Burgess Mining & Construction Corp.

National Labor Relations Board - Board Decisions

Oct 27, 1978

239 N.L.R.B. 92 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Burgess Mining & Construction Corporation and In-
ternational Union, United Mine Workers of Amer-
ica. Case ICA-- 13102
October 27, 1978
DECISION AND ORDER
BY MI-MBERS JENKINS, MUIRPHY. AND I RU. SI)AT.r1
On June 28, 1978, Administrative Law Judge Stan-
ley N. Ohlbaum issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the Charging Party
filed a brief in reply to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act. as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions' of the Administrative Law Judge and
to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Burgess Mining & C('on-
struction Corporation, Birmingham, Alabama, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, ex-
cept that the attached notice is substituted for that of
the Administrative Law Judge.2
In adopting the Decision of the Administrative Law, Judge we do biol
rely upon his Conclusion of Law 2 insofar as it finds that Respondent has
violated Sec 8(a)(51 and (1) of the Act "tb]s attempting to withdtaw its
membership in B(COA " While wc agree with the Adminisiralti. I a,
Judge that Respondents atltempted withdrawal from the mulliellploser
bargaining group was untimelb such withdrawal would not. In and of Itsclf.
be a siolation of Sec. 8(a)15). Rather. the Resptondent's refusal to hbargain
and to adhere to the negotiated contirait folloinew Ihe iiiltilllrls uilthdraiwal
coustitute the violation of Sec. 8(a)(5i and 1)i herein. Sec Ring.side Ilquor,
In(' d a I)ino'i lounge andt ( sotIi l n/iman. Inc. 237 Ni RB N, i. frn
2 Q978)
T- he Administrative I.;law Judge iriaderlcnill, faied to tmlilrOnll the nio-
tice with his recommended Order We shall correct the ntllice accoltdingl
APPENDIX
NoII c. To EMPLOYEES
Pos I LT BY ORDER OF I HE
NAIIONAL LABOR RELAIIONS BOARD
An Agency of the United States Government
WE Wtn l NOT fail and refuse to bargain collec-
tively, as a member of Bituminous Coal Opera-
tors' Association, Inc. (BCOA), with Interna-
tional Union, United Mine Workers of America
(UMWA), concerning wages, hours, rates of
pay, and other terms and conditions of employ-
ment of Respondent's employees in the appro-
priate bargaining unit described and set forth in
the collective agreement executed by and be-
tween BCOA and UMWA on or about March
25, 1978.
WE WILl. NOt in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their right to self-organization, to
form, join, or assist any labor organization, to
bargain collectively through representatives of
their own choosing, to engage in concerted ac-
tivities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain
from any or all of such activities.
WE WniTi give full force and effect to the col-
lective agreement entered into on our behalf by
Bituminous Coal Operators' Association, Inc.
(BCOA), with International Union, United
Mine Workers of America (UMWA), on or
about March 25, 1978, in accordance with all of
its terms, provisions, conditions, and require-
ments.
WE wui.. offer immediate reinstatement to all
of our employees who have been terminated,
separated, furloughed, displaced, transferred, or
otherwise affected in their jobs on the assump-
tion that the above agreement did not affect
them or us: and we will make them, as well as all
of our bargaining-unit employees, whole, plus
interest, for any loss of pay or benefits (includ-
ing overtime and holidays, as well as pension
and health and welfare contributions and reim-
bursement for hospitalization and medical ex-
penses), for all purposes as required under the
terms, provisions, conditions, and requirements
of that collective agreement.
Wti wi,ii as long as we are a member of
BCOA or bound by a collective agreement en-
tered into by BC'OA on our behalf, bargain in
good faith with UMWA through BCOA.
Bt RE(ilSS MINING & CONSIRU(IrION CORPORA-
I lON
92
BURGESS MINING & CONSTRUCTION CORPORATION
DECISION
STATEMENT OF THE CASEF
Issues
STANLEY N OHLBAUM. Administrative Law Judge: This
proceeding under the National Labor Relations Act, as
amended (29 U.S.C. § 151, et seq.), based on a December
22, 1977.1 complaint issued by the Regional Director for
Region 10, growing out of a September 21 charge of the
above Charging Party, was heard by me in Birmingham.
