Central States Mining Co.

National Labor Relations Board - Board Decisions

Jun 8, 1976

224 N.L.R.B. 474 (N.L.R.B. 1976)

474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Central States Mining Company and United Mine
Workers of America Case 14-CA-8437
June 8, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On March 9, 1976, Administrative Law Judge Her-
bert Silberman issued the attached Decision in this
proceeding Thereafter, General Counsel filed excep-
tions and a supporting brief
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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order
priate notices at its plant/office, including all places where
notices to employees are customarily posted and [would]
reinstate the employees named in paragraph 6 above", that
Respondent has failed and refused to comply with all the
terms and conditions of the described settlement agree-
ment, and that on November 21, 1975, the Regional Direc-
tor issued an order revoking approval of the settlement
agreement Respondent filed an answer and an amended
answer denying that it has engaged in the alleged unfair
labor practices and alleging as affirmative defenses, in sub-
stance, that the averments in the complaint regarding
Respondent's alleged failure to comply with the terms of
the settlement agreement are "insufficient in that [they fail]
to contain such information as to reasonably inform the
Respondent of the claim which it is called upon to meet,"
and further that on July 9 a settlement agreement was exe-
cuted, and as part of the same transaction, at the sugges-
tion of and in the presence of Philip Dexter, counsel for
General Counsel, James E Mitchell executed an instru-
ment waiving reinstatement A hearing in this proceeding
was held in Marion, Illinois, on January 8, 1976
Upon the entire record in the case, and upon consider-
ation of the briefs filed with the Administrative Law Judge,
I make the following
FINDINGS OF FACT
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 complaint be, and it hereby is, dis-
missed in its entirety
DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN, Administrative Law Judge A
charge and an amended charge were filed on March 11 and
April 24, 1975, respectively, by United Mine Workers of
America, herein called the Union, against Central States
Mining Company, herein called the Company, alleging vio-
lations of Section 8(a)(1) and (3) of the Act On November
21, 1975, an amended complaint was issued in the proceed-
ing In substance, the complaint alleges that (1) because of
their union activities and in violation of Section 8(a)(3), the
Company unlawfully laid off its employee Carl E Cash
from January 13 until February 3, 1975, and on February
3, 1975, unlawfully laid off its employee James E Mitchell,
and (2) by reason thereof and by other conduct set forth in
the complaint Respondent also has interfered with, re-
strained, and coerced employees in the exercise of the
rights guaranteed in Section 7 of the Act The complaint
further alleges that on July 9, 1975, Respondent entered
into an informal settlement agreement, which was ap-
proved by the Regional Director for Region 14 on July 11,
"providing, inter aha, that Respondent would post appro-
I THE BUSINESS OF RESPONDENT
The Company, a Nevada corporation authorized to do
business in the State of Illinois, operates an open pit strip
mine at Elkville, Illinois, and maintains an office in Mar-
ion, Illinois Respondent is engaged in the production, sale,
and distribution of coal During the calendar year 1974,
which period is representative of Respondent's operations,
it sold from its Elkville mine products valued in excess of
$50,000 which were shipped through channels of interstate
commerce to points located outside the State of Illinois
Respondent admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act
III THE ALLEGED NONCOMPLIANCE WITH THE SETTLEMENT
AGREEMENT
A The Issues
The complaint alleges that "Respondent has failed and
refused to comply with all the terms and conditions of the
settlement agreement," but does not specify what are the
violations In its answer Respondent complains that the
complaint "fails to contain such information as to reason-
ably inform the Respondent of the claim which it is called
upon to meet " In the circumstances, at the hearing, coun-
sel for General Counsel was called upon to describe how
Respondent violated the settlement agreement According
224 NLRB No 75
CENTRAL STATES MINING COMPANY 475
to General Counsel, Respondent failed to comply with the
terms of the settlement agreement in two respects First,
