United Mine Workers of America

National Labor Relations Board - Board Decisions

Jun 16, 1971

191 N.L.R.B. 209 (N.L.R.B. 1971)

UNITED MINE WORKERS OF AMERICA 209
United Mine Workers of America and United Mine
Workers of America , District 6 and The James
Brothers Coal Company . Cases 8-CB-1495 and 8-
CC-436
June 16, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND BROWN
On October 29, 1970, Trial Examiner Stanley N.
Ohlbaum issued his Decision in the above-entitled pro-
ceeding, recommending that the Respondent Unions
cease and desist from certain conduct and take certain
affirmative action designed to effectuate the policies of
the National Labor Relations Act, as amended, as set
forth in the attached Trial Examiner's Decision. There-
after, the Charging Party filed exceptions to the Trial
Examiner's Decision.
Under date of February 24, 1971, the General Coun-
sel executed a stipulation with the Respondents, in
settlment of the case, subject to approval by the Na-
tional Labor Relations Board, providing for 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 procedure before
the Board to which they might be entitled under the
Act and the Rules and Regulations of the Board, and
the Respondents waived their right to contest the entry
of the consent judgment or to receive further notice of
the application therefor. The Charging Party has
refused to execute the stipulation and has filed a state-
ment of objections with respect to it.
Pursuant to the provisions of Section 3(b) of the Act,
the Board has delegated its powers in connection with
this case to a three-member panel.
The Board has considered the Trial Examiner's
Decision, the Charging Party's exceptions, the settle-
ment stipulation, and the Charging Party's statement
of objections to the stipuplation, and the entire record
in the case. For the reasons stated hereinafter, we have
decided to reject the Trial Examiner's Decision and to
enter an order upon the basis of the settlement stipula-
tion.
Prior to, during, and after the hearing in these cases
before the Trial Examiner, the parties made efforts to
dispose of the proceedings by settlement. Following the
close of the hearing, counsel for the General Counsel
forwarded to the Respondents and the Charging Party
a proposed settlement stipulation. Counsel for Re-
spondents executed the stipulation and returned it to
the counsel for the General Counsel; however, the
Charging Party declined to execute the stipulation, and
the Regional Director thereafter decided not to submit
the stipulation to the Trial Examiner for his approval.
191 NLRB No. 34
The stipulation was, however , submitted to the Trial
Examiner by counsel for Respondents , and after cer-
tain procedural steps , as more fully set forth in his
Decision, the Trial Examiner , without making any
findings of fact or conclusions of law with respect to the
alleged violations , recommended entry of an, order in
conformity with that reflected in the proposed stipula-
tion . The Charging Party's exceptions question the pro-
priety of the Trial Examiner's procedure.
Subsequently , the parties were advised that the Re-
gional Director had reconsidered his position with re-
spect to the proposed settlement, and the settlement
stipulation was thereafter approved by the Regional
Office and the Office of the General Counsel and sub-
mitted to the Board for its approval. As stated above,
the Charging Party has objected to the approval of the
settlement stipulation.
The Charging Party 's basic objection to the settle-
ment stipulation , as presented to the Regional Director
and the General Counsel, is that it included a so-called
nonadmission clause . It is the Charging Party's posi-
tion in this connection that the record fully supports
the allegations of the complaint , that the Respondents
violated the Act, and that effectuation of the policies of
the Act in the circumstances requires that unless the
violations are admitted , findings of violations be made.
In addition, the Charging Party argued that the factors,
which the Board has stated it considers in determining
whether to accept a stipulation to which one party has
objected, do not support approval of the stipulation
here.
On February 24, 1971, the General Counsel sent a
letter to the Charging Party stating that after careful
consideration of its objections, he had decided that the
terms of the stipulation , with provision for enforcement
by a court decree , are fully consistent with the purposes
and policies of the Act. The Charging Party has
renewed these objections before the Board and asserts
in addition that there is no authority in the Board's
Rules and Statements of Procedure permitting settle-
ment after issuance of a Trial Examiner 's Decision.
In reviewing objections to and refusals to execute a
formal settlement agreement , we have previously stated
certain principles and considerations that guide us in
determining whether such a settlement agreement
should be approved and we see no necessity to reiterate
them now . Farmers Co-operative Gin Association, 168
NLRB 367. Suffice it to say that in arriving at our
decision here, we have taken these factors into consid-
eration , aware that in this area the discretion of the
Board is broad . Textile Workers Union of America,
AFL-CIO v. N..L.R.B., 294 F.2d 738 (C.A.D.C., 1961),
enfd . after remand 315 F.2d 41 (C.A.D.C ., 1963).
