Raymond O. Lewis, W. A. Boyle & John Owens, Etc.

National Labor Relations Board - Board Decisions

Aug 27, 1963

144 N.L.R.B. 228 (N.L.R.B. 1963)

228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discharge or otherwise discriminate against our employees
because they have given testimony under the Act.
WE WILL NOT discourage membership of our employees in United Steel-
workers of America , AFL-CIO, or in any other labor organization of our em-
ployees, by discriminating in regard to hire or tenure of employment or any
term or condition thereof.
WE WILL NOT threaten our employees for engaging in union activities.
WE WILL NOT refuse to bargain collectively in good faith with United Steel-
workers of America , AFL-CIO, as the exclusive bargaining representative of
all our production and maintenance employees , including shipping and receiving
employees, leadmen , and truckdrivers , employed at our Arlington , Texas, plant,
exclusive of guards , watchmen , office clericals , professional , technical employees,
and all supervisors as defined in the Act , with respect to rates of pay, wages,
hours of employment , and other terms and conditions of employment.
WE WILL NOT unilaterally grant wage increases to, or otherwise alter the
terms and conditions of employment of, our employees in the above-described
appropriate unit, without first giving notice to and discussing the matter with
the above -named Union as the exclusive bargaining representative of our em-
ployees in such unit.
WE WILL furnish to the above -named Union , or its agents , upon request, the
job classifications and wage rates of the employees in the appropriate unit.
WE WILL, upon request , meet with and bargain coll @ctively with the above
Union with reasonable frequency and promptness concerning the negotiation
of a contract.
WE WILL make whole Milford Scott for any loss of earnings he may have
suffered as a result of the discrimination against him.
WE WILL NOT in any manner interfere with our employees ' rights as guaran-
teed in the Act.
All our employees are free to become , remain , or refrain from becoming or re-
maining, members of the above labor organization , or any labor organization.
R.C. CAN COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
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.
Employees may communicate directly with the Board 's Regional Office, Sixth
Floor, Meacham Building, 110 West Fifth Street, Fort Worth 2, Texas, Telephone
No. Edison 5-4211 , Extension 2131 , if they have any question concerning this
notice or any compliance with its provisions.
Raymond O . Lewis,* W. A. Boyle and John Owens , as Agents for
the International Union , United Mine Workers of America and
as Members of the Joint Industry Contract Committee estab-
lished by the National Bituminous Coal Wage Agreement of
1950, and Edward G. Fox , C. W. Davis and Hamilton K. Beebe,
as Agents for the Coal Operators signatory to the National
Bituminous Coal Wage Agreement of 1950 and as Members of
the Joint Industry Contract Committee established by that
Agreement and Arthur J. Galligan . Case No. 5-CE-6. August
27, 1963
DECISION AND ORDER
Upon charges duly filed on November 29, 1962, by Arthur J. Galli-
gan, an individual, the General Counsel of the National Labor Rela-
*Designated a member of the Committee to replace Thomas Kennedy, deceased.
144 NLRB No. 29.
RAYMOND O. LEWIS, W. A. BOYLE & JOHN OWENS, ETC. 229
tions Board, by the Regional Director for the Fifth Region, issued a
complaint dated February 7, 1963, against Raymond O. Lewis, W. A.
Boyle, and John Owens, as agents for the International Union,
United Mine Workers of America 1 and as members of the Joint
Industry Contract Committee established by the National Bituminous
Coal Wage Agreement of 1950, and Edward G. Fox, C. W. Davis,
and Hamilton K. Beebe, as agents for the Coal Operators 2 signatory
to the National Bituminous Coal Wage Agreement of 1950 and as
members of the Joint Industry Contract Committee established by
that agreement, alleging that said Respondents had engaged in and
were engaging in unfair labor practices within the meaning of
Section 8(e) and Section 2(6) and (7) of the National Labor Rela-
tions Act, as amended. Copies of the charge, complaint, and notice
of hearing before a Trial Examiner were duly served upon the
Respondents and the Charging Party.
With respect to the unfair labor practices, the complaint alleges,
in substance, that on or about December 3, 1958, the Union and the
Signatory Operators entered into a written contract containing a
clause in which the Signatory Operators have agreed to cease and
refrain from handling, using, selling, transporting, or otherwise
dealing in the products of other employers and have agreed to cease
doing business with other persons and have, at all times material
herein, continuing to the date of the complaint, continued to main-
tain this contract.
The Respondents' answer, dated February 14, 1963, admits certain
jurisdictional and factual allegations of the complaint, but denies the
commission of any unfair labor practices.
On February 18, 1963, all parties to this proceeding entered into
a stipulation and jointly moved to transfer this proceeding directly
to the Board for findings of fact, conclusions of law, and Decision
and Order by the Board. The parties waived a hearing before a
Trial Examiner, the issuance of an Intermediate Report by a Trial
Examiner, the filing of exceptions with the Board, and oral argu-
ment before the Board. The parties agreed that the stipulation, in-
cluding the charge, complaint, notice of hearing, and answer, con-
stitutes the entire record in the proceeding.