the settlement agreement provides that the "Charged Party
will post immediately in conspicuous places in and about
its plant/office, including all places where notices to em-
ployees/members are customarily posted, and maintain for
a period of at least 60 consecutive days from the date of
posting, copies of the Notice attached hereto and made a
part hereof " General Counsel asserted that "the no-
tice was never posted, nowhere, ever, any place was it ever
posted " Second, the settlement agreement required the
Company to offer James E Mitchell immediate and full
reinstatement to his former job when the Company's mine
resumed operations which the Company failed to do With
respect to this claim General Counsel was referred to
Respondent's answer which alleges that James E Mitchell
waived reinstatement in consideration of the payment to
him of the sum of $625 General Counsel's response was
that neither the Charging Party nor the Board is a party to
the waiver and they are not bound thereby, and, further,
that Mitchell was coerced into signing the waiver
Respondent's position is that it has posted the notice in
accordance with the terms of the settlement agreement and
at a place suggested by the Board's Compliance Officer
and that Mitchell's waiver of reinstatement was part and
parcel of the entire settlement transaction which was en-
tered into at the suggestion of and with the encouragement
and assistance of the Board's representative, Philip Dexter
B The Reinstatement Question
There is no dispute that the settlement agreement pro-
vides that the Company would offer Mitchell reinstatement
when it resumed mining operations and it has not done so
The issue is whether the Company was excused from offer-
ing Mitchell reinstatement by reason of an instrument exe-
cuted by Mitchell on July 9 in which he waived reinstate-
ment
Also, there is no dispute as to what occurred when the
settlement agreement was negotiated A hearing in this
case initially was scheduled to be held before an Adminis-
trative Law Judge on July 9, 1975 On that day, before the
hearing opened, Philip Dexter, counsel for General Coun-
sel, and who acted as agent for the Regional Diector, sug-
gested to James Sanders, Respondent's attorney, that they
discuss the possibility of settling the matter With the in-
dulgence of the Administrative Law Judge the parties en-
tered into such discussions Before noon an agreement was
reached which, among other things, provided for the pay-
ment to James E Mitchell and to Carl E Cash as backpay
the sums of $625 and $375, respectively, and for the post-
ing of a notice and compliance with the terms thereof
Among other things, the notice provided, "We have of-
fered James E Mitchell immediate and full reinstatement
to his former job and he has refused to accept our offer "
The parties adjourned for lunch because Philip Dexter stat-
ed that he had to obtain the Regional Director's approval
of the settlement terms i
i Carl E Cash one of the alleged discriminatees, testified that Phil Dex-
ter told us that he thought it would be in our best interest to settle out of
After lunch Dexter informed Respondent's attorney that
the agreement was not approved because it stated that Mr
Mitchell had been offered reinstatement which would be
contrary to the fact as the mine then was not in operation
and thus it was not possible to offer him immediate rein-
statement Dexter stated that the settlement agreement
would have to provide for the reinstatement of Mitchell
Sanders categorically rejected the proposed change saying,
"We will go to hearing " Dexter responded that something
still could be worked out He suggested that the Company
and Mitchell enter into a private agreement which would in
effect constitute a waiver of reinstatement by Mitchell
Sanders agreed to this procedure Then, both Sanders and
Dexter dictated to Allen Oehlert, Sanders' assistant, the
following instrument
I, James E Mitchell, in consideration of settlement of
the charges filed with the National Labor Relations
Board by the United Mine Workers of America
against Central States Mining Company and White
Brothers Equipment Company, Inc, and the payment
of the sum of $625 00 to me, hereby agree to waive all
reinstatement rights and all offers of present and fu-
ture reinstatement to my former employment or sub-
stantially equivalent employment with Central States
Mining Company and/or White Brothers Equipment
Company, Inc
After the instrument was drafted Dexter left the room to
speak with Mitchell Dexter later returned with Mitchell
and with James Thomas, the Union's representative at the
hearing Dexter explained to Mitchell at length the mean-
