United Mine Workers

National Labor Relations Board - Board Decisions

Sep 18, 1981

258 N.L.R.B. 56 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union, United Mine Workers of Amer-
ica; International Union, United Mine Workers
of America, District 21; International Union,
United Mine Workers of America, Local 2428
and Garland Coal & Mining Company. Case
16-CE-11 I
September 18, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On February 11, 1981, Administrative Law
Judge Jay R. Pollack issued the attached Decision
in this proceeding. Thereafter, the Respondents and
the Charging Party filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record' and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, 2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondents, International
Union, United Mine Workers of America; Interna-
tional Union, United Mine Workers of America,
District 21; International Union, United Mine
Workers of America, Local 2428, their officers,
agents, and representatives, shall take the action set
forth in said recommended Order, except that the
attached Appendixes A and B are substituted for
those of the Administrative Law Judge.
I On February 25, the Respondents filed a motion to amend the cap-
tion by deleting "International Union" as its relates to District 21 and
Local 2428. The General Counsel and the Charging Party opposed the
motion. The motion is hereby denied as the Board finds that the caption
correctly identifies the parties.
2 The Respondents have excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not
to overrule an administrative law judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Prod-
ucts, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing his
findings.
258 NLRB No. 11
APPENDIX A
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT enter into, maintain, or give
effect to, or enforce the following portion of
the "repair and maintenance work" provision
(art. 1 (A), sec. (g), par. (2)) of the National
Bituminous Coal Wage Agreement of 1978:
. . .provided, however, that the work shall
be performed by UMWA members to the
extent and in the manner permitted by law.
WE WILL NOT in any other manner violate
Section 8(e) of the National Labor Relations
Act, as amended.
INTERNATIONAL UNION, UNITED MINE
WORKERS OF AMERICA
APPENDIX B
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAl. LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
We will not enter into, maintain, or give
effect to, or enforce the following portion of
the "repair and maintenance work" provision
(art. 1 (A), sec. (g), par. (2)) of the National
Bituminous Coal Wage Agreement of 1978:
. . .provided, however, that the work shall
be performed by UMWA members to the
extent and in the manner permitted by law.
WE WILL NOT in any like or related manner
violate Section 8(e) of the National Labor Re-
lations Act, as amended.
INTERNATIONAL UNION, UNITED
MINE WORKERS OF AMERICA, DIS-
TRICT 21
56
UNITED MINE WORKERS
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge: This
case was heard before me in Muskogee, Oklahoma, on
October 2, 1980.' Pursuant to a charge filed against In-
ternational Union, United Mine Workers of America
(Respondent International), International Union, United
Mine Workers of America, District 21 (Respondent Dis-
trict), and International Union, United Mine Workers of
America, Local 2428 (Respondent Local), by Garland
Coal & Mining Company (Garland) on March 3, the
Acting Regional Director for Region 6 of the National
Labor Relations Board issued a complaint and notice of
hearing against Respondents on March 28, alleging in
substance that Respondents violated Section 8(e) of the
National Labor Relations Act, as amended, by entering
into, maintaining, and giving effect to an agreement
which would require Garland to cease and refrain from
doing business with or dealing with subcontractors who
do not employ members of Respondent International.
All parties have been afforded full opportunity to par-
ticipate, to introduce relevant evidence, to examine and
cross-examine witnesses, and to file briefs. Based upon
the entire record, 2 upon the briefs filed on behalf of the
parties, and upon my observation of the demeanor of the
witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Garland is a Missouri corporation doing business in the
State of Oklahoma, where it is engaged in the strip
mining of coal at various locations. During the 12
months preceding issuance of the complaint, Garland
shipped goods valued in excess of $50,000 directly to
customers located outside the State of Oklahoma. The
complaint alleges, the answer admits, and I find that
Garland is engaged in commerce and in a business affect-
ing commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, the answer admits, and I find
that Respondents are each labor organizations within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Respondents and Garland are parties to a collective-
bargaining agreement entitled National Bituminous Coal
Wage Agreement of 1978 (NBCWA). Article I(a), sec-
tion (g), paragraph (2), of the NBCWA contains the fol-
lowing provision at issue herein:
(2) Repair and Maintenance Work-Repair and
maintenance work customarily performed by Classi-
fied Employees at the mine or central shop shall not
be contracted out except (a) where the work is
being performed by a manufacturer or supplier
I All dates hereinafter are in 1980 unless otherwise noted.
