Southern Ohio Coal Co.

National Labor Relations Board - Board Decisions

Dec 16, 1994

315 N.L.R.B. 836 (N.L.R.B. 1994)

836
315 NLRB No. 122
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The judge misstated the standard set out in Leland Stanford Jun-
ior University. Accordingly, we substitute the following for the final
sentence in sec. III,B, ‘‘Analysis and Conclusions,’’ par. 1: ‘‘This
obligation extends to information that is relevant to contract adminis-
tration or contract negotiation. Leland Stanford Junior University,
262 NLRB 136, 139 (1982), enfd. 715 F.2d 473 (9th Cir. 1983).’’
Contrary to the judge’s statement in sec. III,B, ‘‘District 31’s Re-
quest for Information,’’ paragraph 2, the Respondent did not inform
the International Union in its July 1, 1992 letter that employees of
Martinka Mine no longer had panel rights with the Respondent.
Finally, in sec. III,B, ‘‘District 31’s Request for Information,’’
final par., the judge incorrectly states that District 31 previously
sought information from the Respondent regarding employee panel
rights. As the Respondent correctly argues, District 31 previously re-
quested and obtained panel-rights information from another em-
ployer.
After carefully examining these errors, we find that they do not
affect our decision.
2 The Respondent excepts to the judge’s recommended Order argu-
ing, among other things, that it is overbroad to the extent that it im-
poses a general bargaining obligation as well as requiring it to bar-
gain in good faith by providing District 31 with information it re-
quested. Because the standard Board remedy in information cases is
limited to the latter requirement, we have modified the judge’s pro-
posed Order. See, e.g., Knappton Maritime Corp., 292 NLRB 236,
240 (1988); Transcript Newspapers, 286 NLRB 124 (1987).
Because the Respondent sold the Martinka Mine, and apparently
no longer operates out of Fairmont, West Virginia, we also modify
the judge’s recommended Order to require the Respondent to mail
the attached notice to unit employees. In his proposed notice, the
judge inadvertently required the Respondent to provide District 31
with an ‘‘excised’’ rather than ‘‘unexcised’’ copy of the agreement
of purchase and sale. We correct this error and substitute the at-
tached notice.
Southern Ohio Coal Company and United Mine
Workers of America, District 31. Case 6–CA–
24742
December 16, 1994
DECISION AND ORDER
BY MEMBERS DEVANEY, BROWNING, AND COHEN
On January 24, 1994, Administrative Law Judge El-
bert D. Gadsden issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed a brief opposing the Respond-
ent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order which
has been modified2 in certain respects and restated
below.
The judge found that the Respondent violated Sec-
tion 8(a)(5) and (1) by refusing to provide United
Mine Workers of America, District 31, with relevant
requested information concerning the sale of the
Martinka Mine. The Respondent excepts, arguing,
among other things, that the judge’s remedy and rec-
ommended Order are overbroad. The judge required
the Respondent to provide District 31 with an
unexcised copy of the agreement of purchase and sale
for the Martinka Mine without imposing a confiden-
tiality requirement. The Respondent contends that the
agreement contained highly confidential, sensitive, and
proprietary information, that it repeatedly informed
District 31 of this fact, and that District 31 assured it
that such confidential and proprietary information
would be protected. In these circumstances, the Re-
spondent argues that the judge should have restricted
District 31 from disclosing the information. We agree.
Under the circumstances of this case, where the Re-
spondent repeatedly told District 31 that the requested
agreement contained confidential and proprietary infor-
mation, and where District 31 consistently responded
that it was willing to sign a reasonable confidentiality
agreement, we find that a confidentiality requirement is
appropriate. Accordingly, we modify the judge’s rem-
edy.
REMEDY
Having found that the Respondent has violated the
Act by failing and refusing to provide District 31 with
a requested copy of the agreement of purchase and sale
between, among others, the Respondent and the
Martinka Coal Company, we shall order the Respond-
ent to cease and desist and to supply District 31, on
request, with an unexcised copy of that document. Dis-
trict 31 may thereafter use information contained in
that agreement to the extent required to protect the
rights of unit employees. The Union shall not, how-
ever, otherwise disclose the contents of the agreement
to unit employees or to others.
ORDER
The National Labor Relations Board orders that the
Respondent, Southern Ohio Coal Company, Lancaster,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with the United
Mine Workers of America, AFL–CIO by refusing the
request of its agent, United Mine Workers of America,
District 31, for an unexcised copy of the agreement of
purchase and sale.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Furnish District 31, on request, with an
unexcised copy of the agreement of purchase and sale,
in accordance with the provisions of the remedy sec-
tion of this decision.
837SOUTHERN OHIO COAL CO.
3 If 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(b) Mail copies of the attached notice, marked ‘‘Ap-
pendix’’3 to the Union and to all employees rep-
resented by the United Mine Workers of America,
AFL–CIO, who were employed by the Respondent at
the Martinka Mine in July 1992, or who were laid off
from the Martinka Mine after October 1991. Copies of
the notice, on forms provided by the Regional Director
for Region 6, after being signed by the Respondent’s
authorized representative, shall be mailed immediately
upon receipt.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that
we violated the National Labor Relations Act and has
ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to bargain collectively with the
United Mine Workers of America, AFL–CIO by refus-
ing the request by its agent, United Mine Workers of
America, District 31, for an unexcised copy of the
agreement of purchase and sale signed by, among oth-
ers, Southern Ohio Coal Company and Martinka Coal
Company.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, furnish District 31 with an
unexcised copy of the agreement of purchase and sale.
SOUTHERN OHIO COAL COMPANY
Dalia Belinkoff, Esq., for the General Counsel.
Frank G. Wobst, Esq. (Porter, Wright, Morris & Arthur),
of Columbus, Ohio, for the Respondent.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge. On July
24, 1992, an unfair labor practice charge was filed by United
Mine Workers of America, District 31 (the Union), against
Southern Ohio Coal Company (the Respondent or SOCC).
A complaint was issued on behalf of the General Counsel
by the Regional Director Region 6 against the Respondent on
September 30, 1992. The complaint alleges that on July 9
and on September 9, 1992, the Union requested Respondent
to furnish it with a copy of the purchase and sale agreement
for the sale of one of Respondent’s mines; that the requested
information was necessary and relevant to the performance of
the Union’s duties as exclusive collective-bargaining rep-
resentative of a unit of Respondent’s employees; that since
July 20, 1992, Respondent has failed and refused to furnish
the requested information, and by failing and refusing to do
so, Respondent has failed and refused to bargain in good
faith, in violation of Section 8(a)(1) and (5) of the Act.
