United Mine Workers Local 1269

Local 1269 Inc., & Truckhg, Inc.) and Locrl 1600 and Banmi lhcker CoPl Co. 1269 Ritcbey TNdrin& Inc, 'rmkhg, Ioc and Barnes & C d Co. United Workers Americrr, Local 1600. 10(k) I 1600), 8(b)(4)(D) & 1600. affirmed. $50,000. stipu- 1 Ritchey Trucking $50,000 & 2(6) 11. 1600, 2(5) 111. trucks Barnes & 24B, 24D, & codict & 1600. 1600 & West- & bib#pal & 1600. XXllI I The C d Wage Agreement dar pmidc three- griev- proceedingr UNITED MINE WORKERS-LOCAL UNION 1269 231 United Mine Workers of America, Union (Ritchey Trucking, Barnes Tucker Coal Co. and Davis United Mine Work- em of America, Union & United Mine Workers of America, Local Union and and Davis Tucker and Mine of Union Cases 6-CD-591 and 6-CD-592 March 20. 1979 DECISION AND ORDER QUASHING NOTICE OF HEARING This is a proceeding under Section of the Na- tional Labor Relations Act, as amended, following a charge filed by United Mine Workers of America, Local Union 1600 (hereinafter Local Ritchey Trucking, Inc., and Davis Trucking, Inc., herein called the Charging Parties, alleging that United Mine Workers of America, Local Union 1269, herein called Respondent or Local 1269, had violated Sec- tion of the Act by engaging in certain pro- scribed activity with an object of forcing or requiring the Employer herein, Barnes Tucker Coal Co., to assign certain work to its members rather than to em- ployees represented by Local Pursuant to notice, a hearing was held before Hear- ing Officer Donald J. Burns on September 14 and 15 and December 20, 1976, and January 4, 1977. All parties appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error. They are hereby Upon the entire record in this proceeding, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYERS The parties stipulated, and we find that the Em- ployer, Barnes & Tucker Coal Co., a Pennsylvania corporation, is engaged in the mining and nonretail sale of coal. During the past year, it shipped goods and materials outside the Commonwealth of Pennsyl- vania having a value of The parties lated, and we find, that Trucking Company, Inc., and Davis Company, Inc., Pennsylva- nia corporations, are engaged in the surface hauling of materials and related work around coal mines and that during the past 12-month period each corpora- tion received in excess of for work performed for Barnes Tucker Coal Co., at various locations in Pennsylvania. The parties stipulated, and we find, that all Employers involved herein are engaged in commerce within the meaning of Section and (7) of the Act and that it would effectuate the purposes of the Act to assert jurisdiction herein. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that United Mine Workers of America, Locals 1269 and are labor organizations within the meaning of Section of the Act. THE DISPUTE A. The Work in Dispute The work in dispute is operating and heavy equipment in the excavating, grading, and other re- lated refuse pile work, hauling materials and wastes to refuse piles, and hauling waste from cleansing plants and silt ponds at Tucker mines 20, 25, and located in Cambria and Indiana Countries, Pennsylvania. B. Background and Facts of the Dispute Barnes Tucker owns and operates four deep coal mines in Pennsylvania. It employes about 1,200 pro- duction and maintenance employees, represented by UMW Local 1269, approximately 200 of whom work on the surface outside the mines in preparation plants and service facilities. This dispute involves a between these 200 surface employees, represented by Local 1269, and employees of surface contractors of Barnes Tucker-Ritchey Trucking and Davis Trucking-represented by Local From 1970 through the spring of 1976, Local represented employees who performed the disputed work. Local 1269 struck Barnes Tucker for this work assignment in January 1976. Pursuant to an or- der of the United States District Court for the em District of Pennsylvania, Local 1269's grievance proceeded to arbitration. Local 1269 and Barnes Tucker were parties to arbitration for the purpose of resolving the question of Barnes Tuck- er's assignment of the work to Local None of the Charging Parties was invited as either a party or a witness to the arbitration proceeding.' The above arbitration proceeding was initiated by Local 1269 pursuant to article of the National Bituminous Coal Wage Agreement (hereinafter National Bituminous not for or four-party or arbitration 241 NLRB No. 16 multiem- & 11, Cg) I1 defmed 0. & 1600. untary means the 1600 more & 1600's 1600, Applicabili@ lo@) 8(b)(4XD) Bames & 1600, 8(b)(4)(D) & NBCWA's provi~ion.