2 Errors in the transcript have been noted and corrected
under warranty, or (b) where the Employer does
not have available equipment or regular Employees
with necessary skills available to perform the work
at the mine or central shop, provided, however,
that the work shall be performed by UMWA mem-
bers to the extent and in the manner permitted by
law. 3
The instant case arises out of a written grievance filed
by Allen McCoy, a welder at Garland's Rose Hill Mine,
alleging that the Employer violated the instant provision.
During the middle of February, McCoy orally filed a
grievance with Donald Lawley, assistant mine superin-
tendent. McCoy's grievance dealt with repair work
which was done away from the site on a front-end
loader. McCoy told Lawley that Garland was shipping
loader arms to a nonunion shop and that he (McCoy)
wanted this practice stopped or he would file a griev-
ance.
On February 17 McCoy invoked the second step of
the grievance procedure by filing a written grievance.
The grievance alleged:
That work on equipment-routine repair and main-
tenance is being regularly contracted out to a non-
union shop. As we do have the skills & the equip-
ment to perform many of the projects being shipped
out (example: rebuilding and fishplating loader
arms) it is felt that this is in direct violation of Arti-
cle IA, Section a, page 3 and Article IA, Section g,
paragraph 2, page 6-National B.C.W. agreement of
1978.
A second-step meeting, pursuant to the grievance pro-
cedure, was held on that same date. A committee of em-
ployees, called the mine committee4 headed by Elbert
Owens, president of Respondent Local, presented the
grievance to Garland's representatives. During the meet-
ing, McCoy reiterated his position that he wanted the
shipment of repair work to "non-union UMW employ-
ees" stopped. Further, during the meeting Owens stated,
"I'm getting tired of arguing about it, this work is going
to be done by Union employees. " 5 The position of the
mine committee, at the conclusion of the second step,
read as follows:
We feel that our certified welders are sufficiently
trained and experienced to take care of the regular
maintenance on any equipment at this mine. There
is no need for contracting out work.6
3 Hereinafter referred to as the repair and maintenance work provision.
4 Under the NBCWA, a mine committee consisting of at least three
but not more than five employees shall be elected by the employees at
each mine. The duties of the mine committee are confined to the adjust-
ment of disputes arising out of the agreement. The committee has the au-
thority on behalf of the grievant to settle or withdraw any grievance at
step two or proceed to step three. The NBCWA specifically provides
that the committee shall have no authority or control nor in any way in-
terfere with the operations of the mine.
I To the extent that Owens' testimony differs from the credited evi-
dence set forth above, his testimony is not credited.
' Owens had first written, and then deleted from the mine committee's
statement of positionl, a reference to nonunion subcontractors
57
DECISIONS OF NATIONAL LABOR REALTIONS BOARD
The Employer's position was that the work at issue
was not routine maintenance work. Failure to re-
solve the grievance at the second step led to a third
step meeting.
On February 26, Robert Oswald, president of Re-
spondent District, presented the grievance to Lawley
and Lemuel Ballard, Garland's general superintendent.
At the outset of the meeting, Oswald read the grievance,
as written by McCoy, to the assembled parties. 7 Ballard
told Oswald, McCoy, Owens, and the mine committee
that the portion of the bargaining agreement relied on
for the grievance was unlawful. Oswald answered that
he was not an attorney and that he could not respond.
However, Oswald offered to make a side agreement re-
garding what work Garland could subcontract out. Bal-
lard refused to make any side agreement to the
NBCWA. Oswald then stated that, having failed to reach
an agreement, he would take the matter to arbitration.
