Newport Mining Corp.

National Labor Relations Board - Board Decisions

Mar 20, 1968

170 N.L.R.B. 596 (N.L.R.B. 1968)

596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Newport Mining Corporation and United Mine
Workers of America. Case 6-CA-4112
March 20, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
Upon a charge filed by United Mine Workers of
America, herein called the Union, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 6, issued a com-
plaint dated December 19, 1967, against Newport
Mining Corporation, herein called Respondent, al-
leging that Respondent had engaged in and was en-
gaging in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of'the National Labor
Relations Act, as amended. Copies of the charge,
complaint, and notice of hearing before a Trial Ex-
aminer were duly served upon Respondent.
With respect to the unfair labor practices, the
complaint alleges, in substance, that on or about
November 2, 1967, the Board duly certified the
Union' as the exclusive bargaining representative of
Respondent 's employees in the unit found ap-
propriate by the Board and that, since on or about
December 6, 1967, and thereafter, Respondent has
refused and is refusing to recognize and bargain
with the Union as such exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. On December 28,
1967, Respondent filed its answer, which denied
the commission of the unfair labor practices al-
leged.
On January 10, 1968, the General Counsel filed
with the Board a motion for summary judgment, as-
serting, in view of admissions contained in Respon-
dent's answer and other written admissions annexed
as appendixes to the moving papers, that there are
no issues of fact or law requiring a hearing, and
praying the issuance of a decision and order finding
the violations as alleged in the complaint.
Thereafter, on January 15, 1968, the Board issued
an order transferring proceeding to the Board, and,
on the same date, a notice to show cause on or be-
fore January 29, 1968, why the General Counsel's
motion for summary judgment should not be
granted. On January 27, 1968, Respondent filed
objections to the General Counsel's motion for
summary judgment (referred hereinafter as the mo-
tion).'
' Case 6-RC-4437 (Not published in NLRB volumes.)
2 Respondent 's request for oral argument is hereby denied , as the record
and other papers adequately present the issues and positions of the parties.
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-
powers in connection with this case to a three-
member panel.
Upon the entire record in this case, the Board
makes the following:
Ruling on the Motion for Summary Judgment
In its objections to the motion, Respondent con-
tends, inter alia , that it is entitled to an evidentiary
hearing to insure full litigation of the facts: This
contention is without merit. The truth of the allega-
tions of the complaint has either been expressly ad-
mitted by Respondent in its answer, or stands ad-
mitted by virtue of the uncontroverted factual aver-
ments in the General Counsel's motion. -
The record before us establishes that on May 31,
1967, Respondent and the Union entered into a
stipulation for certification Aupon consent election
for a unit of:
All employees engaged in'-the production of
coal, repair and maintenance, processing and
loading of coal, electricians and laborers of
Newport. Mining-- Corporation at its mine #I
and--mine #2 and tipple, all located in Barbour
County, West Virginia, excluding office cleri-
cal employees, guards, janitors, professional
mployees, and supervisors as defined in the
Act:
The Board in its Decision and Certification of
Representative dated November 2, 1967, in Case
6-RC-4437, found the above to constitute an ap-
propriate unit for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act.
On June 28, 1967, pursuant to the above stipula-
tion and approval by the Regional Director for Re-
gion 6, an election was held in which a majority of
the votes was case for the Union. Thereafter,
Respondent timely filed objections to conduct af-
fecting results of election, contending that the
Union misrepresented the financial ownership and
condition of Respondent and that the Union had
caused a strike and picket line to occur 2 days be-
fore the election. Both acts were alleged to have -
"impaired the free and informed atmosphere
requisite to an untrammeled expression of choice
by the employees...." After an administrative in-
vestigation, the Regional Director issued his report
on objections on September 1, 1967. He found that
the alleged misrepresentations were not of such a
170 NLRB No. 85
NEWPORT MINING CORPORATION
nature as to impair the employees' ability to evalu-
ate them. Further, he found that Respondent had a
sufficient time to reply and correct any possible
misunderstanding that might have occurred. The
Regional Director found no evidence that the work
stoppage was called or authorized by the Union.
Further, he noted that an economic strike is not
sufficient per se to prevent the holding of an elec-
tion.
