Local No. 1373, Mine Workers

National Labor Relations Board - Board Decisions

Oct 31, 1970

186 N.L.R.B. 361 (N.L.R.B. 1970)

LOCAL NO. 1373, MINE WORKERS
Local No. 1373, District No. 30, United Mine Workers
of America ; Jake Bates, President , Charles O.
Webb, Vice President Thomas Armes, Recording
Secretary and Island Creek Coal Company. Case
9-CB-1598
October 31, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On May 25, 1970, Trial Examiner Ivar H. Peterson
issued his Decision in the above-entitled proceeding,
finding that Respondents had not engaged in the
unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel, the Charging Party,I
and the Respondents filed exceptions to the Trial
Examiner's Decision and supporting briefs. The
Charging Party filed a brief in reply to Respondents'
exceptions and 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
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Exam-
iner's Decision, the exceptions, the briefs, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
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 Trial Examiner, and hereby orders
that the complaint herein be, and it hereby is,
dismissed in its entirety.
I As the record, exceptions , and briefs in our opinion adequately
present the issues and the positions of the parties, the Charging Party's
request for oral argument is hereby denied
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
IvAR H. PETERSON, Trial Examiner: Upon a charge filed
on February 13, 1969, by Island Creek Coal Company,
herein called the Company, the General Counsel of the
National Labor Relations Board, by the Regional Director
for Region 9, on December 24, 1969, issued a complaint
against the Respondent Union and three of its officers,
186 NLRB No. 60
361
alleging that the Respondents had engaged in unfair labor
practices violative of Section 8(bX3) and 8(d) of the
National Labor Relations Act, as amended. Briefly stated,
the complaint as amended alleged that the Respondents
caused the employees of the Company to engage in several
strikes or work stoppages during the period between
February and September 1969 without resorting to the
grievance procedure set forth in the then current collective-
bargaining agreement for the settlement of the differences
which led to the work stoppages. In their answers, the
Respondents denied the commission of any unfair labor
practices.
Pursuant to notice, I heard the case in Pikeville,
Kentucky, on February 10 and 11, 1970. All parties were
represented by counsel and were afforded full opportunity
to participate in the hearing and to adduce relevant
evidence. Due to the unavailability of Respondent Webb,
who was hospitalized, arrangements were made at the
conclusion of the General Counsel's case to continue the
hearing until March 10. Prior to that date, however , counsel
for the Respondents advised the Trial Examiner and the
parties that the Respondents did not desire to present any
evidence. Thereupon, the record was closed. Briefs have
been received from counsel for all parties, which have been
considered.
Upon the entire record in the case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER INVOLVED
The Company, a Delaware corporation, is engaged in the
mining of bituminous coal at its Spurlock mine at Printer,
Kentucky, the only operation here involved. During the 12-
month period preceding issuance of the complaint, the
Company directly sold and shipped coal from its Spurlock
operation valued in excess of $50,000 to points outside the
State of Kentucky. I find that the Company is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 1373, affiliated with International Union, United
Mine Workers of America, is a labor organization within
the meaning of Section 2(5) of the Act. From June 1967 to
June 1969 Respondent Bates was president of Local 1373.
Respondent Webb was vice president of the local until June
1969 when he succeeded Bates as president . Respondent
Armes at all material times was the local's recording
secretary. Admittedly, they were agents of the local.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction and Issues
For the past several years the Company has been a
member of a multi-employer association of coal producers
which negotiates with International Union, United Mine
Workers of America, collective-bargaining agreements
covering the mine workers of the various employers. At the
times here material the Company's employees at the
Spurlock mine were covered by the National Coal Wage
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Agreement of 1968 . Local 1373, although not a signatory to
the agreement, represented the Company's employees
pursuant to the agreement as agent and affiliate of the
International Union , particularly in connection with local
grievances and problems arising under the contract.
District 30 , through its representatives , assists the local in
handling grievances and local disputes.
The 1968 agreement contained the following provisions
dealing with the settlement of disputes:
SETTLEMENT OF LOCAL AND DISTRICT
DISPUTES
Should differences arise between the Mine Workers
and the operators as to the meaning and application of
the provisions of this agreement, or should differences
arise about matters not specifically mentioned in this
agreement, or should any local trouble of any kind arise
at the mine, an earnest effort shall be made to settle
such differences immediately: (The parties will not be
represented by legal counsel at any of the steps below.)
1. Between the aggrieved party and the mine
management.
2. Through the management of the mine and the
mine committee.
3. Through District representatives of the United
Mine Workers of America and a commissioner
representative (where employed) of the coal company.
