UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SOUTHERN OHIO COAL COMPANY,
Petitioner,

v.                                                                  No. 95-1000

NATIONAL LABOR RELATIONS BOARD,
Respondent.

NATIONAL LABOR RELATIONS BOARD,
Petitioner,

v.                                                                  No. 95-1146

SOUTHERN OHIO COAL COMPANY,
Respondent.

On Petition for Review and Cross-application
for Enforcement of an Order
of the National Labor Relations Board.
(6-CA-24742)

Argued: October 30, 1995

Decided: June 5, 1996

Before RUSSELL, WILKINS, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Reversed and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: Franck Georg Wobst, PORTER, WRIGHT, MORRIS &
ARTHUR, Columbus, Ohio, for Southern Ohio. Vincent J. Falvo, Jr.,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
NLRB. ON BRIEF: Frederick L. Feinstein, General Counsel, Linda
Sher, Acting Associate General Counsel, Aileen A. Armstrong, Dep-
uty Associate General Counsel, Paul J. Spielberg, Deputy Associate
General Counsel, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for NLRB.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

This case comes before us on direct appeal from a decision and
order of the National Labor Relations Board (the"NLRB"). Southern
Ohio Coal Company ("SOCCO") petitions for review of the NLRB's
final order that SOCCO violated §§ 8(a)(1) and (5) of the National
Labor Relations Act (the "NLRA"), 29 U.S.C.§§ 158(a)(1) and (5),1
by refusing to furnish District 31 of the United Mine Workers of
America2 with a document relevant to its collective bargaining agree-
_________________________________________________________________

1 Sections 8(a)(1) and (5) of the NLRA state:

         (a) It shall be an unfair labor practice for an employer--

         (1) to interfere with, restrain, or coerce employees in the
         exercise of the rights guaranteed in [section 157 of this title];
         ....

         (5) to refuse to bargain collectively with the representative
         of his employees, subject to the provisions of [section 159(a) of
         this title].

29 U.S.C. §§ 158(a)(1) and (5).
2 The employees of SOCCO's Martinka Mine are represented at the
worksite by Local 1949 immediately, and District 31 of the International
Union.

                    2
ment. The NLRB has filed a cross-petition for enforcement of its
order. Because we are not persuaded that District 31 was the proper
entity to request the document or that SOCCO engaged in unfair labor
practices by refusing to furnish District 31 with a copy of the docu-
ment, we remand the case to the NLRB with specific instructions.

I.

SOCCO, a division of the American Electric Power Company, Inc.,
operates several nonretail bituminous coal mining concerns and
related businesses in northern West Virginia and southern Ohio. Since
beginning operations in 1974, SOCCO has had a formal collective-
bargaining relationship with the United Mine Workers of America
(the "International Union"). SOCCO and the International Union are
signatories to the National Coal Wage Agreement of 1988 (the "Wage
Agreement"). Article I of the Wage Agreement requires the seller of
a mining facility to immediately notify the International Union's
Secretary-Treasurer by certified mail that the sale has occurred and to
provide documentation that the buyer has assumed all rights and obli-
gations of the seller under the Wage Agreement.

In 1992 SOCCO sold its Martinka Coal Mine (the "Martinka
Mine"), located in Fairmont, West Virginia, to Martinka Coal Com-
pany ("MCC"). Signatories to the Agreement of Purchase and Sale
(the "Sale Agreement") include Ohio Power Company ("Ohio
Power"), SOCCO, MCC, and Peabody Development Company
("Peabody"). In compliance with the Wage Agreement, SOCCO sent
the following letter on July 1, 1992, to the International Union's
Secretary-Treasurer:

           This letter is to inform you that [SOCCO] has sold its Mar-
           tinka Mine to [MCC]. [MCC] has agreed to assume
_________________________________________________________________
Article 9 of the constitution of the United Mine Workers of America
(the "International Union") divides the International Union into several
geographic districts. Each district performs several representative func-
tions on behalf of union members. District 31 is a constituent member of
the International Union comprising 32 counties in northern and central
West Virginia, which includes the Martinka Coal Mine.

                    3
          [SOCCO's] obligations under the [Wage Agreement].
          Enclosed are the title, 29th, 30th, and 76th pages of the
          Agreement of Purchase and Sale.3

SOCCO sent a similar letter with the same enclosures to the president
of District 31, although it had no obligation to send the letter and did
so as a matter of courtesy. The letter read:

          This letter is to inform [District 31] that[SOCCO] has sold
          its Martinka Mine to [MCC]. [MCC] has agreed to assume
          [SOCCO's] obligations under the [Wage Agreement].
          Enclosed is a copy of a letter along with attachments sent to
          [the International Union] advising [them] of the sale.

