Logan County Airport Contractors

National Labor Relations Board - Board Decisions

Dec 13, 1991

305 N.L.R.B. 854 (N.L.R.B. 1991)

854
305 NLRB No. 123
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent contends, inter alia, that the judge’s conduct of
the hearing and his findings are tainted with bias, hostility, and prej-
udice against the Respondent. We find these allegations to be with-
out merit. On our full review of the record and the decision of the
judge, we perceive no evidence that he prejudged the case, made
prejudicial ruling, or demonstrated bias, hostility, and prejudice
against the Respondent’s counsel or its witness. We further find no
evidence of partiality in the judge’s analysis and discussion of the
evidence or in his findings.
2 While he is in agreement with the judge’s reasoning that various
complaint allegations are not barred by Sec. 10(b), Member Devaney
notes that he dissented in A & L Underground, 302 NLRB 467
(1991), cited by the judge at sec. III,G,3, of his decision.
1 The General Counsel’s request to amend the complaint to include
this allegation was granted at the hearing. In doing so, it was noted
that this represented a nonsubstantive change, for, in cases involving
abrogation of an entire agreement, reimbursement of fringe contribu-
tions is a part of the standard remedy. See, e.g., Hawg-N-Action,
Inc., 281 NLRB 56 (1986).
2 The complaint, as written, included an allegation that the Re-
spondent further violated Sec. 8(a)(5) by canceling medical insurance
coverage for retirees. At the hearing, the General Counsel’s request
to delete this allegation was denied based on my erroneous recollec-
tion that, with respect to midterm modification of a collective-bar-
gaining agreement, Sec. 8(d) fails to distinguish between mandatory
and permissive subjects of bargaining. Although not disabused of
that notion by any party, having, sua sponte, reexamined Allied
Chemical Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S.
157 (1971), it is clear that the Supreme Court has ruled otherwise.
404 U.S. at 185. Accordingly, having reconsidered the matter, the
General Counsel’s request is granted, and the allegation in ques-
tioned is dismissed as beyond the Board’s remedial authority.
3 A few days prior to issuance of this decision, the Respondent,
pursuant to Sec. 102.37 of the Board’s Rules and Regulations,
moved that I disqualify myself from this proceeding. My reasons for
denying this motion are set forth below under sec. IV.
4 Certain errors in the transcript are noted and corrected.
Logan County Airport Contractors and Inter-
national Union, United Mine Workers of
America, AFL–CIO and United Mine Workers
of America, District 17. Case 9–CA–27908
December 13, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On July 31, 1991, Administrative Law Judge Joel A.
Harmatz issued the attached decision. The Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Logan County Airport
Contractors, Ethel, West Virginia, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
Deborah Grayson, Esq., for the General Counsel.
Charles L. Wood and Edward W. Rugeley III, Esqs.
(Spilman, Thomas, Battle & Klostermeyer), of Charleston,
West Virginia, for the Respondent.
Charles F. Donnelly, Esq., of Charleston, West Virginia, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge. This case
was tried in Charleston, West Virginia, on May 2, 1991, on
an original unfair labor practice charge filed on October 5,
1990, and a complaint issued on March 6, 1991, alleging that
the Respondent violated Section 8(a)(5) and (1) of the Act
by unilaterally terminating its collective-bargaining agree-
ment with the Charging Parties, and by discontinuing con-
tributions to the UMWA Pension and Welfare Funds1 and by
refusing to arbitrate grievances.2 In its duly filed answer, the
Respondent denied that any unfair labor practices were com-
mitted, affirmatively alleging that the events in issue are
time-barred by virtue of Section 10(b) of the Act, and that,
in any event, an unlawful strike constituted a material breach
of the agreement, thereby allowing the Respondent to termi-
nate. Following close of the hearing, briefs were filed on be-
half of the General Counsel and the Respondent.3
On the entire record,4 including my opportunity directly to
observe the witnesses while testifying and their demeanor,
and after considering the posthearing briefs, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Respondent is an operating arm or trade name of
Geupel Construction, Inc., an Ohio corporation, with a prin-
cipal place of business in Columbus, Ohio. It is engaged in
the mining of coal at a site in Ethel, West Virginia. In the
course of that operation, the Respondent, during calendar
year 1989, a representative period, purchased and received at
its West Virginia facility goods and materials valued in ex-
cess of $50,000 directly from points located outside the State
of West Virginia.
855LOGAN COUNTY AIRPORT CONTRACTORS
5 The Respondent has admitted to the accuracy of the above data.
The Board asserts jurisdiction based on commerce data derived from
‘‘the most recent complete fiscal year preceding the unfair labor
practices.’’ Reliable Roofing Co., 246 NLRB 716 fn. 1 (1979). Pur-
suant to that authority, 1989 offers the appropriate source for the ju-
risdictional determination in this proceeding.
6 G.C. Exhs. 2(a), (b), and (c).
7 G.C. Exh. 3.
8 G.C. Exh. 5. The Respondent’s contention that the evidence fails
to show ratification of that agreement is treated below.
9 The Respondent denied that the unit set forth in the complaint
was appropriate for collective bargaining. That deemed appropriate
herein is the established unit defined in the Wage Agreements volun-
tarily executed by the Respondent in the past, excluding certain cat-
egories that, pursuant to agreement of the parties, did not pertain to
the Respondent’s operation. No evidence was presented tending to
rebut the presumptive appropriateness of the historic, contractual bar-
gaining unit. Barrington Plaza, 185 NLRB 962 fn. 5 (1970), enfd.
in pertinent part 470 F.2d 669 (9th Cir. 1972).
10 Apparently, District 17 did not take similar action. As I under-
stand the testimony of Robert Phalan, the president of District 17,
due to oversight on the part of its Subdistrict 3 in Logan, West Vir-
ginia, blank copies of the 1988 National Agreement were not for-
warded to the Respondent for signature.
11 R. Exh. 5.
12 Sec. 302(a) of the Labor Management Relations Act also makes
it unlawful for an employer to make such payments, unless ‘‘the de-
tailed basis on which such payments are to be made are specified
in a written agreement.’’
On the foregoing, it is concluded that the Respondent is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.5
II. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, the answer admits, and I find that
the International Union, United Mine Workers of America,
AFL–CIO, and United Mine Workers of America, District 17
(the Union) are labor organizations within the meaning of
Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
This case relates to an alleged repudiation of the obliga-
tions incurred by the Respondent under the 1988 version of
the National Bituminous Coal Wage Agreement (the Wage
Agreement), a document which in large measure defines the
employment terms of organized labor in the coal fields of
West Virginia and elsewhere. In addition to outright rescis-
sion, the complaint charges the employer with repudiation of
specific terms including: 1. Arbitration; 2. Contributions to
benefit trust funds.
The Respondent defends on a number of grounds, both
procedural and substantive. First, the Respondent asserts that
it did not sign and, hence, was never bound to the 1988
Wage Agreement during times material to this proceeding.
Alternatively, the Respondent argues that if it was, it was
privileged to annul the agreement when the Union unlawfully
struck its premises, conduct constituting a material breach of
contract. Finally, the Respondent asserts that Section 10(b)
bars all alleged unfair labor practices because the Union was
aware that the Respondent had repudiated the agreement
more than 6 months prior to the filing of any appropriate un-
fair labor practice charge.
