International Union, United Mine Workers Of American

MINE WORKERS (CON-SERV, INC ) 865 International Union, United Mine Workers of Amer- ican and District 17, United Mine Workers of America and Local Union 5869, United Mine Workers of America and Con-Serv, Inc-Cases 9-CD-451-1, 9-CD-451-2, and 9-CD-451-3 September 27, 1990 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY The charge in this Section 10(k) proceeding was filed August 24, 1989, by Con-Serv, Inc (the Em- ployer), alleging that the Respondents, Internation- al Union, United Mine Workers of America (Inter- national), District 17, United Mine Workers of America (Distict 17), and Local Union 5869, United Mine Workers of Amenca (Local 5869) violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to employees who are members of the United Mine Workers of America rather than to the Employer's unrepresented employees The hearing was held on November 8 and 9, 1989, before Hearing Officer Deborah Jacobson The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board affirms the hearing officer's rulings, finding them free from prejudicial error On the entire record, the Board makes the following find- ings I JURISDICTION The Employer, a West Virgima corporation with an office and place of business in Switzer, West Virginia, is engaged m the business of steel erec- tion, construction, maintenance, and repair of coal preparation plants and other services During the 12 months preceding November 1989 when a stipu- lation was executed, the Employer performed serv- ices valued in excess of $50,000 directly for cus- tomers located outside the State of West Virginia We therefore find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that, as the parties stipulated, the International, District 17, and Local Union 5869 are labor organizations within the meaning of Sec- tion 2(5) of the Act II THE DISPUTE A Background and Facts of Dispute The Employer has a contract with Rum Creek Coal Sales, Inc , a subsidiary of A T Massey Coal 299 NLRB No 99 Company, to operate a coal preparation plant lo- cated in Dehue, West Virginia The Employer's operation of the plant was to have commenced on Afigust 14, 1989 Until June 30, 1989, Rum Creek Coal Sales had an agreement with Berachah Mimng, Inc to operate this facility Berachah's em- ployees, who were evidently all terminated when Berachah terminated its contract with Rum Creek and ceased operation of the preparation plant, were represented by the Unions The Employer's em- ployees are unrepresented Massey purchased the Dehue Coal Company, whose property included the processing plant in- volved here, in 1982 The Dehue facility was closed down in 1984 as a result of a contract dis- pute between Massey and the Unions In Novem- ber 1985, Dehue entered into a licensing agreement with Berachah Mining to operate the Dehue proc- essing plant Berachah was signatory to an agree- ment with the Unions and apparently hired em- ployees who had previously worked at the same fa- cility for Dehue Coal Company In 1986, Rum Creek Coal Sales was formed by Massey Rum Creek leased the Dehue preparation plant and entered into a contract processing agree- ment with Berachah Mining, which continued to operate the facility without interruption In June 1989, Berachah advised Rum Creek Coal Sales that it was terminating its contract to operate the facili- ty effective June 30, 1989 Rum Creek then entered into a contract with the Employer, which had per- formed major renovations of the processing plant in late 1988, to operate the facility Richard Zigmond, the president of Rum Creek Coal, testified that when the Employer attempted to commence operation of the facility on August 14, 1989, a mass of pickets were located at the community bridge at the preparation plantsite and on a nearby road The pickets threw rocks through the vehicle windows of those attempting to enter the plant, Zigmond said, and also threw spike plates and jack rocks, which burst tires, onto the roads Because pickets both at the community bridge and at a private bndge that was used by coal trucks to enter the preparation plant have con- tinued such activities, and because the pickets have placed a considerable amount of debris on the pri- vate bridge, coal trucks have been prevented from entenng the plant Without any coal to process, the Employer has been unable to operate the facility Employer Vice President Michael Holbrook tes- tified that Union officials at the picket line have told him that the Dehue plant would never run unless it ran union, and that numerous United Mine Workers of America (UMWA) members have also stated to him that the plant would never run if he 866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ran it I Both Holbrook and Rum Creek Coal Presi- dent Zigmond have seen former employees of Ber- achah who used to work at the processing plant on the picket line, and Zigmond identified a number of union officials from the UMWA Local, Distnct, and International Unions whom he observed pick- eting The picketing has continued 24 hours a day, 7 days a week since August 14, 1989, to the time of the heanng The Employer introduced into evidence the answer and counterclaim filed by an attorney for three of the