We have fully and carefully reviewed the Charging
Party's objections and find them without merit. Con-
cerning the Charging Party's basic objection , it is well
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
established that inclusion in the settlement of a nonad-
mission clause is not a valid basis for objection where
the settlement effectuates the policies of the Act. Con-
crete Materials of Georgia v. N.L.R.B., 440 F.2d 61
(C.A. 5, 1971). Indeed, this is the key test, and the
answer to it is determinative of the Charging Party's
other objections as well. Thus his objections as to tim-
ing-i.e., the acceptance of a settlement after hearing
or after findings have been made-do not find their
answer in any inflexible rules of pleading or practice.
The only relevant question is whether this settlement at
this time effectuates the policies of the Act.
We are satisfied that it does. The remedy provided is
that which we have developed as an appropriate one for
violations in cases of this kind. It is, so far as we can
determine, identical to the remedy which would be
accorded on the basis of the findings asked for by the
Charging Party.
Further, as pointed out by the General Counsel, im-
mediate court enforcement of the order, which accept-
ance of the settlement will make possible, provides even
more prompt enforceability than would be available if
we had entered a Board order which would be subject
to review in a U.S. Court of Appeals. Indeed, if the
settlement were not accepted, it would then become
necessary for this Board to review fully the Trial Ex-
aminer's Decision, including the rather unusual proce-
dure followed by the Examiner in arriving at his recom-
mended Order. Such consideration would necessarily
further delay entry of an enforceable order and might
substantially delay it if, after review, we should decide
that the unusual procedures required a remand.
Under all the circumstances, therefore, we are sat-
isfied that it will best effectuate the policies of the Act
to vacate the Trial Examiner's Decision and to accept
the settlement agreement,, which procedure is author-
ized by Section 102.48(b) of the Board's Rules and
Regulations.'
Accordingly, the aforesaid stipulation is hereby ap-
proved and made a part of the record herein. Upon the
basis of said stipulation, the Board makes the following:
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYERS
The James Brothers Coal Company, Charging Party
herein, is an Ohio corporation engaged in the mining
' Sec 102 48(b) provides "Upon the filing of timely and proper excep-
tions, and any cross-exceptions, or answering briefs, as provided in section
102.46, the Board may decide the matter forthwith upon the record, or after
the oral argument, or may reopen the record and receive further evidence
before a member of the Board or other Board agent or agency, or may make
other disposition of the case." (Emphasis supplied.)
and sale of coal at its operations located in Carroll
County, Ohio. During the calendar year 1969, in the
course and conduct of its business operations in Carroll
County, Ohio, Charging Party furnished products
valued in excess of $100,000 to, among others, PPG
Industries, Inc., in Barberton, Ohio, which annually
ships goods valued in excess of $50,000 directly to
points outside the State of Ohio.
Robert Slutz, herein called Slutz, is, and has been at
all times material herein, an individual proprietor do-
ing business under the trade name and style of R.E.
Slutz Trucking Co., with his principal office and place
of business located in North Industry, Ohio, where he
is engaged in the trucking business. For some years
Slutz has hauled coal from James Brothers mining op-
erations in Carroll County, Ohio, to various businesses
located within the State of Ohio.
Trans Trucking Company, Inc., herein called Trans
Trucking, is, and has been at all times material herein,
an Ohio corporation engaged in the business of hauling
coal solely for Trans-State Coal Company, herein
called Trans-State, also an Ohio corporation; both
Trans Trucking and Trans-State have their office and
principal place of business in the city of Magnolia,
Ohio; and Trans-State is engaged in the business of
selling coal purchased from Charging Party.
Delmar Shaner, an individual proprietor, doing busi-
ness as Delmar Shaner, has his principal office and
place of business in Magnolia, Ohio, where he is en-
gaged in the hauling of coal, including coal hauling for
Charging Party.
Robert C. Russell and Richard D. Linder are, and
have been at all times material herein, independent
contractors who haul coal for Trans Trucking.
At all times material herein, Robert L. Clark has
been an employee of Delmar Shaner.
Respondents admit, and we find, that Charging
Party, Slutz, Robert C. Russell, Richard D. Linder,
and Delmar Shaner are now, and have been at all times
material herein, employers engaged in an industry
affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Respondents United Mine Workers of America and
United Mine Workers of America, District 6, are now,
and have been at all times material herein, labor organi-
zations within the meaning of Section 2(5) of the Act.
