Canyon Coals

National Labor Relations Board - Board Decisions

Feb 24, 1995

316 N.L.R.B. 448 (N.L.R.B. 1995)

448
316 NLRB No. 84
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On September 19, 1994, Administrative Law Judge William N.
Cates issued the attached decision. The Respondent filed exceptions
and a supporting brief. The General Counsel filed a brief in response
to the Respondent’s exceptions and the Respondent filed an answer-
ing brief. The National Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
1 The parties called four witnesses, none of whom attempted to
mold or shape the truth to achieve a particular end. Thus, the facts
set forth herein are credited. Any minor discrepancies or contradic-
tions that might appear to exist in the record are inconsequential. 2 This agreement was effective by its terms until February 1, 1993.
Canyon Coals, Inc. and United Mine Workers of
America, AFL–CIO. Case 26–CA–16073
February 24, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
The issue addressed here is whether the judge cor-
rectly found that the Respondent violated Section
8(a)(5) of the Act by refusing to execute and abide by
a collective-bargaining agreement.1 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 and to adopt
the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Canyon Coals, Inc.,
Summertown, Kentucky, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Jane Vandeventer, Esq., for the General Counsel.
James D. Cockrum, Esq. (Brown, Todd & Heyburn), of Lou-
isville, Kentucky, for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. I heard
this case in Madisonville, Kentucky, on July 26, 1994. On
April 29, 1994, the Acting Regional Director for Region 26
of the National Labor Relations Board (the Board) issued a
complaint and notice of hearing based on an unfair labor
practice charge filed by the United Mine Workers of Amer-
ica, AFL–CIO (the Union) on March 10, 1994, and amended
on March 11, 1994, alleging violations of Section 8(a)(1) and
(5) of the National Labor Relations Act (the Act).
All parties have been afforded full opportunity to appear,
to introduce evidence, to examine and cross-examine wit-
nesses, and to file briefs. Based on the entire record and on
my observation of the demeanor of the witnesses,1 I make
the following
FINDINGS OF FACT
I. JURISDICTION
At times material, Canyon Coals, Inc. (Company) has been
a corporation with an office and place of business in
Summertown, Kentucky, where it is engaged in the mining
and sale of coal. During the calendar year 1993, the Com-
pany in conducting its operations, sold and shipped from its
Kentucky facility goods valued in excess of $50,000 directly
to points located outside the State of Kentucky. Therefore, I
conclude that at times material, the Company has been an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
At times material, United Mine Workers of America,
AFL–CIO and its subordinate units involved herein have
been, and continue to be, labor organizations within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The threshold issue herein is whether the parties reached
an agreement and whether the Company has since requested
on February 16, 1994, refused to execute and adhere to the
agreement. Counsel for the General Counsel (Government)
additionally alleges the Company has failed and refused to
adhere to the agreement, inter alia, by failing and refusing
to process grievances, failing and refusing to pay certain
medical benefits, and failing and refusing to pay certain sick
pay, floating day pay, vacation day pay, and clothing allow-
ance benefits.
B. The Facts
In May or June 1989, plans for establishing the Company
commenced and property was purchased from Peabody Coal
Company containing approximately 1.8 to 2 million tons of
coal which the Company planned to mine over a 3- to 4-year
timespan. Company President Samuel S. Francis (President
Francis) contacted District 23 of the Union about the Compa-
ny’s mining plans and was referred to Union Executive As-
sistant Bradley J. Burton (Executive Assistant Burton) who
at that time was the Union’s midwestern regional director re-
sponsible for, among other districts, District 23. President
Francis first met with Executive Assistant Burton in January
1990 and the two discussed Francis’ ‘‘2-page laundry list’’
of ‘‘things’’ it would take from the Union for the Company
to successfully mine its property. Specifically, President
Francis sought relief from the Union related to any pension
liabilities the Company might incur. President Francis told
Executive Assistant Burton there was no way ‘‘on earth that
[the Company] could assume the pension liabilities associ-
ated with [the Union’s] pension plan, because of their huge
deficits.’’ As a result of the Francis/Burton discussions,
President Francis on January 18, 1990, signed the National
Bituminous Coal Wage Agreement of 1988 (1988
NBCWA).2
449CANYON COALS
3 According to Executive Assistant Burton, in 1990, the pension
portion of the 1950 Pension Benefit Plan and Trust was fully funded
but the medical and health care benefits was ‘‘in serious financial
trouble.’’
