Black Diamond Coal Mining Co.

National Labor Relations Board - Board Decisions

Jun 13, 1990

298 N.L.R.B. 775 (N.L.R.B. 1990)

BLACK DIAMOND COAL MINING CO.
Black Diamond Coal Mining Co. and United Mine
Workers of America. Case 10-CA-24001
June 13, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On July 25, 1989, Administrative Law Judge J.
Pargen Robertson issued the attached decision. The
Respondent filed exceptions and a supporting
brief,' the Charging Party filed cross-exceptions
and a supporting brief, the General Counsel filed
cross-exceptions and a supporting brief, and the
Respondent filed an answering brief to the General
Counsel's cross-exceptions.
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 briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent violated
Section 8(a)(5) and (1) of the Act by refusing to
process grievances arising under a grievance-arbi-
tration provision in an expired contract. As dis-
cussed more fully below, we find merit in the Re-
spondent's contention that the filing of the charge
was time barred by Section 10(b) of the Act.
The Respondent and the Union have maintained
a bargaining relationship covering Respondent's
unionized mines. The parties' most recent collec-
tive-bargaining agreement was effective from Octo-
ber 1, 1984, to January 31, 1988.2 As of January
31, 1988, the contract covered three mines: Shan-
non, Oswago, and Black Star Mine and agreed to
apply the 1984 collective-bargaining agreement at
that mine, However between November 1986 and
January 1987, the Respondent closed Black Star
Mine and laid off its employees who worked there.
Pursuant to the collective-bargaining agreement,
the laid-off employees completed forms (known as
panel forms) to ensure their priority recall rights to
i The Charging Party contends that the Respondent's motion to file a
52-page brief must be denied because the motion was mailed only 6 days
before the brief was due Sec. 102.46(j) of the Board's Rules and Regula-
tions provides that a party must file a motion to submit any briefs over 50
pages in length at least 10 days prior to the date the brief is due. We
deny Respondent's motion on the ground that the motion was not timely
filed under Sec. 102.46(1) of the Board's Rules and Regulations. Accord-
ingly, we do not accept Respondent's brief, which exceeds the 50-page
limit We note, however, that Respondent's separate exceptions to the
judge's decision, which raise the 10(b) issue considered, infra, are proper-
ly before the Board
2 As of January 31, 1988, the contract covered three mines Shannon,
Oswago, and Black Star
775
Black Star Mine over miners from other mines.
Also, pursuant to the collective-bargaining agree-
ment, the Black Star Mine employees retained
recall rights to other mines after the recall of the
miners paneled at the other mines.
Though the collective-bargaining agreement ex-
pired on January 31, 1988, Respondent's employees
continued to work at Shannon Mine. In February
1988, Local Union President James C. Majors at-
tempted to file a grievance on behalf of the Shan-
non Mine employees over vacation and sick days.
He thought the employees were entitled to these
benefits because he mistakenly believed the collec-
tive-bargaining agreement had been extended.
Majors told Respondent Assistant to the Vice
President Paul Providence that he wanted to file a
grievance over vacation and sick days. According
to Majors' testimony, Providence responded that
"we didn't have any grievance procedure and [he]
wouldn't be meeting with us." Majors also attempt-
ed to file other grievances from February to De-
cember 1988, but was consistently told by Provi-
dence that it was Respondent's position that the
parties did not have a grievance procedure.
The unit employees commenced a strike on
March 2, 1988. During the strike and by April 14,
1988, the Respondent sent recall letters to all the
former Black Star Mine employees stating that
there was work available with the Respondent.
The recall letters did not specifically indicate that
work was available at Black Star Mine. Majors
stated that he knew of only one employee who re-
turned to work.
On September 9, 1988, the Respondent contract-
ed to lease Black Star Mine and sell its hoist and
hoist house to J.R. Mining Corp. On October 3,
1988, the Respondent informed the Union of the
September 9 contract, and of its intention to lease
Shannon and Oswago Mines and sell their equip-
ment. The Respondent also offered to bargain with
the Union.
On November 10, 1988, the Union made an un-
conditional offer to return to work the next day.
However, none of the striking employees returned
to work.
Also, in November 1988, Majors noticed people
working at Black Star Mine. About December 21,
1988, Majors attempted to file a first-step grievance
on behalf of the former Black Star Mine employees
based on the Respondent's failure to recall the em-
ployees to work at Black Star. He went to the
mine and spoke with the J.R. Mining president,
who informed him that the J.R. Mining employees
were not represented by the Union. Majors then
met with Respondent Vice President Richard
Johnson, and explained that he wanted to file a
298 NLRB No. 110
776 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
first-step grievance on behalf of the former Black
Star Mine employees." Johnson responded that be-
cause the Respondent did not have any grievance
procedure, it would not process any grievance.
On January 5, 1989,3 Majors called Johnson to
set up a second-step grievance meeting. Johnson
again stated that the Respondent did not have any
grievance procedure. Majors then prepared a writ-
ten grievance alleging that the "Respondent violat-
ed the employees rights by not calling them back
at the Black Star Mine location where work was
available, that the said employees could perform."
Also, on this date, Union Field Representative
Gene Hyche attempted to appeal the recall griev-
ance to the third step by mailgram sent to Re-
spondent President Clarence Blair. '
Respondent's attorney, by a letter dated January
11, and Blair, by a letter dated January 13, denied
Hyche's appeal. They stated that there was no col-
lective-bargaining agreement as the 1984 contract
had expired, but that, if the Union disagreed, it
should send Respondent a copy of the agreement.
By letter dated January 16, the Union's attorney
stated that the Respondent must process grievances
because the Respondent had implemented its final
grievance-arbitration contract proposal. The Re-
spondent's attorney, by letter dated January 24,
denied that it had implemented its grievance-arbi-
tration contract proposals.
On February 28, Hyche informed Johnson that
the Union was going to refer the Black Star Mine
recall grievance to arbitration.4 On March 3, Blair
requested a copy of the grievance and of the appli-
cable grievance-arbitration provision.