individual defendants in a civil action filed by Rum Creek Coal in the circuit court of Logan County, in which Dehue is located, seeking an injunction against the picketing activity at Dehue The counterclaim asserts that the employ- ees who formerly worked at the Dehue coal prepa- ration plant as employees of Berachah are entitled to retain their jobs at the facility based on a De- cember 1985 settlement agreement and an October 1988 memorandum of understanding between A T Massey and its subsidianes and the Unions The Unions disclaim any interest m the work at issue Distnct 17 Vice President John M Browning testified that none of the union entities charged has any interest m representing the employees of the Employer, that none is attempting to organize the Employer's employees, and that none has ap- proached the Employer and demanded that it hire UMWA members He further stated that none of the former Berachah employees desires to work for the Employer Although noting that the Unions are engaged in picketing relative to a Pittston stnke near the Dehue community, and in fact have Pitt- ston picket Imes located about one-half mile and 1 mile away from the Dehue community bndge pick- eting, Browning maintained that the Unions merely joined in a political protest which had been begun by the community in Dehue Browning stated that Holbrook and some of his armed secunty guards had interfered with the Unions' picketing at the Pittston picket line, and that after one Pittston picket had been shot on August 18 or 19, the Unions decided to get involved and support the community protest at Dehue Brownmg testified that at Dehue the Unions are picketing to protest the eviction of three or four families, the use by coal trucks of a public bndge that is the only access for community children to reach schoo1, 2 and a system which allows "corpo- ' Holbrook drives a pickup with a vanity license plate reading "SCAB 1," and has also published a newsletter entitled "SCAB REVIEW" 2 The heavy coal trucks were apparently causing detenoration of the bridge that had not been designed for such use rate culpnts" like Massey to eliminate medical ben- efits for those people in the community Browning also acknowledged that part of the protest is be- cause the Employer came in and took jobs that former union employees working for Berachah, some of whom had worked at the Dehue prepara- tion plant for 30 or 40 years, had held But he addi- tionally stated that the Unions had not taken the official position that those jobs belonged to those people "Our position is that we protest the system that allows the company to come in and just push people out, eliminate their medical benefits after many years and do what they have done to that community down there," Browning said Dehue resident Cora E Ballard, who is neither a union member nor employed, although she does have family members who are UMWA members, testified that on August 14, 1989, she joined a group of people trying to keep the coal trucks off the community bridge so the children would have a way to go to school Ballard, who lives in the "first house as you come across the bndge," stated that she was protesting the destruction of the com- munity According to Ballard, homes had been burned down, guns shot repeatedly, several women hit by trucks, and children's lives threatened m the Dehue community A fence has also been erected that effectively prevents access to the community church When asked if there were other reasons she was present at the community bndge, Ballard responded that it was to protect the community and "hoping that the coal miners can get back to work" Ballard later identified the miners that she wanted to get back to work as the ones who had been working for Berachah Mining operating the processing plant Signs carned by the protesters stated "Scab 1—Go Home—Leave Our Children Alone," and "Scab 1—Go Home—Make Our Com- munity Safe Again—Let Our Children Get Their Education" UMWA member Roy M Flemings testified that he has participated in the protest for his mother, to protect her card and her pension because his father had worked 29 years at a Youngstown mine Flem- ings also stated that part of the protest was because the Berachah men should have kept their jobs Former Berachah employee John Ruiz testified that he was picketing because the Union directed him to picket and because of community fears of letting their children out of the house to play be- cause guns are being carried m the plant com- pound Ruiz also acknowledged that he was con- cerned about his employment The former Bera- chah employees got together and decided not to apply for work with Holbrook, Ruiz stated, be- cause Holbrook had not offered them jobs and the MINE WORKERS (CON-SERV, INC ) 867 practice down through the years had been that when a new company came in it retained the old company's employees Ruiz said he believed that if he were hired by Holbrook, Holbrook would seize on any little reason to fire him Ruiz had worked with Holbrook for 3 or 4 months when Holbrook and his employees had been performmg renova- tions at the Dehue processing plant while Berachah was still operating the facility B Work in Dispute The work m dispute consists of the operation