The letter also instructed Martinka Mine employees to look to MCC
when exercising their panel rights.4
_________________________________________________________________
3 The title page read: "Agreement of Purchase and Sale among South-
ern Ohio Company, Ohio Power Company, and Martinka Coal Com-
pany, Peabody Development Company."

Pages 29-30 of the Sale Agreement contain the following paragraph:

          MCC recognizes that the Martinka Mine Operations of SOCCO
          being sold pursuant to this Agreement are covered by the
          National Bituminous Coal Wage Agreement of 1988 ("Wage
          Agreement"), and MCC agrees to assume, from and after the
          Date of Possession, SOCCO's rights and obligations under the
          Wage Agreement with respect to such operations; provided,
          however, that as between SOCCO and MCC, SOCCO shall
          indemnify MCC to the extent of SOCCO's indemnification obli-
          gations contained in Article XIX for claims or losses incurred by
          MCC by reason of MCC's assumptions of the obligations under
          the Wage Agreement.

Page 76 of the Sale Agreement bears the signatures and corporate seals
of all parties to the sale.
4 Under Article II of the Wage Agreement, laid-off employees of signa-
tory employers enjoy preferential hiring rights at other mining facilities
owned by their employer. The laid-off employees place their names on
the "panel form" at the employers' other facilities, thereby requesting
recall to that facility based on their seniority. Therefore, prior to the sale
any laid off SOCCO employees of the Martinka Mine gained panel rights
at the Martinka Mine as well as at other SOCCO mines in Ohio.

                     4
          Since [SOCCO] no longer owns the Martinka Mine, any
          employees who have placed their names on the mine or
          other company panels should look to [MCC] to exercise
          their seniority or recall rights. [SOCCO] is no longer the
          panel custodian nor recognizes any obligation to employees
          on the mine or other company panels.5

Upon receipt of this letter, on July 9, 1992, District 31's vice-
president wrote to SOCCO's president, indicating that the sale of the
Martinka Mine raised questions about the identity of the buyers and
sellers, the obligations assumed by the buyers, and the impact of the
transaction on its members. Stressing its obligation to assure its mem-
bers that their rights under the collective-bargaining agreement were
preserved in the sale, District 31 requested that SOCCO provide it
with an unexcised copy of the Sale Agreement.6 SOCCO declined
District 31's request because the Sale Agreement contained highly
confidential and proprietary information and because it had no obliga-
tion under the Wage Agreement to anyone other than the International
Union.

In a second letter, dated July 22, 1992, District 31 requested an
unexcised copy of the Sale Agreement from SOCCO's Human
Resource Manager. In this letter, District 31 refused to accept
SOCCO's assurances about the identities of the Mine's buyers and
sellers, that the sale conformed to the Wage Agreement, and that
SOCCO's contractual obligations passed to MCC under the Sale
Agreement. Two days later, District 31 filed unfair labor charges with
the NLRB. SOCCO deferred responding to the July request because
of the filed complaint.
_________________________________________________________________

5 The evidence of record demonstrates that since the date of the sale,
MCC continues to employ Martinka Mine employees under the terms
and conditions of the Wage Agreement, and it recognizes the Interna-
tional Union as the employees' representative. MCC also provides those
laid-off employees panel rights to approximately twenty mines owned by
Peabody.
6 In this letter, as well as in its letters dated July 22, and September 17,
1992, District 31 offered to sign a reasonable confidentiality agreement
regarding the Sale Agreement.

                     5
On September 9, 1992, District 31 sent SOCCO another request for
an unexcised copy of the Sale Agreement. This time District 31
claimed it was entitled to the Sale Agreement because it was pursuing
panel rights grievances of employees on layoff status at the time of
the sale. District 31 also contended it had a right to review the entire
document because companies other than SOCCO and MCC"were
involved" and because MCC was too undercapitalized to have
acquired the Martinka Mine. On September 17, 1992, SOCCO
declined District 31's request, reiterating that District 31 lacked the
authority to request such information and that SOCCO had dutifully
complied with its obligations under the Wage Agreement to provide
notification of the sale to the International Union.

II.

