Mutual Coal Co.

National Labor Relations Board - Board Decisions

Mar 6, 1970

181 N.L.R.B. 564 (N.L.R.B. 1970)

564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mutual Coal Company , Gravitt Coal Company,
Elgin Coal Company , Trio, Inc . and Gob Coal
Company and United Mine Workers of America
and District No. 19, United Mine Workers of
America. Case 10-CA-7677
March 6, 1970
DECISION AND ORDER
hereby orders that Respondents, Elgin Coal
Company, Sequatchie, Tennessee, Trio Inc.,
Sequatchie, Tennessee, Gob Coal Company,
Sequatchie, Tennessee, their officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On October 15, 1969, Trial Examiner Owsley
Vose issued his Decision in the above-entitled
proceeding, finding that the Respondents had
engaged in and were engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision.
Thereafter, the Respondents filed exceptions to
the Trial Examiner's Decision and a supporting
brief. The United Mine Workers filed limited
exceptions to the Trial Examiner's Decision and a
supporting brief.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner except as herein modified.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
'In adopting the Trial Examiner 's finding that the Respondents have
violated Section 8(a)(5) of the Act, we do not consider the issues raised in
civil suits alleging Sherman Act violations against the United Mine
Workers as relevant to a determination of the questions presented herein
Accordingly , we do not agree with the comments made by the Trial
Examiner concerning the implications of those proceedings, in which final
determinations were still pending at the time of his Decision , upon the
charges in this case
'The Trial Examiner concluded that the relevant certification herein was
drawn in such a manner as to preclude companies that do not fall within
its terms from being included as successor employers under our normal
doctrines of successorship For this reason and as Respondent Trio had
dissolved , he did not find it necessary to include Trio within the scope of
his Recommended Order . We have never intended that our certification
herein be read so as to nullify our ordinary standards for including
successors . Nor do we agree that the lease termination involving Trio and
the surrender of its corporate charter necessarily foreclosed imposing a
bargatfiing obligation upon any new operator of that mine under Board
successorship principles See, e g., Maintenance , Inc, 148 NLRB 1299.
Accordingly , we do not adopt the Trial Examiner 's findings in that regard
and, as Trio was properly made a party to this proceeding , we shall include
it in our Order.
OWSLEY VOSE, Trial Examiner: This case, heard at
South Pittsburg, Tennessee, on June 17, 1969, upon a
charge filed by the Charging Parties on the preceeding
February 27 and a complaint issued May 13, presents the
question whether the Respondents violated Section 8(a)(1)
and (5) of the National Labor Relations Act by virtue of
their refusal to bargain collectively with United Mine
Workers of America (herein called the U.M.W.) when
requested to do so at various times in 1967, 1968, and
1969. The Board, after a series of proceedings under
Section 9 of the Act, had previously certified the U.M.W.
as the exclusive bargaining representative of the
Respondents' employees. The Board's determinations in
these proceedings may be summarized as follows:
By a corrected certificate of representative in Sewanee
Coal Operators' Association, Inc., Cases lO-RC-5497,
l0-RC-5593, 10-RC-5604, and 10-RC-5605, dated August
31, 1965, the Board's Regional Director for Region 10, on
behalf of the Board, certified the U.M.W. as the exclusive
bargaining representative of the employees in the
bargaining unit stated below:
All production and maintenance employees of coal
mining operators who were formerly members of
Sewanee Coal Operators Association, including those
not now operating but who resume operating old mines
either before or after the conclusion of the strike, and
including also those individuals who had sole or
controlling interest in a corporation which was a
member of Sewanee Coal Operators Association who
form another corporation and operate a new or
different mine in the same geographic area, excluding
office clerical employees, professional employees,
technical employees, guards, owner-operators, mine
foremen, and other supervisors as defined in the Act.
Thereafter, on May 8, 1967 in Layne & Son Coal Co.,
Cases 10-RC-6422, 10-RC-6421, 10-RC-6653,
10-RC-6784, 10-RC-6785, 10-RC-6801, in an unpublished
decision, order and direction of elections involving
petitions for certification filed by Southern Labor Union,
Local Union No. 139, covering, among others, the
employees of two of the Respondents herein, Gob Coal
Company (herein called Gob), and Trio, Inc. (herein
called Trio), the Board determined that "the Board's
certification of June 7, 1965, as corrected on August 31,
1965, in Sewanee Coal Operators Association, Case
10-RC-5497, covers employees of . . Trio, Inc. and Gob
Coal Company, and we shall dismiss the petitions for the
employees of these Employers."
On March 11, 1968, in Mutual Coal Company, Inc.,
170 NLRB No. 27, involving petitions for certification
filed by Southern Labor Union, Local No. 139, with
respect to the employees of Mutual Coal Company, Inc.
