Mine Workers (Island Creek Coal)

National Labor Relations Board - Board Decisions

May 14, 1991

302 N.L.R.B. 949 (N.L.R.B. 1991)

949
302 NLRB No. 162
MINE WORKERS (ISLAND CREEK COAL)
1 After the settlement was forwarded to the Board, Charging Party Freeman
United Coal Mining Company requested leave to join in the settlement. The
request is granted. In accordance with the General Counsel’s recommendation,
we also approve the requests made by Arch of Kentucky, Inc., Arch of West
Virginia, Inc., Harmon Mining Corp., and Spring Ridge Coal Co. to withdraw
their charges in Cases 9–CC–1407–1, 9–CC–1449, 9–CC–1422–1, 11–CC–
147, and 6–CC–1809–1–2, and remand these cases to the Regional Director
for further appropriate action. 2 See NLRB Casehandling Manual Sec. 10130.7.
International Union, United Mine Workers of
America and Island Creek Coal Company [and
various other Employers listed in Appendix B].
Cases 5–CC–1109–1 et al.; 6–CC–1770 et al.; 8–
CC–1404 et al.; 9–CC–1368–1 et al.; 10–CC–
1295 et al.; 11–CC–142 et al.; 14–CC–2051-1 et
al.; 25–CC–677–1 et al.; and 26–CC–476 et al.
May 14, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT, DEVANEY, OVIATT, AND
RAUDABAUGH
On June 29, 1990, International Union, United Mine
Workers of America (Respondent International or the
Respondent), various Charging Parties as reflected by
signatures in attachment 1,1 and the General Counsel
of the National Labor Relations Board entered into a
Settlement Stipulation, subject to the Board’s approval,
providing for the entry of a consent order by the Board
and a consent judgment by any appropriate United
States court of appeals. The parties waived all further
and other proceedings before the Board to which they
may be entitled under the National Labor Relations
Act and the Board’s Rules and Regulations, and Re-
spondent waived its right to contest the entry of a con-
sent judgment or to receive further notice of the appli-
cation therefor.
A number of Charging Parties have filed objections
to the settlement on the grounds, inter alia, that it con-
tains a nonadmission clause and does not include addi-
tional notice requirements. Several of the objecting
Charging Parties have also objected to the settlement
on the ground that the Respondent Union continued to
engage in similar misconduct after it executed the set-
tlement in April 1990.
After carefully reviewing these objections, we con-
clude, in agreement with the General Counsel, that
they do not warrant disapproval of the settlement.
First, contrary to our dissenting colleague, we do not
agree that the inclusion of a nonadmission clause im-
plies that we condone the Respondent’s alleged illegal
activity. It merely reflects that the settlement was the
result of a compromise prior to a final adjudication on
the merits finding the alleged violations. As the Sec-
ond Circuit stated in upholding the Board’s approval
of a nonadmission formal settlement containing cease-
and-desist and notice provisions substantially similar to
those here:
[W]e are not dealing with a successfully litigated
prosecution of unfair labor practices that has cul-
minated in findings of a violation based upon evi-
dence introduced at a hearing and subjected to
cross-examination, but with a settlement. The
order is based solely upon a stipulation, entered
into as the basis of an order only with the re-
spondent’s consent. The stipulation, of course, re-
flects a considered compromise by both sides. It
undoubtedly represents the most by way of relief
that the Board believes that it could achieve short
of full litigation. Should the Board insist upon the
admission of guilt demanded by [the Charging
Party Employer], the Union would in all prob-
ability refuse to settle, immediate injunctive relief
would be scuttled, and the parties would be rel-
egated to the delay and expense of pretrial prepa-
ration and hearings, with no assurance as to the
content or scope of the ultimate findings or the re-
lief that would be granted. [Containair Systems
Corp. v. NLRB, 521 F.2d 1166, 1171–72 (2d Cir.
1975).]
