Beckley Belt Services & Roofing Co., Inc.

National Labor Relations Board - Board Decisions

Apr 28, 1980

279 N.L.R.B. 512 (N.L.R.B. 1980)

512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Beckley Belt Service , Inc., d/b/a Beckley Belt Serv-
ices & Roofing Co., Inc. and United Mine
Workers of America, District 29. Case 9-CA-
20653
28 April 1980
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND STEPHENS
On 28 August 1984 Administrative Law Judge
Elbert D. Gadsden issued the attached decision.
The Respondent filed exceptions but no supporting
brief. The General Counsel filed limited exceptions
and a supporting brief.
The National Labor Relations Board has delegat-
ed 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 brief and has
decided to affirm the judge's rulings,' findings, 2
and conclusions3 to the extent consistent herewith
and to adopt the recommended Order, as modified.
THE REMEDY
The General Counsel contends that to fully
remedy the Respondent's violations of Section
i We note the following errors made by the judge, which when ana-
lyzed in light of the balance of his discussion, are clearly inadvertent
The section entitled "Other Provisions of the Collective-Bargaining
Agreement Repudiated by the Respondent," first paragraph, third sen-
tence states that the Respondent's failure to honor the contract provision
"is not barred by the Act," rather than "is barred by the Act", and the
section entitled "IV The Remedy," second paragraph , first sentence
states that the Respondent refused to comply with the contractual "life
insurance" provision , rather than "health insurance" provision
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect 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 The judge found, and we agree for the reasons stated by him, that
unit members Neal Parrish, Wallace Coy, and William Crawford were
discrimmatorily laid off in violation of Sec 8(a)(3) and (1) for complain-
ing to management about the Respondent's use of nonunion labor to per-
form unit work while unit members were not working, and following up
their complaint with a formal grievance While at points in his decision
the judge erroneously attributed the grievance to only Parrish and Coy,
and not Crawford, it is clear from that record that Crawford also partici-
pated in filing the formal grievance
The judge, in the sections of his decision entitled "The Remedy,"
"Conclusions of Law," "Order," and "Notice to Employees" found and
remedied an 8(a)(3) violation based on the Respondent 's recalling of "a
laid off employee who did not participate in filing the grievance, and
paying him a wage rate higher than that provided in the contract with no
fringe benefits " However, there is no evidence that any unit employee
who did not participate in filing the grievance was laid off by the Re-
spondent Further, while Crawford was at some point recalled at a
higher than contract rate, with no fringe benefits, the Respondent's viola-
tion in this regard rests with its failure to apply the contract to unit em-
ployees, an 8(a)(5) and (1) violation, found and remedied by the judge
Accordingly, we do not adopt the relevant portions of the judge's deci-
sion based on the above-quoted language, which we disavow
8(a)(5), (3), and (1) of the Act, the Board, in addi-
tion to adopting the judge's recommended Order
directing the Respondent to reinstate the discrimin-
atees with full backpay4 and to bargain, on request,
with the Union, should affirmatively direct the Re-
spondent to cooperate in the processing of the
grievance filed by Parrish, Coy, and Crawford, and
to take the following action retroactive to the com-
mencement of the 10(b) period; honor and give
effect to the terms of the collective-bargaining
agreement; make unit employees whole for any
losses they may have sustained by reason of its fail-
ure to honor and apply the terms of the contract;
and make the contractually required contributions
on behalf of unit employees to the health and bene-
fit plan and the pension fund.
We agree with the General Counsel that an
order requiring the Respondent to cooperate in the
processing of the subject grievance, proceeding to
speedy arbitration if necessary, and waiving any
and all objections it might have based on time limi-
tations is necessary and appropriate given the Re-
spondent's unlawful refusal to process the griev-
ance in derogation of the collective-bargaining
agreement .5 We also agree with the General Coun-
sel's claim that the Respondent should be required
to make restitution for its abrogation of the collec-
tive-bargaining agreement.6 Consistent with the
complaint, as amended at the hearing, and with
specific evidence on the record regarding com-
mencement of the Respondent's failure to abide by
the contract terms, we shall order the Respondent
to honor and give effect to the contract retroactive
to 4 January 1984 and to make unit employees
whole for any losses they may have suffered as a
4 The period for computing backpay shall commence on 9 January
1984, the date that Parrish , Coy, and Crawford were unlawfully laid off
Interest thereon shall be computed in the manner prescribed in F W
Woolworth Co, 90 NLRB 289 (1950), and Florida Steel Corp, 231 NLRB
651 (1977)
5 US Utilities Corp, 254 NLRB 480, 488 (1981)
6 With regard to the Respondent's 10(b) defense, we find it unneces-
sary to rely on the judge's characterization of the failures to abide by the
contractual wage and benefit requirements as a "continuous" violation It
appears that all of the unlawful conduct alleged in the complaint and
found by the judge occurred within the 6-month statutory limitations
period of Sec 10(b) of the Act In noting this , however, we do not sug-
gest that the occurrence of breaches of periodic contractual obligations
prior to the 10(b) period would necessarily bar the finding of an 8(a)(5)
violation for related acts within the 10(b) period See Farmingdale Iron
Works, 249 NLRB 98, 99 (1980), enfd without opinion mem 661 F 2d
910 (2d Cir 1981) (failures to make periodic payments deemed "separate
and distinct" violation , and those within the 10(b) period may be reme-
died) Accord US Utilities Corp, 254 NLRB 480, 486 and fn 13 (1981)
See also Alcan Forwarding Co, 235 NLRB 994, 998-999 (1978), enfd sub
nom NLRB v Douglas Lantz, 607 F 2d 290, 300 (9th Cir 1979) (10(b)
period does not begin running as to total bargaining obligation repudi-
ation claim until union has clear and unequivocal notice of the repudi-
ation), Farmingdale Iron Works, supra, 249 NLRB at 98-99 (same)
Chairman Dotson finds it unnecessary to pass on the rule of Farming-
dale Iron Works, since all of the Respondent's statutory violations oc-
curred within the 6-month limitations period of Sec 10(b) of the Act
279 NLRB No. 66
BECKLEY BELT SERVICES CO
result of the Respondent's breach from that date
forward, with interest; with respect to wages, we
shall order the Respondent to make unit employees
whole for its failure, commencing 17 December
1983, to pay contract wage rates, with interest;
with respect to health and benefit plan contribu-
tions, we shall order the Respondent to make con-
tributions to the plan commencing 1 October 1983,
the date the Respondent admitted stopping benefit
payments; and with respect to pension fund contri-
butions, we shall order the Respondent to make all
contributions to the fund from December 1983, the
date the Respondent admits last contributing to the
fund.? Finally, we find the extensive and egregious
nature of the Respondent's unfair labor practices
warrants the issuance of a broad cease-and-desist
order under the standards of Hickmott Foods, 242
NLRB 1357 (1979), and we have modified the
judge's recommended Order and notice according-
ly.
