Harger Mine # 1

HARGER MINE #1l Pryor Mountain Construction Co. Inc., d/b/a Harger Mine #1 and Local 520, International Union of Operating Engineers, AFL-CIO. Case 14-CA- 9584 June 24, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On March 14, 1977, Administrative Law Judge Marion C. Ladwig issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached 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. 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 Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE MARION C. LADWIG, Administrative Law Judge: This case was heard at Murphysboro, Illinois, on November 1, 1976.1 The charge was filed by the Union on August 25 (amended September 7), and the complaint was issued on September 30. The primary issue is whether the Company, the Respondent, unlawfully discharged two employees for instigating a work stoppage, in violation of Section 8(aX3) and (I) of the National Labor Relations Act, as amended. Upon the entire record,2 including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Company, I make the following: FINDINGS OF FACT 1. JURISDICTION The Company, an Arkansas corporation, is engaged in operating coal mines in Illinois, where it annually ships products valued in excess of $50,000 directly to customers All dates are in 1976. 2 The Company's unopposed motion to correct the transcript, dated December 2, is granted and received in evidence as Resp. Exh. 1. 230 NLRB No. 67 located outside the State. The Company admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. H. ALLEGED UNFAIR LABOR PRACTICES A. The Discharges The Company and the Union were parties to a I-year collective-bargaining agreement, expiring on June 8. It contained exclusive hiring hall and union-security provi- sions, and covered all operation and maintenance work at the coal mine, but did not contain either a grievance- arbitration procedure or a no-strike clause. On Thursday afternoon, March 25, partsman and equipment buyer Elijah Chamness (not a member of the bargaining unit) drove a backhoe to the worksite from a nearby mine, and began trying it out to determine whether the Company should purchase it. He operated it-in the presence of Mine Superintendent Earl Long-until 11 p.m., producing a total of four or five loads of coal. He was than "ready for the relief man [whom another supervisor had promised him] to run it so I could see what wasn't performing on it." The relief man did not arrive, and Superintendent Long did not assign one of the operators on the job to relieve him. Chamness continued to operate the backhoe, producing three additional loads of coal by the end of the night shift. (Chamness was a salaried employee, who was not paid extra for working the 16 hours on the machine.) Thereafter, beginning at 7 a.m., bargain- ing unit employees operated the backhoe. At the shift change that Friday morning, March 26, employees on the job were complaining about the nonbar- gaining unit employee operating the equipment in violation of the collective-bargaining agreement. Employee Steve McDonnough telephoned Union President Francis Os- born, who told McDonnough to get Chamness off the machine by doing "whatever he had to." By then, however, Chamness had already left the job. On Sunday, March 28, partsman Chamness returned to the worksite to perform his regular job of inspecting equipment, to determine what parts were needed. Employ- ee McDonnough, Acting Steward Louis Marlette, and four other employees were eating lunch together when Cham- ness arrived in a company truck and began talking to someone in the pit. Although they knew that Chamness had previously been at the worksite to perform his own work, they opposed his presence because of his operation of the backhoe the previous Thursday night. As testified by Marlette, "It was a general statement by everybody that Chamness is here. He is not supposed to be here. That he should leave." McDonnough sent word to Superintendent Long, "Either he goes or we go." The response was, "Mr. Chamness stays." The six employees, joined by two others, walked out. Acting Steward Marlette telephoned Union President Osborn that afternoon and reported that the feeling was so strong about Chamness' return to the job after his 461 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unauthorized operation of the equipment that they did "whatever they had to do." Osborn instructed Marlette to get all the men and go back to work to protect their jobs and said "we were having trouble and I didn't want a strike at that time." Later that afternoon, Superintendent Long telephoned Osborn who told Long that the walkout was not sanctioned by the Union. When the day-shift employees returned to work the next morning, March 29, Marlette and McDonnough were discharged for instigating the unauthorized walkout. B. Concluding Findings It is clear that the Company violated the collective- bargaining agreement on Thursday night by permitting the partsman to operate the backhoe in the production of coal. However, the partsman had not operated the backhoe since then, and he had legitimately come to the worksite on Sunday to perform his own nonbargaining unit work. When the operators walked off the job that Sunday, they were not acting to prevent the partsman from performing their work. Bargaining unit employees had been operating the backhoe since Friday morning, and there was no indication that the Company would again assign the partsman to operate it. I assume, in the absence of grievance and no-strike provisions in the collective-bargaining agreement, that the employees would have been engaging in protected, con- certed activity if they had walked off the job to obtain a 3 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. remedy for the earlier violation of the agreement, or to prevent partsman Chamness from again performing their bargaining unit work. But here, the purpose of the walkout was to force Chamness to leave the worksite, thereby preventing him from performing his own regular, nonbar- gaining unit work there. By walking out, the employees were not attempting to enforce the collective-bargaining agreement or to improve their working conditions, and were not engaged in protected, Section 7 activity for the purpose of mutual aid or protection. I therefore find that the March 28 walkout was unprotected activity. Contrary to the position of the General Counsel, I agree with the Company and find that the Company did not violate the Act by discharging employees McDonnough and Marlette for instigating the unprotected walkout. CONCLUSION OF LAW By discharging employees McDonnough and Marlette on March 29, 1976, for instigating the unprotected March 28 walkout, the Company acted lawfully and did not violate Section 8(aX3) or (1) of the Act. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 3 The complaint is dismissed in its entirety. 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. 462