Quarto Mining Co.

QUARTO MINING CO. Quarto Mining Company and Local Union 1785, United Mine Workers of America. Case 9-CA- 25375 September 29, 1989 DECISION AND ORDER BY MEMBERS CRACRAFT, HIGGINS, AND DEVANEY On April 25, 1989, Administrative Law Judge William F. Jacobs issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Charging Party filed an answering brief to the Respondent's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order.' The judge has found that the Respondent violat- ed Section 8(a)(5) and (1) of the Act by refusing to bargain about "idle day" and related work schedul- ing procedures prior to implementing changes in those procedures . The Respondent has excepted, inter alia, to the judge's failure to find that this case should be deferred to the parties' existing contrac- tual grievance and arbitration mechanism pursuant to the principles of United Technologies Corp., 268 NLRB 557 (1984), and Collyer Insulated Wire, 192 NLRB 837 (1971). For the reasons set forth below, we find merit in the Respondent's exception. The Respondent operates the No. 4 Powhatan Mine in Clarington, Ohio. At all relevant times, the Respondent's employees have been represented by the Union, and their terms and conditions of em- ployment have been covered by provisions of the 1984 and 1988 National Bituminous Coal Wage Agreements (NBCWA). As indicated above, this case arises from a controversy between the Re- spondent and the Union over the assignment of idle day work to unit employees. Such work consists of maintenance and other nonproduction duties per- formed on days when no coal is produced at the mine. From the opening of the mine in 1971 until November 1984, the Respondent had assigned idle day work on a voluntary basis. Sometime in 1984 the Respondent sought to con- vert to a mandatory idle day work system, but the system failed when employees refused to work the idle days. The Respondent and the Union thereaf- ' The Respondent has requested oral argument . The request is denied as the record, exceptions , and briefs adequately present the issues and po- sitions of the parties 1081 ter concluded an Idle Day Work Scheduling Pro- cedures Agreement (Idle Day Agreement) on Janu- ary 15, 1985. This agreement established a proce- dure whereby employees would not be mandatorily scheduled for idle day work unless the number of employees volunteering to work was inadequate. The Idle Day Agreement stated that its terms would continue in effect "unless terminated by either party by written notice to the other party within thirty (30) to sixty (60) days prior to the ex- piration of the 1984 NBCWA. On December 21, 1987, the Respondent notified Local 1785 that it was terminating the Idle Day Agreement effective with the expiration of the 1984 NBCWA on Janu- ary 31 , 1988. Although the Union requested bar- gaining about any new idle day work scheduling procedures, the Respondent refused on the grounds that it had no obligation to bargain pursuant to the terms of the successor 1988 NBCWA , which was ratified on February 8. Shortly after that date, the Respondent unilaterally implemented new manda- tory idle day work scheduling procedures and made related changes concerning work on consec- utive Saturdays and the use of graduated vacation days, subjects that had also been covered by the Idle Day Agreement. Various provisions of article IV of the 1988 NBCWA address an employer's scheduling rights and refer to the performance of idle day work and Saturday work. Article XIV of the NBCWA sets forth terms for graduated vacation. Article XXIII of the NBCWA broadly covers disputes "arising under this Agreement" and provides for final and binding arbitration as the final step of the dispute resolution procedure . Section (k) of this contract article provides that arbitration decisions "rendered prior to the expiration of the [NBCWA] of 1978 shall continue to have precedential effect under this Agreement to the extent that the basis for such de- cisions have not been modified by subsequent changes in this Agreement." The Respondent has introduced into the record several arbitration awards interpreting provisions similar to the above- mentioned provisions in prior contracts. The Union filed a grievance on February 2, 1988, requesting that the Respondent either comply with the Idle Day Agreement or that the Respond- ent renegotiate the procedures. Arbitrator Ronald Suster denied the grievance in an award dated May 25, 1988 . He found that the Respondent had prop- erly terminated the Idle Day Agreement and that neither that agreement nor the 1988 NBCWA com- pelled the Respondent to renegotiate another local agreement about idle day work and related proce- dures. The arbitrator noted, however, that "the in- stant grievance did not present the question wheth- 296 NLRB No. 138 1082 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD er the Union has proved a past practice and