, although IBEW's contract with VEPCO does not contain a job description pre- cisely tailored to the work here in dispute, it appears that the contract, covering all employees engaged in production and maintenance functions , is sufficiently broad to cover the employees performing the work. UMW, on the other hand, has never been certified to represent Laurel's employees nor does it represent any employees of VEPCO. And, although UMW'S con- tract with Laurel would, of course, cover the work here in dispute if Laurel had control over such work, the record shows that Laurel does not, in fact, have the work to assign. In these circumstances, we conclude that VEPCO's contract with, IBEW favors awarding the work to VEPCO's employees represented by IBEW. 2. Situs of the work As stated, Laurel leased the conveyor to VEPCO midway through its construction; the electric motor and the controls used to operate the conveyor were thereupon installed at VEPCO's end of the conveyor and are located in the immediate vicinity of VEPCO's storage silos into which the conveyor directly empties. The work in dispute, therefore, is physically located within VEPCO's facilities and must be performed there rather than within Laurel's operating area. Moreover, VEPCO takes legal title when the coal is placed upon the overland conveyor at the junction house on Laurel's property. Hence, VEPCO is, in effect, transporting its own coal from the place of purchase to its storage silos. UMW would have us find that the lease agreement is somehow legally ineffective and not binding on the parties becasue it has not been approved by the appro- priate public utilities commission of the States of Vir- ginia, West Virginia, and North Carolina,7 and that Laurel, therefore, retains control over the work. We are unable to find, on this record, that the lease agreement was other than a valid arm's-length business transac- tion. Moreover, we do not believe that the Board, act- ing in a proceeding under Section 10(k) of the Act, is the proper forum in which to challenge the validity of 7 See fn. 4, supra UNITED MINE WORKERS, LOCAL 1829 the lease even if we thought that UMW had legal stand- ing to do so. Accordingly, for the purposes of our deter- mination of dispute, we shall treat the lease as a proper and lawful business transaction by which Laurel relin- quished control over the operation of the conveyor to VEPCO. With this in mind, we find and conclude that the situs of the work on VEPCO's premises favors assigning the work to VEPCO's employees who are represented by IBEW. 3. Company practice The evidence shows that, until the overland con- veyor became operational in August 1974, all of Lau- rel's coal production was sold to VEPCO and delivered to it by trucks driven by independent owner-operators who were members of UMW and signatory to UMW contracts, but that, since then, the conveyor has carried all the coal furnished VEPCO by Laurel. UMW con- tends that, although the conveyor has replaced those drivers, we must nevertheless look to the practice of the parties prior to its use as a significant factor weighing in favor of its claim for the disputed work. However, this contention ignores the fact that in August 1974 Laurel was still a relatively new mine which then pro- duced only approximately 1 percent of VEPCO's total coal needs as compared to the 30 or 40 percent that it will be expected to provided VEPCO when its mining operation is fully developed; that, further, the use of independent truckers was intended to last only until the conveyor was constructed and operational. In these circumstances, we are unwilling to find that the use of these truckers established a company practice which should be accorded significant weight by us in deter- mining which employees should be awarded the work of operating the conveyor. To the contrary, VEPCO had no prior practice with respect to its Mt. Storm_ overland covered conveyor for the simple reason that no such conveyor existed until the present one was constructed. Indeed, the only "practice" thus far shown in the operation of the conveyor is that resulting from VEPCO's assignment of the work now in question to its employees represented by IBEW. Accordingly, VEPCO's "past" practice is a factor which does not favor the claim of either labor organization or the em- ployees involved. 4. Skills and safety UMW contends that employees represented by it are more skilled in the operation and maintenance of the overland conveyor and can operate it more safely than employees represented by IBEW. The record shows that Laurel employees, represented by UMW, and VEPCO employees, represented by IBEW, are equally skilled in operating the overland conveyor. Both 225 groups of employees regularly operate smaller convey- ors within their respective employer's operations. The fact that the conveyor was built by a contractor using UMW-represented labor does not of itself indicate that Laurel's employees are better equipped to operate the overland conveyor than VEPCO's workers. On the matter of safety, UMW adduced evidence that its mem- bers are uniquely trained to fight fires, the risk of which is ever present within a totally enclosed conveyor sys- tem; to rescue employees who might be trapped in such conveyor; and to administer first aid in cases of emer- gency. There is no evidence that IBEW-represented employees have received similar special training. On the other hand, the record shows that VEPCO has had only one fire in one of its in-plant conveyors and that this fire was quickly put out by the local public fire department. Based on the foregoing, we are not per- suaded that VEPCO, with the use of the local fire department, is unable to cope with whatever hazards might arise. In sum, therefore, we conclude that the factors of skill and safety favor neither group of em- ployees. 5. Efficiency and economy of operations VEPCO has no employees who are represented by UMW. To award the disputed work to UMW-repre- sented employees, therefore, would require VEPCO especially to hire such employees who, when not oper- ating the conveyor, would remain idle. Alternatively, if control of the conveyor were returned to Laurel it would have to be completely rewired at considerable expense to be operated from that end. On the other hand, VEPCO presented testimony that it has assigned two operating helpers, represented by IBEW, to per- form the disputed work. These employees, however, are skilled to perform other tasks for VEPCO when not engaged in operating the conveyor. Furthermore, VEPCO presented testimony, which was uncontested, that the placement of the controls near the coal storage silos enables it to avoid costly "double handling" of coal by monitoring the conveyor and coal as the silos fill up. Accordingly, N` find that this factor favors awarding the work to employees represented by IBEW. 6. VEPCO's preference, VEPCO assigned the work in dispute, and prefers an award, to its own employees who are represented by IBEW. This factor, therefore, favors awarding the work to employees represented by IBEW. Conclusions Upon the entire record in this case , we conclude that VEPCO's employees who are represented by IBEW are 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD entitled to the work in dispute. We reach this conclu- sion based on VEPCO's contract with IBEW, the loca- tion of the work on VEPCO's premises, VEPCO's pref- erence, and the fact that such assignment will result in greater efficiency and economy of operations. Accord- ingly, we shall determine the dispute by awarding the work in dispute to VEPCO's employees represented by IBEW, but not to any labor organization of which these employees are members . In consequence, we find that UMW is not entitled by means proscribed by Section 8(4)(b)(D) of the Act to force or require VEPCO to assign the disputed work to employees represented by it. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Re- lation Act, as amended, and upon the basis of the foregoing findings and the entire record in this proceed- ing, the National Labor Relations Board hereby makes the following Determination of Dispute: 1. Employees of Virginia Electric and Power Com- pany, who are represented by International Brother- hood of Electrical Workers, Local 2308, AFL-CIO, are entitled to perform the following work : operation of the 7,000-foot overland conveyor belt between the facilities of Laurel Run Mining Company and Virginia Electric and Power Company located at Mt. Storm, West Virginia. 2. United Mine Workers of America, Local 1829, District 31 , is not entitled by means proscribed by Sec- tion 8(b)(4)(D) of the Act to force or require Virginia Electric and Power Company to assign the aforemen- tioned work to employeees who are currently repre- sented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, United Mine Workers of America, Local 1829, District 31, shall notify the Re- gional Director for Region 5, in writing, whether or not it will refrain from forcing or requiring Virginia Elec- tric and Power Company, by means proscribed by Sec- tion 8(b)(4)(D), to assign the work in dispute to em- ployees represented by it, rather than to those represented by International Brotherhood of Electrical Worker, Local 2308, AFL-CIO.