Mountaineer Exacavating Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mountaineer Excavating Co., Inc. and United Mine Workers of America (International Union), District 28. Case 5-CA-9104 March 23. 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon charges duly filed, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 5, issued a complaint and notice of hearing, dated March 2, 1978, against Mountain- eer Excavating Co., Inc., hereinafter referred to as Respondent. The complaint alleges that Respondent has engaged in certain unfair labor practices affecting commerce within the meaning of Sections 8(a)(5) and (I) and 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charges and com- plaint and notice of hearing were duly served on the parties. Respondent filed an answer to the complaint, denying commission of any unfair labor practices. Thereafter, the parties entered into a stipulation of facts and jointly petitioned the Board to transfer this proceeding directly to itself for findings of fact, con- clusions of law, and Order. The parties stipulated that they waived a hearing before, and the making of find- ings of fact and conclusions of law by, an Administra- tive Law Judge, and the issuance of an Administra- tive Law Judge's Decision, and that no oral testimony was necessary or desired by any of the parties. The parties also agreed that the charges, complaint and notice of hearing, Respondent's answer to the com- plaint, and the stipulation of facts, including the ex- hibits attached thereto, constitute the entire record in this case. On September 27, 1978, the Board issued its order approving the stipulation and transferring the pro- ceeding to the Board. Thereafter, the General Coun- sel and Respondent filed briefs in support of their positions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board had delegated its au- thority in this proceeding to a three-member panel. The Board has considered the stipulation, includ- ing the exhibits, the briefs, and the entire record in this proceeding, and hereby makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER The Employer, Mountaineer Excavating Co., Inc., is, and has been at all times material herein, a corpo- ration duly organized under, and existing by virtue of, the laws of the State of Virginia, engaged in the sur- face mining of coal, having its principal office and place of business in Big Stone Gap, Virginia. During the past year, which period is representative of its annual operations generally, Respondent, in the nor- mal course and conduct of its business, shipped in interstate commerce coal valued in excess of $50,000 directly to points located outside the State of Vir- ginia. The parties have stipulated, and we find, that Re- spondent is, and has been at all times material herein, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union, United Mine Workers of America (In- ternational Union), District 28, is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Facts Respondent commenced its coal mining operations in July 1977. On July 6, 1977, Respondent and the Union entered into a collective-bargaining agreement whereby Respondent recognized the Union as the representative of its employees and agreed to be bound by the terms of the National Bituminous Coal Agreement of 1974, effective December 6, 1974, to December 6, 1977. Respondent is not amember of the Bituminous Coal Operators Association (BCOA). On July 28, 1977, the International Union, acting on be- half of District 28, notified Respondent of the Union's intention to terminate the agreement and indicated it was prepared to meet and confer with Respondent for the purpose of negotiating a new agreement and to engage in good-faith collective bargaining. On Sep- tember 26, 1977, Respondent wrote the International Union indicating that it also desired to terminate the contract and requested that a representative of Dis- trict 28 contact it when it was ready to begin negotia- tions on a new agreement. There were no further communications between the parties until December 1, 1977. On December 1, 1977, Tom Cooper, Respondent's president, wrote Ray Marshall, president of District 28, noting the earlier communications and comment- ing that Respondent had not heard from anyone in the Union regarding Respondent's request to begin bargaining. Cooper further noted that from the news- papers it appeared that there would be a strike after 241 NLRB No. 80 414 MOUNTAINEER EXCAVATING CO., INC. December 6 because of the failure of the Union and BCOA to reach an agreement covering the BCOA members, that Respondent was not a member of BCOA, that it was not obligated to sign any agree- ment entered into with BCOA, and that it was willing to negotiate with the Union for a new agreement be- tween it and the Union. Cooper went on to state: If there is a strike called December 6th, we understand that the health care insurance bene- fits under the present contract will be cut off for our miners and their families due to lack of funds. If this happens, it is our intention to pro- vide our men with a new life and health care insurance policy. We also want to negotiate a better pension plan for our men. We will be happy to answer any questions you may have about our proposed insurance and pension benefits we would like to give our men and their families. We will be happy to negotiate with you on these and other proposals at your earliest convenience. During the evening of December 1, a previously scheduled dinner meeting of management and the employees was held. Most of the employees attended the meeting. During the course of the meeting, copies of Tom Cooper's speech were distributed to the em- ployees and, following his speech, Phil Cooper, Re- spondent's business manager and secretary, presented the proposed health and pension plan referred to by Tom Cooper in his speech. According to the printed version of the speech, Tom Cooper told the employ- ees: And the-worst part of it all, according to Ar- nold Miller and the UMW officials, it looks like your hospital card may not be any good after the strike begins. From what I can read and hear, the union is saying