United Mine Workers of America, Etc.

National Labor Relations Board - Board Decisions

Mar 1, 1965

151 N.L.R.B. 358 (N.L.R.B. 1965)

358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foreman because of the lack of adequate electrical skills by the
machinists. We therefore find that the factor of efficiency does
not favor the ITU.
E. Conclusions as to the merits of the dispute
On the basis of the record as a whole, and on appraisal of all
the relevant considerations, we conclude that the maintenance
electricians are entitled to the work in dispute. Such factors as
the Employer's past practice, the Board's certification, the collective-
bargaining agreements, and the unquestioned superior skills and
experience of the electricians demonstrate the superior claim of the
IBEW. Accordingly, we shall determine the jurisdictional dispute
by awarding the disputed work to the Employer's maintenance
electricians who are represented by the IBEW, but not to that Union
or its members. Our present determination is limited to the partic-
ular controversy which gave rise to this proceeding.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings of fact, and upon the
entire record in this case, the Board makes the following determina-
tion of dispute pursuant to Section 10(k) of the National Labor
Relations Act :
Maintenance electricians represented by Local Union 124 of
the International Brotherhood of Electrical Workers, AFL-CIO,
are entitled to perform the work of electrical maintenance and
repair on the Autosetter and Linofilm equipment as well as all
other electrical and electronic equipment at present in the composing
room of The Kansas City Star Company, Kansas City, Missouri.
United Mine Workers of America ; District 12, United Mine Work-
ers of America ; and Local 1148 , United Mine Workers of
America , and Peabody Coal Company, and District 1, Progres-
sive Mine Workers of America , and Armin D. Reinhardt, and
Local 520, International Union of Operating Engineering, AFL-
CIO, and Local 50, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America. Case
No. 14-CD-184. March 1, 1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10 (k) of the National
Labor Relations Act, as amended, following a charge filed on
October 12, 1964, by District 1, Progressive Mine Workers of
151 NLRB No. 47.
UNITED MINE 'WORKERS OF AMERICA, ETC. 359
America, herein called Progressive, alleging that the United Mine
Workers of America, its District 12, and its Local 1148, herein
called UMW or Respondent, had violated Section 8 (b) (4) (D) of
the Act. A duly scheduled hearing was held before Hearing
Officer Robert H. Kubie on December 1, 2, and 3, 1964. All parties,
except Local 50, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, appeared and were
afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to adduce evidence bearing on the issues. The rulings
of Hearing Officer Kubie made at the hearing are free from prej-
udicial error and are hereby affirmed. Briefs were filed by the UDIW
and by Progressive.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Brown and Jenkins].
Upon the entire record in this case, the Board makes the follow-
ing findings :
1. The business of the Employer
Peabody Coal Company is an Illinois corporation having a main
office in St. Louis, Missouri, and is engaged, in the State of Illinois,
in the mining, processing, and sale of coal. Peabody annually
sells, directly from Illinois to purchasers located outside the State,
coal valued in excess of $50,000. We find that Peabody is engaged
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.
2. The labor organization involved
The UMW, Progressive, and Local 520 of the Operating Engineers
are labor organizations within the meaning of Section 2(5) of the
Act.
3. The Dispute
A. Background facts
The dispute concerns jurisdiction over the coal mining and proc-
essing work in an area of coal land, herein referred to as the
"Freeburg area," which is located between two Peabody mines
in southern Illinois. The River King Mine lies to the east of
the Freeburg area, and is operated by Peabody under a contract
with UMW. To the west of River King, and between it and the
Freeburg area, lie Illinois Highway 13 and the main tracks of
the Illinois Central Railroad. The highway and the railroad
tracks lie close together and run in a north-south direction.
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Several miles further west lies Illinois Highway 159 which runs
north and south. To the west of Illinois 159 is located the Mid-
west Mine, operated by Peabody under a contract with Progressive.
The Freeburg area lies between Illinois 159 and the line demarcated
by Illinois 13 and the Illinois Central tracks.
The River King Mine consists of a group of strip mines and a
modern tipple or processing plant, which has approximately 190
employees. The mine produces chiefly crushed "industrial" or
"utility" coal, which it sells, in one undifferentiated mass, largely
to industrial consumers located throughout a several-State area.
