International Union United Mine Workers of America

National Labor Relations Board - Board Decisions

Jun 16, 1967

165 N.L.R.B. 467 (N.L.R.B. 1967)

INTERNATIONAL UNION UNITED MINE WORKERS OF AMERICA
International Union, United Mine Workers of
America and Bituminous Coal Operators
Association and Dixie Mining Company
United Mine Workers of America and its
District 17 and Dan S. Davison
United Mine Workers of America, its
District 17, its District 28, its Local 6594,
its Local 6937 , R. R. Humphrey and Carson
Hibbitts and Ames Coal Company and
Buchanan County Coal Corporation. Cases
5-CE-8, et al., 5-CE-9-1-2, 5-CC-282-1-2
(formerly 9-CE-12-1-2, 9-CC-342-1-2), and
5-CC-294 (formerly 9-CC-347-1-7).
June 16,1967
DECISION AND ORDER
On March 17, 1966, Trial Examiner A. Bruce
Hunt issued his Decision in the above-entitled
proceedings, finding that the Respondents had
engaged in and were engaging in certain unfair labor
practices, and recommending that they cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondents filed
exceptions to the Trial Examiner's Decision and
supporting briefs, and Charging Party Dan
S. Davison filed an answering brief.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs,' and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as modified herein.
In Raymond O. Lewis, 148 NLRB 249, the Board
reviewed the 80-cent clause involved in the instant
proceeding and, with Member Jenkins dissenting,
found that the clause imposed upon signatories to
the UMW national agreement who purchased coal
from nonsignatory operators a substantial financial
penalty designed to restrain such signatories from
procuring or acquiring coal from nonsignatory
producers, and that the clause was thus "an implied
union signatory agreement restricting the
subcontracting of work to operators under contract
with the UMW, without regard to unit
considerations."' The latter conclusion rested on the
Board's finding, based on facts stipulated to the
Board, "that the UMW national contract covers a
multiplicity of bargaining units rather than a single
industrywide unit.";
' The request of Respondent Unions for oral argument is
denied, as the record herein, including the exceptions and briefs,
accurately presents the issues and positions of the parties
2 148 NLRB 249 at 255
467
The Trial Examiner herein , on the basis of the full
record made before him, reached the same
conclusions as did the Board in the previous case
decided upon the parties ' stipulation . For the
reasons stated in our previous decision , and based
upon the findings of the Trial Examiner in the
instant proceeding , we reaffirm our earlier
conclusion that the 80 -cent clause is invalid under
Section 8(e) of the Act.
On the basis of the record herein , the Trial
Examiner correctly found that the clause has caused
some nonsignatory operators to sign the UMW
agreement in order to continue selling their coal to
signatories, and caused some signatory operators to
cease purchasing coal from nonsignatories in order
to avoid the 80-cent penalty which would be imposed
under the contract if they continued to make such
purchases . We find , therefore, as we did previously
and in agreement with the Trial Examiner, that,
construed in the light of the economic realities of the
bituminous coal industry , the clause constitutes an
implied agreement between the Union and signatory
operators that the signatory operators will purchase
coal only from other signatory operators . That the
economic circumstances surrounding the operation
of a provision alleged to contravene Section 8(e) are
cognizable in making a determination of whether it
does is made clear by the opinion of the United
States Court of Appeals for the District of Columbia
Circuit in Meat and Highway Drivers, etc ., Local
710, Teamsters [ Wilson & Co.] v. N.L.R.B., where
the court , at 335 F.2d 709, 716, stated as follows:
To conclude that a contract term falling within
the letter of § 8(e ) properly falls within its
prohibition, there must be either a finding that
both parties understood and acquiesced in a
secondary object for the term, or a finding that
secondary consequences within § 8(e)'s
intendment would properly flowfrom the clause,
in view of the economic history and
circumstances of the industry, the locality, and
the parties. [Emphasis supplied.]
The court agreed with the Board that where an
object of a clause is to aid union members generally
rather than members of the unit , the object is
secondary and unlawful.4 This observation leads, of
course, to the necessity of determining the scope of
the unit in question. As noted above, we rejected in
the earlier Lewis case the contention that there is a
single industrywide bargaining unit coextensive with
the signatories to the UMW national agreement.
This finding was based upon the pattern of
bargaining within the industry-conducted on a
separate basis by various associations and individual
operators-and the consequent lack of the requisite
' Id at 254
4 Meat and Highway Drivers , etc, Local 710, Teamsters, supra
at 716
165 NLRB No. 49
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
joint intention by all signatories to be bound by
group, rather than individual, action. The Trial
Examiner reached the identical conclusion in the
instant case, relying additionally upon the decisions
of the D.C. Circuit in Meat Highway Drivers, etc.,
Local 710, Teamsters, supra, and Orange Belt
District Council of Painters No. 48 v. N.L.R.B., 328
F.2d 534. We agree with the Trial Examiner that,
under those decisions, the "unit" for which
subcontracting clauses may lawfully seek to
preserve work are units appropriate for collective
bargaining within the meaning of Section 9 of the
Act. As noted by the Trial Examiner, the court in
both of these cases reviewed the test to be applied in
determining the primary or secondary nature of
subcontracting clauses. In Orange Belt, the court
stated the question as follows:
We have phrased the test as whether the
clauses are "germane to the economic integrity
of the principal work unit," and seek "to protect
and preserve the work and standards [the
union] has bargain for," or instead "extend
beyond the [contracting] employer and are
aimed really at the union's difference with
another employer."5
In Meat and Highway Drivers, etc., Local 710,
Teamsters, supra, the court used the phrase
"bargaining unit ," rather than "principal work
unit ," as in Orange Belt. We believe that the court
used two phrases as synonymous and that it
intended to give the phrase "bargaining unit" its
customary meaning. Moreover, in Meat and
Highway Drivers, etc., Local 710, Teamsters, the
court cited with approval a portion of the dissenting
opinion by Chairman McCulloch and Member
Brown in that case, noting the mandatory nature of
bargaining over the protection of unit work; a
concept confined by definition of the context of
negotiations conducted in appropriate bargaining
units.
In the light of these intervening decisions of the
court of appeals, we conclude that the units which
control the determination of the primary or
secondary nature of subcontracting clauses are
those units found by the Board under its customary
standards to be appropriate for collective- bargaining
purposes, and that such units in the present case are
the single employer and multiemployer association
units for which separate negotiations are conducted
with the UMW.
5 Orange Belt, supra , 328 F .2d 534 at 538.
" District No. 9, International Association of Machinists
(Greater St. Louis Automotive Trimmers, etc), 134 NLRB 1354,
enfd . 315 F 2d 33 (C.A.D.C.).
' Meat and Highway Drivers, etc , Local 710, Teamsters, supra,
Truck Drivers Union Local 413 (Patton Warehouse , Inc) v.
N.L.R B., 334 F 2d 539, cert . denied 379 U.S 916.
"It is thus apparent that our holding that the 80 -cent clause is
unlawful is founded specifically upon the finding that there exists
in the bituminous coal industry a multiplicity of collective-
bargaining units . We are unable to understand , therefore, the
To broaden the scope of permissible "unit-work
protection" clauses to encompass provisions directly
or indirectly limiting the doing of business to the
various associations and single employers under
contract with the union would destroy the distinction
now well established in the law between unit-work
protection and union-signatory clauses6 and
substantially nullify the congressional purpose in
adopting the prohibitions of Section 8(e). Thus,
under the clause in this case, a producer could
purchase coal from any signatory operator,
regardless of whether the latter is within the
producer's own employer association (bargaining
unit), without being required to make the 80-cent
payment. Therefore, since the operators from whom
he might obtain additional coal-be it supplemental
or substitute-without the penalty are not limited to
those within the unit, the clause cannot be said to
preserve work opportunities for employees in that
unit. Nor does the 80-cent penalty clause qualify as a
wage-standards provision designed to prevent the
undermining of established working conditions in
the principal work unit. Such a provision may
lawfully restrict subcontracting to organized and
unorganized employers who maintain a wage scale
and working conditions commensurate with those of
the employer who is party to the collective-
bargaining agreement, unless the surrounding
circumstances disclose that the parties intended an
unlawful secondary objective.' But the instant
penalty clause does not qualify as a wage-standards
provision because a penalty is imposed whenever
unit work is subcontracted to nonsignatory operators
without regard to the wage standards of such
employers.
We reaffirm, therefore, our previous conclusion
that the Respondent's contention that the 80-cent
clause as a lawful work preservation clause must be
rejected, inasmuch as the claimed protection of
work extends beyond the bargaining units."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondents, International
Union, United Mine Workers of America, its
Districts 17 and 28, its Locals 6594 and 6937, their
basis of our dissenting colleague's contrary interpretation of our
Decision herein. The dissent also misconstrues our discussion
with respect to the effect of the clause on signatory and
nonsignatory operators. We hold merely, under accepted
principles, that since the 80 -cent clause allows signatory
operators to do business with coal operators outside of their
collective-bargaining unit only if such operators have a collective-
bargaining agreement with the UMW, it constitutes an implied
union- signatory agreement and thus falls within the ban of Section
8(e).
INTERNATIONAL UNION UNITED MINE WORKERS OF AMERICA
officers, agents, and representatives, and
Bituminous Coal Operators Association, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
MEMBER JENKINS, dissenting:
In my dissenting opinion in the Lewis case,`' I fully
set forth my reasons for finding that the welfare fund
clause at issue was not invalid under Section 8(e) of
the Act. In the instant case, involving the same
clause, the record before the Board does not
persuade me that there is any error in my conclusion
in Lewis that there exists a single industrywide
bargaining unit for welfare fund matters. Nor does it
persuade me that the clause was not intended to and
does not operate to protect and preserve the work
standards for which the Union has bargained. In my
previous opinion, I noted my disagreement with the
majority's characterization of the clause as a penalty
and would end my dissent here were it not for the
fact that the majority in the instant case also seems
to be saying that even if they agreed with me as to
the existence of an industrywide unit, the clause
would still be illegal so long as there were some
signatories and nonsignatories in the industry who
for economic reasons would be affected by its
operation either through a cessation of doing
business with each other or of nonsignatories
becoming signatories.' 0
In my view, such a conclusion certainly does not
square with our decisions that a clause prohibiting
all subcontracting of unit work is valid under Section
8(e). Nor does it comport with our decision in
Highway Truck Drivers and Helpers, Local 107, et
al.," where we specifically rejected the argument
that the disruption of long-established business
relationships was a circumstance sufficient to
establish an unlawful secondary object within the
intent of Section 8(e). Yet the majority now appears
to say that since the clause caused the cessation of
subcontracting by some signatories with some
nonsignatories it is not and cannot be related to the
work and wage standards of the employees in the
bargaining unit . This conclusion can stand only if in
determining the legality of the clause we substitute
our judgment for that of the Union as to what the
amount of the compensation to the welfare fund
should be to equalize the wage standards throughout
the industry and protect the integrity of the
industrywide welfare fund. But the Union's
judgment in this respect is not open to review by this
Board. Nor in my judgment should we venture into
the uncharted area of making economic appraisals of
the means chosen by a union to protect lawful
employee interests.