To be sure, nonadmission clauses are not to be rou-
tinely incorporated into settlement agreements.2 How-
ever, the Board has long recognized that under certain
circumstances, agreement to inclusion of such a clause
may be a relatively small price to pay in order to ob-
tain an immediate order proscribing the alleged mis-
conduct. Accordingly, the Board has consistently ap-
proved formal settlements containing such a clause
where the settlement would effectuate the purposes of
the Act. See, e.g., Mine Workers (Decker Coal), 294
NLRB 162 (1989); Philadelphia Building Trades
Council (Wohlsen Construction), 279 NLRB 1242
(1986); Mine Workers (James Bros. Coal), 191 NLRB
209 (1971).
We similarly disagree with our dissenting colleague
that the stipulated order, when coupled with the non-
admission clause, fails to address the allegedly illegal
activity, leaves the impression that any party engaging
in such conduct will not be held accountable, and/or
leaves the alleged conduct unremedied. The stipulated
order is broad in its scope and nationwide in its geo-
graphic reach. In terms of proscribed means and in
terms of proscribed objectives, it prohibits the Re-
spondent from engaging in unlawful secondary conduct
not only with respect to the named Employers, but also
with respect to ‘‘any other person.’’ By agreeing to the
settlement, the Respondent has consented both to the
entry of this order and to the entry of an appeals court
judgment enforcing it—a judgment that will in turn be
enforceable through contempt proceedings. Contrary to
our dissenting colleague, we do not believe that these
provisions merely ‘‘beg the question.’’ They in fact
950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 While it is true that the General Counsel will have to show in any future
contempt proceeding that the allegedly contumacious secondary conduct en-
gaged in by the Respondent is actually unlawful and in violation of the order,
this is always true in a contempt proceeding. The General Counsel’s task
would not necessarily be made any easier by the absence of a nonadmission
clause. Even if the Respondent admitted that it engaged in unlawful conduct
in the instant cases, that would not necessarily tend to establish that it engaged
in contumacious conduct in some future case.
bar the Respondent—by the most effective means
available under the Act—from engaging in any future
illegal secondary activity. And nothing in the non-
admission clause in any way modifies the provisions
or undermines their efficacy. See Containair Systems,
supra at 1173.3
We also respectfully disagree with our dissenting
colleague that the settlement’s notice requirements are
inadequate to signal to union members that the alleged
illegal activity is prohibited by law and will not be tol-
erated. The settlement contains the traditional notice-
posting remedy imposed by the Board, requiring the
Respondent to post a copy of the notice at each of its
business offices and those of 14 of its affiliated Dis-
tricts, and to also provide copies of the notice for post-
ing by the Charging Party Employers, if willing, in all
places where notices to employees are customarily
posted. While we cannot say with certainty that we
would not have included additional notice requirements
in a final order after full litigation, as indicated above
in our discussion of the nonadmission clause, the issue
here is not the appropriateness of a final Board order,
but the appropriateness of a settlement.
Finally, with regard to the objection that the Re-
spondent continued to engage in unlawful secondary
conduct after it signed the settlement, we note that this
objection has not been supported by any facts or evi-
dence. We therefore find that this objection also does
not warrant disapproval of the settlement.
As indicated above, the settlement in this case pro-
vides for the entry of a broad, nationwide cease-and-
desist order against the Respondent enforceable
through contempt proceedings. Further, this order will
be entered immediately, without the costs and delay of
litigation. In these circumstances, and taking into ac-
count the early stage of the litigation (prior to the hear-
ing), the inherent risks and uncertainties of litigation
generally, and the fact that the General Counsel has
recommended approval of the settlement, we find that,
on balance, it would effectuate the purposes and poli-
cies of the Act to approve the settlement.
Accordingly, the Settlement Stipulation is approved
and made a part of the record and the proceeding is
transferred to and continued before the Board in Wash-
ington, D.C., for the entry of a Decision and Order
pursuant to the provisions of the Settlement Stipula-
tion.
On the basis of the Settlement Stipulation and on
the entire record, the Board makes the following
FINDINGS OF FACT
I. THE EMPLOYER’S BUSINESS
At all times material, Pittston Coal Group, Inc.