of the coal preparation plant located at Dehue in Logan County, West Virginia C Contentions of the Parties The Unions move to quash the notice of 10(k) hearing, contending that no jurisdictional dispute exists They assert the following that the UMWA has not desired and does not presently desire the Employer to assign its work to individuals whom it does not currently employ or who are represented by the UMWA, that the UMWA has no interest and has never claimed any interest in representing the Employer's employees, that the Unions do not , seek to have the Employer discharge or displace its current employees in order to hire Berachah Min- ing's former employees, and that there does not exist a dispute between two competing groups of employees for the Dehue preparation plant work Rather, the Unions assert, the picketing has been a peaceful political protest of the circumstances giving rise to the presence of the Employer, and the Unions have merely exercised their first amend- ment rights and made common cause with the Dehue community protesters The Employer contends that the Unions' dis- claimer is insufficient to avoid a decision of the matter on the merits and that, despite the Unions' efforts to obscure the real purpose behmd the pick- eting, it is clear that the picketing was undertaken to protest the presence of a nonunion contractor whose employees have displaced former union-rep- resented employees at the Dehue coal processing facility, in an effort to force reassignment of the work That no union official ever approached an official of the Employer demanding assignment of the work to former Berachah employees is of no import, the Employer argues, because Union threats that the Employer would never operate the facility nonunion establish the requisite demand or threat The Employer further contends that the Board should assign the disputed work to the Em- ployer's unrepresented employees based on em- ployer preference and past practice and efficiency of operation D Applicability of the Statute Before the Board may proceed with a determina- tion of the dispute pursuant to Section 10(k) of the Act, it must find reasonable cause to believe that Section 8(b)(4)(D) has been violated and that the parties have not agreed to a method for voluntary adjustment of the dispute None of the parties are bound by any national or local jurisdictional dispute resolving procedure All attempts informally to adjust the matter were un- successful Section 8(b)(4)(D) makes it an unfair labor prac- tice for a labor orgamzation to engage in pro- scribed activity with an object of "forcing or re- quiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to em- ployees in another labor organization or in another trade, craft, or class " The Board has held that the applicability of Section 8(b)(4)(D) is not limited to competing groups of employees working for the same employer, but also extends to an at- tempt to force the indirect assignment of work from employees of one employer to employees of another 3 It also extends to conduct which is di- rected at ending the contractmg out of work to a firm using members of another union or unrepre- sented employees "The critical issue to be deter- mined under this section of the Act is the legality of a respondent union's attempt to force 'any' em- ployer, whether or not it is the employer employ- ing either contending group of employees, to assign the disputed work to its members rather than to an- other group of employees "4 The testimony of union witnesses makes clear that at least one object of their picketing was to brmg about the rehiring of former Berachah Mmmg employees who had worked at the Dehue coal preparation plant for many years, and the re- assignment of the work to them Virtually every picket who testified indicated that he or she was protesting the Employer's commg in and taking the jobs of these union employees, as did Union Dis- trict Vice President Browning Browning addition- ally stated that one of the reasons for the picketmg was laigamst Massey, because of the way that they are allowed to conduct their business We feel that the system no longer represents people that have worked for employers for forty years or better" Further, Employer Vice President Hol- 3 Electrical Workers IBEW Local 3 (Western Electrical), 141 NLRB 888, 894 (1963), Teamsters Local 222 (Emery Mining), 262 NLRB 1064, 1067 (1982) 4 Teamsters Local 295 (Emery Air Freight), 255 NLRB 1091, 1095 (1981) 868 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD brook testified that he was repeatedly told by Union officials and members that he would never operate the facility nonunion 5 Based on the assertions of both the Union and former Berachah employee witnesses that the Bera- chah employees did not wish to work for the Em- ployer, it would appear that the object of the pick- eting was in fact to force Massey's subsidiary Rum Creek Coal to cease contracting with the Employ- er and instead assign the work to the Union mem- bers who had previously performed it, or contract with an employer who would employ them We have found that such an object is encompassed within the proscriptions of Section 8(b)(4)(D) and Section 10(k), for to hold otherwise would mean