NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,531, MARTIKI COAL CORPORATION SUBSIDIARY OF MAPCO COAL, INC. et al. and BILL R. WEBB., (Oct. 31, 1994), National Labor Relations Board, (Oct 31, 1994)

MARTIKI COAL CORPORATION SUBSIDIARY OF MAPCO COAL, INC. et al. and BILL R. WEBB.

315 NLRB No. 61.Case No. 9-CA-29975. October 31, 1994 Richard H. Beddow Jr., Administrative Law Judge..

Before Stephens, Devaney and Cohen.

Vyrone A. Cravanas, for General Counsel. Thomas P. Gies and Glenn D. Grant, Washington, D.C., for Respondent Martiki Coal Corp. Susan E. Chetlin, Lexington, Kentucky, for Respondent Mapco Coal, Inc. C. Tom Anderson, Pikeville, Kentucky, for Respondent Charles Clearning Contractor, Inc.

Refusal to Reinstate--Economic Strikers--Unconditional Offer.--An employer discriminated against its economic strikers by refusing to either reinstate them or place them on a preferential hiring list after they made an unconditional offer to return to work. The employer failed to demonstrate that it had a legitimate and substantial business justifications for its failure to reinstate the strikers, merely stating that it “overlooked” them. Section 8(a)(3).

Back reference: ¶4035.04.

Joint Employer--Fact Finding--Status as Employer.--On the facts, an employer was not a joint employer with another employer because it had severed its joint employer relationship before the second employer committed unfair labor practices and played only a limited role in the hiring of the employees for the other employer. Section 2(2).

From Text of Board’s Decision

On September 16, 1993, Administrative Law Judge Richard H. Beddow Jr. issued the attached decision. Respondents Martiki Coal Corporation, Mapco Coal, Inc., and Charles Clearing Contractor, Inc. each filed exceptions and a supporting brief.

. . .

The 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 only to the extent consistent with this decision and to adopt the recommended Order as modified.

As more fully set forth in the attached decision, the administrative law judge found that Respondent Charles Clearing Contractor, Inc. (Charles Clearing) violated Section 8(a)(1) by failing to recall lawfully laid-off economic strikers, and violated Section 8(a)(4) because this failure to recall was in retaliation for the filing of unfair labor practice charges with the Board. He also found that Respondent Mapco Coal, Inc. and its wholly-owned subsidiary Martiki Coal Corporation are single employers. Further, because he found that Respondent Martiki Coal Corporation (Martiki) was a joint employer with Charles Clearing, he found that both Respondent Mapco Coal, Inc. (Mapco) and Martiki are jointly liable for remedying the violations found.

We adopt the judge’s finding that Respondent Charles Clearing violated Section 8(a)(1) of the Act. [1] Contrary to the judge, however, we find that Martiki was not a joint employer with Charles Clearing. Accordingly, we need not reach the issue of whether Martiki and Mapco are a single employer. We dismiss the complaint as to both.

The Unfair Labor Practice

Respondent Charles Clearing provides contract labor to operate a coal mine owned by Respondent Martiki. Charles Clearing employees, then numbering approximately 76, [2] began an economic strike on Monday, February 3, 1992. On Friday, February 7, Martiki informed Charles Clearing President Argyle Charles that it would be cutting production and would require only 50 employees. At that point about 32 strikers had returned to work. Argyle Charles told employees on the picket line about the reduction, informed them there would be layoffs, and announced that he would take back the first 18 strikers to call him over the weekend and agree to cross the picket line. [3] Some strikers attempted, with mixed success, to telephone Argyle Charles during the weekend to return to work. Many of the strikers, apparently including those who had telephoned, reported to the mine on Monday, February 10, and were put to work or laid off, depending on whether they were among the first 18. [4] Picketing ceased at that point. On March 25, 1992, employees filed charges--later dismissed--alleging that the layoff was an unfair labor practice.

The judge found that, by telephoning Argyle Charles during the weekend, reporting in on February 10, and ending the picketing, “most of” the economic strikers made an unconditional offer to return to work and were not obligated to make additional offers. The judge further found that Argyle Charles recognized the strikers’ conduct as expressions of an intent to return, specifically accepted these expressions of intent, and asserted that he would “try to get them back,” or “if something opened up he would give them a call,” and in some cases actually offered to rehire them at a later date. [5]

We adopt the judge’s findings, except as otherwise set forth. [6] Even though Charles Clearing had implmented a lawful layoff during the strike and had no jobs to offer some of the strikers between the layoff and the resumption of production starting in July 1992, it had an obligation to maintain a preferential hiring list of strikers who had made an unconditional offer to return to work and to return those employees to work when jobs became available. Fleetwood Trailer Co., supra. It failed to satisfy this obligation. When asked at the hearing for a reason why he did not recall the laid-off strikers, Argyle Charles responded that, “I must have just looked over them at the time, later on.”

The Supreme Court has held that the basic right to reinstatement cannot depend on job availability as of the moment when the unconditional offer to return is filed. Id. at 381. The right to reinstatement can be defeated only if the employer can show a legitimate and substantial business justification. Id. In our view, forgetfulness and oversight do not qualify as legitimate and substantial justifications. Accordingly, we adopt the judge’s finding that by its failure to offer reinstatement to the laid-off strikers named in this Decision and Order, Respondent Charles Clearing violated Section 8(a)(1).

