Mine Workers Local 17

National Labor Relations Board - Board Decisions

Dec 19, 1994

315 N.L.R.B. 1052 (N.L.R.B. 1994)

1052
315 NLRB No. 127
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d Cir. 1951). We have carefully examined the record and find
no basis for reversing the findings.
2 Member Cohen agrees, albeit for different reasons, that there is
no 10(b) bar concerning the Respondent’s discrimination against
White. In this regard, Member Cohen notes that Respondent’s agent,
Atkins, told White, outside the 10(b) period, that he had to join the
Respondent in order to date his seniority from his time of hire.
Thereafter, but also outside the 10(b) period, White joined the Re-
spondent. However, within the 10(b) period, the Respondent refused
to accord White seniority from the time of his hire rather than from
his joining Respondent. Yet, the Respondent accorded such seniority
to a similarly situated employee. The difference between the two
was that White did not join the Respondent when he was initially
asked to do so, and the other employee did. This is, therefore, a case
where Respondent has subjected an employee (White) to new and
different discriminatory treatment within the 10(b) period. It is not
a case where the discriminatory treatment occurred outside the 10(b)
period and its effective consequences occurred within the 10(b) pe-
riod, thus making the charge untimely. See Postal Service Marina
Center, 271 NLRB 397, 399–400 (1984). Accordingly, White’s
charge was timely filed.
1 The caption was amended, sua sponte.
2 The hearing in this matter closed at the start of my preemptive
13-month resident assignment to the U.S. Department of Commerce.
3 The docket entries are as follows: The charges in Cases 9–CB–
7767 and 9–CB–7805 were filed on November 16 and December 26,
1990, respectively. The complaint and consolidated complaints here-
in, respectively issued on December 28, 1990, and February 7, 1991,
were amended at the hearing held on April 23 and 24 and October
27 and 28, 1992.
4 By Order, dated July 7, 1992, Case 9–CA–28151 against Joshua
Industries, Inc. (the Employer) was severed from Cases 9–CB–7767
and 9–CB–7805, considered here. My July 14, 1992 Decision in
Case 9–CA–28151, issued in connection therewith, granting the Gen-
eral Counsel’s Motion for Summary Judgment and finding that the
Employer had violated Sec. 8(a)(1) and (3) of the Act was affirmed
by the Board in its Order of August 20, 1992.
District 17, United Mine Workers of America and
Phillip Lee White. Cases 9–CB–7767 and 9–CB–
7805
December 19, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On April 28, 1994, Administrative Law Judge Rob-
ert M. Schwarzbart issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
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 brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
In so doing, we note that in its exceptions, the Re-
spondent also argues that the judge erred in failing to
find the charge untimely in light of his finding that
Charging Party Phillip White was or should have been
aware of his improper seniority date over 2 years be-
fore the filing of the unfair labor practice charge. We
find no merit in this exception. As noted by the Re-
spondent, Section 10(b) is tolled until there is either
actual or constructive notice of the alleged unfair labor
practice. Pinter Bros., 263 NLRB 723, 739 (1982). In
the present case, the judge found that White knew or
should have known of the seniority date assigned to
him by his employer from the posted seniority lists.
There is nothing on these seniority lists, however, to
put White on notice of the Respondent Union’s in-
volvement in determining his seniority date, and it was
not until August 1990, a date within the 10(b) period,
when White attempted to file a grievance with the Re-
spondent, that he learned that his seniority date re-
sulted from an agreement between the Employer and
the Respondent. Further, the statements made by Porter
on August 16, September 7, and November 7, 1990,
that White’s seniority with Joshua did not begin until
he became a member of the Union reaffirmed within
the 10(b) period the Respondent’s continued mainte-
nance of the unlawful agreement regarding seniority.
Accordingly, we find the limitations of Section 10(b)
inapplicable in these circumstances.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, District 17, United Mine
Workers of America, its officers, agents, successors,
and representatives, shall take the action set forth in
the Order.
David L. Ness, Esq., for the General Counsel.
Charles F. Donnelly, Esq., of Charleston, West Virginia, and
Bradley J. Pyles, Esq. (Crandall & Pyles), of Logan, West
Virginia, for Respondent District 17.
Mr. Phillip Lee White, of Peach Creek, West Virginia, ap-
pearing pro se.
Mr. Claude (Sam) Tiller, President, of Logan, West Virginia,
for the Party-in-Interest.1
DECISION
STATEMENT OF THE CASE
ROBERT M. SCHWARZBART, Administrative Law Judge.
This case was heard in Logan, West Virginia,2 on a consoli-
dated complaint issued pursuant to charges filed by Phillip
Lee White, an individual3 (White or the Charging Party). The
complaint alleges that District 17, United Mine Workers of
America (the Respondent Union or Respondent District) vio-
lated Section 8(b)(1)(A) and (2) of the National Labor Rela-
tions Act (the Act),4 by maintaining an oral agreement with
the Employer basing seniority upon duration of membership
1053MINE WORKERS LOCAL 17
5 Classified or bargaining unit employees were those working in
job classifications listed in appendix B to the National Bituminous
Coal Wage Agreement of 1988, infra.
6 At time of layoff, employees were expected to complete panel
forms listing the types of work they had performed or believed
themselves capable of doing, as incentive to recall.
7 Under contract art. XXIII, sec. a, the mine committee, consisting
of three to five actively employed employees elected by the employ-
ees at such mine, were authorized to adjust disputes arising under
the contract at steps 1 and 2. They had authority, on the grievant’s
behalf, to settle or withdraw any grievances, or to forward the griev-
ance to the District for step-three processing, possibly followed by
arbitration.
in the Respondent Union and by refusing for unlawful rea-
sons to arbitrate White’s grievance concerning his layoff.
The complaint further alleges that the Respondent Union vio-
lated Section 8(b)(1)(A) of the Act by informing White that
his aforesaid grievance lacked merit because his job seniority
dated back only to when he became a member of the Re-
spondent Union and by telling White that the Employer
could lay him off for that reason. The Respondent District
filed a timely answer to the complaint denying the commis-
sion of unfair labor practices.
I. JURISDICTION
The Employer, Joshua Industries, Inc., a corporation, dur-
ing the times material, was engaged in the mining of coal
in the vicinity of Logan County, West Virginia. During the
12-month period before issuance of the initial complaint, the
Employer, in the course and conduct of its business oper-
ations, shipped from its Logan County facilities goods and
materials valued in excess of $50,000 directly to W. P. Coal
Co., a nonretail West Virginia enterprise which, in turn, an-
nually sold and shipped products, goods, and materials val-
ued in excess of $50,000 from its West Virginia facilities di-
rectly to points outside the State of West Virginia. The Em-
ployer admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent District is a labor organization within the
meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
The Employer, Joshua Industries, Inc., as contract miner
for W. P. Coal Co., at peak, operated six coal mines em-
ploying 55 to 100 employees in Logan County, West Vir-
ginia. The Employer ceased doing business around January
28, 1991, and went into Chapter 7 bankruptcy proceedings.
The events relevant to this matter involve the Employer’s
mines numbered 32 and 4 where White, the Charging Party,
was successively employed. When active, these mines each
employed around 18 to 20 workers.
Prior to June 1985, when it and certain other mines were
taken over by CB&T Holding Company, #32 mine had been
owned by John Motton and Phil Nelson. With the arrival of
CB&T, Vernon Bender, who had been a section boss with
the predecessors, became mine superintendent principally re-
sponsible for operating #32 mine. Bender, who originally
owned a 10-percent interest in CB&T, also became a director
of that company. Although Bender resigned as director on
May 20, 1988, he continued as mine superintendent until
July of that year when Claude (Sam) Tiller Jr. assumed ac-
tive operation of that mine. Tiller, who had held a 39-percent
ownership interest in CB&T at the takeover, then became
sole owner.
The classified employees5 at the #32 mine, and later at #4
mine, at all relevant times, were covered by the National Bi-
tuminous Coal Wage Agreement of 1988 (the BCOA con-
tract or collective-bargaining agreement), between the Bitu-
minous Coal Operators’ Association, Inc. (BCOA), and the
United Mine Workers of America (UMWA). This contract
was administered for the UMWA in Logan County by its
District 17, Subdistrict 3, which, in turn, designated Local
5921 to oversee the contract at #32 mine and to process the
first two steps of the grievance procedure. All third-step pro-
cedures and arbitration were to be undertaken by the Re-
spondent District through its field representatives.
In provisions most relevant to this proceeding, the BCOA
contract, in effect, established two types of seniority—com-
pany seniority, based on the employee’s original date of hire
and mine seniority, dating to when the employee began work
at the mine where employed. Under contract article XVII, in
the event of layoff or work force realignment, mine, rather
than company, seniority prevailed and employees with the
most seniority at the mines where the layoffs or realignments
occurred who had the ability to perform the available work
would be the last to be laid-off and the first to be recalled
from the panels. Panels were listings of the names of laid off
employees and were used for recall.6 Company seniority was
applicable in determining employee eligibility for benefits
such as graduated vacations (art. XIV), first choice in deter-
mining vacation scheduling conflicts (art. XIII, sec. c), and
extent of sickness and accident benefits (art. XI).
Article XXIII of the BCOA contract, entitled Settlement of
Disputes, at section c, set forth a three-step grievance proce-
dure leading, at the fourth step, to possible arbitration. Strict
time controls were incorporated into every step of this
process. At the first step, the employee was required to make
his complaint to his immediate foreman, authorized to settle
the matter. The foreman was obliged to notify the employee
of his decision within 24 hours following the day when the
complaint was made. If no agreement was reached, under
step 2, the complaint had to be submitted on the BCOA–
UMWA standard grievance form and to be taken up by the
mine committee7 and mine management within 5 working
days of the foreman’s decision. Within the 5 working days
after the complaint reached them, the mine committee and
management were to complete the standard grievance form
and, if the complaint was not settled, the grievance was to
be referred to a representative of the UMWA district, des-
ignated by the Union, and an employer’s representative.
Within 7 working days after such referral of the grievance
to them, the district and employer’s representatives, neither
of whom to be eligible could have participated in the first
1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Sias had served as Local 5921 president for 17 years prior to his
retirement, while Adkins, employed by W. P. Coal Company for ap-
proximately 14 years as an electrician, had been in his local union
office for about 5 years at the time of the hearing.
two steps, were obliged to meet at step 3 to review and at-
tempt to resolve the grievance. Within 10 days after the step-
three grievance was referred to them, in the absence of
agreement, the grievance had to be referred by the represent-
atives of the district and employer to the appropriate district
arbitrator. The arbitrator’s hearing, in turn, was mandatorily
conducted not more than 15 days after referral of the griev-
ance. Most significantly, and consistent with the other time
frame, section d, entitled Ten Day Limitation and relating to
the initiation of grievances, was as follows:
Any grievance which is not filed by the aggrieved party
within ten (10) working days of the time when the Em-
ployee reasonably should have known it, shall be de-
nied as untimely and not processed further.