wheth- er it conflicted with the National Agreement."2 Furthermore, the arbitrator clearly did not address the statutory question whether, under the 1988 NBCWA, the Union had waived its statutory right to bargain about the mandatory bargaining subjects at issue so that the Respondent lawfully could make unilateral changes regarding those terms and conditions of its employees' employment.3 In the present unfair labor practice proceeding, the judge first addressed the merits of the com- plaint allegations. He found that the Respondent had lawfully terminated the Idle Day Agreement, but it had violated Section 8(a)(5) by refusing to bargain with the Union prior to changing idle day work and related procedures. The judge then brief- ly discussed the arbitrator's award and found that deferral to the award would be inappropriate be- cause it did not address the statutory bargaining issue presented here. The Respondent contends that the judge erred by focusing solely on whether he should defer to the arbitrator's award under the standards of Olin Corp., 268 NLRB 573 (1984), and Spielberg Mfg. Co., 112 NLRB 1080 (1955). Ac- cording to the Respondent, its deferral argument concerning the arbitrator's award was limited to the question of whether it had properly terminated the Idle Day Agreement.4 The remainder of its de- ferral argument sought to defer this dispute to the 1988 NBCWA's broad grievance and arbitration procedures under United Technologies, supra, and Collyer Insulated Wire, supra. The judge did not discuss this argument. We agree with the Respondent that the judge er- roneously failed to address and find merit in its principal deferral defense. 5 The unfair labor prac- tice dispute and the contract now focus on the common issue whether the 1988 NBCWA author- ized the Respondent to make unilateral changes in idle day work and related procedures . In accord with the principles of United Technologies and Col- lyer, this issue is "eminently well suited " to resolu- tion by arbitration. The dispute here has arisen in the context of a long and productive bargaining re- lationship. There is a broad arbitration provision in the 1988 NBCWA that at least arguably covers the dispute at issue. Various other contract provisions 2 Art. XXVI, sec. (b) of the 1988 NBCWA provides in pertinent part that "all local agreements, rules, regulations, and customs heretofore es- tablished in conflict with this Agreement are hereby abolished. Except where abolished by mutual agreement of the parties , all prior practice and custom not in conflict with the Agreement shall be continued. 5 See generally Metropolitan Edison Co. Y. NLRB, 460 U S 693 (1983). 4In the absence of exceptions, it is no longer disputed that the Re- spondent's termination of the Idle Day Agreement was lawful 5 Accordingly , we do not reach the merits of the 8 (a)(5) complaint, and we do not rely on the judge's analysis of the merits refer to the subject matter of the dispute .6 Finally, the Respondent has unequivocally stated its will- ingness to submit the dispute to the grievance and arbitration procedure, to waive any procedural de- fects, and to be bound by an arbitrator's decision. Accordingly, we believe that deferral of this case to the contractual grievance-arbitration mechanism would best effectuate the purposes and policies of the Act, and we shall so order. ORDER The complaint is dismissed , provided that: Jurisdiction of this proceeding is retained for the limited purpose of entertaining an appropriate and timely motion for further consideration on a proper showing that either (a) the dispute has not, with reasonable promptness after the issuance of this Decision and Order, either been resolved by amica- ble settlement in the grievance procedure or sub- mitted promptly to arbitration, or (b) the grievance or arbitration procedures have not been fair and regular or have reached a result that is repugnant to the Act. 6 See generally E I. du Pont & Co., 293 NLRB 896 (1989) David L. Ness, Esq., for the General Counsel. Thomas A. Smock. Esq. and Danny L. Fassio, Esq., of Pittsburgh, Pennsylvania, for the Respondent. Thomas M. Myers, Esq., of Shadyside, Ohio, for the Charging Party. DECISION STATEMENT OF THE CASE WILLIAM F. JACOBS, Administrative Law Judge. This case was tried before me on October 18, 1988,1 at Par- kersburg, West Virginia. The charge was filed on April 28 by Local Union 1785, United Mine Workers of Amer- ica (the Union). Complaint issued August 12 alleging that Quarto Mining Company (the Respondent or the Compa- ny), violated Section 8(a)(5) and ( 1) of the National Labor Relations Act by unilaterally making changes in its idle day work scheduling procedures and related poli- cies. The answer denies the commission of any unfair labor practices. Representatives of all parties were present at the hear- ing and were afforded full opportunity to be heard and to present evidence and argument . All parties filed briefs. On the entire record, my observation of the demeanor of the witnesses and after giving due consideration to the briefs, I make the following i Hereinafter, all dates are in 1988 unless otherwise noted QUARTO MINING CO. 1083 FINDINGS OF FACT2 Issues 1. Whether Respondent violated Section 8(a)(5) and (1) of the Act on or about February 1, 1988, by imple- menting a new "idle day" policy and changing related policies previously covered by the "Idle Day" Agree- ment, without affording the Union an opportunity to ne- gotiate and bargain regarding such changes. 