4. By a board consisting of four members, two of
whom shall be designated by the Mine Workers and two
by the operators. Neither the Mine Workers' represent-
atives on the board nor the operators' representatives on
the board shall be the same persons who participated in
steps (1), (2), or (3) of this procedure.
5. Should the board fail to agree the matter shall,
within twenty (20) days after decision by the board, be
referred to an umpire to be mutually agreed upon by the
operator or operators affected and by the duly
designated representatives of the United Mine Workers
of America, and the umpire so agreed upon shall
expeditiously and without delay decide said case. The
decision of the umpire shall be final. Expenses and
salary incident to the services of an umpire shall be paid
equally by the operator or operators affected and by the
Mine Workers.
A decision reached at any stage of the proceedings
above outlined shall be binding on both parties hereto
and shall not be subject to reopening by any other party
or branch of either association except by mutual
agreement.
The agreement does not contain a no-strike clause, but
provides:
MISCELLANEOUS
1. Any and all provisions in either the Appalachian
Joint Wage Agreement of June 19, 1941, or the National
Bituminous Coal Wage Agreement of April 11, 1945,
containing any "no strike" or "penalty" clause or
clauses or any clause denominated "Illegal Suspension
of Work" are hereby rescinded, cancelled, abrogated
and made null and void.
s s s
3. The United Mine Workers of America and the
operators agree and affirm that they will maintain the
integrity of this contract and that all disputes and
claims which are not settled by agreement shall be
settled by the machinery provided in the "Settlement of
Local and District Disputes" section of this agreement
unless national in character in which event the parties
shall settle such disputes by free collective bargaining as
heretofore practiced in the industry, it being the
purpose of this provision to provide for the settlement
of all such disputes and claims through the machinery
in this contract provided and by collective bargaining
without recourse to the courts.
The alleged unfair labor practices are related to several
work stoppages that occurred at the Company's Spurlock
mine between February and September 1969. The com-
plaint alleges that the Respondent caused the Company's
employees "to engage in strikes and work stoppages" over
differences relating to working conditions "without resort-
ing to the grievance procedure" set out above and thus
"acted in derogation of their contractual responsibilities,
engaged in acts and conduct abortive of the collective
bargaining processes which the Act was intended to
encourage and thereby refused" to meet and confer with
the Company over the differences "and unilaterally
modified the contract grievance provisions . . . without
complying with the notification and bargaining require-
ments" of Section 8(d) of the Act, thereby violating Section
8(b)(3).
B. The Work Stoppages
The first work stoppage covered by the complaint
occurred at about 9 p.m. the night of February 7, when the
preparation plant crew shut down the machinery and no
coal was processed during the remainder of that shift.
Workers underground completed the shift, apparently
because they did not learn of the stoppage. Thereafter, the
employees remained away from their jobs until February
17. The occasion for the stoppage was the decision of the
Company to process some coal from a contract operator,
not a signatory to the 1968 agreement. It appears that
during the 2 to 4 weeks prior to February 7 the Company
had met with the mine committee and advised it that the
Company planned to process some contract coal but
assured the members of the committee that no contract coal
would be processed until the operator became a signatory
to the 1968 agreement. According to Raymond Bradbury,
then manager of the Company's Elkhorn Division, which
includes the Spurlock mine, the contract operator signed
the 1968 agreement at about 6:30 p.m. on February 7, but
the record does not show what steps, if any, the Company
took to inform the members of the mine committee or the
employees generally of this fact.
Counsel for the General Counsel adduced no evidence as
to what, if any, action was taken by any officer of Local
1373 or mine committee member that may have contribut-
ed to the walkout of February 7. While the walkout was in
effect, Local 1373 held some three meetings to consider
whether the employees should return to work. Squire
Feltner, a representative of District 30, attended two of
them, and he was the only witness to testify concerning
LOCAL NO. 1373, MINE WORKERS
what transpired. According to Feltner, at the first meeting,
at which the three individual Respondents were present,
Respondent Webb (then vice president of Local 1373; he
became president in June 1969) spoke against the motion to
return to work. What position Respondents Bates and
Armes took is not revealed by the record. Since the
stoppage continued, I infer that the vote on the motion to
return to work did not carry. A few days after this meeting
Feltner met with Respondent Webb and Malcolm Johnson,
chairman of the mine committee, to discuss getting the men
back to work. It is Feltner's testimony that both of them
were opposed to returning. Thereafter, a third meeting was
held, with Vice President Tittler of the International in
attendance. After a motion to return to work, opposed by
Webb, was defeated, Tittler spoke urging that the mine be
returned to work immediately and that any grievances be
processed under the disputes clause of the collective-
bargaining agreement; Tittler threatened to pick up the
charter of Local 1373 and local suppliers if the mine were
not returned to work. Thereupon, the members voted to
return to work. As stated, the stoppage ended February 17.
