United Mine Workers and Peabody Coal Co.

UNITED MINI W)ORKERS AN) IPAHO())Y COAL CO. International Union, United Mine Workers of Amer- ica and Peabody Coal Company and Wagner Equipment Company. Case 27-CE-22 October 30, 1980 DECISION AND ORDER BY CHAIRMAN FANNING ANI) MI.MBHIRS JFNKINS ANI) PNE I 1O On July 22, 1980, Administrative Law Judge Mi- chael D. Stevenson issued the attached Decision in this proceeding. Thereafter, Respondent Interna- tional Union, United Mine Workers of America, filed exceptions, a supporting brief, and a reply brief, and Respondent Peabody Coal Company filed a 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 briefs and has decided to affirm the rulings, find- ings,l 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent International Union, United Mine Workers of America, its officers, agents, and representatives, and Respondent Pea- body Coal Company, Denver, Colorado, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. i e agree ith the Adml\nslrailmic I alu Judge Ihia memhers f he Pil Co mmlttee v crc auth rized Io act for he ilnion pursuanl t I he Committlle', duni under the collecive-bhargaining agreement to adjust dispules hetscecnl the nune management and employees. We therefore filnd It unncccssir T i rel oni the Admlinistratle Lass Judge's discusson concerning the relevance of agency under Sc 8(e) of the Act Respondent International Union. United Mine Workers of America. has excepted to certain credibility findings made by he Administrative law Judge It is he BHoard's established policy nt t oerrule an admin- istraise law judge', resoluions ith respect to credihility unless the clear preponderance of all of the relevant evidence convsinces us that the resolutions are incorrect Standard Dr' Wall Produc. Inc., 91 NI.RBt 544 (1950), enfd 188 F.2d 362 {3d Cir. 1951) We have careffully examrined the record and find ito) basis fr reversing his finding, DECISION SIAtliMENT OF THE CASE MICHAEl D. SFVENSON, Administrative Law Judge: This case was heard before me at Denver, Colorado on February 19, 1980,1 pursuant to a complaint issued by the Regional [)irector for the National Labor Relations Board for Region 27 on January 10. 1980, and which is based on a charge filed by Wagner Equipment Company (herein called Wagner) on December 26. The complaint alleges that the Respondents International Union, United Mine Workers of America (herein called UMWA) and Peabody Coal Company (herein called Peabody) have engaged in certain violations of Section 8(e) of the Na- tional Labor Relations Act, as amended (herein called the Act). Issue Whether a provision of Respondents' current collec- tive-bargaining agreement, article II, (g), (2), "Repair and Maintenance Work" violates Section 8(e) of the Act on its face and as interpreted and applied b Respond- ents. All parties were given full opportunity to participate, to introduce relevant evidence. to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel, UMWA, and Peabody. Upon the entire record of the case, and from my oh- seration of the witnesses and their demeanor. I make the foillowing: FINI)INGS O FCl I 1. [It 1t 1P1 OYE IR'S BI SINI SS Respondent Peabody admits that it is a Delawarc cor- poration engaged in the business of mining coal and having a strip mining site located near Hayden Colora- do. It further admits that during the past year, in the course and conduct of its business, Peabody has sold and sent goods and materials valued in excess of $50,00() to customers outside the State of Colorado. Accordingly, it admits. and I find, that the Employer is engaged in com- merce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. IHE I.ABOR OR(iaNIZALItON INVOI VII) Respondent UMWA admits, and I find, that it is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE AI.I.EEI) UNFAIR I AHOR PRACTICES A The Facts Peabody and UMWA negotiated a collective-bargain- ing agreement which at all times material to this case was in full force and effect. The controversy herein pre- sented involves one portion of that agreement; article II, "Scope and Coverage," section (g), "Contracting and Subcontracting," (2) "Repair and Maintenance Work." This section reads as follows: (2) Repair and Maintenance Work-Repair and maintenance work customarily performed by classi- ' All dates herein refer to 1979 unless ilherisse ndicaled 253 NLRB No. 20 171 I)ECISIONS OF NATI()NAL LABOR RELATIONS BOARD fied Employees at the mine or central shop shall not be contracted out except (a) where the work is being performed by a manufacturer or supplier under warranty, or (b) where the Employer does not have available equipment or regular Employees with necessary skills available to perform the work at the mine or central shop, provided, however, that the work shall he performed by UMWA mem- bers to the extent and in the manner permitted