ORDER
UNITED MINE WORKERS OF AMERICA 211
Upon the basis of the foregoing findings of fact, the
stipulation, and the entire record in the case, and pur-
suant to Section 10(c) of the National Labor Relations
Act, as amended, the National Labor Relations Board
orders that Respondent United Mine Workers of
America, and Respondent United Mine Workers of
America, District 6, their officers, agents, and repre-
sentatives, shall:
1. Cease and desist from:
(a) Restraining and coercing employees of The James
Brothers Coal Company in the exercise of their right to
refuse to participate in a strike by Respondent Interna-
tional Union and/or Respondent District Union
against The James Brothers Coal Company by acts or
threats of bodily harm or acts or threats of damage to
property.
(b) Restraining or coercing employees of The James
Brothers Coal Company in the exercise of their right
not to join Respondent International Union and/or
Respondent District Union by threatening employees
of The James Brothers Coal Company with bodily
harm.
(c) Blocking the ,entrances to the premises of The
James Brothers Coal, Company by mass picketing, or
otherwise preventing or impeding access, travel, or
movement to and from, said premises.
(d) Engaging in acts or threats of physical violence,
including the throwing of stones, rocks, or other mis-
siles toward the premises of The James Brothers Coal
Company, or against any persons on such premises.
(e) In any other manner interfering with, restraining,
or coercing the employees of The James Brothers Coal
Company in the exercise of rights guaranteed in Section
7 of the Act.
(f) Inducing or encouraging any individual employed
by Robert Slutz, d/b/a/ R. E. Slutz Trucking Co.,
Robert C. Russell, Richard D. Linder, or Delmar
Shaner, or any other individuals employed in, an indus-
try affecting commerce, to refuse in the course of their
employment to haul coal or to perform any services, or
threatening, coercing, or restraining said Robert Slutz,
d/b/a R. E. Slutz Trucking Co., Robert C. Russell,
Richard D. Linder, or Delmar Shaner, or any other
employer, where, in either case, an object thereof is to
force or require said Robert Slutz, d/b/a R. E. Slutz
Trucking Co., Robert C. Russell, Richard D. Linder,
or Delmar Shaner toc,cease doing business with The
James Brothers Coal Company with the further object
of causing The James' Brothers, Coal Company to
recognize or bargain with Respondent International`
Union and/or4Respondent District Union as the repre-
sentative ofxthe;employees of The James Brothers Coal
Companywhen neither-of such labor organizations has
been certifi'ed' as the bargaining representative of such
employees under the provisions of Section 9 of the Act.
2. 'Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Post in conspicuous places at its business offices
and meeting halls in Washington, D.C., and Bellaire,
Ohio, including all places where notices to members are
customarily posted, copies of the notices attached
hereto and marked "Appendix A" and "Appendix B,"
respectively. Copies of the notices, to be provided by
the Regional Director for Region 8, shall, after being
duly signed by representatives of Respondent Interna-
tional Union and Respondent District Union, respec-
tively, be posted by Respondent International Union
and Respondent District Union immediately upon re-
ceipt thereof, and be maintained by each of them for 60
consecutive days thereafter. Reasonable steps shall be
taken by Respondent International Union and Re-
spondent District Union to insure that such notices are
not altered, defaced, or covered by any other material.
(b) Mail to the Regional:-Director for Region 8,
signed copies of the said. notices for posting if The
James Brothers Coal.Company, Robert Slutz, d/b/a R.
E. Slutz Trucking Co.; Robert C. Russell, Richard D.
Linder, and Delmar Shaner, or any of them, are willing
in their respective places of business, in the places
where notices to employees are customarily posted. Co-
pies of said notices, to be provided by the Regional
Director for Region 8, shall, after having been signed
by representatives of Respondent International Union
and Respondent District Union, be forthwith returned
to the Regional Director for Region 8 for such posting
by The James Brothers Coal Company, Robert Slutz,
d/b/a R: E. Slutz Trucking Co., Robert C. Russell,
Richard D. Linder, and Delmar Shaner.
(c) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps Respondent International Union and Re-
spondent District Union have taken to comply here-
with.
IT IS FURTHER ORDERED that the Trial Examiner's
Decision issued herein on October 20, 1970, be, and it
hereby is, vacated.
APPENDIX A
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Based upon a stipulation providing for a consent decree
of The -United States Court of Appeals
WE WILL NOT restrain or coerce employees of
The James Brothers Coal Company in the exercise
of their right to refuse to participate in a strike by
us against this Company by acts or threats of
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bodily harm or acts or threats of damage to prop-
erty.
WE WILL NOT restrain or coerce employees of
The James Brothers Coal Company in the exercise
of their right not to join our labor organization by
threatening them with bodily harm.
WE WILL NOT block the entrances to the prem-
ises of The James Brothers Coal Company by mass
picketing, or otherwise prevent or impede access,
travel, or movement to and from said premises.
WE WILL NOT engage in acts or threats of
physical violence, including the throwing of
stones, rocks, or other missiles towards the prem-
ises of The James Brothers Coal Company, or
against any persons on such premises.
