Central States Mining Co.

474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Central States Mining Company and United Mine Workers of America Case 14-CA-8437 June 8, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On March 9, 1976, Administrative Law Judge Her- bert Silberman issued the attached Decision in this proceeding Thereafter, General Counsel filed excep- tions and a supporting brief Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order priate notices at its plant/office, including all places where notices to employees are customarily posted and [would] reinstate the employees named in paragraph 6 above", that Respondent has failed and refused to comply with all the terms and conditions of the described settlement agree- ment, and that on November 21, 1975, the Regional Direc- tor issued an order revoking approval of the settlement agreement Respondent filed an answer and an amended answer denying that it has engaged in the alleged unfair labor practices and alleging as affirmative defenses, in sub- stance, that the averments in the complaint regarding Respondent's alleged failure to comply with the terms of the settlement agreement are "insufficient in that [they fail] to contain such information as to reasonably inform the Respondent of the claim which it is called upon to meet," and further that on July 9 a settlement agreement was exe- cuted, and as part of the same transaction, at the sugges- tion of and in the presence of Philip Dexter, counsel for General Counsel, James E Mitchell executed an instru- ment waiving reinstatement A hearing in this proceeding was held in Marion, Illinois, on January 8, 1976 Upon the entire record in the case, and upon consider- ation of the briefs filed with the Administrative Law Judge, I make the following FINDINGS OF FACT ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety DECISION STATEMENT OF THE CASE HERBERT SILBERMAN, Administrative Law Judge A charge and an amended charge were filed on March 11 and April 24, 1975, respectively, by United Mine Workers of America, herein called the Union, against Central States Mining Company, herein called the Company, alleging vio- lations of Section 8(a)(1) and (3) of the Act On November 21, 1975, an amended complaint was issued in the proceed- ing In substance, the complaint alleges that (1) because of their union activities and in violation of Section 8(a)(3), the Company unlawfully laid off its employee Carl E Cash from January 13 until February 3, 1975, and on February 3, 1975, unlawfully laid off its employee James E Mitchell, and (2) by reason thereof and by other conduct set forth in the complaint Respondent also has interfered with, re- strained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act The complaint further alleges that on July 9, 1975, Respondent entered into an informal settlement agreement, which was ap- proved by the Regional Director for Region 14 on July 11, "providing, inter aha, that Respondent would post appro- I THE BUSINESS OF RESPONDENT The Company, a Nevada corporation authorized to do business in the State of Illinois, operates an open pit strip mine at Elkville, Illinois, and maintains an office in Mar- ion, Illinois Respondent is engaged in the production, sale, and distribution of coal During the calendar year 1974, which period is representative of Respondent's operations, it sold from its Elkville mine products valued in excess of $50,000 which were shipped through channels of interstate commerce to points located outside the State of Illinois Respondent admits, and I find, that it is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED NONCOMPLIANCE WITH THE SETTLEMENT AGREEMENT A The Issues The complaint alleges that "Respondent has failed and refused to comply with all the terms and conditions of the settlement agreement," but does not specify what are the violations In its answer Respondent complains that the complaint "fails to contain such information as to reason- ably inform the Respondent of the claim which it is called upon to meet " In the circumstances, at the hearing, coun- sel for General Counsel was called upon to describe how Respondent violated the settlement agreement According 224 NLRB No 75 CENTRAL STATES MINING COMPANY 475 to General Counsel, Respondent failed to comply with the terms of the settlement agreement in two respects First, the settlement agreement provides that the "Charged Party will post immediately in conspicuous places in and about its plant/office, including all places where notices to em- ployees/members are customarily posted, and maintain for a period of at least 60 consecutive days from the date of posting, copies of the Notice attached hereto and made a part hereof " General Counsel asserted that "the no- tice was never posted, nowhere, ever, any place was it ever posted " Second, the settlement agreement required the Company to offer James E Mitchell immediate and full reinstatement to his former job when the Company's mine resumed operations which the Company failed to do With respect to this claim General Counsel was referred to Respondent's answer which alleges that James E Mitchell waived reinstatement in consideration of the payment to him of the sum of $625 General Counsel's response was that neither the Charging Party nor the Board is a party to the waiver and they are not bound thereby, and, further, that Mitchell was coerced into signing the waiver Respondent's position is that it has posted the notice in accordance with the terms of the settlement agreement and at a place suggested by the Board's