4 According to Executive Assistant Burton, the MOU was
backdated to the same date the Company executed the 1988
NBCWA. Burton testified he also explained to President Francis that
he did not actually control the various ‘‘funds’’ and as such there
was always the possibility that the ‘‘funds’’ administrators would
sue the Company.
5 The so-called ‘‘Orphans Fund’’ is a benefit plan established in
1974 whereby employees/pensioners whose companies no longer are
in business are provided health care benefits.
President Francis told the Union at the time he signed the
1988 NBCWA that he would need something in writing re-
garding relief for the Company not only from the Union’s
pension plan liabilities but also payments associated with the
Union’s 1950 Benefit Plan and Trust.
The Company had not hired any employees at the time
President Francis signed the 1988 NBCWA nor had any of
the assurances that Francis and Burton negotiated been re-
duced to writing. President Francis explained he went ahead
and signed the 1988 NBCWA at the time he did because he
‘‘felt like [his] discussions with [Executive Assistant Burton]
. . . would get the modifications from the Union that the
Company wanted.’’
According to President Francis, Union District 23 re-
quested he hire employees for his Company from the Pea-
body Coal Sinclair Panel (Sinclair Panel) because those on
that panel had mined coal in the general area where the
Company’s property was located. President Francis agreed in
March 1990 that the Company would hire from the Sinclair
Panel in exchange for being granted relief from the Union’s
1950 Pension Benefit Plan and Trust.3 The Company hired
only union members and dues were deducted from their
wages and transmitted to the Union by the Company. The re-
lief the Company sought was reduced to writing in a Memo-
randum of Understanding (MOU) between the Company and
Union which reads as follows:
MEMORANDUM OF UNDERSTANDING
BETWEEN
CANYON COALS, INC.
AND
UNITED MINE WORKERS OF AMERICA
This Memorandum of Understanding, attached to,
and part of, the 1988 National Bituminous Coal Wage
Agreement (NBCWA), between Canyon Coals, Inc. and
the UNITED MINE WORKERS OF AMERICA, modi-
fies the following provisions of the 1988 NBCWA:
1. Canyon Coals, Inc. will be granted a waiver
from contributions to the UMWA 1950 Benefit Plan
and Trust that are set forth in Article XX, Section
(d) (l) (ii).
2. Article XX(j) withdrawal liability from the
1950 Benefit Plan and Trust shall have no applica-
tion whatsoever to Canyon Coals, Inc.
3. The above modifications in paragraphs (1) and
(2) shall only exist for the duration of the 1988
NBCWA.
This Memorandum is the complete understanding
and agreement of the parties signatory hereto. Every
other provision of the 1988 NBCWA, other than those
modifications set forth above, remain in effect.
/s/ Bradley J. Burton
UNITED MINE WORKERS OF AMERICA
/s/ Jesse Guber, Jr.
Employer, Canyon Coals, Inc., By its Pres.
Dated: Jan. 18, 19904
President Francis testified that about every 6 months, he
would read something in the newspapers about health and
pension benefit liabilities that would concern him greatly,
thus prompting a visit with Executive Assistant Burton.