Coal is received at the River King tipple solely by rail, and is
shipped from River King chiefly by rail and barge, and, to a
very limited extent, by truck.
The River King tipple is rated to produce about 900 tons of
coal an hour. During recent months it has been operating two
shifts a day, 6 days a week. River King's coal reserves are suf-
ficient to keep it running at that capacity for approximately 20
years.
The Midwest Mine consists of an older tipple, one strip mine,
and an underground mine (the latter's operations are not involved
in this dispute). The strip mine and the tipple which are involved
in this dispute have approximately 68 -employees. The Midwest
tipple grades coal into a variety of size classifications which are
sold primarily in the greater St. Louis area. The majority of its
customers are purchasers for domestic and residential consumption.
Coal is received at the Midwest tipple and shipped therefrom
entirely by truck.
The production capacity of the Midwest tipple is rated about
450 tons per hour. During recent months it has been working
one shift a day for a 5-day week. The strip mine will be entirely
depleted by the end of February or the beginning of March 1965.
Sentry Corporation, a wholly owned subsidiary of Peabody,
owns the coal reserves and the active pits. It leases the pits to
Peabody when Peabody decides to commence operations. The
leases designate the reserves they cover as being part of the mine
in connection with which they will operate. On January 1, 1957,
the Freeburg area was included in a lease from Sentry to Peabody
covering the River King Mine. On January 1, 1963, this lease
was modified to exclude the Freeburg area; thereafter the area was
included in a lease from Sentry to Peabody covering the Midwest
Mine. Such switching of reserves, and the modification of the
leases to conform thereto, have occurred on other occasions and
reflect operational decisions and tax considerations.
UNITED MINE WORKERS OF AMERICA, ETC. 361
In 1962, Peabody decided to mine the coal in the Freeburg area
and process it at the Midwest tipple. This decision was based
on several factors, inter alia: it was more economical; the Midwest
tipple was better suited to produce the type of coal required by
Peabody's Greater St. Louis market area; and the coal reserves
at the Midwest mine were dwindling. This decision to mine the
Freeburg area as part of the Midwest operations resulted in the
1963 lease modifications, noted supra.
To prepare to mine the Freeburg area and process its coal
at Midwest, Peabody contracted with Armin Reinhardt, a sub-
contractor, to build a haulage road from the Midwest tipple to the
Freeburg area. Peabody also made plans to move a large piece
of mining machinery, called a 1250 dragline, from the River King
Mine, where it had been operating, to the Freeburg area.
In June 1964, Peabody executives discussed with local UMW
officials the plan to move the dragline from one of the River King
pits across Highway 13 to the Freeburg area. At that time Odle,
the president of the UMW local, advised the Company that when
the dragline crossed Highway 13, the local would claim jurisdiction
over the entire Freeburg area operation. Later that month, Pea-
body's president met with the UMW's International president,
and informed the latter of Peabody's intention to open the Free-
burg area and mine it as part of Midwest. Subsequently, various
UMW officials asserted on several occasions that if the Freeburg
area was mined, it was under UMW jurisdiction and must be mined
as part of the River King Mine.
Construction of the haulage road from the Midwest tipple to
the Freeburg area commenced in the spring of 1964. Between
the tipple and Highway 159, Peabody employees from Midwest
worked with the employees of Reinhardt.' In early October 1964,
the construction had reached Highway 159. Thereafter, no Mid-
west employees worked on the project.
On October 8, 1964, Odle requested a meeting for the following
morning with the superintendent of the River King Mine. Early
on October 9, Peabody executives met at the River King tipple
with Odle and the River King pit committee. At the meeting
Odle stated that Peabody had a contractor (Reinhardt) building
a road on property over which UMW had jurisdiction. He further
stated that he wanted an agreement with Peabody, similar to
other agreements Peabody had entered into on such occasions, to
the effect that UMW was permitting the work to go forward but was
1 Reinhardt's employees were represented by the Operating Engineers and the Team-
sters, named as parties in interest to this dispute.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not thereby waiving jurisdiction of the work or the area 2 Peabody
officials refused to meet Odle's demand , stating that the land
belonged to Peabody and the Company would do what it wanted
to with it . When the Company refused to discuss the matter
further , Odle and the committee members left the meeting.
