Thompson Brothers Coal Co., Inc.

National Labor Relations Board - Board Decisions

Jul 9, 1971

192 N.L.R.B. 24 (N.L.R.B. 1971)

24 DECISIONS,OF NATIONAL LABOR RELATIONS BOARD
Thompson _ Brothers - Coal, Company, Inc., Thompson
Coal 'Company, Inc., and Thompson and Phillips
Clay Company, Inc., and United ` Mine Workers of
America. Case 6-CA-5104
July 9, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On February 11, 1971, Trial Examiner Eugene E.
Dixon issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's decision.
The Trial Examiner also found that Respondent had
not engaged in certain other unfair labor practices
alleged in the complaint and recommended that such
allegations be dismissed. Thereafter, Respondent
filed exceptions to the Decision and a supporting
brief, the General Counsel filed cross-exceptions and
a supporting brief, and Respondent filed an answer-
ing brief thereto.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the cross-excep-
tions, the briefs, and the entire record in the case, and
hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner subject to the
modifications set forth below:
1. We find, in agreement with the Trial Examiner,
that the Respondent violated Section 8(a)(1) of the
Act by the following conduct:
(a) Shortly before the strike began on or about July
6, 1970,1 Respondent's President Thompson told
employee Lumadue that he knew the Union had
scheduled a meeting for that evening in which a strike
vote would be taken and asked Lumadue what he
could do to prevent a strike, thereby creating the
impression of surveillance.2
I The Trial Examiner erroneously found that the strike began on August
8, 1970. It is undisputed in the record that the strike began on or about
July 6, 1970.
2 The Trial Examiner found that the Respondent also violated Section
8(a)(1) of the Act by announcing the cancellation of the employees'
(b) ,On the day after, the strike began, President
Thompson's brother, Burt, an admitted"supervisor,
told employee Jenkins 'tliat'a 50-cent-per-hour raise
previously granted them would beaken away when
the employees returned to work. When Jenkins said
that he would look for another job, Burt Thompson
replied, "wave-got-that stopped too ..:.we've called
everybody -and - there's no use in Igoing'^ahywhere
around- here hunting for a job because you're not
going to get it." Burt Thompson added that he knew
who had voted to go out on strike. As the Trial
Examiner found, these remarks constituted unlawful
threats to reduce wages and blacklist employees and
an additional implication to the employees that their
union activities were under Respondent's surveil-
lance.
(c) In September 1970, President Thompson tele-
phoned employee Fullerton, cursed him, and stated
that "he was going to get" Fullerton and employee
Lark because they rejected Respondent's- offer of
work during the strike and that he was going to
dynamite Union President Staples' home.
(d) About October 6, 1970, Thompson went to
Lark's home and castigated him for "not doing right"
by him and threatened to have Staples and the local
judge "put away."
2. We also agree with, and adopt, the Trial
Examiner's finding that Respondent violated Section
8(a)(1) and (5) of the Act in bypassing the Union and
dealing directly with employees on September 3, 1970.
3. The Trial Examiner found that the facts failed
to establish that Respondent's conduct at the bargain-
ing table constituted a refusal to bargain in violation
of Section 8(a)(1) and (5) of the Act. We find merit in
the General Counsel's exception to this finding.
The record shows by way of background that the
Union was certified on June 6, 1969. At one of the first
meetings, the Union submitted a copy of its basic
contract, the National Bituminous Coal Wage Agree-
ment of 1968, together with the rates provided for in
the agreement for various classifications of coal
mining personnel. The admitted or undisputed
testimony establishes that at this and subsequent
meetings President Thompson stated that he was "not
in shape financially to sign the agreement" and that
he could not afford to sign it, although he had not
read it. He also stated that he would give raises
"whenever he saw fit."