ORDER
The National Labor Relations Board orders that
the Respondent, Beckley Belt Service, Inc., d/b/a
Beckley Belt Services & Roofing Co., Inc., Mt.
Hope, West Virginia, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to honor, abide by, and
apply the collective-bargaining agreement in effect
between the Respondent and United Mine Workers
of America, District 29, the Union herein.
(b) Restraining, coercing, and discriminatorily
laying off employees Neal Parrish, Wallace Coy,
and William Crawford, or any other employees,
because they complain or file a grievance pursuant
to the collective-bargaining agreement with the
Union.
(c) In any other manner interfering with, re-
straining , or coercing employees in the exercise of
rights guaranteed them in Section 7 of the Act.
7 Interest on moneys due as a result of contract breach, other than ben-
efit fund contributions , shall be computed in accord with Ogle Protection
Service, 183 NLRB 682 (1970), and Florida Steel Corp , supra However,
since the provisions of employee benefit fund agreements are variable and
complex , the Board does not provide at the adjudicatory stage of pro-
ceeding for the addition of interest at a fixed -rate on unlawfully withheld
fund payments We leave to the compliance stage the question of wheth-
er the Respondent must pay any additional amounts into the benefit funds
in order to satisfy our "make-whole" remedy These additional amounts
may be determined , depending on the circumstances of each case , by ref-
erence to provisions in the documents governing the funds at issue and,
where there are no governing provisions , to evidence of any loss directly
attributable to the unlawful withholding action , which might include the
loss of return on investment of the portion of funds withheld , additional
administrative costs , etc , but not collateral losses Fitzpatrick Electric, 242
NLRB 739 (1979), Merryweather Optical Co, 240 NLRB 1213, 1216 fn 7
(1979)
513
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the
Act.
(a) Offer immediate and full reinstatement to
Neal Parrish, Wallace Coy, and William Crawford
to their former positions or, if such positions no
longer exist, to substantially equivalent positions
without prejudice to their seniority or other rights
previously enjoyed, and make them whole for any
loss of pay suffered by reason of their unlawful
layoff.
(b) Remove from the Respondent's files any ref-
erence to the unlawful layoff of employees Neal
Parrish, Wallace Coy, and William Crawford and
notify them in writing that this has been done and
that the layoffs will not be used against them in
any way.
(c) On request, bargain collectively with the
Union as the exclusive collective-bargaining repre-
sentative of the employees in the following appro-
priate unit with respect to rates of pay, wages,
hours of employment, or other terms and condi-
tions of employment:
All employees who perform Coal Mine Con-
struction work at a project site, including
warehousemen at the jobsite, but excluding su-
pervisors, foremen, assistant foremen, office
clerks, guards, engineering and technical
forces and timekeepers.
(d) Honor and give effect to the collective-bar-
gaining agreement between the Respondent and the
Union and make the employees in the above-de-
scribed bargaining unit whole for any losses they
may have suffered as a result of the Respondent's
failure to honor, abide by, and apply to unit em-
ployees the terms of the collective-bargaining
agreement, including the wage rate, health and
benefit plan, pension fund, and grievance arbitra-
tion procedure, in the manner set forth in the
remedy section herein.
(e) On request, cooperate with the Union in ac-
cordance with the provisions set forth in the
remedy section herein in submitting the issues in
the grievance filed by Neal Parrish, Wallace Coy,
and William Crawford on 9 January 1984 to arbi-
tration in accordance with the grievance procedure
in the collective-bargaining agreement between the
Respondent and the Union, and speedily arbitrate
such grievance issues that are not settled with the
Union, waiving all objections based on time limita-
tions or the passage of time, and comply with the
results of the arbitration award.
(f) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this rec-
ommended Order.
(g) Post at Respondent's office and place of busi-
ness at Mount Hope, West Virginia, and at all
places where notices to employees are customarily
posted, the attached notice marked, "Appendix."8
Copies of the notice, on forms provided by the Re-
gional Director for Region 9, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places, including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
insure that the notices are not altered, defaced, or
covered by any other material.