(herein called Mutual) and of Gravitt Coal Company
(herein called Gravitt), the Board dismissed the petitions
upon the grounds that the employees of both Mutual and
181 NLRB No. 73
MUTUAL COAL CO. 565
Gravitt were covered by the Board's corrected certification
issued on August 31, '1965, in the Sewanee case. The
Board's conclusion in this regard was predicated upon its
subsidiary findings that Elgin Coal Company (herein
called Elgin) was covered by the corrected certification in
the Sewanee case and that Mutual and Gravitt are mere
"administrative segments of Elgin and are not independent
contractors."
Upon the entire record in the case,' my consideration of
the briefs filed by the General Counsel and the
Respondent, and from my observation of the witnesses, I
make the following.
FINDINGS AND CONCLUSIONS
1. JURISDICTIONAL FINDINGS
As I construe the Board's decision in the Mutual Coal
Company case, supra, the Board, by finding that Mutual
and Gravitt were "administrative segments of Elgin and
are not independent contractors" and by citing the Leckie
case (160 NLRB 329), a case closely paralleling the
Mutual case on the facts, in effect determined that Elgin
was the controlling employer of the employees in the
mines nominally operated by Mutual and Gravitt and as a
result these employees were part of the multiemployer unit
represented by the U.M.W pursuant to the corrected
certification issued in the Sewanee case. As found in the
Layne case, supra, the employees of Trio and Gob, the
two other Respondents in this case, were also part of the
multiemployer unit represented by the U.M.W., in
accordance with the Sewanee corrected certification.
Respondent Gob admits selling and shipping in excess of
$50,000 worth of coal annually directly to customers
located outside the State of Tennessee. Upon these facts I
find that the Board has jurisdiction over the operations of
all of the Respondents' and that it will effectuate the
policies of the Act to assert jurisdiction herein
II. THE LABOR ORGANIZATION INVOLVED
United Mine Workers of America and District 19,
United Mine Workers of America, are labor organizations
within the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. The refusals to bargain collectively in violation of
Section 8(a)(5) and (1) of the Act
1. The U. M.W.'s majority status in the appropriate
unit
As stated above, the employees of all of the
Respondents herein have been determined by the Board to
be in the unit stated in the corrected certification issued
by the Board's Regional Director in the Sewanee case on
August 31, 1965, naming the U.M.W. as the majority
representative of all of the production and maintenance
employees in the unit.'
,The record as a whole clearly indicates that Chester Brown sold out his
interest in Mutual Coal Company in 1968 . Accordingly , the official report
of proceedings is hereby corrected as follows p 6, I 24 " 1969" should
read "1968", p 21,1 13 "1969" should read "1968 "
'See Pearl Beer Distributing Co, 143 NLRB 596, 597.
'The validity of the corrected certification (prior to the issuance of the
Layne and Mutual clarifications ) is in issue in Tennessee Products &
2. The Respondents' refusals to bargain collectively
with the U M.W
Several months after the issuance of the Layne
decision, William J. Turnblazer, the president of District
19 of the U M.W. sent letters dated August 29, 1967, to
J. H. Graham at both the Gob and Trio Coal Companies,
the text of which is as follows:
On August 22, 1967, the National Labor Relations
Board again affirmed that United Mine Workers of
America is the exclusive bargaining representative of
employees of coal operators who were former members
of Sewanee Coal Operators' Association, and that said
operators should bargain with United Mine Workers of
America upon request.
We request that you meet with us to negotiate a
contract covering wages, hours of work and other
working conditions. We reiterate what we have stated
in previous letters that all matters are negotiable
including a tonnage rate.
We offer to make a sincere effort to negotiate a
contract to settle all differences at a mutually agreed
time and place.
Please let me hear from you at your earliest
convenience.
No answer to these letters was received from either
Gob or Trio
On March 26, 1968, Turnblazer mailed letters bearing
the text set forth below to both Gravitt and Mutual:
United Mine Workers of America has been notified
by the National Labor Relations Board that your
company is covered by a certification heretofore issued
and that you are required to bargain with the
bargaining agent of your employees on questions
concerning rates of pay, hours of work and working
conditions
United Mine Workers of America , bargaining agent
of your employees request that you meet at a mutually
agreed time and place to negotiate a contract.
Trusting to hear from you, I am
Neither Gravitt nor Mutual replied to this letter.
Thereafter on January 9, 1969, Turnblazer, in letters
sent to Graham at Gob and Trio , again requested
meetings to negotiate a contract. Included in each letter
was the following statement:
We reiterate what we have stated in previous letters that
all matters are negotiable including a tonnage rate.
