International Union United Mine Workers of America

INTERNATIONAL UNION UNITED MINE WORKERS OF AMERICA International Union, United Mine Workers of America and Bituminous Coal Operators Association and Dixie Mining Company United Mine Workers of America and its District 17 and Dan S. Davison United Mine Workers of America, its District 17, its District 28, its Local 6594, its Local 6937 , R. R. Humphrey and Carson Hibbitts and Ames Coal Company and Buchanan County Coal Corporation. Cases 5-CE-8, et al., 5-CE-9-1-2, 5-CC-282-1-2 (formerly 9-CE-12-1-2, 9-CC-342-1-2), and 5-CC-294 (formerly 9-CC-347-1-7). June 16,1967 DECISION AND ORDER On March 17, 1966, Trial Examiner A. Bruce Hunt issued his Decision in the above-entitled proceedings, finding that the Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondents filed exceptions to the Trial Examiner's Decision and supporting briefs, and Charging Party Dan S. Davison filed an answering brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs,' and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein. In Raymond O. Lewis, 148 NLRB 249, the Board reviewed the 80-cent clause involved in the instant proceeding and, with Member Jenkins dissenting, found that the clause imposed upon signatories to the UMW national agreement who purchased coal from nonsignatory operators a substantial financial penalty designed to restrain such signatories from procuring or acquiring coal from nonsignatory producers, and that the clause was thus "an implied union signatory agreement restricting the subcontracting of work to operators under contract with the UMW, without regard to unit considerations."' The latter conclusion rested on the Board's finding, based on facts stipulated to the Board, "that the UMW national contract covers a multiplicity of bargaining units rather than a single industrywide unit."; ' The request of Respondent Unions for oral argument is denied, as the record herein, including the exceptions and briefs, accurately presents the issues and positions of the parties 2 148 NLRB 249 at 255 467 The Trial Examiner herein , on the basis of the full record made before him, reached the same conclusions as did the Board in the previous case decided upon the parties ' stipulation . For the reasons stated in our previous decision , and based upon the findings of the Trial Examiner in the instant proceeding, we reaffirm our earlier conclusion that the 80 -cent clause is invalid under Section 8(e) of the Act. On the basis of the record herein , the Trial Examiner correctly found that the clause has caused some nonsignatory operators to sign the UMW agreement in order to continue selling their coal to signatories, and caused some signatory operators to cease purchasing coal from nonsignatories in order to avoid the 80-cent penalty which would be imposed under the contract if they continued to make such purchases . We find , therefore, as we did previously and in agreement with the Trial Examiner, that, construed in the light of the economic realities of the bituminous coal industry , the clause constitutes an implied agreement between the Union and signatory operators that the signatory operators will purchase coal only from other signatory operators . That the economic circumstances surrounding the operation of a provision alleged to contravene Section 8(e) are cognizable in making a determination of whether it does is made clear by the opinion of the United States Court of Appeals for the District of Columbia Circuit in Meat and Highway Drivers, etc ., Local 710, Teamsters [ Wilson & Co.] v. N.L.R.B., where the court, at 335 F.2d 709, 716, stated as follows: To conclude that a contract term falling within the letter of § 8(e) properly falls within its prohibition, there must be either a finding that both parties understood and acquiesced in a secondary object for the term, or a finding that secondary consequences within § 8(e)'s intendment would properly flowfrom the clause, in view of the economic history and circumstances of the industry, the locality, and the parties. [Emphasis supplied.] The court agreed with the Board that where an object of a clause is to aid union members generally rather than members of the unit , the object is secondary and unlawful.4 This observation leads, of course, to the necessity of determining the scope of the unit in question. As noted above, we rejected in the earlier Lewis case the contention that there is a single industrywide bargaining unit coextensive with the signatories to the UMW national agreement. This finding was based upon the pattern of bargaining within the industry-conducted on a separate basis by various associations and individual operators-and the consequent lack of the requisite ' Id at 254 4 Meat and Highway Drivers, etc, Local 710, Teamsters, supra at 716 165 NLRB No. 49 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD joint intention by all signatories to be bound by group, rather than individual, action. The Trial Examiner reached the identical conclusion in the instant case, relying additionally upon the decisions of the D.C. Circuit in Meat Highway Drivers, etc., Local 710, Teamsters, supra, and Orange Belt District Council of Painters No. 48 v. N.L.R.B., 328 F.2d 534. We agree with the Trial Examiner that, under those decisions, the "unit" for which subcontracting clauses may lawfully seek to preserve work are units appropriate for collective bargaining within the meaning of Section 9 of the Act. As noted by the Trial Examiner, the court in both of these cases reviewed the test to be applied in determining the primary or secondary nature of subcontracting clauses. In Orange Belt, the court stated the question as follows: We have phrased the test as whether the clauses are "germane to the economic integrity of the principal work unit," and seek "to protect and preserve the work and standards [the union] has bargain for," or instead "extend beyond the [contracting] employer and are aimed really at the union's difference with another employer."5 In Meat and Highway Drivers, etc., Local 710, Teamsters, supra, the court used the phrase "bargaining unit ," rather than "principal work unit," as in Orange Belt. We believe that the court used two phrases as synonymous and that it intended to give the phrase "bargaining unit" its customary meaning. Moreover, in Meat and Highway Drivers, etc., Local 710, Teamsters, the court cited with approval a portion of the dissenting opinion by Chairman McCulloch and Member Brown in that case, noting the mandatory nature of bargaining over the protection of unit work; a concept confined by definition of the context of negotiations conducted in appropriate bargaining units. In the light of these intervening decisions of the court of appeals, we conclude that the units which control the determination of the primary or secondary nature of subcontracting clauses are those units found by the Board under its customary standards to be appropriate for collective- bargaining purposes, and that such units in the present case are the single employer and multiemployer association units for which separate negotiations are conducted with the UMW. 5 Orange Belt, supra, 328 F.2d 534 at 538. " District No. 9, International Association of Machinists (Greater St. Louis Automotive Trimmers, etc), 134 NLRB 1354, enfd. 315 F 2d 33 (C.A.D.C.). ' Meat and Highway Drivers, etc , Local 710, Teamsters, supra, Truck Drivers Union Local 413 (Patton Warehouse, Inc) v. N.L.R B., 334 F 2d 539, cert . denied 379 U.S 916. "It is thus apparent that our holding that the 80-cent clause is unlawful is founded specifically upon the finding that there exists in the bituminous coal industry a multiplicity of collective- bargaining units . We are unable to understand , therefore, the To broaden the scope of permissible "unit-work protection" clauses to encompass provisions directly or indirectly limiting the doing of business to the various associations and single employers under contract with the union would destroy the distinction now well established in the law between unit-work protection and union-signatory clauses6 and substantially nullify the congressional purpose in adopting the prohibitions of Section 8(e). Thus, under the clause in this case, a producer could purchase coal from any signatory operator, regardless of whether the latter is within the producer's own employer association (bargaining unit), without being required to make the 80-cent payment. Therefore, since the operators from whom he might obtain additional coal-be it supplemental or substitute-without the penalty are not limited to those within the unit, the clause cannot be said to preserve work opportunities for employees in that unit. Nor does the 80-cent penalty clause qualify as a wage-standards provision designed to prevent the undermining of established working conditions in the principal work unit. Such a provision may lawfully restrict subcontracting to organized and unorganized employers who maintain a wage scale and working conditions commensurate with those of the employer who is party to the collective- bargaining agreement, unless the surrounding circumstances disclose that the parties intended an unlawful secondary objective.' But the instant penalty clause does not qualify as a wage-standards provision because a penalty is imposed whenever unit work is subcontracted to nonsignatory operators without regard to the wage standards of such employers. We reaffirm, therefore, our previous conclusion that the Respondent's contention that the 80-cent clause as a lawful work preservation clause must be rejected, inasmuch as the claimed protection of work extends beyond the bargaining units." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondents, International Union, United Mine Workers of America, its Districts 17 and 28, its Locals 6594 and 6937, their basis of our dissenting colleague's contrary interpretation of our Decision herein. The dissent also misconstrues our discussion with respect to the effect of the clause on signatory and nonsignatory operators. We hold merely, under accepted principles, that since the 80-cent clause allows signatory operators to do business with coal operators outside of their collective-bargaining unit only if such operators have a collective- bargaining agreement with the UMW, it constitutes an implied union-signatory agreement and thus falls within the ban of Section 8(e). INTERNATIONAL UNION UNITED MINE WORKERS OF AMERICA officers, agents, and representatives, and Bituminous Coal Operators Association, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. MEMBER JENKINS, dissenting: In my dissenting opinion in the Lewis case,`' I fully set forth my reasons for finding that the welfare fund clause at issue was not invalid under Section 8(e) of the Act. In the instant case, involving the same clause, the record before the Board does not persuade me that there is any error in my conclusion in Lewis that there exists a single industrywide bargaining unit for welfare fund matters. Nor does it persuade me that the clause was not intended to and does not operate to protect and preserve the work standards for which the Union has bargained. In my previous opinion, I noted my disagreement with the majority's characterization of the clause as a penalty and would end my dissent here were it not for the fact that the majority in the instant case also seems to be saying that even if they agreed with me as to the existence of an industrywide unit, the clause would still be illegal so long as there were some signatories and nonsignatories in the industry who for economic reasons would be affected by its operation either through a cessation of doing business with each other or of nonsignatories becoming signatories.' 