United Mine Workers of America

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1267 (N.L.R.B. 1980)

UNITED MINE WORKERS OF AMERICA 1267
United Mine Workers of America; District No. 17,
United Mine Workers of America; and Local
Union No. 1582, United Mine Workers of
America and Elk Run Coal Company, Inc. and
United Steelworkers of America, AFL-CIO-
CLC; and United Steelworkers of America,
AFL-CIO-CLC, Local Union 14614. Case 9-
CD-380-1-2
August 27, 1980
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS
PENEILIO AND TRUESDALE
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Elk Run Coal Company, Inc.,
herein called the Charging Party, alleging that the
United Mine Workers of America, District No. 17,
United Mine Workers of America, and Local
Union No. 1582, United Mine Workers of America,
herein collectively called the United Mine Work-
ers, had violated Section 8(b)(4)(D) of the Act by
engaging in certain proscribed activity with the
object of forcing or requiring the Charging Party
and Vecellio and Grogan, Inc., herein called the
Employer, to assign certain work to its members
rather than to employees represented by the United
Steelworkers of America, AFL-CIO-CLC, and
United Steelworkers of America, AFL-CIO-CLC,
Local Union 14614, herein collectively called the
Steelworkers.
Pursuant to notice, a hearing was held before
Hearing Officer Cassius B. Gravitt, Jr., on May 21,
1980. All parties appeared and were afforded full
opportunity to be heard, to examine and cross-ex-
amine witnesses, and to adduce evidence bearing
on the issues.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
1. JURISDICTION
The parties stipulated, and we find, that the
Charging Party, with its principal office located at
Beckley, West Virginia, is a wholly owned subsidi-
ary of A. T. Massey Coal Company, Inc., of Vir-
ginia, and is engaged. in the coal mining business
near Sylvester, Boone County, West Virginia. The
Charging Party annually purchases and receives
goods and materials valued in excess of $50,000 di-
251 NLRB No. 169
rectly from points outside the State of West Vir-
ginia.
The parties further stipulated, and we find, that
the Employer is engaged in heavy highway con-
struction and coal mining at various sites in West
Virginia and annually purchases and receives goods
and materials valued in excess of $50,000 at its job-
sites directly from points outside the State of West
Virginia.
Accordingly, we find, as the parties stipulated.
that the Charging Party and the Employer are en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act and that it will effectuate
the purposes of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that the
United Mine Workers and the Steelworkers are
labor organizations within the meaning of Section
2(5) of the Act.
1II. THE DISPUTE
A. The Work in Dispute
The work in dispute is the construction of a coal
mining complex near Sylvester, Boone County,
West Virginia, herein called the Sylvester project.
B. Background and Facts of the Dispute
The Charging Party is engaged in the coal
mining business at the Sylvester project. The Em-
ployer in the latter part of March 1980' signed a
contract with the Charging Party to construct a
coal mining complex at the said project for the
latter party. Shortly thereafter, the Employer as-
signed the work to employees represented by the
Steelworkers. The work performed by the Em-
ployer to date involves excavating, grading, and
changing the contour of the earth.
The United Mine Workers claimed the work as-
signed to the Steelworkers. On March 28, Vernon
Massey, member of the International executive
committee of the United Mine Workers, demanded
of the Charging Party's president, Douglas Black-
burn, that the construction work being performed
at the Sylvester project be assigned to employees
represented by the United Mine Workers. Black-
burn refused, and on April 7 the United Mine
Workers began engaging in mass picketing at the
worksite. The picketers blocked the ingress and
egress to the worksite and told the Employer's offi-
cials that the job was going to be done only by the
"UMWA" and carried signs to that effect. On
' All dates hereinafter refer to 1980.
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
April 8, the mass picketing continued and the Em-
ployer's employees, who attempted to enter the
jobsite, were assaulted and their cars damaged. The
members of the United Mine Workers continued to
picket and block the entrance to the project for the
remainder of the week. On April 10, a West Vir-
ginia state court issued an injunction limiting the
number of pickets and prohibiting violence. Picket-
ing persisted, however, through the end of April
with pickets on April 14 carrying a sign stating
"Think UMWA" and with threats of violence on
April 17 if employees represented by the United
Mine Workers did not perform the disputed work.
On April 29, the West Virginia state court found
the United Mine Workers to be in contempt of the
injunction, and work resumed on April 30. On May
12, the United Mine Workers again picketed the
Sylvester project.
