International Union, UMW

592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union , United Mine Workers of America and J. V. McCoy and Partners d/b/a McCoy Coal Company. Case 10- CB-1643. June 19,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On April 6, 1967, Trial Examiner Wellington A. Gillis issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. 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 Respondent, International Union, United Mine Workers of America, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order.2 i We hereby correct an inadvertent typographical error in the last line of the first indented paragraph of the "Appendix" to the Trial Examiner's Decision by substituting the word "termination" for the word "discrimination." 1 The address and telephone number for Region 10 , appearing at the bottom of the Notice attached to the Trial Examiner's Decision, is amended to read : 730 Peachtree Street , N E, Room 701, Atlanta, Georgia 30308, Telephone 526-5741. TRIAL EXAMINER'S DECISION WELLINGTON A. GILLIS, Trial Examiner: This case was heard by me on January 5, 1967, at Haleyville, Alabama, and is based upon a charge, filed on October 5, 1966, by J. V. McCoy and Partners , doing business as McCoy Coal Company, upon a complaint, issued on November 28, 1966, by the General Counsel for the National Labor Relations Board against International Union , United Mine Workers of America, alleging violations of Section 8(b)(3) and Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), and upon an answer timely filed by the Respondent denying the commission of any unfair labor practices.' At the hearing, all parties were represented by counsel and were afforded full opportunity to be heard, to introduce evidence pertinent to the issues , and to engage in oral argument. Shortly after the opening of the hearing, the parties stipulated the facts pertaining to this matter. Subsequent to the close of the hearing, timely briefs were filed by counsel for the General Counsel, the Charging Party, and the Respondent.2 Upon the entire record in this case,3 I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE CHARGING COMPANY J. V. McCoy and Partners doing business as McCoy Coal Company is a partnership with its office and place of business near Natural Bridge, Alabama, where it is engaged in the mining, processing, and sale of coal. During the past calendar year, McCoy sold and shipped products valued in excess of $50,000 directly to customers located outside the State of Alabama. I find that the Charging Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE RESPONDENT LABOR ORGANIZATION The parties admit, and I find, that International Union, United Mine Workers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue Whether the Respondent violated Section 8(b)(3) of the Act by engaging in a strike without complying with the requirements of Section 8(d)(1), (2), (3), and (4). I Hereinafter the Charging Party will be referred to as McCoy or the Company, the International Union, United Mine Workers of America, as the Respondent or the Union; the National Labor Relations Board, as the Board ; and the National Labor Relations Act, as the Act. I Subsequent to the close of the hearing and to the time set for the filing of briefs , I received from counsel for the General Counsel a letter indicating, in effect, that he had not received a copy of the Respondent's brief as required by the Board's Rules and Regulations , Series 8, as amended In the course of my deliberations in this matter, and prior to receiving said motion, I referred to the briefs submitted by all parties, including that received from the Respondent . In view of my ultimate findings and conclusions herein, it is apparent that my reliance on Respondent's brief has, in no way , prejudiced the position of the General Counsel. ' The typewritten transcript of this proceeding is replete with errors, most of which are covered by a motion to correct the transcript filed by counsel for the General Counsel subsequent to the close of the hearing. The said motion , to which no objections were filed, is hereby granted, and is received in evidence as Trial Examiner's Exhibit 1 In addition to the corrections noted by the motion, I further correct the transcript by changing , wherever they appear, the words "mute" and "muteness ," respectively, to "moot " and "mootness." 