In a letter dated January 16, 1969, William M. Ables, Jr.,
the Respondents' attorney, stated in reply as follows:
At this time , Trio, Inc. is no longer in operation. At
this time, Gob Coal Co. is operating, but is not
interested in negotiations . We are waiting the final
results of the case now pending before the Sixth Circuit
Court of Appeals wherein an enforcement order was
asked in the old Sewanee Case. As soon as this matter
is concluded we will then be in a position to know what
we wish to do.
On March 21, 1969, after the filing of the charge in this
case , Turnblazer sent a letter to all five Respondents
stating:
The United Mine Workers of America is the
certified bargaining representative of all production and
Chemical Corp v N L R B, No 18356, and N L R B v Barham Coal
Company, No 18463, argued during February 1969, before the United
States Court of Appeals for the Sixth Circuit, and now pending decision
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maintenance employees working for employers within
the multiemployer bargaining unit found appropriate in
Sewanee Coal Operators Association, Inc., Case No.
10-RC-5497
Since Elgin Coal Company is within the
multiemployer unit, the United Mine Workers of
America hereby requests that you meet and bargain
with its representatives jointly together with the other
employers within the unit or together with such other
unit employers as are willing to meet and bargain. As
an alternative, the United Mine Workers of America is
willing to meet and bargain with you separately
We offer to make a sincere effort to negotiate a
contract covering the wages, hours and other terms and
conditions of employment of the production and
maintenance employees All matters are negotiable,
including a tonnage rate.
Please let me hear from you at your earliest
convenience When you contact us we can make
arrangements to meet at a time and place that is
mutually agreeable.
Attorney Ables, in letters sent on behalf of Elgin, Gob
and Trio, declined to bargain collectively with the
U.M.W., stating in the letters sent on behalf of Elgin and
Gob that each would await the outcome of the Sixth
Circuit litigation before deciding what course to pursue In
the letter sent on behalf of Elgin, Ables added that Elgin
did not have any employees in the unit. No response was
received from the other two Respondents named in this
proceeding.
3 The Respondents ' defenses to the allegations of
violations of Section 8(a)(1) and (5) of the Act
The Respondents in their brief do not dispute the fact
that all five Respondents refused to bargain collectively
with the U.M.W., as alleged in the complaint. Instead,
under five main headings they present a number of points
for consideration which they contend preclude the issuance
of any bargaining order in this case. These contentions are
discussed in turn below.
a. The claim that Mutual and Trio are not properly
before the Board because of faulty service of the
complaint upon them and because they have allegedly
gone out of business
Mutual - . At the time of the representation case
involving Mutual, this corporation had an oral agreement
with Elgin to operate a mine on land which Elgin leased
from Tennessee Products and Chemical Corporation.
Chester Brown and others were the stockholders in this
corporation. In June 1968 the stockholders in Mutual,
including Chester Brown, sold all their stock in Mutual to
Lon Varnell and the corporation ceased doing business at
that time. No coal has been shipped by Mutual from this
mine since June 1968. Chester Brown has had no further
connection with Mutual since June 1968.
At the time of the hearing in the instant case the
Mutual mine was being operated by H and L Coal,
Incorporated (herein called H and L), under a written
lease from Elgin. Lon Varnell and one or more others are
the stockholders in H and L
A copy of the complaint and notice of hearing was
mailed to the residence of Chester Brown, a former
stockholder in Mutual on May 13, 1969, almost a year
after Brown had sold his stock in Mutual and severed all
connection with Mutual Mrs. Chester Brown signed the
return receipt for this document. I agree that in the
circumstances of this case service of the complaint and
notice of hearing on Chester Brown was not sufficient to
subject Mutual to the jurisdiction of the Board. However,
in view of the fact that Elgin was properly served with a
copy of the complaint and notice of hearing, it is
immaterial that Mutual was not served As stated above,
the Board in effect found in the Mutual case that Elgin
was the controlling employer of the employees in the mine
operated in the name of Mutual. The Board's decision in
the Mutual case makes it clear that it was only by virtue
of Elgin's control of Mutual that the employees in this
mine were held to be covered by the corrected certification
in the Sewanee case Accordingly, service of process upon
Elgin conferred jurisdiction upon the Board to consider
the issues raised by the complaint insofar as they relate to
the bargaining rights of the employees working in the
mine formerly operated in the name of Mutual.
In view of the relationship between Elgin and Mutual at
the time Mutual was nominally operating the mine, the
subsequent termination of all connection between Elgin
and Mutual with respect to the operation of this mine,
and the taking over of the operations of the mine by H
and L, it would not, in my opinion, effectuate the policies
of the Act to enter any remedial order against Mutual. To
the extent that the employees working in this mine are
still covered by the corrected certification in the Sewanee
case, their bargaining rights will be protected by the order
which will be entered against Elgin To this extent, the
Respondents' contention based on Mutual's cessation of
business is sustained.