Such a visit took place in January 1992 with President
Francis trying to limit any potential liability the Company’s
shareholders might have. President Francis was concerned
that since health care had become a national issue that may
be the modifications to the 1950 Benefit Plan and Trust
‘‘didn’t quite say all’’ needed to ‘‘make [him] feel com-
fortable’’ so he asked Executive Assistant Burton about add-
ing a paragraph regarding ‘‘individual liability’’ and clarify-
ing in writing that if the Company went out of business the
employees’ health care benefits would be paid by the ‘‘Or-
phans Fund’’5 rather than by the Company. Executive Assist-
ant Burton testified he, as always, told President Francis he
could not control the ‘‘funds’’ but the purpose of the 1974
Benefit Plan was to provide such coverage but that the Com-
pany had to be ‘‘out of the coal mining business com-
pletely’’ for the 1974 Benefit Plan to apply. Executive As-
sistant Burton explained that he and President Francis always
operated in a ‘‘very frank and open manner’’ and that
Francis was seeking clarifications about the Company’s li-
abilities after it went out of business. It was against this
backdrop that he and Francis executed the following MOU
on January 7, 1992:
MEMORANDUM OF UNDERSTANDING
BETWEEN
CANYON COALS, INC.
AND
UNITED MINE WORKERS OF AMERICA
This Memorandum of Understanding, attached to,
and part of, the 1988 National Bituminous Coal Wage
Agreement (NBCWA), between Canyon Coals, Inc. and
the UNITED MINE WORKERS OF AMERICA, clari-
fies the following provisions of the 1988 NBCWA:
It has been acknowledged and agreed that when
Canyon Coals, Inc., ceases coal production and
‘‘goes out of business,’’ then Canyon Coals, Inc.,
shall not be responsible for any type of health care
for former employees. The former employees will
become ‘‘orphans’’ under the 1974 Pension and
Health Benefit Plans.
In addition, it is agreed that the officers and share-
holder(s) of Canyon Coals, Inc., shall have no per-
sonal liability of any type of health care coverage.
/s/ Bradley J. Burton
UNITED MINE WORKERS OF AMERICA
450 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
/s/ Samuel S. Francis
Employer, Canyon Coals, Inc., By its President
Dated: Jan. 7, 1992
President Francis spoke with Executive Assistant Burton in
July regarding what would happen if the Union called a gen-
eral strike at the expiration of the 1988 NBCWA. President
Francis and Executive Assistant Burton discussed the fact a
strike against the Company with its debt burden could well
force it out of business. President Francis again expressed
concern about the Company’s, as well as its directors and of-
ficers liabilities, if it went out of business. President Francis
asked for assurances that their prior understandings would be
carried forward into any future agreements. Francis/Burton
discussed an interim agreement that would govern what
would happen if a general strike was called and President
Francis wrote Executive Assistant Burton a letter which
reads as follows:
July 24, 1992
Mr. Brad Burton
Region III Director
United Mine Workers of America
916 B Millis Avenue
Boonville, IN 47601
Dear Brad:
On January 18, 1990, Canyon Coals, Inc., and the
United Mine Workers of America entered into a Memo-
randum of Understanding (copy attached). This letter
shall confirm that the modifications (1. - 3.) of the
Memorandum of Understanding shall apply to any sub-
sequent NBCWA contract entered into by Canyon
Coals, Inc.
Thanks for your continued assistance.
Respectfully,
/s/ Sam Francis
Samuel S. Francis
Executive Assistant Burton signed President Francis’ July
24, 1992 letter as follows on September 8, 1992:
AGREED:
Bradley J. Burton
UNITED MINE WORKERS OF AMERICA
Date: Sept. 8, 1992
Burton could not recall if Francis demanded he sign the
July 24, 1992 letter before he (Francis) would sign the par-
ties’ September 8, 1992 Interim Agreement, but acknowl-
edged that certainly made sense.
Executive Assistant Burton and President Francis signed
an Interim Agreement on September 8, 1992, that reads as
follows:
1992 INTERIM AGREEMENT
This Agreement, made and entered into this 8th day
of September, 1992, between Canyon Coals, Inc. (here-
inafter the ‘‘Employer’’), as a party of the first part,
and the International Union, United Mine Workers of
America (hereinafter the ‘‘Union’’), party of the second
part, is intended by both parties to provide for a peace-
ful and harmonious relationship between labor and
management.