B. The Contractual History
Between October 1986 and November 1990, the Respond-
ent was engaged in the production of coal, using about 15
employees at a site in Logan County, West Virginia. In con-
nection with that operation, on October 9, 1986, it executed
the 1984 National Bituminous Coal Wage Agreement,6 to-
gether with a memorandum of understanding exempting it
from royalty payments until expiration on January 31, 1988.7
On January 29, 1988, the Respondent executed an interim
agreement, which protected it against strike action in the
event that renewal of the Wage Agreement was not achieved
prior to expiration of the 1984 contract. (G.C. Exh. 4.) In ad-
dition, the interim agreement included the following:
The Employer and the Union agree to be bound by
and comply fully with the terms and conditions of the
agreement successor to the 1984 National Agreement
negotiated between the United Mine Workers of Amer-
ica and the Bituminous Coal Operators Association
(BCOA) as ratified by the UMWA membership (here-
after ‘‘the Successor National Agreement’’);
Such Successor National Agreement will be prompt-
ly executed between the parties hereto following an af-
firmative ratification vote by the UMWA membership.
Its terms and conditions will apply to all employees,
mines and facilities which are covered by the 1984 Na-
tional Agreement.
Ultimately an accord upon a successor agreement was
reached, and, on February 1, 1988, the new National Agree-
ment came into effect.8 Although the Respondent contends
otherwise, as shall be seen, until at least June 12, 1989, its
terms were observed, with the Respondent continuing to
check off dues, remitting them to the Union, while for-
warding contributions to the Trust Fund that administers em-
ployee benefits in the area of health and retirement.9
Following the effective date of the 1988 Wage Agreement,
the Respondent was reminded, from several sources, of its
obligation to execute that document. The Respondent’s direc-
tor of human resources, Mark Potnick, testified that some-
time in 1988, the International Union presented the Respond-
ent the Wage Agreement the Respondent for signature.10 Al-
though required by the interim agreement to sign, the Re-
spondent did not comply.
By letter of July 15, 1988, a representative of the United
Mine Workers of America (UMWA) Health and Retirement
Funds wrote the Respondent, acknowledging that the latter
had forwarded contributions on behalf of its employees, but
stating that it still had not received a signed copy of the
Wage Agreement. The letter also stated that under Section
303 of the Act, it is unlawful for the Funds to ‘‘accept pay-
ments . . . or award pension or benefit credit to employees
of such employers for which payments are made, unless . . .
the detailed basis on which such payments are to be made
are specified in a written agreement with the employer.’’11
As shall be seen, the Respondent delayed more than a year
in responding to that inquiry. During the interim, it continued
to make payments to the Fund.12
856 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 R. Exh. 4.
14 G.C. Exh. 6 and R. Exh. 7.
C. The June/July 1989 Walkout and the
Respondent’s Reaction
On or about June 13, 1989, ‘‘stranger’’ pickets appeared
at the Respondent’s premises. The latter’s employees hon-
ored the picket lines and ceased working. The stoppage con-
tinued in support of ‘‘memorial periods’’ declared by the
International Union between July 10–14, 1989. The employ-
ees failed to report for work for a total of some 20 days.
Employees were allowed to return to work, with none dis-
ciplined. The resumption of work was facilitated by the Re-
spondent’s notice, dated July 17, 1989, which by posting and
direct delivery to the employees and their ‘‘mine com-
mittee,’’ advised as follows:
You have reported for work and will be receiving
wages and health benefits as before (beginning today
and so long as you remain working), but please take
notice that we believe the recent wildcat strike was a
material breach of the Wage agreement by the UMWA.
As a part of our proper legal remedies, we are seeking
damages and a determination that a material breach of
the Wage Agreement has occurred. We, therefore, are
not waiving any of our legal rights and remedies by
reason of your returning to work.13
By letter of that same date, the Respondent’s attorney wrote
identical letters to Robert Phalan, president of District 17,
and Richard Trumka, the president of the UMWA, as fol-
lows:
Logan County Airport Contractors considers the re-
cent strikes by the UMWA and its members to be a
material breach of its collective bargaining agreement
with the UMWA. Accordingly, Logan County Airport
Contractors will seek a declaratory judgement deter-
mination on this issue in the appropriate forum. While
employees have returned to work, please take notice
that such return to work does not constitute a waiver
by Logan County Airport Contractors of its proper legal
rights and remedies. While pursuing a court declaration,
Logan County Airport Contractors will pay wages and
health benefits to currently employed individuals in ac-
cordance with the 1988 Wage Agreement.14
At the time of the walkout, the Respondent had not exe-
cuted the 1988 wage agreement—though in effect since Feb-
ruary 1, 1988—nor had it acknowledged or answered the
UMWA Trust Funds inquiry of July 15, 1988. On August 4,
1989, more than a year later, the Respondent, through its at-
torney, replied to the Fund’s letter, stating, in material part,
as follows:
Please be advised that Logan County Airport Con-
tractors has not signed a Wage Agreement with the
UMWA. Further, Logan County Airport Contractors
has determined that the recent illegal strike in District
17 and memorial period called without proper notice
constitute a material breach of any agreement (oral or
written) by and between Logan County Airport Con-
tractors and the UMWA. Logan County Airport Con-
tractors is currently seeking a legal declaration that
there is no agreement between the parties.
Until the court determines whether a material breach
has occurred, Logan County Airport Contractors will
execute no labor agreements and will escrow contribu-
tions to the Funds at the rate specified in the National
Bituminous wage Coal Agreement of 1988. Logan
County Airport Contractors hereby offers to make the
UMWA Health and Retirement Funds the escrow agent
upon execution of an appropriate escrow agreement. If
this is unacceptable to the Funds, please contact me,
and I will make other arrangements for the escrow.
While Logan County Airport Contractors will continue
to file the reports of hours for pension credit with the
Funds with the statement that funds will be withheld,
such filing should not be considered as acquiescence by
Logan County Airport Contractors of a material breach
by the UMWA. (R. Exh. 6.)
D. The Litigation; the November Meetings; and the
Withdrawal Memo
On October 3, 1989, the UMWA Benefit Fund instituted
an action in the U.S. District Court against the Respondent
for recovery of health and pension contributions, dating es-
sentially from July 1, 1989. As a counter to this action, the
Respondent filed a third-party complaint, pursuant to Sec-
tions 301 and 303 of the National Labor Relations Act,
which inter alia, sought relief as follows:
[a] declaratory judgment declaring the rights and other
legal relations of the . . . plaintiffs under the terms of
the 1987 Interim Agreement and that the 1988 Agree-
ment be terminated by reason of . . . defendants’ mate-
rial breaches. (G.C. Exh. 7.)
In support of that request, the third party complaint in-
cluded the following averments:
3. Third-party plaintiffs did not execute the 1988
Agreement but did comply with all terms and condi-
tions of the 1988 Agreement executed by the BCOA
and the UMWA International on February 1, 1988,
until the incidences set forth herein.
28. Third-party plaintiffs contend there is no valid
agreement between the parties and refuses to recognize
the existence of obligations arising out of the 1987 In-
terim Agreement and the 1988 Agreement after June
13, 1989, by reason of third-party defendants’ material
breach of the 1987 Interim Agreement and 1988 Agree-
ment.
In that same timeframe, the Respondent was negotiating
mining rights at Ridge Creek in Logan County, an area re-
ferred to as the Belva properties. Accordingly, at its request,
on November 9, 1989, a meeting was held at District 17
headquarters in Charleston, West Virginia, because the Re-
spondent wished to discuss the possibility of mining that site,
with an eye toward obtaining union assent to that venture.
The Respondent was represented by Mark Potnick, Fred
Lawson, and Jimmy Singleton. The meeting concluded with
the understanding that Phalan would contact Potnick on
Wednesday, November 15.