Therefore, for the reasons set forth in my prior
opinion and for the further reasons stated here, I
would hold that the welfare fund clause is lawful
under Section 8(e) and dismiss the complaint herein.
469
" Raymond 0 Lewis, et al, 144 NLRB 228, remanded 350 F.2d
801 (C A D C.)
"' In this regard , it would appear that I misconstrued the
majority ' s opinion in the prior case for there I expressed my
understanding that the majority would have held the clause valid
had it been placed in the industrywide welfare fund agreement
because it would have protected the work and standards of that
unit.
The Trial Examiner in this Decision has clearly premised his
finding of a violation on such reasoning . Thus he states
We have seen that the Respondents ' position, as well as
the 80-cent provision , is phrased in terms of disputes
between the Union and signatory buyers I find, however,
that that provision is really aimed at nonsignatory sellers.
Although the provision has not been fully enforced, it has
resulted in some nonsignatory sellers becoming signatories in
order to preserve markets previously open to them , and it has
caused some signatories to cease purchasing nonsignatory
coal in order to avoid the penalty Other signatories who
continue to deal in nonsignatory coal are not , insofar as the
record discloses, complying with the 80-cent provision, and I
repeat that the economics of the bituminous coal industry are
such that, if and when the provision should be fully enforced,
many, if not all, nunsignatones will be faced with two
alternatives . to become signatories or to lose their signatory
customers . The provision is, in effect, an invalid union-
signatory clause (Emphasis supplied )
' 159 NLRB 84
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE'
A. BRUCE HUNT, Trial Examiner: This proceeding
involves allegations that during 1964 (1) Respondents
International Union, United Mine Workers of America
(Union), its District 17, and Bituminous Coal Operators
Association (BCOA) violated Section 8(e) of the National
Labor Relations Act, as amended (Act), 29 U.S.C. Sec.
151, et seq.; (2) Respondents Union and its District 17
violated Section 8(b)(4)(i), (ii)(A) and (B) of the Act; and
(3) Respondent District 28 of the Union, Respondents
Locals 6594 and 6937 of the Union, and Respondents
R. R. Humphrey and Carson Hibbitts, presidents of
District 17 and District 28, respectively, violated Section
8(b)(4)(i) and (ii)(A) of the Act.' On various days between
April 12 and May 11, 1965, I conducted a hearing at
Washington, D.C., at which all parties were represented
by counsel.3 The motions of various Respondents to
dismiss are disposed of in accordance with the
' The caption in Case 5-CE-8 is hereby amended to correctly
state the name of the Charging Party. When charges were filed in
that case, that party's name was Dixie Mining Company of
Kentucky, Inc.
2 In Case 5-CE-8, the original and amended charges were filed
on April 1 and December 1, 1964, respectively In Case 5-CE-9-1
through 2 and 5-CC-282-1 through 2, the charges were filed on
April 29, 1964 In Case 5-CC-294, the charge was filed on July 13,
1964. A consolidated complaint was issued on January 15, 1965
An amended consolidated complaint was issued on February 24,
1965.
' On August 23 and October 4, 1965, respectively, counsel for
all Respondents other than BCOA and counsel for Charging Party
Davison filed motions to correct the transcript . Copies of the
motions were served upon all other counsel in the case By letter
of September 28, 1965, to all counsel, I proposed certain
corrections No objections were filed to any proposed correction
The transcript is hereby corrected in accordance with said
motions and the attachment to my letter of September 28, 1965.
299-352 0-70-31
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
determinations below. Upon the entire record and my
observation of the witnesses, I make the following:
appear, the resolution of the subsidiary issues turns upon
the resolution of the principal issue.
FINDINGS OF FACT
1. THE RESPONDENTS
Bituminous Coal Operators Association is an
unincorporated association comprised of employers
engaged in mining and dealing in bituminous coal in
various States of the nation. BCOA exists, inter alia, for
the purpose of engaging in collective bargaining on behalf
of its members. BCOA is engaged in commerce within the
meaning of the Act.
International Union, United Mine Workers of America,
its Districts 17 and 28, and its Locals 6594 and 6937 are
labor organizations within the meaning of the Act.
R. R. Humphrey and Carson Hibbitts are the presidents of
Districts 17 and 28, respectively.
II. THE CHARGING PARTIES
Dixie Mining Company, a partnership (Dixie), and Ames
Coal Company and Buchanan County Coal Corporation,
corporations (Ames and Buchanan, respectively), are
engaged in the business of mining and dealing in
bituminous coal in the States of Kentucky, West Virginia,
and Virgina, respectively. Dan S. Davison is vice president
of Riverton Coal Company (Riverton), a corporation which
is engaged in a like business in West Virginia. Dixie and
each of the named corporations annually ships coal valued
in excess of $50,000 from its places of business to points in
other States, and each is engaged in commerce within the
meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The principal issue in this proceeding was before the
Board in its Supplemental Decision in Raymond O. Lewis,
et al., as agents for International Union, United Mine
Workers, etc. (Arthur J. Galligan), 148 NLRB 249. The
issue is whether a particular provision in the 1964 contract
between BCOA and the Union, commonly called the 80-
cent provision, contravenes Section 8(e) of the Act.' The
Board, Member Jenkins dissenting, answered the question
in the affirmative, but the Board subsequently concluded,
as it advised counsel and the Trial Examiner in this
proceeding, that it did not regard its Supplemental
Decision "as finally disposing of" the question.5
Accordingly, the majority decision is not binding upon me.
Subsidiary issues are whether the Respondents, excluding
BCOA, by their efforts to force certain charging parties to
execute contracts containing the 80-cent provision,
breached particular portions of Section 8(b)(4). As will
' Insofar as pertinent , Sec 8(e) provides that "[i]t shall be an
unfair labor practice for any labor organization and any employer
to enter into any contract or agreement , express or implied,
whereby such employer ceases or refrains or agrees to cease or
refrain from . dealing in any of the products of any other
employer, or to cease doing business with any other person, and
any contract or agreement entered into heretofore or hereafter
containing such an agreement shall be to such extent
unenforceable and void .
' In the enforcement proceeding in Raymond O. Lewis, et al v
N L.R B , 350 F 2d 801 (C A.D.C ), the Board argued in its brief
B. Background
A stipulation of the parties, in which the word
"industry" means that portion of the bituminous coal
industry which is organized by the Union, reads as follows:
Collective bargaining in the bituminous coal
industry has long followed a multiemployer pattern.
During the period from 1898 to 1927 the United Mine
Workers negotiated agreements first with operators in
the so-called Central Competitive Field (Ohio,
Indiana, Illinois and West Virginia). These
agreements set the pattern for negotiations in other
areas of the country between various Districts of the
Union and local associations of coal mine operators.
The bargaining relationship in the Central
Competitive Field collapsed in 1927.
From 1934 through 1940 agreements were
negotiated with the operators in the Appalachian area
which served, as the Central Competitive Field
agreement had earlier, as a pattern for the remainder
of the industry. In 1941, however, the Appalachian
operators split into northern and southern groups and
signed separate agreements with the UMWA. Despite
this split among the operators, a uniform national
agreement was negotiated for the industry in 1945.
The division of the operators of the Appalachian
area into northern and southern groups persists to this
day. Most of the northern group deal with the Union
through the Bituminous Coal Operators Association
of which Edward G. Fox is President. Southern Coal
Producers' Association represents the southern
operators in their dealing with the Union. In addition,
many Mid-western operators negotiate with the Union
through local associations.
Since 1950, collective bargaining negotiations in the
industry have been conducted under the following
pattern. The Union first negotiates an agreement with
representatives of the Bituminous Coal Operators
Association. The .terms of the BCOA agreement are
then presented to the Southern Coal Producers'
Association, the mid-west operators associations and
individual operators.
Each agreement negotiated by BCOA and the Union has
the title "National Bituminous Coal Wage Agreement."
The agreements are geared to the ability of mechanized
operators to pay, and it is the Union's established practice
to seek the signatures of as many operators as possible to
that contract and to no other written agreement. The
Union has contracts with operators who produce
approximately 75 percent of the bituminous coal that is
mined in the United States.
As will appear in more detail, various operators in the
industry purchase coal from other operators. The term
that the issue concerning the 80-cent provision was "not ripe for
review for the additional reason that it was not decided by the
Board under `the procedure d'escnbed in Section 10(b) and (c) of
the Act ' Instead, the Board's determination was the
culmination of an extraordinary procedure involving a compliance
motion, a show cause order, and a series of responses filed
thereto " The court, in its opinion, said "The Board says this
decision is not ripe for review But we express no opinion on that
point, since our decision not to enforce the decree moots any
compliance question "
INTERNATIONAL UNION UNITED MINE WORKERS OF AMERICA
"substitute coal," as used in the industry, means coal
which an operator purchases instead of producing it
himself. The term "supplemental coal" means coal that an
operator purchases to supplement his own production, and
his need to purchase supplemental coal may arise from
sales contracts into which he has entered with customers
who required coal of qualities and quantities which he
cannot produce in his own mines. The practice of
operators who are signatories to agreements with the
Union in purchasing coal, called "subcontracting" or
"contracting out," has long been a matter of concern to the
Union. Its 1941 agreement with the Kanawha District, a
part of the Appalachian area, expressly prohibited
subcontracting. During 1943, the National War Labor
Board, in a case involving the Union and operators in the
Appalachian area, disposed of an issue relating to the
leasing of mines by directing that each agreement contain
the following provision:
The Operators agree that they will not let any
operating mines subject to this Agreement as a
subterfuge for the purpose of avoiding the provisions
of this Agreement.
Like or similar provisions were inserted in the National
Bituminous Coal Wage Agreement of 1945 and in various
amendments to the National Bituminous Coal Wage
Agreement of 1950.
C. The 80-cent Provision Which is in Issue, Predecessor
Provisions
The National Bituminous Coal Wage Agreement of
1950 (the 1950 Agreement), with certain amendments, is
currently in effect. It contains a section entitled "United
Mine Workers of America Welfare and Retirement Fund
of 1950" which is reproduced in full as Appendix A to this
Decision. That section created the Union's Welfare and
Retirement Fund of 1950 (Fund) and provided, inter alia:
During the life of this Agreement, there shall be paid
into such Fund by each operator signatory hereto the
sum of thirty cents (30 cents) per ton of two thousand
(2,000) pounds on each ton of coal produced for use or
for sale.