~ & International Agree & NBCWA's provideo procding. AU may-present theNBCWA - 8(b)(4)(D) Spielbee lo@) ~nitrdTine Amen'nr. Local (CmIi&trd Cml C w n y ) , (15'77); United Minr Workers, Union (Befhlclrrm Minu Corporoion1. 819 M i n Worken America Locd 1604 (1977). Spielberg MMu/ac~n'ng Conpnw, 112 1080 (1955). 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NBCWA). The Intemational, on behalf of its locals, executed the NBCWA with the Bituminous Coal Op- erator's Association (hereinafter BCOA), a ployer association of which Barnes Tucker is a member. Ritchey and Davis, who are not members of the BCOA, are independent signatories to the NBCWA. The arbitrator awarded the work to Local 1269 on the basis of his interpretation and reliance upon arti- cle section (a). That section states in relevant part: "The production of coal, including removal of over- burden and coal waste, preparations, processing and cleaning of coal and transportation of coal . . . shall be performed by classified employees of the Em- ployer. + . ." Section of article provides: "The transportation of coal as in paragraph (a) may be contracted out only to a contractor employ- ing members of the UMWA under this agreement and only where contracting out such work is consis- tent with the prior practice and custom of the Em- ployer." The arbitrator, in finding in favor of Local 1269, gave more weight to section (a) than to section Barnes Tucker complied with the arbitrator's award and assigned the work to Local 1269. Charging Parties contend that the work in dispute has been his- torically assigned to Local C. Contentions of the Parties The Charging Parties contend that there is no vol- of adjustment of the dispute because arbitration award is not binding on nonparties. As for the merit of the dispute, the Charging Parties con- tend that Local has performed the disputed work many years and is capable than Local 1269 in handling hauling work. Barnes Tucker argues that the Charging Parties are bound under the arbitration terms of the NBCWA regardless of their absence as parties to the arbitration proceeding. Furthermore, it contends that Local interests were adequately represented at the arbitration proceeding. Local 1269 contends that the arbitrator's decision awarding the work to it is dispositive of the issue. Furthermore, it contends that it is as skilled at per- forming the disputed work as Local since it has done so in the past. D. of the Statute Before the Board may proceed with the determina- tion of a dispute pursuant to Section of the Act, it must be satisfied that (1) there is a reasonable cause to believe that Section has been violated and (2) the parties have not agreed upon a method for the voluntary adjustment of the dispute. The parties stipulated, and we find,that Local 1269 struck Tucker over the Employer's assign- ment of the disputed work to Local and that there is reasonable cause to believe that Local 1269 has violated Section of the Act. We conclude, however, that the parties have agreed upon a method for the voluntary adjustment of the dispute, and we shall order that the notice of hearing be quashed. We agreed with the contention of Barnes Tucker and Local 1269 that all parties herein are contractually bound by the arbitration Barnes Tucker is a member of the multiemployer association BCOA, which executed on behalf of its constituent members the NBCWA with the UMW International; the executed the ment on behalf of its locals. Thus, Barnes Tucker, Local 1269, and Local 1600 are contractually bound to accede to the arbitration provisions of the NBCWA. Likewise, Ritchey and Davis are also bound by the arbitration provisions; they are independent signatories to the NBCWA. It is, therefore, immaterial that the NBCWA only for two-party arbitration; all employers and all UMW Locals concerned are interested parties to the dispute and all are represented at, and bound by, any arbitration parties signatory to the NBCWA have seen fit to agree to a system of arbitra- tion whereby only two a griev- ance in one proceeding, but all are nonetheless af- fected by any decision rendered. We shall defer to the parties' contractual arrangement. In his dissent, Member Jenkins finds grievance and arbitration procedure defective be- cause the competing unions are not able to confront one another in the same proceeding and the employ- ers cannot initiate the procedure or appeal the result of a proceeding in which they did not participate. We note that our dissenting colleague's objections pertain solely to the mechanics of the arbitration procedure. However, in deciding whether the Board lacks juris- diction to proceed with an complaint, we focus our inquiry on the existence, not the substance, of an agreed-upon method for the voluntary adjust- ment of the work dispute. The deferral cri- teria are inapplicable to our assessment of a jurisdic- tional dispute settlement mechanism because Section provides that the existence of an agreed-upon method deprives the Board of jurisdiction to deter- ' Workers of Union 1979 227 NLRB 815 Local 227 NLRB (1977); United of 230 NLRB 830 NLRB 1368 WORKERS-LCKAL final. Barnes & pre ceding, chanca bccaubt failed filing Local files p r o d 1600 states in-- 79.' NBCWA's 1600 -- - - 4Tbe &mt pcdonr am attached u m appendix [omitted horn 5 N.LR.5. Plnstrms' Lacd Na Opcrativc P k t m n ' & Cr. mar M-' Inrrmetional A m , rI. d. 404 116 (1971). 