On February 25, 1963, the Board granted the parties' motion to
transfer the case to the Board. Briefs were thereafter filed by the
General Counsel and the Respondents. Upon the basis of the parties'
'Herein referred to as the Union , the UMW, or collectively with the Operators (foot-
note 2, infra ), the Respondents.
-'Herein referred to as the Operators , the Signatory Operators , or, collectively with the
Union ( footnote 1, supra ), the Respondents.
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stipulation, the briefs, and the entire record in the case, the Board s
makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Operators, who are signatory to the National Bituminous Coal
Wage Agreement of 1950, are engaged in the production and mining
of coal and annually ship coal in interstate commerce having a value
in excess of $50,000. Over the past 12 years between 74 and 79 percent
of the bituminous coal produced in the United States, which during
this period has been in excess of 300 million tons, has been produced
by these Signatory Operators.
The complaint alleges, the answer admits, and we find, that the
Operators are engaged in commerce and their operations affect and
have affected commerce within the meaning of Section 2(6) and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union, United Mine Workers of America, is, and
at all times material herein has been, a labor organization within the
meaning of Section 2 (5) of the Act.
M. THE UNFAIR LABOR PRACTICES
Collective-Bargaining History
Collective bargaining in the bituminous coal industry has followed
a multiemployer pattern dating back to the turn of the century. From
1898 until 1927 the Union and the operators in the "Central Competi-
tive Field" negotiated agreements which set the pattern for coal mine
negotiations in other areas of the country between various districts of
the Union and local associations of coal mine operators. The bargain-
ing procedures in the "Central Competitive Field" collapsed in 1927.
From 1934 through 1940 agreements were negotiated between the
Union and the operators in the Appalachian area, which served as a
pattern for the remainder of the industry. In 1941 the Appalachian
operators split into northern and southern groups, which division
persists to this day. In addition, many midwestern operators negotiate
with the Union through local associations. Since 1950, the negotiation
of collective-bargaining contracts for the industry has commenced
with the negotiation of an agreement with the Bituminous Coal Op-
erators Association, herein called BCOA, representing the northern
Appalachian group. The terms of the BCOA agreement are then
3 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in this case to a three-member panel [Chairman McCulloch and Members Rodgers
and Leedom].
RAYMOND 0. LEWIS, W. A. BOYLE & JOHN OWENS, ETC. 231
presented to the Southern Coal Producers' Association, the Midwest
operators' associations, and individual operators, who apparently
adopt the BCOA agreement. This procedure has resulted in a uniform
agreement under which 74 to 79 percent of bituminous coal in the
United States has been produced since 1950.
Economic Background
The production of bituminous coal in the United States has steadily
declined during the last two decades. For example, in 1945 the total
production (in thousands of net tons) of bituminous coal was 577,617;
in 1960 it was 413,000. Employment also has very significantly de-
clined. In 1940 there were 416,400 production workers ; in 1950 there
were 343,700; in 1960 the number had been reduced to 139,400. The
most recent years with available statistics (1955-60) indicate that an
annual average of 25 to 35 percent of total capacity lies idle. Added
to these facts is the further industrial necessity of one producer pur-
chasing coal from another producer to fulfill his contract obligations.
In the 3 years prior to the Protective Wage Clause amendment, i.e.,
1956, 1957, 1958, purchases of such coal amounted to, respectively, 18.9
percent; 14.6 percent; and 17.1 percent of total tonnage in the industry.
In 1959 the figure was 12.1 percent, in 1960 it was 11 percent, and for
1961 it had been further reduced to 9.5 percent (the latter, however,
may be based upon incomplete figures). All parties stipulated that
labor constitutes the principal cost item in the production of coal;
that there is an ever-increasing number of very small producers in the
industry; and that the purchasing of coal by one producer from an-
other producer is an essential marketing practice within the industry.
The Protective Wage Clause
The United Mine Workers has long sought to preserve work op-
portunities for employees it represents by negotiation of contractual re-
strictions upon the contracting-out of work. Examples of such clauses
as they appeared in contracts between the Operators and the UMW go-
ing back to 1941 are included in the stipulation of facts. These clauses
dealt with the problem primarily by prohibiting Operators from leas-
ing or subcontracting their own mining properties and facilities to
others as a subterfuge to avoid the provisions of the applicable col-
lective-bargaining agreement.
The bargaining history relating to the negotiation of the Protective
Wage Clause, at issue herein, reveals that the UMW was convinced
that previous clauses did not give sufficient protection from "the ever
encroaching evils and practices of subcontracting." Accordingly, it
made the demand for additional restrictions on the Operators' right to
subcontract, which led to the negotiation of the Protective Wage
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clause. The entire clause is set forth in Appendix A. In pertinent part
it provides:
B. It is recognized that when signatory operators mine, pre-
pare, or procure or acquire under subcontract arrangements, bi-
tuminous coal mined under terms and conditions less favorable
than those provided for in this contract, they deprive employees
of employment opportunities, employment conditions and other
benefits which these employees are entitled to have safeguarded,
stabilized and protected. Accordingly, the Operators agree that
all bituminous coal mined, produced, or prepared by them, or
any of them, or procured or acquired by them or any of them
under a subcontract arrangement, shall be or shall have been
mined or produced under terms and conditions which are as favor-
able to the employees as those provided for in this Contract.
