Tennessee Construction Co.

National Labor Relations Board - Board Decisions

Sep 10, 1992

308 N.L.R.B. 763 (N.L.R.B. 1992)

763
308 NLRB No. 106
TENNESSEE CONSTRUCTION CO.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 We do not agree with the judge’s finding that the Respondent’s
refusal to agree to lay off employees only by seniority and its refusal
to agree to a work jurisdiction clause are evidence of surface bar-
gaining. The Respondent provided the Union with a seniority list but
refused to agree to a seniority clause mandating the order of layoffs.
Kiscaden testified that the Respondent wanted to retain the option
of being able to employ the employees who could perform the work.
This position does not indicate an intent to avoid reaching agreement
but represents the Respondent’s reluctance to agree to a clause
which could possibly be contrary to its interest in maintaining pro-
ductivity during difficult times.
Kiscaden also testified that it was his understanding that the work
jurisdiction proposal—requiring that all preparation, processing,
cleaning, and repair and maintenance work be performed by mem-
bers of the bargaining unit—would eliminate his ability to contract
out work. In our view, the Respondent’s refusal to agree to this
work jurisdiction clause reflected nothing more than hard bargaining
over management’s discretion to assign the work, and cannot be re-
lied on to show that the Respondent was engaged in surface bargain-
ing.
The Respondent contends that Sec. 10(b) bars the 8(a)(5) com-
plaint allegation because only the June 22, 1990 bargaining session
was held during the 10(b) period and at that session the Union with-
drew its previous proposals and started ‘‘from scratch.’’ We dis-
agree. The June 22 session was a continuation of the previous bar-
gaining. At the June 22 session the Respondent insisted, among
other things, that the Union pay it $2 million in compensation for
the Respondent’s adopting the Union’s proposals and post a $10-mil-
lion performance bond to protect the Respondent in the event of a
wildcat strike, and reiterated that the Respondent would agree to ar-
bitration only if General Manager Shumate was the sole arbitrator
to hear and decide contract disputes. Accordingly, we are entitled to
consider the earlier bargaining as background in elucidating the na-
ture of the Respondent’s conduct at the table on June 22. See
Machinsits Local Lodge 1424 (Bryan Mfg. Co.) v. NLRB, 362 U.S.
411, 416 (1960).
3 See Modern Mfg. Co., 292 NLRB 10, 11 (1988).
Tennessee Construction Company and International
Union, United Mine Workers of America.
Cases 9–CA–27708 and 9–CA–28090–1
September 10, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On September 20, 1991, Administrative Law Judge
John H. West issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed limited cross-exceptions and
a brief in support.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as modi-
fied.
The judge found and we agree that the Respondent
violated Section 8(a)(5) and (1) by engaging in surface
bargaining without any intention of reaching agreement
with the Union. In making this finding, the judge re-
lied on, inter alia, statements made by the Respond-
ent’s president and negotiator, Todd Kiscaden, indicat-
ing that: (1) he was not interested in giving up any of
his rights and that he had agreed only to talk with the
Union and that he had done so; (2) during the negotia-
tions he was trying to lease the property without the
employees; and (3) he was getting out of the labor
business because his labor costs were too high. Addi-
tionally the judge found that the Respondent’s insist-
ence that the Union post a $10-million performance
bond, a nonmandatory subject of bargaining, and that
the Respondent be paid $2 million by the Union before
the Respondent would sign a contract, also a non-
mandatory subject of bargaining, demonstrated bad
faith.
We agree with the judge that these factors dem-
onstrate that the Respondent engaged in surface bar-
gaining. We also rely on the additional fact that the
Respondent conditioned its acceptance of an arbitration
clause on having its general manager, Johnny Shumate,
designated as the arbitrator as further evidence that the
Respondent engaged in surface bargaining.2 In so find-
ing, we note that the demand that the general manager
be the arbitrator was essentially a rejection of the prin-
ciple of neutral independent arbitration. Simulta-
neously, the Respondent was taking the position that
any union interruption of business activities would re-
sult in a forfeiture of part or all of a $10-million per-
formance bond. Thus, under the Respondent’s propos-
als, the Union could not take a grievance to neutral ar-
bitration and the Union could not strike (without sub-
stantial penalty). In such circumstances, we find that
the Respondent’s bargaining tactics through these pro-
posals are indicia of bad-faith bargaining.3
The Respondent excepts to the judge’s finding that
it violated Section 8(a)(3) and (1) in the circumstances
of this case by subcontracting unit jobs without giving
the Union notice and an opportunity to bargain and
without any business justification while engaged in
surface bargaining. The record shows that General
Manager Shumate told the Respondent’s president,
Kiscaden, that he needed additional employees to per-
form the work. Kiscaden conceded that additional
labor was needed but refused to hire additional em-
ployees on the Respondent’s payroll, stating that ‘‘he
was going to have to get out of the labor business that
his labor costs were much too high.’’ Shumate, in ad-
dition to serving as the Respondent’s general manager,
owned his own company, Mountain Engineering.
764 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The Respondent’s employees were also paid approximately $18
per hour. Thus, we note, that at least in terms of wages, the Re-
spondent was not realizing any direct economic gain by its use of
this subcontracting arrangement. In rejecting the Respondent’s eco-
nomic defense, we further note, as did the judge, that Kiscaden did
not testify about the Respondent’s economic situation with respect
to the costs of subcontracting.
5 We also agree with the judge’s finding that the subcontracting
violated Sec. 8(a)(5) and (1).
With respect to the 8(a)(3) allegation, Member Raudabaugh notes
that there is no finding that the subcontracting was unlawfully moti-
vated. The judge, affirmed by the Board, finds the 8(a)(3) violation
solely on the basis that the subcontracting was ‘‘inherently destruc-
tive’’ of employee rights. Member Raudabaugh finds it unnecessary
to pass on this issue, inasmuch as an 8(a)(3) conclusion would not
add to the restoration and backpay remedy attendant to the 8(a)(5)
violation. That is, but for the unilateral subcontracting in violation
of Sec. 8(a)(5), employee Robinson would have been hired by the
Respondent. Thus, as a remedial matter, he should be hired by the
Respondent and made whole.
6 We shall leave to compliance the determination of the exact date
in November that General Manager Shumate told Robinson that he
could not be placed on the Respondent’s payroll.
Kiscaden asked Shumate if he had any Mountain Engi-
neering people that he could use at the Respondent’s
plant. Shumate assured him that he could supply the
men, but he would charge the Respondent $18.10 per
man-hour.4 The Respondent orally contracted with its
general manager to meet its labor needs. In June 1990,
Dan Hylton and Johnny Rowe, who were already em-
ployed by Shumate at another plant, were assigned to
work at the Respondent’s plant. Shumate also con-
tacted Mallie Robinson, a former employee of the Re-
spondent’s predecessor, and offered him a job working
at the Respondent’s plant. In November 1990, Robin-
son asked Shumate if he could be placed on the Re-
spondent’s payroll, but was told by Shumate that
Kiscaden would not allow it.
The judge found that Robinson’s hiring—but not
that of Hylton and Rowe—was part of a scheme by
Kiscaden to avoid the Respondent’s obligations under
the Act. The judge focused on the fact that Robinson
was not hired until June 1990, when there was a need
for his services at the Respondent’s plant. The judge
concluded that employee Robinson was entitled to be
hired directly by the Respondent and to be made whole
for any loss of earnings or other benefits he may have
suffered as a result of the Respondent’s unlawful ac-
tion against him.
The judge observed that Hylton and Rowe, on the
other hand, had already been on Shumate’s payroll
prior to June 1990 and had been working for
Shumate’s company at another plant. They continued
to be employed by Shumate and were merely trans-
ferred to the Respondent’s plant in June. Thus, the
judge reasoned that their initial hiring was not part of
a scheme to avoid the Respondent’s obligations under
the Act. Neither Hylton nor Rowe sought to be placed
on the Respondent’s payroll directly. Accordingly, the
judge did not, as requested by the General Counsel,
order that Hylton and Rowe be placed on the Respond-
ent’s payroll at the unit rate and made whole at that
rate.
The Respondent filed exceptions to the granting of
any make-whole remedy as to Robinson and the Gen-
eral Counsel filed limited cross-exceptions to the
judge’s failure also to grant a make-whole remedy as
to Hylton and Rowe. The General Counsel argues that
the facts relied on by the judge are insufficient to dis-
tinguish the employment of Hylton and Rowe from
that of Robinson or to preclude a remedy in their
favor.
We agree with the judge that the June 1990 sub-
contracting arrangement violated Section 8(a)(3).5 We
also agree that there is a legally significant difference
in the employment circumstances of Hylton and Rowe
as compared to those of Robinson that is sufficient to
deny Hylton and Rowe a make-whole remedy. Thus,
although the subcontracting was unlawful, Hylton and
Rowe suffered no compensable loss as a result despite
being instruments of the unlawful subcontracting. They
retained their status as Shumate’s employees at their
existing pay rate and did not seek, and were not un-
lawfully denied, as was Robinson, employment with
the Respondent.
Like the judge, we find that Robinson is entitled to
be made whole, but we do not rely on the same ration-
ale. Hylton, Rowe, and Robinson were all hired by
Shumate to work for his company. Only Robinson,
however, was hired in furtherance of the Respondent’s
unlawful scheme and only Robinson specifically asked
to be hired by the Respondent. In November 1990,
Robinson asked Shumate, in Shumate’s capacity as the
Respondent’s general manager, to be placed on the Re-
spondent’s payroll. Shumate denied the request, re-
sponding, ‘‘Todd [Kiscaden] won’t let me.’’ At this
point, the Respondent, through its general manager,
Shumate, denied Robinson’s application for employ-
ment as a unit member in furtherance of the Respond-
ent’s attempt to avoid its obligations under the Act.