Thompson also told the union negotiators to go out
and organize employees of other employers in the
area and come back.
hospitalization coverage when the strike began . However, the cancellation
of the coverage was neither alleged in the complaint or the amended
complaint nor fully litigated at the bearing . Accordingly, we shall dismiss
this allegation on procedural grounds.
192 NLRB No. 5
THOMPSON BROTHERS COAL CO. 25
Thereafter, within the 10(b) period, additional
meetings were held, with the same negative results.
Thus, at a meeting in', February 1970, Respondent
stated that- it would not negotiate or sign a contract
and there was no sense in discussing rates` of pay or
anything else:3 In-July, immediately before the strike,
the Union offered to negotiate on the basis of
prevailing construction industrycontracts in the area.
Thompson'respon0d that he "didn't give a goddam
for any union " Thompson admittedly added that if
he signed a contract in the beginning, it would hurt, his
social life , he would be made a "goat of" if business
went down; and some people wouldlaugh at him.
After the meeting on July 6, the employees, upon
being, advised , by-- the Union of the course the
negotiations had taken, went out on strike. The parties
did not meet again` until September 24, when the
Respondent made its first- proposal-a 50-cent-per-
hour'wage increase. The Union rejected the proposal,
but, to counter the Respondent's claim that the Union
could not negotiate for rates less than those in the
national agreement, again offered to negotiate on-the
basis of wage rates and -fringe b6nefits in the
construction industry in the area. The Respondent
rejected -the offer: Meetings were held on September
25 and-29 with ,no` progress. Then, on October 13, the
Respondent offered a 75-cent wage increase and on
October' 28,stated that the offer was "final." There
were no further' meetings even though the strike
continued until the=time of the hearing herein.
We find upon the facts set forth above and the
entire record including the Respondent's otherunfair
labor, practices found herein that the Respondent
failed-at alll material times to bargain in good faith in
violation of Section 8(a)(5) and that the strike was an
unfair labor practice strike from the beginning. At the
time of the strike, President Thompson had adamant-
ly refused to engage in any meaningful bargaining
over a-period of almost a year, during which period he
stated flatly-he would not sign a contract; had found
nothing whatever to agree to in the Union's proposals,
if he -even read them; and had not made a single
counterproposal. We cannot interpret his eventual
offers of a wage increase after 15 months of sterile
meetings and 10 weeks of a strike as indicative of a
sincere desire, to compose his differences and reach
agreement with the `Union if possible. We are not
persuaded, as the Trial Examiner was, that the
evidence, relied on by him establishes that the union
3 The Trial ' Examiner did not discredit testimony to the effect,
concluding that in context Respondent 's conduct was not an unlawful
refusal to bargain "Notwithstanding how [it i might have been appraised in
the absence of such intransigence by the Union . . . ." But even aside
from these statements of refusal to negotiate or sign a contract , even the
conceded events are sufficient to support the finding of an 8 (a)(5) violation.
4 U. Roadhome Construction Corp., 170 NLRB No. 91, in which the
negotiators- had, no authority to agree-to, wage rates
less than those called for in its national, agreement 4 It
is clear that the Union offered alternatively to bargain
on the basis of area construction contracts while the
Respondent made no proposal at all. We do not agree
with the Trial Examiner that this was a meaningless
alternative as,- although' some of the construction
wages were higher that those in the Union's agree-
ment, some of the benefits were lower, thus providing
room for give-and-take bargaining. In any event, the
Respondent's own inflexibility precluded it- from
putting the Union's flexibility on any subject to the
teSt.5
THE REMEDY
We have found, in, agreement with the Trial
Examiner, that Respondent engaged in certain con-
duct violative of Section 8(a')(1) and (5) of `the Act,
and, ` accordingly,' we adopt the remedial recommen-
dation in that regard. However, as we have found that
the Respondent has refused in good faith to bargain
collectively with the Union as the exclusive represent-
ative of the employees in the appropriate unit,-, we
shalt order that Respondent bargain collectively,
upon request, with the Union as the exclusive
representative of the employees in the appropriate
unit and, if an understanding is reached, embody such
understanding-in a signed agreement. Further, as we
have found, contrary to the Trial Examiner, that
Respondent -did not violate the Act by canceling the
employees' hospitalization coverage, we shall` delete
Section 2(a) of the Trial Examiner's Recommended'
Order.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and
upon the record as a whole, we adopt the Trial
Examiner's Conclusions of Law subject to the
following modifications:
Substitute the following for paragraph 7 of the. Trial
Examiner's Conclusions of Law:
7. By refusing and continuing to date to refuse to
bargain collectively with the Union as the exclusive
representative of its employees in the appropriate
unit, the Respondent has engaged in and is engaging-
in the unfair. labor, practices within the meaning- of
Section 8(a)(5) of the Act.