Compliance Officer and that Mitchell's waiver of reinstatement was part and parcel of the entire settlement transaction which was en- tered into at the suggestion of and with the encouragement and assistance of the Board's representative, Philip Dexter B The Reinstatement Question There is no dispute that the settlement agreement pro- vides that the Company would offer Mitchell reinstatement when it resumed mining operations and it has not done so The issue is whether the Company was excused from offer- ing Mitchell reinstatement by reason of an instrument exe- cuted by Mitchell on July 9 in which he waived reinstate- ment Also, there is no dispute as to what occurred when the settlement agreement was negotiated A hearing in this case initially was scheduled to be held before an Adminis- trative Law Judge on July 9, 1975 On that day, before the hearing opened, Philip Dexter, counsel for General Coun- sel, and who acted as agent for the Regional Diector, sug- gested to James Sanders, Respondent's attorney, that they discuss the possibility of settling the matter With the in- dulgence of the Administrative Law Judge the parties en- tered into such discussions Before noon an agreement was reached which, among other things, provided for the pay- ment to James E Mitchell and to Carl E Cash as backpay the sums of $625 and $375, respectively, and for the post- ing of a notice and compliance with the terms thereof Among other things, the notice provided, "We have of- fered James E Mitchell immediate and full reinstatement to his former job and he has refused to accept our offer " The parties adjourned for lunch because Philip Dexter stat- ed that he had to obtain the Regional Director's approval of the settlement terms i i Carl E Cash one of the alleged discriminatees, testified that Phil Dex- ter told us that he thought it would be in our best interest to settle out of After lunch Dexter informed Respondent's attorney that the agreement was not approved because it stated that Mr Mitchell had been offered reinstatement which would be contrary to the fact as the mine then was not in operation and thus it was not possible to offer him immediate rein- statement Dexter stated that the settlement agreement would have to provide for the reinstatement of Mitchell Sanders categorically rejected the proposed change saying, "We will go to hearing " Dexter responded that something still could be worked out He suggested that the Company and Mitchell enter into a private agreement which would in effect constitute a waiver of reinstatement by Mitchell Sanders agreed to this procedure Then, both Sanders and Dexter dictated to Allen Oehlert, Sanders' assistant, the following instrument I, James E Mitchell, in consideration of settlement of the charges filed with the National Labor Relations Board by the United Mine Workers of America against Central States Mining Company and White Brothers Equipment Company, Inc, and the payment of the sum of $625 00 to me, hereby agree to waive all reinstatement rights and all offers of present and fu- ture reinstatement to my former employment or sub- stantially equivalent employment with Central States Mining Company and/or White Brothers Equipment Company, Inc After the instrument was drafted Dexter left the room to speak with Mitchell Dexter later returned with Mitchell and with James Thomas, the Union's representative at the hearing Dexter explained to Mitchell at length the mean- ing and the effect of the instrument In the presence of Philip Dexter, James E Mitchell signed the waiver of rein- statement and James Sanders and James Thomas signed the instrument as witnesses 2 Because the waiver of reins atement signed by Mitchell and witnessed by Sanders and Thomas was handwritten, scratched out, and sloppy in appearance it was suggested that a typed version be prepared Accordingly, Oehlert took the handwritten instrument to the offices of Attorney Sanders where a secretary prepared a typewritten copy Oehlert returned to the courthouse with both instruments The typewritten version then was signed by James Mitchell and witnessed by James Sanders However, the Union's representative, James Thomas, who had signed the hand- written version as a witness, refused to sign the typewritten version According to Thomas, when he was asked to sign the typewritten version of the waiver of reinstatement, he said "I won't sign it without legal counsel to represent me because I don't fully understand it and I don't want to court as we stood a chance of not getting anything if we went through with it He further testified that no threats were made Also according to Cash the terms of the settlement were fully explained to Mitchell and Mr Dexter would not sign until [Mitchell] had a total understanding of what was on the paper James Thomas testified that before he signed the waiver of reinstate- ment Sanders explained that the instrument `was for his protection so that Jim Mitchell could not come back later on to Central States Mining Compa- ny Thomas further testified "I asked Mr Mitchell I said Has Mr Dex- ter seen this? Is it all right to sign7' He said `Yes So I signed it 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sign anything that would bind the United Mine Work- ers to this thing " Jim Mitchell said he was not going to sign it either, then, and Mr Sanders got upset He said, "They are going to have to start the hear- ing The United Mine Workers went back on their word Mitchell is not going to sign it and we will have to go to a hearing " About that time Mr Dexter came through the door and