0 In my view, such a conclusion certainly does not square with our decisions that a clause prohibiting all subcontracting of unit work is valid under Section 8(e). Nor does it comport with our decision in Highway Truck Drivers and Helpers, Local 107, et al.," where we specifically rejected the argument that the disruption of long-established business relationships was a circumstance sufficient to establish an unlawful secondary object within the intent of Section 8(e). Yet the majority now appears to say that since the clause caused the cessation of subcontracting by some signatories with some nonsignatories it is not and cannot be related to the work and wage standards of the employees in the bargaining unit . This conclusion can stand only if in determining the legality of the clause we substitute our judgment for that of the Union as to what the amount of the compensation to the welfare fund should be to equalize the wage standards throughout the industry and protect the integrity of the industrywide welfare fund. But the Union's judgment in this respect is not open to review by this Board. Nor in my judgment should we venture into the uncharted area of making economic appraisals of the means chosen by a union to protect lawful employee interests. Therefore, for the reasons set forth in my prior opinion and for the further reasons stated here, I would hold that the welfare fund clause is lawful under Section 8(e) and dismiss the complaint herein. 469 " Raymond 0 Lewis, et al, 144 NLRB 228, remanded 350 F.2d 801 (C A D C.) "' In this regard , it would appear that I misconstrued the majority's opinion in the prior case for there I expressed my understanding that the majority would have held the clause valid had it been placed in the industrywide welfare fund agreement because it would have protected the work and standards of that unit. The Trial Examiner in this Decision has clearly premised his finding of a violation on such reasoning . Thus he states We have seen that the Respondents' position, as well as the 80-cent provision , is phrased in terms of disputes between the Union and signatory buyers I find, however, that that provision is really aimed at nonsignatory sellers. Although the provision has not been fully enforced, it has resulted in some nonsignatory sellers becoming signatories in order to preserve markets previously open to them , and it has caused some signatories to cease purchasing nonsignatory coal in order to avoid the penalty Other signatories who continue to deal in nonsignatory coal are not , insofar as the record discloses, complying with the 80-cent provision, and I repeat that the economics of the bituminous coal industry are such that, if and when the provision should be fully enforced, many, if not all, nunsignatones will be faced with two alternatives . to become signatories or to lose their signatory customers . The provision is, in effect, an invalid union- signatory clause (Emphasis supplied ) ' 159 NLRB 84 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE' A. BRUCE HUNT, Trial Examiner: This proceeding involves allegations that during 1964 (1) Respondents International Union, United Mine Workers of America (Union), its District 17, and Bituminous Coal Operators Association (BCOA) violated Section 8(e) of the National Labor Relations Act, as amended (Act), 29 U.S.C. Sec. 151, et seq.; (2) Respondents Union and its District 17 violated Section 8(b)(4)(i), (ii)(A) and (B) of the Act; and (3) Respondent District 28 of the Union, Respondents Locals 6594 and 6937 of the Union, and Respondents R. R. Humphrey and Carson Hibbitts, presidents of District 17 and District 28, respectively, violated Section 8(b)(4)(i) and (ii)(A) of the Act.' On various days between April 12 and May 11, 1965, I conducted a hearing at Washington, D.C., at which all parties were represented by counsel.3 The motions of various Respondents to dismiss are disposed of in accordance with the ' The caption in Case 5-CE-8 is hereby amended to correctly state the name of the Charging Party. When charges were filed in that case, that party's name was Dixie Mining Company of Kentucky, Inc. 2 In Case 5-CE-8, the original and amended charges were filed on April 1 and December 1, 1964, respectively In Case 5-CE-9-1 through 2 and 5-CC-282-1 through 2, the charges were filed on April 29, 1964 In Case 5-CC-294, the charge was filed on July 13, 1964. A consolidated complaint was issued on January 15, 1965 An amended consolidated complaint was issued on February 24, 1965. ' On August 23 and October 4, 1965, respectively, counsel for all Respondents other than BCOA and counsel for Charging Party Davison filed motions to correct the transcript . Copies of the motions were served upon all other counsel in the case By letter of September 28, 1965, to all counsel, I proposed certain corrections No objections were filed to any proposed correction The transcript is hereby corrected in accordance with said motions and the attachment to my letter of September 28, 1965. 299-352 0-70-31 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD determinations below. Upon the entire record and my observation of the witnesses, I make the following: appear, the resolution of the subsidiary issues turns upon the resolution of the principal issue. FINDINGS OF FACT 1. THE RESPONDENTS Bituminous Coal Operators Association is an unincorporated association comprised of employers engaged in mining and dealing in bituminous coal in various States of the nation. BCOA exists, inter alia, for the purpose of engaging in collective bargaining on behalf of its members. BCOA is engaged in commerce within the meaning of the Act. International Union, United Mine Workers of America, its Districts 17 and 28, and its Locals 6594 and 6937 are labor organizations within the meaning of the Act. R. R. Humphrey and Carson Hibbitts are the presidents of Districts 17 and 28, respectively. II. THE CHARGING PARTIES Dixie Mining Company, a partnership (Dixie), and Ames Coal Company and Buchanan County Coal Corporation, corporations (Ames and Buchanan, respectively), are engaged in the business of mining and dealing in bituminous coal in the States of Kentucky, West Virginia, and Virgina, respectively. Dan S. Davison is vice president of Riverton Coal Company (Riverton), a corporation which is engaged in a like business in West Virginia. Dixie and each of the named corporations annually ships coal valued in excess of $50,000 from its places of business to points in other States, and each is engaged in commerce within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues The principal issue in this proceeding was before the Board in its Supplemental Decision in Raymond O. Lewis, et al., as agents for International Union, United Mine Workers, etc. (Arthur J. Galligan), 148 NLRB 249. The issue is whether a particular provision in the 1964 contract between BCOA and the Union, commonly called the 80- cent provision, contravenes Section 8(e) of the Act.' The Board, Member Jenkins dissenting, answered the question in the affirmative, but the Board subsequently concluded, as it advised counsel and the Trial Examiner in this proceeding, that it did not regard its Supplemental Decision "as finally disposing of" the question.5 Accordingly, the majority decision is not binding upon me. Subsidiary issues are whether the Respondents, excluding BCOA, by their efforts to force certain charging parties to execute contracts containing the 80-cent provision, breached particular portions of Section 8(b)(4). As will ' Insofar as pertinent , Sec 8(e) provides that "[i]t 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 to cease or refrain from . 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 containing such an agreement shall be to such extent unenforceable and void . ' In the enforcement proceeding in Raymond O. Lewis, et al v N L.R B , 350 F 2d 801 (C A.D.C ), the Board argued in its brief B. Background A stipulation of the parties, in which the word "industry" means that portion of the bituminous coal industry which is organized by the Union, reads as follows: Collective bargaining in the bituminous coal industry has long followed a multiemployer pattern. During the period from 1898 to 1927 the United Mine Workers negotiated agreements first with operators in the so-called Central Competitive Field (Ohio, Indiana, Illinois and West Virginia). These agreements set the pattern for negotiations in other areas of the country between various Districts of the Union and local associations of coal mine operators. The bargaining relationship in the Central Competitive Field collapsed in 1927. From 1934 through 1940 agreements were negotiated with the operators in the Appalachian area which served, as the Central Competitive Field agreement had earlier, as a pattern for the remainder of the industry. In 1941, however, the Appalachian operators split into northern and southern groups and signed separate agreements with the UMWA. Despite this split among the operators, a uniform national agreement was negotiated for the industry in 1945. The division of the operators of the Appalachian area into northern and southern groups persists to this day. Most of the northern group deal with the Union through the Bituminous Coal Operators Association of which Edward G. Fox is President. Southern Coal Producers' Association represents the southern operators in their dealing with the Union. In addition, many Mid-western operators negotiate with the Union through local associations. Since 1950, collective bargaining negotiations in the industry have been conducted under the following pattern. The Union first negotiates an agreement with representatives of the Bituminous Coal Operators Association. The .terms of the BCOA agreement are then presented to the Southern Coal Producers' Association, the mid-west operators associations and individual operators. Each agreement negotiated by BCOA and the Union has the title "National Bituminous Coal Wage Agreement." The agreements are geared to the ability of mechanized operators to pay, and it is the Union's established practice to seek the signatures of as many operators as possible to that contract and to no other written agreement. The Union has contracts with operators who produce approximately 75 percent of the bituminous coal that is mined in the United States. As will appear in more detail, various operators in the industry purchase coal from other operators. The term that the issue concerning the 80-cent provision was "not ripe for review for the additional reason that it was not decided by the Board under `the procedure d'escnbed in Section 10(b) and (c) of the Act ' Instead, the Board's determination was the culmination of an extraordinary procedure involving a compliance motion, a show cause order, and a series of responses filed thereto " The court, in its opinion, said "The Board says this decision is not ripe for review But we express no opinion on that point, since our decision not to enforce the decree moots any compliance question " INTERNATIONAL UNION UNITED MINE WORKERS OF AMERICA "substitute coal," as used in the industry, means coal which an operator purchases instead of producing it himself. The term "supplemental coal" means coal that an operator purchases to supplement his own production, and his need to purchase supplemental coal may arise from sales contracts into which he has entered with customers who required coal of qualities and quantities which he cannot produce in his own mines. The practice of operators who are signatories to agreements with the Union in purchasing coal, called "subcontracting" or "contracting out," has long been a matter of concern to the Union. Its 1941 agreement with the Kanawha District, a part of the Appalachian area, expressly prohibited subcontracting. During 1943, the National War Labor Board, in a case involving the Union and operators in the Appalachian area, disposed of an issue relating to the leasing of mines by directing that each agreement contain the following provision: The Operators agree that they will not let any operating mines subject to this Agreement as a subterfuge for the purpose of avoiding the provisions of this Agreement. Like or similar provisions were inserted in the National Bituminous Coal Wage Agreement of 1945 and in various amendments to the National Bituminous Coal Wage Agreement of 1950. C. The 80-cent Provision Which is in Issue, Predecessor Provisions The National Bituminous Coal Wage Agreement of 1950 (the 1950 Agreement), with certain amendments, is currently in effect. It contains a section entitled "United Mine Workers of America Welfare and Retirement Fund of 1950" which is reproduced in full as Appendix A to this Decision. That section created the Union's Welfare and Retirement Fund of 1950 (Fund) and provided, inter alia: During the life of this Agreement, there shall be paid into such Fund by each operator signatory hereto the sum of thirty cents (30 cents) per ton of two thousand (2,000) pounds on each ton of coal produced for use or for sale. By amendments of 1952, the payment per ton was increased from 30 to 40 