Alabama, on March 28, 1978, with all parties represented
throughout by counsel, who were afforded full opportunity
to present evidence and arguments, as well as to file briefs,
received, after unopposed applications of counsel for time
extensions, by May 30, 1978.
The ultimate issue presented is whether Respondent Em-
ployer violated Section 8(a)(5) and (1) of the Act by failing
and refusing to bargain collectively as a member of a mul-
tiemployer bargaining association, Bituminous Coal Oper-
ators Association, Inc. (BCOA), with the Charging Party,
International Union, United Mine Workers of America
(UMWA). Subordinate issues, raised by defense, are
whether Respondent timely withdrew from BCOA (I) prior
to the outset of collective negotiations or (2) upon the
reaching of alleged impasse in those negotiations.
Upon the basis of the entire record, observation of the
testimonial demeanor of the witnesses, and consideration
of the parties' briefs, I make the following:
an appropriate industrvwide collective-bargaining unit of
the BCOA members' employees and UMWA members.'
Uinder provisions of the National Bituminous ('oal
Wage Agreement of 1974, effective December 6, 1974. to
or through I)ecember 6. 1977,
4 to which Respondent was
concededly a signatory, ' BCOA and UMWA negotiators
met, by prearrangement," in Pittsburgh. Pennsylvania. on
August 30 ' to negotiate a new labor agreement. Included
among the subjects discussed by the negotiators at the Au-
gust 30 initial negotiating session were pension "equaliza-
tions" under the 1950 and 1974 pension plans,. "realloca-
tion" of health benefits, a union demand for guaranteed
health benefits and pensions (in view of alleged employer
cutbacks or reductions therein), and a methodology for
preventing future work stoppages. BCOA negotiators ex-
pressed concern over the cost of such pension and health
benefits guarantees and initiated exploration into how al-
leged "wildcat" strikes could be averted. Also, at the Au-
gust 30 negotiating session, ground rules were agreed upon
for the conduct of the remainder of the negotiations, in-
cluding the locale for future meetings, a restriction on news
releases by anyone other than the chief negotiators for
each side, a ban on transcripts and night sessions, and aug-
mentation of the negotiating teams. It seems fair to charac-
terize the meeting of August 30 as a typical initial labor
agreement negotiation session, at which ground rules are
agreed upon and the more important labor demands are
presented.
Further negotiating sessions were held, the next one on
September 9 in Washington, D.C., and thereafter until at
FINDINGS AND CONCI.ILSIONS
I JURISDICTION
At all material times, Respondent Burgess Mining &
Construction Corporation, an Alabama corporation, has
been and is engaged in coal mining operations in or near
Birmingham, Alabama. During the representative year im-
mediately preceding issuance of the complaint, in the
course and conduct of that business enterprise, Respon-
dent sold and shipped directly in interstate commerce to
customers in places outside of Alabama coal valued in ex-
cess of $50,000.
I find that at all material times Respondent has been and
is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act; and that at all of
those times UMWA has been and is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts as Found
Respondent, an Alabama coal mine operator, held mem-
bership in BCOA, 2 a multiemployer bargaining association
which engaged in negotiations with UMWA on behalf of
All dates herein are in 1977. unless otherwise specified.
2 At the heanng, Respondent conceded that it became a member of
BOCA on Apnril 1, 1976.
The appropriateness of such multiemployer bargaining units has long
been recognized See. e.g. Tennesvee Consolidated Coml ( , or (;rundr U,,n
ing ( 'o 187 NL RB 821 19711; Shipowners'A.sociation of lhe Pacifc ( owrl,
r uat, 7 NLRB I002 (1938), review denied 103 F.2d 933 (D.C(. lr. 1939),
affd 308 U.S. 401 (1940). Such a multiemployer group is regarded as the
employer for bargaining purposes. with the usual statutory collectrive-bar-
gaining obligations toward the employees' representatives of the multiem-
ploverwide unit .V 1 R B Strong, dh :a StStrg Roofing d n.rulainmg (a,
393 t S 37 ( 1991
4 G C Esh 2.
seen though not listed In the B( (A membership list appended toi tha
agreement (GC. Exh 2, p. 1321.