"Procured or acquired under a subcontract arrangement" means
any contract, lease, license, agreement, arrangement or under-
standing pursuant to which the signatory operator acquires coal,
either as principal or agent, directly or indirectly from a pro-
ducer other than such signatory for delivery to a person other
than such signatory.
The obligation assumed hereunder shall not affect any agree-
ment in effect as of the date of execution of this contract : Pro-
vided, however, that any operator signatory hereto who is a
party to any agreement inconsistent with the obligations assumed
hereunder shall not maintain such inconsistent agreement in ef-
fect beyond the first date at which such agreement may be ter-
minated by him in accordance with its terms.
The Protective Wage Clause, which was set out in its entirety in the
complaint as an agreement alleged to be violative of Section 8(a),
also establishes a Joint Industry Contract Committee made up of
three industry members and three union members. It is these mem-
bers who are named as Respondents, both in their capacity as mem-
bers and as agents for their principals, which, in the case of the
industry members, consist of all Signatory Operators. The industry
members are selected by approval or ratification of operators repre-
senting 51 percent or more of the total coal produced by all Signa-
tory Operators during the previous calendar year. The members of
the Committee have been delegated authority to make the final de-
termination as to the fact of violation of the clause by any operator,
and no operator can be judged to be in violation, without a determi-
nation made by a majority vote of the Committee, and without an
opportunity to be heard by the Committee.
In an affidavit attached as an exhibit to the stipulation, John L.
Lewis explains the industrial reasons for the within-industry pur-
RAYMOND 0. LEWIS, W. A. BOYLE & JOHN OWENS, ETC. 233
chases and the relationship of this "legitimate commercial practice"
to the Protective Wage Clause as follows :
4. The utility and steel industries are among the largest and
most stable purchasers of bituminous coal. It is customary for
companies in these industries to cover a high percentage of their
needs through long-term contracts. Producers entering into these
contracts often need to supplement their own production in order
to meet delivery schedules.
5. Certain consumers require a particular grade, quality, size
or mix of coals. No single producer may be able to supply the
precise type of coal specified, thus necessitating a subcontract.
6. Prior to the effective date of the 1958 amendments to the
National Bituminous Coal Wage Agreement, the legitimate com-
mercial practices described in the preceding paragraphs had
given rise to certain abuses. These abuses arose from the fact
that coal produced in mines having substandard labor conditions
can usually be purchased at prices below the cost of production
at unionized mines. This results not only from the lower wages
paid in substandard mines but also from the absence of contri-
butions to any welfare fund, the lax observance of safety require-
ments, and the generally lower standard of working conditions
and fringe benefits prevailing in these mines. Before December 1,
1958, some producers who were signatories to the National Bi-
tuminous Coal Wage Agreement regularly purchased coal from
substandard mines solely because of this cost differential. This
occurred even though, in many instances, the purchasing producer
had ample producing capacity available to satisfy his customer's
requirements and there were employees on layoff who desperately
needed the employment opportunities which would have been
available had their employer elected to produce all of the coal
to be delivered to his customer rather than to purchase some
from a substandard supplier.
7. The Protective Wage Clause of the National Bituminous
Coal Wage Agreement was demanded and negotiated by the
United Mine Workers of America for the express purpose of
protecting the jobs of those members of the Union who were being
exploited by the abuses described in Paragraph 6 hereof.
The Issue
The General Counsel contends that the Protective Wage Clause
expressly binds the Signatory Operators to cease and refrain from
dealing in any manner with coal mined by employers who are not
observing union standards, whether or not such employers are under
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract with the Union, and to cease doing business with such oper-
ators, and, therefore, is prohibited by Section 8(e).4
Respondents defend the clause on the ground that its purposes are
primary, rather than secondary, in nature, and that it does not commit
the Signatory Operators to take any action which, if compelled by
proscribed means, would be unlawful, under Section 8(b) (4). It
contends the clause is beyond the reach of Section 8 (e) because its
basic objective is to protect the work, and to maintain the contract
standards under which such work is performed, of employees covered
by the BCWA.
Discussion
We have carefully considered all arguments and we conclude, in
agreement with the General Counsel, that the Protective Wage Clause
contravenes Section 8 (e). It is true, as pointed out by Respondents,
that the Board has indicated that Section 8 (e) is not to be so literally
construed as to ban contracts which are intended to reserve, for the
employees within the bargaining unit, work which they have tradi-
tionally performed.' We have approached the question of the in-
validity of the Protective Wage Clause with that principle in mind.
Further, we have considered that question with due regard for the
economic and historical problems relating to subcontracting of work
in the Bituminous Coal Industry, which the Protective Wage Clause
was intended to resolve.6
The heart of the Protective Wage Clause reads :
... the Operators agree that all bituminous coal mined, pro-
duced, or prepared by them, or any of them or procured or ac-
quired by them or any of them under a subcontract arrangement,
shall be or shall have been mined or produced under terms and
conditions which are as favorable to the employees as those pro-
vided for in this Contract.