Odle then went to the washhouse and informed the River King
employees , who were about to start the day shift , that Peabody
would not discuss the matter of the contractor doing the road-
work. Thereupon the employees left without going to work. By
the end of the second shift the River King Mine was completely
shut down . Approximately 165 employees were involved in this
strike.
Odle wrote a letter to Peabody on October 6, 1964, in which he
confirmed prior oral statements that UMW claimed jurisdiction of
the Freeburg area. This letter was typed and mailed on October 9.
On October 15, a number of Peabody employees, represented by a
UMW local other than the party to this dispute , who work at
the Company 's Mississippi River coal dock, went on strike. On
October 16, about 850 UMW employees , represented by yet another
UMW local , who work at another Peabody mine about 90 miles
to the north , went on strike . Their representatives stated that the
employees would return to work when the "mines in the south"
went back . On October 15, the superintendent of still another
Peabody mine was threatened with strike action by UMW employees
represented by another local.
On October 14, UMW and Peabody officials met and discussed
the problem . The UMW again asserted their right to jurisdiction
over the Freeburg area, and the Company again claimed the
right to decide by whom the coal was to be mined and where it
was to be processed . A proposal by UMW that the Company
suspend the roadbuilding pending a "settlement of the dispute"
was rejected by Peabody.
On October 16 the Company notified UMW that it would sus-
pend the building of the road until the matter was settled by
this Board. By the end of that day, all strikers at the various
Peabody facilities had returned to work.
About 2 weeks after the strikers returned to work, the Company
and UMW met again. UMW offered to mine and haul the coal
to the Midwest tipple and permit it to be processed by employees
represented by Progressive. Peabody rejected the offer as imprac-
2 The UMW contract includes jurisdiction over construction work. Evidence was in-
troduced tending to show that on prior occasions construction around the mines covered
by UMW contract had been accomplished by the use of outside contractors only with
the written or oral agreement of UMW.
UNITED MINE WORKERS OF AMERICA, ETC. 363
tical because of the possibility of double royalty payments 3 and
jurisdictional friction between the two unions.
B. Contentions of the parties
The UMW contends that the sole cause of the strike was the
failure and refusal of Peabody to discuss with UMW a legitimate
question of bargaining; namely, UMW's right to the construction
work which was the subject of the Peabody subcontract to Rein-
hardt. UMW contends that there is no dispute between the
Operating Engineers (representing Reinhardt's employees) and
UMW, nor is there a charge relating to the work in question, and
that the Board, therefore, has no jurisdiction. UMW contends
in the alternative that if the Board finds that it does have jurisdic-
tion over any dispute over the construction of the haulage road,
the Board should award this work to the employees represented by
UMW. UMW further contends that if the Board concludes that
it has jurisdictional award under Section 10(k) with respect to
the mining of coal in the Freeburg area, it should award that
work to the UMW on the basis of Peabody's contract with UMW.
Progressive contends that the real issue involved is who is to
mine the coal in the Freeburg area. It argues that in claiming
jurisdiction over the construction of the road, UMW is claiming
jurisdiction over the Freeburg area which carries with it the
inherent right to mine the coal thereon. Progressive further
contends that the work in the Freeburg area should be awarded
to the employees whom it represents because the Company assigned
the work to the Midwest Mine for legitimate business reasons;
namely, efficiency of operations. Progressive also maintains that
the UM1?T contract does not cover the land in question, and is
therefore not determinative.
Although the Company filed no brief, its position was made clear
at the hearing. Peabody contends that it made a business decision
to mine the coal as part of the Midwest Mine, and the record
contains ample evidence of the economic basis for this decision.
It further stated that if it could not mine the Freeburg area as
part of the Midwest operations, it would not mine the area at all.
Peabody further claims that the solution proposed by UMW, that
of allowing UMW employees to mine the coal and deliver it to
Progressive employees at the Midwest tipple, would create insur-
mountable problems.
8 The UMW-Peabody contract requires Peabody to pay a royalty of 40 cents per ton
on every ton produced by the company. The Progressive-Peabody contract requires
Peabody to pay a contribution to the Progressive welfare fund of 40 cents per ton of coal
mined by the Company, with provision for a waiver of 50 percent of such contribution.
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Neither Reinhardt nor the Operating Engineers filed briefs, and
neither party stated its position on the issues in this matter.