Thus Robinson, unlike Hylton and Rowe, was denied
employment for unlawful reasons and the usual reme-
dial considerations apply.
AMENDED REMEDY
Having found that the Respondent unlawfully con-
tracted out unit work, we shall order that it cease and
desist doing so, restore the status quo ante as it existed
prior to the unlawful subcontracting of unit work in
June 1990 by terminating the contract for unit work,
hire Mallie Robinson as an employee of the Respond-
ent, and make him whole for any loss of earnings or
other benefits he may have suffered as a result of the
Respondent’s unlawful action in November 1990.6
765TENNESSEE CONSTRUCTION CO.
1 The complaint, as amended at the hearing, specifies three em-
ployees, namely, Dan Hylton, Mallie Robinson, and Johnny Rowe,
and indicates that there are other employees but that their names are
unknown to the Acting Regional Director.
2 The unit is described as follows:
All production and maintenance employees of [Respondent]
working in or about [Respondent’s] Nelse, Kentucky coal prepa-
ration plant, but excluding all professional employees, guards
and supervisors as defined in the Act.
3 Including work breaks, lunchbreaks, holidays, vacations, overtime
pay, bereavement leave, seniority, eating facilities, parking facilities,
Continued
Backpay shall be computed in the manner prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Ten-
nessee Construction Company, Nelse, Kentucky, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 2(b).
‘‘(b) Offer Mallie Robinson direct employment with
the Respondent and make him whole for any loss of
earnings and other benefits suffered as a result of the
Respondent’s unlawful action in refusing to hire him
in November 1990, in the manner set forth in the rem-
edy section of this decision.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively in good
faith concerning terms and conditions of employment
with the International Union, United Mine Workers of
America as the exclusive representative of our employ-
ees in the following unit appropriate for the purposes
of collective bargaining:
All production and maintenance employees of
Tennessee Construction Company working in or
about Tennessee Construction Company’s Nelse,
Kentucky coal preparation plant, but excluding all
professional employees, guards and supervisors as
defined in the Act.
WE WILL NOT refuse or fail to bargain in good faith
with the International Union, United Mine Workers of
America by unilaterally contracting out unit work
without notice to and bargaining with the Union as the
exclusive representative of our employees in the appro-
priate unit.
WE WILL NOT discourage membership in the Union
by unilaterally contracting out unit work while engag-
ing in surface bargaining when such contracting out is
done without any demonstrated business justification
and is done without notice to and bargaining with the
Union as the exclusive representative of our employees
in the appropriate unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL stop unilaterally contracting out bargaining
unit work.
WE WILL offer Mallie Robinson direct employment
with us and make him whole for any loss of earnings
and other benefits suffered as a result of our refusing
to hire him directly in November 1990, with interest.
WE WILL, on request, bargain collectively and in
good faith with the Union as the exclusive collective-
bargaining representative of our employees in the unit
set forth above with respect to rates of pay, wages,
hours, and other terms and conditions of employment.
TENNESSEE CONSTRUCTION COMPANY
Andrew L. Lang, Esq., for the General Counsel.
Barbara L. Krause, Esq. (Smith, Heenan & Althen), of
Washington, D.C., for the Respondent.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. A charge was
filed in Case 9–CA–27708 on July 23, 1990, by International
Union, United Mine Workers of America (Union) against
Tennessee Construction Company (Respondent). And the
Union filed the charge in Case 9–CA–28090–1 against Re-
spondent on December 4, 1990. As here pertinent, an amend-
ed complaint was issued on May 14, 1991, by the Acting Re-
gional Director of Region 9 of the National Labor Relations
Board (Board) alleging that, collectively, Respondent vio-
lated Section 8(a)(1) and (3) and 8(a)(1) and (5) of the Na-
tional Labor Relations Act (Act) by (1) causing certain em-
ployees1 to be hired and placed on the payroll of Coalfield
Construction, Inc. (Coalfield) performing unit work, at wage
rates less than those paid and with benefits less than those
provided by Respondent for other unit employees2 because
these employees supported or assisted the Union and en-
gaged in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, (2) refusing,
during the period from July 1987 through June 1990 and
more particularly on June 22, 1990, to negotiate with the
Union for the purposes of reaching agreement with respect
to various terms and conditions of employment of the unit,3
766 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the right of employees to remove themselves from dangerous work-
ing conditions and arbitration and grievances.
4 Respondent’s unopposed motion to correct the transcript is here-
by granted. Errors have been noted and corrected.
5 They ranged from $13.51 to $14.11 per hour.
6 Kiscaden’s proposal specifies (1) wages of $15 an hour for elec-
trician and diesel mechanics, $12 for skilled labor and $8 for un-
skilled labor, (2) overtime pay after 40 hours a week, (3) holiday
pay on Christmas Day, New Year’s Day, Fourth of July, and
Thanksgiving Day, (4) 5 unpaid sick days a year, and (5) an 80-
percent/20-percent contribution medical insurance plan. 7 Kiscaden was initially called by General Counsel.
and (3) subcontracting unit work since June 20, 1990, to
Mountain Engineering and Coalfield without notifying and
bargaining with the Union concerning the subcontracting. Re-
spondent denies violating the Act.
A hearing was held in Prestonsburg, Kentucky, on May 21
and 22, 1991. On the entire record4 in this case, including
my observation of the demeanor of the witnesses and consid-
eration of the briefs filed by General Counsel and Respond-
ent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, has been engaged in the oper-
ation of a coal preparation plant at Nelse. The complaint al-
leges, the Respondent admits, and I find that at all times ma-
terial, Respondent has been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act and the Union has been a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
In July 1987 Respondent purchased, as here pertinent, a
coal preparation plant from TCH Coal Company (TCH).
Under the purchase agreement Respondent promised to hire
those of TCH’s employees who were working when it closed
and to recognize and bargain with the Union, as the collec-
tive-bargaining representative of the involved employees.
Donald Todd Kiscaden, president of Respondent, testified
that Respondent hired all of its initial complement of em-
ployees from the former TCH work force, and that Respond-
ent initially paid the employees the same wage rates that
TCH had been paying.5
On July 7, 1987, the day Respondent commenced operat-
ing the involved plant, Kiscaden and the co-owner of Re-
spondent, Keith Van Hooser, met with union representatives
which included James Hampton, an attorney who represented
the Union, Corbett Brewer, who was the involved Local
Union president, and Eddie Ratliff, president of the Union’s
District 30. Kiscaden testified that he had never himself sat
at a bargaining table. According to Kiscaden, Hampton asked
him if he would sign the 1984 National Bituminous Coal
Wage Agreement (NBCWA) and Kiscaden said that he
would not. Instead he gave Hampton a counterproposal, Gen-
eral Counsel’s Exhibit 2.6 Hampton testified that he told Re-
spondent’s representatives that he was not there to negotiate
a contract, he had no authority to do so and his purpose in
being there was to find out what Respondent’s intentions
were regarding former TCH employees; that Respondent’s
representatives gave the union representatives a one-page
proposal, General Counsel’s Exhibit 2; and that he was told
that Respondent paid $2 million for the plant.
Van Hooser testified that on July 7, 1987, Hampton asked
if Respondent would bargain a contract with him and
Kiscaden answered yes; that Hampton gave the 1984 contract
to Kiscaden who gave his proposals to Hampton; that
Kiscaden said that he would not recognize TCH’s panel
‘‘[w]e would bring anybody that wanted in, contractors, hire
anybody we needed to make the job go’’; and that Kiscaden
also said that ‘‘we would run it to keep control over the op-
eration, keep it going. Do whatever was necessary.’’ On
cross-examination, Van Hooser testified that he did not re-
member Hampton saying anything when he gave the 1984
contract to Kiscaden; that the outside contractors that
Kiscaden referred to during this meeting would do ‘‘[s]tuff
that they [Respondent’s employees] wouldn’t [sic] qualified
to do’’; and that the meeting lasted for an hour and a half
to a couple of hours and he could not recall beyond this ex-
actly what was discussed.
When called by Respondent,7 Kiscaden testified that on
July 7, 1987, Hampton asked him if Respondent would rec-
ognize and bargain with the Union and when it would bar-
gain; that when he met with just the union representatives
after the employee meeting, he stated that he was willing to
pay the same wage rate as when TCH shut down ‘‘but every-
thing else was out’’; that he told Hampton and the others that
‘‘[i]f we need to bring outside people in here to do some
work we’re going to bring them in here’’; that somebody—
he could not swear it was Hampton—handed him an 1984
contract and said would you sign this and he laughed and
said no rather I have some proposals for you to look at; that
he thought they were bargaining; that his initial proposal had
wages and benefits which Respondent could have taken ‘‘just
about anywhere we wanted to get work’’; and that he was
looking for ‘‘portability’’ in a contract, that is, a contract
which is not site specific so that he could go to any former
union job and operate it. On cross-examination Kiscaden tes-
tified that the agreement he had with TCH called for Re-
spondent to employ all hourly paid employees then employed
by TCH upon the same terms and conditions then applicable
at TCH; that he did provide that same benefit levels of medi-
cal insurance as TCH to the involved employees; that he as-
sumed that if he had a contract and went to another location,
if it was not a national agreement, that the employees in that
local group would have the right to ratify the terms of their
contract; that he did not know anybody who had such a con-
tract; that ABC contractors which do nothing but construc-
tion work, which he thought about the night before the sec-
ond day of the hearing herein, were similar in that they get
their contract and they could go anywhere they want to: and
that he was not familiar with whether the ABC contract was
a national agreement and he did not know whether the em-
ployees that are covered by the ABC agreement ratified the
agreement.