Arrangements for the Initial bargaining session of August 30 were final-
ized on August 29 followilng work stoppages which had occurred during the
preceding weeks. The initial bargaining session on August 30 was attended
bs negotiators on both sides, including BCOA President Brennan and
I1M5WA President Mlller
Although an Item In the Union's news (Resp. Exh. 3) refers to Septernm-
her 9 as the first meeting and a further news item (Resp. Exh. 23) and a
BO(CA memorandum (Resp Exh. 261 refer to October 6 as a "formal open-
ing session" or as the date when "formal" negotiations "began." these are
patentl) in error. Uncontroserted proof establishes that, as herein described
and found. the first actual negotiating meeting was held on August 301
4itthout e planation, none of the B( OA negotiators identlfied in testimon, b,
UL 1 HA witnes and negotiator Ailhon -was produced to lesItifo tohe , ontrarv
Ai the August 30 negotiating session. UMWA negotiators emphasized
the need for economic "reallocation" or "equalization" of the miners' two
different existing pension funds, which at the time dispensed pension bene-
fits in differing amounts depending on the time of retirement in relation to
the particular (i e., older (1950) or newer (1974)) pension plan and fund
The program seeming an important substantive subject of significant inter-
est to the miners, the BCOA negotiators understandably expressed concern
over its cost as well as the cost of the pension and health and welfare
benefits for which the U MWA neeotiators sought "guarantees."
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
least February 1978, with agreement 9 concluded on or
about March 25, 1978.10
B. Defenses, Resolution, and Rationale
Conceding, in effect, that BCOA possessed the authority
to bind its members by its collective agreements,'' Respon-
dent contends that it is not bound by the BCOA-UMWA
collective agreement here because Respondent effectively
withdrew from membership in BCOA prior to the incep-
tion of the BCOA negotiations with UMWA; and, alterna-
tively, that even if that membership withdrawal was not
timely Respondent subsequently effectively withdrew from
BCOA membership when BCOA and UMWA reached an
impasse in their negotiations. I find and determine that
neither of these contentions is established in fact and that
neither is, accordingly, sound in law.
With regard, first, to Respondent's contention that it ef-
fectively withdrew from membership in BCOA prior to the
inception of BOCA-UMWA negotiations, Respondent's
proof shows that although on July 28 UMWA notified Re-
spondent of its intention to renegotiate the existing labor
agreement (National Bituminous Coal Wage Agreement of
1974),12 it was not until September 1, by letter delivered to
BCOA and UMWA on September 6 1 --subsequent to initia-
tion of BCOA-UMWA negotiations-that Respondent at-
tempted to withdraw its membership in BCOA. Respon-
dent's September I letter of attempted withdrawal from
BOCA also expressly states that "it is our intent that our
status as a member of BOCA is, and the same be, terminat-
ed immediately upon receipt of this letter by said BOCA."
(Resp. Exh 21.) The attached postal delivery receipt (id)
shows this letter was received by BCOA on September 6-
almost a week after the BOCA-UMWA negotiating session
of August 30.
Since Retail Associates, Inc., 120 NLRB 388 (1958),14 ab-
sent unusual circumstances (not here present), withdrawal
from a multiemployer bargaining unit by either the union
or an individual employer is ineffectual without timely
written notice of intention to withdraw, completed prior to
the date established for contract modification or the date
9 Charging Party's Exh. 1.
'°The peristalsis of these negotiations was labored, being marked by in-
terruptions, agreement drafting revisions, legal objections by counsel, and
rejection by UMWA membership. Ratification by UMWA membership in
March 1978 followed after Federal mediation attempts and other interven-
tion, including issuance of a temporary restraining order soon dissolved by
a Federal district court without issuance of a preliminary injunction.