WE WILL NOT in any other manner interfere
with, restrain, or coerce the employees of The
James Brothers Coal Company in the exercise of
rights guaranteed in Section 7 of the Act.
WE WILL NOT induce or encourage any in-
dividual employed by Robert Slutz, d/b/a R. E.
Slutz Trucking Co., Robert C. Russell, Richard D.
Linder, Delmar Shaner, or any other individuals
employed in an industry affecting commerce, to
refuse in the course of their employment to haul
coal or to perform any services; nor will we
threaten, coerce, or restrain any of the employers
named above, or any other persons engaged in
commerce or in an industry affecting commerce,
where, in either case an object is to force or require
any of the employers named above, or any other
employers, to cease doing business with The James
Brothers Coal Company with the object of causing
The James Brothers Coal Company to recognize
or bargain with United Mine Workers of America
and/or United Mine Workers of America, District
6, as the representative of employees of The James
Brothers Coal Company when neither of such la-
bor organizations has been certified as the bargain-
ing representative of such employees under the
provisions of Section 9 of the Act.
UNITED MINE WORKERS
OF AMERICA
(Labor Organization)
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, 1695 Federal Office Building, 1240 East Ninth
Street, Cleveland, Ohio, 44199, Telephone 216-522-
3715.
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Based upon a stipulation providing for a consent decree
of the United States Court of Appeals
WE WILL NOT restrain or coerce employees of
The James Brothers Coal Company in the exercise
of their right to refuse to participate in a strike by
us against this Company by acts or threats of
bodily harm or acts or threats of damage to prop-
erty.
WE WILL NOT restrain or coerce employees of
The James Brothers Coal Company in the exercise
of their right not to join our labor organization by
threatening them with bodily harm.
WE WILL NOT block the entrances to the prem-
ises of The James Brothers Coal Company by mass
picketing, or otherwise prevent or impede access,
travel, or movement to and from said premises.
WE WILL NOT engage in acts or threats of
physical violence, including the throwing of
stones, rocks, or other missiles towards the prem-
ises of The James Brothers Coal Company, or
against any persons on such premises.
WE WILL NOT in any other manner interfere
with , restrain, or coerce the employees of The
James Brothers Coal Company in the exercise of
rights guaranteed in Section 7 of the Act.
WE WILL NOT induce or encourage any in-
dividual employed by Robert Slutz, d/b/a R. E.
Slutz Trucking Co., Robert C. Russell, Richard D.
Linder, Delmar Shaner, or any other individuals
employed in an industry affecting commerce, to
refuse in the course of their employment to haul
coal or to perform any services, nor will we
threaten, coerce, or restrain any of the employers
named above, or any other persons engaged in
commerce or in an industry affecting commerce,
where in either case an object is to force or require
any of the employers named above, or any other
employers, to cease doing business with The James
Brothers Coal Company with the object of causing
The James Brothers Coal Company to recognize
or bargain with United Mine Workers of America
and/or United Mine Workers of America, District
6, as the representative of employees of The James
Brothers Coal Company when neither of such la-
UNITED MINE WORKERS OF AMERICA 213
bor organizations has been certified as the bargain-
ing representative of such employees under the
provisions of Section 9 of the Act.
UNITED MINE WORKERS
OF AMERICA, DISTRICT 6
(Labor Organization)
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, 1695 Federal Office Building, 1240 East Ninth
Street, Cleveland, Ohio 44199, Telephone 216-522-
3715.
TRIAL EXAMINER'S DECISION
1. PRELIMINARY STATEMENT
STANLEY N. OHLBAUM, Trial Examiner: This is a pro-
ceeding under the National Labor Relations Act, as
amended, 29 U.S.C. Sec. 151, et seg. (Act), arising from May
11, 1970' consolidated complaints issued by the Board's Re-
gional Director for Region 8 (Cleveland, Ohio) based upon
a March 25 charge as amended April 1 (Case 8-CB-1495)
and an April 20 charge (Case 8-CC-436) filed by The James
Brothers Coal Company as Charging Party, alleging viola-
tions by Respondent Unions of Sections 8(b)(l)(A) and
8(b)(4)(i) and (ii)(B) of the Act through acts and threats
against the Charging Party's employees and others, as well as
against haulers of coal mined by the Charging Party aimed
at causing them to cease doing business with the Charging
Party, whose employees Respondents were attempting to
unionize. One of the complaints was amplified by amendment
without opposition at the hearing, which was conducted
before me, with all parties participating and represented by
counsel throughout, in Canton, Ohio, on June 23-24. Subse-
quent to the hearing, in view of circumstances to be described
which delayed disposition of this proceeding, a number of
extensions of time were allowed for the filing of posthearing
briefs. Because of the disposition herein, there is no longer
need for such briefs.
