NOTICE: This opinion is subject to formal revision before
publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board,
Foundation Coal West, Inc. and United Mine Workers
of
February 21, 2008
DECISION AND ORDER
By Members Liebman and Schaumber
On August 30, 2007,
Administrative Law Judge John J. McCarrick issued the attached decision. The Respondent filed exceptions and a
supporting brief, the General Counsel filed a brief in opposition to the Respondent’s
exceptions, and the Respondent filed a reply brief.
The National Labor
Relations Board has considered the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rulings, findings, and
conclusions[1]
and to adopt the recommended Order.[2]
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge and orders that the Respondent,
Foundation Coal West, Inc.,
Dated,
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Wilma B. Liebman, |
Member |
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Peter C. Schaumber, |
Member |
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(Seal) National Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor Relations Board has found that we violated Federal
Labor law and has ordered us to obey and post this notice to employees in both
English and Spanish.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We
will not do anything that
interferes with these rights.
We will not enforce a rule that prohibits you from
distributing union literature in nonwork areas at nonworktimes.
We will not issue you written warnings for distributing
union literature in nonwork areas on nonworktime to discourage you from
engaging in union activities.
We will not threaten you with calling the police or in
fact calling the police to remove you to prevent you from distributing union
literature in nonwork areas on non-worktime.
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, within 14 days from the date of this Order,
remove from our files any reference to the unlawful written warnings issued to
Ronald Faircloth and Jeff Jacobson for distributing union literature and we will, within 3 days thereafter, notify Ronald Faircloth and Jeff Jacobson in
writing that this has been done and that these written warnings will not be
used against them in any way; and we will not make reference
to the permanently removed materials in response to any inquiry from any
employer, employment agency, unemployment insurance office, or reference seeker
and we will not use the permanently removed material against them.
Foundation Coal West, Inc.
Michael Cooperman Esq. and Ian Farrell, Esq., for
the General Counsel.
Anna M. Dailey, Esq.
(Dinsmore & Shohl), of
Robert Guilfoyle, International
Representative for United Mine Workers of
DECISION
Statement
of the Case
John J. Mccarrick, Administrative Law Judge. This
case was tried in
The amended consolidated complaint alleges
that Foundation Coal West, Inc. (Respondent) violated Section 8(a)(1) and (3)
of the Act by unlawfully enforcing its no-solicitation/no-distribution rule; by
disparately enforcing its no-solicitation/no-distribution rule; by threatening
to call and calling police to prohibit its employees from distributing union
material; and by issuing written warnings to employees for violating its
no-solicitation/no-distribution rule.
Respondent filed a timely answer to the amended consolidated complaint
denying any wrongdoing.
On the entire record, including the briefs
from the General Counsel and Respondent, I make the following
Findings
of Fact
i.
jurisdiction
Respondent, a
Based on the above, Respondent is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the
Act.
ii.
labor organization
Respondent admitted and I find that the United
Mine Workers of America (the
iii.
the alleged unfair labor practices
A. Respondent’s Belle Ayr Mine
Respondent has owned and operated the Belle
Ayr coal mine in
Respondent’s Belle Ayr mine (the Pit) is an
open-pit coal mine so vast that when coal is blasted from its benches it is
loaded into trucks 15 feet off the ground.
When the coal is taken to market entire trains are dedicated to the coal
removed from the Pit. At Belle Ayr mine,
where coal is blasted, shoveled, and loaded onto gigantic dump trucks, is over
a mile distance from Respondent’s administrative offices and coal loading mill
where trains are loaded with coal. An
employee parking lot is adjacent to the main building.1 Located
within the main building are an administrative office, including the executive
offices of Respondent’s president, human resources, and blasting supervisor, a
warehouse, a maintenance area, pit supervisor’s office, pit coordinator’s
office, the yellow training room, men’s and women’s changing rooms, rest rooms,
an ambulance bay, emergency medical technician’s (EMT) office, and the Hallway.2
The Hallway,[3] the situs of the dispute herein, is the entry point to the Belle Ayr
mine for all hourly employees, Pit supervisors, and vendors. The hallway is 81 feet long and
about 9 feet wide. At the right end of
the Hallway is a double door entrance leading to the employee parking lot and
loading doors to the warehouse. At the
left end of the hallway is a double door leading to the men’s
changing room and doors to the women’s changing room. Both the men’s and women’s changing rooms
have direct access outside the administrative building from where they are
transported to the Pit. Off the hallway
behind closed doors are the pit supervisor’s office, the pit coordinator’s
office, the yellow training room, and the changing rooms. At various points along the hallway are the timeclock, located near the double door entrance, a bench where
employees congregate to socialize and eat their lunch opposite the coffeemaker and
microwave, various bulletin boards,[4] three vending
machines, an ice machine, a coffeemaker, and a microwave, desks[5] and cabinets for first aid supplies, forms, medicine, and ear plugs.[6] All production employees have
access to the vending, coffee, and ice machines as well as the microwave.