Respondent filed an answer to the complaint on October
7, 1992, denying that the information requested is necessary
and relevant to the performance of the Union’s duties as col-
lective-bargaining representative of the unit employees; deny-
ing that the Union requested the information described in
paragraphs 10 and 11 of the complaint, but admitting that it
has declined to furnish the Union with a complete copy of
the entire purchase and sale agreement; and Respondent de-
nies that by so declining, it has violated Section 8(a)(1) and
(5) of the Act.
Respondent affirmatively alleges that the Union (District
31 or District) lacks standing to request the information it re-
quested; that the requested information is not necessary or
relevant to the performance to the Union’s duties as rep-
resentative of the unit employees; that the Union has waived
whatever rights it and/or District 31 may have had to the re-
quested information; that the requested information contains
highly confidential, proprietary information; and that Re-
spondent request dismissal of the complaint.
The hearing in the above matter was held before me on
February 17, 1993, in Fairmont, West Virginia. Briefs have
been received from counsel for the General Counsel and
counsel for the Respondent, respectively, which have been
carefully considered along with the entire record.
On the entire record in this case, including my observation
of the demeanor of the witnesses and my consideration of the
briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, Respondent, a West Virginia cor-
poration, has maintained and operated a place of business in
Fairmont, West Virginia (the facility), where it has been en-
gaged in the mining and nonretail sale of coal.
838 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
During the 12 months preceding June 30, 1992, Respond-
ent in the course and conduct of its business operations, has
sold and shipped from its facility, goods valued in excess of
$50,000 directly to points outside the State of West Virginia.
The complaint alleges, the answer admits, and I find that
Respondent is now, and has been at all times material, an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
United Mine Workers of America, AFL–CIO (the National
Union) and the United Mine Workers of America (UMWA),
District 31, are now, and have been at all times material,
labor organizations within the meaning of Section 2(5) of the
Act, but the answer to the complaint denies it is appropriate
to refer to these two separate labor organizations as ‘‘the
Union.’’
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background Facts
At all times material, the below named individuals of Re-
spondent held the position set forth opposite their respective
names, and are now, and have been at all times material, su-
pervisors within the meaning of Section 2(11) of the Act,
and agents of Respondent within the meaning of Section
2(13) of the Act as follows:
J. E. Katlic President
Jimmy Deems Human Resources Manager
Keith Darling Agent of Respondent
At all times material, the National Union has been the des-
ignated exclusive collective-bargaining representative of cer-
tain employees Respondent described in the National Bitu-
minous Coal Wage Agreement (NBCWA) of 1988 (the unit),
and has been recognized as such representative by Respond-
ent. Such recognition has been embodied in successive col-
lective-bargaining agreements, the most recent of which is
effective by its terms for the period February 1, 1988, to
February 1, 1993. The above-described unit, as described in
the Bituminous Coal Wage Agreement, constitutes an appro-
priate unit for the purposes of collective bargaining within
the meaning of the Act.
At all times material, District 31 has been a constituent
member of the National Union with representational author-
ity of Respondent’s employees only to the extent as set forth
in the above-described NBCW Agreement between the par-
ties.
B. Entities of the United Mine Workers and their
Operational Performance in the Current Dispute
Jerry D. Miller, currently vice president of District 31, for-
merly served as a member of the executive board of District
31. Prior thereto, he was mine committeeman with Local
8190 for 2-1/2 years. As vice president of District 31, he tes-
tified he processes grievances and requests information from
employers, etc.
With respect to entities of the UMW, the International
union is subdivided into geographical districts of which Dis-
trict 31 is one. The districts are fully autonomous labor orga-
nizations with their own constitutions and bylaws. They elect
their own representatives, police collective-bargaining agree-
ments, process grievances, and file suits on behalf of bar-
gaining unit members who are members of the district and
the International union.
District members are employees of companies that are sig-
natory to a collective-bargaining agreement with the Mine
Workers, or pensioner-members of the Union from elsewhere
into the district. The constitution of the International union,
UMWA, article IX defines districts and their jurisdiction
(G.C. Exh. 2).
Miller continued to testify as follows:
The constitution of District 31 confers upon it the respon-
sibility and obligation to administer and enforce terms and
conditions of employment of the collective-bargaining agree-
ment (The National Bituminous Coal Wage Agreement of
1988) (Jt. Exh. 1).
Local unions are frontline labor organizations, fully auton-
omous and represent bargaining unit employees at mine fa-
cilities and cites. They have their own offices and committee.
They request information and process grievances. The dis-
tricts enforce the national agreement, as spelled out in article
IX of the constitution.
The jurisdiction of District 31 comprises 32 counties in
northern and central West Virginia, which includes Martinka
Coal Mine located 5 miles out of Fairmont, Route 310. Prior
to July 1, 1992, Southern Ohio Coal Company (SOCC)
owned Martinka Coal Mines which employed about 600 em-
ployees. Employees were laid off in November 1991 and
March and June 1992.
District 31’s Request for Information
It is well established by the essentially uncontroverted evi-
dence that in letters dated July 1, 1992, Respondent (SOCC)
notified the International union, UMWA, and District 31, re-
spectively, that SOCC had sold its Martinka Mine to
Martinka Coal Company; that the latter company had agreed
to assume SOCC’s obligations under the National Bitu-
minous Coal Wage Agreement of 1988 (wage agreement);
and that enclosed with each letter was an excised portion of
the purchase and sale agreement (Jt. Exh. 3).
However, in the same letter to the International union, the
International was further advised that since SOCC no longer
owned the Martinka Mine, any employees who placed their
names on the mine panel or other panels should look to
Martinka Coal Company to exercise their seniority or recall
rights, because SOCC was no longer obligated to employees
of Martinka Mine and other company panels. The letter to
the International was sent by certified mail, as required by
the wage agreement.
The brief attachment enclosed (Jt. Exh. 3) was portions of
the purchase and sale agreement further informing that the
purchaser, Martinka, recognizes that Southern Ohio Coal
Company (SOCC) was sold pursuant to the National Bitu-
minous Coal Wage Agreement of 1988, and that Martinka
agrees to assume Southern Ohio Coal Company’s (SOCC’s)
rights and obligations under the agreement, provided that
SOCC shall indemnify Martinka to the extent provided in ar-
ticle XIX for claims and losses incurred by Martinka as a re-
sult of its assumption of obligations under the wage agree-
ment. The agreement was signed by Ohio Power Company,
839SOUTHERN OHIO COAL CO.
Respondent (SOCC), Martinka Coal Co., and Peabody De-
velopment Co.
Eight days later, in a letter dated July 9, 1992, Jerry D.