cents and a provision entitled "Application of Contract to Coal Lands" was negotiated. It reads: As a part of the consideration for this Agreement, the Operators signatory hereto agree that this Agreement covers the operation of all of the coal lands owned or held under lease by them, or any of them, or by any subsidiary or affiliate at the date of this Agreement, or acquired during its term which may hereafter (during the term of this agreement) be put into production. The said Operators agree that they will not lease out any coal lands as a subterfuge for the purpose of avoiding the application of this Agreement. By an amendment of 1958, a provision entitled "Protective Wage Clause" was negotiated. In the initial Decision in the Galligan case, 144 NLRB 228, issued on August 27, 1963, a panel of the Board held that the Protective Wage Clause contravened Section 8(e).6 In Lewis, et at. v. " On September 20, 1963, the respondents in that case filed with the Board a motion for reconsideration en banc On December 12, 1963, the Board, by its Executive Secretary, issued an order denying the respondents' notion because the Board had been "unable to arrive at a majority de( tston disposing of the 471 N.L.R.B., supra, footnote 5, decided August 4, 1965, the court declined to enforce the Board's Order and remanded the case for further determinations by the Board. In the meantime, however, BCOA and the Union had deleted the Protective Wage Clause from their agreement and had substituted the 80-cent provision. On March 23, 1964, representatives of BCOA and the Union entered into certain amendments to their contract, to become effective on April 2, 1964.' Insofar as the amendments relate to the Fund and the application of the contract to coal lands, they are reproduced in Appendix B to this Decision. At this point it suffices to say that there was a renewal of the requirement that signatory operators pay into the Fund the sum of 40 cents on each ton of coal they mine and that there was added a requirement that, in substance, they pay into the Fund the sum of 80 cents per ton on coal they buy from nonsignatory operators. The requirements read, in pertinent part: During the life of this agreement there shall be paid into such Fund by each Operator signatory hereto the sum of 40 cents (40 cents) per ton of two thousand (2,000) pounds on each ton of bituminous coal produced by such Operator for use or for sale. On all bituminous coal procured or acquired by any signatory Operator for use or for sale, (i.e., all bituminous coal other than that produced by such signatory Operator) there shall, during the life of this Agreement, be paid into such Fund by each such Operator signatory hereto or by any subsidiary or affiliate of such Operator signatory hereto the sum of eighty cents (80 cents) per ton of two thousand (2,000) pounds on each ton of such bituminous coal so procured or acquired on which the aforesaid sum of forty cents (40 cents) per ton had not been paid into said Fund prior to such procurement or acquisition. On the same day that representatives of BCOA and the Union entered into the amendments, March 23, 1964, Southern Coal Producers' Association, representing approximately 20 operators, became a signatory to the amendments. Between April 1, 1964, and the opening of the hearing in this proceeding on April 12, 1965, numerous individual operators and associations of operators became signatories. The circumstances under which Riverton became a signatory on April 15, 1964, are discussed hereinafter. Negotiations concerning the 1964 amendments began in December 1963, about 4 months after the Board's Decision holding the Protective Wage Clause to be invalid. BCOA negotiated on behalf of its members who are commercial operators. The persons who participated in one or more of an undisclosed number of meetings between December 1963 and March 23, 1964, are a union committee of three, W. A. Boyle, R. O. Lewis, and John Owens, the Union's president, vice president, and secretary-treasurer, respectively; Edward Fox and one Potter, representing BCOA's commercial operators; one Larry, representing "captive" operators, i.e., those who produce coal as part of an integrated operation, primarily steel companies: and an unidentified person who represented Pittsburgh Consolidated Coal Company. Of the negotiators, Owens was the only witness. He testified for the Union, and it is apparent from certain of his answers, to be recited, and matter " The findings in this In are based upon the utder of December 12, 1963 ' These and earlier amendments contained tmptoved wage rates and other working conditions for employees, but in these respects the amendments need not be detailed 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from his demeanor that he was not a candid witness and that he withheld information concerning the negotiations. Owens testified that before the negotiations began, the three union representatives discussed a prospective contractual provision whereby each signatory would pay into the Fund the sum of $1 on each ton of coal purchased from a nonsignatory but that he did not know when those representatives first discussed the matter, that he may have originated the proposal, saying to Boyle and Lewis that its purpose would be to protect work opportunities for union members by preventing subcontracting, that he thought B. ile and Lewis agreed and that they may have discussed the purpose of the proposal, but that he could not recall exactly what was said about subcontracting. Subsequent to the discussions by the union representatives, according to Owens, in negotiations with BCOA's representatives, the Union proposed that a $1 provision be included in the contract, arguing that the provision was necessary to protect work opportunities and to prevent subcontracting, but Owens could not name any BCOA member who was engaged in subcontracting, and he testified that the Union sought to prevent subcontracting by any operator who subsequently would become a signatory. Owens testified further that representatives of BCOA "absolutely opposed" the Union's demand but did not say that the proposal would prove too costly or give any other reason for opposing it." After "long hours and days of argument," to quote Owens, in which he could not recall whether the Galligan case was discussed, BCOA's representatives agreed to the 80-cent provision which was inserted in the 1964 contract " in lieu of" the Protective Wage Clause which a panel of the Board had held was violative of Section 8(e). With respect to captive operators who are parties to contracts with the Union, whether members of BCOA or not, the record establishes that such contracts do not contain the 80-cent provision, and Owens testified that he could not recall whether the Union had proposed a $1 provision or 80-cent provision to Larry, the representative of the captive operators. Owens testified further that, insofar as he knew, no captive operator bought coal. The record is clear, however, that some captive operators are purchasers. In summary, Owens' testimony-the only testimony in the record on the point-sheds little, if any, light on the details of the negotiations which resulted in adoption of the 80- cent provision. D. The 1964 Strike at Ames' and Buchanan's Mines Counsel for all Respondents other than BCOA stipulated that, for the purposes of this proceeding alone, findings may be made that the Union, its Districts 17 and 28, and its Locals 6594 and 6937 induced and encouraged employees of Ames and Buchanan to engage in strikes from July 13 through August 22, 1964, objects of which were to force and require Ames and Buchanan to become signatories to the 1964 amendements to the 1950 Agreement, including the 80-cent provision. It does not appear that either Ames or Buchanan became a signatory, however. E. Riverton and the 80-Cent Provision Riverton mines buys and sells coal. It is a wholly owned subsidiary of Davison Fuel and Dock Company (Davison) " In its brief, BCOA says that it opposed the Union's demand "on economic grounds," but it offered no evidence to that effect " The record is not entirely clear concerning the period of time in which the 100,000 to 110,000 tons were bought At one point the and the latter acts as Riverton's exclusive sales agent. Riverton has approximately 155 production and maintenance employees who are represented by Respondent District 17, and Riverton, acting for itself and not as a member of any employer association, has been a signatory to agreements with the Union for at least a decade. On April 10, 1964, 8 days after the 80-cent provision in the BCOA contract became effective, Riverton's employees commenced a strike. Counsel for all Respondents other than BCOA stipulated that for the purposes of this proceeding alone, findings may be made that the Union and its District 17 induced and encouraged Riverton's employees to engage in a strike from April 10 to 15, 1964, an object of which was to force and require Riverton to become a signatory to the 1964 amendments to the 1950 Agreement, including the 80-cent provision. On April 15 Riverton became a signatory. Riverton operates two or three mines. It owns or leases additional mines and coal lands, but its financial resources are insufficient to enable it to operate more than three mines. When one mine becomes unproductive, another is opened. Riverton's principal customer is Cincinnati Gas and Electric Company (CG&E), and in order to meet CG&E's demand, Riverton buys coal. During the latter half of 1963, Riverton purchased from 22,000 to 52,000 tons of coal monthly from 26 to 40 nonsignatory operators. During 1964, before the effective date of the 80-cent provision, Riverton bought between 100,000 and 110,000 tons of coal, more than three-fourths of which was obtained from nonsignatory operators who numbered, by months, from 26 to 33." During January 1 to April 15, 1964, Riverton mined approximately 157,000 tons at a cost of less than $4 per ton, and the vast majority of its purchases were at $4 per ton. The coal mined was commingled with that purchased, and 90 percent of the mixed coal was sold at $4.29 a ton, another 5 percent was sold at prices between $4.29 and $4.75, and the remaining 5 percent was sold at undisclosed prices. At times material prior to April 15, 1964, Riverton bought coal from nonsignatory operators who (1) lease from Riverton coal lands which the latter owns, (2) lease from Riverton coal lands which Riverton earlier had leased from third persons, and (3) own their mining properties or lease them from third persons. Riverton also bought coal from signatory operators who may be classified similarly. Some of the lessees are very small, mining with approximately three men. After becoming a signatory to the 80-cent provision on April 15, 1964, Riverton continued to pay into the Fund the sum of 40 cents a ton on coal it mined, but it ceased buying coal from nonsignatories. Its profit margin, as reflected in figures recited above, was insufficient to enable it to pay 80 cents a ton on nonsignatory coal, and it was unable to purchase coal from nonsignatories at prices substantially lower than it had been paying before April 15. After that date, Riverton informed its nonsignatory suppliers that they would have to become signatories in order to sell to Riverton. In dealing with suppliers to whom it had leased mining properties , Riverton cancelled all leases and negotiated new leases only with operators who became signatories . Riverton continued to mine as much coal as its financial resources permitted, but it was unable to buy from signatories, at prices it could afford, enough coal to record indicates the first quarter of 1964, at another point the first quarter plus the first half of April, and at another point a period of 3 months preceding April 15. INTERNATIONAL UNION UNITED MINE WORKERS OF AMERICA fill its orders. CG&E, which buys 90 percent of the coal which Riverton has for sale, refused to pay Riverton more than their contract price of $4.29. Riverton' s parent and sales agent , Davison, is not a signatory to an agreement with the Union. Davison's employees are represented by International Union of District 50, United Mine Workers of America, which is an autonomous labor organization, separate from the Union in this proceeding. We have seen above that the 80-cent provision is applicable to "any subsidiary or affiliate of" a signatory, and thus Davison