ing and the effect of the instrument In the presence of
Philip Dexter, James E Mitchell signed the waiver of rein-
statement and James Sanders and James Thomas signed
the instrument as witnesses 2
Because the waiver of reins atement signed by Mitchell
and witnessed by Sanders and Thomas was handwritten,
scratched out, and sloppy in appearance it was suggested
that a typed version be prepared Accordingly, Oehlert
took the handwritten instrument to the offices of Attorney
Sanders where a secretary prepared a typewritten copy
Oehlert returned to the courthouse with both instruments
The typewritten version then was signed by James Mitchell
and witnessed by James Sanders However, the Union's
representative, James Thomas, who had signed the hand-
written version as a witness, refused to sign the typewritten
version According to Thomas, when he was asked to sign
the typewritten version of the waiver of reinstatement, he
said
"I won't sign it without legal counsel to represent me
because I don't fully understand it and I don't want to
court as we stood a chance of not getting anything if we went through with
it He further testified that no threats were made Also according to Cash
the terms of the settlement were fully explained to Mitchell and Mr Dexter
would not sign until [Mitchell] had a total understanding of what was on the
paper
James Thomas testified that before he signed the waiver of reinstate-
ment Sanders explained that the instrument `was for his protection so that
Jim Mitchell could not come back later on to Central States Mining Compa-
ny Thomas further testified "I asked Mr Mitchell I said Has Mr Dex-
ter seen this? Is it all right to sign7' He said `Yes So I signed it
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sign anything that would bind the United Mine Work-
ers to this thing "
Jim Mitchell said he was not going to sign it either,
then, and Mr Sanders got upset
He said, "They are going to have to start the hear-
ing The United Mine Workers went back on their
word Mitchell is not going to sign it and we will have
to go to a hearing "
About that time Mr Dexter came through the door
and told Jim Mitchell to go ahead and sign it, that it
did not have any bearing on the settlement
All the witnesses who testified about the transactions on
July 9, 1975, including Union Representative James Thom-
as, Sanders ' assistant Allen Oehlert, Carl E Cash, and
Frank White, the principal stockholder of Respondent,
agree that so far as the Company was concerned an essen-
tial condition of any settlement was that it would not be
required to reinstate Mitchell Furthermore, Philip Dexter
was specifically informed by the company representatives
that it would go to hearing in the case rather than join in
any settlement that required the reinstatement of Mitchell
It was Philip Dexter who advised Respondent that there
was a way to overcome the Regional Director's objection
to the initial draft of the settlement agreement and stated
that this could be done by Mitchell executing a separate
waiver of reinstatement Dexter assisted in drafting the in-
strument and at the end instructed Mitchell to execute the
document The Regional Director approved the settlement
agreement 2 days later, on July 11, 1975 When he ap-
proved the settlement agreement the Regional Director
knew that the Company understood, despite the specific
language of the agreement, that because of the waiver of
reinstatement signed by Mitchell the Company was not re-
quired to reinstate Mitchell3 By approving the agreement
in such circumstances the Regional Director effectively ac-
knowledged the validity of the waiver of reinstatement exe-
cuted by Mitchell
In his opening argument General Counsel stated that
Mitchell had been coerced into signing the waiver of rein-
statement There is no evidence in the record of any such
coercion General Counsel further argued, "The Charged
Party in this case, Mr White's firm, and his attorney, well
knew the General Counsel was not going to look at and
refused to be bound by the side agreement [the waiver of
reinstatement], but the General Counsel would, in terms of
settling this case, look only to the four corners of the two
pages of the informal settlement agreement which required
reinstatement " The evidence is to the contrary At
first, a settlement agreement was prepared which did not
by its terms require the reinstatement of Mitchell This was
3 As Philip Dexter represented the Regional Director in the settlement
negotiations and signed the settlement agreement on July 9, Dexter s knowl-
edge of the factors involved in the negotiation of the settlement agreement,