Pit employees who remove coal from the Pit
work on two 12-hour shifts. The day
shift clocks in between 6:27 and 6:42 a.m. and clocks out between 6:55 a.m. and
7 p.m. The night shift clocks in between
6:27 and 6:42 p.m. and clocks out between 6:55 and 7:10 a.m. In addition to the Pit employees, Respondent
employs drillers and blasters and maintenance employees. The drillers and blasters work two 12-hour
shifts beginning and ending at 5:05 a.m. or p.m. The maintenance employees work two 12-hour
shifts beginning and ending at 6 a.m. or 6 p.m.
There is no dispute that employees use the hallway
to socialize with coworkers before, during and after work. At the beginning of each production shift
there is a short preshift meetingof about 3 minutes at 6:42 a.m. or p.m. for
production employees in the yellow training room where various production
issues are discussed, including changes in work assignments. Occasionally the dispatcher will tell an
employee of an assignment change in the hallway if they cannot
contact the employee in the yellow room.
Human resource employees are present during the morning shift change to
discuss human resources and safety issues with production employees. The Pit
supervisor was also present during the morning shift change as occasionally was
Respondent’s president. It was admitted that the human resources employees,
Respondent’s president and blasting supervisor also socialized with production
employees and it was not clear how much of the conversation between production
employees and Respondent’s managers and supervisors was social conversation as
opposed to work related issues as no estimates of the number of work related
conversations with employees versus social conversation was established. Meyer, Crawford, and Saathoff claimed they
were present in the hallway during the morning shift change to assess the demeanor
and fitness of employees for work by observing them.
The blasting supervisor, who works from 5
a.m. to 1 p.m., briefly meets with drilling and blasting employees in the hallway
at the shift change in the morning to discuss what happened on the night
shift. Blasters and drillers likewise
speak with each other at shift change in the hallway to discuss what occurred on the previous shift. No blasting takes place at night but drilling
is performed. The blasters and drillers
speak to Respondent’s engineers in the hallway once every 2 weeks
about blasting or drilling issues. Again no estimate was made of the proportion
of time the drillers, blasters, and blasting supervisor spent having
conversations about work-related issues as opposed to socializing nor was an
estimate made as to how long any conversations lasted among these employees
during shift change in the hallway. Given the short duration of time production
employees were in the hallway between starting and
quitting time, the time for work related discussions in the hallway was
minimal, according to dispatcher Torres, as little as 15 minutes out of a
12-hour workday.
In about August 2006, the
The next day Faircloth and Jacobson together
with Respondent’s production technician, Larry Weber (Weber), on their day off
returned to Respondent’s main building at about 6 p.m. and entered the hallway through the front-double doors. In
the hallway between the timeclock and the entry doors
Faircloth and Jacobson again distributed the same union literature to employees
entering to go to work but before they were working. At about 6:15 p.m., Pit Coordinator Martinez
told Faircloth and Jacobson, “You guys can’t do that.” Jacobson replied, “We have a legal right to
be here and passing out this literature.”
On September 8, 2006, both Faircloth and
Jacobson received disciplinary letters for violating Respondent’s policy
prohibiting distribution of written material.