8(bX4)(D). 8(bX4XD). these reasons, shall ordend ie hmby MEMBER JENKINS, arbi- tral precludes arbitral Local Davia Truckiq years & Tucker, chalIenged against Barnes & Inaemuch aa three- 1600 ban procedure 1600 1600 afforded Board Anal those Arbitratian mrf) does 233 UNITED MNE UNION 1269 mine the dispute. This is in direct contrast to the Spielberg situation, where the Board, in its discretion, declines to exercise its jurisdiction and defers to an arbitration decision. The issue before us, therefore, is whether or not all parties to the dispute have agreed to be bound to a method for settlement of the dispute. The NBCWA states that all disputes arising under it shall be settled through a grievance and arbitration procedure consisting of a two-party arbitration sys- tem with an Arbitration Review Board (hereinafter ARB) to resolve conflicting panel arbitration deci- sion~.~ Either party to a panel arbitrator's award may petition the ARB for appellate review. The ARB has the authority to modify decisions of panel arbitrators, and its decision concerning a dispute is Conse- quently, the NBCWA, to which all parties are bound, provides for a method of dispute settlement that will culminate in a single determination binding on all parties. Furthermore, each party to the dispute will receive an opportunity to present its arguments and evidence. As for the dissent's concern that the Employers may not receive a chance to participate in the NBCWA procedure, we note that Tucker has presented its position in a panel arbitration while Ritchey and Davis have not. The latter two Employers have not had a to advance their claims Local 1600, which represents their employees, has to use the NBCWA proce- dure. Local 1600 has the option of a grievance against its employers concerning the elimination of work for its members. If 1600 grievances against Ritchey and Davis, those parties will have the opportunity to to arbitration. Review by the ARB may be had if the Local panel arbitration decision conflicts with the earlier panel award to Lo- cal 1269. The dissent further that the employers' ability to activate the NBCWA grievance process ren- ders that procedure deficient under Plasterers' Local Union No. We note that the settlement method at issue in Plasterers s was a private union agreement that excluded the employer who was being picketed to force reassignment of work. In the instant case, all the parties involved in the dispute, including the em- ployers, have agreed to be bound to the method of dispute adjustment. Ritchey and Davis have not had the opportunity to present their posi- tions because Local has declined to pursue the parties' agreed-upon method to its conclusion, or en- gage in activity charged as a violation of Section of which hereto publication]. v. Union 79, AFL-CIO, U.S. Similarly, neither Ritchey nor Davis has been subjected to any activity charged as a violation of Section However, Local 1600 not only is able but is bound with the other parties to settle this dispute through the grievance and arbitration procedure of the NBCWA. For we umclude that the parties have agreed to adjust the dispute themselves, and therefore we quash the notice of hearing in the above-captionedcase. ORDER It is hereby that the notice of hearing sued in this case be, and it is, quashed. dissenting: My colleagues have determined to defer to an process which not only either Union's directly contesting the other's claims and refuting them by appropriate evidence but also precludes an employer from either initiating its use or protesting the results of an proceeding in which it did not, and cannot, participate. Here, members of 1600 employed by Ritchey Trucking and have performed the disputed word for the past 6 pursuant to a con- tract with Barnes & Tucker. Local 1269, whose mem- bers are employed by Barnes this situation by initiating a grievance Tucker which resulted in an award of the disputed work to its members. the grievance pro- cedure does not provide for or four-party arbi- tration, neither Local nor Ritchey Trucking and