On February 26, J. F. Porter III, Garland's vice presi-
dent, wrote Oswald reiterating Garland's position that
the contract clause was an unlawful "hot cargo" agree-
ment and, therefore, the instant grievance was not prop-
erly arbitrable. On March 5, Oswald answered Porter's
letter and sought to clarify Respondent International's
position. Oswald stated:
Since the disagreement we have at the Rose Hill
Mine is over which repair and maintenance work
may or may not be contracted out and not over who
may perform such work when contracting out is
permitted, settlement of this type of disagreement
must be accomplished through the
grievance/arbitration procedure.
The grievance was taken to arbitration, notwithstanding
Garland's position that the dispute was not properly arbi-
trable.
The grievance, among others, was presented to arbi-
trator Neil M. Bernstein on June 9 and 10. Before the ar-
bitration, Oswald made no attempt to delete the refer-
ence to nonunion shops, or to amend the grievance.
However, during the arbitration proceedings, Oswald
stated that Garland could not subcontract any of the
work at issue and, therefore, he was not seeking to place
restrictions on the identity of Garland's subcontractors.
The arbitrator, without reaching any of the statutory
issues herein, denied the grievance. Respondent Interna-
tional's appeal of this decision was still pending at the
time of the instant hearing.
Analysis and Conclusions
Section 8(e) of the Act provides in pertinent part:
(e) It shall be an unfair labor practice for any
labor organization and any employer to enter into
any contract or agreement, express or implied,
whereby such employer ceases or refrains or agrees
? Oswald admitted that he did not modify or amend McCoy's griev-
ance. Oswald testified that he did not modify the grievance because, "it
was my opinion I was supporting the spirit of the grievance complaint"
To the extent that Oswald's testimony differs from the credited evidence
set forth above, his testimony is discredited.
to cease or refrain from handling, using, selling,
transporting or otherwise dealing in any of the
products of any other employer, or to cease doing
business with any other person, and any contract or
agreement entered into heretofore or hereafter con-
taining such an agreement shall be to such extent
unenforceable and void ....
In the recent case of International Union, United Mine
Workers of America and Peabody Coal Company, 253
NLRB 171 (1980), the Board found that the "repair and
maintenance work" provision at issue in this case violat-
ed Section 8(e) of the Act. See also United Mine Workers
of America, Local No. 1854 and United Mine Workers of
America (Amax Coal Company), 238 NLRB 1583 (1978),
affd. in relevant part 614 F.2d 872 (3d Cir. 1980). In Pea-
body Coal the Board affirmed the Administrative Law
Judge's finding that the repair and maintenance work
provision exceeded the legitimate interests of the unit
employees vis-a-vis their own employer (e.g., work pres-
ervation) and was totally calculated to satisfy union ob-
jectives elsewhere (e.g., to protect, preserve, acquire or
reclaim work for union members generally). The Board
further affirmed the Administrative Law Judge's finding
that only the following portion of the repair and mainte-
nance work provision was unlawful:
. . provided, however, that the work shall be per-
formed by UMWA members to the extent and in
the manner permitted by law.
Absent the above unlawful provision, the repair and
maintenance work provision was deemed lawful. Ac-
cordingly, the Board in Peabody Coal ordered Respond-
ent International only to cease and desist from entering
into or reaffirming the offending portion of the provi-
sion.
As discussed above, the language of the repair and
maintenance work provision violates Section 8(e) of the
Act. However, that agreement was executed outside the
6-month statute of limitations established by Section
10(b) of the Act.8 The issue then becomes whether Re-
spondents engaged in any conduct within the 10(b)
period which can be characterized as an "entering into"
of the unlawful provision. The Board has interpreted the
words "to enter into" broadly to encompass the concepts
of reaffirmation, maintenance, or giving effect to any
agreement which is within the scope of Section 8(e). Dan
McKinney Co., 137 NLRB 649, 653 (1962); Local 1149,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, (American President Lines, Lid.), 221 NLRB
456 (1975); Bricklayers and Stone Masons United Local
No. 2, et al. (Gunnar I. Johnson & Son, Inc.), 223 NLRB
1021 (1976); United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, Los Angeles County District Coun-
cil, et al. (Clyde E. Mitchell), 240 NLRB 471 (1979).
Here, Respondents sought to enforce the unlawful repair
Sec. 10(h) of the Act provides in pertinent part:
That no complaint shall issue based upon any unfair labor practice
occurring more than six months prior t the filing of the charge with
the Board and the service of a copy thereof upon the person against
whom such charge is made . . .