that your health and welfare fund is almost bankrupt and they may not pay any benefits at all during the strike. If the miners walk out December 6th, medical benefits will be cut off immediately. They say that pension payments could be cut from the first week in January. As you know, since the health and welfare and pension funds are financed and paid for by coal companies royality payments, if there is no coal being produced, there will be no royalties paid into the funds during the strike. A long strike will completely bankrupt every UMW health and welfare and pension fund for future benefits. For those miners who do not work during the strike, the $100 weekly sickness and accident benefit could be lost to them. Under the law, the coal operators are not required to continue pay- ing the insurance premiums for the $100 weekly sickness and accident benefit. We intend to keep paying this premium for every man who continues to work for us during the strike. What about your hospital and doctor bills for yourself and your family? What are you going to do about it? Unless you have enough money saved to pay these bills, they may not give you any services at the clinics except for cash. We have thought a lot about this serious prob- lem for you and your family. We have contacted several insurance companies that provide good health care benefits for employees and their fam- ilies. We have come up with what we consider to be one of the best health care insurance programs. The beauty of this plan is that the hospital bene- fits are guaranteed to you and your family when you need them during the strike. If your hospital and medical benefits are cut off next Wednesday, we intend to cover all of our men who continue working under this new hos- pital insurance plan for Mountaineer. What will it cost you? Absolutely nothing. On December 5, 1977, Tom Cooper met with the employees at the worksite and, since the contract was due to expire the next day and the UMW had called a strike for December 6, he asked the employees for a show of hands as to who would not work the next day. None of the employees raised their hands, and Cooper then told them their jobs would be available. During this same meeting, employee Baker handed Cooper a petition signed by 10 of the 13 employees, stating that they wished to withdraw from the UMW. The parties stipulated that Baker began circulating the petition prior to December 1, 1977, and that there was no evidence to show that Cooper knew of the petition prior to his receiving it. On December 6, 1977, the UMW commenced its nationwide strike against the BOCA, which was ulti- mately settled on March 27, 1978, when the UMW ratified the new contract. On December 6, Respon- dent put into effect its new hospitalization and pen- sion plans. Approximately 2 weeks later, Cooper, without any consultation with the UMW, granted employees a week's vacation during the Christmas period. On January 3, 1978, District 28 filed a charge alleg- ing that since on or about December 6, 1977, Respon- dent interfered with, restrained, and coerced its em- ployees in violation of Section 8(a)(1) of the Act. On January 31, 1978, Marshall, president of District 28, wrote Respondent referring to Respondent's letter of 415 DECISIONS OF NATIONAL LABOR RELATIONS BOARD December 1, 1977, and to the unfair labor practice charge filed herein, stating that the UMW is, and has been, ready and willing to engage in good-faith nego- tiations with Respondent, and offered to begin nego- tiations with Respondent. There were no further com- munications between Respondent and representatives of the UMW and, on March 2, 1978, the instant com- plaint was issued by the Regional Director for Region 5. B. Contentions of the Parties The General Counsel contends that Respondent unilaterally offered its employees substantial benefits without notice to or bargaining with the Union: that Respondent raised no evidence of a good-faith doubt of the Union's majority status as of December 1, 1977; that the Union's contract was still in effect as of that date; that Cooper's December I speech was di- rected toward discouraging its employees from par- ticipating in the impending strike; that it was an at- tempt by Respondent to undercut the Union's majority status by offering a company health and pension plan at a time when the employees were fac- ing a possible loss of such coverage because of the impending strike; that the offer of such benefits, cou- pled with Cooper's interrogation of the employees on December 5 with regard to their intentions about the impending strike, was an attempt to bargain individ- ually with the employees; that such conduct inter- fered with the employees' Section 7 rights; and that by such conduct Respondent violated Section 8(a)(l) and (5) of the Act. Respondent contends that its December I meeting with the employees, where it discussed the potential failure of the Union's health and welfare plans, vio- lated neither Section 8(a)(1) nor 8(a)(5) of the Act; that it timely notified the Union what course it would take in the event the Union's plans failed because of a strike; that it was incumbent upon the Union to thereafter indicate in some manner that it disap- proved thereof and desired to negotiate or bargain with respect thereto; that the Union failed to request bargaining subsequent to either of the Respondent's letters to the Union; that, by failing to request bar- gaining on the substitute plans, the Union waived its right to protest the institution of the plans; and that the facts of this case closely parallel those present in AAA Motor Lines, Inc.,' where the Board found that the employer did not violate the Act when it insti- tuted various employee benefit plans in substitution for the benefit plans that terminated with the expira- tion of the collective-bargaining agreement. 