165 NLRB No. 67 INTERNATIONAL UNION, UMW B. Stipulated Facts The Company and the Respondent on or about April 17, 1964, entered into a collective-bargaining agreement of indefinite duration, covering the Company's production and maintenance employees4 and containing a provision permitting either party to terminate the contract on or after March 31, 1966, by giving 60 days' written notice.5 At a date just prior to April 11, 1966,6 the Union executed a new General National Coal Wage Agreement with a number of major coal operators, subsequent to which generalized work stoppages occurred throughout the United States, including the State of Alabama. On April 11, all of McCoy's employees went on strike and have, at all times since, remained on strike.' Thereafter, on or about May 1, the Union, "through employees, accompanied by Howard Hillhouse, a representative of the Respondent Union," - submitted to the Company a proposed new contract, which the Company declined to execute. By letter, dated July 13, the Company informed the Union that, "due to your material breach of contract ..." it was, in accordance with the terms of the existing contract, serving notice of its intent to terminate the contract "at the earliest possible date." In closing, the company letter stated that "We would be happy to meet with you for the purpose of conferring: We have explained that we cannot sign your new proposed contract. If you have something we can work with, it would be a pleasure to do business with you." Copies of this notice were served upon the Federal Mediation and Conciliation Service and the State of Alabama Department of Labor. On July 15, by letter to the Company, the Respondent, after expressing surprise at the Company's action, advised that it was "ready, willing and able to meet ... for the purpose of conferring." On or about August 29 each striking employee, by mail, offered to return to work on the same terms and conditions as existed on April 11 when he went out on strike. On September 2, pursuant to the filing by the Union of a representation petition on August 5, seeking certification, a representation hearing was held in Case 10-RC-6799, involving McCoy's employees. At the hearing the Company moved to dismiss the petition on the ground that there were no employees then employed in the unit. The Company's position in this regard was in turn predicated on its assertion that the employees involved had lost their 4 The parties stipulated , and I find, that "All production and maintenance employees employed by McCoy at its strip coal mine at or near Natural Bridge, Alabama, including truckdrivers, but excluding all office clericals, technical and professional employees, guards and supervisors as defined in the Net, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act." 5 The caption on this agreement reads: "National Bituminous Coal Wage Agreement of 1950 as Amended Effective April 2, 1964 " 0 Unless otherwise specified, all dates herein refer to 1966. r In fact, no employees have worked in the unit since April 11. " A request for review of the Decision and Direction of Election is currently pending before the Board Sec. 8(d) of the Act provides in pertinent part the following: ... That where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification- (1) serves a written notice upon the other party to the contract of the proposed termination or modification sixty 593 employee status under the Act because of their having engaged in an unlawful strike on and since April 11, unlawful because of a failure to render notice pursuant to Section 8(d) of the Act. Subsequent to the hearing, in issuing his Decision and Direction of Election on October 5, and directing an election in the production and maintenance'unit for which the Union sought certification, the Regional Director denied the Company's motion to dismiss on the ground that it was based upon an assertion of an 8(d) violation and thus constituted an allegation of an 8(b)(3) unfair labor practice, which, under Board practice, could not be litigated in a representation proceeding." On this same date, October 5, the Company filed the instant 8(b)(3) charge against the Respondent. The stipulated record reveals that, in addition to the fact that the strike has continued at all times since April 11, picketing occurred for a 10-day period shortly after May 1, and again on and since October 7. C. Contentions and Conclusions Pure and simple, the above facts show, and the parties admit, that employee members of the Union went on strike on April 11, that at no time before or after was a notice served upon the Company by the Union of the latter's intent to modify or terminate the existing contract, or an offer made by the Union to meet with the Company for the purpose of negotiating a new or modified agreement. It is further undisputed that at no time did the Union notify the Federal or State mediation services of the existence of any contract dispute. The General Counsel contends that the Union went on strike in violation of Section 8(d)(1), (2), (3), and (4) of the Act," and, accordingly, violated Section 8(b)(3) of the Act. The Respondent, in stipulating to the above facts, but denying that it had engaged in a violation of the Act, asserts that (a) the evidence fails to establish that the Union was responsible for the work stoppage at the Company's operation, (b) the Company's own action in subsequently cancelling the contract rendered it unnecessary as well as futile for the Union to comply with the requirements of Section 8(d), t" and (c) in any event, the matter has become moot and no purpose can be served by issuing a Board order. I find the Respondent's position to lack merit. As to the proposition that the evidence fails to show union days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days prior to the time it is proposed to make such termination or modification; (2) offers to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications; (3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute, and simultaneously therewith notifies any State or Territorial agency established to mediate and conciliate disputes within the State or Territory where the dispute occurred , provided no agreement has been reached by that time; and (4) continues in full force and effect , without resorting to strike or lockout , all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract , whichever occurs later . . 