Opposition Brief — Consolidation Coal Co. v. National Labor Relations Board

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No. 92-1691

1.23

In the Supreme Court of the United Sees —

OCTOBER TERM, 1992

CONSOLIDATION COAL COMPANY, PETITIONER

NATIONAL LABOR RELATIONS BOARD, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR

THE NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

DREw S. DAYS, III

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 514-2217

JERRY M. HUNTER

General Counsel

YVONNE T. DIXON

Acting Deputy General Counsel

NICHOLAS E. KARATINOS

Acting Associate General Counsel

NORTON J. COME

Deputy Associate General Counsel

LINDA SHER

Assistant General Counsel

JOHN EMAD ARBAB

Attorney

National Labor Relations Board

Washington, D.C. 20570

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QUESTION PRESENTED

Whether petitioner violated Section 8(a)(1) and (5) of

the National Labor Relations Act by refusing to honor a

union’s request for information relevant to the perfor-

mance of the union’s duty to administer and monitor

compliance with a collective-bargaining agreement.

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Consolidation Coal Co. v. United Mine Workers of

America, No. 90-1443 (W.D. Pa. Mar. 2, 1993), appeal

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Curtiss-Wright Corp. v. NLRB, 347 F.2d 61 (8d Cir.

GSES EST

Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979) ........

General Controls Co., 88 N.L.R.B. 1341 (1950) ................

Howard Johnson Co. v. Detroit Local Joint Executive

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International Union of Electrical Workers v. NLRB,

EU UID pac nssnsensiensnssanvcentvsnvonsesncsssses

JI. Case Co. v. NLRB, 253 F.2d 149 (7th Cir. 1958) ....

Leland Stanford Jr. University, 262 N.L.R.B. 136

(1982), enforced, 715 F.2d 4738 (9th Cir. 1983) ..........

Michigan Drywall Corp., 232 N.L.R.B. 120 (1977) ..........

NLRB vy. Acme Industrial Co., 385 U.S. 432 (1967) .....

NLRB v. Strong, 398 U.S. 357 (1969) ..................

United Steelworkers of America v. Enterprise Wheel &

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Weber Veneer & Plywood Co., 161 N.L.R.B. 1054

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Statutes:

National Labor Relations Act, 29 U.S.C 151 et seq.:

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BR, Be Wer IR oon anacenav ers ccouneueberue 4,5, 10

§ 10(a), 29 U.S.C. 160(a)

In the Supreme Court of the Ginited States

OCTOBER TERM, 1992

No. 92-1691

CONSOLIDATION COAL COMPANY, PETITIONER

Vv.

NATIONAL LABOR RELATIONS BOARD, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR

THE NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

The judgment order of the court of appeals (Pet. App.

la-4a) is unpublished, but the judgment is noted at 986

F.2d 1408 (Table). The decision and order of the National

Labor Relations Board (Pet. App. 5a-12a), including the

decision and recommended order of the administrative

law judge (Pet. App. 13a-52a), is reported at 307 N.L.R.B.

No. 13.

JURISDICTION

The judgment of the court of appeals was entered on

January 21, 1993. The petition for a writ of certiorari

(1)

was filed on April 20, 1993. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Petitioner, a subsidiary of DuPont Energy Co., en-

gages in the mining and sale of coal at a number of facili-

ties in Pennsylvania. Pet. App. 15a. Petitioner is a sig-

natory to the 1988 National Bituminous Coal Workers

Agreement with the International Union of the United

Mine Workers of America (Union). /d. at 16a. That

Agreement provides, inter alia, that “the first three out

of every five new job openings for work ... at any ex-

isting, new, or newly acquired non-signatory bituminous

coal operation of the [e]mployer shall be filled by classi-

fied laid off employees.” Jd. at 17a-18a n.2. The Agree-

ment applies to all coal lands and coal preparation

facilities held by petitioner and its affiliates, whether in

operation at the time of the execution of the Agreement

or at any time thereafter. Jd. at 18a.'

In 1984, petitioner built a mine known as Bailey No. 1

in Greene County, Pennsylvania. Petitioner created a

wholly owned subsidiary, Consol Pennsylvania Coal

Company (CPCC), to operate the mine. Thereafter,

petitioner began work on a “companion mine” to Bailey

No. 1, originally known as Bailey No. 2. In March 1990,

the mining permit applicable to Bailey No. 2 was trans-

ferred from CPCC to Enlow Fork Mining Company, a

newly created wholly owned subsidiary of DuPont

Knergy Co. Pet. App. 20a-22a. After a newspaper report

disclosed that Bailey No. 2 (now renamed the Enlow

Fork Mine) would be operated by Enlow Fork and not by

! The Agreement authorizes employees who are laid off from a

signatory employer’s operations to complete “panel” forms re-

questing reemployment at other mines operated by the signatory.