including the fact that the Company would not have entered into the settle-
ment agreement unless the waiver of reinstatement was valid is attributable
to the Regional Director, whether or not Philip Dexter actually conveyed
the information to the Regional Director
rejected by the Regional Director Respondent's attorney,
James Sanders, thereupon informed Philip Dexter that Re-
spondent was prepared to go to hearing on the merits Dex-
ter suggested a procedure to overcome the difficulty He
recommended that Mitchell execute a waiver of reinstate-
ment and he participated in drafting the instrument The
one and only purpose for preparing this instrument was to
relieve the Company of any obligation to offer Mitchell
reinstatement Even the testimony of Union Representa-
tive Thomas clearly shows that the Company would not
have settled the case had it been required to reinstate Mit-
chell Thus, whatever the formalities were, everyone who
participated in the settlement negotiations, including the
Regional Director's representative, understood that the
purpose of the waiver of reinstatement executed by Mit-
chell was to excuse the Company from offering a job to
Mitchell, as otherwise it would be required to do under the
terms of the settlement agreement Contrary to General
Counsel, I find that the waiver of reinstatement executed
by Mitchell is a valid instrument, that the Regional Direc-
tor knew of its existence at the time he approved the settle-
ment agreement, and that by approving the settlement
agreement in these circumstances the Regional Director in
effect acknowledged the efficacy and validity of Mitchell's
waiver of reinstatement Accordingly, I find that Respon-
dent has not violated the terms of the settlement agreement
by failing to offer James E Mitchell reinstatement to his
former position
In his brief in this case counsel for General Counsel ar-
gues
Board Agent Dexter unquestionably stated repeat-
edly that the Board would not abide by and was not
bound by any side agreement purportedly being en-
tered into between Mitchell and Respondent
Dexter was not called as a witness However, Dexter could
not sensibly have advised the Company that a settlement
could be effected which would not require Mitchell's rein-
statement by Mitchell executing a waiver of reinstatement
and simultaneously have informed the Company that the
Board would not abide by and would not be bound by
such waiver of reinstatement Furthermore, the evidence
does not support such assertion Counsel for General
Counsel refers to the testimony of Allen Oehlert on pages
120, 121, 125-127 of the transcript of the record to support
his contention The relevant testimony as appears on pages
120 through 131 is as follows
Q Didn't Mr Dexter make it plain, in your
presence, that the Labor Board was not bound by and
would not consider itself to be bound by the sort of
representations and dealings signified in Respondent's
Exhibits Nos 4 and 59
A I believe Mr Dexter explained that this agree-
ment was between Mr Mitchell and Central States
and White Brothers Equipment Company
Q Not binding on the Labor Board, did he make
that clear to everyone
A He made some statement which might approxi-
mate that
*
CENTRAL STATES MINING COMPANY 477
REDIRECT EXAMINATION
Q (By Mr Sanders) After this agreement, this so-
called agreement, side agreement, private agreement,
who suggested this be done9
A Mr Dexter
Q He was the one that initiated the whole proce-
dure, is that correct9
A Yes
Q Isn't it also true that this is the way to get
around what is stated in the notice, isn't that correct9
A He said something to the effect that this is the
way we can achieve what we agreed to achieve, which
we can't do because technically we cannot offer a job
that doesn't exist
Q Why not9
A Because the mine was not working
Q That is the reason that the notice had to be
changed, isn't that correct9
A That is correct
Q (By Mr Sanders) Isn't it true that, again, that
this side agreement between White, Central States and
Mitchell was at the sole suggestion of Dexter and not
from Central States Mining, Frank White or his attor-
ney, Sanders, isn't that correct9
A That is absolutely correct
JUDGE SILBERMAN What led Mr Dexter to make the
statement that you said he made, that this instrument
is not binding on the National Labor Relations Board,
what transpired that caused Dexter to make that state-
ment9 In other words, I don't want Mr Dexter's moti-
vation, you can't testify to that What I am interested
in is the context in which the statement was made,
what was said immediately before that which caused
Mr Dexter to make the statement?
