Mine Workers (Energy West)

National Labor Relations Board - Board Decisions

Aug 19, 1991

304 N.L.R.B. 107 (N.L.R.B. 1991)

107
304 NLRB No. 17
MINE WORKERS (ENERGY WEST)
1 Local 57, following the Regional Director’s denial of its prehearing motion
to quash, discussed below, has not further participated in this proceeding.
2 UMW admitted the Board’s jurisdiction at the hearing. Local 57, although
not participating in the instant hearing, admitted the Board’s jurisdiction in
Case 27–UC–122, a related proceeding discussed below.
International Union, United Mineworkers of Amer-
ica and Energy West Mining Company and
International Brotherhood of Electrical Work-
ers, Local Union No. 57 and Pacificorp d/b/a
Utah Power and Light Company. Case 27–CD–
227
August 19, 1991
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
The charge in this Section 10(k) proceeding was
filed March 6, 1991, by Energy West Mining Com-
pany (the Employer or Energy West) alleging that the
Respondent, International Union, United Mineworkers
of America (UMW), violated Section 8(b)(4)(D) of the
National Labor Relations Act by engaging in pro-
scribed activity with an object of forcing the Employer
to assign work to employees it represents rather than
to employees of PacifiCorp d/b/a Utah Power and
Light Company (Utah Power), represented by Inter-
national Brotherhood of Electrical Workers, Local
Union No. 57 (Local 57). The hearing was held April
4, 1991, before Hearing Officer Wayne L. Benson.
Thereafter, the parties participating in the hearing filed
briefs in support of their positions.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire
record, the Board makes the following findings.
I. JURISDICTION
The Employer, a Utah corporation, is engaged in the
mining of coal in the State of Utah, where it annually
receives goods valued in excess of $50,000 directly
from suppliers located outside the State. Utah Power,
an Oregon corporation, is a public utility engaged in
the generation, transmission, and distribution of elec-
trical energy in several States, including Utah, where
it annually receives goods valued in excess of $50,000
directly from suppliers located outside the State of
Utah. We find that the Employer and Utah Power are
engaged in commerce within the meaning of Section
2(6) and (7) of the Act. We further find that UMW
and Local 57 are labor organizations within the mean-
ing of Section 2(5) of the Act.2
II. THE DISPUTE
A. Background and Facts of Dispute
This work assignment dispute involves two coal
mine water supply pumps located at the Huntington
electrical powerplant in Utah, a facility operated by
Utah Power. The two pumps were installed in 1987 as
a result of a fire at one of the area coal mines owned
by Utah Power—and currently operated by the Em-
ployer—which supply fuel for the electrical power-
plant. The fire took the lives of 27 mining employees.
The primary purpose of the pumps is to assure an ade-
quate water supply in case of a fire emergency at the
mines; they also provide water for, inter alia, dust con-
trol and motor cooling purposes at the mines. Although
located at the powerplant the pumps are monitored and
controlled through a computerized system located at
the Deer Creek coal mine.
When the pumps became operational in 1987, the
Mining Division of Utah Power became responsible
for them. The Mining Division was created in 1986 to
operate Utah Power’s coal mines, functioning sepa-
rately from Utah Power’s electrical power branch both
operationally and with regard to labor relations, ac-
cording to undisputed evidence on this record. The
Mining Division assigned the work of inspecting and
maintaining the pumps to its employees represented by
UMW, with whom it had a collective-bargaining rela-
tionship. The essence of the work in dispute has re-
mained the same since its inception. A UMW-rep-
resented employee classified as a ‘‘belt patrolman’’
makes a visual and manual inspection of the two
pumps twice daily in the course of his other duties at
the power plant involving maintenance of a coal con-
veyor belt running between the mine area and the pow-
erplant. The pump inspection involves several steps
and routinely takes about 5 minutes. Necessary repairs
to the pumps are performed by UMW-represented em-
ployees classified as mechanics. There are other water
pumps in the immediate area of the Huntington plant
where the two mine pumps are located. These other
pumps, unlike the mine pumps, are related to the oper-
ation of the power plant and are maintained by Utah
Power employees represented by Local 57. Local 57-
represented employees have never inspected or main-
tained the mine pumps; this work has been performed
exclusively by UMW employees.
