Consolidation Coal Company

CONSOLIDATION COAL COMPANY 541 Consolidation Coal Company and United Mine Workers of America. Case 14-CA-14626 June 12, 1981 DECISION AND ORDER Upon a charge filed on January 21, 1981, by United Mine Workers of America, herein called the Union, and duly served on Consolidation Coal Company, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 14, issued a com- plaint on February 5, 1981, against Respondent, al- leging that Respondent had engaged in and was en- gaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Rela- tions Act, as amended. Copies of the charge and complaint and notice of hearing before an adminis- trative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on December 3, 1980, following Board elections in Cases 14-RC- 9251, 14-RC-9252, and 14-RC-9253, the Union was duly certified as the exclusive collective-bar- gaining representative of Respondent's employees in each of the separate units found appropriate;' and that, commencing on or about December 30, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bar- gaining representative, although the Union has re- quested and is requesting it to do so. Subsequently, Respondent timely filed an answer and an amended answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On February 25, 1981, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on March 10, 1981, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent thereafter filed a response to the Notice To Show Cause. Upon the entire record in this proceeding, the Board makes the following: I Official notice is taken of the record in the representation proceed- ings, Cases 14-RC-9251. 14-RC-9252, and 14-RC-9253, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended See LT' Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968); Golden Age Bever- age Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir 1969): Inter- type Co. v. Penello, 269 FSupp. 573 (D.C.Va 1967); Follett Corp.. 164 NLRB 378 (1967), enfd 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. 256 NLRB No. 93 Ruling on the Motion for Summary Judgment In its answer to the complaint and response to the Notice To Show Cause, Respondent attacks the validity of the Union's certifications by denying the appropriateness of the certified units. Respondent also asserts that the complaint should be dismissed as a matter of policy because the Union seeks rec- ognition in units in which the Union had contrac- tually agreed not to do so. The General Counsel argues that all material issues have previously been decided. We agree with the General Counsel. A review of the record herein, including the record in consolidated Cases 14-RC-9251, 14-RC- 9252, and 14-RC-9253, reveals that, on October 15, 1980, the Regional Director for Region 14 issued a Decision and Direction of Elections, in which he found appropriate separate units of ware- house employees at each of three mines operated by Respondent in the State of Illinois. In so find- ing, the Regional Director rejected Respondent's contentions that (1) the only appropriate unit would be an employerwide unit of all its ware- house employees, and (2) that the Union agreed in the National Bituminous Coal Wage Agreement of 1978, to which the Union and Respondent are par- ties, not to seek to represent its warehouse employ- ees in issue. Thereafter, Respondent filed a timely request for review. On November 13, 1980, separate elections were held in each of the units found appropriate and the ballots were impounded in each. On November 24, 1980, the Board denied Respondent's request for review. Accordingly, 2 days later, all impounded ballots were opened and counted. The tallies of ballots showed that, of approximately four eligible voters in Case 14-RC-9251, three cast valid ballots in favor of, and one against, the Union; that, of ap- proximately five eligible voters in Case 14-RC- 9252, four cast valid ballots for, and one against, the Union; and that, of approximately five eligible voters in Case 14-RC-9253, five cast valid ballots for, and none against, the Union. Respondent filed timely objections to the elections raising, inter alia, the same contentions that had been rejected by the Regional Director in his Decision and Direction of Elections. Following an investigation, the Regional Director issued a Supplemental Decision and Certi- fications of Representative overruling the objec- tions and certifying the Union as representative in each of the three units. Thereafter, Respondent filed a timely request for review, which the Board denied on January 16, 1981. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD leging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.2 All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discov- ered 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 Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Consolidation Coal Company, a Delaware cor- poration, maintaining mine facilities in the State of Illinois, is engaged in the mining and nonretail sale of coal. Respondent's mine facilities, Burning Star Mine No. 3, Sparta, Illinois; Burning Star Mine No. 4, Cutler, Illinois; and Burning Star Mine No. 5, DeSoto, Illinois, are the only facilities involved in this proceeding. During the 12-month period ending January 31, 1981, a representative period, Respondent sold and shipped, or caused to be shipped, goods valued in excess of $50,000, of which goods valued in excess of $50,000 were shipped from Respondents Sparta, Cutler, and DeSoto, Illinois, facilities directly to points located outside the State of Illinois. 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 jurisdiction herein. 