THE WITNESS If I can testify about the general con-
text of what was said, Mr Dexter, through the things
that he said, I believe, was making every effort for
everyone concerned to have each of them understand
exactly what was going on and for every one to be
clear on what was happening He went on and ex-
plained that the agreement was between Mitchell and
Central States and White Brothers, only That he was
not going to sign it and that in regards to the National
Labor Relations Board, I am trying to think exactly
how that came up, I think it was simply that he want-
ed to make it clear, and this once again is more from
the sense of the conversation that he was not signing it
and that the NLRB was not a part of this agreement,
although this agreement did, in fact, carry out the in-
tent of the parties and he was, if you will, a supervising
NLRB agent in terms of the settlement agreement I
don't know if that helped any
JUDGE SILBERMAN That is what you recall hap-
pened9
THE WITNESS Yes
JUDGE SILBERMAN Is it your testimony now that
when Respondent's Exhibit No 4, the handwritten in-
strument, was signed, there was a discussion and did
Mr Dexter then say something to the effect that that
instrument, Respondent's Exhibit No 4, was not bind-
ing upon the National Labor Relations Board9
THE WITNESS Yes At the time, or immediately prior
to the execution of Respondent's Exhibit No 4
JUDGE SILBERMAN Now, I used the word binding
because I believe that was a word you used in answer-
ing some of Mr Sanders' questions Do you recall that
that was the word used9 I don't want to put words in
your mouth If not, what as you best remember, did
Mr Dexter say with respect to the effect of
Respondent's Exhibit No 4 upon the National Labor
Relations Board9
THE WITNESS I cannot remember the exact words I
think he said something to the effect, I cannot sign this
agreement, that the NLRB is not a party and cannot
be a party to this agreement I believe that was closer
to the words
JUDGE SILBERMAN Now, at a later time, I gather sev-
eral hours later?
THE WITNESS No, I would say a half-hour, approxi-
mately a half-hour elapsed between the execution of
Exhibit No 4 and Exhibit No 5
JUDGE SILBERMAN A half-hour later Respondent's
Exhibit No 5 is brought into the room?
THE WITNESS Yes, Sir
JUDGE SILBERMAN At which time Mr Mitchell
signed it and Mr Sanders signed it, and at that time
what did Mr Thomas say, if anything9
THE WITNESS That was signed in the courtroom, in
the presence of Dexter, myself and the Administrative
Law Judge
JUDGE SILBERMAN Thomas was there9
THE WITNESS Thomas was there and other people as
well
JUDGE SILBERMAN Did Thomas say, what did he
say9
THE WITNESS The only thing I think that he said
was, I am not going to sign it
JUDGE SILBERMAN Did Dexter say anything to
Thomas then9
THE WITNESS I think he might have but I don't re-
call what, if anything, was said
JUDGE SILBERMAN Was Mitchell hesitant about
signing Respondent's Exhibit No 5, did Mitchell say
anything9
THE WITNESS Not that I recall
JUDGE SILBERMAN Did Mitchell say anything or do
anything which indicated to you that he had some re-
luctance about signing Respondent's Exhibit No 59
THE WITNESS No
JUDGE SILBERMAN Going back to the period approx-
imately one-half hour earlier, did Mitchell say any-
thing or do anything which indicated to you that he
had some reluctance about signing Respondent's Ex-
hibit No 49
THE WITNESS No
JUDGE SILBERMAN Did you understand that the
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
basis of the settlement was that Mr Mitchell was not
going to be reinstated to his former job9
THE WITNESS I understood that to be an integral
part of the whole agreement, yes
JUDGE SILBERMAN Was there any discussion involv-
ing Mr Dexter as to whether there existed any incon-
sistency or conflict between the provisions of
General Counsel's Exhibit No 2, that is the settlement
agreement, and Respondent's Exhibits Nos 4 and 59
THE WITNESS No, the idea was that there not be any
inconsistency because General Counsel's Exhibit No
2 called for an offer of reinstatement to be made to
Mitchell when the mining operations resumed
Respondent's Exhibits Nos 4 and 5 took care of that
because they said when the mining resumed an offer
would be made but it would be waived, all reinstate-
ment rights would be waived by Mitchell
Q (By Mr Witte) If you would look at
Respondent's Exhibits Nos 4 and 5 it doesn't say any-
thing about the mining operations resuming, does it,
sir?