857LOGAN COUNTY AIRPORT CONTRACTORS
15 The Respondent’s filings in those actions are not a matter of
record, and hence the precise position expressed is not discernible
on this record.
16 G.C. Exh. 11.
17 G.C. Exh. 12. The plan to escrow contributions at best from the
Respondent’s point of view, presented an ambiguity. That step was
not inconsistent with the ongoing viability of the Wage Agreement.
It merely constituted an ancillary hedge against the possibility that
judicial approval of rescission might not be forthcoming.
18 R. Exh. 1.
19 R. Exh. 2.
Shortly thereafter, Phalan was served with the papers
impleading District 17 as third-party defendant in the above
lawsuit. He claims that he was infuriated, since the principals
had just discussed their relationship in positive terms. He did
not call Potnick as promised, but on Wednesday, Potnick
called him. Phalan advised the latter that he would not dis-
cuss the Belva properties until the lawsuit were resolved.
Potnick struck Phalan as surprised. Indeed, Potnick avers
that, at the time, he was unaware of the third-party court suit
against District 17. According to Phalan, Potnick requested
time to explore the matter, indicating he would call back the
next day. He did so, expressing a belief that the matter could
be worked out. Phalan indicated he would not talk with
Potnick until the lawsuit were resolved.
On November 17, 1989, Potnick, Lawson, and Singleton
again appeared at District 17 headquarters. Before discussing
the Belva properties, Phalan insisted that all three sign a doc-
ument, agreeing ‘‘to immediately withdraw or cause to be
withdrawn, with prejudice, the lawsuit now pending in the
U.S. District Court for the District of Columbia.’’ (G.C. Exh.
8.) They obliged.
Phalan testified that to his knowledge the lawsuit was dis-
missed against District 17. There is no evidence to the con-
trary. Potnick was unaware that any further lawsuit had been
filed contesting its obligation to comply with the Wage
Agreement. However, the ‘‘material breach’’ was raised as a
defense to the lawsuit by the Fund, and, as represented by
counsel, a second lawsuit on behalf of the retirees.15
E. The Changes in Benefits
The complaint alleges that the Respondent violated Section
8(a)(5) not only by its ultimate abrogation of the Wage
Agreement, but also by its unilateral termination of certain
benefits. There is no dispute that the Respondent discon-
tinued contributions to the benefit fund and terminated arbi-
tration. The following colloquy between the Respondent’s
counsel and Potnick, is indicative of what occurred:
Mr. Woody: [O]nce Logan County made the decision
that there had been a unilateral breach by the Union,
what . . . did Logan County do with respect to terms
of employment with its employees?
Mr. Potnick: Well, certain terms, in accordance with
our the contract no longer existed was breached and
then rescinded, certain items changed. One of these
items of course, would be contribution to the funds; an-
other one of those items would be retirement, health
benefits for . . . pensioners that came along. Another
item was . . . . arbitration.
The specific changes were not announced in advance or
communicated to employees generally. Potnick, who was fa-
miliar with the UMWA’s ‘‘no contract, no work’’ policy, ac-
knowledged that, as the case presented itself, the Company
would implement its position.
Moreover, as shall be seen, until the ‘‘late Spring or Sum-
mer of 1990,’’ there was no precise communication to the
Union suggesting that the Respondent would not, or had not,
abided by all terms of the Wage Agreement. To that point
in time, with the exception of the plan to escrow retirement
and health contributions, an intention disclosed solely to the
UMWA Health and Pension Funds, there apparently was not
a single noncompliance with any obligation imposed by that
contract.
During that period, however, Phalan received reports that
pensioners formerly employed by the Respondent did not
have medical insurance coverage. Mike Browning, the vice
president of District 17, testified that in the spring/summer
of 1990 he was detailed to the Logan, West Virginia Subdis-
trict office. He relates that in late May or early June, J. T.
Caldwell, one of the Respondent’s pensioners, appeared at
that office to complain that the Respondent had terminated
his medical benefits. Browning contacted Potnick, who con-
firmed that this was the case.
By letter dated June 8, 1990, Browning protested this
change, while warning that unilateral curtailment of ‘‘any
area’’ of the National Agreement would be unlawful. The
letter included the following request:
I am requesting that you provide me with informa-
tion on any modifications that you have made to the
contract which was signed by you. Such information is
needed by the union to determine what type of legal ac-
tion we should take in order to restore the benefits that
are due our members.16
This letter would produce the first clear and unambiguous
declaration that the Respondent had terminated the Wage
Agreement. Thus, by letter of June 18, 1990, the Respondent
replied through its attorney, indicating that documents pre-
viously furnished the Union ‘‘informed the Union of the ter-
mination of the wage agreement and the action planned by
Logan County,’’ going on to describe the notice posted on
July 17, 1989, quoted above, as stating that ‘‘as a result of
the material breach, the agreement was terminated.’’ Finally,
the letter states that the trust funds on August 4, 1989, were
notified that ‘‘Logan County was no longer bound by the ob-
ligations arising from the 1988 wage agreement.’’17 On July
23, 1990, the Union filed unfair labor practice charges in
Case 9–CA–27710 setting forth that the Respondent since
about May 31, 1990, had unilaterally ‘‘modified’’ the con-
tract.18 Browning testified that this was based upon the
cancelation of health benefits for pensioners. The charge was
withdrawn on September 11, 1990.19
In the meantime, on August 6, 1990, a third-step grievance
meeting was held. According to David Evans, a union field
representative, a deadlock resulted on one of the grievances.
Arbitration was initially scheduled, by mutual assent, for
mid-September. It would be postponed because of a conflict
with the International convention. Later in early October,
when the Union sought to reschedule the arbitration, the Re-
spondent, by letter dated October 2, 1990, replied:
858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 G.C. Exh. 15.
21 Any earlier noncompliances, while not entirely irrelevant, are
alien to the General Counsel’s case. For, they might well furnish a
foundation for a 10(b) defense. In other words, if the Respondent
had not implemented the 1988 Wage Agreement, and that fact was
communicated to the Union more than 6 months prior to the filing
of an unfair labor practice charge, the instant complaint would be
flawed insofar as it alleges violations incidental to the time-barred
event. However, the burden of showing this initial noncompliance,
together with notification, would fall upon the Respondent, not the
General Counsel. A & L Underground, 302 NLRB 467 (1991).
22 In fact, the Respondent continued to remit dues pursuant to
check off through December 1990. G.C. Exhs. 9 and 10.
Logan County Airport is not signatory to the 1988
Agreement, and furthermore took a legal position in
1989 known to the Union and its employees that the
strike occurring in 1989 was a material breach of the
agreement. . . . Therefore, the Employer has met its
obligations of processing this grievance through Step 3,
but is not agreeable or obligated to arbitrate this dis-
pute.20
On October 5, 1990, the Union filed the initial unfair labor
practice charge giving rise to the instant complaint (Case 9–
CA–27908) which was founded on the Company’s refusal to
process a grievance.
F. The Meetings of October 18 and November 1, 1990
In the meantime, during the fall of 1990, the Respondent
was investigating an additional site for mining potential (the
Laredo properties). Again desirous of union approval,
Potnick called Phalan, and arranged a meeting for October
18.
Because of a death in his family, Phalan did not attend.
The Union was represented by Michael Browning and Don
Riley. Potnick, Lawson, and Singleton were present for the
Respondent. Browning testified that he took this opportunity
to chastise management for cutting off the pensioners.