Add the following as paragraph' 8 of the Trial
Examiner's Conclusions of Law:
union negotiators acknowledged their lack of authority to vary the terms of
the area agreement presented to the employer.
5 N.L.R.B. v, Reed & Prince Manufacturing Company, 205 F.2d 131
(C.A. 1), cert. denied 346 U.S. 887; Servette, Inc., 133 NLRB 132; Kickert
Brothers Ford, Inc., 129 NLRB 1316 ; Imperial Machine Corp., 121 NLRB
621.
26 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
8. The strike-which began on July 6, 1970, was an
unfair labor practice strike.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Thompson Brothers Coal Company, Inc., Thompson
Coal Company, 'Inc., and Thompson and Phillips
Clay 'Company, Inc., Clearfield County, Pennsylva-
nia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the United
Mine Workers of America as the exclusive representa-
tive of the Respondent's employees in the unit
described below, concerning rates of pay, wages'-,
hours, of employment, and other conditions of
employment:
All production and maintenance employees of
Thompson Brothers Coal Company, Inc., Thomp-
son Coal Company, Inc., and Thompson and
Phillips Clay Company, Inc., at its, strip mines in
'Clearfield County, Pennsylvania, including prop-
essing and loading plant employees, but excluding
all office clerical employees, guards, professional
employees and supervisors as defined in the Act.
(b) -Bypassing the Union and dealing directly with
employees on matters subject to collective bargaining
or in ,any, other manner refusing to bargain with` the
Union.
(c) Imposing or threatening physical or economic
reprisals against employees for participating in union
activity and makingreferences to employees that their
union activities are under surveillance.
(d) In any other manner i interfering with, restrain-
ing, or coercing employees in the exercise of the right
to self-organization, to form labor organizations, to
join or assist the above-named or any other labor
organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in any
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or, to
refrain from any or all such activities, except to the
extent that such right may be affected by an
agreement -requiring- membership, in a labor organiza-
tion as a condition of employment, as authorized in
Section 8(a)(3) of the Act.
2. Take the following affirmative action which we
find will effectuate the policies of the Act:
(a) Upon request, bargain collectively with the
above-named Union, as the exclusive representative
of its employees in the above-described unit, ,concern-
in'g rates of pay, wages, hours of employment,, ,and
other terms and conditions of, employment and, if an
understanding is reached,-,embody such understand-
ing in a signed agreement.
,(b) Post at its plants in Clearfield County, ,Pennsyl-
vania, copies of the attached E notice marked
"Appendix."6 Copies of said notice, on forms
provided by the Regional Director for Region 6, after
being duly signed by Respondent's representative,
shall be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive: days
thereafter, in` conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent,to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify, the Regional Director for, Region 6, in
writing, within 20 - days from the date of ;this Order,
what steps the Respondent has taken, to comply
herewith.
- IT IS FURTHER ORDERED that the=complaint be, and it
hereby is,.dismissed insofar as it alleges violations of
the Act not, found herein.