Trio - . As found in the Layne decision, this
corporation is or was owned in equal shares by J. H
Graham, George Ramsy and Lon Varnell, the same three
men who are the sole stockholders in Elgin. As found in
the Layne decision, Trio operated Griffith Creek 2 Mine
under a lease from Elgin Elgin controlled the property
under a lease from Tennessee Products which expires in
1972 In May or June 1968, Trio ceased operating the
mine Thereafter Big T, Incorporated, which is owned by
George Ramsey and his son Tom, took over the operation
of Griffith Creek 2 Mine pursuant to a written lease from
Elgin At the end of Trio's fiscal year, the date of which is
not stated in the record, the corporation surrendered its
charter pursuant to Section 48-513 of the Tennessee Code
Annotated. Under Tennessee law the surrender of Trio's
charter terminated its right to continue the corporate
business. The Respondents contend that in view of this
fact no order should be entered against Trio. Ordinarily
the fact that an employer has ceased doing business does
not justify the Board in refusing to enter a remedial order
since it is concerned with securing compliance with the
order by the employer's successor if the circumstances
warrant it.I However, in this case the normal
successorship considerations do not apply. After Trio
ceased operating at Griffith Creek 2 Mine its lease with
Elgin was terminated and Elgin leased the Mine to Big T,
Incorporated Having lost its lease on the Mine and
having surrendered its charter, Trio no longer had any
rights to which a successor could succeed Furthermore,
even if this were not the case, under the unusual type of
certification here involved not every successor to Trio's
operations would be subject to the obligation of
bargaining collectively with the U.M W. as part of the
multiemployer unit. Only a successor falling within the
'Southport Petroleum Co v NLRB , 315 U S 100 , 106107
MUTUAL COAL CO. 567
terms of the corrected certification could be liable as a
successor, i e , an operator who was formerly a member of
Sewanee Coal Operators' Association, including
individuals who had sole or controlling interest in a
corporation which was a member of Sewanee Coal
Operators' Association who form another corporation. In
view of these facts and the further fact that a remedial
order will be entered herein against Elgin, which has the
right to control the disposition of the Griffith Creek 2
Mine until 1972, it would not be appropriate in my
opinion to enter a remedial order against Trio solely for
its possible effect upon successors. The Respondents'
contention in this regard is sustained.'
b. The contention that Elgin has no employees in the
unit
The Board's finding in the Layne case, supra, that the
employees working in the Mutual and Gravitt mines are
employees of Elgin answers the contention that Elgin has
no employees.
c The contention that the requests to bargain
collectively cannot be regarded as having been made
by the U M W, the certified representative, since the
letters requesting bargaining were all signed by the
President of District 19
Although all of the letters requesting the
commencement of bargaining negotiations referred to
above were signed by William J. Turnblazer, the president
of District 19 of the U.M W., in all of the letters except
the two sent to Trio and Gob in January 1969 Turnblazer
referred to the fact that the U.M.W. was the certified
representative of the employees involved. These letters
therefore were requests from the U.M.W. to bargain
collectively. If any of the Respondents had any doubts
about the authority of Turnblazer to speak for the
U.M.W. in this regard, they had but to raise the question.
However, at no time did any of the Respondents question
the authority of Turnblazer to speak for the U.M.W. in
requesting the opening of collective-bargaining
negotiations. The Respondents, or rather those of them
which replied to Turnblazer's letters, were refusing to
bargain with the U.M.W not because of any claim of a
faulty request to bargain but because they had other
reasons which they deemed good and sufficient, as
Attorney Ables' letters made clear. In these circumstances
I am constrained to reject the Respondent's argument
based upon Turnblazer's alleged lack of authority to speak
for the U.M.W.
d. The contention that the U.M W is engaged in a
conspiracy with large coal operators to drive the
Respondents out of business and therefore cannot
properly represent the interest of the Respondents'
employees in collective bargaining
To establish this alleged illegal conspiracy the
Respondents rely upon two cases The first case is George
Ramsey, et al v. United Mine Workers decided April'8,
'The Respondents ' contention regarding the failure of service of the
complaint and notice of hearing upon Trio is rejected Service was had
upon J H Graham , one of Trio's three former stockholders and owners,
on May 14, 1969 Section 48-514 of the Tennessee Code Annotated
provides that corporations which are in the process of being dissolved
"shall continue to exist for the purpose of winding up its affairs so long as
may be necessary for that purpose " See also Section 48-1014.