With a cover letter dated July 9, 1987 (R. Exh. 1),
Kiscaden forwarded certain information to the Union. And
with a cover letter dated July 11, 1987 (R. Exh. 2), Kiscaden
forwarded additional information, including its proposed se-
niority list (R. Exh. 3), to the Union.
767TENNESSEE CONSTRUCTION CO.
8 At the time Respondent had about 18 employees.
9 Kiscaden initially testified that he told the union representative
that Respondent wanted to be able to contract work out if it was
cheaper than Respondent doing the work itself.
10 Respondent, at this meeting, reduced its original proposal from
four paid holidays to two, namely, Thanksgiving Day and Christmas
Day. Kiscaden testified that he told the Union that if a train had to
be loaded on either or both of these days he would require employ-
ees to work and they would receive no additional pay for the work.
11 Respondent made a counteroffer to pay for the formation and
administration of a 401-K plan with the employees making all the
contributions.
12 Respondent proposed its own seniority list.
13 During the meeting Shumate stated that Respondent may have
to change the parking lot into a coal pile.
14 Kiscaden testified that he indicated that the employees could use
the bath house but union officials in the involved Local could not
use it if they were not employees of Respondent. Brewer did not
work for Respondent.
15 Kiscaden testified that he expressed his concern about deducting
money from someone’s paycheck when he did not know what the
purpose would be. Also, Kiscaden testified that he told Hampton that
Respondent would make the deduction if it was compensated for the
service or if Hamption would do all of Respondent’s legal work for
free.
On July 23, 1987, Kiscaden and Van Hooser met with
Cecil Roberts, who was the vice president of the Union, and
Rusty Franklin from the Union. Kiscaden testified that the
meeting took place in Charleston, West Virginia; that he told
Roberts that Respondent was looking for a portable contract
so that it could go to shut down union jobs and put them
back to work; and that Roberts said that there would be a
big political problem with that.
By letter dated October 1, 1987 (R. Exh. 4), Roberts ad-
vised Kiscaden that there were possibilities of meaningful
negotiations over the various proposals Kiscaden made, and
that the Union has appointed a negotiating team to continue
the collective bargaining in Pikeville, Kentucky, which
should be more convenient for Kiscaden.
On August 9, 1988, Kiscaden met with Hampton. Regard-
ing this meeting, Hampton testified that he had been author-
ized by the Union to negotiate a contract with Respondent
sometime prior to this meeting; that Respondent was not re-
sponsible for the hiatus of almost a year between negotiating
sessions; that he was the chief spokesman for the Union in
the involved negotiations; that while Respondent’s general
manager, Johnny Shumate, spoke frequently during negotia-
tions and Van Hooser spoke occasionally, Kiscaden was the
chief spokesman for the Respondent; that at the time he was
aware that Respondent was paying the rates in effect under
TCH’s contract, namely, the NBCWA; that he was also
aware that Respondent was providing health insurance, life
insurance, sick and accident insurance, 2 weeks of vacation
with 1 week of pay and one or two holidays; that at the com-
mencement of the meeting the Union presented the 1988
NBCWA to the Respondent and Kiscaden said that it was
‘‘AIDS’’ and he was not at all interested in that agreement;
that he asked Kiscaden about recognizing seniority and
Kiscaden indicated that he had submitted his proposed se-
niority list stating that he had hired the employees in the re-
verse order that he would lay them off, in that he hired the
most skilled first; that the Union proposed that discharge be
for just cause only but Kiscaden indicated that he wanted it
to be employment at will; that the Union asked about dues
checkoff and Kiscaden stated that he wanted the Union to
bear the cost of dues checkoff; that subcontracting was dis-
cussed in that the Union had discovered that during the vaca-
tion period preceding this session outside employees were
working at the facility; that Kiscaden stated that any work
his employees were capable of doing and had the equipment
to perform they would do; that Kiscaden indicated that he
used the outside employees to do some sandblasting and to
cut brush; that normally sandblasting equipment is not re-
quired equipment at a preparation plant; and that no agree-
ments were reached at this meeting. When called by Re-
spondent, Kiscaden, on cross-examination, testified that he
did not remember telling the Union that anything Respond-
ent’s men had the ability to do and Respondent had the
equipment to do it would not be done by any contractor.
On September 30, 1988, another negotiating session was
held. Kiscaden testified that Respondent had not withdrawn
its initial offer. Regarding this meeting, Hampton testified
that an attempt was made to define work jurisdiction and the
Union proposed that supervisors not perform bargaining unit
work, except in cases of an emergency or for training pur-
poses; that this proposal was rejected; that he asked Kiscaden
if Respondent would agree to limit itself to having 25 super-
visors8 and Kiscaden agreed; that Kiscaden refused to reduce
the number of supervisors to 20: that he asked Kiscaden if
he would agree to 30 uninterrupted minutes for lunch and
Kiscaden would not agree but he did indicate that if he re-
quired an employee to work through lunch he would pay the
employee for the 30 minutes; that Kiscaden indicated that if
Respondent checked off dues it wanted a percentage of the
dues; that he believed that the Union asked if Respondent
would pay double time or time-and-one-half for Sunday work
and Kiscaden rejected both; and that there may have been a
discussion of discharge for just cause only at this session.
On either January 5 or 6, 1989, there was another negotiat-
ing session. According to Kiscaden, the Union proposed dis-
charge only for just cause and Respondent proposed employ-
ment at will. No agreement was reached. Kiscaden testified,
regarding a grievance procedure, that Respondent took the
position that grievances could be arbitrated if Respondent
could designate Shumate, as the arbitrator. The Union pro-
posed work jurisdiction which essentially included all coal
preparation, processing, repair, and maintenance work. Re-
spondent rejected this proposal. Kiscaden testified that he
told the union representative that Respondent needed to bring
in contractors to do maintenance work when it did not have
employees with the skill required or the necessary equip-
ment.9 According to Kiscaden, Respondent also rejected the
Union’s proposal to (1) restrict supervisors from doing clas-
sified work, (2) give employees a $100-a-year clothing al-
lowance, (3) give employees 5 paid sick days a year, (4) give
employees 10 paid holidays a year,10 (5) give employees 2
weeks’ paid vacation, (6) give employees a paid pension
plan,11 (7) recognize the former TCH seniority list,12 (8)
continue to provide employees with a clean and warm lunch-
room, (9) continue to provide adequate parking facilities for
the employees,13 (10) use Respondent’s bath house for union
meetings,14 (11) have a dues checkoff,15 (12) have a union-
security clause requiring all employees to belong to the
Union, (13) give employees 10-minute work breaks, (14)
have a successorship clause in the collective-bargaining
agreement, (15) have a monthly meeting with the Mine
768 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 Kiscaden testified that he told Hampton that he preferred Re-
spondent’s weekly meetings on Monday mornings.
17 Kiscaden testified that he refused because Federal law already
provides for this.
18 When the Union indicated that they were proposing it as a bar-
gaining rate, Kiscaden indicated that without a definite term he
would not agree. On cross-examination Hampton testified that the
Union’s proposal was only a partial wage proposal because the
Union would have proposed interim increases during the term of the
agreement.
19 Hampton testified that Kiscaden, at the last session, agreed to
a weekly meeting with pay but at this meeting he was not agreeable
to that.
20 Hampton testified that Kiscaden or Shumate said that they had
problems with whether Respondent has insurance coverage for these
nonemployees when they are on Respondent’s property. Hampton
asked whether Respondent’s insurance covered vendors and other
people who come onto the property. Respondent did not answer.
21 Shumate said that he would be the one to tell the employee if
he was in a dangerous situation and not vice versa.
22 Hampton testified that Shumate said that Respondent would
‘‘agree that if a man’s wife dies, he can have the day off without
pay but we won’s to beyond that in a written contract’’; and that
Kiscaden then said ‘‘you’re going to get very little in the contract.’’
23 Hampton testified that Kiscaden said that seniority should be
based on his earlier proposed seniority list.
24 Hampton testified that Shumate said that he did not have a prob-
lem with having it but rather he had a problem with being forced
to have it, and Kiscaden said ‘‘that’s right.’’
25 Assertedly state law requires the providing of sanitary toilets.
26 After a discussion regarding what was adequate, Shumate said
that Respondent might want to turn the existing parking lot into a
coal stockpile. Respondent agreed to give the employees 10-minutes
notification if this occurred.
27 Kiscaden testified that he did not know of anyone who had such
a portable contract. He conceded that such an agreement would be
a novel contract.