I Such a concession comports with existing law. See fn. 3. supra.
12 Reap. Exh. 22. Respondent's contention that the Union's routine tech-
nical reopener notification removed Respondent from membership in
BCOA or its obligation to bargain through BOCA cannot be regarded with
seriousness. At no time did the Union indicate that it was withdrawing from
multiemployer bargaining or that it intended or desired to do so.
13Reap. Exhs. 21 and 20. Respondent's letters of the same date were
delivered to certain locals of UMWA on September 2 and 3 (Resp. Exhs. 17.
18, and 19)-also subsequent to initiation of BOCA-UMWA negotiations
on August 30.
4 See also Hearst Consolidated Publications, Inc., 156 NLRB 210 (1965),
enfd. 364 F.2d 293 (2d Cir. 1966), cert. denied 385 U.S. 971 (1966; attempt-
ed union withdrawal).
" Negotiation means, of course, actual negotiation and not merely, for
example, service of a request for a conference. Cf. Wayne Johnson. an Indi-
widual, d/b/a Carmichael Floor Covering Company, 155 NLRB 674 (1965).
enfd. 368 F.2d 549 (9th Cir. 1966). Under the facts presented, I find that
actual negotiation commenced here on August 30-prior to Respondent's
agreed upon for commencement of multiemployer negotia-
tion.' 5 After negotiation has commenced, withdrawal is un-
timely until impasse occurs.' 6 Sheridan Creations, Inc., 148
NLRB 1503 (1964), enfd. 357 F.2d 245 (2d Cir. 1966), cert.
denied 385 U.S. 1005 (1967); N.L.R.B. v. Beckham, Inc.,
564 F.2d 190 (5th Cir. 1977); The Carvel Company v.
N.LR.B., 560 F.2d 1030 (Ist Cir. 1977); N.LR.B, v. Good-
sell & Vocke, Inc., 559 F.2d 1141 (9th Cir. 1977); N.L.R.B.
v. Tulsa Sheet Metal Works, Inc., 367 F.2d 55 (10th Cir.
1966); Universal Insulation Corporation v. N.L.R.B., 361
F.2d 406 (6th Cir. 1966). As has been shown and found,
here negotiations had in fact commenced prior to Respon-
dent's attempted withdrawal from the multemployer bar-
gaining unit, and, as further shown and found, those nego-
tiations were not merely perfunctory but included
important substantive subjects of compelling significance
in labor negotiations-demands concerning pensions and
health and welfare benefits usually at the vital core of
labor's aspirations-affording a direct clue to the direction
of the negotiations and such as to encourage, once dis-
closed, defection from the ranks of the associated em-
ployers by those unwilling to even entertain such possibly
costly economic ameliorations, much less to join in acced-
ing to them.'7 To permit withdrawal from a functioning
multiemployer bargaining unit under these circumstances
would appear to be contrary to its basic purposes, as well
as to the public policy favoring multiemployer bargaining
as promoting the collective negotiation principle which is a
bedrock of the Act. In this situation, it is accordingly found
and determined that Respondent's attempted withdrawal
from the multiemployer unit here was untimely and thus
ineffectual.
We turn now to Respondent's second contention, that in
any event it timely withdrew from the multiemployer unit
when BCOA and UMWA reached bargaining "impasse."
To support this contention, Respondent calls attention to
the rocky course of the 1977-78 bituminous coal negotia-
tions, but perhaps especially to the March 1978 industry-
wide governmental application for injunctive relief under
Section 208 of the Act (29 U.S.C. § 178) against an inter-
vening catastrophic strike or strikes,' s of which Respon-
attempted withdrawal from the multiemployer bargaining unit.