is bound by the provision. Prior to April 15, 1964, Davison had contracted with Ford Coal Company (Ford), a nonsignatory, to purchase from Ford a specified quantity of coal daily for a particular period of time, and prior to April 15 Davison had fulfilled its obligations under the contract. On that date or immediately thereafter, Davison breached the contract by ceasing to buy coal from Ford. Davison's reason was the 80-cent provision. Ford sued Davison in the Circuit Court of Kanawha County, West Virginia. The litigation was terminated by a settlement agreement pursuant to which Davison paid Ford $15,000. F. Dixie and the 80-Cent Provision Dixie, a partnership, operates approximately 28 small underground truck mines in Pike County, Kentucky. The term "truck mines" signifies that the coal is transported by truck from the mines' tipples to a railroad. Dixie is not a signatory. During 1964 Dixie mined 164,700 tons of coal which it sold at an average price of approximately $4.10 per ton. Its gross profit was approximately 52 cents per ton, and its net profit, after deducting general and administrative expenses plus allowances for depreciation and depletion, was approximately 12-1/2 cents per ton. Prior to negotiation of the 80-cent provision, Dixie annually sold approximately 40 percent of its coal to signatories. Subsequent to May 1964, Dixie has not sold any coal to signatories. On March 18, 1964, before negotiations of the 80-cent provision, Dixie orally agreed to sell 30,000 tons of coal at $3.70 per ton to Republic Coal & Coke Co. (Republic), a subsidiary of a signatory. On April 14 Republic mailed an order to Dixie, saying that the purchase price would be "subject to the eighty cents (80 cents) welfare payment clause, if it is put into effect and charged against" Republic. During the forepart of May, Dixie shipped 6,600 tons and, upon an undisclosed date, asked Republic whether Republic "could absorb at least part of the" 80-cent-per-ton payment. On May 21, Republic wrote to Dixie, saying inter alia: As you know, Republic does not have anywhere near the margin of profit necessary to absorb such a charge. Consequently, if we have to pay it, our only alternative is to deduct it from our return to you, or if that is not satisfactory from your standpoint, to cease handling your coal entirely. Upon receipt of Republic's letter, Dixie ceased selling coal to Republic. "' According to counsel for the Union, "ltlhe charging parties are not the only ones that would like to have a rapid decision in this The Mine Workers stand to lose hundreds of thousands of dollars because of this delay in a contract that they think is legal under the law " It may be that signatories who are buying nonsignatory coal have an agreement with the Union that no payments into the Fund need be made on nonsignatory coal purchased prior to a decision that the 80 -cent provision is valid We have seen that Republic expressed to Dixie an inability to pay 473 G. United Collieries and the 80-Cent Provision United Collieries, Inc. (Collieries) is a coal sales company located in Cincinnati, Ohio. It is not a signatory. At times material, Collieries dealt primarily in the coal of nonsignatories and at the time of the hearing it dealt entirely therein. During a period of 6 months preceding April 1964, Collieries bought coal at $3.75 to $3.90 per ton and sold it at $3.90 to $4.05. Collieries' only purchaser which is a signatory was Interlake Iron Corporation (Interlake) whose purchases from Collieries varied between 3,000 and 10,000 tons per month. During May 1964, Ben E. Tate, Jr., Collieries' president, talked with Leonard Schroeder, a buyer for Interlake's coal agent, Pickands Nather & Co. Schroeder told Tate that Interlake would not purchase nonsignatory coal because of the 80- cent provision. Collieries' sales to Interlake ceased. H. HCCOA and the 80-Cent Provision Harlan County Coal Operators Association (HCCOA), located in Kentucky, has as members 15 mining companies which operate approximately 25 mines and employ approximately 875 men. The mines vary from small to medium in size , and nearly all are mechanized. One is a truck mine; the remainder have rail connections. During 1964, HCCOA's members mined, nearly 2 million tons, and during 1963 production was about 10 percent higher. The profit margin does not average above 25 cents per ton. Prior to 1964, all members of HCCOA were signatories to the 1950 Agreement, as amended. After BCOA and the Union negotiated the 80-cent provision, representatives of the Union and HCCOA met on three occasions in an unsuccessful effort to negotiate a contract. The Union's representatives asked that HCCOA's members execute the new agreement. Representatives of HCCOA replied that its members were unwilling to do so because they could not meet the terms of the contract and stay in business . HCCOA made a counterproposal which was rejected, the Union's position being that HCCOA's members should sign the 1964 amendments. Subsequently, two of HCCOA's 15 members executed the 1964 amendments, and thereafter one of those two ceased business for reasons which are not recited in the record. Although 13 HCCOA members are not signatories, they sell approximately 50 percent of their tonnage to signatories . The record does not disclose the extent, if any, to which payments are being made into the Fund based on coal purchased by signatories from HCCOA's nonsignatory members. At the hearing, one of the attorneys for the Union said that there had been no enforcement of the 80-cent provision and that it will not be enforced until its validity has been established. Counsel for the General Counsel voiced his understanding that the provision will not be enforced until such time. Although the record is clear that some signatories are buying nonsignatory coal, there is no evidence that any signatory has made any payment on such coal into the Fund." 80 cents per ton on nonsignatory coal and an unwillingness to buy Dixie's coal except at their contract price less 80 cents At the time of the hearing, however, Republic was buying coal from nonsignatory members of HCCOA without requiring a reduced price because of the 80-cent provision On the other hand, Riverton will not buy nonsignatory coal for fear that, if the provision should be held to be valid, Riverton would be forced to pay 80 cents per ton on all nonsignatory coal bought by it after April 2, 1964 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. NICOA and PCICOA and the 80-Cent Provision National Independent Coal Operators Association (NICOA) has a membership of 3,000 to 4,000. NICOA's members , some of whom are signatories , employ thousands of miners who work in coal mining regions of Alabama. Kentucky , Pennsylvania , Tennessee . Virginia. and West Virginia . They produce approximately 100 million tons annually , and for the 5-year period of 1960 through 1964 approximately one-third of the coal was sold to signatories . Their profit margin ranges from 15 to 30 cents per ton. Pike County Independent Coal Operators Association (PCICOA) is a member of NICOA. PCICOA has approximately 600 members , a majority of whom operate small truck mines. Such mines contain seams of coal too thin for mining by large coal operators which use the most improved and costly machinery , although earlier some such mines were operated by large operators until the thick seams of coal became exhausted . The record does not disclose the number of PCICOA members who are signatory operators . It is clear, however, that PCICOA members , both signatories and nonsignatories , sell coal to signatories. There is no evidence that any signatory who buys from NICOA's or PCICOA 's nonsignatory members has paid any amount into the Fund based upon such purchases. J. The Inability of Operators of Small Mines to Meet the Wage Scales and Other Costs Set Forth to the 1964 and Earlier Bituminous Coal Wage Agreements The record contains considerable documentary evidence and testimony concerning the economic condition of small mines and the inability of their operators to (1) meet the wage scales and other costs set forth in the 1964 and earlier Bituminous Coal Wage Agreements if the operators have, or were to, become signatories, and (2) bear any portion of the 80-cent provision by selling coal to signatories at reduced prices. It is unnecessary to recite much of this testimony. Southern Coal Producers' Association (SCPA), whose members mine approximately 52 million tons of coal annually, and Kanawha Coal Operators' Association (KCOA) are among the principal signatories of agreements negotiated by the Union and BCOA. Quin Morton, III, is an executive vice president of SCPA and executive secretary of KCOA. He defined a small mine as one which produces from 50 to 500 tons daily, and he testified that a small mine which produces less than 12 tons per man daily" cannot pay the wage and other cost figures set forth in the 1964 amendments to the 1950 Agreement.'2 Robert Holcomb is one of the partners in Dixie. Thomas B Ratliff is president of Ratliff-Elkhorn Coal Company (Ratliff-Elkhorn) which operates in Pike County, Kentucky, as does Dixie. During 1959. subsequent to the negotiation by the Union and BCOA of the Protective Wage Clause which the Board found in the original Calligan Decision to have been invalid, Holcomb, Ratliff, and other persons met with Respondent Hibbitts, president of the Union's District 28. Holcomb and Ratliff refused to sign the then current agreement because of a financial inability to comply with its terms, and Hibbitts said that he was well aware of such financial inability on the part of operators of small mines. Hibbitts would not negotiate any written agreement other than the national agreement , however, and the negotiations were unfruitful. Upon other occasions during 1959, Hibbitts reiterated to Holcomb that he was aware of such financial inability.'' Prior to the negotiations of the Protective Wage Clause, Ratliff-Elkhorn had been a party to contracts with the Union. During 1959 and thereafter, Ratliff met with Hibbitts and other representatives of the Union in unsuccessful efforts to reach an agreement. About 1960, in a meeting between Ratliff and Hibbitts, the latter said repeatedly that he realized that truck mines in eastern Kentucky "could not abide by the wage and welfare provisions of the" national agreement. During 1963, Hibbitts made a similar remark to Ratliff, and upon that occasion or earlier Ratliff sought to negotiate an agreement to be applicable only to truck mines. Hibbitts replied that his "hands were tied" and that he was not authorized to enter into any written agreement other than the national one.'4 Because the wage and other provisions of the 1950 Agreement, as amended from time to time, have become increasingly favorable to employees, it is apparent that Hibbitts' remarks prior to 1964 concerning the inability of some operators to meet the terms of the " Morton defined a medium size mine as one which produces 1,000 to 2,500 tons daily , and a large mine as one which produces from 2,500 to 8,000 tons or more daily Some large mines produce far more than 12 tons per man daily " In Mr Justice Goldberg's dissenting and concurring opinion in United Mine Workers ofAmerica v Pennington, et al , 381 U S 657, 85 S Ct 1585, and Local Union No 189, Amalgamated Meat Cutters & Butcher Wor/men, et al v Jewel Tea Co , Inc., 381 U S 676, 85 S Ct 1596, the following appears at 381 U S 698,85 S Ct 1608 [I]t is no secret that the United Mine Workers, acting to further what it considers to be the best interests of its members, espouses a philosophy of achieving uniform high wages, fringe benefits, and good working conditions As the quid pro quo for this , the Union is willing to accept the burdens and consequences of automation Further , it acts upon the view that the existence of marginal operators who cannot afford these high wages, fringe benefits, and good working conditions does not serve the best interests of the working miner but, on the contrary, depresses wage standards and perpetuates undesirable conditions This has been the articulated policy of the Union since 1933. [Authority cited ] The Mine Workers has openly stated its preference , if need be, for a reduced working force in the industry , with those employed working at high wages, rather than for greater total employment at lesser wage rates [Authorities cited ] Consistent with this view , the Union welcomes automation , insisting only that the workers participate in its benefits The findings concerning Hibbitts' remarks are based upon Holcomb 's uncontradicted testimony Hibbrtts was not a witness Ratliff testified concerning meetings which he had with Hibbrtts, but he did not testify concerning the meeting which Holcomb attended. 