Miller, vice president of District 31, informed president of
Respondent (SOCC), J. E. Katlic, that the sale of Martinka
Mine has raised questions about who were the sellers and
buyers, what obligations the buyers assumed, what effect the
transaction had on the members; and that in order for District
31 to assure its members that their rights under the collec-
tive-bargaining agreement were preserved in this transaction,
District 31 requested SOCC to provide it with a complete
copy of the purchase and sale agreement. Miller also advised,
if SOCC considered the agreement confidential, he, on behalf
of District 31, would be willing to sign a reasonable con-
fidentiality agreement.
Miller testified that the above letter was sent to Respond-
ent in an effort to protect the panel rights of laid-off employ-
ees of SOCC and its other operations, subsidiaries of Electric
Power Company, and also grievances concerning panel rights
in the process of adjustment which existed at the time of the
sale. Consequently, the laid-off employees no longer had
panel rights with Respondent (SOCC) anywhere, including
operations retained by (SOCC). Moreover, the notification
sent to the International union indicate Ohio Power Company
was a party to the sale. Miller continued to testify:
A. So, in order to process those grievances and en-
sure that our employees, or our members who were em-
ployees of Southern Ohio weren’t being cheated out of
their contractual rights, it was necessary for us to obtain
a copy of the purchase and sale agreement, to find out
just what obligations were passed and which obligations
were not passed.
Q. Was there anything else in the portion of the Pur-
chase and Sale Agreement that you received that trig-
gered your request?
A. Yes, ma,am, there was.
Q. What was that?
A. There was indication in the portion of the Sale
Agreement that we received indicating that there was
an Article XIX in that Purchase and Sale Agreement
that apparently had something to do with indemnifica-
tion, inasmuch as the excerpt indicated that Southern
Ohio Coal Company would indemnify the Purchaser of
the Mine, should certain things come up out of the obli-
gations under the Collective Bargaining Agreement.
In response to District 31’s request, SOCC advised in its
letter of July 20, 1992, that the District’s request was de-
clined because article I of the National Bituminous Coal
Wage Agreement (NBCWA of 1988) provides that the extent
of a signatory’s obligation to furnish information concerning
the ‘‘sale, conveyance, assignment, or transfer of its oper-
ations, is to notify the International Union of the transaction
by certified mail to the secretary-treasurer of the Inter-
national Union’’ and provide ‘‘documentation that the suc-
cessor obligation (under the wage agreement) has been satis-
fied.’’
Consequently, SOCC further advised, that since SOCC has
given the International union the required notice by certified
mail, with enclosed documentation of the successor’s as-
sumption, SOCC has complied with the letter of article I of
the wage agreement; that SOCC was required by article I to
supply that specified information to the International union,
and not to any other entity, including District 31. Notwith-
standing, as a courtesy, SOCC sent a copy of essentially the
same material to District 31 that it sent to the International
union.
SOCC’s letter of July 20 further advised that it does not
recognize any right of District 31 to request such informa-
tion, and even if District 31 had such a right, SOCC would
decline its request for a complete copy of the purchase and
sale agreement, because it contains highly confidential, sen-
sitive, and proprietary information; and virtually all of its
provisions are completely and utterly irrelevant to any legiti-
mate or legal interest of the International union or any of its
affiliates.
In a letter dated July 22, 1992, to SOCC, Miller stated the
District is responsible for processing grievances filed by
SOCC employees who are members of the UMWA; that Dis-
trict 31 is not obligated to accept SOCC’s assessment of
whether the sale conformed to contractual requirements; that
District 31 is not bound by SOCC’s version of who sold and
bought the mine, nor the contractual obligations assumed or
passed on or assumed by the buyer, there being obligations
that could not be passed on; and all of SOCC was not sold;
that District 31 has the right to make such determinations for
itself; and the District renewed its request for an unexcised
copy of the purchase and sale agreement, pledging to sign
a reasonable confidentiality agreement.
With respect to grievances pending at the time of SOCC’s
sale, Miller testified, without dispute, that one grievance
(G.C. Exh. 4(a)) filed by a laid-off employee of Martinka
Mine on behalf of an entire class of employees, was protest-
ing Respondent’s refusal to allow them to panel for employ-
ment at the Windsor operations. Another grievance (G.C.
Exh. 4(b)) was also filed on behalf of an entire class of em-
ployees protesting SOCC’s refusal to allow employees to
panel for employment at the Windsor operations, the Central
Rebuild Shop, the Cook Coal Terminal, Central Ohio Com-
pany, and Conesville Coal Preparation Plant.
After the sale a grievance (G.C. Exh. 4(c)) was filed on
behalf of a class of employees protesting employer’s denial
of all of their panel rights after the mine was sold, and the
continued denial of their right to panel for operations other
than the Martinka Mine only.
Miller further testified that pursuant to article XVII of the
collective-bargaining agreement, to which SOCC is a party,
there are numerous provisions dealing with seniority. Some
of those provisions indicate when an employee is laid off,
the employee has the right to fill out a panel form, on which
he lists jobs that he has performed, jobs that he wishes to
be recalled to, and locations to which he wishes to be re-
called. The form contains his length of seniority at a particu-
lar mine from which he is being laid off, an indication of
how much seniority he has with the employer wherever it
may have been, and he indicates which mine or operations
to which he wishes to be recalled.
Additionally, a laid-off employee has recall rights under
article II of the collective-bargaining agreement, to any
newly opened or newly acquired mines employer (Respond-
ent) may put into operation.
If the employer leases, leases out or contracts out a coal-
mining operation on its land, the employee has a right to be
840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
recalled by the lessee, licensee or contractor, prior to either
of the latter hiring someone off the street.
The laid-off employees in question had panelled for the
Martinka Mine (called the mother mine) before it was sold,
for the Employer’s Meigs Division, which was not sold to
the Union’s knowledge, and also for the Windsor and other
operations listed in General Counsel’s Exhibit 4(b), and now
SOCC is contending the laid-off employees did not have
panel rights anywhere other than Martinka Mine.
Respondent (employer) did not respond to the Union’s
(Miller’s) letter of request of July 9, 1992, and the Union
filed the current unfair labor charge on July 24, 1992. Rep-
resentatives of District 31, the Local Union, and the Inter-
national union met with representatives of the purchaser of
Martinka Mines on July 30, 1992.
Present for Local 1949 were: Leonzie Dutch Morris, presi-
dent; Dennis Cain; and Frank Waddy.
Present for District 31 were: Jerry D. Miller, vice presi-
dent; Eugene Claypoole, president; and Rich Eddy, executive
board member.
From the International Union was Carlo Tarley.