1969 (C A 6), 70 LRRM 3281, reversing George Ramsey
et al v. United Mine Workers and Tennessee Products
and Chemical Corp v. United Mine Workers, 265
F Supp. 388 The second case is Tennessee Consolidated
Coal Company et al v United Mine Workers, judgment
entered May 8, 1968 (D.C Tenn.), now pending upon
appeal in the Sixth Circuit
The plaintiffs in both actions are mine operators in the
same Southeastern Tennessee area in which the
Respondents operate, and the plaintiffs in the case first
above cited include J. H Graham, George Ramsey and
Lon Varnell who are principals in one or more of the
Respondents involved in this case. Both of the above court
decisions involve allegations that the U.M W. conspired
with the major coal companies of the country to force
upon the nonsignatories of the National Bituminous Coal
Wage Agreement the same terms agreed upon with
Bituminous Coal Operators Association in the National
Agreement, thereby violating Sections I and 2 of the
Sherman Antitrust Act
The Ramsey case was tried before District Judge Frank
W Wilson in September 1965, without a jury After
reviewing all the evidence relied upon by the plaintiffs to
establish the illegal conspiracy, including the negotiation
and enforcement of the National Bituminous Coal Wage
Agreement, the granting of large successive wage and
fringe benefit increases, the alleged dumping of large
quantities of coal upon the TVA market by the large coal
companies with heavy financial support from the U M.W.,
and the alleged fomenting of strikes and violence by the
U.M.W., the District Court concluded that only the
evidence concerning the negotiation and administration of
the National Agreement tended to support the plaintiffs
claims concerning an illegal conspiracy. With regard to
this evidence the District Court found that a
preponderance of the evidence established that the
U.M.W impliedly agreed with the Bituminous Coal
Operators Association not to bargain with any
nonsignatory coal operator upon any terms other than
those contained in the National Bituminous Coal Wage
Agreement The District Court also found as follows (265
F Supp., at 430):
In the period since 1960 the coal operators in the
Southeastern Tennessee coal field have been unable to
compete and survive in the T.V.A coal market under
the National Bituminous Coal Wage Agreement. While
in many instances this appears to have been due to
antiquated mining methods and equipment or other
causes, the fact nevertheless remains that since 1960
there has not been a single instance of a successful coal
mining operation in the Southeastern Tennessee coal
field under the National Bituminous Coal Wage
Agreement and this in spite of the fact that the only
feasible alternative facing most coal operators in the
area was to operate under the national contract or go
out of business
Although ruling that a preponderance of the evidence
established an implied commitment by the U M.W. to the
Bituminous Coal Operators Association not to contract
with any other coal operators or any terms other than
those set forth in the National Agreement,6 terms which
the District Court found left most coal operators in the
area in which plaintiffs operated no feasible alternative
other than to go out of business, the District Court
'One of the terms of the National Agreement was the provision requiring
the operators to pay to the U M W 's welfare fund a royalty of 40 cents
per ton of coal produced (265 F Supp at 410 fn 2)
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concluded that the proof did not adequately establish the
Sherman Antitrust Act violation alleged since it did not
satisfy the "clear proof" test which the Court held was
required by Section 6 of the Norris La Guardia Act (29
U S.C. Secs 106) in order to find a labor union guilty of
an unlawful conspiracy under the Sherman Antitrust Act
(265 F.Supp., at 412). Accordingly the District Court
ruled in favor of the U.M.W.
On appeal, the United States Court of Appeals for the
Sixth Circuit reversed, with Judge Edwards dissenting
The Court of Appeals disagreed with the District Court's
conclusion which it quoted from the District Court's
opinion that "although plaintiffs had made out a case of
the Mine Workers' violation of the antitrust laws by a
preponderance of the evidence, a labor union cannot be
convicted of such a violation except by the clear proof rule
of Section 6 of the Norris La Guardia Act, 29 U.S.C.
Secs 106." (70 LRRM at 3282). (Emphasis in Sixth
Circuit' s opinion .) The Sixth Circuit held that the
traditional preponderance of the evidence rule was
applicable, rather than the "clear proof' test applied by
the District Court. In its opinion that Court of Appeals,
in discussing the "conspirational and predatory purpose"
of the U.M.W.'s commitment to the Bituminous Coal
Operators Association, alluded to the large sums of
money which the U.M.W "paid for the depredations and
violence - the reign of terror - which it employed in
driving out of coal mining those who could not live with
the terms of the National Bituminous Wage Agreement."
(70 LRRM at 3287).