Based on the above findings, the Regional
Director recommended that Respondent's objec-
tions be overruled.
On September 9, 1967, Respondent filed timely
exceptions to the report on objections and, on the
same date, a motion to reopen case and take addi-
tional evidence and a motion for direction of hear-
ing. On November 2, 1967, the Board issued a deci-
sion and certification of representative in which it
determined that Respondent's exceptions raised no
material or substantial issues, of fact or law which
would warrant the reversal of the Regional
Director's findings and recommendations or the
holding of a hearing. Further, the Board denied
Respondent's request to reopen the case and take
additional evidence on the ground that the Re-
gional Director's investigation was "full enough to
discover the salient facts."
In its objections to the motion for summary
judgment, Respondent contends that the Regional
Director's investigation of the objections to the
election was incomplete; that the submission of af-
fidavits from 20 employees that the misrepresenta-
tions of the financial status of Respondent had in-
fluenced their votes in the election created substan-
tial and material issues of fact; that the denial of its
request for a hearing on its objections was therefore
incorrect as a matter of law; and that, accordingly,
a motion for summary judgment cannot be granted
under rule 56 of the Federal Rules of Civil
Procedure.
We find no merit in Respondent's objections. An
evidentiary hearing is not a matter of right where
there is nothing that a trier of fact may determine.3
In overruling Respondent's exceptions to the Re-
gional Director's report on objections, the Board
considered Respondent's offer to prove that several
employees had advised Respondent that their votes
had, been influenced by the alleged misstatements
of the Union, but concluded that, even if true, such
misstatements did not warrant setting aside the
election. Thus, granting an evidentiary hearing as
requested by Respondent would be an act of futili-
ty.4
3L-Z Davies Chevrolet, 161 NLRB 1380.
' We find it unnecessary to determine the applicability of rule 56 of the
Federal Rules and Civil Procedure to the present proceeding It is sufficient
to note that even under that rule, summary judgment must be granted "if
597
For the foregoing reasons, we conclude that our
refusal to grant the hearing requested by Respon-
dent does not violate any statutory right of Respon-
dent. Admittedly, the issues which Respondent
seeks to raise in the instant proceeding relate to the
correctness of the Board's disposition of Respon-
dent's objections to the election.-There are no spe-
cial circumstances which require the Board to reex-
amine the determination which it made in the
representation proceeding. Inasmuch as Respon-
dent has already litigated these issues, it has not
raised any issue which is properly triable in the in-
stant unfair labor practice proceeding.
As all material issues have been previously de-
cided by the Board, or are admitted by Respon-
dent's answer to this complaint, there are no mat-
ters requiring a hearing before a Trial Examiner.
Accordingly, the General Counsel's motion for
summary judgment is granted. On the basis of the
record before it, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein, a West Virginia corporation engaged in the
operation of bituminous coal mines in Barbour
County, West Virginia. During the past year, which
period is representative of all material times herein,
Respondent sold products valued in excess of
$50,000, which it shipped from its mines in the
State of West Virginia, directly to points outside
the State. -
Respondent admits, and we find, that Respon-
dent 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.
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.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees constitute a unit ap-
propriate for collective-bargaining purposes within
the meaning of Section 9(b) of the Act:
the pleadings, depositions and admissions on file, together with the af-
fidavits, if any, show that, . there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law "
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All employees engaged in the production of
coal, repair and maintenance , processing and
loading of coal, electricians and laborers of
Newport Mining Corporation at its mine #1,
mine #2 and tipple , all located in Barbour
County, West Virginia , excluding office cleri-
cal employees , guards, janitors , professional
employees , and supervisors as defined in the
Act.
2. The certification
On June 28, 1967, a majority of the employees of
Respondent in said unit, in a secret election con-
ducted under the supervision of the Regional
Director for Region 6, designated the Union as
their representative'for the purposes of collective
bargaining with Respondent, and on November 2,
1967, the Board certified the Union as the collec-
tive-bargaining representative of the employees in
said unit and the Union continues to be such
representative.