14 These findings are based on Ratliff's uncontradicted testimony During the presentation of Dixie's case -in-chief, its counsel offered evidence concerning an alleged practice of the Union, called "sweet heart mg," to enter into oral agreements with some signatories pursuant to which oral agreements the signatories pay to employees lower wages and pay into the Fund smaller amounts than are provided in the national agreement Objections by the Union and BCOA to such evidence were sustained with the proviso that the evidence might be offered again in rebuttal depending upon the nature of the defense evidence The latter evidence , however, did not open the door to the presentation of Dixie 's evidence , It may be added that "sweetheart ing," if such a practice exists, is not binding upon the Fund's trustees who at any time may sue a "sweetheart" operator for the full 40 cents per ton in coal mined and that the result of such a lawsuit could be to force the operator into insolvency INTERNATIONAL UNION UNITED 1950 Agreement, as amended, are equally applicable to that agreement as amended during 1964. K. Conclusions Concerning the 80-Cent Provision We have seen that some operators have a practice of purchasing coal. The purchase of supplemental coal (i.e., coal to supplement an operator's production) is often essential to enable an operator to meet his customers' requirements for qualities and quantities of coal which he cannot procure from his own mines. The purchase of substitute coal (i.e., coal that an operator purchases in preference to mining more of his own coal) limits directly the work opportunities of the operator's employees We have seen too, that the Union, while aware that some signatories purchase coal, has been concerned about the employees' loss of work and has negotiated contractual provisions that operators shall not lease their properties as a subterfuge to avoid their contractual obligations. In only one instance , however, the Kanawha District Agreement of 1941, did the Union obtain an agreement prohibiting subcontracting. As recited, Owens testified for the Union that (1) the 80- cent provision had its origin in a union proposal that signatory operators pay into the Fund the sum of $1 on each ton of coal purchased from a nonsignatory, the objective having been to preserve work opportunities by preventing or limiting subcontracting, and (2) upon agreement on the 80-cent provision, it was inserted in the contract "in lieu of" the Protective Wage Clause which had been held to contravene Section 8(e). As recited also. however, Owens was not a candid witness and his testimony discloses practically nothing of the details of the negotiations. The 80-cent provision does not expressly ban the purchase of nonsignatory coal by a signatory. It does, however, constitute a restriction upon a signatory's purchase of such coal, while freely permitting the purchase of signatory coal, and BCOA says in its brief that the provision constitutes a costly economic restraint that was intended to induce a signatory to mine more coal "wherever practicable" rather than to engage in subcontracting. The provision applies to supplemental coal as well as to substitute coal, however. The Union asserts in its brief that the provision does not in anywise restrict or prohibit a signatory's purchase of coal from any coal producer except to the extent of compensating the contract unit for the loss of job opportunities and security attending the purchase of nonsignatory coal. It does not restrict or prohibit a purchasing signatory's employees from handling purchased coal because produced by a non- signatory. or one engaged in a labor dispute, or one in disfavor with the contracting union , or because that union labels the purchased coal as "hot." Nor does it undertake to extend any provisions of the new Agreement to employees of unorganized producers. [Emphasis supplied.] The term "contract unit," as used in the above quotation, means a unit coextensive with the signatories to the 1950 Agreement as amended during 1964. The Respondents' position essentially is that the Union did not have a dispute with a nonsignatory seller of coal which the Union sought to resolve by closing the signatory market to a nonsignatory; that instead the Union had a dispute with any of BCOA's commercial operators who were purchasing coal that their employees could have MINE WORKERS OF AMERICA 475 mined, that the Union had like disputes with all other signatories , and that the disputes were resolved bargaining unit by bargaining unit, beginning with BCOA, by adoption of the 80-cent provision as an economic restraint on such purchases. Thereafter, any signatory in one bargaining unit became free to buy from any signatory in the same or another unit, and the buyer pays no penalty because the seller already has paid 40 cents per ton. On the other hand, a nonsignatory cannot sell to a signatory unless the latter will bear the penalty or unless the nonsignatory will lower the price of his coal so as to enable the signatory to pay it. We now consider the Union's and BCOA's position that there is a single signatorywide unit. We approach the problem by reference to two cases. In Orange Belt District Council of Painters No. 48 (Calhoun Drywall Co.) v. N.L.R.B., 328 F.2d 534, 538 (C.A.D.C.), the following appears: The key question presented by subcontracting clauses in union agreements with general contractors is whether they are addressed to the labor relations of the subcontractor, rather than the general contractor. If so, they are secondary. ... The test as to the "primary" nature of ... subcontractor clause[s] . [is] whether the clauses are "germane to the economic integrity of the principal work unit" and seek "to protect and preserve the work and standards [the union] has bargained for," or instead "extend beyond the [contracting] employer and are aimed really at the union's difference with another employer." In Meat and Highway Drivers, etc., Local Union No. 710, International Brotherhood of Teamsters v. N.L.R.B., 335 F.2d 709, 713-714 (C.A.D.C.), the court said that a labor organization may validly protect "unit" work by seeking a contractual provision which would "remove from the employer the temptation of cheap labor through substandard contracting," and that Resolution of the difficult issue of primary versus secondary activity ... involves consideration of two factors: (1) jobs fairly claimable by the bargaining unit, and (2) preservation of those jobs for the bargaining unit. If the jobs are fairly claimable by the unit , they may, without violating either § 8(e) or § 8(b)(4)(A) or (B), be protected by provision for, and implementation of, no-subcontracting or union standards clauses in the bargaining agreements. Activity and agreement which directly protect fairly claimable jobs are primary under the Act. Incidental secondary effects of such activity and agreement do not render them illegal. Thus the "cease doing business" language in § 8(e) cannot be read literally because inherent in all subcontracting clauses, even those admittedly primary, is refused to deal with at least some contractors. The Union, quoting from Orange Belt, argues that the 80-cent provision " is germane to the economic integrity of the principal work unit" and seeks "to protect and preserve the work" that the Union has bargained for. The Union and BCOA, however, specifically disclaim any contention that the employees of all signatories constitute a single unit appropriate for the purposes of collective bargaining, and the record is clear that there are numerous bargaining units, some being association wide, some so small as to consist of few employees. Nevertheless, both BCOA and the Union argue that the work unit in this case 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD should be found to be a unit of all employees of all signatories. According to BCOA, It is true that the [80-cent] clause does not provide for the payment of eighty cents per ton on coal that one signatory acquires from another signatory; but this is wholly consistent with the Union's primary objective in preserving work opportunities for UMWA members. It naturally makes no difference to the Union whether signatory operator A purchases coal from signatory operator B since its interest is in employees employed by signatory operators generally. 15 The Union relies heavily upon the dissent of Board Member Jenkins in the Supplemental Decision in Galligan, 148 NLRB 249 at 256-260. Member Jenkins said: The welfare fund is administered under a single agreement, nationwide in scope, and separate from any agreement covering wages, hours, and other working conditions. It is executed by all employers having agreements with the Union and provides for a single system of administration, of employer contributions, and eligibility and level of benefits for all employees. In these circumstances it would appear, contrary to the view of my colleagues, that there exists a single industrywide bargaining unit for welfare fund matters.... Whether the [80-cent] clause be considered a prohibition on subcontracting work to those outside this broad unit who make no welfare fund contributions, or simply a requirement that the welfare fund contributions be maintained for coal which is subcontracted, the effect is to preserve this work standard against impairment through subcontracting to those who are able to produce more cheaply because they do not meet this standard. Although the Union relies upon Member Jenkins' views, it offered no evidence other than the 1950 Agreement and amendments thereto that there is "a single system of administration" of the Fund, "of employer contributions" to it, and "of eligibility and level of benefits for all employees." Indeed, when Dixie sought to establish the contrary during presentation of its case-in-chief, both the Union and BCOA objected. See footnote 14, supra. In any event, the record precludes a finding that there is a uniform contract unit. First, BCOA, in negotiating the 1964 amendments, acted on behalf of its members who are commercial operators. Captive operators, some or all of whom are BCOA members, are bound to pay into the Fund 40 cents on each ton of coal they mine, but are not parties to the 80-cent provision. Second, Peabody Coal Company (Peabody) is one of the largest operators in the world. Employees at some of its mines are represented by the Union; employees at its other mines are represented by another labor organization. Peabody is a party to the 80- cent provision with the exception that it pays nothing into the Fund on coal from its mines at which employees are represented by a labor organization other than the Union. Therefore, a signatory buying coal from Peabody would pay nothing into the Fund if the coal had been produced at mines where the employees are represented by the Union (because Peabody previously would have paid 40 cents per ton on such coal), but would be obligated to pay 80 cents " In Meat and Highway Drivers , etc., Local Union No 710, Teamsters , 335 F 2d 709 at 716, the court said that "[a]n additional reason for the Board's decision is that the union's per ton on coal produced at mines where the employees are represented by another labor organization. Third, some nonsignatories are bound by the 80-cent provision while others are not. As we have seen, Davison, which is Riverton's parent corporation, is a nonsignatory whose employees are represented by a labor organization other than the Union. But, as we also have seen, Davison is bound by the provision because it is an affiliate of Riverton. Additional quotations from Member Jenkins' dissent in Galligan are pertinent. He said: Here the facts indicate that the Union had a direct and substantial primary interest in protecting the work of the employees involved. Upon reaching an agreement with a major association of operators [BCOA], the Union successfully negotiated agreements with other groups of operators, and with individual operators, which conformed to the initial agreement. The Union's goal in so doing was to achieve uniformity of