The second case relied upon by the Respondents to
establish the fact of the conspiracy - the Tennessee
Consolidated case - was tried in August 1967 before a
jury, with District Judge Frank W. Wilson again
presiding. The evidence followed very closely the evidence
introduced in the Ramsey case discussed above. Indeed,
much of the evidence in the Tennessee Consolidated case
was read into the record from the Ramsey case The jury
handed down a verdict in effect finding that the U.M.W.,
by its conduct in connection with the National Bituminous
Coal Wage Agreement, engaged in a conspiracy with
major coal producers to suppress or eliminate the
production of coal in the Southeastern Tennessee coal
fields. This was held to violate Section 1 or 2 of the
Sherman Antitrust Act. This verdict was fully upheld by
the District Court. See opinion of District Judge Frank
W. Wilson on U.M W 's Motion for Judgment in
accordance with Motions for Directed Verdict, or in the
alternative, Motion for New Trial (Resp. Exh 4). As
indicated above, the judgment and orders of the District
Court in this case were appealed to the Sixth Circuit and
the action is now pending in that Court.
The Respondents contend that in view of these findings
of a conspiracy between the U.M.W. and major coal
producers to suppress or eliminate the production of coal
in the Southeastern Tennessee coal fields - a conspiracy
in effect, to drive the Respondents out of business - the
U.M.W. is disqualified from acting as bargaining
representative of any of the Respondents' employees. The
Respondents cite N L R B v David Buttrick Company,
361 F.2d 300 (C.A. 1), in which the Court gives careful
consideration to the problems of conflicts of interest on
the part of a bargaining representative. In its opinion the
First Circuit stressed the necessity of an exclusive
bargaining representative having "the freedom to conclude
such bargaining negotiations free of the suspicion that it is
motivated by any purpose other than its loyalty to the
employees it represents" (300 F 2d, at 307). The Board in
its decision on remand from the First Circuit in the David
Buttrick case fully agreed with the First Circuit as to the
proper standard to be applied in determining whether a
bargaining representative is faced with even a potential,
conflict-of-interest situation, 167 NLRB No 58.
There can be no question, in my opinion, that if at the
time of the requests to bargain involved in this case, the
U.M.W. was continuing to engage in the conspiracy in
which it was found to have engaged in the two decisions
discussed above, then the U.M.W. was disqualified from
acting as of the exclusive bargaining representative of any
of the Respondents' employees. A more serious
conflict-of-interest situation can scarcely be imagined, and
it existed not only as regards the U M.W.'s obligations to
the employers here involved, but also with respect to its
obligations to the employees involved. Having bound itself
not to contract with any operator on any terms other than
those provided in the National Agreement the U M.W.
plainly was not in a position to bargain collectively in
good faith with the Respondents or any other mining
operators in the Southeastern Tennessee area which were
the targets of the conspiracy Nor could the U.M W
fairly represent the interests of the Respondents'
employees when its underlying goal was to force them out
of their jobs.
This brings me to the question whether the U.M W
was in fact continuing to engage in the conspiracy at the
time of the requests to bargain involved in this case For
the law is clear that "though the union may have
misconducted itself, it has a locus penitentiae; if it offers
in good faith to treat, the employer may not refuse
because of its past sins " N L R B v. Remington Rand,
Inc., 94 F.2d 862, 872-873 (C A. 2), cert denied 304 U.S.
576.
The Sixth Circuit's opinion in the Ramsey case speaks .
as of the time of the District Court trial in August 1965
The Tennessee Consolidated case reflects the situation as
of the trial in August 1967. The U M.W. introduced no
evidence whatever rebutting the Respondents' evidence
concerning the existence of the conspiracy.
However, in the first letters requesting collective
bargaining which were sent by the U.M.W. to J H.
Graham at Gob and Trio on August 27, 1967, the
U.M.W reiterated "that all matters are negotiable
including a tonnage rate." This representation, if it is
taken at face value, indicates at least as to the
Respondents Gob and Trio that the U.M.W. intended to
abandon the conspiracy, and to bargain in good faith
without regard to the terms of the National Agreement.
The inclusion of the reference to a willingness to
bargain concerning the tonnage rate, which I infer refers
to the cents per ton royalty to be paid into the U.M.W.'s
welfare fund, is significant in that the royalty provision
was an essential part of the National Agreement and the
unlawful scheme to impose terms on the mining operators
in the Southeastern Tennessee area which they could not
meet and still remain in business. The District Court's
opinion in the Ramsey case speaks of a 40 cents per ton
royalty as of 1964. This representation that all matters
were negotiable, including the tonnage rate, was made to
Graham, Trio and Gob, after the District Court had
handed down its opinion stating that a preponderance of
the evidence established that the U.M.W impliedly agreed
not to bargain with any other coal operator upon any
terms other than the National Agreement, and after the
appeal had been filed in the Sixth Circuit.
