N.L.R.B. v. Low Kit Min. Co.
| Decision Date | 25 August 1993 |
| Docket Number | No. 93-1060,93-1060 |
| Parties | 144 L.R.R.M. (BNA) 2185, 126 Lab.Cas. P 10,833 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOW KIT MINING COMPANY, A successor to Spangler Coal Company, Incorporated, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Margaret Ellen Luke, N.L.R.B., Washington, DC, argued (Jerry M. Hunter, Gen. Counsel, Yvonne T. Dixon, Acting Deputy Gen. Counsel, Nicholas E. Karations Acting Associate Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, and Peter Winkler, Supervisory Atty., N.L.R.B., on brief), for petitioner.
Mark Anthony Carter, argued (Forrest H. Roles, on brief), Smith, Heenan & Althen, Charleston, WV, for respondent.
Before POWELL, Associate Justice (Retired), United States Supreme Court, sitting by designation, and HAMILTON and WILLIAMS, Circuit Judges.
The National Labor Relations Board (NLRB) seeks enforcement of its order, 309 N.L.R.B. No. 76, adopting the recommended factual findings, conclusions of law and remedies of the Administrative Law Judge (ALJ). The ALJ recommended setting aside a prior settlement agreement between the United Mine Worker's Association (the Union) and Low Kit Mining Company (Low Kit) for two alternative reasons. First, the ALJ found that Low Kit committed an unfair labor practice in violation of Sec. 8(a)(1) and (3) of the National Labor Relations Act (the Act), 29 U.S.C. Sec. 158(a)(1) and (3), after executing the settlement agreement. Second, the ALJ found that Low Kit failed to comply with the express terms of the settlement agreement. The ALJ then recommended requiring Low Kit to undertake several remedial actions. Finding no error, we grant the NLRB's application for enforcement.
The events in this case arise from the mining of bituminous coal on Spangler Mountain, a mine site opened in December 1990, near Pond Gap in the Kelley's Creek area in Kanawha County, West Virginia. The mineral rights to the coal were owned by three entities who leased them to Logan Coal and Export Corporation (Logan), a company owned by David L. Swango. Swango was also Logan's president and sole director. Logan contracted with J.G. Leasing to perform the actual mining. With Logan's permission, J.G. Leasing subcontracted the labor portion of the mining to Spangler Coal Company, Inc. (Spangler). Spangler was nominally owned by Dwayne Atkins, who also served as its mine superintendent.
In December 1990, Atkins began to recruit employees for the various classifications involved in a mining operation. 1 During these interviews, Atkins made several statements indicating that he wanted to operate the Spangler Mine on a non-union basis. Specifically, Atkins stated "this is a non-union operation and it will run non-union," and indicated that the lessors of the mineral rights would "pull the contract" if the mine became unionized. (Joint Appendix (J.A.) 599). Atkins hired about twenty to twenty-five men who worked initially on two shifts for ten hours each and also on a so-called maintenance shift.
During the first months of Spangler's operations, Spangler failed to withhold taxes or social security from its employees' paychecks. Atkins informed the employees that Spangler could not afford to pay such taxes. Because the employees were concerned about the failure to withhold such taxes, several employees contacted an organizer for the Union to inform him that the employees at Spangler desired Union membership. Alan Nichols, an employee of Spangler, then obtained Union designation cards and began soliciting memberships, both on and off Spangler's premises. Between February and March 1991, some fifteen out of the approximately twenty to twenty-five employees signed these cards.
At the outset of the Union drive, the Union sent a letter to Spangler officials informing them that the Union was in the process of organizing their employees. On February 16, in response to this letter, Spangler held a meeting with its employees at the end of the evening shift. During this meeting, Atkins told the employees that they would have no say in the mine's operation if the Union won the right to represent them and Spangler would "pull the plug on the mine" if it went union. (J.A. 600).
On February 21, 1991, Spangler again held a meeting with eight employees on the evening shift. The mine's foreman, Danny Beasley, also attended. During this meeting, Atkins told the employees that he knew someone was trying to organize the mine, he knew the identity of that person, and the effort would cause men to lose their jobs. Atkins added that he knew there was a planned Union meeting the next weekend in a nearby city, and he would know who attended the meeting. Atkins again emphasized that Spangler was a non-union mine and should remain so.