CHAIRMAN MILLER, dissenting in part:
I am in substantial, agreement, with„ the panel
majority? except for its finding that^the Respondent
failed to bargain in good faith. I agree with the Trial
Examiner-that the -evidence establishes,that.the union
negotiators had no authority to agree. to. -wage rates
less than those called. for in its,national agreement.
The alternate proposal referred to by the, majority
was, in my, view, simply a maneuver designed to
reinforce the Union's insistence on its own-national
agreement and could hardly be regarded as a realistic
alternative, since prevailing construction rates in the
area were substantially higher than,, those in the
Union's national agreement. The evidence, makes it
plain that the Union assumed a take-it-or-leave-it
attitude throughout. This, as the Trial Examiner
found, constituted a refusal to bargain in good faith,
precluding a test of the Respondent Employer's good
faith.8 I would therefore affirm the Trial Examiners
dismissal of this allegation of the complaint.
e In the event that this is-enforced by it Judgment'of a United states
Court of Appeals, the ' words `in the notice reading "POSTED BYrORDER
OF THE NATIONAL LABOR RELATIONS BOARD-,shall be,changed
to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED
STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOAR!)."
7 I would adopt pro forma the Trial Examiner 's finding, that President
Thompson unlawfully conveyed the impression of surveillance ,by his
remarks to employee Lumadue shortly before the strike, as, no exceptions
v+erg filed thereto. , , ,
8 Roadhome Construction , Corp., ,170 NLRB No. 91.
THOMPSON BROTHERS COAL CO. 27 '
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize or bargain
collectively with, the United Mine Workers of
America as the exclusive representative of our
employees in the unit described below, concerning
rates of pay, wages, hours of employment, and
other, conditions-of-employment:
All production and maintenance employees
of Thompson Brothers Coal Company, Inc.,
Thomipson'Coal'Company, Inc., and Thomp-
son and Phillips 'Clay Company, Inc., at its
strip'mines in Clearfield County, Pennsylva-
nia, including processing and loading plant
employees, but excluding all office clerical
employees, guards, professional employees
and supervisors as defined in the Act.
WE WILL Not, bypass said Union and attempt to
deal directly with the employees on matters
subject` to collective bargaining or in any other
manner refusing, to bargain -with said Union.
WE WILL NOT impose or threaten physical or
economic reprisals against employees for partici-
pating in union activity nor will we make infer-
ences to employees =that their union activities
are under surveillance.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of rights to , self-organization, to form labor
organizations,. "to join or assist the above-named
Union or any other labor organization, to bargain
collectively ,through representatives of their own
choosing, and = to engage in any other concerted
activities for the purpose,of collective bargaining
or other, mutual aid or, protection, or to refrain
from any or, all s-such activities, except to the extent
that such right may be'-affected by an agreement
requring membership in a, labor organization as a
condition of employment, as authorized in'Section
8(a)(3) of the Act.
THOMPSON BROTHERS
COAL COMPANY, INC.,
THOMPSON COAL
COMPANY, INC., AND
THOMPSON AND PHILLIPS
CLAY COMPANY, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and-must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 1536 Federal, Building, 1000 Liberty Avenue,
Pittsburgh, Pennsylvania 15222, Telephone 412-644-
2977.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE E. DIXON, Trial Examiner: This proceeding,
brought under Section 10(b) of the National Labor
Relations Act, as amended (61 Stat. 136, hereinwcalled the
Act), was heard at Clearfield,' Pennsylvania, on December 8
and 9, 1970, pursuant to due` notice with all parties
represented by counsel. Thecomplaint, issued September
30, 1970, by the Acting Regional Director for Region 6,
Pittsburgh, Pennsylvania, on behalf of the, General Counsel
of the National Labor Relations Board , herein called the
General Counsel and the Board -(based on a charge. filed
July 14, 1970, and served on July 15, 1970) alleged, that
Respondent had engaged in unfair labor practices pro-
scribed by Section 8(axl) and (5) of -the Act.