Health and Safety Committee,16 (16) allow the Union’s dis-
trict and International representatives access to the job, (17)
give employees the right to immediately remove themselves
from a dangerous job situation,17 (18) pay double time for
Sunday work, and (19) give employees 3 days’ paid bereave-
ment leave. Hampton testified that the Union’s proposal for
discharge for just cause only was taken under advisement;
and that the following union proposals were rejected by Re-
spondent: (1) work jurisdiction, (2) limiting supervisors
doing unit work to emergencies, training and de minimis
amounts, (3) a $100 annual clothing allowance, (4) maintain
the current wage rates,18 (5) 5 sick or personal leave days
with pay, (6) a package of 10 holidays, (7) individually
named holidays, except Thanksgiving Day and Christmas,
and even with these two holidays Kiscaden indicated that he
wanted to retain the ability to have the employees work at
straight time pay rates if necessary, (8) 2 weeks’ vacation
with 2 weeks’ pay, (9) 2 floating vacation days with pay,
(10) Respondent contributing to a pension plan, (11) some
form of grievance procedure or arbitration, (12)
successorship clause, (13) to have no more supervisors than
were necessary to perform supervisory functions, (14) a pro-
hibition from leasing for the purpose of avoiding the collec-
tive-bargaining agreement, (15) the establishment of a mine,
health and safety committee which would meet monthly with
the Company, (16) specifically agree to hold a weekly safety
meeting,19 (17) union representatives access to Respondent’s
property upon reasonable notice,20 (18) employees being per-
mitted to remove themselves from imminent danger,21 (19)
double time for Sunday work, (20) time-and-one-half for
Sunday work regardless of whether it was over 40 hours for
the week, (21) 3 days’ bereavement leave with 1 day being
paid,22 (22) seniority be defined on the basis of length of
service and ability to step in and perform the job, (23) se-
niority be established on the basis of TCH’s list,23 (24) that
the Company provide a clean and warm eating place,24 (25)
sanitary ventilated toilets which should be kept clean,25 (26)
adequate parking facilities,26 and (27) use of Respondent’s
bath house as a meeting place of the Local except when all
of those in attendance were employees of Respondent.
Hampton testified that at the end of the meeting Kiscaden
said that he would take discharge only for just cause under
advisement and that some of the proposals may be acceptable
with modifications. When called by Respondent, Kiscaden
testified that he was personally responsible for the $2 million
and he did not want an arbitrator who did not understand his
business or did not care telling him how to run his business;
that he rejected the proposal to restrict supervisors from
doing classified work because in 1984 a grievance was filed
over the fact that he gave an employee a hand hanging a
150-pound, 8-inch valve; that he rejected the Union’s pro-
posal for a clothing allowance and for paid sick days purely
for economic reasons, namely, he did not want to spend the
money; that at four named mine companies the Union agreed
to have no security clause in the contract; that a
successorship clause reduces the value of the property; that
it was his understanding that the Union’s proposed work ju-
risdiction clause would eliminate his ability to contract out
work; and that he rejected the Union’s proposal against leas-
ing out to avoid the terms of the agreement because he was,
at that time and the time of the hearing herein, in negotia-
tions with some people who want to lease the property, less
the employees.
By letter dated January 30, 1989, Kiscaden advised Hamp-
ton that Respondent had contacted its attorney and it was still
rejecting the Union’s proposal regarding discharge for just
cause only. (G.C. Exh. 3.)
Another negotiating session was held on March 4, 1989.
Discharge for just cause only was discussed at length with
Respondent sticking to its position of employment at will.
During this meeting Kiscaden asked Hampton if the involved
property was worth more or less with a union contract and
Hampton indicated that it would be worth less. Kiscaden pro-
posed that the Union write him a check for $1 million and
write the other stockholder in Respondent, Van Hooser, a
check for the same amount to pay off the loan which was
taken out when Respondent was formed to purchase TCH. In
the alternative, Kiscaden suggested that the Union give Re-
spondent a low-cost, portable collective-bargaining agreement
which he could use to reopen other preparation plants which
had been shut down and which he was negotiating apparently
to purchase.27 With respect to pending Federal legislation
dealing with doublebreasting, Kiscaden testified that he told
Hampton that if such legislation became law, the involved
collective-bargaining agreement would have to become null
and void. During this meeting Kiscaden told Hampton that
769TENNESSEE CONSTRUCTION CO.
28 Hampton testified that Respondent took the position that while
its employees get breaks, if an emergency situation came up it did
not want its employees saying that they were going on break.
29 Hampton testified that this may have been the meeting when
Kiscaden stated that he would contact his attorney, Barbara Krause,
to put together some proposals and get back to Hampton.
30 With the elimination of certain language in the policy which
provided that if an employee did not work 30 hours in a week, his
insurance is not effective.
31 Hampton testified that he meant employment conditioned on be-
coming a union member within the first 30 days.
32 Namely drugs or alcohol on the job, ‘‘AWOL,’’ abuse of equip-
ment, refusal to comply with an order to do work or theft.
he wanted the collective-bargaining agreement to be a page
or two at most. At the end of the meeting Kiscaden told
Hampton that he, Kiscaden, would put together some alter-
native economic proposals. Kiscaden testified that he at-
tempted to explain to the union representative that if the
hourly wage was reduced, the taxes and the workmen’s com-
pensation payments would be lower and there would be more
money to put into a pension plan.
Regarding the March 4, 1989 session, Hampton testified
that Kiscaden started the meeting by reiterating Respondent’s
rejection of the Union’s proposal for discharge only for just
cause; that Kiscaden did not indicate what modifications
would make the Union’s proposals acceptable; that Kiscaden
said that he was not willing to tie wages down in a written
contract without a provision which would allow a reduction
in wages in the event of increases in costs such as work-
men’s compensation or health benefits; that Kiscaden stated
that he would talk to an insurance agent, Leon Wolford,
about a 401-K plan and what the administrative costs would
be; that Kiscaden proposed an open shop while the Union
proposed that membership in the Union be required as a con-
dition of employment; that the Union’s proposed 10-minute
break every 4 hours with pay was rejected even though it is
required by state law;28 that when he asked Kiscaden for his
proposal Kiscaden said that ‘‘he wasn’t interested in having
employees wave any book in his face’’; that he then told
Kiscaden that it did not appear that he was interested in sign-
ing a contract to which Kiscaden replied ‘‘I’m not interested
in giving up any of my rights’’; that Kiscaden said that when
he bought the company he agreed with the predecessor to
talk to the Union and he had done that; that when Hampton
said it looked like the Union was going to have to file an
unfair labor practice charge alleging that Respondent was not
bargaining in good faith Kiscaden said ‘‘well you’re not giv-
ing me anything, you’re not giving me anything’’; that
Kiscaden then talked about a portable contract which he
could take and use for other operations then maybe Respond-
ent and the Union could reach an agreement; and that
Kiscaden, at the end of the meeting, said that he would work
out some economic packages29 and look at just cause again
and look at arbitration.
Hampton met with Leon Wolford, the insurance agent, on
March 13, 1989, and discussed a pension plan.
The next negotiating session took place on May 31, 1989.
Discharge for just cause only was discussed with Kiscaden
stating that he would prefer to have the courts resolve dis-
charge cases. Kiscaden again asked the union representative
if he did not believe that it was necessary for the Union to
compensate Respondent in order to get a contract. Kiscaden
told the union representative ‘‘[i]f you’re not gonna give me
some contract I can go out here and make some money with,
you know, what’s your proposal to compensate me.’’
Kiscaden also repeated his proposal that in the event of dou-
ble breasting legislation the collective-bargaining agreement
with the Union would become null and void. Regarding this
meeting, Hampton testified that rather than going through
one proposal at a time, the Union was trying to find out what
things could be agreed on or not agreed on; that the Union
made a package proposal of 12 items and indicated that some
language on work jurisdiction would have to be worked out;
that the 12 items were (1) wages of $12 an hour, (2) $1.50
in pension contributions into a defined plan which would be
vested on day one, (3) 2 weeks’ vacation with 10 days’ pay,
(4) 6 paid holidays, (5) no termination except for just cause,
(6) 5 unpaid sick and personal leave days, (7) the continu-
ation of the employees’ present health insurance, life insur-
ance, and sick and accident insurance,30 (8) 30 minutes of
uninterrupted lunch, (9) 3 days of bereavement with 1 day
paid in the event of death in the immediate family, (10) arbi-
tration, (11) dues checkoff, and (12) a closed shop;31 that
Kiscaden made some calculations and stated that this pack-
age amounted to $20.24 an hour; that Kiscaden then pro-
posed a package consisting of $10 in wages, $2.50 contribu-
tion into a pension plan, with the same insurance and cor-
responding reductions of taxes in compensation because they
are based on the wage, which meant no holidays, no vacation
days and no other paid days off; that Kiscaden stated that his
package had an hourly value of $17.66 and it was proposed
with the understanding that it would be a 3-year agreement
and any workers’ compensation increases or insurance in-
creases would come out of wages; that Hampton then asked
Kiscaden about a wage package which totaled $18.50 an
hour and included just cause for discharge with the under-
standing that Kiscaden could include the five things he was
concerned about with respect to reasons for discharge;32 that
Kiscaden then stated that he would give the Union the items
in his proposal adding up to $17.66 but before the Union
could get anything to address its concerns about work juris-
diction, just cause, dues checkoff, union security, or arbitra-
tion he wanted $2 million; that Hampton asked Kiscaden if
he was serious and he said that he was absolutely serious;
that Kiscaden stated that in the event that double-breasting
legislation passed, the contract would be void and any obli-
gation to the Union ceased but he would have to check with
his attorney about the legality of that proposal; that Kiscaden
stated that he was going to have to be compensated for any
right he gave up; and that Kiscaden stated that he was going
to get in touch with his attorney and try to get his proposal
in some kind of written form. On cross-examination, Hamp-
ton testified that the 12 items were the entire bargaining pro-
posal, except for work jurisdiction and provisions such as
would prevent Respondent from contracting out work of the
entire operation. When called by Respondent, Kiscaden testi-
fied that he did not recognize Hampton’s May 31, 1989 pro-
posal as a package; that Hampton’s proposal did not have a
term; that he still had a problem with termination for just
cause, arbitration, closed shop, and work jurisdiction; that the
insurance on the employees had been increasing in cost about
20 percent a year; that he told Hampton that he could pay
Kiscaden and Van Hooser each $1 million or the Union
could give Respondent a portable contract; and that he did
770 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
33 Hylton, Rowe, and Robinson.
34 Kiscaden during this meeting said that he always allowed the
men to be off if they needed to be off, but he would not agree to
this proposal.