Potnick advised that there was no agreement in place, a posi-
tion described by Potnick as taken on advice of counsel. In
addition to discussing the Laredo properties, according to
Potnick, the Company sought to renegotiate certain terms of
the 1988 Wage Agreement.
That evening, Browning advised Phalan that the Respond-
ent had insisted that no contract was in place. According to
Browning, Phalan was ‘‘livid.’’
On November 1, 1990, the Union amended the original
charge in this proceeding, setting forth for the first time that
the Respondent had ‘‘abrogated’’ the Wage Agreement.
Another meeting was held at District 17 headquarters on
November 16, 1990. Potnick, Lawson, and Singleton again
attended on behalf of the Respondent. David Evans, a subdis-
trict field representative, accompanied Phalan. Phalan told
Potnick that three items had to be resolved before the Union
would discuss the Laredo properties: (1) The assertion that
no contract was in place, (2) the refusal to arbitrate and
honor grievances, and (3) the withdrawal of medical benefits
for retirees. According to Phalan, Potnick indicated that he
thought those issues could be resolved. The latter observed
that the National Agreement never had been signed and that
the Respondent would maintain its legal position concerning
the breach, but that they were willing to sign the agreements
retroactive to February 1, 1988, to reestablish medical cov-
erage for retirees, and honor the grievance procedure. The
Respondent then requested an exemption from contributions
into the 1950 benefit plan and trust. Phalan stated that this
was impossible as the Respondent was already bound to the
1988 National Agreement.
G. Concluding Analysis
1. The Respondent’s contractual obligation
The General Counsel has established that the Respondent
executed the 1987 interim agreement. Having done so, the
Respondent, in exchange for limited no-strike protection, in-
curred the obligation ‘‘to be bound by and comply fully with
the terms and conditions of the agreement successor to the
1984 National Agreement.’’
The Respondent contests this obligation upon several
grounds. For example, the 1988 wage agreement provided
that the accord was ‘‘to become effective only upon the con-
dition that it is ratified and approved by the membership’’
(G.C. Exh. 5, p. 238.) On this basis, the Respondent con-
tends that ‘‘The General Counsel did not establish whether
the Union ratified the 1988 NBCWA as a required contin-
gency for the effectiveness of that document.’’ The record
amply demonstrates that this was the case. The 1988 Wage
Agreement was identified by Phalan as the replacement for
the 1984 Wage Agreement, and was described by him as
‘‘the successor national agreement.’’ Phalan was in a posi-
tion to know just what the membership approved, and his
testimony, some 3 years after the fact, subsumed and is
broad enough to provide implicit assurance that the replace-
ment agreement, in fact, was ratified in 1988.
Next, it is argued that the General Counsel failed to estab-
lish that the Respondent ever actually applied the terms of
the 1988 Wage Agreement. In this respect, the Respondent
appears to misapprehend the General Counsel’s burden.
Thus, the violations in question are substantiated, prima
facie, simply upon a showing that the Respondent was bound
to the 1988 Wage Agreement, and that at the times specified,
the Respondent, without the Union’s assent, discontinued
contributions to the fund and arbitration, and, then, abrogated
the entire agreement.21
As shall be seen below, contrary to the Respondent’s
premise, the record unmistakably substantiates that the Re-
spondent complied with all terms of the 1988 wage agree-
ment until July 1989, and, at a minimum, subsequently used
that agreement as a guide as to all employment terms except
contributions to the health and retirement funds, health cov-
erage for retirees, and arbitration.22 Accordingly, the General
Counsel has established that the Respondent since February
1, 1988, and, presumptively, at all times thereafter, was obli-
gated to adhere to all terms of the 1988 wage Agreement,
and that its commitment to do so was cognizable under sec-
tion 8(d) of the Act.
859LOGAN COUNTY AIRPORT CONTRACTORS
23 Cf. Marathon Electric Mfg. Corp., 106 NLRB 1171, 1180–1181
(1953). The theories contained in the since withdrawn third party
complaint have not been advanced in support of the Respondent’s
position in this case. In any event, the 1988 Wage Agreement does
not contain a no-strike clause. And the Respondent has failed to
offer facts warranting an inference that such a limitation was con-
templated. See, e.g., Gateway Coal Co. v. Mine Workers, 414 U.S.
368 (1974); U.S. Steel Corp. v. Mine Workers, 548 F.2d 67 (3d Cir.
1976); Carbon Fuel Co. v. Mine Workers, 582 F.2d 1346 (4th Cir.
1978). The interim agreement offered such protection on the limited
and expired condition described below:
In the event the Union authorizes a strike against the BCOA
or any of its members upon the termination of the 1984 National
Agreement, the Union will not call such strike against the Em-
ployer. This pledge is made in return for this Employer’s prom-
ise to make the retroactive payments described in paragraph 4(b)
above and its agreement not to lockout any classified employees.
24 R. Exh. 2.
25 By virtue of that concept, Sec. 10(b) would not bar the Board
from finding an 8(d) violation where no charge had been filed for
more than 6 months after a clear repudiation of a contract. The ap-
propriate remedy, however, would afford no redress for breaches
prior to the 10(b) cutoff date. See Al Bryant, Inc., 260 NLRB 128,
135 (1982).
26 Under the interim agreement, the duty to execute the Wage
Agreement merely was one of two, distinct and entirely severable
provisions. Pursuant to each, the Respondent agreed to a distinct ob-
ligation. The renege on the obligation to sign, under no construction
of ordinary contract principles, would privilege the Respondent to
escape the duty to apply the terms and conditions of the 1988 Agree-
ment. Breach of this latter obligation would neither give rise to a
case or controversy nor commence running of the 8(b) period until
Continued
2. The material breach
On the merits, the Respondent would rebut this presump-
tion on a claim that the stoppages in June and July 1989 con-
stituted a material breach of contract, thus, nullifying any ob-
ligation incurred under the 1988 Wage Agreement. However,
no provision is cited as having been compromised by these
work stoppages.23
The Respondent’s position also appears to be founded on
a claim that the walkout was illegal. Here again the conten-
tion rests upon rhetoric, not proof. In this proceeding, the cir-
cumstances surrounding the stoppages, including the sponsors
of the pickets, and nature of any unlawfulness were defined
in the most cursory sense, and except, in passing, were not
addressed. Moreover, to my knowledge, there never has been
a determination, in any forum, that the 1989 picketing and
stoppages in the coal industry, unless contemptuous of a
court order, were unlawful. The 10(l) injunction issued by
the United States District Court for the Southern District of
West Virginia did not resolve that it merely was founded on
‘‘reasonable cause to believe’’ that violations occurred.24 The
settlement approved by the Board in International Union,
Mine Workers (Island Creek Coal), 302 NLRB 949 (1991),
contained a nonadmissions clause.
The remedial scheme accessible to employers who are
confronted with unlawful strikes and picketing is well de-
fined in the Act. In June 1989, hundreds of unfair labor prac-
tice charges were filed against the UMWA based upon alleg-
edly unlawful strikes and picketing. The Respondent does not
claim, and there is no evidence that it was part of this class.
Insofar as this record discloses, it has yet to litigate, in any
forum, that the walkout in question was illegal.
3. The 10(b) defense
The Respondent’s sole witness, Human Resources Director
Potnick, testified that the 1988 Wage Agreement was re-
scinded when employees returned to work in mid-July 1989.
A dispute exists as to when this was communicated to the
Union, with the General Counsel contending that notification
was not made until June 1990, and the Respondent, arguing
that this was effected through notices and letters dating back
to July 1989, and verbally communicated to District 17 in
November 1989.