The contract also provided for union security (art. I).
Other contract provisions established hourly and daily pay
rates for the various job classifications (appendix A), prohib-
ited supervisors from performing classified work, except as
necessary for training and instructing classified employees
(art. I, sec. c) and provided for additional employee benefits,
including pensions and health insurance.
Roger Caldwell was the District 17 executive board mem-
ber and manager of its Subdistrict 3 office in Logan, West
Virginia. Harold Porter was a District 17 field representative
at the Subdistrict 3 office, who reported to Caldwell.
2. The alleged discrimination against Phillip Lee White
a. The parties’ positions
The General Counsel argues that the Respondent District
refused to take to arbitration White’s grievance concerning
his layoff because White who, while with Joshua Industries,
always had performed contract—classified or unit work had
been compelled over his objection to join the Union and to
come under the coverage of the collective-bargaining agree-
ment 7 years after he had become employed by the Em-
ployer. This layoff occurred in disregard of White’s seniority
as, perhaps, the classified employee with the longest continu-
ous company service. White had been reluctant to join the
Union because in his original salaried employee status, his
earnings greatly exceeded what he could realize from doing
the same work under the hourly contract rate. The General
Counsel asserts that the Respondent Union, because of
White’s reluctance, had treated him differently than other
employees, including other initially salaried employees also
brought into the Union but who had joined more willingly.
Accordingly, pursuant to an alleged oral agreement between
the Respondent District and Joshua Industries, White was ac-
corded company seniority only from when he became a
member of the Union, instead of from 7 years before, when
first employed by the Employer. This reduction in White’s
seniority, which also proceeded in violation of an agreement
between officers of the UMWA local union and the Em-
ployer intended to protect White’s seniority, resulted in his
layoff when others, who had not been employed as long,
continued to work. The General Counsel also asserts that
White, on several occasions, was unlawfully told by the Dis-
trict’s field representative that, because his seniority did not
begin until he became a union member, he was subject to
layoff.
The Respondent Union denies the asserted discriminatory
treatment and argues that White’s seniority had been deter-
mined by the Employer, with no input from the Union and
that, contrary to the General Counsel, District Field Rep-
resentative Harold Porter had taken virtually every available
measure, including extensive research and consultation, to
fairly represent White in processing his grievance. However,
the matter could not be successfully arbitrated or pursued be-
yond the third step because untimely filed. Both the Re-
spondent District and the Company contend that White
should have initiated the grievance within the above contrac-
tually specified 10 working day period, because he had or
should have had sufficient prior notice that his seniority was
in dispute. The Respondent District further denies that any
of its officials had expressed or effectuated a practice linking
White’s seniority to when he joined the Union or that there
had been any agreement known to the Respondent District
relating White’s seniority to date of hire when he was
brought into union membership. Finally, the Respondent Dis-
trict, asserting the autonomy of its local unions, denies that
any connection between District 17 and subordinate locals
was sufficient to warrant that it be bound by the testimony
of General Counsel’s witness, Jimmy Adkins, financial sec-
retary-treasurer of its Local 5921.
b. The General Counsel’s evidence
(1) The agreement concerning White’s seniority
On February 10, 1988, Sesco Sias and Jimmy Adkins, re-
spectively president and financial secretary-treasurer of Local
5921, UMWA,8 which then represented all of Joshua’s clas-
sified employees, met with Joshua’s then-mine superintend-
ent, Vernon Bender. Sias and Adkins presented a written
grievance that the Employer had violated the contract by not
establishing the electricians as classified employees covered
by the contract. As described by Adkins and Bender, Bender
agreed to put the salaried certified electricians who, as
charged, were doing classified work, in the Union but asked
that the electricians be allowed to keep their dates of hire as
their seniority dates. The union representatives replied that
they would have to go to the District to get everything ap-
proved. They promised to get back to Bender on this matter.
Two days later, Sias and Adkins brought to Bender a
typed settlement agreement, dated February 12, pursuant to
which the Company agreed to immediately place the elec-
tricians in the Union as classified employees covered by the
contract. To remedy the grievance, the Employer further
agreed that those employees’ seniority dates would be estab-
lished by their hire-in dates. Bender and Sias signed the set-
tlement. Adkins testified that, at that meeting, he also stated
that he knew that Bender had one other salaried man who
was doing classified work running a continuous miner but
who was not in the Union. When Bender asked if he was
referring to Phillip White, Adkins confirmed that he was.
Adkins asked whether Bender would be willing to tell White
to join the Union or whether he would have to file another
1055MINE WORKERS LOCAL 17
9 Adkins had learned of White’s status from his brother, Allen
Dean Adkins, then a mine committeeman employed with White at
the #32 mine.
grievance.9 Adkins and Bender agreed that Bender had re-
plied that there was no need to file a grievance. He asked
only that White be given his date of hire as his seniority date
as was done for the electricians. Sias and Adkins agreed to
this.
Adkins testified that 2 to 3 weeks after the Union’s Feb-
ruary 21 meeting, where the electricians had joined the
Union but which White did not attend, he went back to see
Bender. The latter assured Adkins that he had spoken to
White about joining the Union. Bender promised Adkins that
he would speak to White again and would get him to affili-
ate.
White, in turn, testified that when Bender told him that he
would have to join the Union, he asked why. Bender an-
swered that ‘‘they are making you join’’ and instructed him
to be at the Union’s next meeting. White asked if anyone
could take his job away and was reassured that he was the
oldest (longest serving) man on the property and, seniority-
wise, his job could not be taken away.
Adkins related that, in this period, White had approached
him at the W. P. Coal mine where Adkins was employed
asking why the Union was after him to join. Adkins ex-
plained that White was doing classified work and would have
to join the Union or be subject to a grievance filed by some-
one from the panel. White was told that he later might lose
his job and that he would have to decide what he was going
to do. Responding to White’s question about his seniority,
Adkins told him that Sias and he had agreed with Bender
that if White would join the Union, he would be given his
hire date as his seniority date.
According to Adkins, White thereafter first attended a
union meeting in April 1988, but did not start paying dues
until June of that year, when he also began to receive con-
tract benefits.
Bender explained that when CB&T assumed control of
Joshua, pursuant to an unwritten arrangement inherited from
the prior owners, the new owners continued to pay certain
employees, including White, salaries that were substantially
higher than the contract hourly rates. For example, working
the same 58-hour week averaged by White, an employee
doing comparably paid work at the base contract rate of
$16.32/hour would have earned between $52–56,000/year. In
comparison, White, working the same hours at salary and op-
erating the same equipment, had received $72,000/year.
White, in addition to salary, also earned a 25-cent, and later,
a 50-cent/ton, production tonnage bonus. While recognizing
that it would have been possible to save about $20,000 annu-
ally in White’s case alone by having placed him under the
contract from the start, Bender testified that he had not done
so because he worked mines on a production basis and want-
ed tonnage. Because White and other salaried employees
were not under the contract, Bender could work them longer
hours than the prescribed basic 8-hour day, establishing five
10-hour and one 8-hour weekly work shifts without discus-
sion. Bender also worked White during many Sundays.
Often, only Bender and White were at work on Sundays.
While the contract prohibited supervisors from performing
classified work, Bender admitted that he had violated that
provision as well as the contractual union-security and wage
provisos. Bender further explained that he also had paid the
salaried people more than they otherwise would have earned
because it was advantageous for him to have employees he
could call in to work during emergencies, when union em-
ployees would not be available.
Bender related that White’s more costly salary had been
paid for by the Company’s benefit and not because White
had had any special authority or function. White’s continuous
miner operator position always had been classified under the
contract. White, for his part, had found the higher salary to
be beneficial even though he had put in more worktime than
otherwise and had received none of the contract benefits ex-
cept vacations. As a result, White had to be compelled to
join the Union 7 years after starting as a salaried employee,
and did so only after being reassured by the Company and
local union representatives that his job would be protected by
preserved retroactive seniority.
Although White had worked many weekends, had fre-
quently checked to see if Saturday work was posted, and reg-
ularly had seen mine permits and other data affixed to the
#32 mine bulletin board, he denied that he ever saw a posted
seniority list either at #32 mine during the years he had
worked there, or at #4 mine where he and others were trans-
ferred after #32 mine was closed. Bender confirmed that dur-
ing his tenure, which ended in July 1988, seniority lists had
not been posted but kept in company office desk drawers.
(2) White’s layoff from the #4 mine
The record shows that Phillip White’s mine seniority date
at the #4 mine was recorded as March 23, 1990, when he
began to work at that facility after a brief layoff following
the end of his years-long assignment at #32 mine. The #32
mine ceased being operational on January 28, 1990. White
was one of the last to leave #32 mine, having been involved
in the ‘‘pillaring out’’ operation, a method for maximizing
coal extraction from mines being closed by continuing to
mine during a gradual retreat towards the exit. During this
process, the equipment and support structures are gradually
removed.
Jimmy Adkins, without contradiction, described a February
20, 1990 third-step meeting he had attended concerning a
grievance filed by Johnny Williams, an employee and mine
committeeman at #32 mine. This grievance, in relevant part,
protested that the Company, in violation of the contract, had
not been laying off employees from #32 mine according to
seniority. The meeting, held at the offices of Logan Hydrau-
lics, Logan, West Virginia, another company wholly owned
by Joshua’s proprietor, Sam Tiller, also was attended by Till-
er; Tim Taylor, Joshua’s office and business manager; Har-
old Porter, the Respondent District 17 field representative;
the grievant, Williams; Williams’ comine committeeman at
#32 mine, Allen Adkins, who also was Jimmy Adkins’ broth-
er; and by four–five employees who had been laid off at #32
mine. Jimmy Adkins related that, to resolve this grievance,
the Company agreed that it would fill the available jobs at
#4 mine, then opening, with the employees still left at #32
mine. Once at #4 mine, the employees would regain their
mine seniority retroactive to the first day of #4 mine’s oper-
ation. When one employee asked what would happen in the
event of layoff, since they all would have the same mine se-
niority at #4 mine, Porter responded that, if there was a lay-
1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Jimmy Adkins had had no official status at the February 1990
third-step meeting because the employees, in transferring to #4 mine,
had gone into a different UMWA local. Nonetheless, he was re-
quested to attend by the affected employees whom he and Sias for-
merly had represented.