4. Applicability of the statute
Section 10(k) of the Act empowers the Board to hear and
determine a dispute out of which a Section 8(b) (4) (D ) charge
has arisen , unless the parties to such a dispute submit to the
Board satisfactory evidence that they have adjusted , or agreed
upon methods for the voluntary adjustment of the dispute . Before
the Board proceeds with a determination of dispute , however, it
is required to find that there is reasonable cause to believe that
Section 8 ( b) (4) (D) has been violated.
The record shows that the Company made and announced plans
that the coal in the Freeburg area was to be mined as part of
the Midwest Mine. Although UM1V contends that the only work
in dispute is that of constructing the haulage road, the record
makes it abundantly clear that UMW, by asserting its right to
construct the road, was principally asserting jurisdiction over the
mining of coal in the area . Therefore , the claim to the construction
work is in reality a claim to perform the coal mining operation.
It is clear , and we find , that no object of the strikes of various
UMW locals from October 9 through 16 , 1964, was for the purpose
of forcing Peabody to award jurisdiction over the Freeberg area
to employees represented by the UMW . On the basis of the
entire record before us, we find that there is reasonable cause
to believe that a violation of Section 8(b) (4) (D ) of the Act has
occurred , and that the dispute is properly before the Board for
determination under Section 10 ( k) of the Act.
5. Merits of the dispute
A. The collective - bargaining agreement
The UMW relies upon its collective -bargaining agreement known
as the National Bituminous Coal Wage Agreement of 1950, and
specifically the "Application of Agreement to Coal Lands" provision
contained therein, in its claim of jurisdiction over the Freeburg
area. The provision states:
As a part of the consideration for this Agreement , the Operators
signatory hereto agree that this Agreement covers the operation
of all the coal lands owned or held under lease by them, or any
of them, or by any subsidiary or affiliate at the date of this
Agreement or acquired during its term which may hereafter
( during the term of this Agreement ) be put into production.
UNITED MINE WORKERS OF AMERICA, ETC. 365
The said Operators agree that they will not lease out any
coal lands as a subterfuge for the purpose of avoiding the
application of this Agreement 4
We do not consider that this agreement is dispositive of the
dispute here. While the literal terms of the agreement might
perhaps be read to require Peabody to operate all its properties,
including the Midwest Mine, under the UMW contract, such an
interpretation is questionable in circumstances where, as here, the
Midwest operation is covered by a Board certification running to
Progressive. A further indication that the UMW contract does
not govern the present situation is that a major and perhaps
inseparable provision of that contract-the prohibition against
leasing out coal lands to avoid the UMW agreement-is clearly
inapplicable here. In the past, Peabody has transferred lands
which were part of the Midwest Mine reserves to River King for
the actual mining operations. Thus, for economic reasons, Peabody
has made assignments of coal reserves without regard to what
mine employees will engage in the actual mining. Against such
a background, it seems clear, as Peabody asserts, that the planned
use of the Midwest Mine facilities in the instant case was not "for
the purpose of avoiding this UMW agreement." In all the fore-
going circumstances, the contract asserted by UMW is not of
controlling significance.
B. Efficiency of operations
Peabody officials testified that if it were required to process
Freeburg area coal through the River King tipple, it would not
mine the coal at all, as its mining would be uneconomical through
River King.5
4 This provision was modified by the 1964 amendment to the Agreement to provide as
follows:
Application of Contract to Coal Lands
As part of the consideration for this agreement , the Operators signatory hereto
agree that this Agreement covers the operation of all coal lands, coal producing
and coal preparation facilities owned or held under lease by them, or any of them,
or by any subsidiary or affiliate at the date of this Agreement , or acquired during
its term which may be hereafter ( during the term of this Agreement ) be put into
production or use The Operators agree that they will not lease, license or con-
tract out any coal lands , coal producing or coal preparation facilities for the
purpose of avoiding the application of this Agreement or any section, paragraph
or clause thereof.
5 UMM W offered a possible solution to the dispute in suggesting that UMW employees
mine the coal and haul it to the Midwest tipple At that point it would be turned over
to Progressive employees who would process the coal The Company and Progressive
contend that this method would be impracticable . We think it would not be in the
interests of industrial peace and stability because of the likelihood of jurisdictional dif-
ficulties arising from the normal interchange of tipple and pit workmen , and the history
of difficulties between the two unions . See Perry Coal Company, Midwest-Radiant Cor-
poration, and Peabody Coal Company , 125 NLRB 1256 , enfd. as modified 284 F. 2d 910
(C A. 7), rehearing denied 291 F 2d 126 ( C A. 7), cert denied 366 U S 949. A
further consideration militating against this solution is the possibility of subjecting the
Company to double royalties.