that a umon whose employee members have been terminated because their employer ceases oper- ations at a jobsite would be free to picket all future employers who attempt to perform the disputed work at the site with their own employees without limitation 6 As the Board noted in Bronnte Mining, 7 such a result would be a "recipe for juns- dictional unrest which is unsupported by Board precedent and is contrary to the letter and spint of the noted sections of the Act "8 The record indicates that the Umons endorsed and joined m the community picketing at Dehue, and that both Union members and officials partici- pated in the picketing begmmng a few days from its commencement From 7 to 10 of the Dehue pickets, approximately the number of former Bera- chah employees, also received benefits adminis- tered through the International Union Thus, there is reasonable cause to believe that the Respondent Unions are engaged m picketing the Employer with an object of forcing reassignment of the work to their members, 9 even though they may not have ongmally instigated the picketing It is also undis- puted that the picketmg has prevented all coal trucks from entenng the preparation plant As to the Unions' contention that this proceeding should be dismissed because all three Unions have disclaimed the disputed work, we find that the Unions have disclaimed the work in order to avoid 5 Although Holbrook's testimony in this regard was uncontradicted, we need not evaluate its veracity, for the Board is charged in a 10(k) pro- ceeding only with determining that reasonable cause exists for finding a violation of Sec 8(b)(4)(D) of the Act, not with finding that the violation actually occurred Mine Workers (Bronzue Mining), 280 NLRB 587 at fn 16 and cases cited therein (1986) 6 United Mine Workers (Bronzite Mining), supra at 590 7 Id 8 The concurrence's citation to Longshoremen ILWU Local 62-B v NLRB, 781 F 2d 919 (DC Cif 1986), is inapposite for the reasons gener- ally noted in Mine Workers (Bronzite Mining), supra at 590 9 One unlawful object is sufficient to bring the Mme Workers conduct within the coverage of Sec 8(b)(4)(D) even if a lawful purpose were also shown to exist Plumbers Local 195 (Gulf Oil), 275 NLRB 484, 485 fn 7 (1985) the Board's determination of the dispute, and that the disclaimer is not entitled to be given any effect It is well established that the Board will not honor a hollow disclaimer, that is, one submitted for the purpose of avoiding an authontative decision on the ments 18 Here, the Unions' actions in picketing the Employer with an object of forcing the reas- signment of the work to union members who had previously operated the processing plant are incon- sistent with their denial of interest in the work That the Unions made no specific demand of the Employer for the work, and indeed might not wish to represent employees of the Employer who would perform the work, does not establish that no junsdictional dispute exists, for we have found, supra, that the Umons' object in the picketing need not relate to the assignment of the work by Con- Serv in order to violate the prohibitions of Section 8(b)(4)(D) Accordingly, we deny the Unions' motion to quash the notice of 10(k) hearing Based on the above, we find reasonable cause to believe a violation of Section 8(b)(4)(D) has oc- curred There being no agreed method for volun- tary adjustment of the dispute, we find that the dis- pute is properly before the Board for determina- tion E Merits of the Dispute Section 10(k) requires the Board to make an af- firmative award of disputed work after considenng various factors NLRB v Electrical Workers IBEW Local 1212 (Columbia Broadcasting), 364 U S 573 (1961) The Board has held its determination in a junsdictional dispute is an act of judgment based on common sense and experience, reached by bal- ancing the factors involved in a particular case Machinists Lodge 1 743 (J A Jones Construction), 135 NLRB 1402 (1962) The following factors are relevant in determining this dispute 1 Certifications and collective-bargaining agreements None of the labor organizations involved has been certified by the Board as the collective-bar- gaming agent for any unit of the Employer's em- ployees Nor is the Employer signatory to any col- lective-bargaining agreement with the Unions or with any other labor organization The former Ber- achah employees were covered by a United Mine Workers agreement with Berachah Mining, but the Employer's contract with Rum Creek Coal con- 10 Carpenters Local 102 (Meiswinkel Interiors), 260 NLRB 972, 975 (1982), Cement Masons Local 502 (Advance Terazzo), 272 NLRB 810 (1984) MINE WORKERS (CON-SERV, INC ) 869 tains no requirement that the Employer assume or be subject to any contractual labor obligations This factor therefore does not favor an award to either group of employees 2 Company preference and past practice Employer Vice President Holbrook testified that the Employer prefers to use its unrepresented em- ployees to perform the disputed work The Em- ployer employs a stable core group of about six employees on a job-to-job basis as work is ob- tained It has been the Employer's regular practice to use these employees for any new project it agrees to, and