A further provision of the clause provides :
4 In pertinent part that section provides : "It shall be an unfair labor practice for any
labor organization and any employer to enter into any contract or agreement, express or
implied, whereby such employer ceases or refrains or agrees to cease or refrain from
handling , using , selling , transporting or otherwise dealing in any of the products of any
other employer, or to cease doing business with any other person . ." While the con-
tract provision herein question was agreed to in 1958 , the stipulation in this case con-
cedes that the parties have continued to maintain and give effect to the contract , and the
Board has decided, with court approval , that this is an "entering into" within the mean-
ing of Section 8 ( e) (Hillbro Newspaper Printing Company, 135 NLRB 1132, enfd sub
nom Tos Angeles Mailers Union No. 9 etc. , 311 F . 2d 121 (C.A.D.C.).)
5 Minnesota Milk Company, 133 NLRB 1314.
6In so doing , we have not considered such factors as in any way justifying an administra-
tive exemption from the provisions of Section 8(e) The legislative history of that section
makes it plain that Congress rejected such an exemption . Legislative History of the
Labor-Management Reporting and Disclosure Act of 1959 , vol. II, p 1428 ( 2). See also
p. 1434(1). We do believe, however, that such factors are properly considered in reaching
an understanding of the purpose and meaning of clause.
RAYMOND O. LEWIS, W. A. BOYLE & JOHN OWENS, ETC . 235
... any operator signatory hereto who is a party to any agree-
ment inconsistent with the obligations assumed hereunder shall
not maintain such inconsistent agreement in effect beyond the first
date at which such agreement may be terminated by him in ac-
cordance with its terms.
It is at once apparent that such provisions establish a class of em-
ployers with which the Signatory Operators are precluded from deal-
ing in the purchase of coal, and that the Operators are required to
cease doing business with such employers at the first opportunity pre-
sented under whatever arrangements existed at the time of the signing
of the National Bituminous Coal Wage Agreement. Furthermore, it
is apparent that, whether or not the Signatory Operators were dealing
at that time with a particular employer, they are required to refrain
from dealing with it, if its employees do not work under standards as
favorable as those set forth in the contract between the Operators and
the Union.
Respondents concede the foregoing. They argue, however, that it
is not sufficient merely to show a cease-doing-business object to find a
violation of Section 8 (e), but that it is also necessary to show that the
commitment the Signatory Operators may have made to cease dealing
with nonsignatory producers is in support of the Union's dispute with
the excluded employers or class of employers' That is to say, such
cease-doing-business requirement must be in aid of the Union's at-
tempt to organize the employees of the excluded employer, or to other-
wise dictate the terms and conditions under which such employees
work. Respondents contend that the Union has no primary dispute
with the excluded employers, and the objective of the contracting
parties, in executing the clause, was simply to preserve the work, and
maintain the contract standards under which such work is to be
performed, of employees covered by the National Bituminous Coal
Wage Agreement.
We are not persuaded of the merits of the argument. It is not neces-
sary for a union to have an active dispute with an employer or class of
employers for its attempts to require another employer to agree to cease
doing business with the former, to be secondary, rather than primary,
in natures It is sufficient that the Union objects to the use of the dis-
favored employer's products or services because of its failure to main-
tain conditions of work approved by the Union .9 We find, therefore,
In effect, the Respondents agree that invocation of the protective wage clause to
effectuate a cessation of business between a Signatory Operator and another employer with
whom the Union is engaged in a dispute might well be violative of Section 8(b) (4) (B),
but that the clause does not require the Signatory Operator to cease doing business with
such other employer for such reasons, and it is therefore not violative of Section 8(e)
sLocal 1976, United Brotherhood of Carpenters and Joiners of America, AFL (Sand
Door and Plywood Co ), 113 NLRB 1210; enfd. 241 F. 2d 147 (ACA. 9), affd 357U S 93;
Washington -Oregon Shingle Weavers' District Council, et al. (Sound Shingle Co.), 101
NLRB 1159 , enfd. 211 F. 2d 149 (CA. 9).
9 Truck Drivers Union Local No. 413 etc . ( The Patton Warehouse, Inc.), 140 NLRB 1474.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the lack of an active primary dispute between the Union and the
excluded class of employers does not necessarily validate the clause.
We turn then to Respondents' argument that the basic purpose and
intention of the clause is to preserve the work, and to maintain the
contract standards under which such work is performed, of employees
covered by the BCWA. In support of this contention, Respondents
stress the fact that economic conditions within the industry have given
rise to marketing practices which are necessary to maintain the com-
petitive position of any particular Signatory Operator. Of particular
concern, in this case, is the practice of purchasing "supplementary"
coal, i.e., coal which the purchasing Operator cannot produce from his
own facilities, for sale along with coal that he produces. This prac-
tice is utilized particularly in connection with the furnishing of coal
to large utility and steel users, and without this practice most Op-
erators would be unable to bid successfully on contracts let by such
users, because the variety and volume of coal required would be beyond
their capacity to produce. Respondents point out that recognition of
the right to purchase "supplementary" coal operates to preserve work
for employees by enabling their employers successfully to compete
for contracts to supply coal, thus retaining for the employees the work
of producing that portion of the coal required under such contracts
which their employers can produce from their own mines. However,
because recognition of the right to make "supplementary" purchases
could easily lead to the purchase of "substitute coal," i.e., coal which the
employer could produce himself, but would purchase under the guise of
"supplementary" coal in order to gain the advantage of lower wage
rates, the Union insisted on protection against such "evils . . . of
subcontracting." This protection was achieved by attaching the same
conditions to the Operators' right to purchase "substitute" coal (in at
least one sense a right to subcontract) as was attached to the right to
purchase "supplementary" coal.
