The Militant - March 7, 2005 -- NLRB ruling on union vote status of Utah mine bosses’ relatives

Vol. 69/No. 9 March 7, 2005

NLRB ruling on union vote status
of Utah mine bosses’ relatives

Below are major excerpts from the Nov. 18, 2004, decision by National Labor Relations Board Region 27 that excludes members and relatives of the Davis County Cooperative Society, Inc., from the collective bargaining unit at the Co-Op mine. Their votes, cast in a December 17 union representation election, were not counted. On January 31, after an appeal by C.W. Mining and the International Association of United Workers Union, the national NLRB upheld the November 18 decision. The full text of the November 18 decision is available on the NLRB website: www.nlrb.gov/nlrb/shared_files/decisions/dde/2004dde.asp. Subheadings are by the Militant.

On May 19, 2004, the United Mine Workers of American [sic] (herein the Petitioner), filed a petition under Section 9(c) of the National Labor Relations Act (herein the Act) seeking to represent certain employees of C. W. Mining Company, d/b/a Co Op Mine (herein Co-op Mine or Employer). On July 20 and 21, 2004, a hearing was held in this matter before a hearing officer of the National Labor Relations Board, and the parties filed briefs following the hearing.

The parties stipulated at hearing to the appropriateness of the following unit:

INCLUDED: All full-time, regular part-time, and seasonal production and maintenance employees and plant clericals employed by the Employer at its coal mine and property in the Huntington, Utah, vicinity.

EXCLUDED: All professional, managerial, office clerical, and confidential employees and guards and supervisors as defined in the Act.

The Employer, C. W. Mining Company, is a Utah corporation operating the Co-op Mine, an underground coal mine located near Huntington, Utah. The Employer’s records list approximately 220 non-supervisory unit employees, including 97 full-time and 123 part-time employees. This total includes 15 part-time and full-time seasonal employees. The International Association of United Workers Union (the Intervenor Union) was certified as the Co-op Mine production and maintenance employees' representative on January 17, 1980. The Employer and the Intervenor Union have negotiated a series of collective-bargaining agreements, the most recent of which is effective by its terms from August 8, 2001, to August 10, 2004. The United Mine Workers of America, by its petition filed May 19, 2004, seeks to replace the Intervenor as the bargaining representative of the unit employees.

This case presents the following issues: (1) Whether certain employees should be excluded from the bargaining unit either because they are members of the Davis County Cooperative Society, Inc. (herein the Davis Co-op), or because they are related to shareholders, officers, and/or supervisors, or because they work an irregular schedule; (2) whether the International Association of United Workers Union is a labor organization within the meaning of Section 2(5) of the Act; and (3) whether Jose Ortega, Sr., should be excluded from the bargaining unit as a statutory supervisor.

Categories of employees
The Petitioner contends that three overlapping categories of employees should be excluded from the bargaining unit because they do not share a sufficient community of interest with other employees: 1) employees who are members of the Davis Co-op; 2) employee-relatives of shareholders, managers, and/or supervisors; and 3) employees who work an irregular schedule. Relying primarily on Seton Hill College, 201 NLRB 1026 (1973), Petitioner argues that all employees who are members of the Davis Co-op should be excluded from the bargaining unit because they owe a strong alliance to that organization and its leaders exercise control over members, as well as the Employer. In addition, the Petitioner asserts that Davis Co-op members lack the same economic interests as other employees and that they participate in an alternative economic system.

The Petitioner also contends that employees who are related to the Employer’s shareholders, managers, and/or supervisors should be excluded from the bargaining unit because they do not share a community of interest with other employees and because they receive special job-related benefits…. And, with regard to employees-relatives of non-owner managers, the Petitioner contends that they receive special job-related benefits because of their familial ties, including the privilege of working part-time and exceptional flexibility in their schedules. The Petitioner also contends that the Intervenor Union cannot be a labor organization within the meaning of Section 2(5) of the Act because its officers and members are linked to the Employer as relatives of its owners and managers.

The Employer would include all employees covered by the unit description and maintains that reliance on Seton Hill College is misplaced because Davis Co-op is not a religious order and it does not own the land or facilities of the Employer. In addition, the Employer contends that only one of its stockholders is an officer, director, or shareholder of Davis Co-op and points to the lack of evidence that its employees have taken any vow of poverty or obedience to Davis Co-op. The Employer further asserts that each employee receives his or her full wage and is not provided with housing or other economic benefits from Davis Co-op.

Workers related to owners, managers
The Employer concedes in its post-hearing brief that many of its employees are related to owners or managers, but maintains such relationships are not uncommon in a small town and limited geographical area. Citing Pierce-Phelps, Inc., 341 NLRB 78 (2004), as well as several other Board cases, the Employer argues that under current Board law relatives are excluded from bargaining units only when special job-related benefits can be shown. According to the Employer, the employee-relatives at issue here receive no special privileges or benefits as a result of their relationship to owners or managers…. Finally, the Employer takes the position that the Intervenor/Incumbent Union is a labor organization within the meaning of the Act.

The Intervenor Union argues that the unrebutted evidence of its activities as the certified collective-bargaining representative of the Co-op Mine employees establishes its status as a labor organization under the Act. In response to the Petitioner’s position, the Intervenor Union contends that none of the international or local officers are related to any of the Employer’s shareholders, officers, directors, or supervisors, and the record fails to establish that any employees are Davis Co-op members, In regard to the remaining issues, the Intervenor Union joins in the Employers Post Hearing Brief.

Under Section 3(b) of the Act, the Board has delegated its authority in this proceeding to the Regional Director. Based upon the entire record in this proceeding, I find:

1. The hearing officer's rulings made at the hearing are free from prejudicial error and are affirmed.

2. The Employer, C. W. Mining Company, d/b/a Co-op Mine, is a Utah corporation engaged in underground coal mining at its facility located near Huntington, Utah….

3. The Petitioner, United Mine Workers of America, is a labor organization within the meaning of Section 2(5) of the Act and claims to represent certain employees of the Employer.

4. The Intervenor/lncumbent, International Association of United Workers Union, is a labor organization within the meaning of Section 2(5) of the Act and claims to represent certain employees of the Employer.

5. For the reasons discussed below, a question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act.

6. The following employees of the Employer constitute an appropriate unit for purposes of collective bargaining within the meaning of Section 9(b) of the Act:

Included: All full-time and regular part-time and seasonal production and maintenance employees, including plant clericals, employed by the Employer at its coal mine facility located near Huntington, Utah.

Excluded: All office clerical employees, confidential employees, professional employees, managerial employees, guards, supervisors as defined in the Act, and all employees who are Davis Cooperative Society, Inc. members and/or family members as described in this Decision and Direction of Election….

III. CONCLUSION

Consistent with the above, I find that the employees of C.W. Mining Company, d/b/a/ Co-op Mine, who are related by blood or marriage to past or present members of the Davis County Cooperative Society, Inc., are excluded from the appropriate unit for purposes of collective bargaining. There are approximately 64 eligible employees in the unit found to be appropriate. I further find that the International Association of United Workers Union is a labor organization within the meaning of Section 2(5) of the Act, and that Jose Ortega is not a supervisor under Section 2(11) of the Act and should be included in the bargaining unit.

Related articles:
Utah miners use NLRB ruling to press union fight
Decision that votes of workers related to bosses don’t count shows strength of miners’ struggle

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