Massey Energy Co., 09-CA-042057

CourtNational Labor Relations Board
Citation358 NLRB No. 159
Decision Date28 September 2012
PartiesMASSEY ENERGY COMPANY AND ITS SUBSIDIARY, SPARTAN MINING COMPANY D/B/A MAMMOTH COAL COMPANY AND UNITED MINE WORKERS OF AMERICA
Docket Number09-CA-042057

358 NLRB No. 159

MASSEY ENERGY COMPANY AND ITS SUBSIDIARY, SPARTAN MINING COMPANY D/B/A MAMMOTH COAL COMPANY AND UNITED MINE WORKERS OF AMERICA

No. 09-CA-042057

United States of America, National Labor Relations Board

September 28, 2012


DECISION AND ORDER[1]

The principal issue in this case is whether the Respondents, Massey Energy Company (Massey) and its wholly-owned subsidiary Spartan Mining Company d/b/a Mammoth Coal Company (Mammoth), unlawfully refused to hire union-represented employees of the predecessor employer, refused to recognize and bargain with the Union as the representative of employees in the bargaining unit, and unilaterally changed terms and conditions of employment for those employees. For the reasons discussed below, we agree with the judge that the Respondents committed each of the alleged violations.[2]

Background

For many years, Horizon Natural Resources Company (Horizon) owned and operated the Cannelton/Dunn coalmining operation in Kanawha County, West Virginia. The Union had represented Horizon's mining employees since at least 1969.

In 2004, [3] Horizon filed for bankruptcy. In August, Massey, through its operating subsidiary A. T. Massey Company, acquired certain of Horizon's assets, including the Cannelton/Dunn operations.[4] Massey created a new subsidiary, Mammoth, to operate the mine; mine operations began in late September.

Before assuming control, Mammoth began offering either continued employment or employment interviews to every one of the unrepresented employees, supervisors and nonsupervisors alike, who had worked at the Cannelton/Dunn facility. Consequently, many of those individuals continued their employment without a break after Mammoth began to operate the facility.

Mammoth's treatment of Horizon's former union-represented employees was markedly different. Mammoth began hiring to fill former bargaining unit positions on December 3.[5] Previously, by letter dated November 18, the Union had informed Mammoth that 250 of the mine employees were willing to return to work. Yet Mammoth did not offer all those employees employment or employment interviews, as it had done with the former nonunit, nonunion employees. To the contrary, as the judge found, “ the Respondents did not even provide the unit employees with information about how to go about seeking employment at the facility where many had worked for decades.” Indeed, it appears that Mammoth's only effort (if it can be called that) to recruit the former Horizon miners consisted of leaving application forms at the facility's guard station--without generally informing the former unit employees of that fact. Meanwhile, Massey ran newspaper and billboard advertisements in the area seeking experienced underground miners for the Mammoth operation. As the judge found, Massey “ even had airplanes pull banners with help-wanted advertisements above Myrtle Beach, South Carolina, ” which is a popular vacation spot for West Virginia miners. Mammoth also actively solicited miners at other Massey-owned mines to transfer to Mammoth.[6]

Undeterred by the Respondents' studied lack of interest in them, many former Horizon unit employees obtained application forms from the union hall and applied for employment with Mammoth. Mammoth, however, ultimately hired only 19 of those employees (none of whom had been union officers or union committee members at the time ownership was transferred) out of a total of 219 persons hired to perform bargaining unit work. During the application process, Mammoth officials had monitored the status of the former Horizon unit employees using a spreadsheet showing the approximate “ union time” of each unit employee.

Instead of employing experienced former Horizon miners, Mammoth hired numerous inexperienced trainees. It also hired many experienced miners who transferred from other Massey subsidiaries, even though some of those subsidiaries were having difficulty finding a sufficient number of skilled miners for their own operations. Having hired only a small fraction of its production work force from among Horizon's former unit employees, Mammoth declined to recognize the Union and implemented new terms and conditions of employment, including lower wage rates than Horizon had paid.

The complaint alleges that Mammoth and Massey violated Section 8(a)(3) and (1) of the Act by refusing to hire the union-represented former mine employees in order to avoid incurring a statutory bargaining obligation, and violated Section 8(a)(5) and (1) by refusing to recognize the Union and by unilaterally changing the employees' terms and conditions of employment. The complaint alleges that “ [a]t all material times, Respondent Massey and Respondent Mammoth have been agents of each other, acting for and on behalf of each other, ” and therefore that both Massey and Mammoth are liable for the alleged misconduct. In his posthearing brief to the administrative law judge, the General Counsel argued, among other points, that Massey and Mammoth are a “ single employer” under the Act and Board precedent and that Massey should be found liable on that basis.