In the hallway on about November 4,
2006, at approximately 6:10 to 6:25 a.m. Faircloth distributed six copies of the
At all times material, Respondent has
maintained the following rules, cited as “Reasons for discipline” in its technician
handbook dated April 20, 2006:
9. Solicitation of another technician while either the person doing the
soliciting or the one being solicited is on working time.
10. Distribution of advertising material, handbills printed or written
literature of any kind in the working area.
The record reflects that in the hallway during the last 2 years employees have sold raffle tickets, candy,
eggs, hard hat name tags, and cookies and conducted sports pools.However, with the exception of the hard hat name tags, there is no evidence
that Respondent’s supervisors or managers were present when these solicitations
took place nor is there evidence that Respondent’s supervisors or managers
condoned these solicitations. Moreover,
the evidence established that when Respondent became aware of employee solicitations
or sales they were promptly halted.
B. The Alleged Violations of Section 8(a)(1)
1. The September 5, 2006
enforcement of the no-solicitation/no-distribution rules
Paragraph 6 of the amended consolidated complaint
alleges that, on September 5, 2006, Respondent violated Section 8(a)(1) of the
Act by enforcing its no-solicitation/no-distribution rules by threatening its
employees that it would call the police if they continued distributing union
literature on Respondent’s property and by calling the police to remove employees
from its property who were distributing union literature.
Counsel for the
General Counsel contends that the situs where employees were distributing union
literature was either not a workplace or was a mixed use area. Respondent posits that the location of the union
literature distribution was primarily a work area.
In Stoddard-Quirk Mfg. Co., 138 NLRB 615,
619–620 (1962), the Board explained its rationale in distinguishing the
different rules for in-plant employee distribution of written materials and
oral solicitation. The Board balanced
the employer interests in maintaining order and avoiding hazards in its
production areas caused by littering versus employee interests in distributing
written materials and found the balance in the employers’ favor, noting that by
their nature written materials can effectively be disseminated in nonworking areas. On the other hand oral solicitation impinges
on an employer’s interests only during working time. Thus, the Board held employer rules that
nondiscriminatorily prohibit distribution of literature in working areas are
valid whereas rules that prohibit oral solicitation during nonworktime are
invalid.
In Transcon Lines, 235
NLRB 1163 (1978), the Board refused to extend the ban on distribution of
written materials in mixed use areas. The
work area in question was a drivers’ room.
Before making a run, drivers came to the terminal, punched the timeclock
in the drivers’ room, picked up and completed necessary trip documents, read
company notices and bulletins, and waited there for the driver who would share
the trip with them. On their return, drivers completed travel documents and reports
pertaining to their equipment, tire changes, or accidents. While in the drivers’ room, the drivers drank
coffee or ate snacks from machines provided there and conversed with other
drivers.
Likewise in United
Parcel Service, 327 NLRB 317 (1998), the Board concluded that an employee
check in area that was used by drivers to read,
lounge, engage in social conversation, and was used by supervisors to occasionally
give some instructions or supplies to drivers during the prestart period was a
nonwork area, or at most, a mixed use area and the employer was not privileged
to ban distribution in that area.
In Santa Fe
Hotel & Casino, 331 NLRB 723 (2000), the Board said that the occurrence
of nonproduction work on its property does not allow an employer to convert its
entire property into a working area.
Thus, at a hotel-casino, whose main function was to house guests and
allow them to gamble, the employer could not convert the entrances to its
hotel-casino into working areas where work functions incidental to its function,
including valet parking, gardening, security and maintenance took place. See also Meijer,
Inc., 344 NLRB 916, 917 (2005), where the Board found that incidental work
of employees
retrieving shopping carts and assisting customers to load purchases into cars was not work integral to its food distribution
business, thus the customer parking lot was not a working area.
Here, Respondent’s
main function is the digging, removal, sorting, and distribution of coal. This work is done primarily in the Pit and
loading areas of Respondent’s Belle Ayr mine, distant from the hallway. It is
these production areas of Respondent’s facility that the Stoddard-Quirk line of cases apply, including the cases cited by Respondent for the proposition that
its hallway
is a working area. Uarco Inc., 286 NLRB 55 (1987); Vapor Corp., 242 NLRB 776 (1979); and Timken Co., 236 NLRB 757 (1978).