by law. Certain facts and circumstances surrounding the above-cited section of the contract are material to the controversy herein. On or about December 10, a Monday, two employees of Wagner Equipment Compa- ny reported for work at Peabody's Seneca minesite. At this time, Peabody had three mechanics on the shift who were capable of doing the work performed by the Wagner employees. Peabody brought in two Wagner mechanics because there was more work available than could be done by Peabody mechanics, and because Pea- body wanted Wagner mechanics to install an engine in some equipment, thereby receiving a warranty on the engine which would not otherwise be available. Both of the Wagner employees testified at the hearing. Douglas White and Tom Edwards testified that on Thursday, December 13, they were working at an inside area at the Seneca shop. White was installing a rebuilt engine in sonime Peabody equipment and Edwards as reassembling an engine which Peabody mechanics had disassembled. Edwards had worked at Peabody before on warranty work and doing other types of work, but White had not. No complaints had been made on these prior occasions. While White and Edwards were doing the inside work described above, two Peabody mechanics were working in an outside area in temperatures of approximately 20 below zero. These mechanics learned of the Wagner people working inside and complained to two other Pea- body employees who were members of the Pit Commit- tee. At hearing the parties stipulated that the "Pit Com- mittee" was the same as the "Mine Committee" de- scribed in article XX of the contract. Basically, members of the Pit Committee were elected by their fellow em- ployees to represent the employees' interests at the initial stages of disputes between union and management over terms and conditions of employment. The two members of the Pit Committee to whom the Peabody mechanics complained were George Deather- age and George Temple, both of whom testified at the hearing. They admitted speaking to the two Wagner em- ployees. First, however, they spoke to the mine superin- tendent, Donald Zulian, also a witness. There are con- flicts in the testimony regarding exactly what was said. Zulian was approached by Deatherage and Temple in his office and asked whether the Wagner employees were doing warranty work. Zulian said he did not think so. Then one of the two told Zulian that the Wagner people would have to be signed up for the UMWA, to which Zulian responded, "Go and sign them up your- selves." Both Deatherage and Temple denied saying to Zulian that the Wagner employees would have to join the UMWA. Although Deatherage does remember Zulian saying, "sign them up," he did not describe the context. I resolve this dispute in favor of Zulian, because his version of the conversation is consistent with the Wagner employees and because the testimony of Death- erage and Temple seemed inherently improbable on this point. Another conflict involved the conversation with White and Edwards. They testified that they were ap- proached by Deatherage and Temple in the late after- noon of December 13 and asked whether they were per- forming warranty work. When told the work being done was not warranty work, the Peabody employees asked whether White and Edwards were interested in joining the UMWA and the Wagner employees responded that they were not as they already belonged to another union. Whereupon, White and Edwards were told that they better leave. Deatherage and Temple denied that they asked the Wagner employees to leave the Peabody premises. Wit- ness this exchange: [General Counsel] Q. You never suggested that to either of them that they leave? [Deatherage] A. No, sir, George and I looked at each other and we didn't know what to do and we looked at them and they were in the same shape we were. I reject this testimony because it is incredible to be- lieve that where Peabody mechanics felt they were working in temperatures of 20 below zero because Wagner mechanics were doing their work indoors and where they complained to members of the Pit Commit- tee about this perceived injustice. I cannot believe that Deatherage would say he did not know what to do. After White and Edwards consulted both with a supervi- sor at Wagner and with Mine Superintendent Zulian, all decided they would leave work for that day. While it was close to 4:30 p.m., the normal quitting time, Wagner mechanics on detail to Peabody generally worked over- time. Zulian told White and Edwards that he would try to resolve the matter and have the men return the next day. However, White and Edwards did not return to Peabody the next day or ever. A few days later, Zulian had one or two additional meetings with the Pit Committee to resolve the matter involving Wagner. The UMWA took the position that Wagner should do no work at Peabody except for war- ranty work. At one of these December meetings, Zulian was told by an unidentified member of the Pit Commit- tee that if Wagner continued to perform nonwarranty work at Peabody, the Company might end up short a work force. Zulian interpreted this remark to mean that some people probably would not report for work. Subsequent to these unsuccessful attempts to resolve the matter at the company level, a formal grievance was filed on January 3, 1980. This was after a charge had been filed by Wagner with the Board. On January 9, 1980, the grievance was settled by Peabody agreeing to the UMWA's position. 