(h) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
a 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 Nation-
al 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 "
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 ordered us to post and abide by this notice.
WE WILL NOT fail and refuse to honor, abide by,
and apply the collective-bargaining agreement in
effect between us and the United Mine Workers of
America, District 29.
WE WILL NOT restrain , coerce, or discriminatori-
ly lay off employees Neal Parrish, Wallace Coy,
and William Crawford, or any other employees,
because they complain and file a grievance pursu-
ant to the collective-bargaining agreement with the
Union.
WE WILL NOT in any other manner interfere
with, restrain , or coerce employees in the excercise
of the rights guaranteed them by Section 7 of the
Act.
WE WILL offer Neal Parrish, Wallace Coy, and
William Crawford immediate and full reinstatement
to their former jobs or, if those jobs no longer
exist , to substantially equivalent positions, without
prejudice to their seniority or other rights or privi-
leges previously enjoyed, and make them whole for
any loss of earnings and other benefits suffered as a
result of their unlawful layoff, with interest.
WE WILL remove from our files any reference to
the unlawful layoffs of Neal Parrish, Wallace Coy,
and William Crawford, and notify them in writing
that this has been done and that the layoffs will not
be used against them in any way.
WE WILL, on request, bargain collectively with
the Union as the exclusive collective-bargaining
representative of the employees in the following
appropriate unit with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment:
All employees who perform Coal Mine Con-
struction work at a project site, including
warehousemen at the jobsite, but excluding su-
pervisors, foremen, assistant foremen, office
clerks, guards, engineering and technical
forces and timekeepers.
WE WILL honor and give effect to the collective-
bargaining agreement between us and the Union
and make the employees in the above-described
bargaining unit whole for any losses they may have
suffered as a result of our failure to honor, abide
by, and apply to unit employees the terms of the
agreement, including the wage rate, health and
benefit plan, pension fund, and grievance and arbi-
tration procedure.
WE WILL, on request, cooperate with the Union
in submitting to arbitration the grievance of Neal
Parrish, Wallace Coy, and William Crawford about
the failure of the Company to honor and comply
with the collective-bargaining agreement between
the Company and the Union, and we will comply
with the arbitration award.
BECKLEY BELT SERVICE, INC., D/B/A
BECKLEY BELT SERVICES & ROOFING
Co., INC.
Deborah Grayson, Esq., for the General Counsel.
Floyd R. Holroyd, Esq. (Holroyd & Hamick), of Charles-
ton, West Virginia, for the Respondent.
Charles F. Donnelly, Esq., of Beckley, West Virginia, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge. A
charge and an amended charge of unfair labor practices
were filed on February 17, 1984, and March 26, 1984, re-
spectively, by United Mine Workers of America, District
29 (the Union) against Beckley Belt Service, Inc., d/b/a
Beckley Belt Services & Roofing Co., Inc. (Respondent).
On behalf of the General Counsel, the Regional Director
BECKLEY BELT SERVICES CO.
for Region 9 issued a complaint against Respondent on
April 2, 1984, alleging in substance that Respondent has
failed and refused to pay wage rates as set forth in the
collective-bargaining agreement between the parties; that
Respondent has failed and refused to abide by and
comply with the grievance arbitration provision of the
collective-bargaining agreement between the parties; and
in response to employees filing a grievance about Re-
spondent's failure to comply with the collective-bargain-
ing agreement , Respondent discriminated against the em-
ployees by laying them off for filing a grievance; and
Respondent's failure to process the grievance, all in vio-
lation of Section 8(a)(1) and (3) of the Act.
On April 10, 1984, Respondent filed an answer deny-
ing that it has committed any unfair labor practices as set
forth in the amended complaint.
The hearing in the above matter was held before me in
Beckley, West Virginia, on May 22, 1984. Briefs have
been received from the General Counsel and counsel for
Respondent, respectively, which have been carefully
considered.
On the entire record in this case and from my observa-
tions of the witnesses, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent, a West Virginia corporation, has at all
times maintained an office and place of business in
Mount Hope, West Virginia, where it has been engaged
in construction and repair of mining equipment.
During the course of its business operations during the
calender year ending December 31, 1983, Respondent
performed services valued in excess of $50,000 in States
other than the State of West Virginia.
The complaint alleges, the answer admits , and I find
that Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that United Mine Workers of America, District 29 is, and
has been at all times material herein, a labor organization
within the meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
Respondent, a West Virginia corporation , is engaged
in the repair of conveyor belts utilized in coal mines lo-
cated in the States of West Virginia, Tennessee, Ken-
tucky, and Virginia. Gary Stegel and Roger Allen pur-
chased the Respondent in 1976. Subsequently, Stegel
purchased the entire business and is currently president
and sole owner of Respondent. Prior to 1976, however,
Respondent, since 1970, has been a member of the Asso-
ciation of Bituminous Contractors, a multiemployer bar-
gaining association (ABC).
United Mines Workers of America, District 29 has
been a party to consecutive collective-bargaining agree-
ments with the ABC since 1970, and Stegel maintained
membership in ABC after he purchased the business in
515
1976. Essentially, he continued to apply the terms of the
agreement to the employees in mine construction, until
the occurrence of the events leading up to the current
dispute.