District 31 argues that it seeks the entire Sale Agreement because
it believes that the document contains relevant information regarding
its duty to protect employees' interests, which may have been affected
by the sale. Of particular concern to District 31 are the dispositions
of two separate grievances, which were filed prior to the sale and are
still pending on behalf of two different classes of SOCCO employees.7
In addition, District 31 seeks to ascertain which company assumed
obligations for medical coverage and disability benefits for the
employees either on layoff or disability status at the time of the sale.8

District 31 desires an unexcised copy of the entire Sale Agreement
because it is concerned about the exact provisions of Article XIX, an
apparent indemnification clause referred to on pages 29-39 of the Sale
Agreement. In fact, District 31 alleges that Article XIX has been
_________________________________________________________________
7 The first grievance protests SOCCO's decision to not allow Martinka
Mine employees the right to panel for employment at SOCCO's Windsor
operations. The second grievance protests SOCCO's decision disallow-
ing employees to place their names on panel lists at the Windsor opera-
tions, the Central Rebuild Shop, the Cooke Coal Terminal, Central Ohio
Company, and Conesville Coal Preparation Plant.
8 SOCCO has continued to provide medical and disability benefits cov-
erage for all employees who where either on layoff status or who were
incapacitated at the time of the sale. To date no disputes regarding either
of these benefits has arisen.

                    6
intentionally concealed by the parties to the sale because its provi-
sions significantly affect District 31's members. Pages 29-30 of the
Sale Agreement state (emphasis added):

          MCC recognizes that the Martinka Mine Operations of
          SOCCO being sold pursuant to this Agreement are covered
          by the National Bituminous Coal Wage Agreement of 1988
          ("Wage Agreement"), and MCC agrees to assume, from and
          after the Date of Possession, SOCCO's rights and obliga-
          tions under the Wage Agreement with respect to such opera-
          tions; provided, however, that as between SOCCO and
          MCC, SOCCO shall indemnify MCC to the extent of
          SOCCO's indemnification obligations contained in Article
          XIX for claims or losses incurred by MCC by reason of
          MCC's assumptions of the obligations under the Wage
          Agreement.

Although we understand District 31's concern, we do not believe
providing it with the entire Sale Agreement properly disposes of this
case, particularly because it is undisputed by the NLRB and by
SOCCO that the majority of the Sale Agreement's provisions are
irrelevant to the issues District 31 attempts to clarify. Their conces-
sion directly contradicts the NLRB's reasoning that the entire docu-
ment is relevant and necessary to District 31's statutory obligation to
represent its members. We do not understand, however, how the
NLRB made such a determination without ever having examined the
document in question. Thus, we remand the case to the NLRB with
the following specific instructions.

First, we instruct the NLRB to confer with the International Union
to determine whether the International Union deems the Sale Agree-
ment relevant to its performance of its statutory obligations. Ostensi-
bly, the International Union is the most appropriate organization for
the NLRB to confer with on the International Union's need to possess
the Sale Agreement because it is the formal entity with whom
SOCCO has a statutorily recognized collective-bargaining relation-
ship. Interestingly enough however, the International Union has never
sought the Sale Agreement after SOCCO fulfilled its obligation to
inform it about the sale under the Wage Agreement. And for reasons
unknown, District 31 circumvented the International Union's hierar-

                    7
chy by never asking the International Union to request the Sale
Agreement on its behalf. Should the NLRB and the International
Union decide that the Sale Agreement is irrelevant and unnecessary
to the International Union fulfilling its statutory duties, District 31
may no longer seek the document. However, should the NLRB and
the International Union decide that the Sale Agreement is relevant and
necessary to the International Union fulfilling its collective-
bargaining obligations, we proceed to our second instruction that the
NLRB conduct an in camera inspection of the Sale Agreement.

Although we recognize that in camera inspections are mechanisms
of discovery generally conducted by trial courts and not ALJs or the
NLRB, we believe, in this particular instance, such an inspection is
a more reasonable and equitable approach to determining Article
XIX's relevance to District 31's inquiries and whether the Interna-
tional Union, let alone District 31, deserves a copy of, or excised pro-
visions of the Sale Agreement. During the in camera inspection, the
NLRB should also carefully review the Sale Agreement for additional
provisions that are directly and unquestionably relevant to the issues
raised by District 31. Third, and only if the NLRB finds that relevant
provisions exist, then pursuant to a strict confidentiality agreement,
agreed upon by the parties, the International Union shall receive
excised copies of those provisions, which are directly relevant to
resolving the specific issues concerning District 31's members.

For the foregoing reasons and with the foregoing instructions, this
case is

REVERSED AND REMANDED.

                    8