MUTUAL COAL CO. 569
The second letter requesting collective bargaining which
was sent to J: H Graham at Gob and Trio also included
the same representation that all matters were negotiable,
including a tonnage rate. This same representation was
included in the letters requesting collective bargaining sent
to all Respondents on March 21, 1969, after the filing of
the charge in this case ,
While I share the skepticism of the Respondents'
attorney concerning such, a representation which appears
to have been made to enhance a party's chances in
pending litigation (U S v. Parke Davis and Company, 362
U S. 29, 48), this same representation had been made
twice before when no action had been commenced.
There is nothing in the record which clearly indicates
one way or another whether the U M W.'s representation
was true or false The timing of the making of the
representation, after the District Court had found
adversely to it on the preponderance of the evidence test
and after the case was pending on appeal in the Sixth
Circuit, suggests that the U.M W. may have reconsidered
its prior policy and have abandoned it in order to avoid
possible further future liability In any event, in my
opinion the Respondents were obligated -to put the
U. M. W to the test by agreeing to sit down with the
U M.W and bargain with it in accordance with the
Board's decisions in the Sewanee, Layne and Mutual
cases Having failed to do so, the Respondents are hardly
in a position to assert that the U.M W 's repeated
representations that all matters were negotiable, including
the tonnage rate, were untrue. Under all the circumstances
I conclude, in view of the U M W 's offers to negotiate in
good faith, its repeated efforts to assure the Respondents
that it would bargain on all subjects with an open mind,
that it would be unreasonable to infer that at the time of
the requests to bargain collectively involved in this case
the U.M.W. was still participating in the conspiracy to
drive mining operators in the Southeastern Tennessee area
out of business. Accordingly, the Respondents' contention
in this regard is rejected.'
e. The claim that the U M W and District 19 have
no standing before the Board because of their failure
to comply with the election-of-officers requirements
of the Labor-Management Reporting and Disclosure
Act of 1959
Attorney Ables stated for the record that District 19
was a provisional,district of the U M.W and that it had
not had ari election of officers for many years. Accepting
the truth of this statement, as I do, it established at most
a violation of the Labor-Management Reporting and
Disclosure Procedure on the part of District 19 However,
it is the UMW and not District 19 which is the certified
representative of the employees here involved. Hence, the
fact of District ',' 19's noncompliance with the
Labor-Management Reporting and Disclosures Procedure
is immaterial in this case Furthermore, even if the
U.M W itself were in violation of these statutory
requirements,' this fact would not constitute a defense in
this case. The Board has held that such violations do not
impair the right of labor organizations to act as statutory
bargaining representatives, and that the remedy for such
violations lies elsewhere than with the Board See Alto
'While the U M W in the letters requesting collective bargaining sent to
Mutual and Gravitt in March 1968 failed to include the representation that
all matters were negotiable, since, as found below, no order is being
entered against either Mutual or Gravia this fact is immaterial
Plastics Manufacturing Corporation, 136 NLRB 850;
Meier Supermarket, inc , 142 NLRB 513
CONCLUSIONS OF LAW
1. At all times on and after August 29, 1967, the
U.M.W has been the duly certified exclusive
collective-bargaining representative of the production and
maintenance employees in the multiemployer bargaining
unit stated in the Board's corrected certification of
representatives, dated August 31, 1965, in Sewanee Coal
Operators' Association, inc , et al, Case 10-RC-5497,
including the production and maintenance employees of
Gob Coal Company, Sequatchie, Tennessee
2 At all times on and after March 26, 1968, the
U M W. has been the duly certified exclusive
collective-bargaining representative of the production and
maintenance employees in the multiemployer bargaining
unit stated in the Board's corrected certification of
representatives, dated August 31, 1965, in Sewanee Coal
Operators' Association, Inc , Case 10-RC-5497, including
the production and maintenance employees of Elgin Coal
Company, Whitewell, Tennessee, working in the mines
operated or formerly operated in the names of Gravitt
Coal Company and Mutual Coal Company
3. Gob Coal Company, by refusing at all times after
August 29, 1967, to bargain collectively with the U.M.W.
as the exclusive collective-bargaining representative of the
production and maintenance employees in the
multiemployer appropriate unit stated above, has engaged
in unfair labor practices in violation of Section 8(a)(5) and
(1) of the Act.
4 Elgin Coal Company, by refusing at all times after
March 26, 1968, to bargain collectively with the U M.W.
as the exclusive collective-bargaining representative of the
production and maintenance employees in the
multiemployer appropriate unit stated above, including the
production and maintenance employees working in the
mines operated or formerly operated in the name of
Gravitt Coal Company and Mutual Coal Company, has
engaged in unfair labor practices in violation of Section
8(a)(5) and (1) of the Act.