B. The Request To Bargain and the Respondent's
Refusal
Commencing on or about December 6, 1967,
and continuing to date, the Union has requested
and is requesting Respondent to bargain collective-
ly with the Union as the exclusive collective-bar-
gaining representative of all the employees in the
above-described unit . Since December 6, 1967, and
continuing to date, Respondent has refused and
continues to refuse to bargain collectively with the
Union as exclusive collective-bargaining represen-
tative of all employees in said unit.
Accordingly, we find that the Union was duly
certified by the Board as the collective-bargaining
representative of the employees of the Respondent
in the appropriate unit described above in the
Board's certification, and that the Union at all
times since November 2, 1967, has been and now is
the exclusive bargaining - representative of all the
employees in the aforesaid unit, within the meaning
of Section 9(a) of the Act. We further find that
Respondent has, since December 6, 1967, refused
to bargain collectively with the Union as the exclu-
sive bargaining representative of its employees in
the appropriate unit , and that, by' such refusal, the
Respondent has engaged in and is engaging in un-
fair labor practices 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 opera-
tions as' 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 commerce.
THE REMEDY
Having found that Respondent has engaged 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, bar-
gain collectively with the Union as the exclusive
representative of all employees in the appropriate
unit , and, if an understanding is reached , embody
such understanding in a signed agreement.
CONCLUSIONS OF LAW
1. Newport Mining Corporation 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 employees engaged in production of coal,
repair and maintenance, processing and loading of
coal, electricians, and laborers of Respondent at its
mine #1, mine #2 and tipple, all located in Bar-
bour County, West Virginia, excluding office cleri-
cal employees, guards, janitors, "professional em-
ployees, and supervisors as defined in the Act, con-
stitute -a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b)
of the Act.
4. Since November 2, 1967, the above-named
labor organization has been the exclusive represen-
tative of all employees in the aforesaid appropriate
unit for the purposes of collective bargaining within
the meaning of Section 9(a) of the Act.
5. By refusing on or about - December 6, 1967,
and at all times thereafter, to bargain collectively
with'the above-named labor organization as the ex-
clusive bargaining 'representative of all the em-
,ployees 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 aforementioned refusal to bargain,
Respondent has interfered with, restrained, and
coerced, and is interfering with, -restraining, and
coercing employees in the exercise of the, rights
NEWPORT MINING CORPORATION
guaranteed them in Section 7 of the Act, and has
thereby 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.
599
(c) Notify the Regional Director for Region 6, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
' In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals Enforc-
ing an Order "
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respon-
dent, Newport Mining Corporation, Junior, West
Virginia, its officers, agents, successors, and as-
signs , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively, concerning
wages, hours, and other terms and conditions of
employment, with United Mine Workers of Amer-
ica as the exclusive bargaining representative of its
employees in the following appropriate unit:
All employees engaged in the production of
coal, repair and maintenance , processing and
loading of coal, electricians and laborers at its
mine #1 , mine #2 and tipple, all located in
Barbour County, West Virginia, excluding of-
fice clerical employees, guards, janitors,
professional employees, and supervisors as
defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the
rights guaranteed them by 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 conditions of employment, and, if
an understanding is reached, embody such un-
derstanding in a signed agreement.
(b) Post at mine 1, mine 2, and tipple, all in Bar-
bour County, West Virginia, copies of the attached
notice marked "Appendix."5 Copies of said notice,
on forms provided by the Regional Director for Re-
gion 6, after being duly signed by Respondent's
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous 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.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT refuse to bargain collectively
with United Mine Workers of America as the
exclusive representative of the employees in
the bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees 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 represen-
tative of all employees in the bargaining unit
described below with respect to wages, hours,
and other terms and conditions of employment
and, it an understanding is reached, embody
such understanding in a signed agreement.
The bargaining unit is:
All employees engaged in the production
of coal, repair and maintenance,
processing and loading of coal, electri-
cians and laborers at our mine fl, , mine #
2 and tipple, all located in Barbour Coun-
ty, West Virginia, excluding office clerical
employees, guards, janitors, professional
employees, and supervisors as defined in
the Act.
NEWPORT MINING
CORPORATION
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If employees have any question concerning this Office , 1536 Federal Building , 1-000. Liberty
notice or compliance with its provisions , they may Avenue , Pittsburgh, Pennsylvania 15222,
communicate directly with the Board 's Regional Telephone 644-2977;