35 Kiscaden pointed out that when a power company sends a train
to be loaded with coal Respondent has 24 hours to load it. The load-
ing occurs sometimes on holidays and on Sundays. Kiscaden testi-
fied that Respondent tries to give its employees off 2 days at
Thanksgiving and 2 days at Christmas.
36 Kiscaden pointed out that while Respondent had given its em-
ployees 1 week paid vacation each year it had been in business, it
was not able to allow its employees to take their vacations as sched-
uled last summer because its customer, which historically shuts
not contact his attorney after this meeting as promised be-
cause shortly thereafter he and Hampton became engaged in
a situation where they were adversaries and they were at-
tempting to have each others people put in jail. On cross-ex-
amination, Kiscaden testified that before the first day of the
hearing herein he did not recognize the Union’s May 31 pro-
posal as a package; and that his August 15, 1990 affidavit
to the Board refers to the May 31 meeting and states ‘‘[t]hat
day the Union made a package proposal which included
wages of $12.00 per hour and other economic benefits which
totalled $20.24 per hour.’’ On rebuttal, Hampton testified
that the dispute that Kiscaden referred to did not arise until
October 1989, although there was testimony in the lawsuit
which was filed in October 1989 that 1 or 2 days of picket-
ing occurred at the involved site in June or July 1989.
According to Kiscaden’s testimony, about a year before
the hearing herein, or, in other words, in May 1990 Respond-
ent began to contract out some of the work formerly done
by its employees. When some of Respondent’s employees re-
tired, it contracted with Mountain Engineering to provide
three individuals to work at the preparation plant.33 Shumate
owns Mountain Engineering. Kiscaden testified that these
three individuals are not doing work different than Respond-
ent’s employees. Respondent pays $18 an hour for the serv-
ice of these three individuals.
Robinson testified that he worked at the involved prepara-
tion plant when TCH operated it; that he was a member of
the Union when he worked at the plant for TCH; that he was
laid off sometime before TCH sold the plant; that he never
received a letter from Respondent requesting him to submit
an employment application; that upon his return from Florida
in June 1990, his brother told him that Shumate wanted to
see him; that Shumate offered him a job working at the in-
volved plant for $8 an hour with no benefits; that he told
Shumate that he would not go to work there if he had to
cross a picket line and Shumate said that he would not have
to cross any picket line; that he started working at the job
on June 20, 1990; that he does not do work which is dif-
ferent than other employees; that he receives his paycheck
from Coalfield Construction; and that Hylton and Rowe also
work at the plant but receive their paycheck from Coalfield
Construction.
Shumate testified that he has an arrangement with
Kiscaden to furnish labor to Respondent through one of his
companies, ‘‘Coalfield—or Mountain Engineering’’; that he
began furnishing labor to Respondent on June 14, 1990,
when he sent Hylton to the plant; that on June 16, 1990, he
sent Rowe to the plant and on June 21, 1990, he sent Robin-
son to the involved plant; that at the time of the hearing
herein all three were still working at the plant doing the
same kind of duties as the other people who work there for
Respondent; that he pays the three above-named individuals
$8 per hour and Respondent pays him $18.10 per man hour
for these laborers; that when an employee or two retired or
quit at Respondent’s involved plant he asked Kiscaden for
more people to run the operation and Kiscaden refused to
hire any more people stating that ‘‘he was going to have to
get out of the labor business that his labor costs were much
too high’’; that Kiscaden asked him if he had any Mountain
Engineering people that he could use at the involved plant;
that he told Kiscaden that he did and that it would cost
$18.10 per man hour and Kiscaden agreed; that neither
Hylton nor Rowe were former TCH employees and they
were moved from a Pittston job to the involved plant; that
Robinson came to him looking for a job and when Shumate
mentioned working for Mountain Engineering at the involved
plant, Robinson said that he would not cross a picket line;
that when Respondent shuts down for vacation Respondent
brings in contractors to do work including maintenance and
other work, including welding; that he worked for TCH
under a union contract and the type of welding involved was
the type covered under that union contract; that of the con-
tractors used, Wayne Supply installs transmissions on dozers
and they weld up the ‘‘motor—the blades’’ on a dozer and
do whatever is necessary on the mobile equipment; that Re-
spondent’s employees don’t get involved too much in install-
ing transmissions in dozers; that Wayne Supply might be at
the plant 3 days at a time; that another contractor, Cum-
berland, installs stainless steel, rebuilds shoots and crushers,
and repairs pumps; that the reason Respondent uses contrac-
tors like that is because Respondent does not have the expen-
sive air compressors and sandblasters; that outside contrac-
tors are used to repair power lines because it is dangerous
work and Respondent does not have the men qualified to do
it; and that Stepp Construction is used when Respondent has
a lot of work and it does not have the time to do it.
The last negotiating session was held on June 22, 1990.
Kiscaden told the Union that he would need some protection
in the event of a wildcat strike. Specifically, he told the
Union that Respondent would need a $10-million perform-
ance bond to protect Respondent in the event of a wildcat
strike. According to Kiscaden’s affidavit to the Board he said
at this meeting that the Union could have the contract it
wanted if they could compensate Respondent with a $2-mil-
lion payment. Once again Kiscaden rejected the Union’s pro-
posal for arbitration stating that he was personally liable on
money borrowed to fund Respondent and he wanted to main-
tain control of the facility and so he would only agree to ar-
bitration if Shumate was the arbitrator. Kiscaden testified that
he probably again refused to agree to any work breaks or
lunchbreak provisions in the contract notwithstanding the fact
that Respondent had consistently given Respondent’s em-
ployees breaks because Respondent did not want to be held
to specific times in case of emergencies or equipment prob-
lems. At this meeting, Respondent also rejected the Union’s
proposal to (1) restrict supervisors from doing classified or
bargaining work, (2) have a work jurisdiction clause, (3)
have sick or personal days in the contract,34 (4) have any
holidays,35 (5) have a provision for vacations in the con-
tract,36 (6) have a successorship clause in the contract, (7)
771TENNESSEE CONSTRUCTION CO.
down the end of June and the first week of July, did not shut down
as anticipated.
37 Kiscaden did not remember this as being part of the June 22,
1990 proposal.
38 Kiscaden refused to agree to any overtime provision other than
required by law. He testified that Respondent pays its employees
time-and-a-half for all work over 7-1/4 hours per day pursuant to the
initial agreement when it started the involved operation.
39 Kiscaden pointed out that if things got bad and Respondent
needed only three people it would have to employ the people who
could do the things which needed to be done.
40 Kiscaden testified that he rejected this proposal because the
Union would not define adequate.
41 Kiscaden testified that he rejected this because Federal law cov-
ered this situation.
42 Respondent indicated that when possible it gave Labor Day, 2
days for Thanksgiving, and 2 days for Christmas but that it may not
be able to continue to do this so it would not agree to it.
43 Respondent indicated that the employees were on vacation at the
time of this meeting but it would not agree to provide the employees
a vacation.
44 Hampton testified that Respondent did not give him an answer
to his question propounded earlier concerning insurance coverage for
vendors and suppliers.
45 Respondent indicated that it had this and the two preceding
items but it would not agree to furnish them.
46 Hampton testified that the policy indicates that if the employee
becomes disabled this week, he has no insurance the next week be-
cause he is no longer working.