The instant charge was filed on March 8. It al-
leges that since on or about January 13, the Re-
spondent "has refused to bargain, by failing and re-
fusing to process grievances."
On April 27, Hyche sent Blair a copy of the De-
cember recall grievance. On May 8, Hyche in-
formed Blair that the Union agreed to process the
grievance under the 1984 collective-bargaining
agreement without waiving its position that the
grievance was also subject to being processed
under an implemented contract. Hyche also cited
certain provisions of the 1984 collective-bargaining
agreement as grounds for processing the grievance.
The General Counsel alleged in the complaint
that, on or about January 13, the Respondent vio-
lated the Act as it "repudiated the contract griev-
ance-arbitration provision by failing and refusing to
process grievances."
a All subsequent dates are in 1989 unless otherwise stated
4 At the time of the hearing, the Union had not yet taken this griev-
ance to arbitration
The judge credited Majors' testimony and found
that the Respondent clearly and unequivocally
stated in February 1988 that it would no longer
recognize and apply the contractual grievance pro-
cedures as the 1984 collective-bargaining agree-
ment had expired, and that since that time, the Re-
spondent consistently took the same position in re-
fusing to process grievances. The judge also recog-
nized that the 1984 collective-bargaining agreement
had expired outside the 10(b) period. Nevertheless,
the judge found that Section 10(b) did not bar the
complaint. The judge concluded, citing American
Commercial Lines, 291 NLRB 1066 (1988), that the
General Counsel did not have to go beyond the
10(b) period in order to prove her case. On the
merits, the judge then found that the Respondent's
refusal to process grievances under the grievance-
arbitration procedure in the expired contract violat-
ed Section 8(a)(5) and (1) of the Act.
Contrary to the judge, we conclude that the
complaint is time barred. Section 10(b) of the Act
precludes the issuance of a complaint "based upon
any unfair labor practice occurring more than six
months prior to the filing of the charge with the
Board and the service of a copy thereof upon" the
charged party. In Chemung Contracting Corp., 291
NLRB 773 (1988), and in American Commercial,
the Board reiterated that the General Counsel can
rely on evidence outside the 10(b) period as "back-
ground," but the General Counsel is barred from
bringing any complaint in which the operative
events establishing the violations occurred more
than 6 months before the unfair labor practice
charge has been filed and served.
We find that in February 1988, and on several
occasions thereafter, outside the 10(b) period the
Union was put on notice that the Respondent
would not abide by the parties' contractual griev-
ance-arbitration procedure as set out in the expired
contract. The 10(b) period ran from March 8, 1989,
when the charge was filed, back to September 8,
1988. On more than one occasion before September
8, 1988, the Respondent clearly and unequivocally
repudiated its obligation to process grievances
under the grievance-arbitration provision of the ex-
pired 1984 collective-bargaining agreement. Thus,
in February 1988, the Respondent refused to proc-
ess grievances because there was no grievance pro-
cedure. Since then, the Respondent has consistently
refused to process grievances on this basis, includ-
ing the Black Star Mine recall grievance that is the
basis of the charge and complaint. The Respondent
has not engaged in any conduct, nor has there been
any intervening circumstances, that can be con-
strued as inconsistent with the Respondent's initial
action.
BLACK DIAMOND COAL MINING CO.
In Chemung and in American Commercial, the
Board noted that in Farmingdale Iron Works, 249
NLRB 98 (1980), , enfd. mem. 661 F.2d 910 (2d Cir.
1981), the General Counsel did not need to reach
beyond the 10(b) period for evidence to support
the charge. Thus, the Board observed that the
charge in Farmingdale was filed during the term of
the collective-bargaining agreement, which created
the obligation to make the fund payments that
were the focus of the charge. Here, as in Chemung,
and in American Commercial, the alleged repudiat-
ed obligation or' term and condition of employment
was created by a collective-bargaining agreement
that expired outside the 10(b) period. Equally im-
portant, the circumstances that put the Union on
notice of the Respondent's alleged breach of the
expired contract also occurred more than 6 months
before the Union filed its charge. Because the oper-
ative facts necessary to establish the violation thus
occurred outside the 10(b) period, the question
whether the Respondent breached its obligation to
process grievances in -accordance with the expired
collective-bargaining agreement cannot be reach-
ed.5 Accordingly, we reverse the judge's conclu-
sions and dismiss the complaint.
ORDER
The complaint is dismissed.
5 We note that the General Counsel alleged only that the Respondent
repudiated its obligation to process grievances under the grievance-arbi-
tration provisions of the expired 1984 collective-bargaining agreement,
which we have found to be barred by Sec 10(b) of the Act. The General
Counsel did not allege that the Respondent violated its statutory obliga-
tion to meet with the Union over grievances, an obligation that exists
within the context of a collective-bargaining relationship regardless of the
existence of a contract Storall Mfg. Cc, 275 NLRB 220, 221 (1985).
Josephine S. Miller, Esq., for the General Counsel.
Harry L. Hopkins, Esq., of Birmingham, Alabama, for the
Respondent.
John L. Quinn, Esq., of Birmingham, Alabama, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge.
This matter was heard in Birmingham, Alabama, on June
8, 1989. The complaint issued on April 20, 1989. It was
based on a charge filed on March 8, 1989.
The complaint alleges that Respondent violated Sec-
tion 8(a)(1) and (5) of the National Labor Relations Act
(Act) by "repudiating the contract grievance-arbitration
provision by failing and refusing to process grievances."
Pursuant to my instructions at the hearing, Charging
Party, in agreement with Respondent, filed a posthearing
submission of exhibits dated June 19, 1989. That submis-
sion is received in evidence and the exhibits contained
therein numbered Charging Party's Exhibits 1-7, and ad-
777
ditional exhibits of Respondent designated Respondent's
exhibits 1-6, are also received in evidence. Note howev-
er, that the above exhibits are in addition to exhibits of
Respondent, as well as General Counsel, which were re-
ceived during the hearing. Some of the Respondent ex-
hibits have duplicate numbers but may be distinguished
as hearing exhibits 1-6 or posthearing exhibits 1-6.
All parties were given the opportunity to file briefs.
The deadline for briefs was July 14, 1989. Briefs were
filed by General Counsel, Charging Party, and Respond-
ent. On the entire record, including my observation of
the demeanor of the witnesses, and after considering
briefs filed by the parties, I make the following determi-
nations.
Respondent admitted the commerce allegations of the
complaint. Respondent admitted that it is engaged in the
mining of coal with an office and place of business locat-
ed in Birmingham, Alabama, and that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act. Respondent admitted that the Charg-
ing Party (Union) is a labor organization within the
meaning of Section 2(5) of the Act.
The last collective-bargaining agreement in effect be-
tween the parties became effective on October 1, 1984,
and expired on January 31, 1988.
Some 12 to 14 months before that collective-bargain-
ing agreement expired, Respondent closed its Black Star
Mine and laid off the bargaining unit employees at that
mine.
By telegram dated March 1, the Union called a strike
among Respondent's bargaining unit employees effective
at 12:01 a.m., on March 2, 1988.
Subsequently, during the strike, Respondent mailed the
following letter to Black Star mine employees:
Employment is available at Black Diamond Coal
Mining Company. Please contact the Central Office
immediately at 477-5731, between the hours of 7:00
a.m. and 3:00 p.m.
In September 1988, certain operations of Respondent,
including operation of the Black Star Mine, were leased
to J R Mining.
During mid-October 1988, the Union ended its strike
against Respondent and made unconditional offers for
the strikers to return to work.
Around December 20, 21, or 22, 1988, the Union at-
tempted to file a first-step grievance with Respondent.
On January 5, 1989, the Union attempted to go to step
two with that grievance. Also, on January 5, the griev-
ance was written out:
Black Diamond Coal Mining Co. violated the em-
ployees rights by not calling them back at the Black
Star Mine location where work was available, that
the said employees could perform.
Also, on January 5, the Union sent a telegram to Re-
spondent:
I am advised on this date that Black Diamond
has refused to meet on grievances in the 2nd step.
778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I am further informed that the Company main-
tains that there is no grievance procedure and the
Company has no obligations to meet on any griev-
ances.
The Union views this as a breech of the Compa-
ny bargaining obligations and protest this action.
You are asked to consider this the Union appeal
to the 3rd step of the grievance procedure.
Please also be advised that the Union will consid-
er exercising all legal options available to it to ad-
dress this situation.
When the grievance was first presented around De-
cember 21, again on January 5, and finally by letter
dated January 13, 1989, Respondent refused to process
the Union's grievance. The January 13 letter read:
Mr. Gene Hyche
UMWA District 20 Representative
1200 Fourth Avenue South
Birmingham , Alabama 35233
Re: Black Diamond Coal Mining Company
Dear Mr. Hyche:
In response to your January 5 mailgram, the
Company and the Union do not have a collective
bargaining agreement and thus there is no grievance
procedure. If you disagree, please provide us a copy
of the contract by return mail.
As early as October 1987, the Company attempt-
ed to get your Union to negotiate a labor agree-
ment. Those efforts have failed and both you and
your Union cancelled/terminated the 1984 agree-
ment.
You should also remember that Black Diamond
was a "selective strike" target and the resulting
strike lasted several months before it was ended.
You will also remember the unfair labor practice
charges your Union filed against Black Diamond
and the NLRB's dismissal of those charges. In those
charges your Union claimed that the Company did
not bargain in good faith.
We assume you know all of these things and that
you know there is no contract between the parties.
If you have any contract proposals, we will be
happy to receive them.
Your mailgram and this letter are being sent to
the National Labor Relations Board for consider-
ation should you persist in your claim that there is a
contract.
James C. Majors, president of the Local 8460, testified
that he was the union official that tried to file the griev-
ance around December 20, 21, or 22, 1988.
Majors testified that he has tried to file grievances on
other occasions since the contract expired on January 31,
1988. Majors testified that he attempted to file a griev-
ance in February 1988:
We attempted with our immediate foreman to get
an answer . He referred me on to Mr. Johnson. At
that time Mr. Paul Providence was handling the
grievance procedures between management and the
local unions. I called Paul Providence and asked
him about a first-step meeting to set up to resolve
this matter of sick days, vacation.
And that's when he informed me that we didn't
have any grievance procedure and wouldn't be
meeting with us.
Majors was asked about efforts to file other grievances
during the period from March through December 1988:
We attempted some. We were denied.
Q: You attempted some. Which did you attempt?
A: I don't really remember exactly. During the
month of February there was a couple of times I at-
tempted to file grievances, and I was notified by
Mr. Paul Providence, the assistant to Mr. Dick
Johnson, we didn't have a grievance procedure.
The Merits of the Complaint
General Counsel contends that Respondent acted ille-
gally when it refused to process the Union's December
21, 1988 grievance in accord with it and the Union's
1984-1988 collective-bargaining contract provisions.
The record shows that the Union's grievance of De-
cember 21 involved alleged rights of employees that
were laid off at the Black Star Mine during the terms of
the 1984 collective-bargaining agreement.
At the time of the layoff, Black Star was one of the
mines operated by Respondent. By an October 3, 1988
letter, Respondent advised the Union that a contract had
been entered with J R Mining "to mine coal at the Black
Star Mine." That letter closed:
Should you wish to discuss or negotiate the ef-
fects of these actions on bargaining unit members,
please let us know at once.
Following expiration of the 1984 contract on January
31, 1988, the former Black Star employees were offered
employment with Respondent (Black Diamond). At the
time of that offer, the former Black Star employees, as
well as other Black Diamond employees, were on strike.
On April 14, 1988, Respondent supplied the Union with
a copy of its recall letter along with a list of employees
that were mailed the recall letter.
The grievance contends that Respondent failed to
offer the former Black Star employees, employment at
Black Star Mine; and that Respondent was contractually
obligated to offer those laid-off employees employment
at Black Star.
Did the Grievance Arise Under the Customary
Procedure?
Respondent contends that it would violate the princi-
pals of NLRB v. Katz, 369 U.S. 736 (1962), if it changed
the established terms and conditions of employment by
altering the grievance procedure. Respondent contends
that this grievance was not processed in accord with es-
tablished procedure in that an employee did not file step
1 of the grievance. Instead the grievance was processed
throughout, including at step 1, by union officials pur-
porting to be mine committee members. However, those
BLACK DIAMOND COAL MINING CO.
officials were not duly elected as mine committee mem-
bers and the 1984 contract provides that an employee
must file step 1.
Was There Wholesale Repudiation?
Respondent contends that the Union attempted to file
the grievance under an "implemented" contract, that it
refused to process the grievance under an "implemented"
contract, and, in fact, Respondent never established a
grievance procedure under any "implemented" contract.
Did the Grievance Otherwise Arise Under the
1984 Agreement?
Respondent argues that the grievance regarding recall
rights for the former Black Star employees arose under
an implemented contract theory and did not arise under
the 1984 agreement.
Did the Time Lag Destroy the Presumption
of Arbitrability?
Respondent argues that the Union lost its right to
grieve because of its long delay in grieving following ex-
piration of the contract. In that regard Respondent cited
Litton Business Systems, 268 NLRB 817, 819 fn. 6 (1987),
and quoted from that decision
whether time alone , without reference to the nature
of the grievance, is sufficient to overcome the pre-
sumption of arbitrability.
Did the 1984 Agreement Negate the Duty
to Arbitrate?
Here Respondent cites Garland Coal Co. v. Mine
Workers, 778 F.2d 1297 (8th Cir. 1985), for the proposi-
tion that a contract may provide that matters which arise
outside the duration of the contract may not be arbitrat-
ed. Respondent argues that the 1984 contract has such a
provision.
Findings
As shown in more detail below, I have rejected Re-
spondent's arguments in defense of the unfair labor prac-
tice allegations. Many of Respondent's objections raise
an elementary question of whether this forum should re-
solve factual and legal issues or whether those questions
should be left for resolution during grievance proceed-
ings. Obviously, the basic issue of whether there is an
unfair labor practice must be resolved by the National
Labor Relations Board. However, in consideration of re-
lated issues such as whether the grievance is defective, a
different answer may result. In some instances it would
be just as improper for the Board to infringe into the
province of a grievance dispute resolution as it would be
for some other forum to infringe upon the Board's prov-
ince of deciding unfair labor practice issues.
The First Circuit considered the issue of which ques-
tions must be left to the grievance proceeding, in Electri-
cal Workers Local 1228 v. Freedom WLNE-TV, 760 F.2d
8 (1st Cir 1985).
779
On September 22, 1983, the Union filed a griev-
ance which challenged Freedom's alleged use of
non-union employees for certain broadcasting work.
Freedom refused to process the grievance because it
concerned work which was undertaken after the ex-
piration of the contract. The Union filed a subse-
quent grievance on September 28, claiming that
Freedom's refusal to process the earlier grievance
unilaterally terminated the contract. Freedom again
declined to process the grievance. On October 3,
the Union sought to arbitrate the question, "[t]o
what extent the contract, by its own terms, (Article
22) continues in effect beyond August 15, 1983 and
what is the proper remedy." Freedom refused arbi-
tration claiming that its obligation to arbitrate, like
its obligation to process grievances, expired with
the contract on August 15 due to the parties' failure
to reach an extension agreement.
Parties to a collective bargaining agreement are
contractually bound to arbitrate only disputes
which properly come within the scope of the
agreed upon arbitration clause. It is our task, there-
fore, to determine whether the arbitration clause in
this Agreement governs disputes regarding the ter-
mination of the contract.
We are guided in our analysis of the scope of the
arbitration clause by the Second Circuit's decision
in Rochdale Village, Inc. v. Public Service Employees,
605 F.2d at 1295-1296:
If a court finds that the parties have agreed to
submit to arbitration disputes "of any nature or
character," or simply "any and all disputes," all
questions, including those regarding termination,
will be properly consigned to the arbitrator, "With
that finding the court will have exhausted its func-
tion, except to order the reluctant party to arbitra-
tion."
In consideration of whether the below issues fall
within the province of the Board, or whether those
issues should remain for resolution during the grievance
procedures, I shall consider the terms of the 1984 collec-
tive-bargaining agreement. As shown below, I find that
that contract governs the question of what are the estab-
lished grievance procedures, if any. The 1984 contract,
at article XXIII, section (c) grievance procedure pro-
vides, in part:
Should differences arise between the Mine Work-
ers and an Employer as to the meaning and applica-
tion of the provisions of this Agreement, or should
differences arise about matters not specifically men-
tioned in this Agreement, or should any local trou-
ble of any kind arise at the mine, an earnest effort
shall be made ,to settle such differences at the earli-
est practicable time.
The Court, in Local 1228 v. Freedom WLNE-TV, supra
at 2200 continued
780 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Freedom and the Union contracted to a broad ar-
bitration clause which applies to "[a]ll problems
arising out of grievances or out of the application or
interpretation , of this Agreement or the performance
of any party under it." We believe that this arbitra-
tion clause reflects the parties' agreement to arbi-
trate any dispute involving construction of the sub-
stantive provisions of the contract , United Steelwork-
ers of America v. American Mfg. Co., 363 U.S. 564,
571 (1960) (Brennan, J. concurring), and covers the
question submitted in this case . The Union asked
the arbitrator to determine the extent to which the
Agreement 's open-ended duration clause continued
the Agreement in effect . By its own phraseology,
this question exclusively addressed an issue of con-
tract interpretation and was appropriately referred
to the arbitrator for determination.
See also Oil Workers Local 4-23 v. American Petrofina
Co., 759 F.2d 512 (5th Cir. 1985), and Glover Bottled Gas
Corp. v. Teamsters Local 282, 711 F.2d 479 (2d Cir. 1983).
Here too, there exists a broad grievance resolution
provision. With that in mind I have considered the com-
plaint allegations and the defenses posed by Respondent.
Respondent specified defenses first, second, third, and
fourth in its answer, and, in its brief, Respondent ad-
vanced arguments in support of its defenses. Those spe-
cific defenses, as outlined in the brief, are considered
below.
The customary procedure?
Respondent argues that it would be unilaterally chang-
ing terms and conditions under NLRB v. Katz, 369 U.S.
736 (1962), if it allowed the December grievance in view
of the fact that an employee did not file step 1, and the
officials that filed the grievance, were not duly elected to
the mine committee. I note that the record did not show
that Respondent made that claim when the Union filed
the grievance. Moreover, an agreement by Respondent
to process that grievance would not constitute a unilater-
al change since it would constitute an agreement with
the other party to the collective-bargaining contract-
i.e., the Union. See NLRB v. Katz, where the complaint
involved three acts, all of which were found to involve
unilateral action by the employer.
Respondent cited, among other cases, Redwing Carri-
ers, 274 NLRB 1359 (1985), where the Board found no
violation in an employer's refusal to process a discharge
grievance where the discharged employee refused to sign
the grievance; Hawthorn Mellody, 275 NLRB 339 (1985),
where no violation was found due to the Union failing to
exhaust the grievance procedure; Alabama Metal Prod-
ucts, 280 NLRB 1090, 1098 (1986), where it was found
that the collective-bargaining contract did not extend to
the second of two corporations found to be a single em-
ployer, and, for that reason, there was no obligation to
comply with any of the terms of the contract including
the terms regarding grievances; and Southwestern Port-
land Cement Co., 289 NLRB 1264 (1988), where the em-
ployer did not violate the Act by refusing to meet after
the Union insisted on meeting with more than the maxi-
mum number of four grievance committee members as
specified in the expired collective-bargaining agreement.
The above cited cases must be distinguished. Only Red-
wing appears to have application to the instant situation
and there, unlike here, the employer consistently refused,
from its earliest opportunity, to process the grievance to
arbitration because the employee refused to sign the
grievance in accord with the terms of the contract. Here,
there was no adamant refusal of the grievant to comply
with specific provisions of the contract.
In my opinion the Respondent's arguments lack merit.
Wholesale repudiation?
Regarding Respondent's argument that there was no
wholesale repudiation under all the circumstances, Re-
spondent correctly notes in its brief that the "letter ex-
change, particularly those dated January 11 and 13, may
indicate repudiation."
As shown here, the parties did subsequently discuss an
implemented contract and the Union argued, at least al-
ternatively, that the grievance should be processed under
the terms of the contract which it alleged the Respond-
ent had implemented. However, I note that the Respond-
ent consistently refused to process the grievance under
the contention that there was no established grievance
procedure. Respondent did not originally contend that it
was limiting its refusal to an implemented contract
theory. Subsequently, although Respondent did tell the
Union that it had not implemented a contract, Respond-
ent never did clarify its position to show that its refusal
to process the grievance was a limited refusal-limited to
refusing only to the extent that the grievance was under
an implemented contract. In fact, the record shows the
contrary to be true, Respondent consistently refused to
process the grievance under the assertion that there was
no established grievance procedure. Therefore, I find
that this contention lacks merit.
Otherwise arise under the 1984 agreement?
As to arising under an implemented contract theory, as
shown herein General Counsel contends that the com-
plaint is based on the theory that the grievance arguably
involves recall rights which accrued under the 1984 con-
tract. I agree with General Counsel. The 1984 agreement
provides under article XVII, a procedure for layoffs and
recall. The Black Star employees were laid off during
the duration of the 1984 agreement. Even though there
was no effort to recall those employees until after the
1984 agreement expired, it is arguable that the rights
under which any recall must be governed, vested under
the contract at the time of the layoff.
Respondent argues that any seniority rights were sacri-
ficed when the Black Star employees failed to respond to
the recall letters mailed during the strike. At best, that
issue which was not raised in Respondent's responses to
the Union's efforts to grieve, raises complex matters
which were not litigated in these proceedings. Perhaps
those matters will arise if the grievance proceedings are
permitted to continue. In any event, it is not clear from
the record that the Union's grievance should be rejected
because the employees lost their recall rights when they
refused, perhaps because of the strike, to return to work
BLACK DIAMOND COAL MINING CO.
following Respondent's recall letters. I lack the authority
to reject an arguably meritorious grievance on the basis
of an argument that the grievance may fail. See Local 4-
23 v. American Petrofina Co., supra; Glover Bottled Gas
Corp. v. Local 282, supra; and Local 1228 v. Freedom
WLNE-TV, supra. The record shows that the opposite is
also true, i.e., the evidence upon conclusion of litigation
of that particular issue, may show that the employees did
not forfeit their recall rights.
Respondent argues that J R Mining is a separate entity
and, therefore, recall to J R' Mining would not fall
within the scope of any agreement between Respondent
and the Union. That argument may, or may not, be fac-
tually correct. There is evidence in the record which
supports Respondent's contention that J R Mining is a
separate entity. However, that issue has not been fully
litigated and, even if it is resolved, its resolution may not
be determinative of the grievance. I lack the authority to
dismiss on the grounds that the grievance may fail if the
evidence supports Respondent"s argument.
Respondent claims that the grievance fails to state in-
formation which would enable one to look at the face of
the grievance and determine that it embodied rights
worked for or accumulated over time. Again, this de-
fense was not raised during Respondent's responses to
the Union. The grievance does appear to sufficiently
advise the basis of the complaint. I see no reason why
this matter should be rejected on that contention.
Moreover, I find that the Union did not waive its right
to grieve when it failed to bargain over the lease of
Black Star to J R Mining. As noted above the evidence
may show that the lease to J R Mining did not affect the
employees' recall rights. Nor did the Union waive any
rights by not bargaining over Respondent's assertion that
it may getout of the mining business,
Time Lag?
In the instant case the grievance was filed within 2-1/2
months after the Union ended its strike. It would have
been unusual for the Union to have filed a grievance re-
garding recall, during a strike. It is customary for Unions
to support a strike by asking employees to refrain from
reporting to work'. The time lapse does not appear exces-
sive especially when viewed against the full picture in-
cluding the strike. That time lapse does not, in my opin-
ion, justify dismissal due to untimeliness.
Did the 1984 Agreement Negate the Duty
to Arbitrate?
Respondent's argument that the contract provides that
matters which do not arise during the duration of the
contract, are not arbitratible is well taken. However, a
prime question remains, whether the matters alleged in
the grievance fall within the duration of the contract. As
shown above , I find that the grievance arguably falls
within the duration of the contract. For that reason I
find that this point of Respondent 's argument must be re-
jected . Local 1228 v. Freedom WLNE-TV, supra.
781
The Merits
The issue to be considered here, according to General
Counsel, is not whether the December 21 grievance has
merit, but rather, whether Respondent was legally obli-
gated under Section 8(a)(5) and (1) of the Act to process
that grievance in accord with the terms of the 1984 col-
lective-bargaining agreement.
Generally, where a Union retains its status as bargain-
ing representative after the collective-bargaining agree-
ment expires, an employer violates the provisions of Sec-
tion 8(a)(5) by unilaterally ceasing to process grievances
through its established grievance procedure. Weather
Shield Mfg., 292 NLRB 1 (1988).
An employer, with some exceptions, is not free to uni-
laterally change terms and conditions of employment
after the expiration of ,a collective-bargaining agreement.
The few exceptions to the general rule that an
employer must bargain about changes in terms and
conditions of employment regardless of how those
terms came to be initially established have been cre-
ated for reasons that in no way support an excep-
tion for allowing unilateral changes in employee
grievance procedures. The exception, mentioned by
the Chairman, permitting unilateral abandonment of
union-security and checkoff arrangements after con-
tract expiration is based on the fact, noted in Bethle-
hem Steel, [136 NLRB at 1502] that "[t]he acquisi-
tion and maintenance of union membership cannot
be made a condition of employment except under a
contract which conforms to the proviso to Section
8(a)(3)." Indiana & Michigan Electric Co., 284
NLRB 53, 55 (1987); see also Petroleum Mainte-
nance Co., 290 NLRB 462 (1988).
Cases frequently have dealt with the question of
whether a grievance may be arbitrated against an em-
ployer's wish after a collective-bargaining agreement that
established arbitration as a step in the grievance proce-
dure expired. In a landmark case involving the question
of whether the arbitration provisions survived a con-
tract's expiration, the Supreme Court discussed its deci-
sion in John Wiley & Sons Livingston, 376 U.S. 543 (1964),
holding:
We thus determined that the parties' obligation
under their arbitration clause survived contract ter-
mination when the dispute was over an obligation
arguably created by the expired agreement. It is
true that the union there first sought to arbitrate the
question of post-contract severance pay while the
agreement under which it claimed such benefits was
still in effect. But that factor was not dispositive in
our determination of arbitrability. Indeed, that very
distinction was implicitly rejected shortly thereafter
in Piano & Musical Instrument. Workers Local 2549
Y. W W. Kimball Co., 379 U.S. 357 (1964), on the
basis of John Wiley & Sons and United Steelworkers
of America v. American Mfg. , Co. We decline to
depart from that course in the instant case, for, on
the record before us, the fact that the union asserted
its claim to severance pay shortly after, rather than
782 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
before, contract termination does not control the ar-
bitrability of that claim. Nolde Bros. v. Bakery Work-
ers Local 358, 430 U.S. 243 (1977).
In the instant case, the Union, in its brief, argues:
The subject grievance clearly relates to contrac-
tual recall rights which accrued pursuant to the
terms of the 1984 collective-bargaining agreement
between the UMWA and Respondent. These con-
tractual rights accrued at the time of the employees'
layoffs, a point in time when the 1984 collective-
bargaining agreement was clearly in force.
The 1984 contract provides under article XVII:
Section (d) Panels
Employees who are idle because of a reduction in
the working force shall be placed on a panel from
which they shall be returned to employment on the
basis of seniority as outlined in section (a). A panel
member shall be considered for every job 'which he
has listed on his layoff form as one to which he
wishes to be recalled. Each panel member may
revise his panel form once a year.
There was record evidence showing that the employ-
ees laid off from Black Star completed their "panel"
forms.
In view of the above, I agree with the union argu-
ment. The 1984 contract provides the basis on which em-
ployees are to be recalled from layoff. The Black Star
layoff occurred during the duration of the 1984 contract.
A grievance dealing with the former Black Star employ-
ees' rights to recall would arguably fall within those
terms of the 1984 agreement even though the recall op-
portunities did not occur until after that contract expired.
Respondent argues that the Union did not request that
their December 21 grievance be processed pursuant to
the terms of the 1984 contract. The record does show
that the Union did not originally specifically request that
the grievance should be processed under the 1984 con-
tract.
Respondent did advise the Union on January 13, 1989,
that it felt there was no grievance procedure available in
view of the fact that it and the Union "do not have a
collective bargaining agreement and thus there is no
grievance procedure."
However, by telegram dated January 5, 1989, the
Union advised Respondent, inter alia:
UMWA is agreeable to processing greivances [sic]
under the terms of the 1984 Contract this is without
waiving our position that greivances [sic] are also
subject to being processed under the terms of Black
Diamond's implemented contract offer.
But, on January 16, 1989, the Union's attorney wrote
Respondent's attorney (in part):
Finally, the Union does take the position that
Black Diamond is obligated to process grievances
up to and including arbitration if necessary. The
Union takes this position in view of the fact that
Black Diamond has implemented its final contract
proposal which provides for a grievance procedure
and arbitration. Should Black Diamond decline to
process pending grievances, appropriate legal action
will be instituted.
On January 24, 1989, Respondent's attorney responded
to the Union's attorney, in which he, among other
things, contended:
Black Diamond did not institute the grievance and
arbitration procedure nor did it institute "its final
contract proposal."
Unlike the Union, General Counsel, at the hearing and
in her brief, does not argue, in the alternative, that Re-
spondent is obligated to process the grievance under an
implemented contract. General Counsel argues that Re-
spondent violated the Act by refusing to process the
grievance under the established grievance procedure-a
procedure allegedly established through the 1984 collec-
tive-bargaining contract.
The record does not show that Respondent had any
responsibility to process the grievance under an imple-
mented contract. The record evidence on that point
shows confusion. The Union did argue in some of its
correspondence with Respondent, that Respondent had
implemented its last contract proposal. However, Re-
spondent denied that it had instituted new grievance and
arbitration provisions. While the record shows that the
parties made the above arguments to each other, the
record does not show that Respondent instituted, or im-
plemented, a proposed contract which included griev-
ance procedures.
Therefore, I find that the record failed to show that
Respondent established through implementation after
bargaining or notice, a new grievance procedure. I find
that the established grievance procedure at material times
was the procedure outlined in the 1984 contract. That es-
tablished procedure was not replaced by another agree-
ment, nor was it canceled through bargaining or other-
wise.
Nevertheless, Respondent in his brief, makes additional
persuasive arguments which are rooted in the events re-
garding the grievance and other relations between the
Union and Respondent. Some issues alleged by Respond-
ent are rooted in facts mentioned above including expira-
tion of the 1984 contract, the strike, the recall, the lease
of the Black Star Mine, the early and the late (after Jan-
uary 1989) grievances, and the confusion as to which
contract governed the December 21 grievance.
Respondent's arguments include:
Section 10(b) of the Act
Respondent argues that the complaint is time barred
by Section 10(b) of the Act.
A provision of Section 10(b) establishes a time beyond
which a complaint alleging unfair labor practices, is
barred. That provision follows:
Provided, That no complaint shall issue based upon
any unfair labor practice occurring more than six
BLACK DIAMOND COAL MINING CO.
months prior to the filing of the charge with the
Board and the service of a copy thereof upon the
person against whom such charge is made ... .
Here, the "charge" was filed on March 8, 1989. A
consideration of Section 10(b) must examine whether the
alleged unfair labor practice occurred more than 6
months before that date , i.e., before September 8, 1988.
Respondent argues that if the allegations of the com-
plaint constitute unfair labor practices , then those unfair
labor practices stem from an action of Respondent
during February 1988 , when, according to the testimony
of Union Local President J. C. Majors , Respondent first
refused to process grievances because the collective-bar-
gaining agreement had expired.
As to the operative facts, the record shows that the
collective-bargaining agreement expired on January 31,
1988. Thereafter, according to the undisputed testimony
of Majors, which I credit, Respondent did refuse to
process a number of grievances on the grounds that
there was no longer a grievance procedure available
since the collective -bargaining agreement had expired.
The credited testimony of J. C. Majors shows that Re-
spondent first refused to process grievances in February,
1988, and that they have taken that same position con-
sistently in refusing to process grievances since that date.
The Board recently considered Section 10(b):
We initially note that Section 10(b) provides that
"no complaint shall issue based upon any unfair
labor practice occurring more than six months prior
to the filing of the charge with the Board . . .."
The intended purpose of this proviso is that, in the
absence of a properly served charge on file, a party
is assured that on any given day its liability under
the Act is extinguished for any activity occurring
more than 6 months before. [Chemung Contracting
Corp., 291 NLRB 773 (19;8)].
The question here must be, did the unfair labor prac-
tice occur more than 6 months prior to the filing. In
other words , did the-unfair labor practice occur when
Respondent first refused to process a union grievance
after the contract expired , or, was there a series of unfair
labor practices which must be considered as initiating
separate 10(b) periods.
Section 10(b) is that section of the Act which estab-
lishes finality. The question arises, is there some point
beyond which the instant action against Respondent
would be untimely. Suppose, for discussion , that the
Union had not filed the instant charge . Instead they had
waited a number of years during which the Union con-
tinued to file grievances and the Respondent continued
to refuse to process grievances , contending that the
grievance procedure expired with the contract on Janu-
ary 31 , 1988 , until finally in, say 1995, the Union had
filed a charge similar to the instant charge . Legislatures
and courts have traditionally tried to avoid situations
where persons and legal entities could not, at some defi-
nite point in time, rest assured that particular legal ques-
tions from the past , could not recur.
783
Following Chemung Contracting, the Board made a
similar determination in American Commercial Lines, 291
NLRB 1066, 1081 (1988):
In Chemung, we distinguished Farmingdale Iron
Works, 249 NLRB 98 (1980), enfd. mem. 666 F.2d
910 (2d Cir. 1981), from cases such as the instant
one. Specifically, we noted that Farmingdale in-
volved a charge filed during the term of an existing
collective-bargaining agreement regarding the cessa-
tion of contractually required periodic benefit fund
payments. Because the contract was still running,
we noted that the General Counsel did not need to
reach beyond the 10(b) period for evidence to sup-
port the charge. In other words, the "separate and
distinct" violations in Farmingdale were provable
by evidence within 6 months of the filing of the
charge. In Chemung and in this case, by contrast,
the Respondents' breach, of their statutory obliga-
tions could be established only by producing evi-
dence of an unequivocal cessation of fund payments
outside the 10(b) period.
In Chemung Contracting and in American Commercial
Lines, the employer unilaterally stopped contributing to
employee benefit funds at a point in time more than 6
months before charges were filed. The employer contin-
ued to refuse to make those benefit payments. However,
the Board found that the critical refusal was the initial
refusal and that the complaint was barred by Section
10(b) as to the allegation regarding 'the unilateral change
of refusing to make the benefit payments.
However, in Manitowoc Engineering Co., 291 NLRB
915 (1988), the Board found that by continuing to apply
an unlawful collective-bargaining contract, provision, an
employer continued to violate the Act and a complaint
was not barred by Section 10(b) even though the original
application of the unlawful provision occurred over 6
months before the charge.
Which of the above cases is more applicable in this
matter. Are we dealing with a continuing violation simi-
lar to that in Manitowoc, separate and distinct violations
as in Farmingdale, or, is this a matter similar to the situa-
tion in Chemung Contracting or American Commercial?
In Chemung and in American Commercial, the collec-
tive-bargaining agreement had expired. In Manitowoc, the
contract remained in force. Here, the contract had ex-
pired and, in fact, it was to the expiration of the con-
tract, that the Respondent pointed in claiming that the
grievance procedure had also expired.
Farmingdale and Manitowoc, present other interesting
areas. In both those cases a finding that , Section 10(b)
would have precluded a complaint, would, in effect,
have required Unions, and employees, to consider filing
unfair labor practice charges more often rather than
resort to existing collective-bargaining contractual reme-
dies. If Farmingdale and Manitowoc had gone the other
way, Unions and employees would risk losing the right
to file if they delayed beyond 6 months.
In both those cases, the contracts were in force. It has
been the Board's practice of favoring resolution of dis-
putes through contractual, rather than Board, proceed-
784 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ings. The Farmingdale and Manitowoc decisions were in
line with that Board practice.
Chemung and American Commercial involved situa-
tions where the contractual remedies had ceased to exist.
There the actions of the Respondents were in clear viola-
tion of prior contractual requirements. The Board could
not, by upholding a complaint, encourage contractual
resolution in those cases. The employers had made it
clear that they would not apply expired contractual pro-
visions. By forcing the potential charging parties to file
within 6 months in Chemung or American Commercial,
the Board did not discourage use of contractual proceed-
ings. That alternative no longer existed. When viewed in
this light, the decisions in Farmingdale, Manitowoc, Che-
mung, and American Commercial, all follow a consistent
pattern.
Here, the Respondent made it clear in February 1988,
that, it would no longer recognize and apply contractual
grievance proceedings. Contractual proceedings were no
longer available to the Union. Therefore, a ruling which
would encourage early filing of unfair labor practice
charges would not discourage voluntary contractual res-
olution proceedings. Here, there does not appear to be
the same compelling argument to discourage application
of Sections 10(b) that existed in Farmingdale and Man-
itowoc. Viewed in light of this particular consideration, it
would appear that a finding that Section 10(b) bars the
instant complaint, would be in order.
On the other hand, Chemung and American Commer-
cial presented situations where the employers continued
similar actions, i.e., the continuing refusal to make pay-
ments to employee benefit funds. In those cases the em-
ployer's affirmative action occurred at a point outside
the 10(b) period, i.e., at a time beyond Section 10(b) the
employer directed its paymaster to cease making benefit
payments. Subsequently, of course, it was not necessary
for the employer to take further action. The employers
in those cases did not repeat on each pay period its af-
firmative action of ceasing to make payments. After its
action to rescind the payments, no further action was
necessary. In those instances, in order for General Coun-
sel to prove a violation, it was necessary for General
Counsel to go outside Section 10(b) to show when the
employer affirmatively took action to stop the payments.
Here, there were separate and distinct grievances filed
throughout the period in question, even though the Re-
spondent consistently gave the same reason for refusing
to process the grievances. Moreover, here, it was not
necessary for the General Counsel to present evidence of
the earlier grievances in order to prove her case.
The above factor almost falls within the restrictive lan-
guage in American Commercial:
Because the contract was still running, we noted
that the General Counsel did not need to reach
beyond the 10(b) period for evidence to support the
charge. In other words, the "separate and distinct"
violations in Farmingdale were provable by evi-
dence within 6 months of the filing of the charge.
[American Commercial Lines, 291 NLRB at 1081.]
Here, while the contract was not still running, it never-
theless appears that the General Counsel did not need to
reach beyond the 10(b) period for evidence to support
the charge. In fact, General Counsel appeared content to
rest after offering proof as to the December 21 griev-
ance. General Counsel did not seek to prove that earlier
grievances were filed and rejected.
This is a close call. It is difficult to discern definitive
guidelines for application of Section 10(b) under current
circumstances. However, I have decided to rest on the
above language from American Commercial, in determin-
ing that Section 10(b) does not bar prosecution of this
matter. It was not necessary for General Counsel to go
beyond the 10(b) period in order to prove her case.
Therefore, I find, in accord with the language but in op-
position to the outcome in American Commercial, that
this matter is not barred by Section 10(b).
Refusal to Supply Information
Respondent also contends that the complaint should be
dismissed because the Union failed to supply it with in-
formation pursuant to its request. Respondent contends
that by failing to supply Respondent with the contract
on which it based its grievance, the Union failed to
supply information as required in jurisprudence includ-
ing, among others, M & M Contractors, 262 NLRB 1472
(1982).
In M & M Contractors, the Board found that the Union
insisted on continually avoiding or delaying bargaining.
Here, the record does not support such a finding. In re-
sponse to the Respondent's request, the Union did advise
Respondent that they were seeking to process the De-
cember grievance under the established grievance proce-
dure which the Union argued alternatively, was estab-
lished under either the 1984 contract, or under an imple-
mented contract. Despite Respondent's disagreement
with the Union's right to claim alternate basis for show-
ing an established procedure, there was no showing that
the Union failed to inform Respondent of its position.
Therefore, I find that the Union did not fail to supply
the Respondent with requested information.
CONCLUSIONS OF LAW
1. Black Diamond Coal Mining Co. is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. United Mine Workers of America is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. The Union has been and continues to be the exclu-
sive representative for the purposes of collective bargain-
ing of the following employees:
All employees of the Employer engaged in the pro-
duction of coal, including removal of overburden
and coal waste, preparation, processing and clean-
ing of coal and transportation of coal (except by
waterway or rail not owned by the Employer),
repair and maintenance work normally performed at
the mine site or at a central shop of the Employer
and maintenance of gob piles and mine roads, and
work customarily related to all of the above but ex-
BLACK DIAMOND COAL MINING CO. 785
cluding all coal inspectors and weight bosses at
mines where men are paid by the ton, watchmen,
clerks, engineering and technical forces of the Em-
ployer, working at or from a district or local mine
office, supervisors, mine foremen, and assistant mine
foremen.
3. Respondent, by discontinuing unilaterally, and by
failing and refusing to process, grievances through the
established grievance procedure, has violated Section
8(a)(5) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act. I
recommend that Respondent be ordered to resume proc-
essing of grievances through the established grievance
procedure.
[Recommended Order omitted from publication.]