conditions in its contracts; and by this practice it has achieved and maintained such uniformity since 1950. [Emphasis supplied.] In this connection, BCOA says in its brief: Without regard to bargaining units, the Union has an undeniable interest in preserving Union standards and conditions of employment, which are common to all the employees of all signatory employers from encroachment through the contracting out of coal production. This objective of the UMWA is applicable generally to all employees who work for signatory operators whether they constitute a single unit or several different units for bargaining purposes. [Emphasis supplied.] And the Union says in its brief: [T]he issue of subcontracting was of a primary nature [Emphasis in original] between UMW and signatory operators in negotiating a collective bargaining contract and the Union's purpose was to protect the job opportunities and security provided for, and the integrity of, the national, industry-wide collective agreement and its work unit. This is manifest from the fact that so long as coal is produced by signatories under the national agreement's terms, its integrity is maintained: wages and working conditions are met, and the duty to pay the 40 cents a ton arises "on the production of coal...." [Emphasis supplied.] The record in this proceeding precludes findings in accord with the quotations immediately above from Member Jenkins' dissent and the Respondents' briefs. This is so because I sustained objections by BCOA and the Union when Dixie offered evidence to establish that the Union and some signatories have oral agreements pursuant to which such signatories are permitted to pay lower wages to employees and smaller payments into the Fund than are provided for in the written agreements. See footnote 14, supra. It follows that the quoted contentions of BCOA and the Union may not be sustained unless first Dixie is afforded an opportunity to try to prove the contrary. Turning to the Respondents' contention that the 80-cent provision is intended to protect employees' job opportunities, there are several defects in the contention. object in bargaining for this clause was to aid union members generally, rather than members of the unit We agree that such an object is secondary. . ' INTERNATIONAL UNION UNITED MINE WORKERS OF AMERICA First, assuming arguendo that payments into the Fund constitute an appropriate method of compensation for loss of work, there is no evidence that $1, the figure Owens testified was the Union's initial proposal, or the contract figure of 80 cents, or any other figure would be reasonable compensation for such loss. There is evidence, however, that the economic facts in the bituminous coal industry are such that the obligation to pay 80 cents per ton on nonsignatory coal has resulted, and will result still further if the 80-cent provision should be fully enforced, in causing nonsignatories to become signatories or to lose signatories as a market for their coal. Second, in certain respects that provision does not protect the jobs of employees of signatories . A signatory is free under the contract to close any portion, or all, of his mining operations, to discharge his employees, and to fulfill his requirements for coal by purchasing from signatories within or outside his bargaining unit . Third, in respect to the contention that jobs at the mine of one signatory are fairly claimable by employees of another signatory, this contention might be more persausive if the 80-cent provision were applicable only to the purchase of substitute coal. The record discloses that Riverton's employees may not fairly claim the jobs of mining the coal that Riverton purchases. Riverton mines coal to the limit of its financial ability, and its purchases supplemental coal only. Moreover, Riverton has been unable to purchase from signatories, at a price it can afford, as much coal as it needs, and I know of no theory consistent with the objectives of Section 8(e) under which the jobs of mining coal for sale to Riverton are fairly claimable by employees of signatories who will not sell to Riverton at such a price.16 We have seen that the Respondents' position, as well as the 80-cent provision , is phrased in terms of disputes between the Union and signatory buyers. I find, however, that that provision is really aimed at nonsignatory sellers." Although the provision has not been fully enforced, it has resulted in some nonsignatory sellers becoming signatories in order to preserve markets 'fi Riverton has been purchasing coal since about 1947 and we have seen that some purchases were made from operators to whom Riverton had leased coal lands We have seen too that Riverton has been a signatory for at least a decade. The Union, in its brief, points to portions of the 1950 Agreement , as amended, which have been recited above , and it argues that Riverton covenanted that the Agreement "covered the operation of all coal lands owned or held under lease by Riverton and that Riverton `will not lease out any coal lands as a subterfuge for the purpose of avoiding the application ' of the Agreements " The Union argues further that "despite its covenant , Riverton leased to others acreage it owned and subleased land it held under lease " and that Riverton, "having so violated its covenant and purchased coal from nonsignatones , producing coal on lands within the scope of the Agreements and thereby depriving UMW members of job opportunities of producing such coal as Riverton required, it now attempts to employ such breach to condemn the [80-cent] clause by which UMW sought to protect the job opportunities of its members " This contention was not raised at the hearing and witnesses for Riverton were not questioned about it Moreover, Riverton has had no opportunity to respond to it Insofar as there is evidence, however, it discloses that Riverton has mined coal to the extent of its financial resources and that it still needs to buy coal in order to meet its customers' demands " Both the Union and BCOA objected at the hearing to the admission of evidence concerning the effects of the 80-cent provision upon the businesses of operators, including Riverton and Dixie, contending that the secondary effects of the provision are incidental to a contract that directly protects fairly claimable jobs I believe , however, that the evidence concerning such 477 previously open to them,'" and it has caused some signatories to cease purchasing nonsignatory coal in order to avoid the penalty."' Other signatories who continue to deal in nonsignatory coal are not, insofar as the record discloses, complying with the 80-cent provision, and I repeat that the economics of the bituminous coal industry are such that, if and when the provision should be fully enforced, many, if not all, nonsignatories will be faced with two alternatives: to become signatories or to lose their signatory customers . The provision is, in effect , an invalid union-signatory clause. In conclusion, I find that the term "principal work unit" as used in Orange Belt, supra, and the terms "bargaining unit" and "unit" as used in Meat and Highway Drivers, etc., Local Union No. 710, Teamsters, supra, mean units appropriate for the purposes of collective bargaining. I find further that the "contract unit" urged by the Respondents is not a unit appropriate for such purposes (nor do the Respondents contend that it is) and that the adoption of the Respondents' theories concerning a contract unit cannot be reconciled with the purposes of Section 8(e) and the cases construing that section . Finally, I conclude that BCOA, the Union, and District 17 violated Section 8(e) of the Act by entering into agreements that contain the 80-cent provisions. L. The Violations of Section 8(b)(4)(i), (ii)(A) and (B) Insofar as pertinent , Section 8(b) provides that it shall be an unfair labor practice for a labor organization or its agents: (4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike ... or (ii) to threaten , coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is: (A) forcing or requiring any employer ... to effects has probative value in determining whether that provision, although phrased in terms of being aimed at the practices of signatory buyers, in reality is aimed at the labor relations of nonsignatory sellers. In Meat and Highway Drivers, etc , Local Union No 710, Teamsters, 335 F 2d 709 at 716, the court said To conclude that a contract term falling within the letter of § 8(e) properly falls within its prohibition, there must be either a finding that both parties understood and acquiesced in a secondary object for the term, or a finding that secondary consequences within § 8 (e)'s intendment would probably flow from the clause, in view of the economic history and circumstances of the industry, the locality, and the parties In a later opinion in the same case , the court said that the "operation " of a contractual provision may be considered in determining whether it violates Sec. 8(e) 348 F 2d 803, 804 (C A D.C) '" BCOA and the Union argue that they could lawfully have negotiated a provision prohibiting subcontracting, as was contained in the Kanawha District Agreement of 1941, and that the 80-cent provision is merely less restrictive The fact, however, is that an agreement which prohibits subcontracting places no pressure upon a subcontractor to grant union recognition whereas an agreement which permits subcontracting may place substantial pressure upon a subcontractor to grant such recognition. " Although the 1964 amendments to the 1950 Agreement do not expressly ban a signatory's purchase of nonsignatory coal, the extra 40 cents per ton necessarily influences signatory buyers to deal only with signatory sellers in any instance in which signatory and nonsignatory sellers offer coal at comparable prices. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD enter into any agreement which is prohibited by section 8(e); (B) forcing or requiring any person to cease ... dealing in the products of any other producer ... or to cease doing business with any other person. As recited, the record contains a stipulation that the Union, its Districts 17 and 28, and its Locals 6594 and 6937 induced and encouraged employees of Ames and Buchanan to engage in strikes from July 13 through August 22, 1964, objects of which were to force and require Ames and Buchanan to become signatories to the 1964 amendments to the 1950 Agreement. The amended consolidated complaint alleges that said Respondents thereby violated Section 8(b)(4)(i) and (ii)(A).'0 As also recited, the record contains a stipulation that the Union and its District 17 induced and encouraged Riverton's employees to engage in a strike from April 10 to 15, 1964, an object of which was to force and require Riverton to become a signatory to the 1964 amendments to the 1950 Agreement. The amended consolidated complaint alleges that said Respondents thereby violated Section 8(b)(4)(i), (ii)(A) and (B). It having been found that the 80-cent provision contravenes Section 8(e), it follows that the allegations of the amended consolidated complaint concerning the conduct of the named labor organizations at the properties of Ames, Buchanan, and Riverton are well founded. I so find. Upon the basis of the above findings of fact and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. The Union, its Districts 17 and 28, and its Locals 6594 and 6937 are labor organizations within the meaning of the Act. 2. BCOA, Dixie, Ames, Buchanan, and Riverton are engaged in commerce within the meaning of the Act. 3. By entering into agreements containing the 80-cent provision, BCOA, the Union, and District 17 have engaged in unfair labor practices affecting commerce within the meaning of Sections 8(e) and 2(6) and (7) of the Act. 4. By inducing and encouraging employees of Ames and Buchanan to engage in strikes, and by threatening, coercing, and restraining Ames and Buchanan with objects of forcing and requiring Ames and Buchanan to become signatories to the 80-cent provision, the Union, its Districts 17 and 28, and its Locals 6594 and 6937 have engaged in unfair labor practices affecting commerce within the meaning of Sections 8(b)(4)(i) and (ii)(A) and 2(6) and (7) of the Act. 5. By inducing and encouraging employees of Riverton to engage in a strike, and by threatening, coercing, and restraining Riverton with an object of forcing and requiring Riverton to become a signatory to the 80-cent provision, the Union and District 17 have engaged in unfair labor practices affecting commerce within the meaning of Sections 8(b)(4)(i), (ii)(A) and (B) and 2(6) and (7) of the Act. 6. The allegations of the amended consolidated complaint that Respondents Hibbitts and Humphrey engaged in unfair labor practices have not been sustained. 