16 While it is true that Respondent's attempted withdrawal antedated the
time established by the contract for termination reopener notification (i.e.,
prior to 60 days before December 6, 1977), BCOA had already commenced
multiemployer negotiations with UMWA at that time (i.e., on August 30).
prior to Respondent's attempted withdrawal. Even though it could be ar-
gued that theoretically this perhaps narrowed the time for an individual
employer's "escape" from his multiemployer bargaining commitment, it
would seem that the fair intendment of the Retail Associates (supra) and
Sheridan Creatons (infra) rules are against permitting such "escape" after the
collective negotiations have actually commenced. A contrary interpretation
would hardly promote that industrial place which is the Act's central pur-
pose, since it would encourage fragmentation of a bargaining unit engaged
in the actual process of bargaining if any of its members became dissatisfied
with its accomplishments or resistant to demands of the other side which are
acceptable to most or all of the other multiemployer participants.
7"Respondents contend that they effected a timely withdrawal because
the union only outlined vague requests at the sessions and, therefore, 'bar-
gaining' had not begun. ... Anyway, it would seem that once the parties
meet and discuss a new contract, 'bargaining' has begun, no matter how
speculative the discussion is." N.LR.B. v. Spunn-Jee Corporation and the
Jame Textile Corporation, 385 F.2d 379, 382 (2d Cir. 1967).
8s It is noted, in passing, that Respondent was among the summoned
parties to whom process in that proceeding was directed (Resp. Exh. 25).
94
BURGESS MINING & CONSTRUCTION CORPORATION
dent asks that official notice to taken. While I take official
notice of that proceeding (which names almost 1,500 de-
fendants) for historical or background purposes only, by
no means does it establish impasse for purposes of the in-
stant proceeding. A strike cannot be said to equate as a
matter of law with a negotiating impasse. It is well known
that negotiations frequently, if not usually, continue during
the pendency of a strike. A strike may thus be a mere
incident or phase in the course of labor negotiations. The
events here, so far as established, do not indicate the con-
trary, since the multiemployer negotiations not only con-
tinued during the strike but culminated in a settlement and
written contract which was ratified and executed. '9 It is
accordingly found and determined that it has not been es-
tablished by competent substantial proof, as required, that
impasse was reached in the negotiations of BOCA with
UMWA to warrant withdrawal by Respondent from the
BCOA bargaining unit on that basis.20
Accordingly, it being established that Respondent was at
all material times a member of BOCA, not having effec-
19 It is further to be observed that the papers relied upon by Respondent
as "establishing" an "impasse" in effect, as a matter of law, do no such
thing. They were merely papers on an application for a temporary restrain-
ing order or stay against a widespread or widening stnke or strikes Al-
though initially allowed for a brief period by the district court, the tempo-
rary restraining order was subsequently dissolved, without the granting of a
preliminary injunction, as stated on the record here by the Charging Parts
without challenge, upon the representation of the government that bargain-
ing was in process. The application had sought the cessation of stnke activi-
ty so that, in order to avoid a national calamity, coal could be continued to
be mined pending dispute resolution. That is not the issue presented here.
Furthermore, as is well known, in any event allegations m papers as well as
orders based upon papers containing conclusory allegations (even though
presumably warranted) in applications for temporary relief do not establish
facts-much less speculative inferences. such as now urged by Respon-
dent-binding upon a trier of fact at a subsequent adversary trial. Respon-
dent's contention of "impasse" is not here established in fact. On December
27, 1977 the president of BOCA himself stated in a letter to Respondent that
"it is the position of BOCA that at no time have the negotiations reached
the point of impasse." (Resp. Exh. 5.) It has not been established that the
situation changed between then and conclusion of the collective agreement
in March 1978.
20 Respondent attempted a series of withdrawals following its aforedes-
cribed tardy withdrawal in September. These covered a span from mid-
November (Resp. Exh. 14) through January 1978 (Resp. Exh. 8)-all during
the course of BOCA-UMWA negotiations. For reasons explicated above, all
were ineffectual. Respondent's "patriotic" appeal that it should be allowed
to escape from its BCOA membership obligation in order to alleviate energ)
shortages which threatened during the last stages of the coal industry crisis
in 1978 must be viewed in light of the fact that its last attempted with-
drawals from BCOA were in January, over a month before designation of
the presidential board of inquiry preceding the temporary injunction appli-
cation, which was subsequently withdrawn. Furthermore, it is very much an
open question whether, in the circumstances, individual bargaining with
hundreds of individual mine operators (with perhaps hundreds of local
unions) would have set off a coal crsis of stupendous and chaotic propor-
tions, dwarfing that which occurred and which was surmounted through
industrywide bargaining.