The forms are then retained by the signatory employer and the

Union. Pet. App. 17a-18a.

petitioner, the Union decided to investigate whether

hiring at the Bailey and Enlow Fork mines was being

conducted in accordance with the Agreement. /d. at 22a-

23a.

Accordingly, on April 18, 1990, the Union sent

petitioner a letter requesting information respecting

each company in which petitioner “plays a role or has an

interest,” including CPCC, Enlow Fork, and DuPont

Energy Co. Pet. App. 24a.* Thereafter, two Union locals

filed grievances against petitioner, alleging that

petitioner, by and through CPCC, Enlow Fork, DuPont

Energy Co., and its other subsidiaries and affiliates, was

violating the Agreement by refusing to recognize laid-off

employees’ contractual reemployment rights. /d. at 25a.

Petitioner denied the grievances. /d. at 23a-24a, 25a-26a.

The Union then pressed its grievances through the

next stage of the contractual grievance procedure, and

informed petitioner that the information requested on

April 18 was necessary to determine whether petitioner

was violating the Agreement as alleged in the griev-

ances. Petitioner refused to comply with the Union’s

information request, however, and insisted that the

Union either drop the grievances or present them to the

arbitrator without benefit of the requested information.

Pet. App. 26a-27a.

On June 8, 1990, the Union’s first grievance was

presented to an arbitrator. The arbitrator did not reach

the merits of that grievance, however, finding instead

that petitioner was required to furnish the Union with

2 The information which the Union sought from petitioner

included: documents respecting leases, subleases, mining permits,

and annual returns for employee benefit plans; the identity of

officers, directors, management representatives, customers, and

insurers of petitioner and its subsidiaries and affiliates; and

information respecting hiring procedures and the transfer of

personnel between petitioner and its affiliates. Pet. App. 24a-25a.

the requested information. Pet. App. 27a.* Rather than

comply with the arbitrator’s decision, petitioner filed a

lawsuit in the United States District Court for the

Western District of Pennsylvania seeking to have that

decision set aside. The Union counterclaimed for

enforcement of the arbitral award, and filed a separate

action in federal court to compel the joint participation of

petitioner, CPCC, and Enlow Fork in processing the

Union’s grievances. Id. at 27a-28a.

On March 2, 1993, the district court in the action

brought by petitioner to challenge the arbitrator’s award

entered an order upholding the award in part and

vacating it in part. Consolidation Coal Co. v. United

Mine Workers of America, No. 90-1443 (W.D. Pa. Mar. 2,

1993), appeal pending, No. 93-8145 (8d Cir. filed Mar. 29,

1993). The court held that petitioner is obligated to

provide all requested information concerning its own

operations, including contracts, leases, and other docu-

ments to which petitioner is a party, but is not obligated

to produce documents pertaining solely to petitioner’s

affiliated entities. Slip op. 6-8. The court noted, how-

ever, that “those documents may be obtainable pursuant

to the broader powers of the NLRB.” Jd. at 7.

2. a. Meanwhile, on May 21, 1990, the Union filed an

unfair labor practice charge with the National Labor

Relations Board (Board) challenging petitioner’s refusal

to honor the Union’s information request. The Board’s

Regional Director then issued a complaint against

petitioner based on that charge. The complaint alleged

that petitioner had committed an unfair labor practice in

violation of Section 8(a)(1) and (5) of the National Labor

% The arbitrator specifically noted that the question whether

petitioner committed an unfair labor practice by refusing to honor

the Union’s information request was not before him. Pet. App.

27a.

Relations Act (Act)* by failing to furnish the Union with

information necessary to the enforcement of the

Agreement. Pet. App. 14a-15a.

The administrative law judge (ALJ) found that

petitioner had violated Section 8(a)(1) and (5) as alleged.

Pet. App. 13a-52a. The ALJ stated that “it is well

established that * * * an employer must comply with a

union’s request for information that will assist the union

in fulfilling its responsibilities as the employee’s

statutory representative * * * including information

relevant to both contract administration and contract

negotiation.” Pet. App. 34a (citing NLRB v. Acme In-

dustrial Co., 385 U.S. 432 (1967); Detroit Edison Co. v.

NLRB, 440 U.S. 301 (1979); Leland Stanford Jr. Uni-

versity, 262 N.L.R.B. 136 (1982), enforced, 715 F.2d 473

(9th Cir. 1983)). The ALJ further noted that “[t]he

standard applied in determining relevancy in these

circumstances requires that the information have some

bearing on the issue for which the information is

requested and be of probable or potential relevance to the

Union’s duties.” Pet. App. 35a.