Developments Subsequent to Hearing
Subsequent to the hearing, the parties continued their
efforts, initiated prior to and furthered at and upon conclu-
sion of the hearing, to dispose of the proceeding by settle-
ment. By letter of August 20,2 Respondents' counsel advised
me that said counsel had at his own request received from
counsel for General Counsel a draft stipulation settling the
proceeding, which stipulation Respondents' counsel on Au-
gust 4 executed and returned to counsel for General Counsel;
1970 is the year referred to throughout.
This, as well as all other documents referred to herein, constitute a part
of and are incorporated in the record of this proceeding. They are enume-
rated in "Appendix C," attached.
that thereafter, on or about August 10, counsel for Respond-
ents received from counsel for General Counsel revised forms
of the notices to be posted under the aforesaid stipulation,
which revised notices were acceptable- to counsel for Re-
spondents; that on or About 12, counsel for Respondents
received from counsel for the Charging Party a motion di-
rected to the Regional Director for Region 8 seeking a hear-
ing on objections by the Charging Party to the proposed
settlement'; and that counsel for Respondents was in receipt
of a letter of August 17 from counsel for General Counsel
stating that the "Regional Director, has considered the 'Set-
tlement Stipulation' proposed by the Respondent Union in
the above captioned matters, as well as the Charging Party's
objections thereto, and has decided not to submit it to the
Trial Examiner for approval, in view of all of the circum-
stances." Counsel for Respondents in his August 20 letter to
me stated that he was unaware of the nature of the objections
to the proposed settlement or of the circumstances which
prompted the Regional Director to fail to join in the stipula-
tion, which his own counsel had prepared and forwarded to
counsel for Respondents.
The stipulation in question, which is annexed to Respond-
ents' counsel's August 20 letter to me, among other things:
(1) Recites the procedural history of the proceedings, in-
cluding the completed hearing held by me.
(2) Sets forth the jurisdictional and other allegations of the
complaints as amended at the hearing held before me.
(3) Contains a provision (par. 11) whereby Respondents
expressly "hereby each withdraw their respective answers to
the Complaints heretofore filed in these proceedings" and
waive any further hearing or "decision of Trial Examiner" as
well as briefs, exceptions, and other proceedings.
(4) States (par. 12) that the stipulation, charges as
amended, and complaints "shall constitute the entire record
herein"-thereby seemingly attempting to eliminate all pro-
ceedings held before me.
(5) Provides (par. 13) that upon the stipulation "and the
record herein as described in Paragraph 12 hereof" (i.e., as
described in (4), supra herein) there could forthwith be en-
tered a Board order, as well as an enforcing court decree-
with an express waiver of all defenses thereto-requiring Re-
spondents to cease and desist from the conduct complained
of, and to post the usual notices to members and employees.
(6) States that Respondents' execution thereof does not
constitute admission of violation of the Act.
(7) States that the stipulation is subject to Board approval.'
' Such a motion so directed would be misconceived, in view of provisions
of the Board's Rules and Regulations currently in force, which provide that
motions during the pendency of a proceeding before a Trial Examiner shall
be made to the Trial Examiner, the Regional Director being only a party to
the proceeding. NLRB Rules and Regulations (Series 8, as amended), Secs.
102.24-102.25 and 102.8.
' Section 101.9(d) of the Board's Statements of Procedure currently in
force provides
(d)(1) If the settlement occurs after the opening of the hearing and
before issuance of the trial examiner's decision and there is an all-party
informal settlement, the request for withdrawal of the complaint must
be submitted to the trial examiner for his approval If the all-party
settlement is a formal one, final approval must come from the Board.
If any party will not join in the settlement agreed to by the other parties,
the trial examiner will give such party an opportunity to state on the
record or in writing its reasons for opposing the settlement
(2) If the trial examiner decides to accept or reject the proposed settle-
ment, any party aggrieved by such ruling may ask for leave to appeal
to the Board as provided in section 102.26.
Section 102 51 of the Board's Rules and Regulations confines the Regional
Director's powers to approve settlements to "any stage of a proceeding prior
to hearing" (Emphasis supplied.)
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As shown above, this stipulation was executed on behalf of
Respondents and returned to counsel for General Counsel
from whom'it had been received.