In January 1988, Local 57 filed a contractual griev-
ance with Utah Power concerning the mine pump
work. The nature of the grievance, which is still pend-
ing, is that because the mine pumps are located on the
Huntington power plant property, inspection and main-
tenance of the pumps should be done by Local 57-rep-
resented employees. On April 26, 1990, Utah Power
filed a unit clarification petition, Case 27–UC–122,
with the Board’s Regional Office, seeking, inter alia,
108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The facts above concerning Utah Power’s relationship with the Mining Di-
vision and with Energy West are undisputed. For purposes of this decision,
we take them at face value, treating each of the employers as a separate em-
ploying entity. Apart from the foregoing, we find it unnecessary to, and we
do not, reach the issue of whether or not these entities constitute a single em-
ployer.
4 In view of Local 57’s failure to appeal or otherwise preserve the issue,
the Regional Director’s denial of its motion to quash the notice of hearing is
not properly before us. In any event, we find that Local 57’s ‘‘Notice of Dis-
claimer’’ was ineffective to renounce its interest in the disputed work. We
reach this conclusion in view of the asserted disclaimer’s equivocal language,
i.e., it stated only that the local made no claim against Energy West rather
than disclaiming interest in the work itself, and because the local’s continued
pursuit of its grievance is inconsistent with its purported disclaimer. See, e.g.,
Iron Workers Local 197 (Del Guidice Enterprises), 291 NLRB 1, 2 (1988).
Chairman Stephens, noting that Local 57’s grievance does not involve a
lawful union signatory subcontracting clause in the construction industry, finds
his dissenting view in Laborers Local 731 (Slattery Associates), 298 NLRB
787 (1990), not properly applicable here. He also notes that Local 57’s letter
specifically requests the work as well as demanding arbitration of its griev-
ance.
to clarify that the employees performing the mine
pump inspection and maintenance work are included in
the UMW bargaining unit. In October 1990, while the
UC petition was being processed, Energy West, the
Employer, was created as a wholly-owned subsidiary
of Utah Power to operate the coal mines. Similar to
the Mining Division, which it effectively replaced, En-
ergy West functions independently of Utah Power’s
electrical utility business, both operationally and con-
cerning labor relations. It succeeded the Mining Divi-
sion in the collective-bargaining relationship with
UMW.3
On February 11, 1991, the Board issued an unpub-
lished decision in Case 27–UC–122, reversing the Act-
ing Regional Director’s earlier decision and dismissing
the petition to the extent it sought to clarify the UMW
unit to include employees performing the mine pump
work. The Board found that this matter constituted a
work assignment dispute and thus was inappropriate
for consideration in a unit clarification proceeding. By
letter of February 28, 1991, Local 57 requested that
Utah Power assign the disputed work to employees it
represents, and in the alternative demanded that the
parties proceed to arbitrate the outstanding 1988 griev-
ance. Subsequently, UMW was informed by the Em-
ployer of Local 57’s position and that the work would
be assigned to Local 57-represented employees if an
arbitrator so directed. By letter dated March 5, 1991,
UMW responded, stating, inter alia, that it would ‘‘re-
spond to any attempt to remove this work from our ju-
risdiction by taking whatever action is necessary, up to
and including a strike, to ensure that we continue to
perform these pump maintenance duties.’’ The Em-
ployer then filed an 8(b)(4)(D) charge against UMW.
A few days prior to the 10(k) hearing, Local 57 di-
rected to the Employer a document entitled ‘‘Notice of
Disclaimer,’’ which stated that it ‘‘does not now and
never has made any claim upon your company’’ for
the disputed work in this case. At the same time, Local
57 moved before the Regional Director to quash the
notice of hearing, relying on its asserted disclaimer.