11 Art. XVII, sec. k, concerning transfer to other mines of the same
employer, provided, in relevant part, that when there was mine clo-
sure or a reduction in force, employees who requested that their
names be placed on the panel of that mine would be transferred to
the mine where work was available in accordance with their position
on the former mine’s panel list, but their seniority at the mine to
which they were being transferred would not begin until the date
they actually started work at the new mine. However, an exception
to that seniority rule at the new mine was germane to White in that
employees who were required to remain at the mine that was being
abandoned to assist in the closing or dismantling work, would have
the right to transfer later with seniority retroactive to the date when
they would have been transferred had they not been required to re-
main at the discontinued mine. Because White had been assigned to
assist in ‘‘pillaring out’’ #32 mine, under the contract, he was enti-
tled to an earlier mine seniority date at #4 mine.
12 Allen Adkins, previously identified as Jimmy Adkins’ brother,
worked for Joshua from January 1986 to June 15, 1990, when he
left because of an injury. During that period, he worked successively
at mines #32 and #4, serving as a member of the mine committees
at both mines, and on the safety committee at #32 mine. Allen
Adkins was obliged to relinquish his place on the #4 mine commit-
tee in July 1990 because no longer employed.
13 Under art. XVII, sec. c, of the BCOA contract, the Company
was required to meet with the local mine committee 24 hours before
implementing layoffs. Although Allen Adkins no longer was a mem-
ber of the mine committee, he had been asked to attend the August
10 meeting by mine committeeman, Johnny Williams.
14 Boling, originally hired on July 1, 1985, as a salaried outside
man by his brother-in-law, Bender, was brought into the Union to-
gether with James K. Castle, another salaried outside man, by an
April 4, 1989 settlement agreement signed by Tiller and Local 5921
president, Sias. This agreement, which resolved a grievance, pro-
vided that the seniority dates of Boling and Castle ‘‘shall be estab-
lished by their hire-in dates (07–1–85 and 6–15–85, respectively),
and that all future hiring of classified employees will be conducted
according to the terms of the 1988 National Bituminous Wage
Agreement.’’ Outside men performed classified work that did not re-
quire that they enter the mines. As a result of this agreement,
Boling, with a protected 1985 seniority date, continued to work at
#4 mine after White, with a 1981 original date of hire, was laid off.
By the time of White’s August 1990 layoff, Castle, also a subject
of the April 1989 settlement agreement, no longer was employed.
15 Shortly before the hearing in this matter opened, Allen Adkins
had taken actions critical of Porter for reasons unrelated to Phillip
White. On March 5, 1992, Adkins had sponsored a letter, also
signed by other laid-off Joshua employees, denouncing the way Por-
ter and other union officials had handled a filed grievance protesting
that company supervisors were ‘‘running coal’’ after employees had
been let go, and by the employees’ premature loss of insurance cov-
erage. Also, on March 13, a week later, Allen Adkins had written
a letter of complaint about Porter to Roger Caldwell, Porter’s supe-
rior at the Respondent Union.
off, ‘‘it would go back to company seniority.’’10 In settling
Williams’ grievance, the Company agreed to cooperate fully
with the joint panel custodian (the local union’s recording
secretary) in regard to all provisions of the 1988 collective-
bargaining agreement and also agreed to comply with article
XVII, section k, of the contract.11
Allen D. Adkins,12 testified that 1 or 2 days before
White’s August 12, 1990 layoff, he was present at a meeting
in Tiller’s Logan Hydraulics office called to discuss impend-
ing layoffs.13 That session also was attended by Tiller, Mine
Superintendent Harold Robertson, District 17 Field Rep-
resentative Harold Porter, and the mine committee. At that
meeting, Robertson announced that #4 mine employees Wal-
ter Marcum Jr., and Dave Farley were going to be laid off
and that Phillip White would be included in the layoff be-
cause of his seniority date. Adkins asked why they were
going to lay off Phillip White and not lay off John Boling.14
The company representatives replied that they were going to
let Boling keep his hire-in date with the Company as his
union date, but that they were not going to let White do so
because Phillip had been made to ‘‘come and join the Union
and John Boling done it voluntarily.’’ According to Allen
Adkins, the Company was going to use the date that White
had joined the Union as his seniority date instead of the date
when he had begun to work for the Company. Porter agreed
to this, also noting that White had been made to join the
Union while Boling had ‘‘come down voluntarily.’’ Adkins
retorted that he did not feel it right that they had kept John
Boling when his hire date was ’85 and Phillip’s was some-
time back in the early ’80s. White should have been ‘‘older
(had greater seniority).’’ When the company representatives
asked what they would have to do to lay off White, he told
them that if they were going to let White go by the day he
joined the Union instead of his hire-in date, they would have
to lay off everyone younger than him to get to him. Robert-
son replied that they would lay off anyone they had to to get
to White. However, by the time Robertson had made this last
statement, Porter already had left the meeting.
Allen Adkins related that he again spoke to Porter in the
change room in the trailer near the company office at #4
mine only minutes before the August 12 layoffs were an-
nounced. Adkins told Porter that he thought it was awfully
dirty of him to let the Company lay off Phillip White when
he was the oldest man with the Company, while keeping
John Boling who, in Adkins’ view, was real close to being
the youngest man, Porter answered that Phillip had been
made to join the Union and Boling had joined voluntarily.
Adkins responded that it did not make any difference wheth-
er White had been made to join the Union, or not; both men
had joined under the electricians agreement. Porter replied
that he didn’t care; that was the way it was going to be.15
The Company’s parts purchaser, Sam Belcher, then came out
of the office and announced that White, Farley, and Marcum
were being laid off. Boling, then employed as a roof bolter
operator, as noted, was not laid off. White’s written layoff
notice set forth that the action had been taken for economic
reasons.
In accordance with regular procedures, White, when noti-
fied of his layoff, completed for recall purposes a standard-
ized panel form listing his previous mining experience with
other employers and showing 14 job classifications, including
roof bolter operator (Boling’s classification at the time), and
roof bolter helper. In so doing, White indicated that he had
the ability to perform these jobs and wished to be recalled
to any of them.
1057MINE WORKERS LOCAL 17
16 Billy White, long active in the Union, had worked for Joshua
from about 1984 until 1987, when he became employed by a dif-
ferent employer. He left the coal industry in 1989 because of an in-
jury.
17 Phillip White, who had met Porter for the first time on August
16, did not confirm Billy White’s testimony that they had gone to
Hall’s office because Phillip White did not trust Porter.
18 Phillip White conceded on cross-examination that when he pre-
sented the typed account to Porter, Bender had not yet signed it.
19 Since White, by the time of the September 7 meeting, was a
member of Local 9553, UMWA, Adkins, who had remained an offi-
cer of sister Local 5921, was at that session at White’s request as
a friend rather than in his official representative capacity. Allen
Adkins, unlike his brother, Jimmy Adkins, did not become sub-
stantively involved with White’s grievance. Billy White did not at-
tend the September 7 meeting.
(3) The grievance concerning White’s layoff
Phillip White and his brother, Billy Edward White,16 testi-
fied that on August 16 they went together to the District 17,
Subdistrict 3, office in Logan to file Phillip White’s griev-
ance regarding his layoff. When the brothers arrived at the
union hall, they immediately went to Field Representative
Harold Porter’s office. Acting as spokesman, Billy White
told Porter that ‘‘they’’ were doing Phillip White wrong by
laying him off when he was supposed to be the oldest man
there and that they needed to talk to somebody about a griev-
ance. Porter asked Phillip White when he had joined the
Union. Phillip White replied that he thought it had been in
June 1988. Porter told him that his seniority would count
from the time he joined the Union and started paying union
dues. Porter told Phillip White that if he thought he had a
case, he should file a grievance. Phillip White could not re-
call whether Porter had handed him blank grievance forms
at the time.
The White brothers then went to the office of Field Rep-
resentative Bill Hall who filled out the grievance form for
Phillip White on the basis of what White told him.17 The
grievance text was as follows:
In a realinement [sic], I was laid off and I had mine
seniority at the mine, and for that reason I feel that I
have been done wrong and for that reason I feel that
I should be put back to work with all back pay and
benefits I lost under the 1988 National Bituminous Coal
Wage Agreement. [Emphasis added.]
After filing his grievance, White called Jimmy Adkins,
telling him that he had been laid off, having been given a
June 1988 seniority date from when he had joined the Union.
White told Adkins that he had explained to the Company that
he was supposed to have had the same arrangement as the
electricians—to keep his date of hire as his seniority date.
However, the Company had not been able to find written
corroboration of such an understanding and the June 1988
date was what they had had to go by in laying him off.
White, according to Adkins, then asked if Adkins remem-
bered what had happened during the meeting between him-
self, Sias, and Bender when the grievance settlement con-
cerning the electricians was reached. When Adkins said that
he did, White asked Adkins to put an account of that meet-
ing in writing so that he could get back his seniority.
Accordingly, Jimmy Adkins had typed a description of
that meeting with Bender and Adkins signed it on August 20,
1990. This account spelled out the details of the February
1988 meetings with Bender, as described above, where the
grievance concerning the electricians had been resolved;
where it had been orally agreed that White would join the
local union; and where, at Bender’s request, the local union
also had concurred that White be given the same rights to
his seniority as had the electricians. While Adkins’ prepared
account also was signed by Bender sometime before the start
of the hearing in this matter, it is not clear just when Bender
actually did sign that document. I find that Bender had not
signed the document when it later was shown to Porter in
support of White’s layoff grievance. See, infra.
Phillip White testified that he next met with Porter on
about September 5, 1990, when he and Billy White returned
to the union hall. In Porter’s office, Phillip White told him
that he had a letter concerning his seniority at Joshua. Porter
read the typed account and declared that it was not true;
White’s name was not with the electricians. White replied
that it was true because Bender and Adkins had signed their
names to it.18 Porter then picked up the grievance and told
Phillip White that he thought it had been written wrong in
that he had written ‘‘at the mine’’ on it and that White need-
ed to file a new grievance. White refused, insisting that the
grievance had been written ‘‘right.’’ Porter then called Tiller
and announced that they had to hold a meeting concerning
White’s grievance. The White brothers then left.
Billy White recalled only that shortly before the start of
the September 7, 1990 third-step meeting on his brother’s
grievance, he had accompanied his brother to the Subdistrict
3 office where Porter, after reading the account, stated that
Phillip White’s time with Joshua Coal Company did not start
until he joined the Union.