172 UNI II-l) M1IN I WO(RKE RS ANDI) 'ITAt)I)Y (()&-I C() Joe Garcia a UMWA official at the district level, tes- tified that in October a incident occurred at Peabods with a contractor ntamed Robinrson pcrftorming ork which was custlomarily performed by UMWA people under the contract. In this case Robinson was a UMWA signatory. but the Union still took the position that the disputed work had to be done by Pcabody UMWA em- ployees. Thus Garcia concludled that it makes no differ- ence to his union whether a contractor is ULMWA or not. Their position is. if the disputed work falls under the work jurisdiction clause of the contract, then it must be done by Peabody UMWA people. B. 4nalysis and Conclusions I begin with the very recent case of 'nited Mine Wborkers of America, Local No. 1854 and L'n'ted Mine Worker o'. America (,4ma. Coal Companv, 238 NLRB 1583 (1978). affd. in relevant part 614 F.2d 872 (3d Cir. 1980). The provision of the contract at issue in the in- stant case is a verbatim provision of a contract found to have violated Section 8(e) 2 of the Act in Amax Coal Company. Although Respondents here offer a factual de- fense different from that proposed by Respondent in Amax, I am constrained to hold preliminarily that the General Counsel has clearly proven a prima facie case. That is, the provision here at issue is plainly intended to protect, preserve, acquire, or reclaim work for union members generally (i.e., outside the immediate bargaining unit); therefore, it violates both Section 8(e) and 8(b)(4)(B) of the Act on the theory that it exceeds the legitimate interests of the unit employees vis-a-v/s their own employer and is, therefore, tactically calculated to satisfy union objectives elsewhere.4 I am of the view that the provision at issue was inter- preted by the parties in accord with its plain meaning; i.e, to coerce the Charging Party to join the UMWA or to lose the Peabody work. The credited testimony in "The Facts" portion of this opinion clearly shows this to be so. Briefly, I found that two members of the Pit Com- mittee asked the Wagner employees to join the UMWA. s When White and Edwards declined on the grounds that they were members of another union, they were asked to leave. Subsequently, Peabody acquiesced in UMWA's position by terminating the employment of the Wagner employees pursuant to the demand of the 2 Sec 8(C) f Ihe Act provides in pertinelit part It shall be an unfair lahbor practice for an, labor organizatlioln and any emploer t enter Into any cnliract or agleerinlilt express oi im- plied, whereby such employer agrees to cease doing busi- ness with any other person, and all contract or agreement con. tainig such an agreement shall he to such extent uneniforceahle nd void a See alsot nited Minl Worker (WHugncnr .quipm,oli), J)-(Sf') 177 77. where again the exact clause now in issue was found hy the admilllira- live law judge It violate Sec 8(e) of the Acl 4 Local Union .o. 282, affiliated with the International Brotherhold of leamsters Chuuffiur, Warrthuserntn and llpers oif .4ntlrira iD I borun- ato. Inc), 197 NLRB 673, 677 1972) 5 Witness this exchange [iGeneral Counsel Q Arid you asked hin [Whilel if h hbelonged to the LIMWA [Deatheragel A I don't kno if I I I didn't specifically aIk hinm iII those terms I behlieve I asked him if he would he u.tlng to jorn iur union I didn't ask him if he belonged to t'ur tUnion UIMWA and by agreeing to the settlement of the griev- anlce wvhich resulted from the Wagner incident. It as clear to me that the eents in question occurred here not because Wagner nmechanics were working inside anrid P'eabody mechanics cre orking outside, but because non-ULM WA employees w ere working inside and UNMWA employees were snorkrig outside. Why else would the Wagner employees hase been asked to join the UWA and told to leave %shen they declined. In this respect. I have conlsidered the testimony of UMWA official Garcia regarding a prior incident with a contrac- lor named Jackson. I assume without finding that Jack- son was a UMWA signatory as described by Garcia. I further assume that he was precluded from performing work at Peabody by the UMWA's objection. I even assume the conclusion that the UMWA's objective there was