2. Whether the Board should defer to the grievance and arbitration procedure in this matter. Facts Respondent has operated the No. 4 Powhatan Mine near Clarington, Ohio since 1971. Since that time the Union has represented Respondent 's production and maintenance employees for purposes of collective bar- gaining under a series of agreements including , most re- cently, the 1984 and 1988 National Bituminous Coal Wage Agreements (NBCWA). At the time the mine was first opened, Respondent was owned by the North American Coal Corporation. From the beginning through November 1984 idle day work assignments were made on a completely voluntary basis. An idle day is a day during which no coal is pro- duced and employees perform only maintenance and other nonproduction related duties . The assignments pro- cedure involved the foreman asking the employee whether or not he wanted to work a particular Saturday, Sunday or other idle day. The employee would advise him whether he did or did not. If the employee chose to work, he would tell him so and would be required to show up and perform his duties . An employee who was scheduled to work, could cancel by giving 8 hours' notice. If, on the other hand, the employee chose not to work, he would so inform his supervisor and would not be required to report. This voluntary system was the result of negotiations between management and the union committee. In late 1984, management decided that the voluntary system of assigning idle work would have to be changed because Respondent was having difficulty getting a suffi- cient number of employees with the necessary skills to report on idle workdays . As a consequence, Respondent advised the Union of its desire for a change in the system and when the Union refused to agree to a change, man- agement, on November 21, 1984 , posted a notice an- nouncing that employees would henceforth be mandator- ily scheduled for idle day work. The notice was followed up by management manda- torily scheduling employees to work on idle days but this resulted in those employees refusing to work as scheduled. Respondent then took the Union to court in order to obtain a temporary restraining order against the work stoppage. Respondent claimed that the voluntary idle day work system then in effect was not working. The Union argued it could work if properly adminis- tered. The judge decided to deny the restraining order 2 The complaint alleges, the answer admits and I find that the Board has jurisdiction herein and that the Union is a labor organization within the meaning of the Act and put the Union in charge of assigning idle day work while the parties negotiated a system with which both could live. In accordance with the court's direction , the Respond- ent and the Union met a number of times and finally ne- gotiated a new voluntary mandatory system entitled "Idle Day Work Scheduling Procedures." The essence of the new agreement was that it would remain volun- tary but that if Respondent could not obtain the neces- sary skilled labor required on idle days, it could manda- torily assign additional jobs to unit employees to fill its needs. The new agreement was finalized and executed January 15, 1985, and its terms followed thereafter. In April 1987 ownership of Respondent changed hands and new officers were put in charge of the No. 4 Pow- hatan Mine. On December 21, 1987, General Superin- tendent Lyseski, notified the Union that it intended to terminate the Idle Day Work Scheduling Procedures Agreement along with various clarifications , effective with the expiration of the 1984 NBCWA. The same letter informed the Union that Respondent would an- nounce new idle day work guidelines prior to the expira- tion of the national agreement. On December 28, 1987, the Union responded to Lyse- ski's letter by stating that the terms of the Idle Day Work Scheduling Procedures were subject to renegoti- ation but that unilateral implementation of new idle day work procedures would constitute an unfair labor prac- tice. On January 21, 1988, Respondent scheduled a meeting with the Union to explain the content of its December 21 letter. At the meeting management advised the Union that the old Idle Day Work Scheduling Procedures Agreement was no longer in effect and that, for the time being, Respondent intended to go along with whatever