(4) The third-step grievance meeting
Combining, in part, the testimony of Phillip White and
Jimmy Adkins,19 on September 7, 1990, both men attended
the third-step meeting concerning White’s grievance in
Tiller’s office at Logan Hydraulics. Also present were Tiller
and Taylor for the Company and Porter for the Respondent
District. At the outset, Porter announced that they were there
on the last step of Phillip White’s grievance, which Porter
produced from his briefcase and read aloud. Porter then
asked White to explain what he was asking for in his griev-
ance. White replied that he thought that he had been
wronged in that he had not been given his rightful seniority
date and had been laid off. He was asking that his job be
given back to him. At Porter’s invitation to state the Compa-
ny’s side, Tiller, in effect, declared that the Company had
had nothing in writing showing that White had been given
the same seniority agreement as were the electricians and the
only thing that Tiller had to go by was when White had
started to pay dues at the time he joined the Union. Taylor
then showed Porter a copy of the relevant monthly dues list
indicating the employees who paid monthly dues. After look-
ing at this list, Porter asked White when he had joined the
Union. White responded that he had joined the Union and
was supposed to have gotten the same agreement as the elec-
tricians. Accordingly, he should have been allowed to keep
1058 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 After initially testifying to the contrary, White, on cross-exam-
ination, agreed with the other witnesses to the September 7 meeting
that the signed account of the February 1988 sessions between
Jimmy Adkins, Sias, and Bender was not produced or discussed on
that occasion.
21 The screening committee consisted of the District 17 executive
board members who, respectively, directed the District’s four subdis-
trict offices in West Virginia. Highly experienced in arbitration,
these senior union officials, sitting as a panel, would hear arguments
for each side of cases potentially marked for arbitration, presented
by the responsible field representatives, and would make nonbinding
recommendations as to whether the discussed cases should be arbi-
trated. Drawing on their backgrounds, the screening committee also
could suggest to the field representatives research precedents, mate-
rials, and procedural approaches. The UMWA found the screening
committees to be particularly useful in avoiding costly rearbitration
of issues that had not been successfully arbitrated elsewhere in the
past. Although screening committee recommendations as to
arbitrability were described as ‘‘non-binding,’’ since all of the Re-
spondent’s District’s field representatives worked for one or another
of the committee members, it is hard to envision nonacceptance.
his hire-in date as his seniority date.20 When Porter asked
why White had not joined the Union when the electricians
did, Adkins answered at White’s request. Adkins stated that,
in order to get White to join the Union, he had had to go
back to Bender a second time to check whether he had told
White about their agreement, and that White thereafter had
joined. Adkins also explained how it had come about that
White was given the same agreement as had the electricians.
When he and Sias had gotten Bender to sign the agreement
concerning the electricians, they also had spoken to him
about White. All had agreed to give White his hire-in date
as his seniority date, as they had done for the electricians.
Porter responded that he had sat in on most of the negotia-
tions concerning the electricians and the people who were
not classified, but never had seen White’s name on any doc-
ument that would have allowed him to keep his date of hire
as his seniority date. Adkins explained that White’s name
had not been put in any written agreement concerning senior-
ity, including those relating to the electricians and Boling,
because it was not necessary; Bender had agreed to put
White into the Union with no need to file a grievance. By
contrast, the statuses of the electricians, Boling, and Castle,
were resolved only after written grievances were filed.
As White recalled the September 7 meeting, Tiller had
asked if White’s name was with the electricians. When Por-
ter said no, Tiller declared that White did not have a leg to
stand on. It was then that Adkins had interjected that the rea-
son why White’s name was not with the electricians was that
the Union had not had to file a grievance about White to get
him to join the Union. Taylor then declared that he could re-
member a time when Phillip White had said, while he and
Bender were in the office, that no one could make him join
the Union. Porter declared that White’s seniority should be
from the date he joined the Union. When Porter asked Tiller
for the seniority list, it was produced and examined. Tiller
told Porter that White’s seniority would be as of 1988 be-
cause that was when he had joined the Union. Porter replied
that they would have to take this to the next step. The meet-
ing, which had lasted for about 25 minutes, then ended.
After the meeting, Adkins and White spoke briefly with
Porter. Adkins testified that he asked Porter not to withdraw
the grievance. Porter said that he would take it back to the
screening committee21 which would decide if the case had
enough merit to go to arbitration. White, in turn, asked if
Roy Blankenship, another field representative, still was han-
dling his case. Porter replied that Blankenship probably was
tied up at the office. The grievance would go over there and,
if Porter’s boss (District 17 Executive Committee Member
Roger Caldwell) saw fit, it would be arbitrated. White testi-
fied that Porter did not then state his feelings about the case,
whether he saw any problems, or announce that the griev-
ance would not be further processed.
(5) The refusal to arbitrate White’s grievance
Billy White testified that, although he had not met Roger
Caldwell, he called Caldwell on the morning of Wednesday,
November 7, 1990, asking when his brother’s grievance was
going to be arbitrated. Caldwell, according to White, replied
that that hearing was going to be on Friday. Billy White then
called Phillip White and told him that they had to go to the
hall to find out what time they were going to arbitrate the
grievance so that Phillip White could be there. When the
brothers arrived at the hall, they immediately went to see
Caldwell who referred them to Porter. Accordingly, they pro-
ceeded to Porter’s office. When Billy White asked when his
brother’s grievance would be arbitrated, Porter replied that
the Union was not going to arbitrate it. Asked why, Porter
replied that it was because White did not have sufficient evi-
dence, that White’s time did not start until he had joined the
Union, and that he had not joined the Union in the time re-
quired under the 1988 agreement. Porter informed them that
he had written a letter to Phillip White stating that the Union
was not going to arbitrate his case and that he could get a
copy from the lady downstairs. The White brothers then ob-
tained a copy of the letter and left. This letter, dated Novem-
ber 7, in relevant part, was as follows:
The grievance has been carefully investigated and
considered. It appears that there is insufficient evidence
of a violation. Therefore, the grievance will not be
processed further.
Billy White testified that 3–4 days after the November 7
conversation with Porter, he encountered Porter in the park-
ing lot of a Logan hardware store. Billy White again asked
why Porter was not going to arbitrate Phillip White’s case.
He was the oldest man up there and it wasn’t right. After
Porter responded that Phillip White had not joined the Union
until 1988, Billy White responded that even if he had not
joined, if he had been dragged, Phillip White still had as
many rights as anyone else in the Union and that Billy White
thought that the Union should arbitrate his case. Billy White
noted that ‘‘they’’ had kept John Boling who had joined the
Union after Phillip, and that Phillip White had come to the
mines before 8 or 10 guys who had been left ‘‘up there (left
on the job).’’ Phillip White had mine seniority and company
seniority both, plus union seniority over some of them. Por-
ter reiterated that the Union was not going to arbitrate Phillip
White’s case; they could not win it.
1059MINE WORKERS LOCAL 17
22 Porter testified that he had called White before the September
7 meeting, telling White that evidence would be needed at the third-
step meeting to substantiate White’s position. Accordingly, Porter
had advised in advance that White bring in all his witnesses, sup-
porting documents—anything in his possession that might be helpful
to his case.
c. The Respondent District’s evidence
The Respondent Union, with some corroboration from the
Company, has broadly disputed the General Counsel’s factual
presentation.
(1) Porter’s testimony
Field Representative Porter denied having participated in
either of the two August 1990 conversations described by
Allen Adkins, and he and Company President Tiller both de-
nied having heard or agreed with the statement attributed to
Mine Superintendent Robertson to the effect that ‘‘we’ll do
whatever we have to to get to Phillip White.’’ Porter con-
curred with Tiller’s testimony that the Union had had no
input concerning Tiller’s decision to institute the layoff and
that there had been no prior discussions between Tiller and
anyone from District 17, including Porter, concerning White
before White filed his grievance.
Porter testified that he first met Phillip White when he
came to Porter’s office in August 1990 to file his grievance.
Prior to that, he had not heard of Phillip White, although he
had known Billy White as a mine committeeman at another
mine. Billy White had entered Porter’s office with Phillip
White and told Porter that he was there to introduce his
brother and to see what the Union could do. He announced
that the Company had done Phillip White wrong. Porter re-
plied that if they felt that the Company had done Phillip
White wrong, they should file a grievance as soon as pos-
sible and not fool around on the time so that the Union could
get it processed and heard. While Phillip White tried to tell
Porter that he ‘‘had been laid off wrong,’’ Porter could not
then judge the merits of the complaint. He simply handed
Phillip White a blank standardized grievance form.
Since, as noted, under the established procedures, all
grievances were processed through the first two steps at the
local union level with the assistance of local officials, Porter
did not encounter White’s grievance until it came to him at
the third step. Porter and Phillip White then discussed the
matter. Porter noted confusion in that, while White was tell-
ing him that he should have his seniority from 1980, his
grievance was so written as to limit his request to more re-
cent mine seniority. Porter, therefore, suggested that White
rewrite the grievance to show that his claim was not for mine
seniority but for company seniority going back to his date of
hire. He merely had advised that White amend the grievance
to more clearly specify his request. This was because, in Por-
ter’s experience, arbitrators permitted only the issues as
framed in the grievance to be arbitrated and refused to go
in other directions. Phillip White declined to modify his
grievance. Porter denied that at any time before the step-
three meeting concerning White’s grievance, did either Phil-
lip or Billy White say anything to him to the effect that the
Company had agreed to let Phillip White keep his hire-in
date as his seniority date, or about the relative seniority of
Phillip White and John Boling. Following the above discus-
sion, Porter called the Company’s business manager, Tim
Taylor, and scheduled a third-step meeting with the Com-
pany on the grievance.
Porter testified that at the September 7 third-step meeting,
with the above-identified persons present, he read the griev-
ance aloud and invited Phillip White to state his complaint.
White declared that he felt that he had been done wrong by
the Company in that his seniority, as had been the case with
the electricians, should go back to 1979 or 1980, when he
first began to work for the Company. Tiller then told White
that he had been hired as a salaried employee and had con-
tinued as such until June 1988 when he had become a classi-
fied employee working under the terms of the contract. Tiller
declared that the grievance was untimely filed, very un-
timely, and that the Company did not want to further process
the grievance because of the 10-day limitations bar in the
collective-bargaining agreement, cited above, which provided
that any grievance which was not filed by an aggrieved party
within 10 working days of the time when the employee rea-
sonably should have known it, shall be denied as untimely.