At all times material herein, Gary W. Stegel has occu-
pied the position of president of Respondent, and is now,
and has been all times material, a supervisor of Respond-
ent within the meaning of Section 2(11) of the Act, and
an agent of the Respondent within the meaning of Sec-
tion 2(13) of the Act.
The parties stipulated that the following employees of
Respondent constitute a unit appropriate for purposes of
collective bargaining within the meaning of Section 9(b)
of the Act:
All employees who perform Coal Mine Construc-
tion work at a project site, including warehousemen
at the jobsite, but excluding supervisors, foremen,
assistant foremen, office clerks, guards, engineering
and technical forces and timekeepers.
The most recent collective-bargaining agreement be-
tween the ABC and United Mine Workers of America,
District 29 is effective by its terms for the period June
25, 1981, to September 30, 1984.1
B. Labor-Management Relations Between Respondent
and its Employees Prior to January 9, 1984
The uncontroverted evidence of record established
that prior to Gary Stegel's purchase of Respondent in
1976, employees in Respondent's employ as belt workers
were as follows: Neal Parrish, employed by Respondent
from June 1972 to January 9, 1984, Wallace E. Coy, em-
ployed by Respondent from 1975 until January 9, 1984,
and William F. Crawford, employed from 1970 to 1978,
when he sustained injury as a result of an accident.
Crawford returned to work in April 1981 and remained
employed until January 9, 1984. After Gary Stegel pur-
chased Respondent in 1976, he hired James Lane in 1978.
Stegel, president of Respondent, and Anita Durham,
secretary, are in Respondent's office at Mount Hope.
Since Stegel purchased the business in January 1976, Re-
spondent continued to engage in the repair and construc-
tion of conveyor belts. However, in 1978, Respondent
commenced repairing roofs of commercial buildings and
residential homes as a sideline to supplement the belt
business . As a result of this additional work activity, Re-
spondent sometimes invoiced as Beckley Belt Service &
Roofing Company. The roofing work involved rolling
out asphalt sheeting and covering it with hot tar. Such
work was seasonal and required two to five additional
roofing employees. James Pritt and Nelson Foraker were
regularly employed as roofing employees. Roofing em-
ployees were not members of the appropriate unit and
Respondent did not apply the terms of the collective-bar-
gaining agreement to them. Hence, the roofing employ-
ees will also be referred to herein as nonunion employ-
ees. The evidence is clear that Stegel always applied the
collective-bargaining agreement wage rate of $13.41 to
I The facts set forth above are not disputed and are not in conflict
herein
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the belt work unit employees and not to the nonunion
roofing employees.
When Stegel (Respondent) commenced performing
roofing work in 1978, belt worker Neal Parrish undispu-
tedly testified that Stegel asked him if he wanted to do
roofing work and he replied , he would rather not, be-
cause he could make a living doing belt work. Neverthe-
less, Parrish subsequently performed roofing work on oc-
casion and roofing employees occasionally assisted belt
workers, or actually performed belt work when there
was an overload of belt work. Respondent first used
roofing workers to perform belt work when belt workers
were not working in December 1983. However, when
Parrish and other belt workers learned about roofing
workers performing belt work, they (Parrish, Wallace
Coy, and William Crawford) met with Stegel on January
6, 1984. Parrish asked Stegel why he was allowing non-
union workers (roofers) to perform belt work while the
union men were not working . Stegel said he "worked
the non-union men, pay our hospital card , let us have an
unemployment slip and make more money." When Par-
rish told Stegel employees were going to the union hall,
the latter told them to "go ahead."
Parrish , Crawford, and Coy left the meeting and went
to the union hall on January 9, where UAW Representa-
tive Donald Workman assisted them in preparing a
grievance against Respondent for permitting nonunion
workers (roofers) to perform union workers ' belt work,
although union belt workers were drawing low-earning
slips (G.C. Exh. 4). Thereafter, the employees presented
a copy of the grievance to Stegel but he refused to sign
it. Parrish then initialed a copy of the grievance and
gave it to Stegel , who in turn told his secretary to write
up four layoff slips (G.C. Exh. 5) for the union employ-
ees which Parrish , Coy, and Crawford were told to pick
up at a later time that day, and they did so. The layoff
slips (G.C. Exh. 5) indicated that the respective employ-
ees were laid off due to "the reorganization ," but I noted
that the record does not contain any evidence that a re-
organization had occurred.
Parrish, Crawford, and Coy returned to the union hall
and informed Workman that Respondent refused to sign
the grievance and laid them off. Workman immediately
contacted Stegel and requested a grievance meeting and
they agreed to meet January 27.
Workman undisputedly testified that when the parties
met on the grievance January 27, he asked Stegel if the
charges were true and Stegel said "not exactly." After
further questioning by Workman, Stegel admitted he was
using nonunion roofers to perform union belt work.
When asked did he realize that such assignments violated
the agreement, Stegel said , "[I]t probably does." Work-
man also asked Stegel was he presently working nonunion
roofers to do belt work and Stegel said , "No." Workman
then suggested that Stegel meet with the laid -off employ-
ees and resolve the problem and Stegel agreed to do so.
When the laid-off employees met with Stegel , however,
he told them they had to talk to his lawyer. After calling
Stegel four or five times without receiving a response
from him , Workman finally sent Stegel a registered letter
(G.C. Exh. 6), dated February 13, 1984, advising him
that the Union needed to get together with him to select
an arbitrator to resolve the issue . Workman further testi-
fied that the Union could not set up an arbitration with-
out the Employer 's participation and that was why he
sent the letter.