provisions were contained in the 1988 NBCWA. Despite this statement, however, Lyseski indicated that sometime in the future an entirely new idle day work scheduling plan might be implemented . Then, after cautiously advis- ing the union officials that management had not called the meeting to discuss or negotiate with the Union con- cerning the Idle Day Work Scheduling Procedures Agreement, Lyseski announced that he wished to explain the guidelines of a new idle day system which manage- ment was considering . He took from his desk drawer a paper and began to read from it portions of manage- ment's plan. The Union's representative , Paul Amos, challenged Lyseski by stating that there was already an idle day work scheduling procedure in existence and that they ought to be discussing that one. The management representatives, however, refused to discuss the old agreement stating that the Union should forget about it, that it was gone. After listening to Lyseski read from the paper reflecting possible new idle day work procedures, Amos asked to see a copy of the plan. Management re- fused to show him the paper but said that the union rep- resentatives could take notes . According to union wit- nesses, Lyseski stated that Respondent was free to imple- ment its new plan without input from the Union ; that the Union could take it or leave it. The Respondent's new plan was never implemented. 1084 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On January 22 Amos wrote to Lyseski reiterating the necessity of renegotiating the terms of the Idle Day Work Scheduling Procedures, confirming the fact that they had discussed the subject the day before, and stating once again that by refusing to renegotiate the Idle Day Work Scheduling Procedures Agreement , Respondent was committing both an unfair labor practice and a breach of the labor agreement . No mention was made in this letter of Respondent's new idle work day scheduling plan which Lyseski had read to the union officials the day before. On January 31, 1988, the 1984 NBCWA expired. The 1988 NBCWA did not immediately become effective, however, since it still had to be ratified. Although the Union had requested bargaining on any new idle day work scheduling procedure to replace the one which had already been canceled, Respondent re- fused to bargain on grounds that the parties' rights were clearly defined by the new 1988 NBCWA. The Union, on February 2, therefore filed a grievance charging that Respondent violated the terms of the 1984 NBCWA by terminating the Idle Day Work Scheduling Procedures Agreement. The grievance, filed by Amos, requested, as remedy, Respondent's compliance with the cited agree- ment or a renegotiation of that agreement. On February 8 the 1988 NBCWA was ratified. Shortly thereafter, Respondent began to assign idle day work to its employees on a strictly mandatory basis without regard to the Idle Day Work Scheduling Procedures Agreement. Whereas, prior to the ratification of the 1988 NBCWA, volunteer lists had been utilized , thereafter no such lists were maintained and the system was totally devoid of any voluntary aspects. Under the new system, management posts a notice before the end of the Thursday day shift containing the names of those employees required to work that Satur- day. In conjunction with the newly implemented idle day work system, Respondent made certain other proce- dural changes. As of early February 1988 employees could be required to give 3 days' prior notice to Re- spondent in order to use any of their graduated vacation days and could also be required to work an unlimited number of consecutive Saturdays. Previously, under the Idle Day Work Scheduling Procedures Agreement, no employee was required to work more than three consec- utive Saturdays and employees were permitted to con- vert the first 5 graduated vacation days to personal or sick days without notice. The subject matter of these changes had been covered by the Idle Day Work Sched- uling Procedures Agreement. Meanwhile, the grievance was denied at the first and all intermediate steps and went to arbitration . The arbi- trator, on May 25, issued his decision denying the griev- ance. The arbitrator found that Respondent had properly terminated the Idle Day Work Scheduling Procedures Agreement in accordance with the provisions of the doc- ument itself, and that there was nothing in either the Idle Day Agreement or in the 1988 NBCWA which required Respondent to enter into a new local agreement or to re- negotiate the old one. The arbitrator noted that the in- stant grievance did not present the question whether the Union has proved a past practice and whether it conflict- 4 Cf Navajo Freight Lines, 254 NLRB 1272 (1981) ed with the national agreement . At the hearing, Re- spondent announced its willingness to have the undecid- ed questions arbitrated. Conclusions Historically, idle day work was performed on a strict- ly