Tiller told White that he had known that his seniority stand-
ing with the Company was as of July 1988. The seniority list
reflecting this had been posted on the bulletin board at #32
mine and White never had complained about what was
shown. When, later, White was transferred to #4 mine, the
seniority list showing his attributed seniority date also had
been posted on the bulletin board. Again, White never had
objected to the seniority date shown or filed a grievance to
have it changed. At the third-step meeting, White did not
deny or seek to rebut his seniority standing as shown on
those lists.
Porter averred that after raising the timeliness issue, the
Company, at his demand, produced the two lists showing the
employees’ seniority dates. The lists presented were dated
July 29, 1988, and June 19, 1990, and, assertedly, had been
posted, respectively, at mines #32 and #4. The latter had
been put up after the employees were moved there from #32
mine. After this, the union side, including White, caucused
and discussed why no timely grievance had been filed to pro-
test Phillip White’s standing on the posted seniority lists and
White’s failure to produce any witnesses to support his
claim.22 Porter explained the seriousness of having allowed
these lists to have been posted all that time without protest
of any kind. He pointed out that the Company, in fact, had
been transferring and assigning employees from one mine to
another in accordance with these lists, that there was a seri-
ous problem with the timeliness of the case, and that there
also were serious doubts as to the merits of his grievance as
written. Jimmy Adkins asked only if Porter, rather than drop-
ping the case, would take it up to the screening committee.
Porter answered that he would do so as a courtesy to Adkins
and that he would further investigate the grievance. When
they returned to the meeting, Porter told the company rep-
resentatives that the Union had a problem. He requested and
received waiver of the contractual requirement that griev-
ances, after third-step action, be referred to arbitration within
10 days, because of the amount of research he would have
to do. Also, screening committee action would take more
than 10 days.
Porter averred that after he had shown White and Adkins
the two seniority lists produced by the Company, neither
man stated that the Company had agreed to allow White to
keep his original hire date as his seniority date. That point
1060 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 Phillip White, on rebuttal, denied having met separately with
Porter during or before the step-three grievance meeting. Phillip
White emphasized that no one at the step-three meeting, including
Porter, ever had told White that his grievance had not been filed on
time, and that he first had seen the assertedly posted seniority lists
for mines #32 and #4 when they were shown to him at the hearing
in this matter.
24 Sias confirmed Porter, testifying that White had not been men-
tioned or made the subject of any agreement when he, Adkins, and
Bender had worked out the terms under which the electricians would
be brought into the Union. Porter had been aware of and not ob-
jected to the agreement signed by Sias and Bender that the pre-
viously salaried electricians would keep their hire-in dates as their
company seniority dates, but testified that he had not been a party
to that accord and had not directed Sias.
was not made by anyone else at the meeting. The seniority
lists were the only documents produced at the session and,
contrary to Jimmy Adkins, no dues report was presented.
Porter testified that there was no discussion at the September
7 meeting concerning when White had become a union mem-
ber; that point not being an issue in the grievance. When the
lists were produced, he had told White, here are the lists,
what do you have to say about them? White merely had
shrugged. He did not deny having previously seen the lists.23
After the September 7 meeting, Porter did extensive re-
search on White’s grievance. He spoke to the Union’s con-
tract administration department in Washington, DC, con-
sulted with his supervisor and other field representatives, and
went through the entire computerized indexing system on
grievances, principally to determine whether there was any
way around the 10 working day limitation period for the
timely filing of grievances. According to Porter, it was un-
disputed at the step-three meeting that the seniority lists had
been posted on the respective mines’ bulletin boards and the
issue confronting him was how to evade the time frame. In
this regard, Porter related that, since the contract language in-
corporated all prior decisions of the arbitration review board
and field decisions, even those arising under earlier contracts,
he had reviewed those, too. In his continuing effort to get
around the 10-day rule, he narrowed several thousand arbitra-
tion decisions on the computer to about 25. As examples of
this research, Porter identified two arbitration decisions
which were made part of the record of this proceeding. How-
ever, Porter could find no exception for Phillip White.
Even after doing the above-described research, including
consultation with colleagues and submission to the screening
committee, which had advised against arbitration, Porter still
needed to talk to Phillip White. On an unrecalled date some-
time between the September 7 meeting and the November 7
letter, advising White that his grievance would not be arbi-
trated, Porter called White, telling him that he was inves-
tigating his case and that he needed to know how the Com-
pany had treated White since he had been employed there.
He asked if White’s pay stubs would show that the Company
had withheld any union dues on him and if his wage rates
and benefits were in accordance with the contract. Porter also
asked for any reports that White might have from the health
and retirement funds that would show credited times for
those benefits. White replied that he had been hired as a sal-
aried employee and paid a base salary, that he had not paid
any union dues, and that his pay stubs, in effect, would not
yield any helpful information. Porter testified even though
White should have been able, at that time, to have provided
evidence of dues paid since at least June 1988, if White had
such information, he did not give it to Porter.
Porter recalled that at some time after the September 7
meeting, Phillip White and Billy White first brought to his
office the aforesaid account of the February 1988 meetings
describing how the electricians and White had been into the
Union. He told the White brothers that he would check into
that document as part of his investigation. Accordingly, Por-
ter thereafter contacted Local Union President Sias, who told
him that he had not made or known of any such agreement
concerning White.24 Since the document signed by Adkins
and Bender was the only evidence that White had supplied
in support of his case, and that had been refuted by Sias,
who also was supposed to be a party to the understanding,
Porter opined that it would not provide sufficient basis to go
forward.
Porter attested that, on or about November 7, 1990, he
concluded that Phillip White’s grievance would be lost if ar-
bitrated. Therefore, when Phillip White came unannounced to
his office on that date, he responded to White’s queries by
telling White that he had finished the investigation and had
decided, from the evidence and involved circumstances, that
he was not going to go forward. A letter to that effect would
be sent to White. Porter explained to White that the Union
had had a problem with White’s seniority which he never
had acted to correct although it long had been posted for ev-
eryone to look at. Porter told White that he had just sat there
on his rights and that they never were going to get past that
in arbitration. From the research he had done, Porter declared
that they could not win on the merits and that he was not
going to waste the District’s money by going into an arbitra-
tion that could not be won. In testimony, he explained that
since an arbitration costs between $3000–$5000, every case
could not be arbitrated. White had retorted that Porter should
give him his letter immediately, he was going to take it to
the Labor Board. White then obtained a copy of Porter’s No-
vember 7 letter, described above, and left.
While conceding that, during the November 7 conversa-
tion, he did tell White that he did not pay any union dues
for a long time, Porter denied that the Union had had any
role in determining the seniority of White, of any other em-
ployee, or in posting seniority lists. These were company
functions.
With respect to Billy White’s description of a conversation
he had had with Porter at a hardware store parking lot short-
ly after November 7, Porter testified that, while he probably
encountered Billy White three to four times a week as he did
just about everybody, and also possibly had seen Billy White
in the hardware store’s parking lot, he does not recall having
had that conversation.
(2) Tiller’s testimony
Company President Tiller testified that, on the advice of
counsel, he took the position at the September 7 meeting that
the grievance was untimely. He told White that he had been
laid off because other men were on the job with more senior-
ity. Tiller did not know when White first went to work for
the Company because he already was working there when
Tiller assumed control over the Company’s operations. The
records that could have provided that information had been
1061MINE WORKERS LOCAL 17
25 Marcum, originally laid off with White in August 1990, was re-
called in November, and continued to work at #4 mine until closure.
taken by Federal investigators in the course of an inquiry
concerning the prior owner, John Motton. The documents, if
returned, had gone to Motton because, according to Tiller,
records predating 1985 belonged to him. Tiller recalled that,
at that meeting, after White had said that he wanted the
Union to help him in this, he had told White that he might
want the Union to help him now, but back when Tiller had
taken over, he had not wanted the Union to represent him.
Tiller denied that he, or anyone else for the Company, had
produced or referred to the two seniority lists during the
step-three meeting, although familiar with them; or that
Jimmy Adkins had told him about an unwritten agreement
regarding White’s seniority. Tiller, prior to the hearing in
this matter, had not seen the account, signed by Adkins, and
later by Bender, describing the agreements under which the
electricians and White were brought into the Union.
Tiller admitted that, although he had known, or had reason
to believe, that White had been running a continuous miner
for Joshua since at least 1985, he was given seniority on the
#32 mine seniority list only since 1988 when he joined the
Union and started paying dues. It was then, in Teller’s esti-
mation, that White really became a classified employee. Till-
er testified in this regard that ‘‘[s]alaried people are not clas-
sified employees and the Union does not recognize them.’’
Tiller could not confirm Bender’s testimony that 5–10 per-
cent of the employees on the Company’s payroll at one time
had been salaried, but averred that White’s seniority dated
not from when he began to do contract—classified work for
the Company, but from the time he joined the Union and the
Company began withholding his union dues. Tiller does not
recall if he specifically discussed White’s seniority with any
local or District union representative.
Tiller explained that John Boling’s name did not appear on
the #32 mine seniority list although, when the list was pre-
pared, he had been employed at that mine because Boling
had been was salaried and not in the Union. This was so
even though when Boling last worked at #32 mine, he was
hourly paid. Tiller noted that Boling’s name did appear on
the #4 mine seniority list with an original hire date of July
1, 1985, relating back to when Boling was hired at salary.
This was because of an arrangement to which he had agreed
when Jimmy Adkins had wanted to put Boling and Castle
into the Union with seniority from their dates of hire as done
for the electricians. Because of the earlier agreement for the
electricians, the U.S. Department of Labor, wage and hour
division, had required the Company to pay thousands of dol-
lars in back overtime wages. So, when Adkins had spoken
to Tiller about putting Boling and Castle in the Union, an
understanding was reached that the Union would not later
demand that Joshua should give them back overtime pay
which the Company at that time could not afford. However,
during the discussion with Adkins concerning Boling and
Castle, White’s name never came up.
Tiller confirmed Porter’s testimony that the Respondent
District had had no input as to the seniority date he had
given White or as to his decision to lay off White and the
other employees from #4 mine in August 1990. Tiller agreed
that it should not have been necessary to specifically provide
in the agreements bringing employees into the Union that se-
niority would be protected since, under the contract, com-
pany seniority was established as the employees’ date of hire
regardless of when or how they joined the Union. However,
Tiller also conceded that that was not the way things had
happened in a situation that had been inherited and was not
of his doing.
(3) The posting of seniority lists
Porter testified that miners were not notified of their se-
niority by mail, but by seniority lists posted on bulletin
boards at the mines. Every experienced miner knew this and
that they were responsible for checking their seniority.