The uncontroverted record evidence further estab-
lished that on and subsequent to January 9, 1984, Re-
spondent continued to perform belt work with the use of
belt workers James Pritt and other newly hired nonunion
employees. In early March 1984 , Respondent called
former belt worker William Crawford and requested him
to return to work . Respondent explained to Crawford
that it could not pay him union wages plus union dues
and fringe benefits , such as insurance . Crawford agreed
and returned to work performing belt work for the same
customers of Respondent for $14 per hour , 31 cents an
hour above the union wage rate . Since his return to
work, Crawford has performed belt work with roofers
James Pritt, Ray Lewis, and newly hired Don Griffiths.
Respondent did not present any evidence at the con-
clusion of the General Counsel 's case , but instead moved
to dismiss the complaint on the ground that the General
Counsel failed to establish a violation of the Act. The
motion was denied.
Analysis and Conclusions
In his posthearing brief to me , counsel for Respondent
renewed his motion for dismissal of the complaint on the
ground that the General Counsel failed to establish that
the Union is the exclusive collective-bargaining repre-
sentative of Respondent 's employees , because the Gener-
al Counsel did not establish that Respondent authorized
ABC to represent it in negotiations with the Union. Re-
spondent did not cite any legal authority in support of its
position, but apparently relied on the fact that the Gener-
al Counsel did not produce either a signed recognition
agreement or a collective-bargaining agreement actually
signed by Respondent . However, it is particularly noted
that article I of the collective-bargaining agreement be-
tween ABC and the Union specifically provides as fol-
lows:
THIS AGREEMENT is made and entered into
this 25th date of June , 1981, by and between the
Association of Bituminous Contractors, Inc. (herein-
after referred to as the Association ) on behalf of
itself and each of its members (a member of the Asso-
ciation being hereinafter referred to as the Employer),
including such Employers who may hereafter become
members of the Association during the life of this
Agreement, as parties of the first part, and the Inter-
national Union, United Mine Workers of America
(hereinafter referred to as the Union) on behalf of
each member thereof, as party of the second part.
This Agreement covers all work related to the develop-
ment, expansion or alteration of coal mines, including
the erection of tipples and preparation plants and other
facilities placed in, or on around the coal mines, sink-
ing of shafts, slopes drifts, or tunnels and all other
such coal-related work that is performed at or on coal
lands by the members of the Association for coal mine
operations which require such construction work to
BECKLEY BELT SERVICES CO
be performed under the jurisdiction of the United
Mine Workers of America.
This Agreement shall not void any'existing writ-
ten agreement between the Union or any district or
local and specific construction Employers except to
the extent that such agreement is inconsistent here-
with.
It is agreed that this contract is for the exclusive
point use and benefit of the contracting parties, as
defined and set forth in this Agreement. It is agreed
that the Union is recognized herein as the exclusive
bargaining agency representing the employees of the
parties of the first part within the scope and coverage
of this Agreement, to the manner and extent permit-
ted by law. It is further agreed that as a condition
of employment all employees, to the manner and
extent permitted by law, shall become members of
the Union, at the latest, after the seven (7) day grace
period following the beginning of such employment or
the effective date of this Agreement whichever is
later, except in those exempted classifications of em-
ployment as hereinafter provided in this Agreement.
The uncontroverted evidence of record has established
that Respondent not only failed to deny, but also by stip-
ulation , acknowledged membership in ABC, and that it
has historically and essentially applied the wage rate and
other fringe benefit terms of the contract to its belt unit
employees Consequently, the above language of article I
makes it clear, and I find, that by virtue of Respondent's
membership in ABC, Respondent not only agreed to rec-
ognize the Union as the exclusive bargaining representa-
tive of its unit (belt) employees, but also agreed to be
bound by and abide by the terms of the collective-bar-
gaining agreements negotiated and executed between the
ABC and the Union.
It is also noted that article I further provides that:
Each Employer promises that its operations cov-
ered by this Agreement shall not be sold, conveyed,
or otherwise transferred or assigned without first se-
curing the agreement of the successor to assume the
Employer's obligations under this Agreement. Pro-
vided that the Employer shall not be a guarantor or
be held liable for any breach by the successor or as-
signees of its obligations, and the UMWA will look
exclusively to the successor or assignee for compli-
ance with the terms of this Agreement.
Assuming that Respondent is relying on the latter lan-
guage of the agreement to imply that because the Gener-
al Counsel did not produce evidence that under an
agreement with its predecessor, Respondent agreed to
assume the contractual obligations of the predecessor, I
find that such language does not and could not establish
a binding obligation on a successor employer such as Re-
spondent. The subject language can become binding on
the successor respondent only if or when Respondent
were to sell or assign its belt operation to a successor
employer. Because Respondent has not sold or assigned
its belt operation, Respondent is still an employer-
member of ABC. Having previously agreed by virtue of
membership in ABC to recognize the Union and honor
517
and abide by the terms of agreements executed between
ABC and the Union, Respondent remains bound to apply
the terms of the agreement to its unit belt workers as the
following provision of the agreement provides:
It is the intent and purpose of the parties hereto
that this Agreement will promote and improve in-
dustrial and economic relationship between the par-
ties and to set forth herein the basic agreements cover-
ing rates of pay, hours of work and conditions of em-
ployment to be observed between the parties, and shall
cover the employment of persons employed by the Em-
ployers covered by this Agreement.