1215 NLRB 793 (1974). C. The Merits The General Counsel argues that Respondent uni- laterally approached its employees and offered them substantial benefits without notice to or bargaining with the Union at a time when the Union was the bargaining representative of the employees and the Union's collective-bargaining agreement with the Re- spondent was still in effect; and that such conduct was nothing more than an attempt to bargain individ- ually with the employees in order to discourage the employees from participating in the impending strike and to cause the Union to lose its majority status. Based on the particular facts of this case, we agree that Respondent's conduct violated both Section 8(a)(1) and (5) of the Act. Under Section 8(d) of the Act, collective bargain- ing imposes on the parties the mutual obligation to "meet at reasonable times" and confer with regard to entering into a new collective-bargaining agreement. Where, as here, both parties desired to terminate the existing agreement upon its expiration, it was incum- bent on both to take steps to meet at reasonable times and confer on proposed changes. Notwithstanding these mutual obligations, neither party, after the ini- tial exchange of letters, took any steps to put the bar- gaining process into motion. The UMW concentrated its entire efforts on the national negotiations going on with the BCOA,2 while Respondent did absolutely nothing until its letter of December 1. From these brief facts, it is clear that both parties failed to meet their obligations under Section 8(d), but the failure of one of the parties to meet its obligations does not, in and of itself, excuse the other party from complying with its statutory obligations. In AAA Motor Lines, Inc., supra, we recognized an employer's right to take action to avoid the loss of certain employee benefits as a result of the expiration of the collective-bargaining agreement. The facts in that case, however, amply demonstrate that the em- ployer, in the face of the union's avoidance and eva- sion, made diligent and earnest efforts over a period of approximately 2-1/2 months to bargain with the union with regard to the various contract proposals it had earlier submitted to the union. The record there also showed that the employer did not discuss its pro- posals with the employees until long after they had been submitted to the union, and, then, instituted only those programs which (I) had been submitted to the union and (2) were or would normally have been of immediate concern to the employees. In the instant case, the stipulation and exhibits 2 We find no merit in Respondent's contention that the Union's bargaining tactic of securing a national agreement (with the BCOA) first constituted a waiver of its bargaining rights on behalf of Respondent's employees. 416 MOUNTAINEER EXCAVATING CO., INC. clearly establish that Respondent intended to bypass the Union. On November 1, 1977, Respondent ex- ecuted a money purchase pension plan and trust agreement with the First National Bank, but did not, at any time prior to December 6, 1977, notify the Union of the execution of this plan or submit the same to the Union for its consideration If Respondent had been desirous of (1) entering into negotiations with the UMW, it needed only to direct timely communications to the Union specifi- cally requesting negotiating sessions or (2) making particular proposals to the Union, its obligation was to submit these proposals timely to the Union. It did neither. Rather, Respondent played a "waiting game" until the bargaining at the national level reached a crisis stage, and then sent the December 1 letter to the Union requesting negotiations and, on that very same evening, met with the employees, predicted dire eco- nomic circumstances, and offered them substantial economic benefits designed to induce them to aban- don their Union and bargain directly with Respon- dent. Respondent obviously timed the December 1 letter so as to preclude any possibility of the Union consulting with the employees, or any real or mean- ingful consideration by the Union of Respondent's stated intent to institute certain benefits as of Decem- ber 6. In addition, notwithstanding the fact that Re- spondent contracted for the pension plan a month earlier, it concealed this fact by stating in the letter that it wanted "to negotiate a better pension plan for our men." On December 5, Respondent again unilat- erally offered its employees substantial economic benefits when it inquired of the employees as to whether any of them were going to strike the next day and advised them, without disavowing its intentions as expressed at the December I meeting of putting into effect different terms and conditions of employ- ment, that their jobs would be available. Having pre- cluded any meaningful response by the Union by vir- tue of the timing of its actions, Respondent then took the final step on December 6 by unilaterally putting into effect both the hospitalization plan and the pen- sion plan. These facts abundantly demonstrate that Respon- dent's contention that it fulfilled its bargaining obli- gations under Section 8(d) of the Act, and that the burden shifted to the Union to take action, is clearly without merit. The facts amply demonstrate that Re- spondent's conduct was timed and designed to deal directly with the employees and to avoid bargaining with the Union. It is equally clear that Respondent's reliance on our decision in AAA Motor Lines, Inc., IThe stipulation and exhibits do not indicate when Respondent finalized the agreements for the hospitalization insurance and the sickness and acci- dent insurance, but, since these programs were discussed in detail at the December 1 meeting, we assume that Respondent had also finalized these programs prior to December I. supra, is misplaced. There, the employer made timely, diligent, and earnest efforts to negotiate with the union, and implemented only those programs which had both been submitted to the union and encom- passed areas of immediate concern to its employees. The employer specifically refrained from instituting its proposed pension plan, leaving it for future nego- tiations with the union. Respondent offers no expla- nation as to why it was necessary to implement imme- diately a substitute pension plan for employees, all of whom had been in Respondent's employ for less than 6 months as of December 6, 1977. Finally, in AAA Motor Lines the employer's attempt to negotiate