Upon receipt of this August 20 letter, with the described
stipulation thereto attached, from Respondents' counsel, on
August 25, I issued an order requiring the parties to show
cause:
(a) Why Respondents' said proposed settlement, offer of
adjustment, and consent to order and judgment should
not be accepted and approved and a recommended order
be issued by the undersigned herein accordingly; and
(b) Why, in the alternative, findings of fact and conclu-
sions of law in accordance with Respondents' said ap-
plication and signed stipulation and consent, should not
be made, except to the extent therein expressly waived
by Respondents, and why remedies and a recommended
order as therein stipulated and consented to, and a deci-
sion accordingly, should not be issued by the under-
signed herein.
The order further required the parties to specify whether an
oral hearing is required in connection with the foregoing;
and, if yes, to separately state and number the alleged issues
of fact and questions of law, policy, or argument. This order
to show cause,elicited the parties' respective positions. To
begin with, Respondents stood on what they had stipulated
to, as described above. The Charging Party's position was
that I lacked authority to consider the stipulation in question,
since the Charging Party had previously submitted to the
Regional Director a 6-page document called "Objections to
Proposed Settlement Stipulation," which "involve[d] one or
more questions of law, policy or argument," and the Regional
Director thereupon "did not approve of'the Settlement." Un-
der these circumstances, the Charging Party pointed*out, the
document constituted a mere unilateral officer of settlement
by Respondents. The Charging Party further urged,, however,
that if the merits of the proposed settlement, were to be
reached by me, in that event it would be mandatory;that an
oral hearing be held. However, the Charging Party failed to
comply with my direction to state or number any issues of
fact requiring such hearing; and failed to respond to the
alternative requirement ((b) supra) of my August 25-,order to
show cause. Finally, the"position of General Counsel, who
likewise failed to respond to the alternative requirement ((b),
supra) of my order to show'cause, was that, while-no oral
hearing was required and there were no disputed,facts, the
stipulation which he had prepared should be disapproved
because it contained a nonadmission clause. According to
General Counsel, "it would seem patently unfair to ... insist
on ... a non-admission clause"-contained in the stipulation
said to have been prepared and forwarded by him to Re-
spondents. That stipulation would, according to General
Counsel, "not effectuate the policies of the Act" because
"Respondents did not press for settlement on these terms
prior to the conclusions of the hearing, and did thereby cause
counsel for the General Counsel to incur expense and expend
considerable time in the proof of matters" involved.' With
regard to the inclusion of the nonadmission provision in the
stipulation, counsel for Respondents has 'alleged, without
contradiction by any of the other parties, that its purpose was
"to preclude the later use, of the Settlement Stipulation in any
private suits instituted by the Charging Party against Re-
s In support of his position, counsel for General Counsel cited Farmers
Co-operative Gin Association, Local 745, IBEW, 168 NLRB 367. It is noted,
however, that in that case, which did not reach the Trial Examiner level, the
Board approved a Regional Director's acceptance of a settlement, over the
Charging Party's opposition, calling for substantially less than a total
remedy.
spondents." Respondents concurred with General Counsel's
position that "no further hearing is required."
In this posture of the record, on October 6 I issued a
further order designed to bring the matter to a final head,
requiring Respondents to:
signify in writing to the undersigned Trial Examiner by
October 9, 1970 whether said Trial Examiner may re-
gard the assertions and consents set forth in a document
entitled `Settlement Stipulation,' dated and signed by
Respondents on August 4, 1970 as authorization and
consent for said Trial Examiner to proceed without fur-
ther notice to make findings of fact, conclusions of law,
recommended order, and decision on the basis of said
document; and, further, whether in that event Respond-
ents waive exceptions thereto and consent to the entry
of a Board Order accordingly, and also consent to the
entry of judgment ex parte in any United States Court
of Appeals enforcing such Board Order as in paragraph
15 of said document.
My October 6 order also allowed General Counsel and the
Charging Party time thereafter to file objectiions or com-
ments thereto. In response to this October 6 order, I received
(1) from Respondents, a written communication that the
"Trial Examiner may regard settlement stipulation as author-
izing Trial Examiner to proceed in all respects as set forth
therein without qualification"; (2) from General Counsel, no
response; (3) from the Charging Party, a written communica-
tion reiterating its opposition to approval of the "Settlement
Stipulation" (emphasis supplied), but also stating that the
"Charging Party requests that Trial Examiner make his
findings of fact, conclusions of law, recommended order and
decision in these cases on the basis of the Settlement Stipula-
tion and the record, provided no consideration is given to the
non-admission clause contained in said Settlement Stipula-
tion."