have a restriction on leasing the plant to avoid a union con-
tract,37 (8) have an overtime provision,38 (9) have a set num-
ber of days or pay for bereavement leave, (10) be bound by
Respondent’s seniority list,39 (11) have a provision in the
contract referring to a clean and warm eating place, (12)
have a provision in the agreement referring to an adequate
parking lot, (13) allow union representatives who were not
employees of Respondent to post anything on the employee
bulletin board,40 (13) allow union representatives who were
not employees of Respondent to attend union meetings in
Respondent’s bath house, and (14) allow employees to re-
move themselves from dangerous work situations.41
Regarding the June 22, 1990 session, Hampton testified
that the hiatus from the last session was the result of frustra-
tion since the Union was not going to give Respondent $2
million; that Hampton asked Kiscaden if he still recognized
the Union as the bargaining representative and Kiscaden said
yes; that he told Kiscaden that the Union was withdrawing
all of its previous proposals; that the Union then made an-
other series of proposals, one at a time, to see if the parties
could reach some common ground; that the union proposals
included (1) discharge for just cause only which Respondent
rejected in favor of employment at will, (2) arbitration which
Respondent would accept only if Shumate was the sole arbi-
trator, (3) closed shop which was rejected, (4) 10-minute
break for every 4 hours with which Respondent refused to
agree, (5) 30 minutes of uninterrupted lunch with which Re-
spondent refused to agree, (6) supervisors not be permitted
to do classified work where it resulted in a layoff with
Kiscaden indicating that he would not agree to any restric-
tion on supervisors working, (7) work jurisdiction with Re-
spondent’s representative saying that they would not agree to
a clause defining work jurisdiction, (8) $100 a year clothing
allowance with Respondent indicating that they furnished
gloves, safety belts and glasses but they would not agree to
furnish them, (9) the wage rates in the 1981 contract at the
end of the National Agreement with Respondent stating that
was what it was paying but it would not agree to it, (10) 5
sick leave days with pay which was rejected with the expla-
nation that if a man needs off, Respondent would let him
take off but it would not agree to do so, (11) 12 holidays
proposed separately with each one rejected,42 (12) 2 weeks’
vacation with pay which was rejected, (13) 1 week of vaca-
tion with pay and 1 week of vacation without pay which was
rejected, (14) 1 week of vacation with pay which was re-
jected, (15) 1 week of vacation without pay which was re-
jected, (16) floating vacation days with an unspecified num-
ber with pay which was rejected,43 (17) successorship which
was rejected, (18) no leasing of the plant to avoid the con-
tract which was rejected, (19) doubletime for Sunday which
was rejected, (20) time-and-a-half for Sunday which was re-
jected with Respondent’s representatives indicating that they
now paid this but they would not agree to it, (21) union ac-
cess to the property on reasonable notice which was re-
jected,44 (22) bereavement leave which was rejected with Re-
spondent indicating that the men take off for death but Re-
spondent would not agree to it, (23) recognize the concept
of seniority with Respondent indicating that it had given the
Union a seniority list but Respondent would not be bound by
it, (24) a clean and warm eating place which was rejected,
(25) sanitary toilets which was rejected, (26) adequate park-
ing which was rejected,45 (27) permission to use the bulletin
board with the Respondent agreeing to let the employees
have access to the bulletin board, (28) the employees not
have to bring tools to work with Respondent indicating that
it supplies tools but it would not agree to this in a contract,
(29) use the bath house for a meeting place which the Re-
spondent limited to employees only and Respondent would
put this in writing, (30) dues checkoff with Respondent indi-
cating that it would do this provided the Union paid for the
costs and Respondent would agree to put that in writing pro-
vided it was properly authorized, (31) the establishment of
a pension plan with Respondent indicating that it would not
contribute to any union multiemployer plan but rather wanted
some form of transfer of wages into a pension plan, (32) that
Respondent continue the then current level of insurance ben-
efits which was rejected by Respondent, (33) the elimination
of the 30-hour-a-week requirement for coverage which was
rejected with Respondent indicating that was an insurance
company requirement,46 (34) a monthly mine, health and
safety meeting with Respondent indicating that it now had
weekly meetings and it would agree to that, (35) that an em-
ployee be permitted to remove himself from what he per-
ceived to be a dangerous work setting or imminent danger
which was rejected by Respondent with the indication that
the employee would be expected to remove himself from a
dangerous condition but Respondent would not agree to it;
that Kiscaden then stated that he had a major problem with
what happens to the value of his property if he signs a union
contract and he stated that he had to have $2 million before
he would sign a contract; that Kiscaden also indicated that
he had to have a $10-million protection or performance bond
to guarantee that his operations would not be interrupted by
any union activities before he would sign a contract with the
Union; that even the things he agreed to in this session were
contingent on the $2-million payment; that Kiscaden stated
772 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
47 Kiscaden later explained that it was the outsiders he was afraid
of.
that if he got the $2 million plus the $10-million perform-
ance or protection bond then he might agree to the other pro-
posals; that he advised Kiscaden at this point that the Union
thought that it might be necessary to file a charge with the
Board based on the Union’s belief that Respondent was not
bargaining in good faith; and that Kiscaden stated that he
would contact his attorney to see what needed to be done to
decertify the Union and ‘‘before he would allow the Govern-
ment to extort a contract from him . . . he would have . . .
Shumate take torches and cut the plant off . . . to the
ground.’’ On cross-examination, Hampton testified that
Kiscaden had been responsive in terms of setting up a meet-
ing with the Union; that on June 22, 1990, the Union essen-
tially started over with bargaining in that it withdrew its prior
proposal and started bargaining at ‘‘square one’’; and that
that was the only bargaining session within 6 months of the
date the charge was filed herein.
When called by Respondent, Kiscaden testified regarding
the June 22, 1990 meeting that for the first time Tunis Smith
and Charles Dixon attended a session; that these people are
known as participants in violence on picket lines; that he
computed the cost of the Union’s June 22, 1990 proposal to
be $24.26 an hour with no overtime and no provision for
breaks; that the reason he asked for the performance bond
was that he was afraid of a wildcat strike even though he
did not believe that his employees themselves would go out
on strike;47 that he did not insist on the performance bond;
that he did not condition further bargaining on the perform-
ance bond; that he insisted on the $2-million payment in the
context of either pay the money or give me a portable con-
tract; that he did not condition further bargaining on the pay-
ment of the $2 million; that his original proposal is still
there, except that it no longer includes all of the holidays
listed; that he did say that when it got to the point that the
government told him how to run his business he would do
away with the place; that he did tell Hampton that he wanted
an agreement which was either one or two pages; that in the
past he had not been willing to bargain but rather sat in the
back room and told the bargainers what to do; and that the
reason he did not want to agree to give the Union access to
his property was because he objected to a couple of personal-
ities he did not trust being on his property. On cross-exam-
ination Kiscaden testified that the first time he actually
costed out the Union’s June 22 proposal was the morning of
the second day of the hearing herein; that he used the current
costs and not the 1990 costs in computing the figures; that
in 1990 the health insurance would have been $400 plus ver-
sus the 1991 cost of $532; that at the time of the hearing
herein Respondent was paying its employees a dollar per
hour figure of ‘‘in the 20’s’’ which did not include any paid
days off but includes overtime; that he never proposed a no-
strike clause to the Union; and that he was told that Smith
was the local union president at the time and that Dixon at
that time was the International executive board member from
the district.
Robinson testified that in November 1990 he asked
Shumate if he, Robinson, could be placed on Respondent’s
payroll; and that Shumate said ‘‘no . . . Todd won’t let me’’
and then he drove off.
Hampton testified that he first became aware that Re-
spondent was contracting out normal bargaining unit work
when Robinson telephoned him expressing his concern that
he was working at the involved plant doing the same work
as Respondent’s employees but only making $8 an hour; and
that there were no proposals made by Respondent during ne-
gotiations or other meetings concerning the right to contract
out bargaining unit work.
Contentions
General Counsel, on brief, contends that to bargain in
good faith requires more than the simple willingness to meet
and talk; that as the U.S. Supreme Court stated in NLRB v.
Insurance Agents, 361 U.S. 477, 485 (1960):
Collective bargaining, then, is not simply an occasion
for purely formal meetings between management and
labor, while each maintains an attitude of ‘‘take it or
leave it’’; it presupposes a desire to reach ultimate
agreement, to enter into a collective-bargaining contract
[;]
that failure to do little more then reject union proposals is
not bargaining in good faith; that there is an affirmative obli-
gation to make meaningful counterproposals; that particularly
indicative of bad-faith bargaining is an adamant refusal to in-
corporate a unit description in a proposed collective-bargain-
ing agreement, proposals less favorable than those previously
offered or below current levels of benefits, and insistence
upon the posting of a performance bond as a condition prece-
dent to entering into a collective-bargaining agreement; that
Respondent was paying its employees wages substantially
higher than those offered the Union during negotiations; that
while Respondent paid its employees for work in excess of
7-1/4 hours a day, it refused to agree to pay any more than
the bare legal requirement of overtime pay for hours in ex-
cess of 40 hours a week; that Respondent frustrated the ne-
gotiation process by simply refusing to make a contractual
commitment and some of the reasons proffered by Respond-
ent for such refusals appeared either petty and/or silly or
contrived and shifting; that even when Respondent’s prof-
fered reason for rejection may have had merit, Respondent
made virtually no counterproposals; that Respondent’s only
apparent proposal, which was given to the Union on July 7,
1987, is so limited that it did not encompass the then terms
and conditions of employment or meet any reasonable con-
cept of a complete collective-bargaining agreement; that Re-
spondent’s original proposal was thereafter altered only to
the extent that Respondent subsequently refused to agree to
any sick day provision and ultimately eliminated all assur-
ances of any paid holidays; that as if to add insult to injury,
Respondent proposed to the Union that it would agree to a
contract if the Union would essentially reimburse the Re-
spondent’s principals the total cost of its business enterprise
and post a $10-million performance bond; that Respondent
utterly precluded the Union from reaching any agreement
with Respondent; and that Respondent made it clear that the
involved employees would enjoy better wages and benefits
than Respondent would ever agree to in a contract. Regard-
ing the subcontracting issue, General Counsel contends that
it is well settled that the contracting away of bargaining unit
work, absent notice and opportunity to bargain afforded the
773TENNESSEE CONSTRUCTION CO.
representative of the unit, violates Section 8(a)(5) of the Act;
that in certain circumstances such contracting away may also
violate Section 8(a)(3) and (5) of the Act; that the Union had
no notice of the contracting out of three bargaining unit jobs
until the last individual who was brought to the plant com-
plained to the Union; that during negotiations Respondent re-
peatedly represented its intent to contract work only in those
instances where it did not have the requisite equipment or
employees with needed skills for the performance of that
work and such was Respondent’s practice up until June
1990; and that inasmuch as Respondent demonstrated to em-
ployees by this contracting out that any future positions of
employment in Respondent’s operation would be conditioned
upon the acceptance of status less than union represented
employees, Respondent effectively discouraged union mem-
bership in violation of Section 8(a)(3) of the Act.