Accepting Respondents' statement of the economic reasons for the
clause-and they are borne out by the facts which the parties stipulated
to the Board-as well as their analysis of the practical effects of the
clause insofar as it goes, we are not persuaded that the clause falls out-
side the reach of Section 8 (e).
With regard to the limitation on the right to purchase "supple-
mentary" coal, there would be more substance to the claimed work pre-
servation objective of the clause, if such right were confined to pur-
chases from other Signatory Operators. Then, at least, the clause
would operate to preserve the work of producing the "supplementary"
coal for the employees covered by the BCWA, of which the clause is a
part.10 As it now stands, however, neither the employees of the Signa-
10 For purposes of deciding this case, we accept as correct, without so deciding, the
assumption implicit in Respondents ' arguments that the contract unit , rather than the
various associationwide units and single -employer units covered by the BCWA , is the
RAYMOND 0. LEWIS, W. A. BOYLE & JOHN OWENS, ETC . 237
tort' Operator making the supplementary purchases, nor the employees
of other Signatory Operators, have any assurance that the work of
producing such coal has been preserved for them; the former, because
by definition they would in no event perform such work, and the latter,
because the Signatory Operator making the purchase could purchase
coal from employers not signatory to the contract. Thus, the limita-
tion actually imposed by the clause appears to be not primarily for the
purpose of preserving work for employees covered by the contract but
for the purpose of regulating the employment terms and conditions of
employees of other employers with whom signatory employers may
do business.
With respect to the effect of the clause on the right to purchase
"substitute" coal, much of the foregoing applies with equal or greater
force. In this respect, the clause permits work which is normally per-
formed by the employees of a Signatory Operator to be performed by
employees not covered by the contract, provided they work under terms
and conditions as favorable as those provided by the BCWA. Had the
contracting parties been concerned with preserving contract work to
the employees covered by the contract, they could have completely
banned "substitute" purchases from employers not covered by the
contract. Their failure so to provide persuades us that the purpose
of permitting Signatory Operators to subcontract work to producers
observing contract standards, but not to others, was to create pressures
conducive to the extension of the Union's contract to unorganized pro-
ducers, rather than to preserve work for employees under the BCWA.
It is argued that the contract provision removes one incentive-
lower wage costs-to contract out unit work and is therefore protec-
tive of unit work, primary in objective and lawful under Section 8 (e).
But as pointed out above, the principal protection afforded by the
clause is to employees of the subcontractors, since the loss of work to
contract unit employees is permitted. Moreover, the same argument,
about reducing the incentive to subcontract, can be and has been made
in behalf of clauses limiting subcontracting to other employers under
contract with the union. But that argument has previously been
rejected by the Board,li with the approval of the court.12
The explicit exemptions in the provisos to Section 8 (e) permitting
such subcontracting limitations in the building construction and gar-
appropriate bargaining unit for purposes of deciding whether unit work is reserved for
employees in the unit. We note that the General Counsel apparently does not accept this
assumption, because he contends that the protective 'sage clause can be interpreted as
an implied agreement binding the Signatory Operators to purchase coal only from each
other, and he contends that even if so interpreted, it violates Section 8(e). We reject
that interpretation of the clause.
11 Greater St. Louts Automotive Trimmers and Upholsterers Association , Inc., 134 NLRB
1354 See also Meat and Highway Drivers etc ., Local Union No 710 , et al (Wilson & Co,
Inc.), 143 NLRB 1221 (Member Brown dissenting on this point).
1] District No. 9, International Association of Machinists , AFL-CIO v N L R .B , 315
F. 2d 33 (C.A.D.C.).
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment industries only serve to make clear the congressional purpose in
1959 to prohibit it elsewhere.
On the basis of the foregoing, we find that the Protective Wage
Clause requires Signatory Operators to cease and to refrain from do-
ing business with nonsignatory producers, unless such producers
adopt terms and conditions of work comparable to those established
in the BCWA. That agreement contains comprehensive and detailed
provisions regulating terms and conditions of employment, including
provisions requiring contributions to the Union's welfare and retire-
ment fund. It is, therefore, apparent that realistically appraised, the
clause, in design and intent, requires unorganized producers to adopt
union standards if they are to remain or become eligible to receive
"subcontracts" from Signatory Operators. It is well established that
such a limitation on,an employer's right to do business with another,
whether explicitly or implicitly imposed by a collective-bargaining
agreement, violates Section 8(e).13 We therefore conclude that the
Protective Wage Clause, at issue herein, violates Section 8(e) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth above have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor
practices, we shall order them to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. The Signatory Operators to the National Bituminous Coal Wage
Agreement of 1950,,as amended, are engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
2. International Union, United Mine Workers of America, is a
labor organization within the meaning of Section 2(5) of the Act.