Shortly after this meeting, Nichols, who had attended the prior meeting, returned to the office and told Atkins that he was the one soliciting the Union cards. He added that he would not turn them over to the Union because he needed to keep his job. In response, Atkins took out Spangler's financial records in an effort to prove to Nichols that Spangler could not afford the Union's wages. Atkins added that the mine was a small operation, but might be able to afford those wages next year.
On March 15, 1991, Spangler terminated seven employees on the night shift including: Alan Nichols, Paul D. Bartley, Steve A. Browning, Mickey Hager, Leroy Halstead, Lester M. Lanham and Rodney D. Lanham. Each employee was given the same letter in his pay envelope, stating "you are terminated for lack of work this date." (J.A. 602). Each of these employees had recently signed a Union authorization card, had a good work record, lengthy mining experience and was qualified to perform several different mining functions. Upon receiving his notice of discharge, Nichols inquired why others with less seniority had not been discharged. Atkins responded that seniority did not mean anything at Spangler. 2
On the following Monday, the discharged employees set up a picket line approximately one-quarter of a mile from the mine entrance to protest their discharges. Most of the other employees observed the picket line, thereby causing an interruption in Spangler's operations. After the employees had picketed for a week, Atkins held a meeting on Saturday and announced that all of the employees could go back to work beginning the next day, Sunday, March 24. Thus, Spangler rehired the entire night shift, including those employees who had been laid off.
On Monday, March 25, as a result of the March 15 discharges, the Union filed an unfair labor practice charge against Spangler with the NLRB. On April 22, the Union amended its unfair labor practice charge against Spangler to include allegations that Spangler had engaged in coercive conduct, including interrogating job applicants, threatening to discharge employees and to close the mine, and creating the impression of surveillance. On May 7, the NLRB issued a complaint on the Union's unfair labor practice allegations.
Meanwhile, the Union's process of organizing Spangler's employees continued. On April 12, 1991, the Union formally filed a petition with the NLRB seeking to represent Spangler's production and maintenance employees in collective bargaining negotiations with Spangler's management. By letter dated April 29, 1991, Atkins sent a letter to Spangler's employees, confirming an earlier oral promise that Spangler would give them a $2.50 per hour raise and insurance benefits. Spangler and the Union dispute whether the prior oral promise occurred before the Union filed its representation petition on April 12, 1991.
On May 17, 1991, the NLRB conducted a representation election at Spangler to determine whether the Union would have the right to represent Spangler's employees in collective bargaining negotiations. The Union lost by a vote of twelve to nine. The day after the election, Atkins called Nichols into his office and informed him: (J.A. 603). On May 22, the Union filed objections to the election, contending that Spangler had interfered with the representation election by promising a raise and insurance benefits if the employees would vote against the Union at the election. In June, the NLRB scheduled a consolidated hearing for September 3, 1991 on the unfair labor practice complaint and the election objections.
On July 8, 1991, a Spangler employee notified Nichols, Kenneth Derrick, R. Lanham and Thomas Osborne by telephone that they were being laid off until further notice because of poor coal sales. 3 Neither the Union nor the NLRB challenged these layoffs as improper. Two weeks after the layoffs, Spangler recalled Osborne and he returned to work as a beltman.
Late in July, Atkins left Spangler and was replaced by Spangler's foreman, Beasley. On August 11, Osborne asked Beasley for permission to leave work to meet with an NLRB agent who was investigating the pending unfair labor practice complaint. Beasley granted the leave. On August 12, Osborne was injured on the job, and telephoned J.G. Leasing's owner to report the injury. During this conversation, the owner informed Osborne that he was being laid off. Neither the Union nor the NLRB claimed this discharge was improper.
On August 17, 1991, Spangler ceased operations at the mine site because of slow sales. David Swango then established Low Kit. Swango assumed the position of Low Kit's secretary and member of the board of directors and named Beasley, Spangler's mine foreman, as Low Kit's president and mine superintendent. On August 19, 1991, Low Kit assumed control of the mining operations and continued to operate the mine under the Logan mining permit.
On August 19, Swango called Spangler's employees together, informed them...
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