By amendments of 1952, the payment per ton was
increased from 30 to 40 cents and a provision entitled
"Application of Contract to Coal Lands" was negotiated.
It reads:
As a part of the consideration for this Agreement,
the Operators signatory hereto agree that this
Agreement covers the operation of all of the coal
lands owned or held under lease by them, or any of
them, or by any subsidiary or affiliate at the date of
this Agreement, or acquired during its term which
may hereafter (during the term of this agreement) be
put into production. The said Operators agree that
they will not lease out any coal lands as a subterfuge
for the purpose of avoiding the application of this
Agreement.
By an amendment of 1958, a provision entitled "Protective
Wage Clause" was negotiated. In the initial Decision in
the Galligan case, 144 NLRB 228, issued on August 27,
1963, a panel of the Board held that the Protective Wage
Clause contravened Section 8(e).6 In Lewis, et at. v.
" On September 20, 1963, the respondents in that case filed
with the Board a motion for reconsideration en banc On
December 12, 1963, the Board, by its Executive Secretary, issued
an order denying the respondents' notion because the Board had
been "unable to arrive at a majority de( tston disposing of the
471
N.L.R.B., supra, footnote 5, decided August 4, 1965, the
court declined to enforce the Board's Order and remanded
the case for further determinations by the Board. In
the meantime, however, BCOA and the Union had deleted
the Protective Wage Clause from their agreement and had
substituted the 80-cent provision.
On March 23, 1964, representatives of BCOA and the
Union entered into certain amendments to their contract,
to become effective on April 2, 1964.' Insofar as the
amendments relate to the Fund and the application of the
contract to coal lands, they are reproduced in Appendix B
to this Decision. At this point it suffices to say that there
was a renewal of the requirement that signatory operators
pay into the Fund the sum of 40 cents on each ton of coal
they mine and that there was added a requirement that, in
substance, they pay into the Fund the sum of 80 cents per
ton on coal they buy from nonsignatory operators. The
requirements read, in pertinent part:
During the life of this agreement there shall be paid
into such Fund by each Operator signatory hereto the
sum of 40 cents (40 cents) per ton of two thousand
(2,000) pounds on each ton of bituminous coal
produced by such Operator for use or for sale. On all
bituminous coal procured or acquired by any
signatory Operator for use or for sale, (i.e., all
bituminous coal other than that produced by such
signatory Operator) there shall, during the life of this
Agreement, be paid into such Fund by each such
Operator signatory hereto or by any subsidiary or
affiliate of such Operator signatory hereto the sum of
eighty cents (80 cents) per ton of two thousand (2,000)
pounds on each ton of such bituminous coal so
procured or acquired on which the aforesaid sum of
forty cents (40 cents) per ton had not been paid into
said Fund prior to such procurement or acquisition.
On the same day that representatives of BCOA and the
Union entered into the amendments, March 23, 1964,
Southern Coal Producers' Association, representing
approximately 20 operators, became a signatory to the
amendments. Between April 1, 1964, and the opening of
the hearing in this proceeding on April 12, 1965, numerous
individual operators and associations of operators became
signatories. The circumstances under which Riverton
became a signatory on April 15, 1964, are discussed
hereinafter.
Negotiations concerning the 1964 amendments began in
December 1963, about 4 months after the Board's Decision
holding the Protective Wage Clause to be invalid. BCOA
negotiated on behalf of its members who are commercial
operators. The persons who participated in one or more of
an undisclosed number of meetings between December
1963 and March 23, 1964, are a union committee of three,
W. A. Boyle, R. O. Lewis, and John Owens, the Union's
president, vice president, and secretary-treasurer,
respectively; Edward Fox and one Potter, representing
BCOA's commercial operators; one Larry, representing
"captive" operators, i.e., those who produce coal as part of
an integrated operation, primarily steel companies: and an
unidentified person who represented Pittsburgh
Consolidated Coal Company. Of the negotiators, Owens
was the only witness. He testified for the Union, and it is
apparent from certain of his answers, to be recited, and
matter " The findings in this In are based upon the utder of
December 12, 1963
' These and earlier amendments contained tmptoved wage
rates and other working conditions for employees, but in these
respects the amendments need not be detailed
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from his demeanor that he was not a candid witness and
that he withheld information concerning the negotiations.
Owens testified that before the negotiations began, the
three union representatives discussed a prospective
contractual provision whereby each signatory would pay
into the Fund the sum of $1 on each ton of coal purchased
from a nonsignatory but that he did not know when those
representatives first discussed the matter, that he may
have originated the proposal, saying to Boyle and Lewis
that its purpose would be to protect work opportunities for
union members by preventing subcontracting, that he
thought B. ile and Lewis agreed and that they may have
discussed the purpose of the proposal, but that he could
not recall exactly what was said about subcontracting.
Subsequent to the discussions by the union
representatives, according to Owens, in negotiations with
BCOA's representatives, the Union proposed that a $1
provision be included in the contract, arguing that the
provision was necessary to protect work opportunities and
to prevent subcontracting, but Owens could not name any
BCOA member who was engaged in subcontracting, and
he testified that the Union sought to prevent
subcontracting by any operator who subsequently would
become a signatory. Owens testified further that
representatives of BCOA "absolutely opposed" the
Union's demand but did not say that the proposal would
prove too costly or give any other reason for opposing it."
After "long hours and days of argument," to quote Owens,
in which he could not recall whether the Galligan case was
discussed, BCOA's representatives agreed to the 80-cent
provision which was inserted in the 1964 contract " in lieu
of" the Protective Wage Clause which a panel of the
Board had held was violative of Section 8(e). With respect
to captive operators who are parties to contracts with the
Union, whether members of BCOA or not, the record
establishes that such contracts do not contain the 80-cent
provision, and Owens testified that he could not recall
whether the Union had proposed a $1 provision or 80-cent
provision to Larry, the representative of the captive
operators. Owens testified further that, insofar as he
knew, no captive operator bought coal. The record is clear,
however, that some captive operators are purchasers. In
summary, Owens' testimony-the only testimony in the
record on the point-sheds little, if any, light on the details
of the negotiations which resulted in adoption of the 80-
cent provision.
D. The 1964 Strike at Ames' and Buchanan's Mines
Counsel for all Respondents other than BCOA
stipulated that, for the purposes of this proceeding alone,
findings may be made that the Union, its Districts 17 and
28, and its Locals 6594 and 6937 induced and encouraged
employees of Ames and Buchanan to engage in strikes
from July 13 through August 22, 1964, objects of which
were to force and require Ames and Buchanan to become
signatories to the 1964 amendements to the 1950
Agreement, including the 80-cent provision. It does not
appear that either Ames or Buchanan became a signatory,
however.
E. Riverton and the 80-Cent Provision
Riverton mines buys and sells coal. It is a wholly owned
subsidiary of Davison Fuel and Dock Company (Davison)
" In its brief, BCOA says that it opposed the Union's demand
"on economic grounds," but it offered no evidence to that effect
" The record is not entirely clear concerning the period of time
in which the 100,000 to 110,000 tons were bought At one point the
and the latter acts as Riverton 's exclusive sales agent.
Riverton has approximately 155 production and
maintenance employees who are represented by
Respondent District 17, and Riverton, acting for itself and
not as a member of any employer association, has been a
signatory to agreements with the Union for at least a
decade. On April 10, 1964, 8 days after the 80-cent
provision in the BCOA contract became effective,
Riverton's employees commenced a strike. Counsel for all
Respondents other than BCOA stipulated that for the
purposes of this proceeding alone, findings may be made
that the Union and its District 17 induced and encouraged
Riverton's employees to engage in a strike from April 10 to
15, 1964, an object of which was to force and require
Riverton to become a signatory to the 1964 amendments to
the 1950 Agreement, including the 80-cent provision. On
April 15 Riverton became a signatory.
Riverton operates two or three mines. It owns or leases
additional mines and coal lands, but its financial resources
are insufficient to enable it to operate more than three
mines. When one mine becomes unproductive, another is
opened. Riverton's principal customer is Cincinnati Gas
and Electric Company (CG&E), and in order to meet
CG&E's demand, Riverton buys coal. During the latter
half of 1963, Riverton purchased from 22,000 to 52,000
tons of coal monthly from 26 to 40 nonsignatory operators.
During 1964, before the effective date of the 80-cent
provision, Riverton bought between 100,000 and 110,000
tons of coal, more than three-fourths of which was
obtained from nonsignatory operators who numbered, by
months, from 26 to 33." During January 1 to April 15, 1964,
Riverton mined approximately 157,000 tons at a cost of
less than $4 per ton, and the vast majority of its purchases
were at $4 per ton. The coal mined was commingled with
that purchased, and 90 percent of the mixed coal was sold
at $4.29 a ton, another 5 percent was sold at prices
between $4.29 and $4.75, and the remaining 5 percent was
sold at undisclosed prices. At times material prior to
April 15, 1964, Riverton bought coal from nonsignatory
operators who (1) lease from Riverton coal lands which the
latter owns, (2) lease from Riverton coal lands which
Riverton earlier had leased from third persons, and (3) own
their mining properties or lease them from third persons.
Riverton also bought coal from signatory operators who
may be classified similarly. Some of the lessees are very
small, mining with approximately three men.
After becoming a signatory to the 80-cent provision on
April 15, 1964, Riverton continued to pay into the Fund the
sum of 40 cents a ton on coal it mined, but it ceased buying
coal from nonsignatories. Its profit margin, as reflected in
figures recited above, was insufficient to enable it to pay
80 cents a ton on nonsignatory coal, and it was unable to
purchase coal from nonsignatories at prices substantially
lower than it had been paying before April 15. After that
date, Riverton informed its nonsignatory suppliers that
they would have to become signatories in order to sell to
Riverton. In dealing with suppliers to whom it had leased
mining properties , Riverton cancelled all leases and
negotiated new leases only with operators who became
signatories . Riverton continued to mine as much coal as its
financial resources permitted, but it was unable to buy
from signatories, at prices it could afford, enough coal to
record indicates the first quarter of 1964, at another point the first
quarter plus the first half of April, and at another point a period of
3 months preceding April 15.
INTERNATIONAL UNION UNITED MINE WORKERS OF AMERICA
fill its orders. CG&E, which buys 90 percent of the coal
which Riverton has for sale, refused to pay Riverton more
than their contract price of $4.29.
Riverton ' s parent and sales agent , Davison, is not a
signatory to an agreement with the Union. Davison's
employees are represented by International Union of
District 50, United Mine Workers of America, which is an
autonomous labor organization, separate from the Union in
this proceeding. We have seen above that the 80-cent
provision is applicable to "any subsidiary or affiliate of" a
signatory, and thus Davison is bound by the provision.