The consideration herein of Respondent's "impasse" defense is premised
on the assumed availability of that defense to an employer member of a
multiemployer bargaining association-a view the Board seems not to have
adopted, cf. Hi-Way Billboards, nc., 206 NLRB 22 (1973), enforcement
denied 500 F.2d 181 (5th Cir. 1974); cf.. also. N.L.R.B. v. Beck Engraving
Co., Inc., 522 F.2d 475 (3d Cir. 1975); N.LR.B. v. Associated Shower Door
Co., Inc., et at., 512 F.2d 230, 232 (9th Cir. 1975), cert. denied 423 U.S. 893
(1975); Fairmount Foods Company v. N.LR.B., 471 F.2d 1170, 1172 74 (8th
Cir. 1972). The point is that even assuming, arguendo, that such a defense of
withdrawal following impasse were available to Respondent, impasse has
not in fact or in law been established here by competent substantial evi-
dence as would in any event be essential.
tively withdrawn therefrom, Respondent is bound by the
collective labor agreement executed by BCOA with
UMWA on or about March 25, 1978, and Respondent's
failure to accord recognition thereto constitutes an unfair
labor practice in violation of Section 8(a)(5) and (1) of the
Act.
CONCLUSIONS OF LAW
I. Jurisdiction is properly asserted in this proceeding.
2. By attempting to withdraw its membership in BOCA
on and since September 1, 1977. under the circumstances
described and found in section II, supra, and failing and
refusing since said date to bargain with UMWA collective-
ly, as a member of BOCA, or to recognize or give effect to
the collective agreement executed by BOCA with UMWA
on or about March 25, 1978, Respondent has failed and
refused, and continues to fail and refuse, to bargain collec-
tively with its employees as required by the Act, thereby
engaging in unfair labor practices in violation of Section
8(aX5) of the Act.
3. Through its said actions Respondent has also inter-
fered with, restrained, and coerced its employees in the
exercise of their rights guaranteed in Section 7 of the Act,
and is continuing so to do, in violation of Section 8(aX 1) of
the Act.
4. The aforesaid unfair labor practices each have affect-
ed, affect, and unless permanently restrained and enjoined
will continue to affect, commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Respondent should be required to cease and desist from
violating the Act in or in anyway akin to the respects found
here. It should be required to bargain collectively with
UMWA as of August 30, 1977, as a member of BOCA, and
to give effect to the collective agreement between BOCA
and UMWA executed on or about March 25, 1978, in ac-
cordance with its terms, as the same may since then have
been duly modified; and to continue to bargain collectively
with UMWA as long as Respondent continues to be a
member of BOCA or bound by a collective agreement en-
tered into by BOCA on Respondent's behalf. Any of Re-
spondent's bargaining-unit employees who may have been
discharged, furloughed, or displaced in contravention of
the terms, provisions, and requirements of said collective
agreement should be required to be offered reinstatement
and other appropriate redress forthwith, with appropriate
backpay and interest. All such employees of Respondent,
as well as others in the unit, should be made whole for any
loss of pay, benefits, or perquisites (including contributions
to pension, health and welfare, and other funds and reim-
bursement for hospitalization and other costs which may
have been incurred by employees in the absence thereof),
due under the terms, provisions, and requirements of said
collective agreement; plus interest at the "adjusted prime
interest rate" as calculated by the Internal Revenue Service
on tax delinquencies (currently 7 percent, and as modified
from time to time by the Secretary of the Treasury until
compliance with the Order herein), computed as explicated
in F. W. Woolworth Companyr 90 NLRB 289 (1950), Isis
95
D)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plumbing & Heating Co., 138 NLRB 716 (1962), and Flor-
ida Steel Corporation, 231 NLRB 651 (1977). Respondent
should, as usual, be required to preserve and open its books
and records to the Board's agents for backpay computation
and compliance purposes. Finally, posting of the conven-
tional notice to employees should be required.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following rec-
ommended:
ORDER _l
The Respondent, Burgess Mining and Construction Cor-
poration, Birmingham, Alabama, its officers, agents. suc-
cessors, and assigns, shall:
I. Cease and desist from:
(a) Failing and refusing to bargain collectively, as a
member of Bituminous Coal Operators Association, Inc.