Martiki’s Status as a Joint Employer

The judge found that Respondents Charles Clearing and Martiki are joint employers of Charles Clearing’s employees and, thus, that Martiki and Charles Clearing are jointly liable. We disagree. For the reasons that follow, we find that Martiki and Charles Clearing were joint employers, but only until sometime in March or April 1992. [7]

The joint-employer concept does not depend on the existence of a single integrated enterprise. NLRB v. Browning-Ferris Industries, [95 LC ¶13,832] 691 F.2d 1117, 1122 (3d Cir. 1982). The test for determining if two separate business entities are joint employers is whether the entities share or codetermine matters governing the essential terms and conditions of employment. Id.

Here, as set forth in detail in his decision, the judge found that Charles Clearing’s employees were paid solely by Charles Clearing. He found, however, that Martiki managers and supervisors historically had effectively recommended job applicants to Charles, administered preemployment tests, and approved hiring decisions. They also had suggested and approved employee transfers from one type of work to another. Charles Clearing typically had employed only one supervisor per shift on the entire Martiki premises, and, partly out of necessity, Martiki supervisors had managed and directed the work of Charles Clearing employees on a regular and substantial basis. Martiki and Charles Clearing supervisors had engaged in meetings twice a day to coordinate work to be done. Martiki supervisors and managers had been significant participants in establishing work schedules and assignments of Charles Clearing employees, including overtime, approval of leave, and deciding where and how work would be done. Althought Charles Clearing had maintained an office in a trailer on the Martiki site separate from Martiki’s offices, Charles had no telephone and used Martiki’s phone. Thus, employees call in sick to the Martiki office. Martini had used its own vehicles to transport Charles Clearing’s employees between Charles Clearing’s trailer and various worksites.

In the above circumstances, we agree that Charles Clearing and Martiki were joint employers prior to March-April 1992.

The judge rejected the contention of both Charles Clearing and Martiki that in March or April 1992 Martiki took action to sever the joint-employer relationship. The judge found significant two evidentiary factors: (1) the record contains only one document relating to the alleged changes--a March 29, 1993 memo prepared by Martiki Operations Manager Houser listing 13 instructions to Martiki supervisors, and (2) inconsistent testimony regarding the month when the changes were implemented. Thus, he found that Martiki did not clearly establish the alleged changes as a matter of fact. We do not agree that the asserted paucity of documentary evidence or the lack of proof of a precise implementation date negates the existence, in fact, of a changed relationship, particularly in view of record evidence not discussed by the judge.

Managers and supervisors who testified for Charles Clearing and Martiki agreed that, because of concerns raised by the March 25 unfair labor pratice charges, supra, Martiki initiated and Charles Clearing implemented changes. These changes were made with the express intent of disentangling Martiki from Charles Clearing’s daily operations and control of its work force. John Strucker, Martiki general superintendent, testified that Respondent Martiki instructed Operations Manager Houser to require Charles Clearing to add additional supervision “on the hill,” to obtain its own telephone and to obtain a van for use in transporting its own employees to their worksites. The twice-daily Charles Clearing/Martiki joint supervisory meetings stopped, and Martiki supervisors ceased giving instructions to Charles Clearing employees. Charles Clearing Operations Manager Houser testified that he ordered that the changes be made and that Martiki ceased prehire testing of Charles Clearing job applicants.

Argyle Charles confirmed that the daily meetings between Charles Clearing and Martiki foremen had ended, that he hired additional foremen, and purchased vehicles to transport his employees to their worksites. Charles Clearing Foreman Parker corroborated Argyle Charles’ testimony. Charles Clearing employee Wanda Bailey testified that Respondent Charles Clearing has its own telephone. Additionally, reemployed striker Harold Muncy testified that he had not received instructions from anyone at Martiki since he returned to work in July 1992. Wanda Bailey testified that since February 1992 she has not received instructions or assignments (including overtime) or sought approval of time off from a Martiki supervisor. [8] This evidence is consistent with the list of instructions to Charles Clearing supervisors contained in Houser’s March 29, 1993 memo and the record does not contain any unequivocal evidence to the contrary.

We find the foregoing evidence persuasive and we conclude, contrary to the judge, that Respondent Martiki effectively severed the joint-employer relationship before the laid-off strikers were unlawfully denied reinstatement starting in July 1992. In that regard, we do not agree that Martiki’s limited role in Charles Clearing’s hiring of new employees, starting in July 1993, warrants a different conclusion. The record shows that, at most, Martiki supervisors (1) recommended applicants who subsequently were hired independently by Charles Clearing and (2) provided Charles Clearing application forms to applicants and either delivered the completed forms to Charles Clearing or instructed the applicants to do so. There is no evidence that Martiki exercised any control or influence over Charles Clearing’s postlayoff hiring decisions. Argyle Charles described Martiki’s role as “[t]hey just told me they thought they would make good employees...they never insisted I’d hire them. They just give them a recommendation.”

In summary, we found that Respondent Charles Clearing violated Section 8(a)(1) of the act by failing to reinstate the identified laid-off economic strikers. We reverse the judge’s finding that Martiki was a joint employer of Charles Clearing’s employees when the unfair labor practice was committed. Accordingly, we find that Martiki cannot beheld liable for Charles Cleaning’s unlawful failure to reinstate the laid-off strikers or for their resulting back pay. Further, because we have found that Martiki is not a joint employer with Charles Clearing, we need not decide the status of Martiki’s parent company, Respondent Mapco Coal, Inc. Accordingly, the complaint allegations relating to Respondent Mapco Coal and Respondent Martiki Coal are dismissed.