3. The Protective Wage Clause of the National Bituminous Coal
"See Patton Warehouse, Inc., supra ; Meat and Highway Drivers etc , Local Union
No. 710, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America ( Wilson & Co, Inc ), supra ( Chairman McCulloch and Member Brown dis-
senting in part ). General Teamsters ', Warehousemen and Helpers Union, Local No. 890
(San Joaquin Valley Shippers' Labor Committee ), 137 NLRB 641 . Bakery Wagon Drivers
& Salesmen, Local Union No. 484 ( Sunrise Transportion), 137 NLRB 987. Retail Clerks
Union, Local 770, at al. (The Frito Company ), 138 NLRB 244.
RAYMOND 0. LEWIS, W. A. BOYLE & JOHN OWENS, ETC . 239
Wage Agreement of 1950, as amended, is an agreement which is pro-
hibited by Section 8 (e) of the Act.
4. Respondents, by maintaining, enforcing, and giving effect at all
times material herein to the Protective Wage Clause continuing to the
date of the complaint, have violated and are violating Section 8 (e)
of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Raymond O.
Lewis, W. A. Boyle, and John Owens, as agents for the International
Union, United Mine Workers of America and as members of the Joint
Industry Contract Committee established by the National Bituminous
Coil Wage Agreement of 1950, and, Edward G. Fox, C. W. Davis, and
Hamilton K. Beebe, as agents for the Coal Operators signatory to the
National Bituminous Coal Wage Agreement of 1950 and as members
of the Joint Industry Contract Committee established by that Agree-
ment, their officers, representatives, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Maintaining, enforcing, or giving effect to the Protective Wage
Clause of the National Bituminous Coal Wage Agreement of 1950, as
amended.
(b) Entering into, actively maintaining, and giving effect to, or
enforcing any other contract or agreement, express or implied, whereby
the Signatory Operators cease or refrain, or agree to cease or refrain,
from handling, using, selling, transporting, or otherwise dealing in
any of the products of any other employer, or from doing business
with any other person, in violation of Section 8 (e) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post in conspicuous places in the Union's business offices, meet-
ing halls, and, places where notices to members are customarily posted,
and at the j obsites of the Signatory Operators in, places where notices
to employees are customarily posted, copies of the attached notice
marked "Appendix B." 14 Copies of said notice, to be furnished by
the Regional Director for the Fifth Region, shall, after being duly
signed by Respondents, be posted by the Union and by the Operators
immediately upon receipt thereof and be maintained by them for 60
consecutive days thereafter. Reasonable steps shall be taken by the
Union and by the Operators that said notices are not altered, defaced,
or covered by any other material.
14 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "A Decision and Order" the words "A
Decree of the United States Court of Appeals, Enforcing an Order."
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Notify the Regional Director for the Fifth Region, in writing,
within 10 days from the date of this Order, of the action taken by the
Respondents to comply herewith.
APPENDIX A
PROTECTIVE WAGE CLAUSE
The United Mine Workers of America ( which, as used in this
Clause, includes all of its Districts , Local Unions, Officers or Agents)
and the Operators signatory hereto affirm their intention to maintain
the integrity of this contract in all of its parts. The objective of this
contract is to provide the maximum possible continuity and stability
of employment under the conditions set forth herein. The parties
hereto agree that bituminous coal mines shall be so operated as not to
debase or lower the standards of wages , hours, safety requirements-and
other conditions of work, established by this contract. The parties
recognizing their obligation each as to the other to exercise all possible
efforts and means to attain these objectives further agree as follows:
A. During the period of this Contract, the United Mine Workers
of America will not enter into, be a party to, nor will it permit any
agreement or understanding covering any wages, hours or other
conditions of work applicable to employees covered by this Con-
tract on any basis other than those specified in this Contract or
any applicable District Contract. The United Mine Workers
of America will diligently perform and enforce without discrimi-
nation or favor the conditions of this paragraph and all others
terms and conditions of this Contract and will use and exercise its
continuing best efforts to obtain full compliance therewith by each
of the parties signatory hereto.
B. It is recognized that when signatory operators mine, pre-
pare, or produce or acquire under subcontract arrangements,
bituminous coal mined under terms and conditions less favorable
than those provided for in this contract, they deprive employees
of employment opportunities, employment conditions and other
benefits which these employees are entitled to have safeguarded,
stabilized and protected. Accordingly, the Operators agree that
all bituminous coal mined, produced, or prepared by them, or any
of them, or procured or acquired by them or any of them under a
subcontract arrangement, shall be or shall have been mined or
produced under terms and conditions which are as favorable to the
employees as those provided for in this Contract.
"Procured or acquired under a subcontract arrangement" means
any contract, lease, license, agreement, arrangement or under-
standing pursuant to which the signatory operator acquires coal,
either as principal or agent, directly or indirectly from a producer
RAYMOND O. LEWIS, W. A. BOYLE & JOHN OWENS, ETC. 241
other than such signatory for delivery to a person other than such
signatory.