On brief, Respondent argues that the Union’s attitude and
bargaining approach are factors which should be taken into
account when assessing a company’s position taken in nego-
tiations; that here the Union started from scratch on June 22,
1990, and, therefore, exactly as in Artiste Permanent Wave
Co., 172 NLRB 1922, (1968) ‘‘the Union’s attempt . . . to
start ‘from scratch’ by repudiating all previous progress . . .
all of which tended to prolong the negotiations,’’ is grounds
for dismissal of the complaint against the employer for bad-
faith bargaining; that examining the totality of circumstances,
it is clear that Respondent bargained in good faith; that pro-
posals made by Respondent, such as portability, no arbitra-
tion and no union security, were in many instances, analo-
gous to those agreed to by the Union with other employers
and, thus, demonstrably not extreme or providing evidence of
an intent to frustrate agreement; that Respondent engaged in
no conduct away from the bargaining table that was ques-
tionable or demonstrates any intent to avoid reaching an
agreement; that the insistence by the Union on minutia such
as whether the lunch room would always exist, toilets would
always be provided, and the bath house would always be
heated is symptomatic of the Union’s penchant for formali-
ties; that Kiscaden was not a sophisticated bargainer and,
‘‘[i]n fact, he had never bargained before’’; that while some
of Kiscaden’s proposals were not conventional, unconven-
tional does not equate with superficial; that Respondent is
not operated in a standard way or by typical management;
that the Board has taken the position that the substance of
a party’s bargaining position must be unreasonable or ex-
treme before it may be considered as providing some evi-
dence of bad-faith intent to frustrate agreement, 88 Transit
Lines, 300 NLRB 177 (1990); that the bad-faith bargaining
charge is barred by Section 10(b) of the Act; that the parties
only had one bargaining session within the 10(b) period and
at that session the Union withdrew its earlier proposal and
presented a regressive one; that the allegation regarding con-
tracting out is time barred since Respondent repudiated any
obligation it may have had to limit contracting out in July
1987; that as a labor law successor, Respondent unilaterally
established new terms and conditions of employment, includ-
ing unlimited contracting out, in July 1987, and the Union
waived any right it had to bargain about terms of active em-
ployees at that time; that the contracting to Mountain Engi-
neering was consistent with prior practice and custom and
carried with it no duty to bargain over either the decision or
the effects; that in any event Respondent and the Union bar-
gained to impasse over the issue of contracting out and the
Respondent was entitled to implement its proposal; and that
the contracting out was not inherently destructive of the em-
ployees’ Section 7 rights and did not violate Section 8(a)(3)
of the Act since there was no showing of union animus and
the uncontradicted testimony of the record is to the effect
that economics were the sole reason for the decision to sub-
contract.
Analysis
As noted above, Respondent, on brief, contends that the
complaint should be dismissed assertedly because the Union
did not bargain in good faith on June 22, 1990, when it start-
ed from scratch. In support of this contention, certain lan-
guage of an administrative law judge is cited. The full quote
of the involved findings of the administrative law judge in
Artiste Permanent Wave Co., supra at 1945, is as follows:
In addition, I have already considered the union’s at-
tempt at meetings 13 and 14 to start ‘‘from scratch’’ by
repudiating all previous progress and tentative agree-
ments on issues and clauses on which Respondent re-
luctantly yielded and rehashed much of the negotiations
which had gone before, all of which tended to prolong
negotiations.
Here there were no tentative agreements at the end of the
May 31, 1989 session, the last session held before the June
22, 1990 session. Here Respondent did not reluctantly yield
on or before May 31, 1989. And whether there was any
progress would have to be viewed in the light of Kiscaden’s
statement on May 31, 1989, that he wanted $2 million from
the Union.
The Board stated in North Coast Cleaning Service, 272
NLRB 1343, 1344 (1984):
The duty to meet for the purpose of bargaining is im-
posed by Section 8(d) of the Act which requires, inter
alia, that the parties ‘‘meet at reasonable times and con-
fer in good faith with respect to wages, hours, and other
terms and conditions of employment, or the negotiation
of an agreement . . . .’’ The determination of whether
an employer has met its obligation to bargain must be
based on the ‘‘totality’’ of its conduct.5 Although the
duty to bargain does not compel a party to make con-
cessions or agree to any proposals,6 it does require cer-
tain actions such as entering ‘‘into discussion with an
open and fair mind, and a sincere purpose to find a
basis of agreement.’’7 As the Supreme Court has ruled:
Collective bargaining, then, is not simply an occa-
sion for purely formal meetings between manage-
ment and labor, while each maintains an attitude of
‘‘take it or leave it’’; it presupposes a desire to reach
ultimate agreement to enter into a collective-bargain-
ing contract.8
Consistent with this, a party’s ‘‘failure to do little more
than reject (demands)’’ has been found ‘‘indicative of
774 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
48 Hampton pointed out that the lawsuit did refer to 1 or 2 days
of picketing in June or July 1989. It would appear, however, that
the involved legal proceeding did not commence until October 1989.
a failure to comply with [the] statutory requirement to
bargain in good faith.’’9 [Emphasis added.]
5NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131, 134 (1st Cir.
1953, cert denied 346 U.S. 887 (1954); Hospitality Motor Inn, 249
NLRB 1036, 1039 (1980), enfd. 667 F.2d 562 (6th Cir. 1982).
6NLRB v. American National Insurance Co., 343 U.S. 395, 404
(1952).
7NLRB v. Herman Sausage Co., 275 F.2d 229, 231 (5th Cir. 1960);
Hospitality Motor Inn, supra at 1039.
8NLRB v. Insurance Agents’ International Union, AFL–CIO, 361
U.S. 477, 485 (1960).
9NLRB v. Century Cement Mfg. Co., 208 F.2d 84, 86 (2d Cir. 1954);
My Store, Inc., 147 NLRB 145, 155–156 (1964) enfd. 345 F.2d 494
(7th Cir. 1965).
In my opinion, as demonstrated by the posture Kiscaden
took on June 22, 1990, Respondent did not bargain in good
faith but rather engaged in surface bargaining. Kiscaden
pointed out that he was personally liable for the money bor-
rowed to fund Respondent. It appears that this obligation af-
fected Kiscaden’s ability to be candid regarding the matters
involved herein.
Referring strictly to credibility, it is noted that with respect
to the August 9, 1988 session, Kiscaden did not deny telling
the Union that anything Respondent’s men had the ability to
do and Respondent had the equipment to do it would not be
done by any contractor. Rather, Kiscaden sought refuge in
his testimony that he did not remember making the state-
ment. With respect to the January 1989 session, Kiscaden
changed his testimony from telling the Union that Respond-
ent wanted to be able to contract work out if it was cheaper
than Respondent doing the work itself to telling the Union
that Respondent needed to bring in contractors to do mainte-
nance work when it did not have employees with the skills
required or the necessary equipment. With respect to the
May 31, 1989 session, Kiscaden testified that he did not con-
tact his attorney after this meeting as promised to get his
proposal in written form because shortly thereafter he and
Hampton became engaged in a situation where they were ad-
versaries and they were attempting to have each others peo-
ple put in jail. Kiscaden did not deny Hampton’s subsequent
testimony that the involved lawsuit was filed in October
1989.48 And finally, with respect to the June 22, 1989 ses-
sion, Kiscaden testified that he did not insist on the perform-
ance bond; that he insisted on the $2-million payment in the
context of either pay the money or give me the portable con-
tract; and that he did not condition further bargaining on the
payment of the $2 million. Taking the last first, Kiscaden ef-
fectively conditioned further bargaining on the payment of
the $2 million when he conditioned the signing of any con-
tract on the payment of the $2 million at this last bargaining
session. Previously Kiscaden did speak in terms of an alter-
native, namely, a portable contract. Kiscaden was well aware,
however, that such a proposal was novel. Indeed, he did not
know of any other company in Respondent’s situation which
had such a contract. And he knew that the Union would not
take this approach. Apparently it was not practical or perhaps
even feasible in view of the ratification question which
would arise if a company attempted to utilize its portability
aspect. Kiscaden also conditioned the signing of a contract
on the $10-million performance bond. Kiscaden never ex-
plained his reasoning for taking the position at the hearing
herein that he did not insist on the performance bond. He
does not deny bringing it up during this session. On the other
hand, he does not divulge what language he is relying on to
demonstrate that he was not insisting on it.
While Respondent’s counsel attempts to portray Kiscaden
as a neophyte bargainer, Kiscaden himself testified that in
past he contented himself with sitting in a back room and
telling the bargainers what to do.
Although Respondent met with the Union, it did not do so
with the intention of reaching an agreement. One of the indi-
cia of unlawful bargaining is whether the employer adopted
a purposeful strategy to ensure that bargaining would be fu-
tile or would fail. NLRB v. Herman Sausage Co., 275 F.2d
229 (5th Cir. 1960); Cable Vision, 249 NLRB 412 (1980).
On June 22, 1990, Kiscaden told the Union that he had to
have $2 million and a $10-million performance bond from
the Union before he would sign a contract; and that he would
not agree to, among other things, a work jurisdiction clause
nor would he agree to be bound by Respondent’s own se-
niority list. Perhaps certain of the testimony divulges his true
intent. It is noted that Kiscaden stated that (1) he was not
interested in giving up any of his rights and when he bought
the company he agreed with the predecessor to talk with the
Union and he had done that, (2) during negotiations and at
the time of the hearing herein he was negotiating to lease the
involved property less the employees, and (3) he was going
to get out of the labor business, his labor costs were too
high.
Respondent’s insistence on the posting of a $10 million
performance bond, a nonmandatory subject of bargaining,
constituted a per se violation of the Act. Betra Mfg. Co., 233
NLRB 1126 (1977).
Regarding Respondent’s insistence that it be paid $2 mil-
lion by the Union before it would sign a contract, it appears
that the court in NLRB v. Reed & Prince Mfg. Co., supra,
spoke to such a situation when it concluded:
It is difficult to believe that the Company with a
straight face and in good faith could have supposed that
this proposal had the slightest chance of acceptance by
a self respecting union, or even that it might advance
the negotiations by affording a basis of discussion; rath-
er, it looks more like a stalling tactic by a party bent
upon maintaining the pretense of bargaining.
The situation here was worse in that the proposal was actu-
ally insulting to the process itself. Kiscaden felt that he could
play with the union representatives and this was his way of
saying so. When they were unwilling to let him play, he
made his threats to look into decertification and, if necessary,
torch the business. In other words, he was telling them, in
his less than subtle manner, that he would try to see that ei-
ther they would not be in the game or there would be noth-
ing to play for.