1. The party of the first part continues to recognize
the Union as the collective bargaining representative of
its employees at its mines and facilities covered by the
National Bituminous Coal Wage Agreement of 1988
(hereinafter ‘‘1988 National Agreement’’);
2. The employer and the Union agree to be bound
by and comply fully with the terms and conditions of
the agreement successor to the 1988 National Agree-
ment after ratification by the UMWA membership
(hereinafter ‘‘the Successor National Agreement’’);
3. Such Successor National Agreement will be
promptly executed between the parties hereto following
an affirmative ratification vote by the UMWA member-
ship. Its terms and conditions will apply to all employ-
ees, mines and facilities which are covered by the 1988
National Agreement;
4. In the event there is a period of time between
February 1, 1993, and the effective date of the Succes-
sor National Agreement, the parties agree to the follow-
ing:
(a) All terms and conditions of the 1988 National
Agreement shall continue to apply to the UMWA
bargaining unit during said period and the parties
agree to extend and update the 1988 National Agree-
ment in a manner that permits the Union and em-
ployees to continue to enjoy all rights and to accu-
mulate all benefits thereunder during the extension
period; and
(b) Within thirty (30) days after the Successor Na-
tional Agreement is executed by the parties (herein-
after the ‘‘New Contract’’), the Employer shall issue
retroactive payments for any time during said period
when the bargaining unit did not strike it. The retro-
active payments shall be calculated according to the
additional wages, royalty payments, and other bene-
fits, if any, to which the bargaining unit and its
members are entitled on the effective date of the
New Contract. It is agreed that this retroactively
clause shall operate to apply the New Contract retro-
active to February 1, 1993, as if the New Contract
had been signed and became fully effective on that
date, for the sole purpose of calculating the amount
and type of retroactive payments owed on behalf of
the bargaining unit or to its members for the time
during said period when the bargaining unit did not
strike the Employer;
(c) In the event the Union authorizes a strike
against the BCOA or any of its members upon the ter-
mination of the 1988 National Agreement, the Union
will not call such strike against the Employer. This
pledge is made in return for this Employer’s promise
to make the retroactive payments described in para-
graph 4(b) above and its agreement not to lock-out
any classified employees.
5. This Agreement will expire as of 11:59 p.m. on
January 31, 1994, if no Successor National Agreement
has been negotiated between the United Mine Workers
451CANYON COALS
6 Executive Assistant Burton testified it was his intention to once
again assure President Francis that these modifications would be car-
ried forward in any future agreements between the Union and the
Company. Burton knew the Coal Act of 1992 had been signed into
law at the time he signed Francis’ letter.
7 The 1950 Benefit Plan and Trust and the 1974 Benefit Plan were
merged by the Combined Benefit Fund called for in the Coal Act
of 1992. The Coal Act of 1992 also called for the creation of a sec-
ond benefit plan titled 1992 Union Benefit Plan.
of America and the Bituminous Coal Operators Asso-
ciation.
/s/ Bradley J. Burton
International Union, United Mine Workers
of America
/s/ Samuel S. Francis
Authorized Representative for the Employer
The U.S. Congress passed the Coal Industry Retiree
Health Benefit Act of 1992 (Coal Act of 1992) which Presi-
dent Bush signed into law on October 24, 1992.
President Francis testified he talked with Executive Assist-
ant Burton about 2 months (November 1992) after they
signed the Interim Agreement concerning health care and
pension liabilities of the Company and its officers that might
be impacted by the Coal Act of 1992. President Francis testi-
fied he told Executive Assistant Burton:
[B]rad, I’ll try not to bother you too many more times,
but I’d like to send you a letter that hopefully once and
for all, will put aside my fears that as we go forward,
we will have this included in a new contract.
President Francis testified Executive Assistant Burton told
him to outline his concerns in a letter and if he could agree
with the letter, he (Burton) would sign and return the same
to Francis. Francis prepared such a letter which reads as fol-
lows:
December 1, 1992
Mr. Brad Burton
Region III Director
United Mine Workers of America
916 B Millis Avenue
Boonville, IN 47601
Dear Brad:
As you know, the agreement between the United
Mine Workers of America (UMWA) and Canyon pro-
vided that (1) Canyon would be excluded from the
1950 Benefit and Pension Plans, and (2) Canyon would
have no health benefit or pension liability when and if
Canyon ever ceased operation (Agreement dated Janu-
ary 7, 1992). In consideration of Canyon agreeing to
execute the ‘‘Me Too’’ Agreement dated September 8,
1992, it was agreed that the previous exclusions and
agreements would carry forward into the new agree-
ment.