Representing the purchaser, Martinka Coal Co. were: Bob
Ashford, former labor relations manager at Martinka; Brad
Hibbs, former supervisor of employees of Peabody; and Fed-
eral No. 2 Mine, within the jurisdiction of District 31.
The purchasers had unsuccessfully tried to negotiate some
changes in terms and conditions of employment at the mine
with representatives of the Local. A meeting had been sched-
uled to further that effort. The purchaser wanted to contract
out certain types of repair and maintenance work, changing
portals, etc., for panel rights of employees at Martinka Mine,
to its Peabody operations and its Eastern Associated Coal
Corp. operations.
When Ashford and Hibbs asked Miller to sign the pro-
posed memorandum, he noted that both Peabody and Eastern
were one and the same, so he expressed his understanding
to them. Hibbs said Miller was correct, but because of some
legal problems, Peabody and Eastern decided to separate.
Notwithstanding, employees of Peabody or Eastern continued
to have reciprocal panel rights. Hibbs also informed him that
Martinka Coal Company and Eastern Associated Coal were
each owned by Peabody.
Miller further testified he asked Hibbs what obligations
they (purchasers) assumed at the Martinka Mine and he said,
‘‘[W]e assumed Southern Ohio’s obligations only at the
Martinka Mine and some obligations they did not assume.
Hibbs told him the health benefits of the laid-off people prior
to July 1, 1992, continued to be the obligation of SOCC, and
the health benefits of worker compensation benefits and peo-
ple on sick or disabled leave on July 1, 1992, continued to
be the obligation of SOCC until those sick and disabled peo-
ple returned to the mine. Upon their return, the purchaser
would be responsible for their benefits. According to Hibbs,
Miller said Peabody was the purchaser of Martinka Mine.
Hibbs said the purchaser’s only connection with SOCC was
selling them coal and some long-wall components which had
to be returned to SOCC once the long-wall finished its oper-
ation in the particular area of the mine.
General Counsel’s Exhibit 5 is a copy of the memorandum
of understanding that was the subject of discussion during
the meeting July 30. To his knowledge, Miller said the
memorandum was never executed or signed. He said since
it appeared the purchase of Martinka was not Martinka Coal
Company but Peabody, the Union needed to know who sold
the mine and who purchased the mine, and that was a major
reason for District 31’s request for a copy of the purchase
and sale agreement. It was obvious to him that all obligations
SOCC had under the collective-bargaining agreement had not
passed to the purchaser of the mine.
Thereafter, the Union went to the Secretary of State’s of-
fice to review the Articles of Incorporation of the corpora-
tions which were identified on the cover page of the pur-
chase and sale agreement sent to the Union by SOCC (Re-
spondent). When Miller was asked what did his review at the
Secretary of State’s office reveal, he replied:
I found out: that Ohio Power Company had been a
corporation of long-standing duration, doing business in
West Virginia and that Ohio Power had owned a com-
pany called Captina Mining Company years ago; that
Captina Mining Company was capitalized with only
$5,000; that its sole stockholder was Ohio Power; that
in about 1971, Ohio Power, by the authority of its
Board of Director, amended the articles of incorporation
to change the name of the corporation to become
Southern Ohio Coal Company, but that Ohio Power
continued to be the sole stockholder of Southern Ohio
Coal Co.
On further examination of the Articles of Incorporation of
the above-named corporations, including Peabody and
Martinka Coal Company, the Union (Miller) learned that
Martinka Coal Company had been incorporated on May 18,
1992, in West Virginia with a capitalization of only $100,
but Martinka Coal Company was going to have property in
its possession over the next year valued at $53 million. To
him, Miller said, this defied logic because he could not un-
derstand how Martinka could buy Southern Ohio Coal when
it was capitalized with only $100. Thus, he learned that
Martinka Coal Company was owned by Peabody Coal; and
that the same people who owned Peabody were listed as offi-
cers and/or directors of Martinka Coal Company.
Records also indicate Martinka Coal Co. was incorporated
May 5, 1992, in the State of Delaware. Peabody was capital-
ized with $649,650 in 1984.
Not having received a reply to its July 22, 1992 letter to
Respondent (SOCC), Miller in a letter dated September 9,
1992, reminded Respondent it had not furnished District 31
with the information requested. Miller further advised Re-
spondent that District 31 is responsible for enforcing the col-
lective-bargaining agreement which covers SOCC’s laid-off
employees who are members of District 31; and that the Dis-
trict was presently pursuing various grievances filed by its
employees, including grievances concerning panel rights; and
that the information requested is both relevant and necessary
to the District’s obligation in processing them.
Miller also advised Respondent that not all of SOCC’s ob-
ligations to the Martinka employees (such as medical cov-
erage or laid-off employees, and disability benefits for em-
ployees disabled at time of the sale) were assumed by the
‘‘purchaser.’’ Those questions, Miller stated, depended upon
what obligations were passed on or assumed by the pur-
chaser, since all of SOCC was not purchased, such as panel
rights to Meigs, Windsor, etc., and could not be assumed.
841SOUTHERN OHIO COAL CO.
In a letter dated September 17, 1992, Respondent (SOCC)
again advised Miller that District 31 does not have the au-
thority to make its request for the reasons previously stated
in his letter of July 22, 1992; that the extent to which
Martinka Mine employees are claiming certain rights and ob-
ligations under the wage agreement are not capable of being
assumed by Martinka Coal Mine Company, because such
claims are governed by the 1988 wage agreement, numerous
BCOA arbitration decisions and not by the purchase and sale
agreement; that the latter agreement does not contain
itemized provisions regarding who assumed responsibility for
the items you described in your letter; and that District 31
should contact Martinka Coal Company to ascertain who
purchased the Martinka Mine because the purchase and sale
agreement does not contain that information.
In response to further questions by the General Counsel,
Vice President Miller testified that on previous occasions un-
related to the current requests, District 31 (Miller) had re-
quested information from SOCC regarding panel rights of
employees (G.C. Exh. 7). District 31 has also previously
made agreements with SOCC outside the collective-bargain-
ing agreement regarding a stock operation plan in September
1985 (G.C. Exh. 8).
Cross-Examination
On cross-examination Miller testified that the grievance of
Eddy filed July 8, 1992, had not reached the third step. He
also testified that under the wage agreement the mine com-
mittee has authority to settle or withdraw a grievance as well
as to request information. Miller said Eddy’s grievances filed
in March and May 1992 were denied by SOCC because they
were requesting panel rights to mines that are not owned by
SOCC. It is SOCC’s position that under the wage agreement
of 1988, employees of Martinka Mine have a right to panel
only on other mines that are owned by SOCC.