10 In conjunction with this argument , the Union casts adverse reflection on the good-faith motivation of the Charging Party by emphasizing the fact that the contract , necessarily relied on as the basis for this proceeding, has been cancelled by the Company prior to the filing of the charge and the issuance of the complaint. 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD responsibility for the employee strike action, it was made clear on the record by counsel for the Respondent that the purpose of the employees in going out on strike was to secure a new contract. The undisputed evidence establishes further that the striking employees were members of and represented under contract by the Union and that, simultaneous with the establishment of a picket line on or about the first of May, the Union, through the striking employees and accompanied by an official of the Union, proposed a new contract to replace the existing agreement. On these facts, and particularly in the absence of an affirmative disavowal by the Respondent of responsibility for the strike action, either at the time or subsequently, I find that the Respondent condoned and induced the employee strike action from its commencement, and, therefore, contrary to its assertion, it is responsible for the work stoppage. Nor, as additionally asserted by the Respondent, does the fact that the Company subsequently cancelled the contract excuse the Union from initially complying with the requirements of Section 8(d), for the precise language of that section places the responsibility for compliance upon the party desiring to terminate the existing contract. Thus, nothing the Company did at a later date obviated the necessity or rendered it futile for the Union to comply with Section 8(d) before engaging in a strike . Nor can it be said that the matter has become moot and that no purpose can be served by issuing a Board order. Section 8(d) was legislated into the Act for a purpose, namely, to assure that collective bargaining between contract parties would proceed for a reasonable time free from direct economic pressures. When, as here, that purpose is not accomplished because of the failure of one of the parties to the contract to adhere to the 8(d) requirements, a violation has occurred and a remedy is compelled. Moreover, the penalty for failure to observe the 8(d) provisions runs not only to the contract party, but to the striking employees as well." As the strike herein was, from its inception, unlawful, the employees who went on strike engaged in an unlawful activity, the penalty for which is the loss of employee status and the forfeiture of rights under the Act. 12 Accordingly, as of April 11, when all of McCoy's employees unlawfully went on strike, said employees severed their employee relationship with the Company and, therefore, no longer remain as employees of McCoy for any purpose under the Act, including the casting of ballots in a representation election under Section 9 of the Act.13 On the record as a whole, I find that the Respondent refused to bargain within the meaning of Section 8(b)(3) of the Act by failing to comply with the requirements of Section 8(d) of the Act, as alleged in the complaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activites of the Respondent set forth in section III, above, occurring in connection with the operations of the Company in section I, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent refused to bargain collectively in violation of Section 8(b)(3) of the Act by engaging in a strike commencing on April 11, 1966, without complying with the mandates of Section 8(d)(1), (2), (3), and (4) of the Act, I shall order the Respondent to cease and desist from violating Section 8(b)(3) by striking without complying with Section 8(d). CONCLUSIONS OF LAW 1. J. V. McCoy and Partners doing business as McCoy Coal Company was, at all times material to this proceeding, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent, International Union, United Mine Workers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed by McCoy at its strip coal mine at or near Natural Bridge, Alabama, including truckdrivers, but excluding all office clericals, technical and professional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Respondent has refused to bargain collectively in violation of Section 8(b)(3) of the Act by failing to comply with Section 8(d) of the Act, as found in section III, above. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, it is recommended that International Union, United Mine Workers of America, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with J. V. McCoy and Partners doing business as McCoy Coal Company, or its successors," concerning the termination or modification of any collective-bargaining contract between it and the Company by failing, before striking, to (1) serve 60 days, written notice of its intention to modify or terminate a collective-bargaining contract pursuant to Section 8(d)(1) of the Act; (2) offer to meet and confer with the Company for the purpose of negotiating a new or modified contract pursuant to Section 8(d)(2) of the Act; (3) give notice of the existence of any dispute between the Respondent and the Company to the Federal and State Mediation Services pursuant to Section 8(d)(3) of the Act; and (4) continue in full force and effect without resorting to Sec. 8(d) further provides in part the following: Any employee who engages in a strike within the sixty-day period specified in this subsection shall lose his status as an employee of the employer engaged in the particular labor dispute, for the purposes of sections 8, 9, and 10 of this Act, as amended, but such loss of status for such employee shall terminate if and when he is reemployed by such employer. '2 See Fart Smith Chair Company, 143 NLRB 514, 518. 13 Their lost employee status as employees of McCoy may be regained only in the event that they are subsequently reemployed. 14 As it appears that the operations of the McCoy Coal Company have, since October 1, 1966, been taken over by Natural Bridge Coal Co., Inc., the cease-and-desist provisions of this Recommended Order run to "McCoy Coal Company, or its successor." INTERNATIONAL UNION, UMW strike all the terms and conditions of any existing contract pursuant to Section 8(d)(4) of the Act; provided, however, that no such notices under Section 8(d)(3) shall be required if an agreement is reached within 30 days following service of a notice of proposed termination or modification. (b) Engaging in, or inducing employees of McCoy Coal Company, or its successors, to engage in, a strike against said Company for the purpose of modifying or terminating a collective-bargaining contract, without first having complied with the requirements of Section 8(d) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at the local business offices of International Union, United Mine Workers of America, copies of the attached notice marked "Appendix."15 Copies of said notice, to be furnished by the Regional Director for Region 10, after being duly signed by Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days, thereafter, in conspicuous places, including all places where notices to Respondent's members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notice is not altered, defaced, or covered by any other material. (b) Furnish said Regional Director for Region 10 signed copies of the aforesaid notice for posting by McCoy Coal Company, or its successors, it being willing, at places where it customarily posts notices to its employees. (c) Notify the Regional Director for Region 10, in writing, within 20 days from the receipt of this Trial Examiner's Decision, what steps the Respondent has taken to comply herewith.1' APPENDIX NOTICE TO ALL MEMBERS OF INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA, AND TO ALL EMPLOYEES OF MCCOY COAL COMPANY 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: "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 BoaYd'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 595 WE WILL NOT refuse to bargain collectively with J. V. McCoy and Partners doing business as McCoy Coal Company, or its successors, concerning the termination or modification of any collective- bargaining contract between our Union and the Company by failing, before striking, to (1) serve 60 days' written notice of our intention to modify or terminate such collective-bargaining contract pursuant to Section 8(d)(1) of the Act; (2) offer to meet and confer with the Company for the purpose of negotiating a new or modified contract pursuant to Section 8(d)(2) of the Act; (3) give notice of the existence of any dispute between our Union and the Company to the Federal and State Mediation Services pursuant to Section 8(d)(3) of the Act; and (4) continue in full force and effect without resorting to strike all the terms and conditions of any existing contract pursuant to Section 8(d)(4) of the Act; provided, however, that no such notices under Section 8(d)(3) shall be required if an agreement is reached within 30 days following service of a notice of proposed discrimination and modification. WE WILL NOT engage in, or induce employees of McCoy Coal Company, or its successor, to engage in, a strike against said Company for the purpose of modifying or terminating a collective-bargaining contract, without first having complied with the requirements of Section 8(d) of the Act. 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 members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 528 Peachtree- Seventh Building, 50 Seventh Street, NE., Atlanta, Georgia 30323, Telephone 526-5760. be substituted for the words "a Decision and Order." 16 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith."