Local No. 1373, Mine Workers

LOCAL NO. 1373, MINE WORKERS Local No. 1373, District No. 30, United Mine Workers of America; Jake Bates, President, Charles O. Webb, Vice President Thomas Armes, Recording Secretary and Island Creek Coal Company. Case 9-CB-1598 October 31, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On May 25, 1970, Trial Examiner Ivar H. Peterson issued his Decision in the above-entitled proceeding, finding that Respondents had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel, the Charging Party,I and the Respondents filed exceptions to the Trial Examiner's Decision and supporting briefs. The Charging Party filed a brief in reply to Respondents' exceptions and 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 no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Exam- iner's Decision, the exceptions, the 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 Recommend- ed Order of the Trial Examiner, and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. I As the record, exceptions, and briefs in our opinion adequately present the issues and the positions of the parties, the Charging Party's request for oral argument is hereby denied TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE IvAR H. PETERSON, Trial Examiner: Upon a charge filed on February 13, 1969, by Island Creek Coal Company, herein called the Company, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 9, on December 24, 1969, issued a complaint against the Respondent Union and three of its officers, 186 NLRB No. 60 361 alleging that the Respondents had engaged in unfair labor practices violative of Section 8(bX3) and 8(d) of the National Labor Relations Act, as amended. Briefly stated, the complaint as amended alleged that the Respondents caused the employees of the Company to engage in several strikes or work stoppages during the period between February and September 1969 without resorting to the grievance procedure set forth in the then current collective- bargaining agreement for the settlement of the differences which led to the work stoppages. In their answers, the Respondents denied the commission of any unfair labor practices. Pursuant to notice, I heard the case in Pikeville, Kentucky, on February 10 and 11, 1970. All parties were represented by counsel and were afforded full opportunity to participate in the hearing and to adduce relevant evidence. Due to the unavailability of Respondent Webb, who was hospitalized, arrangements were made at the conclusion of the General Counsel's case to continue the hearing until March 10. Prior to that date, however , counsel for the Respondents advised the Trial Examiner and the parties that the Respondents did not desire to present any evidence. Thereupon, the record was closed. Briefs have been received from counsel for all parties, which have been considered. Upon the entire record in the case, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER INVOLVED The Company, a Delaware corporation, is engaged in the mining of bituminous coal at its Spurlock mine at Printer, Kentucky, the only operation here involved. During the 12- month period preceding issuance of the complaint, the Company directly sold and shipped coal from its Spurlock operation valued in excess of $50,000 to points outside the State of Kentucky. I find that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 1373, affiliated with International Union, United Mine Workers of America, is a labor organization within the meaning of Section 2(5) of the Act. From June 1967 to June 1969 Respondent Bates was president of Local 1373. Respondent Webb was vice president of the local until June 1969 when he succeeded Bates as president. Respondent Armes at all material times was the local's recording secretary. Admittedly, they were agents of the local. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction and Issues For the past several years the Company has been a member of a multi-employer association of coal producers which negotiates with International Union, United Mine Workers of America, collective-bargaining agreements covering the mine workers of the various employers. At the times here material the Company's employees at the Spurlock mine were covered by the National Coal Wage 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Agreement of 1968 . Local 1373, although not a signatory to the agreement, represented the Company's employees pursuant to the agreement as agent and affiliate of the International Union, particularly in connection with local grievances and problems arising under the contract. District 30, through its representatives, assists the local in handling grievances and local disputes. The 1968 agreement contained the following provisions dealing with the settlement of disputes: SETTLEMENT OF LOCAL AND DISTRICT DISPUTES Should differences arise between the Mine Workers and the operators as to the meaning and application of the provisions of this agreement, or should differences arise about matters not specifically mentioned in this agreement, or should any local trouble of any kind arise at the mine, an earnest effort shall be made to settle such differences immediately: (The parties will not be represented by legal counsel at any of the steps below.) 1. Between the aggrieved party and the mine management. 2. Through the management of the mine and the mine committee. 3. Through District representatives of the United Mine Workers of America and a commissioner representative (where employed) of the coal company. 4. By a board consisting of four members, two of whom shall be designated by the Mine Workers and two by the operators. Neither the Mine Workers' represent- atives on the board nor the operators' representatives on the board shall be the same persons who participated in steps (1), (2), or (3) of this procedure. 5. Should the board fail to agree the matter shall, within twenty (20) days after decision by the board, be referred to an umpire to be mutually agreed upon by the operator or operators affected and by the duly designated representatives of the United Mine Workers of America, and the umpire so agreed upon shall expeditiously and without delay decide said case. The decision of the umpire shall be final. Expenses and salary incident to the services of an umpire shall be paid equally by the operator or operators affected and by the Mine Workers. A decision reached at any stage of the proceedings above outlined shall be binding on both parties hereto and shall not be subject to reopening by any other party or branch of either association except by mutual agreement. The agreement does not contain a no-strike clause, but provides: MISCELLANEOUS 1. Any and all provisions in either the Appalachian Joint Wage Agreement of June 19, 1941, or the National Bituminous Coal Wage Agreement of April 11, 1945, containing any "no strike" or "penalty" clause or clauses or any clause denominated "Illegal Suspension of Work" are hereby rescinded, cancelled, abrogated and made null and void. s s s 3. The United Mine Workers of America and the operators agree and affirm that they will maintain the integrity of this contract and that all disputes and claims which are not settled by agreement shall be settled by the machinery provided in the "Settlement of Local and District Disputes" section of this agreement unless national in character in which event the parties shall settle such disputes by free collective bargaining as heretofore practiced in the industry, it being the purpose of this provision to provide for the settlement of all such disputes and claims through the machinery in this contract provided and by collective bargaining without recourse to the courts. The alleged unfair labor practices are related to several work stoppages that occurred at the Company's Spurlock mine between February and September 1969. The com- plaint alleges that the Respondent caused the Company's employees "to engage in strikes and work stoppages" over differences relating to working conditions "without resort- ing to the grievance procedure" set out above and thus "acted in derogation of their contractual responsibilities, engaged in acts and conduct abortive of the collective bargaining processes which the Act was intended to encourage and thereby refused" to meet and confer with the Company over the differences "and unilaterally modified the contract grievance provisions . . . without complying with the notification and bargaining require- ments" of Section 8(d) of the Act, thereby violating Section 8(b)(3). B. The Work Stoppages The first work stoppage covered by the complaint occurred at about 9 p.m. the night of February 7, when the preparation plant crew shut down the machinery and no coal was processed during the remainder of that shift. Workers underground completed the shift, apparently because they did not learn of the stoppage. Thereafter, the employees remained away from their jobs until February 17. The occasion for the stoppage was the decision of the Company to process some coal from a contract operator, not a signatory to the 1968 agreement. It appears that during the 2 to 4 weeks prior to February 7 the Company had met with the mine committee and advised it that the Company planned to process some contract coal but assured the members of the committee that no contract coal would be processed until the operator became a signatory to the 1968 agreement. According to Raymond Bradbury, then manager of the Company's Elkhorn Division, which includes the Spurlock mine, the contract operator signed the 1968 agreement at about 6:30 p.m. on February 7, but the record does not show what steps, if any, the Company took to inform the members of the mine committee or the employees generally of this fact. Counsel for the General Counsel adduced no evidence as to what, if any, action was taken by any officer of Local 1373 or mine committee member that may have contribut- ed to the walkout of February 7. While the walkout was in effect, Local 1373 held some three meetings to consider whether the employees should return to work. Squire Feltner, a representative of District 30, attended two of them, and he was the only witness to testify concerning LOCAL NO. 1373, MINE WORKERS what transpired. According to Feltner, at the first meeting, at which the three individual Respondents were present, Respondent Webb (then vice president of Local 1373; he became president in June 1969) spoke against the motion to return to work. What position Respondents Bates and Armes took is not revealed by the record. Since the stoppage continued, I infer that the vote on the motion to return to work did not carry. A few days after this meeting Feltner met with Respondent Webb and Malcolm Johnson, chairman of the mine committee, to discuss getting the men back to work. It is Feltner's testimony that both of them were opposed to returning. Thereafter, a third meeting was held, with Vice President Tittler of the International in attendance. After a motion to return to work, opposed by Webb, was defeated, Tittler spoke urging that the mine be returned to work immediately and that any grievances be processed under the disputes clause of the collective- bargaining agreement; Tittler threatened to pick