The Union’s position is that employees of Martinka were
entitled to panel into mines that are owned by either of the
employers that are within the American Electric Power fam-
ily of companies, but that are also signatories to the wage
agreement. Miller made his request as to who owns which
company, and Respondent declined to supply a copy of the
purchase and sale agreement. He acknowledged that SOCC
has contended to pay the medical coverage for employees on
layoff since the sale, but continued the Union is uncertain
that practice will continue without seeing the purchase and
sale agreement.
According to Miller, article IX, section 6, page 68 of the
United Mine Workers Constitution delegates authority to
District 31 for administration of contracts. However, SOCC
contends without dispute that District 31 nor the International
union ever furnished SOCC a copy of the Local’s constitu-
tion or such a provision thereof.
Keith Darling, labor relations manager for American Elec-
tric Power Service Corporation also assists in all areas of
labor relations including the administration of the wage
agreement with SOCC along with other subsidiary companies
which are signatory to the wage agreement of 1988. Darling
acknowledged he wrote the letter of July 1, 1992 (Jt. Exh.
4), for Respondent’s president, J. E. Katlic, to sign, based on
the information in the wage agreement of 1988 (Jt. Exh. 1).
He further testified that Respondent did not respond to Mil-
ler’s letter of request of July 9, 1991 (Jt. Exh. 5), because
the National agreement provides that SOCC (seller) is re-
quired to notify the International union in a specific way
when it sells a mine (Martinka). Since Respondent had com-
plied with that provision by notifying the International Union
and had not heard from the International that Respondent’s
notice was unsatisfactory, it did not think it needed to re-
spond to District 31’s request. He said Respondent also felt
that District 31 did not have the standing to make the re-
quest. This is so, he said, because District 31 would normally
make such a request at the third step of a grievance and the
subject grievances had not reached the third step of the
grievance procedure. Additionally, he said, the purchase and
sale agreement contains confidential and binding provisions.
Darling further testified that Joint Exhibit 6 is SOCC’s let-
ter in response to Miller’s (District 31’s) letter of request of
July 9. He said SOCC received Joint Exhibit 7, the second
letter of request from District 31 (Miller) dated July 22, but
did not respond to it because Respondent received the unfair
labor practice charge on that same day and the grievance
mentioned in District’s 31’s letter of request (Jt. Exh. 7), was
still pending at the second step. He said, in the past, when-
ever the District requested information at the second step, it
was denied by Respondent, and that there is nothing in the
wage agreement of 1988 which conferred authority on Dis-
trict 31 to enforce the agreement. He cites as authority for
his contention, article XX, section E, item 6 on page 131 of
the wage agreement which provides as follows:
(6) Disputes arising under this Agreement with re-
gard to the Employer Benefit Plan established in (c)(3)
above shall be resolved by the Trustees. The Trustees
shall develop procedures for the resolution of such dis-
putes. Decisions of the Trustees shall be final and bind-
ing on the parties. Such disputes shall not be processed
under the provisions of Article XXIII (Settlement of
disputes).
Darling further testified that if an employee has a dispute
involving medical insurance payments they follow the resolu-
tion of dispute procedure, and no laid-off employee of
Martinka has filed such a claim. He said all disability bene-
fits had been paid since the time of the sale and no employee
has filed a grievance for such benefits. It is his understanding
that District 31’s authority flows from the labor agreement.
The International union nor District 31 has given the Re-
spondent a copy of the constitution of the United Mine
Workers of America.
Darling acknowledged Miller offered to sign a reasonable
confidentiality agreement, and that the company made no ref-
erence to confidentiality, other than to assert the information
requested was confidential without any reasons. He also ac-
knowledged American Electric Power is a public utility and
information about its transactions is public to investors; and
that Martinka Coal Co. assumed no obligations to employees
of Meigs.
It is clear from the documentary communication between
District 31 and Respondent (SOCC) that the testimony of
witness Jerry Miller, for District 31, and Respondent’s wit-
ness Keith Darling, that the following issues are raised by
the evidence and now presented for determination:
842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Counsel for the General Counsel argues that ‘‘the BCOA Agree-
ment does not disclaim the Local or Districts as components of the
International Union, but rather, provides numerous significant and le-
gitimate roles for both the Districts and the Locals in administering
the contract.’’
Issues
1. Whether District 31 had the legal authority to request
a complete copy of the purchase and sale agreement.
2. If District 31 in fact had legal authority to make the in-
formation request, whether the requested complete copy of
the Purchase and Sale agreement was relevant and necessary
for the performance of District 31’s statutory duty in rep-
resenting the members of District 31.
3. Whether Respondent’s (SOCC’s) refusal to provide Dis-
trict 31 with a complete copy of the purchase and sale agree-
ment constituted a failure and refusal to bargain in good
faith, in violation of Section 8(a)(1) and (5) of the Act.
With respect to District 31’s legal authority or standing to
request a complete copy of the purchase and sale agreement,
counsel for the General Counsel argues that District 31 has
the standing and authority to request the subject information
pursuant to provisions of the following:
General Counsel’s Exhibit 1: page 2 of the Bituminous
Coal Operators Association (BCOA’s) wage agreement of
1988 which provides in part:
It is agreed that at operations covered by this Agree-
ment, United Mine Workers of America is recognized
herein as the exclusive bargaining agency representing
the Employees of the parties of the first part. It is fur-
ther agreed that as a condition of employment all Em-
ployees at operations covered by this Agreement shall
be, or become, members of the United Mine Workers
of America, to the extent and in the manner permitted
by law, except in those exempted classifications of em-
ployment as hereinafter provided in this Agreement.’’1
Article XXIII, section (c) of the agreement, under ‘‘Griev-
ance Procedure,’’ provides that the four grievance steps are
as follows:
1. Employee makes complaint to immediate foreman
for resolution.
2. If unresolved, the complaint should be submitted
on BCOA-UMWA Standard Grievance Form, and ten-
dered to the Mine Committee and Mine Management.
3. If unresolved, the grievance is referred to the Dis-
trict Representative and the Employer.
4. If unresolved, the matter is referred to a District
Arbitrator.
Article XXVI, section (a) of the agreement provides that
new districts may be established by the UMWA, and districts
may enter into contracts and agreements with employers,
provided such agreements do not conflict with the National
agreement; and articles II and XVII provide the framework
for panel rights of laid off employees.
Counsel for the General Counsel notes that the agreement
does not preclude the District from bargaining with an em-
ployer, as long as the parties are willing to negotiate and any
understanding reached does not conflict with the wage agree-
ment. Additionally, she argues, the parties are required to
provide full disclosure of information with respect to griev-
ances, as in collective-bargaining. It is noted that counsel for
the General Counsel does not cite any specific language or
provision of the agreement for the latter, added statement.