with the union prior to submitting its proposals to the em- ployees negated any claim that it was attempting to bypass the union and bargain directly with its em- ployees in an attempt to induce them to abandon their union. D. Conclusions We conclude that, by unilaterally offering its em- ployees on December 1 and 5, 1977, substantial eco- nomic benefits designed to induce them to abandon their Union and bargain directly with Respondent, Respondent interfered with its employees' Section 7 rights in violation of Section 8(a)(1) of the Act. We further conclude that, by unilaterally implementing these programs on December 6, and by unilaterally changing the employees' vacation schedule in Decem- ber 1977, in both instances without having first timely notified the Union of its proposed actions and offer- ing to bargain with the Union with regard to these matters, Respondent failed to bargain in good faith in violation of Section 8(a)(5) of the Act.4 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above, occur- ring in connection with the operations of the Em- ployer, have a close, intimate, and substantial rela- tionship to trade, traffic, and commerce among the several States and tend to lead, and have led, to labor disputes burdening and obstructing commerce and the free flow of commerce. Upon the basis of the foregoing findings of fact, conclusions, and the entire record, we make the fol- lowing: 4 In view of our finding herein that Respondent violated Sec. 8(aX) ) of the Act by its conduct on December I and 5, 1977, ve find and conclude that the employees' petition of December 5, 1977, indicating that they no longer wished to be represented by the UMWA, t he ithout any force or effect. 417 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW ORDER 1. Mountaineer Excavating Co., Inc., is an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. United Mine Workers of America (International Union) District 28, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 3. All of Respondent's employees employed in a unit as described in the collective-bargaining agree- ment between the parties known as the National Bi- tuminous Coal Agreement of 1974, effective Decem- ber 6, 1974, to December 6, 1977, constitute a unit appropriate for collective bargaining pursuant to Sec- tion 9(b) of the Act. 4. By unilaterally offering its employees on De- cember 1 and 5, 1977, substantial economic benefits designed to induce them to abandon their Union and bargain directly with Respondent, Respondent inter- fered with its employees' Section 7 rights in violation of Section 8(a)(1) of the Act. 5. By unilaterally implementing various economic benefits on December 6, 1977, without having first timely notified the employees' collective-bargaining representative of its intent to put those benefits into effect and offering to bargain with the said represent- ative with regard to said benefits, Respondent failed to bargain in good faith in violation of Section 8(a)(5) of the Act. 6. By unilaterally changing the employees' vaca- tion schedule by granting a -week vacation in De- cember 1977, without having first timely notified the employees' collective-bargaining representative of its intent to change the vacation schedule and offering to bargain with the said representative with regard to this change, Respondent failed to bargain in good faith in violation of Section 8(a)(5) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. THE REMEDY The Respondent, Mountaineer Excavating Co., Inc., Big Stone Gap, Virginia, its officers, agents, suc- cessors, and assigns, shall: I. Cease and desist from: (a) Unilaterally offering its employees substantial economic benefits designed to induce them to aban- don their collective-bargaining representative and bargain directly with Respondent. (b) Refusing to bargain collectively concerning rates of pay, wages, and other terms and conditions of employment with United Mine Workers of America (International Union), District 28, as the exclusive representative of its employees in the appropriate unit which is described in the collective-bargaining agree- ment between the parties known as the National Bi- tuminous Coal Agreement of 1974, effective Decem- ber 6, 1974, to December 6, 1977. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the above-referred-to appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment. (b) Post at its Big Stone Gap, Virginia, facility cop- ies of the attached notice marked "Appendix."6 Cop- ies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by Re- spondent's representative, shall be posted by Respon- dent immediately upon receipt thereof, and be main- tained 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. Having found that Respondent engaged in, and is engaging in, certain unfair labor practices, we shall order that it cease and desist therefrom 5 and take cer- tain affirmative action designed to effectuate the poli- cies of the Act. 5 Nothing contained in our Order herein shall be construed as authorizing or requiring Respondent to withdraw or eliminate any benefits or other changes in the terms and conditions of employment presently enjoyed by Respondent's employees. 6 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 Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" 418 MOUNTAINEER EXCAVATING CO., INC. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILl. NOT unilaterally offer our employees substantial economic benefits designed to induce them to abandon their collective-bargaining rep- resentative and bargain directly with us. WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with United Mine Workers of America (International Union), District 28, as the exclusive representa- tive of the employees in the appropriate bargain- ing unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit which is described in the collective-bargaining agreement between the parties known as the Na- tional Bituminous Coal Agreement of 1974, ef- fective December 6, 1974, to December 6, 1977, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such un- derstanding in a signed agreement. MOUNTAINEER EXCAVATING Co.. INC(. 419