Based on the foregoing language , I find no merit in
Respondent's argument in support of its motion for dis-
missal of the complaint herein. Accordingly, Respond-
ent's motion for dismissal is denied.
Did Respondent repudiate terms of the contract and
discriminatorily lay off belt employees Parrish, Coy,
and Crawfords?
The uncontroverted evidence of record clearly estab-
lishe that, although Respondent historically and essential-
ly applied the wage rate and other fringe-benefit terms of
the contract to union belt splicer employees, it neverthe-
less admitted it hired and paid nonunion roofing employ-
ees less than the contract wage rate for performing belt
work.
Belt splicer employees Parrish, Coy, and Crawford
knew Respondent occasionally permitted nonunion roof-
ing employees to perform belt work when there was an
excess of belt work. However, in December 1983, Par-
rish, Coy, and Crawford noted that Respondent was per-
mitting the nonunion roofing employees to perform belt
work when union belt splicer employees did not have
enough belt work. Consequently, Parrish, Coy, and
Crawford met with Respondent (Stegel) on January 6
and complained about the nonunion roofing employees
performing their (belt) work. Respondent (Stegel) told
them it could work the nonunion roofing employees, pay
belt employees hospital insurance, give belt employees an
unemployed slip, and make more money. When the em-
ployees told Stegel they were going to the Union, he
told them to go ahead. Parrish and Coy went to the
Union on January 9 and filed a grievance against Re-
spondent. They presented a copy of the grievance to
President Stegel on the same date. Stegel refused to sign
the grievance and thereupon issued a layoff slip to Par-
rish, Coy, and Crawford, indicating they were laid off as
a result of a reorganization. The record, however, does
not establish that a reorganization had occurred. Belt em-
ployee James Lane did not participate in the complaint
meeting with Respondent or in filing the grievance
against Respondent. Interestingly, Lane was not laid off
but continued to work in Respondent's employ.
It is particularly noted that the evidence does not dem-
onstrate that any of the belt employees were going to be
laid off prior to January 9 and it is clear that Stegel pre-
cipitously issued layoff slips to Parrish, Coy, and Craw-
ford immediately after they complained about the non-
union roofing employees performing belt work, and fol-
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lowed up their complaint by filing a grievance about the
dispute. It is virtually axiomatic that efforts of employees
to enforce the contract by complaining to Supervisor
Stegel on January 6 constituted concerted activity pro-
tected by Section 7 of the Act. Kennickell Printing Co.,
237 NLRB 318, 320 (1978). Likewise, filing of the griev-
ance against Respondent on January 9 constituted con-
certed activity protected by the Act. Sambo's Restaurant,
260 NLRB 316, 319 (1982); Farmers Union Cooperative
Marketing Assn., 145 NLRB 1, 2 (1963).
Under the above circumstances, I find that Respond-
ent's layoff of belt workers Parrish, Coy, and Crawford
was discriminatorily motivated because they complained
to management about the nonunion roofing employees
performing belt work, and followed up their complaint
by filing a grievance pursuant to the collective-bargain-
ing agreement against the Respondent . I further find that
the General Counsel's evidence establishes a prima facie
case that the Respondent's layoff was discriminatonly
motivated and that the burden thereon shifts to the Re-
spondent to show that employees Parrish, Coy, and
Crawford would have been laid off in the absence of
their complaint and formal grievance. Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981).
In an effort to establish that belt splicer employees
Parrish, Coy, and Crawford were going to be laid off,
irrespective of their complaint and formal grievance, Re-
spondent's president, Stegel, testified that Parrish had
turned down belt work assigned to him in December
1983 because the job assignment was of short duration
He further testified that his secretary had called Coy in
December 1983 to give him a belt work assignment, but
Coy informed her he was going hunting. Parrish denied
he ever turned down work offered by the Respondent
but stated that when Respondent called him on two oc-
casions in 1983 to work a belt job, he asked Stegel if he
could assign someone else to the job because he had
some business to transact. He denied he turned down a
job to go hunting, and said belt workers had never been
issued a layoff slip prior to January 9.2
Belt splicer employee Coy acknowledged he turned
down work on two occasions in 1983 when he went
rabbit hunting around October 22, and also when he
went bow hunting in October. He said he reported to
work on a Friday in December and asked the secretary
(Durham) if there was any work. She informed him
there was no work and he told her he was going rabbit
hunting. The record does not show that Respondent
(Siegel) ever spoke to Coy about failing to accept belt
work assignments , which Coy said he declined to accept
because he had not taken a vacation. Respondent's secre-
tary (Durham) did not testify in this proceeding and no
explanation was made for her nonappearance.
8 I credit Parnsh's denial that he turned down a belt work assignment
because I was persuaded by his demeanor that he was testifying truthful-
ly, and because Siegel did not reply to Parrish's testimonial response to
Respondent 's contention Stegel 's secretary, Durham, did not appear and
testify to corroborate Stegel 's contention The record does not show that
Stegel ever questioned or discussed refusal to accept work assignment
with Parrish Moroever, Parrish's version is consistent with the other evi-
dence of Respondent's conduct renouncing terms of the contract herein
further discussed below
I therefore find that Respondent's layoff of Parrish,
Coy, and Crawford, although retaining in its employ belt
worker James Lane, who did not join in filing the griev-
ance , constituted preferential treatment of Lane and dis-
criminatory treatment of the three laid-off employees be-
cause they resorted to the grievance procedure under the
contract. Such discrimination against the laid-off employ-
ees by Respondent was unlawfully motivated. Home
Lumber & Supply Co., 237 NLRB 322, 326 (1978).