The judge found that the Respondents had violated the Act as alleged, but he did not find Massey liable for the violations under an agency theory. Instead, the judge found that “ the record shows that the Massey corporate family, including Mammoth, is highly interrelated and that its labor and human resources policy is controlled in significant respects by officials of Respondent Massey.” The judge also found that “ the involvement of Massey officials in the personnel functions of its subsidiary Mammoth, and indeed its direct participation and key causal role in the actions alleged to be unlawful in this proceeding, satisfy the Board's standard for holding a parent company liable for the unfair labor practices of a subsidiary.” Accordingly, the judge concluded that “ Massey's involvement in, and potential liability for, the alleged unfair labor practices has been fully litigated.”

In his conclusions of law, the judge found Massey liable because it “ directly participated in, and played a key causal role in, the unfair labor practices found in this decision.” Although the judge did not explicitly address whether the two Respondents constitute a single employer, we find, for the reasons set forth below, that the judge's findings support a conclusion that Massey is liable based on a single employer theory.

Discussion

To begin, we agree with the judge that Mammoth violated Section 8(a)(3) by refusing to hire the discriminatees in order to avoid incurring a statutory bargaining obligation. In this regard, we reject the Respondents' contention that the General Counsel was required to establish, pursuant to Toering Electric, 351 N.L.R.B. 225 (2007), that the discriminatees were genuine applicants for positions with Mammoth. We also agree with the judge that Mammoth violated Section 8(a)(5) by refusing to recognize the Union and by unilaterally changing the terms and conditions of employment of its mining employees.

In addition, we agree with the judge that Massey is liable for the unfair labor practices at issue because it was a direct participant in the unlawful conduct. Finally, we find that Massey and Mammoth constitute a single employer and that Massey also is liable on that basis for the violations found here.

I. MAMMOTH' S UNFAIR LABOR PRACTICES

A. Refusal to hire unit members

1. The refusal to hire was unlawful

We adopt the judge's conclusion that Mammoth unlawfully discriminated on the basis of union status when it refused to hire former Horizon employees based on their membership in the predecessor's bargaining unit and their prounion sentiments.[7] Our finding is based on Mammoth's own conduct, which we find sufficient to impose liability on Mammoth, independent of any consideration of the actions of Massey.

The statements, actions, and testimony of Mammoth's managers and supervisors leave little doubt that Mammoth's refusal to hire the discriminatees was unlawfully motivated. Indeed, the evidence shows that the Mammoth managers in charge of hiring were acutely aware of the need to keep track of how many members of the Horizon bargaining unit they hired, so as to ensure that Mammoth did not incur a bargaining obligation. During the staffing process, Mammoth's human resource manager, Kevin Doss, used a spreadsheet supplied by another Massey subsidiary indicating the approximate “ union time” of each unit employee, information that was--or should have been--completely irrelevant to the hiring process. When employee Terry Abbott suggested to Mammoth supervisor Keith Stevens that the company could alleviate its shortage of experienced miners by hiring more former Horizon employees, Stevens responded, “ [Massey president, chairman, and CEO] Don Blankenship's a smart man, he's not going to let the numbers go against him.” [8] Stevens' statement establishes that Mammoth's management team was acutely aware of the imperative not to hire a majority of its miners from the ranks of the former Horizon miners.

Although the Board most frequently must rely on circumstantial and indirect evidence to establish motive in unlawful refusal-to-hire cases, that is not the case here; Mammoth's managers testified that their antiunion bias tainted their decisions not to hire certain discriminatees. Mammoth's prep plant superintendent, John Adamson, testified that one of the main factors that made him unwilling to hire local Union President William Willis was Willis' statement that he intended to organize on behalf of the Union if hired. Similarly, Mammoth's President, Dave Hughart, testified that he considered Dwight Siemiaczko to be a poor candidate for employment in part because he had said that, if hired, he would “ make every effort to organize.” [9]

In addition to this direct evidence of unlawful motivation, the numerous...

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1 practice notes
  • VIUSA INC. (F/K/A VOITH INDUSTRIAL SERVICES INC.), (2012)
    • United States
    • December 21, 2012
    ...violated Section 8(a)(1) and (5) ofthe Act. Massey Energy Company and its Subsidiary, Spartan Mining Company d/b/a Mammoth Coal Company, 358 NLRB No. 159 (2012). 2. Refusal to Hire or Consider for hire AllegationsRespondent Voith denies that it has refused to hire or consider for hire the f......
1 cases
  • VIUSA INC. (F/K/A VOITH INDUSTRIAL SERVICES INC.), (2012)
    • United States
    • December 21, 2012
    ...violated Section 8(a)(1) and (5) ofthe Act. Massey Energy Company and its Subsidiary, Spartan Mining Company d/b/a Mammoth Coal Company, 358 NLRB No. 159 (2012). 2. Refusal to Hire or Consider for hire AllegationsRespondent Voith denies that it has refused to hire or consider for hire the f......

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