Power Inc. v. N.L.R.B., 93-1383
| Decision Date | 06 January 1995 |
| Docket Number | No. 93-1383,93-1383 |
| Citation | 40 F.3d 409 |
| Parties | 147 L.R.R.M. (BNA) 2833, 309 U.S.App.D.C. 153, 63 USLW 2368, 129 Lab.Cas. P 11,232 POWER INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, United Mine Workers of America, International Union, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Frederick J. Bosch, Philadelphia, PA, argued the cause for petitioner. With him on the briefs was Herbert G. Keene, Jr., Philadelphia, PA.
David A. Fleischer, Attorney, N.L.R.B., Washington, DC, argued the cause for respondent. With him on the brief were Linda Sher, Acting Associate Gen. Counsel, and Aileen A. Armstrong, Deputy Associate Gen. Counsel, N.L.R.B., Washington, DC.
Barry A. Woodbrey, Jr. and William B. Manion, Washington, DC, filed the brief for intervenor United Mine Workers of America.
Before WALD, SILBERMAN and HENDERSON, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
Power, Inc. ("Power") petitions for review of an order of the National Labor Relations Board ("NLRB" or "Board") dated May 28, 1993. The Board found that Power violated Sec. 8(a)(1) of the National Labor Relations Act ("NLRA" or "Act") by unlawfully threatening employees with plant closure, job loss, and other reprisals if they unionized; that it violated Secs. 8(a)(1) and 8(a)(3) by laying off thirteen union supporters and refusing to rehire another former employee; and that it violated Sec. 8(a)(5) by failing to bargain with the United Mine Workers of America ("UMWA") over two subcontracting decisions. 1 Power also challenges remedial orders issued by the Board retroactively requiring the company to bargain with the UMWA, and requiring the company to resume subcontracted drilling operations.
The NLRB cross-applies for enforcement of its order, and the UMWA intervenes on the side of the Board. We deny Power's petition for review, and enforce the Board's order.
Power, Inc. operates a surface coal mine (strip mine) in central Pennsylvania. Power operated at a loss from 1978 until 1987 while under the ownership of Derek Crouch, plc ("Crouch"), a British corporation. In August, 1987, Ryan International ("Ryan"), another British corporation, bought Crouch (including its subsidiary, Power), and immediately began to reassess Power's mining strategy. In March, 1988, Ryan named Dan Armstrong, an official of Crouch Mining, Ltd., 2 as President of Power. Armstrong reduced Power's workforce by 41 percent (63 employees) in 1988 through six rounds of permanent layoffs, combined with retirements and attrition. Despite this cost-cutting, Power reported a net operating loss of $2.7 million in 1988, as a result of weak coal prices and production shortfalls. Power's workforce reduction strategy involved laying off workers by seniority within job classifications, without regard to overall length of service with the company. This, combined with the prospect of further layoffs, contributed to unrest among Power's employees.
In December, 1988, a management group at Ryan formed a new company, Digger, plc ("Digger"), and announced plans for a leveraged buyout of Ryan at a cost of more than $100 million. On December 13, 1988, shortly after the announcement of the leveraged buyout, Power employees John Acey, Jr., Mike Acey, and Elmer Laird contacted the UMWA, and subsequently began circulating union authorization cards.
In December 1988 and the early months of 1989, various company officials, including the production equipment manager, a supervisor, and the general foreman, warned employees that if the company was unionized, it would be shut down. Joint Appendix ("J.A.") 8-10, 142-43, 316-17, 456-57, 484-85, 588, 636. Around this same time, Power's Treasurer Derek Reed, the company's second-ranking official, told office manager Theresa Cantolina that employees John Acey, Sr. and his sons John Acey, Jr. and Mike Acey were "troublemakers" who had brought on the union activity. J.A. 352-53. In another conversation with the same office manager, Reed said that the company would get rid of the union supporters. Id. In July 1989, Les Nicholson, Managing Director of Crouch Mining, told Cantolina that the parent corporation would put Power out of business before allowing a union. J.A. 356.
On January 3, 1989, Power temporarily suspended all mining operations after a breakdown in its coal processing facilities. Power ultimately reported an operating loss of $1 million for the first quarter of 1989.
On January 6, 1989, having collected the signatures of a majority of Power's production and maintenance workers, the UMWA demanded recognition as collective bargaining representative, and filed a petition for a certification election.
On January 25, 1989, Power President Dan Armstrong finalized a report ("January 25 Report") recommending conversion of Power's cast blasting and dragline mining method to a shovel and truck mining method, requiring changes in Power's equipment and workforce. Armstrong projected layoffs of 23 additional employees.
On February 24, 1989, the NLRB's regional director ordered a union representation election to be held on March 23.
On March 10, 1989, Power laid off thirteen employees; these layoffs were the basis for unfair labor practice charges subsequently upheld by the NLRB. Laid off were one driller, two dragline oilers, two dragline operators, two loader operators, three dozer operators, and three rock truck operators. These layoffs were all in categories slated for elimination or reduction in Armstrong's January 25 Report, although layoffs were not uniformly made in all job classifications identified for reduction in that report. Compare January 25 Report, J.A. 1468 () with J.A. 14 (). The layoffs also generally followed Power's prior policy of letting go workers by seniority within a given job classification rather than on the basis of seniority with the company. Nonetheless at least one employee who had not signed a union card was anomalously transferred to another job category just before the layoffs, thus effectively insulating him from layoff. J.A. 846, 932, 1078. In addition, some maintenance workers were transferred to 100-ton rock truck operations, even though 35-to-50-ton rock truck operators, some with greater overall seniority within the company, were being laid off. J.A. 638-39, 683, 879, 882, 885. Although Power claimed placing maintenance workers in truck operator positions would allow these workers to do maintenance on their own trucks, they were never called upon to do maintenance work. J.A. 649-53, 683. All thirteen laid-off workers had signed union authorization cards. J.A. 1265-75, 1291, 1295, 1303, 1307. Most had worn or displayed union insignia at work, J.A. 149, 197, 313-14, 446, 485, 499-500, 561, 587, and many had engaged in visible activities on behalf of the union within sight of management personnel, J.A. 150-51, 313-14, 456, 485, 499-500, 1262-63. Eight were members of a twelve-person "in-house organizing committee" established by the union. J.A. 194. Two (John Acey, Jr. and Elmer Laird) were among the three who had initially contacted the UMWA. And two (John Acey, Sr. and John Acey, Jr.) were among the three identified as pro-union "troublemakers" by Treasurer Reed. Three days after these layoffs, Armstrong returned to Great Britain to take over management of a larger mine.
On March 21, 1989, Supervisor Pete Prohaska told four employees that if the union came to Power, the thirteen employees laid off on March 10 would return and take the jobs of employees who were still working. J.A. 103-04. On that same date, Chris Hotson, Chairman of Power's parent corporation, Ryan International, held meetings with employees on two shifts, saying that he expected them to vote "no" in the upcoming union election; that the thirteen employees laid off on March 10 were trying to cause a strike and were "past history"; that in the past he had shut down a mine when he was unable to reach an agreement with the union; and that any union would eventually put a company out of business. J.A. 102-03, 116, 625.
A union representation election was held on March 23, 1989. The result was 27 votes for the union, 30 against, and 19 challenged ballots. Thirteen of the 19 challenged ballots were cast by the employees laid off on March 10; the Board subsequently ordered these 13 ballots to be counted, resulting in 40 votes for the union and 30 against. However, because of the time lag in NLRB proceedings, the union was not certified until July 1, 1993, more than four years after the election.
In April, 1989, a contingent of experienced Crouch Mining employees arrived from Great Britain and proceeded to operate rock trucks, dozers, a large shovel imported from Britain as part of the restructuring plan, and other heavy equipment. This work included operation of heavy equipment previously operated by some of the employees laid off on March 10. J.A. 642, 655-61, 682-84, 696-700, 704-05, 991-94, 998-1000, 1003-09, 1024-27, 1046-49, 1194-98, 1336-66.
In September 1989, Frederick Bosch, an attorney for Power, met with several small groups of employees and threatened that the company would replace striking workers in the event of a strike, and that anyone "caught helping" the thirteen laid-off workers by contributing to a union-sponsored hardship fund would "be out there looking for help from somebody else." J.A. 608-10. On another occasion, Bosch told employees that Power would "drag on" NLRB proceedings. J.A. 687-88.
In December, 1989, without consulting the union, Power subcontracted the operating of its rock trucks, graders, and dozers to Operators Unlimited, Inc. ("Operators"), resulting in the...
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