In view of the foregoing subordinate determinations, I
conclude and find that Respondent has not successfully
rebutted the evidence against it, and that Respondent's
layoff of belt splicer employees Parrish, Coy, and Craw-
ford was discriminatorily motivated because they com-
plained and filed a grievance about nonunion employees
performing union belt work. Such conduct by Respond-
ent is in violation of Section 8(a)(3) and (1) of the Act.
Drury Construction Co., 260 NLRB 721, 723 (1982);
Home Lumber, supra.
Because I do not construe Parrish 's asking Stegel if he
could assign the work to someone else a refusal to accept
work, I am not persuaded by the credited testimony that
Parrish turned down belt work offered by Respondent. I
am persuaded that Respondent did not attach any degree
of significance to Coy's having elected to go hunting on
two occasions instead of performing work offered to
him, because Respondent did not mention either incident
to Coy or Parrish. Both Parrish and Coy first heard Re-
spondent mention them turning down work during the
instant proceeding . This position is further supported by
the corroborated and credited testimony of Parrish and
Coy, and that during their meeting on December 6,
Stegel responded to their inquiry about Respondent as-
signing nonunion workers belt work by stating he could
work nonunion roofers, pay belt employees hospitaliza-
tion , give them an unemployment slip, and make more
money. I am therefore persuaded that neither Parrish nor
Coy was denied belt work or laid off because either of
them declined a work assignment in order to go hunting
or for any other reason given by them. In fact, I am per-
suaded that Respondent's contention that Parrish and
Coy turned down belt work was not the motivating
cause for Respondent's failure to assign them belt work,
for laying them off, or for neglecting to recall them to
perform belt work but, rather, a mere pretext to conceal
Respondent's derogation of the terms of the contract and
its effort to undermine the Union, in violation of Section
8(a)(5) of the Act.
Other Provisions of the Collective-Bargaining
Agreement Repudiated by Respondent
Article 21 of the agreement between the parties pro-
vide for a three-step grievance procedure (G.C. Exh. 3).
The evidence unequivocally established that belt splicer
employees Parrish, Coy, and Crawford first orally com-
plained to Respondent's president, Siegel, on January 6,
about nonunion roofing employees performing union belt
employees' work. When they asked him why Respond-
ent was permitting nonunion workers to perform their
work, Stegel told them he could work nonunion men,
pay union employees hospital insurance, give union em-
BECKLEY BELT SERVICES CO
ployees unemployment slips , and make more money at
the same time . When Parrish told Stegel the employees
were going to the union hall, Stegel told them to "go
ahead ." Parrish and Coy went to the union hall, pre-
pared a grievance , and returned to Stegel 's office on Jan-
uary 9 . When they attempted to hand a copy of the
grievance to Stegel , the latter refused to accept or sign
the grievance but rather , laid it on a table and advised
them (Parrish , Coy, and Crawford) they were laid off.
Union District Representative Donald Workman ar-
ranged a third -step meeting with Respondent on January
17 to discuss the complaints and layoff of the three em-
ployees . Stegel agreed to meet and discuss the complaint
with the employees . However , when the employees went
to Stegel's office on January 27 to discuss the grievance,
Stegel advised them that they would have to contact his
lawyer Subsequently , Union District Representative
Workman made several efforts to contact Stegel by tele-
phone but was always advised that he was on the line or
busy . Workman thereupon sent a certified letter to Stegel
requesting that they meet to set up an arbitration hear-
ing. When Workman failed to receive a response from
the Respondent , the Union filed a charge in the instant
proceeding on February 17, 1984.
I conclude and find , on the foregoing credited evi-
dence , that Respondent frustrated the efforts of the
Union to process the grievance filed pursuant to article I
of the contract , by refusing to accept , sign , and process
the grievances , in violation of Section 8(a)(5) of the Act.
U.S. Utilities Corp ., 254 NLRB 480 , 486 (1981); R. L.
Sweet Lumber Co., 207 NLRB 529, 537 (1973).
Although individual belt employees might have fore-
gone a small percentage of belt work by working with
nonunion employees for a temporary period in an effort
to cooperate with the Respondent at its request , because
Respondent was experiencing financial problems in com-
plying with the health and pension provisions of the con-
tract , no evidence was presented that Respondent ever
requested economic concessions from the Union to re-
lieve its situation. When all these factors are considered
in conjunction with all the evidence of Respondent's
union animus , statements to the employees implying it
could not afford the Union , its failure to process the
grievance , its failure to pay the contract wage rate,
health insurance, pension fund , and its discriminatory
layoff of three union belt splicer employees , I conclude
and find that Respondent further repudiated the terms of
the collective -bargaining agreement in these respects, and
undermined the Union in violation of Section 8(a)(5) and
(1) of the Act. Respondent 's failure to continue to pay
the contract wage rate violated Section 8(a)(1) and (5) of
the Act. Pullman Building Co., 251 NLRB 1048 (1980),
enfd . 691 F.2d 507 (9th Cir. 1982). Such failure on the
part of Respondent amounts to an essential repudiation
of the contract as a whole as well as the bargaining rela-
tionship Oak Cliff-Golman Baking Co., 207 NLRB 1063,
1064 (1973), enfd . 505 F . 2d 1302 (5th Cir. 1974), cert.
denied 423 U S. 826 (1975).