Should a miner disagree with his posted seniority, he could
not ‘‘let it lay up there’’ for years without saying anything.
Tiller confirmed that Tim Taylor, Joshua’s office and busi-
ness manager, had seen to it that the seniority list for #32
mine, the Company’s only facilities at the time, were posted
on a bulletin board that had a key-locked Plexiglas front, and
which was located in that mine’s office trailer. Tiller testified
that the miners’ change room was immediately next door to
the office trailer and that employees always were moving
through the office trailer to get tools, to pick up their pay
checks, or to see whoever was in the office. The office,
never locked, was open 24 hours a day. Also, notices of Sat-
urday work, when available, were posted both inside the of-
fice door and in the change room. To enter the trailer, which
was only 10-feet wide, employees had to pass the bulletin
board. Tiller averred that Taylor had put up the #32 mine list
in July 1988 and that he had seen that it still was posted
when that mine closed.
According to Tiller, the seniority list for #4 mine was
posted on a bulletin board in the small office located at one
end of a house trailer at that facility. The list had been post-
ed there at Tiller’s direction by parts purchaser, Sam Belcher,
where it remained from June 1990 until the end of January
1991, when the mine was closed. A tool and supply room
occupied the middle of the trailer and the change room was
at the other end. There was a small door separating the office
from the tool and supply room and interconnecting change
room, but the door mostly was open. Notices of Saturday
work were posted in the middle of the trailer, but the senior-
ity list was posted only on that office’s bulletin board. While
employees received their checks anywhere in the trailer that
their supervisors, or Belcher, happened to be, including in
the office, they had had to pass within 10 feet of the bulletin
board holding the posted seniority list each day to go to
work. Almost every employee would enter the office during
a given week to look at the mine map posted on one wall,
which they had to study to learn how to get out of the mine
in the event of disaster. The other wall held the bulletin
board. Tiller testified that he had seen Phillip White in the
#4 mine office looking at the bulletin board.
Walter Marcum Jr. and Danny Callaway, both of whom
had been employed at #4 mine until permanently laid off on
January 28, 1991, when that mine closed,25 confirmed, with
differences of detail, that the seniority list identified for that
mine had been posted for various intervals and at different
places within the #4 mine trailer. Callaway recalled that the
men had discussed the list and that a few of them had ar-
gued. The list had correctly indicated Callaway’s seniority
1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
26 282 NLRB 374, 376 (1986).
27 Cuneo Eastern Press of Pennsylvania, 168 NLRB 523, 527–528
(1967); Mine Workers District 23 (Peabody Coal), 293 NLRB 77,
78 (1989), enf. denied 921 F.2d 645 (6th Cir. 1990). It is noted that
the decision of the court of appeals in Peabody Coal, supra, on
which the Respondent District relies, differs from that of the Board.
In Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984), the Board noted
that the administrative law judge had ‘‘improperly relied on courts
of appeals decisions instead of initially considering relevant Board
decisions on the issues presented’’ and emphasized that ‘‘it is a
judge’s duty to apply established Board precedent which the Su-
preme Court has not reversed.’’ Iowa Beef Packers, 144 NLRB 615,
616 (1963). Accordingly, I am bound by the Board’s precedent.
and that of another named employee to whom he had spoken
about the list.
(4) The relationship between Respondent District 17
and its local unions
Roger Caldwell, District 17 executive board member and
director of its Subdistrict 3 office, the official to whom Por-
ter reported, testified to the effect that District 17 and its
subordinate local unions, including Local 5921 which had
represented Joshua’s employees at #32 mine, were separate
and distinct entities. This was in effort to establish that
Jimmy Adkins’ testimony supportive of White, given while
Adkins was an officer of Local 5921, would not be binding
on the District. Caldwell testified that while District 17 per-
formed many service functions for represented employees,
grievance processing at the third step and arbitration were its
main duties. While the collective-bargaining agreement took
precedence over any local agreement, the District had no say
over the local unions’ affairs. Locals were self-governing
bodies whose officials were elected or appointed independ-
ently of the District. Conversely, local union officials had no
say over the District. Caldwell described locals as autono-
mous bodies with their own bylaws, but which were bound
by the constitutions of the District and International Union.
Jimmy Adkins testified without contradiction that the Em-
ployer remitted dues to the District rather than to the Inter-
national Union or local. The District, in turn, sent Adkins,
as his local’s financial secretary-treasurer, a monthly state-
ment showing who had paid dues that month.
B. Analysis and Concluding Findings
In his Board-approved decision in Oil Workers Local 8-
398 (Gilbert Spruance Co.),26 Administrative Law Judge
Holley restated certain principles applicable herein:
A labor union owes a duty of fair representation to
all the employees it represents. Vaca v. Sipes, 386 U.S.
171 (1967). The union breaches the duty when in its
conduct toward a member of the bargaining unit is arbi-
trary, discriminatory or in bad faith. Id. at 90. Although
a union may not ignore a meritorious grievance or proc-
ess it in a perfunctory fashion, a union is afforded
broad discretion in deciding which grievances to pursue
and the manner in which to handle them. Associated
Transport, 209 NLRB 292 (1974). Mere negligence is
insufficient to establish a breach of a duty of fair rep-
resentation. Plumbers Local 195 (Stone & Webster),
240 NLRB 504, 508 (1979).
When . . . a union decides to process a grievance
but decides to abandon it short of arbitration, a finding
of violation turns not on the merit(s) of the grievance,
but on whether the union’s disposition of the grievance
was perfunctory or motivated by ill will or other invidi-
ous considerations. Glass Bottle Blowers Local 106
(Owens-Illinois), 240 NLRB 324 (1979); Service Em-
ployees Local 3036 (Linden Maintenance), 280 NLRB
995 (1986).
It also is settled that a union violates Section 8(b)(1)(A)
and (2) of the Act when, with an employer, it maintains and
enforces a contractual provision, or an oral agreement, con-
trary to the contract language, which accords seniority pref-
erence to employees based on union considerations, including
date of membership in the union. This is because such con-
duct can cause, or be an attempt to cause, discrimination
while unlawfully encouraging membership in the union.27
The factual pattern of this case makes clear, as Company
President Tiller testified, that, contrary to the BCOA contract
language establishing company seniority from the employees’
dates of hire and mine seniority from assignment to a given
mine, the Company and Respondent District had followed a
practice of basing the seniority of classified employees on
date of membership in the Union. Even without considering
the statements to that effect attributed by General Counsel’s
witnesses to District field Representative Porter, the two
written agreements to bring employees into the Union that
are part of this proceeding tend to confirm this. The February
1988 settlement concerning the electricians, and that of April
1989, with respect to Boling and Castle, both specifically
provide that the relevant employees would become covered
by the BCOA contract, or brought into the classified work
force, with seniority established by their dates of hire. If the
participants to those settlements had had reason to anticipate
that the BCOA contract language concerning seniority would
be applied automatically, it should not have been necessary
to separately negotiate and spell out arrangements to safe-
guard the affected employees’ company seniority dates. In-
stead, as Jimmy Adkins and the then-mine superintendent
and company co-owner, Bender, both testified, and set forth
in their signed account, Bender, when approached by Adkins
and Sias about putting the electricians in the Union, had
found it necessary to expressly ask for and obtain Union
agreement that these men be allowed to keep their dates of
hire as their seniority dates. In fact, as Adkins testified, he
and Sias did not agree immediately to Benders’ seniority re-
quest, but promised to get back to him. The understanding
concerning the electrician’s seniority was finalized only dur-
ing those parties’ second meeting on the subject. Although
the February 12, 1988 settlement that resulted, concerning
the electricians’ seniority, is phrased as an employer obliga-
tion, that ‘‘the Employer agrees those Employee’s [sic] se-
niority date(s) shall be established by their date(s) of hire in
accordance with the terms of the Contract,’’ the agreement,
itself, stemmed from Bender’s initiative. As noted, the se-
niority of Boling and Castle also was separately preserved in
the written settlement that brought them into the Union. It
is significant to note, in this context, that of all those salaried
employees who, in 1988–1989, were brought under the con-
tract’s coverage, the seniority only of Phillip White, the one
1063MINE WORKERS LOCAL 17
28 As described by Billy White.
29 I do not credit Sias’ denial of this testimony by Adkins and
Bender that an arrangement had been made concerning White’s se-
niority at the same time as that for the electricians. Sias’ version,
if accepted, would not account for the impetus created at the time
that ultimately compelled White to join.
30 258 NLRB 56, 58 (1981). Also see Mine Workers Local 1373
(Island Creek Coal Co.), 186 NLRB 361, 364 (1970), where, con-
struing the similar language of an earlier BCOA contract, the Board,
in relevant part, held that, ‘‘It is clear that under its terms, Local
1373 was made the agent of the International in regard to local mat-
ters such as grievances and local disputes;’’ and Steelworkers (Mem-
phis Folding Chairs), 258 NLRB 484, 487 fn. 10. (1981).
worker whose status was not put in writing, came into dis-
pute.
Allen Adkins testified that, on two occasions, at a meeting
with Porter and company representatives 1–2 days before
White’s August 12, 1990 layoff and again in private con-
versation with Porter immediately before the August 12 lay-
offs were announced, Porter replied to Adkins’ protests that
White was being laid off while John Boling, with less senior-
ity, was permitted to remain at work, by stating that Boling
was being allowed to keep his seniority as of his hire date
because he had come into the Union voluntarily, while White
would not be so permitted because he had joined the Union
only under compulsion. When Allen Adkins, during their talk
just before the layoff, told Porter that it did not make any
difference whether or not White had been made to join the
Union; he had come into the Union under the electricians’
agreement, Porter replied that he did not care—that was the
way it was going to be.
Phillip and Billy White testified that, when they went to
Porter’s office on August 16, 1990, to file the grievance,
Porter, inter alia, had stated that White’s seniority would
count from the time he joined the Union and started paying
union dues, and that Porter had made statements to the same
effect at different times thereafter, including when, on about
September 5, they had returned to his office with Jimmy
Adkins’ signed account of the genesis of the electricians’
agreement;28 during the September 7 third-step grievance
meeting; on November 7, when he told the White brothers
that the Union was not going to arbitrate Phillip White’s
grievance; and, shortly after November 7, when Porter and
Billy White encountered each other in the hardware store
parking lot.