up the charter of Local 1373 and local suppliers if the mine were not returned to work. Thereupon, the members voted to return to work. As stated, the stoppage ended February 17. On March 8, the officers and mine committee members of Local 1373 signed a resolution reading as follows: RESOLUTION We, the members of Local Union 1373, District 30, United Mine Workers of America, and the employees of Island Creek Coal Company, hereby resolve that in the future we will, in the event any grievance or misunderstanding arises between our membership and our employer, to (sic) resolve the misunderstanding or dispute under the Settlement of Local and District Dispute section of the National Bituminous Coal Wage Agreement of 1968. We further resolve that in the event such dispute or misunderstanding shall arse that our officers, together with the Mine Committee, will process those grievances in accordance with the provisions contained in the National Bituminous Coal Wage Agreement of 1968. The next work stoppage occurred on the 8 a.m. or first shift on April 21, and lasted 24 hours. Dester Hamilton, a loading machine operator on the first shift, had bid on a job as loading machine operator on the first shift but in a new section then being opened up. Before the shift was to start Hamilton asked the mine foreman (in the presence of Superintendent Alvin Mace) whether he was to go to the new section. The mine foreman replied that he was to go to his regular section. Thereupon Hamilton and others put up their lamps and left the property, and the first shift did not work. Only a few employees on the succeeding two shifts worked. Shortly after Hamilton left the property Superin- tendent Mace asked John Mullins, a member of the mine committee, why the men were not going to work. Mullins replied that he did not know, and that he had talked to Hamilton the preceding week and told him he should continue to work and the committee would attempt to arrange a meeting with management. On April 22, after the stoppage ended, a meeting was held to consider Hamilton's grievance. According to Mace, the difference involving Hamilton "finally resolved itself by moving the section that he was working on to this new portal." 363 On Monday, April 28, the third work stoppage occurred. On this occasion the difference was over the reassignment of the junior third shift loading machine operator, Adam Arnett, to a general mine job, due to a reduction in the number of crews on the third shift. The preceding Thursday or Friday Johnson, chairman of the mine committee, spoke to Superintendent Mace and stated he was afraid there would be trouble if Arnett were not given the loading machine job. Later, but before the stoppage, Arnett, in the presence of Mullins, a member of the mine committee, asked Mace to be put on the loading machine. Mace replied that he felt the senior man was entitled to stay on the job. When the stoppage occurred at the beginning of the third shift on April 28, some of the miners on that shift continued to work, apparently unaware of the stoppage. However, none of the employees worked on the succeeding two shifts. The stoppage lasted 24 hours and the mine was returned to work beginning with the third shift on April 29. The next work stoppage took place on August 18, over the reassignment of three maintenance employees at the tipple from the first to the third shift without the changes being posted. The employees returned to work on August 20 and a meeting between the mine committee and management, attended by Joe Davis, a representative of District 30, was held that afternoon. The dispute was not resolved and the employees again walked out on August 21. They remained out for a week and returned so that a further meeting could be held with the Company. Such a meeting was held on September 3, without the dispute being resolved. Stoney Barker, president of the Island Creek Group, at the conclusion of the meeting stated he wished to reconsider the matter and if the Company decided to change the position taken by local management up to that point he would inform Davis, District 30 representative, the next morning. According to Bradbury, Respondent Webb replied that he was not sure he could control the action of the members of Local 1373. In fact, the walkout resumed with the second shift that afternoon, and lasted until September 22. On September 24 management officials met with representatives of Local 1373 as well as representatives of District 30 and a special representative of the International. At that meeting, officers of Local 1373 and members of its mine committee again signed the resolution of March 8 agreeing to resolve local disputes in accordance with the procedures provided in the 1968 agreement. In October the dispute was resolved at the fourth step of the grievance procedure. C. Contentions and Conclusions The General Counsel contends (a) that the Respondents called and/or ratified the work stoppages and are therefore legally accountable for them; and (b) that by resorting to the work stoppages the Respondents rejected the contractu- ally agreed upon method for resolving disputes and thereby unilaterally modified the disputes provisions of the agreement without complying with the notice and bargain- ing provisions of Section 8(d). The Respondents assert that, since 1373 is not a signatory to the 1968 agreement, neither the local nor its officers named as Respondents can be held responsible . They further contend that the work stoppages were not violative of Section 8(b)(3) and (d) of the Act. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Viewing the work stoppages in their totality, rather than as separate and unrelated incidents, I am persuaded that the record as a whole warrants the finding, which I make, that the stoppage may fairly be treated as the acts of Local 1373 as an organization and not as the spontaneous and simultaneous actions of individual employees and members of the Union. In the case of each stoppage Local 1373, through some of its representatives, had had some discussion with management about the issue which led to the stoppage before it actually occurred. Also in each instance representatives of Local 1373 met with manage- ment about the conditions of employment which triggered the stoppage after employees returned to work. While the February 7 walkout was in effect the membership of the local twice voted to support the walkout by rejecting motions that the mine be returned to work, thus approving the stoppage. The resolution adopted by the officers of the Union on March 8 and reaffirmed on September 24 is further evidence, when considered in the context of the events which prompted such action, that responsibility for the work stoppages rested with the Union. I find no merit in the Respondents' contention that they are not responsible because the local was not a signatory to the applicable collective-bargaining agreement . It is clear - that under its terms Local 1373 was made the agent of the International in regard to local matters such as grievances and local disputes. Upon the basis of the foregoing considerations, I conclude that the Respondent Union is responsible for the work stoppages. However, I am not convinced that the record warrants finding that the three officers named in the complaint are individually responsible. With respect to whether the work stoppages were violative of Section 8(b)(3), the theory of the complaint is that the objective of the Respondent Union in causing the work stoppages was unilaterally to modify the dispute settlement provision of the contract and, since the Union did not comply with the notice and bargaining require- ments of Section 8(d), a refusal to bargain violation has occurred: This contention does not withstand analysis. In the first place, considering that the signatory parties to the contract are the Company (through an association of coal producing operators) and the International Union, Local 1373, although bound by the agreement as a subordinate affiliate of the International, is not a proper party to propose or initiate modifications in the collective-bargain- ing agreement. Nor is there any evidence that the local desired to substitute any new contractual provisions for existing provisions, thus necessitating compliance with the notice and other requirements of Section 8(d). Indeed, counsel for the General Counsel appears to recognize that the work stoppages were not intended to effect changes in the contractual terms, for he states in his brief that the stoppages "were not in support of demands made or to be made at the bargaining table; rather they were in derogation of an understanding already reached at the bargaining table and memorialized in the Agreement." Rather than seeking to change the terms of the agreement, the Union by engaging in the work stoppages was protesting action taken or proposed by the Company or attempting to force the Company to agree with its position on the particular dispute. In essence, the General Counsel's position is that the Respondent Union breached the agreement providing that local differences should be handled through the ' dispute settlement machinery of the contract, and that such breach is a refusal to bargain. But it is now well settled that a strike in violation of a no-strike clause is not per se a refusal to bargain. Lumber and Sawmill Workers, Local No. 2647 (Cheney California Lumber Co.), 130 NLRB 235, 242, affd. 319 F.2d 375 (C.A. 9), relying upon NLRB. v. Insurance Agents' International Unior, AFL-CIO, 361 U.S. 477. I am unable to distinguish the instant case from Cheney, or the more recent decisions of the Board in Iron Workers Local Union No. 708, etc. (Clark Construction Co.), 169 NLRB No. 152, and Teamsters Local No. 741 (Los Angeles-Seattle Motor Express, Inc.), 170 NLRB No. 13. The fact that in each of the cited cases the work stoppages were limited to a single incident whereas here there were several incidents and stoppages, seems to me an immaterial factual difference. Surely if it is not the function of the Board to act ..as an arbiter of the sort of economic weapons the parties can use in seeking to gain acceptance of their bargaining demands" (Insurance Agents, 361 U.S. at 497), neither should the Board sit in judgment on the frequency of the use of a particular weapon or the duration of its use. I conclude, contrary to the position of the General Counsel, that violation of the contractual provisions for the resolution of local disputes is not to be equated with a refusal to bargain and remedied by a Board order to cease and desist. Accordingly, it will be recommended that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. Island Creek Coal Company is an employer within the meaning of Section 2(2) of the Act and its operations affect commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Union, Local 1373, District 30, United Mine Workers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Union and Respondents Jake Bates, Charles O. Webb, and Thomas Armes have not engaged in unfair labor practices within the meaning of Section 8(b)(3) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, it is recommended that the complaint be dismissed in its entirety.