The substance of the allegations was that Respondent
had interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed by Section 7:of the Act
by various specified conduct and had refused to bargain
with the Union as the representative of a majority of
Respondent's production and maintenance employees in
an appropriate unit. The complaint also alleged that a strike
by Respondent's employees that started on August 8, 1970,
was "caused and prolonged by Respondents unfair labor
practices.
In its duly filed answer Respondent denied any violation
of the Act,
Upon the entire record and from my observation of the,
witnesses I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent is comprised of, three Pennsylvania corpora-
tions , which are affiliated business enterprises with
common ownership, control, and --labor policy- which
constitute a single integrated business enterprise . Respon-
dent, whose principal office is located in Phillipsburg,-
Pennsylvania, is engaged in the mining ,, processing, : and
nonretail sale of eoal,at its mine `site in Clearfield County,
Pennsylvania. During the 12-month -period immediately
preceding the issuance of the complaint each of said
corporations individually and/or collectively- sold goods
valued in excess of $50,000-from inside the Commonwealth
of Pennsylvania to- points directly outside the Common-
wealth of Pennsylvania. 'I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
28', DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if. THE ,,LABOR. ORGANIZATION,
United Mine Workers of America is a labor organization
within the meaning_of,Section 2(5) ,of the Act.
III. THE UNFAIR LABOR PRACTICES
On June 6, 1969, the Union was certified-as the collective-
bargaining agent of all of Respondent's production and
maintenance employees.' A'couple, of weeks thereafter the
first meeting between the Union and the Company took
place. Then followed some 10 or so meetings continuing
well into 1970. Nothing was agreed to in any of these
meetings other than that the Union indicated initially that it
would not object to interim, wage 'increases by the
Respondent. There followed a 30-cent increase and a
subsequent-50-centrincrease. The Union admits approval of
the 30-cent increase but maintains (contrary to Respon-
dent) that,the 50=cent increase was not agreed to"and thatit
constituted a unilateral actionly ' Respondent in violation
of Section - 8(ax5) ` of" the Act. On August 8, ' 1970, the
employees i went ,out on st> ike and ° the `strike was still in
progress at the time this case was heard.
The Union `would have' 'it "-by ° `its 'testimony that
Respondent flatly refused to,discuss any of the substantive
terms of a' conntract and took the position'thatit simply was
not"'going to ^ enter into a contract with the United Mine
Workers-, period. Respondent's position, is that the Union
precluded any meaningful ' negotiations. on a 'contract
because it had no authority' to ' agree to any rates less than
its national agreement called for and-'that its position was
that,anything less,thaa`thoserates including the 40'-cent-
per-ton payment to the Union for pension benefits 'were
not negotiable. In my opinion the evidence supports the
Respondent's ition.
Thus it appears'that in one of the first meetings the Union
submitted a copy of -its` basic contract, the "National
Bitiiminous"Coal' Wage Agreement of 1969; together with
the rates provided for in the agreement, for various
classifications of coal mining personnel. 'Thette is no'doubt `
that this matter of the wage rates and the 40-cent royalty
became -a "major issue ' between the parties and , that
Respondent resisted acceptance of the rates in'the national
agreement and payment of, the 40-cent royalty. During the
course of the meetings 'Respondent did, however, make
offers to increase its wage rates but to levels lower than
were contained in the national agreement.
Apparentlyto counter Respondent' s claim ithat-`the
Union. could,,not negotiate for rates less than those, the
national,agreement called for, the Union came'.up with an
offer,of what 'it' claimed 'were' the prevailing construction
rates in that area for classifications comparable to those in
the national ,% agreement., These rates,- were substantially-
higher than those contained in the national agreement. As
to the, Union's wage offers Union President Owen V. Slagle,-
Sr., testified that Respondent "(h)ad two choices: either to
go into bardnose -bargaining ,on the rates prevailing in-(the)
area, so far as, wages (were),, concerned andfringe-benefits;
" t
I All production and maintenance-employees of ,,Thompson Brothers
Coal Company , Inc., „Thompson Coat Company, Inc., and Thompson and
Phillips Clay Company, Inc., at its 'stop mines in Clearfield" County,
Pennsylvania, including processing and loading plant employees, but
or, if ... wished, . . . could -accept (the Union's) contract
in total. It was his choice." Slagle's testimony then
continued as follows:
Q. But there has never been an agreement negotiat-
ed that has not at least had the basic -National
Bituminous Coal, Wage Agreement clauses in, it, has
there?'
