Tuesday, June 17, 2003

Fourth Circuit affirms joint employer finding against Mingo Logan Coal Co., remands for more evidence on remedies

In Mingo Logan Coal Co. v. NLRB, a split panel of the Fourth Circuit in an opinion by Judge Gregory joined by Judge Widener affirmed the NLRB's finding that Mingo Logan was a "joint employer" with its contract coal operator at the Mountaineer mine, Mahon Enterprises, Inc., and therefore jointly liable for unfair labor practices found to have been committed by Mahon in connection with an organizing campaign by the United Mine Workers of America (UMWA). The NLRB's decision is online here.

Some of the evidence on the joint employer issue does not sound too convincing to me, since it is inevitable there will be close working relations on the mining of this huge property, but there was other evidence cited about Mingo Logan's involvement and control over employment issues between Mahon and its employees. Whether this evidence is enough in terms of quality and quantity to support the joint employer finding is harder to say, but maybe that's not the point when the case gets to the court of appeals.

On the remedy, the administrative law judge ordered that Mingo Logan offer jobs to the discharged Mahon employees, based on evidence that employment with Mahon sometimes led to employment with Mingo Logan. The Court remanded the case for a determination of whether Mingo ever would have hired those individuals.

Judge Niemeyer dissented on the joint employment issue, but agreed on the underlying unfair labor practices findings against Mahon and on the decision to remand the remedy issue.

In a footnote, the Court notes that the issue on appeal of the various discrimination charges under section 8(a)(1) of the NLRA "is a bit unusual because the Employers do not properly contest the ALJ’s findings in their brief. Rather than contesting these allegations, they include a footnote arguing that the findings are based upon faulty
credibility determinations. . . . They then indicate that they are unable to develop their position due to space constraints." Ain't that the truth - there is never enough space within the page or word count limitations of the rules of appellate procedure to debunk all the 8(a)(1) charges that arise out of a union campaign. The opinion does not say how many such charges there were but the workforce involved almost 400 people - there could have been dozens. The trial before the ALJ took three weeks.

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