Upon the existing state of the record, it is clear that Re-
spondents have formally withdrawn their answers and have
consented to findings of fact, conclusions of law, and a recom-
mended order and decision by me calling for a full remedy
for the violations alleged in the complaints; have waived ex-
ceptions to such Trial Examiner action, and have agreed to
a confirmatory Board order thereon; and have also agreed to
entry ex parte of an enforcing judgment in any United States
Court of Appeals. This is the total remedy which could in any
event result in and from this proceeding. No epxress "admis-
sion" or confession can be wrung or exacted in haec verba
from any Respondent or defendant, even in the event of a
totally adverse judgment, verdict, or decree against him on
the merits, nor is there power to require iL6 The effect of
Respondents' withdrawal of their answers and of the making
of findings and conclusions and rendering of a recommended
order, final order, and court judgment thereon is to afford a
total remedy for the acts here complained of. It is not the
purpose of the Act nor the province of the Board or its Trial
Examiners or other agents under the current legislative
scheme to deprive the Federal judiciary of its power through
litigation before it to determine questions of private liability
for damages if any under Title III, Sections 301, et seq. of the
Act. Sec. e.g., IBEW, Local 743 (Quaker Maid Kitchens Inc.
and C. H. Schlegel & Son, Inc), Cases 4-CC-425 and 4-CC-
6 It is to be observed that the notices to be posted contain no nonadmis-
sion provision or mention thereof, and therefore, as pointed out by Respond-
ents, their effectiveness would not be lessened in accomplishing the Act's
purposes and policies That requirement that such notices contain an admis-
sion provision or its equivalent is improper, cf J. F. Stevens & Co. v.
N.L.R.B, 380 F 2d 292, 304-305 (C.A. 2); N.L.R.B. v. Laney & Duke Co.,
369 F 2d 859, 869 (CA 5).
UNITED MINE WORKERS OF AMERICA
426. Whatever, if any, the effect of the instant proceedings is
upon any court damages or other lawsuit, is for the court to
determine.
In view of Respondents' withdrawal of their answers and
their consent to the described actions by the Trial Examiner,
Board, and Court of Appeals, there is no longer any multi-
party "settlement" situation presented in which it is neces-
sary for any of the other parties, including the Regional Di-
rector, to concur. See, e.g., IATSE, Local 640 (Combined
Century Theatres, Inc.), Case No. 29-CB-240, in which, it is
to be noted, unlike here, Respondent did not even withdraw
its answer. Indeed, as shown, General Counsel has failed to
show cause why findings, conclusions, and decision should
not be made by the Trial Examiner based upon Respondents'
aforedescribed consent. In effect, Respondents have con-
sented to an order and sanctions against them, in exercise of
their right under Section 5 of the Administrative Procedure
Act, 5 U.S.C. Sec. 554. That full and complete remedial
measures, including contempt proceedings if essential, would
clearly be warranted upon the basis of such a consent order,
even without underlying findings and conclusions, see
N.L.R.B. v. Ochoa Fertilizer Corp., 368 U.S. 318; N.L.R.B.
v. Standard Transformer Co., 202 F.2d 846, 848-849 (C.A.
6); N.L.R.B. v. Fickett-Brown Mfg. Co., 140 F.2d 883, 884-
885 (C.A. 5); N.L.R.B. v. J L. Hudson Co., 135 F.2d 380,
384 (C.A. 6), cert. denied 320 U.S. 740; N.L.R.B. v. Gerling
Furniture Mfg. Co., 103 F.2d 663 (C.A. 7); National Candy
Co. v. Federal Trade Commission, 104 F.2d 999, 1006 (C.A.
7), cert. denied 308 U.S. 610; Swift & Co. v. United States,
276 U.S. 311, 327; IATSE, Local 640 (Combined Century
Theatres, Inc.), Case 29-CB-240, 1 Davis, Administrative
Law Treatise Sec. 4.02 (1958) and 1965 Supplement.
I accordingly find that under the circumstances presented
no need for a further hearing has been demonstrated, and that
the Act's purposes and policies will be effectuated, furthered,
and fulfilled through a consent order as hereafter set forth.
Upon the entire record as thus amplified,' I make the fol-
lowing:
II FINDINGS AND CONCLUSIONS
1. Respondents United Mine Workers of America (Inter-
national Union) and United Mine Workers of America, Dis-
trict 6 (District Union) are each now, and have been at all
times material herein, a labor organization within the mean-
ing of Section 2(5) of the Act.
2. The James Brothers Coal Company, Charging Party
herein, is an Ohio corporation engaged in the mining and sale
of coal at its operations located in Carroll County, Ohio.
During the calendar year 1969, in the course and conduct of
its business operations in Carroll County, Ohio, Charging
Party furnished products valued in excess of $100,000 to,
among others, PPG Industries, Inc., in Barberton, Ohio,
which annually ships goods valued in excess of $50,000 di-
rectly to points outside the State of Ohio.