told Jim Mitchell to go ahead and sign it, that it did not have any bearing on the settlement All the witnesses who testified about the transactions on July 9, 1975, including Union Representative James Thom- as, Sanders' assistant Allen Oehlert, Carl E Cash, and Frank White, the principal stockholder of Respondent, agree that so far as the Company was concerned an essen- tial condition of any settlement was that it would not be required to reinstate Mitchell Furthermore, Philip Dexter was specifically informed by the company representatives that it would go to hearing in the case rather than join in any settlement that required the reinstatement of Mitchell It was Philip Dexter who advised Respondent that there was a way to overcome the Regional Director's objection to the initial draft of the settlement agreement and stated that this could be done by Mitchell executing a separate waiver of reinstatement Dexter assisted in drafting the in- strument and at the end instructed Mitchell to execute the document The Regional Director approved the settlement agreement 2 days later, on July 11, 1975 When he ap- proved the settlement agreement the Regional Director knew that the Company understood, despite the specific language of the agreement, that because of the waiver of reinstatement signed by Mitchell the Company was not re- quired to reinstate Mitchell3 By approving the agreement in such circumstances the Regional Director effectively ac- knowledged the validity of the waiver of reinstatement exe- cuted by Mitchell In his opening argument General Counsel stated that Mitchell had been coerced into signing the waiver of rein- statement There is no evidence in the record of any such coercion General Counsel further argued, "The Charged Party in this case, Mr White's firm, and his attorney, well knew the General Counsel was not going to look at and refused to be bound by the side agreement [the waiver of reinstatement], but the General Counsel would, in terms of settling this case, look only to the four corners of the two pages of the informal settlement agreement which required reinstatement " The evidence is to the contrary At first, a settlement agreement was prepared which did not by its terms require the reinstatement of Mitchell This was 3 As Philip Dexter represented the Regional Director in the settlement negotiations and signed the settlement agreement on July 9, Dexter s knowl- edge of the factors involved in the negotiation of the settlement agreement, including the fact that the Company would not have entered into the settle- ment agreement unless the waiver of reinstatement was valid is attributable to the Regional Director, whether or not Philip Dexter actually conveyed the information to the Regional Director rejected by the Regional Director Respondent's attorney, James Sanders, thereupon informed Philip Dexter that Re- spondent was prepared to go to hearing on the merits Dex- ter suggested a procedure to overcome the difficulty He recommended that Mitchell execute a waiver of reinstate- ment and he participated in drafting the instrument The one and only purpose for preparing this instrument was to relieve the Company of any obligation to offer Mitchell reinstatement Even the testimony of Union Representa- tive Thomas clearly shows that the Company would not have settled the case had it been required to reinstate Mit- chell Thus, whatever the formalities were, everyone who participated in the settlement negotiations, including the Regional Director's representative, understood that the purpose of the waiver of reinstatement executed by Mit- chell was to excuse the Company from offering a job to Mitchell, as otherwise it would be required to do under the terms of the settlement agreement Contrary to General Counsel, I find that the waiver of reinstatement executed by Mitchell is a valid instrument, that the Regional Direc- tor knew of its existence at the time he approved the settle- ment agreement, and that by approving the settlement agreement in these circumstances the Regional Director in effect acknowledged the efficacy and validity of Mitchell's waiver of reinstatement Accordingly, I find that Respon- dent has not violated the terms of the settlement agreement by failing to offer James E Mitchell reinstatement to his former position In his brief in this case counsel for General Counsel ar- gues Board Agent Dexter unquestionably stated repeat- edly that the Board would not abide by and was not bound by any side agreement purportedly being en- tered into between Mitchell and Respondent Dexter was not called as a witness However, Dexter could not sensibly have advised the Company that a settlement could be effected which would not require Mitchell's rein- statement by Mitchell executing a waiver of reinstatement and simultaneously have informed the Company that the Board would not abide by and would not be bound by such waiver of reinstatement Furthermore, the evidence does not support such assertion Counsel for General Counsel refers to the testimony of Allen Oehlert on pages 120, 121, 125-127 of the transcript of the record to support his contention The relevant testimony as appears on pages 120 through 131 is as follows Q Didn't Mr Dexter make it plain, in your presence, that the Labor Board was not bound by and would not consider itself to be bound by the sort of representations and dealings signified in Respondent's Exhibits Nos 4 and 59 A I believe Mr Dexter explained that this agree- ment was between Mr Mitchell and Central States and White Brothers Equipment Company Q Not