58
UNITED MINE WORKERS
and maintenance work provision by the processing of
McCoy's grievance. The unilateral enforcement of such
an unlawful clause is violative of Section 8(e), whether
or not asserted to or acquiesced in by the other party to
the contract. Id.
Respondent argues that it sought only to enforce that
portion of the subject clause which was deemed lawful
in Peabody Coal. However, the credited facts, as set forth
above, show that the subject of subcontracting to a
"nonunion shop" was a major concern of Respondents at
both the second and third step of the grievance proce-
dure. It was not until after the third step of the grievance
procedure that Oswald sought to "clarify" Respondent's
position.9 Where, as here, a union seeks to enforce a
clause which on its face violates Section 8(e) it must
clearly express its intention to enforce the clause to the
extent it is lawful. Where the enforcement of the unlaw-
ful clause is broadly or generally sought, a later change
of position, whether or not it is labeled a clarification,
does not serve to vitiate the unlawful reaffirmation of the
clause. Thus, in my view, Oswald's letter of March 5
does not dissipate the unfair labor practice nor does it
make unnecessary a remedial order.
Respondent International argues that it is not bound
by the acts of its subordinate bodies. I reject this argu-
ment based on the following facts and analysis.
Respondent International is the certified exclusive bar-
gaining representative of Garland's employees at its Rose
Hill Mine, Lequire, Oklahoma.' ° In its constitution, Re-
spondent International delegates to its districts, including
Respondent District, the responsibility for implementing
and administering all of its collective-bargaining agree-
ments covering any members of the relevant district. In
so doing, Respondent International establishes Respond-
ent District as its agent for the implementation and ad-
ministration of the collective-bargaining agreement at
issue herein. As mentioned above, under the collective-
bargaining agreement, the mine committee has been dele-
gated the authority to settle or withdraw any grievance
at the second step or proceed to the third step. If the
matter is not resolved at step two the grievance is re-
ferred to a representative of the district. If agreement is
not reached at step three, the district may refer the dis-
pute to an arbitrator. '
Respondents correctly argue that Respondent Local
and Respondent District are legal entities apart from Re-
spondent International and that Respondent International
is not automatically responsible for the acts of its affili-
ates See, e.g., Coronado Co. v. United Mine Workers of
America, 268 U.S. 295, 299 (1925), International Brother-
hood of Electrical Workers, AFL-CIO (Franklin Electric
Construction Company), 121 NLRB 143, 147 (1958).
However, the basis for holding Respondent International
responsible for the acts of its subordinates is based not on
9 See, e.g., Coronado Coal Company v. United Mine Workers of .4mer-
ica, Oswald's letter to Porter in which Respondents "clarified" their posi-
tion with regard to the repair and maintenance work provision as dated
March 5, one day after Respondent District received a copy of the in-
stant charge.
'O Case 16-RD-844.
"i Oswald, president of Respondent District, testified, consistent with
the agreement and the constitution, that he had the authority to with-
draw, settle, or refer to arbitration any dispute that is referred to him.
affiliation but rather is based on its delegation of its con-
tractual and statutory duties for the enforcement of its
contract to Respondent District and the mine committee.
Having delegated its contractual and statutory duties to
the mine committee and Respondent District, Respond-
ent International created an agency. It cannot now dis-
avow its agents' actions vis-a-vis Garland, the other prin-
cipal to the contract. t This is particularly true where,
as here, the agents were acting within the scope of their
delegated authority. Simply stated, Respondent Interna-
tional delegated its duties under the contract but did not,
and could not, delegate its responsibilities.
In sum, I find that, by enforcing the repair and mainte-
nance work provision of the NBCWA at the second step
and third step of the grievance procedure, Respondents
through the mine committee, Elbert Owens, president of
Respondent Local, and Robert Oswald, president of Re-
spondent District, entered into an agreement in violation
of Section 8(e) of the Act.