only to preserve work for its members at Peabody at the expense of its members with Jackson. In the instant case, however, the credited evidence shows that the UMWA's objected to Wagner employees only because they were ot UMWA employees. That the UMWA arind Peabody, for whalever reason, may have elected to act lawfully in October does not detract from the unlawful conduct here. Moreover, as the General Counsel points out. Zulian testified without contradiction that Peabody had more maintenance work to be done than qualified Peabody mechanics to do it." Thus, no work was being taken from UMWA members, but, rather. they insisted on the removal of the Wagner employees to gain their illegal secondary objectives; i.e., coercion of Wagner em- ployees into UNIWA membership. While it is true as UMWA argues that neither the grievance nor the settlement reflects any concern over the union membership or lack of membership of any sub- contractor employees, it is also true that the grievance was filed on January 3. 1980, about a week after the charge in this case was filed. Thus, the wording of the grievance and the settlement of January 9, 1980, is sus- pect, especially in the context of the facts of this case. As to UMWA's argument that the Pit Committee was not proven to be agents of the UMWA for the purpose of interpreting or applying the provision in question. I reject that argument: first. the provision in question is unlawful on its face so its subsequent interpretation is not crucial; second, its unlawful interpretation was ratified by the International Union; 7 third, I find that the Pit Committee was an agent of the UMWA for the purpose of binding it in the context of the istant case." Thus, the i This important point u as not covered in Ciarcia's testimony regard ilg the Jackson incidenl : 1 g (arciL learned of the \Wagner incident on December 2(1 or 21 aid subsequenttl ad'iscd Cobh. president of the UMWA local at Pea- hody t ile a grlc, ance oser the matter. At no lime did Garcia or Cobbhh expressly disavow the representalions of the I'il Committee, rather. I find that the, acted ill complete accord with these representations In cosiderilg the agency argument I also accept nd adopt Pea- hody's argument Agency is not all isue because the reference to unfair labor practices hs a labor organization or it, agents refers only to unfair lahor prac- tuiC arlnsiig under (h) of the Act Sectlon 8te) f thli Act does not refer t igeit buit to li) t'h libor rganii/itn aind emploser Accolrdtgls ig is ite I IItI hbc proxicd 1 the same manner as a (';onrnu'd 173 I)ECISIO()NS ()F NATI()NAI. IABR REI.ATIONS BO()ARD committee existed pursuant to Respondent's contract rep- resenting UMWA's interest in grievance resolution as de- scribed in article XX, (c), "Grievance Procedure 2." Peabody also argues that if a violation of Section (e) occurred, only a portion of the provision in question is unlawful: . . provided, however, that the work shall be per- formed by UMWA members to the extent and in the manner permitted by law. This argument has merit and I will recommend to the Board that only that portion of article Il,(g),(2), quoted above be struck from the Respondents' collective-bar- gaining agreement. As authority, I rely first on article XXV (Severability Clause), section (a) (General Rule), of the contract: Except for the provisions of Section (b) of this Arti- cle, if any provisions of this Agreement is declared invalid, all other provisions of this Agreement shall remain in full force and effect. In addition, I rely on the legal authorities cited by Pea- body. In Meat and Highway Drivers. Dockmnen, Ielpers and Miscellaneous Terminal Employees, Local 710, Inter- national Brotherhood of Teamsters [Wilson & Co.] v. N.L.R.B., 335 F.2d 709 (D.C. Cir. 1964), the court noted that the Board found objectionable only a portion of a clause in a contract yet its order ran against the entire clause. There, as here, deletion of the unlawful material would leave the total collective-bargaining agreement in a state close to what the parties contend they always in- tended anyway. Further, as explained below, deletion would satisfy totally the requirements of Section 8(e). Thus, the court held that no more of the contract should be invalidated than is unlawful, "where the excess may be severed and separately condemned as it can here." N.L.R.B. v. Rockaway News Co., 345 U.S. 71, 79 (1953)." See also Lewis v. Seanor Coal Co., 382 F.2d 437, 440, fil. 6 (3d Cir. 1967), cert. denied 390 U.S. 947 (1968). In conclusion, I find that absent the offending material, the provision of the contract at issue is not unlawful. In Pacific Northwest Chapter of the Associated Builder & Contractors. Inc. v. N.L.R.B., 609 F.2d 1341, 1346 (9th Cir. 1979), the court stated: In National Woodwork Manufacturers Association v. N.L.R.B., 