This testimony of the White brothers generally was sup-
ported by Jimmy Adkins who described in detail the Septem-
ber 7 third-step meeting. Jimmy Adkins also related his role
in preparing and signing the written account of the February
1988 meetings between Sias, Bender, and himself, requested
by Phillip White when problems arose, that had resulted in
the electricians and White being brought into the Union, all
with original seniority specifically secured.
Porter, in turn denied the foregoing, asserting that White’s
grievance was fully pursued in good faith, that much time
was spent in relevant research and consultation, but that the
grievance could not be successfully arbitrated because there
was no valid defense to the Company’s argument that the
grievance had not been timely filed. Porter argued that, not
having previously known White, he had not had incentive to
discriminate against him or to encourage the Company to so
do, and he denied having said words to the effect that
White’s seniority, in any way, was related to the date he had
joined the Union.
From the entire record, I credit Jimmy and Allen Adkins
and Phillip and Billy White concerning their respective meet-
ings and conversations with Porter where their testimony
conflicts with that of Porter. Contrary to the Respondent’s ar-
gument that the Adkins brothers testified as they did because
they were friends of Phillip White, this was true only up to
a point. The evidence is that Jimmy Adkins had initiated the
process of bringing White into the Union which, when com-
pleted, cost White about $20,000 annually, representing the
difference in his former salary and his hourly rated earnings
under the contract for the same work and hours. From
White’s standpoint this was hardly a favor as was reflected
in the additional time and effort Adkins and Bender required
to get him to join. It also is undisputed that it was Allen
Adkins who had called White’s salaried status to Jimmy
Adkins’ attention, setting things in motion. Both Adkins
brothers were active unionists and the record establishes no
interest on their part in harming the District. While the Re-
spondent District contends that Allen Adkins’ March 1992
letters to the local newspaper and to Roger Caldwell, ex-
pressing dissatisfaction over how Porter had been represent-
ing the employees in matters unrelated to the present case,
indicated bias and prejudice predating the hearing, these ac-
tions just as readily could illustrate that others besides Phillip
White had had reason to question Porter’s ability and/or will-
ingness to fairly and effectively represent the employees.
There is no evidentiary basis or need to resolve questions
raised by these letters in order to reach a determination here-
in.
Jimmy Adkins, with no personal stake in the outcome, was
the most disinterested witness to testify in this proceeding.
As an officer of Local 5921, he could not have enhanced his
standing within the Union by testifying on White’s behalf.
Nonetheless, having arranged in good faith to have White
brought into the Union, at financial loss but with original se-
niority intact, his further efforts to ensure that White would
receive this personally promised benefit on becoming a union
member was in fulfillment of an obligation arising from the
same transaction.29
While, as the Respondent District contends, the District
and its subordinate local unions may have been autonomous
bodies to some extent, I find, under agency principles, that
the testimony of Jimmy Adkins, as financial secretary-treas-
urer of Local 5921, UMWA, constituted admission binding
on the Respondent District. In Mine Workers (Garland Coal
Co.),30 Administrative Law Judge Pollack, in his Board-ap-
proved decision, found as follows:
Respondents correctly argue that Respondent Local
and Respondent District are legal entities apart from
Respondent International and that Respondent Inter-
national is not automatically responsible for the acts of
its affiliates. See, e.g., Coronado Co. v. United Mine
Workers of America, 268 U.S. 295, 299 (1925); Inter-
national Brotherhood of Electrical Workers, AFL–CIO
(Franklin Electric Construction Company), 121 NLRB
143, 147 (1958). However, the basis for holding Re-
spondent responsible for the acts of its subordinates is
based not on affiliation but rather is based on its dele-
1064 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
31 Porter’s inability to recall whether, during a chance meeting in
a hardware store parking lot shortly after November 7, he had re-
sponded in questionable fashion to Billy White’s further protests
over the Union’s previously announced refusal to arbitrate his broth-
er’s grievance, is not as convincing as Billy White’s cogent descrip-
tion of that event. Billy White’s account therefore is accepted.
32 Contrary to the Respondent District’s contention that there is no
evidence that it had an oral agreement with the Company that could
adversely affect White’s seniority, from the credited evidence, Por-
ter, at the September 7 meeting, had agreed with the appropriateness
of Tiller’s stated course in having assigned White seniority based on
when he had become a union member and started to pay dues.
gation of its contractual and statutory duties for the en-
forcement of its contract to Respondent District and the
mine committee. Having delegated its contractual and
statutory duties to the mine committee and Respondent
District, Respondent International created an agency. It
cannot now disavow its agents’ actions. . . . This is
particularly true where, as here, the agents were acting
within the scope of their delegated authority. Simply
stated, Respondent International delegated its duties
under the contract but did not, and could not, delegate
its responsibilities [footnote omitted].
The above cases establish that in circumstances applicable
here, where the International is signatory to the collective-
bargaining agreement, but has ordained that the processing of
grievances be shared between its Districts and the District’s
subordinate local unions, under which the locals handle
grievances and immediate area disputes through the first two
steps of the grievance procedure and the Districts through the
third and possible fourth (arbitral) step, a local may become
the agent of the International even though both are separate
legal entities. This is not because of affiliation, but because
the local was acting as the International’s agent in perform-
ing certain delegated duties that were the International’s re-
sponsibilities. While these cases do not speak directly to es-
tablishing the local union as the agent of the local’s District,
there appears to be no meaningful distinction that would pre-
clude such agency application from being so extended to the
Districts, as well. Under the existing shared arrangement, the
local, in processing and resolving grievances at the imme-
diate level, also acts as the agent of its parent District, pro-
viding within the District’s territorial jurisdiction, the same
delegated services which, within the International’s larger ju-
risdiction, provided rationale for the District, in cited cases,
to be held an agent of the International. It is relevant that
Jimmy Adkins, in fact, did function in this matter in his offi-
cial capacity as a local union officer in a manner beneficial
to the District. In acting to have Phillip White and the other
salaried workers brought into the Union, he increased the
number of dues-paying employees whose remittances, the
record shows, were paid, not to the local, but to the District.
The District, in turn, merely sent the local’s officials a
monthly report listing the paid-up employees.
In real terms, the locals and districts, in their respective
roles of processing grievances that proceeded beyond the sec-
ond step, had a closer functional interrelationship than did ei-
ther with the International, since that body did not become
involved directly with the grievance procedure. Accordingly,
I find that Jimmy Adkins, in helping to bring about of an
agreement to enroll White in the Union; in his efforts to en-
sure that that agreement, including the protection of White’s
seniority, was fully implemented; and in his testimony herein
describing those efforts, acted as agent of both Local 5921,
of which he was an officer, and of the Respondent District.
Accordingly, I find that Adkins’ credited testimony as to
what occurred at the step-three meeting on September 7 may
be considered an admission by and against the District. How-
ever, even if it ultimately should be found that Jimmy
Adkins’ testimony is not binding on the District because
such agency did not exist, for reasons stated above, including
Tiller’s testimony and the repeated need to separately act to
preserve the seniority of the electricians, Boling and Castle,
instead of relying on the contract language, I still would
credit Jimmy and Allen Adkins and Phillip and Billy
White.31
For the above reasons, I find that the Respondent District,
by Porter, violated Section 8(b)(1)(A) and (2) of the Act both
by maintaining and enforcing an oral agreement basing em-
ployee seniority upon duration of membership in the Union
and by enforcing that agreement to cause Phillip White’s lay-
off on August 12, 1990.32 I further find that the Respondent
District violated Section 8(b)(1)(A) of the Act by refusing to
arbitrate White’s grievance because of his earlier nonmem-
bership in the Union and/or his reluctance to become a union
member and by telling Phillip White on August 16, Septem-
ber 7, and November 7, 1990, that his grievance lacked merit
because, in effect, his seniority with Joshua did not begin
until he became a member of the Union.
In White’s case, it is noted that his company seniority,
rather than his mine seniority at #4 mine, should have gov-
erned his order of layoff. This was because, although White
did not report to work at #4 mine until he later was trans-
ferred there after his ‘‘pillaring out’’ assignment at #32 mine
had ended, his seniority at #4 mine, and that of others, was
arranged in the agreement reached at the February 20, 1990,
step-three meeting resolving mine committeeman Johnny
Williams’ grievance. According to Jimmy Adkins’ uncon-
tradicted testimony, the Company there agreed that it would
fill the available jobs at #4 mine, which then was opening,
with employees still working at #32 mine. Once there, the
former #32 mine employees would regain their mine senior-
ity to the first day of #4 mine’s operation. When an em-
ployee asked what would happen in the event of layoff, since
all employees would have the same mine seniority, Porter
had replied, in effect, without company challenge, that if
there was a layoff, company seniority would prevail. Accord-
ingly, when layoffs at #4 mine later became relevant, White,
with his early date of hire at the Company, should have been
protected.
In reaching the above conclusions, contrary to the General
Counsel and the Charging Party, I accept the testimony of
Porter, supported by Tiller, and to varying degrees by
Marcum and Callaway, that the seniority lists were conspicu-
ously posted at mines #32 and #4, at least to an extent that
Phillip White and other classified employees could and/or
should, have had current knowledge of accredited seniority.
Since everything from job benefits to layoff, recall and, in
practice, transfer rights in a relatively unstable employment
environment, were based on some form of seniority, em-
ployee knowledge of their seniority, not only as to their own
particular dates but in relation to the other workers, was of
fundamental importance. This was true not only with respect
1065MINE WORKERS LOCAL 17
33 225 NLRB 1299 (1976). In Dearborn Stamping Plant, supra, the
conflict that violated Sec. 8(b)(1)(A) of the Act was based on the
Respondent Union’s conduct in having permitted a unit chairman, as
its agent, process a grievance on behalf of committeemen in a matter
where the respective interests of the processing official and the
grievants were diametrically opposed. The grievance charged that the
officiating unit chairman had allocated to himself overtime work
which he previously had shared with the grieving committeemen.
34 182 NLRB 638 (1970).
35 130 NLRB 36 (1961).
to Phillip White, but as to all employees at both mines dur-
ing their respective periods of operation. The record shows
that employees discussed and argued over their posted se-
niority dates and it is difficult to conceive that the employees
as a group would have tolerated the withholding of such in-
formation. Although Bender testified that he, in fact, had not
posted seniority lists while mine superintendent, Bender had
left the Company by mid summer 1988, 2 years before Phil-
lip White’s layoff. Accordingly, Bender’s testimony in this
regard predates the relevant period and does not directly con-
tradict Tiller’s statement that, after he assumed active man-
agement of Joshua in July 1988, he took measures to ensure
that seniority lists were prominently posted at both mines.