A No, I perhaps overstated that What I meant to
say was that an offer of reinstatement, at whatever
time made, would be waived and the right to reinstate-
ment would be waived
Oehlert's testimony, considered in its entirety, is not that
Dexter suggested, and Respondent entered into, a mean-
ingless arrangement but only that Dexter informed the par-
ties that the Board would not be signatory to the instru-
ment waiving reinstatement, although the instrument
would, nevertheless, effectively excuse Respondent from
any duty to return Mitchell to work
C Posting of Notices
In his opening statement General Counsel asserted that
the Company had not posted the notices required by the
terms of the settlement agreement The evidence is over-
whelming, and I find, that on August 17 the Company
posted the applicable notice on a bulletin board which it
maintains in its offices in Marion, Illinois General Counsel
at the close of the hearing contended that such posting was
inadequate because the notices should have been posted at
the site of the mine The only structures at the mine are a
trailer and a tin shed A small portion of the trailer is used
as an office by the mine superintendent Notices to em-
ployees are not customarily posted in the trailer or any-
where else at the mine premises A witness for the General
Counsel, Leland Waldron, testified that one day he saw a
seniority list posted in the trailer but the next time he was
in the trailer the list was lying on the floor No other evi-
dence was offered suggesting that any other notices to em-
ployees had ever been posted at the mine site except that
James Thomas testified that on May 8, 1975, the day of a
National Labor Relations Board election, he observed an
official election notice posted on a wall in the trailer
The mine was closed from May 1975 until about Sep-
tember 15, 1975 When the notices were received by the
Company they were not immediately posted, apparently
because the Company believed it was not necessary to post
the notices while the mine was inoperative Various com-
munications were had between J Robert King, Compli-
ance Officer for the Board, and the Company's attorney,
James Sanders, about the subject On August 7, 1975,
Compliance Officer King wrote to Sanders, "Regardless of
information you have provided in previous conversations
[presumably information that the mine was not then in op-
eration], I will tell you and I hope this is crystal-clear, these
notices will be posted or the Regional Director's approval
of the Settlement Agreement in the above-referenced case
will be withdrawn, and complaint and notice of hearing
will issue Mr Mitchell and Mr Cash apparently did
proceed to Mr White's place of business or to some office
in Marion where employees do go, to receive payment for
the insufficient funds checks issued to them for backpay I
might suggest that this perhaps would be a suitable place
for posting these notices " Upon receipt of this letter San-
ders instructed the Company to post the notice on the bul-
letin board in its offices in Marion, Illinois The Respon-
dent did this on August 17, 1975, and the notices have
remained posted at the same place continuously since that
date On September 23, 1975, Compliance Officer J Rob-
ert King again wrote to Sanders stating, " I am also in-
formed that a check at the offices of your client apparently
reveals that notices are not posted there, perhaps may not
have been posted for some period of time " This letter fur-
ther indicates that the Compliance Officer considered post-
ing at the Company's offices in Marion as adequate com-
pliance with the terms of the settlement agreement 4
Accordingly, as the trailer at the mine site is not a place
where notices to employees are customarily posted and as
the Company was specifically instructed by the Compli-
ance Officer to post the notices in its offices in Marion,
Illinois, and as the Company complied with such instruc-
tions, I find that the Company has not violated the settle-
ment agreement in respect to the posting of the notice
As I find, contrary to the allegations of the complaint,
that Respondent has complied with the terms and condi-
tions of the settlement agreement and has not violated any
terms thereof, I shall recommend that the complaint in this
proceeding be dismissed
4 No explanation was offered at the hearing to account for the fact that
the Compliance Officer had been misinformed regarding the posting of the
notice at the Company's Marion office
CENTRAL STATES MINING COMPANY
CONCLUSION OF LAW
Respondent has not engaged in the violations of the Act
alleged in the complaint
Upon the foregoing findings of fact, conclusion 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
ORDERS
The complaint herein is dismissed in its entirety
479
'In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board the findings
conclusions , and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes