Buck Creek Coal

National Labor Relations Board - Board Decisions

May 6, 1993

310 N.L.R.B. 1240 (N.L.R.B. 1993)

1240
310 NLRB No. 214
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On February 23, 1992, the Respondent’s employees voted against
ratification of a tentative agreement negotiated by the Respondent
and the Union. In describing the terms of the rejected agreement, the
judge erroneously found that the ‘‘final written proposal’’ made no
mention of shift rotation. In fact, the rejected tentative agreement’s
management-rights provision provides for the Respondent’s right to
rotate work shifts. Nevertheless, as the tentative agreement was re-
jected and, as the judge found, the parties did not bargain to im-
passe, neither the terms of a final agreement nor the course of bar-
gaining privileged the Respondent’s unilateral imposition of a shift
rotation plan on about March 30, 1992. Moreover, we note that a
waiver of bargaining rights contained in a contractual management-
rights provision normally is limited to the time during which the
contract that contains it is in effect. Holiday Inn of Victorville, 284
NLRB 916 (1987).
2 In fashioning a remedy for the Respondent’s unilateral implemen-
tation of a shift rotation plan in violation of Sec. 8(a)(5) and (1),
the judge ordered an extension of the Union’s certification year
under Mar-Jac Poultry Co, 136 NLRB 785 (1962). Because there is
no evidence that this single unilateral change had any meaningful
impact on the course of contract negotiations at the bargaining table,
we find that a Mar-Jac remedy is not warranted. American Rubber
& Plastics Corp., 200 NLRB 867, 876–877 (1972). See also gen-
erally Litton Systems, 300 NLRB 324, 330 (1990), enfd. 949 F.2d
249 (8th Cir. 1991) (unlawful unilateral changes insufficient to es-
tablish overall bad-faith or surface bargaining in absence of evidence
that changes linked to ongoing negotiations so as to frustrate reach-
ing of an agreement).
Buck Creek Coal, Inc. and United Mine Workers of
America. Case 25–CA–21903
May 6, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On December 15, 1992, Administrative Law Judge
Walter H. Maloney issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the Charging Party filed a reply brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions as modified and to adopt the recommended
Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Buck
Creek Coal, Inc., Sullivan, Indiana, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order as modified.
1. Substitute the following for paragraph 1(b).
‘‘(b) Refusing to bargain with the United Mine
Workers of America as the exclusive collective-bar-
gaining representative of the Respondent’s production
and maintenance employees employed at its Sullivan,
Indiana coal mine, excluding office clerical employees,
professional employees, guards, and supervisors as de-
fined in the Act, concerning implementation of a shift
rotation plan.’’
2. Substitute the following for paragraph 2(b).
‘‘(b) On request, bargain collectively in good faith
with the Union as the exclusive collective-bargaining
representative of the employees in the above-described
bargaining unit concerning implementation of a shift
rotation plan.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT unilaterally impose on bargaining unit
employees a shift rotation plan or any other term or
condition of employment.
WE WILL NOT refuse to bargain with the United
Mine Workers of America as the exclusive collective-
bargaining representative of the production and mainte-
nance employees employed at our Sullivan, Indiana
coal mine, excluding office clerical employees, profes-
sional employees, guards, and supervisors as defined in
the Act, concerning the implementation of a shift rota-
tion plan.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
rights guaranteed to them by Section 7 of the Act.
WE WILL discontinue our shift rotation plan, restore
our former straight shift practice, and maintain the
straight shift practice formerly in effect until the Union
has consented to a change or we have bargained in
good faith with the Union to impasse.
WE WILL, on request, bargain collectively in good
faith with the Union as the exclusive collective-bar-
gaining representative of the employees in the above-
described bargaining unit concerning implementation
of a shift rotation plan.
BUCK CREEK COAL, INC.
John Petrison, Esq., for the General Counsel.
Terry M. Brooks, Esq., of Nashville, Tennessee, for the Re-
spondent.
Kevin Fagan, Esq., of St. Louis, Missouri, for the Charging
Party.
1241BUCK CREEK COAL
1 The principal docket entries in this case are as follows
Charge filed by United Mine Workers of America (the Union or
UMWA) against the Respondent on April 13, 1992; complaint issued
against the Respondent by the Regional Director for Region 25 on
June 19, 1992; Respondent’s answer filed on July 1, 1992; hearing
held in Sullivan, Indiana, on October 14, 1992; briefs filed with me
by the General Counsel, the Charging Party, and the Respondent on
or before November 9, 1992.
2 Respondent admits, and I find, that it is an Indiana corporation
which maintains its principal place of business in Sullivan, Indiana,
where it is engaged in the mining and sale of coal. During the past
12 months, the Respondent has purchased and received at its Sul-
livan, Indiana place of business directly from points and places out-
side the State of Indiana goods and services valued in excess of
$50,000. Accordingly, it is an employer engaged in commerce within
the meaning Sec. 2(2), (6), and (7) of the Act. The Union is a labor
organization within the meaning of Sec. 2(5) of the Act.
3 Certain changes in the transcript have been noted and corrected.
4 The Laswell operations, both at the Red Bird Mine and the Buck
Creek Mine, had been nonunion.
5 Pieper did not attend any bargaining sessions.
6 The bathhouse is an area where employees change clothes and
shower before and after work. Safety meetings and general employee
meetings are normally held each week during shift changes at this
location.
DECISION
STATEMENT OF THE CASE
WALTER H. MALONEY, Administrative Law Judge. This
case came on for hearing before me at Sullivan, Indiana, on
an unfair labor practice complaint,1 issued by the Board’s
Regional Director for Region 25, which alleges that Re-
spondent Buck Creek Coal, Inc.2 (sometimes referred to as
Coal) violated Section 8(a)(1) and (5) of the Act. More par-
ticularly, the complaint alleges that the Respondent unilater-
ally changed the shift assignment of its production employ-
ees from straight shifts to rotating shifts in derogation of its
duty to bargain with the Union the certified representative of
its production and maintenance employees. The Respondent,
although admitting that the change was made unilaterally, as-
serts that it was privileged to do so because the parties were
at a bargaining impasse and because of its past practice. On
these contentions the issues here were joined.3
FINDINGS OF FACT
A. The Unfair Labor Practices Alleged
In 1989, a new coal mine, known as the Buck Creek
Mine, began operations in Sullivan County, Indiana. It is an
underground mine, having a 300-foot shaft, where both high
sulphur and low sulphur coal can be mined. Many of the em-
ployees who built the mining facility and who began its op-
erations had previously been employed by the Laswell Coal
Company (Laswell) at the Red Bird Mine, some 25 miles
away in Green County, Indiana. As the Red Bird location be-
came mined out, the Buck Creek Mine became phased in.
Originally, Laswell owned the mining rights to the Buck
Creek Mine, as well as the physical assets of the mine, but
it assigned the rights to mine the coal, well as the physical
assets, to Buck Creek Mining, Inc. (Mining); however, it
stayed on as the contract operator of the facility, and hence
the employer of the miners, under an agreement with ‘‘Min-
ing.’’ ‘‘Mining’’ is owned by Walter J. Pieper, who is also
a president of the Respondent in this case.
In June 1991, the Respondent, Buck Creek Coal, Inc., was
incorporated and, on or about July 1, 1991, became the oper-
ator of the Buck Creek Mine under contract with ‘‘Mining,’’
thereby replacing Laswell. The Laswell employees were car-
ried over by the Respondent and became its employees. An-
other corporate shakeup occurred on or about March 1, 1992.
Pieper bought control of the Respondent operating company
and sold some, but not all, of his interest in the leasing com-
pany. With the advent of Pieper’s control of the Respondent,
new management was brought into the Respondent operating
company. Specifically, David L. Steele was hired as vice
president in charge of operations. Previously, Steele had run
a coal industry consulting firm and had, in that capacity,
made a management survey of the functioning of the Buck
Creek Mine.
In 1990, a representation election was conducted among
the production and maintenance employees at the Buck
Creek Mine. At that time, they were Laswell employees.4
(Case 25–RC–8962.) The election resulted in a tie vote, with
five challenges. After some postelection litigation, an agree-
ment was executed between the Respondent, as Laswell’s
successor, and the Union, for a rerun election, which oc-
curred on October 31, 1991. The Union won this election
and was certified on December 18, 1991.
Following the certification, bargaining occurred at seven
different sessions in January and early February 1992. The
Union’s chief negotiator was Roger T. Myers, the UMWA’s
International executive board member from Indiana. The
principal company negotiator was Terry M. Brooks, its labor
counsel. Pieper acknowledged in his testimony that, even
though he technically had no connection with the Respondent
operating company at that time, he sat in on management
strategy sessions and kept abreast of the progress of the ne-
gotiations.5 On February 14, after seven bargaining meetings,
the parties arrived at a tentative agreement which had been
reduced to writing. It was referred to the membership of the
Union for ratification. On February 23, the Company’s offer
was rejected by a vote of 60 to 13. Myers informed Brooks
immediately of the outcome of the election, said he was
going to get back to the membership to find out what they
found objectionable in the offer, and told Brooks he would
contact him for another meeting. He suggested to Brooks that
they let things ‘‘cool off’’ for a while.
On March 1, new management took control of the Re-
spondent. On or about March 23 at a ‘‘bathhouse meeting’’
of employees,6 the Respondent made several announcements
including one which stated:
(6) This week’s plan: We will be running five days this
week. Beginning Sunday March 29, 992, with third
shift we will begin our shift rotation with crews, as
shown on the attached sheet. You will receive a copy
of the schedule with your paycheck.
The schedule referred to in the announcement outlined three
4-week shift assignments through June 21. It read:
NORTH: A CREW—PRODUCTION
B CREW—PRODUCTION
C CREW—MAINTENANCE
1242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 A typical Laswell shift rotation plan read:
Four Rotating Shifts
Grave—11–7
Crew # 1 Henry
Day—7–3 Crew # 2 Paul
Swing—3–1 Crew # 3 Mark
Crew # 4 Bill
SOUTH: A CREW—PRODUCTION
B CREW—MAINTENANCE
C CREW—PRODUCTION
First 4 Weeks: March 30, 1992–April 26, 1992
A Crew B Crew C Crew
6 a.m.–3 p.m. 3 p.m.–12 a.m. 11 p.m.–7 a.m—NORTH
7 a.m.–4 p.m. 3 p.m.–11 p.m. 10 p.m.–7 a.m.—SOUTH
Second 4 Weeks: April 27, 1992–May 24, 1992
B Crew C Crew A Crew
6 a.m.–3 p.m. 2 p.m.–10 p.m. 9 p.m.–6 a.m.—NORTH
7 a.m.–3 p.m. 2 p.m.–11 p.m. 11 p.m.–8 a.m.—SOUTH
Third 4 Weeks: May 25, 1992–June 21, 1992
C Crew A Crew B Crew
6 a.m.–2 p.m. 11 p.m.–10 p.m. 10 p.m.–7 a.m.—NORTH
7 a.m.–4 p.m. 4 p.m.–1 a.m. 12 a.m.–8 a.m.—SOUTH
GENERAL INSIDE, BELT MECHANICS, ROVING MECHANICS
AND THE SURFACE PEOPLE WILL ROTATE WITH THEIR
CREWS EVERY 4 WEEKS. THESE GROUPS WILL ALL WORK
8-HOUR SHIFTS. THE THREE SHIFTS WILL BE: 7 a.m.–3
p.m. 3 p.m.–11 p.m. 11 p.m.–7 a.m.
Shift rotation, as outlined above, began as scheduled on
March 30 and was still in effect on October 14, the date of
the hearing in this case. As noted in the schedule, the shifts
assigned to production crews were enlarged from 8 hours to
9 hours, thereby reducing Saturday overtime.
Respondent points out that, during the operation of the
Red Bird Mine, Laswell engaged in shift rotation for the ma-
jority of the duration of that mine. During its first year at
the Buck Creek Mine, Laswell continued to engage in shift
rotation. However, the type of shift rotation used by Laswell
differed in some respects from the shift rotation imposed on
March 23, 1992, by the Respondent. Laswell operated on a
7-day-week basis, so its shift assignments reflected this fact.
A given crew would work 5 days, be off 1 day, change
shifts, work another 5 days, and take a 2-day break and
change shifts again so that there would be full-time, around-
the-clock operations every Saturday and Sunday.7
WEEK SHIFT MON. TUES. WED. THUR. FRI. SAT. SUN.
1st/April 17–23 Grave 4 4 4 4 4 3 3
Day 2 1 1 1 1 1 4
Swing 3 3 3 2 2 2 2
2d/April 24–30 Grave 3 3 3 2 2 2 2
Day 4 4 4 4 3 3 3
Swing 2 1 1 1 1 1 4
3d/May 1–7 Grave 2 1 1 1 1 1 4
Day 3 3 2 2 2 2 2
Swing 4 4 4 4 3 3 3
Laswell engaged in shift rotation at the Buck Creek Mine
for only about a year. For the most part, it limited shift rota-
tion to production crews, keeping the maintenance crew per-
manently on the day shift. The amount of work on rotating
shifts varied from month to month and declined to nothing
in May 1990. Respondent admits that, when it inaugurated
its shift rotation plan on March 29, 1992, its crews had been
working straight shifts, at fixed hours, for about 23 months,
although individual employees may have been transferred
from shift to shift, usually on request. Respondent also ad-
mits that it imposed its shift rotation plan unilaterally. At no
time did it inform the Union in advance of what it wished
to do nor did it offer to bargain with it over this change.
Bargaining sessions resumed between the Union and the
Respondent on April 9. To the date of the hearing some 14
sessions have occurred but the parties have not reached an
agreement, nor has the Union consented to the new shift ro-
tation plan.
B. Analysis and Conclusions
The Supreme Court stated in NLRB v. Katz, 369 U.S. 736
at 746 (1962):
A refusal to negotiate in fact as to any subject which
is within Section 8(d), and about which the Union seeks
to negotiate, violates Section 8(a)(5) of the Act though
the employer has every desire to reach agreement with
the union upon an over-all collective agreement and
earnestly and in all good faith bargains to that end. We
hold that an employer’s unilateral change in conditions
of employment under negotiation is similarly a viola-
tion of Section 8(a)(5), for it is circumvention of the
duty to negotiate which frustrates the objectives of Sec-
tion 8(a)(5) much as does a flat refusal.
The Respondent admits in its brief that shift changes are a
mandatory subject of bargaining within the ambit of Section
8(d) of the Act. Georgia-Pacific Corp., 275 NLRB 67
(1985). Notwithstanding this concession, it argues that it was
not obligated to bargain over the shift changes at issue in this
1243BUCK CREEK COAL
8 Record evidence indicates that in Indiana, no unionized under-
ground mines employ shift rotation nor do surface mines. Elsewhere
in the region, a majority but not all unionized underground mines
utilize shift-rotation policies though surface mines do not.
9 At no time until the date of the hearing in this case did the Re-
spondent advance a claim of impasse as justification for its action.
case because its shift changes were part of a past practice,
as well as part of the general practice of the industry in
which it is engaged.
In the seven bargaining sessions which preceded the for-
mulation of the proposed contract that the union membership
voted down on February 28, there was no discussion of shift
rotation nor was there any mention of shift rotation in the
final written proposal itself. Respondent points out that
Laswell engaged in shift rotation, both at the Red Bird Mine
and at Buck Creek, up to May 1990, and on those facts ar-
gues that it too was entitled to switch back and forth from
straight shift to rotating shifts because such changes were
part of its normal procedure, as the employer did with indi-
vidual shift assignment of broadcasting personnel in KDEN
Broadcasting Co., 225 NLRB 25 (1976). Respondent’s reli-
ance on that line of cases is wholly misplaced. What the
facts of this case indisputably establish is that, from the date
of its inception as a corporation and as a mine operator in
the summer of 1991, the past practice of this Respondent
was to operate on a straight-shift basis. Moreover, the mine
it was operating had been on a straight-shift basis for nearly
2 years at the time the new rotation plan was imposed. The
change in question was not a routine or nominal revision of
its operating procedure but a major alteration in the lives and
the working times of its entire work force. The change was
‘‘material, substantial, and significant,’’ as the Board used
those words in Angelica Healthcare Services, 284 NLRB 44
(1997), and it cannot be swept aside to a nonbargainable cat-
egory because it was somehow trivial in character.
Respondent attempted to put in the record some testimony
to the effect that it should be excused from bargaining about
shift changes because other employers in the same industry
ploy a shift rotation policy. The argument is irrelevant, even
if true,8 because in unionized coal mines such policies are
necessarily a matter of negotiation and agreement between
the employers and unions involved there. If this Employer
had negotiated in good faith with this Union over shift rota-
tion at this mine and had obtained union assent, it too could
have implemented a shift rotation program, but it did not do
so. Its duty to the Union here is defined by the parameters
of the bargaining unit at this coal mine and that duty cannot
be modified or satisfied by what some other employer and
some other union have done in some other bargaining unit.
Belatedly, the Respondent attempted to justify its action
because of an asserted impasse in bargaining which would
permit it to implement preimpasse offers which had been
made in good faith to the bargaining agent of its employees.
Belated or not,9 there is no factual foundation in the cord for
this contention. At no time throughout the bargaining which
occurred up to the date the membership of the Union rejected
the Company’s offer had the Respondent ever proposed to
adopt a shift rotation program. In light of this history, it is
frivolous for the Respondent to contend that the parties were
at impasse over an issue which was never on the bargaining
table. Moreover, the fact that the union membership rejected
the total company proposal does not define an impasse, espe-
cially where, as here, the parties have resumed bargaining
and have met a total of 14 times since the date of the con-
tract rejection in order to compose their differences. In order
for an employer to claim impasse as a justification for taking
unilateral action, there must be an impasse over the total
contract proposal, not just an impasse on one item. Fire-
fighters, 304 NLRB 401 (1991). Nothing remotely approach-
ing that situation has occurred in this case. Accordingly, this
defense must be rejected. What occurred here is that new
management took over the operating company at the Buck
Creek Mine and decided, without consulting or discussing
the matter with the Union, to impose a revised shift plan
which it felt might improve production at its facility. Al-
though the desirability of such a move might well be justi-
fied, either on the basis of increased safety, increased pro-
duction, or flexibility in moving employees from one part of
the mine to another as the dictates of its scheduling require,
it is not for the Board to pass on the desirability of such a
measure and, finding it to be an appropriate exercise of busi-
ness judgment, approve its use at the Buck Creek Mine. The
change in question was a material, if not a radical, alteration
of past practice and as a mandatory subject of collective bar-
gaining, had to be submitted to the give and take of negotia-
tion with the Union before it could lawfully be adopted. Be-
cause the Respondent admittedly failed to follow this proce-
dure before adopting shift rotation, it violated Section 8(a)(1)
and (5) of the Act in doing it. I so find and conclude.
CONCLUSIONS OF LAW
1. Buck Creek Coal, Inc. is now and at all times material
has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. United Mine Workers of America is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees employed
by the Respondent at its Sullivan, Indiana coal mine, exclud-
ing office clerical employees, professional employees,
guards, and supervisors as defined in the Act, constitute a
unit appropriate for collective bargaining within the meaning
of Section 9(a) of the Act.
4. Since on or about October 31, 1991, the Union has been
the exclusive collective-bargaining representative of all the
Respondent’s employees in the unit found appropriate in
Conclusion of Law 3 for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act.
5. By unilaterally instituting a practice of shift rotation
among its bargaining unit employees, the Respondent vio-
lated Section 8(a)(1) and (5) of the Act. The aforesaid unfair
labor practice has a close, intimate, and adverse effect on the
free flow of commerce within the meaning of Section 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondent here has engaged in
certain unfair labor practices, I will recommend that it be re-
quired to cease and desist therefrom and to take certain af-
firmative actions designed to effectuate the purposes and
policies of the Act. Among those affirmative actions will be
the discontinuance of the shift-rotation plan and the resump-
tion of straight-shift assignments, less and until the Union
here consents to a shift-rotation plan or the Respondent has
1244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
11 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
bargained in good faith to impasse over the proposal. As the
bargaining of the Respondent has, to date, been marred by
bad faith, I will recommend an extension of the certification
which was issued by the Board on December 18, 1991, for
a period of 9 months, to begin when the Respondent begins
to bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962). There is no suggestion that the
Respondent here did not bargain in good faith during the 3-
month period which elapsed between the certification date
and the date on which it ordered a unilateral change in its
shift assignment procedure. Accordingly, it will be given
credit for that period of time. Colfor, Inc., 282 NLRB 1173
(1987). I will also recommend that the Respondent be re-
quired to post the usual notice, advising its employees of
their rights and of the results in this case.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
ORDER
The Respondent, Buck Creek Coal, Inc., Sullivan, Indiana,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally imposing on bargaining unit employees a
shift rotation plan or any other term or condition of employ-
ment.
(b) Refusing to recognize and bargain collectively in good
faith with the United Mine Workers of America as the exclu-
sive collective-bargaining representative of the Respondent’s
production and maintenance employees employed at its Sul-
livan, Indiana, coal mine, excluding office clerical employ-
ees, professional employees, guards, and supervisors as de-
fined in the Act.
(c) By any like or related means interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies the Act.
(a) Discontinue its shift-rotation plan, restore its former
straight-shift practice, and maintain the straight-shift practice
formerly in effect unless and until the Union has consented
to a change Respondent has bargained in good faith with the
Union to impasse.
(b) Recognize and, on request, bargain collectively with
the Union as the exclusive collective-bargaining representa-
tive of the employees in the above-described bargaining unit.
The certification year covering the unit shall extend for a pe-
riod of 9 months from the date the Respondent begins to bar-
gain collectively in good faith with the Union in the above-
described bargaining unit.
(c) Post at the Respondent’s Sullivan, Indiana place of
business copies of the attached notice marked ‘‘Appen-
dix.’’11 Copies of the notice, on forms provided by the Re-
gional Director for Region 25, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.