Since that date, it is my understanding that the 1950
plans are being combined with the 1974 plans and there
will be a new combined plan and/or a new plan replac-
ing the old plans. This would seem to make the 1950
Plan exclusion not applicable. However, if at all pos-
sible, Canyon will need some type of consideration to
offset the loss of this exclusion.
Regardless of what is finally agreed upon concerning
the 1950 Plan exclusion, Canyon still needs to be ex-
cluded from any health benefit and pension cost once
Canyon ceases mining coal. This was the basis and un-
derstanding when Canyon first started business. Please
acknowledge this continued agreement by signing
below.
Canyon is hiring and additional six (6) UMWA min-
ers and is looking forward to being in business for a
long time. Hopefully, this agreement will never be ap-
plicable.
Respectfully,
/s/ Sam Francis
Samuel S. Francis
Executive Assistant Burton added the following to President
Francis’ December 1, 1992 letter:
It has been agreed and it will continue to be agreed
in future UMWA agreements, that Canyon Coals, Inc.,
shall not be liable for any type of health care benefit
or pension liability once Canyon Coals, Inc., quits min-
ing and ceases operations. It has also been acknowl-
edged and agreed that the officers and shareholders of
Canyon Coals, Inc., shall have no liability for health
care benefit or pension liability.
United Mine Workers of America
By: /s/ Bradley J Burton6 12–3–92
Brad Burton
Title: Regional Director
President Francis testified he had two other discussions
with Executive Assistant Burton in November 1992 regard-
ing the fact the Coal Act of 1992 had changed the parties’
modifications to the 1988 NBCWA. President Francis testi-
fied he also during that same time had a couple of discus-
sions with Union District 23 Secretary/Treasurer Dukes about
the Coal Act of 1992 and its modifications to their agree-
ment. Francis asked Dukes ‘‘could we modify the existing
exclusion, to at least still give us our personal understanding
that we . . . the shareholders, directors,—would not be liable
[for modifications] not covered by the Coal Act.’’ According
to President Francis, Dukes said ‘‘no’’ that when a 1993
NBCWA was negotiated, Francis would have to sign it with-
out modifications. President Francis told Dukes:
I said, I just said, Benny, there’s just no way. When we
got into this transaction with the agreement that we
would not have these liabilities at the end, there’s no
way that I can sign a ‘‘93 agreement, and if that’s what
you’re asking me to do, we’re certainly at an impasse.’’
I said, ‘‘I don’t know how to respond, other than we’re
at an impasse,’’ and that’s where I left it.
Subsequent to passage of the Coal Act of 1992, the Com-
pany paid, during 1993, assessed premiums ($7,066.68) to
the Union’s Combined Benefit Fund and Plan7 created pursu-
ant to Section 9702(a)(2) and 9712 of the Coal Act of 1992.
On November 1, 1993, President Francis sent each of the
Company’s unionized employees a one-page memorandum
452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 President Francis agrees Litchfield testified accurately.
captioned ‘‘UMWA attempting to change Canyon’s long-
term liability.’’ Pertinent portions of Francis’ memorandum
follows:
In 1990, Canyon executed various agreement[s] with
the UMWA which rightfully exempted Canyon from
the 1950 Pension and Benefit Plans as well as any
long-term health benefits and withdrawal liability. Can-
yon would not have executed the UMWA-BCOA
agreement without the exclusions because it is obvious
Canyon could never afford such costs. This exclusion
was reconfirmed and further detailed in 1992.
In September 1992, Canyon executed the ‘‘me too’’
agreement with the express consideration that the exclu-
sions from the long-term health benefits would extend
to any new agreements. However, in 1993, the National
Office of the UMWA demanded, prepared, sponsored
and supported a legislative statute which was passed
and which attempts to void these exclusions granted to
Canyon. Voiding the exclusion would cost Canyon in
excess of $4,000,000.