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Midwest and River King tipples produce different types
of coal for different markets. The Company's assignment of the
Freeburg area to the Midwest Mine reflects its desire to fulfill
existing demand for the type of coal presently produced at the
Midwest tipple. To process this coal at the River King tipple
would require the building of a new washer and additional equip-
ment, which the Company contends would not be warranted
because of the small amount of acreage involved since Midwest
is presently producing the type of coal desired.
Further economic considerations are indicated in the record.
It was testified that trucking coal from the River King tipple
to the St. Louis market would cost an additional 15 to 25 cents
per ton because of the greater distance to be covered. It was also
shown that to move the coal from the mine to the River King
tipple would require the construction of an overpass over the
Illinois Central Railroad tracks and Illinois Highway 13. An
overpass is apparently necessary, as a grade crossing is impractical
due to strings of railroad cars parked on the Illinois Central
storage track which runs next to the main line track.
C. Job loss
In addition to the economic factors previously noted, the record
clearly indicates that the River King Mine is currently operating
at full capacity and has sufficient reserves to continue to do so
for approximately 20 years. On the other hand, the Midwest Mine
will be completely mined out at the end of February 1965, and the
mine will be closed down at that time requiring the layoff of
approximately 68 employees.
CONCLUSION
Upon consideration of all pertinent factors appearing in the
record, ', we shall assign the disputed work to the employees at
the Midwest Mine represented by Progressive . In making the
determination , we rely on the Employer 's assignment and the
economic considerations involved, including, inter alia , the business
factors upon which the Company based its decision to assign the
area to the Midwest Mine, and the potential loss of jobs if UAIIV
O The Board will consider all relevant factors in making a determination under Sec-
tion 10(k) of the Act. N.L R.B v. Radio & Television Broadcast Enginee,s Union,
Local 1212, IBEW AFL-CIO (Columbia Broadcasting System ), 364 US 573 , Interna-
tional Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construction
Co ), 135 NLRB 1402. In the instant case there is no difference in the skills or wort:
involved, and no evidence of area or industry practice.
UNITED MINE WORKERS OF AMERICA, ETC. 367
gained jurisdiction over the area. For the reasons previously stated,
we do not give controlling significance to the UMW-Peabody
contract.
We shall, accordingly, determine the jurisdictional dispute by
deciding that employees represented by Progressive, and not those
represented by UMW, are entitled to the work in dispute. In
making this determination, we are assigning the work to the
present employees of the Midwest Mine who are represented by
Progressive, but not to that Union or its members.
In view of the above, we find that the Respondent Union is
not entitled by means proscribed by Section 8(b) (4) (D) of the
Act to force or require the Employer to assign the disputed work
to its members rather than to employees of the Midwest Mine
represented by Progressive.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the Act, and upon the basis of
the foregoing findings, the Board makes the following determination
of dispute :
1. Employees of the Midwest Mine, currently represented by
District 1, Progressive Mine Workers of America, are entitled to
mine and process the coal located in the coalfield known as the
Freeburg area which is currently leased to the Peabody Coal
Company.
2. United Mine Workers of America, District 12, United Mine
Workers of America, and Local 1148, United Mine Workers of
America, are not entitled by means proscribed by Section 8(b) (4)
(D) of the Act, to force or require the Employer to assign the
above work to employees of the River King Mine represented by
it.7
3. Within 10 days from the date of this Decision and Determina-
tion of Dispute, United Mine Workers of America (International) ;
District 12, United Mine Workers of America ; and Local 1148,
United Mine Workers of America, shall notify the Regional Director
for Region 14, in writing, whether they will refrain from requir-
ing Peabody Coal Company, by means proscribed by Section
8(b) (4) (D), to assign the work in dispute to the employees of
the River King Mine rather than to the employees of the Midwest
Mine.
7 The award of work does not specifically include the road construction work, but
inasmuch as we have found that UMW's claim to the construction work is in reality a
claim to perform the coal mining operation , a further demand by the UMW for the road
construction work would violate this Determination.