It is the main production areas of an employer’s facility where the
hazards of littering and maintaining order are paramount over employee
distribution of literature.
On the other hand, there is no doubt that some work
incidental to Respondent’s main function takes place in the Hallway. Like the drivers in Transcon, in addition to socializing, eating, and drinking with
fellow employees, supervisors, and managers, Respondent’s production employees
in the hallway punch in and out, fill out production related
paperwork, and read Respondent’s notices and bulletins. Like the drivers in United Parcel, Respondent’s supervisors occasionally give
production employees instructions and employees pick up supplies while waiting
to perform Respondent’s main function, producing coal. At best, the hallway
is a mixed use area where both socializing and nonproduction work, incidental
to Respondent’s main function, the production of coal, take place. Employee distribution of written materials in
the hallway does not infringe on Respondent’s interests in conducting
an orderly nonhazardous workplace for the mining of coal.
By threatening to enforce and by enforcing its no-solicitation/no-distribution rule in a mixed use area of its
facility, Respondent violated Section 8(a)(1) of the Act as alleged in paragraph
6 of the complaint.
2. The disparate
enforcement of the no-solicitation/no-distribution rules
Paragraph 7 of the amended consolidated complaint
alleges that Respondent violated Section 8(a)(1) and (3) of the Act by
disparately enforcing its no-solicitation/no-distribution rules in threatening
to call police if employees continued to distribute union literature and
calling the police in order to remove employees distributing union literature
from its premises.
While the evidence establishes that Respondent’s
employees engaged in solicitation of other employees for raffles, sales of
candy, cookies, and eggs, there is no evidence, other than the isolated example
of limited sale of hard hat tags, that Respondent’s supervisors or managers
condoned these practices. Moreover, the
evidence shows that as soon as Respondent’s management became aware of employee
solicitations in the Hallway they were curtailed immediately. Thus, I find no evidence that Respondent has
disparately enforced its no-solicitation/no-distribution rules in violation of
Section 8(a)(1) and (3) of the Act as alleged in paragraph 7 of the complaint. I will dismiss
this portion of the complaint.
C. The Warning Letters to Employees Faircloth and
Jacobson as Alleged Violations of Section 8(a)(1) and (3)
Paragraph 8 of the amended consolidated complaint
alleges that Respondent violated Section 8(a)(1) and (3) of the Act by issuing
warning letters to employees Faircloth and Jacobson for violating its
no-solicitation/no-distribution rules.
There is no dispute that both Faircloth and
Jacobson were issued warning letters on September 8, 2006, and Faircloth received
a warning letter on November 10, 2006, for violating Respondent’s no-distribution
policy by distributing union literature to employees coming to work in
Respondent’s hallway.
Having found that Respondent cannot extend its no-distribution policy to
the hallway during nonworktime since it is at best a mixed use area, it follows
the discipline of Faircloth and Jacobson, who Respondent knew were engaged in
union activity, violated Section 8(a)(1) and (3) of the Act as alleged in Paragraph
8 of the complaint.
On the basis of the above findings of fact and the record as a whole, I
make the following
Conclusions of Law
1. Respondent has been at all times material an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The
3. Respondent violated Section 8(a)(1) of the Act by enforcing a rule
prohibiting employees from distributing union literature in nonwork areas
during nonworktime by threatening its employees that it would call the police
if they continued distributing union literature on Respondent’s premises, and
by calling the police to have its employees distributing union literature
removed.
4. Respondent violated Section 8(a)(1) and (3) of the Act by issuing
warning letters to employees Ronald Faircloth and Jeff Jacobson for distributing
union literature in nonwork areas during nonworktime to discourage employees
from engaging in union activities.
5. The Respondent did not otherwise violate the Act as alleged in the
amended consolidated complaint and the remaining complaint allegations will be
dismissed.
Remedy
Having found that
the Respondent violated the Act as set forth above, I shall order that it cease
and desist therefrom and post remedial Board notices addressing the violations
found.
On these findings
of fact and conclusions of law and on the entire record, I issue the following
recommended[14]
ORDER
The Respondent Foundation Coal West, Inc.,
1. Cease and desist from
(a) Enforcing a rule prohibiting employees from distributing union
literature in nonwork areas on nonworktime.