Canyon and I have supported the UMWA and have
honored the UMWA agreements. Canyon and I have
treated each of you fairly and I appreciate that each of
you have treated Canyon and me fairly. But, this new
statute does not honor Canyon’s agreement and could
ultimately force Canyon into bankruptcy.
. . . .
In closing, I would like to reiterate that it is the
UMWA and the U.S. Congress that is attempting to
unilaterally change Canyon’s exclusions and agree-
ments. Canyon will not execute any new UMWA
agreement unless Canyon and I are guaranteed that the
UMWA will honor its previous written and executed
agreements. I have included copies of the relevant ma-
terial.
The Union and the Bituminous Coal Operators Association
successfully negotiated a successor agreement (1993
NBCWA) which was ratified and became effective on De-
cember 16, 1993.
President Francis testified he received a telephone call ei-
ther from Secretary/Treasurer Dukes or Union District 23
President Richard Litchfield in February 1994. Francis there-
after returned the call speaking with Litchfield. Litchfield ex-
plained that after negotiations for the 1993 NBCWA were
completed and the 1992 Interim Agreement set to expire on
February 1, 1994, the general counsel for the Union prepared
signature sheets for the Independents, such as the Company
herein, to sign. All Independents in Union District 23, except
the Company, signed such signature sheets. Litchfield testi-
fied8 that when President Francis telephoned:
I told Mr. Francis that we had copies of the signature
sheets for the 1993 BCOA agreement for him to sign,
and he told me to tell the International that he respect-
fully declined to sign those sheets.
. . . .
And then we got into the discussion as to why he
would not sign the sheets, the contract signature sheets,
and he informed me it’s because . . . the union or the
International—would not follow through on the agree-
ments they had made with him.
I explained or I made the comment to Mr. Francis,
that because of the Coal Act . . . .
. . . .
[H]e has to pay into the combined fund and the 1992
benefit fund.
Local District 23 President Litchfield reported to the Inter-
national Union on February 16, 1994, that President Francis
was refusing to execute the 1993 NBCWA. Thereafter, the
Union filed the unfair labor practice charge that gives rise to
the instant case.
It is undisputed the Company has not executed, nor abided
by, the terms of the 1993 NBCWA. More specifically, the
uncontradicted evidence (or stipulated record) reveals the
Company has, since December 1993, refused to process
grievances, pay certain medical benefits (such as the 1994
$1000 health deductible bonus), pay sick day, floating day,
vacation day, or clothing allowance benefits to its unionized
employees.
IV. DISCUSSION, ANALYSIS, AND CONCLUSIONS
Section 8(d) of the Act defines the duty to bargain collec-
tively as the duty to meet and confer ‘‘in good faith with re-
spect to wages, hours, and other terms and conditions of em-
ployment . . . and the execution of a written contract incor-
porating any agreement reached if requested by either
party.’’ An employer violates Section 8(a)(5) and (1) of the
Act by refusing to execute a written contract incorporating
the terms of a collective-bargaining agreement reached with
a union representing its employees. H. J. Heinz Co. v.
NLRB, 311 U.S. 514, 525–526 (1941). The Court noted in
Heinz that an employer’s refusal to honor, with his signature,
the agreement which he has made with a labor organization,
discredits the organization, impairs the bargaining process,
and tends to frustrate the aim of the statute to secure indus-
trial peace through collective bargaining.
As alluded to earlier, the threshold question is whether
there was a meeting of the minds and whether the parties
reached an agreement. In determining whether an agreement
has been reached, the particular circumstances surrounding
the parties’ negotiations and dealings must be considered in-
cluding the parties’ collective-bargaining history and setting.
From the inception of the Company, President Francis’
aim has been to have the Company mine coal with union
labor but with the Company being exempted from certain
union health and pension benefit obligations, particularly
when the Company ceased operating after 3 to 4 years.