binding on the Labor Board, did he make that clear to everyone A He made some statement which might approxi- mate that * CENTRAL STATES MINING COMPANY 477 REDIRECT EXAMINATION Q (By Mr Sanders) After this agreement, this so- called agreement, side agreement, private agreement, who suggested this be done9 A Mr Dexter Q He was the one that initiated the whole proce- dure, is that correct9 A Yes Q Isn't it also true that this is the way to get around what is stated in the notice, isn't that correct9 A He said something to the effect that this is the way we can achieve what we agreed to achieve, which we can't do because technically we cannot offer a job that doesn't exist Q Why not9 A Because the mine was not working Q That is the reason that the notice had to be changed, isn't that correct9 A That is correct Q (By Mr Sanders) Isn't it true that, again, that this side agreement between White, Central States and Mitchell was at the sole suggestion of Dexter and not from Central States Mining, Frank White or his attor- ney, Sanders, isn't that correct9 A That is absolutely correct JUDGE SILBERMAN What led Mr Dexter to make the statement that you said he made, that this instrument is not binding on the National Labor Relations Board, what transpired that caused Dexter to make that state- ment9 In other words, I don't want Mr Dexter's moti- vation, you can't testify to that What I am interested in is the context in which the statement was made, what was said immediately before that which caused Mr Dexter to make the statement? THE WITNESS If I can testify about the general con- text of what was said, Mr Dexter, through the things that he said, I believe, was making every effort for everyone concerned to have each of them understand exactly what was going on and for every one to be clear on what was happening He went on and ex- plained that the agreement was between Mitchell and Central States and White Brothers, only That he was not going to sign it and that in regards to the National Labor Relations Board, I am trying to think exactly how that came up, I think it was simply that he want- ed to make it clear, and this once again is more from the sense of the conversation that he was not signing it and that the NLRB was not a part of this agreement, although this agreement did, in fact, carry out the in- tent of the parties and he was, if you will, a supervising NLRB agent in terms of the settlement agreement I don't know if that helped any JUDGE SILBERMAN That is what you recall hap- pened9 THE WITNESS Yes JUDGE SILBERMAN Is it your testimony now that when Respondent's Exhibit No 4, the handwritten in- strument, was signed, there was a discussion and did Mr Dexter then say something to the effect that that instrument, Respondent's Exhibit No 4, was not bind- ing upon the National Labor Relations Board9 THE WITNESS Yes At the time, or immediately prior to the execution of Respondent's Exhibit No 4 JUDGE SILBERMAN Now, I used the word binding because I believe that was a word you used in answer- ing some of Mr Sanders' questions Do you recall that that was the word used9 I don't want to put words in your mouth If not, what as you best remember, did Mr Dexter say with respect to the effect of Respondent's Exhibit No 4 upon the National Labor Relations Board9 THE WITNESS I cannot remember the exact words I think he said something to the effect, I cannot sign this agreement, that the NLRB is not a party and cannot be a party to this agreement I believe that was closer to the words JUDGE SILBERMAN Now, at a later time, I gather sev- eral hours later? THE WITNESS No, I would say a half-hour, approxi- mately a half-hour elapsed between the execution of Exhibit No 4 and Exhibit No 5 JUDGE SILBERMAN A half-hour later Respondent's Exhibit No 5 is brought into the room? THE WITNESS Yes, Sir JUDGE SILBERMAN At which time Mr Mitchell signed it and Mr Sanders signed it, and at that time what did Mr Thomas say, if anything9 THE WITNESS That was signed in the courtroom, in the presence of Dexter, myself and the Administrative Law Judge JUDGE SILBERMAN Thomas was there9 THE WITNESS Thomas was there and other people as well JUDGE SILBERMAN Did Thomas say, what did he say9 THE WITNESS The only thing I think that he said was, I am not going to sign it JUDGE SILBERMAN Did Dexter say anything to Thomas then9 THE WITNESS I think he might have but I don't re- call what, if anything, was said JUDGE SILBERMAN Was Mitchell hesitant about signing Respondent's Exhibit No 5, did Mitchell say anything9 THE WITNESS Not that I recall JUDGE SILBERMAN Did Mitchell say anything or do anything which indicated to you that he had some re- luctance about signing Respondent's Exhibit No 59 THE WITNESS No JUDGE SILBERMAN Going back to the period approx- imately one-half hour earlier, did Mitchell say any- thing or do anything which indicated to you that he had some reluctance about signing Respondent's Ex- hibit No 49 THE WITNESS No JUDGE SILBERMAN Did you understand that the 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD basis of the settlement was that Mr Mitchell was not going to be reinstated to his former job9 THE WITNESS I understood that to be an integral part of the whole agreement, yes JUDGE SILBERMAN Was there any discussion involv- ing Mr Dexter as to whether there existed any incon- sistency or conflict between the provisions of General Counsel's Exhibit No 2, that is the settlement agreement, and Respondent's Exhibits Nos 4 and 59 THE WITNESS No, the idea was that there not be any inconsistency because General Counsel's Exhibit