(b) Issuing employees’ written discipline for engaging in distribution
of union literature in nonwork areas on nonworktime in order to discourage
union activities.
(c) Threatening employees that they will call the police or in fact
calling police to remove them in order to prevent employees from distributing
union literature in nonwork areas on nonworktime.
(d) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action designated to effectuate the
policies of the Act.
(a) Within 14 days from the date of this Order, remove from its files
any reference to the unlawful written warnings issued to Ronald Faircloth and
Jeff Jacobson and, within 3 days thereafter, notify the employees in writing
that this has been done and that these written warnings will not be used against
them in any way.
(b) Within 14 days after service by the Region, post at
its
(c) Within 21 days after service by the Region, file with the Regional
Director a sworn certification of a responsible official on a form provided by
the Region attesting to the steps that the Respondent has taken to comply.
It is further ordered that the amended consolidated complaint is
dismissed insofar as it alleges violations of the Act not specifically found.
Dated,
APPENDIX
Notice To
Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The
National Labor Relations Board has found that we violated Federal Labor law and
has ordered us to obey and post this notice to employees in both English and
Spanish.
federal law gives you
the right to
Form, join, or assist a
union
Choose representatives to
bargain with us on your behalf
Act together with other
employees for your benefit and protection
Choose not to engage in any
of these protected activities.
Accordingly,
we give our employees the following assurances:
We will not do anything that interferes with these rights.
We will not enforce a rule that prohibits you from distributing
union literature in nonwork areas at nonworktimes.
We will not issue you written warnings for distributing union
literature in nonwork areas on nonworktime to discourage you from engaging in
union activities.
We will not threaten you with calling the police or in fact
calling the police to remove you to prevent you from distributing union
literature in nonwork areas on nonworktime.
We will not in any like or related manner restrain or coerce
you in the exercise of the rights guaranteed to you by Section 7 of the
National Labor Relations Act.
We will remove from our files any reference to the unlawful
written warnings to Ronald Faircloth and Jeff Jacobson for distributing union
literature; and we will not make reference to the permanently removed
materials in response to any inquiry from any employer, employment agency,
unemployment insurance office, or reference seeker and we will not use the permanently
removed material against you.
Foundation Coal West, Inc.
[1] In
adopting the judge’s findings that the Respondent violated Sec. 8(a)(1) of the
Act, as alleged, we agree that the hallway at issue was a mixed use area in
which extensive nonwork activities, such as dining and socializing, occurred
and that, consequently, under extant Board precedent, the Respondent was not
free to ban distribution of union literature in the hallway absent a showing of
interference with production or discipline, which was not demonstrated
here. United Parcel Service, 327 NLRB 317, 317 (1998) (adopting 325 NLRB
1, 3 (1997)), enfd. 228 F.3d 772 (6th Cir. 2000);
[2] Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kirsanow and Walsh on December 31, 2007. Pursuant to this delegation, Members Liebman and Schaumber constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act.
1 Jt. Exhs. 1 and 2.
2 Jt. Exh. 3.
[3] Employees called the hallway “Junk Food Alley” in reference to the vending machines located in the hallway from which they purchased junk food.
[4] The bulletin boards contain information including mine safety health administration notices, general safety information, production quotas, human resource information and employee personal notes and items for sale.
[5] On a daily basis, employees drop off shift-related forms at one desk and receive their work assignments for the day from a list at another desk.
[6] Jt. Exh. 4.
[8] Other than being able to detect an individual who was so inebriated as to be stumbling or so paranoid as to be hallucinating, no expertise was established that either Meyer or Saathoff were qualified to detect employees not fit for work merely by observing their demeanor.
[9] GC Exh. 2.
[10] GC Exhs. 3 and 4.
[11] GC. Exh. 6.
[12] Jt. Exh. 6 at 32.
[13] Blasting Manager John Crawford observed an employee selling hard hat name tags in the hallway in the summer of 2006. No evidence was adduced establishing how long the name tags were sold nor if Respondent prohibited their sale.
[14] If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes.
[15]
If this Order is enforced by a judgment
of a