Applying that standard to the facts of this proceeding,

the ALJ found that the Union had requested the

information from petitioner “in order to pursue its

grievances filed under [the Agreement]” by seeking “to

establish that [petitioner], CPCC, Enlow Fork and any

other subsidiary or affiliate operate as a joint or single

employer with [petitioner].” Pet. App. 39a. The ALJ also

indicated that the information had been requested in

4 Section 8(a)(1) of the Act, 29 U.S.C. 158(a)(1), makes it an

unfair labor practice for an employer to “interfere with, restrain,

or coerce” employees in the exercise of rights guaranteed by

Section 7 of the Act, 29 U.S.C. 157. Section 8(a)(5) of the Act, 29

U.S.C. 158(a)(5), makes it an unfair labor practice for an employer

“to refuse to bargain collectively with the representatives of his

employees.”

order “ ‘to effectively administer and monitor important

contractual rights and obligations’” and “ ‘to determine

the extent if any of the interrelationship between

signatory companies and nonsignatory companies for the

purposes of contract administration and bargaining.’ ”

Id. at 38a-39a.

The ALJ further found that the Union had an objective

basis for believing that petitioner, by and through its

affiliated entities, was seeking to avoid its obligation to

hire laid off employees as specified by the Agreement.

The ALJ pointed out that petitioner had previously

recognized that the Agreement was applicable to the

Bailey Mine. Moreover, various corporate publications

of petitioner treated the Bailey Mine as part of

petitioner’s operations, despite petitioner’s contention

that the Mine was solely an operation of CPCC. The

Union was also aware of several instances in which

supervisory personel were transferred between the

Bailey Mine and one of petitioner’s mines. Pet. App. 39a-

42a. Moreover, the ALJ noted that (1) both the Bailey

Mine and the Enlow Fork Mine “are entered via a

common entrance”; (2) coal is removed from each mine

“via the same slope and is dumped on a common belt”; and

(8) the coal produced by both mines is sold jointly by

petitioner and CPCC. /d. at 42a-48a. Accordingly, the

ALJ recommended that the Board order petitioner to

turn over to the Union all of the requested information.

Id. at 48a.

b. The Board, with certain modifications not relevant

here, affirmed the ALJ’s decision and adopted his

recommended order. Pet. App. 5a-9a.

3. The court of appeals enforced the Board’s order in

an unpublished judgment order. Pet. App. la-4a.

ARGUMENT

1. It is settled law that “[t]he duty to bargain

collectively, imposed upon an employer by [Section]

8(a)(5) of the [Act], includes a duty to provide relevant

information needed by a labor union for the proper

performance of its duties as the employees’ bargaining

representative.” Detroit Edison Co. v. NLRB, 440 U.S.

301, 303 (1979) (footnote omitted). Because collective bar-

gaining is a continuing process, an employer is obligated

by the Act to furnish the union relevant information, not

only in connection with negotiating a contract, but also

for the purpose of administering it. Curtiss-Wright

Corp. v. NLRB, 347 F.2d 61, 68 (8d Cir. 1965); J.J. Case

Co. v. NLRB, 253 F.2d 149, 153 (7th Cir. 1958). Although

contract administration may involve filing grievances,

and an employer must provide the union with information

relevant to evaluating the merits of such claims, NLRB

v. Acme Industrial Co., 385 U.S. 482, 437-438 (1967), a

union is also entitled to receive information in order to

verify employer compliance with contractual obligations

regardless of whether the issue is the subject of a

pending grievance. Michigan Drywall Corp., 232

N.L.R.B. 120, 122-123 (1977); Weber Veneer & Plywood

Co., 161 N.L.R.B. 1054, 1055-1056 (1966); General

Controls Co., 88 N.L.R.B. 1341, 1343, 1354-1355 (1950).

Petitioner appears to concede (Pet. 12-13) the validity

of the legal principles set forth above. Petitioner

contends (Pet. 16-19, 24-25, 27), however, that the Board

erred in concluding that the information sought by the

Union is relevant to the Union’s statutory duties.

According to petitioner, that information is relevant

only to the Union’s pending action in federal district

court seeking to require petitioner’s affiliates to

participate in the resolution of the pending grievances.

Pet. 17, 25-26.