She maintains that the agreement thoroughly contemplates
districts as being representatives of employees of signatories’
mines and other coal operations; and that District 31 cur-
rently represents employees at the Martinka Mine with the
Local and the International union.
Respondent’s Argument
On the contrary, Respondent argues that the wage agree-
ment of 1988 is between SOCC and the International union
as bargaining representative of Martinka Mine employees
since 1974; that District 31 is not the recognized bargaining
representative of the Martinka Mine employees; and that
consequently, District 31 does not have the authority to re-
quest a complete copy of the purchase and sale agreement
unless it made the request in the capacity of an agent of the
International; and that the evidence of record fails to estab-
lish that District 31 had actual, general, specific, or apparent
authority to act as an agent of the International union in
making its request.
Respondent cites appropriate legal authority for its lack-of-
agency theory of defense as follows:
‘‘affiliates of a National or international labor organiza-
tion are not presumed by the mere fact of their affili-
ation to be agents of the latter,’’ Bacino v. American
Federation of Musicians, 407 Fed. Supp. 548 (N.D.,
ILL. 1976), citing Colorado Coal Co. v. United Mine
Workers, 268 U.S. 295 (1925), and United Mine Work-
ers v. Colorado Coal Co., 259 U.S. 344 (1922); but
that existence and scope of agency must be determined
under common law agency principles. Metro Products,
Inc. v. NLRB, 884 F2d 156, 159 (4th Cir. 1989); and
that the burden of such proof is upon the party asserting
an agency relationship, which in the instant case, is
upon the General Counsel. Sunset Line and Twine Co.,
74 NLRB 1487, 1508 (1948); and the General Counsel
has failed to carry that burden.
Conclusion
However, counsel for the General Counsel further argues,
and I agree, that provisions of articles XVI, XXIV, II, and
XVII (Jt. Exh. 1) of the above discussed Bituminous Coal
Operators agreement, as well as the undisputed testimony of
witness Miller, demonstrate that the constitution of the
United Mine Workers authorizes the formation of Districts,
which have the responsibility to implement and administer
all collective-bargaining agreements covering any members
of the district.
Although Respondent contends it was not given a copy of
the UMWA’s constitution (G.C. Exh. 2), such fact alone
does not invalidate provisions under the above-cited articles
of the UMWA’s constitution, or any actions taken by District
31 pursuant to them. In fact those provisions, along with the
factual evidence of District 31 processing member-employ-
ees’ grievances concerning panel rights of Martinka Mine
member-employees constitute evidence District 31 has and
exercises authority to represent them in that capacity.
843SOUTHERN OHIO COAL CO.
Additionally, article 9, section 6 of the UMWA’s constitu-
tion further provides that ‘‘the District through its Officers
and Executive Board, shall be responsible for implementing
and administering all collective-bargaining agreements cover-
ing all members of the District, and shall take appropriate
measures to ensure that those agreements are fairly applied,
fully enforced, and faithfully obeyed.’’ Although District 31
is an autonomous labor organization, it nonetheless exists
under the jurisdictional authority of the International union in
representing member-employees of signatory employers of
mine workers in its district. Moreover, Respondent admits
District 31 is a labor organization within the meaning of the
terms of the Act.
Certainly by processing grievances of member-employees
of signatory employers under the established grievance pro-
cedure of the collective-bargaining agreement of 1988, Dis-
trict 31 is acting pursuant to its authority under, and in prop-
er compliance with, the above-cited provisions of the con-
stitution of the UMWA.
Since the UMWA’s constitution clearly delegated authority
to the districts to process grievances, especially to administer
and fully enforce collective agreements covering employees
and their panel rights, I find that District 31 is properly proc-
essing and enforcing the contract on the instant grievances
within the scope of its delegated authority, as agent of the
International union. The authority to process grievances is a
significant component of the collective-bargaining process.
Possessing the authority to enforce a collective bargaining
agreement, including, processing grievances without the au-
thority to request information relevant and necessary to that
particular function, would often result in a sterile authority.
Conclusion
Consequently, based upon articles XVI, XXIV, IID, and
XVII of the wage agreement of 1988, article IX of the
UMWA’s constitution, and actual grievance processing of
District 31, I find that District 31 is legally an agent of the
International union, and as such, has the statutory obligation
and authority, along with the International union, to properly
request information and diligently represent and process
grievances of employees at the Martinka Mine, Postal Serv-
ice, 302 NLRB 767 (1991).
Confidentiality
Article XXIII, section (a) of the wage agreement of 1988,
provides:
The Mine Committee shall have the authority on behalf
of the grievant to settle or withdraw any grievance at
step 2 or proceed to step 3.
Respondent argues that article XXIII means that only the
mine committee has authority to process the subject griev-
ances, and that District 31 does not have authority to handle
a grievance until it is referred to step 3.
It is particularly noted, however, that the above-cited arti-
cle XXIII does not specifically state that only the mine com-
mittee can request information relevant and necessary to
processing a grievance. The record does not show whether
the mine committee requested District 31 to request the sub-
ject information on its behalf, and it does not show that the
mine committee had any objection to District 31 making the
request. In the absence of such evidence I do not read article
XXIII(a) as so limiting. In fact, if the requested information
is received by the mine committee the grievance may very
well be resolved at step 2 and there may not be a need for
it to be referred to the third step.
Therefore, I conclude and find that the language of article
XXIII(a) is not necessarily so limiting as Respondent urges,
and I further find that it does not preclude District 31 from
making the subject request.
Analysis and Conclusions
It is well established that an employer must comply with
a union’s request for information that will assist the union
in fulfilling its responsibilities as the employees’ statutory
representative and a part of its duty to bargain in good faith.
NLRB v. Acme Industrial Co., 385 U.S. 432 (1967); Detroit
Edison v. NLRB, 440 U.S. 301, 303 (1979). The requested
information must be relevant to both contract administration
and contract negotiations, Leland Stanford Junior University,
262 NLRB 136, 139 (1982).
Moreover, the standard applied in determining relevancy in
these circumstances requires that the information requested
simply have some bearing on the issue for which the infor-
mation is requested and be of probable or potential relevance
to the Union’s duty. Pfizer, Inc., 269 NLRB 916, 918 (1984).
In the instant case the requested information relates to rights
of employees to panel for employment at mines which may
or may not have been sold by the employer.
However, a sale of a business agreement is not presump-
tively relevant to a union’s representative function because
such an agreement ‘‘does not relate directly to the terms and
conditions of employment of the employees represented by
the Union.’’ Super Value Stores, 279 NLRB 22, 25 (1986).