In A & L Underground, 302 NLRB 467 (1991), the Board
renounced the ‘‘continuing violation theory,’’25 stating:
We find that the policies underlying Section 10(b) are
best effectuated by requiring a party, in order to avoid
the time-bar, to file an unfair labor practice charge
within 6 months of its receipt of clear and unequivocal
notice of total contract repudiation. [Id. at 468.]
Thus, the burden of proving a clearly communicated contract
modification is on the Respondent. Such an unfair labor
practice charge will not be time-barred if the ‘‘delay in filing
is a consequence of conflicting signals or otherwise ambig-
uous conduct by the other party.’’ The breach, and its com-
munication must be total, rather than ‘‘an accumulation of
breaches.’’ Id. at 468. Thus, the question turns on the precise
time that the Union was provided unmistakable notification
of all elements required to support a violation. Farmingdale
Iron Works, 249 NLRB 98 (1980).
First, in agreement with the General Counsel, failure to
sign the 1988 Wage Agreement following its effective date
failed to substantiate a Section 10(b) defense. Unquestion-
ably, the Union would have learned in November 1989 from
the third-party law suit that the Company had not signed and
was contending that it was not obligated to observe the Wage
Agreement. Apparently, for this reason, the Respondent in its
posthearing brief states, ‘‘The ambiguity of the situation
should have been remedied by the Union in 1989.’’ I agree
that the Respondent’s legal action created an ‘‘ambiguity,’’
which fell short of communicating that it would never sign
or that it actually had repudiated the Wage Agreement. Pos-
turing was not enough. A guess does not create an unfair
labor practice case. A contention that one is not obligated is
something less than repudiation by self help. The Respond-
ent’s allegations in the third-party complaint did not dispel
the interpretation that abrogation was a step that the Re-
spondent intended to take only in the safety of court ap-
proval.
Moreover in applying Section 10(b) on this record, the
critical focus is abrogation, not the failure to execute. In
practical terms, execution was not an essential element of
commitment. Potnick agreed that this omission is a familiar
practice in this industry. Though compellable through suit for
specific performance, it is a nonsubstantive offense, whose
ambivalence will always be heightened, where, as here, the
employer’s exposed position reflects continued application of
the contract. Where each and every term is honored, the
union, until provided unambiguous notice of an intent never
to sign,26 is in no position, and has no reason to, evaluate
860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Union were informed of the noncompliance in clear and undeni-
able terms.
27 The Respondent cites Hoover Enterprises, 293 NLRB 654
(1989), which repudiated the continuing violation theory in cases
where an employer refuses to sign and implement an agreement
reached. In accord: A & L Underground, supra. In Hoover, the union
had been notified in writing, and there was no question that, beyond
the 10(b) period, it was on notice as to the full scope of the unfair
labor practices involved.
28 At several points, Potnick used the term ‘‘prior’’ to describe the
contract that was used as a ‘‘guide’’ after the ‘‘material breach.’’
For example, Potnick related that, based upon the position that there
had been a material breach, certain items were changed, but ‘‘ the
prior contract served as a wonderful guide to continue under certain
terms that predated the breach and we had to continue production
and we had to continue those terms.’’
29 The pleading signed by Attorney Woody states:
13. Third-party plaintiffs did not execute the 1988 Agreement
but did comply with all terms and conditions of the 1988 Agree-
ment executed by BCOA and the UMWA International on Feb-
ruary 1, 1988, until the incidences set forth herein. [G.C. Exh.
7.]
30 In his letter of June 18, 1990, Attorney Woody stated: ‘‘as a
result of the material breach, the agreement was terminated.’’ His
letter to the Fund, of August 4, 1989, states that the Employer ‘‘will
escrow contributions to the Funds at the rate specified in the Na-
tional Bituminous Coal Wage Agreement of 1988.’’
31 This colloquy is difficult to reconcile with the statement in the
Respondent’s brief that ‘‘The General Counsel did not establish
whether or not Logan County made contributions to the 1950 Pen-
sion Fund after January, 1988 (termination date of the 1984
NBCWA).’’
32 Potnick, who was familiar with the UMWA’s ‘‘no contract, no
work’’ policy, agreed that these documents lacked specific language
stating that the contract was not in place.
33 G.C. Exh. 12. This attempt to edit past writings on an after-the-
fact basis was plainly self serving. It bears kinship to Potnick’s ex-
pressed belief that the documented position of the Respondent, in the
form of postings to employees and letters from its attorney ‘‘to
Union officials, including [the] International,’’ conveyed that the
contract since July 17, 1989, had been rescinded. Whether these
were honestly held interpretations or a contrived argumentation in
response to the complaint need not be resolved. The documents
speak for themselves.
whether the employer considers itself bound. In other words,
where it is unclear that there has been an actionable wrong,
and surface indications suggest the contrary, the union is not
obligated to commit time and resources to litigation. Thus,
Section 10(b) remains dormant at that juncture.27
The Respondent denies, however, that this could have
been a cause for uncertainty in this case. In support, it argues
that the 1988 Wage Agreement had been breached from its
inception, and that at no time after February 1, 1988, did it
ever honor the terms of that contract. The Respondent’s posi-
tion in this respect is founded upon a misapprehension of the
record, which is anchored by an oft-repeated misrepresenta-
tion in its posthearing brief that ‘‘Mr. Potnick testified that
the 1984 NBCWA was the guide.’’ In fact, the latter did not
use the term ‘‘1984’’ in describing the agreement in effect
at any time relevant to this proceeding.28 On the contrary, his
testimony was consistent with correspondence signed by the
Respondent’s attorney, including an above-cited averment in
the third-party complaint,29 which plainly stated that the
terms of the 1988 Wage Agreement remained effective, at
least until the 1989 walkout.30 Potnick on cross-examination
by the General Counsel specifically testified that this was the
case:
Ms. Grayson: So the terms of the 1988 wage agree-
ment were in effect . . . from January, 1988 through
July, 1989?
Mr. Potnick: [A]s far as the contributions, they were
made. We had not signed the ’88 agreement. We [were]
working under the interim agreement.
Q. But you continued . . . the terms of the ’88
agreement during the period of time prior to the strike?
A. The contributions were made, yes.31
Q. What about the other terms and conditions? They
were also in effect, were they not—the wages and—
A. Yes.
Moreover, there can be no doubt that the 1988 Wage Agree-
ment was the source of employment terms after July 1989
and that this, not any 1984 agreement was the ‘‘guide’’ ref-
erenced in Potnick’s testimony. Thus, employees on their re-
turn to work were informed by the Respondent as follows:
You have reported for work and will be receiving
wages and health benefits as before (beginning today
and so long as you remain working).
Thus, consistent with the information provided by the Re-
spondent’s counsel to the Union, the Fund and the U.S. Dis-
trict Court, as well as Potnick’s testimony, a uniform body
of evidence demonstrates that there was no failure to honor
the terms of the 1988 Wage Agreement prior to July 1989.
Accordingly, nothing occurred earlier that would bar this
proceeding under Section 10(b) of the Act.
As for events occurring after that date, the Respondent’s
written communications did not meet the statutory require-
ments for effective notification. Potnick testified that he in-
tended to disclose that the contract was no longer in place,
and believed that this was accomplished through the July 17,
1989 postings and contemporaneous publication to the em-
ployees and the Union.32 However, despite his testimony and
characterizations by the Respondent’s attorney, neither these
documents nor letters signed by the latter substantiate that
the Respondent, outside the 10(b) cutoff date, informed any
union functionary that any of specific changes would be
made or that ‘‘the contract no longer existed.’’