(Pittston), a corporation has been engaged in the oper-
ations of coal lands, coal mines, and coal preparation
plants, through various subsidiaries, at facilities located
throughout the Commonwealth of Virginia, Common-
wealth of Kentucky, and the State of West Virginia.
During the past 12 months, Pittston purchased and re-
ceived at its various locations within the Common-
wealth of Virginia products, goods, and materials val-
ued in excess of $50,000 directly from points outside
the Commonwealth of Virginia. The Respondent and
various Charging Parties in attachment 1 [omitted from
publication] admit, and we find, that Pittston is an em-
ployer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and that each of
the Employers listed in appendix A [omitted from pub-
lication] is now, and has been at all times material, a
person engaged in commerce or in an industry affect-
ing commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union, United Mine Workers of Amer-
ica is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
ORDER
On the basis of the above findings of fact, the Set-
tlement Stipulation, and on the entire record, the Na-
tional Labor Relations Board orders that the Respond-
ent, International Union, United Mine Workers of
America, its officers, representatives, employees and
agents, shall
1. Cease and desist from
(a) Engaging in or inducing or encouraging any indi-
vidual employed by any of the Employers listed in ap-
pendix B, or any other person engaged in commerce
or in an industry affecting commerce, to engage in a
strike or a refusal in the course of their employment
to use, manufacture, process, transport, or otherwise
handle or work on any goods, articles, materials, or
commodities, or to perform any services, or threaten-
ing, coercing, or restraining any of the Employers list-
ed in appendix B, or any other person engaged in com-
merce, or in an industry affecting commerce where, in
either case, an object thereof is to force or require any
of the Employers listed in appendix B, or any other
person, to cease using, selling, handling, transporting,
or otherwise dealing in the products of any other pro-
ducer, processor, or manufacturer, or to force or re-
quire any of the Employers listed in appendix B, or
any other person, to cease doing business with any
951MINE WORKERS (ISLAND CREEK COAL)
4 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
other person in violation of the National Labor Rela-
tions Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post in conspicuous places at each of its business
offices and those of its affiliated Districts (2, 4, 5, 6,
11, 12, 14, 17, 19, 23, 28, 29, 30, and 31), including
all places where notices to members are customarily
posted, copies of the attached notice marked ‘‘Appen-
dix C.’’4 Copies of the notice, on forms provided by
the respective Regional Directors for Regions 5, 6, 8,
9, 10, 11, 14, 25, and 26, after being duly signed by
a representative of Respondent International, shall be
posted immediately upon receipt and maintained by it
for 60 consecutive days thereafter. Reasonable steps
shall be taken by Respondent International to ensure
that the notices are not altered, defaced, or covered by
any other material.
(b) Mail to the Regional Directors for Regions 5, 6,
8, 9, 10, 11, 14, 25, and 26 signed copies of the no-
tices for posting, if willing, by the Charging Parties, in
all places where notices to employees are customarily
posted. Copies of the notice, on forms provided by the
Regional Directors for Regions 5, 6, 8, 9, 10, 11, 14,
25, and 26 shall, after having been signed by Respond-
ent International’s representative be forthwith returned
to the Regional Directors for such posting by the
Charging Parties.
(c) Notify the Regional Directors for Regions 5, 6,
8, 9, 10, 11, 14, 25, and 26 in writing within 20 days
from the date of this Order what steps Respondent
International has taken to comply.
MEMBER OVIATT, dissenting.
Recognizing the views of my fellow Board Mem-
bers who approved the Settlement Stipulation here, I
have reflected at some length on the Settlement Stipu-
lation arrived at by the General Counsel and the
Unions in this matter. I now conclude that I cannot ap-
prove the Settlement Stipulation as proposed and sub-
mitted.
If the secondary boycott activity occurred, as alleged
in the complaints issued in these matters, I view such
activity to be the ultimate form of illegal economic vi-
olence and harassment. Such activity can and does
have a broad impact on an industry and the economic
viability of employers in both the long and short term.