20 The charge in Case 5-CC-294 does not allege a violation of subsection (B) of 8(b)(4) It does allege , as does the amended consolidated complaint, that Respondents Hibbitts and Humphrey participated in inducing and encouraging the strikes RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and pursuant to Section 10(c) of the Act and in order to effectuate the Act's policies, I hereby recommend that: 1. Bituminous Coal Operators Association, its officers, agents, successors, and assigns , and International Union, United Mine Workers of America, and District 17 of said International Union, their respective officers, agents, and representatives, shall cease and desist from: (a) Maintaining, enforcing, or giving effect to the 80- cent provision in the 1964 amendments to the National Bituminous Coal Wage Agreement of 1950. (b) Entering into, maintaining , giving effect to, or enforcing any other contract or agreement, express or implied, whereby any signatory operator ceases or refrains, or agrees to cease or refrain, from handling, using, selling, transporting, or otherwise dealing in any of the products of any other employer, or from doing business with any other person, in violation of Section 8(e) of the Act. 2. International Union, United Mine Workers of America, and District 17, their respective officers, agents, and representatives, shall additionally cease and desist from: (a) Inducing or encouraging employees of Riverton Coal Company, or any other employer, to engage in a strike or a refusal in the course of their employment to perform any services. (b) Threatening, coercing, or restraining said Riverton, or any other employer, where in either case an object is to force or require said Riverton, or any other employer, to enter into an agreement which is prohibited by Section 8(e), or to cease dealing in the products of any other producer or to cease doing business with any other person. 3. District 28 and Locals 6594 and 6937 of said International Union, their respective officers, agents, and representatives, shall cease and desist from: (a) Inducing or encouraging employees of Ames Coal Company, Buchanan County Coal Corporation, or any other employer, to engage in a strike or a refusal in the course of their employment to perform any services. (b) Threatening, coercing, or restraining said Ames or Buchanan, or any other employer, where in either case an object is to force or require said Ames or Buchanan, or any other employer, to enter into an agreement which is prohibited by Section 8(e). 4. The Respondents named in paragraphs 1, 2, and 3 above (i.e., all Respondents in this proceeding except Hibbitts and Humphrey), shall take the affirmative action set forth below in subparagraphs of this paragraph and in paragraph 5 which is necessary to effectuate the policies of the Act. Copies of all notices described below are to be prepared by the Regional Director for Region 5. Each Respondent, upon receipt of its notices from the Regional Director, shall immediately have its notices signed by its representative and shall thereafter immediately post same at the places described below. Each Respondent shall also maintain its notices for at least 60 consecutive days after posting and shall take reasonable steps to ensure that same are not altered, defaced, or covered by any material. against Ames and Buchanan, but there is neither a stipulation nor evidence concerning the alleged conduct of Hibbitts and Humphrey, and the allegations respecting those two individuals will be dismissed INTERNATIONAL UNION UNITED MINE WORKERS OF AMERICA (a) Said Association and International Union shall post copies of the attached notice marked "Appendix C," in conspicuous places at each jobsite of each commercial operator who is a member of said Association and in said International Union's business offices and meeting halls, including all places where notices to employees and union members customarily are posted." (b) Said Association and International Union shall, promptly after receipt of copies of Appendix C from the Regional Director, return to him signed copies for posting by Dixie Mining Company, if Dixie be willing, at all places where notices to Dixie's employees customarily are posted.22 (c) Said International Union and District 17 shall post copies of the attached notice marked "Appendix D," in conspicuous places in these Respondents' business offices and meeting halls, including all places where notices to members customarily are posted. 2-1 (d) Said International Union and District 17 shall, promptly after receipt of copies of Appendix D from the Regional Director, return to him signed copies for posting by Davison Fuel and Dock Company and said Riverton, Ames, and Buchanan, if those employers be willing, at all places where notices to their respective employees customarily are posted. 4 (e) Said District 28 and Locals 6594 and 6937 shall post copies of the attached notice marked "Appendix E," in conspicuous places in these Respondents' business offices and meeting halls, including all places where notices to members customarily are posted."' (f) Said District 28 and Locals 6594 and 6937 shall, promptly after receipt of copies of Appendix E from the Regional Director, return to him signed copies for posting by said Ames and Buchanan, if those employers be willing, at all places where notices to their respective employees customarily are posted.'' 5. Each of the Respondents named in paragraph 1, 2, and 3 above shall notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply herewith. 7 IT IS FURTHER RECOMMENDED that the amended consolidated complaint be dismissed insofar as it alleges that Respondents Hibbitts and Humphrey engaged in unfair labor practices. APPENDIX A UNITED MINE WORKERS OF AMERICA WELFARE AND RETIREMENT FUND OF 1950 A. It is hereby stipulated and agreed by the contracting parties hereto that there is hereby created a Fund to be designated and known as the "United Mine Workers of America Welfare and Retirement Fund of 1950." During the life of this Agreement, there shall be paid into such Fund by each operator signatory hereto the sum of thirty cents (30 cents) per ton of two thousand (2,000) pounds on each ton of coal produced for use or for sale. Such Fund 21 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " 21 Fn 21,supra 2i Fn 21,supra 479 shall have its place of business in Washington, District of Columbia, and it shall be operated by a Board of Trustees, one of whom shall be appointed as a representative of the Employers, one of whom shall be appointed as a representative of the United Mine Workers of America and one of whom shall be a neutral party, selected by the other two. In the event of resignation, death, inability or unwillingness to serve of the Trustee appointed by the Operators or the Trustee appointed by the United Mine Workers of America, the Operators shall appoint the successor of the Trustee originally appointed by them and the United Mine Workers of America shall appoint the successor of the Trustee originally appointed by it. The Operators signatory hereto do hereby appoint Charles A. Owen, of New York City, as their representative on said Board of Trustees. The United Mine Workers of America do hereby appoint John L. Lewis, of Washington, D.C., as its representative on said Board of Trustees. It is further stipulated and agreed by the joint contracting parties that Josephine Roche, of Denver, Colorado is appointed as the neutral Trustee. Said three Trustees so named and designated shall constitute the Board of Trustees to administer the Fund herein created. In the event of a deadlock on the designation or agreement as to any further neutral Trustee, an impartial umpire shall be selected either by agreement of the two Trustees, representatives of the contracting parties hereto, or by petition by either of the contracting parties hereto to the United States District Court for the District of Columbia for the appointment of such an impartial umpire, all as made and provided in Section 302(c) of the "Labor-Management Relations Act, 1947." It is agreed by the contracting parties hereto that the Trustees herein provided for shall serve for the duration of this contract and as long thereafter as the proper continuation and adminstration of said trust shall require. It is agreed that this Fund is an irrevocable trust created pursuant to Section 302(c) of the "Labor-Management Relations Act, 1947," and shall endure as long as the purposes of its creation shall exist. Said purposes shall be to make payments from principal or income or both, of (1) benefits to employees of said Operators, their families and dependents for medical or hospital care, pensions on retirement or death of employees, compensation for injuries or illness resulting from occupational activity or insurance to provide any of the foregoing, or life insurance, disability and sickness insurance or accident insurance; (2) benefits with respect to wage loss not otherwise compensated for at all or adequately by tax supported agencies created by federal or State law: (3) benefits on account of sickness, temporary disability, permanent disability, death or retirement; (4) benefits for any and all other purposes which may be specified, provided for or permitted in Section 302(c) of the "Labor-Management Relations Act, 1947," as agreed upon from time to time by the Trustees including the making of any or all the 2' Fn 21, supra 21 Fn 21,supra. Fit 21, supra If this Recommended Order is adopted by the Board, this provision shall be modified to read "Each of the Respondents named in paragraphs 1. 2. and 3 above shall notify Said Regional Director, in writing , within 10 days from the date of this Order, what steps it has taken to comply herewith " 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD foregoing benefits applicable to the individual members of the United Mine Workers of America and their families and dependents, and to employees of the Operators other than those exempted from this Agreement; and (5) benefits for all other related welfare purposes as may be determined by the Trustees within the scope of the provisions of the aforesaid "Labor-Management Relations Act, 1947." Subject to the stated purposes of this Fund, the Trustees shall have full authority, within the terms and provisions of the "Labor-Management Relations Act, 1947," and other applicable law, with respect to questions of coverage and eligibility, priorities among classes of benefits, amounts of benefits, methods of providing or arranging for provisions for benefits, investment of trust funds, and all other related matters. The aforesaid Trustees shall designate a portion (which may be changed from time to time) of the payments herein provided, based upon proper actuarial computations, as a separate fund to be administered by the said Trustees herein described and to be used for providing for pensions or annuities for the members of the United Mine Workers of America or their families or dependents and such other persons as may be properly included as beneficiaries thereunder. It is further agreed that the detailed basis upon which payment from the Fund will be made shall be resolved in writing by the aforesaid Trustees at their initial meeting, or at the earliest practicable date that may by them thereafter be agreed upon. Title to all the moneys paid into and or due and owing said Fund shall be vested in and remain exclusively in the Trustees of the Fund, and it is the intention of the parties hereto that said Fund shall constitute an irrevocable trust and that no benefits or moneys payable from this Fund shall be subject in any manner to anticipation, alienation, sales, transfer, assignment, pledge, encumbrance or charge, and any attempt so to anticipate, alienate, sell, transfer, assign, pledge, encumber or charge the same shall be void. The moneys to be paid into said Fund shall not constitute or be deemed wages due to the individual mine workers, nor shall said moneys in any manner be liable for or subject to the debts, contracts, liabilities or torts of the parties