The Regional Director denied the motion, finding that
the ‘‘Notice of Disclaimer’’ was inconsistent with
Local 57’s continued pursuit of its grievance with Utah
Power concerning the disputed work. Local 57 did not
appeal the Regional Director’s denial of the motion,
and, as noted above, has not further participated in this
proceeding.
B. Work in Dispute
The disputed work involves mine supply pump in-
spection and maintenance work at the Deer Creek mine
and the Huntington electrical powerplant facilities.
C. Contentions of the Parties
The Employer and Utah Power each contend that the
Board should award the disputed work to employees
represented by UMW, arguing that the factors of em-
ployer preference and past practice, area practice, col-
lective-bargaining agreements, safety, and economy
and efficiency support such a determination. They also
contend that Local 57’s asserted disclaimer does not
represent an abandonment of its claim for the work be-
cause it is continuing to press its grievance to arbitra-
tion.
UMW asserts as well that the disputed work should
be awarded to the employees it represents. It relies on
the factors of employee qualifications, collective-bar-
gaining agreements, employer preference and past
practice, economy and efficiency, and area and indus-
try practice to support its position. It also contends that
Local 57’s attempted disclaimer is invalid because it is
not consistent with its continued pursuit of its griev-
ance claiming the work.
D. Applicability of the Statute
Before the Board may proceed with a determination
of a dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to be-
lieve that Section 8(b)(4)(D) has been violated and that
the parties have not agreed on a method for the vol-
untary adjustment of the dispute.
In January 1988, Local 57 filed a grievance with
Utah Power which contended that the work in dispute
should be assigned to employees it represents in view
of the location of the mine pumps on the Huntington
powerplant property. Local 57’s letter of February 28,
1991, effectively reaffirmed its desire for the work by
making an outright request for the assignment and de-
manding arbitration of the pending grievance should
Utah Power not accede. Local 57’s conduct clearly
constitutes a claim for the work in dispute.4
109MINE WORKERS (ENERGY WEST)
5 There is no record evidence concerning any Board certification relevant to
the determination of this dispute.
6 Art. 1A(a) states in relevant part:
The production of coal, including removal of overburden and coal
waste, preparation, processing and cleaning of coal and transportation of
coal (except by waterway or rail not owned by Employer), repair and
maintenance work normally performed at the mine site or at a central
shop of the Employer and maintenance of gob piles and mine roads, and
work of the type customarily related to all of the above shall be per-
formed by classified Employees of the Employer covered by and in ac-
cordance with the terms of this Agreement.
7 Concerning industry practice, evidence supporting the contention that mine
water pumps throughout the United States are operated and maintained by
UMW-represented employees was scant, vague, and therefore insufficient.
UMW, by its letter of March 5, 1991, reacted to the
information that the disputed work might be taken
away from the employees it represents by stating that
it would take ‘‘whatever action is necessary, up to and
including a strike’’ to safeguard the right of employees
it represents to continued performance of the work.
The 8(b)(4)(D) charge was filed in light of UMW’s
conduct.
We find reasonable cause to believe that a violation
of Section 8(b)(4)(D) has occurred. Further, it is appar-
ent on this record that there is no agreed method bind-
ing all the parties to a voluntary adjustment of the dis-
pute within the meaning of Section 10(k) of the Act.
Accordingly, we find that the dispute is properly be-
fore the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative award of disputed work after considering various
factors. NLRB v. Electrical Workers IBEW Local 1212
(Columbia Broadcasting), 364 U.S. 573 (1961). The
Board has held that its determination in a jurisdictional
dispute is an act of judgment, based on common sense
and experience, reached by balancing the factors in-
volved in a particular case. Machinists Lodge 1743
(J. A. Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of this dispute.