Because Respondent continued to perform belt work
after January 9 with both union and nonunion newly
hired employees without ever recalling Parrish and Coy,
Respondent 's failure to recall them is evidence of a dis-
519
cnminatory motive. Drury Construction Co., 260 NLRB
721, 723 ( 1982).
Additionally , although it is conceivable , in the absence
of actual proof, that Respondent was experiencing finan-
cial problems in late 1983 and early 1984 , the evidence
clearly shows that Respondent failed to comply with
several provisions of the contract relating to dues check-
off, the grievance arbitration procedure , health insur-
ance , and the pension fund . Respondent admittedly failed
to comply with these provisions to avoid labor costs.
Considering Respondent's failure to comply with these
provisions in conjunction with its discharge of three unit
employees for utilizing the grievance -arbitration proce-
dure , the conclusion is inevitable that such conduct con-
stituted an overall repudiation of the contract . Autoprod,
Inc., 265 NLRB 331, 338 (1982); Mackie's Roofing Co.,
221 NLRB 277 (1975).
Finally , Respondent argues that it has not paid the
union contract wage rate for belt work and that it has
ignored the Union-ABC agreement for several years;
that roofing employees were not members of the Union
of which fact union member employees were aware; and
that Respondent paid into the pension fund as it said,
"when we were financially able." Consequently, Re-
spondent argues that the statute of limitations has run
against Respondent's paying the contract wage rate,
paying into the pension fund , and its recognition of non-
union roofing employees and the Union as the bargaining
representative of its belt employees. Respondent does not
cite any legal authority in support of its argument.
In addressing these contentions , it is first noted that
the record evidence is not clear that Respondent did not
in fact pay the contract wage rate but only paid a rate
comparable to it in accordance with the practice in the
trade . However , assuming that Respondent only paid a
rate comparable to that of the practice in the trade, the
fact that the union belt employees did not protest such
payment does not amount to a waiver of the contract
wage rate . After all, Respondent 's contractual obligations
are with the Union and not its employees Moreover, the
evidence does not establish that the Union had any
actual and conscious knowledge that Respondent was
not paying the contract wage rate until Parrish and Coy
filed the grievance on January 9. Thus, it is clear that
Respondent unilaterally changed the wage rate of its em-
ployees without even notifying or consulting with the
Union. Such change was a change in the terms and con-
ditions of employment Board law governing these facts
are so well established that I deem cited legal authority
unnecessary under the circumstances in this case.
Respondent argues that even if Respondent has unlaw-
fully paid its union employees less than the contract
wage rate , or if it violated the contract in other respects,
such infractions are now barred by Section 10(b) of the
Act. These contentions are obviously without merit. In-
asmuch as Respondent 's failure to pay the contract wage
rate and to honor other provisions of the contract were
continuous , such conduct is still in derogation of the con-
tract and is not barred by the Act. U.S. Utilities Corp.,
254 NLRB 480, 486 (1981); Alcan Forwarding Co., 235
NLRB 994 (1978).
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
Having found that Respondent has failed and refused
to bargain with the Union by failing and refusing to
comply with several provisions of the contract with re-
spect to the wage rate of union employees , life insurance,
the pension fund, and the grievance-arbitration proce-
dure, in violation of Section 8(a)(1) and (5) of the Act;
and that Respondent restrained , coerced , and discrimi-
nated against its employees by laying off employees for
filing a grievance pursuant to the contract , and by recall-
ing one employee who did not participate in filing the
grievance and paying him a higher wage rate than that
provided in the contract without fringe benefits, in viola-
tion of Section 8(a)(1) and (3) of the Act, the recom-
mended Order will provide that Respondent cease and
desist from engaging in such unlawful conduct , and that
it offer the laid-off employees full reinstatement and
make them whole for any loss of earnings they may have
suffered within the meaning and in accord with the
Board's decision in F. W. Woolworth Co., 90 NLRB 289
(1950), and Florida Steel Corp., 231 NLRB 651 (1977),
except as specifically modified by the wording of such
recommended Order.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that
Respondent cease and desist from, in any like or related
manner interfering with, restraining , or coercing employ-
ees in the exercise of their rights guaranteed by Section 7
of the Act. NLRB v. Entwistle Mfg. Co., 120 F.2d 532,
536 (4th Cir. 1941).
CONCLUSIONS OF LAW
1 Beckley Belt Services, Inc., d/b/a Beckley Belt
Services & Roofing Co., Inc., the Respondent, is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. United Mine Workers of America, District 29, the
Union herein , is, and has been at all times material, a
labor organization within the meaning of Section 2(5) of
the Act.
3. By utilizing nonunion employees to perform belt
unit employees' work, Respondent has failed and refused
to bargain with the Union in violation of Section 8(a)(3),
(1), and (5) of the Act.
4. By repudiating contract provisions relating to the
wage rate, health insurance, pension fund, and the griev-
ance arbitration procedure and undermining the Union,
Respondent has failed and refused to bargain with the
Union in violation of Section 8(a)(1) and (5) of the Act.
5. By restraining, coercing, and discriminatorily laying
off union employees because they complained and filed a
grievance pursuant to the contract, and by rehiring an-
other employee, who did not participate in filing the
grievance, at a wage rate higher than that provided in
the contract without fringe benefits, Respondent violated
Section 8(a)(1) and (3) of the Act.
[Recommended Order omitted from publication.]