entitled to such money, i.e., the beneficiaries of said Trust under the terms of this Agreement. The obligation to make payments to the "United Mine Workers of America Welfare and Retirement Fund of 1950" under this contract shall become effective on March 6, 1950, and the first actual payments are to be made on April 10, 1950, and thereafter continuously on the 10th day of each succeeding calendar month covering the production of all coal for use or sale during the preceding month. It is stipulated and agreed by the contracting parties hereto that the Trustee designated by the United Mine Workers of America shall be the Chairman of the Trustees of the Fund provided for in this Agreement. It shall be the duty of the Operators signatory hereto, and each of them, to keep said payments due said Fund, as hereinabove described and provided for, current and to furnish to the United Mine Workers of America and to the Trustees hereinabove designated a monthly statement showing the full amount due hereunder for all coal produced for use or for sale from each of the several individual mines owned or operated by the said Operators signatory hereto. Payments to said Fund shall be made by check payable to "United Mine Workers of America Welfare and Retirement Fund of 1950" and shall be delivered or mailed to the office of said Fund located at 907 Fifteenth Street, N.W., Washington, D.C., or as otherwise designated by the Trustees. It is stipulated and agreed by the contracting parties hereto that an annual audit of the Fund hereinabove described shall be made by competent authorities to be designated by the Trustees of said Fund. A statement of the results of such audit shall be made available for inspection of interested persons at the principal office of the Trust Fund and at such other places as may be designated by the Trustees. Failure of any Operator signatory hereto make full and prompt payments to the "United Mine Workers of America Welfare and Retirement Fund of 1950" in the manner and on the dates herein provided shall, at the option of the United Mine Workers of America, be deemed a violation of this Agreement. This obligation of each Operator signatory hereto, which is several and not joint, to so pay such sums shall be a direct and continuing obligation of said Operator during the life of this Agreement and it shall be deemed a violation of this Agreement if any mine to which this Agreement is applicable shall be sold, leased, sub-leased, assigned, or otherwise disposed of for the purpose of avoiding the obligation hereunder. Action which may be required hereunder by the Operators for the appointment of a successor Trustee representing them, or which may be required in connection with any other material hereunder, may be taken by those Operators who at the time are parties hereto, and authorization, approval, or ratification of Operators representing fifty-one percent (51%) or more of the coal produced for use or sale during the calendar year previous to that in which the action is taken shall be sufficient and shall bind all Operators. B. It is hereby stipulated and agreed by the contracting parties with respect to the Fund created by the National Bituminous Coal Wage Agreement of 1947: (1) The Operators signatory hereto agree to make payments into said Fund on or before March 15, 1950, on account of all coal produced for use or sale up to and including March 6, 1950, with respect to which payment has not heretofore been made, such payments on the basis heretofore made by said Operators under the National Bituminous Coal Wage Agreement of 1947 and the National Bituminous Coal Wage Agreement of 1948, whichever is applicable. (2) The Operators signatory hereto hereby renounce and forever release any and all claim to or interest in payments made into the said 1947 fund. (3) The Trustees appointed pursuant to this Agreement are hereby authorized and directed to accept into the new trust fund hereby created and to devote for the purposes hereinabove specified and enumerated, any and all trust funds remaining unexpended or unobligated in said 1947 trust fund. (4) The parties hereto agree that the best interest of the beneficiaries of said trust fund would be served by having all unexpended or unobligated funds therein transferred as above provided, and agree that the Trustees thereof should transfer such funds to the new trust fund created by this Agreement. C. It is stipulated, understood and agreed by the contracting parties hereto that the present practices with respect to wage deductions and their use for provision of medical, hospital, and related services shall continue during the terms of this contract or until such earlier date INTERNATIONAL UNION UNITED MINE WORKERS OF AMERICA 481 or dates as may be agreed upon by the United Mine Workers of America and any Operator signatory hereto. D. It is the intent and purpose of the contracting parties hereto that full cooperation shall by each of them be given to each other, the Trustees named under this Section and to all affected Mine Workers to the eventual coordination and development of policies and working agreements necessary or advisable for the effective operation of this Fund. APPENDIX B purpose of avoiding the application of this Agreement or any section, paragraph or clause thereof." APPENDIX C NOTICE TO ALL SIGNATORY OPERATORS TO THE NATIONAL BITUMINOUS COAL WAGE AGREEMENT OF 1950, AS AMENDED DURING 1964, AND THEIR EMPLOYEES; TO ALL MEMBERS, OFFICERS, AND AGENTS OF INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA; AND TO DIXIE MINING COMPANY AND ITS EMPLOYEES UNITED MINE WORKERS OF AMERICA WELFARE AND RETIREMENT FUND OF 1950 Amend the first printed paragraph of subsection A of this clause by striking out all of the second sentence beginning with the word "During" and ending after the word "sale" and inserting in lieu thereof the following: "During the life of this agreement there shall be paid into such Fund by each Operator signatory hereto the sum of forty cents (40 cents) per ton of two thousand (2,000) pounds on each ton of bituminous coal produced by such Operator for use or for sale. On all bituminous coal procured or acquired by any signatory Operator for use or for sale, (i.e., all bituminous coal other than that produced by such signatory Operator) there shall, during the life of this Agreement, be paid into such Fund by each such Operator signatory hereto or by any subsidiary or affiliate of such Operator signatory hereto the sum of eighty cents (80 cents) per ton of two thousand (2,000) pounds on each ton of such bituminous coal so procured or acquired on which the aforesaid sum of forty cents (40 cents) per ton had not been paid into said Fund prior to such procurement or acquisition. Amend the eleventh printed paragraph of subsection A by substituting a semicolon for the period at the end of the first sentence and adding the following: "together with a monthly statement showing the full amount due hereunder on all bituminous coal procured or acquired from any mine, preparation plant or facility other than those owned or operated by such signatory Operator, all as hereinabove set out and provided." Amend the second sentence of the thirteenth printed paragraph of subsection A by inserting a comma after the word "mine" and then adding the following: "preparation plant or other facility" and further amend the thirteenth paragraph by striking out the words "obligation hereunder" at the end of the paragraph and substituting in lieu thereof the following: "any of the obligations hereunder." APPLICATION OF CONTRACT TO COAL LANDS Amend the section denominated "Application of Contract to Coal Lands" by striking out the language of that section and inserting in lieu thereof the following: "As part of the consideration for this agreement, the Operators signatory hereto agree that this Agreement covers the operation of all of the coal lands, coal producing and coal preparation facilities owned or held under lease by them, or any of them, or by any subsidiary or affiliate at the date of this Agreement, or acquired during its term which may hereafter (during the term of this Agreement) be put into production or use. The Operators agree that they will not lease, license or contract out any coal lands, coal producing or coal preparation facilities for the Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT maintain, enforce, or give effect to the 80-cent provision in the 1964 amendments to the National Bituminous Coal Wage Agreement of 1950. WE WILL NOT enter into, maintain, give effect to, or enforce any other contract or agreement, express or implied, whereby any signatory operator ceases or refrains, or agrees to cease or refrain, from handling, using, selling, transporting, or otherwise dealing in any of the products of any other employer, or from doing business with any other person, in violation of Section 8(e) of the Act. BITUMINOUS COAL OPERATORS ASSOCIATION (Employer) Dated By (Representative) (Title) INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA (Labor Organization) Dated By (Representative) (Title) 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. If anyone has any question concerning this notice or whether the Association or the International Union is complying with its provisions, he may communicate directly with the Board's Regional Office, 707 North Calvert Street, Baltimore, Maryland 21202, Telephone 752-2159. APPENDIX D NOTICE TO ALL OUR MEMBERS, OFFICERS AND AGENTS; AND To DAVISON FUEL AND DOCK COMPANY, RIVERTON COAL COMPANY, AMES COAL COMPANY, BUCHANAN COUNTY COAL CORPORATION, AND THEIR EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT maintain, enforce, or give effect to the 80-cent provision in the 1964 amendments to the National Bituminous Coal Wage Agreement of 1950. 482 DECISIONS OF NATIONAL WE WILL NOT enter into , maintain , give effect to, or enforce any other contract or agreement , express or implied , whereby any signatory operator ceases or refrains , or agrees to cease or refrain, from handling, using , selling, transporting, or otherwise dealing in any of the products of any other employer, or from doing business with any other person, in violation of Section 8(e) of the Act. WE WILL NOT induce or encourage employees of any employer to engage in a strike or a refusal in the course of their employment to perform any services, nor will we threaten, coerce , or restrain any employer with an object of forcing or requiring an employer to enter into an agreement which is prohibited by Section 8(e), or to cease dealing in the products of any other producer or to cease doing business with any other person. INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA (Labor Organization) Dated By (Representative ) (Title) UNITED MINE WORKERS OF AMERICA, DISTRICT 17 (Labor Organization) Dated By (Representative) (Title) 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. If anyone has any question concerning this notice or whether the International Union or District 17 is complying with its provisions , he may communicate directly with the Board's Regional Office , 707 North Calvert Street , Baltimore, Maryland 21202 , Telephone 752-2159. APPENDIX E NOTICE TO ALL OUR MEMBERS , OFFICERS AND AGENTS; LABOR RELATIONS BOARD AND TO AMES COAL COMPANY , BUCHANAN COUNTY COAL CORPORATION , AND THEIR EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act , as amended , we hereby notify you that: WE WILL NOT induce or encourage employees of the above -named employers , or any other employer, to engage in a strike or a refusal in the course of their employment to perform any services , nor will we threaten, coerce , or restrain said employers, or any other employer, with an object of forcing or requiring an employer to enter into an agreement which is prohibited by Section 8(e). UNITED MINE WORKERS OF AMERICA, DISTRICT 28 (Labor Organization) Dated Dated By (Representative) (Title) LOCAL 6594 , UNITED MINE WORKERS OF AMERICA (Labor Organization) By (Representative) (Title) LOCAL 6937, UNITED MINE WORKERS OF AMERICA (Labor Organization) Dated By (Representative ) (Title) 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. If anyone has any question concerning this notice or whether District 28, Local 6594 , or Local 6937 is complying with its provisions , he may communicate directly with the Board's Regional Office , 707 North Calvert Street , Baltimore , Maryland 21202 , Telephone 752-2159.