Prior to April 15, 1964, Davison had contracted with Ford
Coal Company (Ford), a nonsignatory, to purchase from
Ford a specified quantity of coal daily for a particular
period of time, and prior to April 15 Davison had fulfilled
its obligations under the contract. On that date or
immediately thereafter, Davison breached the contract by
ceasing to buy coal from Ford. Davison's reason was the
80-cent provision. Ford sued Davison in the Circuit Court
of Kanawha County, West Virginia. The litigation was
terminated by a settlement agreement pursuant to which
Davison paid Ford $15,000.
F. Dixie and the 80-Cent Provision
Dixie, a partnership, operates approximately 28 small
underground truck mines in Pike County, Kentucky. The
term "truck mines" signifies that the coal is transported
by truck from the mines' tipples to a railroad. Dixie is not a
signatory. During 1964 Dixie mined 164,700 tons of coal
which it sold at an average price of approximately $4.10
per ton. Its gross profit was approximately 52 cents per
ton, and its net profit, after deducting general and
administrative expenses plus allowances for depreciation
and depletion, was approximately 12-1/2 cents per ton.
Prior to negotiation of the 80-cent provision, Dixie annually
sold approximately 40 percent of its coal to signatories.
Subsequent to May 1964, Dixie has not sold any coal to
signatories. On March 18, 1964, before negotiations of the
80-cent provision, Dixie orally agreed to sell 30,000 tons of
coal at $3.70 per ton to Republic Coal & Coke Co.
(Republic), a subsidiary of a signatory. On April 14
Republic mailed an order to Dixie, saying that the
purchase price would be "subject to the eighty cents (80
cents) welfare payment clause, if it is put into effect and
charged against" Republic. During the forepart of May,
Dixie shipped 6,600 tons and, upon an undisclosed date,
asked Republic whether Republic "could absorb at least
part of the" 80-cent-per-ton payment. On May 21,
Republic wrote to Dixie, saying inter alia:
As you know, Republic does not have anywhere
near the margin of profit necessary to absorb such a
charge. Consequently, if we have to pay it, our only
alternative is to deduct it from our return to you, or if
that is not satisfactory from your standpoint, to cease
handling your coal entirely.
Upon receipt of Republic's letter, Dixie ceased selling coal
to Republic.
"' According to counsel for the Union, "ltlhe charging parties
are not the only ones that would like to have a rapid decision in
this The Mine Workers stand to lose hundreds of thousands of
dollars because of this delay in a contract that they think is legal
under the law " It may be that signatories who are buying
nonsignatory coal have an agreement with the Union that no
payments into the Fund need be made on nonsignatory coal
purchased prior to a decision that the 80 -cent provision is valid
We have seen that Republic expressed to Dixie an inability to pay
473
G. United Collieries and the 80-Cent Provision
United Collieries, Inc. (Collieries) is a coal sales
company located in Cincinnati, Ohio. It is not a signatory.
At times material, Collieries dealt primarily in the coal of
nonsignatories and at the time of the hearing it dealt
entirely therein. During a period of 6 months preceding
April 1964, Collieries bought coal at $3.75 to $3.90 per ton
and sold it at $3.90 to $4.05. Collieries' only purchaser
which is a signatory was Interlake Iron Corporation
(Interlake) whose purchases from Collieries varied
between 3,000 and 10,000 tons per month. During May
1964, Ben E. Tate, Jr., Collieries' president, talked with
Leonard Schroeder, a buyer for Interlake's coal agent,
Pickands Nather & Co. Schroeder told Tate that Interlake
would not purchase nonsignatory coal because of the 80-
cent provision. Collieries' sales to Interlake ceased.
H. HCCOA and the 80-Cent Provision
Harlan County Coal Operators Association (HCCOA),
located in Kentucky, has as members 15 mining
companies which operate approximately 25 mines and
employ approximately 875 men. The mines vary from
small to medium in size , and nearly all are mechanized.
One is a truck mine; the remainder have rail connections.
During 1964, HCCOA's members mined, nearly 2 million
tons, and during 1963 production was about 10 percent
higher. The profit margin does not average above 25 cents
per ton.
Prior to 1964, all members of HCCOA were signatories
to the 1950 Agreement, as amended. After BCOA and the
Union negotiated the 80-cent provision, representatives of
the Union and HCCOA met on three occasions in an
unsuccessful effort to negotiate a contract. The Union's
representatives asked that HCCOA's members execute
the new agreement. Representatives of HCCOA replied
that its members were unwilling to do so because they
could not meet the terms of the contract and stay in
business . HCCOA made a counterproposal which was
rejected, the Union' s position being that HCCOA's
members should sign the 1964 amendments.
Subsequently, two of HCCOA's 15 members executed the
1964 amendments, and thereafter one of those two ceased
business for reasons which are not recited in the record.
Although 13 HCCOA members are not signatories, they
sell approximately 50 percent of their tonnage to
signatories . The record does not disclose the extent, if any,
to which payments are being made into the Fund based on
coal purchased by signatories from HCCOA's
nonsignatory members. At the hearing, one of the
attorneys for the Union said that there had been no
enforcement of the 80-cent provision and that it will not be
enforced until its validity has been established. Counsel
for the General Counsel voiced his understanding that the
provision will not be enforced until such time. Although
the record is clear that some signatories are buying
nonsignatory coal, there is no evidence that any signatory
has made any payment on such coal into the Fund."
80 cents per ton on nonsignatory coal and an unwillingness to buy
Dixie's coal except at their contract price less 80 cents At the
time of the hearing, however, Republic was buying coal from
nonsignatory members of HCCOA without requiring a reduced
price because of the 80-cent provision On the other hand,
Riverton will not buy nonsignatory coal for fear that, if the
provision should be held to be valid, Riverton would be forced to
pay 80 cents per ton on all nonsignatory coal bought by it after
April 2, 1964
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. NICOA and PCICOA and the 80-Cent Provision
National Independent Coal Operators Association
(NICOA) has a membership of 3,000 to 4,000. NICOA's
members , some of whom are signatories , employ
thousands of miners who work in coal mining regions of
Alabama. Kentucky , Pennsylvania , Tennessee . Virginia.
and West Virginia . They produce approximately 100
million tons annually , and for the 5-year period of 1960
through 1964 approximately one-third of the coal was sold
to signatories . Their profit margin ranges from 15 to 30
cents per ton.
Pike County Independent Coal Operators Association
(PCICOA) is a member of NICOA. PCICOA has
approximately 600 members , a majority of whom operate
small truck mines. Such mines contain seams of coal too
thin for mining by large coal operators which use the most
improved and costly machinery , although earlier some
such mines were operated by large operators until the
thick seams of coal became exhausted . The record does
not disclose the number of PCICOA members who are
signatory operators . It is clear , however , that PCICOA
members , both signatories and nonsignatories , sell coal to
signatories.
There is no evidence that any signatory who buys from
NICOA's or PCICOA 's nonsignatory members has paid
any amount into the Fund based upon such purchases.
J. The Inability of Operators of Small Mines to Meet the
Wage Scales and Other Costs Set Forth to the 1964 and
Earlier Bituminous Coal Wage Agreements
The record contains considerable documentary
evidence and testimony concerning the economic
condition of small mines and the inability of their
operators to (1) meet the wage scales and other costs set
forth in the 1964 and earlier Bituminous Coal Wage
Agreements if the operators have, or were to, become
signatories, and (2) bear any portion of the 80-cent
provision by selling coal to signatories at reduced prices. It
is unnecessary to recite much of this testimony. Southern
Coal Producers' Association (SCPA), whose members
mine approximately 52 million tons of coal annually, and
Kanawha Coal Operators' Association (KCOA) are among
the principal signatories of agreements negotiated by the
Union and BCOA. Quin Morton, III, is an executive vice
president of SCPA and executive secretary of KCOA. He
defined a small mine as one which produces from 50 to 500
tons daily, and he testified that a small mine which
produces less than 12 tons per man daily" cannot pay the
wage and other cost figures set forth in the 1964
amendments to the 1950 Agreement.'2
Robert Holcomb is one of the partners in Dixie. Thomas
B Ratliff is president of Ratliff-Elkhorn Coal Company
(Ratliff-Elkhorn) which operates in Pike County,
Kentucky, as does Dixie. During 1959. subsequent to the
negotiation by the Union and BCOA of the Protective
Wage Clause which the Board found in the original
Calligan Decision to have been invalid, Holcomb, Ratliff,
and other persons met with Respondent Hibbitts,
president of the Union's District 28. Holcomb and Ratliff
refused to sign the then current agreement because of a
financial inability to comply with its terms, and Hibbitts
said that he was well aware of such financial inability on
the part of operators of small mines. Hibbitts would not
negotiate any written agreement other than the national
agreement , however, and the negotiations were unfruitful.
Upon other occasions during 1959, Hibbitts reiterated to
Holcomb that he was aware of such financial inability.''
Prior to the negotiations of the Protective Wage Clause,
Ratliff-Elkhorn had been a party to contracts with the
Union. During 1959 and thereafter, Ratliff met with
Hibbitts and other representatives of the Union in
unsuccessful efforts to reach an agreement. About 1960, in
a meeting between Ratliff and Hibbitts, the latter said
repeatedly that he realized that truck mines in eastern
Kentucky "could not abide by the wage and welfare
provisions of the" national agreement. During 1963,
Hibbitts made a similar remark to Ratliff, and upon that
occasion or earlier Ratliff sought to negotiate an
agreement to be applicable only to truck mines. Hibbitts
replied that his "hands were tied" and that he was not
authorized to enter into any written agreement other than
the national one.'4 Because the wage and other provisions
of the 1950 Agreement, as amended from time to time,
have become increasingly favorable to employees, it is
apparent that Hibbitts' remarks prior to 1964 concerning
the inability of some operators to meet the terms of the
" Morton defined a medium size mine as one which produces
1,000 to 2,500 tons daily , and a large mine as one which produces
from 2,500 to 8,000 tons or more daily Some large mines produce
far more than 12 tons per man daily
" In Mr Justice Goldberg's dissenting and concurring opinion
in United Mine Workers ofAmerica v Pennington, et al , 381 U S
657, 85 S Ct 1585, and Local Union No 189, Amalgamated Meat
Cutters & Butcher Wor/men, et al v Jewel Tea Co , Inc., 381 U S
676, 85 S Ct 1596, the following appears at 381 U S 698,85 S Ct
1608
[I]t is no secret that the United Mine Workers, acting to
further what it considers to be the best interests of its
members, espouses a philosophy of achieving uniform high
wages, fringe benefits, and good working conditions As the
quid pro quo for this , the Union is willing to accept the
burdens and consequences of automation Further , it acts
upon the view that the existence of marginal operators who
cannot afford these high wages, fringe benefits, and good
working conditions does not serve the best interests of the
working miner but, on the contrary, depresses wage
standards and perpetuates undesirable conditions This has
been the articulated policy of the Union since 1933.