The only documented avowal that the contract had been
rescinded appears in the letter written by the Respondent’s
attorney on June 18, 1990. Attorney Woody took the liberty
to then declare that documents previously furnished the
Union ‘‘informed the Union of the termination of the wage
agreement and the action planned by Logan County,’’ going
on to describe the notice posted on July 17, 1989, as stating
that ‘‘as a result of the material breach, the agreement was
terminated.’’ Finally, the letter states that the Trust funds on
August 4, 1989, were notified that ‘‘Logan County was no
longer bound by the obligations arising from the 1988 wage
agreement.’’33
In contrast, however, all earlier writings omit mention that
the contract had been rescinded, abrogated, or that it no
longer was in place. In each instance, the Respondent
stopped with the announcement that it would seek judicial
approval of its position on ‘‘material breach.’’ The language
of abrogation iterated and reiterated in Attorney Woody’s let-
ter of June 18, 1990, was no where evident. This document
861LOGAN COUNTY AIRPORT CONTRACTORS
34 It will be recalled that Attorney Logan’s letter to the Funds
dated August 4, 1989, stated, ‘‘Until the court determines whether
a material breach has occurred, Logan County Airport Contractors
will execute no labor agreements.’’ R. Exh. 6.
35 The Respondent proffered a list of written instructions which
Miller was expected to follow in reinstating the workers. The list is
devoid of any such reference. R. Exh. 3. Miller did not testify.
Potnick’s testimony on direct was misleading; he obviously could
not vouch for what Miller had advised the men. As a whole, his tes-
timony, in critical areas, seemed to lack logical consistency. In this
instance, considering the highly volatile response that might be ex-
pected from a display of candor, it is only sensible that any disclo-
sure strategy on recision would have been identical to that followed
in communicating the cancellation of retirees’ insurance and the ter-
mination of arbitration; namely, wait till absolutely necessary.
36 The Respondent argues that the agreement to withdraw the law-
suit was ineffectual as it did not specifically mention ‘‘material
breach’’ or ‘‘recision.’’ Apparently, the Respondent would hold the
Union to a higher standard of particularity than it was willing to fol-
low. In any event, in the face of the Respondent’s declared position,
this was not necessary. As indicated, the Company had simply stated
that it would initiate action in a court to declare the strike a material
breach of contract. By virtue of the agreement executed by the Re-
spondent on November 17, 1989, the Union could rightfully assume
that the threat to the contract had been removed.
capped a history of correspondence in which the language se-
lected was hedged, and too vague to even be construed as
an anticipatory breach of contract. The message delivered to
the Union and the employees was perfectly consistent with
an intention to live up to the terms of the Wage Agreement,
continuously, until a court of law lifted that obligation. Ac-
cordingly, prior to June 1990, notifications to the Union
merely conveyed that the Respondent might, at some time in
the future, if a court approves, rescind the contract; they did
not communicate that any actionable unfair labor practice
had occurred.34
The only remaining basis for application of Section 10(b)
is Potnick’s claim that, on a verbal basis, in November 1989,
he presented a clear picture to the Union. Potnick was not
a trustworthy witness. Thus, when asked as to whether the
‘‘fact’’ that the contract was not in place was communicated
to the employees, Potnick replied, ‘‘I interpreted that it was
I felt that it was.’’ When admonished by me that his inter-
pretation was a nonprobative response, Potnick removed any
qualification, stating: ‘‘We did convey to them that the con-
tract was not in place.’’ No effort was made by the Respond-
ent’s counsel to define who told them and how. On cross-
examination, however, Potnick conceded that he did not wit-
ness any verbal communications with employees, as he was
based in Columbus, Ohio. Instead, he testified that Mine Su-
perintendent Fred Miller was instructed as to what to tell the
employees. He states that the instructions to Miller were con-
sistent with the notices that were posted and distributed, but
that Miller also was told to advise the workers that ‘‘there
was no contract in place.’’35
Even less believable was Potnick’s testimony that District
17 was orally informed of actual rescission on November 17,
1989. It will be recalled that a meeting was held on that date
at District 17 headquarters, as a followup to Respondent’s at-
tempts to obtain union assent to a mining venture. At that
time, three of Respondent’s agents, including Potnick, exe-
cuted an agreement to withdraw the third-party lawsuit pend-
ing in the U.S. District Court for the District of Columbia
against District 17. Potnick insists that, in this context, the
outraged Phalan was informed as follows:
I can’t recall the exact words, but I recall that we
discussed our position that because of the strike, be-
cause of the extent of the strike and the nature of the
strike, we considered that to be a breach of contract by
the Union and that we had taken the position that the
contract was rescinded and, as a result of that, we dis-
continued making contributions to the Funds. The
Funds filed action against the Company, and, in re-
sponse, the Company named the District [17] as a Third
Party Defendant in the matter, and that’s what he had
received. And since we were in negotiations for new
operations and he was quite upset about it at that time,
we agreed to dismiss Mr. Phalan of the District as a
Third Party defendant in the matter. And that’s all we
discussed at that time. We didn’t discuss it in any fur-
ther detail after he was withdrawn and we went into our
discussions for the new operation.
Phalan denied that Potnick told him that the contract had
been rescinded. He also denied that Potnick, in executing the
withdrawal, stated that this did not mean that the Company
had changed its position. Phalan was, by far, the more be-
lievable witness and in this instance his version was the more
probable.
Thus, any such statement on Potnick’s part would have
marked a change in form. The Respondent was not averse
to stating its position in writing. Yet, as of November 17,
1989, even with the assistance of legal counsel, it apparently
was unable to find the words that would communicate in un-
qualified terms that the Wage Agreement had been termi-
nated. This meeting would not offer the setting for a clearer
approach. Potnick admits Phalan’s angry reaction to the law-
suit, and does not deny that he would not even discuss other
issues until the Respondent backed off. The sensitivity of the
issue was illustrated to the management team through the
withdrawal memorandum, drafted in anticipation of their ar-
rival. They also knew that the meeting could only proceed
if they executed that document. Obviously, Phalan’s pique
was not evoked by the lawsuit as an abstraction; only its util-
ity as a first step towards contract nullification. Having exe-
cuted the release as the quid pro quo for union cooperation
on the Belva venture, the Respondent knew better than to rob
that concession of all meaning by telling Phalan that the Re-
spondent had used self-help, and abrogated the contract, rath-
er than await judicial assent as communicated in its letters
and notices.36
The testimony of Potnick that he at any time verbally
communicated either that the contract had been rescinded or
that the Respondent would not sign was not believed and is
discredited. There is no probative evidence that anyone else
personally notified union representatives that Respondent was
of such a mind. Moreover, as contended by the General
Counsel, the Union, upon execution of the withdrawal
memorandum on November 17, 1989, at a minimum, was
given reasonable basis for belief that the Respondent had
abandoned any position that the contract was not in place.
In this case, Section 10(b) would bar any unfair labor
practice occurring prior to April 5, 1990. In agreement with
the General Counsel, I find that a letter to Mark Browning,
862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
37 In this connection, the Respondent’s posthearing brief states that
such a copy was forwarded to Phalan. This is based on misreading
of Potnick’s testimony. The error is aggravated by several factors.
First, it is somewhat material, since it was the first occasion in
which the Respondent, in writing, declared that the Wage Agreement
had not been signed. Second, the representation appears in a
posthearing brief signed by the same attorney that wrote the letter,
and, who, consequently, should have known that no copy was for-
warded to District 17. Finally, the characterization of Potnick’s testi-
mony was not only inconsistent with a stipulation of fact entered by
that same attorney, but with earlier testimony on Potnick’s part that,
as far as he knew, there were no copies to the Union.