In discharging its burden of relevance of a sale agreement,
‘‘the Union’s theory of relevance must be reasonably spe-
cific; that general avowals of reliance such as ‘to bargain in-
telligently’ and similar boiler plates are insufficient.’’ Id.,
quoting Soule Glass & Co. v. NLRB, 652 F.2d 1055, 1099
(1st Cir. 1981).
Relevant and Necessary
The uncontroverted and credited evidence shows that prior
to the sale of the Martinka Mine, two separate grievances
were filed and pending on behalf of two different classes of
employees, one protesting Respondent’s refusal to allow em-
ployees at Martinka the right to panel for employment at
SOCC’s Windsor operations, and the other protesting Re-
spondent’s refusal to allow employees to panel for employ-
ment at the Windsor operations, the Central Rebuild Shop,
the Cooke Coal Terminal, Central Ohio Company, and
Conesville Coal Preparation Plant.
Another grievance was filed after the sale of the Martinka
Mine, demanding Respondent to allow laid-off employees to
panel for and be recalled to SOCC’s other operations, and
that such rights are affected by seniority and recall rights
under the collective-bargaining agreement of 1988.
SOCC acknowledged at the trial, that it had a mine oper-
ation called the Meigs Division. Since neither the notice nor
the announcement to the Union advised that the Meigs Divi-
sion was also sold, District 31 believed it had a valid griev-
ance concerning panel rights to the Meigs Division and other
844 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mine operations of SOCC. Consequently, since the District
had been advised that the Martinka Mine had been sold and
it was not clear whether laid-off employees could panel to
SOCC’s other mines, the District requested a complete copy
of the purchase and sale agreement to enable it to determine
strategies and defenses for processing the grievances, and
verifying SOCC’s assertion that the employees could no
longer panel SOCC for employment at its other mines.
Counsel for the General Counsel presented uncontroverted
evidence that article VII of the wage agreement of 1988 con-
tains numerous provisions dealing with layoffs, seniority, and
recall rights, which affect panel rights when an employee is
laid off (such as the right to fill out a panel form listing pref-
erences for jobs previously worked, jobs desired, and job lo-
cations to which the employee wishes to be recalled); that
District 31 could not determine from the excised copy of the
purchase and sale agreement suppliedby Respondent, who
sold, who bought, and who now owns Martinka Mines, or
what obligations were assumed or not assumed. Moreover,
evidence from the Secretary of State’s office and information
obtained in the July 30 meeting with the asserted owners of
Martinka Mine, tend to indicate some confusion as to who
bought and who now owns Martinka Mine, and what con-
tractual obligations were assumed or not assumed by the pur-
chaser of the mine.
District 31 described most of the above concerns in its
July 9 letter of request for a complete copy of the sale agree-
ment, as being relevant and necessary to, and/or having a
bearing on its statutory performance in representing and
processing the afore-described grievances of its member-em-
ployees of Martinka Mine.
Respondent, however, contends that the request for a com-
plete copy of the purchase and sale agreement is not relevant
and necessary to the statutory obligation of District 31 in
representing the Martinka Mine employees because:
1. The purchase and sale agreement does not contain the
information sought by District 31.
2. Under the last paragraph on page 29 of the purchase
and sale agreement furnished to District 31, Martinka Coal
Company agreed to be the ‘‘successor’’ employer of
Martinka Mine employees. MCC has also assumed the obli-
gations of a ‘‘successor’’ under the BCWA wage agreement
of 1988, that provides, as between SOCC and MCC, Re-
spondent (SOCC) shall indemnify SOCC to the extent of
SOCC’s indemnification obligations as set forth in article
XIX for claims or losses incurred by MCC, by reason of the
latter’s assumption of obligations under the wage agreement
(concerning temporary and permanent assigned work classi-
fications, and seniority preference on temporary assign-
ments).
District 31 contends it needs a complete copy of the pur-
chase and sale agreement to determine the following:
1. Panel rights.
2. Responsibility for continuation of medical insurance
coverage of employees on layoff status at the time of the
sale.
3. Responsibility for the continuation of disability benefits
of employees on leave at the time of the sale.
Respondent (SOCC) argues that it previously informed
District 31 and now argues that the purchase and sale agree-
ment does not contain any of the above three requests, in-
cluding anything on panel rights, which were assumed by
MCC.
4. Who sold, who bought, and who owns the mine.
With respect to item 4, above, SOCC further argues that
it has provided District 31 with an excised copy of the sale
agreement indicating that MCC recognized the mine was
being sold pursuant to the wage agreement of 1988; that
MCC assumed SOCC’s rights and obligations under the
agreement and that the assumption includes panel rights of
employees.
At the trial Respondent contended the sale agreement does
not contain any provision regarding which employer is re-
sponsible for providing medical insurance benefits to em-
ployees who were on layoff status. Manager Darling testified
it would have been inappropriate to include such a provision
in the sale agreement because decisions of the UMW’s
Health and Pension Fund trustees, have held that responsibil-
ity for medical insurance benefits to employees who were on
layoff at the time of a sale, cannot pass on to the purchaser
of the mine. Moreover, SOCC is paying all of such benefits
and no grievance has been filed indicating otherwise. I credit
Darling’s account that the Health and Pension Fund trustees
have held that such benefits cannot be passed on to a pur-
chaser of a mine. However, this information at the hearing
does not exonerate Respondent from the duty to furnish the
requested information, especially at the time the request was
made in July 1992.
Respondent argues that Vice President Miller latently testi-
fied he needs to see the complete purchase and sale agree-
ment to know who sold and who bought the Martinka Mine
because Ohio Power Company (Ohio Power) and Peabody
Development Company (Peabody) signatures are on the copy
of the incomplete agreement along with the signature for
Martinka Coal Company (MCC) Respondent had Miller to
acknowledge Miller knew prior to the sale, that all coal pro-
duced by Martinka Mine went to Mitchell Power Plant; that
it was common knowledge Ohio Power owned SOCC and
the Mitchell Power Plant; that Miller admits he had been told
MCC is owned by Peabody; that by agreement Peabody pro-
vides coal to Ohio Power’s Mitchell Power, and Respondent
submits that Miller knows these are the reasons for the signa-
tures referenced on the agreement. Respondent further argues
that if Miller did not know the above facts, it is strange be-
cause Miller did not ask MCC officials these questions when
he met with the purchaser of Martinka Mine July 30.