5 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondents, Gob Coal
Company and Elgin Coal Company, have unlawfully
refused to bargain collectively with the U.M W , my
Recommended Order will gonta ►n the conventional cease
and desist and affirmative bargaining provisions against
these employers.
As stated above, no remedial order is being entered
against Mutual because of the relationship between Elgin
and Mutual and because of Mutual's cessation of
operations While Gravitt is still nominally operating a
mine under lease from Elgin, its relationship with Elgin,
as found in the Mutual decision, is such, in my opinion, as
to deprive it of the power independently to make the
decisions which become necessary in the course of
collective bargaining As found in the Mutual case,
Gravitt, as well as Mutual, was an "administrative
segment" of Elgin In these circumstances, it would be
unrealistic to enter an order against Gravitt as an
employer. The order against Elgin, the controlling
employer, in my opinion, will adequately protect the
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining rights of the employees in the mine operated in
the name of Gravitt
I am including in my Recommended Order the usual
provision directing the Order not only against
Respondents Elgin and Gob, but also against their
successors and assigns, as well. In doing so I intend that it
be construed as applying only to those successor
employers who, by virtue of their being former members
of the Sewanee Coal Operators' Association, Inc. or
individuals who had a controlling interest in a corporation
which was formerly a member of the Sewanee Coal
Operators' Association, Inc. who formed another
corporation, became subject to the collective-bargaining
obligations declared in the corrected certification in the
Sewanee case
Upon the foregoing findings and conclusions and the
entire record and pursuant to Section 10(c) of the Act,
there is hereby issued the following:
(c) Notify the Regional Director for Region 10, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.'
pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps
Respondents have taken to comply herewith "
APPENDIX A
NOTICE TO EMPLOYEES
RECOMMENDED ORDER
The Respondents, Gob Coal Company, Sequatchie,
Tennessee, and Elgin Coal Company, Whitwell,
Tennessee, their officers, agents, successors and assigns,
shall:
1. Cease and desist from refusing to bargain collectively
with United Mine Workers of America as the exclusive
bargaining representative of the production and
maintenance employees of all of the employees in the
multiemployer bargaining unit stated in the Board's
corrected certification of representatives, dated August 31,
1965, in Sewanee Coal Operators' Association, Inc, Cases
10-RC-5497, 10-RC-5593, 10-RC-5604, and 10-RC-5605,
with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Upon request, bargain collectively with United Mine
Workers of America as the exclusive representative of all
the employees in the multiemployer appropriate unit of
production and maintenance employees stated above.
(b) Post at their mines at Sequatchie and Whitwell,
Tennessee, which include in the case of Elgin Coal
Company the mines now or formerly operated in the
name of Gravitt Coal Company and Mutual Coal
Company, copies of the attached notice The notice to be
posted by Gob Coal Company is marked "Appendix A"
and the notice to be posted by Elgin Coal Company is
marked "Appendix B" Copies of said notice, on forms
provided by the Regional Director for Region 10, after
being signed by an authorized representative, shall be
posted by each Respondent at its mine or mines
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondents to insure that said notices are not altered,
defaced, or covered by any other material
'In the event no exceptions are filed as provided by Section 102 46 of the
Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board's 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 be changed to read "Posted
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL, upon request, bargain collectively with
United Mine Workers of America, as the exclusive
representative of all the production and maintenance
employees in the multiemployer bargaining unit set
forth in the Board's corrected certification of
representative dated August 31, 1965, in Cases
10-RC-5497, 10-RC-5593, 10-RC-5604, and
10-RC-5605, which includes our production and
maintenance employees
Dated By
GOB COAL COMPANY
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's Office,
730 Peachtree Street, NE., Atlanta, Georgia 30308,
Telephone 526-5760
APPENDIX B
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL, upon request, bargain collectively with
United Mine Workers of America, as the exclusive
representative of all the production and maintenance
employees in the multiemployer bargaining unit set
forth in the Board's corrected certification of
representative dated August 31, 1965, in Cases
10-RC-5497, 10-RC-5593, 10-RC-5604, and
10-RC-5605, which includes the production and
maintenance employees in the mines operated, or
formerly operated, in the names of Gravitt Coal
Company and Mutual Coal Company.
Dated By
ELGIN COAL COMPANY
(Employer)
(Representative ) (Title)
MUTUAL COAL CO. 571
This is an official notice and must not be defaced by or covered by any other material
anyone Any questions concerning this Notice or compliance
with its provisions, may be directed to the Board's Office,
This Notice must remain posted for 60 consecutive days 730 Peachtree Street, NE., Atlanta, Georgia 30308,
from the date of posting and must not be altered, defaced, Telephone 526-5760