This being so, it also affects the job security of unin-
volved employees and their financial and job security,
as well as the economic health of the community in
which they reside. It can have a detrimental impact on
uninvolved persons, businesses, communities, and re-
gions where a major element of each is associated with
the industry involved in the primary dispute. Where
the alleged illegal activities are pervasive and wide-
spread, as here alleged, the economic impact could
well be catastrophic for many uninvolved persons and
entities.
After 57 years of history and experience under the
National Labor Relations Act, it is well past time that
all parties recognize that violence, harassment, and
threats of any kind, including economic violence, must
be removed as an element of the labor-management re-
lationship. This Settlement Stipulation, in my view,
will be interpreted to excuse such activity and is a dis-
service to the processes embodied in the Act for the
peaceful resolution of labor disputes and to those par-
ties struggling to resolve their differences within the
law’s framework. It is time that management and labor
both understand that the management-labor relationship
has moved beyond the type of activity alleged here.
Economic violence, harassment, and threats are not
new to the unions and employers in the mining indus-
try. The 1989–1990 strike and the alleged secondary
boycott activity associated with that strike, if true, is
yet another episode in a long history. To resolve the
8(b)(4) charges here with a Settlement Stipulation,
which provides for the entry of a broad, nationwide
order for contempt if the alleged illegal activity again
occurs, begs the question. And, when coupled with the
nonadmission clause included in the agreement, it fails
to address the allegedly illegal activity and leaves the
clear impression, particularly in the mining industry,
that any party engaging in such activity will not be
held accountable, but will only be advised, once again,
not to repeat the violative acts. This leaves unremedied
activity which, if proven, clearly violates the law.
Had the agreement not included a nonadmission pro-
vision, I would have approved it since that could not
imply to those involved that we were condoning this
alleged illegal activity. On the other hand, I would
have approved the agreement as submitted if it had
provided that the International and the other union offi-
cers read, in the presence of the Board’s General
Counsel, the provisions of the Board’s Order and ex-
plain the consequences of future similar activity to all
local and district union members. That could easily
have been accomplished by the use of a video tape,
which could have been played at a meeting of mem-
bers of each local or district union. I then would have
concluded that the message of this Settlement Stipula-
tion—that future economic violence and threats will
not be countenanced and will subject those involved to
contempt prosecution—would be sufficiently conveyed
to those allegedly involved. The message that this
Board will enforce the National Labor Relations Act as
it was intended to be enforced would then have been
delivered personally and, in my view, adequately. The
mere posting of a notice is not enough to signal to
952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
union members that this allegedly pervasive and wide-
spread illegal activity is prohibited by law and will not
be tolerated.
However, since the Settlement Stipulation does not
contain such remedial procedures, and does include a
nonadmission clause, I cannot approve it and would
send these issues to a hearing for determination wheth-
er such activity occurred and, if proven, would then
provide a strong remedy consistent with our Act.
APPENDIX B
Island Creek Coal Company
Cyprus Emerald Resources Corporation
Gateway Coal Company
Tanoma Mining Company, Inc.
Iselin Coal Preparation Company
Florence Mining Company
Helvatia Coal Company
Keystone Coal Mining Corporation
Greenwich Collieries, a Division of Pennsylvania
Mines Corporation
Rushton Mining Company, a Wholly Owned
Subsidiary of Pennsylvania Mines Corporation
Tunnelton Mining Company
Shannopin Mining Company
The Helen Mining
Beth Energy Mines, Inc.
U.S. Steel Mining Company
Southern Ohio Coal Company
Penn Allegh Coal Company
Dillton Facilities, Division of Pennsylvania
Mines Corporation
Windsor Coal Company
Pennsylvania Electric Company
Juliana Coal Company
Dietrich Industries, Inc.
Consolidation Coal Company
McElroy Coal Company
Northern Continental Operating Co.
North Fayette Coal Company
Spring Ridge Coal Company
Season-All Industries, Inc.
The Monongahela Railway Company
Oneida Coal Company, Inc.
West Penn Power Company
Bently Coal Co.
Meco International, Inc.
Aloe Coal Company
Four Diamonds Construction, Inc.
Eastern Associated Coal Corp.