38 R. Exh. 4.
39 Attorney Woody neglected to make these points in letters to
District 17 and the International Union, which either had been identi-
fied by Potnick, or already was part of the record. R. Exh. 7 and
G.C. Exh. 6.
over the signature of Attorney Woody, dated June 18, 1990,
marked the first occasion on which the Union clearly was ad-
vised of the Respondent’s position that ‘‘the agreement was
terminated.’’ (G.C. Exh. 12.) This also afforded the first
clear indication that the Respondent would never sign. The
notification was well within the 10(b) period, pursuant to ei-
ther the original charge filed on October 5, 1990, or the
amendment thereto of November 1, 1990.
As for the partial modifications, insofar as this record dis-
closes, the Union had not at any time prior to June 18, 1990,
been informed that the Respondent had suspended direct con-
tributions to the UMWA Health and Retirement Funds. The
Funds were notified that this would be the case by the Re-
spondent’s letter of August 4, 1989. No similar message was
conveyed to the Union. As the letter sent by the Funds on
July 15, 1988, signifies that a copy was forwarded to Phalan,
the Respondent’s attorney neglected to follow suit; no copy
of its reply was sent to the Union.37
Under established Board policy, notification to trust ad-
ministrators does not alone suffice as notice to a union for
purposes of of the Act. The law recognizes that labor organi-
zations and employers are not on any per se basis presumed
to be affiliated with multiemployer benefit funds, or to be
anything but separate and distinct entities. NLRB v. Amax
Coal Co., 453 U.S. 322 (1981). ‘‘[T]he fact that the interests
of the administrator . . . harmonize with or parallel those of
the trust settlors does not in itself give rise to an agency rela-
tionship between them.’’ Operating Engineers Local 12
(Griffith Co.), 243 NLRB 1121, 1125 (1979), affd. 660 F.2d
406, 411 (9th Cir. 1981). The affairs of the fund will be
binding on a union only on a specific showing of agency re-
sponsibility. Service Employees Local 1-J (Shor Co.), 273
NLRB 929, 931 (1984). Here, there was no evidence offering
any reasonable basis for concluding that the Funds’ knowl-
edge was imputable to the Union. Accordingly, consistent
with the position of the General Counsel, it is concluded that
the record fails to demonstrate that the Union had knowledge
of the content of the Respondent’s letter of August 4, 1989,
at any time before April 5, 1990, the cutoff date under the
governing unfair labor practice charge in this case.
With respect to the annulment of arbitration, that fact was
not confirmed to the Union until the Respondent’s letter of
October 2, 1990, an event which obviously prompted the ini-
tial charge in this proceeding filed only a few days later.
For the above reasons, and as effective notification of the
termination of arbitration, the discontinuance of fringe ben-
efit contributions, and the recission of the collective-bar-
gaining agreement did not occur until 6 months prior to the
filing of the instant unfair labor practice charges, Section
10(b) is no bar. Accordingly, as the Respondent has failed
to substantiate a material breach which would privilege can-
cellation of the contract, these modifications of the obliga-
tions incurred under the interim agreement violated Section
8(a)(5) and (1) of the Act.
IV. THE MOTION TO DISQUALIFY
As indicated, a motion to disqualify, dated July 23, 1991,
was filed by Charles L. Woody, who was the Respondent’s
attorney during all stages of the proceeding, including events
giving rise to the underlying unfair labor practice charges.
By affidavit, Attorney Woody avers that I exhibited bias
against himself; Mark Potnick, the Respondent’s sole wit-
ness; as well as the Respondent’s position in the case. The
accusations and insinuations in that document are totally
lacking in merit.
The allegation concerning Potnick is predicated on his
cross-examination by me following his testimony that (1) the
Wage Agreement was not in place after a work stoppage
ended on July 17, 1989, (2) that employees at that time were
told that this was the case, and (3) that employees were told
on their return that ‘‘certain terms would be different.’’ This
testimony was highly material, if not determinative under the
Respondent’s 10(b) defense. When rendered, it was suspect
under several counts. First, these points were omitted from
written communications, designed to express the Respond-
ent’s position, which were delivered within the same time-
frame to the employees38 and to the Union.39 Second, an in-
congruity was posed by Potnick’s testimony that retirees
were not told in advance that the Respondent would cancel
its agreement to maintain their health insurance coverage.
Potnick would have had me believe that Respondent, while
intent on maintaining operations, would expose itself to the
risk entailed under the Union’s ‘‘no contract, no work pol-
icy,’’ by actually stating that no contract was in place, yet,
in doing so, would fail to take the lesser step, which fairness
would seem to dictate, of providing retirees with advance no-
tice that their health insurance coverage would be cancelled.
This apparent discrepancy warranted clarification through
cross-examination pursuant to Section 102.35(k) of the
Board’s Rules and Regulations. For, if the Respondent
gained no advantage or had no explanation for withholding
this latter information, it would be entirely probable that this
might have been a vestige of a broader scheme of conceal-
ment, which only naturally would embrace a reluctance to
disclose that the contract no longer was in place. The cross-
examination of Potnick was inspired by his own testimony,
in an attempt to probe his credibility in the light of evidence
in the record, and his own experience and sensibilities. It was
of an extended nature solely in consequence of his evasive-
ness. In passing, I might note that, later, on cross-examina-
tion by General Counsel, Potnick admitted that he had no
knowledge as to whether or not employees were ever in-
formed that the contract was not in place.
The refusal request also asserts that the undersigned
harbored a bias against the Respondent’s counsel as evi-
denced by certain of my remarks. In each instance, the state-
863LOGAN COUNTY AIRPORT CONTRACTORS
40 As matters turned out, despite his premise, Attorney Woody of-
fered no probative evidence that the retirees, or any other of Re-
spondent’s employees, were ever specifically informed that the con-
tract was not in place.
41 American Thoro-Clean, 283 NLRB 1107, 1118–1119 (1987).
42 M. J. Santulli Mail Services, 281 NLRB 1288, 1296, 1298
(1986).
ments were in context of a comprehensive, reasoned response
to specious or self-serving arguments he advanced. The first
derives from my rejection of his contention that retirees had
notice of ultimate termination of their health benefits. In this
regard, he had argued that ‘‘they [c]ould determine that if the
agreement is no longer in place, then those [health] benefits
may no longer be in place.’’40 The second was in the context
of my rejection of documents offered by Attorney Woody,
which quite obviously were generated by settlement discus-
sions. My response, in that instance, was addressed particu-
larly to Attorney Woody’s baseless characterization that the
Union’s participation in that process ‘‘indicates that the
Union believed there was no agreement in place.’’
Finally, it is contended that the undersigned expressed ‘‘a
great deal of sympathy for retirees.’’ Attorney Woody in this
connection points to my declared intention to ‘‘retire in four
years,’’ as evidencing an ‘‘understandable’’ bias in favor of
retirees, thus, affecting my ‘‘ability to render a fair and im-
partial decision.’’ The equation itself offers a fatuous study.
In any event, to the extent that retirees were favored by my
rulings, this was an indirect, incidental consequence of my
own understanding of generic principles. Thus, my rejection
of the General Counsel’s request to delete an allegation in
their behalf was based upon faulty recollection of the full
scope of the Supreme Court’s ruling in Allied Chemical &
Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157
(1971). That interpretation was never challenged by the Re-
spondent, who objected, but on an entirely distinct and un-
eventful ground. In any event, my faulty construction of the
precedent obviously would have been the same irrespective
of the category of employees that might have been benefited
by the permissive subject of collective bargaining. One might
also aver that retirees were favored by an assumption inter-
laced in my cross-examination of Potnick; namely, that it is
unfair to deny employees advance notice that their health in-
surance will be canceled where the omission is arbitrary, and
without advantage to the employer or otherwise explainable.