Davis Trucking participated in that proceeding. The result, as would have expected, was an award to Local 1269. The grievance further provides that that award can be contested only by the initi- ation of a grievance by Local against Ritchey or Davis, with neither of which Local has a dis- pute, and by then proceeding to an arbitral award. Should the two awards conflict, resolution thereof is by an Arbitration Review the contractual arbitral authority, apparently without further hearing and on the bases of the arbitration awards and possibly the records in proceedings. The existence of the Review Board, however adequate its function be, not, in my view, cure the bases of the inadequacies present in the underlying arbitrations, because there is no way an opposing party can participate in the same pro- ceeding and adduce the evidence and pursue the ar- guments it deems necessary to contest or refute the opposing claims and confront the real adversary. The fact that the ultimate outcome may be that both unions have consideration given to some aspects of their respective claims is not sufficient, for the bases lo@) 8(b)(4)(D) case,6 radcal "[ilt N.L.RB. & Masons' Internatio~l Assn. 01.. 116, 128, "agreed- 1qk) i.e., 1O(k) these dlspute ' Spielberg Company, ( 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on which those claims rest, and on which a resolution will be made, are defective beyond cure because of the absence of one necessary party from each of the two arbitral proceedings. This absence prevents the full presentation and exploration of the competing merits which is necessary to an adequate resolution of the dispute. The grievance-arbitration system under review also falls short of the statutorily specified "agreed-upon method" of adjudicating disputes in another respect: none of the Employers, whom Section and of the Act were designed to protect, can activate the grievance process but instead must rely on the Unions to do so and remains helpless if they do not. This particular situation was considered by the Supreme Court in the Plasterers wherein the Court held that an employer is a necessary party to a jurisdictional dispute and, therefore, must be a party to the "agreed-upon method" because resolu- tion thereof "may, practically, affect his business in a way" and would therefore be myopic to transform a procedure that was meant to protect em- ployer interests into a device that could injure them." Inasmuch as the grievance procedure does not permit an employer from activating its use either initially or in subsequently protesting an award rendered in a proceeding in which it did not participate, "there is no assurance that these private procedures will al- ways be open to employer participation, that an em- ployer will be afforded a meaningful chance to par- ticipate, or that all relevant factors will be properly considered." Plasterers, 400 U.S. at 132. v. Plasterers' Local Union No. 79, Operative Plasterers' Ce- ment AFL-CIO, et 404 U.S. 130 (1971). My colleagues hold that the "agreed-upon method" required by the Act for deferral of jurisdictional dis- putes is met by an arbitral system which precludes parties from directly participating in proceedings which affect their contractual, labor relations, and economic interests. The majority bases this conclu- sion on the ground that the parties "have seen fit" to agree to such a device. But Plasterers', supra, of course invalidates this reasoning. Agreement upon a procedure by which a union can foreclose the presen- tation and consideration of the employer's position on the dispute, as my colleagues concede has oc- curred here, does not provide the statutory upon method," because Plasterers holds that the em- ployer is a necessary party. That the parties "have agreed" cannot cure this deficiency, any more than they can "agree" that Section of the Act will not apply to them. The result reached by the majority denigrates the Board's deferral standards, for were this proceeding to reach us in the posture of a Spielberg issue,' the conformance of the award to statutory standards, it is clear that the barring of a party to the grievance pro- cedures underlying that award would not satisfy the Spielberg "fair and regular" standards, and deferral would be precluded. Nothing in the language or legis- lative history of Section warrants our approval of an arbitral process thereunder which we would find to be unfair and defective under other parts of the Act. For reasons, I would conclude that no agreed-upon method exists within the meaning of the Act and as interpreted by Plasterers', supra, and I would determine the on the merits. Manufacturing 1 12 NLRB 1080 1955).