(BCOA), with International Union, United Mine Workers
of America (UMWA), concerning wages, hours, rates of
pay, and other terms and conditions of employment of Re-
spondent's employees in the appropriate bargaining unit
described and set forth in the collective agreement execu-
ted by and between BOCA and UMWA on or about
March 25, 1978.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
right to self-organization; to form, join, or assist any labor
organization; to bargain collectively through representa-
tives of their own choosing; to engage in concerted activi-
ties for the purposes of collective bargaining or other mutu-
al aid or protection, or to refrain from any and all such
activities.
2. Take the following affirmative actions, necessary to
effectuate the policies of the Act:
(a) Through BCOA, as of August 30, 1977, bargain col-
lectively in good faith with UMWA as the exclusive collec-
tive-bargaining representative of Respondent's aforesaid
bargaining-unit employees and embody in a signed agree-
ment any understanding reached; and continue to bargain
with UMWA through BCOA as long as Respondent is a
member of BCOA or as long as Respondent is bound by
any collective agreement entered into by BCOA on Re-
spondent's behalf.
(b) Give full effect to the collective agreement entered
into by and between BCOA and UMWA as of the date of
its execution (on or about March 25. 1978).
21 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National ahbor Relations Board. the findings.
conclusions, and recommended Order herein shall. as provided in Sec
102.48 of those Rules and Regulations. he adopted h) the Board and be-
come its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
(c) Offer to each of Respondent's employees who were
laid off, furloughed, separated, released, suspended, termi-
nated, or displaced, or whose job classification or employ-
ment status has in any manner been changed or affected
by reason of Respondent's failure and refusal to regard
itself as bound by the terms, conditions, provisions, and
requirements of the collective agreement entered into by
and between BCOA and UMWA on or about March 25,
1978, immediate, full, and unconditional reinstatement to
or employment in his or her former or substantially equiva-
lent position, and status for all purposes as stipulated for
bargaining unit employees by said collective agreement
from the inception thereof.
(d) Make each of said employees described in paragraph
2(c) of this Order, as well as all other employees of Respon-
dent in the aforesaid bargaining unit, whole for any loss of
pay (including all incremental and other increases, over-
time, holiday, and vacation pay), pension, health and wel-
fare, and other plan payments and contributions, hospitali-
zation, medical, surgical, and insurance benefits, and
claims and disbursements, for all purposes as required by
the terms and provisions of the aforesaid collective agree-
ment executed by and between BCOA and UMWA on or
about March 25, 1978, together with interest, computed in
the manner set forth in the remedy portion of the Decision
of which this Order forms a part.
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all em-
ployment and payroll records, wage scale records and no-
tations, social security payment records, timecards, person-
nel records and reports, pension records, production
records, shipping records and invoices, billings to custom-
ers, and all other records necessary to determine the
amounts of backpay and other sums and benefits due un-
der, and the extent of Respondent's compliance with, the
terms of this Order.
(f) Post at its places of business, including its minesites
and its offices, copies of the attached notice marked "Ap-
pendix." 22 Copies of said notice, on forms provided by the
Board's Regional Director for Region 10, shall, after being
signed by Respondent's authorized representative, be post-
ed in said premises by Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken to insure that said notices are
not altered, defaced, or covered by any other material.
(g) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
22 In the event that this Order is enforced by a judgment of a United
States Court of Appeals, the words in the notice "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National .abor Relations Board."
96