On March 8, the officers and mine committee members
of Local 1373 signed a resolution reading as follows:
RESOLUTION
We, the members of Local Union 1373, District 30,
United Mine Workers of America, and the employees
of Island Creek Coal Company, hereby resolve that in
the future we will, in the event any grievance or
misunderstanding arises between our membership and
our employer, to (sic) resolve the misunderstanding or
dispute under the Settlement of Local and District
Dispute section of the National Bituminous Coal Wage
Agreement of 1968.
We further resolve that in the event such dispute or
misunderstanding shall arse that our officers, together
with the Mine Committee, will process those grievances
in accordance with the provisions contained in the
National Bituminous Coal Wage Agreement of 1968.
The next work stoppage occurred on the 8 a.m. or first
shift on April 21, and lasted 24 hours. Dester Hamilton, a
loading machine operator on the first shift, had bid on a job
as loading machine operator on the first shift but in a new
section then being opened up. Before the shift was to start
Hamilton asked the mine foreman (in the presence of
Superintendent Alvin Mace) whether he was to go to the
new section. The mine foreman replied that he was to go to
his regular section. Thereupon Hamilton and others put up
their lamps and left the property, and the first shift did not
work. Only a few employees on the succeeding two shifts
worked. Shortly after Hamilton left the property Superin-
tendent Mace asked John Mullins, a member of the mine
committee, why the men were not going to work. Mullins
replied that he did not know, and that he had talked to
Hamilton the preceding week and told him he should
continue to work and the committee would attempt to
arrange a meeting with management. On April 22, after the
stoppage ended, a meeting was held to consider Hamilton's
grievance. According to Mace, the difference involving
Hamilton "finally resolved itself by moving the section that
he was working on to this new portal."
363
On Monday, April 28, the third work stoppage occurred.
On this occasion the difference was over the reassignment
of the junior third shift loading machine operator, Adam
Arnett, to a general mine job, due to a reduction in the
number of crews on the third shift. The preceding Thursday
or Friday Johnson, chairman of the mine committee, spoke
to Superintendent Mace and stated he was afraid there
would be trouble if Arnett were not given the loading
machine job. Later, but before the stoppage, Arnett, in the
presence of Mullins, a member of the mine committee,
asked Mace to be put on the loading machine. Mace replied
that he felt the senior man was entitled to stay on the job.
When the stoppage occurred at the beginning of the third
shift on April 28, some of the miners on that shift continued
to work, apparently unaware of the stoppage. However,
none of the employees worked on the succeeding two shifts.
The stoppage lasted 24 hours and the mine was returned to
work beginning with the third shift on April 29.
The next work stoppage took place on August 18, over
the reassignment of three maintenance employees at the
tipple from the first to the third shift without the changes
being posted. The employees returned to work on August
20 and a meeting between the mine committee and
management, attended by Joe Davis, a representative of
District 30, was held that afternoon. The dispute was not
resolved and the employees again walked out on August 21.
They remained out for a week and returned so that a
further meeting could be held with the Company. Such a
meeting was held on September 3, without the dispute being
resolved. Stoney Barker, president of the Island Creek
Group, at the conclusion of the meeting stated he wished to
reconsider the matter and if the Company decided to
change the position taken by local management up to that
point he would inform Davis, District 30 representative, the
next morning. According to Bradbury, Respondent Webb
replied that he was not sure he could control the action of
the members of Local 1373. In fact, the walkout resumed
with the second shift that afternoon, and lasted until
September 22. On September 24 management officials met
with representatives of Local 1373 as well as representatives
of District 30 and a special representative of the
International. At that meeting, officers of Local 1373 and
members of its mine committee again signed the resolution
of March 8 agreeing to resolve local disputes in accordance
with the procedures provided in the 1968 agreement. In
October the dispute was resolved at the fourth step of the
grievance procedure.
C. Contentions and Conclusions
The General Counsel contends (a) that the Respondents
called and/or ratified the work stoppages and are therefore
legally accountable for them ; and (b) that by resorting to
the work stoppages the Respondents rejected the contractu-
ally agreed upon method for resolving disputes and thereby
unilaterally modified the disputes provisions of the
agreement without complying with the notice and bargain-
ing provisions of Section 8(d). The Respondents assert that,
since 1373 is not a signatory to the 1968 agreement , neither
the local nor its officers named as Respondents can be held
responsible . They further contend that the work stoppages
were not violative of Section 8(b)(3) and (d) of the Act.