some have been with the Employer since its incorporation in 1984 The Holbrook family owns and operates a number of related com- panies, and several of the Con-Serv employees have in fact worked for the family for up to 10 years This factor therefore favors an award to the Employer's unrepresented employees 3 Area and industry practice With the exception of testimony that previous employers had retained the employees of prior op- erators of the Dehue plant, no evidence regarding area and \ industry work assignment practice was presented We do not find the evidence regardmg the practice at this one particular site to establish an area or industry practice Therefore, this factor does not favor an award to either group of em- ployees 4 Economy and efficiency of operation From about October through December 1988, when Berachah Mmmg was still operating the Dehue facility, the Employer performed repair and major renovation work at the coal preparation plant 11 This work included the installation of new equipment, and was performed by five to eight of the Employer's employees, including those in as stable core group When the Employer contracted with Rum Creek Coal to operate the facility, it in- tended to assign the work to these same employees who were already knowledgeable in the operation and repair of the equipment Since approximately March 1989, most of these employees who have been unable to work at the Dehue plant because of the picketing have been performing regular pro- duction work at another coal preparation plant for a Holbrook family-related operation Employer Vice President Holbrook testified that his core group of employees are multiskilled and cross-trained to perform almost every function re- 11 The Employer had performed repair and maintenance work at the facility for a number of years quired at the coal processing plant Of the six job classifications needed to run the Dehue plant, Hol- brook stated, four of the Employer's six core em- ployees would be able to perform each and every function The other two could perform certain of the jobs The former Berachah employees, having worked at the preparation plant for many years, are obvi- ously familiar with the plant and its operation When Berachah terminated its contract with Rum Creek Coal, it cited its financial condition as the reason It would thus appear that Berachah did not go out of business because of safety or productivity problems with this group of employees The Unions, however, did not present evidence regard- ing the union employees' specific capabilities, in- cludmg whether they might have some repair and maintenance skills The record indicates that even when the Bera- chah employees were operating the plant, the Em- ployer's employees were brought m to do repair, maintenance, and installation work Further, having installed the new equipment now in place at the fa- cility, they are familiar with its structure and oper- ation On the evidence before us, we find that there is some added efficiency in having the employees who are operating the processing plant also capa- ble of the repair and maintenance of its equipment We therefore find that this factor favors an award to the Employer's unrepresented employees Conclusion After considering all the relevant factors, we conclude that the Employer's unrepresented em- ployees are entitled to perform the work in dispute We reach this conclusion relying on the factors of company preference and past practice and econo- my and efficiency of operation The determination is limited to the controversy that gave rise to this proceeding DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determmation of Dispute 1 The unrepresented employees of Con-Serv, Inc are entitled to perform the work of operating the coal preparation plant located at Dehue in Logan County, West Virginia 2 International Union, United Mine Workers of America, District 17, United Mine Workers of America, and Local Union 5869, United Mine Workers of Amenca are not entitled by means pro- scribed by Section 8(b)(4)(D) of the Act to force Con-Serv, Inc to assign the disputed work to the former employees of Berachah Mining, Inc 870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 Within 10 days from this date, International Union, United Mine Workers of America, District 17, United Mine Workers of America, and Local Union 5869, United Mine Workers of America shall notify the Regional Director for Region 9 in writing whether they will refrain from forcing the Employer, by means proscribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsistent with this determination CHAIRMAN STEPHENS, concurrmg I have serious reservations concerning whether the Respondent's picketing can be said to have an object that is unlawful within the meaning of Sec- tion 8(b)(4)(D) of the Act See Longshoremen ILWU Local 62-B v NLRB, 781 F 2d 919 (D C Cir 1986) (enforcing order as to 8(b)(4)(B) finding and denying as to 8(b)(4)(D) finding) I recognize, however, that, in that regard, this case is controlled by Mine Workers (Bronzzte Mining), 280 NLRB 587 (1986) For institutional reasons, I concur in the finding that a jurisdictional dispute is presented, and I join my colleagues in their resolution of that dispute