CONCL.USIONS OF LAW
I. Garland Coal & Mining Company is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Respondents, International Union, United Mine
Workers of America; International Union, United Mine
Workers of America, District 21; and International
Union, United Mine workers of America, Local 2428,
are labor organizations within the meaning of Section
2(5) of the Act.
3. The repair and maintenance work provision of the
National Bituminous Coal Wage Agreement of 1978 is an
agreement violative of Section 8(e) of the Act.
4. By enforcing the repair and maintenence work pro-
vision of the NBCWA at the second step and third step
of the grievanoe procedure, Respondents reentered into
an agreement in violation of Section 8(e) of the Act.
5. The above unfair labor practice is an unfair labor
practice affecting commerce and the free flow of com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondents have engaged in an
unfair labor practice, I shall recommend that they cease
and desist therefrom. In order to effectuate the purposes
of the Act. I shall also recommend that Respondents
take certain affirmative action.
In view of the violations found in Amax and Peabody
Coal. supra, and the entire record herein, I conclude that
Respondent International has a disregard for its obliga-
tions under the Act and I accordingly believe that a
broad cease-and-desist order is necessitated. See Hickmort
Foods, Inc., 242 NLRB 1357 (1979).
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record, and pursuant to
12 Responldents cite United States Steel Corporation v United Mine
Ulbrkers of, merica. District 20, et al., 59X8 F 2d 363 (5th Cir 1971). for
the proposition that Respondent International and Respondent District
are not responsible fir the acts of the mine committee That case. which
deals with liabiliit for a wildcat strike. is cleark inapposite
59
DECISIONS OF NATIONAL LABOR REALTIONS BOARD
the provisions of Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER' a
A. The Respondent, International Union, United Mine
Workers of America, its officers, agents, and representa-
tives, shall:
1. Cease and desist from:
(a) Entering into, maintaining, giving effect to, or en-
forcing the following portions of the repair and mainte-
nance work provision (art. I(A), sec. (g), par. (2)) of the
National Bituminous Coal Wage Agreement of 1978:
.. provided, however, that the work shall be per-
formed by UMWA members to the extent and in
the manner permitted by law.
(b) In any other manner violating Section 8(e) of the
Act.
2. Take the following affirmative action:
(a) Post at its business offices and meeting halls copies
of the attached notice marked "Appendix A."'4 Copies
of said notice, on forms provided by the Regional Direc-
tor for Region 16, after being duly signed by an author-
ized representative of the above-named labor organiza-
tion, shall be posted by it immediately upon receipt
thereof, and be maintained by for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to members are customarily posted. Rea-
sonable steps shall be taken by the above-named labor
organization to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Sign and deliver to the Regional Director for
Region 16 sufficient copies of said notice, to be furnished
13 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
14 In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
by the Regional Director, for posting by Garland Coal &
Mining Company, if willing.
(c) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order, what
steps Respondent International has taken to comply here-
with.
B. Respondents, International Union, United Mine
Workers of America, District 21, and International
Union, United Mine Workers of America, Local 2928,
their officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Entering into, maintaining, giving effect to, or en-
forcing the following portions of the "repair and mainte-
nance work provision (art. I(A), sec. (g), par. (2)) of the
National Bituminous Coal Wage Agreement of 1978:
..provided, however, that the work shall be per-
formed by UMWA members to the extent and in
the manner permitted by law.
(b) In any like or related manner violating Section 8(e)
of the Act.
2. Take the following affirmative action:
(a) Post at their business offices and meeting halls
copies of the attached notice marked "Appendix B. 5
Copies of said notice, on forms provided by the Regional
Director for Region 16, after being duly signed by an au-
thorized representative of each of the above-named labor
organizations, shall be posted by them immediately upon
receipt thereof, and be maintained by them for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to members are customarily
posted. Reasonable steps shall be taken by the above-
named labor organizations to insure that said notices are
not altered, defaced, or covered by any other material.
(b) Sign and deliver to the Regional Director for
Region 16 sufficient copies of said notice, to be furnished
by the Regional Director, for posting by Garland Coal &
Mining Company, if willing.
(c) Notify the Regional Director or Region 16, in
writing, within 20 days from the date of this Order, what
steps each Respondent has taken to comply herewith.
'" See fn. 14, supra.
60