The obligation assumed hereunder shall not affect any agree-
ment in effect as of the date of execution of this contract : Pro-
vided, however, that any operator signatory hereto who is a party
to any agreement inconsistent with the obligations assumed here-
under shall not maintain such inconsistent agreement in effect
beyond the first date at which such agreement may be terminated
by him in accordance with its terms.
The Operators signatory to this agreement shall so conduct their
own operations (whether operated directly or indirectly, or
through subsidiaries or affiliates) so as to fully comply with their
obligations under this Clause. The obligation of each Operator
signatory hereto, which is several and not joint, to fully perform
all the conditions in this paragraph B contained, shall be a direct
and continuing obligation of said Operator during the life of this
Agreement.
As a part of the consideration for this Agreement, the Oper-
ators signatory hereto agree that this Clause covers the opera-
tion of all the coal lands, coal producing or coal preparation
facilities owned or held under lease by them, or any of them,
or by any subsidiary or affiliate at the date of this Agreement,
or acquired during its term which may hereafter (during the
term of this Agreement) be put into production or use. The
said Operators agree that they will not lease, license, or contract
out any coal lands, coal producing or coal preparation facilities
as a subterfuge for the purpose of avoiding the application of
this Clause.
C. There is hereby established a Joint Industry Contract Com-
mittee composed of six (6) members, three (3) of whom shall be
appointed and may be removed by the Union and three (3) of
whom shall be appointed and may be removed by the Operators.
Such appointments shall be made and notice thereof given to
the proper parties hereto as expeditiously as possible and not
later than thirty (30) days after the date of the execution of
this Contract. In the event of resignation, removal, death, in-
ability or unwillingness to serve of any of the members of the
Committee, the Union shall appoint the successor or successors
of the members originally appointed by it and the Operators
shall appoint the successor or successors of the members orig-
inally appointed by them. Action which may be required of
the Operators for the appointment of any member of the Joint
Industry Contract Committee representing them may be taken
by those Operators who, at the time, are signatories hereto. Au-
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thorization, approval or ratification of Operators representing
fifty-one (51) percent or more of the coal produced for use or
sale during the calendar year previous to that in which such
action is taken shall be sufficient to bind all Operators.
The Joint Industry Contract Committee may appoint such
Joint District Contract Committees in such districts or groups of
districts as it may determine, such district committees to consist
of such numbers of members, half of whom shall represent the
Union and half of whom shall represent the Operators in that
district or groups of districts, as the Industry Committee shall
deem advisable. The Joint District Contract Committees shall
assist the Joint Industry Contract Committee in making any
investigation hereunder.
The Joint Industry Contract Committee and the Joint District
Committees when authorized by and under the supervision of the
Industry Committee, may employ such clerical and other em-
ployees as are required for the performance of their duties here-
under. Expenses of all Committees shall be borne equally by
the Union and the Operators.
D. Within one hundred and twenty days after the execution
of this contract and each six months thereafter each Operator
signatory hereto shall certify in writing to the Joint District
Contract Committee for the District where he maintains his
principal place of business where such a District Committee
exists, or to the Joint Industry Contract Committee where no
District Committee exists, that he is in full compliance with all
the terms and conditions of this contract or any applicable Dis-
trict Agreement. Within one hundred and twenty days after
the execution of this Agreement, and each six months thereafter
each Union District Present shall certify in writing to his Joint
District Committee, if one exists, or, if none exists, to the Joint
Industry Contract Committee, a complete list of all Operators
and Mines engaged in the production of bituminous coal within
his district whose operations are under contract with the Union.
No operator may be found to be in violation of this Protective
Wage Clause with respect to any coal produced by another oper-
ator who is listed on the Contract list to be furnished by United
Mine Workers of America under this paragraph, unless and until
such operator is notified in writing by the Joint Industry Con-
tract Committee that such operator has failed to comply with
the provisions of this Clause and such failure has not been
corrected.
E. Any party signatory to this contract shall have the right
at any time to file a complaint with the Joint Industry Contract
RAYMOND 0 . LEWIS , W. A. BOYLE & JOHN OWENS, ETC. 243
Committee alleging a violation of any provision of this Protective
Wage Clause. In the event such a charge is filed it shall be the
duty of the Joint Industry Contract Committee to investigate
and determine the facts with respect to such alleged violation.
Any determination by the Joint Industry Committee that a vio-
lation of this Clause has occurred may be made only upon the
concurrence 'therein of a majority of the membership of the
Committee. Notice by the Committee to the affected party, op-
portunity for the party to be heard, and failure promptly to effect
full compliance after a finding of violation by the Committee
shall be deemed a condition precedent to any final determination
that a violation of this Clause has occurred. Findings made by
the Joint Committee, after notice and opportunity for hearing,
shall be served upon all parties to the proceeding, and shall
constitute a final determination as to the fact of a violation.
Failure or refusal of United Mine Workers or any Operator
signatory hereto to comply with a final determination by the
Committee of a violation of Paragraphs (A) of (B) of this
Clause may be deemed a violation of this Agreement.