Although Respondent makes an interesting argument why
District 31’s request for a copy of the complete sale agree-
ment was not relevant and necessary for the Union to per-
form its statutory duties, I am not persuaded that Respondent
has refuted the evidence that the information requested was
relevant and necessary to the Union’s statutory function. Re-
spondent assumes that District 31 representative, Miller,
should have known why signatures for Ohio Power Company
and Peabody Development Company appeared on the excised
copy of the sale agreement. Notwithstanding, even if Miller
should have known, had heard, or actually had known the
reasons for the signatures on the agreement, such fact would
not necessarily mean that Miller actually knew or that he had
actually heard the reasons the signatures appeared on the
excised copy of the agreement. Moreover, assuming Miller in
fact knew why the subject signatures appeared on the excised
copy of the sale agreement, such knowledge would not have
845SOUTHERN OHIO COAL CO.
necessarily satisfied Respondent’s obligation to supply Miller
with a complete copy of the sale agreement.
Nor should the fact that Respondent told the Union (Dis-
trict 31) its version of what is in, or what is not in, the sale
agreement satisfy the Union’s right to have access to an
unexcised copy of the sale agreement. Nor did Respondent’s
version of what was relevant and necessary relieve Respond-
ent of its obligation to supply the requested information. It
is not the province of the employer to decide what informa-
tion the Union needs to properly evaluate the merits of a
grievance. It is the Union’s right to frame the issues and ad-
vance theories as it sees fit. Conrock Co., 263 NLRB 1293
(1982); United Technologies Corp., 274 NLRB 504 (1985).
It is also not the province of the employer to arbitrarily
piecemeal the information it supplies in response to the infor-
mation requested. As the Board has held in American Tele-
phone & Telegraph Co., 250 NLRB 47 (1980); Kroger Co.,
226 NLRB 512 (1976), that in supplying requested informa-
tion, the employer must satisfy the Union’s need for assur-
ance and accuracy of the information sought. Additionally,
the Union is not required to establish in advance exactly how
the information sought would be helpful in pursuing the
grievance. Blue Diamond Co., 295 NLRB 1007 (1989).
Counsel for General Counsel argues that Respondent’s
undescribed Exhibit 1 grievance filed September 1, 1992,
and resolved February 16, 1993, and Respondent’s Exhibit 2,
District 31’s request for information from American Electric
Power Service Corporation, are different from the subject
grievances filed March, May, and July 1992, and are distin-
guishable from and irrelevant to the instant proceeding. I
agree that the grievances offered by Respondent relating to
an unfair labor practice charge involving American Electric
Power Service Corporation are irrelevant to the current pro-
ceeding. Therefore, none of the grievances are considered in
disposing of the grievance issues herein, relating to rights of
member-employees to panel for employment at SOCC’s
other mining operations and other employees’ contract inter-
est which may have been affected by the sale transaction.
I therefore conclude and find upon the foregoing essen-
tially uncontroverted evidence and cited legal authority, that
the Union’s request for a complete copy of the purchase and
sale agreement was relevant and necessary to its processing
the subject employees; grievances concerning their contract
right to panel for employment at Respondent’s (SOCC’s)
other mining operations, as well as for other employees’ in-
terest which may have been affected by the sale transaction.
Under such circumstances, Respondent was legally obligated
to supply the information (unexcised copy of the purchase
and sale agreement). NLRB v. Acme Industrial Co., 385 U.S.
432 (1967); Detroit Edison Co. v. NLRB, 440 U.S. 301
(1979); Bickerstaff Clay Products, 266 NLRB 983 (1983).
Moreover, the Board has held that requests for sales infor-
mation by a union to determine successorship obligations are
relevant to a union’s statutory duty in representing its mem-
ber-employees. Westwood Import Co., 251 NLRB 1213
(1980). The Board has further found that a purchase and sale
agreement is relevant and necessary to a union’s responsibil-
ity in representing its members. RBH Dispersions, Inc., 286
NLRB 1185 (1987); Washington Star Co., 273 NLRB 391
(1984).
Respondent has affirmatively alleged that District 31
waived whatever right it had to request information. How-
ever, Respondent offered no evidence to support this allega-
tion. Notwithstanding, the Board has repeatedly held that the
relinquishment of a statutory right, such as the right to re-
quest relevant and necessary information, must be supported
by ‘‘clear and unmistakable’’ evidence. Clinchfield Coal Co.,
275 NLRB 1384 (1985). Since the evidence of record fails
to demonstrate such a waiver, I find that the Union (the Na-
tional nor District 31) did not waive their right to request rel-
evant and necessary information in representing their mem-
bers.
Consequently, based upon the foregoing evidence, cited
legal authority, and reasons, I find that Respondent’s refusal
to supply District 31 with an unexcised copy of the purchase
and sale agreement constituted a failure and refusal to bar-
gain in good faith, in violation of Section 8(a)(1) and (5) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in close connection with its operations as
described in section I, above, have a close, intimate, and sub-
stantial to trade, traffic, and commerce upon the several
States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in an unfair
labor practice within the meaning of Section 8(a)(1) and (5)
of the Act, we shall order that it cease and desist from and
take certain affirmative action to effectuate the policies of the
Act.
Having been found that Respondent interfered with, re-
strained, and coerced its employees in the exercise of their
Section 7 rights, by refusing to furnish the Union relevant in-
formation requested by the Union for its evaluation and proc-
essing grievances under the collective-bargaining agreement,
Respondent has failed and refused to bargain with the Union
in good faith, in violation of Section 8(a)(1) and (5) of the
Act, the recommended Order will provide that Respondent
cease and desist from engaging in such conduct.
Because of the character of the unfair labor practices here-
in found, the recommended Order will provide that Respond-
ent cease and desist from or in any like or related manner
interfering with, restraining and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
NLRB v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir.
1941).
Upon the basis of the above findings of fact, and upon the
entire record in this case, I make the following
CONCLUSIONS OF LAW
1. Southern Ohio Coal Company, the Respondent, is and
has been at all times herein, an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. United Mine Workers of America, AFL–CIO (the Na-
tional Union), and District 31, its affiliate (collectively the
Union), have been at all times material herein, a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. The National Union has been the exclusive collective-
bargaining representative of certain employees of Respondent
846 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
as described in the national Bituminous Coal Wage Agree-
ment of 1988, and has been recognized as such, and such
recognition has been embodied in successive collective-bar-
gaining agreements.
4. District 31, a constituent member of the National Union,
is and has been an agent of the National Union, acting on
its behalf in administering the collective-bargaining agree-
ment for the employees in the following appropriate unit:
Certain employees of Respondent as described in the
national Bituminous Coal Wage Agreement of 1988,
herein called ‘the Unit,’ is and has been recognized as
such representative by Respondent.
5. By failing and refusing to furnish the Union relevant
and necessary information requested by the Union to assist
it in evaluating and effectively performing its representative
function in processing employee grievances, Respondent has
violated Section 8(a)(1) and (5) of the Act.
[Recommended Order omitted from publication.]