11. THE LABOR ORGANIZATION INVOLVED United Mine Workers of America is a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute separate units appropriate for collective-bar- 2 See Pittsburgh Plate Glass Co. v. N.L.R.B.. 313 US. 146, 162 (1941); Rules and Regulations of the Board, Sees. 102.67(f) and 102.69(c). gaining purposes within the meaning of Section 9(b) of the Act: All warehouse employees employed at Re- spondent's Burning Star Mine No. 3 in Sparta, Illinois, excluding office clerical and profes- sional employees, warehouse managers, guards and supervisors as defined in the Act. All warehouse employees employed at Re- spondent's Burning Star Mine No. 4 in Cutler, Illinois, excluding office clerical and profes- sional employees, warehouse managers, guards and supervisors as defined in the Act. All warehouse employees employed at Re- spondent's Burning Star Mine No. 5 in DeSoto, Illinois, excluding office clerical and professional employees, warehouse managers, guards and supervisors as defined in the Act. 2. The certification On November 13, 1980, a majority of the em- ployees of Respondent in said separate units, in secret-ballot elections conducted under the supervi- sion of the Regional Director for Region 14, desig- nated the Union as their representative for the pur- pose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said sep- arate units on December 3, 1980, 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 December 30, 1980, and at all times thereafter, the Union has requested 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 30, 1980, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said separate units. Accordingly, we find that Respondent has, since December 30, 1980, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the separate appropriate units, and that, by such refus- al, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1) of the Act. CONSOLIDATION COAL COMPANY 543 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 oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. 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 separate appropriate units and, if an under- standing is reached, embody such understanding in signed agreements. In order to insure that the employees in the sepa- rate appropriate units 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 Re- spondent commences to bargain in good faith with the Union as the recognized bargaining representa- tive in the separate appropriate units. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Com- merce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Consolidated Coal Company is an employer engaged in commerce within the meaning of Sec- tion 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 warehouse employees employed at Re- spondent's Burning Star Mine No. 3 in Sparta, Illi- nois, excluding office clerical and professional em- ployees, warehouse managers, guards and supervi- sors as defined in the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. All warehouse employees employed at Re- spondent's Burning Star Mine No. 4 in Cutler, Illi- nois, excluding office clerical and professional em- ployees, warehouse managers, guards and supervi- sors as defined in the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. All warehouse employees employed at Re- spondent's Burning Star Mine No. 5 DeSoto, Illi- nois, excluding office clerical and professional em- ployees, warehouse managers, guards and supervi- sors as defined in the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 6. Since December 3, 1980, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid separate appropriate units for the purpose of collective bargaining within the meaning of Sec- tion 9(a) of the Act. 7. By refusing on or about December 30, 1980, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive bargaining representative of all the employ- ees of Respondent in the separate appropriate units, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) of the Act. 8. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Consolidation Coal Company, Sparta, Cutler, and DeSoto, Illinois, 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 conditions of employment with United Mine Work- ers of America as the exclusive bargaining repre- sentative of its employees in each of the following separate appropriate units: All warehouse employees employed at Re- spondent's Burning Star Mine No. 3 in Sparta, Illinois, excluding office clerical and profes- sional employees, warehouse managers, guards and supervisors as defined in the Act. 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All warehouse employees employed at Re- spondent's Burning Star Mine No. 4 in Cutler, Illinois, excluding office clerical and profes- sional employees, warehouse managers, guards and supervisors as defined in the Act. All warehouse employees employed at Re- spondent's Burning Star Mine No. 5 in DeSoto, Illinois, excluding office clerical and professional employees, warehouse managers, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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 separate appropri- ate units with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in signed agreements. (b) Post at its Sparta, Cutler, and DeSoto, Illi- nois, facilities copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms pro- vided by the Regional Director for Region 14, after being duly signed by Respondent's representa- tive, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, 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 14, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 3 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX 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 representative of the employees in the separate bargaining units described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees 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 repre- sentative of all employees in the separate bar- gaining units described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an un- derstanding is reached, embody such under- standing in signed agreements. The bargaining units are: All warehouse employees employed at our Burning Star Mine No. 3 in Sparta, Illinois, excluding office clerical and professional employees, warehouse managers, guards and supervisors as defined in the Act. All warehouse employees employed at our Burning Star Mine No. 4 in Cutler, Illinois, excluding office clerical and professional employees, warehouse managers, guards and supervisors as defined in the Act. All warehouse employees employed at our Burning Star Mine No. 5 in DeSoto, Illinois, excluding office clerical and professional employees, warehouse managers, guards and supervisors as defined in the Act. CONSOLIDATION COAL COMPANY