Here again, this assumption rests upon a fundamental truth
which has no special relationship to retirees, but applies to
all personnel classifications, including managers.
It is with clear conscience that this motion is denied. All
issues in this case were decided on the evidence presented.
All evidentiary rulings were based entirely on the merits. All
questions put to witnesses were born either of a need to clar-
ify or a suggestion in their testimony of a possible breach
of the oath. Finally, rulings and critical analysis of all issues
were accompanied by candid explication of rationale, focus-
ing always upon counsels’ expressed position, not their per-
son. There was neither bias, predilection, nor prejudgment in
any sense of those terms.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent rejected the principles of good-faith
bargaining and violated Section 8(a)(5) and (1) of the Act by
discontinuing fringe benefit contributions and arbitration and
rescinding an existing labor contract, without the assent of
the exclusive collective-bargaining representative for employ-
ees in the following appropriate unit:
All employees of the Employer engaged in the produc-
tion of coal, including the removal of overburden and
coal waste, preparation of coal, repair and maintenance
work normally performed at the mine site, and mainte-
nance of mine roads, and work of the type customarily
related to all of the above at the coal lands and coal
producing facilities owned or operated by the Em-
ployer, excluding all coal inspectors, weigh bosses at
mines where men are paid by the ton, watchmen,
clerks, engineering and technical employees and all pro-
fessional employees, guards and supervisors as defined
in the Act
4. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, it shall be recommended that it be or-
dered to cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies of the
Act.
First, it shall be recommended that the Respondent be or-
dered to restore, maintain, and adhere to the 1988 Bitu-
minous Coal Operators Wage Agreement, and any other
labor contract entered with the Union as the lawful represent-
ative of employees in the appropriate collective-bargaining
unit.
Additionally, it shall be recommended that the Respondent
be ordered to make whole employees for losses they sus-
tained in consequence of the Respondent’s repudiation of the
1988 Wage Agreement and to make whole the UMWA
Health and Retirement Funds for moneys unpaid, but due
and owing pursuant to the 1988 National Bituminous Coal
Wage Agreement. Such sums shall include interest, as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
Parenthetically, it is noted that the General Counsel, in her
posthearing brief declares that ‘‘the remedial period should
run from December 18, 1989, or 6 months preceding the
Unions’ knowledge.’’ I disagree. Such a cutoff is appropriate
under the abortive ‘‘continuing violation’’ theory,41 or where
there is a historic pattern of ‘‘separate and distinct’’ viola-
tions,42 both of which assume a breach, clearly commu-
nicated more than 6 months before a charge is filed. How-
ever, where the union is kept in the dark so as to excuse an
earlier filing, the wrongdoer would sustain a windfall were
the remedial period curtailed. ‘‘[S]ince the Union, through no
fault of its own, did not discover the violations until [June
18, 1990] due to the Respondent’s fraudulent concealment of
its actions, the proper remedial order should be retroactive to
864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
43 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
44 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
the date Respondent embarked on this unlawful conduct.’’
See, e.g., Pacific Intercom Co., 255 NLRB 184, 192 (1981).
Finally, it shall be recommended that the Respondent be
ordered to waive any time limitations and, if the Union is
willing, to process to arbitration any grievance unresolved at
the third step of the contractual grievance procedure since
September 1990.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended43
ORDER
The Respondent, Logan County Airport Contractors,
Logan County, West Virginia, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Changing any term or condition of employment set
forth in the 1988 National Bituminous Coal Wage Agree-
ment, absent assent of the representative of employees in the
following appropriate unit:
All employees of the Employer engaged in the produc-
tion of coal, including the removal of overburden and
coal waste, preparation of coal, repair and maintenance
work normally performed at the mine site, and mainte-
nance of mine roads, and work of the type customarily
related to all of the above at the coal lands and coal
producing facilities owned or operated by the Em-
ployer, excluding all coal inspectors, weigh bosses at
mines where men are paid by the ton, watchmen,
clerks, engineering and technical employees and all pro-
fessional employees, guards and supervisors as defined
in the Act.
(b) Refusing to bargain in good faith by discontinuing
benefit contributions and arbitration, or by rescinding an ex-
isting labor contract, without the assent of the exclusive col-
lective-bargaining representative for employees in the above-
defined unit.
(c) In any like or related manner interfering with, coercing,
or restraining employees in the exercise of their rights guar-
anteed by Section 7 of the Act.
2. Take the following affirmative action deemed necessary
to effectuate the policies of the Act.
(a) Restore, maintain, and abide by all lawful terms of the
1988 Bituminous Coal Wage Agreement, or any other collec-
tive bargaining entered with the exclusive statutory represent-
ative of the employees in the above-described unit.
(b) Make whole the above employees for losses incurred
by reason of the abrogation of their collective-bargaining
agreement and make whole the UMWA Health and Retire-
ment Funds for moneys unpaid, but due and owing pursuant
to the 1988 Bituminous Coal Wage Agreement, with interest,
and maintain contributions as required under that agreement.
(c) Process to arbitration, waiving any time limitations,
any grievance unresolved at the third step of the contractual
grievance procedure since September 1990, if the Union is
willing.
(d) Preserve and, on request, make available to the Board
and its agents for examination and copying, all payroll
records, social security records, timecards, personnel records
and reports, and all other records necessary to analyze the
sums of money due under the terms of this order.
(e) Post at its facilities in Logan County, West Virginia,
copies of the attached notice marked ‘‘Appendix.’’44 Copies
of the notice, on forms provided by the Regional Director for
Region 9, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notice is not al-
tered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT change any term or condition of employ-
ment set forth in the 1988 National Bituminous Coal Wage
Agreement, absent assent of the representative of employees
in the following appropriate unit:
All employees of the Employer engaged in the produc-
tion of coal, including the removal of overburden and
coal waste, preparation of coal, repair and maintenance
work normally performed at the mine site, and mainte-
nance of mine roads, and work of the type customarily
related to all of the above at the coal lands and coal
producing facilities owned or operated by the Em-
ployer, excluding all coal inspectors, weigh bosses at
mines where men are paid by the ton, watchmen,
clerks, engineering and technical employees and all pro-
fessional employees, guards and supervisors as defined
in the Act.
865LOGAN COUNTY AIRPORT CONTRACTORS
WE WILL NOT refuse to bargain in good faith by dis-
continuing benefit contributions and arbitration and then re-
scinding an existing labor contract, without the assent of the
exclusive collective-bargaining representative for employees
in the above-defined unit.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL restore, maintain, and abide by all lawful terms
of the 1988 Bituminous Coal Wage Agreement, or any other
collective-bargaining entered with the exclusive statutory rep-
resentative of our employees in the above-described unit.
WE WILL make whole the above employees for losses in-
curred by reason of the abrogation of their collective-bar-
gaining agreement, with interest, and WE WILL reimburse the
UMWA Health and Retirement Funds for moneys unpaid,
but due and owing pursuant to the 1988 National Bituminous
Coal Wage Agreement, with interest.
WE WILL, if the Union is willing, process to arbitration,
while waiving any time limitations, any grievance unresolved
at the third step of the contractual grievance procedure since
September 1990.
LOGAN COUNTY AIRPORT CONTRACTORS