The Board found that the information sought by the

Union is relevant to the performance of the Union’s duty

“to effectively administer and monitor important

contractual rights and obligations” such as seniority,

recall and bidding rights. Pet. App. 38a-39a. It is self-

evident that documents describing the corporate re-

lationships between petitioner and its affiliates are

relevant to the question whether petitioner is using its

affiliates to evade its reemployment responsibilities

under the Agreement; and it is equally self-evident that

the Union has a legitimate interest in discovering the

answer to that question, which directly implicates the

reemployment rights of the Union’s members. Thus, the

Board properly found that, wholly apart from the

pendency of the lawsuit in federal district court, the

information sought by the Union is relevant to the

performance of the Union’s duties as representative of

employees covered by the Agreement. That fact-bound

determination does not warrant further review.°

5 Petitioner also argues (Pet. 17-18, 20) that the Board’s order

was not in aid of the arbitral process because the arbitrator lacks

authority to decide whether petitioner’s affiliates are obligated to

submit to arbitration under the Agreement on the ground that

“they are alter egos of petitioner. It is settled law, however, that

“the question of interpretation of the collective bargaining

agreement is a question for the arbitrator,” who “may of course

look for guidance from many sources” “for help in determining

the sense of the agreement.” United Steelworkers of America v.

Enterprise Wheel & Car Corp., 363 U.S. 598, 597-598, 599 (1960). If

in fact petitioner’s affiliates are alter egos of petitioner, those

enterprises are bound by petitioner’s legal and contractual

obligations, including the duty to arbitrate grievances under

petitioner’s collective-bargaining agreement. Howard Johnson Co.

v. Detroit Local Joint Executive Board, 417 U.S. 249, 259 n.5

(1974). In light of that principle, an arbitrator might well

interpret the Agreement, including its grievance provisions, to

apply to any employer that is an alter ego of petitioner. Accord-

ingly, the Board’s order was in aid of the arbitral process because

2. Petitioner contends (Pet. 18-26), however, that the

Board should have abstained or been precluded from

directing petitioner to produce the requested in-

formation because the Board’s order improperly intrudes

on the jurisdiction of the court before which is pending

the Union’s lawsuit seeking to compel petitioner’s

affiliates to participate in resolution of grievances under

the Agreement. According to petitioner, the federal

courts have exclusive authority to decide whether

petitioner’s affiliates can be compelled to participate in

grievance proceedings on the ground that they are alter

egos of petitioner, and thus the Board’s order requiring

petitioner to produce information relevant to that issue

improperly intrudes upon the courts’ jurisdiction over

discovery matters relating to the pending lawsuit.

Petitioner’s contention is without merit. As the

Board found, petitioner committed an unfair labor prac-

tice by refusing to provide the Union with information

relevant to the performance of the Union’s duties. That

unfair labor practice is separate and distinct from the

question whether petitioner’s affiliates are in fact alter

egos such that the Agreement is applicable to them as

well, and it is only the latter question that is pending be-

fore the federal courts in the Union’s lawsuit. The

Board’s authority to remedy petitioner’s unfair labor

practice is wholly independent of, and unaffected by, the

pending lawsuit.

Section 10(a) of the Act, 29 U.S.C. 160(a), provides that

the Board’s power to prevent unfair labor practices

“shall not be affected by any other means of * * *

prevention * * * established by * * * law.” As this

Court has observed, “the Board may proscribe conduct

the information requested by the Union was relevant to

establishing which (if any) non-signatory entities are alter egos of

petitioner. Pet. App. 43a.

which is an unfair labor practice even though it is also a

breach of contract remediable as such * * * in the

courts.” NLRB v. Strong, 393 U.S. 357, 361 (1969). Thus,

the pendency of the Union’s lawsuit to enforce the

Agreement did not deprive the Board of authority to

remedy petitioner’s unfair labor practice; “in some

circumstances the authority of the Board and the law of

the contract are overlapping, concurrent regimes,

neither preempting the other.” Jd. at 360.

Petitioner also errs in contending (Pet. 21) that the

Board’s order creates an unacceptable risk of conflict

between the Board and the “decisions of the District

Court regarding discovery disputes posed in the Federal

Court action.” The obligation of employers to provide

relevant information to unions under Section &(a)(5) of

the Act is entirely distinct from, and independent of, the

obligation to provide discovery in pending civil actions

pursuant to the Federal Rules of Civil Procedure. See

International Union of Electrical Workers v. NLRB,

648 F.2d 18, 25-26 (D.C. Cir. 1980). There is little

potential for conflict between the Board and the district

court in this area, because the sources of law and

governing legal standards in each proceeding are

different. Accordingly, petitioner’s claims are without

merit, and do not warrant further review.

6 Similarly, while the district court in Consolidation Coal Co. v.

United Mine Workers of America, No. 90-1443 (W.D. Pa. Mar. 2,

1993), appeal pending, No. 93-3145 (3d Cir. filed Mar. 29, 1993),

declined to order petitioner to produce all of the documents sought

by the Union in the arbitration proceeding, the court acknowl-

edged that “those documents may be obtainable pursuant to the

‘broader powers of the [Board].” Slip op. 7.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DREW S. DAYS, III