On Application for Enforcement of an Order of the National Labor Relations Board; Board Docket No. 6-CA-19932-2.
Sloviter, Chief Judge, Greenberg, Circuit Judge, and McClure, District Judge*fn*
The National Labor Relations Board (Board) petitions this court for enforcement of its decision and order of September 27, 1990 finding that respondents, Rockwood Energy and Mineral Corporation, Harmony Mining Company (Company), and Rockwood Holding Company, violated sections 8(a)(5) and (1) of the National Labor Relations Act (NLRA) in January, 1987 when the coal mine at issue resumed production by failing to recall laid-off employees, unilaterally changing the terms and conditions of employment, and refusing to recognize and bargain with the relevant union.
Harmony Mining Company operates a coal mine in Portage, Pennsylvania, and during the period in question it recognized the United Mine Workers of America (Union) as the collective-bargaining representative of its employees. In 1981 Harmony entered into a collective bargaining agreement with the Union effective through September, 1984. Article XVII section (d) of the contract, which was the National Bituminous Coal and Wage Agreement of 1981, provided that "employees who are idle because of a reduction in the working force shall be placed on a panel from which they shall be returned to employment on the basis of seniority . . . ." App. at 308.
In May 1982, Harmony suspended production at the Portage mine and temporarily laid off 40 unit employees for economic reasons. In September, 1982, the employees completed "panel forms" in accordance with the collective bargaining agreement. The Union held monthly meetings, which were attended by eight to ten people. While the mine was idle, Harmony employed a skeleton crew to maintain the mine equipment and mine safety; the crew consisted of mine superintendent Paul McVicker, foreman George Leturgey, and unit employee Ronald Geisbrecht, whose return to work resulted from an arbitration initiated by the Union.
At the time of the layoffs, the Harmony corporation was owned by Warren Hinks and Mike Cimba. In 1983, the ownership of Harmony changed when Rockwood Energy and Mineral Corporation (REMCO), Harmony's major creditor, acquired all of Harmony's assets and shares of stock. REMCO assigned its shares to RHC, its parent company. Hinks and Cimba transferred their stock certificates directly to RHC, resigned as directors and officers of Harmony, and were replaced by new directors and officers who were also directors and officers of REMCO and RHC.
Although Harmony continued to exist as a corporation after the change in ownership, its financial affairs were integrated with REMCO and other RHC subsidiaries. Funds were transferred from REMCO to Harmony to maintain Harmony's payroll and other expenses. After 1984, RHC filed consolidated tax returns for Harmony and its other subsidiaries. Alan Miller, assistant to the treasurer of RHC and REMCO, became Harmony's President in 1984. Superintendent McVicker and foreman Leturgey were on REMCO payroll and REMCO's pension plan, while unit employee Geisbrecht was kept on a separate payroll and received pay and benefits in accordance with the union contract. Union dues were deducted from Geisbrecht's salary, and contractually required pension payments for him were made to the UMW pension trust until 1985.
In 1984, the Union and the Company met to begin negotiations for a collective-bargaining agreement to succeed the contract which expired that year. Before an agreement was reached, Harmony informed the Union that it had decided to sublease its mining facility rather than mine the coal itself. The Union complained that the Company had bargained in bad faith, but the Board chose not to issue a complaint against Harmony.
In 1985, Harmony began to change the conditions of Geisbrecht's terms of employment; it stopped deducting his union dues and ceased making pension payments. In 1986, Harmony reduced his wages, sick days and vacation time. The Union was informed of the unilateral action, but took no action.
In 1986, Harmony hired Tracy McVicker, the superintendent's son, to assist in the retreat from portions of the mine. The work performed by Tracy was unit work.
In January, 1987 the mine resumed production after hiring two more employees, Paul McVicker and Jeff Kerch. Kerch had previously been a member of the Union. Four laid-off union members inquired about jobs and were told that Harmony was not accepting applications. The Union contacted Harmony's attorney and asserted that it was the collective bargaining representative of Harmony employees and ...