Also Respondent’s outright rejection of any seniority
clause, a mandatory subject of bargaining, and a work juris-
diction clause, especially in view of Kiscaden’s refusal to ac-
cept any meaningful proposal regarding whether supervisors
could do unit work, further demonstrates that Respondent
was refusing to bargain in good faith. This was not a case
775TENNESSEE CONSTRUCTION CO.
49 Perhaps Kiscaden and his general manager, Shumate, can work
out how to come up with the difference in what they paid Robinson
per hour and what Respondent should have paid Robinson in view
of their assertions that Kiscaden has already given Shumate $18.10
per every hour Robinson worked. In the final analysis, however, it
is Respondent’s responsibility to see that Robinson is made whole.
of hard bargaining as the Respondent urges. Rather, Re-
spondent failed to engage in good-faith bargaining and there-
by violated Section 8(a)(5) and (1) of the Act.
Respondent also violated the Act when it contracted out
bargaining unit work without giving notice and an oppor-
tunity to bargain to the Union. Contrary to the assertions of
Respondent on brief, the credible evidence of record does not
support its assertion that Respondent repudiated any obliga-
tion it may have had to limit contracting out in July 1987.
In fact when the union representatives brought up the fact
that Respondent was using a contractor during the 1988 sum-
mer vacation Kiscaden assured the Union that anything Re-
spondent’s men had the ability to do and Respondent had the
equipment to do it would not be done by any contractor.
Also contrary to the assertion of Respondent on brief, the
contracting with Shumate’s company for the three employees
was not consistent with prior practice and custom. In the past
contractors were used when Respondent’s employees did not
have the capability, the equipment or the time to perform the
task involved. Since there was no bargaining over the con-
tracting out of unit work, Respondent and the Union had not
bargained to impasse over this issue. In this regard, Respond-
ent violated Section 8(a)(5) and (1) of the Act. Since the
Union did not receive notice of Respondent’s actions until
Robinson spoke out, there is no 10(b) question.
In my opinion, by contracting out unit work without first
giving notice to the Union and giving it an opportunity to
bargain, in the circumstances existing here, Respondent also
violated Section 8(a)(3) of the Act. On brief, Respondent as-
serts that the uncontradicted testimony of the record is to the
effect that economics were the sole reason for the decision
to subcontract and it was not inherently destructive of the
employees’ Section 7 rights and did not violate Section
8(a)(3) of the Act since there was no showing of union ani-
mus. Apparently the asserted uncontradicted testimony of
record that economics were the sole reason for the decision
to subcontract unit work is Shumate’s testimony that
Kiscaden said that ‘‘he was going to have to get out of the
labor business that his labor costs were much to high.’’
Kiscaden then assertedly pays $18.10 per man hour to
Shumate’s company for the use of three men who are paid
$8 an hour, with no benefits, by Shumate’s company.
Kiscaden does not testify about Respondent’s economic situ-
ation with respect to cost for these three men. It has not been
demonstrated that economics were the sole reason for the de-
cision to subcontract these three unit jobs. In my opinion, no
adequate business justification has been advanced by Re-
spondent for this action. In view of what was going on be-
tween Respondent and the Union, Respondent’s action in this
regard cannot be considered in a vacuum. Respondent’s prior
and subsequent unlawful conduct provides background which
must also be considered. The contracting out of the three unit
jobs in this situation was inherently destructive of the em-
ployees’ Section 7 rights in that, as General Counsel points
out, Respondent was demonstrating to the employees that
any future positions of employment in Respondent’s oper-
ation would be conditioned upon the acceptance of status
less than union represented employees and thereby Respond-
ent effectively discouraged union membership in violation of
Section 8(a)(3) and (1) of the Act.
Paragraph 5(a) of the amended complaint issued on May
14, 1991, alleges that Respondent caused Hylton, Robinson,
and Rowe to be hired and placed on the payroll of Coalfield
performing unit work at wage rates less than those paid and
with benefits less than those provided by Respondent for
other unit employees. Coalfield is no longer a Respondent in
this proceeding. The amended complaint seeks an order re-
quiring Respondent, inter alia, to reinstate direct employment
of all employees performing unit work, at wage rates and
with benefits in effect for other employees performing simi-
lar unit work and to make whole Hylton, Robinson, and
Rowe. Shumate testified that Hylton and Rowe were already
employed by his company at another company’s jobsite
when he had them begin work at Respondent’s plant. This
was not the case with Robinson. Shumate’s testimony that
Robinson came to him looking for a job is not credited.
Shumate did not impress me as being a credible witness.
Shumate, as the general manager of Respondent, told
Kiscaden that he needed additional employees. Assertedly,
Kiscaden agreed, provided they were not carried on the pay-
roll of Respondent. At that time, as noted above, Hylton and
Rowe were on the payroll of Shumate’s company. Robinson
was not. Also, Robinson, unlike Hylton and Rowe, worked
for Respondent’s predecessor and was on lay off when the
involved facility was sold to the Respondent. Shumate sought
out Robinson and offered him a job. He would work at Re-
spondent’s plant but he would be paid with a Coalfield
check. In November 1990 Robinson asked Shumate if he,
Robinson, could be placed on Respondent’s payroll but he
was told by Shumate that Kiscaden would not allow him,
Shumate, to do this. Neither Rowe nor Hylton asked to be-
come direct employees of the Respondent. In view of all of
this, it appears that Robinson was an employee of Respond-
ent notwithstanding the machinations engaged in by
Kiscaden and Shumate. The method of his hiring was part
of a scheme by Kiscaden to avoid Respondent’s obligations
under the Act. He was not hired until there was a need for
his service at Respondent’s plant. This is not the situation
with Hylton and Rowe. Accordingly, Respondent will only
be required to make Robinson whole and maintain him as a
member of the unit.49
CONCLUSIONS OF LAW
1. Respondent Tennessee Construction Company is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All production and maintenance employees of [Re-
spondent] working in or about [Respondent’s] Nelse, Ken-
tucky coal preparation plant, but excluding all professional
employees, guards and supervisors as defined in the Act,
constitute a unit appropriate for collective bargaining within
the meaning of Section 9(b) of the Act.
4. At all times material, the Union has been the exclusive
bargaining representative of the employees in the appropriate
unit within the meaning of Section 9(b) of the Act.
776 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
50 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
51 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
5. By bargaining in bad faith in collective-bargaining ne-
gotiations and by contracting out unit work without notifying
the Union and according it an opportunity to negotiate, Re-
spondent has violated Section 8(a)(5) and (1) of the Act.
6. By contracting out unit work without notice to or bar-
gaining with the Union and without any demonstrated busi-
ness justification, while engaging in surface bargaining with
the Union, Respondent effectively discouraged union mem-
bership in violation of Section 8(a)(3) and (1) of the Act.
7. The unfair labor practices set forth above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices within the meaning of Section 8(a)(1),
(3), and (5) of the Act, it shall be recommended that Re-
spondent cease and desist therefrom and take certain affirma-
tive action.
Having found that Respondent violated Section 8(a)(5) and
(1) of the Act by refusing to bargain in good faith with the
Union, I shall recommend that Respondent bargain with the
Union upon request and in the event that an understanding
is reached, to embody such understanding in a signed agree-
ment.
Having found that Respondent, without notice to the
Union and without according the Union an opportunity to
bargain, contracted out unit work, I shall order that Respond-
ent cease and desist from unilaterally subcontracting unit
work without notifying or bargaining with the Union; restore
the status quo ante as it existed prior to the unlawful sub-
contracting of unit work in June 1990 by terminating the
contract for unit work, by making Mallie Robinson a direct
employee of Respondent and by making him whole for any
loss of earnings or other compensation he may have suffered
as a result of Respondent’s unlawful action in bypassing his
bargaining representative and not applying to him the terms
and conditions of employment which existed for unit em-
ployees at that time. Backpay shall be computed in the man-
ner prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended50
ORDER
The Respondent, Tennessee Construction Company, Nelse,
Kentucky, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively in good faith concern-
ing terms and conditions of employment with the Union, as
the exclusive representative of its employees in the following
unit appropriate for the purposes of collective bargaining:
All production and maintenance employees of [Re-
spondent] working in or about [Respondent’s] Nelse,
Kentucky coal preparation plant, but excluding all pro-
fessional employees, guards and supervisors as defined
in the Act.
(b) Refusing or failing to bargain in good faith with the
Union by unilaterally contracting out unit work without no-
tice to and bargaining with the Union as the exclusive rep-
resentative of its employees in the appropriate unit.
(c) Discouraging membership in the Union by unilaterally
contracting out unit work while engaging in surface bargain-
ing when such contracting out is without any demonstrated
business justification and is done without notice to and bar-
gaining with the Union as the exclusive representative of its
employees in the appropriate unit.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Terminate its contracting out of bargaining unit work.
(b) Offer Mallie Robinson direct employment with Re-
spondent and make him whole for any loss of earnings and
other benefits suffered as a result of Respondent’s unlawful
action in bypassing his bargaining representative and not ap-
plying to him the terms and conditions of employment which
existed for unit employees at that time, in the manner set
forth in the remedy section of this decision.
(c) On request, bargain collectively and in good faith with
the Union as the exclusive collective-bargaining representa-
tive of its employees in the unit set forth above with respect
to rates of pay, wages, hours, and other terms and conditions
of employment.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its Nelse, Kentucky coal preparation plant cop-
ies of the attached notice marked ‘‘Appendix.’’51 Copies of
the notice, on forms provided by the Regional Director for
Region 9, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.