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Viewing the work stoppages in their totality, rather than
as separate and unrelated incidents, I am persuaded that
the record as a whole warrants the finding, which I make,
that the stoppage may fairly be treated as the acts of Local
1373 as an organization and not as the spontaneous and
simultaneous actions of individual employees and members
of the Union. In the case of each stoppage Local 1373,
through some of its representatives, had had some
discussion with management about the issue which led to
the stoppage before it actually occurred. Also in each
instance representatives of Local 1373 met with manage-
ment about the conditions of employment which triggered
the stoppage after employees returned to work. While the
February 7 walkout was in effect the membership of the
local twice voted to support the walkout by rejecting
motions that the mine be returned to work, thus approving
the stoppage. The resolution adopted by the officers of the
Union on March 8 and reaffirmed on September 24 is
further evidence, when considered in the context of the
events which prompted such action, that responsibility for
the work stoppages rested with the Union. I find no merit in
the Respondents' contention that they are not responsible
because the local was not a signatory to the applicable
collective-bargaining agreement . It is clear - that under its
terms Local 1373 was made the agent of the International
in regard to local matters such as grievances and local
disputes. Upon the basis of the foregoing considerations, I
conclude that the Respondent Union is responsible for the
work stoppages. However, I am not convinced that the
record warrants finding that the three officers named in the
complaint are individually responsible.
With respect to whether the work stoppages were
violative of Section 8(b)(3), the theory of the complaint is
that the objective of the Respondent Union in causing the
work stoppages was unilaterally to modify the dispute
settlement provision of the contract and, since the Union
did not comply with the notice and bargaining require-
ments of Section 8(d), a refusal to bargain violation has
occurred: This contention does not withstand analysis. In
the first place, considering that the signatory parties to the
contract are the Company (through an association of coal
producing operators) and the International Union, Local
1373, although bound by the agreement as a subordinate
affiliate of the International, is not a proper party to
propose or initiate modifications in the collective-bargain-
ing agreement . Nor is there any evidence that the local
desired to substitute any new contractual provisions for
existing provisions, thus necessitating compliance with the
notice and other requirements of Section 8(d). Indeed,
counsel for the General Counsel appears to recognize that
the work stoppages were not intended to effect changes in
the contractual terms, for he states in his brief that the
stoppages "were not in support of demands made or to be
made at the bargaining table; rather they were in
derogation of an understanding already reached at the
bargaining table and memorialized in the Agreement."
Rather than seeking to change the terms of the agreement,
the Union by engaging in the work stoppages was
protesting action taken or proposed by the Company or
attempting to force the Company to agree with its position
on the particular dispute.
In essence , the General Counsel's position is that the
Respondent Union breached the agreement providing that
local differences should be handled through the ' dispute
settlement machinery of the contract, and that such breach
is a refusal to bargain. But it is now well settled that a strike
in violation of a no-strike clause is not per se a refusal to
bargain. Lumber and Sawmill Workers, Local No. 2647
(Cheney California Lumber Co.), 130 NLRB 235, 242, affd.
319 F.2d 375 (C.A. 9), relying upon NLRB. v. Insurance
Agents' International Unior, AFL-CIO, 361 U.S. 477. I am
unable to distinguish the instant case from Cheney, or the
more recent decisions of the Board in Iron Workers Local
Union No. 708, etc. (Clark Construction Co.), 169 NLRB No.
152, and Teamsters Local No. 741 (Los Angeles-Seattle
Motor Express, Inc.), 170 NLRB No. 13. The fact that in
each of the cited cases the work stoppages were limited to a
single incident whereas here there were several incidents
and stoppages, seems to me an immaterial factual
difference. Surely if it is not the function of the Board to act
..as an arbiter of the sort of economic weapons the parties
can use in seeking to gain acceptance of their bargaining
demands" (Insurance Agents, 361 U.S. at 497), neither
should the Board sit in judgment on the frequency of the
use of a particular weapon or the duration of its use. I
conclude, contrary to the position of the General Counsel,
that violation of the contractual provisions for the
resolution of local disputes is not to be equated with a
refusal to bargain and remedied by a Board order to cease
and desist. Accordingly, it will be recommended that the
complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Island Creek Coal Company is an employer within
the meaning of Section 2(2) of the Act and its operations
affect commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Respondent Union, Local 1373, District 30, United
Mine Workers of America, is a labor organization within
the meaning of Section 2(5) of the Act.
3. Respondent Union and Respondents Jake Bates,
Charles O. Webb, and Thomas Armes have not engaged in
unfair labor practices within the meaning of Section 8(b)(3)
of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, it is recommended that the complaint
be dismissed in its entirety.