1. Collective-bargaining agreements5
The broadly worded work jurisdiction provision of
the current collective-bargaining agreement between
the Employer and UMW (the Bituminous Coal Wage
Agreement of 1988) is interpretable as covering the
work in dispute.6 Evidence in the form of arbitration
decisions involving UMW and predecessors of the Em-
ployer, although not on point with the work dispute
issues here, do tend to support the contention that
‘‘water pump work’’ at, near, or relating to the mines
is unit work under the contract. It is apparent that the
agreement between UMW and the Employer at least
arguably covers the disputed work.
In addition, Energy West, the employer that, as es-
tablished on this record, controls the assignment of the
work in dispute, is not signatory to a collective-bar-
gaining agreement with Local 57. Thus, Local 57 has
no contractual basis for a claim to the work. In any
event, even if we were to assume, arguendo, that Utah
Power ultimately controls the disputed work, there is
no language in its 1990 and 1991 agreements with
Local 57, placed in evidence by the parties at the hear-
ing, that even arguably covers the work in dispute.
We find that the factor of collective-bargaining
agreements favors an award of the work to the em-
ployees represented by UMW.
2. Employer preference and past practice
The Employer’s stated preference is that employees
represented by UMW perform the work in dispute.
Since the company’s inception in October 1990 it has
assigned the work to those employees. Also, it is note-
worthy that the Mining Division, the Employer’s pred-
ecessor, assigned the work to employees represented
by UMW from the time the mine supply pumps were
installed in 1987. It is thus apparent that since the
work has become available it has been performed ex-
clusively by the UMW-represented employees. The
employer preference and past practice factor favors an
award of the disputed work to the employees rep-
resented by UMW.
3. Area and industry practice
There was undisputed testimony that in most of the
western United States, including Utah—the location of
the disputed work—underground coal mine operators
use a water pumping system at their mines similar in
function to the Employer’s. At each of these mines,
UMW-represented employees, if present, rather than
any other employee group, operate, maintain, and re-
pair the mine pumps. One of these other mine loca-
tions is adjacent to a powerplant, and the mine supply
pumps are located on powerplant property, close by
water pumps serving the powerplant. In that situation,
quite similar to the Employer’s, the mine supply
pumps are maintained by UMW-represented employ-
ees, and the power plant pumps are maintained by
other employees.
We find that area practice favors an award to em-
ployees represented by UMW.7
4. Economy and efficiency of operations
The parties participating at the hearing and briefing
the issues before us agreed that it is more economical
and efficient for UMW-represented employees to per-
form the disputed work. However, there is scant evi-
dence to support this view. For example, the Employer
contends that it would be a ‘‘great expense’’ to train
employees represented by Local 57 to perform the
work if awarded to them; yet there is no significant
evidence to support this claim. We find that the evi-
110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dence relating to the economy and efficiency factor is
inconclusive, and that this factor does not favor an
award of the disputed work to either employee group.
5. Relative skills and safety
The parties do not dispute that both employee
groups possess the essential knowledge, ability, and
skills to perform the disputed work. However, with re-
spect to safety-related qualifications, it is also undis-
puted that UMW-represented employees, unlike Local
57 employees, are required to be, and are, trained pur-
suant to regulations of the Federal Mine Safety and
Health Administration (MSHA) and to a more limited
extent pursuant to state law, in order to carry out the
work in dispute, as well as other mine-related duties.
We find that the evidence relating to this factor favors
an award to the UMW-represented employees.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by the UMW are en-
titled to perform the work in dispute. We reach this
conclusion relying on the factors of collective-bargain-
ing agreements, employer preference and past practice,
area practice, and safety qualifications. In making this
determination, we are awarding the work to employees
represented by the UMW, not to that Union or its
members. This determination is limited to the con-
troversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
Employees of Energy West Mining Company, rep-
resented by International Union, United Mine Workers
of America, are entitled to perform mine supply pump
inspection and maintenance work at the Deer Creek
mine and the Huntington electrical powerplant facili-
ties, near Huntington, Utah.