The Mine Workers agree to make available to the Joint In-
dustry Contract Committee all contracts, agreements, or under-
standings entered into by the Mine Workers with any person
engaged in the production of bituminous coal, and further agree
to appear before the Committee on request by it and inform the
Committee on such other related and pertinent matters as shall
be essential to the Committee 's investigation of an alleged vio-
lation of this Protective Wage Clause. Each Operator signatory
hereto agrees to appear before the Committee on request by it
and inform the Committee as to the source and quantity of coal
produced or purchased or otherwise acquired, payment of wages
to, and hours and working conditions of classified employees,
payments to the United Mine Workers of America Welfare and
Retirement Fund, and such other related and pertinent matters
as shall be essential to the Committee 's investigation of an alleged
violation of this Protective Wage Clause.
The authority of the Committee is restricted to the subject
matter covered in this Protective Wage Clause and shall not
extend to disputes concerning the administration of the Contract
which are of the type that have heretofore been processed under
the grievance procedures provided for in the Section of the Con-
tract entitled "Settlement of Local and District Disputes"; nor
shall the provisions of this "Protective Wage Clause" be subject
to the terms or conditions of the "Settlement of Local and Dis-
trict Disputes" section of this Contract.
727-083-64-vol . 144-17
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE TO ALL SIGNATORY OPERATORS TO THE NATIONAL BITUMI-
NOIIS COAL WAGE AGREEMENT OF 1950, As AMENDED AND THEIR
EMPLOYEES AND TO ALL MEMBERS OF THE INTERNATIONAL UNION,
UNITED MINE WORKERS OF AMERICA
Pursuant to a Decision' and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby give notice that :
WE WILL NOT maintain, enforce, or give effect to the Protective
Wage Clause of the National Bituminous Coal Wage Agreement
of 1950, as amended.
WE WILL NOT enter into, actively maintain, and give effect to,
or enforce any other contract or agreement, express or implied,
whereby the Signatory Operators cease or refrain, or agree to
cease or refrain, from handling, using, selling, transporting, or
otherwise dealing in any of the products of any other employer,
or from doing business with any other person, in violation of
Section 8(e) of the Act.
MEMBERS OF THE JOINT INDUSTRY CONTRACT
COMMITTEE ESTABLISHED BY THE NATIONAL
BITUMINOUS COAL WAGE AGREEMENT Or
1950, AND AS AGENTS FOR THE UNITED MINE
WORKERS OF AMERICA ,
Dated---------------- ----------------------------------------
(RAYMOND 0 LEWIS)
Dated---------------- ----------------------------------------
(W. A. BOYLE)
Dated---------------- ----------------------------------------
(SOHN OWENS)
As MEMBERS OF THE JOINT INDUSTRY CON-
TRACT COMMITTEE ESTABLISHED BY THE
NATIONAL BITUMINOUS COAL WAGE AGREE-
MENT or 1950, AND AS AGENTS FOR COAL
OPERATORS SIGNATORY TO THE NATIONAL BI-
TUMINOUS COAL WAGE AGREEMENT OF 1950,
Dated-------- ------ ----------------------------------------
(EDWABD G. Fox)
Dated---------------- ----------------------------------------
(C W. DAVIS)
Dated---------------- ----------------------------------------
(IIAMILTON K BEEBE)
BURLINGTON INDUSTRIES, INC., VINTON WEAVING CO. 245
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.
Employees may communicate directly with the Board's Regional
Office, Sixth Floor, 707 North Calvert Street, Baltimore, Maryland,
Telephone No. 752-8400, Extension 2100, if they have any question
concerning this notice or compliance with its provisions.
Burlington Industries , Inc., Vinton Weaving Company Plant and
Textile Workers Union of America , AFL-CIO-CLC. Case No.
5-CA-2207. August 27, 1963
DECISION AND ORDER
On February 8, 1963, Trial Examiner Robert E. Mullin issued his
Intermediate Report in the above-entitled case, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices violative of Section 8 (a) (1) and (3) of the Act and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Intermediate Report. The Trial
Examiner also found that the Respondent had not engaged in certain
other unfair labor practices violative of Section 8 (a) (1) of the Act and
recommended that the complaint with respect thereto be dismissed.
Thereafter, the Respondent and the Charging Party filed exceptions
to the Intermediate Report and the Charging Party filed a brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Leedom].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
Board has considered the Intermediate Report, the exceptions and
brief, and the entire record 1 in the case, and hereby adopts the Trial
Examiner's findings,2 conclusions, and recommendations with the
modifications herein noted.
1 The Charging Party's request for oral argument is hereby denied as the record, in-
cluding the exceptions and brief , adequately presents the issues and positions of the parties.
2 The Respondent has excepted to the Trial Examiner's finding that the Respondent
violated Section 8 ( a) (1) of the Act by posting on its bulletin boards two pictures which,
together with a caption above and a statement beneath the pictures, suggest that the
advent of the Union would result in the closing of the plant . Since the same order, in any
event, would issue , Members Rodgers and Leedom do not find it necessary to pass upon
this alleged violation . Chairman McCulloch would affirm the Trial Examiner ' s finding that
the posting of these pictures violated Section 8 ( a) (1).
144 NLRB No. 37.