When President Francis initially approached the Union about
the Company forming and using union labor, he had a
‘‘laundry list’’ of concessions he wanted from the Union. It
is apparent the Union through Executive Assistant Burton ne-
gotiated in good faith with President Francis and that each
had respect for the other is in part borne out by President
Francis’ signing of the 1988 NBCWA before a side agree-
ment he sought was executed because he trusted Executive
Assistant Burton. The parties executed a side agreement in
January 1990 giving the Company certain relief from re-
quirements of the Union’s 1950 Benefit Plan and Trust. As
of 1990, the pension portion of the 1950 Benefit Plan and
Trust was fully funded but the medical and health care bene-
453CANYON COALS
fits portion was ‘‘in serious financial trouble.’’ It was against
this backdrop that President Francis sought, and was granted
relief. Every few months President Francis sought further as-
surances from Executive Assistant Burton regarding any po-
tential liability the Company might have with respect to pen-
sion and health care obligations. President Francis requested
further assurances regarding the Company’s and its officers
liabilities related to pension and health fund obligations that
might arise when the Company went out of business. Francis
and Burton executed such a MOU in January 1992 in which
the Company was assured that when it went out of business,
it would ‘‘not be responsible for any type of health care for
former employees’’ that the former employees would be con-
sidered ‘‘orphans’’ under the Union’s 1974 Pension and
Health Benefit Plans. The Union further assured the Com-
pany that its officers and shareholders would have ‘‘no per-
sonal liability of any type’’ for ‘‘health care coverage’’ after
the Company went out of business. In July 1992, President
Francis sought, and on September 8, 1992, Executive Assist-
ant Burton ‘‘agreed,’’ that their side agreements of under-
standing modifying the 1988 NBCWA would be carried for-
ward to any subsequent NBCWA entered into or adopted by
the Company. It was at this same time (September 8, 1992)
that the Company entered into an interim agreement with the
Union in which it agreed to be ‘‘bound by and comply fully
with the terms and conditions of the agreement successor to
the 1988 National Agreement after ratification by the
UMWA membership.’’ Thereafter, the Coal Act of 1992,
came into being. That act mandated changes that impacted
the modifications the parties had agreed on. On December 1,
1992, President Francis wrote Executive Assistant Burton
about his continuing concerns related to health benefits and
pension liabilities the Company might have as a result of the
1950 and 1974 plans being replaced by ‘‘a new and com-
bined plan.’’ In his December 1, 1992 letter President
Francis sought assurances from the Union that regardless of
what the outcome might be with respect to the plans, the
Company still needed to be excluded from any health benefit
and pension plan costs once the Company ceased mining
coal. President Francis also wanted further assurances that all
previous exclusions and agreements related thereto would be
carried forward into the parties’ new agreement. On Decem-
ber 3, 1992, Executive Assistant Burton provided President
Francis such assurances when in a written response he de-
clared: ‘‘It has been agreed and it will continue to be agreed
in future UMWA agreements, that Canyon Coals, Inc., shall
not be liable for any type of health care benefits or pension
liability once Canyon Coals, Inc., quits mining and ceases
operations. It has been acknowledged and agreed that the of-
ficers and shareholders of Canyon Coals, Inc. shall have no
liability for health care benefits or pension liability.’’ The
above-outlined assurances that President Francis sought and
that Executive Assistant Burton granted came after enactment
of the Coal Act of 1992. The parties are presumed to have
acted with knowledge of the ramifications of all applicable
laws governing their relationship including the Coal Act of
1992. Thus the parties agreed in writing as of December 3,
1992, that all prior exclusions and modifications negotiated
between the parties were, and would continue to be, binding
and in effect after ratification of the 1993 NBCWA. The
long bargaining history, as outlined in this portion of the de-
cision, establishes the Company and Union envisioned the
Company would be exempted from certain health care and
pension benefit requirements outlined in the 1988 and 1993
NBCWA. The only thing left to complete the parties’ succes-
sor agreement is for the Company to execute the 1993
NBCWA.