No 2 called for an offer of reinstatement to be made to Mitchell when the mining operations resumed Respondent's Exhibits Nos 4 and 5 took care of that because they said when the mining resumed an offer would be made but it would be waived, all reinstate- ment rights would be waived by Mitchell Q (By Mr Witte) If you would look at Respondent's Exhibits Nos 4 and 5 it doesn't say any- thing about the mining operations resuming, does it, sir? A No, I perhaps overstated that What I meant to say was that an offer of reinstatement, at whatever time made, would be waived and the right to reinstate- ment would be waived Oehlert's testimony, considered in its entirety, is not that Dexter suggested, and Respondent entered into, a mean- ingless arrangement but only that Dexter informed the par- ties that the Board would not be signatory to the instru- ment waiving reinstatement, although the instrument would, nevertheless, effectively excuse Respondent from any duty to return Mitchell to work C Posting of Notices In his opening statement General Counsel asserted that the Company had not posted the notices required by the terms of the settlement agreement The evidence is over- whelming, and I find, that on August 17 the Company posted the applicable notice on a bulletin board which it maintains in its offices in Marion, Illinois General Counsel at the close of the hearing contended that such posting was inadequate because the notices should have been posted at the site of the mine The only structures at the mine are a trailer and a tin shed A small portion of the trailer is used as an office by the mine superintendent Notices to em- ployees are not customarily posted in the trailer or any- where else at the mine premises A witness for the General Counsel, Leland Waldron, testified that one day he saw a seniority list posted in the trailer but the next time he was in the trailer the list was lying on the floor No other evi- dence was offered suggesting that any other notices to em- ployees had ever been posted at the mine site except that James Thomas testified that on May 8, 1975, the day of a National Labor Relations Board election, he observed an official election notice posted on a wall in the trailer The mine was closed from May 1975 until about Sep- tember 15, 1975 When the notices were received by the Company they were not immediately posted, apparently because the Company believed it was not necessary to post the notices while the mine was inoperative Various com- munications were had between J Robert King, Compli- ance Officer for the Board, and the Company's attorney, James Sanders, about the subject On August 7, 1975, Compliance Officer King wrote to Sanders, "Regardless of information you have provided in previous conversations [presumably information that the mine was not then in op- eration], I will tell you and I hope this is crystal-clear, these notices will be posted or the Regional Director's approval of the Settlement Agreement in the above-referenced case will be withdrawn, and complaint and notice of hearing will issue Mr Mitchell and Mr Cash apparently did proceed to Mr White's place of business or to some office in Marion where employees do go, to receive payment for the insufficient funds checks issued to them for backpay I might suggest that this perhaps would be a suitable place for posting these notices " Upon receipt of this letter San- ders instructed the Company to post the notice on the bul- letin board in its offices in Marion, Illinois The Respon- dent did this on August 17, 1975, and the notices have remained posted at the same place continuously since that date On September 23, 1975, Compliance Officer J Rob- ert King again wrote to Sanders stating, " I am also in- formed that a check at the offices of your client apparently reveals that notices are not posted there, perhaps may not have been posted for some period of time " This letter fur- ther indicates that the Compliance Officer considered post- ing at the Company's offices in Marion as adequate com- pliance with the terms of the settlement agreement 4 Accordingly, as the trailer at the mine site is not a place where notices to employees are customarily posted and as the Company was specifically instructed by the Compli- ance Officer to post the notices in its offices in Marion, Illinois, and as the Company complied with such instruc- tions, I find that the Company has not violated the settle- ment agreement in respect to the posting of the notice As I find, contrary to the allegations of the complaint, that Respondent has complied with the terms and condi- tions of the settlement agreement and has not violated any terms thereof, I shall recommend that the complaint in this proceeding be dismissed 4 No explanation was offered at the hearing to account for the fact that the Compliance Officer had been misinformed regarding the posting of the notice at the Company's Marion office CENTRAL STATES MINING COMPANY CONCLUSION OF LAW Respondent has not engaged in the violations of the Act alleged in the complaint Upon the foregoing findings of fact, conclusion of law, and the entire record in this proceeding , and pursuant to Section 10(c) of the Act , I hereby issue the following rec- ommended ORDERS The complaint herein is dismissed in its entirety 479 'In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board the findings conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations , be adopted by the Board and become its findings conclusions , and Order, and all objections thereto shall be deemed waived for all purposes