voluntary basis, a system resulting from labor-manage- ment bargaining. In 1984, management unilaterally changed the voluntary nature of idle day work to strictly mandatory work. However, the employees refused to comply with management's demands and Respondent failed in its attempt to force their compliance by means of a restraining order. As a result of a court order, the parties negotiated an agreement in January 1985 called Idle Day Work Scheduling Procedures . The parties were forced to negotiate this agreement because the 1984 NBCWA, when considered in light of past practice, was not sufficiently clear, on the issue, to be relied upon. Thus, the January 1985 Idle Day Agreement served as a supplement to the 1984 NBCWA. The parties lived by, relied upon, and worked by this January 1985 agreement successfully , primarily because whereas the national agreement did not afford an ade- quate answer as to whether assignments of idle day work should be mandatory or voluntary, the January 1985 Idle Day Work Scheduling Procedures agreement resolved the issue. When the mine changed hands in 1987 the new management determined that it could no longer work with the voluntary mandatory procedures agreed upon in 1985 and announced its intention to terminate that agree- ment, an action permitted under the terms of the agree- ment. When management terminated the Idle Day Work Scheduling Procedures Agreement it took the position that there was no requirement to renegotiate a new one inasmuch as the 1988 NBCWA would be its successor agreement. The Union, however, took the position that Respondent's refusal to renegotiate the Idle Day Agree- ment was an unfair labor practice. In my view, the 1988 NBCWA is the successor agree- ment to the 19849 NBCWA, both having been executed by the United Mine Workers of America, the Interna- tional, and the Bituminous Coal Operators' Association, Inc. The Idle Day Work Scheduling Procedures Agree- ment was a supplementary agreement between Quarto Mining Company and Local 1785 designed to afford the employees covered thereby some degree of independence as to acceptance or rejection of idle work time while guaranteeing Respondent a sufficient labor force to meet its requirements. Since neither the 1984 nor the 1988 NBCWA addresses the needs of the parties with respect to scheduling, Respondent was not free to terminate the Idle Day Work Scheduling Procedures Agreement with- out agreeing to negotiate as to what should take its place. Therefore, I find that although Respondent was free to terminate the 1985 Idle Work Agreement, it could not lawfully refuse to bargain over the matters covered by that agreement-namely, scheduling proce- dures. By doing so, it violated Section 8(a)(5) and (1).4 8 Idle day work provisions in the 1984 and 1988 NBCWA are identical. QUARTO MINING CO. 1085 The Deferral Issue In his decision,5 the arbitrator, in considering the facts before me herein, states that, in his opinion , no duty to renegotiate the Idle Day Agreement exists because no provisions in any contract so provides. I have found that the duty to negotiate is an obligation founded on statuto- ry rather than contractual rights. Under these circum- stances, I do not feel that deferral would be appropri- ate.6 On the basis of the foregoing findings of fact and on the entire record, I make the following CONCLUSIONS OF LAW 1. Respondent Quarto Mining Company is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The employees of Respondent described in the Na- tional Bituminous Coal Wage Agreement of 1988 consti- tute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 5 United Mine Workers of America. District 6, Local Union No. 1785 and Consolidation Coal Company, Powhatan No. 4 Coal Mine, Case 88-4-47- 905 (R Exh 2) 6 Navajo Freight, ibid. 4. Since at least 1971, Respondent has recognized the Union as the collective-bargaining representative of Re- spondent's unit employees at the No. 4 Powhatan Mine including under the 1984, 1988 , and previous National Bituminous Coal Wage Agreements. 5. By refusing to enter into collective-bargaining nego- tiations with the Union toward a successor agreement to the Idle Day Work Scheduling Procedures Agreement covering the employees in the appropriate unit at the No. 4 Powhatan Mine, Respondent has violated Section 8(a)(5) and (1) of the Act. 6. By unilaterally implementing a new mandatory idle day work scheduling policy and changing related poli- cies without affording the Union an opportunity to nego- tiate and bargain, Respondent has violated Section 8(a)(5) and (1) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, I shall recommend that Respondent be re- quired to cease and desist therefrom and, on request, bar- gain collectively with the Union . I shall also recommend that it take certain affirmative action necessary to effec- tuate the policies of the Act. [Recommended Order omitted from publication.]