C. The Contentions of the Parties
The Charging Party and the Employer contend
that the construction of the mine at the Sylvester
project has properly been assigned to the employ-
ees who are represented by the Steelworkers on
the basis of past practice, area practice, efficiency
and economy of operation, skills, and a Board cer-
tification. They also assert that the Employer's
contracts with the United Mine Workers and the
Steelworkers require the Employer to assign the
disputed work to the employees represented by the
Steelworkers.
It is the Steelworkers contention, inter alia, that,
inasmuch as the Employer bid and was awarded
the disputed work by the Charging Party on the
basis of the wage rates set forth in its agreement
with the Employer, the work should be performed
by employees represented by the Steelworkers.
The United Mine Workers contends that accord-
ing to the National Coal Mine Construction Agree-
ment, hereinafter referred to as the ABC agree-
ment, between the United Mine Workers of Amer-
ica and the Association of Bituminous Coal Opera-
tors, of which the Employer is a member, the con-
struction of a coal mine is work that belongs to,
and should be performed by, the United Mine
Workers. It further maintains that industry, em-
ployer, and area practice favor awarding the dis-
puted work to employees represented by the
United Mine Workers.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the dispute pursuant to Section 10(k) of the
Act, it must be satisfied that there is reasonable
cause to believe that Section 8(b)(4)(D) has been
violated and that the parties have not agreed upon
a method for the voluntary adjustment of the dis-
pute.
The record indicates that at the end of March a
member of the International executive board of the
United Mine Workers demanded of the Charging
Party's president that the construction work in dis-
pute be assigned to employees represented by the
United Mine Workers. The demand was refused,
and on a number of days thereafter the United
Mine Workers picketed the Sylvester project car-
rying signs stating that "West Virginia Coal is
UMWA Coal" and "Think UMWA," and engaged
in other conduct such as threats and assaults, as de-
scribed above, in furtherance of its demand for the
work. Accordingly, we find that reasonable cause
exists to believe that the United Mine Workers has
engaged in conduct in violation of Section
8(b)(4)(D) of the Act.
The Steelworkers and the United Mine Workers
met twice in an attempt to settle the work dispute,
but were unable to come to any resolution thereof.
At the hearing, they stipulated that there is no es-
tablished procedure for the settlement of jurisdic-
tional disputes between the United Mine Workers
and the Steelworkers. Further, the Charging Party
does not have a contract with either Union, and
the Employer's contracts with the Steelworkers
and the United Mine Workers do not specify any
procedures for the settlement of such disputes.
Therefore, we find that there exists no agreed-upon
method for the voluntary adjustment of the dispute
within the meaning of Section 10(k) of the Act.
Based on the foregoing, we find that this dispute is
properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of the disputed work
after giving due consideration to various factors. 2
The Board has held that its determination in a ju-
risdictional dispute is an act of judgment based on
commonsense and experience reached by balancing
those factors involved in a particular case.3
The following factors are relevant in making the
determination of the dispute before us:
1. Certification by the Board and collective-
bargaining agreements
The Board on March 31, 1967, certified Interna-
tional Union District 50, United Mine Workers of
America, to which the Steelworkers involved
N.L.R.B. v. Television Broadcast Engineers Union, Local 1212, Interna-
tional Brotherhood o/' Electrical Workers. .4L-CIO [Columbia Broadcast-
ing System]. 364 U.S. 573 (1961).
3 International Association of Machinists. Lodge No. 1743, AFL-CIO (J.
A. Jones Construction Company), 135 NLRB 1402 (1962).
[UNITE'D MINE WORKERS OF AMERICA 1260
herein is a successor by merger, as the collective-
bargaining agent for the employees employed by
the Employer at its various construction projects in
West Virginia. Thereafter, the Employer has rec-
ognized it as the collective-bargaining agent for its
employees at West Virginia construction projects,
except where employees represented by United
Mine Workers are employed. The United Mine
Workers, although never certified as the repre-
sentative of the Employer's employees, has been
recognized by the Employer as the collective-bar-
gaining agent of its employees at construction pro-
jects where the owner required the work to be
done by employees represented by the United Mine
Workers, which is not the case here. Accordingly,
as the Steelworkers is a successor to a union certi-
fied by the Board and the Employer is not re-
quired, here, to employ employees represented by
the United Mine Workers, we find that the certifi-
cation favors employees represented by the Steel-
workers.