In light of all the above, I conclude and find there was a
meeting of the minds and that the parties arrived at a succes-
sor agreement. The successor agreement is the 1993
NBCWA with all exclusions and modifications agreed to by
the parties from the inception of their relationship. I find it
unnecessary to address which, if any, of the exclusions or
modifications previously agreed upon have been specifically
preempted by the Coal Act of 1992. The severability clause
‘‘Article XXVIII, Section (a),’’ page 272 of the 1993
NBCWA will preserve any unimpacted portions of the par-
ties’ agreement.
The Company may not be excused from executing the
1993 NBCWA on the basis that the Union, District 23
Secretary/Treasurer Dukes in particularly, refused to execute
a side agreement excluding the Company and its officials
from any pension or health care liabilities not preempted by
the Coal Act of 1992. All prior exclusions and modifications
remain in full force and effect per Executive Assistant Bur-
ton’s agreement dated December 3, 1992, and are carried for-
ward regardless of whether the Union signs any further un-
derstandings with the Company. Such further signing on the
part of the Union would be a meaningless redundant act inas-
much as the Union is already obligated in writing to honor
all previously agreed-on exceptions, exclusions, and modi-
fications. This is particularly so in light of the fact the
Union’s most recent reaffirmations came after enactment of
the Coal Act of 1992.
CONCLUSIONS OF LAW
1. Canyon Coals, Inc. is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. United Mine Workers of America, AFL–CIO is a labor
organization within the meaning of Section 2(5) of the Act.
3. All employees engaged in the mining of coal and rec-
lamation of mines, as described in article IA of the National
Bituminous Coal Wage Agreement of 1993 (1993 BCOA
Agreement), excluding 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(b) of the Act.
4. At times material, the Union has been, and is, the exclu-
sive collective-bargaining representative of the employees in
the unit described above.
5. By failing and refusing to execute the 1993 NBCWA,
the Company has engaged, and is engaging, in unfair labor
practices within the meaning of Section 8(a)(1) and (5) of the
Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
THE REMEDY
Having found the Company has committed violations of
Section 8(a)(1) and (5) of the Act, I shall recommend it be
ordered to cease and desist and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
454 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 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.
10 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.’’
I recommend the Company be ordered to execute the 1993
NBCWA as requested by the Union on February 16, 1994.
I further recommend the Company be ordered to comply
with the terms of the 1993 NBCWA retroactive to its effec-
tive date and make whole the bargaining unit employees and
the Union for losses, if any, they may have suffered by the
Company’s refusal to sign the contract in the manner set
forth in Ogle Protection Service, 183 NLRB 682 (1970), plus
interest as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987). This remedy is tempered by the fact the
parties agreed in writing on December 3, 1992, that all prior
exclusions and modifications agreed to by the parties from
the inception of their bargaining relationship shall continue
to be in full force and effect.
On these findings of fact and conclusions of law, and on
the entire record, I issue the following recommended9
ORDER
The Respondent, Canyon Coals, Inc., Summertown, Ken-
tucky, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to execute the 1993 National Bitu-
minous Coal Wage Agreement.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Forthwith, execute the 1993 NBCWA as requested by
the Union on February 16, 1994.
(b) Give retroactive effect to the terms and conditions of
employment of the contract and make whole its employees
and the Union for any losses they may have suffered by rea-
son of the Company’s failure to execute the contract as set
forth in the remedy section of this decision.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security records, timecards, personnel records and re-
ports, and all other records necessary to analyze the amount
of reimbursement due.
(d) Post at its Summertown, Kentucky, facility copies of
the attached notice marked ‘‘Appendix.’’10 Copies of the no-
tice on forms provided by the Regional Director for Region
26, after being signed by the Company’s authorized rep-
resentative shall be posted by the Company immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Company to ensure that the notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Company has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY THE ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid and protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT fail or refuse to execute the 1993 National
Bituminous Coal Wage Agreement agreed on between us and
the Union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL, on request by the Union, forthwith execute the
1993 National Bituminous Coal Wage Agreement to which
the Company and Union agreed on December 16, 1993.
WE WILL give retroactive effect to the terms and condi-
tions of employment of the contract and make whole our em-
ployees and the Union for any losses they may have suffered
by reason of our failure to execute the agreement with inter-
est.
CANYON COALS, INC.