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Straight Creek Mining, Inc. v. National Labor Relations Board

October 27, 1998

STRAIGHT CREEK MINING, INCORPORATED, PETITIONER/CROSS-RESPONDENT,
v.
NATIONAL LABOR RELATIONS BOARD, RESPONDENT/CROSS-PETITIONER.



On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board. No. 10-CA-28643

Before: Keith, Nelson, and Ryan, Circuit Judges.

The opinion of the court was delivered by: Keith, Circuit Judge.

Argued: June 9, 1998

COUNSEL

OPINION

The National Labor Relations Board found Petitioner in violation of 29 U.S.C. § 158(a)(5) and (1), by failing and refusing to bargain collectively with the exclusive bargaining representative of its employees. The Board issued its decision and order on May 21, 1997, affirming the Administrative Law Judge's rulings, findings and Conclusions, and adopting his recommended order as modified. The petitioner appeals, seeking an order from this Court setting aside the Board's decision. For the reasons stated below, we AFFIRM the Board's order.

I.

Colquest Energy, Inc. ("Colquest") operated three underground coal mines in Clairfield, Tennessee, under an agreement with Kopper-Glo Fuels, Inc. ("Kopper-Glo"), to whom it sold all of the coal it produced from those mines. On June 29, 1990, the Board conducted a secret ballot election in which the production and maintenance employees at those mines voted to be represented by the United Mine Workers of America, AFL-CIO (the "Union"). Based on the election results, the Board certified the Union as the employees' collective-bargaining representative on January 18, 1991.

In August 1990, following the Board election, Colquest closed one of the three mines and an entire section of another, laying-off nineteen (19) of its approximately seventy-five (75) employees. In protest, the Union commenced a strike on October 1, 1990. On February 19, 1992, while the employees remained on strike, Colquest informed the Union that it would continue operations only to the extent necessary to complete the closing of its business. After that announcement, Colquest supervisors continued to work at the mines every day for the purpose of maintaining the mines and equipment. Furthermore, in response to Colquest's announcement Koper-Glo began Discussions with prospective buyers of its leasehold operation, and from that time through the end of 1994, Kopper-Glo actively negotiated with several potential purchasers. During that period Kopper-Glo also employed former Colquest mining superintendents and several former Colquest employees to maintain the mines.

For twenty-eight (28) months following Colquest's announcement that it was going out of business, the Union continued to picket the mines. Colquest employees received strike benefits from the Union until July 15, 1994. Throughout that period, the Union conducted bi-weekly meetings. After the strike concluded, the Union's deputy director for the region continued to hold union meetings whenever an important event warranted, and regularly telephoned the Colquest employees.

On March 1, 1995, the petitioner, Straight Creek Mining (the "Company") was incorporated as a Tennessee corporation by Ronald Carroll, who owned and operated the brokerage company through which Kopper-Glo had sold the coal mined by Colquest. At that time the Company began mining coal at the Colquest mine that had been operational immediately prior to the strike, acting as a contract miner for Kopper-Glo. A majority of the Company's employees had been bargaining unit employees of Colquest, and five of the six supervisors employed by the Company held similar positions at Colquest. The Company's employees used the same equipment previously used by Colquest, and performed their work in essentially the same manner.

By letter dated June 6, 1995, the Union requested that the Company, as the successor to Colquest, recognize the Union as the official bargaining representative and enter into negotiations for a new collective bargaining agreement. The Company refused that request. Based on these findings, the Board agreed with the ALJ that the Company was a "successor employer" to Colquest and that it violated the relevant provision of the National Labor Relations Act, 29 U.S.C. § 158(a)(5) and (1) (the "Act"), by refusing to recognize and bargain with the Union that represented Colquest's employees. The Board's order required the Company to cease and desist from the unfair labor practices found, and from, in any like or related manner, interfering with, restraining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act, 29 U.S.C. § 157. Affirmatively, the order directed the Company to recognize the Union as the bargaining representative of the unit employees, and upon request, to bargain in good faith with it concerning hours, wages, and other terms and conditions of employment. The order also required the Company to post an appropriate remedial notice.

II.

In its petition for review, the Company contends the Board erroneously concluded that the Company was a successor employer to Colquest, because there was no "substantial continuity" between the two enterprises. In the alternative, the Company argues that its refusal to bargain with the Union was justified by good faith doubt that the majority of the employees ...


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