3. Robert Slutz (Slutz) is, and has been at all times material
herein, an individual proprietor doing business under the
trade name and style of R. E. Slutz Trucking Co., with his
principal office and place of business located in North Indus-
try, Ohio, where he is engaged in the trucking business. For
some years Slutz has hauled coal from Charging Party's min-
ing operations in Carroll County, Ohio, to various businesses
located within the State of Ohio.
' See annexed Appendix C.
215
4. Trans Trucking Company, Inc. (Trans Trucking) is, and
has been at all times material herein, an Ohio corporation
engaged in the business of hauling coal solely for Trans-State
Coal Company (Trans-State), also an Ohio corporation; both
Trans Trucking and Trans-State have their office and princi-
pal place of business in Magnolia, Ohio; and Trans-State is
engaged in the business of selling coal purchased from Charg-
ing Party.
5. Delmar Shaner, an individual proprietor, doing business
as Delmar Shaner, has his principal office and place of busi-
ness in Magnolia, Ohio, where he is engaged in the hauling
of coal, including coal hauling for Charging Party.
6. Robert C. Russell and Richard D. Linder are, and have
been at all times material herein, independent contractors
who haul coal for Trans Trucking.
7. At all times material herein, Robert L. Clark has been
an employee of Delmar Shaner.
8. Charging Party, Slutz, Robert C. Russell, Richard D.
Linder, and Delmar Shaner, are each now, and have been at
all times material herein, employers engaged in an industry
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
9. At no time material herein have Respondent Interna-
tional Union or Respondent District Union been engaged in
a labor dispute with Slutz, Robert C. Russell , Richard D.
Linder, or Delmar Shaner.
10. Respondents International Union and District Union
have each duly withdrawn their respective answers to the
complaints in these proceedings alleging violations of Section
8(b)(1)(A) and 8(b)(4)(i) and (ii)(B) of the Act constituting
unfair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
11. Respondents have consented to the making of the order
which follows herein.
[Recommended Order omitted from publication.]
APPENDIX C
POSTHEARING DOCUMENTS
Document Identification No. Document Description
TX-Exh. IA-Ident. 8/10/70 letter (1 page) from
counsel for Charging
Party to Chief Trial Ex-
aminer
TX-Exh. 1 B-Ident. Undated "motion" (1 page)
attached to TX-Exh. IA-
Ident.
TX-Exh. 2-Ident. 8/12/70 letter order (2 pp.)
from Trial Examiner to
counsel for Charging
Party
TX-Exh. 3A-Ident. 8/20/70 letter (2 pp.) from
counsel for Respondents
to Trial Examiner
TX-Exh. 3B-Ident. "Settlement Stipulation" (7
pp.), signed 8/4/70 on
behalf of Respondents,
with 2 Notices (Appen-
dixes A & B) annexed; at-
tached to TX-Exh. 3A-
Ident.
TX-Exh. 4A-Ident. 8/25/70 Trial Examiner or-
der to show cause
TX-Exh. 4B-Ident. Copy of TX-Exh. 3A-Ident.
TX-Exh. 4C-Ident. Copy of TX-Exh. 3B-Ident.
216
TX-Exh . 5A-Ident.
TX-Exh. 5B-Ident.
TX-Exh. 5C-Ident.
TX-Exh. 6-Ident.
TX-Exh. 7A-Ident.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9/11/70 letter (1 page) from TX-Exh. 7B-Ident.
counsel for Charging
Party to Trial Examiner,
with envelope and 5 cer-
tified mail receipts an-
nexed
Memoradum (4 pp. with
proof of service) attached
to TX-Exh. 5A-Ident. TX-Exh . 8-Ident.
"Objections to Proposed
Settlement Stipulation" TX-Exh . 9-Ident.
from Charging Party to
Region 8 (6 pp .) attached
to TX-Exh. 5A-Ident. TX-Exh . 1OA-Ident.
G.C. Memorandum "Objec-
tions to Respondent's Re-
quest for Approval of Its
Proposed Settlment TX-Exh . 1OB-Ident.
Stipulation" (3 pp. with
proof of service)
9/18/70 letter ( 1 page) from
counsel for Respondents
to Trial Examiner
Respondents' Memoran-
dum in Support of Re-
quest for Approval of
Proposed Settlement
Stipulation (4 pp. with
proof of service), at-
tached to TX-Exh. 7A-
Ident.
10/6/70 Trial Examiner
telegraphic order (2 pp.)
Telegram from counsel for
Respondents to Trial Ex-
aminer, received 10/8/70
10/9/70 letter (1 page) from
counsel for Charging
Party to Trial Examiner,
with envelope annexed
"Statement of Position" of
Charging Party, attached
to TX-Exh. 1OA-Ident. (2
pp. with proof of service)