[Authority cited ] The Mine Workers has openly stated its
preference , if need be, for a reduced working force in the
industry , with those employed working at high wages, rather
than for greater total employment at lesser wage rates
[Authorities cited ] Consistent with this view , the Union
welcomes automation , insisting only that the workers
participate in its benefits
The findings concerning Hibbitts' remarks are based upon
Holcomb 's uncontradicted testimony Hibbrtts was not a witness
Ratliff testified concerning meetings which he had with Hibbrtts,
but he did not testify concerning the meeting which Holcomb
attended.
14 These findings are based on Ratliff's uncontradicted
testimony During the presentation of Dixie's case - in-chief, its
counsel offered evidence concerning an alleged practice of the
Union, called "sweet heart mg ," to enter into oral agreements with
some signatories pursuant to which oral agreements the
signatories pay to employees lower wages and pay into the Fund
smaller amounts than are provided in the national agreement
Objections by the Union and BCOA to such evidence were
sustained with the proviso that the evidence might be offered
again in rebuttal depending upon the nature of the defense
evidence The latter evidence , however, did not open the door to
the presentation of Dixie ' s evidence , It may be added that
"sweetheart ing," if such a practice exists, is not binding upon the
Fund's trustees who at any time may sue a "sweetheart" operator
for the full 40 cents per ton in coal mined and that the result of
such a lawsuit could be to force the operator into insolvency
INTERNATIONAL UNION UNITED
1950 Agreement, as amended, are equally applicable to
that agreement as amended during 1964.
K. Conclusions Concerning the 80-Cent Provision
We have seen that some operators have a practice of
purchasing coal. The purchase of supplemental coal (i.e.,
coal to supplement an operator's production) is often
essential to enable an operator to meet his customers'
requirements for qualities and quantities of coal which he
cannot procure from his own mines. The purchase of
substitute coal (i.e., coal that an operator purchases in
preference to mining more of his own coal) limits directly
the work opportunities of the operator's employees We
have seen too, that the Union, while aware that some
signatories purchase coal, has been concerned about the
employees' loss of work and has negotiated contractual
provisions that operators shall not lease their properties as
a subterfuge to avoid their contractual obligations. In only
one instance , however, the Kanawha District Agreement
of 1941, did the Union obtain an agreement prohibiting
subcontracting.
As recited, Owens testified for the Union that (1) the 80-
cent provision had its origin in a union proposal that
signatory operators pay into the Fund the sum of $1 on
each ton of coal purchased from a nonsignatory, the
objective having been to preserve work opportunities by
preventing or limiting subcontracting, and (2) upon
agreement on the 80-cent provision, it was inserted in the
contract "in lieu of" the Protective Wage Clause which
had been held to contravene Section 8(e). As recited also.
however, Owens was not a candid witness and his
testimony discloses practically nothing of the details of the
negotiations.
The 80-cent provision does not expressly ban the
purchase of nonsignatory coal by a signatory. It does,
however, constitute a restriction upon a signatory's
purchase of such coal, while freely permitting the
purchase of signatory coal, and BCOA says in its brief that
the provision constitutes a costly economic restraint that
was intended to induce a signatory to mine more coal
"wherever practicable" rather than to engage in
subcontracting. The provision applies to supplemental
coal as well as to substitute coal, however.
The Union asserts in its brief that the provision
does not in anywise restrict or prohibit a signatory's
purchase of coal from any coal producer except to the
extent of compensating the contract unit for the loss
of job opportunities and security attending the
purchase of nonsignatory coal. It does not restrict or
prohibit a purchasing signatory's employees from
handling purchased coal because produced by a non-
signatory. or one engaged in a labor dispute, or one in
disfavor with the contracting union , or because that
union labels the purchased coal as "hot." Nor does it
undertake to extend any provisions of the new
Agreement to employees of unorganized producers.
[Emphasis supplied.]
The term "contract unit ," as used in the above quotation,
means a unit coextensive with the signatories to the 1950
Agreement as amended during 1964.
The Respondents' position essentially is that the Union
did not have a dispute with a nonsignatory seller of coal
which the Union sought to resolve by closing the signatory
market to a nonsignatory; that instead the Union had a
dispute with any of BCOA's commercial operators who
were purchasing coal that their employees could have
MINE WORKERS OF AMERICA 475
mined, that the Union had like disputes with all other
signatories , and that the disputes were resolved bargaining
unit by bargaining unit, beginning with BCOA, by
adoption of the 80-cent provision as an economic restraint
on such purchases. Thereafter, any signatory in one
bargaining unit became free to buy from any signatory in
the same or another unit, and the buyer pays no penalty
because the seller already has paid 40 cents per ton. On
the other hand, a nonsignatory cannot sell to a signatory
unless the latter will bear the penalty or unless the
nonsignatory will lower the price of his coal so as to enable
the signatory to pay it.
We now consider the Union's and BCOA's position that
there is a single signatorywide unit. We approach the
problem by reference to two cases. In Orange Belt District
Council of Painters No. 48 (Calhoun Drywall Co.) v.
N.L.R.B., 328 F.2d 534, 538 (C.A.D.C.), the following
appears:
The key question presented by subcontracting
clauses in union agreements with general contractors
is whether they are addressed to the labor relations of
the subcontractor, rather than the general contractor.
If so, they are secondary. ... The test as to the
"primary" nature of ... subcontractor clause[s] .
[is] whether the clauses are "germane to the
economic integrity of the principal work unit" and
seek "to protect and preserve the work and standards
[the union] has bargained for," or instead "extend
beyond the [contracting] employer and are aimed
really at the union's difference with another
employer."
In Meat and Highway Drivers, etc., Local Union
No. 710, International Brotherhood of Teamsters v.
N.L.R.B., 335 F.2d 709, 713-714 (C.A.D.C.), the court said
that a labor organization may validly protect "unit" work
by seeking a contractual provision which would "remove
from the employer the temptation of cheap labor through
substandard contracting," and that
Resolution of the difficult issue of primary versus
secondary activity ... involves consideration of two
factors: (1) jobs fairly claimable by the bargaining
unit, and (2) preservation of those jobs for the
bargaining unit. If the jobs are fairly claimable by the
unit , they may, without violating either § 8(e) or §
8(b)(4)(A) or (B), be protected by provision for, and
implementation of, no-subcontracting or union
standards clauses in the bargaining agreements.
Activity and agreement which directly protect fairly
claimable jobs are primary under the Act. Incidental
secondary effects of such activity and agreement do
not render them illegal . Thus the "cease doing
business" language in § 8(e) cannot be read literally
because inherent in all subcontracting clauses, even
those admittedly primary, is refused to deal with at
least some contractors.
The Union, quoting from Orange Belt, argues that the
80-cent provision " is germane to the economic integrity of
the principal work unit" and seeks "to protect and
preserve the work" that the Union has bargained for. The
Union and BCOA, however, specifically disclaim any
contention that the employees of all signatories constitute
a single unit appropriate for the purposes of collective
bargaining, and the record is clear that there are numerous
bargaining units, some being association wide, some so
small as to consist of few employees. Nevertheless, both
BCOA and the Union argue that the work unit in this case
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should be found to be a unit of all employees of all
signatories. According to BCOA,
It is true that the [80-cent] clause does not provide
for the payment of eighty cents per ton on coal that
one signatory acquires from another signatory; but
this is wholly consistent with the Union's primary
objective in preserving work opportunities for UMWA
members. It naturally makes no difference to the
Union whether signatory operator A purchases coal
from signatory operator B since its interest is in
employees employed by signatory operators
generally. 15
The Union relies heavily upon the dissent of Board
Member Jenkins in the Supplemental Decision in
Galligan, 148 NLRB 249 at 256-260. Member Jenkins
said:
The welfare fund is administered under a single
agreement, nationwide in scope, and separate from
any agreement covering wages, hours, and other
working conditions. It is executed by all employers
having agreements with the Union and provides for a
single system of administration, of employer
contributions, and eligibility and level of benefits for
all employees. In these circumstances it would
appear, contrary to the view of my colleagues, that
there exists a single industrywide bargaining unit for
welfare fund matters....
Whether the [80-cent] clause be considered a
prohibition on subcontracting work to those outside
this broad unit who make no welfare fund
contributions, or simply a requirement that the
welfare fund contributions be maintained for coal
which is subcontracted, the effect is to preserve this
work standard against impairment through
subcontracting to those who are able to produce more
cheaply because they do not meet this standard.
Although the Union relies upon Member Jenkins' views,
it offered no evidence other than the 1950 Agreement and
amendments thereto that there is "a single system of
administration" of the Fund, "of employer contributions"
to it, and "of eligibility and level of benefits for all
employees." Indeed, when Dixie sought to establish the
contrary during presentation of its case-in-chief, both the
Union and BCOA objected. See footnote 14, supra. In any
event, the record precludes a finding that there is a
uniform contract unit. First, BCOA, in negotiating the
1964 amendments, acted on behalf of its members who are
commercial operators. Captive operators, some or all of
whom are BCOA members, are bound to pay into the Fund
40 cents on each ton of coal they mine, but are not parties
to the 80-cent provision. Second, Peabody Coal Company
(Peabody) is one of the largest operators in the world.
Employees at some of its mines are represented by the
Union; employees at its other mines are represented by
another labor organization. Peabody is a party to the 80-
cent provision with the exception that it pays nothing into
the Fund on coal from its mines at which employees are
represented by a labor organization other than the Union.
Therefore, a signatory buying coal from Peabody would
pay nothing into the Fund if the coal had been produced at
mines where the employees are represented by the Union
(because Peabody previously would have paid 40 cents per
ton on such coal), but would be obligated to pay 80 cents
" In Meat and Highway Drivers , etc., Local Union No 710,
Teamsters , 335 F 2d 709 at 716, the court said that "[a]n
additional reason for the Board 's decision is that the union's
per ton on coal produced at mines where the employees
are represented by another labor organization. Third,
some nonsignatories are bound by the 80-cent provision
while others are not. As we have seen, Davison, which is
Riverton's parent corporation, is a nonsignatory whose
employees are represented by a labor organization other
than the Union. But, as we also have seen, Davison is
bound by the provision because it is an affiliate of
Riverton.
Additional quotations from Member Jenkins' dissent in
Galligan are pertinent. He said:
Here the facts indicate that the Union had a direct
and substantial primary interest in protecting the
work of the employees involved. Upon reaching an
agreement with a major association of operators
[BCOA], the Union successfully negotiated
agreements with other groups of operators, and with
individual operators, which conformed to the initial
agreement. The Union's goal in so doing was to
achieve uniformity of conditions in its contracts; and
by this practice it has achieved and maintained such
uniformity since 1950. [Emphasis supplied.]