Minotte Contracting Corporation
Monongahela Power Company
The Ohio Valley Coal Company
Quarto Mining Company
Central Ohio Coal Company
Saginaw Mining Company
Boich Mining Company
Peabody Coal Company
Hampden Coal Company, Inc.
Westmoreland Coal Company
Sharples Coal Corporation
Lowlands Coal Corporation
Old Hickory Coal Corporation
Swamp Fox Development
Central Continental Operating Company, Inc.
Omar Mining Company
Princess Beverly
Donaldson Mine Company
High Power Mountain Corporation
Rum Creek Coal Sales, Inc.
Appalachin Mining, Inc.
Hatfield Dock and Transfer, Inc.
Anchor Mining, Inc.
Agipcoal USA, Inc.
Virginia Crews Coal Company
Pikeville Coal Company
Hobet Mining, Inc.
Premium Energy, Inc.
W-P Coal Company
Arch of Kentucky, Inc.
Kentucky Carbon Corporation
M & H Coal Company
The Lady H Coal Company, Inc.
Cedar Coal Company
Elk Run Coal Company, Inc.
Superior Mining and Minerals, Inc.
Old Ben Coal Company
Sidney Coal Company, Inc.
New Era Coal Company
Arch of West Virginia, Inc.
Davidson Mining, Inc.
Tommy Creek Coal Company
Stoney Coal Company
East Gulf Fuel Corporation
Harley Mining, Inc.
Zalkin Coal Sales, Inc.
Birchfield Mining, Inc.
Maben Energy Corporation
M. A. E. West, Inc.
Hansford Smokeless Collieries
Bituminous Coal Operators Association, Inc.
Northland Resources, Inc.
Gauley Coal Sales Company
Maple Meadow Mining Company
Cannelton Industries, Inc.
Nix Mining Company
Pax Mining Company
High Power Energy
Kanawha Mining Company, Inc.
Cyprus Kanawha Corporation
Langley & Morgan Corporation
Sovereign Coal Corporation
Nueast Mining Corp.
Colony Bay Mining Company
953MINE WORKERS (ISLAND CREEK COAL)
Toney’s Branch Coal Company
Eastern Associated Coal Corporation
Dunbar Plaza Inc. d/b/a Dunbar Travelodge
Eaglehawk Carbon, Inc.
Kanawha Valley Labor Council
Kesscoal, Inc., Capitol Fuels Dock
Kesscoal, Inc.
Rawl Sales and Processing Company, Inc.
Jim Walter Resources, Inc.
Drummond Company, Inc.
The Pittsburgh & Midway Coal Mining Company
Cardova Trucking Company, Inc.
A.J. Taft Coal Co., Inc.
IMAC Energy, Inc.
Black Warrior Minerals, Inc.
Black Gold Trucking Company
Electrical Design & Construction Co., Inc.
Gateway Malls, Inc.
Blue Square II, Inc.
Harman Mining Corporation
Delta Mining, Inc.
Arch of Illinois, Inc.
Freeman United Coal Mining Company
Monterey Coal Company
American Electric Power Corp.,
Ohio Power Cook Coal Terminal
Ziegler Coal Company
Amax Coal Company
Old Ben Coal Company
Green River Coal Co., Inc.
APPENDIX C
NOTICE TO MEMBERS
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT engage in or induce or encourage any
individual employed by any of the Employers listed in
Appendix B, or any other person engaged in commerce
or in an industry affecting commerce, to engage in a
strike or a refusal in the course of their employment
to use, manufacture, process, transport, or otherwise
handle or work on any goods, articles, materials, or
commodities, or to perform any services, or threaten,
coerce, or restrain any of the Employers listed in Ap-
pendix B, or any other person engaged in commerce,
or in an industry affecting commerce where, in either
case, an object thereof is to force or require any of the
Employers listed in Appendix B, or any other person
to cease using, selling, handling, transporting, or other-
wise dealing in the products of any other producer,
processor, or manufacturer, or to force or require any
of the Employers listed in Appendix B, or any other
person to cease doing business with any other person
in violation of the National Labor Relations Act.
INTERNATIONAL UNION, UNITED MINE
WORKERS OF AMERICA