386 U.S. 612 . . . (1967), the Supreme Court read into Sec. 8(e) a distinction between pri- mary and secondary objectives. An agreement which advances only primary objectives of the bar- violation of Section 8(b) of the Act. The Pit Committee enforces the contract Therefore, it acts for the UMWA 9 In the normal case where a decision of the Board is at odds with a circuit court of appeals. I am, of course, bound to firllovw the Board's rule. tiere, however, that issue is not presented. First, the Supreme Ciurt has spoken on the matter and this hinds all; second, even without Rockaway Vews Co.. uprua, it is not at all clear the Board would rule dif- ferently here since the facts are different than in Meat & Highway DrUer; finally the General Counsel here does not argue to the contrary of my recommended Order since he asks only that an "appropriate order should issue," holding that Sec 8(e) of the Act has been violated This, I will do. gaining employees, such as preserving work oppor- tunities, is not unlawful. The circuit court went on to explain that under Natrlional Woodwork Manuclturer Association, each disputed agreement must be examined to see whether, under all the surrounding circumstances, the Union's objective was preservation of work for the employees, or whether the agreement was tactically calculated to satisfy union ob- jectives elsewhere. By this standard, I am satisfied that article 11,(g).(2), absent the stricken material, does not violate Section 8(e) of the Act, since it serves only to preserve work opportunities of P'eabody employees. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCI USIONS Or Lxw 1. By entering into and reaffirming a portion of the clause of their collective-bargaining contract (art. II. sec. (g),(2)) relating to the contracting out of repair and maintenance work as heretofore described and as found herein, Respondents Peabody and UMWA engaged in unfair labor practices within Section 8(e) of the Act. 2. These unfair labor practices affect commerce within Section 2(6) and (7) of the Act. THi- RMEDY Having found that the Respondents have engaged in unfair labor practices, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER' ° Respondent, International Union, United Mine Work- ers of America, its officers, agents, and representatives, and Respondent Peabody Coal Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from entering into or reaffirming that portion of the clause of their collective-bargaining contract article II, section (g),(2), relating to the con- tracting out of repair and maintenance work, as hereto- fore described, and from violating the Act in any like or related manner. 2. Take the following affirmative action necessary to effectuate the purposes of the Act: (a) Post at their respective places of business copies of the attached notice, marked "Appendix."" Copies of the notice, on forms provided by the Regional Director for "' In the event no execeptions 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, he adopted by the Board and becomc its findinlgs conclusions. and Order, and all objections thereto shall be deemed waived for all purposes '' In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enfoircing an Order if1' the National Labor Relations Board." 174 LUNI I ) MINl WO()RKIRS ANI) I'lEAHD)IV) ()AI C() Region 27, after being duly signed hy representallLixLs of both Respondelts, shall be posted by Respondents imme- diately upon receipt thereof and he maintained by them for 60 consecutive das thereafter i conspicuous laces. including all places .%here noticcs to cniployees on thc one hand, arid to menlbers on Ihe otlher. are cuslonnarilv posted. Reasonable steps shall be taken h Respondents to insure that said notices are not altered, defaceid, or covered hy any other material. (b) Furnish said Regional I)irector ith signed copies of the said notice for posting bh Wagner ILquipnmcl Company, should it so desire. at all places here noticLes to its employees are customarily, posted. (c) Nofify the Regional Director for Region 27. mii writing, \, ithin 20) days from the date of this Order, what steps Respondents have taken to conipl herewith. APPENI)IX Not) I I To M'I () I I S NI) \ I` MNIt RS P(sl t 1 1) II ()RD R )f i111 N\ I 1( \I [. )4R RII \ S1( IONS HO()RI) \ii .gcncll' ofI' the Unittl Stlats (overlnllenl W'l \ i I N enlter into or reaffirnl that portion of the clause of our collecti\e-bargaining conlract (art 11, sec. (g).(2 )) relatling to the contracting out otf repair and maiiteniaince \vork Arid more specifi- ca;lly tdescribed a1s folloxs: provided, however, that the work shall be peri',rmcd h UMW WA members to the extent and inl the marnner permitted by la . W %\11i I Not violate the Act in any like or re- I;atcd manner. PI\: \lOt)l Cot Col f)' N IN I I RN \ I1ON 1t UNION. UNI t ) MI \ORKIRS O Ai R( 175