The Charging Party does not have a collective-
bargaining agreement with either the Steelworkers
or the United Mine Workers, and only the Em-
ployer has employees involved in construction
work at the Sylvester project. The Employer is
party to an agreement between the West Virginia
Contractors Bargaining Association, Inc., and the
United Steelworkers of Amercia, AFL-CIO-CLC,
covering heavy construction work, such as the ex-
cavation and disposal of earth involved herein, per-
formed within the State of West Virginia. Also, as
noted above, the Employer is a party to the ABC
agreement, which covers coal-related work that is
performed at or on coal land of coal mine opera-
tors who require such work to be performed under
the jurisdiction of the United Mine Workers. The
Employer's and area practice, as discussed below,
is to interpret the ABC agreement as to cover pro-
jects only where the operator requires the con-
struction contractor to apply the agreement. Here,
the Charging Party, who is the operator of the Syl-
vester project, did not require that the construction
work be performed by members of the United
Mine Workers, but rather requested the Employer
to bid the project using wages rates set forth in the
Steelworkers contract. Thus, it appears that the
ABC agreement is not applicable to the Sylvester
project. However, even if the ABC agreement does
apply to the said project, it does not explicitly
cover the disputed work-the excavation, grading,
and changing the contour of the earth at the mine-
site-but rather covers the work only by inference,
whereas the Steelworkers agreement specifically
covers the work in dispute. Consequently, we find
that the collective-bargaining agreements favor as-
signing the work to employees represented by the
Steelworkers.
2. The Employer's assignment, past practice,
and area practice
The Employer assigned the work in dispute to
employees represented by the Steelworkers. The
Employer's personnel manager testified that the
Employer's consistent practice has been to assign
all construction work in the State of West Virginia
to the Steelworkers, unless the coal mine owner re-
quired the work to be assigned to the United Mine
Workers-which clearly is not the case here. The
record also indicates that the area practice is to
award the work on a similar basis as the Employer
does. Accordingly, we find that both the Employ-
er's and area practice favor awarding the work to
employees represented by the Steelworkers.
3. Relative skills
The evidence shows that the construction of a
mine, in particular excavation and grading work,
does not require the exercise of any special skills
that are the province of either employees repre-
sented by the United Mine Workers or those repre-
sented by the Steelworkers. Rather it appears that
employees represented by both Unions are suffi-
ciently skilled to perform satisfactorily the work in
dispute. Therefore, this factor does not favor the
assignment of the work to employees represented
either by the Steelworkers or the United Mine
Workers.
4. Economy and efficiency of operation
It appears from the record that employment of
Steelworkers or United Mine Workers would result
in essentially equal efficiency and economy in the
performance of the disputed work. Accordingly,
we find that this factor does not favor the assign-
ment of the work to employees represented either
by United Mine Workers or by the Steelworkers.
Conclusion
Upon the record as a whole, and after full con-
sideration of all relevant factors involved, we con-
clude that the Employer's employees who are rep-
resented by the Steelworkers are entitled to per-
form the work in dispute. We reach this conclusion
relying on the Board's certification, the Employer's
collective-bargaining agreements, the Employer's
assignment and past practice, and area practice. In
making this determination, we are awarding the
work in question to employees who are represented
by the Steelworkers, but not to that Union or its
members. The present determination is limited to
1270 DECISIONS OF NA IONAL LABOR RELATIONS BOARD
the particular controversy which gave rise to this
proceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of
the foregoing findings and the entire record in this
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
1. Employees of Vecellio and Grogan, Inc., who
are represented by the United Steelworkers of
America, AFL-CIO-CLC, and United Steelwork-
ers of America, AFL-CIO-CLC, Local Union
14614, are entitled to perform the construction
work at the Sylvester project.
2. United Mine Workers of America, Local
Union No. 1582, United Mine Workers of America,
and District No. 17, United Mine Workers of
America, are not entitled by means proscribed by
Section 8(b)(4)(D) of the Act to force or require
Elk Run Company, Inc., and Vecellio and Grogan,
Inc., to assign the disputed work to employees rep-
resented by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, United Mine Work-
ers of America, District No. 17, United Mine
Workers of America, and Local Union No. 1582,
United Mine Workers of America, shall notify the
Regional Director for Region 9, in writing, wheth-
er or not it will refrain from forcing or requiring
Elk Run Company, Inc., and Vecellio and Grogan,
Inc., by means proscribed by Section 8(b)(4)(D) of
the Act to assign the work in dispute to employees
represented by the United Steelworkers of Amer-
ica, AFL-CIO-CLC, and United Steelworkers of
America, AFL-CIO-CLC, Local Union 14614.