Having found that Phillip White either did have, or should
have had, timely knowledge of his ascribed seniority from
posted lists at both mines #32 and #4, I further find, contrary
to the General Counsel, that Tiller did raise the issue of the
grievance’s untimeliness at the step-3 meeting at which time
that contention was discussed. It is most unlikely that the
markedly late filing date of the grievance in terms of posted
seniority would not have been noted. Accordingly, it might
have followed, as contended by Porter and Tiller, that
White’s grievance was not arbitrable because, based on that
consideration, untimely filed. Were this the only factor here,
that could have been the case since Porter’s description of
his efforts to get around the company raised issue of untime-
liness was convincingly detailed.
However, the Respondent District’s ability to fairly rep-
resent White in this grievance was materially compromised
by its above found oral agreement with the Company to date
seniority to when the employees became members of the
Union. Any effort by the Respondent District to pursue
White’s grievance would have put it in conflict with its own
relevant policy and practice which benefited the Respondent
District by unlawfully encouraging employees to join the
Union as prerequisite to obtaining seniority. This conflict of
interest effectively tainted the Respondent District’s ability to
fairly represent White in a grievance that essentially pro-
tested that practice. In this context, since the Respondent
District had participated in creating a situational contrariety
whereunder it could not have fairly represented White, or
any classified employee, in a grievance that called into ques-
tion its arrangement of basing seniority upon when employ-
ees joined the Union, as to the Respondent District, the time-
liness of White’s grievance is irrelevant. The complaint in
this matter alleges the unlawfulness of the union-company
seniority arrangement, of which the Respondent District’s
also alleged failure to arbitrate is symptomatic. As stated in
Auto Workers Local 600 (Dearborn Stamping Plant):33
It is axiomatic that an exclusive bargaining rep-
resentative is required to afford fair and unbiased rep-
resentation to all unit members. Steele v. Louisville &
Nashville Railroad Co., et al., 323 U.S. 1192, 202, 203
(1944). While an individual’s grievance may be rejected
for the greater good of the entire unit, the contrary ac-
tion cannot be regarded as valid. See Vaca v. Sipes, 386
U.S. 171, 190–191 (1967).
Cominco-American, Inc.,34 and Kramer Bros. Freight
Lines,35 cited by the Respondent District, are distinguishable
from the present situation. In Cominco-American, supra, six
employees were transferred from one of the Employer’s mine
groups (Brock) to another (Douglas). The Employer had had
separate collective-bargaining agreements with different labor
organizations for the employees at each mine group. The six
employees later were transferred back to Brock where, under
the Brock contract, they had and were given, full company
seniority. The Company then, at the Union’s demand, agreed
to change the contract to provide at the Brock mines for
mine seniority rather than company seniority. The six trans-
ferees’ seniority thereby was reduced and they, thereafter,
were discharged. The Board, in dismissing the complaint,
found that the Respondent Company and Union ‘‘did not
apply any arbitrary or discriminatory criteria in keying the
complainants’ seniority, and subsequent layoff, to their
length of service within the unit.’’ Here, unlike Cominco-
American, the relating of Phillip White’s seniority to his
service within the unit, or time as a union member, was dis-
criminatory since the other salaried employees who likewise
were brought into the Union—the electricians, Boling and
Castle—were allowed to retain their dates of hire as their re-
spective company seniority dates while White, for no valid
distinguishing reason, was not.
Kramer Bros. Freight Lines, supra, is even less apropos.
The complainant employees in Kramer during the periods for
which lost seniority was claimed, by agreement between Em-
ployer and Union, were constituted a ‘‘special group of
checkers who were not precluded by their loyalty to their fel-
low employees and fellow union-members from concentrat-
ing exclusively on the interests of the Company.’’ Accord-
ingly, these company checkers, who checked off incoming
freight being unloaded, filled positions and performed cleri-
cal work that intentionally had been removed from the unit.
Unlike other unit employees, they did no manual labor and
also functioned as ‘‘pushers’’ or ‘‘straw bosses.’’ The Board
majority found, inter alia, that when the Employer later
changed its method of operation, ending the clerical check-
er’s classification and requiring that those who had per-
formed that function thereafter handle freight and do manual
labor like the other employees, the Union, in the absence of
any discriminatory conduct, had validly defended the senior-
ity of employees who had been working within the unit all
along by seeking to relate the seniority of the former clerical
checkers to when they finally entered the unit. Unlike the
former clerical checkers who previously had not performed
unit work and who had been intentionally excluded from the
unit, by agreement, so that they could better represent the
Employer’s interest, White, during his employment, always
had performed contract-classified work at a unionized mine.
Under the terms of the BCOA agreement, White, who had
had no nonunit duties or responsibilities, should have been
1066 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
36 90 NLRB 289 (1950).
37 283 NLRB 1173 (1987).
38 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
39 If 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
accruing seniority during his entire time with Joshua Indus-
tries.
CONCLUSIONS OF LAW
1. Joshua Industries, Inc., at all material times, was an em-
ployer within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Respondent District is a labor organization within
the meaning of Section 2(5) of the Act.
3. By maintaining and enforcing an agreement with the
Employer, Joshua Industries, Inc., basing seniority upon du-
ration of membership in the Union and by enforcing that
agreement to cause Phillip White’s discharge, the Respondent
District respectively violated Section 8(b)(1)(A) and (2) of
the Act.
4. By informing Phillip White on three occasions that he
could be laid off because his seniority did not begin until he
became a member of the Union and by refusing to process
to arbitration the grievance concerning White’s layoff be-
cause for much of his employment with the Employer he had
not been a member of the Union and/or had been reluctant
to join, the Respondent District respectively violated Section
8(b)(1)(A) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Phillip White was discriminatorily laid
off because of the Respondent District’s unlawful conduct for
which, as the Board previously found in its above August 20,
1992 Order affirming Joshua Industries, Case 9–CA–28151,
JD–193–92, that Employer also was responsible in violation
of Section 8(a)(1) and (3) of the Act, it will be recommended
that the Respondent District, jointly and severally with Josh-
ua Industries, Inc., be required to make White whole for any
loss of earnings incurred as a result of the discrimination
against him, with backpay to be computed as prescribed in
F. W. Woolworth Co.,36 and with interest as set forth in New
Horizons for the Retarded.37 As the record indicates that the
Employer herein closed its only remaining operating facility,
#4 mine, on January 28, 1991, when it went into Chapter 7
bankruptcy, the period for which backpay is due should run
from August 12, 1990, until January 28, 1991, subject to
such adjustment as may be indicated at the compliance stage
of this proceeding.
Finally, the Respondent District should be required to no-
tify Joshua Industries, Inc., in writing, with a copy to Phillip
White, that it has no objection to White’s employment with
seniority applied as of his date of original hire by that Em-
ployer, and that it will stop interpreting the provisions of the
successive National Bituminous Coal Wage Agreements re-
lating to seniority, layoff and recall, in manner that discrimi-
nates against the seniority of classified employees because of
their nonmembership in the Union and/or reluctance to be-
come union members.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended38
ORDER
The Respondent, District 17, United Mine Workers of
America, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Encouraging membership in District 17, United Mine
Workers of America, or any other labor organization, by
maintaining and enforcing agreements with employers that
base the seniority standing of employees upon the date they
became union members.
(b) Causing employers to reduce the seniority of, and to
lay off, their employees in order to conform to seniority
standings based on when such employees became union
members.
(c) Informing employees that they were subject to layoff
because their seniority did not begin until they became union
members.
(d) Failing and refusing to process employee grievances to
arbitration because the said employees had not been union
members and/or had been reluctant to become union mem-
bers.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Jointly and severally with Joshua Industries, Inc., make
Phillip Lee White whole, with interest, for any loss of pay
or other benefits he may have suffered as a result of the dis-
crimination against him in the manner set forth in the remedy
section of this decision.
(b) Notify Joshua Industries, Inc., in writing, with a copy
to Phillip Lee White, that the Respondent District has no ob-
jection to its employment of Phillip Lee White with seniority
applied from his initial date of employment by that Em-
ployer, and that it will stop interpreting the provisions of the
relevant collective-bargaining agreement relating to seniority,
layoff, and recall, in manner that discriminates against the se-
niority of classified employees because of their nonmem-
bership in the Union and/or reluctance to become union
members.
(c) Post at its union offices, or hiring halls in the State of
West Virginia, copies of the attached notice marked ‘‘Appen-
dix.’’39 Copies of the notice, on forms provided by the Re-
gional Director for Region 9, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places, including all places
1067MINE WORKERS LOCAL 17
where notices to members are customarily posted. Reason-
able steps shall be taken by the Respondent District to ensure
that the notices are not altered, defaced, or covered by any
other material. In the event that Joshua Industries’ #4 mine
no longer is in operation, the Respondent District 17, imme-
diately upon receipt, shall mail copies of the aforesaid notice,
signed and dated by its authorized representative, to all unit
employees employed by that Employer during the 6-month
period immediately prior to the date of the closing of the fa-
cility, at their last known addresses.
(d) Notify the Regional Director for Region 9 in writing
within 20 days from the date of this Order what steps the
Respondent has taken to comply.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we have
violated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT encourage membership in District 17,
United Mine Workers of America, or any other labor organi-
zation, by maintaining and enforcing agreements with em-
ployers that base the seniority standing of employees upon
the date they became union members.
WE WILL NOT cause Joshua Industries, Inc., or any other
employer, to reduce the seniority of, and to lay off, their em-
ployees in order to enforce seniority standings based on
when such employees became union members.
WE WILL NOT inform employees that they are subject to
layoff because their seniority did not begin until they became
union members.
WE WILL NOT refuse to process employee grievances to ar-
bitration because the said employees had not been union
members and/or had been reluctant to become union mem-
bers.
WE WILL NOT in any like or related manner, interfere with,
restrain, or coerce employees in the exercise of rights guar-
anteed under Section 7 of the Act.
WE WILL, jointly and severally with Joshua Industries,
Inc., make Phillip Lee White whole, with interest, for any
loss of pay or other benefits he may have suffered as a result
of the discrimination against him.
WE WILL notify Joshua Industries, Inc., in writing, with a
copy to Phillip Lee White, that we have no objection to its
employment of Phillip Lee White with seniority applied from
his initial date of employment by that Employer, and that WE
WILL stop interpreting the provisions of the National Bitu-
minous Coal Wage Agreement relating to seniority, layoff
and recall, in manner that discriminates against the seniority
of classified employees because of their nonmembership in
the Union and/or reluctance to become union members.
DISTRICT 17, UNITED MINE WORKERS OF
AMERICA