A. You will have to define the clauses you're
speaking of. If you're talking about the basic agreement,
yes, that would be thebasic agreement that would be
attached to it as it is in "all cases:
Q. The- agreement itself =unchangeable=the agree-
ment itself is unchangeable??
A. I can't answer what you're asking me, because I
dof',t know what contextyou'rePutting it in..,
Q. All right. I'll put it this way. In our negotiations
with the United, Mine Workers with respect to these
companies, the'employers;,an offer' wl+as made on the
basis of wages that (were) lower than` the: iasic'wages
called for in your contract. ' "
A. That's right.
Q. 'Was there anyrpossibility.of reaching„a` compro-
mise between our offerand whatyou were'suggesting in
wages? I ,
A., I don't think that can be answered here. ,
Q. Well, let me- ask you this: When we''stated
September" 24, '1970,'-that we would- give a, 50-cent
across-the-board increase, would -it have been possible
at that time for you°or your union to have suggested'in
response to that offer, "no, we will not accept it, but' we
will agree that the men shall be paid a rate less ',thanthe
basic rate of 4.7196 for drag, line-.operator," for
instance?
A. You mean could we have told you that?
Q. Yes.
A. Pick any price you want? Our answer, has to be
no. We are not going to give you the right to'`say that we
can't negotiate.
Elsewhere=John Lease, the Union's; secretary-treasurer,
testified that the reason, the union negotiators, proposed, to
Respondent the construction =rates was because the Union
"wanted to assure him that (they) Were in the position or
willing to negotiate rates other than the basic rate(s) of the
contract " Lease,further.testified that he told the: Respon-
dent's negotiators that "all,the items in, the,contract were
negotiable :gvith` exception of the 40 cents and that 40 cents
is not a' negotiable-item. It's ndustrywida ogverithe country
for the men to participate in that, it's got to be equal."
Elsewhere in Lease's testimony the following colloquy
occurred: `
Q. i My question, Sir, to you was: Are you in a
position to negotiate-rates lesss than the basic contract?
A. I would, be a fool to accept anything less than I
knew thiscompany could afford to pay.
Q. - Would you answer my question, please?
A. Idid answer it. ,
excluding all office clerical employees, guards , professional employees and
supervisors as defined in the Act constitutes an appropriate unit for the'
purposes of collective bargaining within the meaning of Section 9 (b) of the
Act.
THOMPSON BROTHERS COAL CO. 29
- Q., Are you inya position to negotiate wage rates at
anything less than those called for in the-basic contract?
A. I'll answer you this way: I'm not fool enough to;
I know you can afford more.
Q. I'm asking you: Do you have authority to do so?
A. I told you we had the authority to negotiate a
contract
Q,,-:I--ask-,you: Do, you have - the authority to
negotiate wage rates less than those set forth in the basic
contract? - - , ,
A. - Why should we?= Now, the operators in this area
right -now, are paying those rates and some of them
higher than the=rates.
-MIL LEE: Would you, direct-him to answer that
question? ' - -
,TiuAL ExAmNER: Do you have the authority or don't
you. I think it is a simple question. Answer it.:
` THE;,wrrNEss: We never went into detail that far so
that we-could, negotiate anythingless than what they
can afford: We know they cap afford to pay it.