In this connection, BCOA says in its brief:
Without regard to bargaining units, the Union has an
undeniable interest in preserving Union standards
and conditions of employment, which are common to
all the employees of all signatory employers from
encroachment through the contracting out of coal
production. This objective of the UMWA is applicable
generally to all employees who work for signatory
operators whether they constitute a single unit or
several different units for bargaining purposes.
[Emphasis supplied.]
And the Union says in its brief:
[T]he issue of subcontracting was of a primary
nature [Emphasis in original] between UMW and
signatory operators in negotiating a collective
bargaining contract and the Union's purpose was to
protect the job opportunities and security provided
for, and the integrity of, the national, industry-wide
collective agreement and its work unit. This is
manifest from the fact that so long as coal is produced
by signatories under the national agreement's terms,
its integrity is maintained: wages and working
conditions are met, and the duty to pay the 40 cents a
ton arises "on the production of coal...." [Emphasis
supplied.]
The record in this proceeding precludes findings in
accord with the quotations immediately above from
Member Jenkins' dissent and the Respondents' briefs.
This is so because I sustained objections by BCOA and
the Union when Dixie offered evidence to establish that
the Union and some signatories have oral agreements
pursuant to which such signatories are permitted to pay
lower wages to employees and smaller payments into the
Fund than are provided for in the written agreements. See
footnote 14, supra. It follows that the quoted contentions of
BCOA and the Union may not be sustained unless first
Dixie is afforded an opportunity to try to prove the
contrary.
Turning to the Respondents' contention that the 80-cent
provision is intended to protect employees' job
opportunities, there are several defects in the contention.
object in bargaining for this clause was to aid union members
generally, rather than members of the unit We agree that such an
object is secondary. . '
INTERNATIONAL UNION UNITED MINE WORKERS OF AMERICA
First, assuming arguendo that payments into the Fund
constitute an appropriate method of compensation for loss
of work, there is no evidence that $1, the figure Owens
testified was the Union's initial proposal, or the contract
figure of 80 cents, or any other figure would be reasonable
compensation for such loss. There is evidence, however,
that the economic facts in the bituminous coal industry are
such that the obligation to pay 80 cents per ton on
nonsignatory coal has resulted, and will result still further
if the 80-cent provision should be fully enforced, in causing
nonsignatories to become signatories or to lose signatories
as a market for their coal. Second, in certain respects that
provision does not protect the jobs of employees of
signatories . A signatory is free under the contract to close
any portion, or all, of his mining operations, to discharge
his employees, and to fulfill his requirements for coal by
purchasing from signatories within or outside his
bargaining unit . Third, in respect to the contention that
jobs at the mine of one signatory are fairly claimable by
employees of another signatory, this contention might be
more persausive if the 80-cent provision were applicable
only to the purchase of substitute coal. The record
discloses that Riverton's employees may not fairly claim
the jobs of mining the coal that Riverton purchases.
Riverton mines coal to the limit of its financial ability, and
its purchases supplemental coal only. Moreover, Riverton
has been unable to purchase from signatories, at a price it
can afford, as much coal as it needs, and I know of no
theory consistent with the objectives of Section 8(e) under
which the jobs of mining coal for sale to Riverton are fairly
claimable by employees of signatories who will not sell to
Riverton at such a price.16
We have seen that the Respondents' position, as well as
the 80-cent provision , is phrased in terms of disputes
between the Union and signatory buyers. I find, however,
that that provision is really aimed at nonsignatory
sellers." Although the provision has not been fully
enforced, it has resulted in some nonsignatory sellers
becoming signatories in order to preserve markets
'fi Riverton has been purchasing coal since about 1947 and we
have seen that some purchases were made from operators to
whom Riverton had leased coal lands We have seen too that
Riverton has been a signatory for at least a decade. The Union, in
its brief, points to portions of the 1950 Agreement , as amended,
which have been recited above , and it argues that Riverton
covenanted that the Agreement "covered the operation of all coal
lands owned or held under lease by Riverton and that Riverton
`will not lease out any coal lands as a subterfuge for the purpose of
avoiding the application ' of the Agreements " The Union argues
further that "despite its covenant , Riverton leased to others
acreage it owned and subleased land it held under lease " and that
Riverton, "having so violated its covenant and purchased coal
from nonsignatones , producing coal on lands within the scope of
the Agreements and thereby depriving UMW members of job
opportunities of producing such coal as Riverton required, it now
attempts to employ such breach to condemn the [80-cent] clause
by which UMW sought to protect the job opportunities of its
members " This contention was not raised at the hearing and
witnesses for Riverton were not questioned about it Moreover,
Riverton has had no opportunity to respond to it Insofar as there
is evidence , however, it discloses that Riverton has mined coal to
the extent of its financial resources and that it still needs to buy
coal in order to meet its customers' demands
" Both the Union and BCOA objected at the hearing to the
admission of evidence concerning the effects of the 80-cent
provision upon the businesses of operators, including Riverton
and Dixie, contending that the secondary effects of the provision
are incidental to a contract that directly protects fairly claimable
jobs I believe , however, that the evidence concerning such
477
previously open to them,'" and it has caused some
signatories to cease purchasing nonsignatory coal in order
to avoid the penalty."' Other signatories who continue to
deal in nonsignatory coal are not, insofar as the record
discloses, complying with the 80-cent provision, and I
repeat that the economics of the bituminous coal industry
are such that, if and when the provision should be fully
enforced, many, if not all, nonsignatories will be faced with
two alternatives: to become signatories or to lose their
signatory customers . The provision is, in effect , an invalid
union-signatory clause.
In conclusion, I find that the term "principal work unit"
as used in Orange Belt, supra, and the terms "bargaining
unit" and "unit" as used in Meat and Highway Drivers,
etc., Local Union No. 710, Teamsters, supra, mean units
appropriate for the purposes of collective bargaining. I
find further that the "contract unit" urged by the
Respondents is not a unit appropriate for such purposes
(nor do the Respondents contend that it is ) and that the
adoption of the Respondents' theories concerning a
contract unit cannot be reconciled with the purposes of
Section 8(e) and the cases construing that section . Finally,
I conclude that BCOA, the Union, and District 17 violated
Section 8(e) of the Act by entering into agreements that
contain the 80-cent provisions.
L. The Violations of Section 8(b)(4)(i), (ii)(A) and (B)
Insofar as pertinent , Section 8(b) provides that it shall
be an unfair labor practice for a labor organization or its
agents:
(4)(i) to engage in, or to induce or encourage any
individual employed by any person engaged in
commerce or in an industry affecting commerce to
engage in, a strike ... or (ii) to threaten , coerce, or
restrain any person engaged in commerce or in an
industry affecting commerce, where in either case an
object thereof is:
(A) forcing or requiring any employer ... to
effects has probative value in determining whether that provision,
although phrased in terms of being aimed at the practices of
signatory buyers, in reality is aimed at the labor relations of
nonsignatory sellers. In Meat and Highway Drivers, etc , Local
Union No 710, Teamsters, 335 F 2d 709 at 716, the court said
To conclude that a contract term falling within the letter of §
8(e) properly falls within its prohibition, there must be either
a finding that both parties understood and acquiesced in a
secondary object for the term, or a finding that secondary
consequences within § 8 ( e)'s intendment would probably flow
from the clause, in view of the economic history and
circumstances of the industry, the locality, and the parties
In a later opinion in the same case , the court said that the
"operation " of a contractual provision may be considered in
determining whether it violates Sec. 8(e) 348 F 2d 803, 804
(C A D.C)
'" BCOA and the Union argue that they could lawfully have
negotiated a provision prohibiting subcontracting, as was
contained in the Kanawha District Agreement of 1941, and that
the 80-cent provision is merely less restrictive The fact, however,
is that an agreement which prohibits subcontracting places no
pressure upon a subcontractor to grant union recognition whereas
an agreement which permits subcontracting may place
substantial pressure upon a subcontractor to grant such
recognition.
" Although the 1964 amendments to the 1950 Agreement do
not expressly ban a signatory's purchase of nonsignatory coal, the
extra 40 cents per ton necessarily influences signatory buyers to
deal only with signatory sellers in any instance in which signatory
and nonsignatory sellers offer coal at comparable prices.
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
enter into any agreement which is prohibited by
section 8(e);
(B) forcing or requiring any person to cease ...
dealing in the products of any other producer ...
or to cease doing business with any other person.
As recited, the record contains a stipulation that the
Union, its Districts 17 and 28, and its Locals 6594 and 6937
induced and encouraged employees of Ames and
Buchanan to engage in strikes from July 13 through
August 22, 1964, objects of which were to force and
require Ames and Buchanan to become signatories to the
1964 amendments to the 1950 Agreement. The amended
consolidated complaint alleges that said Respondents
thereby violated Section 8(b)(4)(i) and (ii)(A).'0
As also recited, the record contains a stipulation that the
Union and its District 17 induced and encouraged
Riverton's employees to engage in a strike from April 10 to
15, 1964, an object of which was to force and require
Riverton to become a signatory to the 1964 amendments to
the 1950 Agreement. The amended consolidated
complaint alleges that said Respondents thereby violated
Section 8(b)(4)(i), (ii)(A) and (B).
It having been found that the 80-cent provision
contravenes Section 8(e), it follows that the allegations of
the amended consolidated complaint concerning the
conduct of the named labor organizations at the properties
of Ames, Buchanan, and Riverton are well founded. I so
find.
Upon the basis of the above findings of fact and upon the
entire record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. The Union, its Districts 17 and 28, and its Locals
6594 and 6937 are labor organizations within the meaning
of the Act.
2. BCOA, Dixie, Ames, Buchanan, and Riverton are
engaged in commerce within the meaning of the Act.
3. By entering into agreements containing the 80-cent
provision, BCOA, the Union, and District 17 have engaged
in unfair labor practices affecting commerce within the
meaning of Sections 8(e) and 2(6) and (7) of the Act.
4. By inducing and encouraging employees of Ames
and Buchanan to engage in strikes, and by threatening,
coercing, and restraining Ames and Buchanan with
objects of forcing and requiring Ames and Buchanan to
become signatories to the 80-cent provision, the Union, its
Districts 17 and 28, and its Locals 6594 and 6937 have
engaged in unfair labor practices affecting commerce
within the meaning of Sections 8(b)(4)(i) and (ii)(A) and 2(6)
and (7) of the Act.
5. By inducing and encouraging employees of Riverton
to engage in a strike, and by threatening, coercing, and
restraining Riverton with an object of forcing and
requiring Riverton to become a signatory to the 80-cent
provision, the Union and District 17 have engaged in unfair
labor practices affecting commerce within the meaning of
Sections 8(b)(4)(i), (ii)(A) and (B) and 2(6) and (7) of the Act.
6. The allegations of the amended consolidated
complaint that Respondents Hibbitts and Humphrey
engaged in unfair labor practices have not been sustained.
20 The charge in Case 5-CC-294 does not allege a violation of
subsection (B) of 8(b)(4) It does allege , as does the amended
consolidated complaint, that Respondents Hibbitts and
Humphrey participated in inducing and encouraging the strikes
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and pursuant to Section 10(c) of the Act
and in order to effectuate the Act's policies, I hereby
recommend that:
1. Bituminous Coal Operators Association, its officers,
agents, successors, and assigns , and International Union,
United Mine Workers of America, and District 17 of said
International Union, their respective officers, agents, and
representatives, shall cease and desist from:
(a) Maintaining, enforcing, or giving effect to the 80-
cent provision in the 1964 amendments to the National
Bituminous Coal Wage Agreement of 1950.
(b) Entering into, maintaining , giving effect to, or
enforcing any other contract or agreement, express or
implied, whereby any signatory operator ceases or
refrains, or agrees to cease or refrain, from handling,
using, selling, transporting, or otherwise dealing in any of
the products of any other employer, or from doing business
with any other person, in violation of Section 8(e) of the
Act.
2. International Union, United Mine Workers of
America, and District 17, their respective officers, agents,
and representatives, shall additionally cease and desist
from:
(a) Inducing or encouraging employees of Riverton Coal
Company, or any other employer, to engage in a strike or a
refusal in the course of their employment to perform any
services.
(b) Threatening, coercing, or restraining said Riverton,
or any other employer, where in either case an object is to
force or require said Riverton, or any other employer, to
enter into an agreement which is prohibited by Section
8(e), or to cease dealing in the products of any other
producer or to cease doing business with any other person.
3. District 28 and Locals 6594 and 6937 of said
International Union, their respective officers, agents, and
representatives, shall cease and desist from:
(a) Inducing or encouraging employees of Ames Coal
Company, Buchanan County Coal Corporation, or any
other employer, to engage in a strike or a refusal in the
course of their employment to perform any services.
(b) Threatening, coercing, or restraining said Ames or
Buchanan, or any other employer, where in either case an
object is to force or require said Ames or Buchanan, or any
other employer, to enter into an agreement which is
prohibited by Section 8(e).
4. The Respondents named in paragraphs 1, 2, and 3
above (i.e., all Respondents in this proceeding except
Hibbitts and Humphrey), shall take the affirmative action
set forth below in subparagraphs of this paragraph and in
paragraph 5 which is necessary to effectuate the policies
of the Act. Copies of all notices described below are to be
prepared by the Regional Director for Region 5. Each
Respondent, upon receipt of its notices from the Regional
Director, shall immediately have its notices signed by its
representative and shall thereafter immediately post same
at the places described below. Each Respondent shall also
maintain its notices for at least 60 consecutive days after
posting and shall take reasonable steps to ensure that
same are not altered, defaced, or covered by any material.
against Ames and Buchanan, but there is neither a stipulation nor
evidence concerning the alleged conduct of Hibbitts and
Humphrey, and the allegations respecting those two individuals
will be dismissed
INTERNATIONAL UNION UNITED MINE WORKERS OF AMERICA
(a) Said Association and International Union shall post
copies of the attached notice marked "Appendix C," in
conspicuous places at each jobsite of each commercial
operator who is a member of said Association and in said
International Union's business offices and meeting halls,
including all places where notices to employees and union
members customarily are posted."
(b) Said Association and International Union shall,
promptly after receipt of copies of Appendix C from the
Regional Director, return to him signed copies for posting
by Dixie Mining Company, if Dixie be willing, at all places
where notices to Dixie's employees customarily are
posted.22
(c) Said International Union and District 17 shall post
copies of the attached notice marked "Appendix D," in
conspicuous places in these Respondents' business offices
and meeting halls, including all places where notices to
members customarily are posted. 2-1
(d) Said International Union and District 17 shall,
promptly after receipt of copies of Appendix D from the
Regional Director, return to him signed copies for posting
by Davison Fuel and Dock Company and said Riverton,
Ames, and Buchanan, if those employers be willing, at all
places where notices to their respective employees
customarily are posted. 4
(e) Said District 28 and Locals 6594 and 6937 shall post
copies of the attached notice marked "Appendix E," in
conspicuous places in these Respondents' business offices
and meeting halls, including all places where notices to
members customarily are posted."'
(f) Said District 28 and Locals 6594 and 6937 shall,
promptly after receipt of copies of Appendix E from the
Regional Director, return to him signed copies for posting
by said Ames and Buchanan, if those employers be willing,
at all places where notices to their respective employees
customarily are posted.''
5. Each of the Respondents named in paragraph 1, 2,
and 3 above shall notify said Regional Director, in writing,
within 20 days from the receipt of this Decision, what steps
it has taken to comply herewith. 7
IT IS FURTHER RECOMMENDED that the amended
consolidated complaint be dismissed insofar as it alleges
that Respondents Hibbitts and Humphrey engaged in
unfair labor practices.
APPENDIX A
UNITED MINE WORKERS OF AMERICA WELFARE
AND RETIREMENT FUND OF 1950
A. It is hereby stipulated and agreed by the contracting
parties hereto that there is hereby created a Fund to be
designated and known as the "United Mine Workers of
America Welfare and Retirement Fund of 1950." During
the life of this Agreement, there shall be paid into such
Fund by each operator signatory hereto the sum of thirty
cents (30 cents) per ton of two thousand (2,000) pounds on
each ton of coal produced for use or for sale. Such Fund
21 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
21 Fn 21,supra
2i Fn 21,supra
479
shall have its place of business in Washington, District of
Columbia, and it shall be operated by a Board of Trustees,
one of whom shall be appointed as a representative of the
Employers, one of whom shall be appointed as a
representative of the United Mine Workers of America
and one of whom shall be a neutral party, selected by the
other two. In the event of resignation, death, inability or
unwillingness to serve of the Trustee appointed by the
Operators or the Trustee appointed by the United Mine
Workers of America, the Operators shall appoint the
successor of the Trustee originally appointed by them and
the United Mine Workers of America shall appoint the
successor of the Trustee originally appointed by it.
The Operators signatory hereto do hereby appoint
Charles A. Owen, of New York City, as their
representative on said Board of Trustees. The United
Mine Workers of America do hereby appoint John
L. Lewis, of Washington, D.C., as its representative on
said Board of Trustees. It is further stipulated and agreed
by the joint contracting parties that Josephine Roche, of
Denver, Colorado is appointed as the neutral Trustee. Said
three Trustees so named and designated shall constitute
the Board of Trustees to administer the Fund herein
created.
In the event of a deadlock on the designation or
agreement as to any further neutral Trustee, an impartial
umpire shall be selected either by agreement of the two
Trustees, representatives of the contracting parties
hereto, or by petition by either of the contracting parties
hereto to the United States District Court for the District
of Columbia for the appointment of such an impartial
umpire, all as made and provided in Section 302(c) of the
"Labor-Management Relations Act, 1947."
It is agreed by the contracting parties hereto that the
Trustees herein provided for shall serve for the duration of
this contract and as long thereafter as the proper
continuation and adminstration of said trust shall require.
It is agreed that this Fund is an irrevocable trust created
pursuant to Section 302(c) of the "Labor-Management
Relations Act, 1947," and shall endure as long as the
purposes of its creation shall exist. Said purposes shall be
to make payments from principal or income or both, of
(1) benefits to employees of said Operators, their families
and dependents for medical or hospital care, pensions on
retirement or death of employees, compensation for
injuries or illness resulting from occupational activity or
insurance to provide any of the foregoing, or life insurance,
disability and sickness insurance or accident insurance;
(2) benefits with respect to wage loss not otherwise
compensated for at all or adequately by tax supported
agencies created by federal or State law: (3) benefits on
account of sickness, temporary disability, permanent
disability, death or retirement; (4) benefits for any and all
other purposes which may be specified, provided for or
permitted in Section 302(c) of the "Labor-Management
Relations Act, 1947," as agreed upon from time to time by
the Trustees including the making of any or all the
2' Fn 21, supra
21 Fn 21,supra.
Fit 21, supra
If this Recommended Order is adopted by the Board, this
provision shall be modified to read "Each of the Respondents
named in paragraphs 1. 2. and 3 above shall notify Said Regional
Director , in writing , within 10 days from the date of this Order,
what steps it has taken to comply herewith "
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foregoing benefits applicable to the individual members of
the United Mine Workers of America and their families
and dependents, and to employees of the Operators other
than those exempted from this Agreement; and
(5) benefits for all other related welfare purposes as may
be determined by the Trustees within the scope of the
provisions of the aforesaid "Labor-Management Relations
Act, 1947." Subject to the stated purposes of this Fund,
the Trustees shall have full authority, within the terms and
provisions of the "Labor-Management Relations Act,
1947," and other applicable law, with respect to questions
of coverage and eligibility, priorities among classes of
benefits, amounts of benefits, methods of providing or
arranging for provisions for benefits, investment of trust
funds, and all other related matters.
The aforesaid Trustees shall designate a portion (which
may be changed from time to time) of the payments herein
provided, based upon proper actuarial computations, as a
separate fund to be administered by the said Trustees
herein described and to be used for providing for pensions
or annuities for the members of the United Mine Workers
of America or their families or dependents and such other
persons as may be properly included as beneficiaries
thereunder.
It is further agreed that the detailed basis upon which
payment from the Fund will be made shall be resolved in
writing by the aforesaid Trustees at their initial meeting,
or at the earliest practicable date that may by them
thereafter be agreed upon.
Title to all the moneys paid into and or due and owing
said Fund shall be vested in and remain exclusively in the
Trustees of the Fund, and it is the intention of the parties
hereto that said Fund shall constitute an irrevocable trust
and that no benefits or moneys payable from this Fund
shall be subject in any manner to anticipation, alienation,
sales, transfer, assignment, pledge, encumbrance or
charge, and any attempt so to anticipate, alienate, sell,
transfer, assign, pledge, encumber or charge the same
shall be void. The moneys to be paid into said Fund shall
not constitute or be deemed wages due to the individual
mine workers, nor shall said moneys in any manner be
liable for or subject to the debts, contracts, liabilities or
torts of the parties entitled to such money, i.e., the
beneficiaries of said Trust under the terms of this
Agreement.
The obligation to make payments to the "United Mine
Workers of America Welfare and Retirement Fund of
1950" under this contract shall become effective on
March 6, 1950, and the first actual payments are to be
made on April 10, 1950, and thereafter continuously on the
10th day of each succeeding calendar month covering the
production of all coal for use or sale during the preceding
month.
It is stipulated and agreed by the contracting parties
hereto that the Trustee designated by the United Mine
Workers of America shall be the Chairman of the Trustees
of the Fund provided for in this Agreement.
It shall be the duty of the Operators signatory hereto,
and each of them, to keep said payments due said Fund, as
hereinabove described and provided for, current and to
furnish to the United Mine Workers of America and to the
Trustees hereinabove designated a monthly statement
showing the full amount due hereunder for all coal
produced for use or for sale from each of the several
individual mines owned or operated by the said Operators
signatory hereto. Payments to said Fund shall be made by
check payable to "United Mine Workers of America
Welfare and Retirement Fund of 1950" and shall be
delivered or mailed to the office of said Fund located at
907 Fifteenth Street, N.W., Washington, D.C., or as
otherwise designated by the Trustees.
It is stipulated and agreed by the contracting parties
hereto that an annual audit of the Fund hereinabove
described shall be made by competent authorities to be
designated by the Trustees of said Fund. A statement of
the results of such audit shall be made available for
inspection of interested persons at the principal office of
the Trust Fund and at such other places as may be
designated by the Trustees.
Failure of any Operator signatory hereto make full and
prompt payments to the "United Mine Workers of
America Welfare and Retirement Fund of 1950" in the
manner and on the dates herein provided shall, at the
option of the United Mine Workers of America, be deemed
a violation of this Agreement. This obligation of each
Operator signatory hereto, which is several and not joint,
to so pay such sums shall be a direct and continuing
obligation of said Operator during the life of this
Agreement and it shall be deemed a violation of this
Agreement if any mine to which this Agreement is
applicable shall be sold, leased, sub-leased, assigned, or
otherwise disposed of for the purpose of avoiding the
obligation hereunder.
Action which may be required hereunder by the
Operators for the appointment of a successor Trustee
representing them, or which may be required in
connection with any other material hereunder, may be
taken by those Operators who at the time are parties
hereto, and authorization, approval, or ratification of
Operators representing fifty-one percent (51%) or more of
the coal produced for use or sale during the calendar year
previous to that in which the action is taken shall be
sufficient and shall bind all Operators.
B. It is hereby stipulated and agreed by the contracting
parties with respect to the Fund created by the National
Bituminous Coal Wage Agreement of 1947:
(1) The Operators signatory hereto agree to make
payments into said Fund on or before March 15, 1950, on
account of all coal produced for use or sale up to and
including March 6, 1950, with respect to which payment
has not heretofore been made, such payments on the basis
heretofore made by said Operators under the National
Bituminous Coal Wage Agreement of 1947 and the
National Bituminous Coal Wage Agreement of 1948,
whichever is applicable.
(2) The Operators signatory hereto hereby renounce
and forever release any and all claim to or interest in
payments made into the said 1947 fund.
(3) The Trustees appointed pursuant to this Agreement
are hereby authorized and directed to accept into the new
trust fund hereby created and to devote for the purposes
hereinabove specified and enumerated, any and all trust
funds remaining unexpended or unobligated in said 1947
trust fund.
(4) The parties hereto agree that the best interest of the
beneficiaries of said trust fund would be served by having
all unexpended or unobligated funds therein transferred as
above provided, and agree that the Trustees thereof
should transfer such funds to the new trust fund created
by this Agreement.
C. It is stipulated, understood and agreed by the
contracting parties hereto that the present practices with
respect to wage deductions and their use for provision of
medical, hospital, and related services shall continue
during the terms of this contract or until such earlier date
INTERNATIONAL UNION UNITED MINE WORKERS OF AMERICA 481
or dates as may be agreed upon by the United Mine
Workers of America and any Operator signatory hereto.
D. It is the intent and purpose of the contracting parties
hereto that full cooperation shall by each of them be given
to each other, the Trustees named under this Section and
to all affected Mine Workers to the eventual coordination
and development of policies and working agreements
necessary or advisable for the effective operation of this
Fund.
APPENDIX B
purpose of avoiding the application of this Agreement or
any section, paragraph or clause thereof."
APPENDIX C
NOTICE TO ALL SIGNATORY OPERATORS TO THE
NATIONAL BITUMINOUS COAL WAGE AGREEMENT OF
1950, AS AMENDED DURING 1964, AND THEIR
EMPLOYEES; TO ALL MEMBERS, OFFICERS, AND AGENTS
OF INTERNATIONAL UNION, UNITED MINE WORKERS OF
AMERICA; AND TO DIXIE MINING COMPANY AND ITS
EMPLOYEES
UNITED MINE WORKERS OF AMERICA WELFARE
AND RETIREMENT FUND OF 1950
Amend the first printed paragraph of subsection A of
this clause by striking out all of the second sentence
beginning with the word "During" and ending after the
word "sale" and inserting in lieu thereof the following:
"During the life of this agreement there shall be paid into
such Fund by each Operator signatory hereto the sum of
forty cents (40 cents) per ton of two thousand (2,000)
pounds on each ton of bituminous coal produced by such
Operator for use or for sale. On all bituminous coal
procured or acquired by any signatory Operator for use or
for sale, (i.e., all bituminous coal other than that produced
by such signatory Operator) there shall, during the life of
this Agreement, be paid into such Fund by each such
Operator signatory hereto or by any subsidiary or affiliate
of such Operator signatory hereto the sum of eighty cents
(80 cents) per ton of two thousand (2,000) pounds on each
ton of such bituminous coal so procured or acquired on
which the aforesaid sum of forty cents (40 cents) per ton
had not been paid into said Fund prior to such
procurement or acquisition.
Amend the eleventh printed paragraph of subsection A
by substituting a semicolon for the period at the end of the
first sentence and adding the following: "together with a
monthly statement showing the full amount due hereunder
on all bituminous coal procured or acquired from any
mine, preparation plant or facility other than those owned
or operated by such signatory Operator, all as hereinabove
set out and provided."
Amend the second sentence of the thirteenth printed
paragraph of subsection A by inserting a comma after the
word "mine" and then adding the following: "preparation
plant or other facility" and further amend the thirteenth
paragraph by striking out the words "obligation
hereunder" at the end of the paragraph and substituting in
lieu thereof the following: "any of the obligations
hereunder."
APPLICATION OF CONTRACT TO COAL LANDS
Amend the section denominated "Application of
Contract to Coal Lands" by striking out the language of
that section and inserting in lieu thereof the following:
"As part of the consideration for this agreement, the
Operators signatory hereto agree that this Agreement
covers the operation of all of the coal lands, coal producing
and coal preparation facilities owned or held under lease
by them, or any of them, or by any subsidiary or affiliate at
the date of this Agreement, or acquired during its term
which may hereafter (during the term of this Agreement)
be put into production or use. The Operators agree that
they will not lease, license or contract out any coal lands,
coal producing or coal preparation facilities for the
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT maintain, enforce, or give effect to
the 80-cent provision in the 1964 amendments to the
National Bituminous Coal Wage Agreement of 1950.
WE WILL NOT enter into, maintain, give effect to, or
enforce any other contract or agreement, express or
implied, whereby any signatory operator ceases or
refrains, or agrees to cease or refrain, from handling,
using, selling, transporting, or otherwise dealing in
any of the products of any other employer, or from
doing business with any other person, in violation of
Section 8(e) of the Act.
BITUMINOUS COAL
OPERATORS ASSOCIATION
(Employer)
Dated By
(Representative) (Title)
INTERNATIONAL UNION,
UNITED MINE WORKERS OF
AMERICA
(Labor Organization)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If anyone has any question concerning this notice or
whether the Association or the International Union is
complying with its provisions, he may communicate
directly with the Board's Regional Office, 707 North
Calvert Street, Baltimore, Maryland 21202, Telephone
752-2159.
APPENDIX D
NOTICE TO ALL OUR MEMBERS, OFFICERS AND AGENTS;
AND To DAVISON FUEL AND DOCK COMPANY, RIVERTON
COAL COMPANY, AMES COAL COMPANY, BUCHANAN
COUNTY COAL CORPORATION, AND THEIR EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT maintain, enforce, or give effect to
the 80-cent provision in the 1964 amendments to the
National Bituminous Coal Wage Agreement of 1950.
482 DECISIONS OF NATIONAL
WE WILL NOT enter into , maintain , give effect to, or
enforce any other contract or agreement , express or
implied , whereby any signatory operator ceases or
refrains , or agrees to cease or refrain, from handling,
using , selling , transporting , or otherwise dealing in
any of the products of any other employer, or from
doing business with any other person, in violation of
Section 8 (e) of the Act.
WE WILL NOT induce or encourage employees of
any employer to engage in a strike or a refusal in the
course of their employment to perform any services,
nor will we threaten, coerce , or restrain any employer
with an object of forcing or requiring an employer to
enter into an agreement which is prohibited by
Section 8 ( e), or to cease dealing in the products of any
other producer or to cease doing business with any
other person.
INTERNATIONAL UNION,
UNITED MINE WORKERS OF
AMERICA
(Labor Organization)
Dated By
(Representative ) (Title)
UNITED MINE WORKERS OF
AMERICA, DISTRICT 17
(Labor Organization)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
If anyone has any question concerning this notice or
whether the International Union or District 17 is
complying with its provisions , he may communicate
directly with the Board ' s Regional Office , 707 North
Calvert Street , Baltimore, Maryland 21202 , Telephone
752-2159.
APPENDIX E
NOTICE TO ALL OUR MEMBERS , OFFICERS AND AGENTS;
LABOR RELATIONS BOARD
AND TO AMES COAL COMPANY , BUCHANAN COUNTY
COAL CORPORATION , AND THEIR EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act , as amended , we hereby notify you that:
WE WILL NOT induce or encourage employees of
the above -named employers , or any other employer,
to engage in a strike or a refusal in the course of their
employment to perform any services , nor will we
threaten, coerce , or restrain said employers, or any
other employer , with an object of forcing or requiring
an employer to enter into an agreement which is
prohibited by Section 8(e).
UNITED MINE WORKERS OF
AMERICA, DISTRICT 28
(Labor Organization)
Dated
Dated
By
(Representative ) (Title)
LOCAL 6594 , UNITED MINE
WORKERS OF AMERICA
(Labor Organization)
By
(Representative ) (Title)
LOCAL 6937, UNITED MINE
WORKERS OF AMERICA
(Labor Organization)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
If anyone has any question concerning this notice or
whether District 28, Local 6594 , or Local 6937 is
complying with its provisions , he may communicate
directly with the Board 's Regional Office , 707 North
Calvert Street , Baltimore , Maryland 21202 , Telephone
752-2159.