As ,indicated, ,the-foregoing evidence in my opinion bears,
out Respondent's contention-that-the union negotiators had
no authority to agree to wage rates less than called for in
the basic contract and That anything less than those'rates;
including the 40-cent royalty, were actuallynonnegotiable.
The unilateral --exclusion or. - limitation , of any clearly
bargainable matters such, as pertained here is a refusal to
bargain in itself.,, Notwithstanding how Respondent's
conduct might have been appraised in'the absence of such
intransigence by the Union, in the face of-the Union's lack
of good faith -here it cannot be said-- that Respondent's
conduct at the-bargaining table violated Section 8(a)(5) of
the Act. I so find. Times Publishing Company, 72 NLRB
676; American -.Cyanamid Company (Marietta Plant), 129
NLRB ,683; =Artiste Permanent Ware- Company, -172 NLRB
No. 683; United Electrical, Radio & Machine Workers -of,
America (UE), Local 1113 v. N.L.R.B., 223 F.2d 338.
Since the failure to reach agreement on a contract cannot
be charged to Respondent, the strike that began on August
8 cannot be said to have been caused by Respondent's
unfair labor practices.2 However, the credited evidence
further shows that conduct by Respondent subsequent to
the strike did violate both Section 8(a)(1) and (5) and thus
converted what originally was an economic strike into an
unfair labor practice strike.
Thus, in September 1970 Thompson called employees
Walter Fullerton and Ray Lark to his office. There
Thompson told them that he wanted them to complete
certain work and offered them an increase of 50 cents an
hour if they would do the work. The employees told
Thompson that they would have to take it up with the other
strikers and would let him know. The following day
Thompson was informed that the men had rejected his
offer.
Such bypassing by Respondent of the duly certified
collective-bargaining agent of the employees and dealing
with them directly violated both Section 8(a)(1) and (5) of
the Act .3 Respondent, is mistaken if it feels that because the
work it requested the, employees to do was tempolii:' and
in the nature of emergency ,work the prohibition in the Act
against direct dealings,with.the employees at the exclusion
of their bargaining representative was permissible.
A- short time, after Thompson's request to, Fullerton and
Lark to return to_work had been rejecteddtiThompson_called
Fullerton on the telephone, cursed him, and stated thatt"he
was.going to get" Fullerton, and Lark because , of weir
rejection of his request to come, back' to " work. In the
conversation,Thompson' also stated that he was going to
dynamite Union President Staples' home.
Sometime thereafter, around October 6, Thompson went
to Lark's home and again `castigated, him, for, "not doing
right" by,him and threatening to,'have Staples and a local
judge who had semen to the strikers `,'put away-.In both
the foregoing situations there is, no doubt that Thompson
was in. a state of, agitation ,that- must -have bordered on
frenzy when these conversations took plAce -and that the
employees involved may have diseountedUnnucli ofwhat
Thompsonsaid. Nevertheless I still find `Thompson's
threats here to have violated Section 8(a)(_1)of the Act.
The day after the strike, began -employee'^Boyd Jenkins
met, Leroy, Thompson's brother Burt, an a_ dmitted supervi-
sor, ,by chance in a bar. Thompson-told Jenkins that the
employees' hospitalization, had, been. canceled 5 and that a
50-cent per hour raise previously -granted them would be
taken away when they returned to work.'Jenkins.said, that
he would look for another job. Thompsonanswered, "vwell,
we've got that stopped ,too .. , we've called everybody and
there's-no use in going anywhere around here : hunting for a
job because you're' not going to get it." Thompson also told
Jenkins that he knew whohad voted to go out on strike.
The cancellation of the employees', hospitalization coverage
and the threats to reduce the employees' wages and to
blacklist them for engaging in union activities I find to be
additional violations by Respondent of Section 8(a)(1) of
the Act. Thompson's further remark about knowing who
had voted to go out on strike constitutes an additional
inference to the employees that their union activities were
under Respondent's surveillance and constituted a further
violation of Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce in the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
2 At the time of the strike only one violation of the Act had taken place.
Sometime in July, according to the credited evidence, Respondent's
president, Leroy Thompson, had told employee Frank Lumadue that he
knew the Union had scheduled a meeting for that evening in which a strike
vote was going to be taken. Thompson asked Lumadue to do what he
could to prevent a strike . Thompson's remarks violated Section 8(a)(1) by
giving Lumadue the impression that the employees' union activities were
under Respondent's surveillance.
3 Because I am not convinced that the General Counsel has proved by
the necessary preponderance that the 50 -cent increase by Respondent was
not permitted by the Union's original commitment to Respondent not to
stand in the way of any increases, I make no findings on that allegation.
4 It involved remedial backfilling required by state Law.
5 which was true.
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V: THE REMEDY
Having found that Respondent has- engaged in certain
unfair labor practices affecting commerce, I shall recom-
mend ` that it cease and desist therefrom and take certain
affirmative action in order to effectuate the policies of the
Act.
Having' found that Respondent refused to bargain
collectively with the Union by bypassing the Union and
attempting to deal directly- with the employees, I shall
recommend that Respondent cease and desist therefrom or
in any other manner refusing to bargain with the Union.
However, in view "of'theiillegal position 'taken by the Union
with respect - to negotiations themselves , I -shall 'not
recommend an affirmative order to bargain.
Having found that the strike herein was an unfair labor
practice strike , ' I shall recommend that Respondent offer,
upon application,-, immediate reinstatement to the strikers
to then former F or" substantially - equivalent positions,
without prejudice " to, their' seniority ' and other rights and
privileges, dismissing, if necessary, any replacements hired
since September `7, 1970" (the approximate date that the
strike was converted from an economic strike ''- to an unfair
labor practice strike). - ''
Having"found `that Respondent's cancellation of - its
employees' Hospitalization insurance violated the Act,` I
shall recommend restoration of such insurance . Further, in:
the event that any employee suffered any expense as a
result of the cancellation of said ` insurance, I will
recommend that Respondent reimburse the employee for
the expense so incurred.
In vie*. of the nature of the unfair labor practices
committed, the commission by the Respondent of-similar
and other unfair labor ' practices may be, anticipated.
Therefore I shall recommend that the Respondent cease
and desist from infringing in any manner upon the rights
guaranteed in Section 7 of the Act.
Upon the basis of the above findingsof..factand upon the
entire record in,the case , 1 make the =following:,
CONCLUSIONS OF LAW ' "
1. At all times material Respondent has been engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act
2. United Mine Workers of America is , -a, -labor
organization within the meaning of Section 2 (5) of the Act.
3. By imposing and- threatening physical or, , economic
reprisals for participating in union -activity aid -making
inferences to , employees that their union activities are under
surveillance, Respondent has interfered with , restrained,
and coerced employees within . the meaning of Section
8(aXl) of the Act.
4. All production and maintenance., employees of
Thompson Brothers , Coal Company, Inc.,; 'Th ompson ; Coal
Company, Inc:, and Thompson; and Phillips Clay -.Compa-
ny,,, Inc., at its strip- mines m,Clearfield County„Pennsylva-
nia, including processingand ioading:plantemployees ,^but;,
excluding all office clerical employees , guards, professional,
employees and, supervisors ,as, defined in the Act -constitute,
an appropriate unit for the,, purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act. , ` -
5. At all times since June 6, 1969 , the Union has=been'
the exclusive :representative -,of all employees in r the above
unit within the meaning of Section 9(a)'of the Act.
6, By bypassing the Union and Iealin& directly with,
employees regarding matters subject to collective, bargain-
ing, ' Respondent ' has failed and. -refused ` to bargain in
violation of Section 8(aX5) of the Act.,'
7. The 'strike that began on August g as an: economic
strike was converted to an unfair laborpractice;strike by-
September 7, 1970.
[Recommended Order omitted from publication.]